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.

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.

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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.

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.

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.

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

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

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8.: THE HISTORY OF THE CANON LAW IN ENGLAND1

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