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Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 [1907]

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Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1. http://oll.libertyfund.org/titles/2081

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About this Title:

A massive three volume collection of essays by leading American and English legal experts which surveys the entire body of Anglo-American law. Volume 1 is a general survey.

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Table of Contents:

Edition: current; Page: [ii]
SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY
Volume One
Edition: current; Page: [iii]
SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY
By VARIOUS AUTHORS
compiled and edited by a committee of the ASSOCIATION OF AMERICAN LAW SCHOOLS
IN THREE VOLUMES VOLUME I
BOSTON
LITTLE, BROWN, AND COMPANY
1907
Edition: current; Page: [iv]

Copyright, 1907, By Little, Brown, and Company.

All rights reserved

Printers

S. J. Parkhill & Co., Boston, U.S.A.

Edition: current; Page: [v]

PREFACE

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

The present state of our knowledge of the history of our law may be likened to an unfinished building, whose foundations have been laid and whose frame and beams have been erected. The roof, the walls, the floors, the furnishings and decoration, are yet lacking. Its scope and internal plan, its architecture and its relation of parts, can be already plainly seen. But it cannot yet be inhabited; and many kinds of workmen must labor longer upon it. These foundations are the volumes of Sir Frederick Pollock and Professor Maitland,—resting upon the still deeper Germanic caissons of Professor Heinrich Brunner and his co-workers. This frame and these cross-beams are, on the one hand, the few larger monographs, from Mr. Justice Holmes’ “The Common Law” and Professor Bigelow’s “Anglo-Norman Procedure,” Edition: current; Page: [vi] of thirty years ago, to the Selden Society’s source-books and Mr. Holdsworth’s recent first volume; and, on the other hand, the more numerous essays and chapters of the authors represented in these present volumes. But, until now, most of these lesser structural members of the framework have lain scattered about upon the ground, here and there,—ready for use, and yet not fully serviceable because not easily accessible and not assembled in their relations to each other and to the whole. It is the purpose of these volumes to assemble and make accessible these valuable parts of the structure of our legal history.

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

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

For student and for practitioner alike, we believe that these historical essays will be a welcome enlargement of the horizon of our law. “It is the historians who are my true men,” says the genial Montaigne, “for they are pleasant and easy; wherein immediately man in general (the knowledge of whom I hunt after) appears more lively and entire than anywhere besides.” And his ingenuous reason for best liking Plutarch and Seneca is a reason which (we confess) has seemed to us likely to commend these present composite volumes Edition: current; Page: [vii] to that class of our expected readers who are already immersed in practice; for those ancient writers, he says, “have this great convenience (suited to my humour) that the knowledge I there seek is discoursed in several pieces, not requiring any great trouble of reading long, of which I am incapable; ’tis no great undertaking to take one of them in hand, and I give over to them at pleasure, for they have no necessary chain or dependence upon one another.”

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

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

We must, secondly, express our regret that the limitations of scope and space have forced the omission of many essays Edition: current; Page: [viii] which merited reprinting. All matters of public law, for example—including the history of constitutional law and of municipal corporations—have been left aside; perhaps a later series may be made to include them. Furthermore, in several essays and monographs, the narrow range of details, the lengthy marshalling of the historical evidence, or the impossibility of separating usable parts, has made them ineligible; though a reference-list of such authorities has been appended in the proper places.

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

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

All of the material here collected has been already published elsewhere as essays, articles, or chapters,—with the Edition: current; Page: [ix] exception of Mr. Zane’s studies of the Bench and Bar of England, which are now printed for the first time.

The bibliographical footnotes for each of the authors were in some instances furnished by the authors themselves, pursuant to the Committee’s request. In other instances, owing to the authors’ modest ignoring of that request, the Committee used such notes as could be found in biographical dictionaries; and in still others, no information was obtainable. The brief extra reference-lists, prefixed to the topical divisions of this Collection, include only those articles (the result of the Committee’s preliminary gleanings) which it was impossible to include in the reprint. These lists are found chiefly under the special topics of volumes II and III.

Following the prevailing American custom, no attempt has been made to designate the authors, in the title-heading of these essays, by their academic degrees or similar marks of distinction; but in a footnote is placed a record of such distinctions, so far as information was obtainable.

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

The Committee of the
Association of American Law Schools.
Ernst Freund,
University of Chicago.
Wm. E. Mikell,
University of Pennsylvania.
John H. Wigmore, Chairman.
Northwestern University.
Edition: current; Page: [x]

“Sine historia caecam esse jurisprudentiam.” Franciscus Balduinus.

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

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

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SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY VOLUME I GENERAL SURVEYS

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CONTENTS: BOOK I: GENERAL SURVEYS

  • PART I. BEFORE THE NORMAN CONQUEST
    • 1. A Prologue to a History of English Law . . 7

      Frederic William Maitland

    • 2. The Development of Teutonic Law . . . 34

      Edward Jenks

    • 3. English Law before the Norman Conquest . . 88

      Sir Frederick Pollock, Bart.

  • PART II. FROM THE NORMAN CONQUEST TO THE EIGHTEENTH CENTURY
    • 4. The Centralization of Norman Justice under Henry II . . . . . . . 111

      Alice Stopford (Mrs. John Richard) Green

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

      Edward Jenks

    • 6. English Law and the Renaissance . . . 168

      Frederic William Maitland

    • 7. Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant . . 208

      Thomas Edward Scrutton

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

      William Stubbs

    • 9. The Development of the Law Merchant . . 289

      William Searle Holdsworth

    • 10. A Comparison of the History of Legal Development at Rome and in England . . . 332

      James Bryce

    Edition: current; Page: [3]
  • PART III. THE AMERICAN COLONIAL PERIOD
    • 11. English Common Law in the Early American Colonies . . . Paul Samuel Reinsch 367
    • 12. The Extension of English Statutes to the Plantations . St. George Leakin Sioussat 416
    • 13. The Influence of Colonial Conditions, as Illustrated in the Connecticut Intestacy Law . . 431

      Charles McLean Andrews

  • PART IV. EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY
    • 14. Anticipations under the Commonwealth of Changes in the Law . . R. Robinson 467
    • 15. Bentham’s Influence in the Reforms of the Nineteenth Century . John Forrest Dillon 492
    • 16. Progress in the Administration of Justice during the Victorian Period . . . . . 516

      Charles Synge Christopher, Baron Bowen

    • 17. The Development of Jurisprudence during the Nineteenth Century . . . . . 558

      Joseph Henry Beale, Jr.

    • 18. The Extension of Roman and English Law throughout the World . James Bryce 574
  • PART V. BENCH AND BAR FROM NORMAN TIMES TO THE NINETEENTH CENTURY
    • 19. The Five Ages of the Bench and Bar of England . . . John Maxcy Zane 625
    • 20. A Century of English Judicature . . . 730

      Van Vechten Veeder

    • 21. An American Law Student of a Hundred Years Ago . . . . . James Kent 837
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A TABLE OF BRITISH REGNAL YEARS

1Although Charles II. did not ascend the throne until 29th May, 1660, his regnal years were computed from the death of Charles I., January 30, 1649, so that the year of his restoration is styled the twelfth year of his reign.
Sovereigns Commencement of Reign
William I October 14, 1066
William II September 26, 1087
Henry I August 5, 1100
Stephen December 26, 1135
Henry II December 19, 1154
Richard I September 23, 1189
John May 27, 1199
Henry III October 28, 1216
Edward I November 20, 1272
Edward II July 8, 1307
Edward III January 25, 1326
Richard II June 22, 1377
Henry IV September 30, 1399.
Henry V March 21, 1413
Henry VI September 1, 1422
Edward IV March 4, 1461
Edward V April 9, 1483
Richard III June 26, 1483
Henry VII August 22, 1485
Henry VIII April 22, 1509
Edward VI January 28, 1546
Mary July 6, 1553
Elizabeth November 17, 1558
James I March 24, 1603
Charles I March 27, 1625
The Commonwealth January 30, 1649
Charles II1 May 29, 1660
James II February 6, 1685
William and Mary February 13, 1689
Anne March 8, 1702
George I August 1, 1714
George II June 11, 1727
George III October 25, 1760
George IV January 29, 1820
William IV June 26, 1830
Victoria June 20, 1837
Edward VII January 22, 1901
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PART I.: BEFORE THE NORMAN CONQUEST

  • 1.

    A Prologue to a History of English Law.

    Frederic William Maitland.

  • 2.

    The Development of Teutonic Law.

    Edward Jenks.

  • 3.

    English Law Before the Norman Conquest.

    Sir Frederick Pollock.

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1.: A PROLOGUE TO A HISTORY OF ENGLISH LAW1

SUCH is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it: words such as bishop, priest, and deacon.3 If we would search out the origins of Roman law, we must study Babylon: this at least was the opinion of the great Romanist of our own day.4 A statute of limitations must be set; but it must be arbitrary. The web must be rent; but, as we rend it, we may watch Edition: current; Page: [8] the whence and whither of a few of the severed and ravelling threads which have been making a pattern too large for any man’s eye.

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

By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 212,2 Ulpian in 228.3 Ulpian’s pupil Modestinus may be accounted the last of the great lawyers.4 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 nonconformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be; but as yet it was, if the phrase be tolerable, unlawful law, for these societies had an illegal, if not a criminal Edition: current; Page: [9] purpose. Spasmodically the imperial law was enforced against them; at other times the utmost that they could hope for from the state was that in the guise of “benefit and burial societies” they would obtain some protection for their communal property.1 But internally they were developing what was to be a system of constitutional and governmental law, which would endow the overseer (episcopus) of every congregation with manifold powers. Also they were developing a system of punitive law, for the offender might be excluded from all participation in religious rites, if not from worldly intercourse with the faithful.2 Moreover, these various communities were becoming united by bonds that were too close to be federal. In particular, that one of them which had its seat in the capital city of the empire was winning a pre-eminence for itself and its overseer.3 Long indeed would it be before this overseer of a non-conformist congregation would, in the person of his successor, place his heel upon the neck of the prostrate Augustus by virtue of God-made law. This was not to be foreseen; but already a merely human jurisprudence was losing its interest. The intellectual force which some years earlier might have taken a side in the debate between Sabinians and Proculians now invented or refuted a christological heresy. Ulpian’s priesthood4 was not priestly enough.5

The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility;6 it was sharing the fate of art.7 Its eyes were Edition: current; Page: [10] turned backwards to the departed great. The constitutions of the emperors now appeared as the only active source of law. They were a disordered mass, to be collected rather than digested. Collections of them were being unofficially made: the Codex Gregorianus, the Codex Hermogenianus. These have perished; they were made, some say, in the Orient.1 The shifting eastward of the imperial centre and the tendency of the world to fall in two halves were not for the good of the West. Under one title and another, as coloni, laeti, gentiles, large bodies of untamed Germans were taking up their abode within the limit of the empire.2 The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king.3

It is on a changed world that we look in the year 400. After one last flare of persecution (303), Christianity became a lawful religion (313). In a few years it, or rather one species of it, had become the only lawful religion. The “confessor” of yesterday was the persecutor of to-day. Heathenry, it is true, died hard in the West; but already about 350 a pagan sacrifice was by the letter of the law a capital crime.4 Before the end of the century cruel statutes were being made against heretics of all sorts and kinds.5 No sooner was the new faith lawful, than the state was compelled to take part in the multifarious quarrels of the Christians. Hardly had Constantine issued the edict of tolerance, than he was summoning the bishops to Arles (314), even from remote Britain, that they might, if this were possible, make peace in the church of Africa.6 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 empire7 go whatever Edition: current; Page: [11] juristic ability and whatever power of organization are left among mankind. The new supernatural jurisprudence was finding another mode of utterance; the bishop of Rome was becoming a legislator, perhaps a more important legislator than the emperor.1 In 380 Theodosius himself commanded that all the peoples which owned his sway should follow, not merely the religion that Christ had delivered to the world, but the religion that St. Peter had delivered to the Romans.2 For a disciplinary jurisdiction over clergy and laity the state now left a large room wherein the bishops ruled.3 As arbitrators in purely secular disputes they were active; it is even probable that for a short while under Constantine one litigant might force his adversary unwillingly to seek the episcopal tribunal.4 It was necessary for the state to protest that criminal jurisdiction was still in its hands.5 Soon the church was demanding, and in the West it might successfully demand, independence of the state and even a dominance over the state: the church may command and the state must obey.6 If from one point of view we see this as a triumph of anarchy, from another it appears as a triumph of law, of jurisprudence. Theology itself must become jurisprudence, albeit jurisprudence of a supernatural sort, in order that it may rule the world.

Among the gigantic events of the fifth century the issue of a statute-book seems small. Nevertheless, through the turmoil we see two statute-books, that of Theodosius II and that of Euric the West Goth. The Theodosian code was an official collection of imperial statutes beginning with those of Constantine I. It was issued in 438 with the consent of Valentinian III who was reigning in the West. No perfect copy of it has reached us.7 This by itself would tell a sad Edition: current; Page: [12] tale; but we remember how rapidly the empire was being torn in shreds. Already Britain was abandoned (407). We may doubt whether the statute-book of Theodosius ever reached our shores until it had been edited by Jacques Godefroi.1 Indeed we may say that the fall of a loose stone in Britain brought the crumbling edifice to the ground.2 Already before this code was published the hordes of Alans, Vandals, and 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 a stormy age. It was no “code” in our modern sense of that term. It was only a more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have read; bloody laws against heretics, for example.

We turn from it to the first monument of Germanic law that has come down to us. It consists of some fragments of what must have been a large law-book published by Euric for his West Goths, perhaps between 470 and 475.3 Euric was a conquering king; he ruled Spain and a large part of southern Gaul; he had cast off, so it is said, even the pretence of ruling in the emperor’s name. Nevertheless, his laws are not nearly so barbarous as our curiosity might wish them to be. These West Goths who had wandered across Europe were veneered by Roman civilization. It did them little good. Their later law-books, that of 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 Edition: current; Page: [13] 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 law.1

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

The discovery of fragments of the laws of Euric the West Goth has deprived the Lex Salica of its claim to be the oldest extant statement of Germanic custom. But if not the oldest, it is still very old; also it is rude and primitive.3 It comes to us from the march between the fifth and the sixth centuries; almost certainly from the victorious reign of Chlodwig (486-511). An attempt to fix its date more closely brings out one of its interesting traits. There is nothing distinctively heathen in it; but (and this makes it unique4) there is Edition: current; Page: [14] nothing distinctively Christian. If the Sicambrian has already bowed his neck to the catholic yoke, he is not yet actively destroying by his laws what he had formerly adored.1 On the other hand, his kingdom seems to stretch south of the Loire, and he has looked for suggestions to the laws of the West Goths. The Lex Salica, though written in Latin, is very free from the Roman taint. It contains in the so-called Malberg Glosses many old Frankish words, some of which, owing to mistranscription, are puzzles for the philological science of our own day. Like the other Germanic folk-laws, it consists largely of a tariff of offences and atonements; but a few precious chapters, every word of which has been a cause of learned strife, lift the curtain for a moment and allow us to watch the Frank as he litigates. We see more clearly here than elsewhere the formalism, the sacramental symbolism of ancient legal procedure. We have no more instructive document; and let us remember that, by virtue of the Norman Conquest, the Lex Salica is one of the ancestors of English law.

Whether in the days when Justinian was legislating, the Western or Ripuarian Franks had written law may not be certain; but it is thought that the main part of the Lex Ribuaria is older than 596.2 Though there 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 Burgundionum was issued by King Gundobad (474-516) in the last years of the fifth century.3

Burgundians and West Goths were scattered among Roman provincials. They were East Germans; they had long been Christians, though addicted to the heresy of Arius. They could say that they had Roman authority for their occupation of Roman soil. Aquitania Secunda had been made over to the West Goths; the Burgundians vanquished by Edition: current; Page: [15] Aetius had been deported to Savoy.1 In their seizure of lands from the Roman possessors they had followed, though with modifications that were profitable to themselves, the Roman system of billeting barbarian soldiers.2 There were many Romani as well as many barbari for whom their kings could legislate. Hence the Lex Romana Burgundionum and the Lex Romana Visigothorum. The former3 seems to be the law-book that Gundobad promised to his Roman subjects; he died in 516. Rules have been taken from the three Roman codices, from the current abridgments of imperial constitutions and from the works of Gaius and Paulus. Little that is good has been said of this book. Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum.4 Euric’s son, Alaric II, published it in 506 as a statute-book; among the Romani of his realm it was to supplant all older books. It contained large excerpts from the Theodosian Codex, a few from the Gregorianus and Hermogenianus, some post-Theodosian constitutions, some of the Sententiae of Paulus, one little scrap of Papinian and an abridged version of the Institutes of Gaius. The greater part of these texts was equipped with a running commentary (interpretatio) which attempted to give their upshot in a more intelligible form. It is thought nowadays that this “interpretation” and the sorry version of Gaius represent, not Gothic barbarism, but degenerate Roman science. A time had come when lawyers could no longer understand their own old texts and were content with debased abridgments.5

The West Goths’ power was declining. Hardly had Alaric issued his statute-book when he was slain in battle by the Franks. Soon the Visigothic became a Spanish kingdom. But it was not in Spain that the Breviarium made its permanent mark. There it was abrogated by Reckessuinth when he issued a code for all his subjects of every race.6 On the other hand, it struck deep root in Gaul. It became the principal, Edition: current; Page: [16] if not the only, representative of Roman law in the expansive realm of the Franks. But even it was too bulky for men’s needs. They made epitomes of it and epitomes of epitomes.1

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

Lastly, it must not escape us that about the year 500 there was in Rome a monk of Scythian birth who was labouring upon the foundations of the Corpus Iuris Canonici. 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).3 This Collectio Dionysiana made its way in the West. Some version of it may have been the book of canons which our Archbishop Theodore produced at the Council of Hertford in 673.4 A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774.5 It helped to spread abroad the notion that the popes can declare, even if they can not make, law for the universal church, and thus to contract the sphere of secular jurisprudence.

In 528 Justinian began the work which gives him his fame in legal history; in 534, though there were novel constitutions Edition: current; Page: [17] 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, the main work that he did for the coming centuries lies in the Digest. We are told nowadays that in the Orient the classical jurisprudence had taken a new lease of life, especially in the schools at Berytus.1 We are told that there is something of a renaissance, something even of an antiquarian revival visible in the pages of the Digest, a desire to go back from vulgar practice to classical text, also a desire to display an erudition that is not always very deep. Great conqueror, great builder, great theologian, great law-giver, Justinian would also be a great master of legal science and legal history. The narrow escape of his Digest from oblivion seems to tell us that, but for his exertions, very little of the ancient treasure of wisdom would have reached modern times; and a world without the Digest would not have been the world that we know. Let us, however, remember the retrospective character of the book. The ius, the unenacted law, ceased to grow three hundred years ago. In time Justinian stands as far from the jurists whose opinions he collects as we stand from Coke or even from Fitzherbert.

Laws have need of arms: Justinian knew it well. Much depended upon the fortunes of a war. We recall from the Institutes the boast that Africa has been reclaimed. Little was at stake there, for Africa was doomed to the Saracens; nor could transient success in Spain secure a western home for the law-books of Byzantium.2 All was at stake in Italy. The struggle with the East Goths was raging; Rome was captured and recaptured. At length the emperor was victorious (552), the Goths were exterminated or expelled; we hear of them no more. Justinian could now enforce his laws in Italy, and this he did by the pragmatic sanction pro petitione Vigilii (554).3 Fourteen years were to elapse and then the Lombard hordes under Alboin would be pouring Edition: current; Page: [18] down upon an exhausted and depopulated land. Those fourteen years are critical in legal history; they suffer Justinian’s books to obtain a lodgment in the West. The occidental world has paid heavily for Code and Digest in the destruction of the Gothic kingdom, in the temporal power of the papacy, and in an Italy never united until our own day; but perhaps the price was not too high. Be that as it may, the coincidence is memorable. The Roman empire centred in New Rome has just strength enough to hand back to Old Rome the guardianship of her heathen jurisprudence, now “enucleated” (as Justinian says) in a small compass, and then loses for ever the power of legislating for the West. True that there is the dwindling exarchate in Italy; true that the year 800 is still far off; true that one of Justinian’s successors, Constantine IV, will pay Rome a twelve days’ visit (663) and rob it of ornaments that Vandals have spared;1 but with what we must call Græco-Roman jurisprudence, with the Ecloga of Leo the Isaurian and the Basilica of Leo the Wise, the West, if we except some districts of southern Italy,2 has no concern. Two halves of the world were drifting apart, were becoming ignorant of each other’s language, intolerant of each other’s theology. He who was to be the true lord of Rome, if he loathed the Lombard, loved not the emperor. Justinian had taught Pope Vigilius, the Vigilius of the pragmatic sanction, that in the Byzantine system the church must be a department of the state.3 The bishop of Rome did not mean to be the head of a department.

During some centuries Pope Gregory the Great (590-604) is one of the very few westerns whose use of the Digest can be proved.4 He sent Augustin to England. Then “in Augustin’s day,” about the year 600, Æthelbert of Kent set in writing the dooms of his folk “in Roman fashion.”5 Not Edition: current; Page: [19] improbably he had heard of Justinian’s exploits; but the dooms, though already they are protecting with heavy bót the property of God, priests and bishops, are barbarous enough. They are also, unless discoveries have yet to be made, the first Germanic laws that were written in a Germanic tongue. In many instances the desire to have written laws appears so soon as a barbarous race is brought into contact with Rome.1 The acceptance of the new religion must have revolutionary consequences in the world of law, for it is likely that heretofore the traditional customs, even if they have not been conceived as instituted by gods who are now becoming devils, have been conceived as essentially unalterable. Law has been the old; new law has been a contradiction in terms. And now about certain matters there must be new law. What is more, “the example of the Romans” shows that new law can be made by the issue of commands. Statute appears as the civilized form of law. Thus a fermentation begins and the result is bewildering. New resolves are mixed up with statements of old custom in these Leges Barbarorum.

The century which ends in 700 sees some additions made to the Kentish laws by Hlothær and Eadric, and some others made by Wihtræd; there the Kentish series ends. It also sees in the dooms of Ine the beginning of written law in Wessex.2 It also sees the beginning of written law among the Lombards; in 643 Rothari published his edict;3 it is accounted to be one of the best statements of ancient German usages. A little later the Swabians have their Lex Alamannorum,4 and the Bavarians their Lex Baiuwariorum.5 Edition: current; Page: [20] It is only in the Karolingian age that written law appears among the northern and eastern folks of Germany, the Frisians, the Saxons, the Angli and Warni of Thuringia, the Franks of Hamaland.1 To a much later time must we regretfully look for the oldest monuments of Scandinavian law.2 Only two of our “heptarchic” kingdoms leave us law, Kent and Wessex, though we have reason to believe that Offa the Mercian (ob. 796) legislated.3 Even Northumbria, Bede’s Northumbria, which was a bright spot in a dark world, bequeaths no dooms. The impulse of Roman example soon wore out. When once a race has its Lex, its aspirations seem to be satisfied. About the year 900 Alfred speaks as though Offa (circ. 800), Ine (circ. 700), Æthelbert (circ. 600) had left him little to do. Rarely upon the mainland was there any authoritative revision of the ancient Leges, though transcribers sometimes modified them to suit changed times, and by so doing have perplexed the task of modern historians. Only among the Lombards, who from the first, despite their savagery, seem to show something that is like a genius for law,4 was there steadily progressive legislation. Grimwald (668), Liutprand (713-35), Ratchis (746), and Aistulf (755) added to the edict of Rothari. Not by abandoning, but by developing their own ancient rules, the Lombards were training themselves to be the interpreters and in some sort the heirs of the Roman prudentes.

As the Frankish realm expanded, there expanded with it a wonderful “system of personal laws.”5 It was a system of racial laws. The Lex Salica, for example, was not the law of a district, it was the law of a race. The Swabian, wherever he might be, lived under his Alamannic law, or, as an expressive phrase tells us, he lived Alamannic law (legem vivere). So Roman law was the law of the Romani. In a famous, if exaggerated sentence, Bishop Agobard of Lyons Edition: current; Page: [21] has said that often five men would be walking or sitting together and each of them would own a different law.1 We are now taught that this principle is not primitively Germanic. Indeed in England, where there were no Romani, it never came to the front, and, for example, “the Danelaw” very rapidly became the name for a tract of land.2 But in the kingdoms founded by Goths and Burgundians the intruding Germans were only a small part of the population, the bulk of which was Gallo-Roman, and the barbarians, at least in show, had made their entry as subjects or allies of the emperor. It was natural then that the Romani should live their old law, and, as we have seen, their rulers were at pains to supply them with books of Roman law suitable to an age which would bear none but the shortest of law-books. It is doubtful whether the Salian Franks made from the first any similar concession to the provincials whom they subdued; but, as they spread over Gaul, always retaining their own Lex Salica, they allowed to the conquered races the right that they claimed for themselves. Their victorious career gave the principle an always wider scope. At length they carried it with them into Italy and into the very city of Rome. It would seem that among the Lombards, the Romani were suffered to settle their own disputes by their own rules, but Lombard law prevailed between Roman and Lombard. However, when Charles the Great vanquished Desiderius and made himself king of the Lombards, the Frankish system of personal law found a new field. A few years afterwards (800) a novel Roman empire was established. One of the immediate results of this many-sided event was that Roman law ceased to be the territorial law of any part of the lands that had become subject to the so-called Roman Emperor. Even in Rome it was reduced to the level of a personal or racial law, while in northern Italy there were many Swabians who lived Alamannic, of Franks who lived Edition: current; Page: [22] Salic or Ripuarian law, besides the Lombards.1 In the future the renovatio imperii was to have a very different effect. If the Ottos and Henries were the successors of Augustus, Constantine, and Justinian, then Code and Digest were Kaiserrecht, statute law for the renewed empire. But some centuries were to pass before this theory would be evolved, and yet other centuries before it would practically mould the law of Germany. Meanwhile Roman law was in Rome itself only the personal law of the Romani.

A system of personal laws implies rules by which a “conflict of laws” may be appeased, and of late years many of the international or intertribal rules of the Frankish realm have been recovered.2 We may see, for example, that the law of the slain, not that of the slayer, fixes the amount of the wergild, and that the law of the grantor prescribes the ceremonies with which land must be conveyed. We see that legitimate children take their father’s, bastards their mother’s law. We see also that the churches, except some which are of royal foundation, are deemed to live Roman law, and in Italy, though not in Frankland, the rule that the individual cleric lives Roman law seems to have been gradually adopted.3 This gave the clergy some interest in the old system. But German and Roman law were making advances towards each other. If the one was becoming civilized, the other had been sadly barbarized, or rather vulgarized. North of the Alps the current Roman law regarded Alaric’s Lex as its chief authority. In Italy Justinian’s Institutes and Code and Julian’s epitome of the Novels were known, and someone may sometimes have opened a copy of the Digest. But everywhere the law administered among the Romani seems to have been in the main a traditional, customary law which paid little heed to written texts. It was, we are told, ein römisches Vulgarrecht, which stood to pure Roman law in the same relation as that in which the vulgar Latin or Romance that people talked stood to the literary language.4 Not a few of the rules and ideas which Edition: current; Page: [23] were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern conveyancing. The Anglo-Saxon “land-book” is of Italian origin.1 That England produces no formulary books, no books of “precedents in conveyancing,” such as those which in considerable numbers were compiled in Frankland,2 is one of the many signs that even this low Roman law had no home here; but neither did our forefathers talk low Latin.

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

During the golden age of the Frankish supremacy, the age which closely centres round the year 800, there was a good deal of definite legislation: much more than there was to be in the bad time that was coming. The king or emperor issued capitularies (capitula).4 Within a sphere which can not be readily defined he exercised a power of laying commands upon all his subjects, and so of making new territorial law for his whole realm or any part thereof; but in principle any change in the law of one of the folks would require that folk’s consent. A superstructure of capitularies might be reared, but the Lex of a folk was not easily alterable. In 1827 Ansegis, Abbot of St. Wandrille, collected some of the capitularies into four books.5 His work seems to have found general acceptance, though it shows that many capitularies were speedily forgotten and Edition: current; Page: [24] that much of the Karolingian legislation had failed to produce a permanent effect. Those fratricidal wars were beginning. The legal products which are to be characteristic of this unhappy age are not genuine laws; they are the forged capitularies of Benedict the Levite and the false decretals of the Pseudo-Isidore.

Slowly and by obscure processes a great mass of ecclesiastical law had been forming itself. It rolled, if we may so speak, from country to country and took up new matter into itself as it went, for bishop borrowed from bishop and transcriber from transcriber. Oriental, African, Spanish, Gallican canons were collected into the same book, and the decretal letters of later were added to those of earlier popes. Of the Dionysiana we have already spoken. Another celebrated collection seems to have taken shape in the Spain of the seventh century; it has been known as the Hispana or Isidoriana,1 for without sufficient warrant it has been attributed to that St. Isidore of Seville (ob. 636), whose Origines2 served as an encyclopædia of jurisprudence and all other sciences. The Hispana made it sway into France, and it seems to have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers.

Then out of the depth of the ninth century emerged a book which was to give law to mankind for a long time to come. Its core was the Hispana; but into it there had been foisted, besides other forgeries, some sixty decretals professing to come from the very earliest successors of St. Peter. The compiler called himself Isidorus Mercator; he seems to have tried to personate Isidore of Seville. Many guesses have been made as to his name and time and home. It seems certain that he did his work in Frankland and near the middle of the ninth century. He has been sought as far west as le Mans, but suspicion hangs thickest over the church Edition: current; Page: [25] of Reims. The false decretals are elaborate mosaics made up out of phrases from the bible, the fathers, genuine canons, genuine decretals, the West Goth’s Roman law-book; but all these materials, wherever collected, are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power, the sacrosanctity of the persons and the property of bishops, and, though this is not so prominent, the supremacy of the bishop of Rome. Episcopal rights are to be maintained against the chorepiscopi, against the metropolitans, and against the secular power. Above all (and this is the burden of the song), no accusation can be brought against a bishop so long as he is despoiled of his see: Spoliatus episcopus ante omnia debet restitui.

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

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

And now for the greater part of the Continent comes the time when ecclesiastical law is the only sort of law that is visibly growing. The stream of capitularies ceased to flow; there was none to legislate; the Frankish monarchy was going to wreck and ruin; feudalism was triumphant. Sacerdotalism also was triumphant, and its victories were closely connected with those of feudalism. The clergy had long been striving to place themselves beyond the reach of the state’s tribunals. The dramatic struggle between Henry II Edition: current; Page: [26] and Becket has a long Frankish prologue.1 Some concessions had been won from the Merovingians; but still Charles the Great had been supreme over all persons and in all causes. Though his realm fell asunder, the churches were united, and united by a principle that claimed a divine origin. They were rapidly evolving law which was in course of time to be the written law of an universal and theocratic monarchy. The mass, now swollen by the Isidorian forgeries, still rolled from diocese to diocese, taking up new matter into itelf. It became always more lawyerly in form and texture as it appropriated sentences from the Roman law-books and made itself the law of the only courts to which the clergy would yield obedience. Nor was it above borrowing from Germanic law, for thence it took its probative processes, the oath with oath-helpers and the ordeal or judgment of God. Among the many compilers of manuals of church law three are especially famous: Regino, abbot of Prüm (906-915);2 Burchard, bishop of Worms (1012-1023);3 and Ivo, bishop of Chartres (ob. 1117).4 They and many others prepared the way for Gratian, the maker of the church’s Digest, and events were deciding that the church should also have a Code and abundant Novels. In an evil day for themselves the German kings took the papacy from the mire into which it had fallen, and soon the work of issuing decretals was resumed with new vigour. At the date of the Norman Conquest the flow of these edicts was becoming rapid.

Historians of French and German law find that a well-marked period is thrust upon them. The age of the folk-laws and the capitularies, “the Frankish time,” they can restore. Much indeed is dark and disputable; but much has been made plain during the last thirty years by their unwearying labour. There is no lack of materials, and the materials are of a strictly legal kind: laws and statements of law. This done, they are compelled rapidly to pass through several centuries to a new point of view. They Edition: current; Page: [27] take their stand in the thirteenth among law-books which have the treatises of Glanvill and Bracton for their English equivalents. It is then a new world that they paint for us. To connect this new order with the old, to make the world of “the classical feudalism”1 grow out of the world of the folk-laws is a task which is being slowly accomplished by skilful hands; but it is difficult, for, though materials are not wanting, they are not of a strictly legal kind; they are not laws, nor law-books, nor statements of law. The intervening, the dark age, has been called “the diplomatic age,” whereby is meant that its law must be hazardously inferred from diplomata, from charters, from conveyances, from privileges accorded to particular churches or particular towns. No one legislates. The French historian will tell us that the last capitularies which bear the character of general laws are issued by Carloman II in 884, and that the first legislative ordonnance is issued by Louis VII in 1155.2 Germany and France were coming to the birth, and the agony was long. Long it was questionable whether the western world would not be overwhelmed by Northmen and Saracens and Magyars; perhaps we are right in saying that it was saved by feudalism.3 Meanwhile the innermost texture of human society was being changed; local customs were issuing from and then consuming the old racial laws.

Strangely different, at least upon its surface, is our English story. The age of the capitularies (for such we well might call it) begins with us just when it has come to its end upon the Continent. We have had some written laws from the newly converted Kent and Wessex of the seventh century. We have heard that in the day of Mercia’s greatness Off a (ob. 796), influenced perhaps by the example of Charles the Great, had published laws. These we have lost; but we have no reason to fear that we have lost much else. Even Egbert did not legislate. The silence was broken by Edition: current; Page: [28] Alfred, and then we have laws from almost every king: from Edward, Æthelstan, Edmund, Edgar, Æthelred, and Cnut. The age of the capitularies begins with Alfred, and in some sort it never ends, for William the Conqueror and Henry I take up the tale.1 Whether in the days of the Confessor, whom a perverse, though explicable, tradition honoured as a pre-eminent lawgiver, we were not on the verge of an age without legislation, an age which would but too faithfully reproduce some bad features of the Frankish decadence, is a question that is not easily answered. Howbeit, Cnut had published in England a body of laws which, if regard be had to its date, must be called a handsome code. If he is not the greatest legislator of the eleventh century, we must go as far as Barcelona to find his peer.2 He had been to Rome; he had seen an emperor crowned by a pope; but it was not outside England that he learnt to legislate. He followed a fashion set by Alfred. We might easily exaggerate both the amount of new matter that was contained in these English capitularies and the amount of information that they give us; but the mere fact that Alfred sets, and that his successors, and among them the conquering Dane, maintain, a fashion of legislating, is of great importance. The Norman subdues, or, as he says, inherits a kingdom in which a king is expected to publish laws.

Were we to discuss the causes of this early divergence of English from continental history we might wander far. In the first place, we should have to remember the small size, the plain surface, the definite boundary of our country. This thought indeed must often recur to us in the course of our work: England is small: it can be governed by uniform law: it seems to invite general legislation. Also we Edition: current; Page: [29] should notice that the kingship of England, when once it exists, preserves its unity: it is not partitioned among brothers and cousins. Moreover we might find ourselves saying that the Northmen were so victorious in their assaults on our island that they did less harm here than elsewhere. In the end it was better that they should conquer a tract, settle in villages and call the lands by their own names, than that the state should go to pieces in the act of repelling their inroads. Then, again, it would not escape us that a close and confused union between church and state prevented the development of a body of distinctively ecclesiastical law which would stand in contrast with, if not in opposition to, the law of the land.1 Such power had the bishops in all public affairs, that they had little to gain from decretals forged or genuine,2 indeed Æthelred’s laws are apt to become mere sermons preached to a disobedient folk. However, we are here but registering the fact that the age of capitularies, which was begun by Alfred, does not end. The English king, be he weak like Æthelred or strong like Cnut, is expected to publish laws.

But Italy was to be for a while the focus of the whole world’s legal history. For one thing, the thread of legislation was never quite broken there. Capitularies or statutes which enact territorial law came from Karolingian emperors and from Karolingian kings of Italy, and then from the Ottos and later German kings. But what is more important is that the old Lombard law showed a marvellous vitality and a capacity of being elaborated into a reasonable and progressive system. Lombardy was the country in which the principle of personal law struck its deepest roots. Besides Lombards and Romani, there were many Franks and Swabians who transmitted their law from father to son. It was long before the old question Qua lege vivis? lost its importance. The “conflict of laws” seems to have favoured the growth of a mediating and instructed jurisprudence. Edition: current; Page: [30] Then at Pavia, in the first half of the eleventh century, a law-school had arisen. In it men were endeavouring to systematize by gloss and comment the ancient Lombard statutes of Rothari and his successors. The heads of the school were often employed as royal justices (iudices palatini); their names and their opinions were treasured by admiring pupils. From out this school came Lanfranc. Thus a body of law, which though it had from the first been more neatly expressed than, was in its substance strikingly like, our own old dooms, became the subject of continuous and professional study. The influence of reviving Roman law is not to be ignored. These Lombardists knew their Institutes, and, before the eleventh century was at an end, the doctrine that Roman law was a subsidiary common law for all mankind (lex omnium generalis) was gaining ground among them; but still the law upon which they worked was the old Germanic law of the Lombard race. Pavia handed the lamp to Bologna, Lombardy to the Romagna.1

As to the more or less that was known of the ancient Roman texts there has been learned and lively controversy in these last years.2 But, even if we grant to the champions of continuity all that they ask, the sum will seem small until the eleventh century is reached. That large masses of men in Italy and southern France had Roman law for their personal law is beyond doubt. Also it is certain that Justinian’s Institutes and Code and Julian’s Epitome of the Novels were beginning to spread outside Italy. There are questions still to be solved about the date and domicile of various small collections of Roman rules which some regard Edition: current; Page: [31] as older than or uninfluenced by the work of the Bolognese glossators. One critic discovers evanescent traces of a school of law at Rome or at Ravenna which others cannot see. The current instruction of boys in grammar and rhetoric involved some discussion of legal terms. Definitions of lex and ius and so forth were learnt by heart; little catechisms were compiled;1 but of anything that we should dare to call an education in Roman law there are few, if any, indisputable signs before the school of Bologna appears in the second half of the eleventh century. As to the Digest, during some four hundred years its mere existence seems to have been almost unknown. It barely escaped with its life. When men spoke of “the pandects” they meant the Bible.2 The romantic fable of the capture of an unique copy at the siege of Amalfi in 1135 has long been disproved; but, if some small fragments be neglected, all the extant manuscripts are said to derive from two copies, one now lost, the other the famous Florentina, written, we are told, by Greek hands in the sixth or seventh century. In the eleventh the revival began. In 1038 Conrad II, the emperor whom Cnut saw crowned, ordained that Roman law should be once more the territorial law of the city of Rome.3 In 1076 the Digest was cited in the judgment of a Tuscan court.4 Then, about 1100, Irnerius was teaching at Bologna.5

Here, again, there is room for controversy. It is said that he was not self-taught; it is said that neither his theme nor his method was quite new; it is said that he had a predecessor at Bologna, one Pepo by name. All this may be true and is probable enough: and yet undoubtedly he was soon regarded as the founder of the school which was Edition: current; Page: [32] teaching Roman law to an intently listening world. We with our many sciences can hardly comprehend the size of this event. The monarchy of theology over the intellectual world was disputed. A lay science claimed its rights, its share of men’s attention. It was a science of civil life to be found in the human heathen Digest.1

A new force had begun to play, and sooner or later every body of law in western Europe felt it. The challenged church answered with Gratian’s Decretum (circ. 1139) and the Decretals of Gregory IX (1234). The canonist emulated the civilian, and for a long while maintained in the field of jurisprudence what seemed to be an equal combat. Unequal it was in truth. The Decretum is sad stuff when set beside the Digest, and the study of Roman law never dies. When it seems to be dying it always returns to the texts and is born anew. It is not for us here to speak of its new birth in the France of the sixteenth or in the Germany of the nineteenth century; but its new birth in the Italy of the eleventh and twelfth concerns us nearly. Transient indeed but all-important was the influence of the Bologna of Irnerius and Gratian upon the form, and therefore upon the substance, of our English law. The theoretical continuity or “translation” of the empire, which secured for Justinian’s books their hold upon Italy, and, though after a wide interval, upon Germany also, counted for little in France or in England. In England, again, there was no mass of Romani, of people who all along had been living Roman law of a degenerate and vulgar sort and who would in course of time be taught to look for their law to Code and Digest. Also there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces. In England the new learning found Edition: current; Page: [33] a small, well conquered, much governed kingdom, a strong, a legislating kingship. It came to us soon; it taught us much; and then there was healthy resistance to foreign dogma. But all this we shall see in the sequel.

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2.: THE DEVELOPMENT OF TEUTONIC LAW1

THE epoch in which the states of Western Europe are now living, has a history and a unity of its own, and is peculiarly suitable as material for the study we are about to undertake. It is our own epoch, we know more about it than we know of any other, it appeals more powerfully to us than any other, we have inherited its traditions, we breathe its ideas. Dispute as we may about the details, we know that the Roman Empire fell as a political power, that the sceptre of Western Europe passed from the Roman to the Teuton. That the influence of Rome long overshadowed the new forces which took her place, may be readily admitted; the Teuton did not begin to write history on a clean sheet. But the child who starts by copying his letters, in time proceeds to make letters of his own; and if Clovis and his successors were fond of wearing the cast off clothes of the Cæsars, they none the less set a new fashion of wearing them. Nowhere is this truth more abundantly clear than in the history of Teutonic law. Alongside of the elaborate system which generations of Roman Edition: current; Page: [35] jurists had expounded, and Imperial legislators fashioned into shape, there grew up, under totally different circumstances, a group of kindred Teutonic laws, at first utterly incoherent, gradually assuming order and system. It is in these that we trace the growth of the idea of Law.

The oldest monuments of Teutonic legal history have received the name of Leges Barbarorum. But the title is apt to be misleading. Even in the Frank kingdoms, where the conscious imitation of Rome was strongest, there is at first no attempt at legislation in the modern sense. Beyond doubt the Leges were, in most cases, the work of kings, to the extent that they were drawn up by royal direction, and published under royal auspices. Quite possibly, too, the kings who collected them took the opportunity of modifying certain details during the process. But the notion of the king, i. e. the State, as the source of legislation, is yet far distant. Several of these codes profess to give their own account of the way in which they were drawn up; and, in spite of all the criticism which has been directed against the more extravagant pretensions of the so-called historical school, there can be little doubt that these accounts contain a large element of truth. The famous Lex Salica, the custumal of the race which became overlords of half Western Europe, contains a prologue which, though doubtless of later date than the first redaction of the custumal itself, is yet of great antiquity, and which describes the collection of the origines causarum by four chosen men (whose names and districts are given) after lengthy discussions with the judices, or presidents of the local assemblies. The first Burgundian code (early sixth century), known as the Lex Gundobada, describes itself as a “definition,” and is confirmed by the seals of thirty-one counts. The oldest code of the Alamanni, no longer extant in a complete form, is known by the suggestive title of Pactus or Agreement; while the extant edition, dating from the early years of the eighth century, professes to have been drawn up by the king, with the aid of thirty-three bishops, thirty-four dukes, seventy-two counts, and a great multitude of people. The Anglo-Saxon kings describe themselves as “setting” (âsettan), “fastening” (gefæstnode), or “securing” Edition: current; Page: [36] (getrymede) their laws.1 Owing to the scantiness of external evidence, it is impossible to assert with confidence the precise character of the process adopted in the earliest times. But a curious story preserved by the Saxon annalist Widukind2 shows that, even in the tenth century, and under so powerful a monarch as Otto the Great, Law was regarded as a truth to be discovered, not as a command to be imposed. The question was, whether the children of a deceased person ought to share in the inheritance of their grandfather, along with their uncles. It was proposed that the matter should be examined by a general assembly convoked for the purpose. But the king was unwilling that a question concerning the difference of laws should be settled by an appeal to numbers. So he ordered a battle by champions; and, victory declaring itself for the party which represented the claims of the grandchildren, the law was solemnly declared in that sense. The original proposal would have been an appeal to custom; but the plan actually adopted reveals the thought, that even custom is not conclusive proof, that Law is a thing which exists independently of human agency, and is discoverable only in the last resort by an appeal to supernatural authority.

There is one circumstance connected with the compilation of the Laws of the Barbarians which is specially suggestive of influences leading to the developement of rudimentary ideas of Law. By far the most important of these codes are directly connected with migrations and conquests. The Teutonic settlements west of the Rhine were the first to produce compilations of Teutonic law, and it may be, and indeed is, often asserted, that this fact is due to the example of the Code of Theodosius, the great monument of Roman jurisprudence which confronted the invaders of the Empire. But the real epoch of law-producing activity coincides closely with the conquering careers of Charles Martel, Pepin the Short, and Charles the Great. During this period are produced the Laws of the Alamanni, the Bavarians, the Frisians, the Thuringians, and the Saxons. In England, the Anglo-Saxon migrations give rise to a scanty crop of laws; but Edition: current; Page: [37] the real activity comes with the conquests by the Danes. On the other hand, in Scandinavia, of all Teutonic countries the most isolated, the oldest extant code dates from the end of the twelfth century or the beginning of the thirteenth. The fact is an illustration of the great principle, that mixture or, at least, contact of races is essential to progress. The discovery of differences is needed to stimulate thought and produce coherence. Resistance and attack are alike provocative of definition. The conqueror wishes to enforce his customs upon his new subjects. He must needs explain what they are. The conquered demand the retention of their ancient practices. They are compelled to formulate their claims. So it is when Charles the Great conquers Western Europe. So it is again when William conquers the English, when the English conquer India, when Napoleon conquers Germany.

This fact will, perhaps, help to account for one feature of the Leges Barbarorum which has often puzzled readers of them. They omit so many things that we should consider important; and they relate in minute detail matters which seem to us trivial. But, if we remember that the process which produced them was probably a very troublesome one, we shall be inclined to think that their compilers only recorded what was absolutely necessary. And this comprised just those points which the processes of migration and conquest had rendered doubtful. The ancient custom had received a shock; men doubted how far some of its terms would apply to new conditions. Even very modern systems of law frequently omit all mention of rules which are really fundamental. No statute, no recorded decision of an English law court, says that a man may destroy a chattel which belongs to him. Why should it? No one doubts the fact. Much less does a primitive code trouble itself about theoretical completeness. Law is the expression of order and settled rule; but it is none the less true that the law came because of offences, that is, because of variations from existing rule. And it is to law-breakers, paradox as it may sound, that the progress of law is due; for what we call Progress is simply the attempt of the individual to extend his freedom of action Edition: current; Page: [38] beyond those bounds which have hitherto been deemed inexorable. The criminal and the reformer are alike law-breakers. The criminal is the man who endeavours to return to a state of things which society has once practised, but has condemned as the result of experience. The murderer, the thief, the bigamist, are unfortunate survivals from a bygone age. The reformer is the man who advocates what society has hitherto deemed unlawful, because it has not been tried. And so, when we read our Barbarian Codes, and find that they say a good deal about summoning to courts, about rules of inheritance, about foul language, and a very great deal about money compensation for acts of violence, we shall begin dimly to picture to ourselves an older state of things, in which differences of opinion were settled by clubs and spears, in which (whatever the reason) a dead man’s belongings did not pass to his relatives, in which the most virulent abuse was common pleasantry, and in which the blood feud, itself, doubtless, a step towards better things, was treated as a fine art.

Many other features of the Leges Barbarorum deserve to be noticed; but space forbids the mention of more than one. They are laws of peoples, not of places. Even during the later Middle Ages, even in our own day, the principle, that all persons living in a certain place are subject to the law of that place, has to submit to substantial exceptions. In the days which followed the downfall of the Roman Empire, the principle was not recognized at all. The provincials of Gaul, at the time of the Teutonic invasions, lived under a great and uniform system, devised by the jurists and officials of the Roman empire, and embodied in the Theodosian Code and other monuments. The invaders had no thought of depriving them of this privilege. They did indeed, in some cases, publish special codes for their Roman subjects; and so we get a Lex Romana Wisigothorum, a Lex Romana Burgundionum and (possibly) a Lex Romana Curiensis. But it seems again probable, that these compilations are merely attempts to settle inevitable conflicts of legal principles; and, in any case, it is worthy of notice that they are full of references to the Theodosian Code, the Sentences Edition: current; Page: [39] of Paulus, the Lex Aquilia, and other purely Roman sources.1 Amongst the Teutonic populations of the north and east, the question of the provincials would, for obvious reasons, be less important; but the curious reference in the Lex Salica to the man qui legem salicam vivit,2 seems to indicate a similar principle. For slightly later days, the matter is set at rest by the decree of Chlothar II.—“We have ordained that the conduct of cases between Romans shall be decided by the Roman Laws.”

It is not to be supposed, that the invaders accorded to the provincials a principle which they denied to themselves. In truth, it is somewhat difficult to see how migratory groups could arrive at the notion of a lex terræ, unless they were prepared to change their customs with each migration. A great and luminous critic, the late M. Fustel de Coulanges, has, indeed, attempted to deny the occurrence of a migratory epoch, or Völkerwanderung, as well as the recognition of racial differences by the barbarians.3 But, as the same learned historian gives an excellent account of at least a score of new German settlements, hostile or friendly, with the Empire,4 the first question resolves itself into one of figures; while his elaborate attempt to prove that the terms Franci and Romani are names of ranks rather than of races,5 would seem, if successful, to point to the fact that the Teutons settled down as an aristocracy upon the enslaved provincials—a doctrine which is M. Fustel’s pet aversion. Certain it is, that the barbarians themselves clearly recognized the principle of the personality of laws. The oldest part of the Lex Ribuaria (Tit. 31) contains the following conclusive passage:—“This also we determine, that a Frank, a Burgundian, an Alamann, or in whatever nation he shall have dwelt, when accused in court in the Ribuarian country, shall answer according to the law of the place where he was born. And Edition: current; Page: [40] if he be condemned, he shall bear the loss, not according to Ribuarian law, but according to his own law.” Doubtless, even here, we may see foreshadowings of those influences which are soon to localize law. Doubtless, the mixing of races is rendering genealogical questions difficult, and we seem almost to discover a period in which a man may claim to live according to any law, may make any professio juris, that he likes, provided he does it in the proper way. But this is only a concession to practical difficulties. Law is at first as much personal as is religion; and a profession of law is much like a profession of faith.

The second stage in the history of Teutonic Law is, apparently, very modern in character. It looks like positive political legislation, as we understand it at the present day. The Capitularies of the Karolingian House, and of the Beneventine Princes, the statutes and edicts of the Lombard kings and dukes, and even some of the Dooms of the Anglo-Saxon kings, are alleged to be examples of this kind. But here we come upon one of the great sources of error in medieval history. The Frank Empire, in both its stages, was, in a very important sense, a sham Empire. It aimed at reproducing the elaborate and highly organized machinery of the Roman State. Just as a party of savages will disport themselves in the garments of a shipwrecked crew, so the Merowingian and Karolingian kings and officials decked themselves with the titles, the prerogatives, the documents, of the Imperial State. No doubt the wisest of them, such as Charles the Great, had a deliberate policy in so doing. But the majority seem to have been swayed simply by vanity, or ambition, or admiration. Their punishment was the downfall of the Frank Empire; but they might have been consoled for their failure, could they have looked forward a thousand years, and seen their pretensions gravely accepted by learned historians on the faith of documents pillaged from the Imperial chancery, which they scattered abroad without understanding their contents. The Frank Empire was, from first to last, a great anachronism. With a genuine civilization equal in degree to that of their kindred in Britain and Scandinavia, the Germans of continental Europe found themselves Edition: current; Page: [41] called upon to live up to the elaborate civilization of the Roman Empire. They broke down under the strain; and their breakdown is the first great tragedy in modern history, the parent of many tragedies to follow. Those who doubt the possibility of such an explanation, may be referred to the “Parliaments” and “Cabinets” of Samoa, and to the “Polynesian Empire.”

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

The Capitula are distinguishable from the Leges. They emanate directly from royal authority, they deal with less important matters, they have, probably, a less permanent effect. In the pure type of Capitulary, the Capitula per se scribenda, there is no pretence of collecting the law from the mouth of the people. Many of them are mere directions to royal officials. The great Capitulare de Villis, the equally important Capitulare de Justitiis Faciendis, of Charles the Great, are of this character. It is very doubtful if the Capitula of one king bound his successors; for we frequently find almost verbatim repetitions by successive monarchs. On the other hand, some of the Capitula are legibus addita—incorporated by general consent with, and treated thenceforward as part of, a Lex, or custumal. Many of these are now so embedded in the texts of the Leges, that it requires a trained eye to detect them. Others, like the great Capitulare Saxonicum of the year 797, declare openly their origin, and testify to the premature appearance of an idea which is, ultimately, to revolutionize law, the idea that the king Edition: current; Page: [42] proposes new laws, and the people accept them. A large number of Saxons, gathered together from divers pagi, Westphalian and Eastphalian, unanimously consent to the adoption of the Frankish Capitula, with certain modifications.

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

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

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

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

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

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

Once more, the law of the Fief is the law of a court. The power of holding a court was not the only privilege which the feudal seigneur inherited from the days of Charles the Great. But it was the one he valued most, because it brought him in a steady revenue, in fees and fines, and enabled him to keep an eye on what was happening among his vassals. Moreover, long after the military, the fiscal, and the administrative powers of the seigneur had disappeared or become unimportant, his judiciary powers remained almost intact. Edition: current; Page: [45] So feudal law is essentially a law of courts. No doubt, certain general principles run through it all, and, later on, we shall see attempts, such as the Libri Feudorum, to state these in a universal form. No doubt, the right of appeal from lord to overlord tended to produce a certain uniformity in wide areas. But these appearances are apt to be delusive. The ideal type of feudal law is that so graphically depicted in the works which pass under the title of the Assises de Jérusalem, and which profess to describe the usages of that curious product of the Crusades, the Latin kingdoms of Palestine. These are divided into the Assises of the High and of the Low or Burgess Court respectively. Each court has its own law.

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

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

In the early days of the Frank dominion, the churches lived under Roman Law. For one thing, the Christian Emperors had legislated freely on ecclesiastical matters, long before the Teutons were converted to Christianity; and the Merowingians could hardly venture to meddle with the organization of that mighty power which had destroyed their ancient gods, and done so much to give them the victory over their enemies. For another, the churches were corporations, juristic persons; and it took the Teutonic mind a long time Edition: current; Page: [46] to grasp the highly complex notion of a corporation.1 No doubt, the individual mass priest of Frankish times lived under his folk-law; but the great foundations of regular clergy, which sprang up so thickly under the fostering care of the orthodox Franks, could find little in the Leges Barbarorum to meet their case.

As time went on, however, new influences manifested themselves. The disappearance of the Emperors from Rome, the schism between Eastern and Western Christianity, left the Popes in a commanding position with regard to the Western Church. They stepped into the place of the Roman Emperor, and issued Decretals which the clergy considered as binding in ecclesiastical matters. From the earliest times, also, General Councils of the Church had met, and had legislated on matters of faith and discipline. Towards the end of the fifth century, a collection of these decrees and resolutions was made by Dionysius Exiguus, and was regarded as of great authority in Church matters. Neither did the Church disdain the help of the secular arm, especially in such delicate matters as tithes and patronage, in which the lay mind might require the use of carnal weapons. The alliance between the earlier Karolingians and the Papal See is marked by the appearance of ecclesiastical Capitula, many of them founded on Conciliar resolutions, in which, although the Frank Emperor maintains the royal claims, the Church gets it pretty much her own way.2 Similar documents are found amongst the Anglo-Saxon laws;3 and even the Scandinavian codes have their kirkiubolkær, or Church Books.4 But ecclesiastical legislation becomes more and more independent as time goes on. A great stimulus is given by the work of the forger who calls himself Isidorus Mercator, which appears in the ninth century; and which incorporates with the work of Dionysius Exiguus some sixty so-called Decretals of more than doubtful Edition: current; Page: [47] authenticity. Three centuries later, the great work of Gratian of Bologna, the Decretum Gratiani, though obviously the work of a private expounder, was received as an authoritative statement of ecclesiastical law. Later still, in the year 1234, come the Five Books of Gregory IX., in 1298 the “Sext,” or sixth book, of Boniface VIII., in 1317 the Decretals of Clement V., the “Clementines.” By this time, the Church has grown strong enough to repudiate the system which was its foster mother. Roman Law, after all, is the work of laymen; and by this time the Church has become a sacred caste, and will acknowledge no secular authority. Alexander III. forbids the regular clergy to leave their cloisters to hear lectures on “the laws” and physic. In 1219 comes the Bull Super Speculam, in which Honorius extends the prohibition to all beneficed clerks.1 This is not the place in which to discuss the difficult question of the border line between the provinces of Canon and secular law. It is sufficient to say that, from the ninth century to the close of the Middle Ages, not the most autocratic monarch of Western Europe, not the most secular of lawyers, would have dreamed of denying the binding force, within its proper sphere, of the Canon Law. It had its own tribunals, its own practitioners, its own procedure; it was a very real and active force in men’s lives. And yet, it would puzzle an Austinian jurist to bring it within his definition of Law. The State did not make it; the State did not enforce it.

The case of the Law Merchant is equally instructive. Trade and commerce, almost extinct in the Dark Ages which followed the downfall of the Karolingian Empire, revived with the better conditions of the eleventh century, and were stimulated into sudden activity by the Crusades. The new transactions to which they gave rise were beyond the horizon of the law of the Fief and the old folk-law of the market. Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic Edition: current; Page: [48] League, and the Parloir aux Bourgeois at Paris. Occasionally, some special rule of the Law Merchant receives official sanction from king or seigneur. But, for the most part, the Law Merchant is obeyed, no one knows why. It is simply one of several authorities of different origin, which may, and in fact do, come into conflict at many points. The need of a reconciling influence is obvious. In the thirteenth century the Teutonic world is still awaiting the solution of the all-important question—What is Law? It is the glory of England that she, of all the countries of Teutonic Europe, was the first to furnish that solution.

At the time of the Norman Conquest, England is, from a legal standpoint, the most backward of all Teutonic countries, save only Scandinavia. While France and Germany have their feudal laws, which, fatal as they are to unity and good government, are yet elaborate and complete within their own sphere; while Spain, after long harrying by the Moslem, is awaking once more to brilliant life and precocious political development under Sancho the Strong and Cid Campeador; England is still in the twilight of the folk-laws, and, seemingly, without hope of progress. England had never been part of the Frank Empire; and such rudiments of a feudal system as she possessed before the Conquest cannot be compared with the highly organized feudalism of the Continent. To revert again to the admirable French distinction, there might be in England a justice foncière, there was little or no justice seigneuriale. In later times, this fact was of infinite benefit; in the days before the Conquest it was one of the chief reasons why English law lagged behind in the race. The feeble Imperialism of Eadgar and Eadward, even the rude vigour of Knut, seem to have left little permanent impress on English law. When, at the beginning of the twelfth century, an English writer is trying to describe English law, in the so-called Leges Henrici, he ventures to quote as authorities the antiquated Lex Salica and Lex Ribuaria.1 About the same time the author of the book known as the Laws of Edward the Confessor resorts, for his explanation of the title of “king,” to the old story of the correspondence Edition: current; Page: [49] between Pepin the Short and Pope “John.”1 Evidently, English law was, even then, in a very rudimentary state.

But the Norman Conquest soon changed all this. The Normans were the most brilliant men of their age; and their star was then at its zenith. As soldiers, as ecclesiastics, as administrators, above all, as jurists, they had no equals, at least north of the Alps. The vigour which they had brought with them from their Scandinavian home had become infused, during the century which followed the treaty of St. Clair sur Epte, with the subtlety and the clerkly skill of the Gaul. The combination produced a superb political animal. The law and the administration of Normandy in the eleventh and twelfth centuries are models for the rest of France.2 Wherever the Norman goes, to England, to Sicily, to Jerusalem, he is the foremost man of his time. We cannot leave these facts out of account in explaining the place of England in the history of Law.

But the greatest genius will do little unless he is favoured by circumstances; and circumstances favoured the Normans in England. The more rudimentary the English law, the more plastic to the hand of the reformer. While Philip Augustus and St. Louis found themselves hampered at every turn by the network of feudalism, while even the great Barbarossa was compelled to temporize with his vassals, and to respect the privileges of the Lombard League, Henry Beauclerk and Henry of Anjou found it no impossible task to build up a new and uniform system of law for their subjects, and to pave the way for still greater changes in the future. We have now to note the effect of the Norman Conquest on the history of Law.

In the first place, it converted the law of England into a lex terræ, a true local law. There is to be no longer a law of the Mercians, another of the West Saxons, and another of the Danes, not even a law for the English and a law for Edition: current; Page: [50] the Normans, but a law of the land. It took about a century to accomplish this result, which we doubtless owe to feudal principles. England was one great fief in the hands of the king, and it was to have but one law. Writing in the reign of Henry II., Glanville can speak of the “law and custom of the realm.” Such a phrase would then have been meaningless in the mouth of a French or German jurist. About this time a celebrated expression makes its appearance in England. Men begin to speak of the “Common Law.” The phrase is not new; but its application is suggestive. Canonists have used it in speaking of the general law of the Church, as distinguished from the local customs of particular churches. We may trace it back even to the Theodosian Code.1 In the wording of a Scottish statute of the sixteenth century, (and this is very suggestive), it will mean the Roman Law.2 But, in the mouth of an English jurist of the thirteenth century, it means one thing very specially, viz. the law of the royal court. And because the royal court is very powerful in England, because it has very little seigneurial justice to fight against, because the old popular courts are already antiquated, the law of the royal court rapidly becomes the one law common to all the realm, the law which swallows up all, or nearly all, the petty local and tribal peculiarities of which English law, at the time of the Conquest, is full. The Common Law is the jus et consuetudo regni with a fuller development of meaning. It is not only territorial; it is supreme and universal. This is the first great result of the Conquest.

Again, the Common Law is the law of a court. When the Normans first settled in England, they endeavoured to collect law, somewhat in the old way of the Leges Barbarorum, through the wise men of the shires and the inquests of the king’s officials. At least, that was long the tradition; and whether or no the Leges Eadwardi which have come down to us are the result of such a process, we may be pretty sure that the Norman kings made some effort to ascertain what really were the provisions of those laws and customs of the Edition: current; Page: [51] English, which they more than once promised to observe.1 But these were too formless and too antiquated to suffice for the needs of an expanding generation. The whole work of legal administration had to be put on a different footing.

This result is achieved in the twelfth century by the two Henries. Henry Beauclerk begins the practice of sending his ministers round the country to hear cases in the local courts. This is a momentous fact in the history of English law; but it will be observed that it is not legislation at all, merely an administrative act. Neither is it quite original; for the tradition of the Karolingian missi, or perambulating officials, may have floated down to the twelfth century, and the French kings are holding Échiquiers in Normandy, and Grands Jours in Champagne. But these are irregular and unsystematic; in the fourteenth century we find Philip the Fair promising to hold two Exchequers and two Great Days a year, which implies that Exchequers and Great Days have been rare of late.2 By that time the English circuit system has been long a fixed institution, working with regularity and despatch. It has stood the shock of Stephen’s reign; under the great king who is both Norman and Angevin, it has struck its roots deep into the soil. Before the end of the twelfth century, the king’s court has become the most powerful institution in the kingdom, a highly organized body of trained officials, who make regular visitations of the counties, but who have a headquarters by the side of the king himself. This court is at first financial, administrative, judicial. In course of time the judicial element consolidates itself; it becomes professional. It devises regular forms of proceeding; the first extant Register of Writs dates from 1227, but, doubtless, earlier registers have existed for some time in the archives of the Court. Above all, it keeps a strict and unassailable record of all the cases which come before it. Any doubt as to precedent can be set at rest by a reference to the Plea Rolls, which certainly begin before the close of the twelfth century. Later on, it publishes its proceedings Edition: current; Page: [52] in a popular form; the first Year Book comes from 1292. Between the accession of Henry I. and the death of Henry III., this Court has declared the Common Law of England. That law is to be found, not in custumals, nor in statutes, nor even in text-books; but in the forms of writs, and in the rolls of the King’s Court. It is judiciary law; the men who declared it were judges, not legislators, nor wise men of the shires. No one empowered them to declare law; but it will go hard with the men who break the law which they have declared.

Still, we have not reached the end of the effects of the Norman Conquest. If the English king had his court at Westminster, the French king had his Parlement at Paris, the German Kaiser his Hofgericht at Mainz or Frankfort, the kings of Leon and Castile their Audiencia Real at Leon or Valladolid. Though the Parlement of Paris and the Imperial Hofgericht had infinitely less power in the thirteenth century than the King’s Court in England; yet the Exchequer Records of Normandy and the Olim or judgement rolls of the Parlement of Paris may be compared with the Plea Rolls of England; and the Style de du Breuil and the Grant Stille de la Chancellerie de France may rank beside the Register of Writs, for the work of Breuil at least was regarded as official.1 But the Norman Conquest had strengthened the position of the Crown in England in more ways than one. Not only was the king of England in the thirteenth century infinitely more powerful within his realm than the king of the English in the tenth; he was more powerful than the French king in France, far more powerful than the German Kaiser in Germany. Without insisting on the military side of the Norman Conquest, we may notice the fact that the kingship of England was, in the hands of William and his successors, emphatically a “conquest,” not a heritage or an elective office. And, when we come to look at the ideas which have gone to make up our notion of property, we shall find that the nouveau acquêt, the “conquest,” is much more at the disposal of its master than the heritage of the office. The Norman Duke who acquired England made good use of that Edition: current; Page: [53] idea. He maintained an elaborate pretence of heirship to Edward the Confessor; but all men must have seen that it was a solemn farce. As Duke of Normandy, he owed at least nominal allegiance to the King of the French; as king of England he was “absolute.” All was his to give away; what he had not expressly given away, belonged without question to him. Among the documents of the Anglo-Norman period, the charter plays a prominent part; and a learned jurist has explained that the essential feature of a charter is that it is a “dispositive” document, a document which transfers to B some right or interest which at present belongs to A.1 So we get the long and important series of English charters, which culminates in the Great Charter of John and the Merchant Charter of Edward I. When the English Justinian is making his great enquiry into the franchises which his barons claim to exercise, he insists, and nearly succeeds in maintaining, that, for every assertion of seigneurial privilege, the claimant shall show a royal charter.2 It would have been absurd for Philip the Fair or Rudolf of Habsburg to make such a demand; for their feudatories held franchises by older titles than their own, unless indeed the German Kaiser had founded himself on the authority of Charles the Great. The Charter is not a peculiarly English institution; the town charters of Germany and France go back at least to the twelfth century.3 But the charter as a monument of general law is peculiar to, or at least specially characteristic of England; and it is one of the many signs that the English monarchy of the twelfth and thirteenth centuries was the most powerful and centralized monarchy of the Teutonic world. England was a royal domain.

But the lord of a domain may make rules for its management, at least with the concurrence of his managing officials. If any precedent were required for this assertion, we have it in the Capitulare de Villis of Charles the Great. But it is Edition: current; Page: [54] one of the earliest ideas of proprietorship. Long before the descendants of Hugues Capet ventured to legislate as Kings of France, they issued ordinances for their domains. The great feudatories of the French Crown, the Dukes of Normandy and Brittany, the Counts of Champagne and Poitou, did the like. The legislation of the smaller States of Germany, the feudal domains of the Princes of the Empire, begins in a similar way. And so it is quite natural to find, in the England of Anglo-Norman times, Assises and Ordinances which come nearer to modern ideas of law than anything we have seen yet in our search. The Assises of Clarendon and Northampton, the Assise of Arms, the Woodstock Assise of the Forest, the Assise of Measures in 1197, the Assise of Money in 1205, all these look as though royal legislation is going to take the place of all other law. If Henry of Anjou had been succeeded by one as able as himself, with the magnificent machinery of the royal court to back him, and with no great feudatories to hold him in check, England might very well have come to take her law from the mouth of the king alone. But, fortunately for England, Henry’s three successors were not men of his stamp. Richard was able, but frivolous; John, able, but so untrustworthy, that his servants turned against him; Henry, weak and incapable. The danger of royal absolutism passed away. There was even danger that the power of legislation would pass away too. For not only had the royal authority fallen into weak hands. The king’s judges seemed to have lost their inventive power; and the list of writs was almost closed when the third Henry died. Henceforth judicial legislation would proceed only by the slow steps of decision and precedent. But there arises a king who, consciously or unconsciously, by genius or good luck, is destined to be famous for all time as the propounder of the great idea which is to crown the work of England in the history of Law. Law has been declared by kings, by landowners, by folks, by judges, by merchants, by ecclesiastics. If we put all these forces together, we shall get a law which will be infinitely stronger, better, juster, above all, more comprehensive, than the separate laws which have preceded it. “That which touches all, shall be Edition: current; Page: [55] discussed by all.” How far Edward foresaw this result, how far he desired it, how far he borrowed the ideas of others, how far he acted willingly, must be left for specialists to decide. But the broad fact remains, that he created the most effective law-declaring machine in the Teutonic world of his day, that he gave to England her unique place in the history of Law. One part only of the scheme was a temporary failure. Though Edward succeeded, after a sharp struggle, in compelling the nominal adhesion of the clergy to the new system, the Canon Law continued, for two centuries and a half, to be a real rival of the national law. But its day came at last; and, after the Reformation, the clergy found themselves legislated for by a Parliament in which they had ceased to have any effective share. Though a just judgement upon an unpatriotic policy, it was a blot on the system, which has never yet been quite removed. But, with the Reformation, the modern idea of Law was at last realized; and Hobbes could truly say, in words which became the text of Austin’s teaching—“Civil Law is, to every subject, those Rules which the Commonwealth hath commanded him.” But this was the result of a thousand years of history; and, as yet, it was true of England alone.1

In this important matter, we are apt to be deceived. For, if we look to the continent of Europe, we see that there are États Généraux in France, Cortes in Castile and Aragon, a Reichstag or Diet of the Holy Roman Empire in Germany. And these bodies do, undoubtedly, declare a certain amount of law. But the great mass of the collection of French Ordonnances which has been edited by M. Laurière and his successors, was never submitted to the États Généraux; it is the work of the king and his Council. The scanty legislation of the Cortes does not suffice for the needs of Spain, which have to be met by such compilations as El fuero viejo de Castilla, El fuero Juzgo, and Las Siete Partidas, which are not legislation at all, but merely new editions of the old Leges Wisigothorum, collections of judicial decisions, and adaptations of the Pandects. In Germany, the Diet ceases to be an effective body from the death of Frederick II.; and, though Edition: current; Page: [56] Frederick III. and Maximilian make a gallant attempt to restore its prestige, it never becomes the normal law-declaring organ for Germany. Only in Scandinavia does the success of the Riksdaag at all bear comparison with the work of the English Parliament. In Scandinavia there is a rapid and brilliant display of legal activity in the thirteenth century. The folk-laws of Norway, Sweden, Denmark, and Iceland are collected, and are rapidly followed by true national laws, the Landslög of King Magnus Lagabötir for Norway, and King Magnus Eriksson’s Landslag (the so-called “MELL”) for Sweden. Thenceforward, through the Union of Calmar, the modern idea of Parliamentary law seems to be making its triumphant way, until it is checked by the political troubles of the sixteenth and seventeenth centuries. But, unhappily, the history of Scandinavia is too obscure a subject to be handled safely by any but a specialist.

