v.l, c.J, THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY VOLUME ONE SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY BY VARIOUS AUTHORS COMPILED AND EDITED BY A COMMITTEE OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS IN THREE VOLUMES VOLUME I BOSTON UTTLE, BEOWN, AND COMPANY 1907 Copyright, 1907, BT LITTLE, BROWN, AND COMPANY. All rights reserved Published August, 1907 COLONIAL PRESS EUctrotyfitd and Printed by C. H. Sitnondt & Co. Botton, U.S.A. PREFACE DE QUINCEY, in one of his Letters to a Young Man whose Education has been Neglected, quotes Dr. John- son's pronouncement upon French literature (and it was the kindest thing he had to say about it), that "he valued it chiefly for this reason: that it had a book upon every subject." Even so much as this could hardly be claimed for our own literature in English. To this day it has no com- plete book upon the history of its own law. The attempts of Blackstone, Crabb, and Reeves are of a past epoch. The progress of a century of historical thought has fixed a great gulf between us and them. To-day, this branch of our lit- erature dates virtually from Mr. Justice Holmes' " The Common Law " and Sir Frederick Pollock's and Professor Maitland's "History" the first writers in this field (as Hallam says of Montaigne among French classical writers) " whom a gentleman is ashamed not to have read." The present state of our knowledge of the history of our law may be likened to an unfinished building, whose founda- tions have been laid and whose frame and beams have been erected. The roof, the walls, the floors, the furnishings and decoration, are yet lacking. Its scope and internal plan, its architecture and its relation of parts, can be already plainly seen. But it cannot yet be inhabited; and many kinds of workmen must labor longer upon it. These foundations are the volumes of Sir Frederick Pollock and Professor Mait- land, resting upon the still deeper Germanic caissons of Professor Heinrich Brunner and his co-workers. This frame and these cross-beams are, on the one hand, the few larger monographs, from Mr. Justice Holmes' " The Common Law " and Professor Bigelow's " Anglo-Norman Procedure," v 6501G9 EAW vi PREFACE of thirty years ago, to the Selden Society's source-books and Mr. Holdsworth's recent first volume; and, on the other hand, the more* numerous essays and chapters of the authors represented in these present volumes. But, until now, most of these lesser structural members of the framework have lain scattered about upon the ground, here and there, ready for use, and yet not fully serviceable because not easily accessible and not assembled in their relations to each other and to the whole. It is the purpose of these volumes to assemble and make accessible these valuable parts of the structure of our legal history. The season is ripe for this work. It is probable that an- other generation will pass before the final elaboration of the structure can be attempted. Until the Year Books are en- tirely re-edited and printed, most of the work will be of a limited and topical scope. It is now time for our profession to take account of past progress, to put together and to possess in mastery that which has been so far achieved ; fol- lowing the dictate of Goethe : " My maxim in the study of Nature is this : Hold fast what is certain, and keep a watch on what is uncertain." The times demand, too, of our profession, more cultivation of the taste for history. A counter-balance against the hasty pressure for reform, and against an over-absorption in the narrow experience of the present, is to be sought in the solid influence of history. A true conservatism, and an intelligent progress, must alike be based on historical knowledge, a knowledge not remaining in the possession of a few scholars, but penetrating abroad into the general consciousness of the profession. For student and for practitioner alike, we believe that these historical essays will be a welcome enlargement of the horizon of our law. " It is the historians who are my true men," says the genial Montaigne, " for they are pleasant and easy; wherein immediately man in general (the knowledge of whom I hunt after) appears more lively and entire than anywhere besides." And his ingenuous reason for best liking Plutarch and Seneca is a reason which (we confess) has seemed to us likely to commend these present composite vol- PREFACE vii umes to that class of our expected readers who are already immersed in practice; for those ancient writers, he says, " have this great convenience (suited to my humour) that the knowledge I there seek is discoursed in several pieces, not requiring any great trouble of reading long, of which I am incapable ; 'tis no great undertaking to take one of them in hand, and I give over to them at pleasure, for they have no necessary chain or dependence upon one another." To the profession, then, and to all its members, whether in school or out of it, we commend this Collection, in the hope that it may bring into general knowledge the main part of the historical achievements which are not yet contained in independent volumes, and that it may help to stimulate a deeper and wider knowledge of the present meaning of our law as seen in the light of its past. Sooner or later the number of those who themselves take an efficient part in historical legal research will have to be, and will be, much increased. But that day will the sooner come to pass if meantime the number of those can be increased who will read and appreciate what has already been done, and will thus give support and encouragement for such research. Science expands with culture, and, in Matthew Arnold's phrase, " Culture is 'reading, but reading with a purpose to guide it, and with system. He does a good work who does anything to help this ; indeed, it is the one essential service now to be rendered to education." In giving account of our labors in the preparation of this Collection, it is our first duty, on behalf of our profession, to thank those authors and publishers who have so freely allowed the reprinting of these essays and chapters. From the leaders of the historical vanguard (so to speak) of whom Professor Brunner of Berlin, the lamented Professor Maitland of Cambridge, Sir F. Pollock of Oxford, Mr. Jus- tice Holmes of Washington, Professor Ames of Harvard, and Professor Bigelow of Boston, are representative this consent has been especially welcome. We must, secondly, express our regret that the limitations of scope and space have forced the omission of many essays viii PREFACE which merited reprinting. All matters of public law, for example including the history of constitutional law and of municipal corporations have been left aside ; perhaps a later series may be made to include them. Furthermore, in several essays and monographs, the narrow range of details, the lengthy marshalling of the historical evidence, or the impossibility of separating usable parts, has made them ineligible; though a reference-list of such authorities has been appended in the proper places. A main motive for the Collection was to rescue, from scattered series of periodicals or general treatises on present law, and to assemble in one convenient form, those essays or chapters which are of permanent value and would otherwise fail of the constant and wide perusal which they deserve. Hence the plan did not propose to include any extracts from works devoted entirely and professedly to the history of any part of the law, such acknowledged masterpieces, for example, as Sir F. Pollock's and Professor Maitland's His- tory of English .Law, or Mr. Digby's History of the Law of Real Property, or Mr. Justice Holmes' The Common Law. But, in several instances, exceptions to this plan were allowed. The impelling reason was the Committee's desire to give a certain symmetry to some . topics and periods which would otherwise have been imperfectly represented. The present volumes may therefore, it is hoped, serve to illumine in out- line the legal history of the last six centuries, and thus to supplement the great treatise of .Sir F. Pollock and Profes- sor Maitland, at least provisionally and until by the com- pletion of the larger undertakings of Mr. Holdsworth and others the same period shall have been more adequately cov- ered. A more detailed explanation of the Committee's prepara- tory labors, and of the motives leading to its appointment, will be found in the Proceedings of the Association of Amer- ican Law Schools for 1905 and 1906, published with the Proceedings of the American Bar Association for those years. All of the material here collected has been already pub- lished elsewhere as essays, articles, or chapters, with the PREFACE ix exception of Mr. Zane's studies of the Bench and Bar of England, which are now printed for the first time. The bibliographical footnotes for each of the authors were in some instances furnished by the authors themselves, pursuant to the Committee's request. In other instances, owing to the authors' modest ignoring of that request, the Committee used such notes as could be found in biograph- ical dictionaries ; and in still others, no information was obtainable. The brief extra reference-lists, prefixed to the topical divisions of this Collection, include only those articles (the result of the Committee's preliminary gleanings) which it was impossible to include in the reprint. These lists are found chiefly under the special topics of volumes II and III. Following the prevailing American custom, no attempt has been made to designate the authors, in the title-heading of these essays, by their academic degrees or similar marks of distinction ; but in a footnote is placed a record of such dis- tinctions, so far as information was obtainable. With these explanations, and with apologies for such errors as must inevitably have accompanied the work of a Committee cooperating from three separate headquarters, and corresponding with authors and publishers widely sundered by sea and land, the volumes are committed to the good-will of the profession. THE COMMITTEE OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS. ERNST FREUND, University of Chicago. WM. E. MIKELL, University of Pennsylvania. JOHN H. WIGMORE, Chairman. Northwestern University. June SO, 1907. "Sin* hittoria, caecam ette jurisprudentiam." FRAXCISCUS BALDUINUS. 44 1 have no expectation that any man will read history aright who thinks that what was done in a remote age, by men whose names have resounded far, has any deeper sense than what he is doing to-day. There is no age, or state of society, or mode of action, in history to which there is not somewhat corresponding in his life. . . . History must be this or it is nothing: Every law which the State enacts indicates a fact in human nature; that is all. We must in ourselves see the neces- sary reason for every fact, see how it could and must be. We assume that we under like- influence should be alike affected, and should achieve the like; and we aim to master intellectually the steps, and reach the same height or the same degradation that our fellow, our proxy, has done. All inquiry into antiquity is the desire to do away this wild, savage, and preposterous There or Then, and introduce in its place the Here and Now." RALPH WALDO EMERSON, Essay on History. " For the true historian, two attitudes (as I opine) are requisite. On the one hand, he must find interest and pleasure in the truth of individ- ual facts, must value details for their own sake. If he possesses genuinely this avidity for the pursuit of truth in its manifold variety, for the bare facts of human life, then he will surely attain satisfaction in his research, regardless of their larger interpretations and tendencies, just as he takes pleasure in the flowers, without attempting to solve the problems of their botanical classification. Yet, on the other hand, the historian must cultivate breadth of view, the faculty of generalization. He is not to proceed a priori, like the metaphysician. But, while he ob- serves and describes the unfolding of the details, he is to let their gen- eral trend be made manifest, their inter-actions, their developments, their epochs. One after another, the events appear before him; the series unites; it culminates in an Epoch. That distinction between dates which we term an Epoch lies in this, that out of the struggle of the two great opposing forces the predetermined causation of the past, and the spontaneous variability of the present new conditions, and thus new periods, gradually emerge. And out of a series of Epochs is built up the whole. . . . Thus, while each separate event of history has its intrinsic value, is worth investigation for its own sake, yet in view of the di- rection which modern research is taking (and must indeed insist on tak- ing, if we desire accurate knowledge) it is fair to say that we run some danger of ignoring the larger aspects, that broad outlook for which every one has a legitimate yearning. Thus to unravel the full trend and meaning of events, while remaining steadfast to the strict principles of scientific research, will indeed be always an unattainable ideal. Yet a true scholarship recognizes that the two processes may and must go hand in hand. Facts without their philosophy are but barren and frigid chronicles. And philosophies of history not built on a rigid basis of fact are but delusive fancies." LEOPOLD vox RANKE, World History, Part IX, Sect II, The Epochs of Modern History, Introduction. SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY VOLUME I GENERAL SURVEYS CONTENTS BOOK I: GENERAL SURVEYS PART I. BEFORE THE NORMAN CONQUEST " 1. A Prologue to a History of English Law . . 7 FREDERIC WILLIAM MAITLAND St. The Development of Teutonic Law s . . . 34 EDWARD JENKS 8. English Law before the Norman Conquest . . 88 SIR FREDERICK POLLOCK, BART. PART II. FROM THE NORMAN CONQUEST TO THE EIGHTEENTH CENTURY 4. The Centralization of Norman Justice under Henry II . . . . . .111 ALICE STOPFORD (MRS. JOHN RICHARD) GREEN 5. Edward I, the English Justinian . . . 139 EDWARD JENKS 6. English Law and the Renaissance . . .168 FREDERIC WILLIAM MAITLAND 7. Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant . . 208 THOMAS EDWARD SCRUTTON * 8. The History of the Canon Law in England . . 248 WILLIAM STUBBS 9. The Development of the Law Merchant . . 289 WILLIAM SEARLE HOLDSWORTH 10. A Comparison of the History of Legal Develop- ment at Rome and in England . . . 332 JAMES BRYCE 2 CONTENTS PART UI. THE AMERICAN COLONIAL PERIOD 11. English Common Law in the Early American Colonies . . . PAUL SAMUEL REINSCH 367 12. The Extension of English Statutes to the Plan- tations . ST. GEORGE LEAKIN SIOUSSAT 416 13. The Influence of Colonial Conditions, as Illus- trated in the Connecticut Intestacy Law . . 431 CHARLES McLEAN ANDREWS PART IV. EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY 14. Anticipations under the Commonwealth of Changes in the Law . . R. ROBINSON 467 15. Bentham's Influence in the Reforms of the Nine- teenth Century . JOHN FORREST DILLON 492 16. Progress in the Administration of Justice during the Victorian Period . . . . .516 CHARLES SYNGE CHRISTOPHER, BARON BOWEN 17. Thfc Development of Jurisprudence during the Nineteenth Century ..... 558 JOSEPH HENRY BEALE, JR. v 18. The Extension of Roman and English Law throughout the World . JAMES BRYCE 574 PART V. BENCH AND BAR FROM NORMAN TIMES TO NINETEENTH CENTURY 19. The Five Ages of the Bench and Bar of Eng- land . . . JOHN MAXCY ZANE 625 20. A Century of English Judicature . . . . 730 VAN VECHTEN VEEDER 21. An American Law Student of a Hundred Years Ago ... . . . JAMES KENT 837 A TABLE OF BRITISH REGNAL YEARS Sovereigns Commencement of Reign William I October 14, 1066 William II September 26, 1087 Henry I August 5, 1100 Stephen December 26, 1135 Henry II December 19, 1154 Richard I September 23, 1189 John -May 27, 1199 Henry III October 28, 1216 Edward I November 20, 1272 Edward II July 8-, 1307 Edward III January 25, 1326 Richard II June 22, 1377 Henry IV September 30, 1399. Henry V March 21, 1413 Henry VI September 1, 1422 Edward IV March 4, 1461 Edward V April 9, 1483 Richard III .June 26, 1483 Henry VII August 22, 1485 Henry VIII April 22, 1509 Edward VI January 28, 1547 Mary July 6, 1553 Elizabeth November 17, 1558 James I March 24, 1603 Charles I March 27, 1625" The Commonwealth January 30, 1649 Charles II ' May 29, 1660 James II February 6, 1685 William and Mary February 13, 1689 Anne March 8, 1702 George I August 1, 1714 George II June 11, 1727 George III October 25, 1760 George IV , January 29, 1820 JVilliam IV June 26, 1830 Victoria June 20, 1837 Edward VII January 22, 1901 1 Although Charles II. did not ascend the throne until 29th May, 1660, his regnal years were computed from the death of Charles I., January 30, 1649, so that the year of his restoration is styled the twelfth year of his reign. PART I. BEFORE THE NORMAN CONQUEST 1. A Prologue to a History of English Law. FREDERIC WILLIAM MAITLAND. 2. The Development of Teutonic Law. EDWARD JENKS. 3. English Law Before the Norman Conquest. SIR FREDERICK POLLOCK. SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY 1. A PROLOGUE TO A HISTORY OF ENGLISH LAW BY FREDERIC WILLIAM MAITLAND 2 is the unity of all history that any one who endeav- ours 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 *This essay was first published in the Law Quarterly Review, 1898, vol. XIV, pp. 13-33; and afterwards was prefixed to the second edition of the "History of English Law," 1899 (Cambridge, University Press; Boston, Little, Brown & Co.). '1850-1906; M. A., Trinity College (Cambridge); Barrister of Lin- coln's Inn; Reader of English Law at Cambridge, 1888; Downing Pro- fessor of the Laws of England at Cambridge, 1888-1906; Bencher of Lincoln's Inn ; LL. D., D. C. L., Oxford, Glasgow, Cracow. Other Publications: Gloucester Pleas, 1884; Justice and Police, 1885; Bracton's Note-Book, 1887; History of English Law before the Time of Edward I (with Sir F. Pollock), 1895; Domesday Book and Beyond, 1897; Township and Borough, 1898; Canon Law in England, 1898; Introduction to Gierke's Political Theories of the Middle Ages, 1900; English Law and the Renaissance, 1901 ; prefaces to several volumes of the Selden Society's publications; editor of the Year-Books of Edward II (Selden Society, 1904-6). The miscellaneous essays and minor books of Professor Maitland are now being edited for publication in collected form by the University Press, Cambridge (Eng.). '^Ethelb. 1. *Ihering, Vorgeschichte der Indoeuropaer ; see especially the editor's preface. 8 7. BEFORE THE NOKMAX CONQUEST 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 Ul- pian'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 non- conformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be; but as yet it was, if the phrase be tolerable, unlawful law, for these societies had an illegal, if not a crim- 1 The following summary has been compiled by the aid of Karlowa, Romische Reehtsgeschichte, 1885 Kriiger, Geschichte der Quellen des romischen Rechts, 1888 Conrat, Geschichte der Quellen des romischen Rechts im friiheren Mittelalter, 1889 Maassen, Geschichte der Quellen des canonischen Rechts, 1870 Loning, Geschichte des deutschen Kir- chenrechts, 1878 Sohm, Kirchenrecht, 1892 Hinschius, System des katholischen Kirchenrechts, 1869 ff. A. Tardif, Histoire des sources du droit canonique, 1887 Brunner, Deutsche Reehtsgeschichte, 1887 Schroder, Lehrhuch der deutschen Reehtsgeschichte, ed. 2, 1894 Esmein, Cours d'histoire du droit francais, ed. 2, 1895 Viollet, His- toire du droit civil frnnsais, 1893. * Kriiger, op. cit. 198; Karlowa, op. cit. i. 736. Krtiger, op. cit. 215; Karlowa, op. cit i. 741. * Kriiger, op. cit. 226; Karlowa, op. cit. i. 752. 1. M AIT LAND: A PROLOGUE inal 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 con- gregation 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 com- munities 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 christo- logical heresy. Ulpian's priesthood 4 was not priestly enough. 5 The decline was rapid. Long before the year 300 juris- prudence, the one science of the Romans, was stricken with sterility ; 6 it was sharing the fate of art. 7 Its eyes were 1 Loning, op. cit. i. 195 if. ; Sohm, op. cit. 75. Loning asserts that in the intervals between the outbursts of persecution the Christian com- munities were legally recognized as collegia tenuiorum, capable of hold- ing property. Sohm denies this. 2 Excommunication gradually assumes its boycotting traits. The clergy were prohibited, while as yet the laity were not, from holding converse with the offender. Loning, op. cit. i. 264; Hinschius, op. cit. iv. 704. 8 Sohm, op. cit. 378 ff . ; Loning, op. cit. i. 423 ff. 4 Dig. 1. 1. 1. 5 The moot question (Kriiger, op. cit. 203; Karlowa, op. cit. i. 739) whether the Tertullian who is the apologist of Christian sectaries is the Tertullian from whose works a few extracts appear in the Digest may serve as a mnemonic link between two ages. Kriiger, op. cit. 260; Karlowa, op. cit. i. 932. 7 Gregorovius, History of Rome (transl. Hamilton), i. 85. 10 /. BEFORE THE NORMAN CONQUEST 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 Aries (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 empire 7 go wlmt- 'Krilger, op. cit. 277ff. ; Karlowa, op. cit. i. 941 ff. It is thought tlie original edition of the Gregorianus was made about A. D. 295, it of the Hermogenianus between 314 and 324. But their dates are uncertain. For their remains see Corpus luris Anteiustiniani. ! B . nmner ' P- cit - * 32 - 39 - ' Ibid. 38. Loning, op. cit. i. 44. T?!x g ' P- cit L 97 ~ 98 ' " reckons 68 statutes from fifty-seven years Hefele Cpnciliengeschichte, i. 201. For the presence of the British bishops, see Haddan and Stubbs, Councils, i. 7. 'Sohrn, op. cit. 443: "Das okumenische Koncil, die Reichssynode . . . bedeutet em geistliches Parlament des Kaisertums." 1. MAITLAND: A PROLOGUE 11 ever 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 legis- lator than the emperor. 1 In 380 Theodosius himself com- manded 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 Con- stantine 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 tur- moil 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 1 Sohm, op. cit. 418. If a precise date may be fixed in a very gradual process, we may perhaps see the first exercise of legislative power in the decretal (A. D. 385) of Pope Siricius. * Cod. Theod. 16. 1. 2. 3 Loning, op. cit. i. 262 ff.; Hinschius, op. cit. iv. 788 ff. 4 Loning, op. cit. i. 293; Karlowa, op. cit. i. 966. This depends on the genuineness of Constit. Sirmond. 1. 6 Loning, op. cit. i. 305; Hinschius, op. cit. iv. 794. 6 Loning, op. cit. i. 64-94. 7 Kriiger, op. cit. 285 ff . ; Karlowa, op. cit. i. 944. 12 /. BEFORE THE NORMAN CONQUEST tale; but we remember how rapidly the empire was being torn in shreds. Alrea'dy Britain was abandoned (407). We may doubt whether the statute-book of Theodosius ever reached our shores until it had been edited by Jacques Godcfroi. 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 1 The Breviary of Alaric is a different matter. * Bury, History of the Later Roman Empire, i. 142: "And thus wd may say that it was the loss or abandonment of Britain in 407 that led to the further loss of Spain and Africa." * Zeumer, Leges Visigothorum Antiquiores, 1894; Brunner, op. cit. i. 320; Schroder, op. cit 230. 1. M AIT LAND: A PROLOGUE 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 seea specially near kinship between Spanish and Icelandic law. 1 In legal history the sixth century is the century of Jus- tinian. 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, Franciciw 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 unique 4 ) there is 1 Ficker, Untersuchungen zur Erbenfolge, 1891-5; Picker, Ueber nahere Verwandtschaft zwischen gothisch-spanischem und norwegisch- islandischem Recht (Mittheilungen des Instituts fiir osterreichische Geschichtsforschung, 1888, ii. 456 if.). These attempts to reconstruct the genealogy of the various Germanic systems are very interesting, if hazardous. 2 For a map of Europe at the time of Justinian's legislation see Hodgkin, Italy and her Invaders, vol. iv. p. 1. 3 Brunner, op. cit. i. 292 ff. ; Schroder, op. cit. 226 ff.; Esmein, op. cit. 102 ff. ; Dahn, Die Konige der Germanen, vii. (2) 50 ff.; Hessels and Kern, Lex Salica, The ten texts, 1880. 4 However, there are some curious relics of heathenry in the Lex Fris'ionum: Brunner, op. cit. i. 342. 14 /. BEFORE THE NORMAN CONQUEST 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 philo- 1 logical science of our own day. Like the other Germanic folk-laws, it consists largely of a tariff of offences and atone- ments; 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 1 Greg. Turon. ii. 22 (ed. Omont, p. 60) : " Mitis depone colla, Sickm- ber; adora quod incendisti, incende quod adorasti." * Brunner, op. cit. i. 303 ff.; Schroder, op. cit. 229; Esraein, op. cit 107. Edited by Sohm in Monumenta Gennanica. Brunner, op. cit. k 332 ff.; Schroder, op. cit 234; Esmein, op. cit. 108. Edited by v. Salis in M. G. 1. MAITLAND: A PROLOGUE 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 Romano, Burgimdionum and the Lex Romana Visigothorum. The former 3 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 constitu- tions 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 (jaius 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 perma- nent 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 prin- 1 Brunner, op. cit. i. 50-1. 2 Ibid. 64-7. 8 Kriiger, op. cit. 317; Brunner, op. cit. i. 354; Schroder, op. cit. 234. Edited by v. Salis in M. G. 4 Kriiger, op. cit. 309 ; Brunner, op. cit. i. 358. Edited by Hanel, 1849. 5 Karlowa, op. cit. i. 976. 8 See above, p. 17. 16 /. BEFORE THE NORMAN CONQUEST cipal, 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 patri- cian 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 labour- ing upon the foundations of the Corpus luris Canonici. He called himself Dionysius Exiguus. He was an expert chro- nologist and constructed the Dionysian cycle. He was col- lecting 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 Siri- cius onwards (384-498). 8 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 constitu- 1 The epitomes will be found in HanePs edition, Lex Romana Visipothorum, 1849. 1 Brunner, op. cit i. 365; Karlowa, op. cit. i. 947 ff. Edited by Bluhme in M. G. Maassen, op. cit. i. 422 ff.; Tardif, op. cit. 110. Printed in Migne, Patrologia, vol. 67. 4 Haddan and Stubbs, Councils, iii. 1 19. See, however, the remarks of Mr. C. H. Turner, Eng. Hist. Rev. ix. 727. Maassen, op. cit. i. 441. . 1. MAITLAND: A PROLOGUE 17 tions to come from him, it was finished. Valuable as the code of imperial statutes might be, valuable as might be the mod- ernized 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 antiqua- rian 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 vic- torious (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 1 Kriiger, op. cit. 319. 1 Conrat, op. cit. i. 32. 8 Kriiger, op. cit. 354; Karlowa, op. cit. i. 938; Hodgkin, Italy and her Invaders, vi. 319. 18 /. BEFORE THE NORMAN CONQUEST down upon an exhausted and depopulated land. Those four- teen 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 destruc- tion 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 suc- cessors, 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 Graeco-Roman jurisprudence, with the Ecloga of Leo the Isaurian and the. Basilica of Leo the Wise, the West, if we except some districts of southern Italy, 2 has no concern. Two halves of the world were drift- ing 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 Vigil- ius 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 Au- gustin's day," about the year 600, ^Ethelbert of Kent set in writing the dooms of his folk " in Roman fashion."' 6 Not 1 Gregorovius, History of Rome (transl. Hamilton), ii. 153 if.; Oman, Dark Ages, 237, 245. For Byzantine law in southern Italy, see Conrat, op. cit. i. 49. Hodgkin, Italy and her Invaders, iv. 571 ff.i "The Sorrows of Vigilius." Conrat, op. cit. i. 8. Liebermann, Gesetie der Angelsachsen, p. 3. The first instalment of Dr. Liebermann's great work comes to our hands as these pages go through the press. Bede, Hist. Eccl. lib. 2, c. 5 (ed. Plummer, i. 90): 1. MAITLAND: A PROLOGUE 19 improbably he had heard of Justinian's exploits ; but the dooms, though already they are protecting with heavy bot 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 Ger- manic 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 un- alterable. Law has been the old ; new law has been a con- tradiction in terms. And now about certain matters there must be new law. What is more, " the example of the Ro- mans " shows that new law can be made by the issue of com- mands. 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 Hlothaer and Eadric, and some others made by Wihtraed ; 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 Ger- man usages. A little later the Swabians have their Lex Alamannorum,* and the Bavarians their Lex Baiuwariorum. 5 " iuxta exempla Romanorum." Bede himself (Opera, ed. Giles, vol. vi. p. 321) had read of Justinian's Codex; but what he says of it seems to prove that he had never seen it: Conrat, op. cit. i. 99. 1 Brunner, op. cit. i. 283. So native princes in India have imitated the Indian Penal Code within their states. * Whether we have Ine's code or only an Alfredian recension of it is a difficult question, lately discussed by Turk, Legal Code of Alfred (Halle, 1893), p. 42. 8 Brunner, op. cit. i. 368 ; Schroder, op. cit. 236. Edited by Bluhme in M.G. 4 Brunner, op. cit. i. 308; Schroder, op. cit. 238. Edited by Lehmann in M. G. There are fragments of a Pactus Alamannorum from circ. 600. The Lex is supposed to come from 717-9. 8 Brunner, op. cit. i. 313; Schroder, op. cit. 239. Edited by Merkel in M. G. This is now ascribed to the years 739-48. 20 /. BEFORE THE NORMAN CONQUEST It is only in the Karolingian age that written law appears among the northern and eastern folks of Germany, the Fri- sians, the Saxons, the Angli and Warni of Thuringia, the Franks of Hamaland. 1 To a much later time must we regret- fully 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. 8 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), JEthelbert (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 prudent es. As the Frankish realm expanded, there expanded with it a wonderful " system of personal laws." 6 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 1 Brunner, op. cit i. 340 flF.; Schroder, op. cit. 240 ff. Edited by v. Richthofen and Sohm in M. G. K. Maurer, Ueberblick iiber die Geschichte der nordgermanischen Rechtsquellen in v. Holtzendorff, Encyklopadie. 1 Alfred, Introduction, 49, 9 (Liebermann, Gesetze, p. 46). Brunner, op. cit i. 370; Schroder, op. cit. 235. Brunner, op. cit i. 259; Schroder, op. cit 225; Esmein, op. cit 57. 1. MAITLAND: A PROLOGUE 21 has said that often five men would be walking or sitting to- gether and each of them would own a different law. 1 We are now taught that this principle is not primitively Ger- manic. 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 intrud- ing 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 Ro- mani were suffered to settle their own disputes by their own rules, but Lombard law prevailed between Roman and Lom- bard. However, when Charles the Great vanquished Desi- derius 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 1 Agobardi Opera, Migne, Patrol, vol. 104, col. 116: "Nam plerumque contingit ut simul eant -aut sedeant quinque homines et nullus eorum communem legem cum altero habeat." * Stubbs, Constit. Hist. i. 216. See, however, Dahn, Konige der Germanen, vii. (3), p. 1 ff. 22 /. BEFORE THE NORMAN CONQUEST Salic or Ripuarian law, besides the Lombards. 1 In the fu- ture the renovatio imperil 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 " con- flict 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 mak- ing 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 re- garded Alaric's Lex as its chief authority. In Italy Jus- tinian'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 tradi- tional, customary law which paid little heed to written texts. It was, we are told, ein romisches 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 1 Brunner, op. cit. i. 260. * Ibid. 261 ff. 1 Brunner, op. cit. i. 269; Loning, op. cit ii. 284. * Brunner, op. cit i. 255. 1. MAITLAND: A PROLOGUE 23 were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern convey- ancing. The Anglo-Saxon " land-book " is of Italian ori- gin. 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 Prankish, 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).* 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. Wan- drille, 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 1 B runner, Zur Rechtsgeschichte der romischen und germanischen Urkunde, i. 187. 1 Brunner, D. R. G. i. 401 ; Schroder, op. cit. 254. Edited in M. G. by Zeumer; also by E. de Roziere, Recueil general des formules. 8 The comparison has occurred to M. Esmein, op. cit. 56. * Brunner, op cit. i. 374; Schroder, op. cit. 247; Esmein, op. cit. 116. Edited in M. G.'by Boretius and Krause; previously by Pertz. 8 Brunner, op. cit. i. 382; Schroder, op. cit. 251; Esmein, op. cit. 117. 24 / BEFORE THE NORMAN CONQUEST that much of the Karolingian legislation had failed to pro- duce a permanent effect. Those fratricidal wars were begin- ning. 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 ecclesi- astical 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 cele- brated 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 attrib- uted to that St. Isidore of Seville (ob. 636), whose Origines 2 served as an encyclopaedia 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 pro- fessing 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 1 Maassen, op. cit i. 667 ff.; Tardif, op. cit. 117. Printed in Migne, Patrol, vol. 84. * For the Roman law of the Origines, see Conrat, op. cit. i. 150. At first or second hand this work was used by the author of our Legei Henrici.. That the learned Isidore knew nothing of Justinian's books seems to be proved, and this shows that they were not current in Spain. 1. M AIT LAND: A PROLOGUE 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 super- human 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 chore- piscopi, 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 eptscopus 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 capit- ularies, which Ansegis had published, three other books con- taining 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 mani- festations 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 declar- ing, 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 whe 5 *! 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. Sacer- dotalism 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 1 The Decretales Pseudo-Isidorianae were edited by Hinschius in 1863. See also Tardif, op. cit. 133 ff.; Conrat, op. cit. i. 299; Brunner, op. cit. i. 384. 26 /. BEFORE THE NORMAN CONQUEST and Beckct has a long Frankish prologue. 1 Some conces- sions 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 Rorrian 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 espe- cially famous: Regino, abbot of Priim (906-915) ; 2 Burch- ard, bishop of Worms (1012-1023) ; 8 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 Con- quest 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 1 Hinschius, op. cit. iv. 849 ff. 1 Tardif, op. cit. 162. Printed in Migne, Patrol, vol. 132; also edited by Wasserschleben, 1&40. Ibid. 164. Printed in Migne, Patrol, vol. 140. Ibid. 170. Printed in Migne, Patrol. voL 161. 1. MAITLAND: A PROLOGUE 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 " l 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 inter- vening, 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. 8 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 Eng- lish 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 great- ness 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 1 We borrow ftodalitt classique from M. Flach: Les origines de 1'ancienne France, ii. 551. * Esmein, op. cit. 487-8; Viollet, op. cit. 152. Schroder, op. cit. 624: M Vom 10. bis 12. Jahrhundert ruhte die Gesetzgebung fast ganz . . . Es war die Zeit der Alleinherrschaft des Gewohnheitsrechte." * Oman, The Dark Ages, 511. 28 /. BEFORE THE NORMAN CONQUEST Alfred, and then we have laws from almost every king: from Edward, /Ethelstan, Edmund, Edgar, /Ethelred, 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 Con- fessor, whom a perverse, though explicable, tradition hon- oured 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. How- beit, 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 exag- gerate 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 uni- form law: it seems to invite general legislation. Also we 1 As to the close likeness between the English dooms and the Frankish capitularies, see Stubbs, Const. Hist. i. 223. We might easily suppose direct imitation, were it not that much of the Karolingian system was in ruins before Alfred began his work. * The Usatici Barchinonensis Patriae (printed by Giraud, Histoire du droit francais, ii. 465 ff.) are ascribed to Raymond Berengar I and to the year 1068 or thereabouts. But how large a part of them really comes from him is a disputable question. See Conrat, op. cit. i. 467; Picker, Mittheilungen des Instituts fur bsterreichische Geschichtsfor- schung, 1888, ii. p. 236. 1. MAITLAND: A PROLOGUE 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 say- ing 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 yEthelred's laws are apt to be- come mere sermons preached to a disobedient folk. How- ever, 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 JEthelred 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 legis- lation 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. Be- sides 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. 1 Stubbs, Const. Hist. i. 263: "There are few if any records of coun- cils distinctly ecclesiastical held during the tenth century in England." 2 There seem to be traces of the Prankish forgeries in the Worcester book described by Miss Bateson, E. H. R. x. 712 ff. English ecclesiastics were borrowing, and it is unlikely that they escaped contamination. 30 /. BEFORE THE NORMAN CONQUEST Then at Pavia, in the first half of the eleventh century, a law-school had arisen. In it men were endeavouring to sys- tematize by gloss and comment the ancient Lombard statutes of Rothari and his successors. The heads of the school were often employed as royal justices (indices 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 ex- pressed 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 Ger- manic 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 cham- pions of continuity all thai- 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 1 Boretius, Preface to edition of Liber legis Langobardorum, in M. G.; Brunner, op. cit. i. 387 IF.; Picker, Forschungen zur Reichs- u. Rechtsgeschichte Italiens, iii. 44 if., 139 ff.; Conrat, op. cit. i. 393 ff. _*It is well summed up for English readers by Rashdall, Universities of Europe, i. 89 ff. The chief advocate of a maximum of knowledge has been Dr. Hermann Fitting in Juristische Schriften des friiheren Mittelalters, 1876, Die Anfange der Rechtsschule zu Bologna, 1888, and elsewhere. He has recently edited a Summa Codicis (1894) and some Quaestiones de iuris subtilitatibus, both of which he ascribes to Irnerius. See also Pescatore, Die Glossen des Irnerius, 1888; Mommsen, Preface to two-volume edition of the Digest; Flach, Etudes critiques sur 1'his- taire du droit remain, 1890; Besta, L'Opera d'Irnerio, 1896; Ficker, op. cit. vol. iii, and Conrat, op. cit passim. 1. MAITLAND: A PROLOGUE 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 in- volved some discussion of legal terms. Definitions of lex and ius and so forth were learnt by heart ; little catechisms were compiled ; * but of anything that we should dare to call an education in Roman law there are few, if any, indis- putable signs before the school of Bologna appears in the second half of the eleventh century. As to the Digest, dur- ing 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 manu- scripts are said to derive from two copies, one now lost t 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 ^ee E. J. Tardif, Extraits et abr6ge"s juridiques des Etymologies d'Isidore de Seville, 1896. 'Conrat, op. cit. i. 65. M. G.^Leges, ii. 40; Conrat, op. cit. i. 62. 4 Picker, Forschungen, iii. 126, iv. 99; Conrat, op. cit. 67. Apparently the most industrious research has failed to prove that between 603 and 1076 any one cited the Digest. The bare fact that Justinian had issued such a book seems to have vanished from memory. * Conrat, op. cit. i. 69. B In dated documents Irnerius (his name seems to have really been Warnerius, Guarnerius) appears in 1113 and disappears in 1125. The University of Bologna kept 1888 as its octocentenary. 32 /. BEFORE THE NORMAN CONQUEST 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 emu- lated 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 conti- nuity 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 rcconstitution de V unite 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 1 Esmein, pp. cit. 347: " Une science nouvelle naquit, independante et lalque, la science de la societ6 civile, telle que 1'avaient dgagee les Remains, et qui pouvait passer pour le chef-d'oeuvre de la sagesse humaine ... II en resulta qu'a c&t du theologien se pla?a le legiste qui avail, comme lui, ses principes et ses textes, et qui lui dispute la direction des esprite avides de savoir." 1. MAITLAND: A PROLOGUE 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. . THE DEVELOPMENT OF TEUTONIC LAW 1 BY EDWARD JENKS 2 THE epoch in which the states of Western Europe are now living, has a history and a unity of its own, and is pecul- iarly 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 jof 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 Caesars, 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 'This passage is extracted from "Law and Politics in the Middle Ages," 1898, cc. I, II, pp. 6-55, and Appendix, pp. 321-326 (New York: Henry Holt & Co.). 'Principal and Director of Legal Studies of the Law Society of London. B. A., LL. B. King's College, Cambridge; M. A. Oxford and Cambridge; D. C. L. Oxford; Lecturer at Pembroke and Jesus Col- leges, Cambridge, 1888-1889; Dean of the Faculty of Law, Melbourne, 19-1892; Professor of Law in University College, Liverpool, 1892- 96; Reader in English Law, and Lecturer at Balliol College, Oxford, 1896-1903. Other Publications: Constitutional Experiments of the Common- 91; The Doctrine of Consideration in English Law, 1893; The Government of Victoria, Australia, 1893; History of the Austra- 5ian Colonies, 1896; Outline of English Local Government, 1895; , T Od f n ^ nd Law ' 1899; A Short History of Politics, 1902; Edward I, 1902; Parliamentary England, 1903. 84 0. JENKS: TEUTONIC LAW 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 extrava- gant 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 causarwm 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 " defini- tion," 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 Agree- ment ; 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 " (faction), "fastening" (gefcestnode), or "securing" 36 /. BEFORE THE NORMAN CONQUEST (getrymcdc) 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 Widukind 2 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 Teu- tonic 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 con- quering 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 1 Sohmid, Oetetze der Angelsachsen, ed 2. ^Ethelbirt, p. 2, Inc. p. 20. * Widukind, Annalet (Mon. Germ., SS. fo. iii. p. 440). 2. JENKS: TEUTONIC LAW 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 dis- covery of differences is needed to stimulate thought and produce coherence. Resistance and attack are alike provoca- tive 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 fre- quently omit all mention of rules which are really funda- mental. 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 38 /. BEFORE THE NORMAN CONQUEST beyond those bounds which have hitherto been deemed inex- orable. The criminal and the reformer are alike law-break- ers. 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 belong- ings 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 Em- pire, the principle was not recognized at all. The provin- cials 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 Theo- dosian Code and other monuments. The invaders had no thought of depriving them of this privilege. They did in- deed, in some cases, publish special codes for their Roman subjects ; and so we get a Lex Romano, Wmgothorum, a Lex Romano, Burgundionum and (possibly) a Lex Romana Curi- ensis. 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 2. JENKS: TEUTONIC LAW 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 Sallca 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 terras, 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 Volkerwanderung, 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 tne 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 prin- ciple of the personality of laws. The oldest part of the Lex Ribuaria (Tit. 31) contains the following conclusive pas- sage : " This also we determine, that a Frank, a Burgun- dian, 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 1 Lex Romano Burgundionum, Titf I. (3), IV. (3)^V. (2), XIX. (2), etc. *Lex Salica, Tit. XLI. (1). * Fustel de Coulanges, L'Invas'wn Germanique, pp. 340 and 543. 4 Ibid., Bk. II. capp. iv.-x. " Fustel de Coulanges, L'Invasion Germanique, pp. 340 and 543. (Nouvelles Recherches, pp. 561, sqq.). 40 / BEFORE THE NORMAN CONQUEST if he be condemned, he shall bear the los, 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, appar- ently, very modern in character. It looks like positive po- litical legislation, as we understand it at the present day. The Capitularies of the Karolingian House, and of the Bene- ventine 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 repro- ducing the elaborate and highly organized machinery of the Roman State. Just as a party of savages will disport them- selves in the garments of a shipwrecked crew, so the Mero- wingian and Karolingian kings and officials decked themselves with the titles, the prerogatives, the documents, of the Im- perial 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 down- fall of the Frank Empire; but they might have been con- soled 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 civiliza- tion equal in degree to that of their kindred in Britain and Scandinavia, the Germans of continental Europe found them- 2. JENKS: TEUTONIC LAW 41 selves 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 exer- cise 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 Cap- itula 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 thence- forward 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 Capitu- lare 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 1 Cf. Boretius, Beitrdge zur Capitularienkritik. F. de Coulanges, De la confection des lois au temps des Carolingiens (Nouvelles Recherches). M. Thevenin, Lex et Capitula (Bibliotheque de 1'Ecole des Hautes Etudes, 1878, fasc. 35, p. 137, sqq.). 42 / BEFORE THE NORMAN CONQUEST 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 modifica- tions. Moreover, the Capitula are of great importance in stim- ulating 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 col- lected 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 in- spection, 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 legisla- tion, 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 emr pereur en son royaume. 2. JENKS: TEUTONIC LAW 43 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 Sara- cens and the provincials, in Acquitaine, Gascony, Navarre, and Provence, the old Roman Law had remained the every- day law of the people. This is the country of the Langue d'Oc, the later pays de droit ecrit. 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 peo- ple, but the fief, the district under the control of a sei- gneur, or lord. Of the place of feudalism in political his- tory, 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 fon- der. 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 enquete par tourbe, an enquiry by the multitude. 1 1 La Somme Rurale (ed Le Caron), Bk. I. Tit. 2. 44 7. BEFORE THE NORMAN CONQUEST This state of things, the result of the total breakdown of the Prankish 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. There- fore, the vassal demanded to be tried by the special law of his fief. The contractual character of the feudal bond en- abled 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 admin- istrative powers of the seigneur had disappeared or become unimportant, his judiciary powers remained almost intact. 8. JENKS: TEUTONIC LAW 45 So feudal law is essentially a law of courts. No doubt, cer- tain 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 Jeru- salem, and which profess to describe the usages of that curi- ous product of the Crusades, the Latin kingdoms of Pales- tine. 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, dif- ficult 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 Eng- lish 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 Em- perors had legislated freely on ecclesiastical matters, long before the Teutons were converted to Christianity ; and the Merowingians could hardly venture to meddle with the organ- ization of that mighty power which had destroyed their an- cient 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 46 /. BEFORE THE NORMAN CONQUEST 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 Bar- barorum to meet their case. As time went on, however, new influences manifested them- selves. 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, Gen- eral 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 author- ity 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 appear- ance of ecclesiastical Capitula, many of them founded on Con- ciliar 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 kirkiubolkcer, or Church Books. 4 But ecclesiastical leg- islation 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 doubt- 1 On this interesting point, see Gierke, Deutsches Genossenschaftsrecht, and Pollock and Maitland, History of English Law, vol. i. pp. 469-495. Cf. the Capitularies of 802 (a sacerdotibus proposita), of 803-4 (ad Salz), of 813 (e Canonibus excerpta), all in Boretius, vol. i. (M. G., 4to) pp. 105, 119, 173. Cf. Edgar's Ecclesiastical Laws and Knut's Ecclesiastical Laws, in Schmid, op. cit., pp. 184 and 250. Cf. Wettgbtalagen, ed. Beauchet, pp. 131, sqq. 0. JENKS:' TEUTONIC LAW 47 ful 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 authori- tative 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 De- cretals 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 suf- ficient 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 practi- tioners, 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 cosmo- politan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile trans- actions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Han- decretals of Gregory IX. (ed. Friedberg), Bk. III. Tit. 50, c. 10. 48 /. BEFORE THE NORMAN CONQUEST scatic League, and the Parloir aux Bourgeois at Paris. Oc- casionally, some special rule of the Law Merchant receives official sanction from king or seigrieur. 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 coun- tries, 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 Cam- peador; 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 can- not be compared with the highly organized feudalism of the Continent. To revert again to the admirable French dis- tinction, there might be in England a justice fonciere, 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 perma- nent impress on English law. When, at the beginning of the twelfth century, an English writer is trying to describe Eng- lish 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 'See Schmid, Getetze der Angehachsen, ed. 2, pp. 482, 485. 0. JENKS: TEUTONIC LAW 49 between Pepin the Short and Pope " John." J 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 Wher- ever 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 Bar- barossa was compelled to temporize with his vassals, and to respect the privileges of the Lombard League, Henry Beau- clerk 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 terroe, 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 1 Schmid, Oesetze der Angehachsvn, at p. 500. 1 Luchaire, Manuel des Institutions Franqaises, p. 257, n. See the interesting excursus on the history of Norman Law by Brunner, Entstehung der Schwurgerichte, cap. vii., and by the same author in Holtzendorff's Encyklopddie der Rechtswissenschaft, Part I., 5th ed., pp. 303-348. 50 /. BEFORE THE NORMAN CONQUEST 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 meaning- less in the mouth of a French or German jurist. About this time a celebrated expression makes its appearance in Eng- land. Men begin to speak of the " Common Law." The phrase is not new; but its application is suggestive. Can- onists 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 thir- teenth 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 1 Pollock and Maitland, History, vol. i. pp. 155, 156. 1 Acts of the Parliament of Scotland, 1540, cap. i. vol. ii. p. 356. 0. JENKS: TEUTONIC LAW 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 Echiquiers 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 coun- ties, but who have a headquarters by the side of the king himself. This court is at first financial, administrative, judi- cial. 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 1 Stubbs, Select Charters, ed. 5, pp. 84 (William I.), 96 (Henry I.), 119 (Stephen). ! Lauriere, Ordonnances des rois de France, ann. 1312, vol. xii. p. 354. 52 /. BEFORE THE NORMAN CONQUEST 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 Impe- rial Hofgericht had infinitely less power in the thirteenth cen- tury 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 offi- cial. 1 But the Norman Conquest had strengthened the posi- tion 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 nowveau acquet, the " conquest," is much more at the dis- posal of its master than the heritage of the office. The Nor- man Duke who acquired England made good use of that 1 Viollet, Prtcit de I'Histoire du Droit Francois, p. 160. 0. JENKS: TEUTONIC LAW 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 suc- ceeds 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 Habs- burg 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 manage- ment, 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 1 Brunner, zur Rechtsgeschichte der romischen und germanischen Urkunde, p. 211. 2 Pollock and Maitland, History, vol. i. p. 559. 3 Stobbe, Oeschichte der deutschen Rechtsquellen, Pt. I. p. 485. Esmein, Histoire du Droit Francois, 2nd. ed., p. 312. It is noteworthy that one of the oldest and most important of French town-charters, the so-called Etablis semens de Rouen, was granted by an English king. 54 /. BEFORE THE NORMAN CONQUEST 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 Nor- mandy and Brittany, the Counts of Champagne and Poitou, did the like. The legislation of the smaller States of Ger- many, 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 Ordi- nances 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 Wood- stock 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 prece- dent. But there arises a king who, consciously or uncon- sciously, 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 8. JENKS: TEUTONIC LAW 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 com- pelling 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 Etats Generaux 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. Laurie re and his successors, was never submitted to the Etats Generaux; 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 vie jo 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 adapta- tions of the Pandects. In Germany, the Diet ceases to be an effective body from the death of Frederick II. ; and, though 1 Hobbes, Leviathan, cap. xxvi. 66 /. BEFORE THE NORMAN CONQUEST 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 Landslog of King Magnus Lagabotir 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 Ger- many, 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 imper- sonal guise. Thus we get the Tres Ancien Coutumier of Normandy and its successors, the Conseil of Pierre de Fon- taines for the Vermandois, the Livre de Jostice et Plet and the Etablissemens le Roy for the Orleanais, the customs of Cler- mont 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 exposi- tory 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 enquete par tourbe, in Germany the Rechts- bucher seem to have been accepted, in all good faith, as actual law. The reason for this curious difference is not easy to 8. JENKS: TEUTONIC LAW 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 Weisthumer and the German form-books, the decisions of the Court at Ingelheim and the Oordelboek of Drenthe, the Summa prosarum dictaminis and the Summa curice 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 for- mulated 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 XL, Charles VIIL, 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 1 See, for example, the document given in Loersch and Schroder, Urkunden zur Geschichte des deutschen Privatrechtes, ed. 2, Part I. No. 339. 1 Stobbe, op. cit., p. 318. 58 / BEFORE THE NORMAN CONQUEST 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 lan- guage 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 ecrit, 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 Mou- lin, 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, " proj ected " 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 ami 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 pro jets; we know the very points upon which they raised objections. The object of the redaction is to render the use of the enquete par tourbe unnecessary for the future; it declares the custom once and for all. But to do this it holds a great and final enqutte par tourbe; it collects, but it does not make, the law. Turning to Germany, we find that there have been attempts 1 Esmein, op. nV.ip. 749. 1 Bourdot de Richebourg, Coutumier gtntral. Paris, 1724. 8. JENKS: TEUTONIC LAW 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 Suablan 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 T;he 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 14*95, 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. See the process described by Brunner, in Holtzendorff's Encyklo- padie, Part I. pp. 291-294, and Schroder, Deutsche Rechtsgeschichte, pp. 722-731. 60 /. BEFORE THE NORMAN CONQUEST 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 Schoffengerichte of Germany, the cours d'echevins of France, the bailies' courts of Scotland, have built up elaborate systems of local law, which strive to main- tain exclusive control within the limits of their jurisdiction. The town laws of Liibeck, Hamburg, Goslar, Vienna, and Magdeburg, the statuts of Avignon and Aries, the plaids de d'echevinage de Reims, the Bjarkoratten 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 impor- tance ; 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 Etats Generaux 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 0. JENKS: TEUTONIC LAW 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 regime 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 do- main 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 62 /.' BEFORE THE NORMAN CONQUEST 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 judge- ment of the gods upon evil practices, no less than the thunder- storm 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 2. JENKS: TEUTONIC LAW 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 posi- tive sides of Law. Old customs, proved by experience to be bad, are discarded ; new customs, likewise proved by experi- ence 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, accord- ing to modern notions, legislative, nor executive, nor judiciary, but simply declaratory. They declare the folk- right. 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 prob- ably 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 com- munity, 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 64 /.' BEFORE THE NORMAN CONQUEST system of runes or other symbols; it may, and this is more probable, have come into contact with some higher civiliza- tion 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 Barba- rorum 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 enact- ments, 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 trans- form the folk-laws into the law of medieval Europe. Not one of these was Law in the Austinian sense. Th Canon Law posed as a revelation, and, as such, was thor- oughly in harmony with primitive ideas of Law. That which the folk discovered, through the painful process of experi- ence, to be the will of the unseen Powers, was discovered by 2. JENKS: TEUTONIC LAW 65 Popes and Councils, through the speedier process of revela- tion. 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 for- gotten ; 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 expo- nents 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? Some- 66 /. BEFORE THE NORMAN CONQUEST times, 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 declar- ing 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 2. JENKS: TEUTONIC LAW 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 knovs what her law was, to declare it with certain voice, and to enforce it thoroughly and completely. SYNOPTIC TABLE OF SOURCES 1 NOTES 1. There has been no attempt on the part of the compiler to attain uniformity of spelling or nomenclature. In each case the source has been indicated by its popular title, which, it need hardly be said, is sel- dom of official origin. The dates assigned to the various items are those generally accepted by the leading specialists. 2. A title in italics indicates that the source was originally the work of a private composer. 3. A title between square brackets, [ ], indicates that the source does not survive in its original form. 1 The List of Principal Sources, which is made to precede this Synoptic Table in the author's original arrangement has been trans- ferred to Volume II of this Collection, under the first topic, Sources of Legal History. The List gives the publications and editions in which can be found the principal materials for mediaeval European legal history. EDS. 69 70 /. BEFORE THE NORMAN CONQUEST | 2 Q a o g d 8 a 1 z S5 1 2 8 'sf _r. p 4 a ^ i i* 1 6 ^ FRANCE. sr S rf RANGE. It i. 2 = Hilperici ( i - L J^, M 3 m ^ (j M r^ S 5 o JO. tf P tf (2u o K 3 55 I ! 2. H W GERMANY. 1 fc w GERMANY. o'g 1 y f Lex Ribuaria I.). Is if I 8 .2 5 1 % l\ d a' | M < ti | Pc< I h- ( CC 5 ll o c M Q 4g 1 Q M 3 H i a d d 3 fc o 3 I o M \ Q * * ucn M M CO J JENKS: TEUTONIC LAW 71 fc W 'is f-s, 2.2 31 r fl -^ s -' 1HJ II! M M 72 /. BEFORE THE NORMAN CONQUEST i 95 8 3 d 55 8 Q H u 1 IP ft I 3 .- . S IM B 2 6 if s- 4 g > .2 n - IE ll 11 E 5- uiS 6 ^ <3** <3~* -<3*"" <3 <3 gS a? o5" & ex Ip; K ^ 74 /. BEFORE THE NORMAN CONQUEST SCANDINAVIA, (t ., SPAIN. "8 m .1 -S FRANCE. ~1 a * i * * 2 2 . e'5 i 1 * 8 j a | | f T f I 3 -5 a S.ii|1| (JIJIJ H? i ! i liil I | fl GERMANY. if. fl III f! i ! 1 flll!!! jl 1 s : !!f II- 1 s 1 H 1 |{! II ITALY. g-sg. . --" $* -- S SSB - "itSa ifty ^i i if ^ -ii a i-wSi a| g- |" ^ 4 i . iS fi - ^8 < Cg sg Iff ill If M^lifl -s-i-iS 2 11 -a.]! -S.-S -al-a-s-al '| -|^ <3 (3 (3 (3 uuu Of3 J 3) 1* P ^1 J 5 111 | o> SCOTLAND. ENGLAND. J nun? K 2. JENKS: TEUTONIC LAW 75 - il 2 a' a 82 r 81 3 2S - ta '| Ir g . 8 .T 2 - s o C iB I -^ ill ill pi til; o o w If 1J F Capitulare nense. (R beries. Reg tion of r to L BEFORE THE NORMAN CONQUEST ?! u * . - 1 =32 -Ct -Cl xSf= Ss 1 PS a-s al a^ t h el r Counse Woodstoc 1-1 I-S JENKS: TEUTONIC LAW 77 Ma Edi _, - H II !JI 11 M Rtctitudintt fularum tonarum. to 78 /. BEFORE THE NORMAN CONQUEST 3 | 8 - " < s SPAIN. o o 3 a H FRANCE. Q GERMANY. | 1 | 1 * *J S 11 i 1 1 2 ll 1 ll | : 3 B (S w I. fcf < :s S. 2 - 3- ITALY. ^ ^_-& j 3 ? 5 s t" SCOTLAND. ** M *te H Q ENGLAND. is AH i tg'ii ^ s a & S8, |tf |S 1 - 4 lifl H ; ?ft. I ** O 4 S OS 1 ]|i 1 ill* a -i- 8 - d8 "8 'S 4 8 Ji Mn M a - U K H - - 2. JENKS: TEUTONIC LAW 79 ^ 1*3 -2 -3 oa 1! 11 1 -Trl it * 1 II t I a 3 t 8,5.8 80 /. BEFORE THE NORMAN CONQUEST DINAVIA. - M t e * 1 . = 5 * la If sf If if || *| if* tL 3 8 1 8 > * Z 5! & /> $ >-, b. S" 8 Q ! f SPAIN. | j Q < S f FRANCE. o a 8,B eg $ .S * gC? = 30. IB O n 3 a 5fl g- ui co. u U o ... 8 i f n GERMANY. _. -5 -i .2.8 &V O S P i* rt 3 3 4? I 1 S S-f K *" ^ a i? S| H -<; .