It is from France and Germany that we learn most clearly and unmistakeably the results which followed from a failure to grasp the Edwardian idea of Law. In France and Germany, the law which prevailed from the thirteenth to the sixteenth centuries was feudal, local, municipal, royal; but not national. The feudal and local laws begin to appear in the thirteenth century in the form of text-books, evidently the work of private compilers, though in some cases in an impersonal guise. Thus we get the Trés Ancien Coutumier of Normandy and its successors, the Conseil of Pierre de Fontaines for the Vermandois, the Livre de Jostice et Plet and the Établissemens le Roy for the Orléanais, the customs of Clermont in Beauvoisis by Philippe Beaumanoir. Thus also we get the Saxon Mirror of Eike von Repgowe, the German Mirror, the Suabian Mirror, and the Little Kaiser’s Law for Germany. But there is a curious difference between the fates of the two groups. For while, in France, the purely expository character of the text-books is rarely lost sight of, while Boutillier, as previously pointed out, expressly tells us that the authoritative law must be searched for in the greffe of the court or the enquête par tourbe, in Germany the Rechtsbücher seem to have been accepted, in all good faith, as actual law. The reason for this curious difference is not easy to Edition: current; Page: [57] find. We may suspect it to lie in the clerkly qualities of the French court officials. We know that some at least of the French courts kept careful records, and used the regular forms; the German Weisthümer and the German form-books, the decisions of the Court at Ingelheim and the Oordelboek of Drenthe, the Summa prosarum dictaminis and the Summa curiæ regis, seem to have been poor by comparison. At a certain stage of its history, the life of an institution depends on its using stereotyped forms. So the text-books of Eike von Repgowe and others came to be accepted in Germany as Law, although men must have known them to be the work of private jurists. Documents of the fifteenth century quote the Suabian Mirror (under its later name of Kaiserrecht) as a textual authority;1 and all kinds of legends grow up, which attribute the authorship of the Saxon Mirror to kings and emperors.2

On the other hand, the French mind clung to the idea that the text-books were not themselves Law; and, in the fifteenth century, we find a most interesting process going on. The uncertainty and obscurity of the local customs had at last aroused the hostility of the kings who were building up a great centralizing monarchy in France; and, though they did not venture to alter those local customs which were so fatal an obstacle to their policy, they determined that at least they should be known and recorded. Perhaps they had a presentiment that greater things might happen as a result of the step. Perhaps they thought that a custom once formulated might be altered; at least there would be something to attack. Perhaps they dreamed of a unified France, living under one law. If so, they must have had a rude awakening. For when, as the results of the labours of Charles VII., Louis XI., Charles VIII., and Louis XII., the official Coutumiers are finally before the world, it is a startling picture that they reveal to us. Each district lives under its own law, and is judged by its feudal seigneurs. Not merely great feudal Edition: current; Page: [58] princes, but petty barons and seigneurs claim the right of pit and gallows, of toll, of forfeiture in their fiefs. One is inclined to wonder where the State, as we understand it, finds any place at all. Nowhere can we find a more instructive contrast between the England of Elizabeth and the France of that same day, than in a comparison of Coke’s First Institute with one of the official Coutumiers of the sixteenth century. The English law-book describes, in crabbed language no doubt, a system which is uniform, simple, and intelligible; the Coutumier depicts a state of anarchy and disintegration, of anomalies and inconsistencies. And yet it speaks only of a single district; there are dozens of other Coutumiers, and the whole pays de droit écrit, to be taken into account. And the mischief is not to be cured by ordinary remedies. Splendid as was the work of the great French jurists of the seventeenth and eighteenth centuries, of Moulin, Guy Coquille, Loisel, Domat, Pothier, it needed the red arm of the Revolution to make a Common Law for France.

A word must be said as to the process by which these official Coutumiers were compiled; for it is illuminative of the history of Law. There is no thought of imposing new rules. The custom is, indeed, “projected” by the royal officials, and examined by commissaries of the Parlement of Paris; but, before it can be declared to be law, it must be submitted to an assembly containing representatives of all orders and ranks in the district, and solemnly discussed and accepted by them.1 This is no mere form. In the great collection of Bourdot de Richebourg,2 published in the eighteenth century, we find the very names of those who were present, in person or by deputy, at the reading of the various projets; we know the very points upon which they raised objections. The object of the redaction is to render the use of the enquête par tourbe unnecessary for the future; it declares the custom once and for all. But to do this it holds a great and final enquête par tourbe; it collects, but it does not make, the law.

Turning to Germany, we find that there have been attempts Edition: current; Page: [59] at a similar process. The Landrechte which appear in the fourteenth and fifteenth centuries, the Austrian Landrecht (dating so far back as 1292), the Bavarian Landrecht of 1346, the almost contemporary Silesian Landrecht, are little more than official editions of the Suabian Mirror and the Saxon Mirror. But the inherent weakness of German legal developement gives rise at this point to the greatest tragedy in the history of Teutonic Law. Overcome by the evils of Partikularismus, dazzled by the false glare of the semi-Roman Kaisership, drugged by the fatal influence of the Italian connection, German Law ceases to develope on its own lines, and submits to the invasion of the Roman Law. This time it is not the Code of Theodosius which wins the victory; but that masterpiece of Roman state-craft, the Corpus Juris Civilis of Justinian, which the Glossators and Commentators of Italy have expanded into a marvellous system of scholastic law. Through the universities, through the writers and teachers, through the learned Doctors who fill the courts of Germany, the Roman Law becomes the Common Law of the German Empire. Even feudal law, for which, of course, there is no provision in the work of Justinian, catches the impulse; and the “Feud Books” of Milan are received in Germany proper as the Decima Collatio Novellarum, that is, as the legislation of Roman Emperors. The process is going on during the whole of the fifteenth and sixteenth centuries; but the crowning point is the establishment, in the year 1495, of the Reichskammergericht, or supreme court of the German Empire, of whose judges at first half, afterwards all, are to be Doctors of the Civil Law. That Roman Law should revive in southern France, in Italy, in Spain, where the provincials had once stood thick as the standing corn, seems natural, and, perhaps, inevitable; that it should invade the very home of Teutonism is nothing less than a tragedy. Thus did Rome conquer Germany, a thousand years after the Roman Empire had ceased to be.1 We must also remember that Roman Law effected a similar triumph in distant Scotland.

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But it is possible to exaggerate the triumph. Neither in Germany nor in Scotland did the “reception of the foreign law” wipe out the other laws. At the end of the Middle Ages, the Germans have a maxim: “Town’s law breaks land’s law, land’s law breaks common law.” It is only when other sources fail, that we resort to Roman Law. The laws of the towns play a great part in the history of Law. The privileges granted by the town-charters of the thirteenth century have borne fruit, and developed into great bodies of municipal law, which kings and emperors have to respect. Upon the scanty materials of charter privileges and local customs, the Schöffengerichte of Germany, the cours d’échevins of France, the bailies’ courts of Scotland, have built up elaborate systems of local law, which strive to maintain exclusive control within the limits of their jurisdiction. The town laws of Lübeck, Hamburg, Goslar, Vienna, and Magdeburg, the statuts of Avignon and Arles, the plaids de d’échevinage de Reims, the Bjarkorätten of Scandinavia, are among the most important monuments of law in the Middle Ages. But it is very significant to notice that none of these come from England. Chartered boroughs there were, of course, in the land of the Common Law, and some of them had custumals of their own. But they were of small importance; and they stood much in fear of the law of the land. It is very doubtful whether any royal judge in England would have accepted the maxim: “Town’s law breaks land’s law.” Had he done so, it would have been with great reservations and modifications. The victory of the Common Law put very narrow bounds to the growth of municipal custom in England.

Finally, it must not be forgotten, that royal legislation forms an important factor in the law of the later Middle Ages. We have seen what became of it in England; how it was virtually swallowed up in the national law which dates from the end of the thirteenth century. The failure of the Diets and États Généraux of the Continent left the new idea to work out its own developement. The success of the feudal monarchy in France gave it prominence there. As each new province is added, by diplomacy or annexation, to the domain of the Crown, the royal Ordonnances, fettered only by the Edition: current; Page: [61] curious right of registration claimed by the Parlements, grow in number and importance. As new spheres of legislation—aliens, marine, literature—make their appearance, they fall into the royal hands. In Germany, the elevation of the great feudatories into independent potentates inspires them with similar ambition; whilst the failure of the Empire reduces the importance of Imperial legislation. But neither in France nor in Germany can the royal legislation compare with the Parliamentary legislation of England. The absolutism of the ancien régime is often misunderstood. To suppose that the subjects even of Louis XIV. or Frederick the Great were helpless in the hands of their kings, is grotesque and absurd. Within their own spheres of action, these monarchs were, in a sense, absolute. But those spheres had their limits. For France and Prussia were not countries of one law, but of many laws. And if the king made royal law without let or hindrance, there were other laws which he could not touch. Despite certain faint theoretical doubts, the law which issued from the Parliament at Westminster was supreme over all customs and all privileges; it covered the whole area of human conduct in England, at least after the Reformation. No such assertion could be made of the legislation which came from the Council Chambers of Paris and Berlin.

We are now in a position to sum up the results of our long inquiry into the history of Law. And if, for a moment, we seem to trespass beyond the domain of Law, upon the domain of anthropology, we need only trespass upon paths which the labours of trustworthy guides have made clear for us.

One of the strongest characteristics of primitive man is his fear of the Unknown. He is for ever dreading that some act of his may bring down upon him the anger of the gods. He may not fear his fellow men, nor the beasts of the forest; but he lives in perpetual awe of those unseen powers which, from time to time, seem bent on his destruction. He sows his corn at the wrong season; he reaps no harvest, the offended gods have destroyed it all. He ventures up into a mountain, and is caught in a snow-drift. He trusts himself to a raft, and is wrecked by a storm. He endeavours to propitiate these Edition: current; Page: [62] terrible powers with sacrifices and ceremonies; but they will not always be appeased. There are terrors above him and around him.

From this state of fear, custom is his first great deliverer. To speculate on the origin of custom is beyond our province; we note only its effects. And these are manifest. What has been done once in safety, may possibly be done again. What has been done many times, is fairly sure to be safe. A new departure is full of dangers; not only to the man who takes it, but to those with whom he lives, for the gods are apt to be indiscriminate in their anger. Custom is the one sure guide to Law; custom is that part of Law which has been discovered. Hence the reverence of primitive societies for custom; hence their terror of the innovator. Custom is the earliest known stage of Law; it is not enacted, nor even declared: it establishes itself, as the result of experience.

But, in all these societies which, for want of a better term, we call “progressive,” there are two forces at work which tend to alter custom. As man’s powers of reasoning and observation develope, he begins to doubt whether some of the usages which custom has established are, after all, quite so safe as he has thought. The custom of indiscriminate revenge is perceived to lead to the destruction of the community which practises it. The custom of indiscriminate slaughter of game is seen to lead to hunger and starvation. These results are, by man’s growing intelligence, apprehended to be the judgement of the gods upon evil practices, no less than the thunderstorm and the earthquake. So the custom of indiscriminate revenge is modified into the blood feud, and, later, into the rule of compensation for injuries. The horde of hunters, living from hand to mouth, becomes the tribe of pastoralists, breeding and preserving their cattle and sheep; and the notion of a permanent connection between the tribe and its cattle becomes slowly recognized. The rudimentary ideas of peace and property make their appearance.

The other force at work is the correlative of this. If old customs are laid aside, new customs must be adopted. As the terror of innovation gradually subsides, as it is found that a new departure does not always call down the anger of the Edition: current; Page: [63] gods, new practices are introduced, and are gradually accepted. Thus new custom takes the place of old.

Here we have what may be called the negative and the positive sides of Law. Old customs, proved by experience to be bad, are discarded; new customs, likewise proved by experience to be good, are adopted. But it is not to be expected that all should work smoothly. In every community there will be men who cling to the old bad customs, and refuse to accept the new. There will likewise be men who rashly desire to innovate beyond the limits which the general sense of the community considers safe. Some means must be found for keeping these exceptional persons in check. And so we get the appearance of those assemblies which are neither, according to modern notions, legislative, nor executive, nor judiciary, but simply declaratory. They declare the folkright. It would be an anachronism to say that they made Law. We may be quite sure that they do not argue questions of expediency. Not until an old custom has been definitely condemned by the consciousness of the community, do they declare it to be bad—because, in effect, it has ceased to be a custom. Not until a new practice has definitely established itself as the rule of the community, do they declare it to be good. So little do they claim the power of making new law, that when they do, in fact, sanction a new custom, they probably declare it to be of immemorial antiquity. A great deal of existing custom they do not declare at all; just because there is no dispute about it. This accounts, as we have said, for the fragmentary character of such early records of custom as we possess. Where there are no offenders, there is no need to declare the custom. The Law came because of offences.

At first, as we have said, there is no record of custom, in the modern sense. It lives in the consciousness of the community, and is declared, if necessary, by some assembly, more or less comprehensive. But the influences of migration and conquest introduce a new feature. Brought face to face with new circumstances, the community feels that its customs, to which it clings as part of its individuality, are in danger of being lost. It may have invented for itself some rude Edition: current; Page: [64] system of runes or other symbols; it may, and this is more probable, have come into contact with some higher civilization which possesses a superior art of recording. Such is the case with the earliest monuments of Teutonic Law. They are not even written in Teutonic speech; and this fact has misled some critics into supposing that the Leges Barbarorum are really new sets of rules imposed by an alien conqueror. But, below the curious Latin of the Roman scribe, it is easy to read the still ruder language of the Teutonic folk. The famous “Malberg glosses” of the Lex Salica are only the clearest example of a truth which may be traced in all the Leges Barbarorum. One has but to turn to the glossaries which accompany the classical editions, to see how the scribes were puzzled by hosts of strange Teutonic phrases for which they could find no Latin equivalents. The Anglo-Saxon and the Scandinavian Laws are transcribed in their native tongues. The Leges Barbarorum are not enactments, but records.

For all this, their “redaction” was an epoch in the history of Law. It threatened to make permanent what before was transitory, to stereotype a passing phase. It remained no longer possible to deny the existence of a custom which was recorded in black and white; it was difficult to say that a new custom was old, when no trace of it appeared on the official record. And yet, customs must be altered if communities are to progress; and the Teutonic communities were progressive in no small degree. So there was a chance for a new kind of Law; a Law which should be declared by the conqueror. But the limited character and short duration of the law of such a conqueror even as Charles the Great, shows that the new idea at first met with little success. The Law of the Church, the Law of the Merchants, the Law of the Fief, and the Roman Law, are the real innovating forces which transform the folk-laws into the law of medieval Europe.

Not one of these was Law in the Austinian sense. The Canon Law posed as a revelation, and, as such, was thoroughly in harmony with primitive ideas of Law. That which the folk discovered, through the painful process of experience, to be the will of the unseen Powers, was discovered by Edition: current; Page: [65] Popes and Councils, through the speedier process of revelation. The Canon Law did not profess to be the command of men; it professed to be the will of God. The Law Merchant and the Feudal Law were, in appearance, the terms of many agreements which merchants and which feudal lords and vassals had implicitly bound themselves to observe. But, at bottom, they were not very different from customs which, as the result of experience, had proved to be those under which, so men thought, the business of trade or of landowning could be best carried on. The Roman Law was the deliberate expression, by the wisdom of ages, of that right reason which men were coming to look upon, more and more, as the true index to the will of the Unseen Powers. Its origin as the command of the Roman Emperor was well-nigh forgotten; and we may be very sure that, in Western Europe at least, it was not enforced by the will of those successors of Justinian who sat upon the trembling throne of Byzantium. Had it been so, the Roman Law would have disappeared for ever when Mahomet II. overthrew the Eastern Empire. But it was just at that time that the Roman Law was “received” in Germany.

We have travelled far, and as yet have seen no justification for the Austinian theory, that Law is the command of the State. As we said before, the first time that this theory becomes approximately true, is when the English Parliament is established at the close of the thirteenth century. This is the crowning work of England in the history of Law. But it is possible to overrate its effect. The great virtue of the English Parliamentary scheme was, that it enabled the exponents of all the customs of the realm to meet together and explain their grievances. If we glance at the Rolls of the English Parliament, we shall find that the great bulk of the petitions which are presented during the first two hundred years of its existence, are complaints of the breach of old customs, or requests for the confirmation of new customs which evil-disposed persons will not observe. These petitions, as we know, were the basis of the Parliamentary legislation of that period. What is this but to say that the Parliament was a law-declaring, rather than a law-making body? Sometimes, Edition: current; Page: [66] indeed, the Parliament did make very new law. It made the Statute of Uses, in defiance of a long-established custom. We happen to know the ostensible objects of the statute; for its framers were careful to record them in the preamble to their work. They were, first, to prohibit secret conveyances of land, second, to put an end to bequests of land by will. The formal recognition of secret conveyances and the formal recognition of the validity of bequests of land, were the direct results of the passing of the statute. The lesson is obvious. The English Parliament was a splendid machine for the declaration of Law; when it tried to make Law it ran the risk of ignominous failure.

The truth must not be pressed too far, but a truth it is, that, even now, Law is rather a thing to be discovered than a thing to be made. To think of a legislator, or even a body of legislators, as sitting down, in the plenitude of absolutism, to impose a law upon millions of human beings, is to conceive an absurdity. How shall such a law be enforced? By a single ruler? By a group of elderly legislators? By a few hundred officials? By an army? We know the power of discipline; and we may grant that a comparatively small but well-disciplined army can control an immense mass of unorganized humanity. But the army must have laws too, and how are these to be enforced? Perhaps by another army?

The simple truth of the matter appears to be this. The making of Law is a supremely important thing; the declaring of Law is an important, but a very different thing. Law is made unconsciously, by the men whom it most concerns; it is the deliberate result of human experience working from the known to the unknown, a little piece of knowledge won from ignorance, of order from chaos. It is begun by the superior man, it is accepted by the average man. But it will not do for the inferior man to spoil the work of his betters, by refusing to conform to it. So Law must be declared, and, after that, enforced. This declaration and enforcement are the work of the official few, of the authorities who legislate and execute. There was plenty of Law in the Middle Ages; but it was, for the most part, ill-declared and badly enforced. The great problem which lay before the statesmen of the Edition: current; Page: [67] Middle Ages was to devise a machine which should declare and enforce Law, uniformly and steadily. The supreme triumph of English statesmanship is, that it solved this problem some five hundred years before the rest of the Teutonic world. By bringing together into one body representatives of those who made her laws, by confronting them with those who could declare and enforce them, England was able to know what her law was, to declare it with certain voice, and to enforce it thoroughly and completely.

Edition: current; Page: [68] Edition: current; Page: [69]

SYNOPTIC TABLE OF SOURCES1
NOTES

1. There has been no attempt on the part of the compiler to attain uniformity of spelling or nomenclature. In each case the source has been indicated by its popular title, which, it need hardly be said, is seldom of official origin. The dates assigned to the various items are those generally accepted by the leading specialists.

2. A title in italics indicates that the source was originally the work of a private composer.

3. A title between square brackets, [ ], indicates that the source does not survive in its original form.

Edition: current; Page: [70]
FIFTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
(466-485?) [Leges Eurici.]
4 (Date uncertain.) Lex Salica.
SIXTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
512 Edictum Theoderici.
1 517 Lex Gundobada (Burgundians).
(bet. 511 and 558.) Pactus pro Tenore Pacis Hildeberti (I.) et Chlotharii (I.).
2 Lex Ribuaria (part I.).
3 (bet. 561 and 584) Edictum Hilperici (successions and misc.).
Lex Ribuaria (part II.).
4 596 Hildeberti (II.) Detretio (successions).
586-601. Antiqua. (Lex Wisigothorum.)
Edition: current; Page: [71]
SEVENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
Æthelbirht’s Dooms (Kent). [Pactus Alamannorum.] 584-628 Præceptio Chlotharii (II.) (misc. For Neustria.)
1
614 Edictum Chlotharii (II.). (Misc. For whole Frank kingdom.)
? Lex Ribuaria (part III.).
2 643 Rothari Edictum Renovationis.
652-672 Liber Judicum (Fuero Juzgò).
3 668 Grimoaldi Correctio.
680 Hatfield Decree against heresy. (North., Mercia, E. Anglia, Keut.)
4 Hlothere’s and Eadric’s Dooms (Kent).
Ine’s Ratifications (Wessex).
696 Wihtræd’s Dooms (Kent).
Edition: current; Page: [72]
EIGHTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
Lex Ribuaria (part IV.).
1 Lex Alamannorum.
713-735 Liutprandi Leges.
733 [Notitia de Actoribus Regis.]
2 743 Statutum Karlmanni (appropriating church lands).
745 Ratchis Edictum et Statuta.
Decretum (Lex) Baiwariorum.
750-755 Statuta Ahistulfi.
768 Capitulare Aquitanicum. (Pippin. Misc.)
3 772 Decretum Tassilonis (Bavaria).
775 Decretum Tassilonis (Bavaria).
Capitula Aregis (Beneventum).
779 Capitulare (v. Decretum) Haristallense of Charles the Great. (For whole empire. Important rules for administration of justice. ? Extended to Northern Spain.)
780 Consuetudo et Pactum Aregis (Naples).
Capitulatiode Partibus Saxoniæ.
Notitia Italica. (Charles the Great. Sales.)
785 ? Lex Frisionum.
4 Capitulare Mantuanum. (Pippin as king. Misc.)
Capitulare Pippini. (Procedure. Pilgrims.)
787 Capitulare Mantuanum Hm. (Pippin. Misc.)
787 Capitulare Papiense. (Do. Misc.)
790 Capitulare Pipini. (Misc.)
797 Capitulare Saxonicum.
Edition: current; Page: [74]
NINTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
800 Statutum Cenomannicum (regulating labour-dues of vassals to their lords).
Capitulare de Villis (regulating the management of the royal estates, and containing important general rules).
801 Capitulalegi Lombardicæ addita (misc.).
803 Capitula (apud Aquisgranum) legibus addita. (Murder fines, emancipations, suretyship, abuse of legal process.)
802 Lex Thuringorum. Lex Frisionum (Additio sapientium).
803 Constitutio in lege Ribuaria mittenda.
Lex Saxonum.
806 Capitulare Pippini (misc.).
1 809 Capitula Aquisgranensia. (Pardoned criminals, outlaws, attendance at the local courts.)
810 Capitula Aquisgranensia (containing the important clause limiting jurisdiction of the Hundred courts).
810 Capitula ad Legem Baiwariorum addita (The 8 bans).
? 811 Capitulare de Justitiis Faciendis. (Ordinance regulating competence of various courts, and establishing quarterly circuits of the missi.)
812 Capitulare de Latronibus (definitely constituting theft as a “plea of the crown,” unless committed between two slaves of same master).
[Pactum cum Venatis.] 812 Præceptum pro Hispanis (purprestures of Crown lands).
? 813 Capitulare Aquisgranense (misc.).
815-6 Duæ constitutiones de Hispanis profugis.
819 Capitula Legibus Addenda. (Important criminal code, recognising execution against land, also power of making wills.)
? 819 Capitula Legi Salicæ addita.
? Lex Francorum Chamavorum.
825 Statutum Olonnense (misc.).
827 Ansegisi Abbatis Capitulariuni collectio (an imperfect collection of the Capitula of Charles the Great, Ludwig I., and Lothar I.).
829 Capitularia Wormatiensia. (Important rules of imperial administration, authorizing “inquisitiones.”)
2 Concordia.
836 Pactum Sicardi (Naples).
840 Pactum cum Venetis (prob. founded on earlier of 812, not surviving).
844 Fræceptum pro Hispanis.
853 Capitulare Silvacense (rules for circuit judges).
854 Capitulare Attiniacense (rules for circuit judges).
3 864 Edictum Pistense (important general ordinance regulating procedure, coinage, military service, weights and measures, etc.).
866 Capitula Adelchis (Beneventum).
4 884 Capitulare Vernense. (Robberies. Regulation of rival jurisdictions.)
Ælfred’s Code.
Edition: current; Page: [76]
TENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
901 ? Eadweard the Elder’s (first) Ordinance.
1 904 Eadweard the Elder’s Warnings (C. of Exeter).
Æthelstane’s Ordinance for Tithes.
Æthelstane’s Ordinance of Creatanlea.
2 Judicia Civitatis Lundoniæ. 930 [Ulfijotalog [Editor: illegible] (Iceland).]
940-946 Eadmund’s Proclamations and Institutions.
Eadgar’s Counsel of the Hundred.
3 959-975 Eadgar’s Counsel (at Andover ?).
Eadgar’s (general) Ordinance (at “Wiht bord estane”). 967 Capitulare de duello judiciali.
Æthelred’s Counsel at Woodstock.
4 998 Capitulare de prædiis ecclesiasticis.
Edition: current; Page: [77]
ELEVENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
Peace of the Engglish and Danes. (Danegelt.) The Capitulare (collection of Imperial Capitula).
1 Æthelred’s Law of Wantage.
Counsel of the Witan at Enham (? Ensham).
1018 Knut’s Counsel at Winchester.
1019 Capitulare de Successione
? Witherlags Ret (Knut). ? Liber Papiensis.
1027 ? Mandatum de lege Romana.
2 1037 Edictum de Beneficiis.
? Rectitudines Singularum Personarum. 1052 Constitutio de Veneficiis.
3 1070 The Expesitis (commentary on the Imperial Capitula.
The Ten Statutes of William I. 1077 Pax Italica Hearici Quarti.
4 Ordinance excluding spiritual causes from the Hundred Court. ? Lombards.
Edition: current; Page: [78]
TWELFTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
1100 Charter of Liberties (Henry I.).
1103 Pax Generalis Henrici Quarti.
1108 ? Ordinance for holding courts of County and Hundred.
1111 Privilegium (Papæ) de Investituria (recognizing imperial rights).
Leges Edwardi Confessoris.
1 Leis e custumes que li reis Will. graniad al pople de Engleterre
Quadripartitus.
? 1213 [Editor: illegible] Leges. Henrici Primi. 1118 [Haflidaskrá (Iceland).]
1122 Pax Wormatiensis. (Surrender of imperial rights on investitures.)
Leges Quatuor Burgorum. 1125 Codex epistolaris Babenbergensis.
1127-1157 El fuero viejo de Castilla.
Consillatie Cnuti. 1136 Constitutio de feudorum distractione.
1140 Freiburger Stadtrecht.
2 Instituta Cnuti aliorumque Regum Anglorum. Assise Regis David. Soester Stadtrecht (“Justkia”).
1152 Constitutio de pace Tenenda. (Criminal Code of Frederick I.)
1154 Concessio Investituræ Episcoporum (Saxony).
1154 Constitutiones Feudales. (Roncaglia, General Feudal Code.)
1155 Ordonnance de Soissons.
1156 Constitutio Ducatus Austriæ.
3 1157 Edictum in favorem Judæorum.
1158 Constitutio de jure feudorum. (Pax Roncalica.)
1163 Lübecker Stadtrecht.
1164 Record (“Constitutions”) of Clarendon. Etablissemens de Rouen.
1165 Constitutio de testamentifactionc clericorum.
1166 Asaise of Clarendon (procedure).
[Assise of Novel Disscisin.] [Grand Assize.] 1169 Kölner Stadtrecht.
1176 Assises recorded at Northampton.
1181 Assise of Arms. 1183 Pacta Placentina (The Lombard League).
1184 Assise of Woodstock (Forests).
4 1186 Constitutio contra Incendiarios.
Assise Regis Willelmi. 1188 Magdeburger Stadtrecht.
1196 [Commencement of Exchequer Records (Normandy).]
1191-4 Mandatum de Appel’ationibus.
1192 Sententia de feodis Ministeralium.
1194 First (?) Plea Roll. 1180-1200 Lilri Feudorum vel Usus Feudales. Très ancien Coutumier de Normandie (Part I.)
Edition: current; Page: [80]
THIRTEENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
1208 Sententia de Teloneis. 1200-2 Slesvigs Bierkerst (Denmark).
? Treuga Henrici.
? Auctor Vetus de Beneficiis. 1209 Conventio de feodis regni. Westgötalag (Sweden).
1215? Sachsenspiegel. Gulathingslög (Norway).
1 1215 Magna Carta. 1216 Cessio juris spolii. ? Statuts de Montpellier.
1218 Sententia de Immunitate Civitatum. 1217 Espejo de todos los derechos. Skaanelagen (Denmark).
1220 Privilegium in favorem principum ecclesiasticorum. 1220 Très ancien Coutumier de Normandie (Pt. II.) Sjâllandske Love (Denmark).
1221 Wiener Stadirecht.
1223 Renovatio pacis antiquæ Saxoniæ.
1227 The First Register of Writs. 1228 Statuts de Marseilles.
1231 Constitutiones Siculæ. 1231 Edictum contra communia. 1229 Fuero Jurgo.
Statutum de constitutionibus.
1232 Constitutio in favorem principum.
Kulmische Handfeste.
2 Statuta Alexandri II.
1234 Sententia in favorem ecclesiarum.
1235 Statute of Merton. 1235 Constitutio Pacis (“Mainzer Landfried.”) 1241 Jydske Lov (Denmark).
1243 Statuts d’Avignon.
? Summa prosarum dictaminis.
1245 Statuts d’Arles. 1244 Frostuthingslög (Norway).
? Deutschenspiegel. 1248 Commencement of the Plaids de l’Echevinage (Reims).
? Schwalenspiegel. Bjarkeyjarrèttr (Norway).
1252 Constitutio de jure hereditario nepotum. 1254 Commencement of the “Olim.” 1252 Fuero Real. 1254 Ribes Bierkerst (Denmark).
1256 Ordonnances de villes. 1255 Bjarkoaratten (Sweden).
Grágás (Iceland).
1260 Ordonnance de batailles (St. Louis). 1262 Birger Jarl’s Ethsörebrott (Sweden).
3 1267 Statute of Marlborough. 1267 Coutumes de Perpignan.
1268 Commencement of Parloir aux Bourgeois (Paris).
1269 Edictum de Ecclesiis. 1269 Ribes Bierkerat (Denmark).
1270 Hamburger Stadtrecht (“Ordelbok”). 1270 Établissemens le Roy (St. Louis). 1271 Janalda (Hákonorbók. Norway).
1275 Statute of Westminster I. 1275 Ordinatio de possessionibus amortisatis. 1274 Magnus Lagabötir’s Landslög (Norway).
1278 Statute of Gloucester. 1276 Sententia de feodo non requisito. 1275-6 Hirdskra (Norway).
1279 Statute of Mortmain. 1281 Augsburger Stadtrecht. 1280 Jonabók (Iceland).
1283 Statute of Acton Burnel. 1282 Sententia de Partu (“Viliorem conditionem sequi debet”). 1283 Coutumesde Toulouse.
1284 Statute of Wales. Legesinter Scottos et Brettos. 1283 Sententia de comitatibus non dividendis.
1285 Statutes of Westminster II. and Winchester. 1284 Ordinatio de pace infracta. 1282 Ordinances of Alsno and Skeningen (Sweden).
1287 Ordinatio de burgesiis.
Circumspecte Agatis Regiam Majestatem. 1292 Hamburger Schiffsrecht. 1291 Ordinatio de Parliamento.
1290 Quia Emptores. 1298 Oesterreichisches Landrecht. 1296 Uplandslag. (Sweden).
1292 The First Year Book. 1299 Sententia Alberti I. (excluding women from succession to feudal land). Grand Coutumier normand.
1297 Confirmatio Cartarum. Goslarer Stadtrecht. Gotlandslag (Sweden).
Edition: current; Page: [82]
FOURTEENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
1303 Stadtrecht von Bremen. 1303 Ordinatio pro gubernatione regni. Westmannalag (Sweden).
1305? Sâchsisches Weichbildrecht.
1307 Statute of Carlisle. 1306 Ordonnance de batailles (Philippe le Bel).
1310 Sententia contra privilegia civitatum.
1313 Constitutio Majestatis. Summa curia regis. 1312 Ordinance of Justice.
1 1314 Mandatum de alodis. 1314 Ordeniamento de las Tafurerias.
1315 Charte aux Normands.
1320? Articull in itinere Camerarii. 1320 Ordonnance pour nostre Chambres de nos Comptes.
1324? Ordinance for Ireland. 1323 Leges Upstal?bomicae [Editor: illegible] (Zeeland).
Kleines Kaiserrecht.
? Tres ancienne coutume de Bretagne. 1327 Sodermannenlag (Sweden).
1330 Ordonnance d’appels. Helsingalag (Sweden).
1340 Style de du Breuil. 1334 Magnus Eriksson’s Usury Law (Sweden).
2 1342 Reichshofrechtsabschied. 1344 Ordinance of Upsala (Sweden).
1345 Ordonnance de Parlement. 1345 Ordinance of Telge (Sweden).
1346 Bayerisches Landrecht.
1347 Münchener Stadtrecht. 1348 Siete Partidas. 1347 Magnus Exiksson’s Landsing (Sweden).
1349 First Statute of Labourers. Ordinance of Alcala d’Henares.
1351 Statue of Provisors. ? Schlesisches Landrecht. 1351 Ordonance de Police. 1354 Thord Degn’s Artikler (Denmark).
1352 Statute of Treasons. Gârderath (Sweden).
1353 Statute of Præmunire, Statute of the Staple. 1356 Goldene Bulle. 1355 Ordonance de l’arrière-ban. Smâlandslag (Sweden).
1357 Ordinance for Ireland. 1361 Serment des baillis. Wisby Stadslag (Sweden).
3 1362 Act establishing Quarter Sessions. 1363 Ordinatio de Parlamento. Magnus Eriksson’s Stadslag (Sweden).
1371 Ley de Toro. Landbierkerât (Denmark).
1372 Ordonnance sur le fait des aides.
1373 Ordonnance sur l’Amirauté.
1381 Statute of Forcible Entry.
4 1384 Use of Merchis.
Quoniam Attachiamenta. 1389 Ordonnances sur les Assises.
Iter Camerarii. Grant Coustumier de France.
Edition: current; Page: [84]
FIFTEENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
1405 Curia Quattuor Burgorum.
1411 [Coutume d’Anjou et Maine.]
1 1413 Statute of Forgery.
1414 Statute of Heresy. 1417 Coutume de Poitou.
1425 Article of Heresy. 1422 Nurnberger Reichs-Heers-Ordnung.
1426 Statute against “particular” and “foreign” laws.
Ordinance establishing “Lords Auditors of Complaints.”
1428 Ordinances for Commissioners of Shires.
2 1437 Arnsberger Reformation (of Westphalian courts).
1440 Ordo Justiciaria (James II.). 1438 Kreis-Ordnung. 1438 Sanction pragmatique.
1442 Frankfurter Reformation. 1440 ? Christopher’s Landslag (Sweden).
1450 Act for Protection of Leaseholders. Act appointing “Lords of the Articles.” 1447 Dithmarsisches Landrecht. 1450 Stille et Coutume de Berry.
1455 Statute against hereditary offices. Coutume de Bretagne.
Statute establishing borough councils.
1458 Act of feu-farm. 1459 Coutumes de Bourgogne (duché et comté).
1461 Coutume de Touraine.
3 1462 Statute of Provisors. 1462 Ordonnance fondant le Parlement de Bourdeaux.
1463 (2nd) Coutume d’Anjou.
1469 Act for registration of mortgages.
Act of Limitation. 1471 Kammergerichts Ordnung (Friedrich III.).
Statute of Appeals.
1482 Decision recognizing alienation of land by a married woman. 1477 Ordonance fondant le Parlement de Dijon.
1483 Statute against Benevolences.
1487 “Star Chamber” Act. 1484 Coutume de Tours.
4 1491 Statute for holding of Session three times a year. 1495 Kammergerichts Ordnung (Maximilian). 1495 Ordonnance fondant le Parlement de Rennes.
1496 Statute for education of heirs of freeholders. 1497 Mandement sur la publication des coutumes.
1498 Erbfolge Ordnung.
1500 Reichsregiments Ordnung. 1499 Ordonnance fondant le Parlement de Rouen.
Edition: current; Page: [86]
SIXTEENTH CENTURY
Quarter. ENGLAND. SCOTLAND. ITALY. GERMANY. FRANCE. SPAIN. SCANDINAVIA.
ad ad ad ad ad ad ad
1504 { Statute establishing perpetual court at Edinburgh. 1501 Ordonnance fondant le Parlement d’Aix.
1507 Bambergensis. 1507 Coutumes de Touraine.
{ Statute making heirs liable for ancestor’s debts. 1508 Coutumes d’Anjou.
{ Statute requiring notice to boroughs when taxation proposed. Coutumes du Maine.
1509 Coutumes de Troyes.
1 { Statute for registration of seisins by sheriffs. 1510 Coutumes d’Auvergne.
1511 Coutumes de Paris.
1512 Notariats Ordnung (much about wills). 1514 Coutumes de Poitou
Coutumes d’Angoumois.
1520 Coutumes de Bourdeaux.
1511} Erbfolge Ordnungen. 1521 Coutumes de Bourbonnois.
1529} 1523 Coutumes de Blois.
1526 Statute of successions to goods of minors.
2 1529 Statute of Emberglements [Editor: illegible] 1529 Statute making freeholders responsible for production of their tenants. 1530 Polizei Ordnung und Reformation.
1532 ? Statutes of Uses and Enrolments.
1532 Ordinance establishing College of Justice. 1532 Peinliche Hals-Gerichts Ordnung (“Karolina”). 1534 Coutumes de Nivernola [Editor: illegible]
1540 Statute of Wills. 1540 Acts for reformation of Courts. 1539 Ordonnance de Villers-Cotterets.
1551 Fors de Béarn. (There had been several earlier collections.)
1555 Statute for notice to quit. 1555 Wurtemberger Landrecht.
Statute against leagues and manrents.
3 Statute for registration of all seisins.
1561 Ordonnance d’Orléans.
1564 Ordonnance de Roussillon.
1567 Statute for seisins in boroughs. 1566 Ordonnance de Moulins. 1567 Nueva Recopilacion.
1578 Act establishing convention of boroughs.
1579 Statute of prescriptions. 1579 Ordonnance de Blois.
1580 (Nouvelle) Coutume de Paris.
1585 Statute declaring sovereignty of Parliament. 1583 (Nouvelle) Coutume de Normandie.
4 Statute prohibiting clergy acting as judges or advocates. 1585 Coutumes d’Orléans.
1587 Constitution Statutes.
Statute for furtherance of criminal justice.
1599 Statute establishing general Land Registry.
Edition: current; Page: [88]

3.: ENGLISH LAW BEFORE THE NORMAN CONQUEST1

FOR most practical purposes the history of English law does not begin till after the Norman conquest, and the earliest things which modern lawyers are strictly bound to know must be allowed to date only from the thirteenth century, and from the latter half of it rather than the former. Nevertheless a student who does not look farther back will be puzzled by relics of archaic law which were not formally discarded until quite modern times, and he may easily be misled by plausible but incorrect explanations of them, such as have been current in Blackstone’s time and much later. In rare but important cases it may be needful for advocates and judges to transcend the ordinary limits of the search for authority, and trace a rule or doctrine to its earliest known form in this country. When this has to be done it is quite possible that wrong ancient history may lead to the declaration of wrong modern law. This happened in at least one Edition: current; Page: [89] celebrated case within the Queen’s reign, in which, as it is now hardly possible to doubt, the House of Lords reversed the ancient law of marriage accepted on the authority of the Church in England as well as in the rest of Western Christendom, being misguided by early documents of which they did not rightly understand either the authority or the effect.1 The extreme antiquities of our law may not be often required in practice, but it is not safe to neglect them altogether, and still less safe to accept uncritical explanations when it does become necessary to consider them.

Anglo-Saxon life was rough and crude as compared not only with any modern standard but with the amount of civilization which survived, or had been recovered, on the Continent. There was very little foreign trade, not much internal traffic, nothing like industrial business of any kind on a large scale, and (it need hardly be said) no system of credit. Such conditions gave no room for refined legal science applied by elaborate legal machinery, such as those of the Roman Empire had been and those of modern England and the commonwealths that have sprung from her were to be. Such as the men were, such had to be the rules and methods whereby some kind of order was kept among them. Our ancestors before the Norman Conquest lived under a judicial system, if system it can be called, as rudimentary in substance as it was cumbrous in form. They sought justice, as a rule, at their primary local court, the court of the hundred, which met once a month, and for greater matters at a higher and more general court, the county court, which met only twice a year.2 We say purposely met rather than sat. The courts were open-air meetings of the freemen who were bound to attend them, the suitors as they are called in the terms of Anglo-Norman and later medieval law; there was no class of professional lawyers; there were no judges in our sense of learned persons specially appointed to preside, expound the law, and cause justice to be done; the only learning available Edition: current; Page: [90] was that of the bishops, abbots, and other great ecclesiastics. This learning, indeed, was all the more available and influential because, before the Norman Conquest, there were no separate ecclesiastical courts in England. There were no clerks nor, apparently, any permanent officials of the popular courts; their judgments proceeded from the meeting itself, not from its presiding officer, and were regularly preserved only in the memory of the suitors. A modern student or man of business will at first sight wonder how this rude and scanty provision for judicial affairs can have sufficed even in the Dark Ages. But when we have reflected on the actual state of Anglo-Saxon society, we may be apt to think that at times the hundred and the county court found too little to do rather than too much. The materials for what we now call civil business practically did not exist.

There is now no doubt among scholars that the primary court was the hundred court. If the township had any regular meeting (which is quite uncertain), that meeting was not a judicial body. The King, on the other hand, assisted by his Council of wise men, the Witan,1 had a superior authority in reserve. It was allowable to seek justice at the king’s hands if one had failed, after due diligence, to obtain it in the hundred or the county court. Moreover the Witan assumed jurisdiction in the first instance where land granted by the king was in question, and perhaps in other cases where religious foundations or the king’s great men were concerned. Several examples of such proceedings are recorded, recited as we should say in modern technical speech, in extant land-charters which declare and confirm the result of disputes, and therefore we know more of them than we do of the ordinary proceedings in the county and hundred courts, of which no written record was kept. But they can have had very little bearing, if any, on the daily lives of the smaller folk. In important cases the county court might be strengthened by adding the chief men of other counties; and, when thus reinforced, there is hardly anything to distinguish it Edition: current; Page: [91] from the Witan save that the king is not there in person.1

Some considerable time before the Norman Conquest, but how long is not known, bishops and other great men had acquired the right of holding courts of their own and taking the profits in the shape of fines and fees, or what would have been the king’s share of the profits. My own belief is that this began very early, but there is no actual proof of it. Twenty years after the Conquest, at any rate, we find private jurisdiction constantly mentioned in the Domesday Survey, and common in every part of England: about the same time, or shortly afterwards, it was recognized as a main ingredient in the complex and artificial system of feudalism. After having grown in England, as elsewhere, to the point of threatening the king’s supremacy, but having happily found in Edward I a master such as it did not find elsewhere before the time of Richelieu, the manorial court is still with us in a form attenuated almost to the point of extinction. It is not material for the later history of English law to settle exactly how far the process of concession or encroachment had gone in the time of Edward the Confessor, or how fast its rate was increasing at the date of the Conquest. There can be no doubt that on the one hand it had gained and was gaining speed before “the day when King Edward was alive and dead,”2 or on the other hand that it was further accelerated and emphasized under rulers who were familiar with a more advanced stage of feudalism on the Continent. But this very familiarity helped to make them wise in time; and there was at least some foreshadowing of royal supremacy in existing English institutions. Although the courts of the hundred and the county were not the king’s courts, the king was bound by his office to exercise some general supervision over their working. He was represented in the county court by the sheriff; he might send out commissioners to inquire and report how justice was done, though he could not interfere with the Edition: current; Page: [92] actual decisions. The efficiency of these powers varied in fact according to the king’s means and capacity for exercising them. Under a wise and strong ruler like Alfred or Æthelstan they might count for much; under a feeble one like Æthelred they could count for very little.

A modern reader fresh to the subject might perhaps expect to find that the procedure of the old popular courts was loose and informal. In fact it was governed by traditional rules of the most formal and unbending kind.1 Little as we know of the details, we know enough to be sure of this; and it agrees with all the evidences we have of the early history of legal proceedings elsewhere. The forms become not less but more stringent as we pursue them to a higher antiquity; they seem to have not more but less appreciable relation to any rational attempt to ascertain the truth in disputed matters of fact. That task, indeed, appears to have been regarded as too hard or too dangerous to be attempted by unassisted human faculties. All the accustomed modes of proof involved some kind of appeal to supernatural sanctions. The simplest was the oath of one of the parties, not by way of testimony to particular facts, but by way of assertion of his whole claim or defence; and this was fortified by the oaths of a greater or less number of helpers, according to the nature of the case and the importance of the persons concerned, who swore with him that his oath was true.2 He lost his cause without a chance of recovery if any slip was made in pronouncing the proper forms, or if a sufficient number of helpers were not present and ready to make the oath. On the other hand the oath, like all archaic forms of proof, was conclusive when once duly carried through. Hence it was almost always an advantage to be called upon to make the oath of proof, and this usually belonged to the defendant. “Gainsaying is ever stronger than affirming . . . . Owning is Edition: current; Page: [93] nearer to him who has the thing than to him who claims.”1 Our modern phrase “burden of proof” is quite inapplicable to the course of justice in Anglo-Saxon courts: the benefit or “prerogative” of proof, as it is called even in modern Scottish books, was eagerly contended for. The swearer and his oath-helpers might perjure themselves, but if they did there was no remedy for the loser in this world, unless he was prepared to charge the court itself with giving false judgment. Obviously there was no room in such a scheme for what we now call rules of evidence. Rules there were, but they declared what number of oath-helpers was required, or how many common men’s oaths would balance a thegn’s. In the absence of manifest facts, such as a fresh wound, which could be shown to the court, an oath called the “fore-oath” was required of the complainant in the first instance as a security against frivolous suits. This was quite different from the final oath of proof.

Oath being the normal mode of proof in disputes about property, we find it supplemented by ordeal in criminal accusations. A man of good repute could usually clear himself by oath; but circumstances of grave suspicion in the particular case, or previous bad character, would drive the defendant to stand his trial by ordeal. In the usual forms of which we read in England the tests were sinking or floating in cold water,2 and recovery within a limited time from the effects of plunging the arm into boiling water or handling red-hot iron. The hot-water ordeal at any rate was in use from an early time, though the extant forms of ritual, after the Church had assumed the direction of the proceedings, are comparatively late. Originally, no doubt, the appeal was to the god of water or fire, as the case might be. The Church objected, temporized, hallowed the obstinate heathen customs by the addition of Christian ceremonies, and finally, but not until the thirteenth century, was strong enough to banish them. As a man was not put to the ordeal unless he was Edition: current; Page: [94] disqualified from clearing himself by oath for one of the reasons above mentioned, the results were probably less remote from rough justice than we should expect, and it seems that the proportion of acquittals was also larger. Certainly people generally believed to be guilty did often escape, how far accidentally or otherwise we can only conjecture.1 Another form of ordeal favoured in many Germanic tribes from early times, notwithstanding protest from the Church, and in use for deciding every kind of dispute, was trial by battle: but this makes its first appearance in England and Scotland not as a Saxon but as a distinctly Norman institution.2 It is hard to say why, but the fact is so. It seems from Anglo-Norman evidence that a party to a dispute which we should now call purely civil sometimes offered to prove his case not only by oath or combat, but by ordeal, as the court might award. This again suggests various explanations of which none is certain.3

Inasmuch as all the early modes of proof involved large elements of unknown risk, it was rather common for the parties to compromise at the last moment. Also, since there were no ready means of enforcing the performance of a judgment on unwilling parties, great men supported by numerous followers could often defy the court, and this naturally made it undesirable to carry matters to extremity which, if both parties were strong, might mean private war. Most early forms of jurisdiction, indeed, of which we have any knowledge, seem better fitted to put pressure on the litigants to agree than to produce an effective judgment of compulsory force. Assuredly this was the case with those which we find in England even after the consolidation of the kingdom under the Danish dynasty.

Rigid and cumbrous as Anglo-Saxon justice was in the Edition: current; Page: [95] things it did provide for, it was, to modern eyes, strangely defective in its lack of executive power. Among the most important functions of courts as we know them is compelling the attendance of parties and enforcing the fulfilment both of final judgments and of interlocutory orders dealing with the conduct of proceedings and the like. Such things are done as of course under the ordinary authority of the court, and with means constantly at its disposal; open resistance to judicial orders is so plainly useless that it is seldom attempted, and obstinate preference of penalties to submission, a thing which now and then happens, is counted a mark of eccentricity bordering on unsoundness of mind. Exceptional difficulties, when they occur, indicate an abnormal state of the commonwealth or some of its members. But this reign of law did not come by nature; it has been slowly and laboriously won. Jurisdiction began, it seems, with being merely voluntary, derived not from the authority of the State but from the consent of the parties. People might come to the court for a decision if they agreed to do so. They were bound in honour to accept the result; they might forfeit pledges deposited with the court; but the court could not compel their obedience any more than a tribunal of arbitration appointed at this day under a treaty between sovereign States can compel the rulers of those States to fulfil its award. Anglo-Saxon courts had got beyond this most early stage, but not very far beyond it.

The only way to bring an unwilling adversary before the court was to take something of his as security till he would attend to the demand; and practically the only things that could be taken without personal violence were cattle. Distress in this form was practised and also regulated from a very early time. It was forbidden to distrain until right had been formally demanded—in Cnut’s time to the extent of three summonings—and refused. Thus leave of the court was required, but the party had to act for himself as best he could. If distress failed to make the defendant appear, the only resource left was to deny the law’s protection to the stiff-necked man who would not come to be judged by law. He might be outlawed, and this must have been enough to coerce Edition: current; Page: [96] most men who had anything to lose and were not strong enough to live in rebellion; but still no right could be done to the complainant without his submission. The device of a judgment by default, which is familiar enough to us, was unknown, and probably would not have been understood.

Final judgment, when obtained, could in like manner not be directly enforced. The successful party had to see to gathering the “fruits of judgment,” as we say, for himself. In case of continued refusal to do right according to the sentence of the court, he might take the law into his own hands, in fact wage war on his obstinate opponent. The ealdorman’s aid, and ultimately the king’s, could be invoked in such extreme cases as that of a wealthy man, or one backed by a powerful family, setting the law at open defiance. But this was an extraordinary measure, analogous to nothing in the regular modern process of law.

The details of Anglo-Saxon procedure and judicial usuage had become or were fast becoming obsolete in the thirteenth century, which is as much as to say that they were already outworn when the definite growth of the Common Law began. But the general features of the earlier practice, and still more the ideas that underlay them, have to be borne in mind. They left their stamp on the course of our legal history in manifold ways; many things in the medieval law cannot be understood without reference to them; and even in modern law their traces are often to be found.

While the customary forms of judgment and justice were such as we have said, there was a comparatively large amount of legislation or at least express declaration of law; and, what is even more remarkable, it was delivered in the mother tongue of the people from the first. Æthelberht, the converted king of Kent, was anxious to emulate the civilization of Rome in secular things also, and reduced the customs of his kingdom, so far as might be, to writing; but they were called dooms, not leges; they were issued in English, and were translated into Latin only after the lapse of some centuries. Other Kentish princes, and afterwards Ine of Wessex, followed the example; but the regular series of Anglo-Saxon laws begins towards the end of the ninth century with Edition: current; Page: [97] Alfred’s publication of his own dooms, and (it seems) an amended version of Ine’s, in which these are now preserved. Through the century and a half between Alfred’s time and Cnut’s,1 legislation was pretty continuous and it was always in English. The later restoration of English to the statute roll after the medieval reign of Latin and French was not the new thing it seemed. It may be that the activity of the Wessex princes in legislation was connected with the conquest of the Western parts of England, and the need of having fixed rules for the conduct of affairs in the newly settled districts. No one doubts that a considerable West-Welsh population remained in this region, and it would have been difficult to apply any local West-Saxon custom to them.

Like all written laws, the Anglo-Saxon dooms have to be interpreted in the light of their circumstances. Unluckily for modern students, the matters of habit and custom which they naturally take for granted are those of which we now have least direct evidence. A large part of them is filled by minute catalgues of the fines and compositions payable for manslaughter, wounding, and other acts of violence. We may well suppose that in matters of sums and number such provisions often express an authoritative compromise between the varying though not widely dissimilar usages of local courts; at all events we have an undoubted example of a like process in the fixing of standard measures after the Conquest; and in some of the later Anglo-Saxon laws we get a comparative standard of Danish and English reckoning. Otherwise we cannot certainly tell how much is declaration of existing custom, or what we should now call consolidation, and how much was new. We know from Alfred’s preamble to his laws, evidently framed with special care, that he did innovate to some extent, but, like a true father of English statesmen, was anxious to innovate cautiously. On the whole the Anglo-Saxon written laws, though of priceless use to students of the times, need a good deal of circumspection and careful comparison of other authorities for using Edition: current; Page: [98] them aright. It is altogether misleading to speak of them as codes, or as if they were intended to be a complete exposition of the customary law.

We pass on to the substance of Anglo-Saxon law, so far as capable of being dealt with in a summary view. There were sharp distinctions between different conditions of persons, noble, free, and slave. We may talk of “serfs” if we like, but the Anglo-Saxon “theow” was much more like a Roman slave than a medieval villein. Not only slaves could be bought and sold, but there was so much regular slave-trading that selling men beyond seas had to be specially forbidden. Slaves were more harshly punished than free men, and must have been largely at their owner’s mercy, though there is reason to think that usage had a more advanced standard of humanity than was afforded by any positive rules. Manumission was not uncommon, and was specially favoured by the Church. The slave had opportunities (perhaps first secured under Alfred) for acquiring means of his own, and sometimes bought his freedom.

Among free men there were two kinds of difference. A man might be a lord having dependents, protecting them and in turn supported by them, and answerable in some measure for their conduct; or he might be a free man of small estate dependent on a lord. In the tenth century, if not before, every man who was not a lord himself was bound to have a lord on pain of being treated as unworthy of a free man’s right; “lordless man” was to Anglo-Saxon ears much the same as “rogue and vagabond” to ours. This wide-spread relation of lord and man was one of the elements that in due time went to make up feudalism. It was not necessarily associated with any holding of land by the man from the lord, but the association was doubtless already common a long time before the Conquest, and there is every reason to think that the legally uniform class of dependent free men included many varieties of wealth and prosperity. Many were probably no worse off than substantial farmers, and many not much better than slaves.

The other legal difference between free men was their estimation for wergild, the “man’s price” which a man’s Edition: current; Page: [99] kinsfolk were entitled to demand from his slayer, and which sometimes he might have to pay for his own offences; and this was the more important because the weight of a man’s oath also varied with it. A thegn (which would be more closely represented by “gentilhomme” than by “nobleman”) had a wergild six times as great as a ceorl’s1 or common man’s, and his oath counted for six common oaths before the court.2 All free men, noble or simple, looked to their kindred as their natural helpers and avengers; and one chief office of early criminal law was to regulate the blood-feud until there was a power strong enough to supersede it.

We collect from the general tenor of the Anglo-Saxon laws that the evils most frequently calling for remedy were manslaying, wounding, and cattle-stealing; it is obvious enough that the latter, when followed by pursuit in hot blood, was a natural and prolific source of the two former. The rules dealing with such wrongs or crimes (for archaic laws draw no firm line between public offence and private injury) present a strange contrast of crude ideas and minute specification, as it appears at first sight. Both are however really due to similar conditions. A society which is incapable of refined conceptions, but is advanced enough to require equal rules of some kind and to limit the ordinary power of its rulers, is likewise incapable of leaving any play for judicial discretion. Anglo-Saxon courts had not the means of apportioning punishment to guilt in the particular case, or assessing compensation according to the actual damage, any more than of deciding on the merits of conflicting claims according to the evidence. Thus the only way remaining open was to fix an equivalent in money or in kind for each particular injury: so much for life and so much for every limb and member of the human body. The same thing occurs with even greater profusion of detail in the other Germanic compilations of the Dark Ages. In the latter days of Anglo-Saxon monarchy Edition: current; Page: [100] treason was added to the rude catalogue of crimes, under continental influence ultimately derived from Roman law; but the sin of plotting against the sovereign was the more readily conceived as heinous above all others by reason of the ancient Germanic principle of faith between a lord and his men. This prominence of the personal relation explains why down to quite modern times the murder of a husband by his wife, of a master by his servant, and of an ecclesiastical superior by a clerk, secular or regular, owing him obedience, were specially classed as “petit treason” and distinguished from murder in general.1

Secret murder as opposed to open slaying was treated with special severity. This throws no light on our later criminal law; nor has it much to do with love of a fair fight, though this may have strengthened the feeling; rather it goes back to a time when witchcraft, and poisoning as presumably connected therewith, were believed to be unavoidable by ordinary caution, and regarded with a supernatural horror which is still easy to observe among barbarous people. With these exceptions, and a few later ones of offences reserved for the king’s jurisdiction, crimes were not classified or distinguished in Anglo-Saxon custom save by the amount of public fine2 and private composition required to redeem the wrong-doer’s life in each case. Capital punishment and money payment, or rather liability to the blood-feud redeemable by money payment, and slavery for a thief who could not make the proper fine, were the only means of compulsion generally applicable, though false accusers and some other infamous persons were liable to corporal penalties. Imprisonment is not heard of as a substantive punishment; and it is needless to say that nothing like a system of penal discipline was known. We cannot doubt that a large number of offences, even notorious ones, went unpunished. The more skilled and subtle attacks on property, such as forgery and allied kinds of fraud, did not occur, not because men were more honest, Edition: current; Page: [101] but because fraudulent documents could not be invented or employed in a society which knew nothing of credit and did not use writing for any common business of life.

Far more significant for the future development of English law are the beginnings of the King’s Peace. In later times this became a synonym for public order maintained by the king’s general authority; nowadays we do not easily conceive how the peace which lawful men ought to keep can be any other than the Queen’s or the commonwealth’s. But the king’s justice, as we have seen, was at first not ordinary but exceptional, and his power was called to aid only when other means had failed. To be in the king’s peace was to have a special protection, a local or personal privilege. Every free man was entitled to peace in his own house, the sanctity of the homestead being one of the most ancient and general principles of Teutonic law. The worth set on a man’s peace, like that of his life, varied with his rank, and thus the king’s peace was higher than any other man’s. Fighting in the king’s house was a capital offence from an early time. Gradually the privileges of the king’s house were extended to the precincts of his court, to the army, to the regular meetings of the shire and hundred, and to the great roads. Also the king might grant special personal protection to his officers and followers; and these two kinds of privilege spread until they coalesced and covered the whole ground. The more serious public offences were appropriated to the king’s jurisdiction; the king’s peace was used as a special sanction for the settlement of blood-feuds, and was proclaimed on various solemn occasions; it seems to have been specially prominent—may we say as a “frontier regulation”?—where English conquest and settlement were recent.1 In the generation before the Conquest it was, to all appearance, extending fast. In this kind of development the first stage is a really exceptional right; the second is a right which has to be distinctly claimed, but is open to all who will claim it in the proper form; the third is the “common right” which the courts will take for granted. The Edition: current; Page: [102] Normans found the king’s peace nearing, if not touching, the second stage.

Except for a few peculiar provisions, there is nothing in Anglo-Saxon customs resembling our modern distinctions between wilful, negligent, and purely accidental injuries. Private vengeance does not stop to discriminate in such matters, and customary law which started from making terms with the avenger could not afford to take a more judicial view. This old harshness of the Germanic rules has left its traces in the Common Law down to quite recent times. A special provision in Alfred’s laws recommends a man carrying a spear on his shoulder to keep the point level with the butt; if another runs on the point so carried, only simple compensation at most1 will be payable. If the point has been borne higher (so that it would naturally come in a man’s face), this carelessness may put the party to his oath to avoid a fine. If a dog worried or killed any one, the owner was answerable in a scale of fines rising after the first offence;2 the indulgence of the modern law which requires knowledge of the dog’s habits was unknown. But it may be doubted whether these rules applied to anything short of serious injury. Alfred’s wise men show their practical sense by an explanatory caution which they add: the owner may not set up as an excuse that the dog forthwith ran away and was lost. This might otherwise have seemed an excellent defence according to the archaic notion that the animal or instrument which does damage carries the liability about with it, and the owner may free himself by abandoning it (noxa caput sequitur).3

We have spoken of money payments for convenience; but it does not seem likely that enough money was available, as a rule, to pay the more substantial wergilds and fines; and it must once have been the common practice for the pacified avenger to accept cattle, arms, or valuable ornaments, at a price agreed between the parties or settled by the court. The alternative of delivering cattle is expressly mentioned in some of the earlier laws.

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As for the law of property, it was rudimentary, and inextricably mixed up with precautions against theft and charges of theft. A prudent buyer of cattle had to secure himself against the possible claim of some former owner who might allege that the beasts had been stolen. The only way to do this was to take every step in public and with good witness. If he set out on a journey to a fair, he would let his neighbours know it. When he did business either far or near, he would buy only in open market and before credible persons, and, if the sale were at any distance from home, still more if he had done some trade on the way without having set out for the purpose, he would call the good men of his own township to witness when he came back driving his newly-gotten oxen, and not till then would he turn them out on the common pasture. These observances, probably approved by longstanding custom, are prescribed in a whole series of ordinances on pain of stringent forfeitures.1 Even then a purchaser whose title was challenged had to produce his seller, or, if he could not do that, clear himself by oath. The seller might produce in turn the man from whom he had bought, and he again might do the like; but this process (“vouching to warranty” in the language of later medieval law) could not be carried more than three steps back, to the “fourth hand” including the buyer himself. All this has nothing to do with the proof of the contract in case of a dispute between the original parties to the sale; it is much more aimed at collusion between them, in fact at arrangements for the receipt and disposal of stolen goods. The witnesses to the sale are there not for the parties’ sake, but as a check in the public interest. We are tempted at first sight to think of various modern enactments that require signature or other formalities as a condition of particular kinds of contracts being enforceable; but their provisions belong to a wholly different catégory.

Another archaic source of anxiety is that borrowed arms may be used in a fatal fight and bring the lender into trouble. The early notion would be that a weapon used for manslaying should bring home the liability with it to the owner, quite Edition: current; Page: [104] regardless of any fault; which would afterwards become a more or less rational presumption that he lent it for no good purpose. Then the risk of such weapons being forfeited continued even to modern times. Hence the armourer who takes a sword or spear to be repaired, and even a smith who takes charge of tools, must warrant their return free from blood-guiltiness, unless it has been agreed to the contrary.1 We also find, with regard to the forfeiture of things which “move to death,” that even in case of pure accident, such as a tree falling on a woodman, the kindred still have their rights. They may take away the tree if they will come for it within thirty days.2

There was not any law of contract at all, as we now understand it. The two principal kinds of transaction requiring the exchange or acceptance of promises to be performed in the future were marriage and the payment of wergild. Apart from the general sanctions of the Church, and the king’s special authority where his peace had been declared, the only ways of adding any definite security to a promise were oath and giving of pledges. One or both of these were doubtless regularly used on solemn occasions like the settlement of a blood-feud; and we may guess that the oath, which at all events carried a spiritual sanction, was freely resorted to for various purposes. But business had hardly got beyond delivery against ready money between parties both present, and there was not much room for such confidence as that on which, for example, the existence of modern banking rests. How far the popular law took any notice of petty trading disputes, such as there were, we are not informed; it seems likely that for the most part they were left to be settled by special customs of traders, and possibly by special local tribunals in towns and markets. Merchants trafficking beyond seas, in any case, must have relied on the customs of their trade and order rather than the cumbrous formal justice of the time.

Anglo-Saxon landholding has been much discussed, but is still imperfectly understood, and our knowledge of it, so far from throwing any light on the later law, depends largely Edition: current; Page: [105] on what can be inferred from Anglo-Norman sources. It is certain that there were a considerable number of independent free men holding land of various amounts down to the time of the Conquest. In the eastern counties some such holdings, undoubtedly free, were very small indeed.1 But many of the lesser free men were in practical subjection to a lord who was entitled to receive dues and services from them; he got a share of their labour in tilling his land, rents in money and kind, and so forth. In short they were already in much the same position as those who were called villeins in the twelfth and thirteenth centuries. Also some poor free men seem to have hired themselves out to work for others from an early time.2 We know next to nothing of the rules under which free men, whether of greater or lesser substance, held “folk-land,” that is, estates governed by the old customary law. Probably there was not much buying and selling of such land. There is no reason to suppose that alienation was easier than in other archaic societies, and some local customs found surviving long after the Conquest point to the conclusion that often the consent of the village as well as of the family was a necessary condition of a sale. Indeed it is not certain that folk-land, generally speaking, could be sold at all. There is equally no reason to think that ordinary free landholders could dispose of their land by will, or were in the habit of making wills for any purpose. Anglo-Saxon wills (or rather documents more like a modern will than a modern deed) exist, but they are the wills of great folk, such as were accustomed to witness the king’s charters, had their own wills witnessed or confirmed by bishops and kings, and held charters of their own; and it is by no means clear that the lands dealt with in these wills were held as ordinary folk-land. In some cases it looks as if a special licence or consent had been required; we also hear of persistent attempts by the heirs to dispute even gifts to great churches.3

Soon after the conversion of the south of England to Christianity, English kings began to grant the lordship and Edition: current; Page: [106] revenues of lands, often of extensive districts, to the Church, or more accurately speaking to churches, by written charters framed in imitation of continental models. Land held under these grants by charter or “book,” which in course of time acquired set forms and characters peculiar to England, was called bookland, and the king’s bounty in this kind was in course of time extended to his lay magnates. The same extraordinary power of the king, exercised with the witness and advice1 of his witan, which could confer a title to princely revenues, could also confer large disposing capacities unknown to the customary law; thus the fortunate holder of bookland might be and often was entitled not only to make a grant in his lifetime or to let it on such terms as he chose, but also to leave it by will. My own belief is that the land given by the Anglo-Saxon wills which are preserved was almost always bookland even when it is not so described. Indeed these wills are rather in the nature of postponed grants, as in Scotland a “trust disposition” had to be till quite lately, than a true last will and testament as we now understand it. They certainly had nothing to do with the Roman testament.2

Long before the Conquest it had become the ambition of every man of substance to hold bookland, and we may well think that this was on the way to become the normal form of land-ownership. But this process, whatever its results might have been, was broken off by the advent of Norman lords and Norman clerks with their own different set of ideas and forms.

The various customs of inheritance that are to be found even to this day in English copyholds, and to a limited extent in freehold land, and which are certainly of great antiquity, bear sufficient witness that at least as much variety was to be found before the Conquest. Probably the least usual of the typical customs was primogeniture; preference of the youngest son, ultimogeniture or junior-right as recent authors have called it, the “borough-English” of our post-Norman Edition: current; Page: [107] books, was common in some parts; preference of the youngest daughter, in default of sons, or even of the youngest among collateral heirs, was not unknown. But the prevailing type was equal division among sons, not among children including daughters on an equal footing as modern systems have it.1 Here again the effect of the Norman Conquest was to arrest or divert the native lines of growth. In this country we now live under laws of succession derived in part from the military needs of Western Europe in the early Middle Ages, and in part from the cosmopolitan legislation of Justinian, the line between the application of the two systems being drawn in a manner which is accounted for by the peculiar history of our institutions and the relations between different jurisdictions in England, but cannot be explained on any rational principle. But the unlimited freedom of disposal by will which we enjoy under our modern law has reduced the anomalies of our intestate succession to a matter of only occasional inconvenience.

Small indeed, it is easy to perceive, is the portion of Anglo-Saxon customs which can be said to have survived in a recognizable form. This fact nevertheless remains compatible with a perfectly real and living continuity of spirit in our legal institutions.

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PART II.: FROM THE NORMAN CONQUEST TO THE EIGHTEENTH CENTURY

  • 4.

    The Centralization of Norman Justice under Henry II.

    Alice Stopford (Mrs. John Richard) Green.

  • 5.

    Edward I, the English Justinian.

    Edward Jenks.

  • 6.

    English Law and the Renaissance.

    Frederic William Maitland.

  • 7.

    Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant.

    Thomas Edward Scrutton.

  • 8.

    The History of the Canon Law in England.

    William Stubbs.

  • 9.

    The Development of the Law Merchant.

    William Searle Holdsworth.

  • 10.

    A Comparison of the History of Legal Development at Rome and in England.

    James Bryce.

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4.: THE CENTRALIZATION OF NORMAN JUSTICE UNDER HENRY II1

THE building up of his mighty empire was not the only task which filled the first years of Henry’s reign. Side by side with this went on another work of peaceful internal administration which we can but dimly trace in the dearth of all written records, but which was ultimately to prove of far greater significance than the imperial schemes that in the eyes of his contemporaries took so much larger proportions and shone with so much brighter lustre.

The restoration of outward order had not been difficult, for the anarchy of Stephen’s reign, terrible as it was, had only passed over the surface of the national life and had been vanquished by a single effort. But the new ruler of England had to begin his work of administration not only amid the temporary difficulties of a general disorganization, but amid the more permanent difficulties of a time of transition, when society was seeking to order itself anew in its passage from the mediæval to the modern world; and his victory over the most obvious and aggressive forms of disorder was the least part of his task. Through all the time of anarchy powerful forces had been steadily at work with which the king had now to reckon. A new temper and new aspirations had been kindled by the troubles of the last Edition: current; Page: [112] years. The deposition of Stephen, the elections of Matilda and of Henry, had been so many formal declarations that the king ruled by virtue of a bargain made between him and his people, and that if he broke his contract he justly forfeited his authority. The routine of silent and submissive councils had been broken through, and the earliest signs of discussion and deliberation had discovered themselves; while the Church, exerting in its assemblies an authority which the late king had helplessly laid down, formed a new and effective centre of organized resistance to tyranny in the future. Even the rising towns had seized the moment when the central administration was paralysed to extend their own privileges, and to acquire large powers of self-government which were to prove the fruitful sources of liberty for the whole people. . . .

It was these new conditions of the national life which constituted the real problem of government—a problem far more slow and difficult to work out than the mere suppression of a turbulent baronage. In the rapid movement towards material prosperity, the energies of the people were in all directions breaking away from the channels and limits in which they had been so long confined. Rules which had been sufficient for the guidance of a simple society began to break down under the new fulness and complexity of the national life, and the simple decisions by which questions of property and public order had been solved in earlier times were no longer possible. Moreover, a new confusion and uncertainty had been brought into the law in the last hundred years by the effort to fuse together Norman and English custom. Norman landlord or Norman sheriff naturally knew little of English law or custom, and his tendency was always to enforce the feudal rules which he practised on his Norman estates. In course of time it came about that all questions of land-tenure and of the relations of classes were regulated by a kind of double system. The Englishman as well as the Norman became the “man” of his lord as in Norman law, and was bound by the duties which this involved. On the other hand, the Norman as well as the Englishman held his land subject to the customary burdens and Edition: current; Page: [113] rights recognized by English law. Both races were thus made equal before the law, and no legal distinction was recognized between conqueror and conquered. There was, however, every element of confusion and perplexity in the theory and administration of the law itself, in the variety of systems which were contending for the mastery, and in the inefficiency of the courts in which they were applied. English law had grown up out of Teutonic custom, into which Roman tradition had been slowly filtering through the Dark Ages. Feudal law still bore traces of its double origin in the system of the Teutonic “comitatus” and of the Roman “beneficium.” Forest law, which governed the vast extent of the king’s domains, was bound neither by Norman forms nor by English traditions, but was framed absolutely at the king’s will. Canon law had been developed out of customs and precedents which had served to regulate the first Christian communities, and which had been largely formed out of the civil law of Rome. There was a multitude of local customs which varied in every hundred and in every manor, and which were preserved by the jealousy that prevailed between one village and another, the strong sense of local life and jurisdiction, and the strict adherence to immemorial traditions.

These different codes of law were administered in various courts of divers origins. The tenant-in-chief of the king who was rich enough had his cause carried to the King’s Court of barons, where he was tried by his peers. The poorer vassals, with the mass of the people, sought such justice as was to be had in the old English courts, the Shire Court held by the sheriff, and, where this survived, the Hundred Court summoned by the bailiff. The lowest orders of the peasant class, shut out from the royal courts, could only plead in questions of property in the manor courts of their lords. The governing bodies of the richer towns were winning the right to exercise absolute jurisdiction over the burghers within their own walls. The Forest courts were held by royal officers, who were themselves exempt from all jurisdiction save that of the king. And under one plea or another all men in the State were liable for certain causes Edition: current; Page: [114] to be brought under the jurisdiction of the newly-established Church courts. This system of conflicting laws was an endless source of perplexity. The country was moreover divided into two nationalities, who imperfectly understood one another’s customary rights; and it was further broken into various classes which stood in different relations to the law. Those who had sufficient property were not only deemed entirely trustworthy themselves, but were also considered answerable for the men under them; a second class of freeholders held property sufficient to serve as security for their good behaviour, but not sufficient to make them pledges for others; there was a third and lower class without property, for whose good conduct the law required the pledge of some superior. In a state of things so complicated, so uncertain and so shifting, it is hard to understand how justice can ever have been secured; nor, indeed, could any general order have been preserved, save for the fact that these early courts of law, having all sprung out of the same conditions of primitive life, and being all more or less influenced and so brought to some common likeness by the Roman law, did not differ very materially in their view of the relations between the subjects of the State, and fundamentally administered the same justice. Until this time too there had been but little legal business to bring before the courts. There was practically no commerce; there was little sale of land; questions of property were defined within very narrow limits; a mass of contracts, bills of exchange, and all the complicated transactions which trade brings with it, were only beginning to be known. As soon, however, as industry developed, and the needs of a growing society made themselves felt, the imperfections of the old order became intolerable. The rude methods and savage punishments of the law grew more and more burdensome as the number of trials increased; and the popular courts were found to be fast breaking down under the weight of their own ignorance and inefficiency.

The most important of these was the Shire Court. It still retained its old constitution; it preserved some tradition of a tribunal where the king was not the sole fountain of justice, and the memory of a law which was not the Edition: current; Page: [115] “king’s law.” It administered the old customary English codes, and carried on its business by the old procedure. There came to it the lords of the manors with their stewards, the abbots and priors of the county with their officers, the legal men of the hundreds who were qualified by holding property or by social freedom, and from every township the parish priest, with the reeve and four men, the smiths, farmers, millers, carpenters, who had been chosen in the little community to represent their neighbours; and along with them stood the pledges, the witnesses, the finders of dead bodies, men suspected of crime. The court was, in fact, a great public meeting of the whole county; there was no rank or order which did not send some of its number to swell the confused crowd that stood round the sheriff. The criminal was generally put on his trial by accusation of an injured neighbour, who, accompanied by his friends, swore that he did not bring his charge for hatred, or for envy, or for unlawful lust of gain. The defendant claimed the testimony of his lord, and further proved his innocence by a simple or threefold compurgation—that is, by the oath of a certain number of freemen among his neighbours, whose property gave them the required value in the eye of the law, and who swore together as “compurgators” that they believed his oath of denial to be “clean and unperjured.” The faith of the compurgator was measured by his landed property, and the value of the joint-oath which was required depended on a most intricate and baffling set of arithmetical calculations, and differed according to the kind of crime, the rank of the criminal, and the amount of property which was in dispute, besides other differences dependent on local customs. Witnesses might also be called from among neighbours who held property and were acquainted with the facts to which they would “dare” to swear. The final judgment was given by acclamation of the “suitors” of the court—that is, by the owners of property and the elected men of the hundreds or townships; in other words, by the public opinion of the neighbourhood. If the accused man were of bad character by common report, or if he could find no friends to swear in his behalf, “the oath burst,” and there remained for him Edition: current; Page: [116] only the ordeal or trial by battle, which he might accept or refuse at his own peril. In the simple ordeal he dipped his hand in boiling water to the wrist, or carried a bar of red-hot iron three paces. If in consequence of his lord’s testimony being against him the triple ordeal was used, he had to plunge his arm in water up to the elbow, or to carry the iron for nine paces. If he were condemned to the ordeal by water, his death seems to have been certain, since sinking was the sign of innocence, and if the prisoner floated he was put to death as guilty. The other alternative, trial by battle, which had been introduced by the Normans, was extremely unpopular in England; it told hardly against men who were weak or untrained to arms, or against the man of humble birth, who was allowed against his armed opponent neither horse nor the arms of a knight, but simply a leathern jacket, a shield of leather or wood, and a stick without knots or points.

At the beginning of the reign of Henry II. the Shire courts seem to have been nearly as bad as they could be. Scarcely any attempt had been made, perhaps none had till now been greatly needed, to improve a system which had grown up in a dim and ruder past. The Norman kings, indeed, had introduced into England a new method of deciding doubtful questions of property by the “recognition” of sworn witness instead of by the English process of compurgation or ordeal. Twelve men, who must be freemen and hold property, were chosen from the neighbourhood, and as “jurors” were sworn to state truly what they knew about the question in dispute, and the matter was decided according to their witness or “recognition.” If those who were summoned were unacquainted with the facts, they were dismissed and others called; if they knew the facts but differed in their statement, others were added to their number, till twelve at least were found whose testimony agreed together. These inquests on oath had been used by the Conqueror for fiscal purposes in the drawing up of Doomsday Book. From that time special “writs” from king or justiciar were occasionally granted, by which cases were withdrawn from the usual modes of trial in the local courts, and were decided Edition: current; Page: [117] by the method of recognition, which undoubtedly provided a far better chance of justice to the suitor, replacing as it did the rude appeal to the ordeal or to battle by the sworn testimony of the chosen representatives, the good men and true, of the neighbourhood. But the custom was not yet governed by any positive and inviolable rules, and the action of the King’s Court in this respect was imperfectly developed, uncertain, and irregular.

It is scarcely possible, indeed, to estimate the difficulties in the way of justice when Henry came to the throne. The wretched freeholders summoned to the Shire Court from farm and cattle, from mill or anvil or carpenter’s bench, knew well the terrors of the journey through marsh and fen and forest, the dangers of flood and torrent, and perhaps of outlawed thief or murderer, the privations and hardships of the way; and the heavy fines which occur in the king’s rolls for non-attendance show how anxiously great numbers of the suitors avoided joining in the troublesome and thankless business of the court. When they reached the place of trial a strange medley of business awaited them as questions arose of criminal jurisdiction, of feudal tenure, of English “sac and soc,” of Norman franchises and Saxon liberties, with procedure sometimes of the one people, sometimes of the other. The days dragged painfully on, as, without any help from trained lawyers, the “suitors” sought to settle perplexed questions between opposing claims of national, provincial, ecclesiastical, and civic laws, or made arduous journeys to visit the scene of some murder or outrage, or sought for evidence on some difficult problem of fact. Evidence, indeed, was not easy to find when the question in dispute dated perhaps from some time before the civil war and the suppression of the sheriff’s courts, for no written record was ever kept of the proceedings in court, and everything depended on the memory of witnesses. The difficulties of taking evidence by compurgation increased daily. A method which centuries before had been successfully applied to the local crimes of small and stationary communities bound together by the closest ties of kinship and of fellowship in possession of the soil, when every transaction was Edition: current; Page: [118] inevitably known to the whole village or township, became useless when new social and industrial conditions had destroyed the older and simpler modes of life. The procedure of the courts was antiquated and no longer guided by consistent principles. Their modes of trial were so cumbrous, formal, and inflexible that it was scarcely possible to avoid some minute technical mistake which might invalidate the final decision.

The business of the larger courts, too, was for the most part carried on in French under sheriff, or bailiff, or lord of the manor. The Norman nobles did not know Latin, they were but gradually learning English; the bulk of the lesser clergy perhaps spoke Latin, but did not know Norman; the poorer people spoke only English; the clerks who from this time began to note down the proceedings of the king’s judges in Latin must often have been puzzled by dialects of English strange to him. When each side in a trial claimed its own customary law, and neither side understood the speech of the other, the president of the court had every temptation to be despotic and corrupt, and the interpreter between him and his suitors became an important person who had much influence in deciding what mode of procedure was to be followed. The sheriff, often holding a hereditary post and fearing therefore no check to his despotism, added to the burden of the unhappy freeholders by a custom of summoning at his own fancy special courts, and laying heavy fines on those who did not attend them. Even when the law was fairly administered there was a growing number of cases in which the rigid forms of the court actually inflicted injustice, as questions constantly arose which lay far outside the limits of the old customary law of the Germanic tribes, or of the scanty knowledge of Roman law which had penetrated into other codes. The men of that day looked too often with utter hopelessness to the administration of justice; there was no peril so great in all the dangers that surrounded their lives as the peril of the law; there was no oppression so cruel as the oppression wrought by the harsh and rigid forms of the courts. From such calamities the miserable and despairing victims could look for no help Edition: current; Page: [119] save from the miraculous aid of the saints; and society at that time, as indeed it has been known to do in later days, was for ever appealing from the iniquity of law to God,—to a God who protected murderers if they murdered Jews, and defended robbers if they plundered usurers, who was, indeed, above all law, and was supposed to distribute a violent and arbitrary justice, answering to the vulgar notion of an equity unknown on earth.

We catch a glimpse of a trial of the time in the story of a certain Ailward, whose neighbour had refused to pay a debt which he owed him. Ailward took the law into his own hands, and broke into the house of his debtor, who had gone to the tavern and had left his door fastened with the lock hanging down outside, and his children playing within. Ailward carried off as security for his debt the lock, a gimlet, and some tools, and a whetstone which hung from the roof. As he sauntered home, however, his furious neighbour overtook him, having heard from the children what had been done. He snatched the whetstone from Ailward’s hand and dealt him a blow on the head with it, stabbed him in the arm with a knife, and then triumphantly carried him to the house which he had robbed, and there bound him as “an open thief” with the stolen goods upon him. A crowd gathered round, and an evil fellow, one Fulk, the apparitor, an underling of the sheriff employed to summon criminals to the court, remarked that as a thief could not legally be mutilated unless he had taken to the value of a shilling, it would be well to add a few articles to the list of stolen goods. Perhaps Ailward had won ill-fame as a creditor, or even, it may be, a money-lender in the village, for his neighbours clearly bore him little good-will. The crowd readily consented. A few odds and ends were gathered—a bundle of skins, gowns, linen, and an iron tool,—and were laid by Ailward’s side; and the next day, with the bundle hung about his neck, he was taken before the sheriff and the knights, who were then holding a Shire Court. The matter was thought doubtful; judgment was delayed, and Ailward was made fast in Bedford jail for a month, till the next county court. There the luckless man sent for a priest of Edition: current; Page: [120] the neighbourhood, and confessing his sins from his youth up, he was bidden to hope in the prayers of the blessed Virgin and of all the saints against the awful terrors of the law, and received a rod to scourge himself five times daily; while through the gloom shone the glimmer of hope that having been baptized on the vigil of Pentecost, water could not drown him nor fire burn him if he were sent to the ordeal. At last the month went by and he was again carried to the Shire Court, now at Leighton Buzzard. In vain he demanded single combat with Fulk, or the ordeal by fire; Fulk, who had been bribed with an ox, insisted on the ordeal of water, so that he should by no means escape. Another month passed in the jail of Bedford before he was given up to be examined by the ordeal. Whether he underwent it or whether he pleaded guilty when the judges met is uncertain, but however this might be, “he received the melancholy sentence of condemnation; and being taken to the place of punishment, his eyes were pulled out and he was mutilated, and his members were buried in the earth in the presence of a multitude of persons.”. . .

Such were in brief outline some of the difficulties which made order and justice hard to win. Society was helpless to protect itself: news spread slowly, the communication of thought was difficult, common action was impossible. Amid all the shifting and half understood problems of mediæval times there was only one power to which men could look to protect them against lawlessness, and that was the power of the king. No external restraints were set upon his action; his will was without contradiction. The mediæval world with fervent faith believed that he was the very spring and source of justice. In an age when all about him was changing, and when there was no organized machinery for the administration of law, the king had himself to be judge, lawgiver, soldier, financier, and administrator; the great highways and rivers of the kingdom were in “his peace;” the greater towns were in his demesne; he was guardian of the poor and defender of the trader; he was finance minister in a society where economic conditions were rapidly changing; he represented a developed system of law as opposed to the Edition: current; Page: [121] primitive customs of feud and private war; he was the only arbiter of questions that grew out of the new conflict of classes and interests; he alone could decree laws at his absolute will and pleasure, and could command the power to carry out his decrees; there was not even a professional lawyer who was not in his court and bound to his service.

Henry saw and used his opportunity. Even as a youth of twenty-one he assumed absolute control in his courts with a knowledge and capacity which made him fully able to meet trained lawyers, such as his chancellor, Thomas, or his justiciar, De Lucy. Cool, businesslike, and prompt, he set himself to meet the vast mass of arrears, the questions of jurisdiction and of disputed property, which had arisen even as far back as the time of Henry I., and had gone unsettled through the whole reign of Stephen, to the ruin and havoc of the land in question. He examined every charter that came before him; if any was imperfect he was ready to draw one up with his own hand; he watched every difficult point of law, noted every technical detail, laid down his own position with brief decision. In the uncertain and transitional state of the law the king’s personal interference knew scarcely any limits, and Henry used his power freely. But his unswerving justice never faltered. Gilbert de Bailleul, in some claim to property, ventured to make light of the charter of Henry I., by which it was held. The king’s wrath blazed up. “By the eyes of God,” he cried, “if you can prove this charter false, it would be worth a thousand pounds to me! If,” he went on, “the monks here could present such a charter to prove their possession of Clarendon, which I love above all places, there is no pretence by which I could refuse to give it up to them!” . . .

Henry began his work of reorganization by taking up the work which his grandfather had begun—that of replacing the mere arbitrary power of the sovereign by a uniform system of administration, and bringing into order the various conflicting authorities which had been handed down from ancient times, royal courts and manor courts, church courts, shire courts, hundred courts, forest courts, and local courts in special franchises, with all their inextricable confusion of Edition: current; Page: [122] law and custom and procedure. Under Henry I. two courts, the Exchequer and the Curia Regis, had control of all the financial and judicial business of the kingdom. The Exchequer filled a far more important place in the national life than the Curia Regis, for the power of the king was simply measured by the state of the treasury, when wars began to be fought by mercenaries, and justice to be administered by paid officials. The court had to keep a careful watch over the provincial accounts, over the moneys received from the king’s domains, and the fines from the local courts. It had to regulate changes in the mode of payment as the use of money gradually replaced the custom of payments in kind. It had to watch alterations in the ownership and cultivation of land, to modify the settlement of Doomsday Book so as to meet new conditions, and to make new distribution of taxes. There was no class of questions concerning property in the most remote way which might not be brought before its judges for decision. Twice a year the officers of the royal household, the Chancellor, Treasurer, two Chamberlains, Constable, and Marshal, with a few barons chosen from their knowledge of the law, sat with the Justiciar at their head, as “Barons of the Exchequer” in the palace at Westminster, round the table covered with its “chequered” cloth from which they took their name. In one chamber, the Exchequer of Account, the “Barons” received the reports of the sheriffs from every county, and fixed the sums to be levied. In a second chamber, the Exchequer of Receipt, the sheriff or tax-farmer paid in his dues and took his receipts. The accounts were carefully entered on the treasurer’s roll, which was called from its shape the Great Roll of the Pipe, and which may still be seen in our Record Office; the chancellor kept a duplicate of this, known as the Roll of the Chancery; and an officer of the king registered in a third Roll matters of any special importance. Before the death of Henry I. the vast amount and the complexity of business in the Exchequer Court made it impossible that it should any longer be carried on wholly in London. The “Barons” began to travel as itinerant judges through the country; as the king’s special officers they held courts in the provinces, Edition: current; Page: [123] where difficult local questions were tried and decided on the spot. So important did the work of finance become that the study of the Exchequer is in effect the key to English history at this time. It was not from any philosophic love of good government, but because the license of outrage would have interrupted the returns of the revenue that Henry I. claimed the title of the “Lion of justice.” It was in great measure from a wish to sweep the fees of the Church courts into the royal Hoard that the second Henry began the strife with Becket in the Constitutions of Clarendon, and the increase of revenue was the efficient cause of the great reforms of justice which form the glory of his reign. It was the fount of English law and English freedom.

The Curia Regis was composed of the same great officers of the household as those who sat in the Exchequer, and of a few men chosen by the king for their legal learning; but in this court they were not known as “Barons” but as “Justices,” and their head was the Chief Justice. The Curia Regis dealt with legal business, with all causes in which the king’s interest was concerned, with appeals from the local courts, and from vassals who were too strong to submit to their arbitration, with pleas from wealthy barons who had bought the privilege of laying their suit before the king, besides all the perplexed questions which lay far beyond the powers of the customary courts, and in which the equitable judgment of the king himself was required. In theory its powers were great, but in practice little business was actually brought to it in the time of Henry I.; the distance of the court from country places, and the expense of carrying a suit to it, would alone have proved an effectual hindrance to its usefulness, even if the rules by which it was guided had been much more complete and satisfactory than they actually were.

The routine of this system of administration, as well as the mass of business to be done, effectually interfered with arbitrary action on the king’s part, and the regular and methodical work of the organized courts gave to the people a fair measure of protection against the tyranny or caprice of the sovereign. But the royal power which was given over to Edition: current; Page: [124] justices and barons did not pass out of the hands of the king. He was still in theory the fount of all authority and law, and could, whenever he chose, resume the powers that he had granted. His control was never relaxed; and in later days we find that while judges on circuit who gave unjust judgment were summoned before the Curia Regis at Westminster, the judges of the Curia Regis itself were called for trial before the king himself in his council.

The reorganization of these courts was fast completed under Henry’s great justiciar, De Lucy, and the chancellor Thomas. The next few years show an amount of work done in every department of government which is simply astonishing. The clerks of the Exchequer took up the accounts and began once more regular entries in the Pipe Roll; plans of taxation were devised to fill the empty hoard, and to check the misery and tyranny under which the tax-payers groaned. The king ordered a new coinage which should establish a uniform system of money over the whole land. As late as the reign of Henry I. the dues were paid in kind, and the sheriffs took their receipts for honey, fowls, eggs, corn, wax, wool, beer, oxen, dogs, or hawks. When, by Henry’s orders, all payments were first made in coin to the Exchequer, the immediate convenience was great, but the state of the coinage made the change tell heavily against the crown. It was impossible to adulterate dues in kind; it was easy to debase the coin when they were paid in money, and that money received by weight, whether it were coin from the royal mints, or the local coinages that had continued from the time of the early English kingdoms, or debased money from the private mints of the barons. Roger of Salisbury, in fact, when placed at the head of the Exchequer, found a great difference between the weight and the actual value of the coin received. He fell back on a simple expedient; in many places there had been a provision as old at least as Doomsday, which enacted that the money weighed out for town-geld should if needful be tested by re-melting. The treasurer extended this to the whole system of the Exchequer. He ordered that all money brought to the Exchequer should itself be tested, and the difference between its weight and real value paid by the Edition: current; Page: [125] sheriff who brought it. The burden thus fell on the country, for the sheriff would of course protect himself as far as he could by exacting the same tests on all sums paid to him. If the pound was worth but ten shillings in the market no doubt the sheriff only took it for ten shillings in his court. Practically each tax, each due, must have been at least doubled, and the sheriff himself was at the mercy of the Exchequer moneyers. There was but one way to remedy the evil, by securing the purity of the coin, and twice during his reign Henry made this his special care.

In the absence of records we can only dimly trace the work of legal reform which was carried out by Henry’s legal officers; but it is plain that before 1164 certain great changes had already been fully established. A new and elaborate system of rules seems gradually to have been drawn up for the guidance of the justices who sat in the Curia Regis; and a new set of legal remedies in course of time made the chances of justice in this court greater than in any other court of the realm. The Great Assize, an edict whose date is uncertain, but which was probably issued during the first years of his reign, developed and set in full working order the imperfect system of “recognition” established by the Norman kings. Henceforth the man, whose right to his freehold was disputed, need but apply to the Curia Regis to issue an order that all proceedings in the local courts should be stopped until the “recognition” of twelve chosen men had decided who was the rightful owner according to the common knowledge of the district, and the barbarous foreign custom of settling the matter by combat was done away with. Under the new system the Curia Regis eventually became the recognized court of appeal for the whole kingdom. So great a mass of business was drawn under its control that the king and his regular ministers could no longer suffice for the work, and new judges had to be added to the former staff; and at last the positions of the two chief courts of the kingdom were reversed, and the King’s Court took the foremost place in the amount and importance of its business.

The same system of trial by sworn witnesses was also gradually extended to the local courts. By the new-fashioned Edition: current; Page: [126] royal system the legal men of hundreds and townships, the knights and freeholders, were ordered to search out the criminals of their district, and “present” them for trial at the Shire Court,—something after the fashion of the “grand jury” of to-day, save that in early times the jurors had themselves to bear witness, to declare what they knew of the prisoner’s character, to say if stolen goods had been divided in a certain barn, to testify to a coat by a patch on the shoulder. By a slow series of changes which wholly reversed their duties, the “legal men” of the juries of “presentment” and of “recognition” were gradually transformed into the “jury” of to-day; and even now curious traces survive in our courts of the work done by the ancestors of the modern jury. In criminal cases in Scotland the oath still administered by the clerk to jurymen carries us back to an ancient time: “You fifteen swear by Almighty God, and as you shall answer to God at the great day of judgment, you will truth say and no truth conceal, in so far as you are to pass on this assize.” The provincial administration was set in working order. New sheriffs took up again the administration of the shires, and judges from the King’s Court travelled, as they had done in the time of Henry I., through the land. . . .

Henry, however, was at once met by a difficulty unknown to earlier days. The system which the Conqueror had established of separate courts for secular and ecclesiastical business had utterly broken down for purposes of justice. Until the reign of Stephen much of the business of the bishops was done in the courts of the hundred and the shire. The Church courts also had at first been guided by the customary law and traditions of the early English Church, which had grown up along with the secular laws and had a distinctly national character. So long, indeed, as the canon law remained somewhat vague, and the Church courts incomplete, they could work peaceably side by side with the lay courts; but with the development of ecclesiastical law in the middle of the twelfth century, it was inevitable that difficulties should spring up. The boundaries of civil and ecclesiastical law were wholly uncertain, the scientific study of law had hardly Edition: current; Page: [127] begun, and there was much debatable ground which might be won by the most arrogant or the most skilful of the combatants. Every brawl of a few noisy lads in the Oxford streets or at the gates of some cathedral or monastic school was enough to kindle the strife as to the jurisdiction of Church or State which shook mediæval society to its foundation.

The Church courts not only had jurisdiction over the whole clerical order, but exercised wide powers even over the laity. To them alone belonged the right to enforce spiritual penalties, to deal with cases of oaths, promises, anything in which a man’s faith was pledged; to decide as to the property of intestates, to pronounce in every case of inheritance whether the heir was legitimate, to declare the law as to wills and marriage. Administering as they did an enlightened system of law, they profited by the new prosperity of the country, and the judicial and pecuniary disputes which came to them had never been so abundant as now. Henry was keenly alive to the fact that the archdeacons’ courts now levied every year by their fines more money than the whole revenue of the crown. Young archdeacons were sent abroad to be taught the Roman law, and returned to preside over the newly-established archdeacons’ courts; clergy who sought high office were bound to study before all things, even before theology, the civil and canon law. The new rules, however, were as yet incomplete and imperfectly understood in England; the Church courts were without the power to put them in force; the procedure was hurried and irregular; the judges were often ill-trained, and unfit to deal with the mass of legal business which was suddenly thrown on them; the ecclesiastical authorities themselves shrank from defiling the priesthood by contact with all this legal and secular business, and kept the archdeacons in deacons’ orders; the more religious clergy questioned whether for an archdeacon salvation were possible. In the eight years of Henry’s rule one hundred murders had been committed by clerks who had escaped all punishment save the light sentences of fine and imprisonment inflicted by their own courts, and Henry bitterly complained that a reader or an acolyte might slay Edition: current; Page: [128] a man, however illustrious, and suffer nothing save the loss of his orders.

Since the beginning of Henry’s reign, too, there had been an enormous increase of appeals to Rome. Questions quite apart from faith or morals, and that mostly concerned property, were referred for decision to a foreign court. The great monasteries were exempted from episcopal control and placed directly under the Pope; they adopted the customs and laws which found favour at Rome; they upheld the system of appeals, in which their wealth and influence gave them formidable advantages. The English Church was no longer as in earlier times distinct from the rest of Christendom, but was brought directly under Roman influence. The clergy were more and more separated from their lay fellow citizens; their rights and duties were determined on different principles; they were governed by their own officers and judged by their own laws, and tried in their own courts; they looked for their supreme tribunal of appeal not to the King’s Court, but to Rome; they became, in fact, practically freed from the common law.

No king, and Henry least of all, could watch unmoved the first great body which threatened to stand wholly outside the law of the land; and the ecclesiastical pretensions of the time were perhaps well matched by the pretensions of the State.1 . . .

In February 1166 he drew up his long-delayed scheme. His plans were rapidly completed; by the 16th of March the new system was at work.

Such were the conditions under which appeared the famous Assize of Clarendon. For the first time in English history a code of laws was issued by the sole authority of the king, without any appeal to the sanction of binding and immutable “custom.” Indeed, in all Europe there was no instance of national legislation which could be compared with it, for it was not till a hundred years later that the first code of laws since the time of the Carolingian Capitularies was drawn up in France. Its very name bears witness to the impression it Edition: current; Page: [129] made in its own day. The word “law” was still reserved for certain solemn uses, for the unalterable code of Scripture or for the Roman law. Men questioned what to call this new decree, given at the king’s will, and to be enforced just so long as he should choose, and their jealous conservatism took refuge in the word “assize,” as later generations in the same difficulty fell back on such words as “provision,” “statute,” “ordinance.”

The Constitutions of Clarendon two years before had lain down the principles which were to regulate the relations in England of Church and State. The Assize of Clarendon laid down the principles on which the administration of justice was to be carried out. Just as Henry had undertaken to bring Church courts and Church law under the king’s control, so now he aimed at bringing all local and rival jurisdictions whatever into the same obedience. In form the new law was simple enough. It consisted of twenty-two articles which were drawn up for the use of the judges who were about to make their circuits of the provinces. The first articles described the manner in which criminals were to be “presented” before the justices or sheriff. The accusation was to be made by “juries,” composed of twelve men of the hundred and four men of the township; the “presentment” of a criminal by a jury such as this practically implied that the man was held guilty by the public report of his own neighbourhood, and he was therefore forbidden such chance of escape as compurgation or the less dangerous forms of ordeal might have afforded, and was sent to the almost certain condemnation of the ordeal by water; if by some rare fortune he should escape from this alive he was banished from the kingdom as a man of evil reputation. All freemen were ordered to attend the courts held by the justices. The judges were given power to enter on all estates of the nobles, to see that the men of the manor were duly enrolled under the system of “frank-pledge,” in groups of ten men bound to answer for one another as “pledges” for all purposes of police. Strict rules were made to prevent the possible escape of criminals. The sheriffs were ordered to aid one another in carrying the hue and cry after them from one country to Edition: current; Page: [130] another; no “liberty” or “honour” might harbour a malefactor against the king’s officers; sheriffs were to give to the justices in writing the names of all fugitives, so that they might be sought through all England; everywhere jails, in which doubtful strangers or suspected rogues might be shut up for safe keeping in case the “hue and cry” should be raised after them, were to be made or repaired with wood from the king’s or the nearest landowner’s domains; no man might entertain a stranger for whom he would not be answerable before the justices; the old English law was again repeated in the very words of ancient times, that none might take into his house a waif or wanderer for more than one night unless he or his horse were sick; and if he tarried longer he must be kept until he were redeemed by his lord or could give safe pledges; no religious house might receive any of the mean people into their body without good testimony as to character unless he were sick unto death; and heretics were to be treated as outlaws. These last indeed were not very plentiful in England, and the over-anxious legislators seem only to have had in view a little band of German preachers, who had converted one woman, and who had themselves at a late council at Oxford been branded, flogged, and driven out half-naked, so that there was by this time probably not one who had not perished in the cold.

Such was the series of regulations that opened the long course of reforms by which English law has been built up. Two judges were sent during the next spring and summer through the whole of England. The following year there was a survey of the forests, and in 1168 another circuit of the shires was made by the barons of the Exchequer. Year by year with unbroken regularity the terrible visitation of the country by the justices went on. The wealth of the luckless people poured into the king’s treasury; the busy secretaries recorded in the Rolls a mass of profits unknown to the accounts of earlier days. The great barons who presided over the Shire courts found themselves practically robbed of power and influence. The ordinary courts fell into insignificance beside those summoned by the king’s judges, thronged as they were with the crowd of rich and poor, trembling at Edition: current; Page: [131] the penalty of a ruinous fine for non-attendance or full of a newly-kindled hope of justice. Important cases were more and more withdrawn from the sheriffs and given to the justices. They entered the estates of the nobles, even the franchises, liberties, and manors which had been freed from the old courts of the shire or hundred; they reviewed their decisions and interfered with their judgments. It is true that the system established in principle was but gradually carried into effect, and the people long suffered the tyranny of lords who maintained their own prisons. Half a century later we find sturdy barons setting up their tumbrils and gallows. In the reign of Edward I. there were still thirty-five private gallows in Berkshire alone, and when one of them was by chance or age broken down, and the people refused to set it up again, the baron could still make shift with the nearest oak. But as a system of government, feudalism was doomed from the day of Henry’s Assize, and only dragged out a lingering existence till the legislation of Edward I. dealt it a final blow.

The duties of police were at that time performed by the whole population, and the judges’ circuits brought home sharply to every man the part he was expected to play in the suppression of crime. Juries were fined if they had not “presented” a due amount of criminals; townships were fined if they had not properly pursued malefactors; villages were fined if a hut was burned down and the hue and cry was not raised, or if a criminal who had fled for refuge to their church escaped from it. A robber or murderer must be paid for by his “pledge,” or if he had no pledge, a fine fell on his village or township; if a dead body were found and the slayer not produced, the hundred must pay for him, unless a legal form, called “proving his Englishry,” could be gone through—a condition which was constantly impossible; the township was fined if the body had been buried before the coming of the coroner; abbot or knight or householder was heavily taxed for every crime of serf or hired servant under him, or even for the offences of any starving and worn-out pilgrim or traveller to whom he had given a three days’ shelter. In the remotest regions of the country barons and Edition: current; Page: [132] knights and freeholders were called to aid in carrying out the law. The “jurors” must be ready at the judges’ summons wherever and whenever they were wanted. They must be prepared to answer fully for their district; they must expect to be called on all sorts of excuses to Westminster itself, and no hardships of the journey from the farthest corner of the land might keep them back. The “knights of the shire” were summoned as “recognitors” to give their testimony in all questions of property, public privilege, rights of trade, local liberties, exemption from taxes; if the king demanded an “aid” for the marriage of his daughter or the coming of age of his son, they assessed the amount to be paid; if he wanted to count an estate among the Royal Forests, it was they who decided whether the land was his by ancient right. They were employed too in all kinds of business for the Court; they might be sent to examine a criminal who had fled to the refuge of a church, or to see whether a sick man had appointed an attorney, or whether a litigant who pleaded illness was really in bed without his breeches. If in any case the verdict of the Shire Court was disputed, they were summoned to Westminster to repeat the record of the county. No people probably ever went through so severe a discipline or received so efficient a training in the practical work of carrying out the law, as was given to the English people in the hundred years that lay between the Assize of Clarendon in 1166 and the Parliament summoned by De Montfort in 1265, where knights from every shire elected in the county court were called to sit with the bishops and great barons in the common Parliament of the realm.

In the pitiless routine of their work, however, the barons of the Exchequer were at this early time scarcely regarded as judges administering justice so much as tax-gatherers for a needy treasury. Baron and churchman and burgher alike saw every question turn to a demand of money to swell the royal Hoard; jurors were fined for any trifling flaw in legal procedure; widows were fined for leave to marry, guardians for leave to receive their wards; if a peasant were kicked by his horse, if in fishing he fell from the side of his boat, or if in carrying home his eels or herrings he stumbled and was Edition: current; Page: [133] crushed by the cart-wheel, his wretched children saw horse or boat or cart with its load of fish which in older days had been forfeited as “deodand” to the service of God, now carried off to the king’s Hoard; if a miller was caught in the wheel of his mill the sheriff must see the price of it paid to the royal treasury. In the country districts where coin was perhaps scarcely ever seen, where wages were unknown, and such little traffic as went on was wholly a matter of barter, the peasants must often have been put to the greatest straits to find money for the fines. Year after year baron as well as peasant and farmer saw his waggons and horses, or his store of honey, eggs, loaves, beer, the fish from his pond or the fowls from his yard, claimed by the purveyors who provided for the judges and their followers, and paid for by such measures and such prices as seemed good to the greedy contractors. The people at large groaned under the heavy burden of fines and penalties and charges for the maintenance of an unaccustomed justice. When in the visitations of 1168 the judges had to collect, besides the ordinary dues, an “aid” for the marriage of the king’s eldest daughter, the unhappy tax-payers, recognizing in their misery no distinctions, attributed all their sufferings to the new reform, and saw in their king not a ruler who desired righteous judgment, but one who only thirsted after gain. The one privilege which seemed worth fighting for or worth buying was the privilege of assessing their own fines and managing their own courts. Half a century later we see the prevailing terror at a visit of the judges to Cornwall, when all the people fled for refuge to the woods, and could hardly be compelled or persuaded to come back again. Yet later the people won a concession that in time of war no circuits should be held, so that the poor should not be utterly ruined.

Oppression and extortion had doubtless been well known before, when the sheriff carried on the administration of the law side by side with the lucrative business of “farming the shires;” but it was at least an irregular and uncertain oppression. The sheriff might himself at any moment share the fate of one of his own victims and a more merciful man stand in his place; in any case bribes were not unavailing, Edition: current; Page: [134] and there was still an appeal to the king’s justice. But against the new system there was no appeal; it was orderly, methodical, unrelenting; it was backed by the whole force of the kingdom; it overlooked nothing; it forgot nothing; it was comparatively incorruptible. The lesser courts, with their old clumsy procedure, were at a hopeless disadvantage before the professional judges, who could use all the new legal methods. If a man suffered under these there was none to plead his cause, for in all the country there was not a single trained lawyer save those in the king’s service. However we who look back from the safe distance of seven hundred years may see with clearer vision the great work which was done by Henry’s Assize, in its own day it was far from being a welcome institution to our unhappy forefathers. There was scarcely a class in the country which did not find itself aggrieved as the king waged war with the claims of “privilege” to stand above right and justice and truth. But all resistance of turbulent and discontented factions was vain. The great justiciars at the head of the legal administration, De Lucy and Glanville, steadily carried out the new code, and a body of lawyers was trained under them which formed a class wholly unknown elsewhere in Europe. Instead of arbitrary and conflicting decisions, varying in every hundred and every franchise according to the fashion of the district, the judges of the Exchequer or Curia Regis declared judgments which were governed by certain general principles. The traditions of the great administrators of Henry’s Court were handed down through the troubled reigns of his sons; and the whole of the later Common law is practically based on the decisions of two judges whose work was finished within fifty years of Henry’s death, and whose labours formed the materials from which in 1260 Bracton drew up the greatest work ever written on English law.

There was, in fact, in all Christendom no such system of government or of justice as that which Henry’s reforms built up. The king became the fountain of law in a way till then unknown. The later jealousy of the royal power which grew up with the advance of industrial activity, with the growth of public opinion and of its means of expressing Edition: current; Page: [135] itself, with the development of national experience and national self-dependence, had no place in Henry’s days, and had indeed no reason for existence. The strife for the abolition of privileges which in the nineteenth century was waged by the people was in the twelfth century waged by the Crown. In that time, if in no other, the assertion of the supreme authority of the king meant the assertion of the supreme authority of a common law; and there was, in fact, no country in Europe where the whole body of the baronage and of the clergy was so early and so completely brought into bondage to the law of the land. Since all courts were royal courts, since all law was royal law, since no justice was known but his, and its conduct lay wholly in the hands of his trained servants, there was no reason for the king to look with jealousy on the authority exercised by the law over any of his officers or servants. It may possibly be due to this fact that in England alone, of all countries in the world, the police, the civil servants, the soldiers, are tried in the same courts and by the same code as any private citizen; and that in England and lands settled by English peoples alone the Common law still remains the ultimate and only appeal for every subject of the realm.

But the power which was taken from certain privileged classes and put in the hands of the king was in effect by Henry’s Assize given back to the people at large. Foreigner as he was, Henry preserved to Englishmen an inheritance which had been handed down from an immemorial past, and which had elsewhere vanished away or was slipping fast into forgetfulness. According to the Roman system, which in the next century spread over Europe, all law and government proceeded directly from the king, and the subject had no right save that of implicit obedience; the system of representation and the idea of the jury had no place in it. Teutonic tradition, on the other hand, looked upon the nation as a commonwealth, and placed the ultimate authority in the will of the whole people; the law was the people’s law—it was to be declared and carried out in the people’s courts. At a very critical moment, when everything was shifting, uncertain, transitional, Henry’s legislation established this tradition Edition: current; Page: [136] for England. By his Assize Englishmen were still to be tried in their ancient courts. Justice was to be administered by the ancient machinery of shire-moot and hundred-moot, by the legal men of hundred and township, by the lord and his steward. The shire-moot became the king’s court in so far as its president was a king’s judge and its procedure regulated by the king’s decree; but it still remained the court of the people, to which the freemen gathered as their fathers had done to the folk-moot, and where judgment could only be pronounced by the verdict of the freeholders who sat in the court. The king’s action indeed was determined by a curious medley of chance circumstances and rooted prejudices. The canon law was fast spreading over his foreign states, and wherever the canon law came in the civil law followed in its train. But in England local liberties were strong, the feudal system had never been completely established, insular prejudice against the foreigner and foreign ways was alert, the Church generally still held to national tradition, the king was at deadly feud with the Primate, and was quite resolved to have no customs favoured by him brought into the land; his own absolute power made it no humiliation to accept the maxim of English lawyers that “the king is under God and the law.” So it happened that while all the other civilized nations quietly passed under the rule of the Roman code England alone stood outside it. From the twelfth century to the present day the groundwork of our law has been English, in spite of the ceaseless filtering-in of the conceptions and rules of the civil law of Rome. “Throughout the world at this moment there is no body of ten thousand Englishmen governed by a system of law which was not fashioned by themselves.” . . .

In the Assize of Northampton, held in January 1176, the king confirmed and perfected the judicial legislation which he had begun ten years before in the Assize of Clarendon. The kingdom was divided into six circuits. The judges appointed to the circuits were given a more full independence than they had before, and were no longer joined with the sheriffs of the counties in their sessions; their powers were extended beyond criminal jurisdiction to questions of property, Edition: current; Page: [137] of inheritance, of wardship, of forfeiture of crown lands, of advowsons to churches, and of the tenure of land. For the first time the name of Justitiarii Itinerantes was given in the Pipe Roll to these travelling justices; and the anxiety of the king to make the procedure of his courts perfectly regular, instead of depending on oral tradition, was shown by the law-books which his ministers began at this time to draw up. As a security against rebellion, a new oath of fealty was required from every man, whether earl or villein; fugitives and outlaws were to be more sharply sought after, and felons punished with harsher cruelty. “Thinking more of the king than of his sheep,” the legate admitted Henry’s right to bring the clergy before secular courts for crimes against forest law, and in various questions of lay fiefs; and agreed that murderers of clerks, who till then had been dealt with by the ecclesiastical courts, should bear the same punishment as murderers of laymen, and should be disinherited. Religious churchmen looked on with helpless irritation at Henry’s first formal victory over the principles of Thomas; in the view of his own day he had “renewed the Assize of Clarendon, and ordered to be observed the execrable decrees for which the blessed martyr Thomas had borne exile for seven years, and been crowned with the crown of martyrdom.”

During the next two years Henry was in perpetual movement through the land from Devon to Lincoln, and between March 1176 and August 1177 he summoned eighteen great councils, besides many others of less consequence. From 1178 to 1180 he paid his last long visit to England, and again with the old laborious zeal he began his round of journeys through the country. “The king inquired about the justices whom he had appointed, how they treated the men of the kingdom; and when he learned that the land and the subjects were too much burthened with the great number of justices, because there were eighteen, he elected five—two clerks and three laymen—all of his own household; and he ordered that they should bear all appeals of the kingdom and should do justice, and that they should not depart from the King’s Court, but should remain there to hear appeals, so that if any question Edition: current; Page: [138] should come to them they should present it to the audience of the king, and that it should be decided by him and by the wise men of the kingdom.” The Justices of the Bench, as they were called, took precedence of all other judges. The influence of their work was soon felt. From this time written records began to be kept of the legal compromises made before the King’s Court to render possible the transference of land. It seems that in 1181 the practice was for the first time adopted of entering on rolls all the business which came to the Kings’ Court, the pleas of the Crown and common pleas between subjects. Unlike in form to the great Roll of the Pipe, in which the records of the Exchequer Court had long been kept, the Plea Rolls consisted of strips of parchment filed together by their tops, on which, in an uncertain and at first a blundering fashion, the clerks noted down their records of judicial proceedings. But practice soon brought about an orderly and mechanical method of work, and the system of procedure in the Bench rapidly attained a scientific perfection. Before long the name of the Curia Regis was exclusively applied to the new court of appeal.

The work of legal reform had now practically come to an end. Henry indeed still kept a jealous watch over his judges. Once more, on the retirement of De Lucy in 1179, he divided the kingdom into new circuits, and chose three bishops—Winchester, Ely, and Norwich—“as chief justiciars, hoping that if he had failed before, these at least he might find steadfast in righteousness, turning neither to the right nor to the left, not oppressing the poor, and not deciding the cause of the rich for bribes.” In the next year he set Glanville finally at the head of the legal administration. After that he himself was called to other cares. But he had really finished his task in England. The mere system of routine which the wisdom of Henry I. had set to control the arbitrary power of the king had given place to a large and noble conception of government; and by the genius of Henry II. the law of the land was finally established as the supreme guardian of the old English liberties and the new administrative order.

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5.: EDWARD I, THE ENGLISH JUSTINIAN1

THE few years which followed the conquest of Wales have given Edward his title to immortal fame, a fame earned by that noblest of all royal virtues, a steadfast devotion to the happiness and prosperity of his subjects. Keeping a wary eye on the ominous prospects of the Scottish succession, never forgetting the possibility of a Welsh rising, taking a conspicuous part in the territorial and dynastic problems of the Continent,—the quarrels between France and Aragon in particular,—coquetting with successive Popes on the subject of the proposed Crusade, exacting from Philip of France a due fulfilment of the treaties of Paris and Amiens, his main strength was yet steadily spent in those great internal reforms which mark the change from feudal to industrial England, from the old divided England of the Barons’ War to the united England of the end of the century, from the Middle Ages to modern history. In the winter of 1290, he lost his faithful and beloved wife, Eleanor of Castile; and the event seemed to close the chapter of his prosperity. From that time till his lonely death in 1307, the King was involved in unhappy quarrels—the interminable quarrel of the Scottish succession, the quarrel with France, the quarrel with his own nobles, the quarrel with the Church. In all these, the country never lost its faith in the King; Edward never sank in public esteem as his father and grandfather had sunk. He never lost the power to recall the affections of his subjects by a frank appeal to old memories. “Except in Edition: current; Page: [140] opinion, not disagreeing,” might truly have been said, at any moment, of the King and his people. But that the firm trust of Englishmen in the nobleness of their ruler remained unshaken during those sixteen years of storm and stress, of taxation and war, of absence and seeming neglect, was surely due to the profound impression of justice, patience, honesty, wisdom, and self-denying toil, created by the two brilliant years of internal reform, whose course we now attempt to trace.

First in point of date comes the famous Statute of Merchants, or Acton Burnell. As we have formerly seen, the expansion of foreign commerce, brought about by the Crusades, had rendered the merchant a figure of new importance in the social system of the country. But he fitted badly into the established order of things. As often as not a “foreigner,”1 he had no native town in England, he was a member of no clan or blood-feud group, of no fief or monastery. He was a lost unit in a society which barely recognised individualism in its humbler ranks; which had a profound distrust of strangers; which looked on commerce mainly as an opportunity of cheating, and commercial profit as something nearly akin to usury. The safety of the stranger merchant, at first secured by placing him under the “mainpast,” or guarantee, of his host, subsequently strengthened by his own spontaneous association into gilds or brotherhoods, was finally recognised, as a matter of national policy, by the express words of the Great Charter.

But it was necessary to the welfare of the merchant, not only that he should be protected from bodily harm, but that he should be actively assisted in the enforcement of his rights. People were beginning to discover, that credit is the life-blood of commerce; and credit could not exist in a society which knew nothing of commercial honour, as we understand it, without an adequate machinery for the enforcement of commercial obligations. No man, in the England of the thirteenth century, would have thought a fraction the worse of Edition: current; Page: [141] himself for refusing to satisfy a commercial claim, however just, which could not be legally enforced against him. Scandalous as the position seems now to us, it had grown easily and naturally out of the history of the law of debt. The earliest “debts” did not arise out of voluntary transactions: they were bloodfines reluctantly offered by guilty men, robbers and murderers, to appease the just vengeance of the injured or their relatives. Quite naturally, these offenders resisted payment until the last possible moment. Nowhere are a priori conceptions more inadequate to explain facts, than in the discussions of legal morality. But a patient study of the history of legal ideas not only removes all difficulties: it leaves the student wondering at the simplicity of the explanation, so long sought in vain by the exalted methods of deductive speculation.

Thus it becomes clear, why the merchant of the thirteenth century, especially the foreign merchant, was helpless in the hands of his debtors. Three difficulties stood in his way. First, he could not, in all probability, appear as the ostensible plaintiff before a tribunal which did not recognise him as one of its proper “suitors” or constituents. He had to trust himself in the hands of a native agent, or “attorney,” who might decamp with his money. Second, he would find his adversary resorting, perhaps with the secret goodwill of the tribunal, to every trick and delay that chicane could suggest—and no one who knows anything of legal history will believe that chicane is a modern vice—to postpone the evil day on which judgment should be pronounced against him. Finally, if the plaintiff were successful in procuring a judgment, he would find himself obstructed in enforcing it by a defective procedure which, once more, is intelligible only by a reference to the history of the action of debt. In the days when debts were, as we have said, mere alternatives of corporal vengeance, the man who could not satisfy them “paid with his body.” In other words, if the avenger of blood did not get his money, he got his revenge, either in the form of imprisonment of his debtor, or even by exacting the extreme penalty. This is the simple explanation of the horrible system of debt-slavery, of which students of Roman history Edition: current; Page: [142] learn so much—and so little. Apparently, before Edward’s day, the right of the judgment creditor to seize the chattels of his debtor, through the hands of the sheriff, had become generally recognised. But the strongest instincts of feudalism were opposed to the suggestion that a debtor’s land might be sold for payment of his debts, and a new tenant thus imposed upon his lord. And feudal instincts were, in this respect, as in so many others, powerfully supported by still older social instincts, surviving from an age in which land was not the property of the individual, but of the clan or kindred, and when to admit that the sacredness of the kin group might be disturbed by the intrusion of the creditor of one of its members, would have been regarded as little short of blasphemy.

But the rapid progress of industry, and the rapid decay of patriarchal and feudal institutions, in the twelfth and early thirteenth centuries, had really rendered this antiquated rule a relic of barbarism and a cloak of injustice. Now that the services of nearly all tenants, except those in the lowest ranks, had been commuted into money, now that the coheirs of a deceased landowner could obtain the assistance of the King’s courts to effect a division of their inheritance, it was absurd to maintain the fiction of patriarchal and feudal connection. It was, clearly, the duty of the lawgiver to express in formal terms that revolution of social ideas which had actually taken place, and to carry the revolution to its legitimate issue.

This, in fact, is just what Edward did in his famous Statute (passed even before the death of Llywelyn at Orewin Bridge), at the manor of his Chancellor, Robert Burnell, Bishop of Bath and Wells, near Shrewsbury, on the 12th October, 1283. The so-called “Parliament of Acton Burnell” has no more claim to constitutional importance than the so-called Parliament House, which professes to be the very building in which it sat; for the body which best deserved the title of Parliament was then sitting at Shrewsbury, seven miles away, and the Statute was probably drawn up and promulgated, as it professes to be, by the King and his Council, i. e., the small body of officials who accompanied Edition: current; Page: [143] him on his journeys. But its legal validity has never been questioned, and its importance is beyond dispute. A merchant who doubts the honesty of his would-be debtor may insist upon his “recognising” or admitting his liability in a formal document, sealed in the presence of the mayor of a chartered borough, and entered upon a roll which remains in the official custody, while a “bill” or “obligation,” sealed by the debtor and authenticated by the royal seal, is handed over to the creditor. If the debtor fails to pay, at the appointed time, he may not only be imprisoned, but his chattels and “burgage” tenements (i. e., lands in the borough) may be sold, without any preliminary proceedings, by the mayor to satisfy the debt, or, if there is any difficulty in effecting the sale, the debtor’s chattels and all his lands may be handed over at a reasonable valuation to the creditor, until, out of the issues, the debt is liquidated. Even the death of the debtor will not destroy the creditor’s remedy against his lands, which will remain liable in the hands of his heir, against whom, however, there will be no personal remedy.1

No apology is needed for the space which has been given to the Statute of Merchants. Under the cover of its technical phrases, the King dealt a death-blow at the still surviving forces of patriarchalism and feudalism, and recognised the new principles of individual responsibility and commercial probity which were to be watchwords of the political and social future. Like a wise legislator, he had merely interpreted and guided the overwhelming drift of evolution, and distinguished between obstruction and progress. He saw that the future greatness of England lay, not with the feudal landowner, but with the despised merchant. His enactment is admirable in its simplicity and effectiveness. It was freely used, not only by merchants, but by every class of society, until improvements in the procedure of the courts had rendered it unnecessary. The still simpler machinery of “negotiable paper” (Bills of Exchange and Promissory Notes) Edition: current; Page: [144] ultimately superseded the machinery of Edward’s enactment; but, at least until Elizabeth’s day, capitalists lent their money on “statutes,” no less than on mortgages. And if “statutes” were abused by a Sir Giles Overreach, we must not forget, that an institution is to be judged by its uses, not by its abuses. One injustice Edward’s advisers unquestionably did, in making the entire inheritance of a wealthy landowner responsible for the debts and follies of his eldest son. But this was the inevitable consequence of the policy which, before Edward ascended the throne, had forced the feudal custom of primogeniture, in all its naked simplicity, upon an unwilling nation.

Nothing but an excusable dislike of the dry details of legal history can explain the failure of the many able historians who have treated of the reign of Edward, to detect the close connection between the Statute of Merchants and the yet more famous Statute of Entails, which so soon followed it. On the King’s return from his Welsh campaign, he summoned a great Parliament to meet at Westminster at Easter of the year 1285. It was a very different body from the small Council of ministers which had drawn up the Statute of Merchants. Though the precise details of its composition are, unhappily, obscure, it is obvious that the reactionary feudal element was strong enough to deal a severe, though temporary, check to the policy of the latter statute.1 Nor is it at all difficult to understand the motives which produced such an outbreak. If the lands of an improvident baron or knight were liable to be seized by his creditors, what was to become of the great feudal families whose pride of lineage was only equalled by their recklessness and extravagance? The feudal landowners were quite shrewd enough to see, that a long family pedigree is cold comfort unless accompanied by a substantial rent-roll—nay, that it is practically impossible for the pedigree to be maintained without the estate. And so, banding all their forces together, they refused to pass Edition: current; Page: [145] the long series of excellent minor reforms on which the King had set his heart, unless he first consented to the solemn promulgation of the legality of entails. It is impossible to look at the famous Statute of Westminster the Second with a trained eye, and not to see the inconsistency of its first chapter (the so-called Statute De Donis) with all its subsequent forty-nine clauses. The latter are the work of skilled officials, guided by a King of great ability and honesty, and aim at the minute reform of the machinery of an antiquated system. The former is a bold and defiant assertion of conservative prejudice, veiled by the King’s advisers in specious language, which barely conceals the chagrin of the legislator in whose name it is produced. Broadly speaking, it authorised the creation of estates which should descend in unbroken succession down the line of inheritance prescribed in the original gift, so long as that line should last. The successive occupants of the land might pose as the owners, might draw the rents, and even cut down the timber; but instantly on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debts of his ancestor, or by any disposition made by him during his lifetime. Even an attainder for treason or felony was not to work a forfeiture of the estate; for, immediately upon the attainder, the culprit became dead in law, if not in fact, and his heir succeeded, in defiance both of the Crown and the creditors of the deceased. As, by the rule of primogeniture, the great bulk of such inheritances would go to the eldest sons, another obvious result (in the days in which wills of land were not recognised) would be, to starve the younger members of a landowner’s family for the benefit of the eldest. By a refinement of perversity, the estate, on failure of the issue of the first acquirer, was to revert, not to his collaterals or his creditors, but to the original donor, who thus reaped an unexpected windfall from the misfortunes of the purchaser’s family. The whole chapter is a monument of colossal family pride and feudal arrogance. Left to its natural results, it would have converted the English aristocracy into a close corporation of stupid and unprogressive grandees, filled with the pride of pedigree, starving Edition: current; Page: [146] on lands which they had neither the intelligence nor the legal power to develope, divided from their own kindred by feelings of injustice and oppression, and especially at daggers drawn with their expectant heirs, whose utmost neglect and disobedience they would be powerless to correct by threats of disherison. To suggest that Edward was a willing party to such an act of folly, is a monstrous calumny on his fair fame, and a gross outrage on the probabilities.

Happily, the Statute De Donis was not destined to endure. Though, like much of Edward’s legislation, it has never been formally repealed,1 it has, unlike much of that legislation, long been rendered a dead letter by the more cruel process of contemptuous evasion. In spite of the solemn provisions of the Statute, the principle laid down by it was defeated by the use of a legal fiction so indecently transparent, that it proves conclusively the unpopularity of the rule which it so successfully destroyed.2 Before the judges, without whose connivance such an evasion would have been impossible, allowed themselves to sanction it, we may be quite sure that they had satisfied themselves of the feebleness of the force behind the Statute. Unfortunately, it is at present quite impossible to say at what date the convenient fiction of the Edition: current; Page: [147] “Common Recovery” made good its footing in this connection. The classical instance occurred in the year 1472; but it is obvious, from the merely incidental way in which it is mentioned by the reporter, that the process was perfectly familiar at that time; and, as our knowledge of legal history increases, it may very well be discovered, that the Statute De Donis had even a shorter life than that usually attributed to it. At any rate, ever since the close of the fifteenth century, the unbreakable entail has ceased to exist, save in the few cases of land settled by Act of Parliament as the reward of public services, and—in the pages of the novelist.1

Only a very brief analysis can be attempted of the long and elaborately technical clauses which make up the rest of the great Statute of Westminster the Second. It was natural that an enactment avowedly based upon the evils brought to light by the Hundred Rolls, and the proceedings thereon, should contain a good deal about feudal abuses. The harsh proceedings of landlords who make use of the new legal procedure to extort their dues from their tenants, are checked; none but sworn bailiffs are to be employed in seizing goods for default of rent; and in such cases the tenants are to have full opportunity of testing the validity of the seizures in an independent court. The use of violence in the place of legal procedure is sternly prohibited. Further encroachments on the jurisdiction of the Crown are anticipated by the provision, that every judge who goes circuit is to be furnished by the Exchequer officials with a list of “franchises,” lawfully claimable by subjects within the counties of his commission; and any tampering with the returns by which such lists are brought up to date is to be punished as treason. On the other hand, the Statute shews every disposition to protect the feudal landowners in the exercise of their admitted rights; and, in one particular case, we may well think that it assists them at the expense of a class far less able to make its claims heard. The 46th clause of the Statute expressly authorizes Edition: current; Page: [148] the manorial lords, in continuance of the policy of the older Statute of Merton, to “approve,” i. e., bring under cultivation, any part of the common wastes which then formed such a valuable preserve for the humbler members of the villages. The established rights of the “commoners” are, of course, theoretically safeguarded; but there is no provision for the growth of population; and a lurid light is thrown on an otherwise obscure economic struggle, by the provision, that if hedges or dykes, erected in the course of approvement, are secretly destroyed, the adjoining townships are to be distrained, without proof of complicity, to make good the damage.

But Edward was not the man to reform his neighbour’s household while he left his own in disorder; and one of the most conspicuous features of the Statute of Westminster the Second is its elaborate provision against abuses by royal officials. Not only are the circuits of the judges carefully regulated, to prevent, on the one hand, oppressive multiplication of public burdens by too frequent sessions, and on the other, delay and injustice arising from insufficient attendance, but the more glaring abuses of official power are treated with a frankness which must have convinced the culprits that the King, at least, had his eyes open to their misdeeds. Sheriffs and bailiffs who start bogus prosecutions, with the object of extorting money, are to suffer imprisonment. Petty officials of local tribunals, who connive with feudal landowners to withdraw suits from the circuit courts, in order that they may oppress the poor in private, are to make fine to the King, and to pay threefold damages to the party injured. Whilst the duty of service on juries is asserted, the obvious danger of persecution and extortion, by the officials charged with the preparation of the lists, is carefully guarded against. A very significant clause requires the sheriffs to give sealed receipts for all writs delivered to them for execution. The fees of the hierarchy of royal officials, from the Marshal and the Chamberlain, down to the porters, cyrographers, and clerks, are carefully regulated. And, finally, a most wholesome clause lays it down emphatically, that no royal official may accept a share of, or purchase any interest Edition: current; Page: [149] in, property which is the subject-matter of dispute in the royal courts.

The Statute of Westminster the Second is, perhaps, mainly concerned with the conduct of the King’s local representatives in the country districts; but an almost contemporary group of Exchequer Ordinances made strict and much-needed reforms in the machinery of the central government. The cherished abuse of all revenue officials, from the days of Falkes de Bréauté to the days of Marlborough and Stephen Fox, viz., the retention of heavy balances in their private pockets, was sternly, though, it is to be feared, ineffectually forbidden by Edward’s rules. The employment of irresponsible private agents in the King’s business is strictly prohibited. Alleged deductions on account of expenses are to be carefully scrutinised by independent surveyors. Oppressive exaction, even of the King’s debts, is deprecated. And it is twice laid down, but, alas! ineffectually, that the special royal privileges of the Exchequer process, which were intended for the benefit of the King only, are not to be made use of by private persons.1 Leaving, for the moment, the eloquent comment on these regulations furnished by the proceedings of the year 1290, we return to our analysis of the Statute of Westminster the Second.

The third and last great object of this Statute may be said to have been, to apply to ordinary litigants the same rules of justice and moderation which, as we have seen, the King had imposed on the feudal nobility and his own officials. The farther back we go in legal history, the more clear does it become, that the abuse of legal process, by litigants and officials alike, is no new thing, but, on the contrary, an ancient evil which steadily, if slowly, tends to diminish. Nor is there anything in this discovery that should surprise us. Legal procedure grew out of a gradual substitution of argument for violence, and it bears the marks of its origin at every turn. Edition: current; Page: [150] The doing of “abstract justice” is, no doubt, an unwise ideal for any human tribunal to cherish. But long before the far more modest ideal of “substantial justice” arises in the minds of judges and legislators, the most exalted aim of courts of justice is to secure a “fair fight,” of a kind which shall not disturb public order. And a subtle or wealthy litigant no more refrains from profiting by tricks or bribery, than a modern general refrains from exercising his skill or resources because he knows that his adversary is a fool. Early reforms in the administration of justice are really made in the interests of sport, rather than in the interests of what we call justice. Even now, the fascination of a great lawsuit, for the mass of men, lies in the excitement of the duel between plaintiff and defendant, or between Crown and prisoner, rather than in any desire to see justice reproved or wickedness punished. In early society, the Court Day is one of the few excitements in a monotonous existence; and unfair tricks and outrageous oppression are gradually prohibited, just as wide bats and “no balls” have been prohibited in cricket—because they spoil sport. The details of the Statute show that Edward’s advisers thoroughly grasped this truth. They are far too technical to be set out here; but, broadly speaking, we may say, that they are aimed solely at preventing collusion, fraud, and delay, offences (as we should deem them) which are inconsistent with wholesome sport. The first obviously tends to deceive the spectators, and stands on the same footing as the “pulling” of a horse in the Derby. The second is always unpopular in a society which prefers the exercise of physical to mental force; and the third is obviously disappointing to people who have come a long way to see the performance, and are apt to lose the thread of the story if the intervals between the acts are too long. So the dowress, the life tenant, or other temporary occupant of land, who allows himself to be defeated in lawsuit by a collusive claimant, with a view to excluding his successor; the husband who surrenders his estate that it may not pay dower to his widow; the guardian who takes advantage of his ward’s minority to allow a stranger to exercise rights which properly belong to Edition: current; Page: [151] his ward; the man who warrants title to land and then refuses to defend it; the man who shams illness and lies in bed to delay proceedings, are put under heavy penalties; and their acts are not allowed to prejudice their intended victims.

Finally, the Statute contains, in its twenty-fourth chapter, a clause of which lawyers have long recognised the importance, but which lay historians are too apt to regard as mere technical jargon. Carefully concealed under the guise of an administrative regulation, the Statute lays it down, that the chancery officials, through whose hands must pass every royal writ, which was then, and still is, the normal beginning of every action in the royal courts, need no longer be guided by a strict adherence to precedent in the issue of these documents. It is sufficient if the remedy sought and the circumstances of the case are like those for which writs have previously been issued. In other words, principle, not precedent, is henceforth to guide the Chancellor and his officials in the issue of writs.

To a layman, impatient of the intricacies of legal history, such a direction may seem the most obvious piece of official platitude. In truth, it covered a daring attempt at completing, by a master stroke, a revolution which had been gradually proceeding during the twelfth and thirteenth centuries. Once more it is necessary to remind the reader, that the conception of the Crown, as the sole fountain of justice, is a very modern conception in legal history. The Crown in the later Middle Ages was but one of many competitors for the profitable business of judicature. The Church, the feudal nobles, the chartered boroughs, the merchant guilds, the shire and hundred moots, were all rivals, more or less formidable. And any premature attempt on the part of the Crown to claim universal and exclusive jurisdiction would assuredly have led to the fiercest opposition, even if it had not resulted in the dissolution of the State. Time was on the side of the Crown; but the King had to walk warily, and to be content for a long time with small things. Bit by bit, as chances offered, the royal officials filched the business of their rivals; and, as each claim was established, it was carefully enshrined Edition: current; Page: [152] as a precedent in that Register of Writs, which was one of the most precious possessions of the royal chancery. If an intending litigant could bring his case within the terms of a registered writ, well and good. If not, the King’s courts could do nothing for him. He might have the best case in the world from a moral, or even from a legal point of view. But his remedy, if any, lay elsewhere. With sorrowful hearts, for they disliked “turning away business,” the chancery officials regretted that they could not supply the desired article. The officials knew that their path was beset with dangers. The bold assertion of Henry II., that no lawsuit touching the title to freehold could be commenced without a royal writ,1 had played no mean part in stirring the baronial rising under John; and the claim had been solemnly renounced in the Great Charter.2 Now, perhaps, we are in a position to understand something of the audacity of the consimilis casus clause of the Statute of Westminster the Second, which, if acted upon to its full extent, would have left it open to ingenious chancery officials to discover analogies of existing precedents in the case of every intending litigant. But its comparative failure is another signal proof, that sound legislation is little more than the official consecration of enlightened public opinion, and that “fancy” or premature reforms are mere waste of words. The opposition to the full use of the clause came, not merely from feudal and clerical tribunals, but from the King’s own judges, who refused to recognise as valid writs which, in their view, departed too widely from precedent, no less than from the Parliaments of the fourteenth century, profoundly jealous of a power which, under the form of mere official documents, was really a power to declare the law of the land. The final victory of the royal jurisdiction was won, by the skilful use of fictions, by the rise of the Court of Chancery, and, finally, by the Reformation, which crushed the independence of the Church courts. Edition: current; Page: [153] It could not be achieved by a single clause in the Statute of Westminster the Second.