|'^ to"" S c? ^3 3~~ si Half .2 *" a 4> a -g -a - s -=.*""*" ITALY. 1 I Jl S S -S a 3 o -5 -B,a C Cop 1 1 : c s (A H M g^ 1 GO Q j> " *J l'& |o,5i -ow 3ft; "Saw o o o o w ^ o i i - t, * ll^iilj Ji -2 c K, C J v 1 |i{ffi| I! oH g.S . j >.fi gg O O O O *3 S O O r* 00 O O V) w> \5 o *o ll B OIO a ti fl^ WO p 3 V V > *O M.J -g * a B 1 43 S1 II I w ,||1 1 alii J-t |! I 1 ^I J |.J S 1 s* ! t J 1 f I 1 Constitutio de jure | 1.1 *3 ^ ^r" o ^ -o^ -S < o 3 S.'S -2 -a| ill g S g . =2 to ( &s &s J ^ "C trt s ^ U. J V- 1 - "S V Ij I'l i/5 co I i I rf tl 2 . a ^ ! *di I i - u s. "3 -s_. l^s f: I tl . y^wwjgc^gd.^ .g- ^*itt;* ^S **c*5 f^rt^'o t 2 u 2 i 5-- t! ** rt $ = 5 2 w 3 a e? .!:< -3 ^ ga WWOTWW OO*HO s" ? tJ.JJ*0?0000* ^^S* fO 82 /. BEFORE THE NORMAN CONQUEST 1 o :* a X .. 8, S. i*l **1 43: 8. JENKS: TEUTONIC LAW 83 ft & Mil .0* 's ' "S-2 . 'ill s^ I" ij ii ii fi l N O ^5 S? ?, 1 1 S 5 . II "1 M I * -5 o U i! to 84 /. BEFORE THE NORMAN CONQUEST H B d n'8 o&. J* l-s an if:-, - s ! i- < w "! <; tn j|s' Ijg 1 I 1 f 11 f! 14 en : f f CO * 86 /. BEFORE THE NORMAN CONQUEST 33 i 3 ' 3 - 30 30* 33 S 2 33 s H o< oS oH o< o OOOOO 3C 3o 3P 2 o< o*a oPa g OOOo O to li x* m I*J i 1- ?.. JENKS: TEUTONIC LAW 87 g-S is si iig sj si si Ok, O O O O go -2 -gS o o o - ^ _ -o j S a II Ills'! II gw 2 25 oO o 5. G. o 3. ENGLISH LAW BEFORE THE NORMAN CONQUEST 1 BY SIR FREDERICK POLLOCK, BART. 2 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 cen- tury, 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 dis- carded 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 declara- tion of wrong modern law. This happened in at least one 'This essay was published in the Law Quarterly Review, 1898, volume XIV, pp. 291-306. 1 Editor of the Law Quarterly Review; M. A. Trinity College (Cam- bridge) ; Barrister-at-law 1871 ; Professor of Jurisprudence, University College (London) 1882-83; Professor of Common Law in the Inns of Court 1884-1890; Corpus Professor of Jurisprudence at Oxford 1883- 1903; Fellow of the British Academy 1902. Other Publications: Principles of Contract, 1876; Law of Torts, 1877, Digest of the Law of Partnership, 1877; The Land Laws, 1882; Essays in Jurisprudence and Ethics, 1882; Possession in the Common Law (with Mr. Justice Wright), 1888; Oxford Lectures, 1890; Intro- duction to the History of the Science of Politics, 1890; Law of Fraud in British India, 1894; History of English Law to the Time of Ed- ward I (with Professor Maitland), 1895; First Book of Jurisprudence, 1896; Expansion of the Common Law, 1904; Introduction and Notes to Maine's Ancient Law, 1906. 88 3. POLLOCK: ANGLO-SAXON LAW 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 Christen- dom, 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 civil- ization which survived, or had been recovered, on the Conti- nent. There was very little foreign trade, not much internal traffic, nothingrlike 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 1 See Pollock and Maitland, Hist. Eng. Law, ii. 367 sqq. 1 There were probably intermediate meetings for merely formal busi- ness, which only a small number of the suitors attended: see P. & M., Hist. Eng. L. i. 526. 90 /. BEFORE THE NORMAN CONQUEST was that of the bishops, abbots, and other great ecclesiastics. This learning, indeed, was all the more available and influen- tial 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 f otmd 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 wliere 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 strength- ened by adding the chief men of other counties ; and, when thus reinforced, there is hardly anything to distinguish it | There is more authority for this short form than for the fuller Witena-Gem6t (not witendpemot, as sometimes mispronounced by per- sons ignorant of Old-English inflexions). 3. POLLOCK: ANGLO-SAXON LAW 91 from the Witan save that the king is not there in per- son. 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 exist- ing 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 'Such a court, after the Conquest, was that which restored and con- firmed the rights of the see of Canterbury on Penenden Heath: but it was held under a very special writ from the king. 1 The common form of reference in Domesdav Book. 92 /. BEFORE THE NORMAN CONQUEST 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 ^thel- stan they might count for much; under a feeble one like ^Ethelred 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 con- cerned, 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 con- clusive 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. " Gain- saying is ever stronger than affirming .... Owning is 1 There were variations in the practice of different counties after the Conquest (Glanv. xii. 23), and therefore, almost certainly, before. We know nothing of their character or importance, but I should conjecture that they were chiefly in verbal formulas. * Advanced students will observe that this is wholly different from the decisory oath of Roman and modern Romanized procedure, where one party has the option of tendering the oath to the other alone, and is bound by the result 8. POLLOCK: ANGLO-SAXON LAW 93 nearer to him who has the thing than to him who claims." 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 judg- ment. 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 float- ing 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 1 ^thelr. ii. 9. * There is a curious French variant of the cold-water ordeal in which not the accused person, but some bystander taken at random, is im- mersed: .1 do not know of any English example. 94 /. BEFORE THE NORMAN CONQUEST 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 An- other 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. 8 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 judg- ment 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 knowl- edge, 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 1 The cold-water ordeal was apparently most feared ; see the case of Ailward, Materials for Hist. St. Thomas, i. 156, ii. 172; Bigelow, Plac. A.-N. 260. For a full account see Lea, Superstition and Force. * See more in Xeilson, Trial by Combat, an excellent and most inter- esting monograph. * Cases from D. B. collected in Bigelow, Plac. A.-N., 40-44, 61. Even under Henry II we find, in terms, such an offer, but it looks, in the light of the context, more like a rhetorical asseveration in fact the modern u j'en mettrais ma main au feu" than anything else: op. ctt v 196. 3. POLLOCK: ANGLO-SAXON LAW 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 common- wealth 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 farJ 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 re- quired, but the party had to act for himself as best he could. If distress failed to make the defendant appear, the onry 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 96 / BEFORE THE NORMAN CONQUEST 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 arid 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. JEthelberht, the con- verted 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 cen- turies. Other Kentish princes, and afterwards Ine of Wes- sex, followed the example; but the regular series of Anglo- Saxon laws begins towards the end of the ninth century with 3. POLLOCK: ANGLO-SAXON LAW 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 sucji 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 reckon- ing. Otherwise we cannot certainly tell how much is declara- tion of existing custom, or what we should now call consoli- dation, 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, ne'ed a good deal of circumspec- tion and careful comparison of other authorities for using J The so-called laws of Edward the Confessor, an antiquarian com- pilation of the twelfth century largely mixed with invention, do not even profess to be actual poems of the Confessor, but the customs of his time collected by order of William the Conqueror. 98 / BEFORE THE NORMAN CONQUEST them aright. It is altogether misleading to speak of them as codes, or as if they were intended to be a complete expo- sition 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 per- sons, 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 for- bidden. 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 (per- haps 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 m,an 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 sub- stantial 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 3. POLLOCK: ANGLO-SAXON LAW 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 " noble- man ") had a wergild six times as great as a ceorVs 1 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 speci- fication, 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 appor- tioning punishment to guilt in the particular case, or assess- ing 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 mon- *The modern forms of these words, thane and churl, have passed through so much change of meaning and application that they cannot be safely used for historical purposes. 'There were minor distinctions between ranks of free men which are now obscure, and were probably no less obscure in the thirteenth cen- tury: they seem to have been disregarded very soon after the Conquest. 100 / BEFORE THE NORMAN CONQUEST archy 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 con- nected 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 fine 2 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, 1 Bl. Com. iv. 203. 1 Wile was probably, in its origin, rather a fee to the court for ar- ranging the composition than a punishment. But it is treated as penal from the earliest period of written laws. In the tenth century it could mean pain or torment ; see C. D. 1222 ad fin. 3. POLLOCK: ANGLO-SAXON LAW 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 Eng- lish 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 pro- claimed on various solemn occasions; it seems to have been specially prominent may we say as a " frontier regula- tion " ? where English conquest and settlement were re- cent. 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 " com- mon right " which the courts will take for granted. The 1 See the customs of Chester, D. B. i. 262 b, extracted in Stubbs, Sel. Ch. 102 /. BEFORE THE NORMAN CONQUEST Normans found the king's peace nearing, if not touching, the second stage. Except for a few peculiar provisions, there is no-thing in Anglo-Saxon customs resembling our modern distinctions between wilful, negligent, and purely accidental injuries. Private vengeance does not stop to discriminate in such mat- ters, 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 carry- ing 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 most * 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 of- fence ; 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. The statement is rather obscure. * JElt. 23. *See Holmes, the Common Law, 7-12. 3. POLLOCK: ANGLO-SAXON LAW 103 As for the law of property, it was rudimentary, and inex- tricably 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 neigh- bours 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 town- ship 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 long- standing custom, are prescribed in a whole series of ordi- nances on pain of stringent forfeitures. 1 Even then a pur- chaser 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 category. 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 manslay- ing should bring home the liability with it to the owner, quite 1 See especially Edg. iv. 6-11. 104 7. BEFORE THE NORMAN CONQUEST 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 x not any law of contract at all, as we now under- stand 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 settle- ment 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 confi- dence 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 . 19. *.Elf. 13. 3. POLLOCK: ANGLO-SAXON LAW 105 on what can be inferred from Anglo-Norman sources. It is certain that there were a considerable number of inde- pendent 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 Icing'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 per- sistent 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 4 Maitland, Domesday Book and Beyond, 106. 3 See C. D. 226 compared with 256. 106 /. BEFORE THE NORMAN CONQUEST 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 advice l 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 au- thors have called it, the " borough-English " of our post- *A strictly accurate statement in few words is hardly possible. See the section "Book-land and Folk-land" in Maitland, Domesday Book and Beyond, p. 244 sqq. 1 See P. & M., Hist Eng. L., bk. II. c. vi. 3. 3. POLLOCK: ANGLO-SAXON LAW 107 Norman 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 Con- quest 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 free- dom 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 re- cognizable form. This fact nevertheless remains compatible with a perfectly real and living continuity of spirit in our legal institutions. 1 The discussion which would be necessary if we were here studying Germanic customs for their own sake, or as part of a comparative study of archaic customs in general, is deliberately left aside as irrelevant to the purpose in hand. PART II. FROM THE NORMAN CONQUEST TO THE EIGHTEENTH CENTURY 4. The Centralization of Norman Justice under Henry II. ALICE STOPFORD (MRS. JOHN RICHARD) GREEN. 5. Edward I, the English Justinian. EDWARD JENKS. 6. English Law and the Renaissance. FREDERIC WILLIAM MAITLAND. 7. Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant. THOMAS EDWARD SCRUTTON. 8. The History of the Canon Law in England. WILLIAM STUBBS. 9. The Development of the Law Merchant. WILLIAM SEARLE HOLDSWORTH. * 10. A Comparison of the History of Legal Development at Rome and in England. JAMES BRYCE. 109 4. THE CENTRALIZATION OF NORMAN JUSTICE UNDER HENRY II l BY ALICE STOPFOBD (MRS. JOHN RICHARD) GREEN 2 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 propor- tions 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 tran- sition, when society was seeking to order itself anew in its passage from the mediaeval to the modern world; and his victory over the most obvious and aggressive forms of dis- order 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 1 These passages are extracted from " Henry II " (Twelve English Statesmen), 1888, cc. Ill, IV, V, and IX (London: Macmillan & Co.). The authoress writes to the Committee: " I remember that Sir James Stephen spoke to me warmly of the book and said that I had not made a single legal error." 3 Other Publications: Town Life in the Fifteenth Century, 1894; Oxford Studies, 1901; The Conquest of England, 1883 (ed.) ; Short History of the English People, 1888 (ed.) ; Historical Studies, 1903 (ed.). Ill 112 //. FROM THE 1100'S TO THE 1800'S 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 submis- sive 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 con- stituted the real problem of government a problem far more slow and difficult to work out than the mere suppres- sion 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 hun- dred years by the effort to fuse together Norman and Eng- lish 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 v the duties which this in- volved. On the other hand, the Norman as well as the Eng- lishman held his land subject to the customary burdens and 4. GREEN: HENRY II 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 pre- vailed between one village and another, the strong sense of local life and jurisdiction, and the strict adherence to im- memorial 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 Hun- dred 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 win- ning 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 114 //. FROM THE 1100'S TO THE 1800'S to be brought under the jurisdiction of the newly-estab- lished 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 free- holders 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 be- tween the subjects of the State, and fundamentally admin- istered 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 compli- cated transactions which trade brings with it, were only beginning to be known. As soon, however, as industry de- veloped, 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 tradi- tion of a tribunal where the king was not the sole fountain of justice, and the memory of a law which was not the 4. GREEN: HENRY 11 115 " 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 f 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 cer- tain number of freemen among his neighbours, whose prop- erty 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 calcula- tions, 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 116 //. FROM THE 1100' 'S TO THE 1800'S 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 testi- mony 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 decid- ing doubtful questions of property by the " recognition " of sworn witness instead of by the English process of corn- purgation or ordeal. Twelve men, who must be freemen and hold property, were chosen from the neighbourhood, and as y " jurors " were sworn to state truly what they knew about the question in dispute, and the matter was decided accord- ing to their witness or "recognition." If those who were summoned were unacquainted with the facts, they were dis- missed 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 occa- sionally granted, by which cases were withdrawn from the usual modes of trial in the local courts, and were decided 4. GREEN: HENRY II 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 devel- oped, 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 thank- less business of the court. When they reached the place of trial a strange medley of business awaited them as ques- tions 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, some- times 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 out- rage, or sought for evidence on some difficult problem of fact. Evidence, indeed, was not easy to find when the ques- tion in dispute dated perhaps from some time before the civil war and the suppression of the sheriff's courts, for no writ- ten record was ever kept of the proceedings in court, and everything depended on the memory of witnesses. The dif- ficulties of taking evidence by compurgation increased daily. A method which centuries before had been successfully ap- plied to the local crimes of small and stationary communities bound together by the closest ties of kinship and of fellow- ship in possession of the soil, when every transaction was 118 //. FROM THE 1100'S TO THE 1800'S inevitably known to the whole village or township, became useless when new social and industrial conditions had des- troyed the older and simpler modes of life. The procedure of the courts was antiquated and no longer guided by con- sistent 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 Nor- man ; 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 dia- lects 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 sum- moning 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 out- side 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 4. GREEN: HENRY II 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 vio- lent 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 gim- let, 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 under- ling 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. Per- haps 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 con- sented. 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 120 //. FROM THE 1100'S TO THE 1800'S the neighbourliood, and confessing his sins from his youth up, he was bidden to hope in the prayers of the blessed Vir- gin 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 exam- ined by the ordeal. Whether he underwent it or whether he pleaded guilty when the judges met is uncertain, but how- ever 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 mem- bers 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 mediaeval 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 mediaeval 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 admin- istration 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 4. GREEN: HENRY II 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 abso- lute 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 jus- ticiar, De Lucy. Cool, businesslike, and prompt, he set him- self to meet the vast mass of arrears, the questions of juris- diction 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 transi- tional 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 sucji a charter to prove their possession of Claren- don, 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 replac- ing the mere arbitrary power of the sovereign by a uniform system of administration, and bringing into order the vari- ous 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 122 //. FROM THE 1100'S TO THE 1800'S 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 Ex- chequer 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 Chamber- lains, 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 v 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 ano! 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 chan- cellor 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, 4. GREEN: HENRY II 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 " Jus- tices," 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 arbi- trary action on the king's part, and the regular and method- . ical 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 124 //. FROM THE 1100'S TO THE 1800'S 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 judg- ment 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 astonish- ing. 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 4- GREEN: HENRY II 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 money ers. 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 offi- cers; but it is plain that before 1164 certain great changes had already been fully established. A new and elaborate sys- tem 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 dis- puted, 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 knowl- edge 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 recog- nized 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 grad- ually extended to the local courts. By the new-fashioned 126 //. FROM THE 1100'S TO THE 1800'S 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 " pre- sentment " and of " recognition " were gradually trans- formed 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 admin- istration 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 estab- lished of separate courts for secular and ecclesiastical busi- ness 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 4. GREEN: HENRY II 127 H begun, and there was much debatable ground which might be won by the most arrogant or the most skilful of the com- batants. 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 mediaeval 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 inherit- ance whether the heir was legitimate, to declare the law as to wills and marriage. Administering as they did an enlight- ened 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 Eng- land ; 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 salva- tion 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 128 // FROM THE 1100'S TO THE 1800'S 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 Christen- dom, 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 out- side 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 Uwa was I'ssii^H by the sole authority of _the_]ung * without any appeal to the sanction of binding and immutabfe " 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 1 Here follows the account of the conflict with Becket and of the lat- ter's death. EDS. 4. GREEN: HENRY II 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 tienry had undertaken to bring Church courts and Church law under the king's con- trol, so now he aimed at bringing all local and rival jurisdic- tions 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 " pre- sented " 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 neigh- bourhood, 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 con- demnation 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 130 //. FROM THE 1100'S TO THE 1800'S another ; no " liberty " or " honour " might harbour a male- factor 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 answer- able 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 them- selves 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 insignif- icance beside those summoned by the king's judges, thronged as they were with the crowd of rich and poor, trembling at 4. GREEN: HENRY II 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 wasT doomed from the day of Henry's Assize, and only dragged out a lingering existence till the legislation of Edward I. 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 132 //. FROM THE 1100'S TO THE 1800'S 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 4. GREEN: HENRY II 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 mainte- nance 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 com- pelled 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 we're not unavailing, 134 //. FROM THE 1100'S TO THE 1800'S 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. How- ever we who look back from the safe distance of seven hundred years may see with clearei 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 adminis- tration, 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 prin- ciples. 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 prac- tically 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 4. GREEN: HENRY II 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 aboli- tion 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 sa*me 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 repre- sentation 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. Aj; a very critical moment, when everything was shifting, uncer- tain, transitional, Henry's legislation established this tradi- 136 //. FROM THE 1100'S TO THE 1800'S tion 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 circumstarces and rooted preju- dices. 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 estab- lished, insular prejudice against the foreigner and foreign ways was alert, the Church generally still held to national tradition, the king was at deadly fend 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 prop- 4. GREEN: HENRY II 137 erty, 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 move- ment 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 138 //. FROM THE 1100'S TO THE 1800'S 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 per- fection. Before long the name of the Curia Regis was ex- clusively 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 jus- ticiars, hoping that if he had failed before,* these at least he might find steadfast in righteousness, turning neither to the riglit nor to the left, not oppressing the poor, and not decid- ing 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 JUSTINIAN BY EDWARD JENKS 2 few years which followed the conquest of Wales have _l_ 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 Scot- tish 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 sub- jects by a frank appeal to old memories. " Except in 1 These passages are taken from "Edward Plantagenet (Edward I), The English Justinian; or The Making of the Common Law," 1909, pp. 200-227, 332-346 (London and New York: G. P. Putnam's Sons). * A biographical note of this author is prefixed to Essay No. 2. 139 140 // FROM THE 1100'S TO THE 1800'S 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 impor- tance in the social system of the country. But he fitted badly into the established order of things. As often as not a " foreigner," * 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 strength- ened by his own spontaneous association into gilds or brother- hoods, 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 com- mercial obligations. No man, in the England of the thir- teenth century, would have thought a fraction the worse of 1 The word " foreigner " has various shades of meaning in the records of the time. Often it merely means a person not a member of the speak- er's immediate locality. But, in these pages, it will be used in its mod- ern sense of a political alien. 5. JENKS: EDWARD I 141 himself for refusing to satisfy a commercial claim, however just, which could not be legally enforced against him. Scan- dalous 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 judg- ment, 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 142 //. FROM THE 1100'S TO THE 1800'S 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 feudal- ism 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 Ynight 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 Bur- nell " 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 Shrews- bury, seven miles away, and the Statute was probably drawn up and promulgated, as it professes to be, by the King and his Council, t. e., the small body of officials who accompanied 5. JENKS: EDWARD I 143 him on his journeys. But its legal validity has never been questioned, and its importance is beyond dispute. A mer- chant 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 inter- preted 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 ren- dered it unnecessary. The still simpler machinery of " nego- tiable paper " (Bills of Exchange and Promissory Notes) 1 Legal readers will realise that I have combined into one the original Statute of 1283 and the amending ordinance of 1285. But it would have been pedantic, in a general work, to have separated the two. 144 //. FROM THE 1100'S TO THE 1800'S 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 histo- rians 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 impos- sible for the pedigree to be maintained without the estate. And so, banding all their forces together, they refused to pass 'Mr. Pearson in his admirable England in the Middle Age (vol. ii., p. 337) suggests, that the Parliament of Easter, 1285, consisted only of the King's officials. This is incredihle in the face of the statement made by Walter of Hemingburgh, that "in that Parliament the King informed the magnates of his intention of visiting Gascony." 5. JENKS: EDWARD I 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 subse- quent 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 inherit- ance 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 disposi- tion 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 orig- inal 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 Eng- lish aristocracy into a close corporation of stupid and unpro- gressive grandees, filled with the pride of pedigree, starving 148 //. FROM THE 1100'S TO THE 1800' S 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 disobedi- ence they would be powerless to correct by threats of dis- herison. 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 1 An impious Parliament, moved thereto by an impious committee, laid profane hands on the Ark of the Covenant in the year 1887. But it only ventured to remove the merest trappings, leaving the substance untouched and meaningless. J If A, the owner of an entailed estate, wished to sell it to B, he got B to bring an action against him (A), asserting that the land belonged already to him (B), and that A was an interloper. Thereupon A attempted no defence on the merits, but merely pleaded -that the estate had been entailed upon him, or one of his ancestors, by C, who had then guaranteed, or " warranted," its title. This process, technically known as " vouching to warranty," was repeated as often as was necessary to maintain a decent appearance of truth, but was finally assumed by an impecunious person (usually the crier of the court) who, for the modest fee of fourpence, was willing to take upon himself the responsibility of defending the case. A convenient adjournment allowed the fictitious claimant (B), to "imparl" (or talk) with the fictitious defendant (the crier), and, on the resumption of the trial, the latter failed to appear, having, in all probability, retired to spend his fourpence at the nearest alehouse. Thereupon, after solemn proclamation, he was pronounced in default, the claim of B was established by the judgement of the court (which, of course, no one could dispute), and the disappointed heirs of A were compensated, in theory, by a decree that the defaulting crier should give them lands of equal value. There were heavy fees all through this process, which may perhaps account for its success and complexity. 5. JENKS: EDWARD I 147 " Common Recovery " made good its footing in this connec- tion. 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 pro- cedure 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 provi- sion, 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 1 Honorable exception from the criticism implied in this last sentence must always be made for the classical case of George Eliot, who, in the pages of Felix Holt, shewed that she was quite capable of grasping the subtleties of medieval conveyancing. 148 //. FROM THE 1100'S TO THE 1800'S the manorial lords, in continuance of the policy of the older Statute of Merton, to " approve," i. e., bring under cultiva- tion, 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 multiplica- tion of public burdens by too frequent sessions, and on the other, delay and injustice arising from insufficient attend- ance, 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 execu- tion. The fees of the hierarchy of royal officials, from the Marshal and the Chamberlain, down to the porters, cyrogra- phers, 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 5. JENKS: EDWARD I 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 Breaute 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 irrespon- sible private agents in the King's business is strictly pro- hibited. 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. lf rhis wholesome rule proved entirely unable to withstand the oppo- sition of two powerful interests: (1) of the Exchequer judges, to whom increased business meant increased fees, and (2) of wealthy litigants, who coveted the special privileges exercisable by a royal litigant, and were willing to pay for them. It was evaded, as every student of our legal history knows, by the use of transparent fictions. 150 //. FROM THE 1100 'S TO THE 1800'S 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 nor, the fascination of a great lawsuit, for the mass of men, lies in the excite- ment 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 " pull- ing " of a horse in the Derby. The second is always unpop- ular 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 5. JENKS: EDWARD I 151 his ward ; the man who warrants title to land and then re- fuses 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 impor- tance, 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 hence- forth 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 com- pleting, by a master stroke, a revolution which had been gradually proceeding during the twelfth and thirteenth cen- turies. 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 152 //. FROM THE 1100'S TO THE 1800'S 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 under- stand something of the audacity of the consimilis cams 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 opin- ion, 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 juris- diction was won, by the skilful use of fictions, by the rise of the Court of Chancery, and, finally, by the Reforma- tion, which crushed the independence of the Church courts. 'Even Henry did not dare to say that it could only be tried in a royal court. But this was, of course, what he desired; and the barons knew it quite well. *"The writ, which is called praecipe, shall no longer be issued to any one concerning any tenement, to the loss by any freeman of his- jurisdiction." 5. JENKS: EDWARD I 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. Jt insists that every man, rich and poor alike, has active duties of citizenship to per- form; 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 person- ally 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 regu- lated 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 govern- ment 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 ir The Watch is to be kept every night from Ascension Day to Michaelmas. The writer has never been able to understand why the winter nights were left unguarded. Was it because in the winter there was little to steal, or because thieves were too lazy to turn out, or because the health of the Watch would have been injured by the cold weather? 154 //. FROM THE 1100'S TO THE 1800'S 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 " Con- servators 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 Cir- cumspecte 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, com- menced 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 'The "Conservators" were, like the later "Justices," local land- owners of a certain estate. (See the case of Lawrence Basset, Par/. Writt, I, p. 389.) 5. JENKS: EDWARD I 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 Stat- ute 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 attrib- uted to the years 1286, 1290, and 1296, but probably belong- ing 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 recognjse the Mayor as an essential feature of municipal existence. There 156 //. FROM THE 1100'S TO THE 1800'S / 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 or- dinance 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, 5. JENKS: EDWARD I 157 the arbiter of Scotland, the organiser of the coast guard, the unflinching opponent of Papal aggression, and the sum- moner 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 Par- liament performs four great functions. It legislates, it ventilates grievances, it criticises the details of administra- tion, 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 sum- 158 // FROM THE 1100'S TO THE 1800'S mons 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 adminis- tration, 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 pop- ular 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 bur- 5. JENKS: EDWARD I 159 gess 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 griev- ances 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 after- wards, 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 griev- ances, 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 Parlia- ment 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 King- dom. For that was the final work accomplished by Parlia- ment. 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 legisla- tor, 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, 160 // FROM THE 1100'S TO THE 1800'S 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 C'wilis. 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 him- self 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 civili- sation 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 Teu- tonic 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 5. JENKS: EDWARD I 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 ren- der 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 con- trast 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 drolt ecrit. 162 //. FROM THE 1100'S TO THE 1800'S But, that Germany and Scotland l 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 Plantage- net. 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 grad- ually 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 under- stands, 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 dis- covered 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 'It was, of course, long after the thirteenth century that Germany and Scotland received the Roman Law. But the fact is none the less striking on that account. 5. JENKS: EDWARD I 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 unac- ceptable 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 sys- tem of the later Roman Empire, everything centred in the person of the Prince, and his will was final and abso- lute. 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 them- selves, but very significant, reveal the possibilities of the situ- ation 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 s-tudent and professor of the Roman Law, and the son of the still more famous Accursi, the author of the Great Gloss, and the con- temporary and fellow townsman of that Azo to whom Brae- ton 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 symp- toms, 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 pre- cisely conforms either to the ideals of the philosopher or to the wishes of authority, so it is true, that custom always 164 //. FROM THE 1100'S TO THE 1800'S differs substantially both from religious and philosophical teaching, and from the injunctions of the most minute arbi- trary 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 con- trary, 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, leav- ing 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 im- portant 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 5. JENKS: EDWARD I 165 of the land. The clerkly skill of the Norman and the An- gevin official made ever more and more plain the habits and practices of the people. Greater and greater grew the col- lection of Plea Rolls which accumulated in the King's Ex- chequer. 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 borrow- ings 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 qualifi- cations for his task. The vital point in his work is that, whilst occasionally borrowing the language and arrange- ment 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. Hav- ing 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 1 The MS. containing these cases was discovered by Professor Vino- gradoff in the British Museum in 1884, and has been lucidly edited by Professor Maitland, under the title of Bracton's Notebook (Cambridge Press, 1887). 166 // FROM THE 1100'S TO THE 1800'S the very names of the men to whom he attributes those deci- sions 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 lin- gered 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 anom- alies 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 Ed- ward'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 reac- tionary side, and in the case of Quia Emptores (before no- ticed), where progress won a decided victory. But, per- haps 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 con- tinuance 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 fin'd in the statute book the honoured formula which describes the King as enacting " with the advice and consent of the lords spiritual and tern- 5. JENKS: EDWARD I 167 poral and the commons in Parliament assembled ; " l 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 Eng- land 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 na- tional 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 free- dom. 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. 1 The first equivalent seems to be the preamble of the Statute of York in 1318. But the Statute of Carlisle came very near it. 6. ENGLISH LAW AND THE RENAISSANCE 1 BY FREDERIC WILLIAM MAITLAND 2 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 Renais- sance (as you caH 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 1 The Rede Lecture for 1901 (Cambridge: University Press). 1 A biographical note of this author is prefixed to Essay No. 1, ante, p. 7. 1 Robert Rede was Autumn Reader nt Lincoln's Inn in 1481, Lent Reader in 1485: Black Book of Lincoln's Inn, vol. i., pp. 71, 83. 1 Creighton, The Early Renaissance in England, Camb. 1895. 168 6. MA1TLAND: THE RENAISSANCE 169 moral was a memorable sign of the times. Nevertheless the fact remains that, had it not been for his last will and testa- ment, 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 pro- nounced, 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 medi- eval 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 re- peatedly 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 8 Coke, Introductory Letter to Part 10 of the Reports, and Preface to First Institute. 170 //. FROM THE 1100'S TO THE 1800'S 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 Zasi. They and the French scholar Guillaume Bude were publishing books which mark the begin- ning of a new era. 6 Humanism was renovating Roman law. *Sohm, Frdnkisches Recht und romisches Recht, 1880, p. 77: " . . . Thatsachen in Folge deren Renaissance an dem englischen Rechtsleben so gut wie spurlos voruberging." "Thomas More was Autumn Reader in 1511, Lent Reader in 1515: Black Book of Lincoln's Inn, vol. i., pp. 162, 175. * Etienne Pasquier, Recherches sur la France, ix. 39 (cited by Dareste, /; .-.""( sur Francois Hotman, Paris, 1850, p. 17): " Le siecle de 1'an mil cinq cens nous apporta une nouvelle estude de loix qui fut de faire un mariage de 1'estude de droict avec les lettres humaines par un langage latin net et poly: et trouve trois premiers entrepreneurs de ce nouveau mesnage, Guillaume Bud, Fran?ois, enfant de Paris, Andr6 Alciat, Italien Milanois, Udaric Zaze, Alleman n6 en la ville de Constance." Savigny, Geschichte des romischen Rechts im Mittelalter, ed. 2, vol. vi., p. 421 : " Nun sind es zwei Manner, welche als Stifter und Fiihrer der neuen Schule angesehen werden konnen: Alciat in Italien und Frank- reich, Zasius in Deutschland. Die ersten Schriften, worin die neue Methode erscheint, fallen in das zweite Decennium des fiinfzehnten [corr. sechzehnten] Jahrhunderts." Andrea Alciato was born at Alzate near Milan in 1492, studied at Pavia and Bologna, in 1518 was called to teach at Avignon, went to Milan in 1520, to Bourges in 1528, was afterwards at Pavia, Bologna and Ferrara, died at Pavia in 1550 (Pertile, Storia del diritto italiano, ed. 2, vol. ii. (2), p. 428). Ulrich Zasi was born in 1461, studied at Tubingen and at Freiburg where he became town-clerk and afterwards 6. MAITLAND: THE RENAISSANCE 171 The medieval commentators, the Balduses and Bartoluses, the people whom Hutten and Rabelais 7 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 hap- professor of law, died in 1535. See Stintzing, Ulrich Zasius, Basel, 1857, where (pp. 162-216) the intercourse between Erasmus, Zasi, Al- ciato and Bude is described. The early Italian humanists had looked on Jurisprudence with disdain and disgust. See Geiger, Renaissance und Humanismus, 1882, pp. 500-503; Voigt, Die Wiederbelebung de Classischen Alterthums, ed. 3, vol. ii., pp. 477-484. Gradually, so I under- stand, philologians such as Bude (d. 1540) began to discover that there was matter interesting to them in the Corpus Juris, and a few jurists turned towards the new classical learning. See Tilley, Humanism under Francis I., in English Historical Review, vol. xv., pp. 456 ff. In 1520 Zasi, writing to Alciato, said " All sciences have put off their dirty clothes: only jurisprudence remains in her rags." (Stintzing, Ulrich Zasius, p. 107.) 7 Rabelais, Pantagruel, liv. ii., ch. x. : " Sottes et desraisonnables raisons et inepts opinions de Accurse, Balde, Bartole, de Castro, de Imola, Hippolytus, Panorme, Bertachin, Alexander, Curtius et ces autres vieux mastins, qui jamais n'entendirent la moindre loy des Pandectes, et n'es- toient que gros veaulx de disme, ignorans de tout ce qu'est necessaire a 1'intelligence des loix. Car (comme il est tout certain) ilz n'avoient cog- noissance de langue ny grecque, ny latine, mais seulement de gothique et barbare. . . . Davantage, veu que les loix sont extirpees du milieu de philosophic morale et naturelle, comment 1'entendront ces folz, qui ont par Dieu moins estudie en philosophic que ma mulle. Au regard des lettres d'humanit^ et cognoissance des antiquites et histoires ilz en estoient charges comme un crapaud de plumes, et en usent comme un crucifix d'un pifre, dont toutesfois les droits sont tous pleins, et sans ce ne peu- vent estre entenduz." W. F. Smith, Rabelais, vol. i., p. 257, translates the last sentence thus : " With regard to the cultivated literature and knowl- edge of antiquities and history, they were as much provided with those faculties as is a toad with feathers and have as much use for them as a drunken heretic has for a crucifix. . . ." 8 Stintzing, Oeschichte der deutschen Rechtswissenschaft, vol. i., p. 96: " Man wird sich bewusst, dass nicht in der iiberlieferten Schulweisheit das Wesen der Wissenschaft stecke; dass es auch hier gelte, dem Rufe des Humanismus ' zuriick zu den Quellen ! ' zu folgen." The greatest names appear to be those of Francois Duaren or more correctly Le Douarin (1509-1559), Jacques Cujas (1522-1590), Hugues Doneau (Donellus, 1527-1592), Francois Baudouin (Balduinus, 1520- 1573), Francois Hotman (1524-1591), Denis Godefroy (1549-1622), Jacques Godefroy (1587-1652). Besides these there is Charles Du Moulin (Molinaeus, 1500-1566) whose chief work, however, was done upon French customary law, and who in the study of Roman law repre- sents a conservative tradition. (Esmein, Histoire du droit franqais, ed. 172 //. FROM THE HOO'S TO THE 1800'S pened 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 admin- istered 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 Heginald Pole, and a little knowledge of what was happening in foreign countries is enough to teach us that such talk deserves attention. 11 2, p. 776.) Dareste (Essai sur Francois Hotman, p. 2) marks the five years 1546-1551 as those in which " nos quatre grands docteurs du seizieme siecle" (Hotman, Baudouin, Cujas, Doneau) entered on their careers. 10 Viollet, Droit civil franqals, p. 25: " C'est le mouvement scientiftque de la Renaissance qui, semblable a un courant, d'electricite, donnc ainsi au vieux droit romain une vie nouvelle. Son autorite s'accroit par 1'action d'une science, pleine de jeunesse et d'ardeur, d'une science qui, comme toutes les autres branches de 1'activite humaine, s'epanouit et renait." Flach, in Nouvelle revue historique de droit, vol. vii., p. 222: " En France Cu j as porte a son apogee le renom de 1'ecole nouvelle. Quelle autre preoccupation cette ecole pouvait-elle avoir que de faire revivre le veritable droit de la Rome ancienne, celui que la pratique avait touch de son souffle impur, celui qu'elle avait corrompu? " u Starkey's England, Early English Text Society, 1878, pp. 192 ff.; and see Letters and Papers, Henry VIII., vol. viii., pp. 81-84, and Ibid. vol. xii., pt. 1, pp. xxxii-xxxiv. Thomas Starkey was employed in the endeavour to win Reginald Pole to King Henry's side in the matter of the divorce from Catherine and the consequent "breach with Rome. The negotiation failed, but Starkey took the opportunity of laying before Henry a dialogue which he (Starkey) had composed. The interlocutors In this dialogue were Pole and the well-known scholar Thomas Lupset, and Pole was represented as expounding his opinions touching political and ecclesiastical affairs. How far at all points Starkey fairly repre- sented Pole's views may be doubted. Still we have respectable evidence that Pole had talked in the strain of the following passage, and at any rate Starkey thought that in King Henry's eyes he was befriending Pole by making him speak thus. "Thys ys no dowte but that our law and ordur thereof ys over- 6. MAITLAND: THE RENAISSANCE 173 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 12 For a general view of the Reception in Germany with many refer- ences to other books, see Schroder, Deutsche Rechtsgeschichte, ed. 2, pp. 743 ff. ; ed. 3, pp. 767 ff. confuse. Hyt ys infynyte, and without ordur or end. Ther ys no stabyl grounde therin, nor sure stay; but euery one that can coloure reson makyth a stope to the best law that ys before tyme deuysyd. The suttylty of one sergeant schal enerte [enerve?] and destroy al the jugementys of many wyse men before tyme receyuyd. There is no stabyl ground in our commyn law to leyne vnto. The jugementys of yerys [i. e. the Year Books] be infynyte and ful of much controuersy; and, besyde that, of smal authoryte. The jugys are not bounden, as I vnderstond, to folow them as a rule, but aftur theyr owne lyberty they haue authoryte to juge, accordyng as they are instructyd by the ser- geantys, and as the cyrcumstance of the cause doth them moue. And thys makyth jugementys and processe of our law to be wythout end and infynyte; thys causyth sutys to be long in decysyon. Therefor, to remedy thys mater groundly, hyt were necessary, in our law, to vse the same remedy that Justynyan dyd in the law of the Romaynys, to bryng thys infynyte processe to certayn endys, to cut away thys long lawys, and, by the wysdome of some polytyke and wyse men, instytute a few and bettur lawys and ordynancys. The statutys of kyngys, also, be ouer- many, euen as the constytutyonys of the emperorys were. Wherefor I wold wysch that al thes lawys schold be brought into some smal nombur, and to be wryten also in our mother tong, or els put into the Latyn, to cause them that studye the cyuyle law of our reame fyrst to begyn of the Latyn tong, wherin they myght also afturward lerne many thyngys to helpe thys professyon. Thys ys one thyng necessary to the educatyon of the nobylyte, the wych only I wold schold.be admyttyd to the study of thys law. Then they myght study also the lawys of the Romaynys, where they schold see al causys and controuersys decyded by rulys more conuenyent to the ordur of nature then they be in thys barbarouse tong and Old French, wych now seruyth to no purpos els. Thys, Mastur Lvpset, ys a grete blote in our pollycy, to see al our law and commyn dyscyplyne wryten in thys barbarouse langage, wych, aftur when the youth hath lernyd, seruyth them to no purpos at al; and, besyde that, to say the truth, many of the lawys themselfys be also barbarouse and tyrannycal, as you haue before hard. [Here follows an attack on primo- geniture and entail.] The wych al bj* thys one remedy schold be amendyd and correct, yf we myght induce the hedys of our cuntrey to admyt the same: that ys, to receyue the cyuyle law of the Romaynys, the wych ys now the commyn law almost of al Chrystyan natyonys. The wych thyng vndowtydly schold be occasyon of infynyte gudness in the ordur of our reame,. the wych I coud schow you manyfestely, but the thyng hyt selfe ys so open and playn, that hyt nedyth no declaratyon at al : for who ys so blynd that seth not the grete schame to our natyon, the grete infamy and rote that remeynyth in vs, to be gouernyd by the lawys gyuen to vs of such a barbarouse" natyon as the Normannys be? Who ys so fer from rayson that consyderyth not the tyranycal and barbarouse instytutionys, infynyte ways left here among vs, whych al schold be wypt 174 //. FROM THE 1100'S TO THE 1800'S the reception of Roman law plays a large part in mod- ern 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 relig- away by the receyuyng of thys wych we cal the veray cyuyle law; wych ys vndowtydly the most auncyent and nobyl monument of the Romaynys prudence and pollycy, the wych be so wryte wyth such grauyte, that yf Nature schold herselfe prescrybe partycular meanys wherby mankynd schold obserue hyr lawys, I thynke sche wold admyt the same: specyally, yf they were, by a lytyl more wysedome, brought to a lytyl bettur ordur and frame, wych myght be sone downe and put. in effect. And so ther aftur that, yf the nobylyte were brought vp in thys lawys vndoubtydly our cuntrey wold sclKrtly be restoryd to as gud eyuylyte as there ys in any other natyon; ye, and peradventure much bettur also. For though thes lawys wych I haue so praysyd be commyn among them, yet, bycause the nobylyte ther commynly dothe not exer- cyse them in the studys thereof, they be al applyd to lucur and gayne, bycause the popular men wych are borne in pouerty only doth exercyse them for the most parte, wych ys a grete ruyne of al gud ordur and cyuylyte. Wherefor, Master Lvpste, yf we myght bryng thys ij. thyngys to effecte that ys to say, to haue the cyuyle law of the Romaynys to be the commyn law here of Englond with vs; and, secondary, that the nobylyte in theyr youth schold study commynly therin I thynk we schold not nede to seke partycular remedys for such mysordurys as we haue notyd before; for surely thys same publyke dyscyplyne schold redresse them lyghtly; ye, and many other mow, the wych we spake not yet of at al." Lupset thereupon objects that, seeing we have so many years been governed by our own law, it will be hard to bring this reform to pass. Pole replies that the goodness of a prince would bring it to pass quickly : " the wych I pray God we may onys see." The Pole of the Dialogue wished to make the power to entail lands a privilege of the nobility. A project of this kind had been in the air: perhaps in King Henry's mind. See Loiters and Papers, Henry VIII., vol. iv., pt. 2, p. 2693 (A. D. 1529): "Draft bill . . . proposing to enact that from 1 Jan. next all entails be annulled and all possessions be held in fee simple. . . . The Act is not to affect the estates of noble- men within the degree of baron." This is one of the proposals for restoring the king's feudal revenue which lead up to the Statute of Uses: an Act whose embryonic history has not yet been written, though Dr. Stubbs has thrown out useful hints. (Seventeen Lectures, ed. 3, p. 321.) When Pole left England in J532 he went to Avignon where Alciato had lately been lecturing and became for a short while a pupil of Giovanni Francesco Ripa (Zimmermann, Kardinal Pole, 1893, p. 51), who was both canonist and legist. Whether at any time Pole made a serious study of the civil law T do not know. In 1534 Pole and Starkey were together at Padua; Pole was studying theology, Starkey the civil law. Starkey in a letter says "Francis Curtius is dead, to the grief of those who follow the doctrine of Bartholus." Perhaps we may infer from this that Starkey was in the camp of the Anti-Bartolists (Letters and Papers, Henry' mi., vol. vii., p. 331). In 1535 he says that he has been study- ing the civil law in order to form "a better judgment of the politic order and customs used in our country" (Ibid. vol. viii., p. 80). 6. MAITLAND: THE RENAISSANCE 175 ious 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 advo- cating 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 law 14 and encouraged the study of another the civil 13 For a moderate defence of the Reception, see Windscheid, Pandek- tenrecht, ed. 7, vol. i., p. 23 ff. (10). Ihering appeals from Nation- ality to Universality (cosmopolitanism) ; Geist des romischen Rechts, ed. 5, vol. i., p. 12: "So lange die Wissenschaft sich nicht entschliesst, dem Gedanken der Nationalitat den der Universalitat als gleichberech- tigten zur Seite zu setzen, wird sie weder im Stande sein die Welt, in der sie selber lebt, zu begreifen, noch auch die geschehene Reception -des romischen Rechts wissenschaftlich zu rechtfertigen." The following sentences may, I believe, be taken as typical of much that has been written of late years. Brunner, Grundziige der deutschen Rechtsge- schichte, 1901, p. 231: " Allein was stets Tadel und Vorwurf hervorrufen wird, ist die Art, wie die Rezeption . . . durchgefiihrt wurde. Ein nationales Ungliick war jenes engherzige Ignorieren des deutschen Rechts, jenes geistlose und rein ausserliche Aufpfropfen romischer Rechtssatze auf einheimische Verhaltnisse, die Unkenntnis des Gegen- satzes zwischen diesen und dem romischen Rechte, welche taub machte gegen die Wahrheit, dass kein Volk rait der Seele eines anderen zu denken vermag." "Injunctions of 1535, Stat. Acad. Cantab, p. 134: " Quare volumus ut deinceps nulla legatur palam et publice lectio per academiam vestram totam in iure canonico sive pontificio nee aliquis cuiuscunque conditionis homo gradum aliquem in studio illius iuris pontificii suscipiat aut in eodem inposterum promoveatur quovis modo." See Mullinger, Hist. Univ. Camb. vol. i., p. 630; Cooper, Annals of Cambridge vol. i., p. 375; and for Oxford, Ellis, Original Letters, Ser. II., vol. ii., p. 60. In September 1535 Legh and Ap Ryce declare that the canon laws are " profligate out of this realm." (Letters and Papers, Henry VIII., vol. ix., p. 138.) Despite a doubt suggested by Stubbs (Seventeen Lectures, ed. 3, p. 368), I cannot believe that the slightest hint of a degree in canon law lurks at Cambridge in the title " Legum Doctor" (LL. D.) : not even "a shadowy presentment of the double honour." See E. C. Clark, Cambridge Legal Studies, 1888, pp. 56 ff., where that title is well explained. On the continent a settled usage contrasted the doctores legum and the doctores decretorum. See e. g. Stintzing, Geschichte der deutschen Rechtswissenschaft, vol. i., p. 25: "In Italien hatten die Legisten und Decretisten verschiedene Schulen gebildet. In Deutschland waren sie zwar zu einer Facultat vereinigt, bildeten jedoch lange Zeit zwei getrennte Abtheilungen, von denen jede ihre eigenen akademischen Grade ertheilte. Neben einander erscheinen die Doctores Legum und Doctores Decretorum, bis seit dem Anfang des 16. Jahrhunderts diese Scheidung schwindet und die Doctores utriusque iuris immer haufiger und endlich zur Regel werden." 176 // FROM THE 1100'S TO THE 1800'S J aw by the foundation of . prof essorships 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 qual- ified 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 cau- tious, 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 praise .vorthy zeal when he was appointed professor at Cambridge he journeyed to the foun- tain-head for his Roman law and his legal degree. 15 Also he' visited those French universities whence a new jurispru- dence 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 sci- ence the future that lay before it in an England fortu- nately ruled by a pious, wise, learned and munificent Prince. Then in Edward VI's day Thomas Smith as a Master of Re- quests was doing justice in a court whose procedure was de- scribed as being " altogether according to the process of sum- mary 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 Alto- u See Mr. Pollard's life of Smith in Diet. Nat. Biog. Some important facts, especially about his ordination, were revealed by J. G. Nichols, in Archaeologia, xxxviii. 98-127. "Smith says that when he first became a member of the senate at Cambridge he bought the Digest and Code and certain works of Alciatus, Zasius and Ferrarius. (See Mullinger, History of the University of Cambridge, vol. ii., p. 130.) Ferrarius is, I suppose, Arnaud Ferrier, the master of Cujas. Mr. Mullinger (p. 126) suggests that the Spaniard Ludovico Vives while resident at Oxford may have propagated dissat- isfaction with the traditional teaching of Roman law. "Select Cases in the Court of Requests (Selden Society), 1898, p. cxxiii. Mr. Leadam's introduction to this volume contains a great deal of new and valuable matter concerning this important court. The title of the " masters of requests " seems certainly to come hither from France. Just at this time there was a good deal of borrowing in these matters: witness the title of the "secretaries of state," which, it is said, spreads outwards from Spain to make the tour of the world. 6. M AIT LAND: THE RENAISSANCE 177 gether, 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, Ref- ormation 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 18 Of Smith's two orations there is a copy in Camb. Univ. Libr. Baker MSS. xxxvii. 