To the same year (1285), but to the autumn Parliament, belongs the credit of another great statute. The Statute of Westminster had been mainly concerned with the conduct of the ruling classes—the landowners and the royal officials. The Statute of Winchester is almost wholly occupied with the humbler ranks of the community. It is much shorter, far simpler, but even more comprehensive than its predecessor, and its purpose is clear as the day. It insists that every man, rich and poor alike, has active duties of citizenship to perform; that the good citizen is not merely to abstain from disorder and crime, sitting by with folded hands whilst others defy the law, but that he is bound to assist the forces of order and good government. Three simple but comprehensive duties are imposed upon every citizen by the Statute. He is to report every felon whose offence he may witness or hear of, and take an active part in pursuit of him. He must personally assist in maintaining the police of the country, by serving in the Watch,1 and by helping to clear the highways from the growth of underwood which affords such a convenient refuge for thieves and murderers. He must, at least so long as his years permit, provide and maintain himself with arms regulated according to his means, and, twice a year, present himself at the View of Armour held in his Hundred, that the King may know the condition of his militia forces. The Statute of Winchester is deeply interesting; it contains just that surviving fragment of the old Saxon system of local autonomy which was adopted by the strong central government of the Plantagenet Kings. It is silent, of course, as to the strictly popular elements in the old system; and it is probable that these disappeared rapidly before the increasing vigour of the central government. The two Constables of the Hundred mark the beginning of a new era in the history of Edition: current; Page: [154] English local government, in which local officials, though preserving a good deal of healthy independence, are brought into direct contact with the central administration. The genuineness of Edward’s interest in the Statute is shewn by the frequent appointment, in the succeeding years, of “Conservators of the Peace,” charged with enforcing the duties prescribed by the enactment; and this step seems to have been the direct forerunner of the great institution of the Justices of the Peace, which has a continuous history from the end of the fourteenth century.1 Obedience to the Statute was ultimately enforced by the simple, but very effective expedient, of holding the local unit responsible as a whole for the neglect of any of its inhabitants.

But the wondrous activity of the year 1285 did not end with the Statutes of Westminster and Winchester. In the same year, Edward defined, by the so-called Statute of Circumspecte Agatis, which is, in truth, nothing more than an official regulation, addressed to his judges respecting their behaviour in the diocese of Norwich, but which was accepted as a general declaration of royal policy, his attitude on the delicate question of ecclesiastical jurisdiction. The King had already taken up a decided position on the equally delicate subject of the acquisition of lands by the Church, when, in 1279, by the first Statute of Mortmain, he had announced his intention of rigidly enforcing the policy of the Great Charter. No person, cleric or lay, was, without royal license, to vest lands by way of perpetual succession in a monastery or other body not subject to the ordinary chances of death, upon pain of forfeiture of the land in question. This policy, commenced in the natural dislike of the feudal nobles to a practice which deprived them of the incidental windfalls of wardships, marriages, fines on admission of new tenants, and the like, was warmly seconded by the King, who saw the grave public danger of allowing land which represented a liability to military service to get into the hands of clerics who claimed exemption from such duties, and whose tenacious grip would Edition: current; Page: [155] effectually prevent its coming again into the market. For once, Edward and his barons were at one; and the Statute of 1279 was supplemented by certain useful clauses in the Statute of Westminster the Second. Moreover, this same enactment contained a salutary clause, compelling the clerical authority, which claimed a share in the goods of every man who died without making a will, to satisfy the debts of the deceased out of the assets coming to its hands. But the Statute Circumspecte Agatis makes no extreme claims. In all suits really spiritual, such as the enforcement of penances for deadly sin, the infliction of penalties for neglect of the fabric of a church or of a churchyard, the claim by a parson to tithes, mortuaries, oblations, or other customary dues, even claims to the proceeds of benefices (so long as the titles to the benefices themselves are not in dispute), and in actions for violence to a clerk, or for defamatory words, the King’s judges are not to interfere by the issue of a Prohibition. On the other hand, the King provides the judges with a list of matters properly belonging to the royal jurisdiction, and the list, long as it is, amply establishes the position so frequently insisted upon in these pages, that the jurisdiction of the royal tribunals was, even in Edward’s reign, a jurisdiction which was being slowly being built up, bit by bit, in the struggle of many rivals. A truly liberal regulation, variously attributed to the years 1286, 1290, and 1296, but probably belonging to the year 1290, provided for the contingency of a Prohibition being issued in a case in which the King’s courts did not provide a remedy. In such a case, the King’s official (the Chancellor or Chief Justice), having satisfied himself of the possibility of a failure of justice, is to write to the ecclesiastical judge, bidding him to proceed notwithstanding the Prohibition.

The last piece of legislation to be noticed, in this fruitful year (1285), is an Ordinance for the government of London, which seems to have been published just before its close. Evidently, Edward could not bring himself to forgive entirely the great city which had taken up arms against his father, and insulted his mother. He steadily refuses to recognise the Mayor as an essential feature of municipal existence. There Edition: current; Page: [156] may be a Mayor, but if the city is in the King’s hand there will be, instead, a Warden nominated by the King, who will care little for the views of the citizens. Taverns are only to be kept by fully qualified citizens, and are to be closed rigidly at curfew. No one is to teach fencing within the limits of the city. Each alderman is to hold frequent enquiries as to the presence of malefactors within his ward, and to send all whom he may discover, in safe custody, to the “Warden or Mayor.” No roysterer or other serious disturber of the peace is to be let out on bail, without the express warrant of the “Warden or Mayor;” and no broker is to carry on business until he has been presented and sworn before the “Warden or Mayor” to exercise his craft honestly. Incidentally, the ordinance is of interest, as revealing the fact that London, even in 1285, was already a cosmopolitan city, which attracted wanderers from all lands, some of whom “nothing do but run up and down through the streets, more by night than by day, and are well attired in clothing and array, and have their food of delicate meats and costly.”

The three glorious years, 1283-85, have only twice been rivalled for honourable activity in the annals of English statesmanship. Once in the sixteenth century, when the Reformation Parliament of Henry VIII. set itself, under the guidance of the King and his ministers, to the reconstruction of the national Church, and once in the nineteenth, when a spontaneous outburst of epoch-making legislation followed on the assembly of the first reformed Parliament, has the history of English law a parallel to offer. Had those three years been the utmost limits of Edward’s reign, he must have come down to us as one of the greatest and wisest of rulers, who surveyed the body politic in all its members, and laid his healing hand on every sore. But when we reflect that those years were but a fraction of a long reign of thirty-five years, and of a public life which covered at least half a century; when we call to mind, that the man who put forth the Statutes of Acton Burnel, Rhuddlan, Westminster the Second, and Winchester, was the hero of the Barons’ War, the Crusader, the framer of the Hundred Rolls and the guide of the Quo Warranto enquiry, the conqueror of Wales, Edition: current; Page: [157] the arbiter of Scotland, the organiser of the coast guard, the unflinching opponent of Papal aggression, and the summoner of the Model Parliament; when we remember, that his name was as great abroad as at home, that he ranked as the equal of Philip of France, and the superior of the Kings of Aragon, Castile, and Sicily, and of the princes of the Netherlands; when, finally, we discover, that the mighty statesman was also the faithful and affectionate son and husband, the wise and patient father, the patron of merit, and the supporter of true piety; then we shall realise that few such monarchs, nay, few such men, have held up the pattern to poor humanity. It is easy to say that Edward draws the credit which of right belongs to his ministers. Doubtless, much of the wisdom of his legislation was due to the advice of his officials, who knew exactly the weak points in the ship of State. But there is also much reason to believe that, among Edward’s troubles, were too often to be reckoned the follies of those who should have been his support and stay. Robert Burnel was a notorious profligate, even though he was Chancellor of England and Bishop of Bath and Wells. Antony Bek was a turbulent priest who, but for Edward’s steady watchfulness, might have proved a second Becket. Ralph Hengham, Thomas of Weyland, and their fellow judges were, as we shall see, heroes of the greatest judicial scandal in English history. Adam of Stratton, one of the chief officials of the Exchequer, was a corrupt scoundrel. If, in spite of these notorious exceptions, Edward managed to attract able and upright servants, the credit is surely due to him. A King usually gets the ministers he deserves.

So we part from the brightest chapter in Edward’s career. . . .

It would be a great mistake to suppose that Edward created, or intended to create, a Parliament in the sense in which we now understand the term. At the present day Parliament performs four great functions. It legislates, it ventilates grievances, it criticises the details of administration, it provides money. The last of these functions alone was assigned to it by Edward, at least so far as the elected members were concerned. The orthodox form of the summons Edition: current; Page: [158] to the shire and borough members, as settled by Edward’s ministers, and consecrated by six hundred years of practice, invites them “to do” what shall be ordained in the premises. There can be no doubt, in the circumstances of the case, that the phrase “to do” (ad faciendum) was merely a polite form of the cruder expression “to grant money,” and equally little doubt that, however long the phrase has been a mere fiction, it originally expressed a genuine truth. The clearest proof of this lies in the fact, that when the King really did desire the counsel of humble persons, he knew how to ask for it, as when he summoned an assembly of citizens in 1296 to advise him on the settlement of the borough of Berwick-on-Tweed. Not for nearly four hundred years did the elected members of Parliament make good their claim, except in times of revolution, to criticise the royal administration, or to cause the removal of the King’s ministers.

As a matter of fact, the elected members were far more anxious to establish another right, and their anxiety was wise. In all probability they had not the knowledge necessary to make them useful critics of the royal administration. But they were an admirable machinery for the collection of popular grievances. The right of presenting petitions to a monarch is so useful to the ruler himself, that it is very rarely denied, even by Oriental despots. Nothing is so dangerous to the security of a throne as the existence of secret discontent, which the sufferers despair of being able to bring to the royal ear. Long before Parliament came into existence, the English kings received petitions from their subjects. But the fate of the petitions was precarious. First the king had to be found; and only students of history can realise the activity and elusiveness of a medieval king. When found, the king had to be approached, often through a crowd of courtiers and officials, who were none too anxious to help the suppliant. Then there was the weary waiting for a reply. All these difficulties disappeared, as by magic, with the institution of Parliament. The Parliament was summoned to meet the king. Its presence could not be ignored. The distant petitioner could entrust his plaint to the hands of his elected knight or burgess. The wages of the knight or burgess Edition: current; Page: [159] could be stopped if he did not do his duty; for they were paid by his constituency, not by the royal treasury. Above all, the knights and burgesses soon found that they had a powerful weapon in their hands. They could refuse to grant taxes until the petitions which they had presented had been carefully considered and properly answered by the Crown. Thus the great constitutional principle, that redress of grievances precedes supply, came slowly to light in Edward’s reign. Thus, also, we see the meaning of the careful apportionment in the Michaelmas Parliament of 1280, and so often afterwards, of the numerous petitions presented at the assembling of Parliament, among special officials or specially appointed committees, and the appearance of the Receiver of Petitions as a regular Parliamentary official. In fact, the merest glance through the records of Edward’s Parliaments is sufficient to convince the student, that the main business of the session was the discussion and remedy of individual grievances, while specially difficult or specially “prerogative” lawsuits form the other great item of work. These latter, after a few years, constituted the sole contents of the coram rege Rolls of the King’s Bench; while the private petitions which play so large a part in the records of Edward’s Parliament disappeared from the rolls, and became the “private bills” of a later day. Thus the “public bills,” which are so scanty on the rolls of Edward’s time,—the bills or petitions promoted by the King’s ministers, or by the magnates, or by the “community” or “communities” of the realm,—at last became the staple material of the Parliament Rolls, being engrossed in their final shape on the Statute Roll of the Kingdom. For that was the final work accomplished by Parliament. It fused the thousand diverse interests of shires and boroughs, clergy and laity, magnates and humble folk, into one national whole; and made possible the existence of national legislation.

And so we come, finally, to Edward’s position as a legislator, and to the title which he has acquired, of “the English Justinian.” Like most other popular titles, it covers a certain amount of truth. Justinian, reigning over an empire whose civilisation had been growing for a thousand years, Edition: current; Page: [160] summed up the legal history of that civilisation in a series of works, which has become one of the priceless possessions of Western life. In the Digest, or Pandects, he summarised, by a ruthless process of excision and compression, the works of that famous body of Roman jurists which was the boast of the earlier Roman Empire. To this he added a Code, or collection of imperial statutes, the second edition of which has been accepted as an integral part of the Corpus Juris Civilis. These again he supplemented by an admirable little Primer of Law, or Institutes, founded on the similar treatise of a great Roman jurist, who had been dead three hundred years when Justinian ascended the throne. Finally, he himself contributed upwards of a hundred “Novels,” or new statutes, to the legislative activity of the Byzantine Empire. With the authority of one who still believed himself to be the world’s master, he forbade all criticism of his completed work, and all reference to other sources of authority. Within the covers of the Corpus Juris would be found, he insisted, an answer to every legal difficulty which could possibly arise to vex the minds of his subjects.

The work of Justinian was, in itself, a great work, and would, at all times, have commanded the respect of the world. But, owing to the special circumstances of its fate, it achieved a success such as has not been secured by more than a dozen other books in the world’s history. It became, in fact, the secular Bible of Christendom, second only in authority and influence to the Sacred Scriptures. The age which produced it was a literary age, the ages which followed it were rude and ignorant. Even in its decay, the mighty Roman Empire contrasted forcibly with the crowd of petty princedoms into which it broke up. The rude barbarian princes of Europe listened with awe to the pages which spoke to them of a civilisation so far above their own. At first the Corpus Juris was known to them only through hasty and crude adaptations, made by the orders of the conquering chieftains of the Teutonic invasions; but, gradually, as Europe settled down after the storms of the Dark Ages, the pure text was received into the homes of the new learning, and ardent students of the precious volumes carried the fame of their wisdom from the Edition: current; Page: [161] schools of Bologna, Pisa, and Padua, to the Courts of Europe. At first the Church had no word of blame for the new movement; for the Byzantine Empire, though schismatic according to later Western ideas, was a Christian Empire, and Justinian’s Code accorded due honour to Bishop and Church. And, even after the Church, pursuing her new policy of isolation, had forbidden her priests to study the “secular” or “imperial” laws, and had set up a formidable rival in the Canon Law, the enthusiasm of the students of the Roman Law abated not a whit. In fact, the sincere flattery of imitation was accorded to Justinian’s work by the Papal legislators, who compiled their Corpus Juris Canonici on that very model which the Corpus Juris Civilis had seemed to render inevitable. And, in drawing a sharp line between the professors of the Civil and the Canon Laws, the Papacy made one of its most fatal mistakes, by alienating from its service a body of men who, for the first time in the history of Western Christendom, made a serious inroad upon the intellectual monopoly of the Church.

As a very natural result, the nations of Western Europe, or rather their rulers, began, at the end of the Middle Ages, to look upon the Corpus Juris of Justinian, not merely as a monument of Roman greatness, but as a complete code of conduct for the guidance of secular affairs. Realising fully, that the barbarous local customs of their own peoples, and even the general maxims of feudalism, offered no satisfactory guides for the new world of commerce which was growing up around them, they turned more and more for the solution of new and complicated problems to the ever ready pages of the Digest and the Code. In some cases, as in Spain, the Roman Law spoke of a past which men were proud to contrast with the present. There, the compilation of the Siete Partidas, modelled on the seven years of the legal curriculum in the Roman Law schools, was the Christian’s badge of defiance to the hated but impressive Saracen. In others, as in Southern France, the continuity between the city life of the Roman provinces, and the city life of Gascony and Aquitaine, was at least a cherished tradition; and it was natural that Southern France should be a pays du droit écrit. Edition: current; Page: [162] But, that Germany and Scotland1 should accept the Corpus Juris of Justinian is, apparently, so wild a freak of history as to deserve at least a passing wonder. And this wonder is increased by the discovery that England, so closely allied with Scotland and Germany in the course of history, so like them in civilisation, so near them in geographical position, at the critical moment, rejected the Roman Law, and went off on an entirely different course. And this critical moment is the reign, or at least the lifetime, of Edward Plantagenet.

The explanation is twofold. It lies partly in the notion which men then held of Law, partly in the circumstances of English history. It would be very easy to wander gradually into speculations as to the nature of Law, which would land us in a hopeless quagmire of confusion. “Law” is one of those familiar words which everybody thinks he understands, until he tries to explain them. But, briefly speaking, the notion of Law, in the thirteenth century, vibrated between three different conceptions. One was, that Law was a divine or, at least, a philosophical ideal, which could only be discovered by great wisdom and patient study. Men ought to conform their lives to a high ideal. And, as the Scriptures dealt mainly with principles and generalities, a system of Law was necessary to define details. The supporters of this view urged the adoption of the Corpus Juris as the required ideal. Nowhere else, they urged, was it possible to find such profound wisdom applied to the details of secular affairs. The revival of learning tended to give immense weight to the writings of the ancients; and Europe in the thirteenth century was far too uncritical to distinguish between the dates of Aristotle, Virgil, and the Roman jurist, Gaius. They were all “ancients,” and that was enough.

But it is doubtful whether the Corpus Juris would ever have obtained its immense success, had it not itself ostensibly maintained a second conception of Law, which had always found favour with a certain very important, if limited, class Edition: current; Page: [163] of persons. “The pleasure of the Prince has the force of Law,” is one of the best-known maxims of the Institutes; and we can well imagine that the sentence would not be unacceptable from the lips of a courtier. As a fact, of course, the Corpus Juris of Justinian had been compiled in the days of a despotism the completest, though, it must be admitted, also the wisest, which the world has ever seen. In the system of the later Roman Empire, everything centred in the person of the Prince, and his will was final and absolute.

How near, how very near, England was to the adoption of a system based on the principles of the Corpus Juris, few but professed historians know. Two facts, small in themselves, but very significant, reveal the possibilities of the situation more clearly than pages of vague description. One is, that Edward for years maintained in his pay, as his trusted adviser, Francesco Accursi, himself a learned student and professor of the Roman Law, and the son of the still more famous Accursi, the author of the Great Gloss, and the contemporary and fellow townsman of that Azo to whom Bracton was indebted for so much of his language. The other is, that an anonymous, but highly popular law book, compiled in the late thirteenth century, figures the Law as issuing from the mouth of the king. Evidently, there were symptoms, in the thirteenth century, of a very powerful alliance between the philosophical and the military conceptions of Law.

The humble alternative of these two lofty notions is the view, that Law is nothing but the formal expression of the common sense of the average man, as evidenced by his daily practice. In other words, Law is the formal shape into which the customs of average men are translated by the processes of legislation and judicial decision. It may be said that the conduct of the average man is influenced unconsciously by the teachings of religion and philosophy, and, consciously, by the commands of authority. That may be so; and yet, just as it is true that the average man’s conduct never precisely conforms either to the ideals of the philosopher or to the wishes of authority, so it is true, that custom always Edition: current; Page: [164] differs substantially both from religious and philosophical teaching, and from the injunctions of the most minute arbitrary directions. But it is not true, as has been superficially argued, that a system of Law which, like the English, is based on custom, is merely licensed anarchy. On the contrary, it acts somewhat severely on all abnormal persons, whether they be, like thieves and murderers, mere laggards in the march of civilisation, or, on the other hand, men with advanced ideas, who make their fellow-men uncomfortable by too rapid progress. To use a very simple simile, drawn from the practice of the examiner, Law, on this principle, aims at reproducing the best works of the second class, leaving out of account the geniuses in the first rank, and the dullards in the third.

This conception of Law, it must be admitted, offers to the ruler of a country which adopts it a somewhat humble position. He cannot pose as the Heaven-sent deviser of an ideal system, which he imposes at the sword’s point upon a stupid and ignorant people. But his task is, for all that, an important one, none the less important that it makes no superhuman demands upon the intellect. To put it briefly, he has to collect, to harmonise, and to formulate. It is only in quite recent years that we have known how these humble processes went on in England during the lifetime of Edward. For the first two he can hardly claim the credit; the last has won him the title of the English Justinian.

One of the essential conditions of Law is uniformity. But this condition did not exist in the England of the early twelfth century, when the royal justices first began those circuits of the shires which have been one of the most important features in the domestic history of the country for the last seven hundred years. These justices found that each county, almost each district, had its own local customs, differing, ever so slightly perhaps, but still differing, from the customs of its neighbours. As more and more cases came before the royal courts, as more and more juries delivered their verdicts in answer to royal enquiries, more and more clear did this truth become. But, on the other hand, more and more did the royal officials come to know of the customs Edition: current; Page: [165] of the land. The clerkly skill of the Norman and the Angevin official made ever more and more plain the habits and practices of the people. Greater and greater grew the collection of Plea Rolls which accumulated in the King’s Exchequer. Thus the materials for a Common Law were collected.

Then came a man with a great love of order and symmetry, a man capable of casting the work of the previous century into a compact and harmonious form. This man was Henry of Bratton, or, as we call him, “Bracton.” No man could have been better fitted for the task. In spite of his borrowings from Azo, and his references to Digest and Institutes, he did not, perhaps, know very much of Roman Law. But he knew something of it, and, as a cathedral chancellor, he must also have known something of the Canon Law. But, above all, as an experienced royal justice, deeply learned in the practice of the royal courts, he had unique qualifications for his task. The vital point in his work is that, whilst occasionally borrowing the language and arrangement of the Roman Law, whilst courtly in his references to the King, and civil to his brother ecclesiastics, he draws the body and bones of his work from the records of the Bench and circuit courts. This fact, long suspected from internal evidence by intelligent students, has been finally established, within the last twenty years, by the discovery of the very materials used by Bracton in writing his great book. Having access, by virtue of his official position, to the Plea Rolls, he made from them a collection of some two thousand cases,1 and from this collection he drew the rules which compose his book. For a century the work of assimilation had been going on throughout England, no doubt largely through the efforts of the justices themselves. A nation had been slowly born, with a consciousness of unity, and a willingness to give up minor differences for the sake of that unity. How much of the process was due to Bracton, how much to his predecessors, it is not possible to say, though, in many cases, we know Edition: current; Page: [166] the very names of the men to whom he attributes those decisions which have become part of English Law. But to him, at least, is due the credit of having cast into harmonious and enduring shape a huge mass of material which had been slowly accumulating. Still the different local customs lingered on, in the local courts of the manor, the borough, and the shire. But these were every day dwindling beside the vigorous growth of the royal courts; and for the royal courts there was now a Common Law, a law common to all the realm.

Bracton’s book was given to the world only a few years before Edward ascended the throne. Edward’s task was to give it free play. For the first time, English Law could be thought of as a whole, as a body which could grow and develop. Bracton’s treatise had stated, not only the rules of conduct themselves, but the legal procedure by which they could be enforced. In so doing, it had revealed some anomalies and many imperfections. These it was the peculiar province of the King to remedy; for the courts which they affected were his courts. It is astonishing how much of Edward’s celebrated legislation is concerned with matters of procedure. In the substance of the Law there were still moot points. These the King could settle, as he did in the case of De Donis (before noticed), where he had to take the reactionary side, and in the case of Quia Emptores (before noticed), where progress won a decided victory. But, perhaps unconsciously, he did the greatest thing for the future of English Law when he called into existence the National Parliament. For, better even than the judges on circuit, the elected members of Parliament knew the customs of the people, and, with the aid of their counsel and advice, future kings could formulate from time to time the rules of English Law. And thus provision was made for the perpetual continuance of that process of collection which had been begun by the King’s justices, and which had to be done over and over again if Law was to keep abreast of national progress. Not until Edward is dead do we find in the statute book the honoured formula which describes the King as enacting “with the advice and consent of the lords spiritual and temporal Edition: current; Page: [167] and the commons in Parliament assembled;”1 but this consummation became clearly inevitable, from the day on which the Model Parliament assembled at Westminster in November, 1295. To explain all that it means it would be necessary to write the comparative history of the States of Western Europe, and to show how the history of England has been so different from the history of France, of Italy, of Germany, and of Spain. Briefly put, to close an already overlong chapter, it meant the creation of that national and political unity which, until quite modern days, was the highest achievement of European statesmanship; it meant the appearance on the world’s horizon of that new star, which was to light the nations on their march to freedom. For the ideals and principles adopted by the English people under the rule of Edward, were not merely the ideals and principles which nerved the arm of the Puritan soldier, and raised the banner of defiance against Napoleon. They were the ideals and principles which, despite the excesses of the French Revolution, struck the fetters of tyranny from the limbs of Western Europe, and breathed the spirit of justice and freedom into the mighty Commonwealths of America and Australia.

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6.: ENGLISH LAW AND THE RENAISSANCE1

WERE we to recall to life the good Sir Robert Rede who endowed lectures in this university, we might reasonably hope that he would approve and admire the fruit that in these last years has been borne by his liberality. And then, as in private duty or private interest bound, I would have him speak thus: “Yes, it is marvellous and more than marvellous this triumph of the sciences that my modest rent-charge stimulates you annually to record; nor do I wonder less at what my lecturers have said of humane letters and the fine arts, of the history of all times and of my time, of Erasmus whom I remember, and that age of the Renaissance (as you call it) in which (so you say) I lived. But there is one matter, one science (for such we accounted it) of which they seem to have said little or nothing; and it happens to be a matter, a science, in which I used to take some interest and which I endeavoured to teach. You have not, I hope, forgotten that I was not only an English judge, but, what is more, a reader in English law.”1

Six years ago a great master of history, whose untimely death we are deploring, worked the establishment of the Rede lectures into the picture that he drew for us of The Early Renaissance in England.2 He brought Rede’s name into contact with the names of Fisher and More. That, no doubt, is the right environment, and this pious founder’s care for the humanities, for logic and for philosophy natural and Edition: current; Page: [169] moral was a memorable sign of the times. Nevertheless the fact remains that, had it not been for his last will and testament, we should hardly have known Sir Robert except as an English lawyer who throve so well in his profession that he became Chief Justice of the Common Bench. And the rest of the acts of Robert Rede—we might say—and the arguments that he urged and the judgments that he pronounced, are they not written in queer old French in the Year Books of Henry VII and Henry VIII? Those ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine.

Perhaps we should hardly believe if we were told for the first time that in the reign of James I a man who was the contemporary of Shakespeare and Bacon, a very able man too and a learned, who left his mark deep in English history, said, not by way of paradox but in sober earnest, said repeatedly and advisedly, that a certain thoroughly medieval book written in decadent colonial French was “the most perfect and absolute work that ever was written in any human science.”3 Yet this was what Sir Edward Coke said of a small treatise written by Sir Thomas Littleton, who, though he did not die until 1481, was assuredly no child of the Renaissance.

I know that the names of Coke and Littleton when in conjunction are fearsome names or tiresome, and in common honesty I am bound to say that if you stay here you will be wearied. Still I feel that what is at fault is not my theme. A lecturer worthy of that theme would—I am sure of it—be able to convince you that there is some human interest, and especially an interest for English-speaking mankind, in a question which Coke’s words suggest:—How was it and why was it that in an age when old creeds of many kinds were crumbling and all knowledge was being transfigured, in an age which had revolted against its predecessor and was fully conscious of the revolt, one body of doctrine and a Edition: current; Page: [170] body that concerns us all remained so intact that Coke could promulgate this prodigious sentence and challenge the whole world to contradict it?4 I have not the power to tell and you to-day have not the time to hear that story as it should be told. A brief outline of what might be said is all that will be possible and more than will be tolerable.

Robert Rede died in January, 1519. Let us remember for a moment where we stand at that date. The Emperor Maximilian also was dying. Henry VIII was reigning in England, Francis I in France, Charles I in Spain, Leo X at Rome. But come we to jurisprudence. Is it beneath the historic muse to notice that young Mr. More, the judge’s son, had lately lectured at Lincoln’s Inn?5 Perhaps so. At all events for a while we will speak of more resonant exploits. We could hardly (so I learn at second-hand) fix a better date than that of Rede’s death for the second new birth of Roman law. More’s friend Erasmus had turned his back on England and was by this time in correspondence with two accomplished jurists, the Italian Andrea Alciato and the German Ulrich Zäsi. They and the French scholar Guillaume Budé were publishing books which mark the beginning of a new era.6 Humanism was renovating Roman law. Edition: current; Page: [171] The medieval commentators, the Balduses and Bartoluses, the people whom Hutten and Rabelais7 could deride, were in like case with Peter Lombard, Duns Scotus and other men of the night. Back to the texts! was the cry, and let the light of literature and history play upon them.8 The great Frenchmen who were to do the main part of the work and to make the school of Bourges illustrious were still young or unborn; Cujas was born in 1522; but already the advanced guard was on the march and the flourish of trumpets might be heard.9 And then in 1520—well, we know what happened Edition: current; Page: [172] in 1520 at Wittenberg, but perhaps we do not often remember that when the German friar ceremoniously and contumeliously committed to the flames some venerated law-books—this, if an event in the history of religion, was also an event in the history of jurisprudence. A current of new life was thrilling through one Corpus Juris;10 the other had been sore stricken, and, if it escaped from violent death, might perish yet more miserably of a disease that becomes dangerous at the moment when it is discovered.

A few years afterwards an enlightened young humanist, of high rank and marked ability, a man who might live to be pope of Rome or might live to be king of England, was saying much evil of the sort of law that Rede had administered and taught; was saying that a wise prince would banish this barbaric stuff and receive in its stead the civil law of the Romans. Such, so we learn from one of his friends, was the talk of Reginald Pole, and a little knowledge of what was happening in foreign countries is enough to teach us that such talk deserves attention.11

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This was the time when Roman law was driving German law out of Germany or forcing it to conceal itself in humble forms and obscure corners.12 If this was the age of the Renaissance and the age of the Reformation, it was also the age of the “Reception.” I need not say that the Reception—the Edition: current; Page: [174] reception of Roman law—plays a large part in modern versions of German history, and by no means only in such as are written by lawyers. I need not say that it has been judged from many different points of view, that it has been connected by some with political, by others with religious Edition: current; Page: [175] and by yet others with economic changes. Nor need I say that of late years few writers have had a hearty good word for the Reception. We have all of us been nationalists of late. Cosmopolitanism can afford to await its turn.13

Then we observe that not long after Pole had been advocating a Reception, his cousin King Henry, whose word was law supreme in church and state, prohibited the academic study of one great and ancient body of law—the canon law14—and encouraged the study of another—the civil Edition: current; Page: [176] law—by the foundation of professorships at Oxford and Cambridge. We observe also that his choice of a man to fill the chair at Cambridge fell on one who was eminently qualified to represent in his own person that triad of the three R’s—Renaissance, Reformation and Reception. We know Professor Thomas Smith as a humanist, an elegant scholar with advanced opinions about the pronunciation of Greek. We know the Reverend Thomas Smith as a decided, if cautious, protestant whose doings are of some interest to those who study the changeful history of ecclesiastical affairs. Then we know Dr. Thomas Smith as a doctor in law of the university of Padua, for with praiseworthy zeal when he was appointed professor at Cambridge he journeyed to the fountain-head for his Roman law and his legal degree.15 Also he visited those French universities whence a new jurisprudence was beginning to spread. He returned to speak to us in two inaugural lectures of this new jurisprudence: to speak with enthusiasm of Alciatus and Zasius:16 to speak hopefully of the future that lay before this conquering science—the future that lay before it in an England fortunately ruled by a pious, wise, learned and munificent Prince. Then in Edward VI’s day Thomas Smith as a Master of Requests was doing justice in a court whose procedure was described as being “altogether according to the process of summary causes in the civil law” and at that moment this Court of Requests and other courts with a like procedure seemed to have time, reason and popularity upon their side.17 Altogether, Edition: current; Page: [177] the Rev. Prof. Dr. Sir Thomas Smith, Knt., M. P., Dean of Carlisle, Provost of Eton, Ambassador to the Court of France and Secretary of State to Queen Elizabeth was a man of mark in an age of great events. Had some of those events been other than they were, we might now be saying of him that he played a prominent part in Renaissance, Reformation and Reception, and a part characteristic of that liberal and rational university of which he was professor, public orator and vice-chancellor.18

Some German historians, as you are aware, have tried Edition: current; Page: [178] to find or to fashion links that will in some direct and obvious manner connect the Reformation and the Reception. In one popular version of the tale protestantism finds a congenial ally in the individualism and capitalism of the pagan Digest.19 In truth I take it that the story is complex. Many currents and cross-currents were flowing in that turbid age. It so happens that in this country we can connect with the heresiarchal name of Wyclif a proposal for the introduction of English law, as a substitute for Roman law, into the schools of Oxford and Cambridge.20 On the other hand, the desire Edition: current; Page: [179] for a practical Reception of the civil law is ascribed to the future cardinal, who in his last days reconciled England for a moment, not with the Rome of the Digest, but with the Rome of the Decretals. And by the way we may notice that when the cardinal was here upon his reconciliatory errand he had for a while as his legal adviser one of the most learned lawyers of that age, the Spaniard Antonio Agustin. But we in England take little notice of this famous man, who, so foreigners assure us now-a-days, began the historical study of the canon law and knew more about the false Isidore than it was comfortable for him to know.1 Our Dr. Smith was Edition: current; Page: [180] protestant enough; but his Oxford colleague Dr. John Story showed zeal in the cremation of protestants, helped Alva (so it is said) to establish the Inquisition in the Netherlands, was hanged as a traitor at Tyburn in 1571 and beatified as a martyr at Rome in 1886. Blessed John Story was zealous; but his permanent contribution to the jurisprudence of his native land was (so far as I am aware) an early precedent for the imprisonment of a disorderly member by the House of Commons, and a man may be disorderly without being a jurist.22 Ulrich Zäsi went part of the way with Luther; but then stayed behind with Erasmus.23 He had once compared the work that he was doing for the Corpus Juris with the work that Luther was doing for the Bible.24 The great Frenchmen answered the religious question in different ways. One said “That has nothing to do with the praetor’s edict.” His rivals charged him with a triple apostasy.25 Three or Edition: current; Page: [181] four of them were stout huguenots, and we must not forget that Calvin and Beza had both been at Bourges and had both studied the civil law. Melanchthon also was a warm admirer of Roman jurisprudence.26 It is reported that Elizabeth invited Francis Hotman to Oxford.27 He was protestant enough, and fierce enough to exchange letters with a tiger.28 Edition: current; Page: [182] He is best known to English law-students as the man who spoke light words of Littleton and thus attracted Coke’s thunderbolt;29 but if he thought badly of Littleton, he thought badly of Tribonian also, and would have been the last man to preach a Reception. Professor Alberigo Gentili of Oxford, he too was protestant enough and could rail at the canonists by the hour; but then he as an Italian had a bitter feud with the French humanizers, and stood up for the medieval gloss.30

Plainly the story is not simple and we must hurry past it. Still the perplexity of detail should not obscure the broad truth that there was pleasant reading in the Byzantine Code Edition: current; Page: [183] for a king who wished to be monarch in church as well as state: pleasanter reading than could be found in our ancient English law-books. Surely Erastianism is a bad name for the theory that King Henry approved: Marsilianism seems better, but Byzantinism seems best.31 A time had come when, medieval spectacles being discarded, men could see with the naked eye what stood in the Code and Novels of Constantinople. In 1558 on the eve of an explosive Reformation “the Protestants of Scotland,” craving “remedy against the tyranny of the estate ecclesiastical,” demanded that the controversy should be judged by the New Testament, the ancient fathers “and the godly approved laws of Justinian the Edition: current; Page: [184] emperor.”32 University-bred jurists, even such as came from an oldish school, were very serviceable to King Henry in the days of the great divorce case and the subsequent quarrel with the papacy. Tunstall, Gardiner, Bonner, Sampson and Clerk, to say nothing of the Leghs and Laytons, were doctors of law and took their fees in bishoprics and deaneries.33 Certainly they were more conspicuous and probably they Edition: current; Page: [185] were much abler men than those who were sitting in the courts of the common law. With the one exception of Anthony Fitzherbert, the judges of Henry’s reign are not prominent in our legal history, and we have little reason for attributing deep knowledge of any sort of law to such chancellors as Audley, Wriothesley and Rich. I doubt our common lawyers easily accommodated themselves to ecclesiastical changes. Some years after Elizabeth’s accession the number of barristers who were known to the government as “papists” was surprisingly large and it included the great Plowden.34 But we must go back to our main theme.

A Reception there was not to be, nor dare I say that a Reception was what our Regius Professor or his royal patron desired. As to Smith himself, it is fairly evident that some time afterwards, when he had resigned his chair and was Elizabeth’s ambassador at the French court, he was well content to contrast the public law of England with that of “France, Italy, Spain, Germany and all other countries which” to use his words “do follow the civil law of the Romans compiled by Justinian into his Pandects and Code.”35 The little treatise on the Commonwealth of England which Edition: current; Page: [186] he wrote at Toulouse in 1565—a remarkable feat, for he had no English books at hand36 —became a classic in the next century, and certainly did not underrate those traditional, medieval, Germanic and parliamentary elements which were still to be found in English life and law under the fifth and last of the Tudors. Nevertheless I think that a well-equipped lecturer might persuade a leisurely audience to perceive that in the second quarter of the sixteenth century the continuity of English legal history was seriously threatened.37

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Unquestionably our medieval law was open to humanistic attacks. It was couched partly in bad Latin, partly in worse French. For the business Latin of the middle age there is much to be said. It is a pleasant picture that which we have of Thomas More puzzling the omniscient foreigner by the question “An averia carucae capta in withernamio sunt irreplegiblia.”38 He asked a practical question in the only Latin in which that question could have been asked without distortion. Smith’s acute glance saw that withernamium must have something to do with the German wiedernehmen; for among his other pursuits our professor had interested himself in the study of English words.39 But this business Latin was a pure and elegant language when compared with what served our lawyers as French. Pole and Smith might well call it barbarous; that it was fast becoming English was its one redeeming feature. You are likely to know what I must not call the classical passage: it comes from the seventeenth century. In all the Epistolae Obscurorum Virorum there is nothing better than the report which tells how one of Sir Robert Rede’s successors was assaulted by a prisoner “que puis son condemnation ject un brickbat a le dit justice que narrowly mist.”40 It is as instructive as it is Edition: current; Page: [188] surprising that this jargon should have been written in a country where Frenchmen had long been regarded as hereditary foes. This prepares us for the remark that taught law is tough law. But when “Dunce” had been set in Bocardo (and it was a doctor of the civil law who set him there41), why should the old law-books be spared? They also were barbarous; they also were sufficiently papistical.

Turning to a more serious aspect of affairs, it would not I think be difficult to show that the pathway for a Reception was prepared. Not difficult but perhaps wearisome. At this point it is impossible for us to forget that the year 1485, if important to students of English history for other reasons, is lamentably important for this reason, that there Dr. Stubbs laid down his pen. In his power of marshalling legal details so as to bring to view some living principle or some phase of national development he has had no rival and no second among Englishmen. Howbeit, we may think of the subjected church and the humbled baronage, of the parliament which exists to register the royal edicts, of the English Lex Regia which gives the force of statutes to the king’s proclamations,42 of the undeniable faults of the common law, of its dilatory methods, of bribed and perjured juries, of the new courts which grow out of the King’s Council and Edition: current; Page: [189] adopt a summary procedure devised by legists and decretists. Might not the Council and the Star Chamber and the Court of Requests—courts not tied and bound by ancient formalism,—do the romanizing work that was done in Germany by the Imperial Chamber Court, the Reichskammergericht?43 This was the time when King Henry’s nephew James V was establishing a new court in Scotland, a College of Justice, and Scotland was to be the scene of a Reception.44

It seems fairly certain that, besides all that he effected, Henry had at times large projects in his mind: a project for a great college of law (possibly a College of Justice in Edition: current; Page: [190] the Scotch sense), a project for the reformation of the Inns of Court, which happily were not rich enough to deserve dissolution,45 also perhaps a project for a civil code as well as the better known project for a code ecclesiastical. In Edward VI’s day our Regius and German Professor of Divinity, Dr. Martin Butzer, had heard, so it seems, that such a scheme had been taken in hand, and he moved in circles that were well informed. He urged the young Josiah to go forward in the good work; he denounced the barbarism of English law and (to use Bentham’s word) its incognoscibility.46 The new ecclesiastical code, as is generally known, Edition: current; Page: [191] was never enacted; but we know equally well that the draft is in print. Its admired Latinity is ascribed to Prof. Smith’s immediate successor, Dr. Walter Haddon. I take it that now-a-days few English clergymen wish that they were living—or should I not say dying?—under Dr. Haddon’s pretty phrases.47 Codification was in the air. Both in France and in Germany the cry for a new Justinian was being raised, and perhaps we may say that only because a new Justinian was not forthcoming, men endeavoured to make the best that they could of the old.48 How bad that best would be Francis Hotman foretold.

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And then we see that in 1535, the year in which More was done to death, the Year Books come to an end: in other words, the great stream of law reports that has been flowing for near two centuries and a half, ever since the days of Edward I, becomes discontinuous and then runs dry. The exact significance of this ominous event has never yet been duly explored; but ominous it surely is.49 Some words that Edition: current; Page: [193] once fell from Edmund Burke occur to us: “To put an end to reports is to put an end to the law of England.50 Then in 1547 just after King Henry’s death a wail went up from “divers students of the common laws.” The common laws, they said, were being set aside in favour of “the law civil” insomuch that the old courts had hardly any business.51 Ten Edition: current; Page: [194] years later, at the end of Mary’s reign, we read that the judges had nothing to do but “to look about them,” and that for the few practitioners in Westminster Hall there was Edition: current; Page: [195] “elbow room enough.”52 In criminal causes that were of any political importance an examination by two or three doctors of the civil law threatened to become a normal part of our procedure.53 In short, I am persuaded that in the middle years of the sixteenth century and of the Tudor age the life of our ancient law was by no means lusty.

And now we may ask what opposing force, what conservative principle was there in England? National character, the genius of a people, is a wonder-working spirit which stands at the beck and call of every historian. But before we invoke it on the present occasion we might prudently ask our books whether in the sixteenth century the bulk of our German cousins inherited an innate bias towards what they would have called a Welsh jurisprudence. There seems to be plentiful evidence that the learned doctores iuris who counselled the German princes and obtained seats in the courts were cordially detested by the multitude. In modern times they often have to bear much blame for that terrible revolt which we know as the Peasants’ War.54 No doubt there were Edition: current; Page: [196] many differences between England and Germany, between England and France, between England and Scotland.55 Let Edition: current; Page: [197] us notice one difference which, if I am not mistaken, marked off England from the rest of the world. Medieval England had schools of national law.

The importance of certain law schools will be readily conceded, even to one who is in some sort officially bound to believe that law schools may be important. A history of civilization would be miserably imperfect if it took no account of the first new birth of Roman law in the Bologna of Irnerius. Indeed there are who think that no later movement,—not the Renaissance, not the Reformation—draws a stronger line across the annals of mankind than that which is drawn about the year 1100 when a human science won a place beside theology. I suppose that the importance of the school of Bourges would also be conceded. It may be worth our while to remark that the school of Bologna had a precursor in the school of Pavia, and that the law which was the main subject of study in the Pavia of the eleventh century was not Roman law but Lombard law: a body of barbaric statutes that stood on one level with the Anglo-Saxon laws of the same age. This I say, not in order that I may remind you what sort of law it was Edition: current; Page: [198] that Archbishop Lanbranc studied when as a young man he was a shining light in the school of Pavia, but because this body of Lombard law, having once become the subject of systematic study, showed a remarkable vitality in its struggle with Roman jurisprudence. Those Italian doctors of the middle age who claimed for their science the fealty of all mankind might have been forced to admit that all was not well at home. They might call this Lombard law ius asininum and the law of brute beasts, but it lingered on, and indeed I read that it was not utterly driven from the kingdom of Naples until Joseph Bonaparte published the French code. Law schools make tough law.56

Very rarely do we see elsewhere the academic teaching of any law that is not Roman: imperially or papally Roman. As a matter of course the universities had the two legal faculties, unless, as at Paris, the Pope excluded the legists from an ecclesiastical preserve. The voice of John Wyclif pleading that English law was the law that should be taught in English universities was a voice that for centuries cried in the wilderness. It was 1679 before French law obtained admission into the French universities.57 It was 1709 before Georg Beyer, a pandectist at Wittenberg, set a precedent for lectures on German law in a German university.58 Edition: current; Page: [199] It was 1758 before Blackstone began his ever famous course at Oxford. The chair that I cannot fill was not established until the transatlantic Cambridge was setting an example to her elderly mother.59 But then, throughout the later middle age English law had been academically taught.

No English institutions are more distinctively English than the Inns of Court; of none is the origin more obscure. We are only now coming into possession of the documents whence their history must be gathered, and apparently we shall never know much of their first days.60 Unchartered, unprivileged, unendowed, without remembered founders, these groups of lawyers formed themselves and in course of time evolved a scheme of legal education: an academic scheme of the medieval sort, oral and disputatious. For good and ill that was a big achievement: a big achievement in the history of Edition: current; Page: [200] some undiscovered continents. We may well doubt whether aught else could have saved English law in the age of the Renaissance. What is distinctive of medieval England is not parliament, for we may everywhere see assemblies of Estates, nor trial by jury, for this was but slowly suppressed in France. But the Inns of Court and the Year Books that were read therein, we shall hardly find their like elsewhere. At all events let us notice that where Littleton and Fortescue lectured, there Robert Rede lectures, Thomas More lectures, Edward Coke lectures, Francis Bacon lectures, and highly technical were the lectures that Francis Bacon gave. Now it would, so I think, be difficult to conceive any scheme better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished lawyer to read public lectures. That was what I meant when I made bold to say that Robert Rede was not only an English judge but “what is more” a reader in English law.

Deus bone! exclaimed Professor Smith in his inaugural lecture, and what excited the learned doctor to this outcry was the skill in disputation shown by the students of English law in their schools at London. He was endeavouring to persuade his hearers that in many ways the study of law would improve their minds. If, he urged, these young men, cut off as they are from all the humanities, can reason thus over their “barbaric and semi-gallic laws,” what might not you, you cultivated scholars do if you studied the Digest and Alciatus and Zasius? And then the professor expressed a hope that he might be able to spend his vacation in the Inns of Court.61 His heart was in the right place: in a school Edition: current; Page: [201] of living law. Even for the purposes of purely scientific observation the live dog may be better than the dead lion.

When the middle of the century is past the signs that English law has a new lease of life become many. The medieval books poured from the press, new books were written, the decisions of the courts were more diligently reported, the lawyers were boasting of the independence and extreme antiquity of their system.62 We were having a little Renaissance of our own: or a gothic revival if you please. The Edition: current; Page: [202] Court of Requests in which Prof. Smith and Prof. Haddon had done justice was being tried for its life. Its official defender was, we observe, Italian by blood and Parisian by degree: Dr. Adelmare, known to Englishmen as Sir Julius Caesar.63 That wonderful Edward Coke was loose. The medieval tradition was more than safe in his hands. You may think it pleasant to turn from this masterful, masterless man to his great rival. It is not very safe to say what Thomas More did not know, less safe to say what was unknown to Francis Bacon, but I cannot discover that either of these scholars, these philosophers, these statesmen, these law reformers, these schemers of ideal republics, these chancellors of the realm, these law lecturers, had more than a bowing acquaintance with Roman law.

If Reginald Pole’s dream had come true, if there had been a Reception—well, I have not the power to guess and you have not the time to hear what would have happened; but I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and parliament, but it would hardly have been that struggle for the medieval, the Lancastrian, constitution in which Coke and Selden and Prynne and other ardent searchers of mouldering records won their right to be known to school-boys. In 1610 when the conflict was growing warm a book was burnt by the common hangman: it was written by an able man in whom Cambridge should take some pride, Dr. Cowell, our Regius Professor, and seemed to confirm the suspicion that Roman law and absolute monarchy went hand in hand.64

The profit and loss account would be a long affair. I must make no attempt to state it. If there was the danger of barbarism and stupidity on the one side, there was the danger of pedantry on the other: the pedantry that endeavours to Edition: current; Page: [203] appropriate the law of another race and galvanizes a dead Corpus Juris into a semblance of life. Since the first of January 1900 the attempt to administer law out of Justinian’s books has been abandoned in Germany. The so-called “Roman-Dutch” law of certain outlying parts of the British Empire now stands alone,65 and few, I imagine, would foretell for it a brilliant future, unless it passes into the hand of the codifier and frankly ceases to be nominally Roman. Let us observe, however, that much had been at stake in the little England of the sixteenth century.

In 1606 Coke was settling the first charter of Virginia.66 In 1619 elected “burgesses” from the various “hundreds” of Virginia were assembling, and the first-born child of the mother of parliaments saw the light.67 Maryland was granted to Lord Baltimore with view of frankpledge and all that to view of frankpledge doth belong, to have and to hold in free and common socage as of the castle of Windsor in the county of Berks, yielding yearly therefor two Indian arrows of those parts on the Tuesday in Easter week.68 The port and Edition: current; Page: [204] island of Bombay in one hemisphere,69 and in another Prince Rupert’s land stretching no one knew how far into the frozen north were detached members of the manor of East Greenwich in the county of Kent.70 Nearly twenty-five hundred copies of Blackstone’s Commentaries were absorbed by the colonies on the Atlantic seaboard before they declared their independence. James Kent, aged fifteen, found a copy, and (to use his own words) was inspired with awe;71 John Marshall found a copy in his father’s library;72 and the common law went straight to the Pacific.73

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A hundred legislatures—little more or less—are now building on that foundation: on the rock that was not submerged. We will not say this boastfully. Far from it. Standing at the beginning of a century and in the first year of Edward VII, thinking of the wide lands which call him king, thinking of our complex and loosely-knit British Commonwealth, we cannot look into the future without serious misgivings. If unity of law—such unity as there has been—disappears, much else that we treasure will disappear also, and (to speak frankly) unity of law is precarious. The power of the parliament of the United Kingdom to legislate for the colonies is fast receding into the ghostly company of legal fictions. Men of our race have been litigious; the great Ihering admired our litigiousness;74 it is one of our more amiable traits; but it seems to me idle to believe that distant parts of the earth will supply a tribunal at Westminster with enough work to secure uniformity. The so-called common law of one colony will swerve from that of another, and both from that of England. Some colonies will have codes.75 If English lawyers do not read Australian reports (and they cannot read everything), Australian lawyers will not much longer read English reports.

Still the case is not yet desperate. Heroic things can be done by a nation which means to do them: as witness the Edition: current; Page: [206] mighty effort of science and forbearance which in our own time has unified the law of Germany, and, having handed over the Corpus Juris to the historians, has in some sort undone the work of the Reception.76 Some venerable bodies may understand the needs of the time, or, if I may borrow a famous phrase, “the vocation of our age for jurisprudence and legislation.” Our parliament may endeavour to put out work which will be a model for the British world. It can still set an example where it can no longer dictate, and at least it might clear away the rubbish that collects round every body of law. To make law that is worthy of acceptance by free communities that are not bound to accept it, this would be no mean ambition. Nihil aptius, nihil efficacius ad plures provincias sub uno imperio retinendas et fovendas.77 But it is hardly to parliament that our hopes must turn in the first instance. Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was Edition: current; Page: [207] assumed when English law schools saved, but isolated, English law in the days of the Reception. In that case, the glory of Bourges, the glory of Bologna, the glory of Harvard may yet be theirs.78

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7.: ROMAN LAW INFLUENCE IN CHANCERY, CHURCH COURTS, ADMIRALTY, AND LAW MERCHANT1

1.: Roman Law in Coke

SIR E. COKE in his Institutes, (themselves Roman in name), takes a decided position as to the authority of the Civil law. He says: “Our common laws are aptly and properly called the laws of England, because they are appropriated to this kingdom of England . . . and have no dependency upon any forreine law whatever, no, not upon the Civil or Canon law other than in cases allowed by the Laws of England . . . therefore foreign precedents are not to be objected against us, because we are not subject to foreign laws”3—and again “it is worthy of consideration how the laws of England are not derived from any foreign law, either canon or civil or other, but a special law appropriated to this kingdom.”4 And in a side-note he remarks: “Nota differentiam . . . inter malum in se against the Common law, and malum prohibitum by the Civil or Canon law, whereof the judges of the Common law in these cases take no notice.5 Sir Edward Coke indeed had not a high opinion of the Civil Edition: current; Page: [209] law. In his Proæmium to the Second Institute, he observes: “Upon the text of the Civil law there be so many glosses and interpretations, and again upon those so many commentaries, and all these written by doctors of equal degree and authority, and therein so many diversities of opinion as they do rather increase than resolve doubts and uncertainties, and the professors of that noble science say that it is like a sea of waves;” and with this he contrasts the certainty of the Common law; “Statio bene fida peritis.

This opinion does not hinder him from occasionally referring to the Civil law, though not with great accuracy. He comments with approval on Littleton’s statement that the English law is contrary to the Civil law in which partus sequitur ventrem, saying, “true it is, for by that law” (stating the law), “both of which cases are contrarie to the Law of England.”1 He makes the curious assertion that, “in prohibiting the lineal ascent in inheritance, the Common law is assisted with the law of the Twelve Tables,”2 which seems entirely inaccurate. He notes the differences in the laws as to guardianship, already alluded to,3 and says that the law of England is contrary to the Civil law, which “est quasi agnum lupo committere ad devorandum;” yet he cites the very rule of the Civil law, “qui sentit commodum debet et onus sentire,” in support of the position that the owners of private chapels should repair them.4 Lord Macclesfield strongly disapproved of the English rule, deeming it “to have prevailed in barbarous times, and a cruel and barbarous presumption.”5

Coke cites very largely from Bracton, and some of the passages are those directly derived from Roman sources;6 as far as I can find, he only expressly refers to the Corpus Edition: current; Page: [210] Juris twice.1 The rule as to the half-blood, which has been attributed to a misunderstanding of the Civil law, he treats as settled.2 He states rather curiously and inaccurately that coparcenery was called in the ancient books of law “familia herciscunda,3 which was a tenure; and compares the Common Civil and Canon laws on kinship, saying, “thus much of the Civil and Canon laws is necessary to the knowledge of the Common law on this point.” He of course notices the discrepancy between the Common law and the “laws of Holy Church, or Canon law,” as to legitimation by subsequent marriage. Speaking of banishment he remarks, “if the husband by act of Parliament have judgment to be exiled for a time, which some call a relegation, that is no civil death;”4 this is clearly the Roman “relegatio” or exile, which involved no loss of status. He refers to the agreement of the Civil and Common laws in forbidding distress on beasts of the plough,5 and cites Seneca as to their agreement in the punishment of rape. He uses the phraseology of peremptory and dilatory exceptions,6 though bargain and sale, (in the Institutes a consensual contract), is described as a real one.7 The respite of a pregnant woman under sentence till she is delivered, for which Bracton had cited Roman law, is restated,8 but some of Bracton’s Roman incorporations are not so fortunate, as where Coke says “We remember not that we have read in any book of the legitimation or adoption of an heir, but only in Bracton,9 and that to little purpose.” Coke ascribes the introduction of the rack to the Civil law,10 as the rack or brake allowed in many cases by the Civil law, whereas all tortures and torments of parties accused were directly against the Common law of England.”11

In his Fourth Institute Coke states to what extent the Civil Edition: current; Page: [211] and Canon law had force in England. It is the lex et consuetudo parliamenti, he says, that all weighty matters in Parliament be determined by the course of the Parliament, and “not by the Civil law, nor yet by the Common laws of this realm.”1 The Court of Admiralty is always spoken of as “proceeding according to the Civil Law,”2 though Coke gives no reasons for such a procedure. The Court of Chivalry before the Constable and Marshal “proceeds according to the customs and usages of that Court, and, in cases omitted, according to the Civil law, secundum leges armorum.3 In a case as to ambassadors, the Committee of the Privy Council heard the “counsel learned in the Civil and Common laws;”4 and Coke says of one of their decisions “and this also agreeth with the Civil law.”4 As to the Ecclesiastical Courts, “which proceed not by the rules of the Common Law,” Coke writes with some acerbity, “that the King’s laws of this realm do bound the jurisdiction of Ecclesiastical Courts.”5 The Convocation proceed according to “legem divinam et canones strictae ecclesiae,” the ecclesiastical courts generally by “the laws of Christ.”6 As to the authority of this law in England, Coke is very decided: “all canons and constitutions made against the laws of the realm are made void:” “all canons which are against the prerogative of the king, the Common law, or custom of the realm are of no force.”7

I have only noticed two cases in which the English Common law, as stated by Coke, appears to have been modified by the Civil law otherwise than through Bracton. These are, first, the law as to discontinuance,8 or the alienation made by Edition: current; Page: [212] tenant en autre droit, by which the remainderman is driven to an action; the rules as to this bear some analogy to the civilian doctrines of usurpatio possessionis, and Coke himself in one place uses the term “usurpations” in connexion with discontinuances.1 Secondly, the Roman law as to collatio bonorum,2 by which emancipated children, wishing to share in intestacy, must bring their property into the stock to be divided, seems to have suggested the custom of London as to “hotchpot,” and part of the subsequent Statute of Distributions,3 and Coke expressly says, “this is that in effect which the civilians call collatio bonorum.4

A study of Coke’s Institutes suggests that the Common lawyers of the time expressly repudiated the Civil law as an authority in the King’s courts, or even as the parent of the existing Common law. Coke occasionally notes the agreement or disagreement of the two laws, but with such inaccuracy as to show that his own knowledge of the Civil law was slight. The working out of an Equitable Jurisdiction, and the decisions of the Ecclesiastical and Admiralty Courts were building up systems largely of Civilian origin; but in the Common law, the influence of Roman law has rather retrograded than advanced since the time of Bracton. . . .

Summary of Roman Law in Text-writers

We have thus dealt with the position with regard to the Roman Law occupied by leading text-writers and authorities from the time of Bracton. Glanvil is comparatively free from any Roman influence. Bracton has incorporated into his book substantial portions of Roman matter, which are reproduced by Fleta, and in a less intelligent way by Britton. These Roman incorporations are cited without comment by Staunford, and are used by Cowell to show the similarity of the two laws. Coke also cites them, without any allusion to their Roman character, while he claims no authority in the realm for the Roman Law and is indeed a vigorous advocate Edition: current; Page: [213] of the supremacy of the Courts of Common Law. Hale clearly states the relative position of Common, Civil, and Canon Laws, defining the limits of the two latter, and the source of their authority. Lastly Blackstone, following Hale, recognizes the Roman origin of parts of our Law, including the passages in Bracton, and while he recognizes it, adopts them.

Perception of the Roman elements in Bracton leads to a discussion as to his authority in the law, which results in his being generally accepted as binding, if no contrary decisions or customs can be produced. And while the English Courts recognize no authority in the Roman Law, as such, they are yet ready to listen to citations from it in all cases where English authorities cannot be found in point, or where the principles of the English and Roman Laws appear to be similar. Thus in Acton v. Blundell (1843),1 where the question was as to rights in a subterranean water course, the Digest was fully cited and commented on by counsel, Maule, J. intervening with the remark, “it appears to me that what Marcellus says is against you.” Tindal, C. J., in delivering judgment, said “The Roman Law forms no rule binding in itself upon the subjects of these realms; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion to which we have come, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers appears decisive upon the point in favour of the defendants.”

The authority of Roman Law in the Common Law Courts cannot be put higher than this, or be better expressed than in these words.

2.: Roman Law in the Chancery

While the judges of the Common Law Courts after the fourteenth century recognized no authority in the Civil Law, Edition: current; Page: [214] and the English people were led by the financial exactions of the Papal Court, and the controversies of the Reformation, to regard with suspicion and dislike everything savouring of Rome, three important courts in the kingdom were largely influenced by the Civil Law, if their procedure was not entirely derived from it. These were the Court of Chancery, the Court of Admiralty, and the Ecclesiastical Courts.1 The Court of the Constable and Marshal also proceeded according to the Civil Law:2causas ex jure civili Romanorum et consuetudinibus armorum, et non ex jure municipali Anglorum esse dijudicandas,” and Duck also states that the Universities of Oxford and Cambridge proceeded according to the civil law: “dijudicant per jus civile et secundum juris civilis formam.3 But these latter are of small importance.

The Court of Chancery originates in the position of the king as the fountain of justice.4 To him petitions were addressed by suppliants who conceived themselves wronged by the Common Law, or who found no remedy for the injury they complained of. Difficult and novel points arising in the Common Law Courts were also reserved by the judges for the consideration of the king in Council. As the Chancellor was always in attendance on the king, the petitions for royal grace and favour were entrusted to him, first for custody, and ultimately for hearing. Under Edward III. the Chancellor’s tribunal assumed a definite and separate character, and petitions for grace began to be directly addressed to him instead of coming indirectly into his hands. From 1358, such transactions were recognized as his proper province, and the powerful and complicated machinery of his Equitable Jurisdiction began to grow.

There were reasons why its growth should be on Roman lines. Several lay Chancellors had been appointed in the reign of Edward III., probably in consequence of the petition of the Parliament that, as ecclesiastics were not amenable to the laws, only lay persons might in future be appointed Chancellor.5 But every Chancellor from 1380 to 1488 was a Edition: current; Page: [215] clerk; until the end of Wolsey’s Chancellorship in 1530 only a few lay holders of the office are found, and up to that year 160 Ecclesiastics had held the office.1 In this clerical preponderance, the advantages of the Civil law, familiar to the Chancellors by their early training, and as the system in use in the ecclesiastical Courts, are obvious.

But the laws of Rome had a further foothold in the Chancery. There were 12, afterwards 6, Clerks de prima forma2 and Masters of the Chancery, who “are assistants in the Court to show what is the Equity of the Civil law, and what is Conscience.”3 Down to the time of Lord Bacon some of the Masters learned in the Civil law sat upon the Bench with the Chancellor to advise him, if necessary. The author of the “Treatise on the Masters” states that “the greater part have always been chosen men skilful in the Civil and Canon laws,” in order that the decisions of the Chancellor may accord with “Equity, jus gentium, and the laws of other nations,” seeing that a number of matters came before the Chancellor “which were to be expedited not in course of common law, but in course of civil or canon law.”4 And though the Chancellors became laymen and decided without reference to the Masters, their system was still largely clerical and Roman. Under Charles I. it was ordered that half the masters in Chancery should always be Civil lawyers, and that no others should serve the king as Masters of Request. Duck,5 writing in 1678 says: “Judicia apud Anglos, in Curiis quae non ex mero jure Anglicano, sed ex aequo et bono exercentur, cum jure civili Romanorum plurimum conveniunt; quarum suprema Cancellaria prima est. . . . Cancellarii autem feres omnes fuerunt Episcopi aut Clerici, plerumque legum Romanarum periti usque ad Henricum VIII. quo D. Edition: current; Page: [216] Richius primus juris Municipalis Apprenticius Cancellarii munus obtinuit: post quem etiam alios episcopos juris Romani peritos, sed plerosque juris municipalis consultos, reges nostri ad hoc munus admoverunt. In hac etiam curia assessores seu Magistri plerumque fuerunt juris Civiles Doctores, et Clericos hujus Curiae antiquitus habuisse eximiam juris civilis scientiam, clarissimum est ex libro Registri Brevium Originalium. . . . In Curia etiam . . . fere omnes fuerunt antiquitus Episcopi Praelative, in legibus Romanis vel utroque juri versati Magistri . . . plerumque Juris Civilis Professores, quibus ex jurisdictione ejus Curiae potestas judicandi ex aequo et bono demandata est. Ad omnes enim curias in quibus non merum et Consuetudinarium jus, sed aequitas spectanda est, nullius gentis leges tam accommodatae sunt, quam jus Civile Romanorum, quod amplissimas continet regulas de Contractibus, Testamentis, Delictis, Judiciis et omnibus humanis actionibus.

The general character of the Jurisdiction of the Court of Chancery may be gathered from a speech of James I. in the Star Chamber in which he said: “Where the rigour of the law in many cases will undo a subject, there the Chancery tempers the law with equity, and so mixes mercy with justice:”1 and the “Doctor and Student” of the reign of Henry VIII., reads: “Conscience never resisteth the law nor addeth to it, but only when the law is directly in itself against the Law of God or of reason . . . in other things Aequitas sequitur legem.2

This Equitable Jurisdiction has been compared with the Jurisdiction of the Praetors, both being used as a means of alleviating the rigour of the older law.3 Both Equity and the Jus Praetorium tend to become as rigid as the systems they originally modified; both are supported by fictions, in the one case of a pre-existing state of nature or Golden age, of whose laws fragments survive and are embodied in the Praetor’s Edict, in the other of a King, whose Conscience Edition: current; Page: [217] supplied the inadequacies of his laws. The systems admit of comparison, but there is no trace of causal connexion. It is true that the Praetor framed the formula, and the Chancellor and Clerks of the Chancery issued the writs. But the Praetor administered both his own edict and the Jus Civile, and could thus enforce his own innovations, while the Common law judges could and did reject new writs, which seemed to them not in accordance with the Common law. And further, while the Praetor by embodying exceptiones in his Formula could influence the defence to actions, the Chancellor had no control over the defences raised in the Common Law Courts to the writs he issued. The tribunals were separate; the judges different. The influence of the Chancery on the Common law was therefore far slower in operation and weaker than the Praetorian changes in the Jus Civile; while the clerical character of the Chancery, and its innovations on the Common law, raised a spirit of hostility which hindered its influence.

English Equity however, invented and administered by Clerical Chancellors, derived much of its form and matter from Roman sources. I have neither the time nor the knowledge to enable me to give at all an adequate account of this Roman element, but the question has been discussed by Spence,1 and I avail myself of his results. Sir H. Maine,2 without going at length into the subject, thinks that the earlier Chancery judges followed the Canon law, a later generation the Civil law, and that the Chancellors of the eighteenth century availed themselves largely of the Romano-Dutch Treatises on ethics and jurisprudence, compiled by the publicists of the Low Countries.

One of the most important branches of Equitable Jurisdiction related to Uses and Trusts.3 Fideicommissa had been introduced by the Romans to evade the strict rules as to legacies and successions: the person, to whose good faith the fulfilment of the testator’s wishes was entrusted, was at first only bound in honour. Augustus took the first steps towards enforcing trusts by law, and finally created a Praetor Fideicommissarius Edition: current; Page: [218] to whom the duty was assigned of giving legal effect to fideicommissa.

The English system in its origin only applied to trusts created during life; for lands were not devisable, and personal estate was not of sufficient importance to call for any special legislation. Conveyances of lands to A, that he might pay their fruits to B, were introduced, probably to allow the clergy to avoid the Statute of Mortmain, and this device was adopted by the laity, especially during the wars of the Roses to avoid forfeiture for treason, and for other purposes. These “Uses” the Chancery would enforce as binding on the conscience, and the bequests of uses of land which it supported, and which enabled testators to evade the feudal rule of the indevisability of land, were akin to the Roman fideicommissa. Both systems were thus introduced to evade the strict law. The jurisdiction of Chancery over Uses dates from the reign of Henry V.; and when in the reign of Henry VIII., the Statute of Uses gave the legal ownership to the man who already had the Use, the Chancellors regained their jurisdiction and created Trusts by the device of enforcing “a use of an use,” which was not affected by the Statute. In this however there was no trace of Roman influence and, as Mr. Spence acknowledges, the details of the system of Uses and Trusts were entirely constructed by the Clerical Chancellors without help from the Roman system.1 We can only say that probably the general conception of Uses and Trusts and the assumption of Jurisdiction over them were assisted by the acquaintance of the Clerical Chancellors with the Roman fideicommissa.

The system of Mortgages2 was much affected by the doctrines of the Civil law, acting through the Court of Chancery, and a mortgage now is “a security founded on the common law, and perfected by a judicious and wise application of the principles of redemption of the Civil law.”3 The strictness of the Common law viewed the Mortgage in the light of a conditional grant of land by the mortgagor to the mortgagee, Edition: current; Page: [219] the condition being that the land should revert to the grantor on payment by a certain day of the money lent. If not, the land was discharged from the condition and became absolutely vested in the mortgagee. But the Civil law regarded the debt intended to be secured, and not the land, as the principal; payment of the principal debt at any time would therefore release the accessory security on the land: the creditor, if not in possession of the land, could only sell it under a decree from the Praetor, and tender of the amount due before the decree of sale released the land. This construction, more lenient to mortgagors, was, under Charles I., adopted by the Chancery, who allowed an “equity of redemption” to the mortgagee within a reasonable time, though after the day on which, according to the Common law, the land would be forfeited for non-payment. To maintain their jurisdiction against both the Common law judges and the debtors themselves, the Chancellors held void any conditions in the loan by which the borrower lost his “equity of redemption.” And this is similar to if not derived from a constitution of the Emperor Constantine, which expressly rendered such stipulations void.1 We can thus trace the altered view of Mortgages, the necessity for foreclosure, and the protection of the equity of redemption, as established in the Court of Chancery, to the Civil law.

In the construction of legacies and documents, the Chancellors have availed themselves freely of Roman rules.2 The Chancery had no original jurisdiction in testamentary matters, and therefore felt bound to adopt the rules of the Ecclesiastical Courts, which were those of the Civil law. In Hurst v. Beach3 the Vice-Chancellor directed the opinion of civilians to be taken as to the admissibility of evidence in a case as to legacies, and on the practice of the Ecclesiastical Courts. In Hooley v. Hatton,4 where the question was whether two legacies to the same person in a will and codicil were cumulative or substitutive, the case was argued with citations from the Civil law; and Lord Thurlow, in his judgment, Edition: current; Page: [220] said: “No argument can be drawn in the present case from internal evidence; we must therefore refer to the rules of the Civil law.” Similarly in interpreting the language of alleged trusts, the rules of the civil law are referred to.1 Remains of the Roman doctrine of beneficium inventoris are traced in the time of Charles I., when an executor who had not exhibited an inventory was charged with a legacy after 20 years.2 In the case of legacies for public uses Lord Thurlow said that the cases “had proceeded upon notions adopted from the Roman and Civil laws, which are very favourable to charities, that legacies given to public uses not ascertained shall be applied to some proper object.”3 And the same is true of charitable trusts.4 But these rules were sometimes applied with more zeal than discretion, as when Sir R. Arden, M. R., afterwards Lord Alvanley, entirely misunderstood the meaning of exceptio deli.5 But Mr. Spence’s remark that “probably the same law as to legacies has continued in England from the time of Agricola to the present day”6 shows too great a faith in the persistence of a highly developed system of law through centuries of barbarism.