294,' 414. Mr. Mullinger (Hist. Univ. Cambr., vol. ii., p. 127) has given an excellent summary. The following passage is that in which the Professor approaches the question whether in England there is a career open to the civilian. He has been saying that we ought not to study merely for the sake of riches. " Tamen si qui sint qui hoc requirant, sunt archiva Londini, sunt pontificia fora, forum est praefecti quoque classis, in quibus proclamare licet et vocem vendere; est scrip- tura; singuli pontifices cancellarios suos habent et officiates et com- missarios, qui propter civilis et pontificii iuris professionem in hunc locum accipiuntur." The orator proceeds to ask whether there is any youth who ungratefully thinks that proficiency in legal science will not find an adequate reward. " In quo regno aut in cuius regis imperio tarn stulta ilium opinio tenebit? In hoccine nobilissimi atque invictissimi nostri principis Henrici octavi regno, cuius magnificentia in bonas literas, studiumque in literatos, omnium omnis memoriae principum facta meritaque superavit, cuius ingentia in academias beneficia, licet nulla unquam tacebit posteritas, tamen omni celebratione mariora reperientur. Cum strenue laboraveris et periculum ingenii tui feceris, teque non lusisse operam sed dignum aliquo operae precio et honore ostenderis, cur dejices animum? Cur desperatione conflictabis? Cur de tanto fautore ingeniorum, tarn insigni bonae indolis exploratore, tarn potenti Rege, tarn munifico, tarn liberali et egregio amatore suorum demisse viliterque sentias ? " There follows much more flattery of the king as a patron of learning of every kind. " Iuris quidem civilis consulti facultas in hac republica cum ad multos usus pernecessaria est, turn a principe nostro nequaquam negligi aut levem haberi, vel hoc argumento esse potest, quod tarn amplo planeque regio stipendio et meam hie apud vos mediocritatem . et alium Oxonii disertum ac doctum virum ius hoc civile praelegere profiterique voluit." And the study of the civil law is the high road to diplomatic service. " Ius vero civile sic est commune ut cum ex Anglia discesseris, nobiles, ignobiles, docti, indocti, sacerdotes etiam ac monachi cum aliquod specimen eruditionis videri volunt exhibuisse, nihil fere aliud perstrepunt quam quod ex hoc iure civili et pontificio sit depromptum." The king has wisely employed civilians in his many legations. There follow com- pliments paid to Stephen Gardiner, Thomas Thirlby, William Paget, Thomas Wriothesley, and Thomas Legh. On the whole, the professor can hold out to his pupils the prospect of diplomatic employment, of masterships in the chancery ("sunt archiva Londini"), of practice in the ecclesiastical courts and the court of admiralty, and besides this they are to remember that the king is a great patron of learning. I do 178 //. FROM THE 1100'S TO THE 1800'S to find or to fashion links that will in some direct and obvi- ous 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 heresi- archal 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 not see any hint that knowledge of Roman law will help a man at the bar of the ordinary English courts. For more of the attempt to put new life into the study of Roman law at Cambridge, see Mullinger, op. cit., vol. ii., pp. 132 ff. Though Somerset desired to see a great civil law college which should be a nursery for diplomatists, the Edwardian or Protestant Reformation of the church was in one way very unfavourable to the study of the civil law. Bishoprics and deaneries were thenceforth reserved for divines, and thus what had been the prizes of his profession were placed beyond the jurist's reach. Dr. Nicholas Wotton (d. 1567), dean of Canterbury and York, may be regarded as one of the last specimens of an expiring race. Men who were not professionally learned, men like Sir Francis Bryan (d. 1550) and Sir Thomas Wyatt (d. 1542), had begun to compete with the doctors for diplomatic missions and appointments. Also the chancellorship of the realm had come within the ambition of the common lawyer, and (though Bishop Goodrich may be one instance to the con- trary) the policy which would commit the great seal to the hands of a prelate was the policy which would resist or reverse ecclesiastical innova- tions. Even the mastership of the rolls, which had been held by doctors, of Padua and Bologna, fell to the common lawyers. Thomas Hannibal, master of the rolls (1523-1527), must, one would think, have been an Italian, as were the king's Latin secretaries Andrea Ammonio and Pietro Vannes. "See Janssen, Geschichte des deutschen Volkes, vol. i., pp. 471-501, where the cry of " heathenry ! " is raised against the civil law. Janssen's attempt to praise the canon law as radically Germanic while blaming the " absolutistic " tendencies of the civil law seems strange. Was not the canon law, with its pope, qui omnia iura habet in scrinio pectoris sui, absolutistic enough? "Wyclif, Tractatus de officio regis, Wyclif Society, 1887, pp. 56, 193, 237, 250: "Leges regni Anglic excellunt leges imperiales cum sint pauce respectu earum, quia supra pauca principia relinquunt residuum epikerie [ = 'eirielKeia] sapientum. . . . Non credo quod plus viget in Romana civilitate subtilitas racionis sive iusticia quam in civilitate Anglicana. . . . Non pocius est homo clericus sive philosophus in quan- tum est doctor civilitatis Romane quam in quantum est iusticiarius iuris Anglican!. . . . Unde videtur quod si rex Anglic non permitteret canonistas vel civilistas ad hoc sustentari de suis elemosinis vel patri- monio crucifixi ut studeant tales leges . . . non dubium quin clerus foret utilior sibi et ad ecclesiasticam promocionem humilior ex noticia civilitatis proprie quam ex noticia civilitatis duplicis aliene." By " the patrimony of the crucified " Wyclif means ecclesiastical revenues, which 6. MA1TLAND: THE RENAISSANCE 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 some of the bishops have been using in the endowment of legal studies at the universities: e. g. Bishop Bateman at Cambridge. Wyclif, Select English Works, ed. Arnold, vol. iii., p. 326: "It were more profit bobe to body and soule bat oufe curatis lerneden and tau3ten many of be kyngis statutis, ban lawe of )>e emperour. For oure peple is bounden to be kyngis statutis and not to }>e emperours lawe, but in as moche as it is enclosid in Goddis hestis. panne moche tresour and moch tyme of many hundrid clerkis in unyversite and obhere placis is foule wastid aboute bookis of be emperours lawe and studie about hem. ... It seme)) bat curatis schulden rabere lerne and teche be kyngis statutis, and namely be Crete Chartre, ban be emperours lawe or myche part of the popis. For men in oure rewme ben bounden to obeche to be kyng and his rijtful lawes and not so to be emperours; and bei my^tten wonder wel be savyd, bou3 many lawes of be pope had nevere be spoken, in bis world ne be tobere." Wyclif, Unprinted English Works, Early English Text Society, 1880, p. 157: " pe tyue and twentibe errour: Jjei chesen newe lawis maad of synful men and worldly and couetyse prestis and clerkis . . . for now hebenne mennus lawis and world clerkis statutis ben red in vnyuersi- tees, and curatis lernen hem faste wib grete desire, studie and cost . . . Ibid. p. 184: . . . lawieris maken process bi sotilte and cauyllacions of lawe cyule, bat is moche he ene mennus lawe, and not accepten the forme of be gospel, as 3if be gospel were no so good as paynymes lawe." It is interesting to see Janssen's denunciation of Roman law as Pagan thus forestalled by the great heretic, in whose eyes the Decretals were but little, if at all, better than the Digest. , * For Antonio Agustin (born 1517, bishop of Alife 1556, bishop of Lerida 1561, archbishop of Tarragona 1576, died 1586) see Schulte, Oeschichte der Quellen und Literatur des canonischen Rechts, vol. iii., p. 723; Maasen, Oeschichte der Quellen des canonischen Rechts, vol. i., pp. xix ff. His stay in England is attested in the Venetian Calendars, 1555-6, pp. 20, 24, 32, 34, 56, 166. See also Ibid., 1556-7, p. 1335. See also the funeral oration by And. Schott suffixed to Ant. Augustini De emendatione Gratianv dialogorum libri duo, Par. 1607, p. 320: " lulius tertius P. M. . . . adeo Antonium dilexit ut et intimis consiliis adhi- buerit, legatumque summa cum auctoritate in Britanniam insulam opibus florentissimam miserit, cum Rex vere Catholicus Philippus secundus Mariam reginam, Catholicorum regum Ferdinandi et Isabellae neptem, duxit uxorem. . . . Anno 1555 revertit ex Anglia Romam Augustinus." Apparently he was sent, not merely in order that he might congratulate Philip and Mary, but also that " tanquam iurisconsultus legato adesset " 180 // FROM THE 1100'S TO THE 1800'S 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 Zasi 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 (Schulte, op. cit., p. 724). He is charged by modern historians with not having spoken plainly all that he knew about the origin of the Pseudo- Isidorian decretals. England may have contributed a little towards the explosion of the great forgery by means of books that were lent to the Magdeburg Centuriators by Queen Elizabeth and Abp. Parker. See Foreign Calendar, 1561-2, pp. 117-9. 22 See Mr. Pollard's life of Story in Diet. Nat. Biog. See also Dyer's Reports, f. 300. On his arraignment for high treason Story ineffectually pleaded that he had become a subject of the king of Spain. "See Stintzing, UJrick Zasius, pp. 216 ff. 14 Ranke, History of the Reformation in Germany (transl. Austin), vol. ii., pp. 97-8. 28 The Nihil hoc ad edictum praetoris! is currently ascribed to Cujas, but the ultimate authority for the story I do not know. See Brissaud, Histoire du droit franqais, p. 355: "La science la'ique ddclarait par la bouche d'un de ses plus grands reprsentants qu'elle n'tait plus Phumble servante de la theologie; elle affirmait sa secularisation." It seems that Cujas (" wie beinahe alle Rechtsgelehrten seiner Zeit").at first sided with the Reformers, but that he afterwards, at least outwardly, made his peace with the Catholic church (Spangenberg, Jacob Cujas und seine Zeitgenossen, Leipz. 1822, p. 162; Haag, La France protestante, ed. 2, vol. iv., col. 957-970). Doneau was a Calvinist; driven from France by Catholics and from Heidelberg by Lutherans, he went to Leyden and ultimately to Altdorf. Hotman was a Calvinist, intimately connected with the church of Geneva. Baudouin was compelled to leave France for Geneva, whence he went to Strassburg and Heidelberg; but he quar- relled with Calvin and was accused of changing his religion six times. Charles Du Moulin also had been an exile at Tubingen. It is said that after a Calvinistic stage he became a Lutheran; on his death-bed he returned to Catholicism: such at least was the tale told by Catholics. (See Brodeau, Le vie de Maistre Charles Du Molin, Paris, 1*654; Haag, La France protettante, ed. 2, vol. v., col. 783-789.) To say the least, he hdU been " ultra-gallican." (Schulte, Geschichte der Quell en det 6. M AIT LAND: THE RENAISSANCE 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. 28 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 canonischen Rechts, vol. iv., p. 251.) Of Le Douarin also it is said " il 6tait reformd de coeur" (La France protestante, ed. 2, vol. v., col. 508). " Die grosse Mehrzahl der hervorrogenden Juristen bekannte sich mit grosserer oder geringerer Entschiedenheit zur Partei der Hugenotten " (Stintzing, Oeschichte der deutschen Rechtswissenschaft, vol. i., p. 372). 28 Stintzing, Gesctiichte der deutschen Rechtswissenschaft, vol. i., p. 284. 27 Elizabeth's invitation to Hotman is mentioned in the Elogium of him prefixed to his Opera (1599), p. viii, and in Dareste's essay (p. 5). His son John spent some time at Oxford. In 1583 John tells his father that at Oxford he has plenty of time for study " quamvis hie miris modis frigeat iuris civilis studium et mea hac in re opera nemini grata possit es*se in Anglia" (Hotomanorum Epistolae, Amstd., 1620, p. 325). In 1584 John was consulted along with Alberigo Gentili by the English government in the Mendoza case (Holland, Albericus Oentilis, pp. 14, 15). There is nothing improbable in the story that Francis was offered a post at Oxford. He must have been well known to Cecil. In 1562 he was active in bringing Conde into touch with Elizabeth and so in promoting the expedition to Havre. Conde's envoy brought to Cecil a letter of introduction from Hotman (Foreign Calendar, 1561-2, p. 601). Baudouin also at this time was making himself useful to the English government. (See e.g. Foreign Calendar, 1558-9, p. 173; 1561-2, pp. 60, 367, 454, 481, 510.) It has been said that Queen Elizabeth spoke of Charles Du Moulin as her kinsman (Brodeau, Vie de C. Du Molin, p. 4). Whether in the pedigree of the Boleyns there is any ground for this story I do not know. See La France protestante, ed. 2, vol. v., col. 783. Sir Thomas Craig, who is an important figure in the history of Scotch law, sat at the feet of Baudouin, and Edward Henryson, who in 1566 became a lord of session, had been a professor at Bourges (Diet. Nat. Biog.). 28 The Epistre adressee au tygre de la France, a violent invective against the Cardinal of Lorraine, still finds admirers among students of French prose. Apparently Hotman would have been the last man to preach a Reception of Roman law in England. Being keenly alive to the faults of Justinian's books, he resisted the further romanization of French law, demanded a national code, admired the English limited monarchy, and by his Franco-Gallia made himself in some sort the ancestor of the " Germanists." Some of these "elegant" French jurists were so much imbued with the historical spirit that in their hands the study of Roman law became the study of an ancient history. The fol- lowing words cited and translated by Dareste from Baudouin (Fran- qois Hotman, p. 19) have a wonderfully modern sound: " Ceux qui ont etudie le droit auraient pu trouver dans 1'histoire la solution de bien des difficult^, et ceux qui ont 6crit 1'histoire auraient mieux fait d'etu- dier le developpement des lois et des institutions, que de s'attacher & passer en revue les armies, a decrire les camps, a raconter les batailles, a compter les morts." " Sine historia caecam esse iurisprudentiam, disait Baudouin" (Brissaud, Histoire du droit franqais, p. 349). 182 //. FROM THE 1100'S TO THE 1800'S 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. 80 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 " Coke, Introductory Letter to Part 10 of the Reports, and Preface to Coke upon Littleton (First Institute). The words of Hotman which moved Coke to wrath will be found in De verbis feudal ibus commen- tarius (F. Hotmani Opera, ed. 1599, vol. ii., p. 913) s. v. feodum. Hot- man remarks that the English use the word fee (longissime tamen a Langobardici iuris ratione et instituto) to signify "praedia omnia quae perpetuo iure tenentur." He then adds that Stephanus Pasquerius (the famous fitienne Pasquier) had given him Littleton's book: "ita incon- dite, absurde et inconcinne scriptum, ut facile appareat verissimum esse quod Polydorus Virgilius in Anglica Historia de iure Anglicano testatus est, stultitiam in eo libro cum malitia et calumniandi studio certare." To a foreign " feudist " Littleton's book would seem absurd enough, because in England the feudum had become the general form in which all land-ownership appeared. Brunner (Deutsche Rechtsge- schlchte, vol. ii., p. 11) puts this well: "Wo jedes Grundeigentum sich in Lehn verwandelt, wird das Lehn, wie die Entwicklung des englischen Rechtes zeigt, schliesslich zum Begriff des Grundeigentums." I have not found in Polydore Virgil's History anything about Little- ton. There is a passage however in lib. ix. (ed. Basil. 1556, p. 154) in which he denounces the unjust laws imposed by William the Conqueror and (so he says) still observed in his own day: " Non possum hoc loco non memorare rem tametsi omnibus notam, admiratione tamen longe dignissimam, atque dictu incredibilem : eiusmodi namque leges quae ab omnibus intelligi deberent, erant, ut etiam nunc sunt, Normanica lingua scriptae, quam neque Galli nee Angli recte callebant." Among the badges of Norman iniquity is trial by jury, which Polydore cannot find in the laws of Alfred. This Italian historiographer may well be speak- ing what was felt by many Englishmen in Henry VIII's day when he holds up to scorn and detestation " illud terribile duodecim virorum iudicium." Fisher and- More were tried by jury. 30 For Gentili see Holland, Inaugural Lecture, 1874, and Diet. Nat. Bioa. For his attack on canon law see De nuptiis, lib. i., c. 19. For his quarrel with the "elegant" Frenchmen, see De iurig interpretibus dialnt/i sex. The defenders of the new learning and the mos Oallicus, as it was called, threw at their adversaries the word " barbarian " ; the retort of the conservative upholders of the mos Italicus was "mere grammarian." By expelling such men as the Gentilis, Italy forfeited her pre-eminence in the world of legal study. Nevertheless it is said that both in France and Germany the practical Roman law of the courts 6. MAITLAND: THE RENAISSANCE 183 for a king who wished to be monarch in church as well as state: pleasanter reading than could be found in our an- cient 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 Con- stantinople. 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 con- troversy should be judged by the New Testament, the an- cient' fathers " and the godly approved laws of Justinian the was for a long time the law of the " Bartolist " tradition. Esmein (Histoire du droit franqais, ed. 2, p. 776) says: "Cujas exerca sur le developpement des theories de droit remain suivies en France une action beaucoup moins puissante que Du Moulin, et la filiation du romaniste Du Moulin n'est pas niable; par la forme comme par le fond, c'est le dernier des grands Bartolistes." 31 Thomas Starkey, when he was trying to win over Reginald Pole to Henry's side, wrote thus : " Thes thyngs I thynke schal be somewhat in your mynd confermyd by the redyng of Marsilius, whome I take, though he were in style rude, yet to be of grete iugement, and wel to set out thys mater, both by the authoryte of scripture and good reysonys groundyd in phylosophy, and of thys I pray you send me your iuge- ment." (Starkey's England, Early Engl. Text Soc. 1878, p. xxv.) Cha- puis (the imperial ambassador at Henry's court) to Charles V, 3 Jan. 1534 (Letters and Papers of Henry VIII., vol. vii., p. 6): "The little pamphlet composed by the Council, which I lately sent to your Majesty, is only a preamble and prologue of others more important which are now being printed. One is called Defensorium Pads, written in favour of the emperor Loys of Bavaria against apostolic authority. Formerly no one dared read it for fear of being burnt, but now it is translated into English so that all the people may see and understand it." William Marshall to Thomas Cromwell (Ibid., p. 178) : " Whereas you promised to lend me 20 towards the printing of Defensor Pads, which has been translated this twelve-month, but kept from the press for lack of money, in trust of your offer I have begun to print it. I have made an end or the Gift of Constantine and of Erasmus upon the Creed." The " Gift of Constantine " must be the famous treatise of Laurentius Valla. The translation of Marsilius appeared on 27 July, 1535 (Diet. Nat. Biog. s. n. William Marshall). In October twenty-four copies had been dis- tributed among the Carthusians in London (Letters and Papers, vol. ix., p. 171). In 1536 Marshall complained that the book had not sold, though it was the best book in English against the usurped power of the bishop of Rome (Ibid., vol. xi., p. 542). As to Byzantinism, if it be an accident it is a memorable accident that the strongest statement of King Henry's divinely instituted headship of the church occurs in a statute which enables unordained doctors of the civil (not canon) law to exercise that plenitude of ecclesiastical jurisdiction which God has committed to the king (Stat. 37 Hen. VIII., c. 17). 184 // FROM THE 1100'S TO THE 1800'S 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 doc- tors of law and took their fees in bishoprics and deaneries. 85 Certainly they were more conspicuous and probably they M Foreign Calendar, 1558-9, p. 8. This seems to mean that the normal nnd rightful relation of church to state is that which is to be discovered in Justinian's books. If so, " the Protestants of Scotland " soon after- wards changed their opinions under the teaching of Geneva and claimed for " the estate ecclesiastical " a truly medieval independence. "The following facts are taken from the Dictionary of National Biog- raphy. Cuthbert Tunstall (afterwards bishop of Durham) "gradu- ated LL. D. at Padua." Stephen Gardiner (afterwards bishop of Win- chester) of Trinity Hall, Cambridge, "proceeded doctor of the civil law in 1520 and of the canon law in the following year. ... In 1524 he was appointed one of Sir Robert Rede's lecturers in the University.'* Edmund Bonner of Broadgate Hall, Oxford, "in 1519 he took on two successive days (12 and 13 June) the degrees of bachelor of civil and of canon law. . . . On 12 July, 1525, he was admitted doctor of civil law." Thomas Thirlby (afterwards bishop of Ely) of Trinity Hall, Cambridge, "graduated bachelor of the civil law in 1521 . . . and pro- ceeded doctor of the civil law in 1528 and doctor of the .canon law in 1530." Richard Sampson (afterwards bishop of Lichfield) of Trinity Hall, Cambridge, " proceeded B. C. L. in 1505. Then he went for six years to Paris and Sens and returning proceeded D. C. L. in 1513.'* John Clerk (afterwards bishop of Bath and Wells, Master of the Rolls), " B. A. of Cambridge 1499 and M. A. 1502, studied law and received the doctor's degree at Bologna." Richard Layton (afterwards dean of York) "was educated at Cambridge, where he proceeded B. C. L. in 1522 and afterwards LL. D." Thomas Legh of King's College (?), Cambridge, " proceeded B. C. L. in 1527 and D. C. L. in 1531." Instances of legal degrees obtained in foreign universities are not very uncommon. John Taylor, Master of the Rolls in 1527, " graduated doctor of law at some foreign university, being incorporated at Cambridge in 1520 and at Oxford in 1522." James Denton, dean of Lichfield, proceeded B. A. in 1489 and M. A. in 1492 at Cambridge. " He subsequently studied canon law at Valencia in which faculty he became a doctor of the university there." (For an earlier instance, that of Thomas Alcock of Bologna, see Grace Book A, Luard Memorial, p. 209. There are other instances in Boase, Register of the University of Oxford; consult index under Padua, Bologna, Paris, Orleans, Bourges, Louvain.) That wonderful divorce cause, which shook the world, created a large demand for the sort of knowledge that the university-bred jurist was supposed to possess, especially as a great effort was made to obtain from foreign doctors and universities opinions favourable to the king. The famous Cambridge " Grecian " Richard Croke was employed in ransacking Italian libraries for the works of Greek theologians and in taking counsel with Hebrew rabbis. ' In Italy, France and Spain, as well as in England, almost every canonist of distinction, from the cele- brated Philip Decius downwards, must have made a little money out of that law suit, for the emperor also wanted opinions. 6. M AIT 'LAND: THE RENAISSANCE 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 barris- ters 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 con- tent 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." ' 5 The little treatise on the Commonwealth of England which 34 See the remarkable paper printed in Calendar of Inner Temple Records, vol. L, p. 470; also Mr. Inderwick's preface pp. 1 ff. In 1570 Lincoln's Inn had not been exacting the oath of supremacy: Black Book, vol. i., pp. 369-372. See also the lives of Edmund Plowden, William Rastell and Anthony Browne (the judge) in Diet. Nat. Bioa.: and for Browne see also Spanish Calendar, 1558-67, pp. 369, 640. 35 Smith, Commonwealth of England, ed. 1601, p. 147: "I haue de- clared summarily as it were in a chart or map, or as Aristotle termeth it 'ws 'ev Tfary the forme and maner of gouernment of England, and the policy thereof, and set before your eyes the principall points wherin it doth differ from the policy or gouernment at this time vsed in France, Italy, Spaine, Germanic, and all other Countries, which doe follow the ciuill law of the Romaines, compiled by lustinian into his pandects and code: not in that sort as Plato made his commonwealth, or Xeno- phon his kingdome of Persia, nor as Sir Thomas More his Vtopia, beeing fained commonwealths, such as neuer was nor neuer shall be, vaine imaginations, phantasies of Philosophers to occupie the time, and to exercise their wits: but so as England standeth, & is gouerned at this day the xxviij. of March, Anno 1565, in the vij. yeare of the raigne and administration thereof by the most vertuous & noble Queene Eliza- beth, daughter to King Henry the eight, and in the one and fiftieth yeare of mine age, when I was Ambassadour for her Maiestie, in the Court of Fraunce, the Scepter whereof at that time the noble Prince and of great hope Charles Maximilian did holde, hauing then raigned foure yeares." 186 //. FROM THE 1100'S TO THE 1800' S he wrote at Toulouse in 1565 a remarkable feat, for he had no English books at hand 36 became a classic in the next century, and certainly did not underrate those tradi- tional, 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 threat- ened. 37 "Smith to Haddon, 6 Ap. 1565, in G. Haddoni Orationes, Lond. 1567, pp. 302-7 : " nostrarum legum ne unum quidem librum mecum attuli hie nee habebam Sure eonsultos quos consulerem." He has been telling how he wrote The Commonwealth of England. " From the time of Bracton to the present day Englishmen have often allowed themselves phrases which exaggerate the practical prevalence of Roman law on the continent of Europe. Smith, for instance, who had been in many parts of northern France and was a learned and observant man, must have known that (to use Voltaire's phrase) he often changed law when he changed horses and that the Estates General had lately been demanding a unification of the divergent customs (Vi- ollet, Histoire du droit civil franqais, p. 202; Planiol, Droit civil, 1900, vol. i., p. 16). Germans, who know what an attempt to administer Roman law really means, habitually speak of French law as distinctively un-Roman. Thus Rudolph Sohm (Frankisches Recht und romisches Recht, Weimar, 1880, p. 76) : " die Gesetzbiicher Napoleons I. zeigen, dass noch heute wenigstens das Privatrecht und Processrecht Frank- reichs ein Abkommling nicht des romischen, noch des italienischen, sondern des frankischen Rechtes ist." So Planiol (op. cit., vol. i., p. 26): " Deux courants se sont trouves en presence lors de 1'unincation du droit francais: 1'esprit. romain et les traditions coutumieres. Ce sont ces dernieres qui 1'ont emport6. Le Code a etc redig a Paris, en plein pays coutumier; les conseillers d'fitat appartenaient en majority aux pro- vinces septentrionales ; le parlement de Paris avait eu dans 1'ancien droit un role preponderant. II n'y a done rien d'etonnant a voir 1'esprit des coutumes predominer dans le Code; le contraire cut etc un non-sens historique." Until the other day it was, I believe, a common remark that the large part of Germany which stood under the French code either in a translated or untranslated form and this part contained about one-sixth of the Empire's population was the part of Germany in which the law was least Roman and most Germanic. The division of France into two great districts was not equal: before the acquisition of Elsass from Germany "les pays de droit ecrit comprenaient a peine les deux cinquiemes de la France" (Planiol, op. cit., vol. i., p. 11): See the usful map in Brissaud, Histoire du droit francais, p. 152. Even in the south there was much customary law. A famous sentence in the eustumal of Bordeaux placed " the written law " below " natural reason" (Viollet, op. cit., p. 150). Still it is not to be denied that a slow process of romanization very different from the catastrophic Reception in Germany went on steadily for some five or six centuries ; and a system which as a whole seems very un-Roman to a student of what became " the common' law " of Germany may rightly seem Roman 6\ MAITLAND: THE RENAISSANCE 187 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 with- out 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 Qbscurorwm Viro- rum there is nothing better than the report which tells how one of Sir Robert Rede's successors was assaulted by a pris- oner " que puis son condemnation ject un brickbat a le dit justice que narrowly mist." 40 It is as instructive as it is to an Englishman. Francis Bacon knew that France could not be compendiously described as a country governed by the "civil law. In his speech on the Union of Laws (Spedding, Life and Letters, vol. iii., p. 337) he accurately distinguishes " Gascoigne, Languedock, Provence, Dolphinie " which are " governed by the letter or text of the civil law " from "the Isle of France, Tourayne, Berry, Anjou and the rest, and most of all Brittain and Normandy," which are " governed by customs which amount unto a municipal law, and use the civil law but only for grounds and to decide new and rare cases." English readers should at least know the doctrine, strongly advocated in modern Germany, that the private law which was developed in England by a French- speaking court was just one more French coutume; Sohm, Frankisches Recht und romisches Recht, p. 69: "Die Vorgeschichte des englischen Rechts von heute hat nicht in England, sondern in Nordfrankreich ihre Heimath . . . Stolz kann die Lex Salica auf die zahlreichen und mach- tigen Rechte blicken, welche sie erzeugt hat." 38 Blackstone, Commentaries, vol. iii., p. 149; J. H[oddesdon], Tho. Mori Vita, Lond. 1652, p. 26. "Smith, Commonwealth, ed. 1601, p. 141: " irithernnm ... is in plaine Dutch and in our olde Saxon language icyther nempt." 40 Pollock, First Book of Jurisprudence, p. 283, from Dyer's Reports, 188 b, in the notes added in ed. 1688: " Richardson, ch. Just, de C. Bane, al Assises at Salisbury in Summer 1631. fuit assault per prisoner la condemne pur felony que puis son condemnation ject un Brickbat 188 //. FROM THE 1100'S TO THE 1800' S surprising that this jargon should have been written in a country where Frenchmen had long been regarded as hered- itary foes. This prepares us for the remark that taught law is tough law. But when " Dunce " had been set in Bo- cardo (and it was a doctor of the civil law who set him there 41 ), 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 parlia- ment 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 a le dit Justice que narrowly mist, & pur ceo immediately fuit indict- ment drawn per Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatment hange in presence de Court." In France the Ordonnance of Villers-Cotterets (1539) decreed that the judgments of the French courts should be recorded no longer in Latin but in French. " L'utilit6 de cette innovation . . . se comprend assez d'elle-meme. On dit qu'un motif d'une autre nature, 1'interet des belles-lettres, ne contribua pas moins a y decider le roi [Francois I], cheque du latin barbare qu'employaient les tribunaux. tin arret rendu en ces termes: Dicta curia debotavit et debotat dictum Colinum de sua demanda, fut, dit on, ce qui entraina la suppression du latin judiciaire." Henri Martin, Histoire de France, vol viii., pp. 272-3; see also Christie, fitienne Dolet, ed. 2, p. 424. 41 Ellis, Original Letters, Ser. II., vol. ii., p. 61, Dr. Layton to Crom- well : " We have sett Dunce in Bocardo and have utterly banished him Oxforde for ever, with all his blynd glosses, and is now made a common servant to evere man, fast nailecle up upon posts in all common howses of easement." "Stat. 31 Hen. VIII., cap. 8. Already in 1535 Cromwell reports with joy an opinion obtained from the judges to the effect that in a certain event the king might issue a proclamation which would be "as effective as any statute" (Lettert and Papers, Henry VIII., vol. viii., p. 411). 6. M AIT LAND: THE RENAISSANCE 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 formal- ism, do the romanizing work that was done in Germany by the Imperial Chamber Court, the Reichskammergerichtf 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 43 The story (with which we are familiar in England) of the evolution of various councils and courts from an ancient Curia Regis seems to have a close parallel in French history: so close that imitation on one side or the other may at times be suspected. After the parlement with its various chambers (which answer to our courts of common law) has been established, the royal council interferes with judicial matters in divers ways, and sections of the council become tribunals which compete with the parlement. (See e.g. Esmein, Histoire du droit fran^ais, ed. 2, pp. 469 ff., and the pedigree of courts and councils in Lavisse et Rambaud, Histoire gen&rale, vol. iv., p. 143; also the pedigree in N. Valois, Le conseil du roi (1888), p. 11; and Brissaud, Histoire du droit franqais, pp. 816 ff.) In Germany the doctors of civil law made their way first into councils and then into courts. " Die fremdrechtlich ge- schulten Juristen wurden in Deutschland anfanglich nur in Verwal- tungssachen verwendet. Zur Rechtsprechung gelangten sie dadurch, dass die Verwaltung diese an sich zog, und zwar zuerst am Hofe des Konigs" (Brunner, Grundzuge der deutschen Rechtsgeschichte, 1901, p. 227). In the England of Henry VIII's day there seems no little danger that die fremdrechtlich geschulten Juristen, of whom there are a good many in the king's service, will gain the upper hand in the new courts that have emerged from the council, and will proceed from Verwaltung to Rechtsprechung. There came a time when Dr. Tunstall (who got his law at Padua) was presiding over the Council of the North and Dr. Roland Lee over the Council of the Marches. In 1538 Dr. Lee, who was endeavouring to bring Wales to order, said in a letter to Cromwell, "If we should do nothing but as the common law will, these things so far out of order will never be redressed " (Diet. Nat. Biog., vol. xxxii., p. 375). In 1534 there was a project for the erection of yet another new court. See Letters and Papers, Henry VIII., vol. vii., p. 603: "Draft act of parliament for the more rigid enforcement of previous statutes, appointing a new court, to consist of six discreet . men, of whom three at least shall be outer barristers in the Inns of Court, who shall be called justices or conservators of the common weal and sit together in the White Hall at Westminster or elsewhere, with power to discuss all matters relating to the common weal and to call before them all persons who have violated any act of parliament made since the begin- ning of Henry VIII.'s reign." If only three of these judges need be barristers, what are the rest to be? " Acts of the Parliament of Scotland, vol. ii., p. 335. 190 //. FROM THE 1100'S TO THE 1800'S 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 Di- vinity, 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 for- ward in the good work ; he denounced the barbarism of English law and (to use Bentham's word) its incognoscibil- ity. 46 The new ecclesiastical code, as is generally known, "See the two papers that are printed uy Waterhous, Fortescutus Reftitutus, 1663, pp. 539, 543. In one of these Thomas Denton, Nicholas Bacon and Robert Gary are answering an inquiry addressed to them by Henry VIII touching the plan of legal education pursued in the Inns of Court. In this there are some phrases that tell of the revival of learning. The writers thank Almighty God for giving them a king " endued and adorned himself with all kindes and sortes of good learn- ing as well divine as prophane " and one who " purposeth to set forward and as it were to revive the study and perfect knowledge thereof [i. e. of good learning], of long time detested and almost trodden under foot." They remark also that many good and gentle wits have perished " chiefly for that most of them in their tender years, indifferent to receive both good and bad, were so rooted and seasoned, as it were, in barbarous authors, very enemies to good learning, that hard it was, yea almost impossible, to reduce them to goodness." The other paper contains a project for the king's College of Law submitted by the same three writers. This looks like an attempt to obtain a royally endowed school of English law, and it is curious to observe that, not English, but good French is to take the place of bad French. " The inner barristers shall plead in Latine, and the other barristers reason in French; and either of them shall do what they can to banish the corruption of both tongues." One learned in French is " to teach the true pronuntiation of the French tongue." One of excellent knowledge in the Latin and Greek tongues is to read " some orator or book of rhetoric, or else some other author which treateth of the government of a commonwealth, openly to all the company." Students of this college are to be sent abroad to accompany ambassa- dors, and two students are to act as historiographers of the realm. Nothing is said of the civil law. On the whole, this seems to be a conservative proposal emanating from English barristers for bettering the education of the common lawyer, and thus rendering unnecessary such a Reception as Pole had proposed. We do not know that it represents Henry's thoughts. It was " a civil law college " that Somerset wished to establish at Cambridge by a fusion of Trinity Hall and Clare. (See MulHnger, Hist. Univ. Camb., vol. ii., pp. 134-137.) ** Bucerus, De regno Christi, lib. ii., cap. 56 (Scripta Anglica, Basil. 1577, p. 148) : " Passim enim queri bonos viros audio, leges- regni huius decorum [corr. de rerum] proprietatibus et commutationibus, de succes- sionibus in bonis atque aliis huius generis civilibus contractibus et com- merciis, esse perobscuras atque implicatas: adeoque etiam lingua per- scriptas quadam obsoleta ut a nemine queant intelligi, qui non et earn 6. M AIT LAND: THE RENAISSANCE 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 liv- ing 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. linguam didicerit et earum legum intelligentiam multo fuerit studio assecutus: indeque fieri ut plerique eorum qui eas leges aliquo modo habent cognitas, iurisque magis quam iusticiae sunt consulti, his ipsis legibus abutantur pro hominum decipulis retibusque pecuniarum. Quo regni non tolerando incommodo permotum aiunt praestantissimum prin- cipem S. M. T. patrem ut corrigendis, elucidandisque his legibus certos pridem homines deputarit. Cum autem isti legum designati instaura- tores, vel mole operis a*Bsterriti, vel aliis impediti abstractique negociis, huic malo adhuc nullum attulerint remedium, abusioque et perversio legum indies magis invalescere dicatur, eo certe id erit S. M. T. et maturius et pertinacius elaborandum quo leges illae quam rectissime ac planissime extent explicatae . . . Quid autem interest nullae existant leges, aut quae existunt sint civibus ignoratae?" Butzer, as this treatise shows, had some knowledge of the civil law, at least in the matter of divorce. He seems to think that a code for England might be so simple an affair that it could be put into rhyme and be sung by children. (See Mullinger, Hist. Univ. Camb., vol. ii., p. 238.) 47 Cardwell, The Reformation of the Ecclesiastical Laws, Oxf.' 1850. See p. xxvi, where Foxe the martyrologist (1571) testifies to the beauty of Haddon's Latin, and then says: " Atque equidem lubens optarim, si quid votis meis proficerem, ut consimili exemplo, nee dissimili etiam oratione ac stylo, prosiliat nunc aliquis, qui in vernaculis nostris legibus perpoliendis idem efficiat, quod in ecclesiasticis istis praestitit clarissimae memoriae his Haddonus." On the question as to the intended fate of heretics (including both Roman Catholics and Lutherans) under the Reformatio Legum, see Hallam, Const. Hist., ed. 1832, vol. i., p. 139; Maitland, Canon Law in England, p. 178. ^Commines attributes to Louis XI. (circ. an. 1479) a project of re- ducing to uniformity all the customs of France. Francis Bacon more than once, when urging his schemes of law reform, referred to Louis's abortive project (Spedding, Life and Letters, vi. 66; vii. 362). Com- mines's story is not rejected by modern historians of French law. The official redaction of the various " general customs " (customs of prov- inces) was commanded in 1453 by the ordinance of Montils-les-Tours. Little, however, was done in this matter until the reigns of Charles VIII and Louis XII. Many customs were redacted about the year 1510: that of Orleans in 1509 ; that of Paris in 1510. This might be described as a measure of codification: "elle fit, des coutumes, de veritables lots tcrites" or, as we might say, statute law. (Esmein, Histoire du droit franqais, 746 ff . ; Viollet, Histoire du droit franqais, 142 ff . ; Planiol, 192 //. FROM THE 1100'S TO THE 1800'S ' 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 Droit civil, i. 12, 16). Then the Estates General at Orleans in 1560 in effect demanded a general code: "Nous voulons une foy, une loy, un roy" said the prolocutor of the clergy. (Dareste, Hotman, p. 20.) Both Du Moulin and Hotman recommended codification and appar- ently thought that the task would not be difficult. (Viollet, op. cit., p. 209; Dareste, op. cit., p. 21.) Then as to Germany: "An die Klagen liber die Verwirrung, in welche das Recht durch die scho- lastische Wissenschaft gerathen ist, knupft sich seit dem Anfange des 16. Jahrhunderts regelmassig das Verlangen, der Kaiser moge als ein neuer Justinian das gemeine Recht des Reichs zur Einfachheit und Klarheit gesetzlich reformiren Das Verlangen nach einer Codi- fication des gemeinen Rechts zieht sich durch das ganze 16. Jahrhundert." (Stintzing, Oeschichte der deutschen Rechtswissenschaft, vol. i., pp. 58-9.) In 1532 after a prolonged effort the Empire actually came by a criminal code, the so-called Carolina (Constitutio Carolina Criminalis; die peinliche Halsgerichtsordnung Karls V.), but its operation was con- fined by a clause which sanctioned the ever increasing particularism of the various states by saving their ancient customs. (Ibid., pp. 621 ff.) Within some of these states or " territories " there was in the sixteenth century a good deal of comprehensive legislation, amounting in some cases to the publication of what we might call codes. A Landrecht (to be contrasted with Reichsrecht) was issued by the prince. His leg- islative action was not always hampered by any assembly of Estates; he des.ired uniformity within his territory; and the jurists who fash- ioned his law-book were free to romanize as much as they pleased. The Wiirtemberg Landrecht of 1555 issued by Duke Christopher, a prince well known to Queen Elizabeth, is one of the chief instances (Stintzing, op. cit., vol. i., pp. 537 ff.; Schroder, Deutsche Rechtsgeschichte, ed. 3, pp. 886 ff.). The transmission of the cry for codification from Hotman to Leibnitz, and then to the enlightened monarchy of the eighteenth century is traced by Baron, Franz Hotmans Antitribonian, Bern, 1888. In Scotland also the Regent Morton (d. 1581) entertained a project of codification. A commission was appointed to prepare a uniform and compendious order of the laws. It seems to be a question among Scotch lawyers how far the book known as Balfour's Practicks repre- sents the work of the commissioners. See Diet. Nat. Biog., vol. xv., p. 317; vol. iii., p. 53. 48 The cessation of the Year Books in 1535 at the moment when the Henrician Terror is at its height is dramatically appropriate. A great deal, however, has yet to be done before the relevant facts will be fully known. Mr. C. C. Soule's Year-Book Bibliography, printed in Harvard Law Review, vol. xiv., p. 557, is of high importance. If by "the Year Books " we mean a series of books that have been printed, then the Year Books become intermittent some time before they cease. The first eleven years of Henry VIII are unrepresented, and there are gaps between years 14 and 18 and between 19 and 26. It remains to be seen whether there are MSS. more complete than the printed series. Then 6. M AIT LAND: THE RENAISSANCE 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 we have on our hands the question raised by what Plowden says in the Preface to his Commentaries touching the existence of official reporters. Plowden says that he began to study the law in 30 Hen. VIII, and that he had heard say that in ancient times there were four reporters paid by the king. His words make it clear that the official reporters, if they ever existed, came to an end some considerable time before 30 Hen. VIII. The question whether they ever existed cannot be raised here. Mr. Pike's investigations have not, so I think, tended to bear out the tale that Plowden had heard; and if the king paid stipends to the reporters, some proof of this should be forthcoming among the financial records. The evidence of Francis Bacon is of later date and looks like a mere repetition of what Plowden said (Bacon, Amendment of the Law; Spedding, Life and Letters, vol. v., t p. 86). But, be all this as it may, the fact seems clear that the ancient prac- tice of law reporting passed through a grave crisis in the sixteenth cen- tury. We know the reign of Edward IV and even that of Edward II better than we know that of Edward VI. The zeal with which Tottell from 1553 onwards was printing old reports makes the dearth of mod- ern reports the more apparent. Then Plowden expressly says that he reported " for my private instruction only," and Dyer's Reports (which comprise some cases too early to have been reported by him) were posthumously published. The total mass of matter from the first half of the century that we obtain under the names of Broke, Benloe, Dali- son, Keilwey, Moore and Anderson is by no means large, and in many cases its quality will not bear comparison with that of the Year Books of Edward IV. (J. W. Wallace, The Reporters, ed. 4, Boston, 1882, is an invaluable guide; see also V. V. Veeder, The English Reports, in Harvard Law Review, vol. 'xv., p. 1.) 60 Burke, Report from Committee appointed to inspect the Lords' Journals : " To give j udgment privately is to put an end to reports ; and to put an end to reports is to put an end to the law of England." "Acts of the Privy Council, 1547-1550, pp. 48-50. Petition of divers students of the common laws to the Lord Protector and the Privy Coun- cil: " Pleasith it your honorable Lordships to call to your remembrance that whereas the Imperial Crowne of this realme of Inglande and the hole estate of the same have been alwayes from the beginning a Reame Imperial, having a lawe of itself called the Commen Lawes of the realme of Inglande, by which Lawe the Kinges of the same have as Imperial Governours thereof ruled and governed the people and subjectes in suche sorte as the like thereof hath nat been seen in any other. . . . So it is, if it like your good Lordships, that now of late this Commen Lawes of this realme, partely by Injunctions, aswel before verdictes, jugementes and execucions as after, and partly by writtes of Sub Pena issuing owte of the Kinges Courte of Chauncery, hath nat been only stayed of their directe course, but also many times altrid and violated by reason of Decrees made in the saide Courte of Chauncery, most grounded upon the lawe civile and apon matter depending in the conscience and discrecion of the hearers thereof, who being Civilians 194 //. FROM THE 1100'S TO THE 1800'S 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 and nat lerned in the Comen Lawes, setting aside the saide Coromen Lawes, determyne the waighty causes of this realme according either to the saide Lawe Civile or to their owrie conscience; which Lawe Civile is to the subjectes of this realme unknowne, and they nat bounden ne inheritable to the same lawe, and which Jugementes and Decrees grownded apon conscience ar nat grounded ne made apon any rule certeine or lawe written. . . . And for a more amplyfyeng and inlarging of the jurisdiction of the saide Courte of Chauncery and derogacion of the saide Comen Lawes there is of late a Commission made contrary to the saide Commen Lawes unto certaine persones, the more part whereof be Civilians nat learned in the saide Lawes of this realme, autorising them to heare and determyne all matters and cawses ex- hibited into the saide Courte of Chauncery, by occasion whereof the matters there do daily more and more increase, insomuch as very fewe matters be now depending at the Comen Lawes. . . . And by reason thereof there hath of late growne such a discourage unto the studentes of the saide Commen Lawes, and the saide Commen Lawes have been of "late so little estemed and had in experience, that fewe have or do regarde to take paynes of the profownde and sincere knolege of the same Lawe, by reason whereof there ar now very few, and it is to be doubted that within fewe yeares there shall nat be sufficient of lerned men within this realme to serve the king in that facultie. It therfore may please- your honorable Lordships to make suche speady reforma- cion in the premisses as unto your Lordships shall seem moste mete and convenient." This petition led to the disgrace and punishment of the chancellor, the Earl of Southampton (Wriothesley), for having issued a commission without warrant and without consulting his fellow-executors of King Henry's will. With Somerset's motives for thrusting Southampton aside we are not concerned. (See Pollard, England under the Pro- tector Somerset, pp. 31-33.) That he had any desire to protect the common lawyers we must not assume; but the petition itself deserves attention. The commissioners to whom Southampton had delegated judicial powers were Robert Southwell (master of the rolls), John Tregonwell, John Oliver, and Anthony Bellasyse (masters of chancery). Tregonwell, Oliver and Bellasyse were all doctors of the civil law (Diet. Nat. Biog.). In 1536 during the Pilgrimage of Grace one of the demands of the catholic insurgents was " that the common laws may have place as was used at the beginning of the reign and that no injunctions be granted unless the matter has been determined in chancery." This comes at the end of a long reactionary programme, which desires the restoration of the monasteries, of the papal supremacy and so forth: also the repeal of the statute "That no man shall not will his lands" [Statute of Uses]. The heretical bishops [Cranmer and his like] are to be burnt; Cromwell is " to have condign punishment." Also " a man is to be saved by his book," i. e. there is to be no infringement of the benefit of clergy. The heresies to be suppressed are those of " Luther, Wyclif, Husse, Malangton, Elicampadus [Oecolampadius], Bucerus, Confessa Germaniae [Augsburg Confession], Apolugia Malanctons, the works of Tyndall, of Barnys, of Marshall, Raskell [Rastell, the printer of law books], Seynt Germayne [author of Doctor and Student] and such other here- sies of Anibaptist." As I understand the protest against injunctions, 6. MAITLAND: THE RENAISSANCE 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 conserv- ative 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 doc tores iuris who coun- selled 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 it means that the chancery may interfere with an action at common law, only if that action is opening a question already decided in the chancery. It will be seen that in 1536 the cause of " the common laws " finds itself in very queer company: illiterate, monkish and papistical company, which apparently has made a man of " Anibaptist." ( For this important manifesto, see Letters and Papers, Henry VIII., vol. xi., pp. 506-507.) 62 Stow, Annals, ed. 1615, p. 631: "This yeere (1557) in Michaelmas terme men might have scene in Westminster hall at the Kinges bench barre not two men of law before the iustices; there was but one named Fostar, who looked about and had nothing to doe, the iudges looking about them. In the common place [Court of Common Pleas] no moe sergeants but one, which was sergeant Bouloise [Bendlowes?], who looked about him, there was elbow roome enough, which made the law- yers complaine of their iniuries in that terme." In 1536 John Rastell the lawyer and printer of law books complains to Cromwell that in both capacities he is in a bad way: he used to print from two to three hundred reams every year but now prints not a hundred reams in two years; he used to make forty marks a year by the law and now does not make forty shillings (Ellis, Original Letters, Ser. III., vol. ii., p. 309). On such stories as these little stress is laid; but until the judicial records of the Tudor reigns are statistically examined, scraps of in- formation may be useful. 63 For an instance see the examination of a servant of the Abbot of Sawley by Drs. Layton, Legh and Petre (Letters and Papers, Henry VIII., vol. xii., pt. 1, p. 231). 84 As to the evil done to the peasants in Germany by the Reception of Roman law, see Egelhaaf, Deutsche Geschichte (Zeitalter der Refor- mation), vol. i., pp. 544 If.; Lamprecht, Deutsche Geschichte, vol. v., pp. 196 //. FROM THE 1100'S TO THE 1800'S many differences between England and Germany, between England and France, between England and Scotland. 55 Let 99 ff. Dr. Brunner (Orundziige der deutschen Rechtsgeschichte, 1901, p. 216) has lately said that Roman jurisprudence " auch wenn sie nicht geradezu bauernfeindlich war, doch kein Verstandnis besass fur die Mannigfaltigkeit der bauerlichen Besitzformen des deutschen Rechtes." One of the revolutionary programmes proposed an exclusion of all doc- tors of civil or canon law from the courts and councils of the princes. See Egelhaaf, op. cit., pp. 499, 598. The following is a pretty little tale: "So geschah es wirklich einmal zu Frauenfeld im Thurgau, wo die Schoffen einen Doctor aus Constanz, der sich fur die Entscheidung eines Erbschaftsstreites auf Bartolus und Baldus berufen wollte, zur Thiire hinauswarfen mit den Worten: ' Hort ihr, Doctor, wir Eidge- nossen fragen nicht nach dem Bartele und Baldele. Wir haben sonder- bare Landbrauche und Rechte. Naus mit euch, Doctor, naus mit euch ! ' Und habe, heisst es in dem Berichte weiter, der gute Doctor miissen abtreten, und sie Amtleute haben sich einer Urtel verglichen, den Doc- tor wieder eingefordert und ein Urtel geben wider den Bartele und Baldele und wider den Doctor von Constanz." (Janssen, Qeschichte des deutschen Volkes, vol. i., p. 490.) It is a serious question what would have become of our English copyholders if in the sixteenth century Roman law had been received. The practical jurisprudence of this age seems to have been kinder to the French than to the German peasant; perhaps because it was less Roman in France than in Germany. See E. Levasseur in Lavisse et Rambaud, Histoire generale, vol. iv., p. 188: "Des jurisconsultes commence rent a considerer 1'infeodation comme une alienation et le colon censitaire comme le veritable proprietaire de la terre sur laquelle le seigneur n'aurait possede" qu'un droit eminent." The true Romanist, I take it, can know but one dominium, and is likely to give that one to the lord. 88 As regards Germany, the theoretical continuance of the Roman empire is not to be forgotten, but its influence on the practical Recep- tion of Roman law may be overrated. In the age of the Reception Roman law came to the aid, not of imperialism, but of particularism. Then it is true that English law was inoculated in the thirteenth cen- tury when Bracton copied from Azo of Bologna. The effect of this is well stated by Dr. Brunner in the inaugural address delivered by him as rector of the University of Berlin (Der Antheil des deutschen Rechtes an der Entwicklung der Universitdten, Berlin, 1896, p. 15): "In England und Frankreich, wo die Aufnahme romischer Rechtsge- danken friiher erfolgte, hat diese nach Art' einer prophylactischen Im- pfung gewirkt und das mit ihnen gesattigte nationale Recht widerstands- fahig gemacht gegen zerstorende Infectionen." As to the Roman law in Bracton, I may be allowed to refer to Bracton and Azo, Selden Society, 1895: in the introduction to that volume I have ventured to controvert some sentences that were written by Sir H. Maine. Bracton became important for a second time in the sixteenth century when (1569) his book was printed, for it helped Coke to arrange his ideas, as any one may see who looks at the margin of Coke's books. The medieval chancery has often been accused of romanizing. Its procedure was suggested by a summary procedure that had been devised by decre- tists and legists: the general aim of that scheme was the utmost sim- plicity and rapidity. (Contrast this summary procedure as revealed by Select Cases in Chancery, ed. Baildon, and 'Select Cases in the Court of Requests, ed. Leadam, with the solemn procedure of the civil law exemplified by Select Cases in the Court of Admiralty, ed. Marsden: 6. MAITLAND: THE RENAISSANCE 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 con- ceded, 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 theol- ogy. 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 these three books are published by the Selden Society.) On the other hand, no proof has been given that in the middle age the chancery introduced any substantive law of Roman origin. At a later time when it began to steal work (suits for legacies and the like) from the ecclesiastical courts, it naturally borrowed the rules by which those matters had theretofore been governed. A full history of the Reception in Scotland seems to be a desideratum. But see Goudy, Fate of Roman Law (Inaugural Lecture), 1894; also J. M. Irvine, Roman Law in Green's Encyclopcedia of the Law of Scot- land. Whether at any time the Reception in Scotland ran the length that it ran in Germany may be doubted; but the influence exercised by English example since 1603 would deserve the historian's consideration. Even if this influence went no further than the establishment of the habit of finding " authority " in decided cases, it would be of great importance. Where such a habit is established in practice and sanctioned by theory, any return to the pure text, such as that which was preached in Germany by " the historical school," would be impossible. Also it may be suggested that the Roman law which played upon the law of Scotland in the seventeenth and eighteenth centuries was not always very Roman, but was strongly dashed with " Natural Law." For in- stance, if in Scotland the firm of partners is a "legal person," this is not due to the influence of Roman law as it is now understood by famous expositors, or as it was understood in the middle ages. Also (to take another example) it seems impossible to get the Scotch " trust " out of Roman law by any fair process. The suggestion that it is " a contract made up of the two nominate contracts of deposit and man- date " seems a desperate effort to romanize what is not Roman. 198 //. FROM THE 1100'S TO THE 1800'S that Archbishop Lanfranc 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. 66 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 ob- tained admission into the French universities. 57 It was 1709 before Georg Beyer, a pandectist at Wittenberg, set a prec- edent for lectures on German law in a German university. 58 "Fertile, Storia del diritto italiano, ed. 2, vol. ii. (2), p. 69: " Laonde pu6 dirsi che 1' abrogazione definitive ed espressa della legislazione longobardica nel regno di Napoli non abbia avuto luogo se non al principle del nostro secolo, sotto Giuseppe- Bonaparte, al momento in cui vennero publicati cola i codici francesi." On p. 65 will be found some of the opprobrious phrases that the civilians applied to Lombard law: "nee meretur ius Lombardorum lex appellari sed faex": "non sine ratione dominus Andreas de Isernia vocat leges illas ius asininum." 87 Esmein, Histoire du droit francais, ed. 2, p. 757: " C'est seulement en 1679 que 1'enseignement du droit francais recut une place bien modeste dans les universit6s." Viollet, Histoire du droit civil franqais, p. 217: "Lorsqu'en 1679, Louis XIV. e>igea a la facult6 de Paris une chaire de droit francais et une chaire de droit romain, le premier pro- fesseur de droit francais, Fr. de Launay, commenta les Institutes de Loisel, qui prirent ainsi une situation quasi-officielle a cotd des Insti- tutes de Justinien." Brissaud, Histoire du droit francais, p. 237: " Le latin avait ele j usque-la la langue de 1'ecole. Le premier professeur en droit francais a Paris, de Launay, fit son cours en langue francais." "Siegel, Deutsche Rechtsgeschichte, ed. 3, p. 152: "Den ersten und zugleich entscheidenden Schritt in dieser Richtung that Georg Beyer, welcher . . . zunachst durch einen Zufall veranlasst wurde, and der Wit- tenberger Universitat, wohin er als Pandektist berufen worden war, 1707 eine Vorlesung liber das ius germanicum anzukiindigen und zu halten." 6. M AIT LAND: THE RENAISSANCE 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 89 Thayer, The Teaching of English Law at Universities in Harvard- Law Review, vol. ix., p. 171: " Blackstone's example was immediately followed here. ... In 1779 ... a chair of law wa*s founded in Virginia at William and Mary College . . . and in the same year Isaac Royall of Massachusetts, then a resident in London, made his will, giving prop- erty to Harvard College for establishing there that professorship of law which still bears his name." The Royall professorship was actually founded in 1815 (Officers and Graduates of Harvard, 1900, p. 24). At Cambridge (England) the Downing professorship was founded in 1800. 60 See Records of the Honorable Society of Lincoln's Inn, 1896 ff. ; Calendar of the Records of the Inner Temple, 1896. The records of Gray's Inn are, so I understand, to be published. See also Philip A. Smith, History of Education for the English Bar, 1860; Joseph Walton, Early History of Legal Studies in England, 1900, read at a meeting of the American Bar Association in 1899. In foreign countries there were gilds or fraternities of lawyers. Thus in Paris the avocats and procureurs about the middle of the fourteenth century formed a fra- ternity of St. Nicholas: " dont le chef porte le baton ou banniere (de la le nom de batonnier) ": Brissaud, Histoire du droit franqais, p. 898. But, though a certain care for the education of apprentices was a nat- ural function of the medieval craft-gild, I cannot find that elsewhere than in England fraternities of legal practitioners took upon themselves to educate students and to give what in effect were degrees, and degrees which admitted to practice in the courts. R. Delachenal, Histoire des avocats au parlement de Paris (Paris, 1885), says that, though not proved, it is probable that already in the fourteenth and fifteenth cen- turies the avocat had to be either \\cenc\e en lois or licencie en decret: in other words, a legal degree given by an university was necessary for the intending practitioner. As regards the England of the same age two interesting questions might be asked. Was there any. considerable number of doctors or bachelors of law who were not clergymen? Had the English judge or the English barrister usually been at an univer- sity? I am inclined to think that a negative answer should be given to the first question and perhaps to the second also. Apparently Little- ton (to take one example) is not claimed by Oxford or Cambridge. 200 //. FROM THE 1100'S TO THE 1800'S 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 lec- tured, 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 distin- guished 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 hi 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. 01 His heart was in the right place: in a school "Smith, Inaugural Oration, MS. Baker, xxxvii. 409 (Camb. Univ. Lib.): "... At vero nostrates, et Londinenses iurisconsulti, quibuscum disputare, cum ruri sim et extra academiam, non illibenter soleo, qui barbaras tantum et semigallicas nostras leges inspexerint, homines ab omnibus suis humanioribus disciplinis et hac academiae nostrae instruc- tione semotissimi, etiam cum quid e philosophia, theologiave depromp- tum in quaestione ponatur, Deus bone! quam apte, quamque explicate singula resumunt, quanta cum facilitate et copia, quantaque cum gratia et venustate, vel confirmant sua, vel refellunt aliena! Certe nee dialec- ticae vim multum in eis desideres, nee eloquentiae splendorem. Eorum oratio est Anglicana quidem, sed non sordida, non inquinata, non trivi- 6. M AIT 'LAND: THE RENAISSANCE 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 Renais- sance of our own: or a gothic revival if you please. The alls, gravis nonnunquam et copiosa, saepe urbana et faceta, non de- stituta similitudinum et exemplorum copia, lenis et aequabilis, et pleno velut alveo fluens, nusquam impedita. Quae res tantam mihi eorum hominum admirationem concitavit, ut aliquandiu vehementer optarim, secessionem aliquam ab ista academia facere et Londinum concedere, ut eos in suis ipsis scholis ac circulis disputantes audirem, quod an sim facturus aliquando, cum feriae longae, et quasi solenne iusticium, nostris praelectionibus indicatur, baud equidem pro certo affirmaverim." 82 Soule, Year Book Bibliography, in Harvard Law Review, vol. xiv., p. 564: "In 1553 the field of Year-Book publication was entered by Richard Tottell, who for thirty-eight years occupied it so fully as to admit no rival. There are about 225 known editions of separate Years or groups of Years which bear his imprint or can be surely attributed to his press. . . . He is pre-eminently the publisher of Year Books, and he so completely put them " in print " and so cheapened their price that he evidently made them a popular and profitable literature." In 1550 an English lawyer's library of printed books might appar- ently have comprised (besides some Statutes and Year Books) Little- ton's Tenures, The Old Tenures, Statham's Abridgement, Fitzherbert's Abridgement, Liber Intrationum, The Old Natura Brevium, perhaps a Registrum Brevium (if that book, printed in 1531, was published be- fore 1553), Institutions or principal grounds, etc. [1544], Carta feodi simplicis, [Phaer's] New book of presidentes, Diversite de courts, Novae Narrationes, Articuli ad novas narrationes, Modus tenendi curiam baronis, Modus tenendi unum hundredum, Fitzherbert's Justice of the Peace, Perkins's Profitable Book, Britton, Doctor and Student. A great part of what was put into print was of medieval origin and had been current in manuscript. In 1600 the following might have been added: Glanvill, Bracton, Fitzherbert's Natura Brevium, Broke's Abridgement, Broke's New Cases, Rastell's Entries, Staundford's Prerogative and Pleas of the Crown, Crompton's Justice of the Peace, Crompton's Au- thority of Courts, West's Symbolaeography, TheloalPs Digest, Smith's Commonwealth, Lambard's Archaionomia and Eirenarcha, Fulbecke's Direction or Preparative to the Study of the Law [1600], Plowden's Commentaries, Dyer's Reports and the first volume of Coke's Reports [1600]. This represents a great advance. Already Fulbecke in his curious book (which was reprinted as still useful in 1829) attempts a review of English legal literature: a critical estimate of Dyer, Plowden, Staundford, Perkins and other writers. Lambard's revelation of the Anglo-Saxon laws was not unimportant, for a basis was thus laid for national boasts; and, but for the publication of Glanvill, Bracton and Britton, the work that was done by Coke would have been impossible. Were any books about Roman law printed in England before 1600, except a few of Gentili's? 202 //. FROM THE 1100'S TO THE 1800'S 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 chan- cellors of the realm, these law lecturers, had Tnore 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 "See Mr. Leadam's Introduction to Select Pleas in the Court of Requests (Seld. Soc.) and Diet. Nat. Biog. s. n. Caesar, Sir Julius. "See Gardiner, Hist. England, 1603-1642, vol. ii., pp. 66-68; E. C. Clark, Cambridge Legal Studies, pp. 74-75. Cowell's Institutiones (less known than the Interpreter) are an attempt, " in the main very able," so Dr. Clark says, to bring English materials under Roman rubrics. It is a book which might have played a part in a Reception; but it came too late. 6. MAITLAND: THE RENAISSANCE 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 Justin- ian'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 " fjjom 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 65 There can now be few, if any, countries outside the British Empire in which a rule of law is enforced because it is (or is deemed to be) a rule of Roman law. See Galliers v. Ry croft [1901] A. C. 130, for a recent discussion before the Judicial Committee (on an appeal from Natal) of the import of a passage in the Digest. Are there many lands in which so much respect would be paid by a tribunal and for prac- tical purposes to a response of Papinian's? I think not. 86 Macdonald, Select Charters, 1899, p. 1: "The first draft of the charter . . . was probably drawn by Sir John Popham . . . but the final form was the work of Sir Edward Coke, attorney general, and Sir John Dodderidge, solicitor general." 87 Doyle, The English in America, vol. i., p. 211: "On the 30th of July, 1619, the first Assembly met in the little church at Jamestown. A full report of its proceedings still exists in the English Record Office (Colonial Papers, July 30, 1619)." An abstract is printed in Calendar of State Papers, Colonial, 1574-1660, p. 22. 88 Charter of Maryland, 1632, Macdonald, Select Charters, p. 53. In 1620 the grant to the Council of New England (Ibid., p. 23) referred to the manor of East Greenwich and reserved by way of rent a fifth part of the ore of gold and silver. The grant of Carolina (Ibid., p. 121) reserved a rent of twenty marks and a fourth of the ore. The grant of New Netherlands to the duke of York (Ibid., p. 136) reserved a rent of forty beaver skins, if demanded. The grant of Pennsylvania to Will- iam Penn speaks of the Castle of Windsor and reserves two beaver skins and a fifth of the gold and silver ore (Ibid., p. 185). Georgia was holden -as of the honour of Hampton Court in the county of Middlesex at a rent of four shillings for every hundred acres that should be settled (Ibid., p. 242). 204 //. FROM THE 1100'S TO THE 1800'S 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 Charter of 1669 printed among Charters granted to the East India Company (no date or publisher's rtfeme) : " to be holden of us, our heirs and successors as of the manor of East Greenwich in the county of Kent, in free and common soccage and not in capite nor by knight's service, yielding and paying therefor to us, our heirs and successors at the Custom House, London, the rent or sum of ten pounds of lawful money of England in gold on the thirtieth day of September yearly for ever." 70 Charter of 1670 incorporating the Hudson's Bay Company, printed by Deckles Wilson, The Great Company, vol. ii., pp. 318, 327: "yielding and paying yearly to us ... two elks and two black beavers, whenso- ever and as often as we our heirs and successors shall happen to enter into the said countries, territories and regions hereby granted." " Thayer, The Teaching of English Law at Universities in Harvard Law Review, vol. ix., p. 170: "'I retired to a country village,' Chan- cellor Kent tells us in speaking of the breaking up of Yale College by the war, where he was a student in 1779, 'and, finding Blackstone's Commentaries, I read the four volumes. . . . The work inspired me at the age of fifteen with awe, and I fondly determined to be a lawyer.' . . . ' There is abundant evidence,' if we may rely upon the authority of Dr. Hammond, whose language I quote, ' of the immediate absorp- tion of nearly twenty-five hundred copies of the Commentaries in the thirteen colonies before the Declaration of Independence.' " "Thayer, John Marshall, 1901, p. 6: "When Marshall was about eighteen years old he began to study Blackstone. . . . He seems to have found a copy of Blackstone in his father's house. . . . Just now the first American edition was out (Philadelphia, 1771-2), in which the list of subscribers, headed by the name of ' John Adams, barrister at law, Boston,' and also that of ' Captain Thomas Marshall, Clerk of Dun- more County.'" "It may be interesting to notice that in 1856, and perhaps even in 1871, Sir H. Maine believed that the Code of Louisiana ("of all republications of Roman law the one which appears to us the clearest, the fullest, the most philosophical and the best adapted to the exigen- cies of modern society") had a grand destiny before it in the United States. " Now it is this code, and not the Common Law of England which the newest American States are taking for the substratum of their laws. . . . The Roman law is, therefore, fast becoming the lingua franca of universal jurisprudence." (Maine, Roman Law and Legal Education, 1856, reprinted in Village Communities, ed. 3, pp. 360-1.) ' Nowadays this hope or fear of a Reception of Roman law in the United States seems, so I am given to understand, quite unfounded. See e. g. 6. MAITLAND: THE RENAISSANCE 205 A hundred legislatures little more or less are now building on that foundation: on the rock that was not sub- merged. 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 Com- monwealth, 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 West- minster 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 law- yers 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 J. F. Dillon, Laws and Jurisprudence of England and America, 1894, p. 155: "the common law [in distinctiop from the Roman or civil law] is the basis of the laws of every State and Territory of the Union, with comparatively unimportant and gradually waning exceptions." 74 Ihering, Der Kampf urn's Recht, ed. 10, pp. 45, 69: " Ich habe bereits oben das Beispiel de's kampflustigen Englanders angefuhrt, und ich kann hier nur wiederholen, was ich dort gesagt: in dem Gulden, um den er hartnackig streitet, steckt die politische Entwicklung Eng- lands. Einem Volke, bei dem es allgemeine Uebung ist, dass Jeder auch im Kleinen und Kleinsten sein Recht tapfer behauptet, wird Niemand wagen, das Hochste, was es hat, zu entreissen, und es ist daher kein Zufall, dass dasselbe Volk des Alterthums, welches im In- nern die hochste politische Entwicklung und nach Aussen hin die grosste Kraftentfaltung aufzuweisen hat, das romische, zugleich das ausgebildetste Privatrecht besass." 75 Thus in particular Queensland in 1899 enacted a criminal code of 707 sections. See Journal of the Society of Comparative Legislation, New Ser., vol. vi., pp. 555-560: "The precedents utilised in framing the Code were the [in England abortive] draft English codes of 1879 and 1880, the Italian Penal Code of 1888, and the Penal Code of the State of New York." See also Ilbert, Legislative Methods, p. 155. 206 // FROM THE 1100' S TO THE 1800'S 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. 70 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 78 Some information in English about the new German code will be found in articles by Mr. E. Schuster, Law Quarterly Review, vol. xii., p. 17, and Journal of the Society of Comparative Legislation, Old Series, vol. i., p. 191. Despite the careful exclusion of almost all words derived from the Latin (except Hypothek, which happens to be Greek), the new law book may look Roman to an Englishman; but then it does not look Roman to Gennans. The following sentences are taken from a speech delivered in the Reichstag (Mugdan, Materialien zum biiraer- lichen Oesetzbuch, vol. i., pp. 876-7) : " In dieser Beziehung ist vor Allem der Vorwurf gegen den Entwurf erhoben, er enthalte materiell kein deutsches Recht. . . . Selten ist ein Vorwurf unbegriindeter gewe- sen. . . . Das Sachenrecht ist von A bis Z durchaus deutsches Recht. . . . Was dann den Begriff des Besitzes betrifft, von der ganzen romischen Besitztheorie ist nichts ubrig geblieben. . . . Der allgemeine Theil des Obligationenrechtes ist natiirlich romischen Ursprunges. . . . Kommen wir aber zu den einzelnen speziellen Rechtsgeschaften, so treffen wir auch da sofort wieder deutsches Recht. . . . Auch das Familienrecht ist durchaus deutschrechtlich. . . . Dann ist das Erbrecht durch und durch deutschrechtlichen Ursprunges. ..." The supposition that codifica- tion means romanization is baseless; it may mean deromanization. But the great lesson to be learnt by Englishmen from the German Code is that a democratically elected assembly, which is for many purposes divided into bitterly contending fractions, can be induced to show a wonderful forbearance when uniformity of law is to be attained. "Molinaeus (Charles Du Moulin), Oratio de concordia et unione consuetudinum Franciae, in Opera (1681), vol. ii., p. 691: " Mihi quoque videtur nihil aptius, nihil efficacius ad plures nrovincias sub eodem imperio retinendas et fovendas, nee fortius nee honestius vinculum quam communio et conformitas eorundem morum legumve utilium et aequa- bilium." 6. MAITLAND: THE RENAISSANCE 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 78 The name of Harvard is here mentioned without prejudice to the just claims of any other American university; but the Harvard Law Review, edited by a committee of students, is a journal of which any school might be proud. 7. ROMAN LAW INFLUENCE IN CHANCERY, CHURCH COURTS, ADMIRALTY, AND LAW MERCHANT 1. Roman Law in Coke SIB E. COKE in his Institutes, (themselves Roman in name), takes a decided position as to the authority of the Civil law. He says : " Our common laws are aptly and prop- erly called the laws of England, because they are appropri- ated to this kingdom of England . . . and have no depend- ency upon any forreine law whatever, no, not upon the Civil or Canon law other than in cases allowed by the Laws of England . . . therefore foreign precedents are not to be objected against us, because we are not subject to foreign laws " 3 and again " it is worthy of consideration how the laws of England are not derived from any foreign law, either canon or civil or other, but a special law appropriated to this kingdom." 4 And in a side-note he remarks : " Nota differen- tiam . . . inter malum in se against the Common law, and malum prohibitum by the Civil or Canon law, whereof the judges of the Common law in these cases take no notice" 5 Sir Edward Coke indeed had not a high opinion of the Civil 1 These extracts are taken from a treatise on " The Influence of the Roman Law on the Law of England," Part II, cc. VI, X, XI, XII, XIII, XIV, and Conclusion (1885, Cambridge, University Press, being the Yorke Prize Essay for 1884). 2 B. A. Trinity 'College (Cambridge) 1881; M. A. London University; four times Yorke Prize Essayist; LL. B. Cambridge; Barrister of the Middle Temple 1882; at one time Professor of Constitutional Law and History in University College, London. Other Publications: Law of Copyright, 1883; Law of Charter Parties and Bills of Lading, 1886; Merchant Shipping Act, 1894. 'Coke, ii. 98. Mil. 100. B iii. 153. 208 7. SCRUTTON: ROMAN LAW INFLUENCE 209 law. In his Prooemium to the Second Institute, he observes: " Upon the text of the Civil law there be so many glosses and interpretations, and again upon those so many commentaries, and all these written by doctors of equal degree and authority, and therein so many diversities of opinion as they do rather increase than resolve doubts and uncertainties, and the pro- fessors of that noble science say that it is like a sea of waves ; " and with this he contrasts the certainty of the Common law ; " Statio bene fida perltls." This opinion does not hinder him from occasionally re- ferring to the Civil law, though not with great accuracy. He comments with approval on Littleton's statement that the English law is contrary to the Civil law in which partus sequltur ventrem, saying, " true it is, for by that law " (stating the law), " both of which cases are contrarie to the Law of England." He makes the curious assertion that, " in prohibiting the lineal ascent in inheritance, the Common law is assisted with the law of the Twelve Tables," 2 which seems entirely inaccurate. He notes the differences in the laws as to guardianship, already alluded to, 3 and says that the law of England is contrary to the Civil law, which " est quasi agnum lupo committere ad devorandum; " yet he cites the very rule of the Civil law, " qui sentlt commodum debet et onus sentire," in support of the position that the owners of private chapels should repair them. 4 Lord Macclesfield strongly disapproved of the English rule, deeming it " to have prevailed in barbarous times, and a cruel and barbarous presumption." 5 Coke cites very largely from Bracton, and some of the passages are those directly derived from Roman sources ; 6 as far as I can find, he only expressly refers to the Corpus l i. 122, b, 123. i. 11, a. 8 i. 88, b. Blackstone, i. 461. 4 Coke, ii. 489. 6 2 P. Wms. 264, 9 Mod. 142. Hargreaves' notes, 63. e.g. Bracton's Roman def. of -actio (Coke, ii. 39, Br. 98, b) ; the division of actions into real, personal, mixed (C. ii. 21, 286; Br. f. 101, b) ; on monsters (C. i. 7, b; Br. f. 5); de ventro inspiciendo (C. i. 8, b; Br. ff. 69-71); on treasure trove (C. iii. 132; Br. f. 10, 119, b) ; also cf. C. i. 36, a. with Br. ff. 33, b, 34. 210 // FROM THE 1100'S TO THE 1800'S Juris twice. * The rule as to the half-blood, which has been attributed to a misunderstanding of the Civil law, he treats as settled. 2 He states rather curiously and inaccurately that coparcenery was called in the ancient books of law " familia herciscunda," 8 which was a tenure ; and compares the Com- mon Civil and Canon laws on kinship, saying, " thus much of the Civil and Canon laws is necessary to the knowledge of the Common law on this point." He of course notices the discrepancy between the Common law and the " laws of Holy Church, or Canon law," as to legitimation by subsequent mar- riage. Speaking of banishment he remarks, " if the husband by act of Parliament have judgment to be exiled for a time, which some call a relegation, that is no civil death ; " 4 this is clearly the Roman " relegatio " or exile, which involved no loss of status. He refers to the agreement of the Civil and Common laws in forbidding distress on beasts of the plough, 5 and cites Seneca as to their agreement in the punishment of rape. He uses the phraseology of peremptory and dilatory exceptions, 6 though bargain and sale, (in the Institutes a consensual contract), is described as a real one. 7 The respite of a pregnant woman under sentence till she is delivered, for which Bracton had cited Roman law, is restated, 8 but some of "Bracton's Roman incorporations are not so fortunate, as where Coke says " We remember not that we have read in any book of the legitimation or adoption of an heir, but only in Bracton, 9 and that to little purpose." Coke ascribes the in- troduction of the rack to the Civil law, 10 as the rack or brake allowed in many cases by the Civil law, whereas all tor- tures and torments of parties accused were directly against the Common law of England." n In his Fourth Institute Coke states to what extent the Civil I C. ii. 658: Dig. 48, 19, 18, where he misquotes meretur for patitur: the quotation is characteristically used to resist a claim of jurisdiction by the Ecclesiastical Courts. Coke also says of the Regiam Majestatem, "so called because it beginneth a* Justinian's Institutes do, with these words," which is incorrect, as the words are Imperatoriam Majestatem. *C. i. 14, a, 191, a. note. 8 C. i. 164, b. 4 C. i. 133, a. 6 C. ii. 132. C. ii. 426. 'C. ii. 672. 8 C. iii. 17. Br. f. 63, b. 10 C. iii. 35, cf. Step. Hist. C. L. i. 222. II Cf. also, C. i. 41, a; Br. f. 311. C. i. 47, b. on traditio. C. i. 55, a, on possessio precaria. C. ii. 198, 441, on liability of heirs. C. ii. 591, on ultimum suppJicium, cf. Dig. 48, 19. C. ii. 391; melior est conditio 7. SCKUTTON: ROMAN LAW INFLUENCE 211 and Canon law had force in England. It is the lex et con- suetudo parliamenti, he says, that all weighty matters in Parliament be determined by the course of the Parliament, and " not by the Civil law, nor yet by the Common laws of this realm." The Court of Admiralty is always spoken of as " proceeding according to the Civil Law," 2 though Coke gives no reasons for such a procedure. The Court of Chivalry before the Constable and Marshal " proceeds ac- cording to the customs and usages of that Court, and, in cases omitted, according to the Civil law, secundum leges armorum." 3 In a case as to ambassadors, the Committee of the Privy Council heard the "counsel learned in the Civil and Common laws ; " * and Coke says of one of their decisions " and this also agreeth with the Civil law." 4 As to the Ecclesiastical Courts, " which proceed not by the rules of the Common Law," Coke writes with some acerbity, " that the King's laws of this realm do bound the jurisdiction of Ecclesi- astical Courts." 6 The Convocation proceed according to " legem divinam et canones strictae ecclesiae" the ecclesias- tical courts generally by " the laws of Christ." 6 As to the authority of this law in England, Coke is very decided : " all canons and constitutions made against the laws of the realm are made void : " " all canons which are against the preroga- tive of the king, the Common law, or custom of the realm are of no force." 7 I have only noticed two cases in which the English Common law, as stated by Coke, appears to have been modified by the Civil law otherwise than through Bracton. These are, first, the law as to discontinuance, 8 or the alienation made by possidentis. C. ii. 360, 573, et Br. passim " nihil est tarn conveniens naturali aequitati unumquodque dissolvi eo ligamine, quo llgatum est." C. iii. 2, Crimen laesae majestatis. C. iii. 168, Crimen falsi. Coke also cites Bracton's definition of theft. 1 C. iv. 14. * C. iv. 134: Duck, ii. 8, 3, 24. * C. iv. 125; Hargreaves' note to i. 74, a, b. Duck, ii. 8, 3, 12-22. " Causas ex Jure Civili Romanorum et consuetndinibus armorum et non ex Jure Municipali Anglorum esse dijudicandas." * C. iv. 153. 5 C. iv. 321, 322. 6 C. ii. 487: cf. Duck, ii. 8, 3, 26, et seq. De his omnibus in hoc foro jus dicitur ex Jure Civili, cui porro accessit Jus Canonicum. Ex quibus omnibus constituitur Lex quam nostrates appellant Ecclesiasticam . . . Lex Civile in hoc foro Lex terrae appellatur. ' C. ii. 647, 652. 8 C. i. 325, a; i. 272. 212 //. FROM THE 1100'S TO THE 1800'S tenant en autre droit, by which the remainderman is driven to an action; the rules as to this bear some analogy to the civilian doctrines of usurpatio possessionis, and Coke himself in one place uses the term " usurpations " in connexion with discontinuances. 1 Secondly, the Roman law as to collatio bonorum, 2 by which emancipated children, wishing to share in intestacy, must bring their property into the stock to be divided, seems to have suggested the custom of London as to " hotchpot," and part of the subsequent Statute of Distribu- tions, 3 and Coke expressly says, " this is that in effect which the civilians call collatio bonorum." 4 A study of Coke's Institutes suggests that the Common lawyers of the time expressly repudiated the Civil law as an authority in the King's courts, or even as the parent of the existing Common law. Coke occasionally notes the agreement or disagreement of the two laws, but with such inaccuracy as to show that his own knowledge of the Civil law was slight. The working out of an Equitable Jurisdiction, and the deci- sions of the Ecclesiastical and Admiralty Courts were build- ing up systems largely of Civilian origin ; but in the Common law, the influence of Roman law has rather retrograded than advanced since the time of Bracton. . . . Summary of Roman Law in Text-writers We have thus dealt with the position with regard to the Roman Law occupied by leading text-writers and authorities from the time of Bracton. Glanvil is comparatively free from any Roman influence. Bracton has incorporated into his book substantial portions of Roman matter, which are repro- duced by Fleta, and in a less intelligent way by Britton. These Roman incorporations are cited without comment by Staunford, and are used by Cowell to show the similarity of the two laws. Coke also cites them, without any allusion to their Roman character, while he claims no authority in the realm for the Roman Law and is indeed a vigorous advocate 1 C. ii. 272. * Dig. 37, 6. Cod. 6, 20. Hunter, R. L. p. 663. 22 and 23 Car. II. c. 10 5. C. i. 177, a. 7. SCRUTTON: ROMAN LAW INFLUENCE 213 of the supremacy of the Courts of Common Law. Hale clearly states the relative position of Common, Civil, and Canon Laws, defining the limits of the two latter, and the source of their authority. Lastly Blackstone, following Hale, recognizes the Roman origin of parts of our Law, in- cluding the passages in Bracton, and while he recognizes it, adopts them. Perception of the Roman elements in Bracton leads to a discussion as to his authority in the law, which results in his being generally accepted as binding, if no contrary decisions or customs can be produced. And while the English Courts recognize no authority in the Roman Law, as such, they are yet ready to listen to citations from it in all cases where Eng- lish authorities cannot be found in point, or where the prin- ciples of the English and Roman Laws appear to be similar. Thus in Acton v. Blundell (1843), 1 where the question was as to rights in a subterranean water course, the Digest was fully cited and commented on by counsel, Maule, J. interven- ing with the remark, " it appears to me that what Marcellus says is against you." Tindal, C. J., in delivering judgment, said " The Roman Law forms no rule binding in itself upon the subjects of these realms ; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion to which we have come, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe. The authority of one at least of the learned Roman lawyers ap- pears decisive upon the point in favour of the defendants." The authority of Roman Law in the Common Law Courts cannot be put higher than this, or be better expressed than in these words. 2. Roman Law in the Chancery While the judges of the Common Law Courts after the fourteenth century recognized no authority in the Civil Law, M2 M. and W. 324, 353; see Warren's Law Studies, 732, note, for an account of the inner history of the case by one of the counsel engaged. 214 //. FROM THE 1100'S TO THE 1800'S and .the English people were led by the financial exactions of the Papal Court, and the controversies of the Reformation, to regard with suspicion and dislike everything savouring of Rome, three important courts in the kingdom were largely influenced by the Civil Law, if their procedure was not en- tirely derived from it. These were the Court of Chancery, the Court of Admiralty, and the Ecclesiastical Courts. 1 The Court of the Constable and Marshal also proceeded according to the Civil Law : 2 " causas ex jure civili Romanorum et con- suetudinibus armorum, et non ex jure municipali Anglorum esse dijudicandas," and Duck also states that the Universities of Oxford and Cambridge proceeded according to the civil law : " dijudicant per jus civile et secundum juris civilis for- mam." 3 But these latter are of small importance. The Court of Chancery originates in the position of the king as the fountain of justice. 4 To him petitions were ad- dressed by suppliants who conceived themselves wronged by the Common Law, or who found no remedy for the injury they complained of. Difficult and novel points arising in the Common Law Courts were also reserved by the judges for the consideration of the king in Council. As the Chancellor was always in attendance on the king, the petitions for royal grace and favour were entrusted to him, first for custody, and ulti- mately for hearing. Under Edward III. the Chancellor's tri- bunal assumed a definite and separate character, and petitions for grace began to be directly addressed to him instead of coming indirectly into his hands. From 1358, such transac- tions were recognized as his proper province, and the power- ful and complicated machinery of his Equitable Jurisdiction began to grow. There were reasons why its growth should be on Roman lines. Several lay Chancellors had been appointed in the reign of Edward III., probably in consequence of the petition of the Parliament that, as ecclesiastics were not amenable to the laws, only lay persons might in future be appointed Chancellor. 6 But every Chancellor from 1380 to 1488 was a 1 Sub. C. xii. Eccl. Courts; C. xiii. Admiralty Courts. * Duck, ii. 8, 3, 12, 22. 8 Duck, ii. 8, 3, 30. 4 Stubbs, i. 60S, 604 note. ii. 268. Spence, i. 340. R. Parning, 1341. Thorpe, Knivet, 1372. 7. SCRUTTON: ROMAN LAW INFLUENCE 215 clerk ; until the end of Wolsey's Chancellorship in 1530 only a few lay holders of the office are found, and up to that year 160 Ecclesiastics had held the office. 1 In this clerical prepon- derance, the advantages of the Civil law, familiar to the Chancellors by their early training, and as the system in use in the ecclesiastical Courts, are obvious. But the laws of Rome had a further foothold in the Chancery. There were 12, afterwards 6, Clerks de prima forma 2 and Masters of the Chancery, who " are assistants in the Court to show what is the Equity of the Civil law, and what is Conscience." 3 Down to the time of Lord Bacon some of the Masters learned in the Civil law sat upon the Bench with the Chancellor to advise him, if necessary. The author of the " Treatise on the Masters " states that " the greater part have always been chosen men skilful in the Civil and Canon laws," in order that the decisions of the Chancellor may accord with " Equity, jus gentium, and the laws of other nations," seeing that a number of matters came before the Chancellor " which were to be expedited not in course of common law, but in course of civil or canon law." 4 And though the Chancellors became laymen and decided without reference to the Masters, their system was still largely clerical and Roman. Under Charles I. it was ordered that half the masters in Chancery should always be Civil lawyers, and that no others should serve the king as Masters of Request. Duck, 5 writing in 1678 says: " Judicia apud Anglos, in Curiis quae non ex mero jure Anglicano, sed ex aequo et bono exercentur, cum jure civili Romanorum plurimum conveniunt; quarum suprema Canc\ellaria prima est. . . . Cancellarii au~ tern feres omnes fuerunt Episcopi aut Clerici, plerumque legum Romanarum periti usque ad Henricum VIII. quo D. 1 Spence, i. 340-7, 356 note. * Apparently a term of Roman origin. (Hargreaves, Law Tractt (1787), p. 296.) The conferring of the office by placing a cap on the head is compared by the author of this Tract, (probably a master in Chancery, writing about 1600), to the conferring of the freedom of a Roman city by putting on a cap, or to " capping " a doctor at the Universities (p. 294). But the custom is not traced to these sources, as Spence says, i. 360. * Sir T. Smith, Commonwealth of England, ed. 1663, p. 121. Spence, i. 360, note. * Hargreaves, pp. 309, 313. 6 ii. 8, 3; 10-11. 216 //. FROM THE 1100'S TO THE 1800'S Richius primus juris Municipalis Apprentices Cancellarii munus obtinuit: post quern etiam alias episcopos juris Romani peritos, sed plerosque juris municipalis consultos, reges nostri ad hoc munus admoverunt. In hac etiam curia assessores seu Magistri plerumque fuerunt juris Civiles Doctores, et Clericos hujus Curiae antiquitus habuisse eximiam juris civilis scientiam, clarissimum est ex libro Registri Brevium Origi- nalium. . . . In Curia etiam . . . fere omncs fuerunt anti- quitus Episcopi Praelative, in legibus Romanis vel utroque juri versati Magistri . . . plerumque Juris Civilis Professo- res, quibus ex jurisdictione ejus Curiae potestas judicandi ex aequo et bono demandata est. Ad omnes enim curias in quibus non merum et Consuetudinarium jus, sed aequitas spectanda est, nullius gentis leges tarn accommodatae sunt f quam jus Civile Romanorum, quod amplissimas continet regu- las de Contractibus, Testamentis, Delictis, Judiciis et omni- bus humanis actionibus." The general character of the Jurisdiction of the Court of Chancery may be gathered from a speech of James I. in the Star Chamber in which he said : " Where the rigour of the law in many cases will undo a subject, there the Chancery tempers the law with equity, and so mixes mercy with jus- tice:" 1 and the "Doctor and Student" of the reign of Henry VIII., reads: " Conscience never resisteth the law nor addeth to it, but only when the law is directly in itself against the Law of God or of reason ... in other things Acquit an sequitur legem" 2 This Equitable Jurisdiction has been compared with the Jurisdiction of the Praetors, both being used as a means of alleviating the rigour of the older law. 3 Both Equity and the Jus Praetorium tend to become as rigid as the systems they originally modified; both are supported by fictions, in the one case of a pre-existing state of nature or Golden age, of whose laws fragments survive and are embodied in the Praetor's Edict, in the other of a King, whose Conscience 1 Cited Spence, i. 409 note. 1 Probably derived from "Jus praetorium jut civile tubsequitur." Spence i. 409. * Maine, Ancient Law, p. 68. 7. SCRUTTON: ROMAN LAW INFLUENCE 217 supplied the inadequacies of his laws. The systems admit of comparison, but there is no trace of causal connexion. It is true that the Praetor framed the formula, and the Chancellor and Clerks of the Chancery issued the writs. But the Praetor administered both his own edict and the Jus Civile, and could thus enforce his own innovations, while the Common law judges could and did reject new writs, which seemed to them not in accordance with the Common law. And further, while the Praetor by embodying exceptiones in his Formula could influence the defence to actions, the Chancellor had no control over the defences raised in the Common Law Courts to the writs he issued. The tribunals were separate; the judges different. The influence of the Chancery on the Common law was therefore far slower in operation and weaker than the Praetorian changes in the Jus Civile; while the clerical char- acter of the Chancery, and its innovations on the Common law, raised a spirit of hostility which hindered its influence. English Equity however, invented and administered by Cler- ical Chancellors, derived much of its form and matter from Roman sources. I have neither the time nor the knowledge to enable me to give at all an adequate account of this Roman element, but the question has been discussed by Spence, l and I avail myself of his results. Sir H. Maine, 2 without going at length into the subject, thinks that the earlier Chancery judges followed the Canon law, a later generation the Civil law, and that the Chancellors of the eighteenth century availed themselves largely of the Romano-Dutch Treatises on ethics and jurisprudence, compiled by the publicists of the Low Countries. One of the most important branches of Equitable Juris- diction related to Uses and Trusts. 3 Fideicommissa had been introduced by the Romans to evade the strict rules as to legacies and successions: the person, to whose good faith the fulfilment of the testator's wishes was entrusted, was at first only bound in honour. Augustus took the first steps towards enforcing trusts by law, and finally created a Praetor Fidei- 1 Equitable Jurisdiction of Court of Chancery, Vol. i. 1 Ancient Law, p. 44, 45. * Spence, i. 435-517. 218 // FROM THE 1100'S TO THE 1800'S commissarius to whom the duty was assigned of giving legal effect to fideicommissa. The English system in its origin only applied to trusts created during life; for lands were not devisable, and per- sonal estate was not of sufficient importance to call for any special legislation. Conveyances of lands to A t that he might pay their fruits to B, were introduced, probably to allow the clergy to avoid the Statute of Mortmain, and this device was adopted by the laity, especially during the wars of the Roses to avoid forfeiture for treason, and for other purposes. These " Uses " the Chancery would enforce as binding on the con- science, and the bequests of uses of land which it supported, and which enabled testators to evade the feudal rule of the indevisability of land, were akin to the Roman fideicommissa. Both systems were thus introduced to evade the strict law. The jurisdiction of Chancery over Uses dates from the reign of Henry V. ; and when in the reign of Henry VIII., the Statute of Uses gave the legal ownership to the man who al- ready had the Use, the Chancellors regained their jurisdiction and created Trusts by the device of enforcing " a use of an use," which was not affected by the Statute. In this however there was no trace of Roman influence and, as Mr. Spence acknowledges, the details of the system of Uses and Trusts were entirely constructed by the Clerical Chancellors without help from the Roman system. 1 We can only say that prob- ably the general conception of Uses and Trusts and the as- sumption of Jurisdiction over them were assisted by the ac- quaintance of the Clerical Chancellors with the Roman fidei- commissa. The system of Mortgages 2 was much affected by the doc- trines of the Civil law, acting through the Court of Chancery, and a mortgage now is " a security founded on the common law, and perfected by a judicious and wise application of the principles of redemption of the Civil law." 3 The strictness of the Common law viewed the Mortgage in the light of a con- ditional grant of land by the mortgagor to the mortgagee, 1 Spence, i. 460 note; Butler's note to Co. Lit. i. 290 b. * Butler's notes to Co. Lit. i. 205 a., 290 b. Spence, i. 601. Coote on Mortgages, 4th edit. pp. 1, 14. Warren, Law Studies, p. 521. Coote, p. 1. 7. SCRUTTON: ROMAN LAW INFLUENCE 219 the condition being that the land should revert to the grantor on payment by a certain day of the money lent. If not, the land was discharged from the condition and became absolutely vested in the mortgagee. But the Civil law regarded the debt intended to be secured, and not the land, as the principal; payment of the principal debt at any time would therefore release the accessory security on the land : the creditor, if not in possession of the land, could only sell it under a decree from the Praetor, and tender of the amount due before the decree of sale released the land. This construction, more lenient to mortgagors, was, under Charles I., adopted by the Chancery, who allowed an " equity of redemption " to the mortgagee within a reasonable time, though after the day on which,, according to the Common law, the land would be forfeited for non-payment. To maintain their jurisdiction against both the Common law judges and the debtors them- selves, the Chancellors held void any conditions in the loan by which the borrower lost his " equity of redemption." And this is similar to if not derived from a constitution of the Emperor Constantine, which expressly rendered such stipula- tions void. 1 We can thus trace the altered view of Mort- gages, the necessity for foreclosure, and the protection of the equity of redemption, as established in the Court of Chancery, to the Civil law. In the construction of legacies and documents, the Chan- cellors have availed themselves freely of Roman rules. 2 The Chancery had no original jurisdiction in testamentary mat- ters, and therefore felt bound to adopt the rules of the Ecclesiastical Courts, which were those of the Civil law. In Hurst v. Beach 3 the Vice-Chancellor directed the opinion of civilians to be taken as to the admissibility of evidence in a case as to legacies, and on the practice of the Ecclesiastical Courts. In Hooley v. Hatton,* where the question was whether two legacies to the same person in a will and codicil were cumulative or substitutive, the case was argued with citations from the Civil law ; and Lord Thurlow, in his judg- 1 Cod. 8, 34, 3. 1 Spence, i. 518, 523, 566. 5 Mad. 351, 357, 360. Cited in Ridges v. Morrison, 1 Brown. Ch. C. 389. 220 //. FROM THE 1100'S TO THE 1800'S ment, said : " No argument can be drawn in the present case from internal evidence; we must therefore refer to the rules of the Civil law." Similarly in interpreting the language of alleged trusts, the rules of the civil law are referred to. 1 Re- mains of the Roman doctrine of beneficium inventoris are traced in the time of Charles I., when an executor who had not exhibited an inventory was charged with a legacy after 20 years. a In the case of legacies for public uses Lord Thur- low said that the cases " had proceeded upon notions adopted from the Roman and Civil laws, which are very favourable to charities, that legacies given to public uses not ascertained shall be applied to some proper object." 3 And the same is true of charitable trusts. 4 But these rules were sometimes applied with more zeal than discretion, as when Sir R. Arden, M. R., afterwards Lord Alvanley, entirely misunderstood the meaning of exceptio doli'. b But Mr. Spence's remark that " probably the same law as to legacies has continued in Eng- land from the time of Agricola to the present day " 6 shows too great a faith in the persistence of a highly developed system of law through centuries of barbarism. The jurisdiction of the Chancery over Infants 7 is very similar to that exercised over guardians by the Roman Praetor, but Mr. Spence is not able to say more than that the Corpus Juris " has been occasionally consulted, if not resorted to as an authority " on the subject. We have al- ready noticed Lord Macclesfield's preference for the Civil law rule as to the persons who should be guardians as compared to that of the Common law. 6 The Chancery jurisdiction over idiots and lunatics is also similar to that of the Praetor and may very possibly have been derived from it. 9 The English Law of Partnership is derived from three sources, the Common Law, the Lex Mercatoria, and the Roman Law. 10 Of the Lex Mercatoria we need only say here 1 Knight v. Knight, 3 Beav. 161, 172. Spence, i. 585, citing Tothill, 183: 15 Car. I., whiten appears a wrong reference. White v. White, 1 Br. Ch. C. 15. Spence, i. 587. Kennett v. Abbott (1799), 4 Ves. 808. Spence, i. 523 note. T Spence, i. 606-615. V. supra, p. 130. Spence, i. 618-620. * Collier on Partnership, Lond. 1840, p. 1. 7. SCRUTTON: ROMAN LAW INFLUENCE 221 that it appears in itself to have been at least partly based on the Roman law. 1 Mr. Justice Story has made an elaborate and detailed investigation of the relations of the Common to the Roman law, and finds great similarity between them. 2 Both laws recognize the difference between a partnership and a community of interest, 3 and provide that no new partner can be introduced without the concurrence of the original part- ners. 4 But the Common law has refused to follow the Roman law in holding invalid an agreement that the personal repre- sentative of a partner should succeed him in the partnership. Both laws require a partnership to be in good faith and for a lawful purpose; 5 and that all partners must contribute something, whether property or skill, to the common stock. 6 Both require community in profits among the partners and, to a more limited extent, community in losses. 7 In the ab- sence of express agreement both laws require an equal divi- sion of profits. 8 The Common law formerly went beyond the Roman law in' making persons who share the profits of a trade liable to operation of law, to third parties as partners, 9 but this rule was overthrown in Cox v. Hickman. 10 Both laws recognize a division into universal, general, and special part- nerships, though the chief Common law division is into public and private partnerships. 11 Both regulate the duration of partnership by the consent of the partners, but the Roman law went further than the English, and prohibited partner- ships extending beyond the life of the parties. 12 No particu- lar forms for the constitution of a partnership were required by either law. 13 By the Roman law, the mere partnership relation conferred less extensive powers of disposition of the partnership property than are given by the Common law. 14 A Roman partner could not bind the firm by debts, nor alien- ate more than his share bf the partnership property. But in the absence of express stipulation and with some limitations 1 Spence, i. 665. 1 Story on Partnership, Boston, 1881, 7th ed. Story, 3, 4. Ibid. 5. 6. 15. * 20. "24,25. 37. 10 18 C. B. 617; 8 H. L. C. 268. "Story 72-76. Story 85, 196. 1 8 86. l 95. 222 //. FROM THE 1100'S TO THE 1800'S each partner of an English partnership may be taken, by out- siders, as having an equal and complete power of administra- tion over the whole of the partnership affairs. 1 Both laws admit a discharge of a debt to or by one partner to be good for or against the whole firm. 2 In the Common law, within the scope of the partnership, the majority have a right to govern, but in the Roman law the express or implied assent of all the partners is required. 3 Both laws make partners liable to each other for negligence or fraud, and require a withdrawal from the partnership to be in good faith. 4 Both laws consider a partnership for no certain period as dissoluble at the will of any partner ; 6 but the Roman law went further than the Common law in requiring that the dissolution should not take place at an unseasonable time. 6 Both laws allow the Court to dissolve the partnership in case of positive or medi- tated abuse of it by a partner, or when its objects are no longer attainable, as in the case of a partner's insanity. 7 By both laws, the assignment of his interest by one 'partner, con- trary to the will of the others, dissolves the partnership. 8 Both laws dissolve the partnership by death ; 9 and many of the provisions in both laws for taking an account and winding up a partnership are similar, though the English sale is more convenient than the Roman division. 10 Whilst English part- ners are liable to third parties in solido, by the Roman law they were only liable pro parte. This enumeration shows a sufficient agreement between the two systems to justify the assertion that while the method of the introduction of so much Roman law in early times is not clear, in later times most of its leading principles have become incorporated into the Common law of Partnership. 11 Mr. Spence and Lord Justice Fry 12 agree that the Equi- table Jurisdiction to enforce Specific Performance is not derived from the Roman law, which only gave damages for breach of contract, and adhered to the maxim ; " nemo potest I 103. * lie. 8 8 125: noted by Blackstone, i. 484. ' 135, 170, 176. 268, 269. 275, 276. 288, 292. 8 307. 31 7. 352. " Spence, i. 665. II Fry on Specific Performance, 2nd edit. Lond. 1881, pp. 3-8. Spence, i. 645. " 7. SCRUTTON: ROMAN LAW INFLUENCE 223 praecise cogi ad factum." * Spence considers the jurisdiction a " clerical invention " and Fry doubts whether to attribute it to the Canon law, which said " Studiose agendum est ut ea quae promittuntur opere compleantur," 2 or to " the plain principles of morality and common sense of the Judges who founded and enlarged the equitable jurisdiction." Besides the chief heads of its jurisdiction, the leading prin- ciples on which the Chancery administers justice show traces of clerical and Roman influence. The term " Conscience," 3 which is so involved in the decisions of the Court, though itself of clerical invention, is like the Praetorian notion of bona fides; but as to mala fides the English law has departed from the Roman principle, lata culpa plane dolo comparabitur, by holding that, " Gross negligence may be evidence of mala fides, but it is not the same thing." 4 The jurisdiction of the Chancery, in fraud, to cancel and deliver up deeds is anal- ogous to the Praetorian restitutio in integrum, and actio de dolo. 5 Both Praetor and Chancellor had a power to relieve against Accident, grounded in the Roman law on naturalist justitia. 6 So the jurisdiction to relieve against Mistake, and the distinction between mistake of law, and of fact, both in the Common law and Chancery, appear of Roman origin ; though under Edward IV. the Roman maxim, " nee stultis solere succurri sed errantibus," was met by a clerical Chan- cellor with " Deus est procurator fatuorum," 7 and the "fool" was relieved. The injunctions of the Chancery are comparable to Praetorian Interdicts; 8 its jurisdiction in dis- covery to the actio ad exhibendum, and possibly to the early and obsolete actio interrbgatoria. 9 The procedure for per- petuating evidence by examining witnesses de bene esse had also a parallel in Roman procedure. 10 1 Pothier, Des obligations, i. 2, 2, 2. 2 Decret. Greg. IX. i. 35, 3. 8 Spence, i. 411. cf. aequitas sequitur legem. * Ld. Denman in Goodman v. Harvey, 4 Ad. & E. 876. See also 1 Hare, 71. Spence, i. 425 note. 8 Spence, i. 622. 8 Ibid. i. 628. Dig. 27, 1, 13, 7. 7 Dig. 22, 6, 9. Gary's Rep. (ed. 1650), p. 17. Spence, i. 632, 637. Both editions of Gary that I have seen have the odd reading est procurator futuruf. 8 Spence, i. 669. Spence, i. 228, 678. 10 Dig. ix. 2, 40. Spence, i. 681. 224 //. FROM THE 1100'S TO THE 1800'S Without proceeding to a more detailed examination enough has been said to show that though usually the details of the Equitable Jurisdiction were worked out by the Chancellors on English lines, the subjects of jurisdiction and the powers of the Court were largely derived from the functions of the Praetor, and that this was due in the main to the influence of the early Clerical Chancellors. At present however the Courts of Chancery and Common law stand towards the Civil or any other law in no different relation. As Blackstone has said, * " In matters of positive right, both Courts must submit to and follow ancient and invariable maxims . . . where they exercise a concurrent jurisdiction they both follow the law of the proper tribunal; in matters originally of ecclesiastical cognizance, they both equally adopt the. Canon and Imperial law, according to the nature of the subject." But the nature of the subjects which come before the Chancery is more likely to call for its re- course to the Canon or Civil law, than those which are dis- cussed in the Common Law Courts, and therefore Blackstone recognizes in 1763 that in the Chancery " the proceedings are to this day in a course much conformed to the Civil law." 2 3. Roman Law in the Ecclesiastical Courts Of the Ecclesiastical Courts, Hale says : 8 " the rule by which they proceed is the Canon law, but not in its full lati- tude, and only so far as it stands uncorrected, either by con- trary acts of Parliament, or by the common law and custom of England: when the canon law'is silent, the civil law is taken in as a director, especially in points of exposition and determination touching wills and legacies." Their jurisdic- tion may be treated of under two heads: (1) that relating solely to the internal life and worship of the Church of England; (2) that affecting the whole realm, such as the testamentary and matrimonial jurisdiction. The first head may be shortly dealt with. The separation 1 Bl. m. 436. * Bl. i. 20. Hist. C. L. 28. 7. SCRUTTON: ROMAN LAW INFLUENCE 225 of the civil and clerical courts under William I., ensured for the latter a peculiarly Roman and canonical law and pro- cedure ; the Conqueror's law provided, " secundum canones ct episcopates leges rectum Deo et Episcopo suo faciat," 1 and the procedure was that of the Roman Consistory. This tended to create a feeling of hostility on the part of the Courts of Common law and the English people towards Courts not ruled by the Common law of England. The present ecclesiastical law consists of three portions: 2 I. Statutes, and enactments made in pursuance of, or ratified by, statutes. II. Certain portions of the Canon law, and certain constitutions and canons issued by competent author- ities. III. The Ecclesiastical Common law ; ecclesiastical usages, not embodied in writing, except in some judicial de- cisions, but recognized as binding and supposed to be known by the Courts. The Canon law as such is a body of Roman ecclesiastical law; but only such parts of it as are contained in the pro- vincial constitutions, 3 and in the general usages of the church, and are recognized in the Courts of this realm, are binding in England. 4 No canon contrary to the Common or Statute law or to the Prerogative is of any force; and no canons made since the reign of Henry VIII. , and not sanc- tioned by Parliament, are binding on the laity: nor are canons binding made before that reign, unless adopted by the English church. 5 The position of Ecclesiastical law in England has been well described by Tindal, L. C. J. as follows ; 6 " The ques- tion depends upon the Common law of England, of which the Ecclesiastical law forms a part. . . . The law by which the spiritual Courts of this kingdom have from the earliest times been governed and regulated, is not the general Canon 'Stubbs, S. C. p. 85. *Brice, Public Worship, London, 1875, pp. 1-10. Phillimore On Ec- clesiastical Laic, London, 1873: i. pp. 12-19. Coote, Ecclesiastical Prac- tice, London, 1847. 'Collected in Lyndwood's Provinciale seu Constitutiones Angliae. Paris, 1505; Oxford, 1079. *Martin v. Mackonochie, L. R. 2 Adm. and Eccl. 116, 153. 1 Bishop of Exeter v. Marshall, L. R. 3 H. L. 17, 47, 55. R. v.Millis (1844), 10 Cl. and Fin. 534, 671, 678, 680. 226 //. FROM THE 1100'S TO THE 1800'S law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but instead thereof an Ecclesiastical law, of which the general Canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislation of the realm, and which has been known from early times by the distinguishing title of the King's Ecclesiastical law. . . . That the Canon law of Europe does not, and never did, as a body of laws, form part of the law of England, has been long settled and established law." So also Sir John Nicholl : 1 " Indeed the whole Canon law rests for its authority in this country upon received usage; it is not binding here proprio vigore." The Canon law of itself is not therefore part of English law [This statement, however, should be compared with the views of Dr. Stubbs, in Essay No. 8, post, and of Professor Maitland, in his volume on the Canon Law, there cited. EDS.], nor does the Civil law appear to enter into this branch of the Ecclesiastical Jurisdiction. The Ecclesiastical Courts had jurisdiction affecting the subjects of the realm in three matters: I. Pecuniary, in tithes, dilapidations &c., to which we need not further refer. II. Matrimonial causes; validity of marriage, legitimacy, divorce, &c. III. Testamentary causes, and the administra- tion of the estates of Intestates. Matrimonial Jurisdiction The Judicature Act, 1873, 2 transferred to the newly cre- ated Probate, Admiralty and Divorce Division of the High Court of Justice inter alia, all matters within the exclusive cognizance of the Court for Divorce and Matrimonial Causes, and applied to that Division all the rules, orders and proce- dure of that Court. The Court for Divorce and Matrimonial Causes was created by an Act of 1857, 3 by which all causes and matters matrimonial, which should be pending in any Ecclesiastical Court in England were transferred to that 1 3 Phill. Rep. 67, 78-79. *3fl and 37 Vic. c. 66 34, 70, 74. 38 and 39 Vic. c. 77 18, 21. 20 and 21 Vic. c. 85 4, 6, 22. 7. SCRUTTON: ROMAN LAW INFLUENCE 227 Court, which was to possess all jurisdiction on the subject exercisable by any ecclesiastical court, and to proceed and act and give relief on principles and rules which in the opinion of the Court should be as nearly as might be. conformable to the principles and rules, on which the Ecclesiastical Courts had heretofore acted and given relief. This law of the Ecclesiastical Courts in the matter of mar- riage had been based on the Canon law, though its authority was much restricted, and depended on its having been re- ceived and admitted by Parliament, or upon immemorial usage and custom. 1 This jurisdiction devolved upon the Clerical Courts from the conception of marriage as a relig- ious sacrament and tie, the nature, validity, and dissolution of which were matters of clerical cognizance. The procedure was " regulated according to the practice of the civil and canon laws, or rather according to a mixture of both, cor- rected and new modelled by their own particular usages, and the interposition of the courts of common law." 2 A well known instance of this is the way in which the law of England dealt with the Roman doctrine of legitimatio ante nuptias. But generally the greater part of the English law on matri- monial causes is derived from the Civil or Canon law. Testamentary Jurisdiction The Testamentary jurisdiction was also in the hands of clerical judges. 3 The present Procedure and Practice of the Probate Division of the High Court of Justice are the same,, (except as altered by rules under the Judicature Acts), as those in force in the Court of Probate before 1875. 4 This Court was created by the Act of 1857, 5 by which the jurisdic- tion of all ecclesiastical Courts having power to grant pro- bate of wills was transferred to it, and its practice, except as subsequently provided by rules and orders, was to be ac- cording to the then practice in the Prerogative Court of Canterbury. 6 Thus the present jurisdiction of the Probate 1 Shelford On Marriage. London, 1841: pp. 17-21. Blackstone, iii. 100. Coote's Probate Practice, 8th edit. London, 1878. 38 and 39 Vic. c. 77 18, 21. 36 and 37 Vic. c. 66 23. 20 and 21 Vic. c. 77 3. /6id. 29, 30. 228 //. FROM THE 1100'S TO THE 1800'S Division is founded on this Ecclesiastical law; but as to the origin of the Ecclesiastical Jurisdiction there is considerable doubt. Wills were probably introduced by the clergy from Roman sources, and from early times the clerical courts had juris- diction over suits as to the validity of wills, or in what is known as " probatio solemnis per testes." l But whether this jurisdiction dates from the separation of the Courts by the Conqueror, or was assumed by the English Church at a later period, there is no evidence to show. Lyndwood 2 expressly says 'cujus regis temporibus hoc ordinatum sit non reperio," but the jurisdiction certainly existed at the time of Glanvil, 3 and the absence of evidence appears to show that, when assumed, it was not opposed by the common lawyers. As to the other branch of testamentary jurisdiction, the power of granting probate of a will in common form to an executor, and also as to the power of granting letters of administration of the goods of an intestate to his next of kin, we have more evidence. 4 The latter was, even in the time of Glanvil, in the hands of the king's courts, the next of kin having a right to succeed, subject to the claims of the lord, without any clerical intervention. 5 In the reign of Stephen, the jurisdiction over ecclesiastical persons and the distribution of their goods was placed in the hands of the Bishop, but this did not affect the laity. 6 Mr. Coote at- tributes clerical control over wills to the study of the Civil law by the clergy after the teaching of Vacarius, although their attempts to obtain that control were resisted by the barons. 7 In 1191, the clergy in Normandy, who had pre- viously been granted, as in England, the control of clerical wills and intestacies, received the control of all wills and intestacies. Magna Charta contains the provision 8 " Si aliquis liber homo intestatus decessit, catalla sua per manu.t propinquorum et amicorum suorum per visum ecclesiae distri- buantur, salvis cuicunque debitis, quae defunct us ei debebat." Bl. Com. iii. 95. Coote's Eccl. Practice, pp. 22-86. 'Lyndwood, Provincials, 3, 13, f. 176 (ed. 1679). *G1. vii. 8. 4 Coote, p. 22. G1. vii. 6, 7. Coote, p. 27. Stubhs, 8. C. p. 114. Ubid. p. 31. ' 27. Stubbs, S.C. p. 292. 7. SCRUTTON: ROMAN LAW INFLUENCE 229 But this clause is omitted, not only, as Coote observes, in the Charter of 1225, but also, which he does not notice, in the reissues of the Charter in 1216, and 1217. He suggests that the omission is due to the hostility of the barons, but, if so, it is curious that the Articles which the Barons them- selves put forward in 1215 should run, 1 " Si aliquis liber homo intestatus decesserit, bona sua per manum proximo- rum parentum suorum et amicorum, et per visum ecclesiae, distribuantur ; " 2 unless this was a concession to the church by the barons to secure its cooperation in the coming struggle. The clergy were anxious to obtain control of intestacy that they might devote a share of the intestate's estate to pious purposes ; the lords preferred to confiscate the property. The clergy protested " Item mortuo laico intestato, dominus rex et caeteri domini feudorum bona defuncti sibi applicantes non permittunt de ipsis debita solvi, nee residuum in usus liberorum et priximorum suorum et olios pios usus per loci ordinarium cujus interest, aliqua con- rerti;" 3 thus the lords neither paid the debts, nor recog- nized the pious uses. The statute of Westminster charged the payment of the debts of the intestate on that third of the property which the Ordinary destined to pious uses, instead of, as in previous practice, on the rationabiles paries of the widow and children. 4 A statute of 1357 5 commanded the Ordinaries to appoint " de plus proscheins et plus amis de mort intestat, pur administrer ses biens . . . et recoverer come executoures les dettes dues au dit mort . . . et soient accountables aux ordinairs si avant come executioures sont en cas de testament" The Ordinary thus appointed one of the next of kin as administrator to distribute the effects in such proportions as the church following the system of the civil law should direct, and the Act also gave power to bring actions concerning the intestacy in the King's Courts, as well as in the Courts of the Ordinary, thus making the system more secure. Article 16. Ibid. p. 283. *Note, that the clause as to payment of just debts is omitted. 'Gravamina and Articles of 1257, 25. Coote, p. 39. * Coote, pp. 44-47, (A. D. 1285). 31 Edw. III. c. 11. Coote, p. 58. 230 //. FROM THE 1100'S TO THE 1800'S The Prerogative Court of the Archbishop, which dealt with wills and intestacies was established by Archbishop Staf- ford in 14-13, who transferred the jurisdiction of the Court of Arches over those matters to the New Court, presided over by a Commissary. 1 The first Commissary was Alexander Provert, Bachelor of Canon law. But the Ordinary's power in intestacy became useless after the Reformation, owing to the refusal of the Common Law Courts to enforce the directions of the Ordinary, or the Ecclesiastical bonds for due performance of their duties which he took from administrators. 2 This unsatisfactory state of things resulted in the Statute of Distributions, which gave the Ordinaries and ecclesiastical judges, " having power to commit administrations of the goods of persons dying intestate," power to take bonds for the due administra- tion of the estate, which should be enforceable in Courts of the law. 8 We have thus traced, as far as the lack of evidence allows, the process by which the Clerical Courts acquired the juris- diction over all matters connected with wills and testaments. This jurisdiction, once obtained, was exercised on the lines of the Canon and Civil laws : as Hale says, 4 " where the Canon law is silent, the Civil law is taken in as a director, especially in points of exposition and determination touching wills and legacies," and these " directions of the Civil law " have been adopted by the Chancery in cases involving the construction of documents and wills. The original jurisdiction of the Ecclesiastical Courts in cases laesionis fidei, over contracts not enforceable by the King's courts, and its influence on the works of Glanvil and Bracton have already been referred to. 4. Roman Law in the Admiralty The early history of the " Court of Admiralty proceeding according to the Civil law," as Coke terms it, is closely con- 'Coote, p. 81. 'Coote, p. 55. 22 and 23 Ch. II. c. 10, made perpetual by 1 Jac. II. c. 17 18. 4 Hale, Common Law, p. 28. 7. SCRUTTON: ROMAN LAW INFLUENCE 231 nected with the history of the Law Merchant, which will form the subject of our next section. From very early times merchants and mariners regulated their dealings by a set of customs and rules known as the Law Merchant, Law Marine, or Customs of the Sea. In the Domesday Book of Ipswich, 1 it is recorded that " the pleas yoven to the law maryne, that is to wyte, for straunge marynerys passaunt, and for hem that abydene not but her tyde, shuldene be pleted from tyde to tyde ; " and it is probable that similar courts existed in all seaport towns, and places where merchants resorted. This Law Merchant and Customs of the Sea came into prominence in the countries bordering on the Mediterranean ; lands which had been under Roman rule continued to obey a modified ver- sion of the Roman laws, (which the Roman jurists themselves had borrowed from the Rhodian code,) adapted and altered to meet the new developments of commerce and civilization. 2 And by the middle of the thirteenth century a number of written codes of Maritime law came into existence in most of the principal centres of mercantile activity. The Conso- lato del Mare represents the customs observed at Barcelona ; the Laws of Oleron, the usages of Bordeaux and the Isle of Oleron ; the Laws of Wisbuy, the rules of the Hanse Towns. The Italian version of the Consolato speaks of its contents thus : 3 " these are the good constitutions and customs which belong to the sea, the which wise men passing through the world have delivered to our ancestors." The early history of the Customs of the Sea, and of the Ad- miralty Court in England may be gathered from a memoran- dum of 1339, entitled " Fasciculus de Superioritate Maris," which recites that the Justiciaries of the King were to be con- sulted as to the proper mode of revising and continuing the form of proceeding instituted by the King's grandfather and 1 Cited from a MS of 1289, in Twiss, Black Book of Admiralty, ii. 23. 2 Pardessus, Collection des Lois Maritimes, Paris, 1828, cited in Twiss, iv. Pref. 129. Godolphin's View of the Admiral's Jurisdiction, London, 1661, p. 13. Zouch, Jurisdiction of the Admiralty of England asserted by R. Zouch, D. C. L., late Judge of the Admiralty Court, p. 88: (writ- ten before 1663, published 1686). Malynes' Lex Mercatoria, p. 87, 1st edit. 1622; 3rd edit. 1685. * Cited in Zouch, p. 88. The original Spanish version (Twiss, iv.), has not the clause. 4 On a roll of 12 Edw. III.; cited in Twiss, i. Pref. pp. 32, 57. 232 //. . FROM THE 1100'S TO THE 1800'S his Council, for the purpose of maintaining the ancient su- premacy of the Crown over the Sea of England, and the right of the Admiral's office over it, with a view to correct, inter- pret, declare, and uphold the laws and statutes made by the Kings of England, his ancestors, in order to maintain peace and justice amongst the people of every nation passing through the sea of England, and to punish delinquents, " which laws and statutes were by the Lord Richard, formerly King of England, on his return from the Holy Land, cor- rected, interpreted and declared, and were published in the Island of Oleron, and were named in the French tongue, ' la ley Olyroun.' ' There is no doubt that Richard I., on his return from Palestine did not visit the Isle of Oleron, and all that can be meant is therefore, that the Laws of Oleron, whose origin we have seen, were promulgated in England by Richard. 