The jurisdiction of the Chancery over Infants7 is very similar to that exercised over guardians by the Roman Praetor, but Mr. Spence is not able to say more than that the Corpus Juris “has been occasionally consulted, if not resorted to as an authority” on the subject. We have already noticed Lord Macclesfield’s preference for the Civil law rule as to the persons who should be guardians as compared to that of the Common law.8 The Chancery jurisdiction over idiots and lunatics is also similar to that of the Praetor and may very possibly have been derived from it.9

The English Law of Partnership is derived from three sources, the Common Law, the Lex Mercatoria, and the Roman Law.10 Of the Lex Mercatoria we need only say here Edition: current; Page: [221] that it appears in itself to have been at least partly based on the Roman law.1 Mr. Justice Story has made an elaborate and detailed investigation of the relations of the Common to the Roman law, and finds great similarity between them.2 Both laws recognize the difference between a partnership and a community of interest,3 and provide that no new partner can be introduced without the concurrence of the original partners.4 But the Common law has refused to follow the Roman law in holding invalid an agreement that the personal representative of a partner should succeed him in the partnership. Both laws require a partnership to be in good faith and for a lawful purpose;5 and that all partners must contribute something, whether property or skill, to the common stock.6 Both require community in profits among the partners and, to a more limited extent, community in losses.7 In the absence of express agreement both laws require an equal division of profits.8 The Common law formerly went beyond the Roman law in making persons who share the profits of a trade liable to operation of law, to third parties as partners,9 but this rule was overthrown in Cox v. Hickman.10 Both laws recognize a division into universal, general, and special partnerships, though the chief Common law division is into public and private partnerships.11 Both regulate the duration of partnership by the consent of the partners, but the Roman law went further than the English, and prohibited partnerships extending beyond the life of the parties.12 No particular forms for the constitution of a partnership were required by either law.13 By the Roman law, the mere partnership relation conferred less extensive powers of disposition of the partnership property than are given by the Common law.14 A Roman partner could not bind the firm by debts, nor alienate more than his share of the partnership property. But in the absence of express stipulation and with some limitations Edition: current; Page: [222] each partner of an English partnership may be taken, by outsiders, as having an equal and complete power of administration over the whole of the partnership affairs.1 Both laws admit a discharge of a debt to or by one partner to be good for or against the whole firm.2 In the Common law, within the scope of the partnership, the majority have a right to govern, but in the Roman law the express or implied assent of all the partners is required.3 Both laws make partners liable to each other for negligence or fraud, and require a withdrawal from the partnership to be in good faith.4 Both laws consider a partnership for no certain period as dissoluble at the will of any partner;5 but the Roman law went further than the Common law in requiring that the dissolution should not take place at an unseasonable time.6 Both laws allow the Court to dissolve the partnership in case of positive or meditated abuse of it by a partner, or when its objects are no longer attainable, as in the case of a partner’s insanity.7 By both laws, the assignment of his interest by one partner, contrary to the will of the others, dissolves the partnership.8 Both laws dissolve the partnership by death;9 and many of the provisions in both laws for taking an account and winding up a partnership are similar, though the English sale is more convenient than the Roman division.10 Whilst English partners are liable to third parties in solido, by the Roman law they were only liable pro parte.

This enumeration shows a sufficient agreement between the two systems to justify the assertion that while the method of the introduction of so much Roman law in early times is not clear, in later times most of its leading principles have become incorporated into the Common law of Partnership.11

Mr. Spence and Lord Justice Fry12 agree that the Equitable Jurisdiction to enforce Specific Performance is not derived from the Roman law, which only gave damages for breach of contract, and adhered to the maxim; “nemo potest Edition: current; Page: [223] praecise cogi ad factum.1 Spence considers the jurisdiction a “clerical invention” and Fry doubts whether to attribute it to the Canon law, which said “Studiose agendum est ut ea quae promittuntur opere compleantur,2 or to “the plain principles of morality and common sense of the Judges who founded and enlarged the equitable jurisdiction.”

Besides the chief heads of its jurisdiction, the leading principles on which the Chancery administers justice show traces of clerical and Roman influence. The term “Conscience,”3 which is so involved in the decisions of the Court, though itself of clerical invention, is like the Praetorian notion of bona fides; but as to mala fides the English law has departed from the Roman principle, lata culpa plane dolo comparabitur, by holding that, “Gross negligence may be evidence of mala fides, but it is not the same thing.”4 The jurisdiction of the Chancery, in fraud, to cancel and deliver up deeds is analogous to the Praetorian restitutio in integrum, and actio de dolo.5 Both Praetor and Chancellor had a power to relieve against Accident, grounded in the Roman law on naturalis justitia.6 So the jurisdiction to relieve against Mistake, and the distinction between mistake of law, and of fact, both in the Common law and Chancery, appear of Roman origin; though under Edward IV. the Roman maxim, “nec stultis solere succurri sed errantibus,” was met by a clerical Chancellor with “Deus est procurator fatuorum,7 and the “fool” was relieved. The injunctions of the Chancery are comparable to Praetorian Interdicts;8 its jurisdiction in discovery to the actio ad exhibendum, and possibly to the early and obsolete actio interrogatoria.9 The procedure for perpetuating evidence by examining witnesses de bene esse had also a parallel in Roman procedure.10

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Without proceeding to a more detailed examination enough has been said to show that though usually the details of the Equitable Jurisdiction were worked out by the Chancellors on English lines, the subjects of jurisdiction and the powers of the Court were largely derived from the functions of the Praetor, and that this was due in the main to the influence of the early Clerical Chancellors.

At present however the Courts of Chancery and Common law stand towards the Civil or any other law in no different relation. As Blackstone has said,1 “In matters of positive right, both Courts must submit to and follow ancient and invariable maxims . . . where they exercise a concurrent jurisdiction they both follow the law of the proper tribunal: in matters originally of ecclesiastical cognizance, they both equally adopt the Canon and Imperial law, according to the nature of the subject.” But the nature of the subjects which come before the Chancery is more likely to call for its recourse to the Canon or Civil law, than those which are discussed in the Common Law Courts, and therefore Blackstone recognizes in 1763 that in the Chancery “the proceedings are to this day in a course much conformed to the Civil law.”2

3.: Roman Law in the Ecclesiastical Courts

Of the Ecclesiastical Courts, Hale says:3 “the rule by which they proceed is the Canon law, but not in its full latitude, and only so far as it stands uncorrected, either by contrary acts of Parliament, or by the common law and custom of England: when the canon law is silent, the civil law is taken in as a director, especially in points of exposition and determination touching wills and legacies.” Their jurisdiction may be treated of under two heads: (1) that relating solely to the internal life and worship of the Church of England; (2) that affecting the whole realm, such as the testamentary and matrimonial jurisdiction.

The first head may be shortly dealt with. The separation Edition: current; Page: [225] of the civil and clerical courts under William I., ensured for the latter a peculiarly Roman and canonical law and procedure; the Conqueror’s law provided, “secundum canones et episcopales leges rectum Deo et Episcopo suo faciat,1 and the procedure was that of the Roman Consistory. This tended to create a feeling of hostility on the part of the Courts of Common law and the English people towards Courts not ruled by the Common law of England.

The present ecclesiastical law consists of three portions:2 I. Statutes, and enactments made in pursuance of, or ratified by, statutes. II. Certain portions of the Canon law, and certain constitutions and canons issued by competent authorities. III. The Ecclesiastical Common law; ecclesiastical usages, not embodied in writing, except in some judicial decisions, but recognized as binding and supposed to be known by the Courts.

The Canon law as such is a body of Roman ecclesiastical law; but only such parts of it as are contained in the provincial constitutions,3 and in the general usages of the church, and are recognized in the Courts of this realm, are binding in England.4 No canon contrary to the Common or Statute law or to the Prerogative is of any force; and no canons made since the reign of Henry VIII., and not sanctioned by Parliament, are binding on the laity: nor are canons binding made before that reign, unless adopted by the English church.5

The position of Ecclesiastical law in England has been well described by Tindal, L. C. J. as follows;6 “The question depends upon the Common law of England, of which the Ecclesiastical law forms a part. . . . The law by which the spiritual Courts of this kingdom have from the earliest times been governed and regulated, is not the general Canon Edition: current; Page: [226] law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but instead thereof an Ecclesiastical law, of which the general Canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislation of the realm, and which has been known from early times by the distinguishing title of the King’s Ecclesiastical law. . . . That the Canon law of Europe does not, and never did, as a body of laws, form part of the law of England, has been long settled and established law.” So also Sir John Nicholl:1 “Indeed the whole Canon law rests for its authority in this country upon received usage; it is not binding here proprio vigore.” The Canon law of itself is not therefore part of English law [This statement, however, should be compared with the views of Dr. Stubbs, in Essay No. 8, post, and of Professor Maitland, in his volume on the Canon Law, there cited.—Eds.], nor does the Civil law appear to enter into this branch of the Ecclesiastical Jurisdiction.

The Ecclesiastical Courts had jurisdiction affecting the subjects of the realm in three matters:—I. Pecuniary, in tithes, dilapidations &c., to which we need not further refer. II. Matrimonial causes; validity of marriage, legitimacy, divorce, &c. III. Testamentary causes, and the administration of the estates of Intestates.

Matrimonial Jurisdiction

The Judicature Act, 1873,2 transferred to the newly created Probate, Admiralty and Divorce Division of the High Court of Justice inter alia, all matters within the exclusive cognizance of the Court for Divorce and Matrimonial Causes, and applied to that Division all the rules, orders and procedure of that Court. The Court for Divorce and Matrimonial Causes was created by an Act of 1857,3 by which all causes and matters matrimonial, which should be pending in any Ecclesiastical Court in England were transferred to that Edition: current; Page: [227] Court, which was to possess all jurisdiction on the subject exercisable by any ecclesiastical court, and to proceed and act and give relief on principles and rules which in the opinion of the Court should be as nearly as might be conformable to the principles and rules, on which the Ecclesiastical Courts had heretofore acted and given relief. This law of the Ecclesiastical Courts in the matter of marriage had been based on the Canon law, though its authority was much restricted, and depended on its having been received and admitted by Parliament, or upon immemorial usage and custom.1 This jurisdiction devolved upon the Clerical Courts from the conception of marriage as a religious sacrament and tie, the nature, validity, and dissolution of which were matters of clerical cognizance. The procedure was “regulated according to the practice of the civil and canon laws, or rather according to a mixture of both, corrected and new modelled by their own particular usages, and the interposition of the courts of common law.”2 A well known instance of this is the way in which the law of England dealt with the Roman doctrine of legitimatio ante nuptias. But generally the greater part of the English law on matrimonial causes is derived from the Civil or Canon law.

Testamentary Jurisdiction

The Testamentary jurisdiction was also in the hands of clerical judges.3 The present Procedure and Practice of the Probate Division of the High Court of Justice are the same, (except as altered by rules under the Judicature Acts), as those in force in the Court of Probate before 1875.4 This Court was created by the Act of 1857,5 by which the jurisdiction of all ecclesiastical Courts having power to grant probate of wills was transferred to it, and its practice, except as subsequently provided by rules and orders, was to be according to the then practice in the Prerogative Court of Canterbury.6 Thus the present jurisdiction of the Probate Edition: current; Page: [228] Division is founded on this Ecclesiastical law; but as to the origin of the Ecclesiastical Jurisdiction there is considerable doubt.

Wills were probably introduced by the clergy from Roman sources, and from early times the clerical courts had jurisdiction over suits as to the validity of wills, or in what is known as “probatio solemnis per testes.1 But whether this jurisdiction dates from the separation of the Courts by the Conqueror, or was assumed by the English Church at a later period, there is no evidence to show. Lyndwood2 expressly says ‘cujus regis temporibus hoc ordinatum sit non reperio,” but the jurisdiction certainly existed at the time of Glanvil,3 and the absence of evidence appears to show that, when assumed, it was not opposed by the common lawyers. As to the other branch of testamentary jurisdiction, the power of granting probate of a will in common form to an executor, and also as to the power of granting letters of administration of the goods of an intestate to his next of kin, we have more evidence.4 The latter was, even in the time of Glanvil, in the hands of the king’s courts, the next of kin having a right to succeed, subject to the claims of the lord, without any clerical intervention.5 In the reign of Stephen, the jurisdiction over ecclesiastical persons and the distribution of their goods was placed in the hands of the Bishop, but this did not affect the laity.6 Mr. Coote attributes clerical control over wills to the study of the Civil law by the clergy after the teaching of Vacarius, although their attempts to obtain that control were resisted by the barons.7 In 1191, the clergy in Normandy, who had previously been granted, as in England, the control of clerical wills and intestacies, received the control of all wills and intestacies. Magna Charta contains the provision8Si aliquis liber homo intestatus decessit, catalla sua per manus propinquorum et amicorum suorum per visum ecclesiae distribuantur, salvis cuicunque debitis, quae defunctus ei debebat.Edition: current; Page: [229] But this clause is omitted, not only, as Coote observes, in the Charter of 1225, but also, which he does not notice, in the reissues of the Charter in 1216, and 1217. He suggests that the omission is due to the hostility of the barons, but, if so, it is curious that the Articles which the Barons themselves put forward in 1215 should run,1Si aliquis liber homo intestatus decesserit, bona sua per manum proximorum parentum suorum et amicorum, et per visum ecclesiae, distribuantur;2 unless this was a concession to the church by the barons to secure its coöperation in the coming struggle. The clergy were anxious to obtain control of intestacy that they might devote a share of the intestate’s estate to pious purposes; the lords preferred to confiscate the property. The clergy protested “Item mortuo laico intestato, dominus rex et caeteri domini feudorum bona defuncti sibi applicantes non permittunt de ipsis debita solvi, nec residuum in usus liberorum et priximorum suorum et alios pios usus per loci ordinarium cujus interest, aliqua converti;3 thus the lords neither paid the debts, nor recognized the pious uses. The statute of Westminster charged the payment of the debts of the intestate on that third of the property which the Ordinary destined to pious uses, instead of, as in previous practice, on the rationabiles partes of the widow and children.4 A statute of 13575 commanded the Ordinaries to appoint “de plus proscheins et plus amis de mort intestat, pur administrer ses biens . . . et recoverer come executoures les dettes dues au dit mort . . . et soient accountables aux ordinairs si avant come executioures sont en cas de testament.” The Ordinary thus appointed one of the next of kin as administrator to distribute the effects in such proportions as the church following the system of the civil law should direct, and the Act also gave power to bring actions concerning the intestacy in the King’s Courts, as well as in the Courts of the Ordinary, thus making the system more secure.

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The Prerogative Court of the Archbishop, which dealt with wills and intestacies was established by Archbishop Stafford in 1443, who transferred the jurisdiction of the Court of Arches over those matters to the New Court, presided over by a Commissary.1 The first Commissary was Alexander Provert, Bachelor of Canon law.

But the Ordinary’s power in intestacy became useless after the Reformation, owing to the refusal of the Common Law Courts to enforce the directions of the Ordinary, or the Ecclesiastical bonds for due performance of their duties which he took from administrators.2 This unsatisfactory state of things resulted in the Statute of Distributions, which gave the Ordinaries and ecclesiastical judges, “having power to commit administrations of the goods of persons dying intestate,” power to take bonds for the due administration of the estate, which should be enforceable in Courts of the law.3

We have thus traced, as far as the lack of evidence allows, the process by which the Clerical Courts acquired the jurisdiction over all matters connected with wills and testaments. This jurisdiction, once obtained, was exercised on the lines of the Canon and Civil laws: as Hale says,4 “where the Canon law is silent, the Civil law is taken in as a director, especially in points of exposition and determination touching wills and legacies,” and these “directions of the Civil law” have been adopted by the Chancery in cases involving the construction of documents and wills.

The original jurisdiction of the Ecclesiastical Courts in cases laesionis fidei, over contracts not enforceable by the King’s courts, and its influence on the works of Glanvil and Bracton have already been referred to.

4.: Roman Law in the Admiralty

The early history of the “Court of Admiralty proceeding according to the Civil law,” as Coke terms it, is closely connected Edition: current; Page: [231] with the history of the Law Merchant, which will form the subject of our next section. From very early times merchants and mariners regulated their dealings by a set of customs and rules known as the Law Merchant, Law Marine, or Customs of the Sea. In the Domesday Book of Ipswich,1 it is recorded that “the pleas yoven to the law maryne, that is to wyte, for straunge marynerys passaunt, and for hem that abydene not but her tyde, shuldene be pleted from tyde to tyde;” and it is probable that similar courts existed in all seaport towns, and places where merchants resorted. This Law Merchant and Customs of the Sea came into prominence in the countries bordering on the Mediterranean; lands which had been under Roman rule continued to obey a modified version of the Roman laws, (which the Roman jurists themselves had borrowed from the Rhodian code,) adapted and altered to meet the new developments of commerce and civilization.2 And by the middle of the thirteenth century a number of written codes of Maritime law came into existence in most of the principal centres of mercantile activity. The Consolato del Mare represents the customs observed at Barcelona; the Laws of Oleron, the usages of Bordeaux and the Isle of Oleron; the Laws of Wisbuy, the rules of the Hanse Towns. The Italian version of the Consolato speaks of its contents thus:3 “these are the good constitutions and customs which belong to the sea, the which wise men passing through the world have delivered to our ancestors.”

The early history of the Customs of the Sea, and of the Admiralty Court in England may be gathered from a memorandum of 1339, entitled “Fasciculus de Superioritate Maris,4 which recites that the Justiciaries of the King were to be consulted as to the proper mode of revising and continuing the form of proceeding instituted by the King’s grandfather and Edition: current; Page: [232] his Council, for the purpose of maintaining the ancient supremacy of the Crown over the Sea of England, and the right of the Admiral’s office over it, with a view to correct, interpret, declare, and uphold the laws and statutes made by the Kings of England, his ancestors, in order to maintain peace and justice amongst the people of every nation passing through the sea of England, and to punish delinquents, “which laws and statutes were by the Lord Richard, formerly King of England, on his return from the Holy Land, corrected, interpreted and declared, and were published in the Island of Oleron, and were named in the French tongue, ‘la ley Olyroun.’ ” There is no doubt that Richard I., on his return from Palestine did not visit the Isle of Oleron, and all that can be meant is therefore, that the Laws of Oleron, whose origin we have seen, were promulgated in England by Richard.1 This account receives confirmation from the contents of the famous “Black Book of the Admiralty,” which, having disappeared for many years, was at length found at the bottom of a chest of private papers in a cellar. It contains: (1) instructions for the Admiral’s administrative duties in time of war; the first article of which is:2 “when one is made Admirall,” he must first ordain deputies, “some of the most loyall wise and discreet persons in the Maritime law (la loy maryne et anciens coustumes de la mer),” (2) articles of war for the King’s navy, and (3) an account of the Admiral’s jurisdiction in 34 articles, of which the first 24 are identical with the most ancient version of the Rolls of Oleron, and the rest are peculiar to the English Admiralty, and probably the result of the conference of 1339. Another article in this part:3 “Item any contract made between merchant and merchant beyond the sea, or within the flood marke, shall be tried before the Admiral, and nowhere else by the ordinance of the said King Edward I. and his lords,” appears to furnish the origin of the Admiral’s jurisdiction in civil suits, which probably were more often settled informally by the merchants in the seaport towns “selon la ley merchant.

The Admiral took his oath to make summary and full process “selon la ley marine et anciennes coustumes de la mer.4 Edition: current; Page: [233] A subsequent treatise on procedure, entitled the Ordo Judiciorum, is Roman in character and terminology, and bears traces of being written by a civilian of the School of Bologna.1 Indeed, as many of the judges in the Court of Admiralty, the deputies of the Lord High Admiral, were clerics, the procedure at any rate, if not also the rules of the Court, was likely to become Roman in character. The inquiry of 1339, already alluded to, was entrusted to three clerics, the Official of the Court of Canterbury, the Dean of St. Maria in Arcubus, and a Canon of St. Paul’s.2 By an Act of 1403, “les dites admiralles usent leur leys seulement par la ley d’Oleron et ancienne ley de la mer, et par la ley d’Angleterre, et ne mye par custume, no par nule autre manere,3 while in 1406 under the Admiralties of the Beauforts, the jurisdiction of the Admiralty Court was much increased.4 It is not therefore wonderful that under Edward VI. the answer was made to a French envoy5 “that the English Ordinances for Marine affairs were no others than the Civil Laws, and certain ancient additions of the realm.” The Black Book itself has an express reference to the Roman Law:6 “It is ordained and established for a custom of the sea that when it happens that they make jettison from a ship, it is well written at Rome that all the merchandise contained in the ship ought to contribute pound per pound,”7 and many other clauses are indirectly taken from the same source.

The foundations of Admiralty Law are thus to be found in: (1) the Civil Law, (a) as embodied in the Law Merchant, especially in the Laws of Oleron; (b) as introduced by subsequent clerical judges, mainly in procedure; (2) in subsequent written and customary rules, adopted in view of the developments of commerce. This view is borne out by the accounts which text writers give of the nature of the Law.

Thus Sergeant Callis says (in 1622) “I acknowledge that the king ruleth on the sea by the Laws Imperial, as by the Edition: current; Page: [234] Roll of Oleron and other; but that is only in the case of shipping and for merchants and mariners;”1 on which Zouch remarks:2 “I suppose no man will deny that the Civil and Imperial laws, the Roll of Oleron and others . . . are of force in the Admiralty of England,” and again,3 “the kingdom of England is not destitute of Special laws for the regulating of sea businesses, which are distinct from the Common laws of the realm, as namely, the Civil laws and others of which the books of Common law take notice by the names of Ley Merchant and Ley Mariner” . . . “Businesses done at sea are to be determined according to the Civil law, and equity thereof, as also, according to the customs and usages of the sea . . . for instruments made beyond the sea have usually clauses relating to Civil law and to the Law of the Sea.”4

This work of Zouch’s was written in reassertion of the privileges of the Court of Admiralty in opposition to the encroachments of the Courts of Common law,5 who secured for their jurisdiction cases which properly fell within the cognizance of the Admiralty, by the fiction that the contract sued on was made in Cheapside, whereas, as the Civilians gravely remarked, a ship could not come to Cheapside because there was no water. The Common Law Courts also prohibited the Admiralty from trying certain classes of cases; on which Zouch says:6 “It may be thought reasonable that such contracts being grounded upon the Civil law, the law amongst Merchants, and other maritime laws, the suits arising about the same should rather be determined in those courts, where the proceedings and judgments are according to those laws, than in other Courts, which take no notice thereof.”

So Selden had said7Juris civilis usus ab antiquis saeculis etiam nunc retinetur in foro maritimo, seu Curia Admiralitatis,” and Duck:8Jus autem dicit Admiralitas ex Jure Civili Romanorum, et ejus Curia consuetudinibus.9 Godolphin, writing in 1661, says “all maritime affairs are regulated Edition: current; Page: [235] chiefly by the Imperial laws, the Rhodian laws, the Laws of Oleron, or by certain peculiar municipal laws and constitutions, appropriated to certain cities bordering on the sea, or by those maritime customs . . . between merchants and mariners.” . . . “The Court of Admiralty proceeds according to the known laws of the land and the ancient established Sea laws of England with the customs thereof, so far as they contradict not the laws and statutes of the realm.”1 . . . “A great part of this Fabric is laid on a foundation of Civil law . . . a law allowed, received, and owned as the law of the Admiralty of England”2 . . . though “It is most true that the Civil law in England is not the law of the Land, but the law of the Sea . . . a law, though not the law of England, not the Land law, but the Sea law of England.”3

Hale in 1676, with his usual strong feeling against the Civil law, sums this up thus;4 “The Admiralty Court is not bottomed upon the authority of the Civil law, but hath both its power and jurisdiction by the law and custom of the realm in such matters as are proper for its cognizance. This appears by their process . . . and also by those customs and law maritimes whereby many of their proceedings are directed, and which are not in many things conformable to the Civil law . . . also the Civil law is allowed to be the rule of their proceedings, only so far as the same is not contradicted by the Statutes of this realm, or by those maritime laws and customs, which in some points have obtained in derogation of the Civil laws.”

This opinion of Lord Hale’s, though apparently inconsistent with the dicta previously cited is not, I think, so in reality; for all that he alleges is that the Civil law is only law in England by the authority of the English Crown, and that in many points it has been altered and modified by later decisions and enactments; and both of these propositions are recognized by previous writers.

Blackstone says of the5 “maritime Courts before the Lord High Admiral,” that “their proceedings are according to the Edition: current; Page: [236] method of the Civil law, like those of the Ecclesiastical Courts.” . . . 1 “The proceedings of the Courts of Admiralty bear much resemblance to those of the Civil law, but are not entirely founded thereon; and they likewise adopt and make use of other laws, as occasion requires, both the Rhodian laws, and the laws of Oleron: for the law of England doth not acknowledge or pay any deference to the Civil law considered as such, but merely permits its use in such cases where it judges its determination equitable, and therefore blends it in the present instance with other marine laws; the whole being corrected, altered and amended by acts of parliament, and common usage; so that out of this composition, a body of jurisprudence is enacted, which owes its authority only to its reception here by consent of the Crown and people.”

On the criminal jurisdiction of the Court of Admiralty, Blackstone alludes to the disuse of its old procedure:2—“but as this Court proceeded without jury in a manner much conformed to the Civil law, the exercise of a criminal jurisdiction there was contrary to the genius of the law of England;” and as, owing to the requirements of two witnesses, gross offenders might escape, therefore “marine felonies are now tried by commissioners oyer et terminer according to the law of the land.”

The procedure and practice of the Court of Admiralty was transferred by the Judicature Acts to the Probate, Admiralty and Divorce Division of the High Court of Justice, except as altered by subsequent Orders under the Act. This Division thus unites the three branches of English law in which the Civil law had most direct and acknowledged influence, the Testamentary and Matrimonial Clerical Jurisdictions, and the Jurisdiction of the Admiralty, which, as we have seen, was partly built up by clerical judges.

On the subject matter of Admiralty law, we may say more in the next section. The procedure in rem against a ship, analogous to “Noxa caput sequitur,” the institution of average (Contributio), Bottomry (pecunia trajectitia vel nauticum foenus), and probably charter parties, all bear traces of Roman origin.

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5.: Roman Law in the Law Merchant

From the earliest times a summary mode of procedure appears to have existed, in which a kind of rough and ready justice was exercised in mercantile disputes according to the usages of commerce. As early as Bracton we find recognition of this; the solemn order of attachments need not be observed in such cases “propter privilegium et favorem mercatorum;1 and a summons with less than 15 days’ notice may be adjudged lawful, “propter personas qui celerem debent habere justitiam, sicut sunt mercatores, quibus exhibetur justitia pepoudrous.2 This “Court of Pipowder” is also mentioned in the Domesday of Ipswich, where besides the “pleas yoven to the lawe maryne,” there are also “pleas between straunge folk that men clepeth pypoudrus, shuldene be pleted from day to day.”3 The Court of Pipowders in 1478 was a Court that sat from hour to hour administering justice to dealers in time of fair;4 according to Coke, it was to secure “speedy justice done for advancement of trade,” and there might be such a Court by custom without either fair or market.5

Malynes, in his curious and interesting work on the Lex Mercatoria, speaks of “the law Merchant, that is according to the customs of merchants . . . which concerning traffic and commerce are permanent and constant.”6 Coke states that7 “the merchant strangers have a speedy recovery for their debts and other duties, per legem mercatoriam, which is a part of the Common Law.” The Court of the Mayor of the Staple, he says,8 “is guided by the Law Merchant . . . merchant strangers may sue before him according to the law merchant or at the Common law. . . . This Court is the Court in the Staple Market, and it was oftentimes kept at Calais, and sometimes at Bruges, Antwerp and Middlebro’, Edition: current; Page: [238] therefore it was necessary that this Court should be governed by Law Merchant.” Fortescue also mentions that in certain Courts, “where matters proceed by Lawe Merchaunt, contracts or bargains among merchants in another realm are proved by witnesses”1 (because 12 men of a neighbouring county cannot be obtained).

Zouch goes into the matter more at length.2 Sir John Davies, he says, owns the Law Merchant as a law distinct from the Common law of England in a MS. Tract, where he affirms “that both the Common Law and Statute Laws of England take notice of the Law Merchant, and do leave the Causes of Merchants to be decided by the rules of that law, . . . which is part of the Law of Nature and Nations,” “whereby it is manifest,” continues Zouch, “that the cases concerning merchants are not now to be decided by the peculiar and ordinary laws of every country, but by the general Laws of Nature and nations. Sir J. Davies saith further, ‘That until he understood the difference between the Law Merchant, and the Common law of England, he did not a little marvel what should be the cause that in the Books of the Common law of England there are to be found so few cases concerning merchants and ships, but now the reason was apparent, for that the Common law did leave those cases to be ruled by another law, the Law Merchant, which is a branch of the Law of Nations.’ ”

Again Zouch says:3 “For the advantage of those who use navigation and trade by the sea, the Law Merchant and laws of the Sea4 admit of divers things not agreeable to the Common law of the realm,” and he cites instances and continues: “It is not hereby intended that the Courts of Common law cannot or do not take notice of the Law Merchant in merchants’ cases, but that other things likewise considered, it might be thought reasonable to allow them the choice of that Court where the Law Merchant is more respected, than to confine them to other Courts, where another law is more predominant. Besides there may be danger of doubt thereof, because those things are not approved of for proofs at the Edition: current; Page: [239] Common law, which are held sufficient in the Admiralty among the merchants.”

Blackstone defines very clearly the position of the Law Merchant in his time;1 “for as the transactions of foreign trade are carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the Law Merchant or Lex Mercatoria, which all nations agree in and take notice of; and in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries, and that often even in matters relating to domestic trade, as for instance in the drawing, acceptance and transfer of inland bills of Exchange.” And again: “thus in mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, bottomry, insurances, and others of a similar nature, the law merchant, which is a branch of the law of nations, is regularly adhered to.”2

Now this Law Merchant, thus recognized by the laws of England, drew part of its matter from the Civil law. Being “part of the law of nations,” in that it was composed of the customs of merchants of all nations, it included a number of usages which were relics of the Civil law, continuing the practice of the coasts of the Mediterranean. Again, the written laws of the sea, the Consolato and the laws of Oleron, which formed part of the Law Merchant, and the latter of which was expressly embodied in the laws of England, were based on the Civil law, with such additions as were necessary to meet the needs of the time. Thus Duck is justified in speaking of the “Curia Mercatorum, in qua lites de contractibus mercatorum ex aequo et bono secundum jus civile Romanorum terminandae sunt.3 Indeed even at that time the Civil law was recognized as an authority, where usage was uncertain. Malynes records a case with which he was personally acquainted, where an unfortunate merchant unintentionally guaranteed the solvency of another, and “the opinion of merchants was demanded, whereon there was grand diversity, Edition: current; Page: [240] so that the Civil law was to decide the same,” and it was decided by the Digest.1

This Lex Mercatoria had therefore a Roman foundation; and the importance of this will be seen when we remember that Lord Mansfield, the father of modern Mercantile law,2 during the 32 years in which he was Lord Chief Justice of the King’s Bench,3 constructed his system of Commercial law by moulding the findings of his special juries as to the usages of merchants (which had often a Roman origin) on principles frequently derived from the Civil law and the law of nations. One among Junius’ bitter attacks on him expressly alludes to this feature of his:4 “In contempt or ignorance of the Common law of England, you have made it your study to introduce into the Court where you preside, maxims of jurisprudence unknown to Englishmen. The Roman code, the law of nations, and the opinions of foreign civilians, are your perpetual theme;” a charge for which, says Lord Campbell,5 “there is not the slightest colour of pretence. He did not consider the Common law of England . . . a perfect code adapted to the expanded, diversified, and novel requirements of a civilised and commercial nation . . . but in no instance did he ever attempt to substitute Roman rules and maxims for those of the Common law. He made ample use of the compilations of Justinian, but only for a supply of principles to guide him upon questions unsettled by prior decisions in England; deriving also similar assistance from the law of nations, and the modern Continental codes.” The nature of his work was well described by Buller, J. in his celebrated judgment in Lickbarrow v. Mason,6 where he says concerning bills of lading: “thus the matter stood till within these 30 years; since that time the Commercial law of this country has taken a very different turn from what it did before. . . . Before that period we find that in Courts of law Edition: current; Page: [241] all the evidence in mercantile cases was thrown together: they were left generally to a jury, and they produced no established principle. From that time we all know the great study has been to find some certain general principles . . . not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard those principles stated, reasoned upon, enlarged and explained till we have been lost in admiration at the strength and stretch of the human understanding. And I should be sorry to find myself under a necessity of differing from Lord Mansfield, who may truly be said to be the founder of the Commercial law of this country.” An example of Lord Mansfield’s use of the Civil law will be seen in his exposition of the nature of the equitable action for money had and received, which can be traced, passage by passage, to the Corpus Juris:1 and many of these usages of the merchants, which he thus harmonized, had their origin in the Roman law though their details were of modern growth.

Thus the law of General Average, as developed by the Courts, appears to rest upon a Roman foundation. Mr. McLachlan even assigns a Roman origin to the name, deriving it from actio ex aversione,2 though this origin is challenged by Mr. Lowndes and seems rather fanciful. The Rhodian law:3Si levandae navis gratia, jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est,” really contains the whole principle of general average, though it restricts the example to Jettison. The Corpus Juris expanded it to cover other cases, such as cutting away the mast, “removendi communis periculi causa.” But these laws fell into desuetude, though the practice of contribution may have survived in the Mediterranean. Some slight reference to it appears in the laws of Oleron, but the old Sea laws only recognize two cases of average, jettison and cutting away Edition: current; Page: [242] a mast. The first express definition of “commune avarie” appears in the Guidon de la Mer, about 1560:1 and a fuller one is found in the French Ordonnance of 1681. In 1801 a Court of Common law first recognizes and discusses the right to recover at Common law general average contributions.2 Lawrence, J. defines a general average loss as “all loss which arises in consequence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo,” and this “must be borne proportionably by all who are interested.”3 Since then the law on the subject, probably founded on the Rhodian and Roman law, and expanded by mercantile usage in all countries, is still undergoing development in the Courts;4 though in the last reported case, the Master of the Rolls rejected the idea that the law of England should be brought into consonance with the laws of all other countries; “no English Court has any mission to adapt the law of England to the laws of other countries; it has only authority to declare what the law of England is.”5 But the law of England on these points was originally the Law Merchant, the same in all commercial countries; and the agreement of all foreign countries in a rule of the Law Merchant would then have been evidence of its being part of the law of England, or rather of a Code which the English Courts would recognize and enforce.

Lord Mansfield’s greatest work was done in the development of the law of Insurance; and here, though he gave form and coherence to the Law Merchant, it does not seem that that law can be traced to Roman sources. Its Roman origin has indeed been suggested; Zouch, for example, says:6 “Policies of Insurance are grounded upon the Civil law . . . which as Malynes affirms were taken up in this kingdom from the laws of Oleron:” but the most recent authorities hold Edition: current; Page: [243] that, though there is almost an entire lack of evidence concerning it till the publication of the Guidon (circa 1560), it probably originated about 1200 ad with the Italians, and was introduced into England by Lombard merchants.1 Under Queen Elizabeth a special Court was constituted to try London Policies of Insurance, and it is noteworthy that it was to consist of the Judge of the Admiralty, the Recorder of London, two Doctors of the Civil Law, two common lawyers, and eight merchants.2 The Court fell into disuse, but its composition shows the view that Insurance was part of the subject-matter of the Law Merchant, which in its turn was connected with the Civil law. Apart from this, there is no trace of Roman influence in the English law of Insurance.

The Roman pecunia trajectitia3 was a loan of money with which merchandise was bought and shipped, being at the risk of the lender till the goods reached their destination. The interest on the loan was originally unlimited but was restricted by Justinian to 12 per cent.4 And though the Roman law fell into oblivion, the institution appears to have survived in the Bottomry and Respondentia of the Law Merchant. By a Bottomry Bond,5 the master under stress of necessity borrows money for the prosecution of his voyage on the security of the ship, to be repaid with maritime interest if the ship arrives in safety; Respondentia is a similar loan on the security of the cargo, its repayment being also dependent on safe arrival. Neither of these is quite the same as Pecunia Trajectitia, which was rather an original venture by a merchant dependent on the safe arrival of the ship, than a loan to the master, made under necessity, to enable a voyage already begun to be prosecuted. But Malynes expressly calls Bottomry, pecunia trajectitia, while he also alludes to a transaction precisely similar to the Roman one, as “a deliverance of money of the nature of Usura Maritima.6 The “darkness of an earlier age”7 prevents us from tracing Edition: current; Page: [244] what connexion the later institution has with the Roman one, but it seems probable that the latter survived, and was modified and adapted into the Bottomry of to-day.

The Admiralty Court endeavoured to introduce the Civilian doctrine of a tacit hypothec of, or maritime lien upon, the ship herself for repairs or the supply of necessaries without any express Bottomry bond. Lord Stowell said:1 “In most of those countries governed by the Civil law, repairs and necessaries form a lien upon the ship herself. In our country the same doctrine had for a long time been held by the Maritime Courts, but after a long contest, it was finally overthrown by the Courts of Common law, and by the House of Lords in the reign of Charles II.:” and Lord Holt also, no opponent of the Civil law, held that:2 “By the Maritime law every contract of the master implies a hypothecation, but by the Common law it is not so, unless it be so expressly agreed.”

Zouch suggests that Charterparties are derived, through the Roman, from the Rhodian law;3Si quis navem conduxerit, instrumenta consignata sunto,” and Malynes, who cites other Rhodian rules as in force in the Law Merchant, also says that charterparties of his time (1622) commonly declared that they were in all things made according to the laws of Oleron;4 the provision as to the forfeiture of double earnest by the Master, “if he repent,” is clearly Roman. But in this, as in most other heads of the Law Merchant, we can only speculate whether Roman customs, developed by Mediterranean nations, have furnished the groundwork on which the Courts and the merchants of England have built their Mercantile law. The law of Bills of Exchange, which owes most of its material to the Law Merchant, appears entirely free from Roman influence, the usages of merchants which it embodies being of much later origin. We must therefore rest content with pointing to the Law Merchant, as a probable source of Roman influence on the English law, while the lack of evidence does not allow us to estimate the amount of that influence.

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The position of the Law Merchant, or of “the general maritime law,” in this country has been under discussion in a series of cases, other than Svendsen v. Wallace,1 down to 1882. In 1801 Lord Stowell, discussing the powers of the master to give Bottomry Bonds, referred repeatedly to “the general maritime law,” saying in one place:2 “a very modern regulation of our own private law . . . has put an end to our practice of ransoming . . . but I am speaking of the general maritime law and practice, not superseded by private and positive regulation;” and again: “Adverting to the authority of the maritime law, as it has been for some years practised in this Court . . . adverting also to the position of what I may call the Lex Mercatoria.3 In the Hamburg4 (1864), also on the conflict of laws as to bottomry, Dr. Lushington announced his intention of “governing his judgment by reference to the ordinary maritime law . . . no specific law being alleged as the governing law” . . . “I must take the law which ought to apply to this case to be the maritime law as administered in England,” while the Privy Council on appeal5 “entirely agree with the learned Judge that the case is to be decided by the general maritime Law as administered in England.” This expression was criticized by Willes, J., in a case in 1865,6 where the “general maritime law, as regulating all maritime transactions between persons of different nationalities at sea,” was suggested as one of the laws by which the decision should be governed; he said:7 “We can understand this term in the sense of the general maritime law as administered in English Courts, that being in truth nothing more than English law, though dealt out in somewhat different measures in the Common law and Chancery Courts and in the peculiar jurisdiction of the Admiralty; but as to any other general maritime law by which we ought to adjudicate upon the rights of a subject of a country, which by the hypothesis, does not recognize its alleged rule, we were not informed what may be its authority, its limits, or its sanction.” Edition: current; Page: [246] . . . “It would be difficult to maintain that there is any general in the sense of universal law, binding at sea, any more than upon land, nations which either have not assented or have withdrawn their assent thereto” . . . and further on he speaks of “the general maritime law as administered in England, or (to avoid periphrasis) the law of England.”1 This series of cases came before the Court of Appeal in 1882, in a case2 which Sir R. Phillimore had decided by “the general maritime law as administered in England;”3 and in reversing his decision Brett, L. J. said:4 “what is the law which is administered in an English Court of Admiralty, whether English law, or that which is called the Common maritime law, which is not the law of England alone, but the law of all maritime countries. . . . The law which is administered in the English Court of Admiralty is the English maritime law. It is not the ordinary municipal law of the country, but it is the law which the English Court of Admiralty, either by Act of Parliament, or by reiterated decisions and traditions and principles, has adopted as the English maritime law.”

It is not inconsistent with these decisions that the Law Merchant is recognized whenever a special jury “finds” a custom of merchants, which is acted on by the Courts; for the law of England recognizes such customs because they comply with rules it has previously laid down, and decides that they were law as complying with its rules, and not from any merit of the Law Merchant. But in this way the usages of merchants still influence the law of England. . . .

6.: Conclusion

This inadequate sketch of the influence of the Roman Law on the Law of England has now reached its close. We have seen that English law in its earliest stages is almost entirely Teutonic, and that those who claim for it descent from the laws and customs of the Roman occupation are unable to support their case by any satisfactory evidence. The most plausible of these theories is that which refers manorial institutions Edition: current; Page: [247] to a mingled Roman and South German origin, and even this at present lacks any certain foundation. The introduction of wills and charters comes from clerical and Roman sources, but except in this respect we cannot say that the influence of the Civil Law has in any way affected the Law of England until the coming of Vacarius.

The latter half of the twelfth century revives the study of Justinianean law throughout Europe, and England also shares in the revival. The Ecclesiastical Courts rule themselves by the Roman Law, and from their proceedings Roman influences affect the work of Glanvil. Bracton’s great treatise contains much Roman matter and terminology, but his knowledge of the civil law was only that of every clerical judge, (and they were many), of his century. The full extent of their influence can only, even imperfectly, be traced by a detailed study of the Year-Books, a task far beyond our present powers; but it is clear that the revival was followed by a reaction. The Roman Law became not only a subject of distrust, owing to the conflicts between King and Pope; it even dropped into oblivion. With Coke, Hale, and Blackstone, while there is knowledge of the Law of Rome, there is also a clear definition of its position, as of no force in England, unless as adopted by the English law, or in particular courts where its authority was recognized by English jurisprudence. In those courts we have traced its history; in the Ecclesiastical Courts in their jurisdiction over marriages and succession at death, in the Admiralty Courts, proceeding according to the Civil Law and the Law of the Sea, and in the influence of the Law Merchant on both the Admiralty and the Common Law; and we have referred though briefly to some of the points in which the Common Law itself has been affected by the Law of Rome.1

That the history of Roman Law in England has yet to be written, no one is more conscious than the author of this Essay; he can only hope for an indulgence, proportioned to the difficulties of the task, in the attempt to gather together some of the materials for such a history.

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8.: THE HISTORY OF THE CANON LAW IN ENGLAND1

I

IT requires no small amount of moral courage to approach a subject of legal history without being either a lawyer or a philosopher. A lawyer, no doubt, would make short work of it, and pronounce a definitive judgment, without misgiving, on any subject, historical or other, human or divine, on which he had evidence before him; and a philosopher would systematise to his own satisfaction any accumulation of details that could possibly be referred to the categories of cause and effect. The student of history has not, ex officio, any such privilege of infallibility; the highest point to which he can rise is the entire conviction of his own ignorance and incapacity before the vast material of his investigation; the highest approach to infallibility is the willingness to learn and correct his own mistakes. If he wishes to learn something of a subject, his best policy is to write a book upon it, or to deliver two public statutory Edition: current; Page: [249] lectures. Here then you have my motive; wanting to know something of the history of Canonical Jurisprudence, I undertake to lecture upon it. I shall be wiser, that is, more convinced of my own ignorance, before I have done.

If I were a philosopher I should begin thus: The legal history of a nation or institution must be the history of the successive stages by which it develops or adopts laws, according to the stages of its social, or moral, or political, or religious development; or thus: As a nation develops in civilisation, or foreign policy, or in specialised ambitions, or in consciousness of nationality, or in peculiar constitutional identity, it has to develop new branches or systems of law, or to borrow them ready-made from nations whose polity is in advance of its own, who have made themselves representative nations in the particular branch of sociology in which it desires to regulate itself. Hence, in England, on the original superstructure of ancient popular law is superinduced, in the age of the Conquest, the jus honorarium of the royal courts; and, when the royal courts have become the courts of common law, on their rigour is superinduced the moderating influence of Equity and Appeal: on the conversion of the nation to Christianity a religious discipline is a necessity, and on that religious discipline, as the framework of the Church is built up, there is based a canonical jurisprudence; if the nation is in close communication with foreign churches or a great Catholic religion, it naturally adopts, from them or it, its religious legislation; if not in such close intercourse, it develops a system of its own, and, when the intercourse becomes closer, modifies its own until it is more or less in harmony with that of the nations round it, always retaining more or less of its own home growth. Or again, still as the philosopher, I might say: Religion, Law and Morality cover the area of human action with rules and sanctions, and, with different origins, motives, and machinery, regulate regions of common energy, a number of acts that fall within reach of each or all. The fact that they spring from different sources necessitates the formation of distinct systems; the fact that they cover the same ground accounts for the possibility of conflicting operation; the fact Edition: current; Page: [250] that, whilst they overlap one another, their proper areas nowhere coincide, necessitates some sort of definition and limitation of the scope and system of each, which definition and limitation must be supplied either by a concordat between them or by the subordination of one to the other. And once more: within the region of religious activity itself there are provinces which demand varying degrees of distinctness in definition and graduation of discipline; there are matters of doctrine, of discipline proper, of property and of judicature; there are legislation, jurisdiction, administration; there are functions for the theologian, the casuist, the canonist, and the civilian; questions of doctrine for the theologian, of morals for the casuist, of discipline for the canonist, of procedure for the civil lawyer.

Well, philosophical or not, these considerations seem to give us a clue to the method of our investigation, and suggest a division into two heads: first, the tracing of the growth of the ecclesiastical law, including both the material and the scientific study; and secondly, the history of its working in competition with and in general relations to the other systems of law. In such a cursory attempt to examine these heads as is possible in such a lecture as this, it is necessary to limit the field of survey as much as possible. I shall therefore restrict myself chiefly to the history of ecclesiastical jurisprudence in England, taking liberty, where it is necessary, to go beyond, but not attempting any general treatment. I have, you will observe, coupled together four topics under two heads; I propose to take the two heads separately, but to discuss the two topics that fall under each conjointly.

The first head is the growth of ecclesiastical law, and its two branches are the materials and the study. The materials arrange themselves thus: the New Testament contains not only all doctrine necessary to salvation, but all necessary moral teaching, and as much social teaching as was needed for the age in which it was propounded, and for the society which in the first instance was embodied under apostolic government. But in the very nature of things, and you must here recollect that I am trying to look at the subject Edition: current; Page: [251] rather as a philosopher than as a divine, Christianity, as a growing religion, was certain to require an expansion, in expanding circumstances, of the principles which were clearly enough stated in the Gospel, but the application of which had to be regulated by some other process than the will of the individual. The moral teaching had to be expanded authoritatively, the dogmatic teaching had to be fenced by definitions, the administrative machinery had to be framed with some attempt at uniformity, so that, whilst the Christian society remained a simple voluntary society with no power of enforcing its own precepts by material sanctions, it should have a common jurisprudence recognised by the conscience of its members and by their general consent. Hence from the days of the apostles there were councils, and canons, and constitutions, and books of discipline; at first the canons, councils, and books of discipline covered all the ground of which I have spoken—doctrine, discipline, and administration, although some councils may be more famous for their decisions on one point than on another. Not perhaps to speak of the Apostolic Constitutions, take the council of Nicea for an example, and remember that we owe to it not only a formulated creed, but directions about consecration of bishops and ordination of priests, and likewise rules for the treatment of the lapsed and apostates, and the prohibition of usury. The legislation of Constantine added a new element which worked itself into all these three; giving a coercive and material force to rules which had been hitherto matters of conscience and consensus; the church was empowered to enforce her doctrinal decisions, her rules of discipline, and her frame of administration; and that so completely that from this date the ecclesiastical administration in Christian countries under the empire became so wedded to the secular administration as to be at times almost indistinguishable from it except on close investigation. From this date then our materials begin to sort themselves: the doctrinal definitions are embodied in the Creeds, and need not be pursued further than the fourth, or, at the outside, the sixth general council: but the canons of discipline and administration are worked into great detail for a long period Edition: current; Page: [252] and in many countries. And here I must take a new point: the coercive authority given to the churches in matters of morals becomes henceforth a branch of jurisdiction, but there still remain branches of moral discipline which depend on voluntary obedience, in which a powerful offender, or a man who does not choose to confess, may defy law and order. For the latter were invented what may be called manuals of casuistry, the Penitentials; for the jurisdiction proper there remained the canons of the councils, now possessing cogent authority, and the laws of the empire, now framed on a strict conformity between church and state.

Here then we reach the historical materials on which is based the later canon law; and almost at the same time the date at which the conversion of England began. In the middle of the sixth century Dionysius Exiguus, a Roman abbot, compiled the collection of canons which was the germ and model of all later collections. Nearly at the same time, both in the Eastern Church under John the Faster, and in the extreme West under the Irish and other Celtic missionaries, began the compilation of Penitentials; and in the same century the emperor Justinian completed the great body of the civil law. Thus you get the three conjoint systems of jurisprudence: not distinct in fact from each other; overlapping everywhere, and even containing much common matter, but distinct in basis. Take the Penitential first: that was in reality a list of sins and their penances; sins so ticketed and valued as to please even the most abstract philosopher; permutated and combined to mathematical precision. This sort of literature, belonging especially to ages and nations brought into close contact with heathen abominations, was very important in the last converted countries of East and West; Archbishop Theodore of Canterbury, the Venerable Bede, Egbert of York, and among the Celts Columbanus, Cummian, Vinniaus, and Adamnan, founded the penitential system here: from them the Frank and German churches adopted their rules, and by and by, when Anglo-Saxon literature was borrowing from the Continent, our scholars translated back with interest the developed systems which their predecessors had sent abroad. These Edition: current; Page: [253] rules of penance continue to be elaborated in England to the time of the Conquest; and bear some analogy to the early laws of the Anglo-Saxon kings, which consist so largely of definitions of crimes and penalties. It is to be remembered, however, that the Penitentials were private compilations, the authority of which depended on the estimation or dignity of their authors, and not on any legislative sanction; but, notwithstanding that, there is sufficient harmony amongst them to show that they incorporate the rules on which the episcopal jurisdiction pure and simple generally proceeded; they were a sort of customary church law for their own province. But over and above these there were the canons, or authorised church law; and of these also there was a series of important collections. I am unable to say how far the collection of Dionysius Exiguus was received in England and Ireland at first: but from the beginning of the Church History of United England, a series of new canons began to be added to the early collections: Theodore himself added the decisions of Roman and Byzantine councils to the resolutions of his own national synods: a great and important succession of Anglo-Saxon councils issued canons which were received with great respect in all the Western churches, as we know from S. Boniface’s letters and the remains of the canons themselves. From Ireland likewise proceed a great collection of canons—the famous Collatio Hibernica, which, beginning with the edicts of S. Patrick, went on to embody the results of ecclesiastical legislation in West and East, and, by the time of Dunstan, whose copy of it we possess in the Bodleian, had added by successive accretions all that was thought worth preserving even in the capitularies of the Frank kings. The Anglo-Saxon Church possessed no such comprehensive collection of its own; but abroad the codification of church law proceeded rapidly. I have seen in the National Library at Paris some invaluable MS. collections earlier than the date of the forged decretals; and the forged decretals themselves were probably not the work of one man or one generation. Not however to tread again this well-trodden path, pass on to the collectors of genuine or less suspected canons: Edition: current; Page: [254] of whom the most important is Burchard of Worms. He, at the beginning of the eleventh century, got together and arranged systematically all the materials he could find: borrowing authoritative determinations from the penitentials, the canons of councils, articles of the civil law as known to him by the Theodosian code, and the capitularies of the emperors. A century later, Bishop Ivo of Chartres produced the Pannormia, a similar collection, improved on that of Burchard by the use of the Digest and Code of Justinian. Ivo was a contemporary of Henry I of England, and his date carries us past the Norman Conquest and the Hildebrandine period.

We must revert to the third element of church law, the religious laws of the kings. Of these the history in England is straightforward enough. The Anglo-Saxon sovereigns, acting in the closest union with their bishops, made ecclesiastical laws which clothed the spiritual enactments with coercive authority, and sometimes seemed to ignore the lines which separate the two legislatures; such sacred laws of Alfred, Canute, and Ethelred only affect our subject so far as they operated on the common law of the country in such matters as tithes, observance of holy days, and the like; they do not become by themselves a part of the later church law. On the Continent there is this difference:—the Theodosian code had to a great extent won its way over Western Europe; it enters into the codes of the barbarians, into the law of the Pays du droit écrit, and into the canon law of France; the capitularies of Charles the Great and his successors, even to a greater extent than the Anglo-Saxon laws, combine ecclesiastical with secular dooms; and such of them as are accepted find their way into the Church law. But, over and above this infiltration, comes the necessary requirement of developing jurisprudence. The New Testament, the canons of the General Councils, the Penitentials, the Decretals, did not invent new systems of procedure. Where the Roman courts existed they became the model of the Church courts, and where they did not the ecclesiastical procedure followed the lines of the national and customary tribunals. Hence, wherever the Theodosian code spread, it carried the Roman Edition: current; Page: [255] procedure as a part of church administration; where, as in England, only faint scintillæ of the civil law were to be found, the Church courts must have proceeded on much the same rules as the popular courts. And this is a matter to be seriously noted as we reach the critical point of the Norman Conquest. It is true we know very little about ecclesiastical procedure before this date, and what we do know is not very clear; we may however affirm pretty confidently that there was, over and above the strictly private discipline of the Confessional, a system of church judicature with properly designated judges, and a recognised though not well-defined area of subject-matter in persons and things. To put it very briefly, sacred persons and sacred things, men in orders, monks and nuns, sacred places, churches and churchyards, sacred property, lands, books and the furniture of churches, were under the special protection, and, as protection implied jurisdiction, under the jurisdiction of the bishops, who likewise had authority in matrimonial and like causes. There was a territorial episcopate, and the bishops exercised their judicial powers with the help of archdeacons and deans. But, it would appear, these judicial matters were transacted in the ordinary gemots of the hundred and the shire. Just as the court baron, court leet, and court customary of a manor are held together, so the court spiritual and the hundred or county court were held together; and the proceedings were probably in strict analogy. Just as suretyship was the rule in the hundred court, it was in the bishop’s court; so also compurgation and ordeal, the law of witness, and the claim of the mundborh over the person of the litigant. I am not prepared to say that through intercourse with the French Church some portions of the Roman procedure may not already have crept in, but, so far as I can see, I am inclined to the belief that, whilst there was a customary canonical law and a substantially canonical judicature, the character of the procedure was customary and primitive, and differed in nothing materially from the lay procedure. The bishop declared the ecclesiastical law as the ealdorman did the secular, the assessors determined the point on which evidence or oaths were to be taken, and the suitors Edition: current; Page: [256] were technically the judges. Of course all this is stated subject to correction: but this I suppose to be the case at the Conquest, and more or less the case until the close of the reign of Henry I, for the changes introduced by the Conqueror were not instantaneous in their effects.

And we come now to the consideration of the effects of the Conquest on this branch of our constitutional system. Here we have to remember two things: first, that the Norman Conquest coincided in time with the Hildebrandine revival; and secondly, that the Conqueror carried through his most important measures of change by the work of Norman ecclesiastics, many of them lawyers rather than theologians; of whom Lanfranc, the representative of a family of Lombard lawyers, was the chief. These two points enable us at once to estimate the importance of the act by which William separated the work of the bishops’ courts from the work of the sheriffs’ courts, and promised the assistance of the royal or secular justice in carrying into effect the sentences of the episcopal laws. In the first place he had substituted for the native bishops, used to national law and customary procedure, foreign bishops learned in the Hildebrandine jurisprudence and the Roman procedure; and in the second he had liberated the Church judicature from its association with the popular judicature. But, you will observe, much still remained to be done; for not yet had either Ivo or Gratian collected the Decretum, nor had Irnerius and the Bolognese lawyers begun to lecture on the Pandects; there was not as yet a recognised canon law or a complete civil law procedure.

One immediate result more I will notice, the breaking up of the dioceses into archdeaconries; for up to this time the bishops had done most of their own work. Dunstan had sat at the south door of Canterbury Cathedral and had administered supreme justice; and one archdeacon, generally in deacon’s orders, had been a sufficient eye for the bishop where he could not be personally present. The Norman bishops wanted more than one eye, and, almost immediately after the Conqueror’s legislative separation of the courts, we find that the archidiaconal service is formed on the plan Edition: current; Page: [257] of that of the sheriffs; the larger dioceses, such as Lincoln and London, being broken up into many archdeaconries; and the smaller ones, such as Norwich, following the example. There was a vast increase in ecclesiastical litigation, great profits and fees to be made out of it; a craving for canonical jurisprudence and reformed judicature analogous to the development of constitutional machinery; and with it the accompanying evils of the ill-trained judges and an illunderstood system of law. This continued to be the case throughout the twelfth century, and very conspicuously so in the earlier part of it. The archdeacons were worldly, mercenary, and unjust; the law was uncertain and unauthoritative; the procedure was hurried and irregular. The evils were not confined to England, although they were here intensified by the fact of the novelty of the system.

On this condition of things a new light arose in the middle of the century; the resuscitation of the jurisprudence of Justinian and the codification of the canons by Gratian. The one supplied the necessary procedure, the other the necessary law. I place them together, because their operation reaches England nearly at the same time; more minutely, the civil law revival precedes the canon law revival by about forty years. I must say also that, when I speak of the civil law as remodelling procedure, I do not mean that it introduced any sudden changes, but that it supplied principles and precedents for the due development of the older Roman procedure, which had become as much a matter of custom as that of the popular jurisprudence was. The real founder of the medieval canon law jurisprudence in England was Theobald, Archbishop of Canterbury, who was consecrated in 1139 and ruled the Church until 1161; he is best known popularly as the rival of Henry of Blois, Bishop of Winchester, and as the patron of Thomas Becket; but his real importance is irrespective of personal matters. He saw the mischief which the maladministration of the archdeacons was doing, and instituted a nearer official of greater authority and more direct responsibility. John of Salisbury, the philosopher and historian, was, as secretary to Archbishop Theobald, the ancestor of the diocesan chancellors, officials Edition: current; Page: [258] and vicar-generals, who begin to execute with more regularity and intelligence the law of the Church. Henry of Blois when legate had, as we are told, greatly encouraged the practice of appeals; and an immense proportion of John of Salisbury’s letters, written in the name of Theobald, are concerned with questions of appeal, on the rights of advowsons, and other branches of clerical discipline. But that was not all. In the year 1149 Theobald brought from Lombardy and settled at Oxford as a teacher Master Vacarius, who had given himself to the study of the Code and Digest, and drawn up handbooks of procedure sufficient to settle all the quarrels of the law schools. Stephen, the reigning king, set himself stedfastly against this new teaching and expelled Vacarius; he had on his side the unintelligent dislike of foreign manners, the prudent conservatism of the elder prelates, and the personal jealousies of his brother Henry, whose opponent in political matters Theobald was. Accordingly the civil law was for the time banished. In the year 1151 Gratian completed the Decretum, the concordance of the canon laws; and they shortly found their way to England, where however they were scarcely more warmly received than the civil laws had been, but were not directly banished. It is curious that both Prynne and Selden, not to mention Coke, have confounded the teaching of Vacarius with the attempt to introduce canon law. It is certain that what Vacarius taught was the Corpus Juris of Justinian; but the two systems are thus closely joined together both in time and in essential character. And from this time dates in England that extremely close connexion between the two systems which is recognised in the ‘Utriusque juris doctoratus’ and in the fact that every great canonist throughout the middle ages in England was also a great civilian.

The first result perhaps of these novelties, so far as English law is concerned, was the improvement in legal education. Although Bologna and Pavia could not be suffered to come to England, England might go to Bologna; and a stream of young archdeacons, at the age at which in England a boy is articled to an attorney, poured forth to the Italian Edition: current; Page: [259] law schools. Many and varied were their experiences; but invariably they get into debt and write home for money; some of them fall in love and become the quasi-husbands of Italian ladies; some get a bad character for learning the Italian art of poisoning; some are killed in frays with the natives; some remain abroad and become professors; all more or less illustrate the scholastic question which John of Salisbury propounds, Is it possible for an archdeacon to be saved? There are some few exceptions, but they seem to be generally of the men who stuck to theology and went for their education no further than Paris. The scrapes of the archdeacons however I have spoken of before; they are a really amusing feature of the epistolary correspondence of the time. I pass on to something more important.

Great as the advantages might be of an improved code of laws and system of procedure, neither the canon law nor the civil law was accepted here; they were rejected not only by the stubborn obscurantism of Stephen, but by the bright and sagacious intellect of Henry II. Now, considering the close political connexion between Theobald and the Plantagenet party, it is not at all impossible that Henry II may have been among the pupils of Vacarius: certainly he was more of a lawyer than mere empirical education could make him, and, as certainly, he was awake to the difficulties to which too ready acceptance of the reformed jurisprudence would expose him. How great a lawyer he was I need not tell you; how directly his difficulties were owing to the new doctrines of the canon lawyers we know from the history of Becket. I will only mention two points that illustrate his permanent relation to the subject: first, his Assize of Darrein Presentment removed all questions of advowsons and presentations from the ecclesiastical courts where they were the source of constant appeals to Rome; and secondly, by the Constitutions of Clarendon he did his best to limit the powers of the ecclesiastical lawyers in criminal matters and in all points touching secular interests. Against this must be set the fact that to his days must be fixed the final sliding of testamentary jurisdiction into the hands of the bishops, which was by the legislation of the next century permanently Edition: current; Page: [260] left there, in a way which, however accordant with the policy of the papacy, was an exception to the rule of the rest of Christendom. Henry, although not by any known assize or constitution, must have restrained the ecclesiastical judicature from interfering in secular matters, except in the two points of matrimony, which was closely connected with a sacramental theory, and of testamentary business. These two, however, furnished matter sufficiently remunerative for a school of church lawyers; and the more distinctly ecclesiastical jurisdiction over spiritual things and persons provided much more. A thoroughly learned class of civil and canon lawyers is required over and above the thoroughly learned class of common law and (to anticipate a little) chancery lawyers of the royal courts.

Here then we begin to mark signs of increasing divergence. The common lawyers of England, the men who tread in the steps of Glanville, who are closely allied with the baronage and with the customary theories of prerogative, are opposed to the introduction of either branch of the Roman law. Glanville, anticipating the decision of the Statute of Merton on the question of legitimisation of children by the subsequent marriage of their parents, speaks of the ‘canones legesque Romanorum’ with the same tone of aversion. The ecclesiastics who followed the common law were as adverse to the Roman law as were the knights and barons who learned secular jurisprudence in the discharge of executive office: and very rarely do we find a great judge of the courts of Westminster taken from the ranks of canonists or civilians. Yet the educational influence of these two great systems was making itself felt very early indeed. Not only does Glanville, in the preface to his manual, cite from the Institutes the language in which he addresses his master, but large importations from the civil law procedure must have come in as the jurisprudence developed; and Bracton, who wrote a century after Glanville, makes direct citations from the compilations of Justinian. If I were not afraid of the lawyers, I should venture to say that the whole theory of Appeals and the whole subject of Equity are strange to the national growth of the common law, and, although widely Edition: current; Page: [261] differing in details, far more akin to the civil law, the practice of which in ecclesiastical causes was steadily before men’s eyes whilst they were developing the new systems. But I dare not venture to say this without more authority.

As we proceed, however, we are struck more and more with the prominence of the scientific element in legal education. The great compilations are not received as having any authority in England, but they are the sole legal teaching which is to be obtained in the schools where Englishmen go to learn law. The common law judges may not be canonists or civilians, but the statesmen, in many cases at least, are; certainly archbishops Langton and Boniface and Peckham and Winchelsey. And even of the common lawyers it must be affirmed that their teaching, such as they had, was not merely empirical, not the mere knowledge of customs and the few statutes that were as yet incorporated in the common law code; but scientific, that is, learned from the writings of jurists who treated not merely of the letter or the case, but of the spirit and reason of legislation. Glanville’s is indeed but a book of procedure, but Bracton, Fleta, and Britton are jurists, and whilst they illustrate and explain the common law, bring to the interpretation an intelligence and authority that look to something far higher than precedent. We see how long the old doctrine of the authority that is in the mouth of the judge stands out against the new doctrine that is in the letter of the law. Like the ‘decretum,’ like the ‘responsa prudentum’ of the Pandects, the work of Bracton is a scientific rather than an authoritative text-book. But I am anticipating what I ought to put in proper order somewhat later.

Whilst the study of these foreign systems was becoming increasingly important and increasingly common, the popular dislike of foreign law was not in the least diminished. I must here couple the two Roman systems together, for to all purposes of domestic litigation they were inseparable: the ‘canones legesque Romanorum’ were classed together and worked together, mainly because it was only on ecclesiastical questions that the civil law touched Englishmen at all, but also because without the machinery of the civil law Edition: current; Page: [262] the canon law could not be worked; if you take any well-drawn case of litigation in the middle ages, such as that of the monks of Canterbury against the archbishops, you will find that its citations from the Code and Digest are at least as numerous as from the Decretum. Moreover the accretions of the Decretum, the Extravagants as they were called, that is the authoritative sentences of the Popes which were not yet codified, were many of them conveyed in answers to English bishops, or brought at once to England by the clergy with the same avidity that lawyers now read the terminal reports in the Law Journal. The famous decision which Glanville quotes about legitimation is embodied in what then was an Extravagant of Alexander III, delivered to the bishop of Exeter in 1172, founded no doubt on a Novel of Justinian but not till now distinctly made a part of church law. And this point further illustrates what I was saying: for it is the point on which the great dictum of the council of Merton turns in 1236. The English hatred of the foreigners was in that year fanned to white heat by the importation of the king’s half-brothers and the new queen’s uncles: it was an unlucky moment for Grosseteste and the bishops to press that the English law of bastardy should be altered to suit the canon and civil law of Rome. The murmurs were already rising that William of Valence was going to change the constitution. Notwithstanding the influence of Grosseteste, the king and the barons declared ‘Nolumus leges Angliae mutari.’ That is a well-known story; but it is perhaps not equally well known that the king had just a year before issued an order which stands in close parallelism with the banishment of Vacarius. By a letter to the Lord Mayor of London, dated Dec. 11, 1234, he had directed that no one should be allowed to hold law schools in the city of London or teach the Laws. What laws were these? Coke thought that the king referred to Magna Carta and the Carta de Forestis; but Selden, and Prynne after him, pointed out that this was inconceivable; and that doubtless the Laws were the canon laws. I think that under the term Leges both civil and canon law were intended, but certainly at the moment the danger from the Edition: current; Page: [263] canon law was greater. In the year 1230 Gregory IX had approved of the five books of Decretals codified by Raymund of Pennafort from the Extravagants of the recent Popes and added to the Decretum of Gratian. In 1235 Matthew Paris tells us the Pope was urging the adoption of them throughout Christendom. But they were not received in England, although they continued to be the code by which English causes were decided at Rome, and began to be an integral part of the education of English canonists. And here again we have to distinguish between the scientific or implicit and the explicit authority of these books. Great as the influence of Justinian’s code has been, there are very few countries in Europe where it has been received as more than a treasury of jurisprudence; the ‘Siete partidas’ of Alfonso the Wise was a book of jurisprudence, not a code of law; the independence of the Gallican Church turns, as a historical question, on the non-reception of Roman decrees, the acceptance of the council of Basel, and the non-reception of portions of the Tridentine canons, the incidental working of which must, notwithstanding, have been irresistible and undeniable. So in England neither the civil law nor the canon law was ever received as authoritative, except educationally, and as furnishing scientific confirmation for empiric argument; or, in other words, where expressly or accidentally it agrees with the law of the land. Nay, the scientific treatment itself serves to confuse men’s minds as to the real value of the text; and in both laws the opinions of the glossers are often cited as of equal authority with the letter of the law or canon.