1 This account receives confirmation from the con- tents of the famous " Black -Book of the Admiralty," which, having disappeared for many years, was at length found at the bottom of a chest of private papers in a cellar. It con- tains: (1) instructions for the Admiral's administrative duties in time of war ; the first article of which is : 2 " when one is made 'Admi rail," he must first ordain deputies, " some of the most loyall wise and discreet persons in the Maritime law (la loy maryne et anciens coustumes de la mer)," (2) articles of war for the King's navy, and (3) an account of the Admiral's jurisdiction in 34 articles, of which the first 24 are identical with the most ancient version of the Rolls of Oleron, and the rest are peculiar to the English Admiralty, and probably the result of the conference of 1339. Another article in this part : 3 " Item any contract made between mer- chant and merchant beyond the sea, or within the flood marke, shall be tried before the Admiral, and nowhere else by the ordinance of the said King Edward I. and his lords," appears to furnish the origin of the Admiral's jurisdiction in civil suits, which probably were more often settled informally by the merchants in the seaport towns " selon la ley merchant." The Admiral took his oath to make summary and full proc- ess " selon la ley marine et anciennes coustumes de la mer."* 1 Twiss, i. Pref. 58. * Twiss, i. 3. Twiss, i. 69. Twiss, i. 169. 7. SCRUTTON: ROMAN LAW INFLUENCE 233 A subsequent treatise on procedure, entitled the Ordo Judici- orum, is Roman in character and terminology, and bears traces of being written by a civilian of the School of Bologna. 1 Indeed, as many of the judges in the Court of Admiralty, the deputies of the Lord High Admiral, were clerics, the pro- cedure at any rate, if not also the rules of the Court, was likely to become Roman in character. The inquiry of 1339, already alluded to, was entrusted to three clerics, the Official of the Court of Canterbury, the Dean of St. Maria in Ar- cubus, and a Canon of St. Paul's. 2 By an Act of 1403, " les dites admiralles usent leur leys settlement par la ley d'Oleron et ancienne ley de la mer, et par la ley d'An-gleterre, et ne mye par custume, no par nule autre manere,' 3 while in 1406 under the Admiralties of the Beauforts, the jurisdiction of the Ad- miralty Court was much increased. 4 It is not therefore won- derful 'that under Edward VI. the answer was made to a French envoy 6 " that the English Ordinances for Marine affairs were no others than the Civil Laws, and certain ancient additions of the realm." The Black Book itself has an ex- press reference to the Roman Law : " It is ordained and es- tablished for a custom of the sea that when it happens that they make jettison from a ship, it is well written at Rome that all the merchandise contained in the ship ought to contribute pound per pound," 7 and many other clauses are indirectly taken from the same source. The foundations of Admiralty Law are thus to be found in : (1) the Civil Law, (a) as embodied in the Law Merchant, especially in the Laws of Oleron ; (6) as introduced by subse- quent clerical judges, mainly in procedure; (2) in subse- quent written and customary rules, adopted in view of the developments of commerce. This view is borne out by the accounts which text writers give of the nature of the Law. Thus Sergeant Callis says (in 1622) " I acknowledge that the king ruleth on the sea by the Laws Imperial, as by the 'Twiss, i. 178. The title is Sir T. Twiss' invention. 'Twiss, ii. Pref. 42. 3 5 Hen. IV. c. 7; 2 Hen. V. c. 6. 4 Spelman, Glossarium, sub voce Admirallus, ed. 1687, p. 16. 'Zouch, 89. Twiss, i. 127. ''Lex Rhodia de jactu, Dig. 14, 2, 1. Twiss has a wrong reference. 234 //. FROM THE 1100'S TO THE 1800'S Roll of Olcron and other ; but that is only in the case of ship- ping and for merchants and mariners ; " l on which Zouch remarks : 2 " I suppose no man will deny that the Civil and Imperial laws, the Roll of Oleron and others . . . are of force in the Admiralty of England," and again, 3 " the kingdom of England is not destitute of Special laws for the regulating of sea businesses, which are distinct from the Common laws of the realm, as namely, the Civil laws and. others of which the books of Common law take notice by the names of Ley Mer- chant and Ley Manner " . . . " Businesses done at sea are to be determined according to the Civil law, and equity thereof, as also, according to the customs and usages of the sea . . . for instruments made beyond the sea have usu- ally clauses relating to Civil law and to the Law of the Sea." This work of Zouch's was written in reassertion of the privileges of the Court of Admiralty in opposition to the en- croachments of the Courts of Common law, 5 who secured for their jurisdiction cases which properly fell within the cogni- zance of the Admiralty, by the fiction that the contract sued on was made in Cheapside, whereas, as the Civilians gravely remarked, a ship could not come to Cheapside because there was no water. The Common Law Courts also prohibited the Admiralty from trying certain classes of cases; on which Zouch says : 6 "It may be thought reasonable that, such con- tracts being grounded upon the Civil law, the law amongst Merchants, and other maritime laws, the suits arising about the same should rather be determined in those courts, where the proceedings and judgments are according to those laws, than in other Courts, which take no notice thereof." So Selden had said 7 " Juris civilis usus ab antiquis saeculis etiam nunc retinetur in foro maritime, sen Curia Admiralita- tis," and Duck: 8 " Jus autem dicit Admiralitas ex Jure Civili Romanorum, et ejus Curia consuetudinibus." 9 Godolphin, writing in 1661, says " all maritime affairs are regulated 'Reading on the Statute of Sewert. 1st ed. 1622. Ed. 1686, p. 42. 'Zouch, p. 95. 'Ibid. p. 89. *Ibid. p. 118. *Coke, iv. 134; see also i. f. 11 b. "Civil Law in certain cases, not only in Courts Ecclesiastical, but in the Admiralty, in which is ob- served la ley Olyroun, 5 Rich. I." p. 103. *ad Fletam, viii. (1676) ii. 8, 3, 24. Godolphin, p. 40. 7. SCRUTTON: ROMAN LAW INFLUENCE 235 chiefly by the Imperial laws, the Rhodian laws, the Laws of Oleron, or by certain peculiar municipal laws and constitu- tions, appropriated to certain cities bordering on the sea, or by those maritime customs . . . between merchants and mar- iners." ..." The Court of Admiralty proceeds according to the known laws of the land and the ancient established Sea laws of England with the customs thereof, so far as they contradict not the laws and statutes of the realm." 1 ..." A great part of this Fabric is laid on a foundation of Civil law ... a law allowed, received, and owned as the law of the Admiralty of England " 2 ... though " It is most true that the Civil law in England is not the law of the Land, but the law of the Sea ... a law, though not the law of Eng- land, not the Land law, but the Sea law of England." 3 Hale in 1676, with his usual strong feeling against the Civil law, sums this up thus ; 4 " The Admiralty Court is not bottomed upon the authority of the Civil law, but hath both its power and jurisdiction by the law and custom of the realm in such matters as are proper for its cognizance. This appears by their process . . . and also by those customs and law maritimes whereby many of their proceedings are directed, and which are not in many things conformable to the Civil law . . . also the Civillaw is allowed to be the rule of their pro- ceedings, only so far as the same is not contradicted by the Statutes of this realm, or by those maritime laws and cus- toms, which in some points have obtained in derogation of the Civil laws." This opinion of Lord Male's, though apparently incon- sistent with the dicta previously cited is not, I think, so in reality; for all that he alleges is that the Civil law is only law in England by the authority of the English Crown, and that in many points it has been altered and modified by later decisions and enactments ; and both of these propositions are recognized by previous writers. Blackstone says of the 5 " maritime Courts before the Lord High Admiral," that " their proceedings are according to the 'Godolphin, Pref. * Ibid, p. 123. "76 id, p. 127. * Hale, Common Law, p. 40. Bl. iv. 68. 236 //. FROM THE 1100'S TO THE 1800'S method of the Civil law, like those of the Ecclesiastical Courts." . . . l " The proceedings of the Courts of Admi- ralty bear much resemblance to those of the Civil law, but are not entirely founded thereon; and they likewise adopt and make use of other laws, as occasion requires, both the Rhodian laws, and the laws of Oleron: for the law of England doth not acknowledge or pay any deference to the Civil law con- sidered as such, but merely permits its use in such cases where it judges its determination equitable, and therefore blends it in the present instance with other marine laws; the whole being corrected, altered and amended by acts of parliament, and common usage; so that out of this composition, a body of jurisprudence is enacted, which owes its authority only to its reception here by consent of the Crown and people." On the criminal jurisdiction of the Court of Admiralty, Blackstone alludes to the disuse of its old procedure: 2 " but as this Court proceeded without jury in a manner much conformed to the Civil law, the exercise of a criminal juris- diction there was contrary to the genius of the law of Eng- land ; " and as, owing to the requirements of two witnesses, gross offenders might escape, therefore " marine felonies are now tried by commissioners oyer et terminer according to the law of the land." The procedure and practice of the Court of Admiralty was transferred by the Judicature Acts to the Probate, Admiralty and Divorce Division of the High Court of Justice, except as altered by subsequent Orders under the Act. This Divi- sion thus unites the three branches of English law in which the Civil law had most direct and acknowledged influence, the Testamentary and Matrimonial Clerical Jurisdictions, and the Jurisdiction of the Admiralty, which, as we have seen, was partly built up by clerical judges. On the subject matter of Admiralty law, we may say more in the next section. The procedure in rem against a ship, analogous to " Noxa caput sequitur," the institution of aver- age (Contributio) , Bottomry (pecunia trajectitia vel nauti- cum foenus), and probably charter parties, all bear traces of Roman origin. Bl. iii. 108. *B1. iv. 268. 7. SCRUTTON: ROMAN LAW INFLUENCE 237 5. Roman Law in the Law Merchant From the earliest times a summary mode of procedure appears to have existed, in which a kind of rough and ready justice was exercised in mercantile disputes according to the usages of commerce. As early as Bracton we find recognition of this; the solemn order of attachments need not be ob- served in such cases " propter privilegium et favorem mer- catorum; " 1 and a summons with less than 15 days' notice may be adjudged lawful, " propter personas qui celerem de- bent habere justitiam, sicut sunt mercatores, quibus exhibe- tur justitia pepoudrous." 2 This " Court of Pipowder " is also mentioned in the Domesday of Ipswich, where besides the " pleas yoven to the lawe maryne," there are also " pleas be- tween straunge folk that men clepeth pypoudrus, shuldene be pleted from day to day." 3 The Court of Pipowders in 1478 was a Court that sat from hour to hour administering jus- . tic'e to dealers in time of fair ; 4 according to Coke, it was to secure " speedy justice done for advancement of trade," and there might be such a Court by custom without either fair or market. 5 Malynes, in his curious and interesting work on the Lex Mercatoria, speaks of " the law Merchant, that is accord- ing to the customs of merchants . . . which concerning traffic and commerce are permanent and constant." 6 Coke states that 7 " the merchant strangers have a speedy recovery for their debts and other duties, per legem mercatoriam, which is a part of the Common Law." The Court of the Mayor of the Staple, he says, 8 " is guided by the Law Merchant . . . merchant strangers may sue before him according to the law merchant or at the Common law. . . . This Court is the Court in the Staple Market, and it was oftentimes kept at Calais, and sometimes at Bruges, Antwerp and Middlebro', 1 Br. f. 444. *Br. f. 334: so called because justice was done while the dust was still on the foot, or before it could be shaken off. * Black Book of Admiralty, ed. Twiss. Rolls Series, ii. 23. 4 17 Edw. IV. c. 2. 8 Coke, iv. 272. Pub. 1622, 3rd Edit. 1686; pp. 2, 3. T Coke, ii. 58; see i. 11, b. Coke, iv. 237, 238. 238 //. FROM THE 1100'S TO THE 1800' S therefore it was necessary that this Court should be governed by Law Merchant." Fortescue also mentions that in certain Courts, " where matters proceed by Lawe Merchaunt, con- tracts or bargains among merchants in another realm are proved by witnesses " 1 (because 12 men of a neighbouring county cannot be obtained). Zouch goes into the matter more at length. 2 Sir John Davies, he says, owns the Law Merchant as a law distinct from the Common law of England in a MS. Tract, where he affirms " that both the Common Law and Statute Laws of England take notice of the Law Merchant, and do leave the Causes of Merchants to be decided by the rules of that law, . . . which is part of the Law of Nature and Nations," " whereby it is manifest," continues Zouch, " that the cases concerning mer- chants are not now to be decided by the peculiar and ordinary laws .of every country, but by the general Laws of Nature and nations. Sir J. Davies saith further, ' That until he under- stood the difference between the Law Merchant, and the Com- mon law of England, he did not a little marvel what should be the cause that in the Books of the Common law of England there are to be found so few cases concerning merchants and ships, but now the reason was apparent, for that the Common law did leave those cases to be ruled by another law, the Law Merchant, which is a branch of the Law of Nations.' ' Again Zouch says : 3 " For the advantage of those who use navigation and trade by the sea, the Law Merchant and laws of the Sea 4 admit of divers things not agreeable to the Com- mon law of the realm," and he cites instances and continues : " It is not hereby intended that the Courts of Common law cannot or do not take notice of the Law Merchant in mer- chants' cases, but that other things likewise considered, it might be thought reasonable to allow them the choice of that Court where the Law Merchant is more respected, than to confine them to other Courts, where another law is more pre- dominant. Besides there may be danger of doubt thereof, because those things are not approved of for proofs at the l De Laudibug, p. 74, ed. 1616: Selden on Fortescue, ibid. 'Zouch, p. 89. See Godolphin, p. 128. p. 128. *i. e. the written laws of Oleron, etc. 7. SCRUTTON: ROMAN LAW INFLUENCE 239 Common law, which are held sufficient in the Admiralty among the merchants." Blackstone defines very clearly the position of the Law Merchant in his time ; 1 " for as the transactions of foreign trade are carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the Law Merchant or Lex Mercatoria, which all nations agree in and take notice of ; and in particu- lar it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries, and that often even in matters relat- ing to domestic trade, as for instance in the drawing, accept- ance and transfer of inland bills of Exchange." And again : " thus in mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, bottomry, insurances, and others of a similar nature, the law merchant, which is a branch of the law of nations, is regularly adhered to." 2 Now this Law Merchant, thus recognized by the laws of England, drew part of its matter from the Civil law. Being " part of the law of nations," in that it was composed of the customs of merchants of all nations, it included a number of usages which were relics of the Civil law, continuing the practice of the coasts of the Mediterranean. Again, the written laws of the sea, the Consolato and the laws of Oleron, which formed part of the Law Merchant, and the latter of which was expressly embodied in the laws of England, were based on the Civil law, with such additions as were necessary to meet the needs of the time. Thus Duck is justified in speaking of the " Curia Mercatorum, in qua lites de con- tractibus mercatorum ex aequo et bono secundum jus civile Romanorum terminandae swnt." ' Indeed even at that time the Civil law was recognized as an authority, where usage was uncertain. Malynes records a case with which he was per- sonally acquainted, where an unfortunate merchant uninten- tionally guaranteed the solvency of another, and " the opinion of merchants was demanded, whereon there was grand diver - 1 Bl. i. 273. * Bl. iv. 67. 8 ii. 8, 3, 25. 240 //. FROM THE 1100'S TO THE 1800'S sity, so that the Civil law was to decide the same," and it was decided by the Digest. l This Lex Mercatoria had therefore a Roman foundation; and the importance of this will be seen when we remember that Lord Mansfield, the father of modern Mercantile law, 2 during the 32 years in which he was Lord Chief Justice of the King's Bench, 3 constructed his system of Commercial law by mould- ing the findings of his special juries as to the usages of mer- chants (which had often a Roman origin) on principles fre- quently derived from the Civil law and the law of nations. One among Junius' bitter attacks on him expressly alludes to this feature of his : 4 " In contempt or ignorance of the Com- mon law of England, you have made it your study to intro- duce into the Court where you preside, maxims of juris- prudence unknown to Englishmen. The Roman code, the law of nations, and the opinions of foreign. civilians, are your perpetual theme ; " a charge for which, says Lord Campbell, 5 " there is not the slightest colour of pretence. He did not consider the Common law of England ... a perfect code adapted to the expanded, diversified, and novel requirements of a civilised and commercial nation . . . but in no instance did he ever attempt to substitute Roman rules and maxims for those of the Common law. He made ample use of the compilations of Justinian, but only for a supply of principles to guide him upon questions unsettled by prior decisions in England; deriving also similar assistance from the law of nations, and the modern Continental codes." The nature of his work was well described by Buller, J. in his celebrated judgment in Lickbarrow v. Mason, G where he says concern- ing bills of lading : " thus the matter stood till within these 30 years; since that time the Commercial law of this country has taken a very different turn from what it did before. . . . Before that period we find that in Courts of law >p. 69. *Park on Insurance, Lond. 1787, 7th edit., Int. pp. 43-48. Lowndes on Insurance, Int. p. 27; Campbell's Lives, Vol. ii. 1756-1 788. Cited in Campbell, ii. 437. 76irf. p. 438, 439. 1787, 2 T. R. 63, 73; see also Lowndes on General Average, Pref. 3rd edit. p. 45. 7. SCRUTTON: ROMAN LAW INFLUENCE 241 all the evidence in mercantile cases was thrown together : they were left generally to a jury, and they produced no estab- lished principle. From that time we all know the great study has been to find some certain general principles . . . not only to rule the particular case then under considera- tion, but to serve as a guide for the future. Most of us have heard those principles stated, reasoned upon, enlarged and explained till we have been lost in admiration at the strength and stretch of the human understanding. And I should be sorry to find myself under a necessity of differing from Lord Mansfield, who may truly be said to be the founder of the Commercial law of this coun- try." An example of Lord Mansfield's use of the Civil law will be seen in his exposition of the nature of the equitable action for money had and received, which can be traced, pas- sage by passage, to the Corpus Juris: 1 and many of these usages of the merchants, which he thus harmonized, had their origin in the Roman law though their details were of modern growth. Thus the law of General Average, as developed by the Courts, appears to rest upon a Roman foundation. Mr. McLachlan even assigns a Roman origin to the name, deriving it from actio ex aversione, 2 though this origin is challenged by Mr. Lowndes and seems rather fanciful. The Rhodian law: 3 " Si levandae navis gratia, jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est," really contains the whole principle of general average, though it restricts the example to Jettison. The Corpus Juris ex- panded it to cover other cases, such as cutting away the mast, " removendi communis periculi causa." But these laws fell into desuetude, though the practice of contribution may have survived in the Mediterranean. Some slight reference to it appears in the laws of Oleron, but the old Sea laws only recognize two cases of average, jettison and cutting away 1 Moses v. McFerlane, 2 Burr. 1005. 1 W. Bl. 219; see this set out in Warren's Law Studies, pp. 1353, 1354 from Evans' translation of Pothier deg Obligations, ii. 379, 380. McLachlan's Arnould on Insurance, 5th ed., pp. 882-885. Lowndes, General Average, 3rd edit., pp. 270-272. 3 Dig. 14, 2, 1. See Lowndes, Int. pp. 45, 46. Ibid. p. 256. 242 //. FROM THE 1100'S TO THE 1800'S a mast. The first express definition of " commune avarie " appears in the Guidon de la Mer, about 1560: 1 and a fuller one is found in the French Ordonnance of 1681. In 1801 a Court of Common law first recognizes and discusses the right to recover at Common law general average contributions. 2 Lawrence, J. defines a general average loss as " all loss which arises in consequence of extraordinary sacrifices made, or ex- penses incurred, for the preservation of the ship and cargo," and this " must be borne proportionably by all who are inter- ested." 3 Since then the law on the subject, probably founded on the Rhodian and Roman law, and expanded by mercantile usage in all countries, is still undergoing development in the Courts ; 4 though in the last reported case, the Master of the Rolls rejected the idea that the law of England should be brought into consonance with the laws of all other countries ; " no English Court has any mission to adapt the law of Eng- land to the laws of other countries ; it has only authority to declare what the law of England is." 5 But the law of Eng- land on these points was originally the Law Merchant, the same in all commercial countries ; and the agreement of all foreign countries in a rule of the Law Merchant would then have been evidence of its being part of the law of England, or rather of a Code which the English Courts would recognize and enforce. Lord Mansfield's greatest work was done in the develop- ment of the law of Insurance ; and here, though he gave form and coherence to the Law Merchant, it does not seem that that law can be traced to Roman sources. Its Roman origin has indeed been suggested; Zouch, for example, says: 6 " Policies of Insurance are grounded upon the Civil law . . . which as Malynes affirms were taken up in this kingdom from the laws of Oleron : " but the most recent authorities hold 1 Lowndes, 275. 1 Birkley v. Presgrave, 1 East, 228. Lowndes, pp. 1, 276; Int. p. 48. * cf. the Ordonnance; les despenses extraordinaires faites, ft le dom- tnage souffert, pour le bien et le salut commun des marchandises et du vaifseau sont ovaries grosses et communes. *cf. Atwood v. Sellar, 5 Q. B. D. 286, Wright v. Marwood, 7 Q. B. D. 62, Svendten v. Wallace, 11 Q. B. D. 616, 13 Q. B. D. 69. 10 App. C. 404 13 Q. B. D. 73. p. 103. 7. SCRUTTON: ROMAN LAW INFLUENCE 243 that, though there is almost an entire lack of evidence con- cerning it till the publication of the Guidon (circa 1560), it probably originated about 1200 A. D. with the Italians, and was introduced into England by Lombard merchants. 1 Under Queen Elizabeth a special Court was constituted to try Lon- don Policies of Insurance, and it is noteworthy that it was to consist of the Judge of the Admiralty, the Recorder of Lon- don, two Doctors of the Civil Law, two common lawyers, and eight merchants. 2 The Court fell into disuse, but its compo- sition shows the view that Insurance was part of the subject- matter of the Law Merchant, which in its turn was connected with the Civil law. Apart from this, there is no trace of Roman influence in the English law of Insurance. The Roman pecunia trajectitia 3 was a loan of money with which merchandise was bought and shipped, being at the risk of the lender till the goods reached their destination. The interest on the loan was originally unlimited but was re- stricted by Justinian to 12 per cent. 4 And though the Roman law fell into oblivion, the institution appears to have survived in the Bottomry and Respondentia of the Law Mer- chant. By a Bottomry Bond, 5 the master under stress of necessity borrows money for the prosecution of his voyage on the security of the ship, to be repaid with maritime interest if the ship arrives in safety ; Respondentia is a similar loan on the security of the cargo, its repayment being also dependent on safe arrival. Neither of these is quite the same as Pecunia Trajectitia, which was rather an original venture by a mer- chant dependent on the safe arrival of the ship, than a loan to the master, made under necessity, to enable a voyage already begun to be prosecuted. But Malynes expressly calls Bottomry, pecunia trajectitia, while he also alludes -to a transaction precisely similar to the Roman one, as " a deliver- ance of money of the nature of Usura Maritima." 6 The " darkness of an earlier age " 7 prevents us from tracing *Park on Insurance, Int. pp. 10-19. Lowndes on Insurance, Lond. 1881, Int. pp. 19-21. Park, Int. p. 40. 43 Eliz. c. 12. 'Dig. 22, 2, 1-5. 'Cod. 4, 32, 26. 8 McLachlan, Merchant Shipping, 3rd ed. pp. 51-65. p. 122. 'McLachlan, p. 65. 244 //. FROM THE 1100'S TO THE 1800' S what connexion the later institution has with the Roman one, but it seems probable that the latter survived, and was modi- fied and adapted into the Bottomry of to-day. The Admiralty Court endeavoured to introduce the Civilian doctrine of a tacit hypothec of, or maritime lien upon, the ship herself for repairs or the supply of necessaries without any express Bottomry bond. Lord Stowell said : l " In most of those countries governed by the Civil law, repairs and neces- saries form a lien upon the ship herself. In our country the same doctrine had for a long time been held by the Maritime Courts, but after a long contest, it was finally overthrown by the Courts of Common law, and by the House of Lords in the reign of Charles II. : " and Lord Holt also, no opponent of the Civil law, held that: 2 " By the Maritime law every con- tract of the master implies a hypothecation, but by the Com- mon law it is not so, unless it be so expressly agreed." Zouch suggests that Charterparties are derived, through the Roman, from the Rhodian law; 3 *' Si quis navem condux- erit, instrumenta consignata sunto," and Malynes, who cites other Rhodian rules as in force in the Law Merchant, also says that charterparties of his time (1622) commonly de- clared that they were in all things made according to the laws of Oleron; 4 the provision as to the forfeiture of double earnest by the Master, " if he repent," is clearly Roman. But in this, as in most other heads of the Law Merchant, we can only, speculate whether Roman customs, developed by Mediterranean nations, have furnished the groundwork on which the Courts and the merchants of England have built their Mercantile law. The law of Bills of Exchange, which owes most of its material to the Law Merchant, appears en- tirely free from Roman influence, the usages of merchants which it embodies being of much later origin. We must therefore rest content with pointing to the Law Merchant, as a probable source of Roman influence on the English law, while the lack of evidence does not allow us to estimate the amount of that influence. 1 Zodiac (1825). 1 Haggard, Adm. 325. * Justin v. Ballam (1702). 1 Salk. 34. 2 Lord Raymond, 805. p. 102. *pp. 98, 99. 7. SCRUTTON: ROMAN LAW INFLUENCE 245 The position of the Law Merchant, or of " the general maritime law," in this country has been under discussion in a series of cases, other than Svendsen v. Wallace, 1 down to 1882. In 1801 Lord Stowell, discussing the powers of the master to give Bottomry Bonds, referred repeatedly to " the general maritime law," saying in one place: 2 " a very modern regulation of our own private law . . . has put an end to our practice of ransoming . . . but I am speaking of the general maritime law and practice, not superseded by private and positive regulation ; " and again : " Adverting to the authority of the maritime law, as it has been for some years practised in this Court . . . adverting also to the position of what I may call the Lex Mercat oria." 3 In the Hamburg* (1864), also on the conflict of laws as to bottomry, Dr. Lush- ington announced his intention of " governing his judgment by reference to the ordinary maritime law ... no specific law being alleged as the governing law " ..." I must take the law which ought to apply to this case to be the maritime law as administered in England," while the Privy Council on appeal 5 " entirely agree with the learned Judge that the case is to be decided by the general maritime Law as admin- istered in England." This expression was criticized by Willes, J., in a case in 1865, 6 where the " general maritime law, as regulating all maritime transactions between persons of different nationalities at sea," was suggested as one of the laws by which the decision should be governed ; he said : 7 " We can understand this term in the sense of the general maritime law as administered in English Courts, that being in truth nothing more than English law, though dealt out in somewhat different measures in the Common law and Chancery Courts and in the peculiar jurisdiction of the Admiralty; but as to any other general maritime law by which we ought to adjudicate upon the rights of a subject of a country, which by the hypothesis, does not recognize its alleged rule, we were not informed what may be its authority, its limits, or its sanc- 1 13 Q. B. D. 69. 1 The Gratitudine, 3 W. Rob. 240, 259. 'Ibid. p. 271. 3, 4 Viet. c. 65; 13, 14 Viet. c. 26; 24 Viet. c. 10. 3, 4 Viet. c. 65 22; 33, 34 Viet. c. 90 19. The Gaetano and Maria (1882) L. R. 7 P. D. at p. 143. 9. HOLDSWORTH: THE LAW MERCHANT 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 ves- sels, 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. Yar- mouth 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 1 The Gas Float Whitton, No. 2, L. R. 1896, P. at pp. 47, 48. * Stat. Praerogativa Regis (IT Ed. II. St. 1 c. xi). On the whole subject see L. Q. R. xv 353. 8 Lord Warden of Cinque Ports v. The King (1831) 2 Hagg. Adm. 438. 4 I. e. a thing causing the death of a man, Stephen, H. C. L. iii 77, 78; Holmes, Common Law 24-26; Select Pleas of the Admiralty ii xxvi, xxvii. They were abolished 9, 10 Viet. c. 62. 8 " That nothing shall be said to be wreccum maris but such goods only which are cast or left on the land by the sea. . . . Flotsam is when a ship is sunk or otherwise perished and the goods float on the sea. Jetsam is when the ship is in danger of being sunk, and to lighten the ship the goods are cast into the sea, and afterwards, notwithstanding, the ship perish. Lagan (vel potius Ligan) is where the goods which are so cast into the sea, and afterwards the ship perishes, and such goods are so heavy that they sink to the bottom, and the mariners, to the intent to have them again, tie to them a buoy or cork . . . and none of these goods are called wrecks so long as they remain in or upon the sea," Sir Henry Constable's case (1601) 5 Co. Rep. 106. * Select Pleas of the Admiralty ii xxxix. Mbidxxii. 'Ibid. "Ibid xxiii. 322 //. FROM THE 1100'S TO THE 1800'S 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 gen- erally granted to him. " The Admiral's Patents of the six- teenth 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." ' In Anne's reign, Geor^ge 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 Ad- miral. 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 en- 1 The King v. 49 Casks of Brandy 3 Hagg. Adm. 257; 5 Co. Rep. 107 b it is said that " those of the west country prescribe to have wreck in the sea so far as they may see a Humber Barrel." * Select Pleas of the Admiralty (S. S.) i xli. 8 Black Book of the Admiralty (R. S.) i 150; Select Pleas of the Admiralty ii xxiv. * Select Pleas of the Admiralty ii xxv. 8 The King v. 49 Casks of Brandy 3 Hagg. Adm. at pp. 280, 281. " During the last French war the sums raised by droits was very large. Sums of 100,000, 190,000, and 58,360 are mentioned as having been paid to members of the royal family; the last sum is stated to have been paid out on account of the building, etc., of the Pavilion at Brighton," Select Pleas of the Admiralty ii xxxix. 8 Select Pleas of the Admiralty ii xxvii-xxxii. 7 Ibid xxxvii. ' Ibid xviii, xix, xxii. In 1619 there was a dispute between the Lord Warden and the Admiral as to wrecks in the Goodwins. In 1632 there is a report to the Admiral on the encroachments of Lords of Manors.* 9. HOLDSWORTH: THE LAW MERCHANT 323 titled, 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.* In 1894 the method of dealing with wreck, flot- sam, 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 re- gard to the exercise of the jurisdiction were often made by 1 Select Pleas of the Admiralty xxxviii. 1 Ibid xxxvii. As to wreck see ibid xxxix-xli; Hamilton v. Davis (1771) 5 Burr. 2732. 1 Will. IV. c. 25; 1, 2 Viet. c. 2. 4 17, 18 Viet. c. 120 10. 5 57, 58 Viet. c. 60 510-529. 6 Pitt-Cobbett, Leading Cases in International Law (Ed. 1892) 205. Prizes can only be made by private vessels if they have been attacked in the first instance, ibid 211. 7 Rhymer, Foedera, vi 14, 15, a letter to the King of Portugal stating that the Admiral had rightly condemned goods of his subjects captured by the French, and taken in French ships. 324 //. FROM THE 1100'S TO THE 1800'S treaties with foreign sovereigns. In 1498 a treaty between Henry VII. and Louis XII. stipulates that manners 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 Eng- land, as well as captors sailing under English commissions, resorted to the Admiralty court. " These cases frequently resolved themselves into suits between the respective Ambas- sadors of the powers to which the captor and prize be- longed."' 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, re- quiring 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 jurisdic- tion is now exercised by the Probate, Divorce, and Admiralty 1 Rhymer, Foedera, xii 690-694; xiv 147-151; cp. a case before the Council (1589) cited Malynes, Lex Mercatoria, 108, 109. Select Pleas of the Admiralty ii xvii, xviii. ' Select Pleas of the Admiralty ii xvii, 170. 4 Lindo v. Rodney (1781) 2 Dougl. 613, 618, 619. In his judgment Ld. Mansfield gives a complete history of the Prize jurisdiction. Cp. Select Pleas of the Admiralty ii Ixxix. Lindo v. Rodney 614; re Banda and Kirwee Booty (1866) L. R. 1 A and E 129; 13 Car. II. c. 9; 22, 23 Car. II. c. 11; 6 Anne c. 13. Possibly the jurisdiction was originally regarded as inherent in the court. In 1793 a claim to this effect was put forward by the Admi- ralty court of Ireland. It is said to have been the opinion of Sir W. Wynne that the Admiralty of Scotland had a similar jurisdiction. 7 Lindo v. Rodney 614. 27, 28 Viet c. 25. 9. HOLDSWORTH: THE LAW MERCHANT 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, 6 " 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 simpty, 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 54, 55 Viet. c. 53 4. Bl. Comm. iii 69, 70; 3, 4 Will. IV. c. 41 2. 54, 55 Viet. c. 53 4, 3. Above. Lindo v. Rodney 616. 6 C. Rob. 348, 349 (1807). The Fox and Others (1811) Edw. 312-314; Phillimore, Inter- national Law (Ed. 1857) iii 535, 541. 326 //. FROM THE 1100'S TO THE 1800'S 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 mari- time 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 cen- turies, a division and specialization of trades and industries begins to take place. The large trader or the merchant be- comes entirely distinct from the small trader or the crafts- man. The old Guild Merchant, which embraced all the traders in a town, gives place to separate companies of mer- chants 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 some- times 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.? They were finally abolished by the Municipal Cor- porations Act of 1835. 6 Though the old organization of trade lingered on till the 1 27, 28 Viet. c. 25 37 and 55. * In Edward II.'s reign the crafts in London were divided into the two classes of officia mercatoria and officia manuoperalia, Munimenta Gildhallae i 495; but the trade of London was so extensive that it was in advance of other towns, Gross, Gild Merchant, i 129. 8 Gross, Gild Merchant, i chaps, vii and viii; Newcastle Merchant Adventurers (Surtees Soc.) i xxxiii, xxxiv, xxxiv-xl. 4 Mayor and Commonalty of Colchester v. Goodwin (1666) Carter's Rep. 114, 120. Mayor of Winton v. Wilks (1705) 2 Ld. Raym. 1129, Holt con- sidered that a power to restrain persons from exercising their trade was had. Such powers were upheld in Bodwic v. Fennell (1748) 1 Wils. 233, and Wooley v. Idle (1766) 4 Burr. 1951. 5, 6 Will. IV. c. 76 14. " Whereas in divers cities, towns, and boroughs a certain custom has prevailed, and certain bye-laws have been made, that no person not being free of a city, town, or borough, or of certain guilds, mysteries, or trading companies within the same . . . shall keep any shop or place for putting to show or sale any or 9. HOLDSWORTH: THE LAW MERCHANT 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 front 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 non- owner 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 certain wares or merchandize by way of retail or otherwise, or use any or certain trades, occupations, mysteries, or handicrafts for hire, gain, or sale within the same; be it enacted that notwithstanding any such custom or bye-law, every person in any borough may keep any shop for the sale of all lawful wares and merchandizes by wholesale or retail, and use every lawful trade . . . within any borough." 1 Instances are the earlier bankruptcy acts, and the earlier acts rendering the real estate of deceased persons liable to their debts. 2 3 Co. Rep. 22; Parke B., Morley v. Attenborough (1849) 3 Ex. 500, 511. 3 Coke, 2nd Instit. 713, 714. Coke draws his rules as to the condi- tions under which this is allowed from the Year Books of Hy. VI.- Hy. VII.'s reigns, and from some cases of Henry and Elizabeth's reign. Cp. Hargreave v. Spink, L. R. 1892. 1 Q. B. 25. *Carta Mercatoria (Munimenta Gildhallae ii Pt. 1 205); 29 Car. II. c. 3 17; P. and M. ii 206, 207. 328 //. FROM THE 1100'S TO THE 1800'S a separate law. 1 " It is a customary law," says Malynes, " approved by the authority of all kingdoms and common- wealths, and not a law established by the sovereignty of any prince ; " 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 knowl- edge." 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 be- tween 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 un- known 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 1 Smith, Merc. Law (Ed. 1890) Ixxx, Ixxxi. In the East India Com- pany v. Sandys (1684) 10 S. T. at pp. 523-525 Jeffries drew a clear distinction between inland and foreign trade. * Lex Mercatoria Preface. 8 Lex Mercatoria 3. * The Question concerning Impositions (Ed. 1656) 10. Davies was Attorney-General to James I. 8 Ibid 11, 12 citing Y. B. 13 Ed. IV. pi. 9. He said that he had wondered why there were so few cases in the books concerning mer- chants. " But now the reason thereof is apparent, for the common law of the land doth leave these cases to be ruled by another law, namely, the Law Merchant, which is a branch of the law of nations," 16, 17. * Davies 12-15 ; Malynes 73-76 ; East India Company v. Sandys (1684) 10 S. T. at p. 524. 9. HOLDSWORTH: THE LAW MERCHANT 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, in- corporated into London." l 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 Ad- miralty 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 1601 3 a court had been estab- lished 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, applica- 1 Lex Mercatoria 155. 2 Ibid, Pt. III. chaps, xiv-xx. * 43 Eliza, c. 12. Reenacted and amended 13, 14, Car. II. c. 23. * Came v. Moye 2 Sid. 121. 8 It was said in 1787 that, from the reign of Elizabeth to 1765, when Ld. Mansfield became C. J., it had not heard 60 cases on marine insurance, Smith, Merc. Law, Ixix. 8 Malynes, Pt. III. c. xv; cp. Dasent xxii xxxiv; xxiii xlvi. 7 " Merchants' causes are properly to be determined by the Chan- cery, and ought to be done with great expedition; but it falleth out otherwise, because they are by commission commonly referred to mer- chants to make report of the state thereof unto the Lord Chancellor," Malynes 319. There is an affinity between the jus gentium of the merchants and English equity, as there was between the Roman jus gentium and jus naturale. Duller J. Lickbarrow v. Mason (1793) 1 S. L. C. 709. 330 // FROM THE 1100'S TO THE 1800'S ble only to merchants, which it is necessary to prove. l In 1699 Treby, C. J., said that Bills of Exchange at first ex- tended 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 organiza- tion 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 juris- diction over mercantile cases. The fact that the Law Mer- chant 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 1 Oaste v. Taylor (1613) Cro. Jac. 306, the custom of the merchants is fully set-out. Similarly in Woodward v. Rowe (1669) 2 Keb. 105. In Witherley v. Sarsfield, Shower 127 (1689) Holt said that the aqt of drawing a bill made a man a trader for this purpose. * Bromwich v. Lloyd 2 Lut. 1582, 1585. Cp. Chalmers, Bills of Ex- change, xlv-xlvii, as to the result of this upon the English law of Bills of Exchange. 8 Gross, Gild Merchant, i 140-156; Hall, Customs Revenue, i 50-54; L. Q. R. xvi 54. 4 10 S. T. 371. Cp. Company of Merchant Adventurers v. Rebow (1687) 3 Mod. Rep. 126, 128. 1 Newcastle Merchant Adventurers (Surtees Soc.) i xli-xliv. * This is the argument of Davies' work upon impositions, chap. vi. " Forasmuch as the general law of nations which is and ought to be law in all Kingdoms, and the Law Merchant which is also a branch of that law, and likewise the Imperiall or Roman law, have ever been admitted by the kings and people of England in causes concerning Merchants and Merchandize. . . . Why should not this question of Im- 9. HOLDSWORTH: THE LAW MERCHANT 331 ordinary courts of law or equity if it was to be made to har- monize 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 Mans- field 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 positions be examined and decided by the rules of those laws, so far forth as the same doth concern Merchants or Merchandizes, as well as by the rules of our Common Law of England?" Cp. Bate's case (1606) 2 S. T. at p. 389. 1 Campbell, Lives of the Chief Justices, ii 402, 403. * " We find in Snee v. Prescott that Ld. Hardwicke himself was pro- ceeding with great caution, not establishing any general principle, but decreeing on all the circumstances of the case put together. Before that periqd we find that in courts of law all the evidence in mercan- tile cases was thrown together; they were left generally to a jury, and they produced no established principle. From that time we all know the great study has been to find some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. ... I should be very sorry to find myself under a necessity of differing from any case on this subject which has been decided by Lord Mans- field, who may be truly said to be the founder of the commercial law of this country," Buller J. Lickbarrow v. Mason (1793) 1 S. L. C. 674, 685. 8 Goodwin v. Robarts (1875) L. R. 10 Ex. 337, 346; cp. Brandao v. Barnett (1846) 12 Cl. and Fin. 787, and Edelstein v. Schuler and Co. L. R. (1902) 2 K. B. 144, 154. 10. A COMPARISON OF THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND l BY JAMES BKYCE Z IN the last preceding Essay the organs of legislation, and the methods whereby they were worked at Rome and in England respectively, were discussed and compared. A con- sideration of the course which legal change took, in its various phases of development, reform or decay, may be completed by inquiring into the general causes and forces which deter- mined and guided the process of change. To justify the selection of Rome and England for comparison it is necessary to recur to two points only in which the history of institutions in these two States presents a remarkable analogy. Both have been singularly independent of outside influences in the development of their political character and their legal insti- tutions. The only influence that seriously told on Rome was that of the Greeks : yet how thoroughly Roman all the insti- tutions that ever had been Roman remained down till the second century of the Empire, after Hellenic influence had for more than two hundred years been playing freely and fully upon literature and thought ! So English institutions have been far less affected by external influences than have been those of any other part of European Christendom. In 1 The following essay forms the fifteenth in the author's " Studies in History and Jurisprudence," 1901 (New York: Oxford University Press, American Branch), pp. 745-781. 'His British Majesty's Ambassador to the United States of Amer- ica. B. A. Oxford 1862, D. C. L. Oxford 1870; Fellow of Oriel College 1862; Barrister of Lincoln's Inn 1867; Regius Professor of Civil Law at Oxford, 1870-1893; LL. D. Edinburgh, Glasgow, Michigan, St. An- drews, Harvard; Pol. Sc. D. Buda-Pest; Litt. D. Victoria, Cambridge; D. C. L. Trinity (Toronto). Other Publications: The Holy Roman Empire, 1862; Trade-Mark Law, 1877; The American Commonwealth, 1888; Impressions of South Africa, 1897; Studies in Contemporary Biography, 1903. 332 10. BRYCE: ROME AND ENGLAND 333 .France, Italy, Germany, and Spain, the traces of Roman dominion were never obliterated, and Roman law too, both through its traditions and through the writings which embody it, has always been a more potent factor than it ever was here. These countries have, moreover, borrowed more from each other than we have done from any one of them, except, per- haps, in the days when Normandy gave a Continental tinge to the immature feudality of England. And, secondly, both Rome and England have extended their institutions over vast territories lying beyond their own limits. Each has been a conquering and ruling power, and the process by which each grew into a World State from being, the one a City and the other a group of small but widely scattered rural tribes, offers striking points of resemblance as well as of contrast. I might add that there are similarities in the character of the two nations, similarities to which their success in conquering and ruling is due. But, for the moment, it is rather to law and institutions than to character that I seek to direct the reader's attention. Since the law of every country is the outcome and result of the economic and social conditions of thai; country as well as the expression of its intellectual capacity for dealing with these conditions, the causes which modify the law are usually to be sought in changes which have passed upon economic and social phenomena. When new relations between men arise, or when the old relations begin to pass into new forms, law is called in to adjust them. The part played by speculative theorists or scientific reformers who wish to see the law made more clear and rational is a relatively small factor in legal change, and one which operates only at rare moments. The process of development, if not wholly unconscious, is yet spontaneous and irregular. Alterations are made, not upon any general plan or scheme, but as and when the need for them becomes plain, or when it has at least become the inter- est of some ruling person or class to make them. The relation of the general history, political, economic, and social, to changes in laws and institutions is best seen at certain definite epochs. It is indeed true that in nations which have reached a certain stage of civilization the conditions of 334 //. FROM THE 1100'S TO THE 1800'S life, and the relations of men and classes to one another,, never remain quite the same from generation to generation. Every mechanical discovery, every, foreign war or domestic insurrection, every accession or loss of territory, every relig- ious or intellectual movement leaves things somewhat different from what it found them. Nevertheless, though the process of change is, except in savage or barbarous peoples, practi- cally constant and uninterrupted, it becomes at certain partic- ular moments much more swift and palpable, rushing, so to speak, through rapids and over cataracts instead of gliding on in a smooth and equable flow. These are the moments when a nation, or its ruler, perceives that the economic or social transformations which have been taking place require to be recognized and dealt with by corresponding changes in law and institutions, or when some political disturbance, or shifting of power from one class or group to another, sup- plies the occasion for giving effect to views or sentiments hitherto repressed. Accordingly it is profitable to give spe- cial attention to these transitional epochs, because it is in them that the relation between causes and consequences can be studied most easjly and on the largest scale. Let us see what are the epochs in Roman and in English history which may be selected as those marked by conspicuous legal or institu- tional changes before we examine the relations of these changes to the forces which brought them about. /. Five Chief Epochs of Legal Change at Rome In the thousand years of Roman history that lie between the first authentic records of the constitution and laws of the city, say 451 B. c., when the Decemviral Commission, which produced the laws of the Twelve Tables, was appointed, and 565 A. D., when Justinian died, having completed his work of codification and new legislation, 1 we may single out five such epochs. 1. The epoch of the Decemviral Legislation, when many of 1 It is convenient to stop with Justinian, because he gave the law the shape in which it has influenced modern Europe, and because our his- torical data became much more scanty after his time. But of course the 10. BRYCE: ROME AND ENGLAND 335 the old customs of the nation, which had been for the most part preserved by oral tradition, were written down, being no doubt modified in the process. 2. The days of the First and Second Punic Wars, when the growth of population and trade, the increase of the number of foreigners resident in Rome, and the conquest by Rome of territories outside Italy, began to induce the development of the Praetorship as an office for expanding and slowly remodelling the law. 3. The end of the Republic and early days of the Empire, when there was a brilliant development of juridical litera- ture, when the opinions of selected jurists received legal authority from the Emperor's commission, when the Senate was substituted for the popular assemblies as the organ of legislation, and when the administration of the provinces was resettled on a better basis all these changes inducing a more rapid progress of legal reform. 4. The reigns of Diocletian and Constantine, when impe- rial legislation took a fresh and vigorous start, and when, the triumph of Christianity brought a new, a powerful, and a widely pervasive force into the field of politics and legislation. 5. The reign of Justinian, when the plan of codification whose outlines Julius Caesar had conceived, and which Theo- dosius II had done something to carry out, was at last completed by the inclusion of the whole law of Rome in two books containing the pith of the then existing law, and when many sweeping reforms were effected by new legislation. It is less easy to fix upon epochs of conspicuous change in English legal institutions and law, because English develop- ment has been on the whole more gradual, and because the territorial limits of the area affected by change have not expanded to anything like the same extent as did the terri- tories that obeyed Rome. Rome was a City which grew to be the civilized world: the Urbs became Orbis Terrarum. The English were, and remain, a people inhabiting the southern part of an island, and beyond its limits they have expanded history of the law goes on to A. D. 1204, and in a sense even to A. D. 1453, in an unbroken stream, the codes issued by the later Emperors, and especially the Basilica of Leo the Philosopher, being based upon Justin- ian's redaction. 336 //. FROM THE 1100'S TO THE 1800'S (except as respects Ireland), not by taking in new territories as parts of their State, but by planting semi-independent self-governing States which reproduce England. 1 However, one may, for the sake of a comparison with Rome, take the five following epochs as those at which the process of change became the most swift and the most effective for destruction and creation. II. Five Epochs of Legal Change in England 1. The time of Henry II, when the King's Courts became organized, and began to evolve a Common Law for the whole realm out of the mass of local customs. 2. The times of Edward I and Edward III, when the solidi- fication of the kingdom saw the creation of a partly repre- sentative legislature, the enactment of important statutes, and the establishment of a vigorous organ for the develop- ment and amendment of the law in the Chancellorship. 3. The time of Henry VIII and Edward VI, when the prog- ress of society and an ecclesiastical revolution caused the passing of several sweeping legal reforms, separated the courts and the law of England from a system of jurispru- dence which had influenced it in common with the rest of Western Christendom, and permanently reduced the power of the clergy and of clerical ideas. 4. The epoch of the Great Civil War and Revolution, when legislative authority, hitherto shared or disputed by the Crown and the Houses of Parliament, passed definitely to the latter, and particularly to the popular branch of Parliament, and when (as a consequence) the relation of the Monarch to the landholding aristocracy, and that of the State to its subjects in religious matters, underwent profound alterations. 5. The reigns of William IV and Victoria, when the rapid growth of manufacturing industry, of trade, and of popula- tion, coupled with the influence as well of new ideas in the sphere of government as of advances made in economic and social science, has shaken men loose from many old traditions 1 1 do not include India or the Crown Colonies, because the popula- tion of these is not English. 10. BRYCE: ROME AND ENGLAND 337 or prejudices, and has, while rendering much of the old law inapplicable, made a great deal of new legislation indis- pensable. Now let us consider what are the forces, influences, or conditions which at all times and everywhere become the sources and determining causes of changes in laws and insti- tutions, these latter being that framework which society constructs to meet its needs, whether administrative or econdmic or social. Five such determining causes may be singled out as of special importance. They are these. 1. Political changes, whether they consist in a shifting of power as between the classes controlling the government of a country, or affect the structure of the governmental machin- ery itself, as for instance by the substitution of a monarch for an assembly or of an assembly for a monarch. 2. The increase of territory, whether as added to and incorporated in the pre-existing home of a nation or as con- stituting a subject dominion. 3. Changes in religion, whether they modify the working of the constitution of the country or involve the abolition of old laws and the enactment of new ones. 4. Economic changes, such as the increase of industrial production or the creation of better modes of communication, with the result of . facilitating the exchange of commodities. 5. The progress of philosophic or scientific thought, whether as enouncing new principles which ultimately take shape in law, or as prompting efforts to make the law more logical, harmonious and compendious. The influence of other nations might be added, as a sixth force, but as this usually acts through speculative thought, less frequently by directly creating institutions and laws, it may be deemed a form of No. 5. The two last of these five sources of change, viz. commerce and speculative or scientific thought, are constantly, and therefore gradually at work, while the other three usually, though not invariably, operate suddenly and at definite moments. All have told powerfully both on Rome and on England. But as the relative importance of each varies from 338 //. FROM THE 1100'S TO THE 1800'S one country to another, so we shall discover that some have counted for more in the case of Rome, some in that of England. The differences throw an instructive light on the annals of the two nations. ///. Outline of Legal Changes at Rome The legal history of Rome begins with the law of the Twelve Tables. This remarkable code, which, it need hardly be said, was neither a code in the modern sense, nor in the main new law, but rather a concise and precise statement of the most important among the ancient customs of the people, dominated the whole of the republican period, and impressed fc. peculiar character upon the growth of Roman law from the beginning till the end of the thousand years we are regarding. It gave a sort of unity and centrality to that growth which we miss in many other countries, England inchided, for all Roman statutes bearing on private law were passed with reference to the Twelve Tables, .nearly all commentaries grouped themselves round it, and when a new body of law that was neither statute nor commentary began to spring up, that new law was built up upon lines determined by the lines of the Twelve Tables, since the object was to supply what they lacked or to modify their enactments where these were too harsh or too narrow. Its language became a model for the form which later statutes received. It kept before the minds of jurists and reformers that ideal of a systematic and symmetrical structure which ultimately took shape in the work of Theodosius II and Justinian. Now the law of the Twelve Tables was primarily due to political discontent. The plebeians felt the hardship of being ruled by customs a knowledge of which was confined to the patrician caste, and of being thereby left at the mercy of the magistrate, himself a patrician, who could give his decision or exert his executive power at his absolute discretion, because when he declared himself to have the authority of the law, no one, outside the privileged caste he belonged to, could convict him of error. Accordingly the plebs demanded the creation of a commission to draft laws defining the powers of the Consuls, and this 10. BRYCE: ROME AND ENGLAND 339 x demand prevailed, after a long struggle, in the creation of the Decemvirs, who were appointed to draft a body of gen- eral law for the nation. This draft was enacted as a Statute, and became thenceforth, in the words of Livy, 1 " the fountain of all public and private law." Boys learnt it by heart down to the days of Cicero, and he, despite his admiration for things Greek, declares it to surpass the libraries of all the philosophers. 2 For some generations there seem to have been compara- tively few large changes in private law, except that declara- tion of the right of full civil intermarriage between patricians and plebeians, which the Twelve Tables had denied. But the knowledge of the days on which legal proceedings could properly be taken remained confined to the patricians for nearly a century and a half after the Decemvirs. The plebs had, however, been winning political equality, and three or four years after the time when the clerk Flavius revealed these pontifical secrets it was completed by the admission of the plebeians to the offices of pontiff and augur. Meanwhile Rome was conquering Italy. The defeat of Pyrrhus in B. c. 275 marks the virtual completion of this process. A little later, the First Punic War gave her most of Sicily as well as Sardinia and Corsica, and these territories became provinces, administered by magistrates sent from Rome, She was thus launched on a policy of unlimited territorial expansion, and one of its first results was seen in two remarkable legal changes. The increase in the power and commerce of Rome, due to her conquests, had brought a large number of persons to the city, as residents or as sojourners, who were not citizens, and who therefore could not sue or be sued according to the forms of the law proper to Romans. It became necessary to provide for the litiga- tion to which the disputes of these aliens (peregrini) with one 1 " Decem tabularum leges quae nunc quoque in hoc immense aliarum super alias acer% r atarum legum cumulo fons omnis publici privatique est juris" (iii. 24). 2 " Bibliothecas mehercule omnium philosophorum unus mihi videtur xii tabularum libellus, siquis legum fontes et capita viderit, et auctori- tatis pondere et utilitatis ubertate superare" (De Orat. i. 44). An odd comparison, and one in which there is more of patriotism than of philos- ophy. 340 //. FROM THE 1100'S TO THE 1800'S another or with Romans gave rise, and accordingly a Magis- trate (Praetor peregrinus) was appointed whose special function it became to deal with such disputes. He was a principal agent in building up by degrees a body of law and a system of procedure outside the old law of Rome, which received the name of lus Gentiwm (the law of the nations) as being supposed to embody or be founded on the maxims and rules common to the different peoples who lived round Rome, or with whom she came in contact. 1 Through the action of the older Urban Praetor much of this ius gentium found its way into the law administered to the citizens, in the way described in the last preceding Essay. Similarly the Pro- consuls and Propraetors, who held their courts in the*subject provinces, administered in those provinces, besides the pure Roman law applicable to citizens, a law which, though much of it consisted of the local laws and customs of the particular province, had, nevertheless, a Roman infusion, and was prob- ably in part, like the ius gentium, generalized from the customs found operative among different peoples, and there- fore deemed to represent general principles of justice fit to be universally applied. The Edicts which embodied the rules these magistrates applied became a source of law for the respective provinces. 2 These remarkable changes, which may be said to belong to the period which begins with the outbreak of the First Punic War (B. c. 264), started Roman law on a new course and gave birth to a new set of institutions whereby new territories, ultimately extended to embrace the whole civilized world, were organized and ruled. It was through these changes that the law and the institutions of the Italian City became so moulded as to be capable not only of pervading and trans- forming the civilizations more ancient than her own, but of descending to and influencing the modern world. Now these changes, like those which marked the period of .the Twelve Tables, had their origin in political events. In the former case it was internal discontent and unrest that were the motive forces, in the latter the growth of dominion and of trade, 1 As to the ius gentium see Essay XI, p. 570 sqq. [in the original volume]. *As to this see Essay II, pp. 77, 78 [in the original volume]. 10. BRYCE: ROME AND ENGLAND 341 trade being the consequence, not so much of industrial devel- opment as of dominion. But in both cases and this is gen- erally true of the ancient world as compared with the modern political causes play a relatively greater part than do causes either of an economic or an intellectual and speculative order. J How much is to be set down to external influences? The Roman writers tell us of the sending out of a body of roving commissioners to examine the laws of Athens and other Greek cities to collect materials for the preparation of the Twelve Tables. So too the contact of Rome with the Greek republics of Southern Italy in the century before the Punic Wars must have affected the Roman mind and contributed to the ideas which took shape in the ins gent'vum. Nevertheless any one who studies the fragments of the Twelve Tables will find in them comparatively few and slight traces of any foreign influence; and one may say that both the substance of the Roman law and the methods of procedure it followed remain, down till the end of the Republic, so eminently national and un-Hellenic in their general character that we must assign a secondary part to the play of foreign ideas upon them. The next epoch of marked transition is that when the Empire of Rome had swollen to embrace the whole of the West except Britain and Western Mauretania, and the whole of the known East except Parthia. 