But this same date 1236 brings me to another point; the beginning of the Codex receptus of Canon Law in England; in spite of the Council of Merton and the closing of the law schools of London. Since the Conquest most of the archbishops had held provincial synods and issued provincial canons; but many of these were acts of a temporary character only, and, even when they received support and confirmation from the kings, seldom amounted to more than the enforcement of discipline which had previously been authorised by papal or conciliar decrees. These canons are Edition: current; Page: [264] extant in the pages of the annalist, but remain rather among the Responsa Prudentum than as materials for a code. Just, however, as the statute law of England begins with the reign of Henry III, so does the codification of the national canon law. Archbishop Langton’s Constitutions may be set first, but next in order, and even of greater authority, come the Constitutions of the legate Otho, which were passed in a national council of 1237. After these come Constitutions of the successive archbishops, especially Boniface of Savoy and Peckham, which were drawn up in a very aggressive spirit; Boniface taking advantage of Henry III’s weakness to urge every claim that the English law had not yet cut down, and Peckham going beyond him in asserting the right of the Church against even the statutable enactments of the state. Between Boniface and Peckham in the year 1268 come the Constitutions of Othobon, which were confirmed by Peckham at Lambeth in 1281, and which, with those of Otho, were the first codified and glossed portions of the national church law. In the reign of Edward III, John of Ayton, canon of Lincoln, an Oxford jurist it is said, collected the canons adopted since Langton’s time and largely annotated the Constitutions of Otho and Othobon. Contemporaneously with this accumulation of national materials, the Corpus Juris of the Church of Rome was increasing; Boniface VIII added the sixth book to the five of Gregory IX, and John XXII added the Clementines in 1318; and his own decisions, with those of the succeeding popes, were from time to time added as Extravagants unsystematised. The seventh book of the Decretals was drawn up under Sixtus V as late as 1588; so that practically it lies outside our comparative view. Of course very much of the spirit of both the sixth book and the Clementines found its way into England, but the statute law was increasing in vigour, the kings were increasing in vigilance, and after the pontificate of Clement V the hold of the papacy on the nation was relaxing. Occasionally we find an archbishop like Stratford using the papal authority and asserting high ecclesiastical claims against the king, but the age of the Statutes of Præmunire and Provisors was come, and Edition: current; Page: [265] no wholesale importation of foreign law was possible. Not to multiply details, I will summarily state that in the reign of Henry V, William Lyndwood, the Dean of the Arches, collected, arranged, and annotated the accepted Constitutions of the Church of England in his Provinciale, which, with the collections of John of Ayton generally found in the same volume, became the authoritative canon law of the realm. It of course was proper in the first instance to the province of Canterbury, but in 1462 the Convocation of York accepted the Constitutions of the southern province as authoritative wherever they did not differ from those of York, and from the earlier date the compilation was received as the treasury of law and practice. Nor were any very material additions made to it before the Reformation; for although the Church of England was deeply involved in the transactions of the Council of Basel, and might, if the matter had been broached as distinctly as it was in France, have formally accepted its canons, no such incorporation of those canons ever took place here as was accomplished in the Pragmatic Sanction of Bourges in 1438.

Still, authoritative as Lyndwood’s code undoubtedly was, it was rather as the work of an expert than as a body of statutes that it had its chief force. The study of the canon law was a scientific and professional, not merely mechanical study; and just as much was the study of the civil law also. I think that I am right in repeating that it was mainly as a branch of church law that the civil law was studied at all; but I do not mean that it was so exclusively. In the infancy of international law and the administration of both admiralty and martial law, the English jurists had to go beyond their insular practice, and to no other source could they apply themselves; hence the association which to the present day has subsisted between the curiously unconnected departments of maritime and matrimonial jurisdiction. It is really owing to the distinction between scientifically and empirically trained lawyers. Of the indirect influence of scientific jurisprudence on the common law and chancery I have spoken already.

England has then for at least two centuries before the Edition: current; Page: [266] Reformation a body of law and a body of judges, for ecclesiastical and allied questions, quite apart from the law and judicial staff of the secular courts; and, with the growth of the Universities, she begins to have educational machinery for training her lawyers. In this department of work, however, the scientific study has a long start and advantage over the empirical. The common law has to be learned by practising in the courts, or by attending on their sessions. The apprentices and serjeants of the Inns of Court learn their work in London; their study is in the year books and the statute book, a valuable and even curiously interesting accumulation of material, but thoroughly insular, or less than that, simply English. The canonists and civilians have also their house in London, the ‘Hospitium dominorum advocatorum de arcubus,’ but they are scarcely less at home at Rome and Avignon. The canonist and civilian learn the legal language of entire Christendom; the London lawyer sticks to his Norman-French. The Norman-French of Westminster is unintelligible beyond the Channel and beyond the border. Scotland, the sister kingdom, is toiling without a common law system at all until, in the sixteenth century, James V introduces the law of Justinian as her treasury of common law, and thus gains University training and foreign experience for her lawyers: but England has an ancient system and is content with her own superiority; her common law is of native growth, strengthening with the strength of her people; she sees the nations that have accepted the civil law sinking under absolutism; as distinctly as ever ‘non vult leges Angliæ mutari.’ But she has ceased to banish the skilled jurist. Oxford and Cambridge have their schools of both the faculties. The civil law at Oxford had its schools from the fourteenth century in Cat Street, on the north of S. Mary’s, in Schidyard Street, and in the great civil law school in S. Edward’s parish where Archbishop Warham learned law. The canon law school was in the neighbourhood of S. Edward’s church also, and was rebuilt in 1489 by subscription of the canonists. Wood enumerates no less than seven distinct sets of Scholæ Legum, the majority being for civil law. In the colleges legal study has its proper Edition: current; Page: [267] endowments. At Merton the study of the canon law is by the founder’s statutes permitted to four or five of his scholars, that of the civil law is allowed to the canonists as subsidiary to their proper study, pro utilitate ecclesiastici regiminis. At Oriel five or six fellows, with consent of the seniors, might read the canon law, and by dispensation of the provost, the civil law also. At Exeter, one of Stapledon’s fellows was to study Scripture or the Canon Law. We learn from Mr. Mullinger’s invaluable book on Cambridge, that at Gonville Hall, founded about seventy years after Merton, each fellow was allowed to study canon law for two years. It might be possible to trace in the successive foundations vestiges of the old subsisting and often revived jealousy of the studies; for Merton was founded at a time when, as Roger Bacon tells us, the civil law was looked on with jealousy as a mere professional or money-making study, whilst before the foundation of Gonville Hall the conflict between John XXII and Lewis of Bavaria had made the political tendencies of these studies more important and obvious. At Trinity Hall, which was nearly of the same date as Gonville, ten civilians and seven canonists were seventeen out of the twenty statutory fellows. At New College, out of seventy there were to be ten civilians and ten canonists, but these were reduced by Waynflete to two civilians and four canonists. At All Souls, sixteen out of forty were to be lawyers; at King’s College, Cambridge, out of seventy, two civilians and four canonists; while at Catharine Hall both the canon and civil law were excluded. These variations depend no doubt on the special intentions of the founders to promote scientific study, or to insure the worldly advancement of their pupils, and, to some extent, on the varying relations between theology and law of which I must speak in the next lecture. It is however clear, at the lowest estimate, that abundant encouragement and opportunities for the study could be found in both the seats of learning. Closely allied as the canon and civil laws were, they composed two faculties; with regular schemes of lectures, fees, and exercises; the doctor of the civil law had to prove his knowledge of the Digest and the Institutes; the doctor of Edition: current; Page: [268] the canon law must have worked three years at the Digest and three at the Decretals, and studied theology also for two years. It is, you observe, not the national church law, but the universal or scientific material, on which he is employed. In a great number of cases the degrees were taken at the same time; but as the era of the Reformation approaches, the canonists become more numerous than the civilians at Cambridge, and probably at Oxford also. But these points belong to a view of the subject on which I cannot pretend to enter now; and indeed it is in the conflict of laws rather than the conflict of studies that the present interest of the subject lies. In the next lecture I shall have to recur for some points to the ground which I have attempted to cover in this, for the struggles and jealousies of the rival and allied systems of jurisprudence do not date from the Reformation only. Here, however, I stop now, having in a cursory way traced the history of the materials of the canonical jurisprudence so far down. We shall have to begin by looking at the later history from the theological as well as from the legal side, and to follow it through the Reformation period, steering clear, as much as possible, of questions of modern controversy.

II

IN the first of these two public lectures I attempted to give a sketch of the growth of the Canon Law; its origin and materials, its introduction into England and the limits of authority which it attained here, its relation to the civil law of Rome, and the distinction between the scientific study of the Decretals in the Universities and the professional use of the Provinciale in the Ecclesiastical Courts. The second branch of the subject, as I proposed to treat it in opening the lecture, is the history of its working in competition with and in general relations to other systems of law: a branch of the discussion which compels us at once to go back to the very root of the subject. Canon law as a code, and the civil law of Rome as a treasury of procedure, working together Edition: current; Page: [269] in the hands of ecclesiastical lawyers, may be for the moment looked at together; and the first aspect which our subject then takes is the attitude of the system towards theology on the one side and to the national, or, as lawyers would perhaps call it, municipal law on the other. From the Conquest to the Reformation canon law, proceeding by civilian method and being able to call on the municipal executive to put its sentences in force, is a strong link between theology and national discipline; but a link with so much intricate workmanship employed upon it as to be offensive in many ways both to theology and to the common law. The theologian saw the great commandments of God, and the statutes of the Church, and the voice of conscience, lowered by being made dependent for their cogency on an elaborate system of human invention which fettered freedom of action, and in some respects freedom of thought also; which reduced moral obligations to a system of penances, pecuniary commutations, monitions, and excommunications, and which made use of the sacraments of the Church as the mere means and appliances of a coercion to external good behaviour, which ought to be a free-will offering and the instinctive product of a sincere heart. Do not think that I am exaggerating the attitude of repulsion in which the pure theologian and the pure moralist stood to the ecclesiastical lawyer who was making money out of the practice of the Courts Christian. You remember how John of Salisbury had doubted whether an archdeacon could be saved: Roger Bacon declares that the study of the civil law, attracting the clever men among the clergy, threw the study of theology into a second place, and secularised the clerical character, making the priest as much a layman as the common lawyer; while Richard of Bury, the author of the Philobiblion, and Holcot the great scholastic, declared, the one that the civilian, although he gained the friendship of the world, was an enemy of God; the other, that under existing relations the handmaid Hagar, despising the true wife, was in apt analogy to the contempt under which neglected theology sank in the estimation of the world as compared with the law. It is true that these remarks have a primary reference to the civil law, but, as Edition: current; Page: [270] I showed, the civil law was learned chiefly as the executive of the canon law, and it was by its relations to the canon law that it became practical and remunerative. I need not go into much detail about this, but, if I am speaking to any who attended my lectures on Ockham and Marsilius, they will remember how not only those great writers, but a crowd of minor ones, attack the canon law and its professors as the great enemies, not only of civil government but of vital religion: an exaggeration no doubt, but founded on a true principle. ‘Who,’ says John of Salisbury, himself a canonist, ‘ever rises pricked at heart from the reading of the laws, or even of the canons?’1 The practice of these studies stood to theology, stood to religion itself, in the relation in which the casuistry of the confessional stood to true moral teaching.

When however we turn, as we must do, to consider the attitude of the national law and the national lawyers, we see more distinctly how incompatible were the systems which, for four hundred years, from the Conquest to the Reformation, stood side by side, with rival bodies of administrators and rival or conflicting processes. Look first at the area of matters with which the canon law assumed to deal: it claimed jurisdiction over everything that had to do with the souls of men, and I think there is scarcely a region of social obligation into which, so defined, it would not claim to enter. It claimed authority over the clergy, in matters civil and criminal, in doctrine and practice, in morals and in manners, education and dress, in church and out. It claimed authority over all suits in which clergymen were parties, or in which ecclesiastical property was involved; I say, mark you, claimed, rather than exercised, for some of these are the points in which the struggle with the national law arises. It claimed authority over the belief and morals of the laity, in the most comprehensive way. The whole of the matrimonial jurisdiction, the whole of the testamentary jurisdiction was, we know, specially regarded as a branch of canon law; but by its jurisdiction for correction of life, ‘pro salute animae,’ it entered into every Edition: current; Page: [271] man’s house; attempted to regulate his servants, to secure his attendance at church, to make him pay his debts, to make his observe his oaths, to make him by spiritual censures, which by the alliance with the State had coercive force, by the dread of a writ of capias excommunicatum, to keep all the weightier matters of the law, not only judgment, mercy, and truth, but faith, hope, and charity also. Now the common law of the land was quite competent to deal first with ecclesiastical property, temporalities, advowsons, and the right to tithes; the canon law dealt with the qualifications of presentees and the exaction of tithes: the common law was competent to deal with matters of debt or theft; the canon law claimed to deal with matters of credit or dishonesty in legal and moral as in spiritual obligations: the common law dealt with dower, the canon law with matrimony; the common law with succession to property, the canon law with legitimacy. So over great regions of property law, and over the whole domain of moral delinquency, the medieval world had two sets of courts at which they might sue, and two sets of lawyers to keep alive with fees and retainers. The canonists affirm that a suit may be brought in the ecclesiastical court for every matter which is not cognisable in the courts of secular law, and for a great many matters which are so cognisable. There is surely an ample claim. I do not want to go into detail, but I will just point out one particular; the commissary of the Bishop of London entertained suits exactly analogous to those of the trades unions of the present day, turning on the question how far it is a breach of oath for the sworn member of a guild to impart the art and mysteries of his guild to outsiders.

Here then you see the elements of a pretty conflict; between the jurists as a matter of scientific or empiric lore, between the practising lawyers a conflict for practice and for profits; and you can see how degrading the practical part of the profession was to the theological student, or to the parish priest. Over and above this, there was the natural jealousy of the crown and the parliament. If the canon law had restricted itself to really spiritual questions, matters of belief or of morals for which the national code Edition: current; Page: [272] had no provision, it is not likely that the kings would have been jealous of papal or archiepiscopal enactments, or would have stood on their rights when the exact line was occasionally overstepped. But the extravagance of ecclesiastical claims provoked them to opposition and justified it. When the archbishops of Henry III’s reign claimed exclusive jurisdiction in suits of advowsons, the right to exact personal tithes, and to try all questions of credit granted ‘fide interposita,’ even so gentle a worm as the king turned again; and we find among his letters, and still more among those of his son, constant cautions to the primates and their convocations not to attempt anything to the prejudice of the crown and customs of the land, as well as innumerable prohibitions to ecclesiastical judges against their trying other civil suits than those which touch testamentary or matrimonial matters. Edward II had to prohibit the employment of imperial notaries. In the spiritual matters proper, the kings seldom interfered; only where a political motive was suspected, or where a servant of the crown was attacked, or where the spiritual judge had clearly gone beyond his discretion. The Church history of the thirteenth and fourteenth centuries is full of cautions and prohibitions, and of struggles between the officers who had thus to interfere with one another; and the definitions of the ‘Articuli Cleri’ under Edward II which prescribed the points on which prohibitions were to be granted, and the Statute of Præmunire under Edward III, which forbade the multiplication of appeals to Rome, did little to ameliorate relations. When however heresy became a matter of litigation, the two systems deliberately worked together; and, although there were many hitches, during the whole of the Lancastrian period there was more definite co-operation and less conflict. The common law was really becoming more a matter of scientific treatment, and the greatest judges were men who had had scientific education on both sides. Sometimes there was, as was natural, a little inconsistency and awkwardness; the bowsprit got mixed up with the rudder; as when Morton, at once archbishop and chancellor, allowed his judgment on a fraudulent executor to be modified by the reflexion that Edition: current; Page: [273] he would be ‘damnée in hell.’ But this may have been exceptional.

It must not however be supposed that the fault in this rivalry was altogether to be ascribed to the canonists. The English-trained lawyer was as infallible in that age as in this; and when we find him, and his brethren in the parliament, constantly hampering the legitimate work of the church, we see that there were two sides to the question; when in the fourteenth century the Commons petition that the clergy may not make in their convocation canons to bind the laity, it is rather a relief to find that the canons in question relate to tithe of underwood: but when in 1446 we find the clergy remonstrating that the professional lawyers ‘pretended privilege, by what right,’ they say, ‘we know not, to interpret acts of parliament and explain the mind of the legislature, and by thus practising upon the statutes sometimes ground their opinion on mysterious and unintelligible reasons, and so wrest the laws contrary to the meaning and intention of parliament;’ or petitioning that the judges who showed such strong bias should no longer issue prohibitions, but, when questions arose concerning the limits and jurisdiction of the rival courts, indifferent persons should be pitched upon to judge them; or the lawyers, on the other hand, striking at the root of all ecclesiastical jurisdiction as if it were a transgression of the Statute of Præmunire,—well, when we look at these things, we shall see that there were questions unsettled even before the Council of Trent, and hear opinions and complaints that sound like echoes beforehand of voices with which in these days our ears are too familiar.

I must, however, now proceed to the Reformation, and endeavour to determine, as strongly and as clearly as I can, the bearing of that most critical era on our subject. Henry VIII had, as early as 1515, seen a struggle between the secular and ecclesiastical jurisdictions in Standish’s case, in the course of which he is said to have expressed himself as determined to endure no division of sovereignty in his own realm. Whether that was really said or merely put into his mouth afterwards, I cannot say; but certainly no scheme Edition: current; Page: [274] of change in the relation between Church and State was set on foot for nearly seventeen years. Then the business of the divorce at Rome, and the discontent of the king with the half-hearted support of the clergy at home, completed his disgust, and he set out in the course of radical change. Having in 1531 compelled the clergy by the threat of præmunire to recognise him as supreme head ‘quantum per Christi legem licet,” he induced the Commons in 1532 to present a petition or remonstrance against the whole theory and practice of the canon law. They attacked the power of the clergy to make canons in convocation, they protested against the exaction of fees and mortuaries, and deliberately impugned the honesty and purity of the episcopal courts in all their branches and with reference both to jurisdiction and to procedure. This petition had two results; the parliament passed bills to limit the benefit of clergy and forbid feoffments to the use of churches. An earlier session in 1529 had attempted to deal with probate and mortuaries; this, by the Statute of Citations, cut down the power of the Archbishop of Canterbury to entertain suits from other dioceses except by appeal or on request, and so struck at the root of the universal jurisdiction enjoyed by the Court of Arches and its advocates. The same term—the second result of the king’s policy—the Convocation was compelled to surrender its right of meeting and legislating, and to consent to a revision of the canon law to be carried into execution by a mixed body of clergy and laity whom the king should appoint. This last concession sealed the fate of the old scientific study of the canon law, which as we have seen, was a distinctly popish study; and, if it had not been accompanied by a limiting clause, allowing the old canons, so far as they were not opposed to the law of the land, to stand until the revision was published, there would have been an entire abolition of ecclesiastical jurisdiction of any kind. In 1535 Cromwell, as the king’s vicegerent, visited the two Universities, and in both issued injunctions, that both the old scholastic teaching of the Sentences should cease, and that the teaching in the Decretals and the conferring of degrees in canon law should be abolished. What Edition: current; Page: [275] the exact legal force of Cromwell’s injunctions was has never been determined; but in these points they were obeyed: the Universities ceased to teach the systematic theology of the Schools and the systematic jurisprudence of the Decretals; and the ancient degrees of bachelor and doctor of the canon law are known, except during the reign of Mary, no more. How did this affect the civil law? you ask: well, just as it might be expected; the scientific study was abolished, the old canons were in abeyance, but the courts continued to practise, the civil law procedure was as lively as ever; and students who intended to practise as advocates took degrees in civil law instead of in both. Oxford dropped the canon law degree altogether; Cambridge, by adopting a more general form, retained a shadowy presentment of the double honour.

And now we come again to an Act which shows the continuity of the inherent rivalry between two systems which, for the sake of mutual profit, had so long worked together. In 1541 a bill was introduced into parliament which enabled married D. C. L.’s to exercise ecclesiastical jurisdiction as chancellors and commissaries; it did not pass in that year, being withdrawn on the request of Convocation, but was reintroduced and passed in 1545. So long as the two degrees were granted together, the D. C. L.’s were, as doctors of decrees, bound by the canon which forbade a married man to act as an ecclesiastical judge; but now the right of the D. C. L. simple, both to marry and to act as a judge, was secured: as the civil doctors of Bologna had done in the thirteenth century, their successors in England now married; before this they were probably, as a rule, in minor orders.

I must pass over the more important of Henry VIII’s other acts, especially the Statutes of Appeals and Submission, except just to recall the fact that in the preamble to the former of those Acts passed in 1533 he had expressed himself confident that the realm of England would, as it always had done, provide a sufficient number of spiritual men to decide spiritual questions, and of secular men to decide secular questions, under his own supreme authority Edition: current; Page: [276] and to the exclusion of any foreign jurisdiction. The other matters in which those statutes affected ecclesiastical jurisdiction lie somewhat deeper than our present speculations.

We are not however to suppose that, when the king practically abolished the canon law, he intended to hand the clergy over to the common lawyers. The procedure was, as we have seen, still kept in the hands of the civilians; but the theologians were a body of men whose functions had been to some extent usurped by the canonists, and who now for some years, under Tudor and Puritan and Laudian influences, were to come to the front. The theologians or divines divided with the canonico-civilians the authority of the ecclesiastical jurisdiction: the character of a bishop in itself was that of a divine, not of a lawyer, and we might almost say that whilst questions of application of law and procedure belonged to the lawyer, the interpretation was claimed for the divine. In cases of heresy, for instance, the theologians formulated the definition, whilst the canonists and civilians examined the teaching of the accused and determined how far he had contravened the definition. So in the question of Henry’s divorce, the divines had been called on to define ‘Can the pope dispense with a marriage with a deceased brother’s wife?’ the canonists had to determine whether the marriage between Arthur and Katharine was such a marriage as precluded the dispensation. This rule of combining theologians with canonists or civilians for commissions on ecclesiastical suits continued long after the Reformation, and ought never to have been disused.

These measures of change, sufficiently drastic one would think, had in this department satisfied Henry VIII; the scheme for revising the canon law hung fire; the powers granted to the king in 1534 were renewed for three years in 1536, and again for his life in 1544, but nothing was done in the matter during the remainder of the reign. But what had sufficed Henry VIII did not suffice Somerset or Northumberland, or the poor boy-king who succeeded him. The second statute of the first year of Edward VI went as near as possible to extinguish the episcopate; there were still to be bishops, but they were to be nominated by the king without Edition: current; Page: [277] any form of election; they were as a matter of fact appointed during good behaviour; and their jurisdiction was henceforth to be exercised in the king’s name. In him all ecclesiastical authority was vested, they were to be his ministers, their writs were to be issued in his name, their seals were to bear the royal arms; and it was only to such of them as he pleased that even such authority was to be intrusted. It was proposed, though not passed, that a Court of Chancery should be erected for ecclesiastical causes. The revision of the canon law was to be urged on, and the Universities were to be further purged from the old leaven. All this was done: in vain the Protestant bishops pleaded in the House of Lords that their position was intolerable and their dignity a mere mockery, that the moral discipline of clergy and people was entirely broken down; no act for rehabilitating them was got through parliament; the dominant interests were opposed to it. The injunctions sent to the Universities prescribed some renewal of studies; the poor canonists of course were left out in the cold, although not treated as if they were illegal or irregular: the civilians were authorised to read the Institutes, and the D. C. L., when he had reached that dignity, was exhorted to devote himself more zealously to the study of the king’s laws, both temporal and ecclesiastical. And work was to be found for him: bills were introduced to lodge ecclesiastical jurisdiction in the hands of students of the Universities, who were admitted by the archbishop. By these, however, all special privileges of the advocates were endangered and the bills dropped after passing most stages: four bills on this point were before the parliament of 1550. But again the revision of the canons was dragging behind. The king’s power of nominating revisers was asserted by an act of 1550 to last for three years, and an abortive attempt was made in the session of 1552 to renew or enlarge it; but whether it was that Cranmer found it impossible to obtain skilled assistants, or that the division of parties prevented a joint effort, it was not until near the end of the reign that the project was carried on: in 1551 and 1552 Edward issued two commissions of thirty-two, composed of equal numbers of bishops, divines, Edition: current; Page: [278] civilians, and common lawyers; the number thirty-two was reduced to eight; practically the work was done by Peter Martyr, the Oxford Professor of Divinity, under Cranmer’s eye, and the result was the compilation known as the Reformation Legum; a curious congeries of old and new material which really pleased no party; showing too much respect for antiquity and divine ordinance to please the Puritan, and too little to satisfy the men who had guided the Reformation under Henry VIII and those who were to do so under Elizabeth.

The legislation and policy of Mary were directed to uproot everything that Edward VI had originated; his bishops appointed ‘quamdiu se bene gesserint,’ were dispossessed without a struggle; his laws were repealed, many of them never to be revived; his advisers, where they would not comply, were exiled or burned: but the efforts to reinstate the old system were not successful; the monastic property could not be restored; the ranks of the lower clergy, reduced to a fraction by the abolition of chauntries and private masses, could not be recruited; and all the restored fabric hung on the life of a woman and a few worn-out old men. For the moment the canon lawyers lifted up their heads, and a few civilians took the doctorate of decrees at Oxford and Cambridge; but the complete extinction of reactionary forces, on Mary’s death, showed that the Papal system, with all that was dangerous to national life contained in it, was, so far as England was concerned, practically extinct: six years of blood and fire, of tears and prayers, of cruel jealousies and heartbreaking divisions, wrought this; and Elizabeth for some years after her accession had before her a task, not certainly easy, but not encumbered with insuperable difficulties.

The subject which we are treating now contracts its limits; for to attempt anything like circumstantial discussion of the legal history of a period into which ecclesiastical quarrels so largely enter, would be to lose oneself at once in a wilderness of controversy. I must content myself with a few generalisations and a few significant facts. The Elizabethan settlement in Church and State was a compromise, satisfactory Edition: current; Page: [279] to no party, and very unsatisfactory indeed to the constitutional lawyer or historian; but, possibly, the best arrangement compatible with circumstances. She began her reign, of course, by a reversal of her sister’s legislation; but she did not restore the Edwardian system; she did not revive the Act of Henry VIII which had asserted the king’s headship of the Church, or the Act of Edward which deprived the bishops of all original jurisdiction: the doctrine of the headship was opposed both by the Puritans and by the Catholic party; the abolition of all the high functions of the episcopate which was aimed at by Edward’s advisers was a measure which contemporary history was showing to be dangerous. But, whilst she minimised the definition of authority, she retained the virtual exercise of it: her explanation of her supreme governorship might have satisfied every one but the most Tridentine papist, but she re-enacted the most stringent part of her father’s act of supremacy; and, whilst she allowed the continuance of the church jurisdiction, she kept all control over the religious discipline of clergy and laity under the hands of the Court of High Commission. The Court of High Commission, consisting of a large number of lawyers and laymen and a small number of bishops and divines, stands to the Church in much the same relation as the Court of Star Chamber stands to the Courts of Common Law, and the Court of Requests to Chancery, a legal but most unconstitutional relation, and one which, however long it might be tolerated, was sure in the long run to endanger the whole fabric. As for legislation, Elizabeth acted, as we know, on a high principle of supremacy; such measures of church discipline as required coercive authority she allowed the parliaments to pass, but she forbade any interference whatever where that authority was not necessary. As for the ecclesiastical legislation in Convocation, she exercised her veto, i. e. she granted or withheld the consent which would make it valid, according to her own views of high policy. The rulers of the Church, who were not free from the same humiliating bondage of adulation that influenced all around the great queen, tolerated a system which gave them the substance of power, although in an unpopular and unhistorical Edition: current; Page: [280] shape. Their legislative authority was paralysed, but they could exercise a real authority as the queen’s advisers; and the jurisdiction, which they had difficulties in enforcing through their own courts, they could enforce as members of the High Commission Court. But the ecclesiastical law—how did it fare under the circumstances? In the first place the forms of the courts were maintained, and were enough to sustain the civilians who worked in them; the Prerogative Court and the consistory courts lived on the testamentary and matrimonial jurisdiction; and before the spiritual courts were tried the smaller cases of discipline which were not important enough for the High Commission Court. Doctors’ Commons, which had dwelt before in Paternoster Row or at the Queen’s Head, under the auspices of Dr. Henry Harvey, built itself a new home, with hall and library and plate and privileges for importing wine. Knowledge of canon and civil law was in parliament, as in 1585, regarded as a special qualification for service in the House of Commons on committees. In the parliaments of 1559 and 1563 were introduced bills to make a University degree necessary for ecclesiastical judges. And the canon law, as drawn up by Lyndwood, and the civilian procedure, subsisted, for the revision which had been completed by Edward’s commissioners did not approve itself to Elizabeth or her advisers, and after an abortive attempt to carry it through the parliament of 1559, took its place on the shelf of broken projects. Even the Court of High Commission, novel as its functions were and unfettered as it was in the exercise of them, condescended to borrow from the canonical jurisprudence some of its most offensive details, its ex officio oath and the censures by which it would enforce its sentences.

It was a strange composite system, perhaps the only one possible consistently with the retention of historic continuity, but obviously and most certainly tolerable only for a time. What was the attitude of theologians, of common lawyers, and of canonists towards this critically-balanced structure? To the true theologians, whether Catholic or Puritan, the whole was repulsive: we see this in the half-hearted, almost despairing adhesion of Archbishop Parker, and in the strong Edition: current; Page: [281] and justifiable protests of the Puritans; and I mention them with respect here, because this opposition to unconstitutional tyranny is the only point in which I have any sympathy with them; their tenets I hold to be untenable, and their methods of promoting them by calumny, detraction, and coarse ribaldry I think entirely detestable; but I do think they were right in denouncing the Court of High Commission and all its works. Even conservative churchmen like Hooker, in their defence of the ecclesiastical system, are hampered by the consciousness that much of what existed was indefensible. The bishops saw their position as bishops ignored, and the Puritans saw the power which they thought should be exercised by their own ministers exercised through a royal commission: the bishops however had the power and endured the ignominy, the Puritans suffered and waited for their turn to persecute.

The lawyers were not all of one mind; Coke the great lawyer was himself of two minds; he liked the crown better than the episcopate, but he loved the common law better than the crown; and his inconsistency produces some curious results on his teaching. This leads us to two or three facts. From 1587 to 1591 the famous Cawdrey’s case drew its grievous length along. The High Commission had deprived Cawdrey for nonconformity; the question arose, had the Commission under the terms of the Act of the queen’s first year exceeded its authority? The resolution finally adopted by all the judges, and recorded and approved by Coke, affirmed that the ecclesiastical prerogative of the crown was such that the powers of a commission issued by it were not limited by that statute, but covered the whole range of ecclesiastical jurisdiction; and therefore the sentence was good. The judgment in Cawdrey’s case, full of bad law and worse history, is often referred to even now by lawyers with a respect which it does not merit; here it is useful as showing to what lengths the common lawyers under Elizabeth would go in support of the authority of the crown over things ecclesiastical. It stimulated the Puritans in and out of the Church to bitterer action, and disabled the hands of the bishops who, like Andrewes, would rather have taken the Edition: current; Page: [282] responsibility of their own acts. Twenty years later Coke himself declared against the constitutional character of the Court of High Commission, and, by refusing to act upon it, paved the way for its downfall. But Coke was then in opposition to the king’s advisers, and made it his account to be an independent judge. But I am anticipating.

The change of Elizabeth for James I was a critical event in English Church history. James’s dealings with the Church are not among the strongest, but are perhaps among the least reprehensible parts of his administration. He willingly confirmed the canons of 1604, which make a substantive addition to the canonical lore of the clergy. He failed to secure co-operation between the House of Commons and the Convocation, or between the bishops and the Puritan divines. But this is no wonder. A House of Commons which could listen to Sir Herbert Crofts declaring that the Church had declined ever since doctors began to wear boots; or could expel Mr. Sheppard, M. P. for Shaftesbury, for explaining that ‘dies Sabbati’ meant not the Sabaoth as they called it, but Saturday, and suggesting that as David danced before the ark, the legality of dancing was a question on which the bishops might decide before it was altogether forbidden,—such a House of Commons was not likely to impress men like Hooker or Andrewes with respect, or King James either. It is clear I think that, if the Puritan party had been well represented at the Hampton Court Conference, James would have seen justice done to them; but he saw their intolerance and their frivolity, and the balance remained unredressed. One of their minor complaints, against the issuing of ecclesiastical sentences by lay chancellors, touches directly on our subject: their idea was to give all the disciplinary power to the clergy, but to their own clergy: the prelates of the time chose to maintain the status quo which left the power where it was. On this point the civilians were peremptory. Some of the prelates, either wishful to promote their sons or willing to lodge Church discipline in clerical hands, appointed clergymen to be chancellors. The doctors took umbrage at this, petitioned King Charles I in 1625, and obtained from him Edition: current; Page: [283] an order to remove the intruding officials and to substitute qualified civilians.

Another interesting point arises at James’s accession. In the hurry of his first parliament the Act of Mary which repealed the 1 Edw. VI. c. 2, by which the conge d’eslire and the independent jurisdiction of the bishops were abolished, was itself repealed; and the lawyers, or some of them, held that the Edwardian law was revived, that the whole episcopate was intrusive, and the whole of the Church courts illegal. This was long in controversy, and it was only in 1637 that the judges finally resolved that the law of Edward, as contravening a law of Henry VIII which had been formally re-enacted, was not revived by the repeal of the Marian statute. If that resolution had not been accepted, the whole existing fabric of the Church must, so far as secular interests were concerned, have fallen to the ground.

But the opening of James I’s reign is important for a third critical question. In 1605 Archbishop Bancroft presented from Convocation a series of articles against the proceedings of the common law judges in issuing prohibitions and claiming the exclusive right to interpret acts of parliament touching the Church. The long argument on this subject, which is to Coke’s Second Institute what Cawdrey’s case is to the Reports, is of considerably greater weight; no doubt there was much to be said on both sides, and the voice of the Convocation of 1605 was in harmony with that of 1559 and 1446, where the claims of the theologians to interpret acts that touched theology were fairly stated; but Coke embellishes the report with words that have an amusing cogency even in the present day; ‘for judges expounding of statutes that concern the ecclesiastical government or proceedings, it belongeth unto the temporal judges, and we think they have been expounded as much to the clergy’s advantage as either the letter or intention of laws would or could allow of: and when they have been expounded to their liking then they could approve of it, but if the exposition be not for their purpose then they will say as now they do that it appertaineth not unto us to determine of them.’ Anyhow the judges agreed that they were the proper interpreters of Edition: current; Page: [284] the acts of parliament; and as the whole liturgy, and indeed the Bible also, might be brought under those terms, there was practically no limit to their assumption of infallibility; for the common law judges could not, like theologians, afford to leave any question unsolved.

Well, Coke was right as to the bishops, as was proved in 1612, when the common lawyers allowed bishops King and Neill to burn two heretics under a common law writ, for which Coke’s authority might be pleaded, although all the earlier legislation against heretical pravity had been abrogated. The invulnerability of the common law which had maintained the High Commission in Cawdrey’s case, now treated the issue of the writ ‘de heretico comburendo’ as a matter of its own, and brought equal shame on theology and jurisprudence. The heretics who were burned were men whom the Puritans did not care to defend; they would have burned them as willingly as they would have done the bishops.

And here let me say by the way, great as the horrors of religious persecution are, they cannot be properly estimated without some consideration of the value set upon human life both at the period in which they occur and at other times: I believe that I could show that all the executions for religious causes in England, by all sides and during all time, are not so many as were the sentences of death passed in one year of the reign of George III for one single sort of crime, the forging of bank-notes.

But I must pass on, leaving the Laudian period altogether out of sight: and indeed it is not, for our purpose, so important as the earlier portion: Laud and Charles were, neither of them, men who were satisfied with such things as the High Commission Court, and the sinking of ecclesiastical discipline in the state administration; but they did not make their way to any better system, and supported that which was to them for the time the only possible system. With the opening of the struggle in 1641 the Court of High Commission fell to the ground, and at the Restoration its abolition was confirmed by the first parliament of Charles II.

During the Elizabethan and Jacobean period the study of Edition: current; Page: [285] church law had not been neglected; for it had shared the benefit of the great historical and antiquarian revival of which Parker was the first leader, to which Spelman belonged, and which reached its climax in Selden and Prynne. Both of these eminent writers studied canon law from antagonistic grounds: Selden regarded it as a philosopher ardent for liberty; Prynne as an enthusiast, who had his own persecution to avenge and the thesis of royal prerogative to defend with all the zeal and learning of a convert. Selden was a real jurist; Prynne an indefatigable searcher of records. But, when at the Restoration the removal of the incubus of the High Commission, and the political education which the Caroline divines had gone through, enabled them to restore the old ecclesiastical jurisdiction with some hope of honest and successful issue, the canonists and civilians showed that life was still in them. The old black-letter Lyndwood was taken down from the shelf, rebound, and annotated. Dr. Sharrock in 1664 abridged the Provincial for the use of students, and in 1679 the Oxford edition, which rapidly displaced the black-letter, was published with all Lyndwood’s commentaries and Ayton’s work on the Constitutions. The study of the civil law needed no revival; it had been kept up by the antiquaries and admiralty in the worst times; and, in the Universities, the faculty fellowships secured at least a languid succession of law degrees. The D. C. L. of Oxford too had achieved the dignity which now belongs to the honorary degrees at Commemoration; and in 1649, at what Antony Wood calls the Fairfaxian Creation, both Fairfax and Cromwell were made doctors of the civil law. According to Wood, in 1659 Nicolas Staughton, of Exeter College, was admitted doctor both of civil and canon law; and it is not impossible that there were other attempts to revive the canon law doctorate as an adjunct to the degree in civil law. Cambridge had always retained the shadow of the double degree, for the Leges or LL. to which she admits her doctors are a possible survival of the ‘Utrumque Jus’ of the old University system; and in 1669, Richard Pearson, brother of Bishop Pearson the commentator on the Creed, claimed to be admitted in distinct terms to both faculties. Edition: current; Page: [286] The Archbishop of Canterbury also, under the Dispensation Act, has the unquestioned right to make a doctor of canon law, although I am not sure that it has ever been exercised. But at Oxford the designation of the degree had latterly come to be restricted to civil law; and when in 1715, or thereabouts, Mr. Charles Browne of Balliol College applied to the Vice-Chancellor, Dr. Gardiner, for leave to proceed as bachelor and doctor of the canon law, he was told that he could not be prevented from doing so if he wished it, but that it would give the University a great deal of trouble; and the poor man died before he achieved the object of his ambition.

These notes are, however, of little importance, except as illustrating the revival of the ancient study, and the attention which the ecclesiastical questions of the day were calling to ancient practice. In point of fact, the whole of the second and last act of the Stewart dynasty was full of ecclesiastical questionings and excitements, which, though they did not directly touch our subject, stimulated the studies most closely connected with it. The struggle under James II, the position of the Nonjurors, the relation of Convocation to Parliament, the Whistonian and Bangorian controversies, all drew in lively partisans to the investigation of legal and ecclesiastical problems. The names of Hody, Kennet, Atterbury, Wake, and Gibson, all leading Oxford men, and men of deep research and minute if not accurate reading, are conspicuous in this regard; and, as for constitutional purposes it may be said that the very dust of their writings is gold, it would be ungrateful indeed to speak of their earnestness in the main object as misplaced. Gibson stands out more distinctly than any of the others as a great canonist, and his Codex or Collection of English Church Statutes is still the standard work and treasury of all sorts of such lore. There were too Johnson, Wilkins, and many other honest and subordinate workers on the theological as well as on the legal side. But the history of this department of law draws quickly to an end. The Hanoverian policy with regard to the Church and Convocation fell on all politico-ecclesiastical life as a blight. The Nonjurors were left out of the pale of the recognised laity, the common lawyers edged the theologians out of the Edition: current; Page: [287] court of delegates, the Convocations were silenced, and the bishops, almost as much as in Elizabeth’s time, made their position in the House of Lords the fulcrum of all the force they ventured to exercise. Except for testamentary causes, and rare occasions of matrimonial and slanderous causes, the Church jurisdiction ceased to exist, and so continued dormant until in our times, in 1849 and in 1850, the Gorham case roused the attention of both lawyers and clergymen to the fact that without knowing it they had let the centre of ecclesiastical gravity become seriously misplaced. Into this region of discussion, for many reasons, I must not attempt now to make my way.

A few years after the Gorham controversy, a change or series of changes set in from another quarter: the matrimonial jurisdiction was remodelled when the facilities for divorce were increased, and the whole testamentary jurisdiction was withdrawn from the nominal superintendence of the archbishops. The Courts, the profits and privileges of which had so long maintained the close corporation of Doctors’ Commons, and had caused the study of canon law in some at least of its branches to be languidly pursued, were radically and fundamentally changed; and, although it was difficult at once to improvise new forms and rules of procedure to take the place of the ancient forms and those which had grown out of them, these forms also were doomed. In the still more recent remodelling of the whole judicial system further changes have forced themselves in; and where the lawyers could find it their policy to acquiesce in the consolidation of the common law and chancery, they could without the slightest reluctance throw the ecclesiastical and admiralty law into the same cauldron. Out of that cauldron arises a new supreme judicature, which requires, every two or three years, to be amended and strengthened. It is supposed that thereby justice is quickened and law made so cheap, that any man, poor or rich, may ruin himself with a light heart. It yet remains to be seen whether this amended system, easier and less intricate than the old, supplies as good material for training or provides as sound schools of lawyers. It is no doubt philosophically more capable of perfection. The lore Edition: current; Page: [288] of Coke and Selden, like the lore of Eldon and Stowell, is for the present at a discount. Of course looking on all this with a historical eye, one is apt to be a little disconsolate; but time will avenge them, and the neo-legal jurisprudence will soon have an array of reports and decisions that will outweigh, physically at least, the Year-books and Institutes. As for the ecclesiastical law, which by its very nature, if it loses continuity, loses identity, in the present changing aspect of the world’s politics, I for my part do not intend to prophesy. No one can investigate the letter and working of the canon law without being struck by the marvellous mixture of lofty and eternal principles of right, with arbitrary and disingenuous evasions of obligation: it reads as if the jurists, finding that the Church could not be ruled by the true principles, were determined to rule by special pleadings and artful circumventions. For the future the theologians must look to the true principles, and let the canonists and civilians pass with their evasions and circumventions into the twilight of archæology. Whether that will be so or not, or how soon, we may some of us live to see.

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9.: THE DEVELOPMENT OF THE LAW MERCHANT AND ITS COURTS1

IN this chapter we shall consider certain courts which administer a body of law outside the jurisdiction of the Courts of Common Law and the Courts of Equity. These courts fall into four groups:—(1) The Courts which administer the Law Merchant; (2) The Court of the Constable and the Marshal; (3) The Courts of the Forest; (4) The Ecclesiastical Courts. Some of these courts, and some of the bodies of law which they have created, still continue to be outside the ordinary jurisdiction of the courts of law and equity. Others have practically ceased to exist. Others have been absorbed into their system. At an early stage of their history the Council and the Chancery had an intimate relation with many of these courts. This connection with the Council has been maintained, and even strengthened. It was to the Judicial Committee of the Privy Council that appeals were, and in some cases still are brought from such of those courts of a special jurisdiction which still remain.

(1) The Courts which administer the Law Merchant.

The Law Merchant of primitive times comprised both the maritime and the commercial law of modern codes. From the earliest period in their history an intimate relationship has subsisted between them. Both applied peculiarly to the Edition: current; Page: [290] merchants, who, whether alien or subject, formed in the Middle Ages a class very distinct from the rest of the community. Both laws grew up in a similar manner from the customary observances of a distinct class. Both laws were administered in either the same or in similar courts, which were distinct from the ordinary courts. Both laws differed from the common law. Both had an international character.1

(a) Maritime Law.

We find that the maritime laws of the Middle Ages were contained in certain bodies of local customs, which, like all customary law, showed a tendency to expand as they grew older. These bodies of custom took their name from some one port. They were adopted by other ports, and one or other of them ruled the coasting trade of the whole of mediæval Europe.2

The body of customs adopted by England, and inserted at a later date into the Black Book of the Admiralty,3 were the judgments of Oleron. They originated in the laws of the commune of Oleron. They were adopted by the seaport towns of Normandy and Brittany. They were transplanted to Damme, Bruges, and to England.4 A copy of Edward’s II.’s reign, representing an early version, is to be found in the archives of the city of London,5 and in the Red Book of Bristol.6 Such was the repute of these laws of Oleron that mariners of other countries came there to obtain the judgment of its court.7

The body of customary sea laws in force in the Mediterranean was known as the Consolato del Mare. It is probably of Catalan origin.8 It was probably drawn up in the 15th century for the use of the Consuls of the sea at Barcelona, Edition: current; Page: [291] from older collections of the customs of seaport towns within the kingdom of Aragon,1 just as the Black Book was drawn up from the laws of Oleron for the use of the court of Admiralty in England. Before they had thus been reduced to writing they had been introduced into the Mediterranean ports, as the laws of Oleron had been introduced into the ports of the Atlantic and the North Sea. “They were introduced from Barcelona first of all into Valencia, then into the island of Majorca, then into Sicily, then into Roussillon, all of which countries were under the sceptre of the kings of Aragon before any version of them was printed at Barcelona. Within half a century after they were printed in the Book of the Consulate of the Sea at Barcelona, they were translated into the languages of Castile and of Italy. They were further translated into French before the conclusion of the 16th century, into Latin some time in the 17th century, into Dutch at the beginning of the 18th century, and into German in the course of the same century.”2

From the Baltic we have two codes of sea laws. One comes from Lubeck;3 another from Wisby.4 While Lubeck exercised a preponderating influence upon trade within the Baltic, Wisby exercised a similar influence upon the trade of the Baltic with foreign ports. The famous collection of the maritime laws of Wisby are compiled from three sources. The first is a Baltic source, and the earliest laws to be attributed to that source come from Lubeck. The second is a Flemish source and represents a Flemish version of the laws of Oleron. The third is a Dutch source, and represents the laws observed in the city of Amsterdam.5

Other towns possessed bodies of sea laws of their own. We possess the laws of Amalphi6 and of Trani. It is clear from7 the Domesday of Ipswich that that town possessed a court in which pleas relating to maritime matters were pleaded from tide to tide.8 But these three codes—the laws of Oleron, Edition: current; Page: [292] the Consolato del Mare, and the maritime laws of Wisby, became the leading maritime codes of Europe. In fact these codes, “form as it were a continuous chain of maritime law, extending from the easternmost parts of the Baltic sea, through the North sea, and along the coast of the Atlantic to the Straits of Gibraltar, and thence to the furthest eastern shores of the Mediterranean.”1

(b) Commercial law.

Similarly in mercantile matters we find that various towns have their codes of customs by which mercantile transactions are governed. As we might expect, the towns which possessed laws dealing with maritime matters were the towns to which some sort of mercantile laws were a necessity. Oleron,2 Barcelona,3 and Wisby4 all possessed such bodies of law. In England we have the White Book of London,5 the Red Book of Bristol,6 and the Domesday of Ipswich.7 Just as the various seaport towns imitated the customs of some one port, so the various towns modelled their charters and their laws upon certain of the more famous towns in England, such as London, Bristol, Oxford, or Winchester.8 In the Carta Mercatoria and the Statute of the Staple we get special codes of rules adapted to foreign merchants.9 The body of rules so used by the chief trading towns of Europe is known to the Middle Ages as the Law Merchant. It is, in fact, the private international law of the period.

It is clear that both the maritime and the commercial law of the Middle Ages grew up amid similar surroundings, governed the relations of persons engaged in similar pursuits, was enforced in similar tribunals. It is not therefore surprising that, from that time to this, the relations between them have always been of the closest.10 Even in England, Edition: current; Page: [293] where they have come to be applied in different courts, it has been impossible to ignore their close connection. Both, as we have seen, have appeared to English judges to be rather a species of jus gentium than the law of a particular state. In spite of the efforts of the Courts of Common Law, the attempt to separate them has produced much inconvenience1 and has only partially succeeded. “It was,” says Sir Travers Twiss, “the practice of the consuls of the sea, before pronouncing their decision to consult the Prudhomes of the sea and the Prudhomes of the merchants. . . . In the High Court of Admiralty of England it is the practice for the judge to be assisted by two of the Elder Brethren of the Trinity House of Deptford-le-Stroud, whilst the registrar of the court, at a subsequent stage of the proceedings, has the assistance of two merchants.”2

Such, then, was the nature of the Law Merchant. We must now consider the history of the tribunals which administered it. Their history will fall into three periods:—(i) The period when the Law Merchant, maritime and commercial, is administered in local courts. (ii) The rise of the Court of Admiralty and its jurisdiction. (iii) The decay of the special courts administering the commercial part of the Law Merchant and its absorption into the common law system.

(i) The period when the Law Merchant, maritime and commercial, is administered in local courts.

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Up to the reign of Edward III. the Law Merchant in both its branches is administered by local courts.

Maritime Courts.

The courts which have jurisdiction in maritime matters are for the most part the courts of seaport towns. The admiral is not an official who holds a court with a fixed jurisdiction. He is an official who rules a fleet, having incidentally certain disciplinary powers over those under his command. These powers “probably enabled the admiral to deal with depredations committed by the ships immediately under his command; but it does not appear to have included a power to hold a court administering justice generally in maritime cases.”1

In the earlier part of the Middle Ages we meet with many seaport towns which had, in the language of later law, an Admiralty jurisdiction. The Domesday of Ipswich tells us that, “the pleas yoven to the lawe maryne, that is to wite, for straunge marynerys passaunt and for hem that abydene not but her tyde, shuldene ben pleted from tyde to tyde.”2 Padstow and Lostwithiel possessed similar courts which sat at tide time on the seashore. Yarmouth possessed a court of like nature.3 The court at Newcastle dates from Henry I.’s reign.4 It would appear from the Red Book of Bristol that a court sitting at a seaport was one of the recognised tribunals of the Law Merchant.5 The Book itself contains rules upon maritime matters.6 When the court of Admiralty was established many towns, jealous probably of their ancient rights, got by royal charter exemption from its jurisdiction.7 Though their privileges were recognised by the Edition: current; Page: [295] legislature,1 they were jealously watched by the crown and by the court of Admiralty. In 1570 Elizabeth found it necessary to complain of the encroachments made by the mayor’s court of the city of London upon the Admiral’s jurisdiction.2 We find that at different periods in the 15th and 16th centuries the jurisdiction of Tynemouth, Scarborough, Chester, King’s Lynn, Harwich, Dartmouth and Chester are either called in question by, or successfully asserted against, the court of Admiralty.3 All these local Admiralty jurisdictions were swept away in 1835 by the Municipal Corporations Act.4 The only local jurisdiction left is one which is possibly older than them all, the jurisdiction of the Cinque Ports. “It presents the type and original of all our Admiralty and maritime courts.”5

From the earliest times the Cinque Ports had the right to hold pleas, and the right to wreck. They were always exempt from the jurisdiction of the Admiralty. Owing probably to the antiquity of their jurisdiction, this exception is not expressly given in their Charters. When in 1856 the general civil jurisdiction of the Lord Warden of the Cinque Ports was abolished, his Admiralty jurisdiction was saved.6 In 1869, when Admiralty jurisdiction was given to the new county courts, it was provided that appeals in Admiralty cases from the county courts within the jurisdiction of the Lord Warden should lie to him.7 Their jurisdiction is not touched by the Judicature Act of 1873, and still survives.8

The Admiralty jurisdiction, thus exercised by the local courts, was supervised and controlled by the crown. The crown was for many reasons specially interested in Admiralty cases. Foreign affairs were peculiarly within its province. The Courts of Common Law had no adequate machinery for Edition: current; Page: [296] supervising the actions or the transgressions of foreigners. Such matters frequently gave rise to diplomatic questions in the shape of expensive claims for compensation. In fact we shall see that it was largely owing to the necessity the crown was under of protecting itself against such claims that the creation of the court of Admiralty was due.

In this period the crown supervises the doings of the local courts in the following ways.

Writs are sometimes sent to the mayors and bailiffs of the seaport towns directing them to proceed.1 If they did not obey the writ they were attached for contempt. Sometimes special commissions are issued to the king’s justices or others to try cases of spoil or piracy.2 It was very often impossible for a foreigner, who had been spoiled of his goods, to get justice from an English jury.3 Such persons often petitioned the Council. The petition in such cases was often referred to the Chancellor;4 but it was sometimes heard by the Council, and writs were issued according to the result of the trial.5 In 1353 we hear of such a case being tried by the Admiral and the Council.6 This is, as we shall see, just before the first mention of the Admiral’s court.

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The Courts of Common Law sometimes, but rarely interfered in such matters.1 They had in fact no jurisdiction over contracts made or torts committed abroad.2

With respect to crimes committed out of the bodies of counties, the question how far the Common Law Courts had jurisdiction is perhaps more doubtful. Hale asserts that they did possess such jurisdiction before 1365. He cites eight cases of the reigns of Edward I., II., and III.3 These cases do not however completely prove Hale’s position, as Cockburn, C. J., points out in Reg. v. Keyn.4 It is not, however, improbable that, at a period when the court of Admiralty did not exist, the ordinary courts did sometimes exercise such jurisdiction. Criminal cases are still tried by a jury,5 and in cases of piracy the commissioners are sometimes directed to proceed “secundum legem et consuetudinem regni nostri.” Generally, however, the procedure is “secundum legem mercatoriam,” or, “maritimam.”6 The maritime law is clearly a law apart from the common law and practically identified with the law of the merchants.

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Commercial Courts.

The courts which administer the commercial law of the period necessarily present features very similar to the courts which administer the maritime law. The law merchant applied both to the domestic trader and to the foreign merchant.1 Both formed in a sense a separate class. But, as we might expect, the separation is far more clearly marked in the latter than in the former case.

The courts which administer this branch of the Law Merchant are chiefly the courts of fairs, the courts of the more important towns, and the courts of the Staple.

In the fairs of the Middle Ages much of the internal and foreign trade of the country was conducted. The right to hold a fair meant the right to hold a court of pie powder for the fair.2 A statute of 14773 recites that in this court, “it hath been all times accustomed, that every person coming to the said fairs, should have lawful remedy of all manner of contracts, trespasses, covenants, debts, and other deeds made or done within any of the same fairs, during the time of the said fair, and within the jurisdiction of the same, and to be tried by the merchants being of the same fair.” Later cases confined the jurisdiction of the fair strictly within these bounds.4 Sometimes these courts were held by the mayor of Edition: current; Page: [299] a corporate town.1 Sometimes they belonged to a lord. Of the latter class was the fair of St. Ives.2 We can see that merchants from all parts of England, and even from abroad, attended this fair. In the pleadings of the court of this fair we have mention of the communitates of Stamford, Nottingham, Leicester, Huntingdon, Godmanchester, Bury St. Edmunds, Wiggenhall, and Ypres. These fairs were not peculiar to England. “By means of them almost all foreign trade was for centuries conducted. In the fairs of Champagne . . . Besançon and Lyons in France . . . Antwerp in the Low Countries, and not least in the fairs of Winchester and Stourbridge in England, goods were bought and sold; orders were given and taken; outstanding payments were made there; and there obligations to be discharged at future fairs were contracted. To these gatherings, which lasted for several days, flocked merchants from all parts of Europe. The dealings of the merchants necessitated the use of simple rules; no technical jurisprudence peculiar to any country would have been satisfactory to traders coming from many different countries.”3 The customs of different places may have slightly varied;4 but the law, in its broad lines, as laid down by the merchants in these courts, was necessarily of the international character which has always been its chief characteristic.

The towns had in many cases the right, either by charter or by prescription, to hold various courts, of pie powder and otherwise, in which the Law Merchant was administered, in addition to many other kinds of jurisdiction, civil and criminal. The Domesday of Ipswich distinguishes many different kinds of pleas. Those which concern the Law Merchant are clearly distinct from the others.5 The Red Edition: current; Page: [300] Book of Bristol describes the differences existing between the Law Merchant and the common law, and treats generally of the law and procedure of merchant courts.1 Similarly the White Book of London describes the special usages which prevail where the merchants are concerned.2 Many other towns also, as we can see from the reports, had the right to hold courts for the merchants.3 Some of these courts still exist. The Lord Mayor’s court in London,4 the Tolzey court, and a branch of it sitting in time of fair as a Pie Powder Court, at Bristol,5 the Liverpool court of passage,6 are examples of survivals from a time when the Law Merchant was generally administered in local courts.

The merchants not only had special courts and a special law, they were also differentiated from the rest of the community by a special organization. In the charters of the towns there is frequent mention of the Guild Merchant. This was an association of traders within the town, and, in some cases, of traders living outside its precincts, for the better management of trade.7 It sometimes arbitrated upon mercantile disputes.8 But as a rule it did not exercise a regular jurisdiction. Its chief function was that of a trades union of a rigidly protective character.9 It was only those who Edition: current; Page: [301] belonged to the Guild Merchant who could trade freely within the town. Its conduct was sometimes so oppressive that trade was driven from the town.1 In fact all the various privileges, jurisdictional and administrative, which the towns possessed could be, and often were used in a manner adverse to the commercial interests of the country. The foreign merchant was hampered at every turn by the privileges of the chartered towns. They were averse to allowing him any privileges except those which they had specially bargained to give to him.2 “The Great Charter provides that merchants may freely enter and dwell in and leave the realm; but the same Great Charter confirms all the ancient liberties and customs of London and the other boroughs, and thus takes away with one hand what it gives with the other. The burghers have a very strong opinion that their liberties and customs are infringed if a foreign merchant dwells within their walls for more than forty days, if he hires a house, if he fails to take up his abode with some responsible burgher, if he sells in secret, if he sells to foreigners, if he sells in detail.”3

The crown, on the other hand, was for many reasons interested in supporting the foreign merchant. The crown was able to take a broader view of the commercial interests of the country than any set of burghers. Its intelligence was also quickened by the fact that it was easier to negotiate a supply from the alien merchant in return for protection, than to deal with a Parliament.4 For these reasons the needs of the crown gave to the alien merchant a defined position—in some respects superior to that of the native merchant—and the protection of a separate set of courts.

In 1303 the Carta Mercatoria5 gave to certain foreign merchants, in return for certain customs duties, exemption from certain municipal dues, freedom to deal wholesale in all cities and towns, power to export their merchandize, and liberty to dwell where they pleased. They were promised speedy justice “secundum legem mercatoriam” from the Edition: current; Page: [302] officials “feriarum, civitatum, burgorum, et villarum mercatoriariarum;” and any misdoings of these officials were to be punished. If the mayor and sheriffs of London did not hold their court from day to day another judge was to be substituted for them. In all pleas, except those of a capital nature, half the jury was to consist of foreign merchants. No future grant of liberties to any town was to derogate from the rights conferred upon the foreign merchants.

The growth of the powers of Parliament in Edward III.’s reign gradually prevented the crown from obtaining supplies by separate negotiations with the alien merchants.1 But in his reign (1353)2 similar privileges and a larger measure of protection was secured to them by the Statute of the Staple.

With a view to the better organization of foreign trade and the more convenient collection of the customs, certain towns, known as the Staple Towns, were set apart.3 It was only in those towns that dealings could take place in the more important articles of commerce, such as wool, woolfells, leather, lead, and tin. Eleven such towns were named for England, one for Wales, and four for Ireland.4 In each of these towns special courts were provided for the merchants who resorted thither. A mayor and two constables were to be chosen annually to hold the court of the Staple; and the authorities of the town in which the Staple was held were ordered to be attendant upon them.5 They were to apply the Law Merchant, and not the common law. All manner of pleas concerning debt, covenant, and trespass fell within their jurisdiction. The jurisdiction of the king’s courts was excluded except in cases touching freehold or felony.6 The Edition: current; Page: [303] mayor and constables had the assistance of two alien merchants, one of whom was chosen from the merchants who came from the north, the other from the merchants who came from the south.1 Provision was made for the trial of cases in which aliens were concerned by a mixed jury, and for an appeal in cases of difficulty to the Chancellor and the Council.2 A speedy means was provided for the recovery of goods of which merchants had been robbed at sea, or which had been cast away and thrown up on the shore.3 Merchants going and returning to the Staple towns were protected against purveyance.4 They were promised lodgings in the towns at a reasonable rent.5 They were taken into the king’s special protection.6 These privileges are specially stated to be granted notwithstanding any privilege, franchise, or exemption granted to any towns or individuals.7

All these courts administered, and, by administering, helped to create, the Law Merchant. With the merchant, his courts, and his law the common law had little concern. He is protected by his special courts and can, in the last resort, appeal to the Chancellor and the Council.8 The law is a customary law known to the merchants who can, if need be, inform the king’s courts of its contents.9 Fleta notices that it is a peculiar law.10 A statute was needed to abrogate the rule of this law that one townsman is liable, as a kind of surety, for the debt of his fellow townsman.11 The rule that if a debtor could pay, money in the hands of his debtor could be attached, was common to many towns.12 The statute merchant Edition: current; Page: [304] and the statute staple gave to English and foreign merchants a right of recourse against their debtor’s land.1 The common law as yet knows but little of these rules. A writing obligatory payable to bearer is known among the merchants as early as the 13th century. The first English case upon a bill of exchange in the Common Law Courts is of the year 1603.2

In this period, as we have said, the merchant courts and the merchant law are so closely connected with the maritime courts and maritime law that we may regard them as branches of the same Law Merchant. In the middle of the 14th century the rise of the court of Admiralty causes a cleavage between these two branches of the Law Merchant. The cleavage is widened by the action of the Common Law Courts. Their jealousy confines the court of Admiralty rigidly to maritime causes, and leads them to appropriate to themselves jurisdiction over commercial causes. In the end they assimilate what they have appropriated, and construct our system of mercantile law.

(ii) The rise of the Court of Admiralty and its Jurisdiction.

(a) The rise of the Court of Admiralty.

The earliest mention of the term Admiral is in a Gascon Roll of 1295, in which Berardo de Sestars is appointed Admiral of the Baion fleet.3 There are similar mentions of Admirals in these Rolls in 1296 and 1297. In 1300 Gervase Alard is appointed Admiral of the Cinque Ports; and this appears to be the earliest use of the title in England. “It would appear that the title of Admiral, originating probably in the East, and afterwards adopted by the Genoese and other navies of the Mediterranean, came by way of Gascony to England, and was there adopted about the beginning of the 14th century.”4

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We have seen that in the earlier part of the 14th century the Admiral did not possess any jurisdiction except a disciplinary jurisdiction over the fleet under his command.1 He does get such jurisdiction about the middle of the 14th century, owing to the diplomatic difficulties in which the king found himself involved, from the want of some efficient authority to coerce the marauding and piratical propensities of his subjects.

It appears from the documents contained in the record known as the “Fasciculus de Superioritate Maris” that the kings of England had been constantly negotiating with foreign countries—more especially with France and Flanders—as to claims in respect of piracies committed by English subjects.2 From 1293 to 1337 attempts had been made at arbitration. In 1337 Edward had made payments out of his own pocket to the Flemings, the Genoese, and the Venetians. The claims of the French were put an end to by war. In 1339 a commission was sitting to consider the piracy claims made by Flanders. It may be that the resolution to erect a court of Admiralty was the result of recommendations made by that commission. At any rate the battle of Sluys (1340) gave to England that command of the sea, which had been already claimed in the 13th century, and so rendered the erection of such a court the more possible. “It is not unreasonable to suppose that after the battle of Sluys Edward III., acting upon the advice of the commissioners of 1339, extended the jurisdiction of the Admiral, which had up to that date been mainly disciplinary and administrative, so as to enable Edition: current; Page: [306] him to hold an independent court and administer complete justice in piracy and other maritime cases.”1 We have seen that the older methods of administering justice in such cases had been found to be very unsatisfactory. In 1353 a case was heard before the Admiral and the Council.2 In 1357 there is the earliest distinct reference to a court of Admiralty.3 In 1360 John Pavely is appointed “capitaneus et ductor” of the fleet, with powers, not only disciplinary, but also judicial.4 In 1361 the commission to Sir Robert Herle confers upon him similar powers, and gives him power to exercise them by a deputy.5 This power was probably inserted in order to provide a judge for the new court. There were at first several Admirals and several courts. From the early 15th century there is one Lord High Admiral, and one court of Admiralty. In 1482 we have an actual patent of the judge of the court.6

The earliest parts of the Black Books of the Admiralty, which refer to the office and the court of the Admiral, probably date from the period between 1332 and 1357.7 It is clear that the jurisdiction of the court is as yet new. There is an article expressly directed against the withdrawal of cases from the court.8 In 1361 a commission of oyer and terminer was recalled on the ground that the matter fell within the jurisdiction of the Admiral’s court.9 In 1364 a writ of supersedeas issued to the judges on the ground that the Admiral had already tried the case.10 In 1375 the inquisition Edition: current; Page: [307] of Queenborough was held in order to ascertain certain points of maritime law.1 We shall see that the new court aroused the suspicions of Parliament and that its jurisdiction was limited by statute.2 But the part of the Black Book dealing with the procedure and practice of the court (which dates from the 15th century) shows us that its jurisdiction is becoming settled.3

Under Henry VIII. the court of Admiralty considerably extended and settled its jurisdiction. In that reign much attention was paid to naval matters. Trinity House was incorporated in 1516. Deptford dockyard was constructed at about the same period. The records of the court began in 1524.4 It was settled in 1585 that the judge of the court of Admiralty, though a deputy of the Admiral, did not cease to be judge during a vacancy of the office of Admiral.5 The criminal jurisdiction of the court was extended; and just as the crown had asserted its jurisdiction in ecclesiastical matters, so it asserted an increased jurisdiction, through the court of Admiralty and the Council, in maritime and commercial causes. The Council records show how close was the connexion between the Council and the Admiralty.6

During the Tudor period the court sat at Orton Key near London Bridge.7 Later it sat, like the Ecclesiastical Courts, at Doctors’ Commons.8 We shall see that the determined attack of the Common Law Courts in the 17th century left the court with but a small part of the jurisdiction which it had asserted under the Tudors, and denied it the status, which it had formerly possessed, of a court of record.9

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Statutes of this century restored to the court of Admiralty some parts of the jurisdiction of which the Common Law Courts had deprived it. They restored also its status of a court of record, and gave to the judge of the Admiralty many of the powers possessed by the judges of the superior Courts of Common Law.1

Appeals from the court of Admiralty lay originally to the king in Chancery. This is clear from a statute of 1533.2 The king on each occasion appointed judices delegati to hear the appeal. In the Tudor period these Delegates were civilians. In later times a judge of one of the Common Law Courts was associated with them. In 1563 it was enacted that their decision should be final.3 We get the records of the Court of Delegates from the beginning of the 17th century. We have seen that in 1832 the jurisdiction of the Delegates was transferred to the Council, and that in 1833 the Judicial Committee of the Council was formed to hear such appeals.4

(b) The jurisdiction of the Court of Admiralty.

In the 14th and 15th centuries the jurisdiction of the Admiralty is somewhat wide and vague. It comprises the ordinary criminal and civil jurisdiction of later days,5 the Prize jurisdiction,6 and the jurisdiction over wreck, and the other droits of the crown or the Admiral.7 The procedure of the court was becoming fixed upon the models rather of the civil than of the common law.8 Its jurisdiction was beginning to encroach upon the rights of those seaport towns which possessed Admiralty jurisdiction.9 For these reasons the court aroused a Parliamentary opposition similar in kind Edition: current; Page: [309] to that aroused by the jurisdiction of the Council. The result of this opposition was seen in two statutes of Richard II.’s reign which defined the jurisdiction of the Admiralty. 13 Richard II. St. 1 c. 5 recites that “a great and common clamour and complaint hath been often times made before this time, and yet is, for that the admirals and their deputies hold their sessions within divers places of this realm, as well within franchise as without, accroaching to them greater authority than belongeth to their office.” It enacts that, “the admirals and their deputies shall not meddle from henceforth with the sea, as it hath been used in the time of King Edward, grandfather of our Lord the King that now is.” 15 Richard II. c. 3 enacts more specifically, “that of all manner of contracts, pleas, and quarrels, and all other things rising within the bodies of the counties as well by land as by water, and also of wreck of the sea, the Admiral’s court shall have no manner of cognizance, power, nor jurisdiction.” But, “nevertheless, of the death of a man, and of a mayhem done in great ships, being and hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers, the Admiral shall have cognisance.”1 In view of further petitions as to the encroachments of the Admiral’s court, it was enacted in 1400 that those sued wrongfully in that court should have a right of action for double damages.2 Petitions were still directed against the court and its procedure.3 But these statutes effected some settlement of the court’s jurisdiction; and the Courts of Common Law maintained their observance by the issue of writs of supersedeas, certiorari or prohibition.4

We have seen that the reign of Henry VIII. witnessed a revival of interest in the navy and an increased activity in Edition: current; Page: [310] the court of Admiralty. A statute of 15401 gave to the Admiral a jurisdiction in matters of freight and damage to cargo. The patents of Henry VIII.’s admirals not only omit the proviso to be found in earlier patents, confining their jurisdiction within the limits marked out by the statutes of Richard II.’s reign, they also insert a non obstante clause dispensing with those statutes.2 We begin to be able to classify the jurisdiction of the court under the following heads:—

(1) Ordinary or “Instance” Jurisdiction. This comprises—

(a) Criminal Jurisdiction.

(b) Civil Jurisdiction.

(c) Admiralty Droits.

(2) Prize Jurisdiction.

(1) Ordinary or Instance Jurisdiction.

(a) Criminal Jurisdiction.