2 It was the epoch when the Republican Constitution had broken down, not merely from internal commotions, but under the weight of a stu- pendous dominion, and it was also the epoch when the philosophies of Greece had made the Roman spirit cosmo- politan, and dissolved the intense national conservatism in *Of course I do not mean to disparage the immense importance of economic causes always and everywhere, but in the ancient world,, where communities were mostly small, they tended more quickly to engender political revolutions, and thus their action became involved with politics. In the modern world, where nations are mostly large and political change is usually more gradual, economic factors fre- quently tell upon society and affect the working of institutions without leading to civic strife. The more the world develops and settles down, and the further it moves away from its primitive conditions, the greater becomes the relative significance of the economic elements. * " Parthos atque Britannos " are aptly coupled by Horace as the two peoples that remained outside the Empire. 342 //. FROM THE 1100'S TO THE 1800'S legal matters which distinguished the older jurists. Here, therefore, two forces were at work. The one was political. It laid the foundations of new institutions, which ripened into the autocracy of the Empire. It substituted the Senate for the popular Assembly as the organ of legislation. It gave the head of the State the power of practically making law, which he exercised in the first instance partly as a magistrate, partly through the practice of issuing to selected jurists a commission to give answers under his authority. 1 The other force was intellectual. It made the amendment of the law, in a liberal and philosophical sense, go forward with more bold- ness and speed than ever before, until the application of the new principles had removed the cumbrousness and harshness of the old system. But it should be remembered that this intellectual impulse drew much of its power from political causes, because the extension of the sway of Rome over many subject peoples had accustomed the Romans to other legal systems than their own, and had led them to create bodies of law in which three elements were blent the purely Roman, the provincial, and those general rules and maxims of common-sense justice and utility which were deemed univer- sally applicable,- and formed a meeting-ground of the Roman and the provincial notions and usages. So here too it is political events that are the dominant and the determining factor in the development both of private law and of the im- perial system of government, things destined to have a great future, not only in the form of concrete institutions adopted by the Church and by mediaeval monarchy, but also as the source of creative ideas which continued to rule men's minds for many generations. Nearly three centuries later we come to another epoch, when two forces coincide in effecting great changes in law and in administration. The storms that shook and seemed more than once on the point of shattering the fabric of the Empire from the time of Severus Alexander to that of Aurelian (A. D. 235 to 270), had shown the need for energetic measures to avert destruction ; and the rise to power of men of exceptional ca- 1 Described in the last preceding Essay, pp. 677, 678 [in the original volume]. 10. BRYCE: ROME AND ENGLAND 343 pacity and vigour in the persons of Diocletian and Constan- tine enabled reforms to be effected which gave the imperial government a new lease of life, and made its character more purely despotic. Therewith came the stopping of the persecu- tion of the Christians, and presently the recognition of their religion as that which the State favoured, and which it before long began to protect and control. The civil power admitted and supported the authority of the bishops, and when doc- trinal controversies distracted the Church, the monarchs, beginning from Constantine at the Council of Nicaea, endea- voured to compose the differences of jarring sections. These changes told upon the law as well as upon institu- tions. New authorities grew up within the Church, and these authorities, after long struggles, obtained coercive power. Not only was the spirit of legislation in such subjects as slavery and the family altered marriage and divorce, for instance, began to be regarded with new eyes but a fresh field for legislation was opened up in the regulation of various ecclesiastical or semi-ecclesiastical matters, as well as in the encouragement or repression of certain religious opinions. The influence on law of Greek customs, which seemed to have been expunged by the extension of citizenship to all subjects a century before Constantine, makes itself felt in his legislation. Besides these influences belonging to the sphere of politics and religion, economic causes, less conspicuous, but of grave moment, had also been at work in undermining the social basis of the State and inducing efforts to apply new legisla- tive remedies. Slavery and the decline of agriculture, par- ticularly in the Western half of the Empire, throughout which there seems to have been comparatively little manu- facturing industry, had reduced the population and the prosperity of the middle classes, and had exhausted the source whence native armies could be drawn. Thus social conditions were changing. The growth of that species of serfdom which the Romans called colonatus belongs to this period. The financial strain on the government became more severe. New expedients had to be resorted to. All these phenomena, coupled with the more autocratic character which the central government of the Empire took from 344 li. FROM THE 1100' S TO THE 1800' S Diocletian onwards, induced a great and sometimes indeed a hasty and feverish exuberance of legislation, which was now effected solely by imperial ordinances. Industrial decay seems to have been more rapid in Western than in the Eastern provinces, though palpable enough in such regions as Thrace and Greece. But everywhere there was an intellectual decline, which appeared ^not least in the sinking of the level of juristic ability and learning. The great race of jurists who adorned the first two and a half centuries of the Empire had long died out. We hear of no fertile legal minds, no law books of merit deserving to be remembered, during the fourth and fifth centuries of our era. The mass of law had however increased, and the judges and practising advocates were, except in the larger cities, less than ever capable of dealing with it. The substitution of Roman for provincial law effected by the Edict of the Emperor Antoninus Caracalla had introduced some confusion, especially in the Eastern provinces, where Greek or Oriental customs were deeply rooted, and did not readily give place to Roman rules. The emperors themselves deplore the ignorance of law among practitioners: and presently it was found necessary to prescribe an examination for advocates on their admission to the bar. Accordingly the necessity for collect- ing that which was binding law and for putting it into an accessible form became greater than ever. It had in earlier days been an ideal of perfection cherished by theorists ; it was now an urgent practical need. It was not the bloom and splendour but the decadence of legal study and science that ushered in the era of codification. A century after the death of Constantine, the Emperor Theodosius II, grandson of Theodosius the Great, reigning at Constantinople from A. D. 408 to A. D. 450, issued a complete edition of the imperial constitutions in force, beginning from the time of Con- stantine, those of earlier Emperors having been already gathered into two collections (compiled by two eminent ju- rists) in current use. Shortly before a statute had been issued giving full binding authority to all the writings (ex- cept the notes of Paul and Ulpian upon Papinian) of five specially famous jurists of the classical age (Papinian, Paul, 10. BRYCE: ROME AND ENGLAND 345 Gains, Ulpian, Modestinus ) . The advisers of Theodosius II had intended to codify the whole law, including the ancient statutes and decrees of the Senate and Edicts of magistrates so far as they remained in force, as well as the writings of the jurists, but the difficulties were too great for them, and they contented themselves with a revised edition of the more recent imperial constitutions. Justinian was more energetic, and his codification of the whole law of the Empire marks an epoch of supreme impor- tance in the history not merely of Rome but of the civilized world, for it is possible that without it very little of the jurisprudence of antiquity would have been preserved to us, so that the new nations which were destined to emerge from the confusion of the Dark Ages might have lacked the foun- dation on which they have built up the law of the modern world. It is indeed an epoch which stands alone both in legal and in political history. Justinian's scheme for arranging and consolidating the law included a compilation of extracts from the writings of the jurists of the first three centuries of the Empire, together with a collection of such and so many of the Constitutions of the Emperors as were to be left in force, both collections being revised so as to bring the contents of each into accord and to harmonize the part of earlier date (viz. that which contained the extracts from the old jurists) with the later law as settled by imperial ordinances. It was completed in the space of six years only too short a time for so great a work. It was followed by a good deal of fresh legislation, for the Emperor and his legal minister Tribonian, having had their appetite whetted, desired to amend the law in many further points and reduce it to a greater symmetry of form and perfection of substance. The Emperor moreover desired, for Tribonian was probably something of a Gallic in such matters, to give effect to his religious sentiments both by laying a heavy hand on heretics and by making the law more conformable to Christian ideas. Thus the time of Justinian is almost as significant for the changes made in the substance of the law as for the more compendious and convenient form into which the law was brought. 346 //. FROM THE 1100'S TO THE 1800'S Some thirty years before the enactment of Justinian's Codex and Digest (which, though intended for the whole Empire, did not come into force in such Western provinces as had already been lost) three collections of law had been made by three barbarian kings for the governance of their HOI nan subjects. These were the Edictum of Theodorich, King of the East Goths, published in A. D. 500, the Lex Romana Visigothorum, commonly called the Breviarium Ala- ricianum, published by Alarich II, King of the West Goths (settled in Aquitaine and Spain), in A. D. 506, a year before his overthrow by Clovis, and the Lex Romana Burgwndionum, published by the Burgundian King Sigismund in the begin- ning of the sixth century. These three compilations, each of which consists of a certain number of imperial Constitutions, with extracts from a few jurists, ought to be considered in relation to Justinian's work, partly because each of them did for a part of the Roman West what he did for the East, and, as it turned out, for Italy and Sicily also, when Beli- sarius reconquered those countries for him, and partly because they were due to the same need for accessible abridgements of the huge mass of confused and scattered law which prompted the action of Justinian himself. They are parts of the same movement, though they have far less importance than Justinian's work, and, unlike his, include little or no new law. The main cause of the tendency to consolidate the law and make it more accessible was the profusion with which Diocletian and his successors had used their legislative power, flooding the Empire with a mass of ordinances which few persons could procure or master, together with the decline of legal talent and learning, which made judges and advocates unable to comprehend, to appropriate and to apply the philosophical principles and fine distinctions stored up in the treatises of the old jurists. Here, therefore, political and intellectual conditions, conditions rather of decline than of progress, lay at the root of the phenomenon. But in the case of Justinian something must also be credited to the enlightened desire which he, or Tribonian for him, had con- ceived of removing the complexities, irregularities and dis- 10. BRYCE: ROME AND ENGLAND 347 crepancies of the old law, bringing it nearer to what they thought substantial justice, and presenting it in concise and convenient form. Plato desired to see philosophy in the seat of power, and in Justinian philosophic theory had a chance such as it seldom gets of effecting permanently important changes by a few sweeping measures. Yet theory might have failed if it had not been reinforced by the vanity of an auto- crat who desired to leave behind him an enduring monu- ment. This rapid survey has shown us that two forces were always operative on the development of Roman law inter- nal political changes and the influence of the surrounding countries. As Rome conquered and Romanized them, they compelled her institutions to transform themselves, and her law to expand. Economic conditions, speculative thought and religion had each and all of them a share in the course which reforms took, yet a subordinate share. IV. Outline of the Progress of Legal Changes in England Let us now turn to England and see what have been the forces that have from time to time brought about and guided the march of legal change, and what have been the relations of that change to the general history of the country. As with Rome we began at the moment when the ancient customs were first committed to writing and embodied in a comprehensive statute, so in England it is convenient to begin at the epoch when the establishment of the King's Courts enabled the judges to set about creating out of the mass of local customs a body of precedents which gave to those cus- toms definiteness, consistency and uniformity. Justice, fixed and unswerving justice, was in the earlier Middle Ages the chief need of the world, in England as in all mediaeval countries ; and the anarchy of Stephen's reign had disposed men to welcome a strong government, and to acquiesce in stretches of royal power that would otherwise have been distasteful. Henry II was a man of great force of character and untiring energy, nor was he wanting in the talent for selecting capable officials. He had to struggle, not only 348 //. FROM THE 1100'S TO THE 1800'S aguinst the disintegrating tendencies of feudalism, but also against the pretensions of the churchmen, who claimed exemp- tion from his jurisdiction, and maintained courts which were in some directions formidable rivals to his own. He prevailed in both contests, though it was not till long after that the victory was seen to have remained with the Crown. It was his fortune to live at a time when the study of law, revived in the schools of Italy, had made its way to England, where it was pursued with a zeal which soon told upon the practice of the Courts, sharpening men's wits and providing for them an arsenal of legal weapons. It is true that the law taught at the Universities was the Roman law, and that the practi- tioners were almost entirely ecclesiastics. Now the barons, however jealous they might be of the Crown, were not less jealous of ecclesiastical encroachments and of the imperial law. They could not prevent judges from drawing on the treasures which the jurists of ancient Rome had accumulated, but they did prevent the Roman law from becoming recog- nized as authoritative; so that whatever it contributed to the law of England came in an English guise, and served rather to supplement than to supersede the old customs of the kingdom. In this memorable epoch, which stamped upon the common law of England a character it has never lost, the impulse which the work of law-making received came primarily from the political circumstances of the time, that is, from the desire of the king to make his power as the receiver of taxes and the fountain of justice effective through his judges, and from the sense in all classes that the constant activity of the Courts in reducing the tangle of customs to order, no less than the occasional activity of the king when he enacted with the advice and consent of his Great Council statutes such as the Constitutions of Clarendon, was a beneficial activity, wholesome to the nation. But though political causes were the main forces at. work, much must also be allowed to the influence of ideas, and particularly to the intellectual stimulus and the legal training which the study of Roman jurisprudence had given to the educated men who surrounded and worked for the king and the bishops. 10. BRYCE: ROME AND ENGLAND 349 The development of English institutions has been at all times so slow and so comparatively steady that it is not easy to fix upon particular epochs as those most conspicuously marked by change. However I take the epoch of Edward I and Edward III. Under Edward I, whose reign was one of comparative domestic tranquillity, the organ of government whose supreme legislative authority was to become unques- tioned took its final shape in passing from a Great Council of magnates to an Assembly consisting of two Houses, in one of which the chief tenants of the Crown sat, while the other was composed of representatives of the minor tenants and of boroughs. Under his grandson the chief judicial Minister of the Crown began to sit as a Court, granting redress in the name of the Crown in cases or by methods which the pre- existing Courts were unable or unwilling to deal with. Par- liament passed under Edward I some statutes of the first magnitude, such as Quia Emptores and De Donis Conditio- nalibus, which impressed a peculiar character on the English land system, and introduced some valuable improvements in the sphere of private rights and remedies. But the legisla- ture was, for two or three centuries, in the main content to leave the building up of the law to the old Common Law Courts and (in later days) to the Chancellor. The action of this last-named officer was, during the fifteenth, sixteenth and seventeenth centuries, of capital importance, so that the establishment of his jurisdiction is one of the landmarks of our legal history. It was really a renewal, two hundred years after Henry IPs time, of that king's efforts to secure the due administration of justice through the realm, but it grew up naturally and spontaneously, with less of conscious purpose than Henry II had shown. Both the . legislature and the Chancellor were the outcome of political causes, but it must not be forgotten that in the methods taken by the Chancellor (hardly reduced to a system till the seventeenth century) we find the working of a foreign influence which thereafter dis- appears from English law, that, namely, of the civil and canon laws of Rome and of the Roman Church, for the Chan- cellors of the fourteenth and fifteenth centuries were all ecclesiastics and drew largely from Roman sources. 350 //. FROM THE 1100'S TO THE 1800'S The days of the Reformation bring two new and powerful influences to bear upon laws and institutions. One of these influences is economic, the other religious. The growth of industry and trade had so far disintegrated the old structure of society and brought about new conditions that not a few new laws, among which the most familiar and significant are the Statute of Uses and the Statute of Wills, were now needed. The nation was passing out of the stiffness of a society based on landholding and recognizing serfdom into a larger and freer life. At the same time the religious revolu- tion which severed it from Rome, which was accompanied by the dissolution of the monasteries, and which ended by secur- ing the ascendency of a new body of theological ideas and of simpler forms of worship, involved many legal changes. The ecclesiastical courts were shorn of most of their powers, and the law they administered was cut off from the influences that had theretofore moulded and dominated it. The position of the clergy was altered. New provisions for the poor soon began to be called for. New tendencies, the result of a bolder spirit of inquiry, made themselves felt in legislation. One sees them stirring in the mind of Sir Thomas More. It was some time before the religious and economic changes took their full effect upon the law. But nearly all the remarkable develop- ments that make the time of Henry VIII and Elizabeth an epoch of legal change, may be traced not so much to politics as to the joint influence of commerce (including the growth of personal, as distinguished from real, property) and of theology. Even the oceanic power and territorial expansion of England, which began with the voyages of Drake and the foundation of the Virginia Company and of the East India Company, did not affect either the law or the institutions of the country. The establishment of distant settlements was largely the result of the growing force of commercial enterprise, in which there was at first very little of political ambition, though it cordially lent itself to a political antag- onism first to Spain and then to France. With the time of the Great Civil War we return to an era in which, though religion and commerce continue to be potent forces, the first place must again be assigned to political 10. BRYCE: ROME AND ENGLAND 351 causes. The struggle which overthrew the old monarchy effected two things. It extinguished the claims of the Crown to a concurrent legislative or quasi-legislative power. The two Houses of Parliament were established as an engine for effecting legal changes, prompt in action and irresistible in strength. 1 Towards this England had long been slowly tending, as during a century before Augustus Rome slowly tended to a monarchy. The work was completed at the Boyne and Aughrim, but the decisive blow was struck at Naseby. And, secondly, it occasioned the accomplishment of several broad and sweeping reforms in institutions as well as in law proper. A Parliamentary Union of England, Scotland and Ireland was effected which, though annulled by the Restora- tion, was a significant anticipation of what the following century was to bring. The old system of feudal tenure and the relics of feudal finance were abolished. New provisions were made, and old ones confirmed and extended, for the pro- tection of the freedom of the subject in person and estate. Commercial transactions were regulated, perhaps embar- rassed, by a famous enactment (the Statute of Frauds) regarding the evidence required to prove a contract. Such of these things as lay outside the purely political sphere were due partly to the development of industry and commerce, which had gone on apace during the reign of James I, and was resumed during the government of Cromwell and Charles II, partly to that sense which political revolutions bring with them, that the time has come for using the impulse of liber- ated forces to effect forthwith changes which had for a long time before been in the air. On a still larger scale, it was the Revolution and Empire in France that led to the remodelling of French institutions and the enactment of "Napoleon's Codes. 2 As usually happens, an era of abnormal activity in recast- ing institutions and in amending the law was followed by one of comparative quiescence. It was not till the middle of the 1 As Milton says : " And that two-handed engine at the door Stands ready to strike once and strike no more." * Although the Napoleonic government was in many things only completing work begun under Lewis the Fourteenth. 352 //. FROM THE 1100'S TO THE 1800'S reign of George III that the beginnings of a new period of transition were apparent, not till after the Reform Bill of 1832 that the largest among the many reforms towards which men's minds had been ripening were effected. These reforms, which have occupied the last sixty-seven years, have touched every branch of law. They include a great mitigation of the old severity of the criminal law and the introduction of provisions for repressing those new offences which are incident to what is called the progress of society. They have expunged the old technicalities .of pleading by which justice was so often defeated. They have striven to simplify legal procedure, though they have not suc- ceeded in cheapening it, and have fused the ancient Courts of Common Law with those of Equity. They have removed religious disqualifications on the holding of offices and the exercise of the suffrage. They have dealt with a long se- ries of commercial problems, and have in particular made easy the creation" of corporations for business and other purposes, given limited liability to their members, and laid down many regulations for their management. They have altered the law of the land, enlarging the powers of life owners, and rendering it easier to break entails. They have reorganized the fiscal system, simplified the customs duties, and established a tariff levied for revenue only. They have codified the law, mainly customary in its origin, relating to such topics as 'negotiable instruments, sale and partnership. They have created an immense body of ad- ministrative law, extending and regulating the powers of various branches of the central government, and, while re- modelling municipal government, have created new systems of rural local government. As regards the central institu- tions of the country, several new departments of State have been called into being. Ecclesiastical property has been boldly handled, though not (except in Ireland) diverted to secular uses ; a new Court of Appeal for causes coming from the extra-Britannic dominions of the Crown has been set up, and the electoral franchise has been repeatedly extended. These immense changes have been due to three influences. The first was the general enlightment of mind due to the play 10. BRYCE: ROME AND ENGLAND 353 of speculative thought upon practical questions which marked the end of last and the beginning of this century, and of which the most conspicuous apostles were Adam Smith in the sphere of economics and Jeremy Bentham in the sphere of legal reform. The second was the rapid extension of manu- facturing industry and commerce, itself largely due to the progress of physical science, which has placed new resources at the command of man both for the production and for the transportation of commodities. The third influence was po- litical, and was itself in large measure the result of the other two, for it was the combination of industrial growth with in- tellectual emancipation that produced the transfer of political power and democratization of institutions which went on from the Roman Catholic Emancipation Act of 1829 to the Local Government Act of 1894. Could we imagine this in- dustrial and intellectual development to have failed to work on political institutions as it in fact did work, it would hardly the less have told upon administration and^ upon private law, for the new needs would under any form of government, even under an oligarchy like that of George IPs time, have given birth to new measures fitted to deal with them. The legisla- tion relating to Joint Stock Companies (beginning with the Winding-Up Acts), which filled so important a place in the English Statute-book from 1830 to 1862, and which still continues, though in a reduced stream, would under any political conditions have been required owing to the growth of commerce, the making of railways, the increased need for the provision of water, gas and drainage. And there went on, hand and hand with it, an equally needed development by the Courts of Equity of the law of partnership, of agency and of trusts, as applied to commercial undertakings. What the political changes actually did was to provide a powerful stimulus to reform, and an effective instrument for reform, while reducing that general distaste for novelties which had been'so strong in the first half of the eighteenth century. If we now review the general course of changes in institu- tions and law in the two States selected for comparison we shall be struck by two points of difference. 354 //. FROM THE 1100'S TO THE 1800'S V. Some Differences between the Development of Roman and that of English Law The branch of private law which is most intimately con- nected with the social and economic habits of a nation, and which, through social and economic habits, most affects its character, is that branch which touches Property, and the connexion of property with the Family. The particular form which the institutions relating to property, especially immov- able property, take, tells upon the whole structure of society, especially in the earlier stages of national growth. The rules, for instance, which govern the power of an owner to dispose of his property during his life or by will, and those which determine the capacity of his wife and children to acquire for themselves by labour or through gift, and to claim a share in his estate at his decease if he dies intestate, or even against his last will these rules touch the richer and middle classes in a community and affect their life. So one may perhaps say that the development of this branch of law comes nearer than any other to being the central line of legal devel- opment, bearing in mind that it is the needs and wishes of the richer and middle classes which guide the course of legal change. Here, however, we discover an interesting point of comparison between Roman and English legal history. At Rome it is the history of the Family, especially as taken on its economic or pecuniary side, the most important part of which is the Law of Inheritance, that plays the largest part. The old rules, which held the Family together, and vested in the father the control of family property, wepe at first stringent. From the third century B. c. onwards they began to be modified, but they were so closely bound up with the ideas and habits of the people that they yielded very slowly, and it was not till the bold hand of Justinian swept away nearly all that remained of the ancient rules of succes- sion, and put a plain and logical system in their place, that the process was complete. In England, on the other hand, it is the Law of Land that is the most salient feature in the economi co-legal system of the Middle Ages. Among the Teutons the Family had not 10. BRYCE: ROME AND ENGLAND 355 been, within historic times at least, a group closely bound to- gether as it was among the Italians, whereas the historical and political conditions of the eleventh and twelfth centuries had in Western Europe made landholding the basis of nearly all social and economic relations. Hence the land customs then formed took a grip of the nation so tight that ages were needed to unloose it. The process may be said to have begun with a famous statute (Quia Emptores) in the reign of 'Ed- ward I. Its slow advance was quickened in the seventeenth century by political revolution; and the Act of 1660 which abolished knight service recorded a great change. The peace- ful revolution of 1832 gave birth to the series of statutes which from 1834 down to our own day have been reshaping the ancient land system, but reshaping it in a more piece- meal and perplexing fashion than that in which Justinian re- formed the law of succession by the 118th and 127th Novels. Problems connected with lartdholding still remain in England, as they do in nearly all States, especially where population is dense; but they differ from the old problems, and though disputes relating to the taxation of land give trouble, and may give still more trouble, questions of tenure have lost the special importance which made them once so prominent in our legal history. Both Rome and England have been, far beyond any other countries except Russia, expanding States. Rome the City became Rome the World-State. The Folk of the West Saxons went on growing till it brought first the other kingdoms of South Britain, Teutonic and Celtic, then the adjoining isles of Ireland and Man, then a large part of North America, then countless regions far away over the oceans under the headship of the descendants of Cerdic and Alfred. But in the case of Rome this expansion by conquest was the ruling factor in political and legal evolution, the determining influ- ence by which institutions were transformed. In England, on the other hand, it is the relations of classes that have been the most active agency in inducing political change, and the successive additions of territory have exerted a secondary in- fluence on institutions and an insignificant influence on law. Not only has English law been far less affected (save at the 356 //. FROM THE 1100'S TO THE 1800'S first two of the five epochs above described) by foreign law or foreign thought than Rome was, but the increase of England by the union, first of Scotland and then Ireland, and by the acquisition of transoceanic dominions, has not interrupted the purely insular or national development of English law. The conquest of Ireland, which began in the twelfth century but was not completed till the seventeenth, made no difference, because Ireland, always since the twelfth century far behind England in material progress and settled social order, re- ceived a separate civil administration with separate Courts. As these Courts administered English law, they followed in the path which England had already travelled and did not affect the progress of law in England. Nothing speaks more of the long-continued antagonism of the Teutonic and the Celtic elements in Ireland, and of the dominance of the Teu- tonic minority over the Celtic majority, than the practical identity of the common law in 'the two countries, and the total absence of any Celtic customs in that law. The few and comparatively slight differences which exist to-day between the law of England and that of Ireland are all due to statute. One is the absence of judicial divorce in Ireland, which an Act passed so recently as 1857 introduced in England. The second is to be found in the law relating to land, largely altered by statutes passed for Ireland by the British Parlia- ment of our own time. The third is the existence in Ireland of what are admitted to be exceptional and supposed to be temporary penal provisions, the last of which is the Preven- tion of Crime Act of 1887. As regards Scotland, when her king became king of England, and when, a century later, her Parliament was united with that of England, she retained her own law intact. In some few respects her law, founded on that of Rome, and her system of judicial administration are better than those of England, nor has she failed to con- tribute distinguished figures to the English bench and bar; but, as she stands far below England in population and wealth, she has affected the law of the larger country as little as the attraction of the moon affects the solid crust of the Earth. The vaster territorial expansion of the eighteenth and nine- 10. BRYCE: ROME AND ENGLAND 357 teenth centuries has told quite as little on the law of England as did the unions with Scotland and Ireland. When the Eng- lish began to people what are now the self-governing colonies, and when India came under British sway, English law was too fully developed to be susceptible to influences from them, not to add that they were too distant to make any assimilation either desirable or possible. Had India lain no further from England than Sicily and the Greek cities lay from Rome, had she been as near the level of English civilization as those coun- tries were to that of Roman civilization, and had she been conquered in the reign of Elizabeth instead of in the reign of George III, the history of English institutions and Eng- lish law must have been wholly unlike what it has in fact -been. These three differences measure the gulf which separates the course of English from that of Roman development. Another salient point in which the two States may be com- pared relates to the smaller part which purely political as compared with economic and intellectual changes have played in the development of English laws and institutions. Al- though there is a sense in Which every political change may be described as the result of an economic or intellectual change, or of both taken together, still it is true that at Rome the desire to grasp political power counted for more in the march of events than it has done in England. Economic changes sometimes operate on politics by raising the material condition of the humbler class and thereby dis- posing and enabling them to claim a larger share of political power. This happened at Rome more frequently in the earlier than in the later days of the Republic. In England it has happened more in later times than it did in earlier. Some- times, however, economic causes so depress the poor that their misery becomes acute or their envy intense, whence it befalls that they break out into revolt against the rich. This was on the point of happening more than once at Rome, but has been no serious danger in England since the days of Richard II. Sometimes, again, the growth of immense for- tunes and the opportunities of gaining wealth through poli- tics threaten the working of popular institutions. This oc- curred at Rome; and was one of the causes which brought 358 //. FROM THE 1100'S TO THE 1800'S the Republic to its death. It is a peril against which Eng- land has had, and may again have, to take precautions. Changes in thought and belief operate on politics either by weakening the deferential and submissive habits of the classes which have been excluded from power so that they insist on having their fair share of it, or by implanting in the minds of the middle and upper classes new ideas which grow strong enough to make them insist on bringing old- fashioned practice into accord with new and more enlightened theory. It was the concurrence of these two forms of intellectual change that gave its specially destructive char- acter to the French Revolution. Ideas of course act most quickly and powerfully when they are such as rouse emotion, for that which remains a mere intellectual concept or speculative opinion is not a thing to stir or to shake established institutions. The best illustration is to be found in religious beliefs. But the notion of Equality that is to say, the notion that rights vested in every man as a man demand that every man shall be treated alike has also proved an energetic explosive. Influences of this kind counted for little at Rome. Neither have they, except in the form of religious beliefs, or when their force coincided with that exerted by religious convictions, become the source of strife or constitutional change in England. One may indeed say that the course of England's political development has been less interrupted by convulsions than that of any other great State, for even the scars made by the Civil War were before long healed, so that hardly any of the old institutions perished, though some of them passed into new phases. The new buildings which popular govern- ment has within the present century added to the old edifice are built out of the same kind of stone, and (if one may venture to pursue the metaphor) weather to the same colour. So the growth of our law, both public and private, both criminal and civil, has been a gradual and quiet growth, due in the main to the steady increase in the magnitude and complexity of the industrial and commercial relations of life, which have made the law expand and improve at the bidding of practical needs. Where politics have affected the law, 10. BRYCE: ROME AND ENGLAND 359 this has been through the rise of the humbler classes, a rise largely due to economic causes. So likewise the influence of ideas, of new views as to what law should be and how it should serve the community, has been marked by few sudden crises, t and has been ruled by practical good sense rather than by aspirations after a theoretical perfection. As regards private law, this remark applies to the Romans also, although the constant strain placed upon their institutions by their territorial expansion as well as the differences be- tween a City State and a large rural State exposed their political system to more frequent shocks and ultimately to a more radical transformation. Finally, it may be observed that the interest felt in law, and the amount of intellectual effort given to its development, was probably greater among the educated class in Rome than it has ever been in any large section of the English people. Romans of intellectual tastes had fewer things to think about, fewer sub j ects to attract or to. distract them, than the English have had. Law was closely interwoven with public life. Country life and country sports, commerce, religion, travel and adventure, covered less of the mental horizon than these pursuits have covered to Englishmen of the upper or educated class, so that more of thought and time was left to be devoted to law. Nor were many Romans carried off into other regions, like the Greeks, by the love of art, or of music, or of abstract speculation. From this reflection another arises, viz. that legal and constitutional studies, as a subject for research and thought, find the competition of other subjects more severe in Eng- land to-day than they did in the eighteenth century. 1 His- torical inquiries, economic inquiries, and, to a still larger extent, inquiries in the realm of Nature, claim a far larger share in the interest of eager and active minds now than in the days of Hobbes or Locke or Bentham. They have done much to extrude law from the place it once held among subjects of interest to unprofessional persons. This is true all over the world; but legal topics, whether constitutional or belonging to the sphere 'of penal or administrative, or in- 1 1 owe this observation to my friend Mr. Dicey. 360 //. FROM THE 1100'S TO THE 1800'S ternational or ordinary private law, seem now to claim even fewer votaries in England than they do in France or Ger- many, and certainly fewer than they do in the United States. VI. Observations on France and Germany The sketch which I have sought to draw of the rela- tions of general history to legal history might have been with advantage extended to include the legal history of other States, and particularly of two such important factors in modern civilization as France and Germany. But, apart from the undue length to which an essay would stretch if it tried to cover so large a field, there is a good reason why we may deem these two countries less well suited for the sort of comparative treatment here assayed. Neither of them has had the kind of independent and truly national legal development which belonged to Rome and belongs to Eng- land. Each of. them started on its career with a body of pre-existing law, made elsewhere, viz. the Roman law which had come down to France and to Germany from antiquity. In Gaul, even in the parts most settled by the Franks, the law of the Empire held its ground, though everywhere largely modified by feudal land usages, and in the northern half of the country, when it had ceased to be Gaul and had become France, in the form of customs and not of written Roman texts. In Germany the old Teutonic customary law was by degrees (except as regards land rights) supplanted by the Corpus luris of Justinian, in conformity with the idea, fantastic as that idea now appears to us, which regarded the Roman Emperors from Julius Caesar down to Constantine the Sixth as the predecessors in title of the Saxon and Franconian Emperors. Thus neither the French nor the Germans built up on their own national foundation a law distinctively their own. Moreover, both Germany and France stand contrasted with England as well as with Rome in the fact that neither country ever had a true central legislature or central system of law courts comparable with the Parlia- ment and King's Courts of England. The German Diet, though enactments were occasionally made in it with its con- 10. &RYCE: ROME AND ENGLAND 361 sent by the sovereign, enactments which however were not universally obeyed, dealt very little with law proper, even in the days of its greatest strength. Still less were the French States-General, even before their long eclipse, an effective legislature. Thus the development of the law of both Ger- many and France fell mainly into the hands of the jurists, qualified to some extent in Germany by the ordinances enacted by the electors, landgraves, and other princes, as well as by the free imperial cities, and (in later days) by the kings whose dominions formed part of the decaying Empire, and qualified in post-mediaeval France by the ordinances of the king. In both countries it was upon the Roman law, as modified by custom, that the jurists worked, and hence in neither did a body of law grow up which was truly national, in the sense either of having a distinctive national quality or of embracing the whole nation or of having been enacted by a national legislature. The first complete unity given to law in France was given by Napoleon. His Code was based on the Roman law theretofore used, which had to a considerable extent been already codified under Lewis XIV ; yet the crea- tion of one Code for the whole country was a step so bold that it could hardly have been attempted except by an autocrat and on the morrow of a revolution. The first modern effort to give unity to law in Germany, itself an efflux of the aspira- tion for national unity, was made by the General Bills of Exchange Law (Wechselordnung) (1848-1850), while a general Commercial Code (Gemeines Handelsgesetzbuch) enacted in various States between 1862 and 1866 was re- enacted for the new Empire in 1871. The fuller unity long desired was attained in 1900, when the new general Code for the whole German Empire came into force. This similarity between the legal history of France and that of Germany seems the more curious when one remembers that, so far as mere political unity is concerned, France attained that unity comparatively early, one may say at the end of the fifteenth century, while Germany continued down till the extinction of the old Empire in 1806 to go on losing what political unity she had possessed. It was not till 1866 that she began to 362 // FROM THE 1100'S TO THE 1800'S regain it, though the Customs Union of the German States, formed in 1829, had been a presage of what was coming. VII. Private Law least affected by Political Changes or Direct Legislation One phenomenon is common to the legal history in all these nations. That part of the law which has the greatest in- terest for the scientific student, and the greatest importance for the ordinary citizen, the private civil law of family and property, of contracts and torts, has been the part least affected either by political changes or by direct legislation. It has been evolved quietly, slowly and almost imperceptibly, first by popular custom, then by the labours of jurists and the practice of the Courts. Direct legislation by the supreme power has stepped in chiefly to settle controversies between conflicting authorities, or to expunge errors too firmly rooted for judges to rectify, or to embody existing usage in a definite and permanent form. In the sphere of private law, and even in that of criminal law (so far as not affected by politics), legislation scarcely ever creates any large new rule, and seldom even any minor rule which is absolutely new, not an enlargement of something which has gone before. Pure legislative novelties mostly turn out ill. Fortunately, the good sense of Englishmen, like that of Romans, has rarely permitted them to appear. The parallel drawn between the history of Roman and that of English law is less instructive when we reach the later stages of that history. It cannot be made complete, not only because we know comparatively little of the inner condition and practical working of the Courts after the time of Con- stantine, but because there was after his time both a political and an intellectual decay, which few will profess to discover in the England of this century. The expansion and enrich- ment of the Roman system had stopped even before Constan- tine, while that of English Law is still proceeding. 1 In Eng- 1 Within two centuries after Justinian's time official abridgements of his Corpus Juris began to be issued, and it was virtually superseded in the end of the ninth century by the Basilica of the Emperor Leo the 10. BRYCE: ROME AND ENGLAND 363 land commerce is still growing, education is still advancing, new and complicated problems are still emerging, so that many forces continue to work for the development of law. Though we cannot foresee what lines this development will follow we may feel sure that some of the old causes of change are disappearing. The democratization of political institu- tions seems nearly complete, religious passions have grown cold, and all classes have been so fully admitted to a share in political power that any such bold reforms in central and local administration, in procedure, in penal law, and in one or two departments of private civil law as followed the Reform Bill of 1832, seem improbable. In some departments the pos- sibilities of further progress appear to be exhausted, though there are others, such as those concerned with questions of the right of combination among employers or among work- men, and the character which motive imparts to acts in them- selves lawful on which the last word is far from having been said. 1 But there are at least two real difficulties which remain to be grappled with. One relates -to the methods of legal pro- ceedings. Their cost is so great as to deter many persons from the attempt to enforce just claims, to impose a heavy and unfair burden upon successful litigants, and to furnish opportunities for blackmail (especially in libel cases) to men who are equally devoid of money and of scruples. All efforts to cheapen them have so far failed. The other problem relates to a matter of substance. What are the general principles to be followed in empowering the State to regulate the con- duct of individuals or groups of individuals, in permitting the central government or a local authority to compete with individuals in industrial enterprises and in restricting the power of combinations formed for commercial or industrial objects? This group of problems are being daily pressed to the front by political forces on the one hand and by industrial progress on the other. They are as urgent in the United States as in Britain. Nor are they matters for legislation Philosopher. The action of his successors was largely directed to cut- ting down the old law into a shape better fitted for the changed condi- tions of the Empire, and the declining intelligence of the people. 1 The interest excited by cases such as those of the Mogul Steamship Company v. Macgregor and Allen v. Flood illustrates this. . 364 //. FROM THE 1100'S TO THE 1800'S only, for cases frequently arise which the best legislation can- not count upon having provided for, and which it needs not only technical skill but also a philosophic grasp of principles on the part of the bar and bench to conduct to a solution. The experience of the ancient world and that of the Middle Ages throws little light upon them. But as they have ap- peared simultaneously in many modern nations, each may have something to learn from the others. Comparative juris- prudence has no more interesting field than this : nor is there any task in labouring on which an enlightened mind may find a wider scope for the devotion of learning and thought to the service of the community. I am tempted to venture on some other predictions as to the influences that may be expected to work on the legal changes of the coming century. But we have been pursuing an historical, not a speculative, inquiry, and it will be enough to suggest that industry and commerce, as quickened by the progress of physical science, are likely to be factors of in- creasing power, and that the purely political element in the development of law will count for less than that contributed by the effort to readjust social conditions and to give effect to social aspirations. PART III. THE AMERICAN COLONIAL PERIOD 11. English Common Law in the Early American Colonies. PAUL SAMUEL REINSCH. 12. The Extension of English Statutes to the Plantations. ST. G-EORGE LEAKIN SIOUSSAT. 13. The Influence of Colonial Conditions, as Illustrated in the Connecticut Intestacy Law. CHARLES McLEAN ANDREWS. 305 [OTHER REFERENCES ON THIS PERIOD. The following essays also deal with this period: In Select Essays: Courts of Chancery in Colonial America, by Solon D. Wilson: Volume Equity through Common Law Forms in Pennsylvania, by Sidney G. Fisher: Volume II. Private Corporations in the Colonies, by Simeon E. Baldwin: Vol- ume III. In other Collections and Periodicals: Colonial Landholding in North Carolina, by J. S. Bassett: Law Quar- terly Review, XI, 154. Judicial Action by the Provincial Legislature of Massachusetts, by M. M. Bigelow: Columbia Law Review, II, 536. The Adoption of the Common Law by the American Colonies, by R. S. Dale: American Law Register, N. S., XXI, 553. The History of Equity in the American Colonies and States, by E. B. Gager: in Two Centuries' Growth of American Law (1901), p. 129. The History of the Law of Municipal Corporations in the Colonies and the States, by H. W. Rogers: ibid. p. 202. Courts of Justice in the Province of Massachusetts Bay, by T. L. Phillips: American Law Review, XXXIV, 566. A Chapter in the Legal History of Massachusetts, by J. B. Thayer: Harvard Law Review, IX, 1. The History of the Land and Judicial Systems in Pennsylvania, by W. R. Shepherd: Columbia Studies in History, VI, pp. 1, 370. The History of Chancery in Massachusetts, by E. H. Woodruff: Law Quarterly Review, V, 370. Roger Ludlow, the Colonial Lawmaker, by J. M. Taylor (1900). Justice in Colonial Virginia, by O. P. Chitwood -(Johns Hopkins Uni- versity Studies in History and Political Science, ser. XXIII). The Origin of the System of Recording Deeds in America, by J. H. Beale, Jr.: Green Bag, XIX, 335.] 36t> 11. THE ENGLISH COMMON LAW IN THE EARLY AMERICAN COLONIES 1 BY PAUL SAMUEL REINSCH Z Introduction WHEN American legal history comes to be studied more thoroughly, it will perhaps be found that no country presents, in the short space of three centuries, such a variety of interesting phenomena. An old nation, marked for a sturdy sense of right, sends colonies into a wilderness ; they form rude- institutions, often suggesting early European experience, to govern their simple social relations. As this society grows more intricate and more highly organized, the legal institutions of the mother country are gradually intro- duced, until a large portion of the common law is trans- ferred to the actual practice of the colonies. Their law, however, always retained the impress of the earlier origi- nality, when new conditions brought forth new institutions and new legal ideas. The struggles with the mother country caused a wide spread of legal knowledge, and the common law came to be revered as a muniment of personal liberties. Blackstone was outdone by American lawyers in extravagant panegyrics. It is only when the rationalizing tendencies of French democracy become triumphant in America, that the 1 This essay was first published in 1899, at Madison, in the Bulletin of the University of Wisconsin, Vol. II. 2 Professor of Political Science in the University of Wisconsin since 1901. A. B., LL. D., and Ph. D., University of Wisconsin; Associate Editor of the American Political Science Review ; Delegate of the United States to the Third International Conference of American Republics at Rio de Janeiro, 1906. Other Publications: World Politics at the End of the Nineteenth Century, 1900; Colonial Government, 1902; Colonial Administration, 1905; American Legislation and Legislative Methods, 1907; International Unions and their Administration, 1907. 367 368 /// THE COLONIAL PERIOD value of the common law is openly and bitterly attacked. Then conies the great reforming and codifying movement of this century, in which New York is the leading state. Uncon- scious development of custom, reversal to simpler forms, adaptation and modification of a technical system brought from abroad, conscious reform, and, finally, the effort to cast all legal relations into a simple and lucid system, all these phenomena can be traced in our law, and nowhere can the interaction of popular consciousness of right with legal institutions be more fully and clearly ascer- tained. The first question that confronts the investigator con- cerns the influence upon our system of the English common law, that complex body of principles and rules, contained, at our early colonial period, in the Year Books, Reports, and the standard law treatises of quasi- judicial authority. Stat- utory law-making had been but sparingly used up to this time in England, and the law of property and personal security, criminal law, and procedure, found their norms in a long series of judicial precedents. The transfer of this system to the colonies, its amalgamation with new forms there originated, its adaptation to novel conditions, consti- tutes a subject of rare interest. The accepted legal theory of this transfer is well known. It is clearly stated by Story in Van Ness v. Packard, 2 Peters, 144: "The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth-right; but they brought with them and adopted only that portion which was applicable to their condition." This theory is universally adopted by our courts, and it has given them the important power of judging of the applica- bility of the principles of the common law to American con- ditions. According to this view, the common law was from the first looked upon by the colonists as a system of positive and subsidiary law, applying where not replaced by colonial enactments or by special custom suited to the new condi- tions. While this legal theory has obtained acceptance as a satis- 11. REINSCH: COLONIAL COMMON LAW 369 factory explanation of the jurisprudence of* to-day, it is not complete enough to afford an adequate synthesis of colonial legal facts for the historian. It contains, of course, the great truth that men cannot all at once cut themselves loose from a system of thought or action under which they have lived; that, though they transfer themselves entirely to new conditions, their notions and institutions must neces- sarily be circumstanced and colored by their former experi- ence. Thus, of course, the more simple, popular, general parts of the English common law were from the first of great influence on colonial legal relations. This is, however, very far from declaring the common law of England a subsidiary system in actual force from the beginning of colonization. On the contrary, we find from the very first, originality in legal conceptions, departing widely from the most settled theories of the common law, and even a total denial of the subsidiary character of English jurisprudence. The first problem to be determined is therefore this: What was the attitude of the earliest colonists towards the common law as a subsidiary system? To the solution of this question this thesis addresses itself. The earliest settlers in many of the colonies made bodies of law, which, from every indication, they considered a com- plete statement of the needful legal regulations. Their civil- ization being primitive, a brief code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings, would be sufficient. Not only did these codes innovate upon, and depart from, the models of common law, but, in matters not fixed by such codes, there was in the earliest times no reference to that system. They were left to the discretion of the magis- trates. In many cases the colonists expressed an adhesion to the common law, but, when we investigate the actual administra- tion of justice, we find that usually it was of a rude, popular, summary kind, in which the refined distinctions, the artificial developments of the older system have no place. A technical system can, of course, be administered only with the aid of trained lawyers. But these were generally not found in the la d 370 ///. THE COLONIAL PERIOD colonies during the 17th century, and even far down into the 18th we shall find that the legal administration was in the hands of laymen in many of the provinces. Only as the lawyers grow more numerous and receive a better training, o we find a general reception and use of the more refined theories of the common law. It is but natural that, with increased training, the courts and practitioners should turn to the great reservoir of legal experience in their own lan- guage for guidance and information ; the courts would be more ready to favor the theory of the adoption of the com- mon law, as it increased their importance, virtually giving them legislative power. The foregoing statements are espe- cially true of New England, where the subsidiary force of the common law was plainly denied; where a system of popular law (Volksrecht) grew up; and, where the law of God took the place of a secondary system. The legal theory of the transfer has its established place in American jurisprudence; but, historically, it should be modified so as to bring out the fact that we had a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of the English common law. In this way only shall we understand, from the first, the very characteristic and far-reaching departures from older legal ideas which are found- in the New World ; while, at the same time, its full importance is assigned to the influence of Eng- lish jurisprudence in moulding our legal thought. The theory of the courts is an incomplete, one-sided statement needing historical modification. When the courts come to analyze the nature of the law actually brought over by the colonists they find it a method of reasoning, 1 " a system of legal logic, rather than a code of rules ; " or the rule, " live honestly, hurt nobody, and render to every man his due." 2 Such a very indefinite conception of the matter is without value historically; on the basis of this indefinite notion there has been claimed for the courts an almost unlimited power, under the guise of selecting the applicable principles 1 Morgan vs. King, 30 Barbour, 13. 'Marks vs. Morris, 4 Hening and Mumford, 463. 11. REINSCH: COLONIAL COMMON LAW 371 of the common law, to establish virtually new and unprec- edented legal rules. On the other hand, a historical study will reveal a most interesting organic growth, and, after the records have been more fully published, no system will offer more of interest to inquiring students than that developed \ on American soil. The study of the documents reveals great diversities in the early systems of colonial laws. Then with the growth of national feeling there comes also a growth of unification of legal principles, for which the English com- mon law affords the ideal or criterion. And, though during the decade immediately preceding Independence, the English common law was generally praised and apparently most readily received by the larger part of American courts, still the marks of the old popular law remain strong and most of the original features in American jurisprudence can be traced back to the earliest times. The object of this essay is to present the attitude of the colonists during the 17th century, and in some cases during the 18th, towards the common law of England. The manner of treatment will be by colonies: the purpose is to discuss first the colonies of New England in which the departure from common law ideas is most clearly marked, followed by the Middle and Southern colonies, many of which adhered more closely to the Old World model. Neither does the scope of this essay include, nor the extent of the hitherto published sources permit, a complete presen- tation of the varying systems of private law in use in the colonies. Very few of the colonial court records have been published; in some cases, as in Virginia after the Richmond fire of 1865, most of them are unhappily lost forever. A publication of characteristic records of this kind is a desider- atum not only for legal history, but for the study of the general economic and social development. However, suffi- cient material is extant in accessible form to show the general attitude of the colonists and colonial courts towards the common law as a technical system. 372 Ul. THE COLONIAL PERIOD I. NEW ENGLAND Massachusetts The ideas of the Massachusetts colonists on the matter of law appear very clearly from a resolve of the general court 1 of the year 1636. The government is there entreated to make a draft of laws " agreeable to the word of God " to be the fundamental laws of the commonwealth. This draft is to be presented to the next general court. In the mean- time, the magistrates are to proceed in the courts to deter- mine all causes according to the laws then established (the early laws of the general court), and where there is no law " then as near the law of God as they can." The council is also empowered to make orders for the general conduct of business which is not yet covered by any law, and herein to apply' its best discretion according to the rule of God's word. There is here absolutely no reference to the common law of England. As a subsidiary law the word of God is appealed to, as interpreted by the best discretion of the magistrates. This led to the administration of a rude equity, according to the idea of justice held by the magis- trate, influenced by popular ideas and customs. With a homogeneous population holding the same general views on morals and polity, a true popular system of law could thus be produced, unrefined by juristic reasonings, untrammeled by technical precedents, satisfying, in general, the sense of right "in the community. Should, however, alien elements intrude, they would find such a system exceedingly uncon- genial and oppressive. We find that in the early years of the colony the magis- trates and persons in authority were intensely reluctant to have any written laws made, because by these their discretion would be restrained. The reason assigned by Winthrop 2 for this reluctance was the desire to have laws grow up by custom, so as to have them adapted to the nature and dis- position of the people, which could not be sufficiently known to the magistrates properly to legislate for them. A second 1 Massachusetts Colonial Records, I, 174. * John Winthrop's History of New England, 322. 11. REINSCH: COLONIAL COMMON LAW 373 reason was that the charter provided that the colonists should make no laws repugnant to the laws of England. This they held to refer to positive legislation. The growth of law by custom, though the product might be radically opposed to English principles, they believed no infringement of the charter. Notwithstanding these reasons of the magis- trates, the general court insisted upon having a compre- hensive body of laws made. The controversy had none of the acrimony of the similar struggle for written laws in Rome before the Twelve Tables ; but we can note the same principles at work; the magistracy, in whose discretion the administration of the laws has so far been founded, are reluctant to give up a part of this power, and therefore resist a codification of law The outcome of this agita- tion was the passage of the celebrated Body of Liberties, 1 in 164?1. To evade one of the objections noted by the magis- trates, this code was not really enacted as law, but the general court did " with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws." The laws had been prepared by Nathaniel Ward, a minister with some legal training. They had been revised by the general court and sent into every town for further consideration. Upon the suggestions thus gathered they were again revised and then established as above mentioned. A more careful process of legislation is perhaps nowhere recorded. The laws may therefore be looked upon as a full expression of the popular sense of what the legal relations in the colony should be. Ward, in a letter to Governor Winthrop, 2 December 22, 1639, questions the advisability of submitting the laws to the different towns for consideration by the freemen thereof, and fears that the spirit of the 'people might rise too high. They should not be denied their proper and lawful liberties, but he questions " whether it be of God to interest the in- ferior sort in that which should be reserved * inter optimates penes quos est sanctre leges.' ' Turning now to the Body of Liberties itself, we find 1 Winthrop's Journal, Ed. 1790, p. 237. * Massachusetts Historical Collections, Series IV, vol. VII, 26. 374 ///. THE COLONIAL PERIOD the doctrine stated in 1636 again announced, that no man's life shall be taken away unless by virtue of some express law established by the general court, or, in case of the defect of the law in any particular case, by the word of God. l The principle is thus stated in the Massachusetts fundamentals : 2 "In all criminal offenses where the law hath prescribed no certain penalty, the judges have power to inflict penalties according to the rule of God's word." The provisions of the Body of Liberties also show the theocratic nature of the Puritan colony. It contains, more- over, many provisions originated by the colonists in response to their special needs. The criminal law is founded on the code of Moses, though the breaking of the Sabbath and the striking of parents are not made capital offenses. In the laws of 1658, however, the latter offense, as well as rebellious conduct against parents is made capital. 3 The law of inher- itance is taken from the Scriptures. Imprisonment for debt, except when property is con- cealed, is not in use. Any debt due in bill or specialty may be assigned, and the assignee may sue upon the same. Cases involving an amount not over forty shillings are to be heard by magistrates or a commission of three freemen without a jury. A suit is commenced by summons or attachment. Testimony may be taken in writing by any magistrate or authorized commissioner to be used in criminal or civil cases. If the party cast has any new evidence or matter to plead he can obtain a new trial or bill of review. Free tenure of lands is adopted and all feudal incidents are abolished. Convey- ances are to be by deed in writing. The period of prescrip- tion for title by possession is fixed at five years. Civil marriage is instituted. The code of Ward was not the only one prepared for Massachusetts. John Cotton also submitted to the general court a body of laws, founded throughout on the Scriptures, with references thereto. 4 This code, though published in 1 Body of Liberties, p. 1. 1 Hutchinson, State Papers, 205. " Book of General Lawes and Liberties, 1660, p. 8 and following. 4 Hutchinson Papers, vol. I, 160. 11. REINSCH: COLONIAL COMMON LAW 375 England and there reputed to be in force in the colony, was never enacted at all by the general court. The concep- tion of law current among the Puritans is well illustrated by the remark of Cotton that he should not " call them laws because God alone has the power to make law, but conven- tions between men." This theory of law as the command of God, the mediaeval conception uncolored by the modern views of sovereignty, seems to have been firmly held by the Puri- tans of New, as of Old England. l The same view in addition to the reasons cited above may have prompted the general court not to call the Body of Liberties laws, but to pass them in the form of recommendations. Turning now to the practice of magistrates and courts in the actual conduct of cases we shall find the same principles universally acknowledged. Everywhere, the divine law, inter- preted by the best discretion of the magistrates, is looked upon as the binding subsidiary law ; while the common law is at most referred to for the sake of illustration. In 1641, the court had under consideration the case of the rape of a small child. There was a great question as to what kind of sin it was, and the court " sought to know the mind of God by the help of all the elders of the country." On the authority of Deuteronomy XVII, 12, it was held in another case that presumptuous sins were not capital unless committed in open contempt of authority ; and, in connection with this, Winthrop remarks that the " only reason that saved their lives was that the sin was not capital by any express law of God, nor was it made capital by any law of our own." In the same connection, Winthrop discusses the exaction of a confession from a delinquent in capital cases. It was decided tha,t where one witness and strong presump- tion point at the offender, the judge might examine him strictly; but if there is only slight suspicion the judge is not to press him for answer. 2 After the trial in the Hing- ham matter 3 the Deputy Governor stated in a public speech: " The great questions that have troubled the country 1 Figgis, Divine Right of Kings, p. 223. Winthrop's History of New England, II, 56, 250. 1 Ibid., II, 221, 228. 376 ///. THE COLONIAL. PERIOD are about the authority of the magistrates and the liberty of the&people. The covenant between you and us is that we shall judge you and your causes by the rules of God's law and our own." On the trial of Mr. Hubbard l the court told the prisoner that he was to be tried by the law of God, which the magis- trates were to judge by in case of the defect of the express law. Hubbard complained that the law of God admitted of various interpretations, and after being fined and bound to his good behavior he asked to know what good behavior was. The jury in this case found him guilty of uttering diverse speeches " tending to sedition and contempt of said govern- ment and contrary to the law of God and the peace and welfare of the country." 2 The form of punishment was largely in the discretion of the magistrates. 3 Although the English names of actions were used, the practice was exceed- ingly lax, and the action on the case was constantly used for the recovery of land; thus disregarding the fundamental distinction between real and personal property and real and personal actions in the English law. 4 The distinctions between common law and admiralty procedure were totally disregarded. 5 In the Hutchinson Papers 6 there is preserved a very inter- esting account of a case before Symonds, a magistrate. To judge from his letters, Symonds was a careful student and great admirer of the English common law. 7 The case under consideration, Giddings vs. Brown, brought up some inter- esting questions as to the nature of law and the power of the courts. A dwelling had been voted by a town to its minister; the plaintiff had resisted the collection of the tax that had been levied to pay for this dwelling, and his goods were accordingly distrained. Symonds, in giving 1 Winthrop's History of New England, II, 255. * Massachusetts Historical Society Collections, II, vol. IV, 110. 8 Lewis, History of Lynn, pp. 73, 81. * Washburn, Judicial History of Massachusetts, p. 61. 8 Case of Lady Latour vs. Bailey, Winthrop's History of New Eng- land, II, 192. 9 Hutchinson Papers, Vol. II, p. 1. T Letters of Symonds to Gov. Winthrop, Massachusetts Historical Society Collections, IV, vol. VII, pp. 124, 132. 11. REINSCH: COLONIAL COMMON LAW 377 judgment for the plaintiff, says that " the fundamental law which God and nature has given to the people cannot be infringed. The right of property is such a fundamental right. In this case the goods of one man were given to another without the former's consent. This resolve of the town being against the fundamental law is therefore void, and the taking was not justifiable." Symonds refers with respect to the English law and quotes Finch and Dalton. He uses it, however, merely for illustration, and says " let us not despise the rules of the learned in the laws of England who have every experience." The precedents on which he relies are colonial and their binding force is recognized. The substance of the judgment is that property cannot be taken by public vote for private use. The opinion is interesting as an expression of natural law philosophy, and it is, per- haps, the earliest American instance where the power is claimed for the courts to control legislative action when opposed to fundamental law. l The case, moreover, shows very clearly in what light the common law was regarded by the New England colonists ; not at all binding per se, but in as far as expressive of the law of God to be used for purposes of illustration and guidance. Popular courts of jurisdiction in petty cases, which had long fallen into disuse in England, were established in most of the colonies. In Massachusetts inferior courts consisting of five judges, one of whom was an assistant, and having jurisdiction in lesser civil and criminal cases, were early estab- lished. 2 Petty civil cases in the towns were tried by courts of one judge, or commissions of three freemen. 3 A system of appeals was instituted, ascending from the town court to the inferior or county court, thence to the assistants, thence to the general court. Appeal to England was not allowed and claims for it were always strenuously resisted. The pleadings in these courts were very concise and in- formal, and there was little regard paid to forms of action. 4 1 Cf. Coke's opinion in Bonham's Case, 8 Rep., 118a. * Massachusetts Colonial Records, I, 169. 8 Ibid., 239. 4 Washburn, Judicial History, 48. 378 ///. THE COLONIAL PERIOD Up to 1647, the pleadings seem to have been oral. By a law of that date 1 it was enacted that the declaration should be drawn up in writing and should be filed with the clerk of the court three days before the term. Contrary to the English custom, a record of evidence given in the courts seems to have been kept from the earliest times. In 1650, it was enacted 2 that on account of the inconvenience of taking verbal testimony in court, the clerk not being able to make a perfect record thereof and prevent all mistakes, the evidence should be presented in writing to the court, either attested before a magistrate or in court upon oath. This provision, thoroughly at variance with the common law, excited the adverse comment of professional lawyers. 8 Coming now to the trial by jury, we find that this ancient and popular institution was in early use in Massachusetts, a jury having been empanelled a few months after Win- throp's arrival. 4 The system was, however, by no means unquestionably accepted, and seems to have had a very inse- cure 'tenure for a time. In 1642, a commission was ap- pointed to consider whether to retain or dismiss juries in the trial of causes; 6 and it appears that juries were for a time abolished, for, in 1652, we find the following resolve " the law about juries is repealed and juries are in force again." 6 The mode of trial exhibits many interesting peculiarities. The province of judge and jury is quite correctly defined in an act of 1642, where the finding of matters of fact by the jury, instructions in law by the court, and the decision of matters of equity by the latter is provided for. 7 In 1657, the jury was permitted to present a special verdict. 8 But it seems that for a time the magistrates acquired a very con- siderable power of controlling the jury. Hutchinson says: " The jury sometimes gave their verdict, that there were strong grounds of suspicion, but not sufficient for convic- 1 Massachusetts Colonial Records, II. 219. Ibid., II, 211. 'Documents Relative to the Colonial History of New York, IV, 929. Massachusetts Colonial Records, I, 77-78. 'Massachusetts Colonial Records, II, 28. Ibid., IV, 107. Ibid., II, 21. Ibid., Ill, 425. 11. REINSCH: COLONIAL COMMON LAW 379 tion. Upon such a verdict the court would give sentence for such offenses as the evidence at the trial might have disclosed." He adds in a note the advice of Lieut. Gov. Stoughton to Governor Hinckly of Plymouth, given in 1681 : " The testimony you mention against the prisoner I think is sufficient to convict him; but, in case your jury be not of that mind, if you hold yourself strictly .obliged by the laws of England, no other verdict but * not guilty ' can be brought in; but, according to our practice in this jurisdic- tion, we should punish him with some grievous punishment according to the demerit of his crime, though not found capital." l In 1672, an attempt was made to limit the power of the magistrates in this respect. 2 For the controlling authority of the magistrates there is offered as a substitute the archaic method of attainting the jury for giving a verdict contrary to the weight of evidence; and the law allowing the magis- trates to refuse the verdict of the jury is repealed. This is a remarkable instance of the revival of an archaic method which had all but disappeared in England. The jury in such a case was to be tried by a new jury of twenty-four, and the court had no control over the verdict. It seems that many juries were attainted, because in 1684 it was enacted 3 on account of the unreasonable trouble caused by numerous attaints, that the cause of attaint shall be given in writing; that if the verdict is confirmed, the person attainting shall be fined 34 pounds; and that the jury may also prosecute him for slander, with other additional penalties. The jury were also at liberty, when they were not clear in their con- science about any case, " in open court to advise with any man they should think fit, to resolve and direct them before they gave their verdict." In the colonial system of Massachusetts we do find traces of the common law; the less technical parts of its terminol- ogy are in use, forms of contracts and deeds are modeled on 1 Massachusetts Historical Society Collections, Series II, Vol. I, p. XXII. 1 Massachusetts Colonial Records, IV, part 2, p. 508. * Massachusetts Colonial Records, V, 449. * Colonial Laws of Massachusetts Bay, Ed. 1660, pp. 47, 48. 380 /// THE COLONIAL PERIOD English precedents, although for the latter acknowledg- ment and recording is essential to validity. 1 But the au- thority of the common law as a subsidiary system is nowhere admitted, its principles are radically departed from, and its rules used only for purposes of illustration. The magistrates administered a rude system of popular law and equity, on the basis of the Scriptures and their own ideas of right, generally to the satisfaction of the homo- geneous Puritan communities; though there are some strug- gles recorded, such as that for written laws and for the con- trol of the juries. Capt. Bredon writes to the Council of Colonies, speaking of the printed laws of Massachusetts: " What laws are not mentioned in this book are in the magis- trates' breasts to be understood." 2 The elements dissatis- fied with this regime generally left for Rhode Island, the Connecticut river settlements, Maine or New Hampshire, where society was less autocratic; but still we find a num- ber of protests recorded against the manner of administer- ing the law by persons remaining in the colony. The complaint that no one could have justice but mem- bers of the church z is very common on the part of outsiders. In 1646, there was a very important controversy, in which a party of men led by Robert Child demanded the estab- lishment of English law. In their remonstrances 4 they say that they cannot discern a settled form of government ac- cording to the laws of England ; nor do they perceive any laws so established as to give security of life, liberty, or estate. They object to discretionary judgments as opposed to the unbowed rule of law, and petition for the establish- ment of the wholesome laws of England, which are the result of long experience and are best agreeable to English tem- pers; that there should be a settled rule of ad judicature from which the magistrates cannot swerve. Those laws of England, they say, are now by some termed foreign, and the colony termed a free state. 1 Massachusetts Colonial Records, I, 116; and Suffolk County Deeds. * Documents Relative to the Colonial History of New York, I ft, 39. 'Massachusetts Historical Society Collections, Series IV, vol. VII, p. 370. * Hutchinson Papers, Prince Society, I, 189. 11. REINSCH: COLONIAL COMMON LAW 381 In the answer by the general court 1 the petitioners are held up to ridicule for their own ignorance of what English laws they really wanted. It is then asserted that the laws of England are binding only on those who live in the Eng- lish country, for neither do the laws of Parliament nor the King's writ go any farther. " The laws of the colony," they say in substance, " are not diametrically opposed to the laws of England, for then they must be contrary to the laws of God, on which the common law, so far as it is law, is also founded. Anything that is otherwise estab- lished is not law but an error, as it cannot be according to the intent of the law-makers to establish injustice." This is the true Puritan idea of law as the command of God ; the general court asserts that the common law, so far as it is law, must embody divine justice. For their part the Puri- tans prefer to go to the original source of law, the Scrip- tures. In connection with this matter the general court also made a declaration which was evidently intended for the general public and the home government. 2 They there as- sert that the government is framed according to the charter and the fundamental and common laws of England. They add in brackets, " taking the words of eternal righteousness and truth with them as the rule by which all kingdoms and jurisdictions must render account." Then they make a comparison between the fundamental and common laws of England and the laws of the colony, taking Magna Charta as the chief embodiment of English common law; and they state that, as the positive laws of England are constantly being varied to answer different conditions, they should con- sider it right to change and vary their legislation according to circumstances. They confess an insufficient knowledge of the laws of England, and say, " If we had able lawyers amongst us we might have been more exact." Their com- parison of the laws shows the rudimentary character of their knowledge. Finding some discretion allowed English judges in criminal cases they take this as a precedent for 1 Winthrop, History of New England, II, star p. 284. * Hutchinson Papers, 1, 197. 382 ///. THE COLONIAL PERIOD the Massachusetts method of inflicting penalties according to the rule of God's word. They conclude by instancing the extraordinary jurisdictions in England, the chancery, the court of requests, the admiralty and ecclesiastical courts, and say that experience shows that Englishmen may live comfortably and securely under some other laws than the common and statutory laws of England. The methods of Massachusetts colonial justice are de- scribed by Letchford in his book, Plame Dealing. He was a lawyer who had been employed in doing minor editorial work on the Body of Liberties. Owing to the prejudice against lawyers, general in the colonies but especially strong here, he was not permitted to practise his profession, and therefore was perhaps an unreasonably severe critic of the system under which he suffered. As his views are, however, corroborated by the statements of other witnesses, their truth so far as the proceedings of the courts are concerned may perhaps be accepted. He says among other things J that the governor in charging the grand jury uses the heads of the ten commandments. That in jury trials matters of law and fact are not distinguished. 2 The records of the courts are not kept in due form of law, in most cases th'e verdict only being entered. Hence the disposition to slight all former laws and precedents, " but go hammer out new upon the pretense that the word of God is sufficient to rule us." He advises his brethren to " despise not learning nor the learned lawyers of either gown." In his narrative to the council 3 Edward Randolph states that " the laws and ordinances of Massachusetts are no longer observed than they stand in their convenience; and in all cases, regarding more the quality and affections of the persons to their government than the nature of their offense." He states that it was regarded as a breach of the privilege of the colony to urge the observation of the laws of England, and notes some of the provisions repugnant to the common law, such as obtaining prescriptive title to *Plaine Dealing, TrumtjulPs edition, p. 26. *Ibid., p. 27. * Hutchinson Papers, II, p. 210. 11. REINSCH: COLONIAL COMMON LAW 383 land by possession for five years, and the use of the word of God as a rule in criminal cases. In another report in 1678 he states that the laws of England are neither in the whole nor in any part of them valid or pleadable in the colonial courts until received by the General Assembly. 1 The colony always resisted claims of a right of appeal to England; this was one of the most important points of controversy between the colonial court and the home govern- ment after 1660. In that year the colonists instructed Captain John Leveritt as their agent in England to resist any claims -or assertions of appellate jurisdiction, because that would render government and authority in the colony ineffectual and bring the court into contempt with all sorts of people. In 1667, the Privy Council made specific objection to the laws of Massachusetts repugnant to the laws of England. The Attorney General submitted a catalogue of such laws. 2 In answer to these objections the general court made several amendments in 1681 ; 3 the law concerning rebellious sons, concerning Quakers, and the law against keeping Christmas were left out; but no alteration was made in the law of marriage and Sunday legislation. In connection with this controversy the general court again asserted the independ- ence of the colony from English laws. 4 They speak of the laws of England as bounded within four seas and not reach- ing to America. The American subjects not being repre- sented in Parliament should not be impeded in their trade by Parliament. Before this time legal proceedings had been carried on in the name of the colony. One of the results of the controversy was that the general court yielded in this respect, and process was hereafter issued in the name of the king. After the charter had been annulled, there followed a strong and continued effort to introduce the common law. By the commission of Sir Edmund Andros, in 1688 the gov- 1 Edward Randolph, Prince Society Publications, II, 311. s Palfrey, quoting from Phillip's collection of manuscripts, History of New England, III, 309. * Massachusetts Colonial Records, V, 321. Ibid., V, 198, 200. 384 ///. THE COLONIAL PERIOD ernor and council were appointed a court of record to try civil and criminal cases, their proceedings and judgment to be consonant and agreeable to the laws and statutes of Eng- land. l The arbitrary government of Andros, however, did perhaps more to introduce a knowledge of the common law, than this provision, because against his despotic rule the colonists now began to assert rights protected by the Eng- lish law, such as the right of Habeas Corpus. Thus when we hereafter find expressions of admiration for or adherence to the common law, such as are very common in the succeed- ing century and especially at the beginning of the Revo- lutionary War, they refer rather to the general principles of personal liberty than to the vast body of rules regulating the rights of contract and property and the ordinary pro- ceedings in court. By the charter of 1692, the appointment of judges and justices of the peace was given to the governor and the council. Their tenure was practically during good beha- vior; 2 but though the direct popular nature of the courts was thus destroyed, it was a considerable time before trained jurists came to control the administration of law in Mas- sachusetts. Chief Justice Attwood visited Boston in 1700, and in his report to the Lords of Trade 8 he states that he had " pub- licly exposed the argument of one of the Boston clergy, that they were not bound in conscience to obey the laws of Eng- land." He complains of various insults offered him while sitting as judge in the admiralty court. He attended the session of the Superior court at Boston, and there observed that their " methods were abhorrent from the laws of Eng- land and all other nations." He especially notes the ease with which new trials are obtained and the fact that evidence is offered in writing, which is a temptation to perjury, new proofs being admitted at the later trials. This criticism shows that there was no sudden breach in the development of Massachusetts law, and that at the beginning of the 1 Documents Relative to Colonial History of New York, III, 539. * Washburn, Judicial History, p. 138. Documents Relative to Colonial History of New York, IV, 929. 11. REINSCH: COLONIAL COMMON LAW 385 18th century the old popular law was still largely admin- istered in derogation of the more highly developed rules of the common law. It is stated that after the change in the appointment of judges, practice became very captious and sharp. In 1712, the first professional lawyer, Lynde, be- came Chief Justice, and after this we find that English books and authors are frequently cited. 1 Yet Massachusetts juris- prudence exhibited for a long time thereafter the marks of its early informality. Jefferson says in a letter to Attorney General Rodney, September 25, 1810, 2 speaking of Lincoln, of Massachusetts, as a possible successor to Gushing as Chief Justice: "He is thought not to be an able common lawyer, but there is not and never was an able one in the New England states. Their system is sui generis in which the common law is little attended to. Lincoln is one of the ablest in their system." How strongly the old view of law which we have noticed maintained itself in Massachusetts, we see from John Adams' statement in the Novanglus : 3 " How then do we New Englanders derive our laws. I say not from Parliament, not from the common law, but from the law of nature and the compact made with the king in our charter. Our ancestors were entitled to the common law of England when they emigrated; that is to say, to as much of it as they pleased to adopt and no more. They were not bound or obliged to submit to it unless they chose." In Massachusetts, during the 17th century we find a con- tinued, conscious, and determined departure from the lines ^)of the common law. It is not accepted as a binding sub- / sidiary system, the law of God there taking its place. In- deed, it colored and influenced the legal notions of the col- onists, but they always resisted the assertion of its binding /force. The absence of lawyers made the administration of |a highly developed system impossible. We have a layman ilaw, a popular, equitable system, which lacks the elements 1 Arguments of Valentine, in Matson vs. Thomas, 1720, citing Coke and Hobart. 1 Jefferson's Complete Works, V, 546. 1774, John Adams, Works, IV, 122. 386 ///. THE COLONIAL PERIOD of rigor, of clear cut principles, of unswerving application, but which forms a basis on which a simple community could well adjust its legal relations. Connecticut and New Haven In Connecticut and New Haven we find a development similar to that of Massachusetts. The Connecticut code of 1642 was copied from that of Massachusetts. 1 The fun- damental order of New Haven 2 provides for the popular election of the magistrates, and for the punishment of crim- inals " according to the mind of God revealed in his word." The general court is also to proceed according to the Scrip- tures, the rule of all righteous laws and sentences. In the fundamental agreement 8 all free men assent that the Scrip- tures hold forth a perfect rule for the direction and govern- ment of all men in all duties. The Scriptural laws of inherit- ance, dividing allotments, and all things of like nature are adopted, thus very clearly founding the entire system of civil and criminal law on the word of God. This principle is re-enacted in. similar language in 1644. 4 In Connecticut the trial by jury was put into practice from the first, the use of the grand jury coming in some- what later. 5 It was, however, provided that upon continued failure to agree, a majority of the jury could decide the issue, and in case of equal division, the magistrate had a casting vote. 6 In New Haven the institution of jury trial was not at first adopted. 7 It is stated that this was so set- tled upon some reasons urged by Mr. Eaton. As already indicated, the system of popular courts was adopted in both colonies. In 1699, the practice of commis- sioning justices for stated periods was tried, but it was con- tinued for only three years. 8 The judges of these courts Connecticut Records, I, 77. New Haven Records, I, 73. New Haven Records, I, 1. Ibid., I, 130. Connecticut Records, I, 9, 91. Ibid., 84. Massachusetts Historical Society Collections, series II, vol. VI, 320. Ibid., series VI, vol. Ill, 44. 11. REINSCH: COLONIAL COMMON LAW 387 exercised a broad discretion. That Connecticut was inde- pendent of the home country in legal matters is noted by Quary in his report to the Lords of Trade in 1707. 1 If possible, these colonies departed even further from the com- mon law than Massachusetts in their system of popular courts, absence or radical modification of the jury trial, discretion of the magistrates, and in the case of New Haven, the clear and . unequivocal assertion of the binding force of divine law as a common law in all temporal matters, as a guiding rule in civil and criminal jurisdictions. New Hampshire The settlers of New Hampshire and Vermont were in many cases malcontents who had left the Puritan colonies. They were not so homogeneous a society, and therefore the asser- tion of the binding force of the common law could be more successfully made. The commission of 1680 orders pro- ceedings in the courts to be consonant to the laws and stat- utes of England, regard, however, being had to the con- dition of the colonists. 2 The General Assembly, meeting at Portsmouth in March, 1679-80, passed a body of general laws in which they claimed the liberties belonging to free Englishmen. They, however, refused to admit the binding force of any code, imposition, law, or ordinance not made by the General- Assembly and approved by the president and council. The code itself is very simple, but in place of biblical references English statutes are cited. 3 As a matter of fact it may be questioned whether this apparent sub- mission to English law was more than formal. The gen- eral court petitioned against appeals to England in 1680. 4 The settlers were so impatient of control that all questions of law and fact were decided by juries. The judges had a term of one year only and none of the influence of the 1 Documents Relative to Colonial History of New York, V, 31. 1 Poore, Constitutions, Charters and Documents, p. 1276. * Belknap's New Hampshire, p. 454; New Hampshire Documents and Records, I, 382. * Cited in Belknap's New Hampshire, p. 457. 111. THE COLONIAL PERIOD Massachusetts magistrates. 1 Under this regime, the admin- istration of the rules of the common law would of course be impossible. The early judges and chief justices were all business men, seamen, or farmers; only in 1726 did a man of liberal education, Judge Jaffray, a graduate of Harvard in 1702, appear on the bench. 2 And it was only in 1754 that a lawyer, Theodore Atkinson, also a graduate of Har- vard, became chief justice. Samuel Livermore, chief jus- tice in 1782, though trained in the law, refused to be bound by precedents, holding, " that every tub should stand on its own bottom;" he looked upon the adjudications of Eng- lish tribunals as only illustrations. 3 It may be said that no real jurist, no man acknowledging a regular develop- ment of the law by precedents and finding an authoritative guidance in the adjudications of the common law judges, held judicial power in New Hampshire during the entire 18th century. Rhode Island This colony was consciously founded on a democratic basis. 4 The charter is made the basis of government, by which legislative action is to be restricted. In order to escape the imputation of anarchy, and to preserve every man safe in his person and estate, the common law is to be taken as a model for legislation in as far as the nature and con- stitution of the colony will permit. The code itself shows a very archaic conception of law. In its classification it espe- cially reminds us of the Anglo-Saxon dooms in the prom- inence it accords to crimes and torts. It classifies law under five general heads : ( 1 ) murthering fathers and mothers ; (2) man slayers; (3) sexual immoralities.; (4) men- stealers; (5) liars, under which heading are comprised per- jury, breach of covenant, slander, and other torts. On the other hand, however, it contains some provisions of an ad- 1 Danl. Chipman, Vermont Reports, pp. 11, 19, 21. * C. H. Bell, Bench and Bar of New Hampshire, 13. s Bell, Bench and Bar, p. 37. 4 Code of Civil and Criminal Law of 1647; cited in full in Arnold's Hitory of Rhode Island, I, 205, et seq.; Rhode Island Colonial Rec- ord*, 1, 156. 11. REINSCH: COLONIAL COMMON LAW 389 vanced nature. Murder and man-slaughter are distin- guished on the principle of malice aforethought. Theft committed by a child or for hunger is declared to be only petty larceny. Promises and contracts, especially for large amounts, are to be drawn up in writing. The conveyance of land must also be made in this form. This provision by many years antedates the celebrated Statute of Frauds of English law. Imprisonment of debtors is forbidden, " none shall lie languishing for no man's advantage." Lands are made liable to execution. In general, the statement of the code is concise and clear; English statutes are frequently cited, but in spirit the code is thoroughly original though in parts archaic. That it was considered a sufficient statement of law is shown by the enactment that " In all other matters not forbidden by the code all men may walk as their con- science persuades them." A modified form of jury trial is instituted by a later enactment. 1 The province of judge and jury is there defined. As in Massachusetts, attaint is made the remedy for a false verdict. Bellomont sent the laws of Rhode Island to the Council in 1699, 2 when he gives it as his opinion that the world never saw such a parcel of fustian. He also says : " Their pro- ceedings are very unmethodical, no wise agreeable to the course and practice of the courts of England, and many times very arbitrary and contrary to the laws of the place; as is affirmed by the attorneys at law that have sometimes practiced in their courts." ..." They give no directions to the jury nor sum up the evidences to them, pointing out the issue which they are to try." Later, however, in 1708, Governor Cranston writes to the Lords of Trade : " The laws of England are approved of and pleaded to all intents and purposes, without it be in particular acts for the prudential affairs of the colony." 3 Up to the time of the Revolution, judges were elected annually from the people. The Newport court records show us the extent of the discretion of magistrates. In an action 1 Rhode IsJand Colonial Records, I, 198. 3 Documents Relative to Colonial History of New York, IV, 600. ' Durfee, Gleanings from the Judicial History of Rhode Island, p. 78. 390 ///. THE COLONIAL PERIOD for debt the court, considering the defendant's poverty, ordered him to work for the plaintiff at carpentry until the debt were extinguished. Meanwhile other creditors were for- bidden to sue him. Even after a verdict of not guilty, the court often imposed costs or ordered the accused to leave the colony. 1 The attitude of Rhode Island towards lawyers is shown by the fact that by an act of the general assembly in 1729 they were forbidden to be deputies, their presence being found to be of ill consequence. 2 H. THE MIDDLE COLONIES New York In this colony the common law received early recognition and an approach was made to complete and intelligent en- forcement. The population of New York was exceedingly heterogeneous ; the original Dutch settlers, the early Eng- lish settlers of various character from the different colonies and the mother country. The close knit social relations found in Massachusetts and Connecticut were here absent, and popular law could not therefore be so readily developed. There was a demand for a system of common law by which the relations and interests of these various elements may be regulated. The colony being under royal authority almost from the beginning, its rulers soon accustomed it to the prin- ciples of the English common law. Thus when the growing feeling of unity and nationalism called for a unification and harmonizing of American law, New York state, which had most successfully adapted the common law to American con- ditions, became the leader in juristic development. Its judges, like Kent, became the authoritative expounders of the American form of the common law. But, on the other hand, many of the original American ideas in jurisprudence, such as the reform of the law of real property and the law of pleading, which we find in germ in the early history of the other colonies, were carried to completion and given 1 Durfee, Oleaningg from the Judicial History of Rhode Island, p. 127-137. 1 Arnold's History of Rhode Island, II, 98. 11. REINSCH: COLONIAL COMMON LAW 391 their lasting form in the state of New York, whose jurists had profited from a longer training in a regular system of jurisprudence. We must, however, by no means conclude that the common law was administered in New York from the very beginning of English occupation as a complete subsidiary system. The feeling that for a new colony a new body of laws is necessary led to the compilation of what is known as the Duke of York's laws, which were promulgated a.t an in- formal assembly at Hampstead in 1665. 1 The first New York legislature met in 1683, and, among other acts, passed bills regulating the judicial proceedings, and for prevent- ing perjuries and frauds. 2 Governor Nichols, before courts had been created, took upon himself the decision of contro- versies and pronounced judgment after a summary hearing. 3 In writing to Clarendon, July 30, 1665, he says : " The very name of the Duke's power has drawn well-affected men hither from other colonies, hearing that the new laws are not con- trived so democratically as the rest." 4 At this time, laws are confirmed, reviewed, and amended by the general assizes composed of the governor, the general council and the judges upon the bench. A year later, April 7, 1666, Nichols writes to Clarendon 5 remitting a copy of the laws collected from the laws of the other colonies with such alterations as would tend to revive the memory of old England ; he says that " the very name of Justice of the Peace is held an abom- ination, so strong a hold has Democracy taken in these parts." He complains of the refractory disposition of the people, and describes his efforts to introduce English statutes and authority. It is apparent from this correspondence that it was considered necessary to restate the law in a codified form for the use of the colonists ; and an informal transfer of the common law in its original " unwritten " character was evidently not considered sufficient or suit- able to the circumstances by the men in authority. 1 Documents Relative to Colonial History of New York, III, 260, 416; IV, 1154. *Ibid., Ill, 35.5. "Smith's History of New York, 55. *New York Historical Society Collections, 1869, 75. "Ibid., p. 118, 119. 392 /// THE COLONIAL PERIOD Governor Dongan in his report to the Committee on Trade, 1 February 22, 1687, gives a list of the courts of justice established at that time: (1) a court of chancery composed of the governor and council, which is the supreme court of appeals; (2) the courts of oyer and terminer held yearly in each county; (3) the court of the mayor and aldermen in New "ifork; (4) the courts of session (justices of the peace); (5) court commissioners for petty cases; (6) a court of ad judicature, a special court established to hear land cases. These courts had none of the popular ele- ments which we have noted in the Puritan colonies. Go> ernor Dongan also states that the laws in force were the laws of the Duke of York and the acts of the general assem- bly, not mentioning the common law in this connection. In a similar report, Governor Nichols 2 states that " all causes are tried by juries, and that there are no laws contrary to the laws of England," while he ascribes full law-making power to the court of assizes (1669). Governor Andros reports that, " He keeps good correspondence with his neigh- bors as to civil, legal and judicial proceedings." Bellomont, in 1699, sending a copy of the printed laws to the council, asks 'for a careful perusal and criticism of them by some able lawyer in England; which would indicate the absence of trained jurists in the colony at that time. 3 In a report on the methods of proceedings in court, William Smith writes to Bellomont in 1700 : 4 " The rules and methods we are governed by in all trials is the common law of England, and the several statutes declarative thereof according to the manner and methods of the courts at Westminster." In the earlier days of the colony, confused notions of law and equity seem to have prevailed; and in a number of re- ported cases tried on Long Island after verdict of the jury there was an appeal to equity, most generally successful. No settled rules were here regarded, but a discretion sim- ilar to that of the New England magistrates was exer- 1 Documentary History of New York, I, 147. 1 Documentary History of New York, I, 87. Documents Relative to Colonial History of New York, IV, 520. * Ibid., VIII, 28. 11. REINSCH: COLONIAL COMMON LAW 393 cised. 1 In one of these cases the judgment is said to be given according to law and good conscience. 2 Immediately upon the occupation by the English, the jury came into use in New York. Jury trials are, however, at first, very informal, more after the manner of a simple arbi- tration, and verdicts are often given in the alternative. 3 In the form of testamentary disposition the Roman Dutch law of the New Netherlands left abiding traces. The method of making wills by oral declaration before a notary, or by a written and sealed instrument deposited with that official, was used long after the first English occupation. 4 We find that in these early days the functions of the court were not only judicial but administrative, much like those )f the earliest itinerant judges in England. Thus the judges are directed to make inquiries into town training, the bearing of arms, the price of corn, wages, and escheats. 6 As another reversion to older practice, we may note the concentration of various functions, judicial, administrative, and legislative, in the hands of the colonial council of the earliest time. A still closer analogy to mediaeval English history in this respect we shall find in the case of Pennsyl- vania. In the year 1700, a professional English lawyer, Attwood, became chief justice of New York. It was his avowed pur- pose-to introduce the common law and practice of the Eng- lish courts into the colony. He was, however, too asserta- tive, and favored strong government too much, so that he in some cases perverted the law to his own uses, as when he declared that whatever was treason before 25 Edward III. was still treason at common law ; 6 or when he held that a grand jury was only an inquest of office and that eleven could indict. 7 He complained in a letter to the Lords of Trade 8 that " several here cannot well bear with the exe- 1 Documents Relative to Colonial History of New York, XIV, 570, 589, 600, 629. * Underbill vs. Hempstead, Ibid., 589. *, Fernow, Records of New Amsterdam, V. 267ff. * Fernow, Calendar of Wills, p. IV. For other traces of the Dutch law, see Judge Daly's prefatory note in 1 E. D. Smith (N. Y.). " Documents Relative to Colonial History of New York, XIV, 637. * Ibid., IV, 974. 7 Ibid., 1010. Ibid., 923. 394 ///. THE COLONIAL PERIOD cution of the laws of England." His methods soon led to his unpopularity and his final disgrace. As in other colonies, lawyers were unpopular in the early days of New York. " The general cry of the people both in town and country was, * No lawyer in the Assembly ! ' " l As we have seen, the early governors exercised what was called an equity jurisdiction, but no regular court of equity was established. In 1711, Governor Hunter addressed the Lords of Trade in this matter. He speaks of the necessity of giving equitable relief in many cases, and instances the case of a merchant, who inadvertently confessed judgment for 4,000 pounds, the real debt being 400 pounds, and who then languished in prison. He says that the House declared that the trust of the seal constitutes him the Chancellor, but having already too much business and being ignorant in law matters he asks the Lords of Trade for advice. 2 They simply answer 3 that he is authorized to establish, with the consent of the council, any court that may be necessary. A court of chancery was accordingly established, but in 1727 the assembly resolved that the creation of this court without its consent was illegal. Its fees were reduced and its jurisdiction languished for a time. 4 Golden ascribes these resolves to the vindictive intrigues of the speaker, who had been defeated in a chancery suit. 5 The complete doctrine of the binding force of the common law in New York was not declared before 1761. A most thoroughgoing statement is found in Governor Tryon's report, 6 where he declares that " the common law of England is the fundamental law of the province, and it is a received doctrine that all the statutes enacted before the province had a legislature are binding upon the colony ; " also that in the court of chancery the English practice is followed. Some years before, in 1762, Chief Justice Pratt, in a memo- 1 Gov. Colden to Hillsboro; Documents Relative to Colonial History of New York, VIII, 61. 'Documents Relative to Colonial History of New York, V, 208.. Ibid., 252. * Smith's History of New York, 270. New York Historical Society Collections, XVIII, 211. 1774; Documentary History of New York, I, 752. 11. REINSCH: COLONIAL COMMON LAW 395 rial to the Lords of Trade, complains of the insufficient in- fluence of the judiciary. He says that " All the colonies being vested with legislative power, their systems of laws are gradually varying from the common law. If the judg- ments of the supreme courts are only vague and desultory decisions of ignorant judges the mischief is augmented, and a more influential and better paid judiciary is called for." New Jersey The two parts of New Jersey, East and West Jersey, had a different social complexion, and we may therefore look for divergent views on the subject of law. West Jersey was a pure Quaker commonwealth, where the influence of Penn was very strong ; while in East Jersey conditions similar to those in New York prevailed. We find, however, in both parts of New Jersey a system of popular courts. In East Jersey l the court system was established by the legislature in 1675. A monthly court for the trial of small causes was held in each town of the province by two or three persons chosen by the people. County courts were held twice yearly in each county ; from these there was an appeal to the court of chancery. Proceedings in these courts were of the utmost simplicity. It was provided that any person might plead for himself and that no money was to be taken for pleading or advice. 2 West Jersey had a similar system of courts, comprising justices of the peace, county courts, and a supreme court of appeals ; the latter was instituted in 1693 and a final appeal from it to the general assembly was au- thorized in 1699. The term " court of chancery " is not used in West Jersey. The power of the jury was exaggerated, the three judges having no authority to control the verdict of the twelve men " in whom only the judgment resides." In case the judges should refuse to pronounce judgment, any one of the twelve by consent of the rest may do so. 3 Capital punishment was not fixed by the law. It was enacted 4 that 1 Ornnts and Concessions, p. 96. Mhid., p. 128. 'Ibid., p. 396. ' Grants and Concessions, p. 404. 396 ///. THE COLONIAL PERIOD " All persons guilty of murder or treason shall be sentenced by the general assembly, as they in the wisdom of the Lord shall judge meet and expedient." This would indicate a view of law similar to that held by the colonists of Massa- chusetts and New Haven. The early laws of East Jersey were founded largely on scriptural authority. * Thus the law of trespasses and in- juries by cattle, of injury by fire, of negligence, and the criminal law, are in agreement with the laws of the Exodus. In 1675 imprisonment for debt was prohibited except in cases of fraud. In 1698 the privileges of the English com- mon law were assured to every one. In Delaware no profes- sionally trained judge held office before the Revolution. 2 Pennsylvania The colony of Pennsylvania was fitted out with the most complete system of colonial codes. There was ( 1 ) the frame of government, which was unchangeable without the consent of the governor and six-sevenths of the freemen in council and assembly, all freemen at that time being members of the assembly; (2) there were the laws agreed upon in England in 1682, which had the same provisions as to alteration; (3) the Great Law or body of laws enacted at Chester in 1682, containing sixty-one chapters and called the written laws to distinguish them from the foregoing two, called printed laws ; (4) the act of settlement passed in Philadelphia in 1683 ; (5) the laws made at an assembly in Philadelphia in 1683, consist- ing of 80 chapters; (6) the frame of government of 1683; (7) the frame of government of 1696; and, finally, (8) the laws of October, 1701. 8 These laws are of great interest to the student of legislation, containing the opinions of enlight- ened and thoughtful statesmen embodied in enactments and gradually modified by practical experience in colonial affairs. They show clearly how very necessary a complete and full 1 Whitehead, East Jersey under the Proprietors, p. 239. * Grubb, Judiciary of Delaware, p. 9. 8 See the collection called The Duke of York's Laws and Pennsyl- vania Colonial Laws, which will be cited simply as The Duke of York's Laws. 11. REINSCH: COLONIAL COMMON LAW 397 statement and codification of the law that should prevail was held by the founders of Pennsylvania ; that they did not rely on an informal transfer of the applicable parts of the com- mon law ; but that they, with great painstaking, stated in entirely original form the provisions considered necessary for colonial society. These laws contain many new and far-reaching reforms. Thus, in the laws agreed upon in England in 1682 there are the following provisions concerning procedure in the courts. Persons may appear in their own way and according to their own manner and personally plead their cause ; the complaint shall be filed in court fourteen days before trial; a copy of the complaint is to be delivered to the defendant at his dwell- ing house ; the complaint must be attested by the oath of the plaintiff ; * all pleadings and processes and reports in court shall be short and in English and in ordinary and plain character, that they may be understood and justice speedily administered. 2 This provision antedates by almost two cen- turies the celebrated New York code-pleading reform, and this clause very clearly and simply states the object this reform sought to bring about. The period of prescription for the acquisition of title to land is fixed at seven years. 3 The lands and goods of felons shall be liable to make satis- faction to the party wronged. 4 This is a return to an older idea of law, which at that time did not prevail in the English law; for a felony only the king enforced a forfeiture, the injured party could not obtain any satisfaction. In the laws made at Philadelphia in 1683, there is contained a chapter enumerating the fundamental provisions which are to be changed only by the consent of six-sevenths of the council and assembly ; this early attempt to separate the f unda- ^mental from the secondary provisions of the law is of great interest to students of American constitutional development. The subjects referred to as fundamental are the following: Liberty of conscience, naturalization, election of representa- tives, taxes, open courts and freedom of pleading, giving evi- dence, return of inquest and judgment by inquest (jury), 1 The Duke of York's Laws, Laws of 1682, Chap. 6. 1 Ibid., Chap. 7. s Ibid., Chap. 16. Ibid., Chap. 24. 398 ///. THE COLONIAL PERIOD bail and liberty of person, registry, marriage, speedy justice, the use of the English language in laws and proceedings. The proceedings of the earliest courts were quite informal. We have some accounts of trials, before the coming of Penn, under the Duke's laws which provided for a jury of six or seven. The major part of this jury could give in a verdict. An informal statement of the matter at issue was made, and though the names of actions were used, there was no sharp discrimination and not even the distinctions between civil and criminal cases were clearly drawn. The administration of justice was rather founded upon the ideas of the magis- trates than on any rules of positive law. 1 Lord Petersboro, during his visit to Pennsylvania, was astonished at the sim- plicity and fewness of laws, the absence of lawyers and the informality of judicial proceedings. 2 County courts were instituted in the territory later called Pennsylvania in 1673. The procedure was informal, juries of six or seven were in use. 3 Under the new regime, the jurisdiction of courts was defined by the laws of 1683, Chap. 70, and in 1684, courts were given jurisdiction in equity as well as in law. 4 The same court even reversed in equity its own judgment in law. 5 Against this method the assembly complained. 6 In a number of the courts, the names of English actions were used, but case was often substituted for ejectment. 1 The practice was very much like modern code practice ; the complaint was filed fourteen days before trial ; ten days before, the defendant had to be summoned, arrested or his goods attached. In court, he might answer in writing ; the pleadings were to be in the English language; any defense, legal or equitable, might be interposed. 18 Thus from 'See Pennsylvania Archives, vol. VII, pp. 725-730; The Duke's Laws, 462; Memoirs of the Historical Society of Pennsylvania, vol. VII; Dr. Geo. Smith's History of Delaware County. 'I Spencer's Anecdotes, 155, quoted in Pennsylvania Bar Association Reports, I, 229. 1 Duke's Laws, 414. 4 Ibid., 167. Hastings vs. Yarrall, Records Chester County Court, 1686. Votes of the. Assembly, I, 76. 7 Sussex County Records, 1682, quoted in Pennsylvania Bar Associa- tion Reports, I, 362. 8 Laws of 1683, Chap. 66; Laws of 1684, Chap. 167. 11. RE1NSCH: COLONIAL COMMON LAW 399 the first legal and equitable relief was administered by the same courts in Pennsylvania. By the laws of 1683, Chap. 71, an informal body of arbitrators, called peace-makers, was instituted. The appellate court was called the provincial court, but the council also had appellate jurisdiction; and in connection with this it had a jurisdiction, like that of the permanent council of the mediaeval English kings and of the Star Chamber, to punish maladministration and malfeasance on the part of powerful officials. * As the English Parliament of the time of Edward III, so the Pennsylvania assembly petitioned against this extraordinary jurisdiction. In 1701, it requested that " no person shall be liable to answer any complaint whatsoever relating to property before the gov- ernor or his council or in any other place but the ordinary courts of justice." 2 Pennsylvania at this early period effected the union of equity and law in jurisdiction and in practice, a method that has always characterized the jurisprudence of that state. The voluminous legislation in the case of Pennsylvania may be due to the fact that the charter granted by Chajles II. declared that the laws of property and of crimes in the prov- ince should be the same as they were in the kingdom of Eng-' land, until altered by the proprietor. The legislation of . Pennsylvania covering virtually the whole field of property law may be called the first complete codification of law made in America. Penn himself was anxious to secure the services of trained lawyers. In a letter to Logan 3 he says that he has granted Roger Mompesson the commission of chief justice and he ad- vises the people to lay hold of such an opportunity as no government in America ever had of procuring the services of an English lawyer. Mompesson, however, did not remain in Pennsylvania long; he went to New York where he became chief justice, being appointed by Cornbury. The first lawyer who became chief justice of Pennsylvania was Guest, in 1701. 4 1 Pennsylvania Colonial Records, I, 20, 79, 95, 96. ' Ibid., II, 37. 8 Quoted in Field's Courts of New Jersey, 58. * Penn and Logan Correspondence, I, 19, 48. 400 /// THE COLONIAL PERIOD The early law of Pennsylvania is very original and contains the germs of many developments that specially characterize American jurisprudence. There was, in this colony, from the first a desire for settled legal relations, which finds expression in a discussion in the colonial council in 1689. When it was there proposed that in doubtful cases the magistrates might apply the colonial laws or the common law at their discretion, this was held too uncertain, and the sole validity of the laws of Penn was upheld. 1 On the question of substituting affir- mation for oath, numerous English law precedents were, however, cited by the assembly to the governor. 2 The law of manslaughter is left to be determined by the law of England, in 1705. 3 Maryland By the charter of Maryland, full powers of government were given to the proprietor. He might establish laws, and was not required to submit them for the approval of the Crown. He could establish courts, and process ran in his own name, and he was empowered to grant titles of nobility. He stood in the position of a count palatine. 4 In 1635, the 'first legislative assembly met, passing a body of laws which was rejected by the proprietor. In 1637, the proprietor and the assembly mutually rejected laws proposed by each other. This caused a serious dead-lock, and it seemed impossible to create a code of laws such as had been found necessary in all the other colonies. The colonists, accordingly, in the absence of a code of positive laws claimed that they were governed by the common law of England, so far as applicable to their situation. The proprietor opposed this claim on account of the interference with his rights, and the controversy thus arising was not finally settled until 1732. 5 The rule of judicature was first fixed by the laws of 1642, in which it was ordered that civil causes should be tried according to the law and usage of the province, having regard 1 Pennsylvania Colonial Records, I, 291. Ibid., II, 627. Ibid., 210. 4 Brown, Civil Liberty in Maryland, Maryland Historical Society Papers, 1850. McMahon's History of Maryland, Chap. III. 11. REINSCH: COLONIAL COMMON LAW 401 to the former precedents. In defect of such law, usage, or precedent, the case shall be determined according to equity and good conscience " not neglecting (so far as the judge shall be informed thereof and shall find no inconvenience in the application to this province) the rules by which right and justice useth and ought to be determined in England." The common law of England seems here rather" to be looked upon as a system useful for illustration and guidance than a sub- sidiary law ; equity and good conscience was considered to afford proper rules to fill the omissions of the positive law. * The rules for trial were in many respects unusual. The judge is allowed to administer an oath to either party in a civil cause, and on the refusal of the party to testify may proceed as if the matter asked had been confessed. 2 The power of the judge in controlling the jury is very great. If he thinks a verdict unjust he may return the jury or charge another. If he find the jury evidently partial or willful, he may charge another jury, and if their verdict is contrary the first jurors may be fined. Among these provisions we also find one of the earliest exemption laws. Tobacco, neces- sary clothing, bedding, utensils, and tools are exempt from execution. 3 The fettered legislative powers of this colony, the unlimited discretion allowed the governor and his council in administra- tion, by the charter, and the somewhat heterogeneous char- acter of the population, led the colonists later more strenu- ously to insist upon the observance of the principles of the common law as a subsidiary system. Therefore we find that in 1662 an act was passed declaring that when the laws of the province are silent, justice is to be administered according to the laws and statutes of England ; and that " all courts shall judge of the right pleading and the inconsistency of the said laws with the good of the province according to the best of their judgment." 4 This act was in force for only a short time, and the rule of judicature was therefore not long estab- 1 Archives of Maryland, Proceedings of General Assembly, 147. 1 Ibid., p. 150. This practice is perhaps taken from the canon law. 3 Ibid., p. 152. * Maryland Archives, Proceedings of Assembly, p. 436. 