We have seen that after 1363 the Admiral’s criminal jurisdiction was recognised as exclusive on the high sea.3 This exclusive jurisdiction could be exercised over British subjects, over the crew of a British ship whether subjects or not, over any one in cases of piracy at common law.4 It could be exercised over no other persons.5 The act of Richard II. recognised also a jurisdiction in cases of homicide and mayhem committed in ships below the bridges.6 This jurisdiction was, Edition: current; Page: [311] up to low water mark, concurrent with that possessed by the Courts of Common Law.1

We have seen that the procedure in the Admiral’s court had come to be modelled on the procedure of the civil law. The early precedents for trial by jury were not followed.2 Trial by witnesses took its place. In 1536 dissatisfaction with this method of trial produced a statute, the ultimate effect of which was to transfer to the Courts of Common Law the criminal jurisdiction of the Admiralty.3

The statute recites that those who have committed crimes upon the sea, “many times escaped unpunished because the trial of their offences hath heretofore been ordered . . . before the Admiral . . . after the course of the civil laws; the nature whereof is, that before any judgment of death can be given against the offenders, either they must plainly confess their offences (which they will never do without torture or pains) or else their offences be so plainly and directly proved by witness indifferent, such as saw their offences committed, which cannot be gotten but by chance at few times, because such offenders commit their offences upon the sea, and at many times murder and kill such persons being in the ship or boat where they commit their offences, which should witness against them in that behalf; and also such as should bear witness be commonly mariners and ship men, which, because of their often voyages and passages in the seas, depart without long tarrying.” It provides that treasons, felonies, robberies, murders and confederacies, committed in any place where the Admiral has jurisdiction, shall be enquired into and tried by commissioners appointed by the crown as if the offences had been committed on land. The commissions can be issued to the Admiral, his deputy, or three or four other substantial persons to be appointed by the Lord Chancellor. In 1799 this Act was extended to the trial of all offences committed on the high seas.4

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The three or four substantial persons to be appointed under the act of Henry VIII. came to be invariably the judges of the Common Law Courts. The indirect result of the act was, therefore, to transfer the criminal jurisdiction of the Admiralty to the Courts of Common Law.1

Special commissions under this act have been rendered obsolete by later legislation. In 1834 the Central Criminal Court Act gave to that court the jurisdiction of these special commissioners.2 In 1844 a similar jurisdiction was given to the ordinary justices of oyer and terminer and gaol delivery.3 Provisions to the same effect are contained in the Criminal Law Consolidation Acts4 and the Merchant Shipping Acts.5

The criminal jurisdiction of the Admiralty has thus for three centuries been exercised by the Courts of Common Law. It has, for this reason, almost wholly lost the international character which marked all branches of the maritime law in the Middle Ages. Piracy “at common law” is perhaps the only crime, which still retains some trace of an international character, in the rule, that it can be tried by the court of any country wherever and by whomsoever committed. The criminal jurisdiction of the Admiralty, having been administered by the ordinary courts, has become part and parcel of the common law, to be spelt out of English statutes, to be changed only as that law is changed. This fact was strikingly illustrated by Reg. v. Keyn.6 No consensus of international jurists was held sufficient to give to the English courts a criminal jurisdiction over foreigners not recognised by English law. Cockburn, C. J., denied that a consensus of jurists could effect, in maritime law, what, in another branch of the old law merchant, he allowed might be effected by a consensus of merchants.7 The case was decided by a bare majority. We may, perhaps, conjecture that it would have been decided the other way, if the criminal jurisdiction of the Admiralty Edition: current; Page: [313] had been freely developed in the court of Admiralty, and not in the Courts of Common Law.

(b) Civil Jurisdiction.

We have seen that under the Tudors the court of Admiralty claimed a wide jurisdiction. It seemed inclined to disregard altogether the limitations which statutes had imposed upon it. The extent of the jurisdiction which it claimed will appear from a list of the cases which, during this period, were brought before the court.1 It practically comprised all mercantile and shipping cases. “All contracts made abroad, bills of exchange (which at this period were for the most part drawn or payable abroad), commercial agencies abroad, charter parties, insurance, average, freight, non-delivery of, or damage to, cargo, negligent navigation by masters, mariners, or pilots, breach of warranty of seaworthiness, and other provisions contained in charter parties; in short, every kind of shipping business was dealt with by the Admiralty court.”2 The Admiralty court was, in fact, regarded as one of the recognised tribunals of the Law Merchant.3 In addition, the court exercised jurisdiction over various torts committed on the sea, and in public rivers, over cases of collision, salvage, fishermen, harbours and rivers, and occasionally over matters transacted abroad, but otherwise outside the scope of Admiralty jurisdiction.4

We have seen that during Elizabeth’s reign the Common Law Courts began their attack upon the Chancery and the Council. It was not to be expected that they would tamely acquiesce in the encroachments of the Admiralty. Moreover, as we have seen, they were able to base their attack upon a statutory basis.

The Common Law Courts had issued writs of prohibition, based upon these statutes, from an early period. It is probable, however, that during the earlier part of the Tudor period the statutes had been largely disregarded;5 and, as Edition: current; Page: [314] we have seen, the aid of the legislature had even been invoked on behalf of the Admiralty.1 The Admiralty, also, had sometimes assumed the offensive, by means of a process of contempt, taken against those who brought proceedings upon maritime causes in another court.2 It would appear that when the Common Law Courts resumed their efforts against the Admiralty, they at first had recourse to writs of supersedeas and certiorari issuing from the Chancery. But such applications to the Chancellor often left the Admiralty with the disputed jurisdiction. It was seen that writs of prohibition were the most effective instrument of attack or defence which the Common Law Courts possessed.3

In 1575 a provisional agreement was arrived at. But, after 1606, when Coke was raised to the Bench, the agreement was repudiated.4 Coke, as Buller, J., once said, “seems to have entertained not only a jealousy of, but an enmity against, that jurisdiction.”5 He denied that the court was a court of record. He denied it the necessary power to take stipulations for appearance, and performance of the acts and judgments of the court. He denied that it had any jurisdiction over contracts made on land, either in this country, or abroad, whether or no they were to be performed upon the sea; and similarly he denied its jurisdiction over offences committed on land, either in this country, or abroad.6 In support of his position he did not hesitate to cite precedents which were far from deciding what he stated that they did decide.7 It is fairly certain that the earlier prohibitions were all founded upon the exercise by the Admiralty of Edition: current; Page: [315] jurisdiction within the bodies of counties. The common law had not in the past claimed jurisdiction over contracts made or offences committed abroad, and probably not over contracts made and offences committed in ports intra fluxum et refluxum maris.1 Such jurisdiction was now coveted. By supposing these contracts or offences to have been made or committed in England the Common Law Courts assumed jurisdiction;2 and thus by a “new strange poetical fiction,” and by the help of “imaginary sign-posts in Cheapside”3 they endeavoured to capture jurisdiction over the growing commercial business of the country. The other common law judges followed Coke’s lead. It was not of course to be expected that all the cases, decided at a time when the Common Law Courts were engaged upon a systematic series of encroachments, should be consistent.4 But it is clear that they were all tending in one direction, regardless of the fact that the procedure of the Common Law Courts, and the law which they applied, were far less fitted than that of the Admiralty, Edition: current; Page: [316] to deal with the cases over which they claimed jurisdiction.

The merchants keenly felt the ill effects of these attacks made by the Common Law Courts. A conflict of jurisdiction must always give advantages to the unscrupulous litigant. It was clear that the Admiralty process was more speedy, and therefore more fit to deal with the cases of merchants and mariners. “Not one cause in ten comes before that court but some of the parties or witnesses in it are pressing to go to sea with the next tide.”1 The Admiralty could issue commissions to examine witnesses abroad, and it could examine the parties themselves. “The merchant if he can avoid the Admiralty, where he must answer upon oath, and proof may be made by commission, thinks himself secure from any danger at the common law.”2 The Admiralty could arrest the ship, and thus give far more effective security to those who had been employed upon it. The Admiralty could allow all the mariners to sue together for their wages, whereas the Common Law Courts insisted upon separate actions. The judges of the court of Admiralty, being civilians, were far more likely to be able to understand contracts made abroad with reference to the civil law.3 Two cases, put by Sir Leoline Jenkins in his argument before the House of Lords in 1660, illustrate the incompetence of the Common Law Courts to deal with the jurisdiction which they claimed. In the first case put, a Spanish merchant resident in Spain owes money to A. The Spanish merchant has a ship in an English port, which the Admiralty process alone can reach. An action is brought by A in the court of Admiralty. The ship is arrested; but in consequence of a prohibition it is released. What is the use of suing a debtor in Spain with no available property in this country? In the second case A owes money to a Spanish merchant. The Spaniard sues in the Admiralty, and is prohibited. He then sues at common law, and, to prove his case, produces a copy of his contract. A pleads “non est factum.” The original is in Spain deposited with a Edition: current; Page: [317] notary who will not part with it. The Spaniard loses his case for want of evidence.1

Another compromise was attempted in 1632. Charles I. issued a commission to the Privy Council, empowering it to reconcile the differences between the Common Law Courts and the Admiralty. Sir Leoline Jenkins said that the agreement arrived at was “the result of many solemn debates, and not of artifice or surprise.”2 We can well believe this, if we consider the ill results which followed from the assumption of jurisdiction by the Courts of Common Law. The agreement conceded to the Admiralty a jurisdiction in the following cases:—

(1) In the case of contracts made, or wrongs committed, beyond the sea, or upon the sea.

(2) In suits for freight or mariners’ wages, or for the breach of charter parties for voyages to be made beyond the sea, though the charter parties are made within the realm, and the money is payable within the realm. But if the proceeding is for a penalty, or the question is whether the charter party was made or not, or, if made, has been released, the Common Law Courts have jurisdiction.

(3) In suits for building, amending, saving or necessary victualling of a ship, brought against the ship itself, though the cause of action arose within the realm.

(4) The court is allowed a jurisdiction to enquire of, and to redress, all annoyances and obstructions in all navigable rivers beneath the first bridges, and also to try personal contracts and injuries done there which concern navigation upon the sea.

(5) It is provided that if any be imprisoned, and, upon a writ of Habeas Corpus being obtained, the exercise of jurisdiction by the Admiralty in any of these points be certified as the cause of the imprisonment, the parties shall be remanded.

It is probable that this agreement was acted upon for a Edition: current; Page: [318] few years. Prynne cites a case in which the House of Lords upheld the jurisdiction of the Admiralty in 1645;1 and an ordinance passed in the time of the Commonwealth conceded to the court a jurisdiction similar to that which was conceded to it by the agreement of 1632.2

But, as we have seen, the Great Rebellion ensured the victory of the common law over jurisdictions which threatened to be its rivals. Although the merchants of London petitioned Parliament to give to the court of Admiralty a jurisdiction similar to that which had been given to it in the time of the Commonwealth, they petitioned in vain.3 The civil jurisdiction of the Court was reduced to a very low ebb. Torts committed on the high seas; contracts made on the high seas to be there executed; proceedings in rem on bottomry bonds executed in foreign parts; the enforcement of the judgments of foreign Admiralty courts; suits for the wages of mariners,4 were almost the only pieces of jurisdiction which it was allowed to exercise. Pepys5 tells us that he went to St. Margaret’s Hill in Southwark, “where the judges of the Admiralty come, and the rest of the Doctors of Civill law.” He remarks, “I perceive that this court is yet but in its infancy (as to its rising again): and their design and consultation was, I could overhear them, how to proceed with the most solemnity, and spend time, there being only two businesses to do, which of themselves could not spend much time.”

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It is quite clear that the court of Admiralty had on its side not only historical truth, but also substantial convenience. Prynne, Zouch, and Jenkins prove clearly both these facts. It is clear that the opposition of Coke and the common lawyers was unscrupulous. But it is clear that the common law had, after the Great Rebellion, gained the upper hand. And, from the point of view of the common law, the attack had been skilfully directed upon a position which it was worth much to secure; for the prize was nothing less than jurisdiction in all the commercial causes of a country the commerce of which was then rapidly expanding. Its commerce was in the future destined to expand beyond the most sanguine dreams of the 17th century. Coke could not foresee this. But he worshipped the common law; and he rendered it by no means the least of his many valuable services when he directed, and perhaps even misdirected, his stores of technical learning to secure for it this new field. To the litigant his action meant much inconvenience. To the commercial law of this country it meant a slower development.1 But to the common law it meant a capacity for expansion, and a continued supremacy over the law of the future, which consolidated the victories won in the political contests of the 17th century. If Lord Mansfield is to be credited with the honourable title of the founder of the commercial law of this country, it must be allowed that Coke gave to the founder of that law his opportunity.2

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Modern legislation has restored to the court of Admiralty many of the powers, and much of the jurisdiction of which it had been deprived in the 17th century.1 It has been restored, as we have seen, to its ancient position of a court of record; and its judge has been given the powers possessed by the judges of the superior Courts of Common Law. It has been given jurisdiction in cases of salvage, bottomry, damage, towage, goods supplied to foreign ships, building, equipping, and repairing ships, disputes between co-owners. In addition, it has been given a new jurisdiction in the case of booty of war, if the crown sees fit to refer any such question to it, and a new jurisdiction under the Foreign Enlistment Act.2 But the contests of the 17th century have left their mark upon the law administered by the court. The Common Law Courts often came to decisions, similar to those which the Admiralty had already given, upon the principles of the civil law. But the decisions, though the same in substance, were the decisions of English courts and enunciated rules of English law. The law administered by the court of Admiralty possesses, it is true, affinities with the maritime law of foreign countries. The law of Oleron, and other maritime codes, may still be usefully cited in English courts. But Admiralty law has lost the international character which it once possessed. It is essentially English law. “The law which is administered in the Admiralty Court of England is the English maritime law. It is not the ordinary municipal law of the country, but it is the law which the English Court of Admiralty, either by Act of Parliament or by reiterated decisions and traditions and principles, has adopted as the English maritime law.”3 “Neither the laws of the Rhodians, nor of Oleron, nor of Wisby, nor of the Hanse Towns, are of themselves any part of the Admiralty law of England. . . . But they contain many principles and statements of marine practice, which, together with principles found in the Digest, and in the French, and other ordinances, were used by the judges of the English Court of Admiralty, when they were Edition: current; Page: [321] moulding and reducing to form the principles and practice of their Court.”1 These statements would not have been made by the judges of the Court in the 16th, or even in the 17th centuries. The contact with, and the control exercised by the Courts of Common Law, have effected in a similar way both the civil and the criminal jurisdiction of the court.

(c) Admiralty Droits.

The crown had originally certain rights to property found upon the sea, or stranded upon the shore.2 The chief kinds of property to which the crown was thus entitled were, great fish (such as whales or porpoises),3 deodands,4 wreck of the sea, flotsam, jetsam, and lagon,5 ships or goods of the enemy found in English ports, or captured by uncommissioned vessels, and goods taken or retaken from pirates.6

In early days, before the rise of the court of Admiralty, many of these droits were granted to the lords of manors, or to the towns which possessed Admiralty jurisdiction. Yarmouth had such rights.7 In 1829 Dunwich and Southwold spent £1000 to determine the question whether a puncheon of whiskey, taken up in the sea, was within the jurisdiction of one town or the other.8 The Lord Warden of the Cinque Ports and the Ports themselves shared these droits between them.9 In 1836 there was litigation between the crown, and the owner of the manor and castle of Corfe and the Isle of Edition: current; Page: [322] Purbeck, as to the right to 49 casks of brandy.1 If not so granted out, they were dealt with by the Common Law Courts or by special commissioners.2

After the rise of the court of Admiralty the Lord High Admiral becomes entitled to these droits by royal grant. At the end of the 14th and the beginning of the 15th century it would appear that he shared them with the crown.3 From the reign of Henry VI. it would appear that they were generally granted to him. “The Admiral’s Patents of the sixteenth and following centuries contain express grants of royal fish, wrecks, waifs, flotsam, jetsam, and lagon, as well as many other perquisites connected with the sea and the sea-shore.”4 In Anne’s reign, George Duke of Denmark, the Lord High Admiral, surrendered his droits during the war for a fixed annual sum. The office was in commission after his death, except for a short time, when it was held by George Duke of Clarence, afterwards William IV. The droits during this period were always reserved to the crown, but in terms which showed that they had been previously annexed to the office of Admiral.5

The right to droits carried with it a certain jurisdiction. Inquisitions were held into these droits at the ports,6 or the Vice-Admirals or droit gatherers reported them to the Admiral.7 The large terms of the Admiral’s Patents incited them, or their grantees, to frequent litigation with private persons or other grantees of the crown.8 If the property was unclaimed, it belonged to the Admiral or other person entitled, Edition: current; Page: [323] who might or might not reward the finder.1 If a claimant appeared, he was entitled to restoration on proof of his claim, and the payment of a reasonable salvage. Such salvage was often allowed to the Vice-Admirals of the coast as a reward for taking possession of, and looking after, the property.2

The Admiralty droits, where the right has not been granted to other persons, are now transferred to the consolidated fund.3 But it is provided that the crown may reward the finder. In 1854 they were put under the control of the Board of Trade.4 In 1894 the method of dealing with wreck, flotsam, jetsam, and lagon found within British jurisdiction, was regulated by the Merchant Shipping Act.5

(2) Prize jurisdiction.

The term Prize is applied to the property of a belligerent seized at sea. Prizes can as a rule only be made by some vessel acting under the authority of the government.6 It is clear that many complicated questions must arise as to the ownership of the ships or goods so captured. Such questions tended to become more complicated with the growth, during the 18th century, of that part of international law which relates to the rights and duties of neutrals. Lord Stowell, by his decisions in the many cases arising out of the wars at the end of the 18th and the beginning of the 19th century, settled the principles of prize jurisdiction of the Admiralty, as he settled the principles of the instance jurisdiction of the court.

From a very early period jurisdiction over prize was vested in the Admiral or the Council. It is clear that the Admiral had such jurisdiction in 1357.7 Special provisions with regard to the exercise of the jurisdiction were often made by Edition: current; Page: [324] treaties with foreign sovereigns. In 1498 a treaty between Henry VII. and Louis XII. stipulates that mariners shall give notice to the Admiral of any spoil which they have taken, and that they are not to dispose of it until the Admiral has adjudged it to be lawful prize.1 We can see that, from the 16th century, the prize jurisdiction of the court is beginning to be regarded as distinct from the instance jurisdiction.2 Captors sailing under commissions granted by allies of England, as well as captors sailing under English commissions, resorted to the Admiralty court. “These cases frequently resolved themselves into suits between the respective Ambassadors of the powers to which the captor and prize belonged.”3 Prohibitions were not as a rule issued in prize cases.4 Shortly after the Restoration the court held distinct sittings for prize business, and the records of such business were kept distinct. It became the custom to issue special commissions to the Admiral at the beginning of a war, requiring the judge of his court to hear prize cases.5 The ordinary commission did not mention this jurisdiction.6 The prize court thus became a court almost entirely distinct from the instance court. Lord Mansfield could say in 1781 that, “the whole system of litigation and jurisprudence in the prize court is peculiar to itself: it is no more like the court of Admiralty than it is to any court in Westminster Hall.”7 The Naval Prize Act of 1864, passed to enact permanently the provisions before usually made at the beginning of a war, gives to the court of Admiralty the jurisdiction of a prize court throughout His Majesty’s dominions.8 This jurisdiction is now exercised by the Probate, Divorce, and Admiralty Edition: current; Page: [325] division of the High Court.1 The appeal from the prize court was to the Council,2 and, after 1833, to the Judicial Committee of the Council. We shall see that appeals from the instance court now go to the House of Lords. Appeals from the prize court still go to the Council.3

It was in fact inevitable that the distinction between the prize and the instance business of the Admiralty should grow more definite with the growing definiteness of the principles of International Law on the one side, and the principles of Admiralty Law as administered in English courts on the other. The court of Admiralty administers, as we have seen, English Admiralty law. Though for historical reasons it resembles in general outline the maritime law of Europe, it is essentially English law.4 The two greatest judges who have sat in a prize court have laid it down that a prize court administers international law. Lord Mansfield said,5 “by the law of nations and treaties every nation is answerable to the others for all injuries done, by sea or land, or in fresh waters, or in port. Mutual convenience, eternal principles of justice, the wisest regulations of policy, and the consent of nations, have established a system of procedure, a code of law, and a court for the trial of prize. Every country sues in these courts of the others, which are all governed by the same law equally known to each.” Lord Stowell said in the case of the Recovery,6 “It is to be recollected that this is a court of the law of nations, though sitting here under the authority of the King of Great Britain. It belongs to other nations as well as to our own; and, what foreigners have a right to demand from it, is the administration of the Law of Nations simply, and exclusively of the introduction of principles borrowed from our own municipal jurisprudence.” It may be that English statutes or orders in Council will compel the judge to depart from these principles.7 But it is these principles which form the basis of the law administered. This is fully Edition: current; Page: [326] recognised by the statutes of this century which deal with prize jurisdiction.1 By reason of its international character, the prize jurisdiction of the Admiralty, resembles, more closely than the ordinary jurisdiction of the court, the maritime law of the Middle Ages.

(iii) The decay of the special courts administering the commercial part of the Law Merchant, and its absorption into the common law system.

With the increase in commerce in the 14th and 15th centuries, a division and specialization of trades and industries begins to take place. The large trader or the merchant becomes entirely distinct from the small trader or the craftsman. The old Guild Merchant, which embraced all the traders in a town, gives place to separate companies of merchants on the one side, and to separate craft guilds on the other.2

The internal trade of the country continued to be largely regulated by the companies of merchants, or the craft guilds, which usually possessed large powers over trade, and sometimes a monopoly of trade in their own town.3 It was strongly felt that “a general liberty of trade without a regulation doth more hurt than good;”4 and throughout the 18th century there are cases in which the courts upheld these powers.5 They were finally abolished by the Municipal Corporations Act of 1835.6

Though the old organization of trade lingered on till the Edition: current; Page: [327] 19th century, the internal trade of the country had in the 16th century practically ceased to be ruled by a special law and by special courts. The companies of merchants and the craft guilds possessed no jurisdiction of their own. Some few courts of fairs survived; and we have seen that the courts of some large cities still continued to exercise jurisdiction. But, except in so far as statutes drew a distinction between traders and others,1 the trader’s or the merchant’s dealings were not treated differently from those of any other class in the community. They were governed by the common law, and generally by the Common Law Courts. The common law had borrowed certain rules from the law merchant. The rules that there is no warranty of title in a sale of goods,2 and that, under some circumstances, a sale in market overt by a nonowner will pass the property,3 probably come from this source. The merchant’s view of the efficacy of the earnest money to bind the bargain was recognised by the Statute of Frauds.4 By the end of the 16th century the internal trade of the country was regulated by the common law so modified, and not by a separate Law Merchant.

The foreign trade of the country continued for a longer period to be governed by a separate Law Merchant. In France, Italy, and Germany the usages of the merchants were, in the 14th and 15th centuries, treated of by many writers. In the 17th century their works had been adapted by writers like Malynes, Marius, Molloy, and Beawes. They all considered the merchant as a class apart and subject to Edition: current; Page: [328] a separate law.1 “It is a customary law,” says Malynes, “approved by the authority of all kingdoms and commonwealths, and not a law established by the sovereignty of any prince;”2 and, “the said customary law of merchants hath a peculiar prerogative above all other customs, for that the same is observed in all places.”3 “That commonwealth of merchants,” says Davies,4 “hath always had a peculiar and proper law to rule and govern it; this law is called the Law Merchant whereof the law of all nations do take special knowledge.” Davies, however, recognised that it was only the foreign trade of the country that was now ruled by this special law. “Merchandizes that cross the seas are goods of another nature, quality, and consideration than other goods and chattels, which are possessed within the realm, and do not cross the seas.”5

It is clear from these writers that specific differences between the Law Merchant and the common law could still be pointed out. There was no survivorship in the case of merchants who were joint tenants. Wager of law was unknown among them. Bills of exchange, policies of assurance, assignations of debts were all unknown to the common law.6

But by the end of the 17th century this Law Merchant was being gradually absorbed into the general legal system of the country. As in the case of the internal trade, so in the case of the foreign trade, the older mercantile courts had ceased to exist. Jurisdiction was therefore assumed by the ordinary courts of law and equity.

We have seen that in the Middle Ages the courts of the Edition: current; Page: [329] Staple were the chief courts which regulated the dealings of foreign merchants. Malynes says, “our staple of wools is now out of use, and staple towns are all, as it were, incorporated into London.”1 It is clear from his account of the courts which administer the law merchant that there was in England, in the latter part of the 17th century, no effective court specially set apart for the merchants.2 In the 16th and earlier 17th centuries the Council and the court of Admiralty had supplied the place of such a court. But the jurisdiction of the Council in England had come to an end in 1640; and we have seen that the Courts of Common Law had deprived the Admiralty of the greater part of its jurisdiction over mercantile causes. In 16013 a court had been established in London consisting of the recorder, two doctors of the civil law, two common lawyers, and eight “grave and discreet” merchants, to hear insurance cases, “in a brief and summary course, as to their discretion shall seem meet, without formalities of pleadings or proceedings.” But it had been held, in 1658, that proceedings before this court were no bar to an action at law;4 and it was constantly hampered by prohibitions.5 Merchants were therefore driven, either to arbitration,6 or to the courts of law, or, in matters which involved the taking of accounts, to the court of Chancery.7 Reported cases of the 17th century illustrate the effect of this upon the Law Merchant. They show that mercantile law is ceasing to be the law of a class, and that it is becoming part of the general law of the land. The earlier cases upon Bills of Exchange treat them as ruled by special customs, applicable Edition: current; Page: [330] only to merchants, which it is necessary to prove.1 In 1699 Treby, C. J., said that Bills of Exchange at first extended only to merchant strangers trading with English merchants; afterwards to inland Bills between merchants trading with one another in England; and lastly to all persons whether traders or not; and that there was now no need to allege and prove the custom.2

The process was assisted, after the Revolution, by the greater freedom allowed to foreign trade. In the 16th and 17th centuries foreign trade was in the hands of companies incorporated by the crown with exclusive rights to trade.3 The validity of such grants was upheld, in 1684, in the East India Company v. Sandys.4 It is clear that such an organization of trade will tend to the settlement of disputes by the arbitration of the governing body of the company. But, in 1693, trade had been to a large extent freed by a resolution of Parliament, “that it is the right of all Englishmen to trade to the East Indies, or any part of the world, unless prohibited by Act of Parliament.”5 It was a natural, though perhaps an indirect result, of the Great Rebellion and the Revolution that the ordinary courts should thus absorb jurisdiction over mercantile cases. The fact that the Law Merchant was not English law, but jus gentium, had been used to prove that the crown had such large powers over trade, that it could impose impositions, or create a monopoly.6 It was clear that the Law Merchant must be administered in the Edition: current; Page: [331] ordinary courts of law or equity if it was to be made to harmonize with the now established principles of English law.

The complete incorporation of the Law Merchant with the common law was not effected till the time of Lord Mansfield. Up to his time mercantile business had been divided between the courts of law and equity. No attempt had been made to reduce it to a system.1 This Lord Mansfield accomplished, and this entitles him to the fame of being “the founder of the commercial law of this country.”2 The Law Merchant has ceased to be a separate body of law administered by separate courts: “it is neither more nor less than the usages of merchants and traders . . . ratified by the decisions of courts of law, which upon such usages being proved before them, have adopted them as settled law.”3

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10.: A COMPARISON OF THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND1

IN the last preceding Essay the organs of legislation, and the methods whereby they were worked at Rome and in England respectively, were discussed and compared. A consideration of the course which legal change took, in its various phases of development, reform or decay, may be completed by inquiring into the general causes and forces which determined and guided the process of change. To justify the selection of Rome and England for comparison it is necessary to recur to two points only in which the history of institutions in these two States presents a remarkable analogy. Both have been singularly independent of outside influences in the development of their political character and their legal institutions. The only influence that seriously told on Rome was that of the Greeks: yet how thoroughly Roman all the institutions that ever had been Roman remained down till the second century of the Empire, after Hellenic influence had for more than two hundred years been playing freely and fully upon literature and thought! So English institutions have been far less affected by external influences than have been those of any other part of European Christendom. In Edition: current; Page: [333] France, Italy, Germany, and Spain, the traces of Roman dominion were never obliterated, and Roman law too, both through its traditions and through the writings which embody it, has always been a more potent factor than it ever was here. These countries have, moreover, borrowed more from each other than we have done from any one of them, except, perhaps, in the days when Normandy gave a Continental tinge to the immature feudality of England. And, secondly, both Rome and England have extended their institutions over vast territories lying beyond their own limits. Each has been a conquering and ruling power, and the process by which each grew into a World State from being, the one a City and the other a group of small but widely scattered rural tribes, offers striking points of resemblance as well as of contrast. I might add that there are similarities in the character of the two nations, similarities to which their success in conquering and ruling is due. But, for the moment, it is rather to law and institutions than to character that I seek to direct the reader’s attention.

Since the law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions, the causes which modify the law are usually to be sought in changes which have passed upon economic and social phenomena. When new relations between men arise, or when the old relations begin to pass into new forms, law is called in to adjust them. The part played by speculative theorists or scientific reformers who wish to see the law made more clear and rational is a relatively small factor in legal change, and one which operates only at rare moments. The process of development, if not wholly unconscious, is yet spontaneous and irregular. Alterations are made, not upon any general plan or scheme, but as and when the need for them becomes plain, or when it has at least become the interest of some ruling person or class to make them.

The relation of the general history, political, economic, and social, to changes in laws and institutions is best seen at certain definite epochs. It is indeed true that in nations which have reached a certain stage of civilization the conditions of Edition: current; Page: [334] life, and the relations of men and classes to one another, never remain quite the same from generation to generation. Every mechanical discovery, every foreign war or domestic insurrection, every accession or loss of territory, every religious or intellectual movement leaves things somewhat different from what it found them. Nevertheless, though the process of change is, except in savage or barbarous peoples, practically constant and uninterrupted, it becomes at certain particular moments much more swift and palpable, rushing, so to speak, through rapids and over cataracts instead of gliding on in a smooth and equable flow. These are the moments when a nation, or its ruler, perceives that the economic or social transformations which have been taking place require to be recognized and dealt with by corresponding changes in law and institutions, or when some political disturbance, or shifting of power from one class or group to another, supplies the occasion for giving effect to views or sentiments hitherto repressed. Accordingly it is profitable to give special attention to these transitional epochs, because it is in them that the relation between causes and consequences can be studied most easily and on the largest scale. Let us see what are the epochs in Roman and in English history which may be selected as those marked by conspicuous legal or institutional changes before we examine the relations of these changes to the forces which brought them about.

I.: Five Chief Epochs of Legal Change at Rome

In the thousand years of Roman history that lie between the first authentic records of the constitution and laws of the city, say 451 bc, when the Decemviral Commission, which produced the laws of the Twelve Tables, was appointed, and 565 ad, when Justinian died, having completed his work of codification and new legislation,1 we may single out five such epochs.

1. The epoch of the Decemviral Legislation, when many of Edition: current; Page: [335] the old customs of the nation, which had been for the most part preserved by oral tradition, were written down, being no doubt modified in the process.

2. The days of the First and Second Punic Wars, when the growth of population and trade, the increase of the number of foreigners resident in Rome, and the conquest by Rome of territories outside Italy, began to induce the development of the Praetorship as an office for expanding and slowly remodelling the law.

3. The end of the Republic and early days of the Empire, when there was a brilliant development of juridical literature, when the opinions of selected jurists received legal authority from the Emperor’s commission, when the Senate was substituted for the popular assemblies as the organ of legislation, and when the administration of the provinces was resettled on a better basis—all these changes inducing a more rapid progress of legal reform.

4. The reigns of Diocletian and Constantine, when imperial legislation took a fresh and vigorous start, and when the triumph of Christianity brought a new, a powerful, and a widely pervasive force into the field of politics and legislation.

5. The reign of Justinian, when the plan of codification whose outlines Julius Caesar had conceived, and which Theodosius II had done something to carry out, was at last completed by the inclusion of the whole law of Rome in two books containing the pith of the then existing law, and when many sweeping reforms were effected by new legislation.

It is less easy to fix upon epochs of conspicuous change in English legal institutions and law, because English development has been on the whole more gradual, and because the territorial limits of the area affected by change have not expanded to anything like the same extent as did the territories that obeyed Rome. Rome was a City which grew to be the civilized world: the Urbs became Orbis Terrarum. The English were, and remain, a people inhabiting the southern part of an island, and beyond its limits they have expanded Edition: current; Page: [336] (except as respects Ireland), not by taking in new territories as parts of their State, but by planting semi-independent self-governing States which reproduce England.1 However, one may, for the sake of a comparison with Rome, take the five following epochs as those at which the process of change became the most swift and the most effective for destruction and creation.

II.: Five Epochs of Legal Change in England

1. The time of Henry II, when the King’s Courts became organized, and began to evolve a Common Law for the whole realm out of the mass of local customs.

2. The times of Edward I and Edward III, when the solidification of the kingdom saw the creation of a partly representative legislature, the enactment of important statutes, and the establishment of a vigorous organ for the development and amendment of the law in the Chancellorship.

3. The time of Henry VIII and Edward VI, when the progress of society and an ecclesiastical revolution caused the passing of several sweeping legal reforms, separated the courts and the law of England from a system of jurisprudence which had influenced it in common with the rest of Western Christendom, and permanently reduced the power of the clergy and of clerical ideas.

4. The epoch of the Great Civil War and Revolution, when legislative authority, hitherto shared or disputed by the Crown and the Houses of Parliament, passed definitely to the latter, and particularly to the popular branch of Parliament, and when (as a consequence) the relation of the Monarch to the landholding aristocracy, and that of the State to its subjects in religious matters, underwent profound alterations.

5. The reigns of William IV and Victoria, when the rapid growth of manufacturing industry, of trade, and of population, coupled with the influence as well of new ideas in the sphere of government as of advances made in economic and social science, has shaken men loose from many old traditions Edition: current; Page: [337] or prejudices, and has, while rendering much of the old law inapplicable, made a great deal of new legislation indispensable.

Now let us consider what are the forces, influences, or conditions which at all times and everywhere become the sources and determining causes of changes in laws and institutions, these latter being that framework which society constructs to meet its needs, whether administrative or economic or social.

Five such determining causes may be singled out as of special importance. They are these.

1. Political changes, whether they consist in a shifting of power as between the classes controlling the government of a country, or affect the structure of the governmental machinery itself, as for instance by the substitution of a monarch for an assembly or of an assembly for a monarch.

2. The increase of territory, whether as added to and incorporated in the pre-existing home of a nation or as constituting a subject dominion.

3. Changes in religion, whether they modify the working of the constitution of the country or involve the abolition of old laws and the enactment of new ones.

4. Economic changes, such as the increase of industrial production or the creation of better modes of communication, with the result of facilitating the exchange of commodities.

5. The progress of philosophic or scientific thought, whether as enouncing new principles which ultimately take shape in law, or as prompting efforts to make the law more logical, harmonious and compendious.

The influence of other nations might be added, as a sixth force, but as this usually acts through speculative thought, less frequently by directly creating institutions and laws, it may be deemed a form of No. 5.

The two last of these five sources of change, viz. commerce and speculative or scientific thought, are constantly, and therefore gradually at work, while the other three usually, though not invariably, operate suddenly and at definite moments. All have told powerfully both on Rome and on England. But as the relative importance of each varies from Edition: current; Page: [338] one country to another, so we shall discover that some have counted for more in the case of Rome, some in that of England. The differences throw an instructive light on the annals of the two nations.

III.: Outline of Legal Changes at Rome

The legal history of Rome begins with the law of the Twelve Tables. This remarkable code, which, it need hardly be said, was neither a code in the modern sense, nor in the main new law, but rather a concise and precise statement of the most important among the ancient customs of the people, dominated the whole of the republican period, and impressed a peculiar character upon the growth of Roman law from the beginning till the end of the thousand years we are regarding. It gave a sort of unity and centrality to that growth which we miss in many other countries, England included, for all Roman statutes bearing on private law were passed with reference to the Twelve Tables, nearly all commentaries grouped themselves round it, and when a new body of law that was neither statute nor commentary began to spring up, that new law was built up upon lines determined by the lines of the Twelve Tables, since the object was to supply what they lacked or to modify their enactments where these were too harsh or too narrow. Its language became a model for the form which later statutes received. It kept before the minds of jurists and reformers that ideal of a systematic and symmetrical structure which ultimately took shape in the work of Theodosius II and Justinian. Now the law of the Twelve Tables was primarily due to political discontent. The plebeians felt the hardship of being ruled by customs a knowledge of which was confined to the patrician caste, and of being thereby left at the mercy of the magistrate, himself a patrician, who could give his decision or exert his executive power at his absolute discretion, because when he declared himself to have the authority of the law, no one, outside the privileged caste he belonged to, could convict him of error. Accordingly the plebs demanded the creation of a commission to draft laws defining the powers of the Consuls, and this Edition: current; Page: [339] demand prevailed, after a long struggle, in the creation of the Decemvirs, who were appointed to draft a body of general law for the nation. This draft was enacted as a Statute, and became thenceforth, in the words of Livy,1 “the fountain of all public and private law.” Boys learnt it by heart down to the days of Cicero, and he, despite his admiration for things Greek, declares it to surpass the libraries of all the philosophers.2

For some generations there seem to have been comparatively few large changes in private law, except that declaration of the right of full civil intermarriage between patricians and plebeians, which the Twelve Tables had denied. But the knowledge of the days on which legal proceedings could properly be taken remained confined to the patricians for nearly a century and a half after the Decemvirs. The plebs had, however, been winning political equality, and three or four years after the time when the clerk Flavius revealed these pontifical secrets it was completed by the admission of the plebeians to the offices of pontiff and augur.

Meanwhile Rome was conquering Italy. The defeat of Pyrrhus in bc 275 marks the virtual completion of this process. A little later, the First Punic War gave her most of Sicily as well as Sardinia and Corsica, and these territories became provinces, administered by magistrates sent from Rome. She was thus launched on a policy of unlimited territorial expansion, and one of its first results was seen in two remarkable legal changes. The increase in the power and commerce of Rome, due to her conquests, had brought a large number of persons to the city, as residents or as sojourners, who were not citizens, and who therefore could not sue or be sued according to the forms of the law proper to Romans. It became necessary to provide for the litigation to which the disputes of these aliens (peregrini) with one Edition: current; Page: [340] another or with Romans gave rise, and accordingly a Magistrate (Praetor peregrinus) was appointed whose special function it became to deal with such disputes. He was a principal agent in building up by degrees a body of law and a system of procedure outside the old law of Rome, which received the name of Ius Gentium (the law of the nations) as being supposed to embody or be founded on the maxims and rules common to the different peoples who lived round Rome, or with whom she came in contact.1 Through the action of the older Urban Praetor much of this ius gentium found its way into the law administered to the citizens, in the way described in the last preceding Essay. Similarly the Proconsuls and Propraetors, who held their courts in the subject provinces, administered in those provinces, besides the pure Roman law applicable to citizens, a law which, though much of it consisted of the local laws and customs of the particular province, had, nevertheless, a Roman infusion, and was probably in part, like the ius gentium, generalized from the customs found operative among different peoples, and therefore deemed to represent general principles of justice fit to be universally applied. The Edicts which embodied the rules these magistrates applied became a source of law for the respective provinces.2

These remarkable changes, which may be said to belong to the period which begins with the outbreak of the First Punic War (bc 264), started Roman law on a new course and gave birth to a new set of institutions whereby new territories, ultimately extended to embrace the whole civilized world, were organized and ruled. It was through these changes that the law and the institutions of the Italian City became so moulded as to be capable not only of pervading and transforming the civilizations more ancient than her own, but of descending to and influencing the modern world. Now these changes, like those which marked the period of the Twelve Tables, had their origin in political events. In the former case it was internal discontent and unrest that were the motive forces, in the latter the growth of dominion and of trade, Edition: current; Page: [341] trade being the consequence, not so much of industrial development as of dominion. But in both cases—and this is generally true of the ancient world as compared with the modern—political causes play a relatively greater part than do causes either of an economic or an intellectual and speculative order.1

How much is to be set down to external influences? The Roman writers tell us of the sending out of a body of roving commissioners to examine the laws of Athens and other Greek cities to collect materials for the preparation of the Twelve Tables. So too the contact of Rome with the Greek republics of Southern Italy in the century before the Punic Wars must have affected the Roman mind and contributed to the ideas which took shape in the ius gentium. Nevertheless any one who studies the fragments of the Twelve Tables will find in them comparatively few and slight traces of any foreign influence; and one may say that both the substance of the Roman law and the methods of procedure it followed remain, down till the end of the Republic, so eminently national and un-Hellenic in their general character that we must assign a secondary part to the play of foreign ideas upon them.

The next epoch of marked transition is that when the Empire of Rome had swollen to embrace the whole of the West except Britain and Western Mauretania, and the whole of the known East except Parthia.2 It was the epoch when the Republican Constitution had broken down, not merely from internal commotions, but under the weight of a stupendous dominion, and it was also the epoch when the philosophies of Greece had made the Roman spirit cosmopolitan, and dissolved the intense national conservatism in Edition: current; Page: [342] legal matters which distinguished the older jurists. Here, therefore, two forces were at work. The one was political. It laid the foundations of new institutions, which ripened into the autocracy of the Empire. It substituted the Senate for the popular Assembly as the organ of legislation. It gave the head of the State the power of practically making law, which he exercised in the first instance partly as a magistrate, partly through the practice of issuing to selected jurists a commission to give answers under his authority.1 The other force was intellectual. It made the amendment of the law, in a liberal and philosophical sense, go forward with more boldness and speed than ever before, until the application of the new principles had removed the cumbrousness and harshness of the old system. But it should be remembered that this intellectual impulse drew much of its power from political causes, because the extension of the sway of Rome over many subject peoples had accustomed the Romans to other legal systems than their own, and had led them to create bodies of law in which three elements were blent—the purely Roman, the provincial, and those general rules and maxims of common-sense justice and utility which were deemed universally applicable, and formed a meeting-ground of the Roman and the provincial notions and usages. So here too it is political events that are the dominant and the determining factor in the development both of private law and of the imperial system of government, things destined to have a great future, not only in the form of concrete institutions adopted by the Church and by mediaeval monarchy, but also as the source of creative ideas which continued to rule men’s minds for many generations.

Nearly three centuries later we come to another epoch, when two forces coincide in effecting great changes in law and in administration. The storms that shook and seemed more than once on the point of shattering the fabric of the Empire from the time of Severus Alexander to that of Aurelian (ad 235 to 270), had shown the need for energetic measures to avert destruction; and the rise to power of men of exceptional capacity Edition: current; Page: [343] and vigour in the persons of Diocletian and Constantine enabled reforms to be effected which gave the imperial government a new lease of life, and made its character more purely despotic. Therewith came the stopping of the persecution of the Christians, and presently the recognition of their religion as that which the State favoured, and which it before long began to protect and control. The civil power admitted and supported the authority of the bishops, and when doctrinal controversies distracted the Church, the monarchs, beginning from Constantine at the Council of Nicaea, endeavoured to compose the differences of jarring sections.

These changes told upon the law as well as upon institutions. New authorities grew up within the Church, and these authorities, after long struggles, obtained coercive power. Not only was the spirit of legislation in such subjects as slavery and the family altered—marriage and divorce, for instance, began to be regarded with new eyes—but a fresh field for legislation was opened up in the regulation of various ecclesiastical or semi-ecclesiastical matters, as well as in the encouragement or repression of certain religious opinions. The influence on law of Greek customs, which seemed to have been expunged by the extension of citizenship to all subjects a century before Constantine, makes itself felt in his legislation.

Besides these influences belonging to the sphere of politics and religion, economic causes, less conspicuous, but of grave moment, had also been at work in undermining the social basis of the State and inducing efforts to apply new legislative remedies. Slavery and the decline of agriculture, particularly in the Western half of the Empire, throughout which there seems to have been comparatively little manufacturing industry, had reduced the population and the prosperity of the middle classes, and had exhausted the source whence native armies could be drawn. Thus social conditions were changing. The growth of that species of serfdom which the Romans called colonatus belongs to this period. The financial strain on the government became more severe. New expedients had to be resorted to. All these phenomena, coupled with the more autocratic character which the central government of the Empire took from Edition: current; Page: [344] Diocletian onwards, induced a great and sometimes indeed a hasty and feverish exuberance of legislation, which was now effected solely by imperial ordinances.

Industrial decay seems to have been more rapid in Western than in the Eastern provinces, though palpable enough in such regions as Thrace and Greece. But everywhere there was an intellectual decline, which appeared not least in the sinking of the level of juristic ability and learning. The great race of jurists who adorned the first two and a half centuries of the Empire had long died out. We hear of no fertile legal minds, no law books of merit deserving to be remembered, during the fourth and fifth centuries of our era. The mass of law had however increased, and the judges and practising advocates were, except in the larger cities, less than ever capable of dealing with it. The substitution of Roman for provincial law effected by the Edict of the Emperor Antoninus Caracalla had introduced some confusion, especially in the Eastern provinces, where Greek or Oriental customs were deeply rooted, and did not readily give place to Roman rules. The emperors themselves deplore the ignorance of law among practitioners: and presently it was found necessary to prescribe an examination for advocates on their admission to the bar. Accordingly the necessity for collecting that which was binding law and for putting it into an accessible form became greater than ever. It had in earlier days been an ideal of perfection cherished by theorists; it was now an urgent practical need. It was not the bloom and splendour but the decadence of legal study and science that ushered in the era of codification. A century after the death of Constantine, the Emperor Theodosius II, grandson of Theodosius the Great, reigning at Constantinople from ad 408 to ad 450, issued a complete edition of the imperial constitutions in force, beginning from the time of Constantine, those of earlier Emperors having been already gathered into two collections (compiled by two eminent jurists) in current use. Shortly before a statute had been issued giving full binding authority to all the writings (except the notes of Paul and Ulpian upon Papinian) of five specially famous jurists of the classical age (Papinian, Paul, Edition: current; Page: [345] Gaius, Ulpian, Modestinus). The advisers of Theodosius II had intended to codify the whole law, including the ancient statutes and decrees of the Senate and Edicts of magistrates so far as they remained in force, as well as the writings of the jurists, but the difficulties were too great for them, and they contented themselves with a revised edition of the more recent imperial constitutions.

Justinian was more energetic, and his codification of the whole law of the Empire marks an epoch of supreme importance in the history not merely of Rome but of the civilized world, for it is possible that without it very little of the jurisprudence of antiquity would have been preserved to us, so that the new nations which were destined to emerge from the confusion of the Dark Ages might have lacked the foundation on which they have built up the law of the modern world. It is indeed an epoch which stands alone both in legal and in political history.

Justinian’s scheme for arranging and consolidating the law included a compilation of extracts from the writings of the jurists of the first three centuries of the Empire, together with a collection of such and so many of the Constitutions of the Emperors as were to be left in force, both collections being revised so as to bring the contents of each into accord and to harmonize the part of earlier date (viz. that which contained the extracts from the old jurists) with the later law as settled by imperial ordinances. It was completed in the space of six years only—too short a time for so great a work. It was followed by a good deal of fresh legislation, for the Emperor and his legal minister Tribonian, having had their appetite whetted, desired to amend the law in many further points and reduce it to a greater symmetry of form and perfection of substance. The Emperor moreover desired, for Tribonian was probably something of a Gallio in such matters, to give effect to his religious sentiments both by laying a heavy hand on heretics and by making the law more conformable to Christian ideas. Thus the time of Justinian is almost as significant for the changes made in the substance of the law as for the more compendious and convenient form into which the law was brought.

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Some thirty years before the enactment of Justinian’s Codex and Digest (which, though intended for the whole Empire, did not come into force in such Western provinces as had already been lost) three collections of law had been made by three barbarian kings for the governance of their Roman subjects. These were the Edictum of Theodorich, King of the East Goths, published in ad 500, the Lex Romana Visigothorum, commonly called the Breviarium Alaricianum, published by Alarich II, King of the West Goths (settled in Aquitaine and Spain), in ad 506, a year before his overthrow by Clovis, and the Lex Romana Burgundionum, published by the Burgundian King Sigismund in the beginning of the sixth century. These three compilations, each of which consists of a certain number of imperial Constitutions, with extracts from a few jurists, ought to be considered in relation to Justinian’s work, partly because each of them did for a part of the Roman West what he did for the East, and, as it turned out, for Italy and Sicily also, when Belisarius reconquered those countries for him, and partly because they were due to the same need for accessible abridgements of the huge mass of confused and scattered law which prompted the action of Justinian himself. They are parts of the same movement, though they have far less importance than Justinian’s work, and, unlike his, include little or no new law.

The main cause of the tendency to consolidate the law and make it more accessible was the profusion with which Diocletian and his successors had used their legislative power, flooding the Empire with a mass of ordinances which few persons could procure or master, together with the decline of legal talent and learning, which made judges and advocates unable to comprehend, to appropriate and to apply the philosophical principles and fine distinctions stored up in the treatises of the old jurists. Here, therefore, political and intellectual conditions, conditions rather of decline than of progress, lay at the root of the phenomenon. But in the case of Justinian something must also be credited to the enlightened desire which he, or Tribonian for him, had conceived of removing the complexities, irregularities and discrepancies Edition: current; Page: [347] of the old law, bringing it nearer to what they thought substantial justice, and presenting it in concise and convenient form. Plato desired to see philosophy in the seat of power, and in Justinian philosophic theory had a chance such as it seldom gets of effecting permanently important changes by a few sweeping measures. Yet theory might have failed if it had not been reinforced by the vanity of an autocrat who desired to leave behind him an enduring monument.

This rapid survey has shown us that two forces were always operative on the development of Roman law—internal political changes and the influence of the surrounding countries. As Rome conquered and Romanized them, they compelled her institutions to transform themselves, and her law to expand. Economic conditions, speculative thought and religion had each and all of them a share in the course which reforms took, yet a subordinate share.

IV.: Outline of the Progress of Legal Changes in England

Let us now turn to England and see what have been the forces that have from time to time brought about and guided the march of legal change, and what have been the relations of that change to the general history of the country.

As with Rome we began at the moment when the ancient customs were first committed to writing and embodied in a comprehensive statute, so in England it is convenient to begin at the epoch when the establishment of the King’s Courts enabled the judges to set about creating out of the mass of local customs a body of precedents which gave to those customs definiteness, consistency and uniformity. Justice, fixed and unswerving justice, was in the earlier Middle Ages the chief need of the world, in England as in all mediaeval countries; and the anarchy of Stephen’s reign had disposed men to welcome a strong government, and to acquiesce in stretches of royal power that would otherwise have been distasteful. Henry II was a man of great force of character and untiring energy, nor was he wanting in the talent for selecting capable officials. He had to struggle, not only Edition: current; Page: [348] against the disintegrating tendencies of feudalism, but also against the pretensions of the churchmen, who claimed exemption from his jurisdiction, and maintained courts which were in some directions formidable rivals to his own. He prevailed in both contests, though it was not till long after that the victory was seen to have remained with the Crown. It was his fortune to live at a time when the study of law, revived in the schools of Italy, had made its way to England, where it was pursued with a zeal which soon told upon the practice of the Courts, sharpening men’s wits and providing for them an arsenal of legal weapons. It is true that the law taught at the Universities was the Roman law, and that the practitioners were almost entirely ecclesiastics. Now the barons, however jealous they might be of the Crown, were not less jealous of ecclesiastical encroachments and of the imperial law. They could not prevent judges from drawing on the treasures which the jurists of ancient Rome had accumulated, but they did prevent the Roman law from becoming recognized as authoritative; so that whatever it contributed to the law of England came in an English guise, and served rather to supplement than to supersede the old customs of the kingdom.

In this memorable epoch, which stamped upon the common law of England a character it has never lost, the impulse which the work of law-making received came primarily from the political circumstances of the time, that is, from the desire of the king to make his power as the receiver of taxes and the fountain of justice effective through his judges, and from the sense in all classes that the constant activity of the Courts in reducing the tangle of customs to order, no less than the occasional activity of the king when he enacted with the advice and consent of his Great Council statutes such as the Constitutions of Clarendon, was a beneficial activity, wholesome to the nation. But though political causes were the main forces at work, much must also be allowed to the influence of ideas, and particularly to the intellectual stimulus and the legal training which the study of Roman jurisprudence had given to the educated men who surrounded and worked for the king and the bishops.

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The development of English institutions has been at all times so slow and so comparatively steady that it is not easy to fix upon particular epochs as those most conspicuously marked by change. However I take the epoch of Edward I and Edward III. Under Edward I, whose reign was one of comparative domestic tranquillity, the organ of government whose supreme legislative authority was to become unquestioned took its final shape in passing from a Great Council of magnates to an Assembly consisting of two Houses, in one of which the chief tenants of the Crown sat, while the other was composed of representatives of the minor tenants and of boroughs. Under his grandson the chief judicial Minister of the Crown began to sit as a Court, granting redress in the name of the Crown in cases or by methods which the preexisting Courts were unable or unwilling to deal with. Parliament passed under Edward I some statutes of the first magnitude, such as Quia Emptores and De Donis Conditionalibus, which impressed a peculiar character on the English land system, and introduced some valuable improvements in the sphere of private rights and remedies. But the legislature was, for two or three centuries, in the main content to leave the building up of the law to the old Common Law Courts and (in later days) to the Chancellor. The action of this last-named officer was, during the fifteenth, sixteenth and seventeenth centuries, of capital importance, so that the establishment of his jurisdiction is one of the landmarks of our legal history. It was really a renewal, two hundred years after Henry II’s time, of that king’s efforts to secure the due administration of justice through the realm, but it grew up naturally and spontaneously, with less of conscious purpose than Henry II had shown. Both the legislature and the Chancellor were the outcome of political causes, but it must not be forgotten that in the methods taken by the Chancellor (hardly reduced to a system till the seventeenth century) we find the working of a foreign influence which thereafter disappears from English law, that, namely, of the civil and canon laws of Rome and of the Roman Church, for the Chancellors of the fourteenth and fifteenth centuries were all ecclesiastics and drew largely from Roman sources.

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The days of the Reformation bring two new and powerful influences to bear upon laws and institutions. One of these influences is economic, the other religious. The growth of industry and trade had so far disintegrated the old structure of society and brought about new conditions that not a few new laws, among which the most familiar and significant are the Statute of Uses and the Statute of Wills, were now needed. The nation was passing out of the stiffness of a society based on landholding and recognizing serfdom into a larger and freer life. At the same time the religious revolution which severed it from Rome, which was accompanied by the dissolution of the monasteries, and which ended by securing the ascendency of a new body of theological ideas and of simpler forms of worship, involved many legal changes. The ecclesiastical courts were shorn of most of their powers, and the law they administered was cut off from the influences that had theretofore moulded and dominated it. The position of the clergy was altered. New provisions for the poor soon began to be called for. New tendencies, the result of a bolder spirit of inquiry, made themselves felt in legislation. One sees them stirring in the mind of Sir Thomas More. It was some time before the religious and economic changes took their full effect upon the law. But nearly all the remarkable developments that make the time of Henry VIII and Elizabeth an epoch of legal change, may be traced not so much to politics as to the joint influence of commerce (including the growth of personal, as distinguished from real, property) and of theology. Even the oceanic power and territorial expansion of England, which began with the voyages of Drake and the foundation of the Virginia Company and of the East India Company, did not affect either the law or the institutions of the country. The establishment of distant settlements was largely the result of the growing force of commercial enterprise, in which there was at first very little of political ambition, though it cordially lent itself to a political antagonism first to Spain and then to France.

With the time of the Great Civil War we return to an era in which, though religion and commerce continue to be potent forces, the first place must again be assigned to political Edition: current; Page: [351] causes. The struggle which overthrew the old monarchy effected two things. It extinguished the claims of the Crown to a concurrent legislative or quasi-legislative power. The two Houses of Parliament were established as an engine for effecting legal changes, prompt in action and irresistible in strength.1 Towards this England had long been slowly tending, as during a century before Augustus Rome slowly tended to a monarchy. The work was completed at the Boyne and Aughrim, but the decisive blow was struck at Naseby. And, secondly, it occasioned the accomplishment of several broad and sweeping reforms in institutions as well as in law proper. A Parliamentary Union of England, Scotland and Ireland was effected which, though annulled by the Restoration, was a significant anticipation of what the following century was to bring. The old system of feudal tenure and the relics of feudal finance were abolished. New provisions were made, and old ones confirmed and extended, for the protection of the freedom of the subject in person and estate. Commercial transactions were regulated, perhaps embarrassed, by a famous enactment (the Statute of Frauds) regarding the evidence required to prove a contract. Such of these things as lay outside the purely political sphere were due partly to the development of industry and commerce, which had gone on apace during the reign of James I, and was resumed during the government of Cromwell and Charles II, partly to that sense which political revolutions bring with them, that the time has come for using the impulse of liberated forces to effect forthwith changes which had for a long time before been in the air. On a still larger scale, it was the Revolution and Empire in France that led to the remodelling of French institutions and the enactment of Napoleon’s Codes.2

As usually happens, an era of abnormal activity in recasting institutions and in amending the law was followed by one of comparative quiescence. It was not till the middle of the Edition: current; Page: [352] reign of George III that the beginnings of a new period of transition were apparent, not till after the Reform Bill of 1832 that the largest among the many reforms towards which men’s minds had been ripening were effected. These reforms, which have occupied the last sixty-seven years, have touched every branch of law. They include a great mitigation of the old severity of the criminal law and the introduction of provisions for repressing those new offences which are incident to what is called the progress of society. They have expunged the old technicalities of pleading by which justice was so often defeated. They have striven to simplify legal procedure, though they have not succeeded in cheapening it, and have fused the ancient Courts of Common Law with those of Equity. They have removed religious disqualifications on the holding of offices and the exercise of the suffrage. They have dealt with a long series of commercial problems, and have in particular made easy the creation of corporations for business and other purposes, given limited liability to their members, and laid down many regulations for their management. They have altered the law of the land, enlarging the powers of life owners, and rendering it easier to break entails. They have reorganized the fiscal system, simplified the customs duties, and established a tariff levied for revenue only. They have codified the law, mainly customary in its origin, relating to such topics as negotiable instruments, sale and partnership. They have created an immense body of administrative law, extending and regulating the powers of various branches of the central government, and, while remodelling municipal government, have created new systems of rural local government. As regards the central institutions of the country, several new departments of State have been called into being. Ecclesiastical property has been boldly handled, though not (except in Ireland) diverted to secular uses; a new Court of Appeal for causes coming from the extra-Britannic dominions of the Crown has been set up, and the electoral franchise has been repeatedly extended.

These immense changes have been due to three influences. The first was the general enlightment of mind due to the play Edition: current; Page: [353] of speculative thought upon practical questions which marked the end of last and the beginning of this century, and of which the most conspicuous apostles were Adam Smith in the sphere of economics and Jeremy Bentham in the sphere of legal reform. The second was the rapid extension of manufacturing industry and commerce, itself largely due to the progress of physical science, which has placed new resources at the command of man both for the production and for the transportation of commodities. The third influence was political, and was itself in large measure the result of the other two, for it was the combination of industrial growth with intellectual emancipation that produced the transfer of political power and democratization of institutions which went on from the Roman Catholic Emancipation Act of 1829 to the Local Government Act of 1894. Could we imagine this industrial and intellectual development to have failed to work on political institutions as it in fact did work, it would hardly the less have told upon administration and upon private law, for the new needs would under any form of government, even under an oligarchy like that of George II’s time, have given birth to new measures fitted to deal with them. The legislation relating to Joint Stock Companies (beginning with the Winding-Up Acts), which filled so important a place in the English Statute-book from 1830 to 1862, and which still continues, though in a reduced stream, would under any political conditions have been required owing to the growth of commerce, the making of railways, the increased need for the provision of water, gas and drainage. And there went on, hand and hand with it, an equally needed development by the Courts of Equity of the law of partnership, of agency and of trusts, as applied to commercial undertakings. What the political changes actually did was to provide a powerful stimulus to reform, and an effective instrument for reform, while reducing that general distaste for novelties which had been so strong in the first half of the eighteenth century.

If we now review the general course of changes in institutions and law in the two States selected for comparison we shall be struck by two points of difference.

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4.: Some Differences between the Development of Roman and that of English Law

The branch of private law which is most intimately connected with the social and economic habits of a nation, and which, through social and economic habits, most affects its character, is that branch which touches Property, and the connexion of property with the Family. The particular form which the institutions relating to property, especially immovable property, take, tells upon the whole structure of society, especially in the earlier stages of national growth. The rules, for instance, which govern the power of an owner to dispose of his property during his life or by will, and those which determine the capacity of his wife and children to acquire for themselves by labour or through gift, and to claim a share in his estate at his decease if he dies intestate, or even against his last will—these rules touch the richer and middle classes in a community and affect their life. So one may perhaps say that the development of this branch of law comes nearer than any other to being the central line of legal development, bearing in mind that it is the needs and wishes of the richer and middle classes which guide the course of legal change. Here, however, we discover an interesting point of comparison between Roman and English legal history.

At Rome it is the history of the Family, especially as taken on its economic or pecuniary side, the most important part of which is the Law of Inheritance, that plays the largest part. The old rules, which held the Family together, and vested in the father the control of family property, were at first stringent. From the third century bc onwards they began to be modified, but they were so closely bound up with the ideas and habits of the people that they yielded very slowly, and it was not till the bold hand of Justinian swept away nearly all that remained of the ancient rules of succession, and put a plain and logical system in their place, that the process was complete.

In England, on the other hand, it is the Law of Land that is the most salient feature in the economico-legal system of the Middle Ages. Among the Teutons the Family had not Edition: current; Page: [355] been, within historic times at least, a group closely bound together as it was among the Italians, whereas the historical and political conditions of the eleventh and twelfth centuries had in Western Europe made landholding the basis of nearly all social and economic relations. Hence the land customs then formed took a grip of the nation so tight that ages were needed to unloose it. The process may be said to have begun with a famous statute (Quia Emptores) in the reign of Edward I. Its slow advance was quickened in the seventeenth century by political revolution; and the Act of 1660 which abolished knight service recorded a great change. The peaceful revolution of 1832 gave birth to the series of statutes which from 1834 down to our own day have been reshaping the ancient land system, but reshaping it in a more piecemeal and perplexing fashion than that in which Justinian reformed the law of succession by the 118th and 127th Novels. Problems connected with landholding still remain in England, as they do in nearly all States, especially where population is dense; but they differ from the old problems, and though disputes relating to the taxation of land give trouble, and may give still more trouble, questions of tenure have lost the special importance which made them once so prominent in our legal history.

Both Rome and England have been, far beyond any other countries except Russia, expanding States. Rome the City became Rome the World-State. The Folk of the West Saxons went on growing till it brought first the other kingdoms of South Britain, Teutonic and Celtic, then the adjoining isles of Ireland and Man, then a large part of North America, then countless regions far away over the oceans under the headship of the descendants of Cerdic and Alfred. But in the case of Rome this expansion by conquest was the ruling factor in political and legal evolution, the determining influence by which institutions were transformed. In England, on the other hand, it is the relations of classes that have been the most active agency in inducing political change, and the successive additions of territory have exerted a secondary influence on institutions and an insignificant influence on law. Not only has English law been far less affected (save at the Edition: current; Page: [356] first two of the five epochs above described) by foreign law or foreign thought than Rome was, but the increase of England by the union, first of Scotland and then Ireland, and by the acquisition of transoceanic dominions, has not interrupted the purely insular or national development of English law. The conquest of Ireland, which began in the twelfth century but was not completed till the seventeenth, made no difference, because Ireland, always since the twelfth century far behind England in material progress and settled social order, received a separate civil administration with separate Courts. As these Courts administered English law, they followed in the path which England had already travelled and did not affect the progress of law in England. Nothing speaks more of the long-continued antagonism of the Teutonic and the Celtic elements in Ireland, and of the dominance of the Teutonic minority over the Celtic majority, than the practical identity of the common law in the two countries, and the total absence of any Celtic customs in that law. The few and comparatively slight differences which exist to-day between the law of England and that of Ireland are all due to statute. One is the absence of judicial divorce in Ireland, which an Act passed so recently as 1857 introduced in England. The second is to be found in the law relating to land, largely altered by statutes passed for Ireland by the British Parliament of our own time. The third is the existence in Ireland of what are admitted to be exceptional and supposed to be temporary penal provisions, the last of which is the Prevention of Crime Act of 1887. As regards Scotland, when her king became king of England, and when, a century later, her Parliament was united with that of England, she retained her own law intact. In some few respects her law, founded on that of Rome, and her system of judicial administration are better than those of England, nor has she failed to contribute distinguished figures to the English bench and bar; but, as she stands far below England in population and wealth, she has affected the law of the larger country as little as the attraction of the moon affects the solid crust of the Earth.

The vaster territorial expansion of the eighteenth and nineteenth Edition: current; Page: [357] centuries has told quite as little on the law of England as did the unions with Scotland and Ireland. When the English began to people what are now the self-governing colonies, and when India came under British sway, English law was too fully developed to be susceptible to influences from them, not to add that they were too distant to make any assimilation either desirable or possible. Had India lain no further from England than Sicily and the Greek cities lay from Rome, had she been as near the level of English civilization as those countries were to that of Roman civilization, and had she been conquered in the reign of Elizabeth instead of in the reign of George III, the history of English institutions and English law must have been wholly unlike what it has in fact been. These three differences measure the gulf which separates the course of English from that of Roman development.

Another salient point in which the two States may be compared relates to the smaller part which purely political as compared with economic and intellectual changes have played in the development of English laws and institutions. Although there is a sense in which every political change may be described as the result of an economic or intellectual change, or of both taken together, still it is true that at Rome the desire to grasp political power counted for more in the march of events than it has done in England.

Economic changes sometimes operate on politics by raising the material condition of the humbler class and thereby disposing and enabling them to claim a larger share of political power. This happened at Rome more frequently in the earlier than in the later days of the Republic. In England it has happened more in later times than it did in earlier. Sometimes, however, economic causes so depress the poor that their misery becomes acute or their envy intense, whence it befalls that they break out into revolt against the rich. This was on the point of happening more than once at Rome, but has been no serious danger in England since the days of Richard II. Sometimes, again, the growth of immense fortunes and the opportunities of gaining wealth through politics threaten the working of popular institutions. This occurred at Rome; and was one of the causes which brought Edition: current; Page: [358] the Republic to its death. It is a peril against which England has had, and may again have, to take precautions.

Changes in thought and belief operate on politics either by weakening the deferential and submissive habits of the classes which have been excluded from power so that they insist on having their fair share of it, or by implanting in the minds of the middle and upper classes new ideas which grow strong enough to make them insist on bringing old-fashioned practice into accord with new and more enlightened theory. It was the concurrence of these two forms of intellectual change that gave its specially destructive character to the French Revolution. Ideas of course act most quickly and powerfully when they are such as rouse emotion, for that which remains a mere intellectual concept or speculative opinion is not a thing to stir or to shake established institutions. The best illustration is to be found in religious beliefs. But the notion of Equality—that is to say, the notion that rights vested in every man as a man demand that every man shall be treated alike—has also proved an energetic explosive. Influences of this kind counted for little at Rome. Neither have they, except in the form of religious beliefs, or when their force coincided with that exerted by religious convictions, become the source of strife or constitutional change in England.

One may indeed say that the course of England’s political development has been less interrupted by convulsions than that of any other great State, for even the scars made by the Civil War were before long healed, so that hardly any of the old institutions perished, though some of them passed into new phases. The new buildings which popular government has within the present century added to the old edifice are built out of the same kind of stone, and (if one may venture to pursue the metaphor) weather to the same colour. So the growth of our law, both public and private, both criminal and civil, has been a gradual and quiet growth, due in the main to the steady increase in the magnitude and complexity of the industrial and commercial relations of life, which have made the law expand and improve at the bidding of practical needs. Where politics have affected the law, Edition: current; Page: [359] this has been through the rise of the humbler classes, a rise largely due to economic causes. So likewise the influence of ideas, of new views as to what law should be and how it should serve the community, has been marked by few sudden crises, and has been ruled by practical good sense rather than by aspirations after a theoretical perfection. As regards private law, this remark applies to the Romans also, although the constant strain placed upon their institutions by their territorial expansion as well as the differences between a City State and a large rural State exposed their political system to more frequent shocks and ultimately to a more radical transformation.

Finally, it may be observed that the interest felt in law, and the amount of intellectual effort given to its development, was probably greater among the educated class in Rome than it has ever been in any large section of the English people. Romans of intellectual tastes had fewer things to think about, fewer subjects to attract or to distract them, than the English have had. Law was closely interwoven with public life. Country life and country sports, commerce, religion, travel and adventure, covered less of the mental horizon than these pursuits have covered to Englishmen of the upper or educated class, so that more of thought and time was left to be devoted to law. Nor were many Romans carried off into other regions, like the Greeks, by the love of art, or of music, or of abstract speculation.

From this reflection another arises, viz. that legal and constitutional studies, as a subject for research and thought, find the competition of other subjects more severe in England to-day than they did in the eighteenth century.1 Historical inquiries, economic inquiries, and, to a still larger extent, inquiries in the realm of Nature, claim a far larger share in the interest of eager and active minds now than in the days of Hobbes or Locke or Bentham. They have done much to extrude law from the place it once held among subjects of interest to unprofessional persons. This is true all over the world; but legal topics, whether constitutional or belonging to the sphere of penal or administrative, or international Edition: current; Page: [360] or ordinary private law, seem now to claim even fewer votaries in England than they do in France or Germany, and certainly fewer than they do in the United States.

VI.: Observations on France and Germany

The sketch which I have sought to draw of the relations of general history to legal history might have been with advantage extended to include the legal history of other States, and particularly of two such important factors in modern civilization as France and Germany. But, apart from the undue length to which an essay would stretch if it tried to cover so large a field, there is a good reason why we may deem these two countries less well suited for the sort of comparative treatment here assayed. Neither of them has had the kind of independent and truly national legal development which belonged to Rome and belongs to England. Each of them started on its career with a body of pre-existing law, made elsewhere, viz. the Roman law which had come down to France and to Germany from antiquity. In Gaul, even in the parts most settled by the Franks, the law of the Empire held its ground, though everywhere largely modified by feudal land usages, and in the northern half of the country, when it had ceased to be Gaul and had become France, in the form of customs and not of written Roman texts. In Germany the old Teutonic customary law was by degrees (except as regards land rights) supplanted by the Corpus Iuris of Justinian, in conformity with the idea, fantastic as that idea now appears to us, which regarded the Roman Emperors from Julius Caesar down to Constantine the Sixth as the predecessors in title of the Saxon and Franconian Emperors. Thus neither the French nor the Germans built up on their own national foundation a law distinctively their own. Moreover, both Germany and France stand contrasted with England as well as with Rome in the fact that neither country ever had a true central legislature or central system of law courts comparable with the Parliament and King’s Courts of England. The German Diet, though enactments were occasionally made in it with its consent Edition: current; Page: [361] by the sovereign, enactments which however were not universally obeyed, dealt very little with law proper, even in the days of its greatest strength. Still less were the French States-General, even before their long eclipse, an effective legislature. Thus the development of the law of both Germany and France fell mainly into the hands of the jurists, qualified to some extent in Germany by the ordinances enacted by the electors, landgraves, and other princes, as well as by the free imperial cities, and (in later days) by the kings whose dominions formed part of the decaying Empire, and qualified in post-mediæval France by the ordinances of the king. In both countries it was upon the Roman law, as modified by custom, that the jurists worked, and hence in neither did a body of law grow up which was truly national, in the sense either of having a distinctive national quality or of embracing the whole nation or of having been enacted by a national legislature. The first complete unity given to law in France was given by Napoleon. His Code was based on the Roman law theretofore used, which had to a considerable extent been already codified under Lewis XIV; yet the creation of one Code for the whole country was a step so bold that it could hardly have been attempted except by an autocrat and on the morrow of a revolution. The first modern effort to give unity to law in Germany, itself an efflux of the aspiration for national unity, was made by the General Bills of Exchange Law (Wechselordnung) (1848-1850), while a general Commercial Code (Gemeines Handelsgesetzbuch) enacted in various States between 1862 and 1866 was reenacted for the new Empire in 1871. The fuller unity long desired was attained in 1900, when the new general Code for the whole German Empire came into force. This similarity between the legal history of France and that of Germany seems the more curious when one remembers that, so far as mere political unity is concerned, France attained that unity comparatively early, one may say at the end of the fifteenth century, while Germany continued down till the extinction of the old Empire in 1806 to go on losing what political unity she had possessed. It was not till 1866 that she began to Edition: current; Page: [362] regain it, though the Customs Union of the German States, formed in 1829, had been a presage of what was coming.

VII.: Private Law least affected by Political Changes or Direct Legislation

One phenomenon is common to the legal history in all these nations. That part of the law which has the greatest interest for the scientific student, and the greatest importance for the ordinary citizen, the private civil law of family and property, of contracts and torts, has been the part least affected either by political changes or by direct legislation. It has been evolved quietly, slowly and almost imperceptibly, first by popular custom, then by the labours of jurists and the practice of the Courts. Direct legislation by the supreme power has stepped in chiefly to settle controversies between conflicting authorities, or to expunge errors too firmly rooted for judges to rectify, or to embody existing usage in a definite and permanent form. In the sphere of private law, and even in that of criminal law (so far as not affected by politics), legislation scarcely ever creates any large new rule, and seldom even any minor rule which is absolutely new, not an enlargement of something which has gone before. Pure legislative novelties mostly turn out ill. Fortunately, the good sense of Englishmen, like that of Romans, has rarely permitted them to appear.

The parallel drawn between the history of Roman and that of English law is less instructive when we reach the later stages of that history. It cannot be made complete, not only because we know comparatively little of the inner condition and practical working of the Courts after the time of Constantine, but because there was after his time both a political and an intellectual decay, which few will profess to discover in the England of this century. The expansion and enrichment of the Roman system had stopped even before Constantine, while that of English Law is still proceeding.1 In England Edition: current; Page: [363] commerce is still growing, education is still advancing, new and complicated problems are still emerging, so that many forces continue to work for the development of law. Though we cannot foresee what lines this development will follow we may feel sure that some of the old causes of change are disappearing. The democratization of political institutions seems nearly complete, religious passions have grown cold, and all classes have been so fully admitted to a share in political power that any such bold reforms in central and local administration, in procedure, in penal law, and in one or two departments of private civil law as followed the Reform Bill of 1832, seem improbable. In some departments the possibilities of further progress appear to be exhausted, though there are others, such as those concerned with questions of the right of combination among employers or among workmen, and the character which motive imparts to acts in themselves lawful on which the last word is far from having been said.1 But there are at least two real difficulties which remain to be grappled with. One relates to the methods of legal proceedings. Their cost is so great as to deter many persons from the attempt to enforce just claims, to impose a heavy and unfair burden upon successful litigants, and to furnish opportunities for blackmail (especially in libel cases) to men who are equally devoid of money and of scruples. All efforts to cheapen them have so far failed. The other problem relates to a matter of substance. What are the general principles to be followed in empowering the State to regulate the conduct of individuals or groups of individuals, in permitting the central government or a local authority to compete with individuals in industrial enterprises and in restricting the power of combinations formed for commercial or industrial objects? This group of problems are being daily pressed to the front by political forces on the one hand and by industrial progress on the other. They are as urgent in the United States as in Britain. Nor are they matters for legislation Edition: current; Page: [364] only, for cases frequently arise which the best legislation cannot count upon having provided for, and which it needs not only technical skill but also a philosophic grasp of principles on the part of the bar and bench to conduct to a solution. The experience of the ancient world and that of the Middle Ages throws little light upon them. But as they have appeared simultaneously in many modern nations, each may have something to learn from the others. Comparative jurisprudence has no more interesting field than this: nor is there any task in labouring on which an enlightened mind may find a wider scope for the devotion of learning and thought to the service of the community.

I am tempted to venture on some other predictions as to the influences that may be expected to work on the legal changes of the coming century. But we have been pursuing an historical, not a speculative, inquiry, and it will be enough to suggest that industry and commerce, as quickened by the progress of physical science, are likely to be factors of increasing power, and that the purely political element in the development of law will count for less than that contributed by the effort to readjust social conditions and to give effect to social aspirations.

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PART III.: THE AMERICAN COLONIAL PERIOD

  • 11.

    English Common Law in the Early American Colonies.

    Paul Samuel Reinsch.

  • 12.

    The Extension of English Statutes to the Plantations.

    St. George Leakin Sioussat.

  • 13.

    The Influence of Colonial Conditions, as Illustrated in the Connecticut Intestacy Law.

    Charles McLean Andrews.

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[Other References on this Period. The following essays also deal with this period:

In Select Essays:

Courts of Chancery in Colonial America, by Solon D. Wilson: Volume II.

Equity through Common Law Forms in Pennsylvania, by Sidney G. Fisher: Volume II.

Private Corporations in the Colonies, by Simeon E. Baldwin: Volume III.

In other Collections and Periodicals:

Colonial Landholding in North Carolina, by J. S. Bassett: Law Quarterly Review, XI, 154.

Judicial Action by the Provincial Legislature of Massachusetts, by M. M. Bigelow: Columbia Law Review, II, 536.

The Adoption of the Common Law by the American Colonies, by R. S. Dale: American Law Register, N. S., XXI, 553.

The History of Equity in the American Colonies and States, by E. B. Gager: in Two Centuries’ Growth of American Law (1901), p. 129.

The History of the Law of Municipal Corporations in the Colonies and the States, by H. W. Rogers: ibid. p. 202.

Courts of Justice in the Province of Massachusetts Bay, by T. L. Phillips: American Law Review, XXXIV, 566.

A Chapter in the Legal History of Massachusetts, by J. B. Thayer: Harvard Law Review, IX, 1.

The History of the Land and Judicial Systems in Pennsylvania, by W. R. Shepherd: Columbia Studies in History, VI, pp. 1, 370.

The History of Chancery in Massachusetts, by E. H. Woodruff: Law Quarterly Review, V, 370.

Roger Ludlow, the Colonial Lawmaker, by J. M. Taylor (1900).

Justice in Colonial Virginia, by O. P. Chitwood (Johns Hopkins University Studies in History and Political Science, ser. XXIII).

The Origin of the System of Recording Deeds in America, by J. H. Beale, Jr.: Green Bag, XIX, 335.]

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11.: THE ENGLISH COMMON LAW IN THE EARLY AMERICAN COLONIES1

Introduction

WHEN American legal history comes to be studied more thoroughly, it will perhaps be found that no country presents, in the short space of three centuries, such a variety of interesting phenomena. An old nation, marked for a sturdy sense of right, sends colonies into a wilderness; they form rude institutions, often suggesting early European experience, to govern their simple social relations. As this society grows more intricate and more highly organized, the legal institutions of the mother country are gradually introduced, until a large portion of the common law is transferred to the actual practice of the colonies. Their law, however, always retained the impress of the earlier originality, when new conditions brought forth new institutions and new legal ideas. The struggles with the mother country caused a wide spread of legal knowledge, and the common law came to be revered as a muniment of personal liberties. Blackstone was outdone by American lawyers in extravagant panegyrics. It is only when the rationalizing tendencies of French democracy become triumphant in America, that the Edition: current; Page: [368] value of the common law is openly and bitterly attacked. Then comes the great reforming and codifying movement of this century, in which New York is the leading state. Unconscious development of custom, reversal to simpler forms, adaptation and modification of a technical system brought from abroad, conscious reform, and, finally, the effort to cast all legal relations into a simple and lucid system,—all these phenomena can be traced in our law, and nowhere can the interaction of popular consciousness of right with legal institutions be more fully and clearly ascertained.

The first question that confronts the investigator concerns the influence upon our system of the English common law, that complex body of principles and rules, contained, at our early colonial period, in the Year Books, Reports, and the standard law treatises of quasi-judicial authority. Statutory law-making had been but sparingly used up to this time in England, and the law of property and personal security, criminal law, and procedure, found their norms in a long series of judicial precedents. The transfer of this system to the colonies, its amalgamation with new forms there originated, its adaptation to novel conditions, constitutes a subject of rare interest.

The accepted legal theory of this transfer is well known. It is clearly stated by Story in Van Ness v. Packard, 2 Peters, 144: “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth-right; but they brought with them and adopted only that portion which was applicable to their condition.” This theory is universally adopted by our courts, and it has given them the important power of judging of the applicability of the principles of the common law to American conditions. According to this view, the common law was from the first looked upon by the colonists as a system of positive and subsidiary law, applying where not replaced by colonial enactments or by special custom suited to the new conditions.

While this legal theory has obtained acceptance as a satisfactory Edition: current; Page: [369] explanation of the jurisprudence of to-day, it is not complete enough to afford an adequate synthesis of colonial legal facts for the historian. It contains, of course, the great truth that men cannot all at once cut themselves loose from a system of thought or action under which they have lived; that, though they transfer themselves entirely to new conditions, their notions and institutions must necessarily be circumstanced and colored by their former experience. Thus, of course, the more simple, popular, general parts of the English common law were from the first of great influence on colonial legal relations. This is, however, very far from declaring the common law of England a subsidiary system in actual force from the beginning of colonization. On the contrary, we find from the very first, originality in legal conceptions, departing widely from the most settled theories of the common law, and even a total denial of the subsidiary character of English jurisprudence. The first problem to be determined is therefore this: What was the attitude of the earliest colonists towards the common law as a subsidiary system? To the solution of this question this thesis addresses itself.

The earliest settlers in many of the colonies made bodies of law, which, from every indication, they considered a complete statement of the needful legal regulations. Their civilization being primitive, a brief code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings, would be sufficient. Not only did these codes innovate upon, and depart from, the models of common law, but, in matters not fixed by such codes, there was in the earliest times no reference to that system. They were left to the discretion of the magistrates.

In many cases the colonists expressed an adhesion to the common law, but, when we investigate the actual administration of justice, we find that usually it was of a rude, popular, summary kind, in which the refined distinctions, the artificial developments of the older system have no place. A technical system can, of course, be administered only with the aid of trained lawyers. But these were generally not found in the Edition: current; Page: [370] colonies during the 17th century, and even far down into the 18th we shall find that the legal administration was in the hands of laymen in many of the provinces. Only as the lawyers grow more numerous and receive a better training, do we find a general reception and use of the more refined theories of the common law. It is but natural that, with increased training, the courts and practitioners should turn to the great reservoir of legal experience in their own language for guidance and information; the courts would be more ready to favor the theory of the adoption of the common law, as it increased their importance, virtually giving them legislative power. The foregoing statements are especially true of New England, where the subsidiary force of the common law was plainly denied; where a system of popular law (Volksrecht) grew up; and, where the law of God took the place of a secondary system.

The legal theory of the transfer has its established place in American jurisprudence; but, historically, it should be modified so as to bring out the fact that we had a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of the English common law. In this way only shall we understand, from the first, the very characteristic and far-reaching departures from older legal ideas which are found in the New World; while, at the same time, its full importance is assigned to the influence of English jurisprudence in moulding our legal thought. The theory of the courts is an incomplete, one-sided statement needing historical modification. When the courts come to analyze the nature of the law actually brought over by the colonists they find it a method of reasoning,1 “a system of legal logic, rather than a code of rules;” or the rule, “live honestly, hurt nobody, and render to every man his due.”2 Such a very indefinite conception of the matter is without value historically; on the basis of this indefinite notion there has been claimed for the courts an almost unlimited power, under the guise of selecting the applicable principles Edition: current; Page: [371] of the common law, to establish virtually new and unprecedented legal rules. On the other hand, a historical study will reveal a most interesting organic growth, and, after the records have been more fully published, no system will offer more of interest to inquiring students than that developed on American soil. The study of the documents reveals great diversities in the early systems of colonial laws. Then with the growth of national feeling there comes also a growth of unification of legal principles, for which the English common law affords the ideal or criterion. And, though during the decade immediately preceding Independence, the English common law was generally praised and apparently most readily received by the larger part of American courts, still the marks of the old popular law remain strong and most of the original features in American jurisprudence can be traced back to the earliest times.

The object of this essay is to present the attitude of the colonists during the 17th century, and in some cases during the 18th, towards the common law of England. The manner of treatment will be by colonies: the purpose is to discuss first the colonies of New England in which the departure from common law ideas is most clearly marked, followed by the Middle and Southern colonies, many of which adhered more closely to the Old World model.

Neither does the scope of this essay include, nor the extent of the hitherto published sources permit, a complete presentation of the varying systems of private law in use in the colonies. Very few of the colonial court records have been published; in some cases, as in Virginia after the Richmond fire of 1865, most of them are unhappily lost forever. A publication of characteristic records of this kind is a desideratum not only for legal history, but for the study of the general economic and social development. However, sufficient material is extant in accessible form to show the general attitude of the colonists and colonial courts towards the common law as a technical system.

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I.: NEW ENGLAND

Massachusetts

The ideas of the Massachusetts colonists on the matter of law appear very clearly from a resolve of the general court1 of the year 1636. The government is there entreated to make a draft of laws “agreeable to the word of God” to be the fundamental laws of the commonwealth. This draft is to be presented to the next general court. In the meantime, the magistrates are to proceed in the courts to determine all causes according to the laws then established (the early laws of the general court), and where there is no law “then as near the law of God as they can.” The council is also empowered to make orders for the general conduct of business which is not yet covered by any law, and herein to apply its best discretion according to the rule of God’s word. There is here absolutely no reference to the common law of England. As a subsidiary law the word of God is appealed to, as interpreted by the best discretion of the magistrates. This led to the administration of a rude equity, according to the idea of justice held by the magistrate, influenced by popular ideas and customs. With a homogeneous population holding the same general views on morals and polity, a true popular system of law could thus be produced, unrefined by juristic reasonings, untrammeled by technical precedents, satisfying, in general, the sense of right in the community. Should, however, alien elements intrude, they would find such a system exceedingly uncongenial and oppressive.

We find that in the early years of the colony the magistrates and persons in authority were intensely reluctant to have any written laws made, because by these their discretion would be restrained. The reason assigned by Winthrop2 for this reluctance was the desire to have laws grow up by custom, so as to have them adapted to the nature and disposition of the people, which could not be sufficiently known to the magistrates properly to legislate for them. A second Edition: current; Page: [373] reason was that the charter provided that the colonists should make no laws repugnant to the laws of England. This they held to refer to positive legislation. The growth of law by custom, though the product might be radically opposed to English principles, they believed no infringement of the charter. Notwithstanding these reasons of the magistrates, the general court insisted upon having a comprehensive body of laws made. The controversy had none of the acrimony of the similar struggle for written laws in Rome before the Twelve Tables; but we can note the same principles at work; the magistracy, in whose discretion the administration of the laws has so far been founded, are reluctant to give up a part of this power, and therefore resist a codification of law. The outcome of this agitation was the passage of the celebrated Body of Liberties,1 in 1641. To evade one of the objections noted by the magistrates, this code was not really enacted as law, but the general court did “with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws.” The laws had been prepared by Nathaniel Ward, a minister with some legal training. They had been revised by the general court and sent into every town for further consideration. Upon the suggestions thus gathered they were again revised and then established as above mentioned. A more careful process of legislation is perhaps nowhere recorded. The laws may therefore be looked upon as a full expression of the popular sense of what the legal relations in the colony should be.

Ward, in a letter to Governor Winthrop,2 December 22, 1639, questions the advisability of submitting the laws to the different towns for consideration by the freemen thereof, and fears that the spirit of the people might rise too high. They should not be denied their proper and lawful liberties, but he questions “whether it be of God to interest the inferior sort in that which should be reserved ‘inter optimates penes quos est sancire leges.’ ”

Turning now to the Body of Liberties itself, we find Edition: current; Page: [374] the doctrine stated in 1636 again announced, that no man’s life shall be taken away unless by virtue of some express law established by the general court, or, in case of the defect of the law in any particular case, by the word of God.1 The principle is thus stated in the Massachusetts fundamentals:2 “In all criminal offenses where the law hath prescribed no certain penalty, the judges have power to inflict penalties according to the rule of God’s word.”

The provisions of the Body of Liberties also show the theocratic nature of the Puritan colony. It contains, moreover, many provisions originated by the colonists in response to their special needs. The criminal law is founded on the code of Moses, though the breaking of the Sabbath and the striking of parents are not made capital offenses. In the laws of 1658, however, the latter offense, as well as rebellious conduct against parents is made capital.3 The law of inheritance is taken from the Scriptures.

Imprisonment for debt, except when property is concealed, is not in use. Any debt due in bill or specialty may be assigned, and the assignee may sue upon the same. Cases involving an amount not over forty shillings are to be heard by magistrates or a commission of three freemen without a jury. A suit is commenced by summons or attachment. Testimony may be taken in writing by any magistrate or authorized commissioner to be used in criminal or civil cases. If the party cast has any new evidence or matter to plead he can obtain a new trial or bill of review. Free tenure of lands is adopted and all feudal incidents are abolished. Conveyances are to be by deed in writing. The period of prescription for title by possession is fixed at five years. Civil marriage is instituted.

The code of Ward was not the only one prepared for Massachusetts. John Cotton also submitted to the general court a body of laws, founded throughout on the Scriptures, with references thereto.4 This code, though published in Edition: current; Page: [375] England and there reputed to be in force in the colony, was never enacted at all by the general court. The conception of law current among the Puritans is well illustrated by the remark of Cotton that he should not “call them laws because God alone has the power to make law, but conventions between men.” This theory of law as the command of God, the mediæval conception uncolored by the modern views of sovereignty, seems to have been firmly held by the Puritans of New, as of Old England.1 The same view in addition to the reasons cited above may have prompted the general court not to call the Body of Liberties laws, out to pass them in the form of recommendations.

Turning now to the practice of magistrates and courts in the actual conduct of cases we shall find the same principles universally acknowledged. Everywhere, the divine law, interpreted by the best discretion of the magistrates, is looked upon as the binding subsidiary law; while the common law is at most referred to for the sake of illustration.

In 1641, the court had under consideration the case of the rape of a small child. There was a great question as to what kind of sin it was, and the court “sought to know the mind of God by the help of all the elders of the country.” On the authority of Deuteronomy XVII, 12, it was held in another case that presumptuous sins were not capital unless committed in open contempt of authority; and, in connection with this, Winthrop remarks that the “only reason that saved their lives was that the sin was not capital by any express law of God, nor was it made capital by any law of our own.” In the same connection, Winthrop discusses the exaction of a confession from a delinquent in capital cases. It was decided that where one witness and strong presumption point at the offender, the judge might examine him strictly; but if there is only slight suspicion the judge is not to press him for answer.2 After the trial in the Hingham matter3 the Deputy Governor stated in a public speech: “The great questions that have troubled the country Edition: current; Page: [376] are about the authority of the magistrates and the liberty of the people. The covenant between you and us is that we shall judge you and your causes by the rules of God’s law and our own.”

On the trial of Mr. Hubbard1 the court told the prisoner that he was to be tried by the law of God, which the magistrates were to judge by in case of the defect of the express law. Hubbard complained that the law of God admitted of various interpretations, and after being fined and bound to his good behavior he asked to know what good behavior was. The jury in this case found him guilty of uttering diverse speeches “tending to sedition and contempt of said government and contrary to the law of God and the peace and welfare of the country.”2 The form of punishment was largely in the discretion of the magistrates.3 Although the English names of actions were used, the practice was exceedingly lax, and the action on the case was constantly used for the recovery of land; thus disregarding the fundamental distinction between real and personal property and real and personal actions in the English law.4 The distinctions between common law and admiralty procedure were totally disregarded.5

In the Hutchinson Papers6 there is preserved a very interesting account of a case before Symonds, a magistrate. To judge from his letters, Symonds was a careful student and great admirer of the English common law.7 The case under consideration, Giddings vs. Brown, brought up some interesting questions as to the nature of law and the power of the courts. A dwelling had been voted by a town to its minister; the plaintiff had resisted the collection of the tax that had been levied to pay for this dwelling, and his goods were accordingly distrained. Symonds, in giving Edition: current; Page: [377] judgment for the plaintiff, says that “the fundamental law which God and nature has given to the people cannot be infringed. The right of property is such a fundamental right. In this case the goods of one man were given to another without the former’s consent. This resolve of the town being against the fundamental law is therefore void, and the taking was not justifiable.” Symonds refers with respect to the English law and quotes Finch and Dalton. He uses it, however, merely for illustration, and says “let us not despise the rules of the learned in the laws of England who have every experience.” The precedents on which he relies are colonial and their binding force is recognized. The substance of the judgment is that property cannot be taken by public vote for private use. The opinion is interesting as an expression of natural law philosophy, and it is, perhaps, the earliest American instance where the power is claimed for the courts to control legislative action when opposed to fundamental law.1 The case, moreover, shows very clearly in what light the common law was regarded by the New England colonists; not at all binding per se, but in as far as expressive of the law of God to be used for purposes of illustration and guidance.

Popular courts of jurisdiction in petty cases, which had long fallen into disuse in England, were established in most of the colonies. In Massachusetts inferior courts consisting of five judges, one of whom was an assistant, and having jurisdiction in lesser civil and criminal cases, were early established.2 Petty civil cases in the towns were tried by courts of one judge, or commissions of three freemen.3 A system of appeals was instituted, ascending from the town court to the inferior or county court, thence to the assistants, thence to the general court. Appeal to England was not allowed and claims for it were always strenuously resisted.

The pleadings in these courts were very concise and informal, and there was little regard paid to forms of action.4 Edition: current; Page: [378] Up to 1647, the pleadings seem to have been oral. By a law of that date1 it was enacted that the declaration should be drawn up in writing and should be filed with the clerk of the court three days before the term.

Contrary to the English custom, a record of evidence given in the courts seems to have been kept from the earliest times. In 1650, it was enacted2 that on account of the inconvenience of taking verbal testimony in court, the clerk not being able to make a perfect record thereof and prevent all mistakes, the evidence should be presented in writing to the court, either attested before a magistrate or in court upon oath. This provision, thoroughly at variance with the common law, excited the adverse comment of professional lawyers.3

Coming now to the trial by jury, we find that this ancient and popular institution was in early use in Massachusetts, a jury having been empanelled a few months after Winthrop’s arrival.4 The system was, however, by no means unquestionably accepted, and seems to have had a very insecure tenure for a time. In 1642, a commission was appointed to consider whether to retain or dismiss juries in the trial of causes;5 and it appears that juries were for a time abolished, for, in 1652, we find the following resolve “the law about juries is repealed and juries are in force again.”6

The mode of trial exhibits many interesting peculiarities. The province of judge and jury is quite correctly defined in an act of 1642, where the finding of matters of fact by the jury, instructions in law by the court, and the decision of matters of equity by the latter is provided for.7 In 1657, the jury was permitted to present a special verdict.8 But it seems that for a time the magistrates acquired a very considerable power of controlling the jury. Hutchinson says: “The jury sometimes gave their verdict, that there were strong grounds of suspicion, but not sufficient for conviction. Edition: current; Page: [379] Upon such a verdict the court would give sentence for such offenses as the evidence at the trial might have disclosed.” He adds in a note the advice of Lieut. Gov. Stoughton to Governor Hinckly of Plymouth, given in 1681: “The testimony you mention against the prisoner I think is sufficient to convict him; but, in case your jury be not of that mind, if you hold yourself strictly obliged by the laws of England, no other verdict but ‘not guilty’ can be brought in; but, according to our practice in this jurisdiction, we should punish him with some grievous punishment according to the demerit of his crime, though not found capital.”1

In 1672, an attempt was made to limit the power of the magistrates in this respect.2 For the controlling authority of the magistrates there is offered as a substitute the archaic method of attainting the jury for giving a verdict contrary to the weight of evidence; and the law allowing the magistrates to refuse the verdict of the jury is repealed. This is a remarkable instance of the revival of an archaic method which had all but disappeared in England. The jury in such a case was to be tried by a new jury of twenty-four, and the court had no control over the verdict. It seems that many juries were attainted, because in 1684 it was enacted3 on account of the unreasonable trouble caused by numerous attaints, that the cause of attaint shall be given in writing; that if the verdict is confirmed, the person attainting shall be fined 34 pounds; and that the jury may also prosecute him for slander, with other additional penalties. The jury were also at liberty, when they were not clear in their conscience about any case, “in open court to advise with any man they should think fit, to resolve and direct them before they gave their verdict.”4

In the colonial system of Massachusetts we do find traces of the common law; the less technical parts of its terminology are in use, forms of contracts and deeds are modeled on Edition: current; Page: [380] English precedents, although for the latter acknowledgment and recording is essential to validity.1 But the authority of the common law as a subsidiary system is nowhere admitted, its principles are radically departed from, and its rules used only for purposes of illustration.

The magistrates administered a rude system of popular law and equity, on the basis of the Scriptures and their own ideas of right, generally to the satisfaction of the homogeneous Puritan communities; though there are some struggles recorded, such as that for written laws and for the control of the juries. Capt. Bredon writes to the Council of Colonies, speaking of the printed laws of Massachusetts: “What laws are not mentioned in this book are in the magistrates’ breasts to be understood.”2 The elements dissatisfied with this regime generally left for Rhode Island, the Connecticut river settlements, Maine or New Hampshire, where society was less autocratic; but still we find a number of protests recorded against the manner of administering the law by persons remaining in the colony.

The complaint that no one could have justice but members of the church3 is very common on the part of outsiders. In 1646, there was a very important controversy, in which a party of men led by Robert Child demanded the establishment of English law. In their remonstrances4 they say that they cannot discern a settled form of government according to the laws of England; nor do they perceive any laws so established as to give security of life, liberty, or estate. They object to discretionary judgments as opposed to the unbowed rule of law, and petition for the establishment of the wholesome laws of England, which are the result of long experience and are best agreeable to English tempers; that there should be a settled rule of adjudicature from which the magistrates cannot swerve. Those laws of England, they say, are now by some termed foreign, and the colony termed a free state.

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In the answer by the general court1 the petitioners are held up to ridicule for their own ignorance of what English laws they really wanted. It is then asserted that the laws of England are binding only on those who live in the English country, for neither do the laws of Parliament nor the King’s writ go any farther. “The laws of the colony,” they say in substance, “are not diametrically opposed to the laws of England, for then they must be contrary to the laws of God, on which the common law, so far as it is law, is also founded. Anything that is otherwise established is not law but an error, as it cannot be according to the intent of the law-makers to establish injustice.” This is the true Puritan idea of law as the command of God; the general court asserts that the common law, so far as it is law, must embody divine justice. For their part the Puritans prefer to go to the original source of law, the Scriptures.

In connection with this matter the general court also made a declaration which was evidently intended for the general public and the home government.2 They there assert that the government is framed according to the charter and the fundamental and common laws of England. They add in brackets, “taking the words of eternal righteousness and truth with them as the rule by which all kingdoms and jurisdictions must render account.” Then they make a comparison between the fundamental and common laws of England and the laws of the colony, taking Magna Charta as the chief embodiment of English common law; and they state that, as the positive laws of England are constantly being varied to answer different conditions, they should consider it right to change and vary their legislation according to circumstances. They confess an insufficient knowledge of the laws of England, and say, “If we had able lawyers amongst us we might have been more exact.” Their comparison of the laws shows the rudimentary character of their knowledge. Finding some discretion allowed English judges in criminal cases they take this as a precedent for Edition: current; Page: [382] the Massachusetts method of inflicting penalties according to the rule of God’s word. They conclude by instancing the extraordinary jurisdictions in England, the chancery, the court of requests, the admiralty and ecclesiastical courts, and say that experience shows that Englishmen may live comfortably and securely under some other laws than the common and statutory laws of England.

The methods of Massachusetts colonial justice are described by Letchford in his book, Plaine Dealing. He was a lawyer who had been employed in doing minor editorial work on the Body of Liberties. Owing to the prejudice against lawyers, general in the colonies but especially strong here, he was not permitted to practise his profession, and therefore was perhaps an unreasonably severe critic of the system under which he suffered. As his views are, however, corroborated by the statements of other witnesses, their truth so far as the proceedings of the courts are concerned may perhaps be accepted. He says among other things1 that the governor in charging the grand jury uses the heads of the ten commandments. That in jury trials matters of law and fact are not distinguished.2 The records of the courts are not kept in due form of law, in most cases the verdict only being entered. Hence the disposition to slight all former laws and precedents, “but go hammer out new upon the pretense that the word of God is sufficient to rule us.” He advises his brethren to “despise not learning nor the learned lawyers of either gown.”

In his narrative to the council3 Edward Randolph states that “the laws and ordinances of Massachusetts are no longer observed than they stand in their convenience; and in all cases, regarding more the quality and affections of the persons to their government than the nature of their offense.” He states that it was regarded as a breach of the privilege of the colony to urge the observation of the laws of England, and notes some of the provisions repugnant to the common law, such as obtaining prescriptive title to Edition: current; Page: [383] land by possession for five years, and the use of the word of God as a rule in criminal cases. In another report in 1678 he states that the laws of England are neither in the whole nor in any part of them valid or pleadable in the colonial courts until received by the General Assembly.1

The colony always resisted claims of a right of appeal to England; this was one of the most important points of controversy between the colonial court and the home government after 1660. In that year the colonists instructed Captain John Leveritt as their agent in England to resist any claims or assertions of appellate jurisdiction, because that would render government and authority in the colony ineffectual and bring the court into contempt with all sorts of people.

In 1667, the Privy Council made specific objection to the laws of Massachusetts repugnant to the laws of England. The Attorney General submitted a catalogue of such laws.2 In answer to these objections the general court made several amendments in 1681;3 the law concerning rebellious sons, concerning Quakers, and the law against keeping Christmas were left out; but no alteration was made in the law of marriage and Sunday legislation. In connection with this controversy the general court again asserted the independence of the colony from English laws.4 They speak of the laws of England as bounded within four seas and not reaching to America. The American subjects not being represented in Parliament should not be impeded in their trade by Parliament. Before this time legal proceedings had been carried on in the name of the colony. One of the results of the controversy was that the general court yielded in this respect, and process was hereafter issued in the name of the king.

After the charter had been annulled, there followed a strong and continued effort to introduce the common law. By the commission of Sir Edmund Andros, in 1688 the governor Edition: current; Page: [384] and council were appointed a court of record to try civil and criminal cases, their proceedings and judgment to be consonant and agreeable to the laws and statutes of England.1 The arbitrary government of Andros, however, did perhaps more to introduce a knowledge of the common law, than this provision, because against his despotic rule the colonists now began to assert rights protected by the English law, such as the right of Habeas Corpus. Thus when we hereafter find expressions of admiration for or adherence to the common law, such as are very common in the succeeding century and especially at the beginning of the Revolutionary War, they refer rather to the general principles of personal liberty than to the vast body of rules regulating the rights of contract and property and the ordinary proceedings in court.

By the charter of 1692, the appointment of judges and justices of the peace was given to the governor and the council. Their tenure was practically during good behavior;2 but though the direct popular nature of the courts was thus destroyed, it was a considerable time before trained jurists came to control the administration of law in Massachusetts.

Chief Justice Attwood visited Boston in 1700, and in his report to the Lords of Trade3 he states that he had “publicly exposed the argument of one of the Boston clergy, that they were not bound in conscience to obey the laws of England.” He complains of various insults offered him while sitting as judge in the admiralty court. He attended the session of the Superior court at Boston, and there observed that their “methods were abhorrent from the laws of England and all other nations.” He especially notes the ease with which new trials are obtained and the fact that evidence is offered in writing, which is a temptation to perjury, new proofs being admitted at the later trials. This criticism shows that there was no sudden breach in the development of Massachusetts law, and that at the beginning of the Edition: current; Page: [385] 18th century the old popular law was still largely administered in derogation of the more highly developed rules of the common law. It is stated that after the change in the appointment of judges, practice became very captious and sharp. In 1712, the first professional lawyer, Lynde, became Chief Justice, and after this we find that English books and authors are frequently cited.1 Yet Massachusetts jurisprudence exhibited for a long time thereafter the marks of its early informality. Jefferson says in a letter to Attorney General Rodney, September 25, 1810,2 speaking of Lincoln, of Massachusetts, as a possible successor to Cushing as Chief Justice: “He is thought not to be an able common lawyer, but there is not and never was an able one in the New England states. Their system is sui generis in which the common law is little attended to. Lincoln is one of the ablest in their system.” How strongly the old view of law which we have noticed maintained itself in Massachusetts, we see from John Adams’ statement in the Novanglus:3 “How then do we New Englanders derive our laws. I say not from Parliament, not from the common law, but from the law of nature and the compact made with the king in our charter. Our ancestors were entitled to the common law of England when they emigrated; that is to say, to as much of it as they pleased to adopt and no more. They were not bound or obliged to submit to it unless they chose.”

In Massachusetts, during the 17th century we find a continued, conscious, and determined departure from the lines of the common law. It is not accepted as a binding subsidiary system, the law of God there taking its place. Indeed, it colored and influenced the legal notions of the colonists, but they always resisted the assertion of its binding force. The absence of lawyers made the administration of a highly developed system impossible. We have a layman law, a popular, equitable system, which lacks the elements Edition: current; Page: [386] of rigor, of clear cut principles, of unswerving application, but which forms a basis on which a simple community could well adjust its legal relations.

Connecticut and New Haven

In Connecticut and New Haven we find a development similar to that of Massachusetts. The Connecticut code of 1642 was copied from that of Massachusetts.1 The fundamental order of New Haven2 provides for the popular election of the magistrates, and for the punishment of criminals “according to the mind of God revealed in his word.” The general court is also to proceed according to the Scriptures, the rule of all righteous laws and sentences. In the fundamental agreement3 all free men assent that the Scriptures hold forth a perfect rule for the direction and government of all men in all duties. The Scriptural laws of inheritance, dividing allotments, and all things of like nature are adopted, thus very clearly founding the entire system of civil and criminal law on the word of God. This principle is re-enacted in similar language in 1644.4

In Connecticut the trial by jury was put into practice from the first, the use of the grand jury coming in somewhat later.5 It was, however, provided that upon continued failure to agree, a majority of the jury could decide the issue, and in case of equal division, the magistrate had a casting vote.6 In New Haven the institution of jury trial was not at first adopted.7 It is stated that this was so settled upon some reasons urged by Mr. Eaton.

As already indicated, the system of popular courts was adopted in both colonies. In 1699, the practice of commissioning justices for stated periods was tried, but it was continued for only three years.8 The judges of these courts Edition: current; Page: [387] exercised a broad discretion. That Connecticut was independent of the home country in legal matters is noted by Quary in his report to the Lords of Trade in 1707.1 If possible, these colonies departed even further from the common law than Massachusetts in their system of popular courts, absence or radical modification of the jury trial, discretion of the magistrates, and in the case of New Haven, the clear and unequivocal assertion of the binding force of divine law as a common law in all temporal matters, as a guiding rule in civil and criminal jurisdictions.

New Hampshire

The settlers of New Hampshire and Vermont were in many cases malcontents who had left the Puritan colonies. They were not so homogeneous a society, and therefore the assertion of the binding force of the common law could be more successfully made. The commission of 1680 orders proceedings in the courts to be consonant to the laws and statutes of England, regard, however, being had to the condition of the colonists.2 The General Assembly, meeting at Portsmouth in March, 1679-80, passed a body of general laws in which they claimed the liberties belonging to free Englishmen. They, however, refused to admit the binding force of any code, imposition, law, or ordinance not made by the General Assembly and approved by the president and council. The code itself is very simple, but in place of biblical references English statutes are cited.3 As a matter of fact it may be questioned whether this apparent submission to English law was more than formal. The general court petitioned against appeals to England in 1680.4 The settlers were so impatient of control that all questions of law and fact were decided by juries. The judges had a term of one year only and none of the influence of the Edition: current; Page: [388] Massachusetts magistrates.1 Under this regime, the administration of the rules of the common law would of course be impossible. The early judges and chief justices were all business men, seamen, or farmers; only in 1726 did a man of liberal education, Judge Jaffray, a graduate of Harvard in 1702, appear on the bench.2 And it was only in 1754 that a lawyer, Theodore Atkinson, also a graduate of Harvard, became chief justice. Samuel Livermore, chief justice in 1782, though trained in the law, refused to be bound by precedents, holding, “that every tub should stand on its own bottom;” he looked upon the adjudications of English tribunals as only illustrations.3 It may be said that no real jurist, no man acknowledging a regular development of the law by precedents and finding an authoritative guidance in the adjudications of the common law judges, held judicial power in New Hampshire during the entire 18th century.

Rhode Island

This colony was consciously founded on a democratic basis.4 The charter is made the basis of government, by which legislative action is to be restricted. In order to escape the imputation of anarchy, and to preserve every man safe in his person and estate, the common law is to be taken as a model for legislation in as far as the nature and constitution of the colony will permit. The code itself shows a very archaic conception of law. In its classification it especially reminds us of the Anglo-Saxon dooms in the prominence it accords to crimes and torts. It classifies law under five general heads: (1) murthering fathers and mothers; (2) man slayers; (3) sexual immoralities; (4) menstealers; (5) liars, under which heading are comprised perjury, breach of covenant, slander, and other torts. On the other hand, however, it contains some provisions of an advanced Edition: current; Page: [389] nature. Murder and man-slaughter are distinguished on the principle of malice aforethought. Theft committed by a child or for hunger is declared to be only petty larceny. Promises and contracts, especially for large amounts, are to be drawn up in writing. The conveyance of land must also be made in this form. This provision by many years antedates the celebrated Statute of Frauds of English law. Imprisonment of debtors is forbidden, “none shall lie languishing for no man’s advantage.” Lands are made liable to execution. In general, the statement of the code is concise and clear; English statutes are frequently cited, but in spirit the code is thoroughly original though in parts archaic. That it was considered a sufficient statement of law is shown by the enactment that “In all other matters not forbidden by the code all men may walk as their conscience persuades them.” A modified form of jury trial is instituted by a later enactment.1 The province of judge and jury is there defined. As in Massachusetts, attaint is made the remedy for a false verdict.

Bellomont sent the laws of Rhode Island to the Council in 1699,2 when he gives it as his opinion that the world never saw such a parcel of fustian. He also says: “Their proceedings are very unmethodical, no wise agreeable to the course and practice of the courts of England, and many times very arbitrary and contrary to the laws of the place; as is affirmed by the attorneys at law that have sometimes practiced in their courts.” . . . “They give no directions to the jury nor sum up the evidences to them, pointing out the issue which they are to try.” Later, however, in 1708, Governor Cranston writes to the Lords of Trade: “The laws of England are approved of and pleaded to all intents and purposes, without it be in particular acts for the prudential affairs of the colony.”3

Up to the time of the Revolution, judges were elected annually from the people. The Newport court records show us the extent of the discretion of magistrates. In an action Edition: current; Page: [390] for debt the court, considering the defendant’s poverty, ordered him to work for the plaintiff at carpentry until the debt were extinguished. Meanwhile other creditors were forbidden to sue him. Even after a verdict of not guilty, the court often imposed costs or ordered the accused to leave the colony.1 The attitude of Rhode Island towards lawyers is shown by the fact that by an act of the general assembly in 1729 they were forbidden to be deputies, their presence being found to be of ill consequence.2

II.: THE MIDDLE COLONIES

New York

In this colony the common law received early recognition and an approach was made to complete and intelligent enforcement. The population of New York was exceedingly heterogeneous; the original Dutch settlers, the early English settlers of various character from the different colonies and the mother country. The close knit social relations found in Massachusetts and Connecticut were here absent, and popular law could not therefore be so readily developed. There was a demand for a system of common law by which the relations and interests of these various elements may be regulated. The colony being under royal authority almost from the beginning, its rulers soon accustomed it to the principles of the English common law. Thus when the growing feeling of unity and nationalism called for a unification and harmonizing of American law, New York state, which had most successfully adapted the common law to American conditions, became the leader in juristic development. Its judges, like Kent, became the authoritative expounders of the American form of the common law. But, on the other hand, many of the original American ideas in jurisprudence, such as the reform of the law of real property and the law of pleading, which we find in germ in the early history of the other colonies, were carried to completion and given Edition: current; Page: [391] their lasting form in the state of New York, whose jurists had profited from a longer training in a regular system of jurisprudence.

We must, however, by no means conclude that the common law was administered in New York from the very beginning of English occupation as a complete subsidiary system. The feeling that for a new colony a new body of laws is necessary led to the compilation of what is known as the Duke of York’s laws, which were promulgated at an informal assembly at Hampstead in 1665.1 The first New York legislature met in 1683, and, among other acts, passed bills regulating the judicial proceedings, and for preventing perjuries and frauds.2 Governor Nichols, before courts had been created, took upon himself the decision of controversies and pronounced judgment after a summary hearing.3 In writing to Clarendon, July 30, 1665, he says: “The very name of the Duke’s power has drawn well-affected men hither from other colonies, hearing that the new laws are not contrived so democratically as the rest.”4 At this time laws are confirmed, reviewed, and amended by the general assizes composed of the governor, the general council and the judges upon the bench. A year later, April 7, 1666, Nichols writes to Clarendon5 remitting a copy of the laws collected from the laws of the other colonies with such alterations as would tend to revive the memory of old England; he says that “the very name of Justice of the Peace is held an abomination, so strong a hold has Democracy taken in these parts.” He complains of the refractory disposition of the people, and describes his efforts to introduce English statutes and authority. It is apparent from this correspondence that it was considered necessary to restate the law in a codified form for the use of the colonists; and an informal transfer of the common law in its original “unwritten” character was evidently not considered sufficient or suitable to the circumstances by the men in authority.

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Governor Dongan in his report to the Committee on Trade,1 February 22, 1687, gives a list of the courts of justice established at that time: (1) a court of chancery composed of the governor and council, which is the supreme court of appeals; (2) the courts of oyer and terminer held yearly in each county; (3) the court of the mayor and aldermen in New York; (4) the courts of session (justices of the peace); (5) court commissioners for petty cases; (6) a court of adjudicature, a special court established to hear land cases. These courts had none of the popular elements which we have noted in the Puritan colonies. Governor Dongan also states that the laws in force were the laws of the Duke of York and the acts of the general assembly, not mentioning the common law in this connection. In a similar report, Governor Nichols2 states that “all causes are tried by juries, and that there are no laws contrary to the laws of England,” while he ascribes full law-making power to the court of assizes (1669). Governor Andros reports that, “He keeps good correspondence with his neighbors as to civil, legal and judicial proceedings.” Bellomont, in 1699, sending a copy of the printed laws to the council, asks for a careful perusal and criticism of them by some able lawyer in England; which would indicate the absence of trained jurists in the colony at that time.3 In a report on the methods of proceedings in court, William Smith writes to Bellomont in 1700:4 “The rules and methods we are governed by in all trials is the common law of England, and the several statutes declarative thereof according to the manner and methods of the courts at Westminster.” In the earlier days of the colony, confused notions of law and equity seem to have prevailed; and in a number of reported cases tried on Long Island after verdict of the jury there was an appeal to equity, most generally successful. No settled rules were here regarded, but a discretion similar to that of the New England magistrates was exercised.1 Edition: current; Page: [393] In one of these cases the judgment is said to be given according to law and good conscience.2

Immediately upon the occupation by the English, the jury came into use in New York. Jury trials are, however, at first, very informal, more after the manner of a simple arbitration, and verdicts are often given in the alternative.3

In the form of testamentary disposition the Roman Dutch law of the New Netherlands left abiding traces. The method of making wills by oral declaration before a notary, or by a written and sealed instrument deposited with that official, was used long after the first English occupation.4

We find that in these early days the functions of the court were not only judicial but administrative, much like those of the earliest itinerant judges in England. Thus the judges are directed to make inquiries into town training, the bearing of arms, the price of corn, wages, and escheats.5 As another reversion to older practice, we may note the concentration of various functions, judicial, administrative, and legislative, in the hands of the colonial council of the earliest time. A still closer analogy to mediæval English history in this respect we shall find in the case of Pennsylvania.

In the year 1700, a professional English lawyer, Attwood, became chief justice of New York. It was his avowed purpose to introduce the common law and practice of the English courts into the colony. He was, however, too assertative, and favored strong government too much, so that he in some cases perverted the law to his own uses, as when he declared that whatever was treason before 25 Edward III. was still treason at common law;6 or when he held that a grand jury was only an inquest of office and that eleven could indict.7 He complained in a letter to the Lords of Trade8 that “several here cannot well bear with the execution Edition: current; Page: [394] of the laws of England.” His methods soon led to his unpopularity and his final disgrace.

As in other colonies, lawyers were unpopular in the early days of New York. “The general cry of the people both in town and country was, ‘No lawyer in the Assembly!’ ”1 As we have seen, the early governors exercised what was called an equity jurisdiction, but no regular court of equity was established. In 1711, Governor Hunter addressed the Lords of Trade in this matter. He speaks of the necessity of giving equitable relief in many cases, and instances the case of a merchant, who inadvertently confessed judgment for 4,000 pounds, the real debt being 400 pounds, and who then languished in prison. He says that the House declared that the trust of the seal constitutes him the Chancellor, but having already too much business and being ignorant in law matters he asks the Lords of Trade for advice.2 They simply answer3 that he is authorized to establish, with the consent of the council, any court that may be necessary. A court of chancery was accordingly established, but in 1727 the assembly resolved that the creation of this court without its consent was illegal. Its fees were reduced and its jurisdiction languished for a time.4 Colden ascribes these resolves to the vindictive intrigues of the speaker, who had been defeated in a chancery suit.5

The complete doctrine of the binding force of the common law in New York was not declared before 1761. A most thoroughgoing statement is found in Governor Tryon’s report,6 where he declares that “the common law of England is the fundamental law of the province, and it is a received doctrine that all the statutes enacted before the province had a legislature are binding upon the colony;” also that in the court of chancery the English practice is followed. Some years before, in 1762, Chief Justice Pratt, in a memorial Edition: current; Page: [395] to the Lords of Trade, complains of the insufficient influence of the judiciary. He says that “All the colonies being vested with legislative power, their systems of laws are gradually varying from the common law. If the judgments of the supreme courts are only vague and desultory decisions of ignorant judges the mischief is augmented, and a more influential and better paid judiciary is called for.”

New Jersey

The two parts of New Jersey, East and West Jersey, had a different social complexion, and we may therefore look for divergent views on the subject of law. West Jersey was a pure Quaker commonwealth, where the influence of Penn was very strong; while in East Jersey conditions similar to those in New York prevailed. We find, however, in both parts of New Jersey a system of popular courts. In East Jersey1 the court system was established by the legislature in 1675. A monthly court for the trial of small causes was held in each town of the province by two or three persons chosen by the people. County courts were held twice yearly in each county; from these there was an appeal to the court of chancery. Proceedings in these courts were of the utmost simplicity. It was provided that any person might plead for himself and that no money was to be taken for pleading or advice.2 West Jersey had a similar system of courts, comprising justices of the peace, county courts, and a supreme court of appeals; the latter was instituted in 1693 and a final appeal from it to the general assembly was authorized in 1699. The term “court of chancery” is not used in West Jersey. The power of the jury was exaggerated, the three judges having no authority to control the verdict of the twelve men “in whom only the judgment resides.” In case the judges should refuse to pronounce judgment, any one of the twelve by consent of the rest may do so.3 Capital punishment was not fixed by the law. It was enacted4 that Edition: current; Page: [396] “All persons guilty of murder or treason shall be sentenced by the general assembly, as they in the wisdom of the Lord shall judge meet and expedient.” This would indicate a view of law similar to that held by the colonists of Massachusetts and New Haven.

The early laws of East Jersey were founded largely on scriptural authority.1 Thus the law of trespasses and injuries by cattle, of injury by fire, of negligence, and the criminal law, are in agreement with the laws of the Exodus. In 1675 imprisonment for debt was prohibited except in cases of fraud. In 1698 the privileges of the English common law were assured to every one. In Delaware no professionally trained judge held office before the Revolution.2

Pennsylvania

The colony of Pennsylvania was fitted out with the most complete system of colonial codes. There was (1) the frame of government, which was unchangeable without the consent of the governor and six-sevenths of the freemen in council and assembly, all freemen at that time being members of the assembly; (2) there were the laws agreed upon in England in 1682, which had the same provisions as to alteration; (3) the Great Law or body of laws enacted at Chester in 1682, containing sixty-one chapters and called the written laws to distinguish them from the foregoing two, called printed laws; (4) the act of settlement passed in Philadelphia in 1683; (5) the laws made at an assembly in Philadelphia in 1683, consisting of 80 chapters; (6) the frame of government of 1683; (7) the frame of government of 1696; and, finally, (8) the laws of October, 1701.3 These laws are of great interest to the student of legislation, containing the opinions of enlightened and thoughtful statesmen embodied in enactments and gradually modified by practical experience in colonial affairs. They show clearly how very necessary a complete and full Edition: current; Page: [397] statement and codification of the law that should prevail was held by the founders of Pennsylvania; that they did not rely on an informal transfer of the applicable parts of the common law; but that they, with great painstaking, stated in entirely original form the provisions considered necessary for colonial society.

These laws contain many new and far-reaching reforms. Thus, in the laws agreed upon in England in 1682 there are the following provisions concerning procedure in the courts. Persons may appear in their own way and according to their own manner and personally plead their cause; the complaint shall be filed in court fourteen days before trial; a copy of the complaint is to be delivered to the defendant at his dwelling house; the complaint must be attested by the oath of the plaintiff;1 all pleadings and processes and reports in court shall be short and in English and in ordinary and plain character, that they may be understood and justice speedily administered.2 This provision antedates by almost two centuries the celebrated New York code-pleading reform, and this clause very clearly and simply states the object this reform sought to bring about. The period of prescription for the acquisition of title to land is fixed at seven years.3 The lands and goods of felons shall be liable to make satisfaction to the party wronged.4 This is a return to an older idea of law, which at that time did not prevail in the English law; for a felony only the king enforced a forfeiture, the injured party could not obtain any satisfaction. In the laws made at Philadelphia in 1683, there is contained a chapter enumerating the fundamental provisions which are to be changed only by the consent of six-sevenths of the council and assembly; this early attempt to separate the fundamental from the secondary provisions of the law is of great interest to students of American constitutional development. The subjects referred to as fundamental are the following: Liberty of conscience, naturalization, election of representatives, taxes, open courts and freedom of pleading, giving evidence, return of inquest and judgment by inquest (jury), Edition: current; Page: [398] bail and liberty of person, registry, marriage, speedy justice, the use of the English language in laws and proceedings.

The proceedings of the earliest courts were quite informal. We have some accounts of trials, before the coming of Penn, under the Duke’s laws which provided for a jury of six or seven. The major part of this jury could give in a verdict. An informal statement of the matter at issue was made, and though the names of actions were used, there was no sharp discrimination and not even the distinctions between civil and criminal cases were clearly drawn. The administration of justice was rather founded upon the ideas of the magistrates than on any rules of positive law.1 Lord Petersboro, during his visit to Pennsylvania, was astonished at the simplicity and fewness of laws, the absence of lawyers and the informality of judicial proceedings.2

County courts were instituted in the territory later called Pennsylvania in 1673. The procedure was informal, juries of six or seven were in use.3 Under the new regime, the jurisdiction of courts was defined by the laws of 1683, Chap. 70, and in 1684, courts were given jurisdiction in equity as well as in law.4 The same court even reversed in equity its own judgment in law.5 Against this method the assembly complained.6 In a number of the courts, the names of English actions were used, but case was often substituted for ejectment.7 The practice was very much like modern code practice; the complaint was filed fourteen days before trial; ten days before, the defendant had to be summoned, arrested or his goods attached. In court, he might answer in writing; the pleadings were to be in the English language; any defense, legal or equitable, might be interposed.8 Thus from Edition: current; Page: [399] the first legal and equitable relief was administered by the same courts in Pennsylvania. By the laws of 1683, Chap. 71, an informal body of arbitrators, called peace-makers, was instituted. The appellate court was called the provincial court, but the council also had appellate jurisdiction; and in connection with this it had a jurisdiction, like that of the permanent council of the mediæval English kings and of the Star Chamber, to punish maladministration and malfeasance on the part of powerful officials.1 As the English Parliament of the time of Edward III, so the Pennsylvania assembly petitioned against this extraordinary jurisdiction. In 1701, it requested that “no person shall be liable to answer any complaint whatsoever relating to property before the governor or his council or in any other place but the ordinary courts of justice.”2

Pennsylvania at this early period effected the union of equity and law in jurisdiction and in practice, a method that has always characterized the jurisprudence of that state. The voluminous legislation in the case of Pennsylvania may be due to the fact that the charter granted by Charles II, declared that the laws of property and of crimes in the province should be the same as they were in the kingdom of England, until altered by the proprietor. The legislation of Pennsylvania covering virtually the whole field of property law may be called the first complete codification of law made in America.

Penn himself was anxious to secure the services of trained lawyers. In a letter to Logan3 he says that he has granted Roger Mompesson the commission of chief justice and he advises the people to lay hold of such an opportunity as no government in America ever had of procuring the services of an English lawyer. Mompesson, however, did not remain in Pennsylvania long; he went to New York where he became chief justice, being appointed by Cornbury. The first lawyer who became chief justice of Pennsylvania was Guest, in 1701.4

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The early law of Pennsylvania is very original and contains the germs of many developments that specially characterize American jurisprudence. There was, in this colony, from the first a desire for settled legal relations, which finds expression in a discussion in the colonial council in 1689. When it was there proposed that in doubtful cases the magistrates might apply the colonial laws or the common law at their discretion, this was held too uncertain, and the sole validity of the laws of Penn was upheld.1 On the question of substituting affirmation for oath, numerous English law precedents were, however, cited by the assembly to the governor.2 The law of manslaughter is left to be determined by the law of England, in 1705.3

Maryland

By the charter of Maryland, full powers of government were given to the proprietor. He might establish laws, and was not required to submit them for the approval of the Crown. He could establish courts, and process ran in his own name, and he was empowered to grant titles of nobility. He stood in the position of a count palatine.4 In 1635, the first legislative assembly met, passing a body of laws which was rejected by the proprietor. In 1637, the proprietor and the assembly mutually rejected laws proposed by each other. This caused a serious dead-lock, and it seemed impossible to create a code of laws such as had been found necessary in all the other colonies. The colonists, accordingly, in the absence of a code of positive laws claimed that they were governed by the common law of England, so far as applicable to their situation. The proprietor opposed this claim on account of the interference with his rights, and the controversy thus arising was not finally settled until 1732.5

The rule of judicature was first fixed by the laws of 1642, in which it was ordered that civil causes should be tried according to the law and usage of the province, having regard Edition: current; Page: [401] to the former precedents. In defect of such law, usage, or precedent, the case shall be determined according to equity and good conscience “not neglecting (so far as the judge shall be informed thereof and shall find no inconvenience in the application to this province) the rules by which right and justice useth and ought to be determined in England.” The common law of England seems here rather to be looked upon as a system useful for illustration and guidance than a subsidiary law; equity and good conscience was considered to afford proper rules to fill the omissions of the positive law.1

The rules for trial were in many respects unusual. The judge is allowed to administer an oath to either party in a civil cause, and on the refusal of the party to testify may proceed as if the matter asked had been confessed.2 The power of the judge in controlling the jury is very great. If he thinks a verdict unjust he may return the jury or charge another. If he find the jury evidently partial or willful, he may charge another jury, and if their verdict is contrary the first jurors may be fined. Among these provisions we also find one of the earliest exemption laws. Tobacco, necessary clothing, bedding, utensils, and tools are exempt from execution.3

The fettered legislative powers of this colony, the unlimited discretion allowed the governor and his council in administration, by the charter, and the somewhat heterogeneous character of the population, led the colonists later more strenuously to insist upon the observance of the principles of the common law as a subsidiary system. Therefore we find that in 1662 an act was passed declaring that when the laws of the province are silent, justice is to be administered according to the laws and statutes of England; and that “all courts shall judge of the right pleading and the inconsistency of the said laws with the good of the province according to the best of their judgment.”4 This act was in force for only a short time, and the rule of judicature was therefore not long established Edition: current; Page: [402] by express law. It is, however, the first definite recognition in America of the power of the courts to apply the common law of England to colonial conditions, and to reject provisions deemed unsuitable. The rule stated in the act of 1662 was also contained in the commission of judges, and thus the proprietor seems to have sanctioned this adoption of the common law; the later controversy turned more on the question of the adoption of the statute law of England.

In 1674, an attempt was made to determine by law what English criminal statutes were in force in Maryland. The lower house insisted on the adoption of the whole English statute law, saving all laws of the province not repugnant to the laws of England.1 The council argued with the lower house, asking them to consider the dangerous consequences of an adoption of the entire English criminal law. They referred to the volume of the English laws and to the difficulty of ascertaining what statutes are at present in force. On account of this uncertainty the lower house is requested to designate certain statutes which are to be re-enacted and thus be a guide to the judges.

In 1678, we find that it is ordered to purchase Keble’s Abridgment of the English Statutes and Dalton’s Justice for the use of the various county courts.2

The struggle between the proprietor and the people concerning English laws revived in 1722. The people claimed that the lord proprietor had already allowed them the benefit of the common law as their right according to the common opinions of the best lawyers, and that the controversy now was only concerning the applicability of the English statutes.3 Lord Baltimore resisted the introduction of the English statutes “in a lump,” as he expressed it, as doing away with his veto power; while the lower house insisted upon a complete adoption. By the act of 1732 the controversy was settled by the following somewhat equivocal statement that “when the acts and usages of the province are silent the rule of adjudicature is to be according to the laws and statutes and Edition: current; Page: [403] reasonable customs of England, as used and practiced within the province.”1 However, the power of the courts to apply any English law, customary or statutory, which they found suitable to American conditions was no longer disputed.

The opposition to lawyers common in the colonies we also find in Maryland.2 The great influence which the theory of the adoption of the common law gave to the courts was recognized in a resolve in 1684, which stated “that it left too much to discretion and is an open gap to corruption.”3 At this time, however, the lord proprietor insisted that if the English laws were to be used the governor and chief justice must be allowed to decide when they ought to be applied. Only on this basis would he consent to a re-enactment of the judicature act.4 The attitude of the people toward the proprietor is further illustrated by the fact that an appeal to the king in legal proceedings was asked for.5

Although, even in the earlier practice of Maryland, the terms of English law were used, its principles were often entirely neglected, and matters settled according to a rough equity.6 Thus, in a case of homicide, the jury brought in a verdict finding accidental killing and no negligence; the court, however, fined the person who had handled the weapon that caused the accident.7 In another criminal proceeding the accused is arraigned and pleads guilty before the grand jury passes on the indictment and finds it billa vera.8

III.: THE SOUTHERN COLONIES

Virginia

The prevailing belief that codes of law are necessary for new colonies is evidenced by Crashaw’s sermon preached before the London Company in February, 1609-10. Crashaw Edition: current; Page: [404] said: “Be well advised in making laws, but being made let them be obeyed, and let none stand for scare-crows, for that is the way at last to make all to be condemned.”1

The instruction for the government of the colonies2 fixed general rules for the descent of lands, criminal law, jury trials, and placed civil jurisdiction in the hands of the governor and council. The first code intended for the colonies, printed at London in 1612, and entitled Laws Divine, Moral and Martial,3 was exceedingly severe, and Sir Thomas Smith, the governor, was later much abused for having introduced it into Virginia. On account of the character of the population a strict rule was, however, absolutely necessary. In 1620, an attempt was made by the London company to compile a more adequate and humane code. Sir Edwin Sandys proposed the appointment of several committees for the following purposes: (1) compiling the laws of England suitable for the plantation; (2) collecting the orders and constitutions already in existence; (3) revising the laws passed by the Assembly. These committees were finally to meet and harmonize the entire body of laws which was then to be submitted to the king. Among the commissioners was John Selden.4 These committees, however, did not report and Governor Yeardley asked for authority to make a collection of suitable laws.5

The first legislative assembly of Virginia met in 1619. It passed a number of laws and petitioned the council that they would “not take it in ill part if these laws passed current and be of force until we know their further pleasure out of England, for otherwise this people would in a short time grow too insolent.” There is here so far no claim of the immediate validity of English laws in the colony, and all parties concerned seem to think the formation of a new code adapted to the circumstances of the settlers necessary. In 1631, the oath of commissioner of monthly courts was fixed as follows: “You shall do equal right to poor and to rich after your Edition: current; Page: [405] cunning, wit and power and after the laws and customs of this colony, and as near as may be after the laws of the realm of England.”1 There was not in Virginia, as we have noted in many of the other colonies, a system of courts whose magistrates were elected by the people. The county courts were presided over by eight or ten gentlemen receiving their commission from the governor. Notwithstanding the source of their appointment, these men, not being educated in law, would perhaps not be governed by considerations much different from those obtaining in the popular courts of Massachusetts and Connecticut. The large number of the members of the court gives it the character of a popular tribunal, recalling the Doomsmen of the Anglo-Saxon courts, who declared the custom and fixed the mode of trial. Appeal lay from these courts to the general court, composed of governor and council. Their jurisdiction was developed by custom and the forms of proceedings were quite irregular. They also exercised a general chancery jurisdiction.

By the statutes of 1661-1662, procedure in the courts was regulated. At the time of the Restoration, Virginia seems to have been especially anxious to show herself loyal to England, and these enactments breathe a deep respect for the common law. In the preamble it is stated that the legislature has endeavored in all things to adhere to these “excellent and refined laws of England to which we profess to acknowledge all due obedience and reverence.” As a reason for enacting laws at all they assign the vast volume of the English law from which courts would be unable to collect the necessary principles without the aid of such codification.2 The former laws are repealed and a new code is enacted. As some former laws restrained the trial by jury quite contrary to the laws of England, the law of juries is restated with special carefulness and precision. It is interesting to note in this connection that the colonists express their regret that they are unable to comply with the requirement of the English jury system that the jurors shall come from the immediate neighborhood of the place where the fact was committed; but they state that they Edition: current; Page: [406] desire to approach as near as possible to compliance by enacting that six men of the ablest and nearest of the inhabitants of the county shall be on the jury.1 This reminds us of Sir John Fortescue’s contention that France could not have the jury system, because there no neighborhood could produce twelve intelligent and substantial jurors. In this code the period of prescription for land is limited to five years.2

The system of itinerant judges existed in Virginia for some time, but was abolished in 1662 on account of the great charge to the country.3 The nature of the procedure in the county courts is seen from the provision that the bill or complaint must be filed the day before court, that the answer and judgment as well as evidence in the case is also to be filed, that the judgment is to be endorsed on the complaint if for the plaintiff, on the answer if for the defendant.4

The administration of law in Virginia was in the hands of the country gentlemen who looked down upon the legal profession, and in no state do we find more hostile legislation concerning lawyers than in the Old Dominion. In 1645 an act was passed expelling the mercenary attorneys.5 In November, 1647, it is enacted that none shall plead for recompense. That in case the courts shall perceive that “either party by his weakness shall be like to lose his cause, they themselves may open the cause or may appoint some fit man out of the people to plead the cause, but shall not allow any other attorneys.” In 1656 the hostile acts were repealed, but only a year later there was again proposed in the house “a regulation or total ejection of lawyers,” whereupon the decision was “by the first vote an ejection.”6 A new act was therefore passed7 forbidding any person to plead or give advice in any case for reward. The governor and council rather opposed this enactment, but promised to consent to the proposition “so far as it shall be agreeable to Magna Charta.” A committee was appointed, who upon considering Magna Charta, reported that they did not discover any prohibition contained therein.8 In 1728, in a paper on the state of the colonies in America, Edition: current; Page: [407] Keith gives a very unfavorable account of the administration of law in Virginia. In order to unify and settle the law he favors the appointment of circuit judges from England.1 Governor Gooch, in his answer to Keith’s criticisms, says that the practice of courts is exactly suited to the circumstances of the respective governments and as near as possibly can be conformable to the laws and customs of England, and that the judges are of competent knowledge in the laws, though not all of them profound lawyers.2

The Carolinas

In the case of the Carolina colonies the enforcement of a very complete code, the celebrated Fundamental Constitutions, was attempted by the proprietors. These Constitutions were reactionary in the extreme, and attempted to introduce an intricate feudal system into the new colony. The redeeming feature of the act lies in its very liberal provisions concerning religious affairs, giving any body of believers the right to worship according to the dictates of their conscience. It is very doubtful if aside from these provisions concerning religion the Fundamental Constitutions had any permanent influence in molding the jurisprudence of the Carolinas. They were first promulgated in 1668, and were reissued in modified forms repeatedly until their final abandonment in 1698. The purpose of this code was to “establish the interest of the proprietor with equality and without confusion that the erecting of a numerous democracy may be avoided.”3

We have no satisfactory information about the actual administration of justice in the early days of Carolina. The different colonies in the Carolinas had originally, however, very little in common, being settled by various elements. And it is highly probable that each of these colonies developed at first its own customary and popular methods of dealing with legal controversies.4 The Carolinas were among the earliest Edition: current; Page: [408] colonies to adopt the English common law as a rule of adjudicature. This was done in South Carolina by the act of December, 1712.1

Before, in 1692, the assembly in an address to Governor Ludwell had complained because “the Palatine Court assumed to put in force such English laws as they deemed adapted to the province; but the assembly conceived that either such laws were valid of their own force, or could only be made so by an act of assembly.”2 The proprietors assumed that all laws of England applied to the colonies, but in 1712 they receded from their position by approving the act adopting the common law and such statutes of England as had been selected by Chief Justice Trott as applicable to the condition of the colony.3 The act of 1712 puts in force all English statutes declaring the rights and liberties of subjects, as well as the common law, except where it may be found inconsistent with the customs and laws of the province. The law concerning military tenures and ecclesiastical matters is especially excepted. The courts are here, as in Maryland, given the power to apply the principles of the common law. In North Carolina the same object was accomplished by the act of 1715, entitled “An act for the better observing of the queen’s peace,” which declares the colony to be “a member of the crown of England,” and provides that the common law shall be in force in this government “so far as shall be compatible with our way of living and trade.” The practice of issuing writs is specially excepted. Certain enumerated statutes, such as the statute confirming the privileges of the people and security of trade, the statute of limitations, and the statute of frauds, are also adopted by this act.

From the scanty records of the early days of the colonies we can glean that the proceedings were often very informal. The discretion of the magistrates in inflicting punishment was very wide, as is apparent from the cases cited by Hawks in his history.4

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A court of chancery was established as early as 1697, in which the English chancery practice was in the main adhered to.1 At a very early date trained lawyers were among the judges in these colonies; in the year 1729 we find that on the question of the effect of a general pardon an English case