402 ///. THE COLONIAL PERIOD lished by express law. It is, however, the first definite recog- nition in America of the power of the courts to apply the common law of England to colonial conditions, and to reject provisions deemed unsuitable. The rule stated in the act of 1662 was also contained in the commission of judges, and thus the proprietor seems to have sanctioned this adoption of the common law ; the later controversy turned more on the ques- tion of the adoption of the statute law of England. In 1674, an attempt was made to determine by law what English criminal statutes were in force in Maryland. The lower house insisted on the adoption of the whole English statute law, saving all laws of the province not repugnant to the laws of England. 1 The council argued with the lower house, asking them to consider the dangerous consequences of an adoption of the entire English criminal law. They referred to the volume of the English laws and to the difficulty of ascertaining what statutes are at present in force. On account of this uncertainty the lower house is requested to designate certain statutes which are to be re-enacted and thus be a guide to the judges. In 1678, we find* that it is ordered to purchase Keble's Abridgment of the English Statutes and Dalton's Justice for the use of the various county courts. 2 The struggle between the proprietor and the people con- cerning English laws revived in 1722. The people claimed that the lord proprietor had already allowed them the benefit of the common law as their right according to the common opinions of the best lawyers, and that the controversy now was only concerning the applicability of the English statutes. 3 Lord Baltimore resisted the introduction of the English statutes " in a lump," as he expressed it, as doing away with his veto power ; while the lower house insisted upon a complete adoption. By the act of 1732 the controversy was settled by the following somewhat equivocal statement that " when the acts and usages of the province are silent the rule of ad judicature is to be according to the laws and statutes and * Maryland Archives, Assembly Proceedings, 1666-1676, p. 374. Maryland Archives, Proceedings of Assembly, 1678-83, p. 70. See citations in McMahon's History of Maryland, Ch. III. 11. REINSCH: COLONIAL COMMON LAW 403 reasonable customs of England, as used and practiced within the province." * However, the power of the courts to apply any English law, customary or statutory, which they found suitable to American conditions was no longer disputed. The opposition to lawyers common in the colonies we also find in Maryland. 2 The great influence which the theory of the adoption of the common law gave to the courts was recog- nized in a resolve in 1684, which stated " that it left too much to discretion and is an open gap to corruption." At this time, however, the lord proprietor insisted that if the English laws were to be used the governor and chief justice must be allowed to decide when they ought to be applied. Only on this basis would he consent to a re-enactment of the judicature act. 4 The attitude of the people toward the proprietor is further illustrated by the fact that an appeal to the king in legal proceedings was asked for. 5 Although, even in the earlier practice of Maryland, the terms of English law were used, its principles were often entirely neglected, and matters settled according to a rough equity. 6 Thus, in a case of homicide, the jury brought in a verdict finding accidental killing and no negligence; the court, however, fined the person who had handled the weapon that caused the accident. 7 In another criminal proceeding the accused is arraigned and pleads guilty before the grand jury passes on the indictment and finds it billa vera. 8 HI. THE SOUTHERN COLONIES Virginia The prevailing belief that codes of law are necessary for new colonies is evidenced by Crashaw's sermon preached before the London Company in February, 1609-10. Crashaw 1 McMahon's History of Maryland, p. 127. * Proceedings of Assembly, II, 168. * Maryland Archives, Proceedings of Assembly, 1684-1692, p. 71. * Maryland Archives, Lower House Journal, 1676-1702, q. 107. * Maryland Archives, Proceedings of Council, II, 140. * Maryland Archives, Provincial Court. 7 This recalls the early principle that the possessor or even the owner of the weapon by which the injury was caused is responsible. 8 Ibid., p. 183. 404 ///. THE COLONIAL PERIOD said : " Be well advised in making laws, but being made let them be obeyed, and let none stand for scare-crows, for that is the way at last to make all to be condemned." l The instruction for the government of the colonies 2 fixed general rules for the descent of lands, criminal law, jury trials, and placed civil jurisdiction in the hands of the gov- ernor and council. The first code intended for the colonies, printed at London in 1612, and entitled Laws Divine, Moral and Martial, 3 was exceedingly severe, and Sir Thomas Smith, the governor, was later much abused for having introduced it into Virginia. On account of the character of the population a strict rule was, however, absolutely necessary. In 1620, an attempt was made by the London company to compile a more adequate and humane code. Sir Edwin Sandys proposed the appointment of several committees for the following pur- poses: (1) compiling the laws of England suitable for the plantation; (2) collecting the orders and constitutions already in existence; (3) revising the laws passed by the Assembly. These committees were finally to meet and har- monize the entire body of laws which was then to be submitted to the king. Among the commissioners was John Selden. 4 These committees, however, did not report and Governor Yeardley asked for authority to make a collection of suit- able laws. 6 The first legislative assembly of Virginia met in 1619. It passed a number of laws and petitioned the council that they would " not take it in ill part if these laws passed current and be of force until we know their further pleasure out of Eng- land, for otherwise this people would in a short time grow too insolent." There is here so far no claim of the immediate validity of English laws' in the colony, and all parties con- cerned seem to think the formation of a new code adapted to the circumstances of the settlers necessary. In 1631, the oath of commissioner of monthly courts was fixed as follows : ' You shall do equal right to poor and to rich after your 1 Brown, Genesis of the United States, p. 371. 1 Ibid., pp. 368-71. Ibid., p. 528. Proceedings of the Virginia Company of London. Virginia Histor- ical Collections, vol. VII, p. 55. 8 Ibid., p. 55. 11. REINSCH: COLONIAL COMMON LAW 405 cunning, wit and power and after the laws and customs of this colony, and as near as may be after the laws of the realm of England." 1 There was not in Virginia, as we have noted in many of the other colonies, a system of courts whose magis- trates were elected by the people. The county courts were presided over by eight or ten gentlemen receiving their com- mission from the governor. Notwithstanding the source of their appointment, these men, not being educated in law, would perhaps not be governed by considerations much different from those obtaining in the popular courts of Massachusetts and Connecticut. The large number of the members of the court gives it the character of a popular tribunal, recalling the Doomsmen of the Anglo-Saxon courts, who declared the custom and fixed the mode of trial. Appeal lay from these courts to the general court, composed of governor and coun- cil. Their jurisdiction was developed by custom and the forms of proceedings were quite irregular. They also exercised a general chancery jurisdiction. By the statutes of 1661-1662, procedure in the courts was regulated. At the time of the Restoration, Virginia seems to have been especially anxious to show herself loyal to England, and these enactments breathe a deep respect for the common law. In the preamble it is stated that the legislature has endeavored in all things to adhere to these " excellent and refined laws of England to which we profess to acknowledge all due obedience and reverence." As a reason for enacting laws at all they assign the vast volume of the English law from which courts would be unable to collect the necessary prin- ciples without the aid of such codification. 2 The former laws are repealed and a new code is enacted. As some former laws restrained the trial by jury quite contrary to the laws of England, the law of juries is restated with special carefulness and precision. It is interesting to note in this connection that the colonists express their regret that they are unable to comply with the requirement of the English jury system that the jurors shall come from the immediate neighborhood of the place where the fact was committed ; but they state that they 1 Hening, Statutes at Large, vol. I, p. 169. 1 Hening, Statutes at Large, vol. II, 43. 406 ///. THE COLONIAL PERIOD desire to approach as near as possible to compliance by enact- ing that six men of the ablest and nearest of the inhabitants of the county shall be on the jury. 1 This reminds us of Sir John Fortescue's contention that France could not have the jury system, because there no neighborhood could produce twelve intelligent and substantial jurors. In this code the period of prescription for land is limited to five years. 2 The system of itinerant judges existed in Virginia for some time, but was abolished in 1662 on account of the great charge to the country. 3 The nature of the procedure in the county courts is seen from the provision that the bill or com- plaint must be filed the day before court, that the answer and judgment as well as evidence in the case is also to be filed, that the judgment is to be endorsed on the complaint if for the plaintiff, on the answer if for the defendant. 4 The administration of law in Virginia was in the hands of the country gentlemen who looked down upon the legal pro- fession, and in no state do we find more hostile legislation con- cerning lawyers than in the Old Dominion. In 1645 an act was passed expelling the mercenary attorneys. 6 In November, 1647, it is enacted that none shall plead for recompense. That in case the courts shall perceive that " either party by his weakness shall be like to lose his cause, they themselves may open the cause or may appoint some fit man out of the people to plead the cause, but shall not allow any other attor- neys." In 1656 the hostile acts were repealed, but only a year later there was again proposed in the house " a regulation or total ejection of lawyers," whereupon the decision was " by the first vote an ejection." ' A new act was therefore passed ' forbidding any person to plead or give advice in any case for reward. The governor and council rather opposed this enact- ment, but promised to consent to the proposition " so far as it shall be agreeable to Magna Charta." A committee was appointed, who upon considering Magna Charta, reported that they did not discover any prohibition contained therein. 8 In 1728, in a paper on the state of the colonies in America, 1 Hening, Statutes at Large, vol. II, 63. 1 Ibid., 97. * Ibid., II, 179. 4 Hening, II, 71. 8 Hening, I, 482. Hening, I, 495. T Ibid., p. 482. NeilTs Virginia Carolorum, p. 264. 11. REINSCH: COLONIAL COMMON LAW 407 Keith gives a very unfavorable account of the administration of law in Virginia. In order to unify and settle the law he favors the appointment of circuit judges from England. 1 Governor Gooch, in his answer to Keith's criticisms, says that the practice of courts is exactly suited to the circumstances of the respective governments and as near as possibly can be conformable to the laws and customs of England, and that the judges are of competent knowledge in the laws, though not all of them profound lawyers. 2 The Carolinas In the case of the Carolina colonies the enforcement of a very complete code, the celebrated Fundamental Constitutions, was attempted by the proprietors. These Constitutions were reactionary in the extreme, and attempted to introduce an intricate feudal system into the new colony. The redeeming feature of the act lies in its very liberal provisions concerning religious affairs, giving any body of believers the right to worship according to the dictates of their conscience. It is very doubtful if aside from these provisions concerning religion the Fundamental Constitutions had any permanent influence in molding the jurisprudence of the Carolinas. They were first promulgated in 1668, and were reissued in modified forms repeatedly until their final abandonment in 1698. The purpose of this code was to " establish the inter- est of the proprietor with equality and without confusion that the erecting of a numerous democracy may be avoided." We have no satisfactory information about the actual administration of justice in the early days of Carolina. The different colonies in the Carolinas had originally, however, very little in common, being settled by various elements. And it is highly probable that each of these colonies developed at first its own customary and popular methods of dealing with legal controversies. 4 The Carolinas were among the earliest 1 Byrd Manuscripts, 1728, p. 222. 1 Ibid., p. 237. a Fox Bourne, John Locke, p. 38 ; and Hawks, History of North Carolina, p. 182. 4 Chalmers' Political Annals, p. 521. 408 ///. THE COLONIAL PERIOD colonies to adopt the English common law as a rule of adjudi- iture. This was done in South Carolina by the act of December, 1712. l Before, in 1692, the assembly in an address to Governor Ludwell had complained because " the Palatine Court assumed to put in force such English laws as they deemed adapted to the province; but the assembly conceived that either such laws were valid of their own force, or could only be made so by an act of assembly." The proprietors as- sumed that all laws of England applied to the colonies, but in 1712 they receded from their position by approving the act adopting the common law and such statutes of England as had been selected by Chief Justice Trott as applicable to- the condition of the colony. 3 The act of 1712 puts in force all English statutes declaring the fights and liberties of sub- jects, as well as the common law, except where it may be found inconsistent with the customs and laws of the prov- ince. The law concerning military tenures and ecclesiastical matters is especially excepted. The courts are here, as in Maryland, given the power to apply the principles of the common law. In North Carolina the same object was ac- complished by the act of 1715, entitled " An act for the better observing of the queen's peace," which declares the colony to be " a member of the crown of England," and provides that the common law shall be in force in this gov- ernment " so far as shall be compatible with our way of living and trade." The practice of issuing writs is specially excepted. Certain enumerated statutes, such as the statute confirming the privileges of the people and security of trade, the statute of limitations, and the statute of frauds, are also adopted by this act. From the scanty records of the early days of the colonies we can glean that the proceedings were often very informal. The discretion of the magistrates in inflicting punishment was very wide, as is apparent from the cases cited by Hawks in his. history. 4 1 See Robt. Mills, Statistics of South Carolina, p. 196. 1 Rivers, Historical Sketch of South Carolina, p. 433. Statutes of South Carolina, II, 401. * Hawks, History of North Carolina, II, 122, 218. 11. REINSCH: COLONIAL COMMON LAW 409 A court of chancery was established as early as 1697, in which the English chancery practice was in the main adhered to. 1 At a very early date trained lawyers were among the judges in these colonies ; in the year 1729 we find that on the question of the effect of a general pardon an English case 2 is cited and followed in the adjudication, one of the earliest instances where such a use of English authorities can be ascertained. In South Carolina, the city of Charleston was for almost a hundred years the seat of the colonial court, the source and center of judicial proceedings. This of course was favorable to an earlier reception of the English common law, as a cen- tralized system of judicial administration always leads to a more highly developed form of juristic conceptions. On the other hand this concentration of jurisdiction had the effect of leaving large tracts of the colony virtually without regular administration of the law, so that in the remoter parts of South Carolina associations of regulators had to be formed to deal out a rough popular justice. 3 Anthony Stokes, Chief Justice of Georgia, in his View of the Constitution of the British colonies of North America and the West Indies, London, 1783, gives a very interesting dis- cussion of the state of legal administration in the southern colonies. He states that the colonies where the system of county courts prevailed, where there were a large number of judges in general unacquainted with the law, little decorum was observed in the courts ; but the colonies where the judges of the superior court went on circuit had a more impartial administration of justice. A system of circuit courts, how- ever, was not established in the colonies in the 17th century, except for a short time in Virginia. And the lack of a har- monious, unified, and consistent rule of adjudication may be inferred from the one fact of the absence of a unified judi- ciary. Of course a system of appeal would tend to unify the law, but in these early days an appeal to a central court was by no means an easy matter, and, in the ordinary administra- tion of justice the citizens undoubtedly took their law from the 1 Hawks, History of North Carolina, II, 134. * 2 Croke, 148. Ramsay's History of South Carolina, p. 120: 410 ///. THE COLONIAL PERIOD popularly elected magistrates who had no pretensions to a knowledge of technical jurisprudence. Stokes also discusses the question as to what part of the English common law the colonists had brought along with them. 1 His answer illustrates the vagueness and the unhis- torical character of the legal theory. He says that the gen- eral rules of inheritance and personal injuries were brought along ; not, however, the artificial distinctions and refinements of property law, the laws of police and revenue, etc. Now we have seen that the law of personal injuries was usually fixed by the codes which the colonists established at an early date, the rule of inheritance too was in most colonies varied from that of the common law; and certainly an adoption of any system which would leave out property law could be styled an adoption only in a very modified sense of the term. IV. CONCLUSION When we come to consider from a more general point of view the attitude of the early settlers toward the common law, we find that certain views of law pervaded all the colonies ; that in other matters the various colonies followed their own bent and were influenced by their special conditions or the special purposes of their polities. A general trait of early colonial law is codification. It seems to have been universally considered necessary to state the essential elements of law for the guidance of the colonists who had taken up their abode in a wilderness without books or facilities for legal study, who therefore in the nature of things could not use a system which, like the common law even of that date, necessitated a vast apparatus of technical treatises, of reports, and of stat- books. In all the colonies except Maryland we find an early codification of the essential elements of the law. In Maryland, as we have seen, this was prevented by the con- troversy between the people and the proprietor, but even there considerable legislation was produced at an early date. Some of the codes, like those of Massachusetts and Penn- 1 Stokes, View of the Constitution of the British Colonies, pp. 9, 10. 11. REINSCH: COLONIAL COMMON LAW 411 sylvania, departed in many essentials radically from the principles of the common law, and show that their framers consciously desired to meet the entirely novel conditions of the colonists by new and appropriate legal measures. We may safely say that these codes were in the first decades^ of the colonies almost the sole source of legal knowledge, of rules for adjudication. As to matters not covered by the law there stated, the good and careful discretion of the popularly elected- magistrates or appointed judges was re- lied upon to furnish a just rule satisfactory to the popular sense of right. In some instances we have noticed the use of elementary English treatises on actions, like Dalton's Justice, but we have also noticed that while the names of the forms of actions were used, the greatest laxity and informality prevailed in their application and in the general practice of the popular courts. Some of the colonies declared the English common law subsidiary in cases not governed by colonial legislation, at a comparatively early date. We have noted this in the case, of Maryland, Virginia and the Carolinas. But other col- onies very early made unequivocal declarations establishing the law contained in Scripture as subsidiary law in their system. This is true of Massachusetts, Connecticut, and New Haven and to a certain extent of New Jersey. In both cases, however, in the earlier days before a trained bench and bar had come into existence, a declaration of the existence of a subsidiary law would but little bind the other- wise unfettered discretion of the popular judges; because undoubtedly these judges (like the Chancellor in Marks vs. Morris, 4 Hening and Mumford, 463) would epitomize the common law in the ancient rule of " honeste vivere " and thus apply their own ideas of justice until called to account by a trained bar, which arose later, during the 18th cen- tury. The records that have been examined exhibit everywhere, especially in the popular courts, a great informality in judicial proceedings. The large number of judges in these courts would of itself tend to make the practice informal, to make the trial more like a deliberation of a community 412 ///. THE COLONIAL PERIOD by its representatives on the justice or injustice of the case involved. The absence of a jurist class, and especially the --universal prejudice against lawyers, proves that a popular and not a technical system was being enforced. The tech- nical knowledge of the lawyer was not in demand, and, like Lechford, the lawyers had to turn their hands to semi-pro- fessional or non-professional work, the courts of the colonies at that date having no need of the aid of a trained profes- sion to discover what was the law, as by the custom of the tnne the law was in so many cases determined by the discre- tion of the court. It seems just to conclude that usually the administration of law was carried on not according to the technical rules of a developed system of jurisprudence but by a popular tribunal according to the general pop- ular sense of right. The original elements in the early colonial laws are great in number and import. They foreshadow and anticipate some of the most far-reaching American law reforms. Pleading is simplified, and the intention is in many places expressed that it shall be possible for any man of ordinary intelligence to plead his own cause before the courts. This innovation supports the same conclusions that we have reached from the facts of the institution of popular courts and the absence of trained jurists. Evidence was in many colonies given in writing, or at least taken down by the ^clerk and made a part of the record in the action; a prac- tice utterly abhorrent to common law ideas, not so to the popular mind to whom the evidence is the most important part of the case. Various modifications of the jury system have been noted, but in general this venerable and highly popular institution was adopted in the colonies in its Eng- lish form at an early date. The period of prescription was in many of the colonies lowered to five or seven years, a change that was of course eminently consistent with the conditions of an infant colony on a new continent. Execu- tions on land were permitted, and in many cases the funda- mental distinction between real and personal property in the English law was obliterated or ignored. The laws of inheritance and of tenure were, as we have seen, very ma- 11. KEINSCH: COLONIAL COMMON LAW 413 terially modified, very often leading to the adoption of a system totally unlike the common law at that period. The historian will be interested in the reversion to the more ancient customs of the common law which we have ascertained in a number of cases. Such are the bestowal of judicial functions in law and in equity on the councils, pro- tests against the extraordinary jurisdiction of which recall the history of the jurisdiction of the Great Council and Chancellor in England in the 13th and 14th centuries. We have seen how archaic ideas of the jury were given a new lease of life; Georgia, even after the period of independ- ence, using a system of controlling the jury that was mod- elled on the old method of attaint. The idea of tort liability for crimes was revived, an idea that has been in the last decades again enforced with new emphasis by our legis- latures. But the most important and interesting revival of older institutions is found in the popular courts com- posed of a comparatively large number of judges, recalling the twelve thanes of early English law, who declared law and custom in a simple, straightforward manner. Men here appear to plead their own causes, unassisted save by the unremunerated help of a friend or by the court itself. The court is not a trained judge, drawing his knowledge from, and supporting his judgment upon the accumulated wisdom of ages of legal development, but a popular committee rep- resentative of the people and enforcing the general popular custom and sense of justice. We have also noted the prevailing views on the nature of law. The analytical theory of Hobbes, making positive law independent of moral considerations and basing it on a sovereign will, was not accepted at that time. The law of God, the law of nature, was looked upon as the true law, and all temporal legislation was considered to be binding only in so far as it was an expression of this natural law. With such a view of the nature of legal obligations, it does not seem strange that the magistrates should look for the true law in their own sense of right and justice, or, in the Puritan colonies, in the word of God. The views of the common law when expressed are of the 414 ///. THE COLONIAL PERIOD most rudimentary and incomplete kind. Ignorance of the system is often most frankly confessed, and when a com- parison is instituted between the colonial laws and the com- mon law, Magna Charta is often taken as a complete embodi- ment and expression of the latter. This is true not only in the Puritan colony of Massachusetts, but also in Virginia where, when it was to be decided whether an act was contrary to the common law, the committee thought it sufficient to examine Magna Charta. Among the early colonists we therefore find a very clear perception of their destiny to work out a new legal system, to establish rules dictated by their special polity or by the conditions of primitive and simple life in which they found themselves. Respect is often expressed for the common law, the resolution is in some cases even formed of using it as a model, but it is only in a few cases clearly established as the rule of judicature and in still fewer instances followed with precision in the ordinary administration of the law. The colonial codes cover the more essential parts of the law, leaving cases therein not anticipated to be decided by the discretion of the magistrates. The theory of the transfer of the common law as subsidiary law at the beginning of the colonies is therefore, in its unmodified form, not a true statement of colonial legal relations. We cannot under- stand the history of our law, nor justly value the character- istic development of our jurisprudence, unless we note the actual attitude of the earliest colonists towards the common law, an attitude sometimes of apathy, of lack of under- standing, sometimes of resistance or ignorement, sometimes, as in the case of Maryland, of admiration and adherence from the first. It has been said that the colonists imported the general principles, the general system of reasoning of the common law. This is either self-evident or too indefinite to be of any historical value. It is certainly true that ideas of right and positive law develop side by side mutually influencing and reacting upon each other ; and in this sense the English colonists, in their general ideas of justice and right, brought with them the fruits of the " struggle for law " in England. 11. REINSCH: COLONIAL COMMON LAW 415 But when the expounders of the theory attempt to descend to particular statements of these general principles, they use colorless phrases that might as well be applied to any other system of civilized jurisprudence as to the common law. And when we apply the theory to the facts, we find that it is not a true and complete statement of the basis of jural relations in the early colonies. Most of the colonies made their earliest appeals to the common law in its character of a muniment of English lib- erty, that is, considering more its public than its private law elements. In the 18th century, with a more jealous supervision of colonial development by the mother country, the introduction of law books, and the growth of a trained bench and bar, a more general reception of the private law principles of England is brought about. To state the final conclusion arrived at: The process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal con- ceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles. This is but nat- ural; the common law was a technical system adapted to a settled community ; it took the colonies some time to reach the stage of social organization which the common law ex- pressed; then gradually more and more of its technical rules were received. * 1 For a short bibliography by the author of this Essay, of treatises, essays, and other sources, relating to Colonial Law, see Volume II of these Essays, Topic I, " Sources and Materials." EDS. 12. THE THEORY OF THE EXTENSION OF ENGLISH STATUTES TO THE PLANTATIONS BY ST. GEORGE LEAKIN SioussAT 2 THE rapid expansion, in recent years, of the territory- belonging to the United States, and the judicial deter- mination, in the Insular Cases, of the relation of subject peo- ples to the American Republic have revived a question as old as the Constitution itself. This latest phase, involving pos- sessions disconnected and far removed, makes us readier than before to examine the experience of other colonizing powers, especially of that British Empire from which the thirteen colonies separated themselves by the Revolution. At the pres- ent writing, moreover, the modern constitution of that empire is being subjected to fresh scrutiny and review, through the pressure of economic problems whose solution involves to the foundation the relation of Great Britain and her dependen- cies. But since, in the logic of history, the present has grown out of the past, a study which carries us back to the first building of that imperial system, and to the time when we were part of it, seems to be not unseasonable. Therefore, as our last chapter was local in its point of view, this is to be imperial in its outlook ; and, leaving as beyond our proper field all considerations of economic relations, we shall inquire 1 These passages are extracted from an essay on " The English Stat- utes in Maryland," Johns Hopkins University Studies in History and Political Science, 1903, volume XXI., being c. II., pp. 17-30. 1 Professor of History and Economics in the University of the South, since 1904. A. B. Johns Hopkins University 1896, Ph. D. 1899 ; Instruc- tor in History in Smith College, 1899-1904. Other Publications: Highway Regulation in Maryland, 1899; Balti- more (Historic Towns of the Southern States), 1900; Economics and Politics in Maryland 1730-1750 (Johns Hopkins Studies), 1903; Vir- ginia and the English Commercial System (American Historical Asso- ciation, vol. I.), 1905. 416 12. SIOUSSAT: ENGLISH STATUTES 417 briefly into the theories held, in the seventeenth and eight- eenth centuries, by English judges and lawyers, as to the legal status of the colonies, and especially as to the extension to these of Statutes of the British Parliament. Afterwards, for the purpose of comparison, we shall review the experi- ences of a few other colonies, which involved these theories or principles similar to those contested in Maryland. We may first direct our attention to a case which was decided early in the seventeenth century, as a result of the union of the English and Scottish monarchies in the person of James I. For details as to the desire of James to secure for his Scotch subjects the rights of citizenship in the richer land of the South, and the general history of the " Post-nati," we must refer to the historical writings of Gardiner and Hallam, and here direct our attention to a test case, known as Calvin's Case, made up in connection with the Post-nati decision that citizens of Scotland born after James' accession were to be accounted as legally naturalized in England. In Calvin's Case the Judges enunciated certain opinions as to the position of " dependencies " with relation to the central government. A dependency, they held, was a " parcel of the Realm in tenure," and Parliament might make any statute to bind such dependency, where the latter was definitely named; but without such special naming a statute did not bind. At the same time the judges went into an extended classifi- cation of the dominions dependent on the British Crown. These they divided into 1. Christian countries to which the laws of England have been given by King or by Parliament. 2. Countries which come to the King through inher- itance. In neither of these can the King " change " the laws. 3. Conquered countries inhabited by Christians. Here the laws of the conquered remain in effect until the King changes them, which is entirely within his prerogative. 4. Conquered heathen countries at once lose their rights or laws by the conquest, " for that they be not only against Christianity, but against the law of God and of nature. 418 ///. THE COLONIAL PERIOD contained in the Decalogue." As to these, the monarch " by himself and such judges as he shall appoint, shall judge them and their causes according to natural equity . . . until certain laws be established among them." l The year in which this decision was rendered (1607) marks the very beginning of successful English settlement in North America ; but the principles then formulated were put into practice especially in the colonization of Ireland in this and in the succeeding reign. 2 For the ends of this paper, it is to be remembered as the first " leading case " that declared the distinction between conquered and settled dependent terri- tories, and applied a different rule to these classes respectively. As settlement in the new world progressed, and governments of one form or another were established by royal permis- sion, or instruction, we find all the charters save one granting to the colonists the rights o*f English citizens, and the claim to these rights maintained by the inhabitants of every colony, whether in possession of a charter or not. As to the interpre- tation of these rights, and the determination of their extent, discussion and dispute were more or less continuous. Every colony, however, at some time during its constitutional his- tory had to face this question of the relation of the colonial law to the legal system of the mother country. In our ordi- nary study we naturally emphasize the history of the English *7 Rep. We have followed the analysis in Snow: The Administra- tion of Dependencies. The case was almost always cited whenever the question came up. Of especial interest is Lord Mansfield's brief con- sideration of it in the Grenada Judgment (Campbell v. Hall), 1774. His remarks were published in pamphlet form as Lord Mansfield's Speech on Giving the Judgment of the Court of King's Bench ... in the Case of Campbell v. Hall . . . London, 1775; A New Edition, Cor- rected. He calls attention to the " absurd exception, as to pagans . . . (which) shows the universality and antiquity of the maxim." The earlier history of these principles, before Calvin's Case, lies beyond our discussion. It may be noted, however, that they belong to International Law. *The frequency of reference to the analogy of Ireland's law is note- worthy. See the matter upon the constitutional development in Ire- land, "in Hallam. The Constitutional History of England, ch. xviii. Compare, also, I. Blackstone's Comm. 103-4; Lord Mansfield's decision in Campbell v. Hall, quoted above; a pamphlet entitled The Privileges of the Island of Jamaica Vindicated, London, 1766 (rep.) A recent dis- cussion of this whole matter is found in Snow, A, The Administration of Dependencies, chaps. 1-4. 18. SiOUSSAT: ENGLISH STATUTES 419 colonies on the Atlantic coast and of only some of those but occasionally we are led to other regions for our best sources of information. The next important judicial decision was one that concerned the colony of Jamaica. The whole constitutional development of this island is of the greatest significance in American colonial history, and far too little attention has been paid to it. In this connection, especially, certain similarities and certain differences render very interesting a comparison with Mary- land. The case of Blankard v. Galdy is one to which very fre- quent reference will be necessary. The matter at issue was a suit on a bond, and involved the extension of an English Act to Jamaica. The counsel for the plaintiff argued that Jamaica was an island beyond the sea conquered from the Indians and the Spaniards in Queen Elizabeth's time 1 [sic], that the inhabitants were bound by their own law, and that as they were not represented in Parliament, so they could not be bound by English statutes unless specially named. Statutes were cited among them 5 Eliz. ch. 4, as to servants which would be destructive if enforced there, and others, such as the Act of Usury, which does not apply, " for they allow them more for the loan of money than is permitted by that law." Several Acts of Parliament which have " taken notice " of Jamaica are cited. Then is adduced the Earl of Derby's Case, where the Court held that English statutes did not bind the inhabitants of the Isle of Man, a conquered province, unless they were specially mentioned. Counsel for the defendant argued contra that the liberties lost were those of the conquered; those that conquer cannot by this conquest lose their laws, which are their birthright, and which they carry with them wherever they go. Calvin's Case is then cited, with emphasis in its distinctions between heathen and Christian conquered countries. The experience *The Conquest did not take place, of course, until Cromwell's time, in 1655. An attack was made in Elizabeth's reign, in 1596, under Shir- ley, but this was not followed up. See Preface to The Importance of Jamaica to Great Britain Considered: London, 1741? This tract deals rather lightly with Constitutional History. 420 ///. THE COLONIAL PERIOD of Ireland is used to point out an analogy between that and the situation of Jamaica. 1 The Court held, in part : " 1. In case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there: so it seemed to be agreed. " 2. Jamaica being conquered and not pleaded to be par- cel of the Kingdom of England but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. . . ." 2 That Jamaica was alleged to be a conquered country caused upon other occasions, some of which we shall notice later, con- siderable difficulty in determining the legal system of the island. The decision, it seems, is adverse to the extension of English laws, though the judges did not lay stress on the distinction between common and statute law. A clearer statement appears in the opinion of the Attorney- General, West, rendered in 1720, in which he said: " The common law of England is the common law of the plantations, and all statutes in affirmance of the common law, passed in England antecedent to the settlement of a colony, are in force in that colony, unless there is some private Act to the contrary ; though no statutes, made since those settle- ments, are thus in force unless the colonists are particularly mentioned. Let an Englishman go where he will, he carries 1 as much of law and liberty with him as the nature of things will bear." 8 Nine years later, in connection with the dispute in Mary- land, Sir P. Yorke, then Attorney-General, gave an opinion on the same subject, which affords an interesting comparison with that of West. " Such general statutes as have been made since the settle- ment of Maryland, and are not by express words located either to the plantations in general or to this Province in par- ticular are not in force there, unless they have been introduced 1 See below. * 4 Modern 215 if. Salkeld 411. * Chalmers' Opinions, Vol. I., pp. 194-195. 12. SIOUSSAT: ENGLISH STATUTES 421 and declared to be Laws by some Acts of Assembly of the Province, or have been received there by a long uninterrupted usage or practice which may impart a tacit consent of the Lord Proprietary and of the people of the colony that they should have the force of a law there." 1 The modification here evident was without doubt a reflection of the agitation in Maryland to which we shall devote extended discussion hereafter. Passing over other cases, we come to the doctrine of the pre-revolutionary period as summed up by Blackstone, 2 who, upon this subject delivers himself as follows: " Besides these adjacent islands [Man and the Channel Islands], our most distant plantations in America, and else- where, are also in some respects subject to the English laws. Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding .them desert and uncultivated, and peo- pling them from the mother country ; or where, when already cultivated, they have been either gained by conquest or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of col- onies, with respect to the laws by which they are bound. For it hath been held 3 that if an uninhabited country be dis- covered and planted by English subjects, all the English laws then in being, which are the birthright of every subj ect 4 are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is ap- plicable to their own situation and the condition of an infant colony. Such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the prop- erty of a great and commercial people, the laws of police 1 Chalmers' Opinions, Vol. I., p. 206. Also in Calvert Papers (MS.) No. 52, p. 14. Chalmers dates this March 9, 1729. The Jamaican con- troversy referred to below had been settled in the meantime; while the controversy in Maryland had reached its height. * Blackstone's Commentaries (3rd ed. Cooley) Introduction, sec. 4, p. 107. Refers to Salkeld 411, 666. Refers to 2 Peere Williams 75. 422 ///. THE COLONIAL PERIOD and revenue (such especially as are enforced by penal- ties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what time, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature subject to the revision and control of the King in council: the whole of their Consti- tution being also liable to be new modeled and reformed by the general superintending power of the legislature in the mother country. But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change these laws, but, till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country. 1 Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what national justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there, they being no part of the mother country, but distinct, though dependent dominions. They are subject, however, to the control of the parliament, though (like Ireland, Man and the rest), not bound by any acts of parliament unless particularly named." Lastly, the reader is referred to Mansfield's decision in the case of Campbell v. Hall. 2 Here the same general prin- ciples were stated more elaborately in six propositions, which need not be quoted at length upon the present occasion, as the time and place of the matter at issue lie too far from the limits described for this paper. These opinions, judicial decisions, and the authority of Blackstone suffice to illustrate the legal theory with which we have to compare the claims put forth by the Maryland col- onists. With the cases and decisions that come later, and 1 Refers to Calvin's Case, 7 Rep. 17. Shower's Parliamentary Cases 31 (Dutton v. Howell). 1 Cowper, 204. See also the pamphlet mentioned above, p. 18, n. 1. 12. SIOUSSAT: ENGLISH STATUTES 423 with the modern classification of the British colonial system, we are not here concerned. 1 It must be remarked, however, first, that the opinions we have quoted show a process of development, and some lack of harmony ; second, that while the principles as to extension which Blackstone lays down did, in American courts generally, become the accepted theory of the transfer of English law, 2 a different attitude was as- sumed towards his consideration of the American possessions as conquered territory; and thirdly, that as Reinsch has shown, the legal theory is not universally supported by the actual facts in the legal history of the colonies. 3 As we have not undertaken any but the barest statement of this legal theory, so our reference to the experiences of other colonies must be of the briefest. While in every group of colonies incidents turned upon or called in question the same points as the Maryland controversy, and although no com- plete discussion of this part of the subject exists, we shall on this occasion mention only two or three such happenings which are peculiarly fitted to help us understand the more limited field that we have chosen. In 1651. the Colony of Virginia surrendered to the Com- missioners of the Puritan Government in England. The first article of capitulation declares : " It is agreed and const'd that the plantation of Virginia, and all the inhabitants thereof, shall be and remain in due obedience and subjection to the Commonwealth of England according to the laws there established, and that this sub- mission and subscription be acknowledged a voluntary act not forced nor constrained by a conquest upon the country, And that they shall have and enjoy such freedomes and priv- iledges as belong to the free borne people of England, and 1 For a general discussion of the later development of the theory see Burge, W.: Commentaries on Colonial and Foreign Laws Generally, and in their conflict with each other and with the Law of England, London, 1838. Here will be found the story of the proclamations of 1763 the Grenada judgment, etc. For Canada and the Quebec Case, see also Coffin: The Province of Quebec and the early American Revolution. See also Egerton, H. E.: A Short History of English Colonial Policy ch. iv. * Van Ness v. Packard, 2 Pet. 137. 8 Reinsch: English Common Law in the Early American Colonies, passim [reprinted in this Collection as Essay No. 11]. 424 ///' THE COLONIAL PERIOD that the former government by the commissons and instruc- tions be void and null." * Here seems to be a conscious recognition of the " conquest " idea so emphasized in the decision just quoted. In Mary- land itself, however, we have a still clearer example when, in 1684, in a debate between the Houses of the Assembly over the right of the Speaker to issue warrants for election to vacan- cies, the Proprietor's argument, in support of his own prerog- ative, that " the King had power to dispose of his conquests as he pleased," roused the ire of the Lower House, which asserted the rights of its members as based on their English origin. This was " their birthright by the words of the Char- ter." The word " conquest " had a sinister meaning which they resented, and they hoped that the words were the result, not of the Proprietor's own will, but of strange if not civil counsel. The Upper House at once explained that it had no idea of likening the freemen of the Province to a conquered people. 2 The discussion indicates that in Maryland, before the revolution of 1689, this legal theory was known and its application of this principle to Maryland denied. The narrower question of the extension of the English stat- utes had been broached in many other plantations. One or two instances will suffice for illustration. In 1692 the Assembly of South Carolina passed an Act authorizing the judicial officers of the colony to execute the Habeas Corpus Act an Act passed some years later than the settlement of Carolina. This the Proprietors disallowed, however, declaring that all laws of England applied to the colony, and holding that it was there- fore unnecessary to re-enact that famous statute in their Province. " By those gentlemen's permission that say so, it is expressed in our grants from the Crown that the inhabit- ants of Carolina shall be of the King's allegiance, which makes them subject to the laws of England." Here we have a proprietary Province, of a constitution analogous in so many respects to Maryland, in controversy 'Hening: Statutes at Large I., p. 363-4. Cited in part in Snow: The Administration of Dependencies, p. 115, and as a whole in Hart: American History Toltl by Contemporaries I., pp. 235-6. 2 Sparks, Causes of the'Maryland Rev. of 1689, p. 82 Md. Arch. III. Ass. Pro. pp. 124-125. 18. SIOUSSAT: ENGLISH STATUTES 425 over this same matter ; but the parties we find taking exactly opposite positions from that which they assumed, respectively, in Maryland. However, the Proprietors here receded from their position, and, in 1712, approved an Act which adopted the English common law and such statutes as were deemed applicable to the Constitution of the Province. 1 A somewhat similar law was passed in North Carolina, in 1715. Of more direct bearing upon the course of events in Mary- land is the experience of her northern neighbor, Pennsylvania, where legal controversies similar to that which we have to follow in Maryland were taking place just a few years before 1722. The efficacy of the English statute law, in comparison with that of local legislation, came up in connection with the unwillingness of the Quakers to take an oath, and their claim that an affirmation was equally valid for legal proceedings. 2 More closely analogous to the issues developed in Mary- land, however, was the evolution of the courts of judicature in Pennsylvania. In the course of a contest between Governor Evans and the Assembly, the former issued an ordinance to establish courts; in which the judges were directed to hear and determine cases " as near as conveniently may be to the laws of England, and according to the laws and usages " of the Province. In equity cases, they were to " observe " as near as may be the practice and proceedings of the High Court of Chancery in England. Against this establishment of courts by ordinance the Assembly remonstrated, but to little purpose, and the quarrel dragged on through subsequent admftiistrations. 8 The constitutional points in dispute lie without the scope of our consideration, but the reference to the laws of England concerns us directly. Furthermore, in 1718, Governor Keith and the Council fell out over the commissions of the judges. Should they run in the name of the Governor merely as had been the case or should they not rather run in the name of the King, with 1 McCrady, E.: The History of South Carolina under the Proprietary Government pp. 247-8, 517 ff. Reinsch: English Common Law, pp. 49-50. 2 Shepherd, W. R.: History of Proprietary Government in Pennsyl- vania, Columbia University Studies in History, Economics and Public Law, Vol. VI., pp. 351-369. * Shepherd: Proprietary Government in Pennsylvania, pp. 386 ff. 426 HI- THE COLONIAL PERIOD the Governor's attestation? In supporting the latter view, the Governor argued that the judges were the King's judges; and that the Proprietor had only the right of naming them, and he argued the example of Durham, where by Act of 27 Henry VIII. ch. 24, the power of appointment was taken from the Bishop and vested in the Crown. " In reply," says Shepherd, " the Council stated that the difficulty had arisen in not distinguishing the difference be- tween England and * new colonies made without the verge of the ancient laws of that Kingdom.' As the King could give power to subjects to transport themselves to the dominion of other princes, where they would not be subject to the laws of England, so he might allow them to go to any foreign country upon any conditions he might choose to prescribe. Furthermore, since the native Indians, who inhabited these newly discovered American lands, were not subject to the laws of England, ' those laws must, by some regular method, be extended to them, for they cannot be supposed of their own nature to accompany the people into these tracts in America ' any more than into any other foreign place. The King, by his charter, had given the proprietor and the people full power to enact laws not repugnant to those of England, but ' without extending any other than such as were judged absolutely necessary for the people's peace and common safety till such time as they should think fit to alter them.' ' Continuing, they urged that precedent was upon their side in other colonies as well ; and upon this occasion Keith yielded to their claims. 1 Thus we see that public sentiment was on the side against extension. In line with this feeling, the Assembly, in 1718, passed an Act definitely extending several English penal statutes, which greatly altered the milder ideals of William Penn's early legislation. The necessity for this, Shepherd suggests, 2 was the advantage taken by many law-breakers of the privilege of affirmation instead of swearing oaths. In the passage just cited, the argument was not technically legal, but in the preamble to this Act the Assembly said : 1 Shepherd: Proprietary Government in Pennsylvania, pp. 386-7. Mbid., pp. 388-389. 12. SIOUSSAT: ENGLISH STATUTES 427 " Whereas it is a settled point that as the common law is the birthright of English subjects, so it ought to be their rule in British dominions ; but Acts of Parliament have been adjudged not to extend to these plantations, unless they are particularly named in such acts." Here is a clear-cut statement of the " orthodox " theory as to extension, exactly similar in tenor, it will be noticed, to the opinion of West in 1720, given above. Since it is easy to prove that contact between Maryland and Pennsylvania was continuous, and that the politics of the latter exerted a decided influence on those of the former, it is not unreasonable to suppose that this discussion in Pennsylvania, which occurred when discussion on the same point in Maryland was inactive, had something to do with the revival of the quarrel in Mary- land in 1722. This hypothesis is helped by the emphasis that we shall find laid by Dulany and his party on the Commissions of the Judges. It is the more remarkable, as the latter argued precisely in opposition to the ideas of the Council in Pennsylvania. A far more striking analogy appears in the history of Jamaica, to which the case of Blankard v. Galdy has already led us. We found it there claimed and adjudged that Jamaica was a conquered Province ; but, as we might suppose, the English inhabitants of the island denied that they repre- sented the conqueror. The military seizure of the island and its cession by Spain did, however, introduce this additional complication into the whole of Jamaica's constitutional his- tory. Moreover, Jamaica was a Crown colony, and had no charter. The instructions and proclamations of Cromwell and of Charles II. were liberal, however. In the time of the latter, especially after the period of military rule had reached a conclusion, the progress of the colony towards a constitu- tional development like that of the other American colonies was constant. But in 1678, upon objections by the lords of the Committee for Trade, the royal government rejected some of the Jamaican laws, and went so far as to urge that the laws for the island must be made in England, then sent to Jamaica 1 Shepherd : Proprietary Government in Pennsylvania, p. 890. 428 ///. THE COLONIAL PERIOD for passage by the Assembly, after the manner of Irish legis- lation under Poyning's Law. This reactionary attempt of the Crown to compel the civilian was opposed and rejected by the Jamaican Assembly. Then ensued a long wrangle, which left it in great doubt what laws were in force and what not. A temporary agreement as to the practical difficulties was reached in 1684. But the claim of the colonists to the English laws not only to those passed before the settlement, but to some, like the Habeas Corpus Act, passed after it was denied by the King in Council and by the courts. The Jamaica Assembly went farther than that of Mary- land, in that they entangled with this controversy the ques- tion of levying the public money, and refused to pass a law to grant a perpetual revenue until the Crown would fully admit the rights they demanded. This the Crown for a long time refused to do ; but at last, in 1728, the Assembly " Settled a permanent revenue, not burthensome to them- selves. ... In return for this they obtained the royal con- firmation of their most favourite and necessary Acts of As- sembly, and the following declaration expressed in the 31st clause of this revenue Act : " And also all such laws and statutes of England as have been at any time esteemed, introduced, used, accepted or received as laws, in this island, shall and are hereby declared to be, and continue, laws of this his majesty's island of Jamaica forever ! " This clause is justly regarded by the inhabitants as the grand charter of their liberties, since it not only confirmed to them the use of all those good laws which originally planted and supported freedom in England, but likewise of all the other provisions made for securing the liberty and property of the subject in more modern times ; when, upon the several overthrows of tyrannic powers in that Kingdom, the sub- jects' rights were more solidly fixed on the rational basis of three solemn compacts between the sovereign and people : at the Restoration of Charles II., the Coronation of the prince of Orange, and, lastly, the accession of the House of Hanover. 12. SIOUSSAT: ENGLISH STATUTES 429 "The little clause before recited has cost the island, in fifty years, about 50,000, the net income of the revenue being about 10,000 per annum. Yet, considering the un- speakable benefits derived by them in virtue of this compact, they do not think it too dear a purchase." Such was the controversy in Jamaica, thus contempora~ neous in part with that conducted by Dulany in Maryland. That the Jamaican affair was studied in Maryland will appear below, where we shall find the Proprietor, in 1724, citing the failure of the Jamaicans in one of their attempts to get their English laws. Five years later, in the Maryland Gazette, a letter from Jamaica announces the probability of an agreement. This Act " has been at home near a year " and " cannot well fail of being cofirmed, being exactly conformable in the substance to the draught sent hither from home." ; At the time, therefore, when Dulany began his decade of agitation in Maryland, there was, in the first place, a theory or tradition established in the English courts ; a tradition not yet distinct, but approaching definiteness. Secondly, there had been frequent occasions in other colonies where the relations to the legal system of the mother country were mat- ters of dispute. Lastly, the uncertainty in Maryland was as old as the colony. With these points in mind, we may per- haps sympathize with " An American," who in " An Essay on the Government of the English Plantations," published at the beginning of the eighteenth century, voiced his com- plaint that " No one can tell what is law and what is not in the plan- tations. Some hold that the law of England is chiefly to be respected, and, when that is deficient, the laws of the sev- eral colonies are to take place. Others are of the opinion 1 Long, Edward: The History of Jamaica, London, 1774, Vol. I., pp. 219-20. The account of Jamaica as a whole is based on the Appendix to the Tenth Chapter of Long's very valuable work; on a pamphlet en- titled The Privileges of the Island of Jamaica Vindicated reprinted in London, 1766, with an appendix; and on the opinion of Yorke and Wearg, the Attorney and the Solicitor-General, as to the legal constitu- tion of Jamaica in 1722-25, Chalmers' Opinions (Colonial, Edition of 1814, Vol. I., pp. 204-224). See also Lord Mansfield's decision in Camp- bell v. Hall. Maryland Gazette, June 10-17, 1729. The Jamaican letter is dated March 5. 430 ///. THE COLONIAL PERIOD that the laws of the Colonies are to take the first place and that the laws of England are in force only where they are silent. Others there are who contend for the laws of the colonies, in conjunction with those that were in force in England at the first, settlement of the colony, and lay down that as the measure of our obedience, alleging that we are not bound to observe any late acts of parliament in England except such only where the reason of the law is the same here that it is in England." l 1 Quoted in Lincoln : The Revolutionary Movement in Pennsylvania, pp. 117-118. Compare also the section on the Civil Jurisdiction in a Short Discourse on The Present State of the Colonies in America. This pamphlet is No. 6 in A Collection of Papers and Other Tracts, by Sir William Keith, London, 1779 (2nd ed.). This pamphlet, No. 6, was pre- sented to the King in 1728, and thus is contemporary with the struggles in Maryland and in Jamaica. 13. THE INFLUENCE OF COLONIAL CONDITIONS AS ILLUSTRATED IN THE CONNECTICUT INTESTACY LAW 1 BY CHARLES McLEAN ANDREWS 2 rMHE colonial era of our history has generally been treated -L with an insufficient appreciation of its economic forces, and, in consequence, there has been a tendency to minimize the importance of certain periods of that history which show little political activity and are to the world at large dull and uninteresting. Such a period is the first forty years of the eighteenth century, and in the following paper I hope to show why I think that, from the point of view of the English policy toward the colonies and their economic development, this period will in the future stand much higher in the esti- mate of historians than it does now. The discussion that follows involves a number of points of law, and carries us through a controversy which, although of immediate impor- tance to Connecticut only, was of exceeding interest to all New England, and indirectly touches the general subject of colonial history. 3 1 These passages are extracted from an essay on " The Connecticut Intestacy Law," Yale Review, 1894, volume TIT., pp. 261-294. 2 Professor of History at Bryn Mawr College, since 1889, and at Johns Hopkins University. A. B. Trinity College (Connecticut) 1884, A.M., 1890; Ph.D. Johns Hopkins 1889; L. H. D. Trinity 1905. Other Publications: The River Towns of Connecticut, 1889; The Old English Manor, 1892; The Historical Development of Modern Europe, 1896, 1898; Contemporary Europe, Asia, and Africa, 1891-1902; Guide to the Materials in British Archives for American Colonial History (Carnegie Institution), 1907-1908. 8 My attention was originally directed to this subject by the publi- cation of the first volume of the Talcott Papers by the Connecticut Historical Society and the remarks of Judge Mellen Chamberlain upon them as printed in the Proceedings of the Massachusetts Historical Society, March, 1893. The second volume' of the Talcott Papers is now in press, but I am indebted to the editor, Miss Mary K. Talcott, a descendant of the old Connecticut governor, for advance sheets as far as completed. 431 432 ///. THE COLONIAL PERIOD The starting point of the controversy and its underlying cause was the agrarian system of New England. It is well known to students of the subject that the methods employed in the division of lands by the proprietors of the various towns involved certain principles based on the necessities of a new country. We may believe, if we wish, that these methods were the expression of deep-seated racial traits, but it is more rational to take into account two influences only; first, the agrarian environment in which the settlers had been reared; and, secondly, the conditions and necessities that govern the settlement of a new and uninhabited country. These two considerations will concern us here. Those who settled the New England colonies were save in .a very few cases men of the burgher and freeholder class, to whom the detail of the English agricultural life was familiar. They had been inhabitants of towns and villages located on feudal estates and subject to a superior, the King or the lesser lay or ecclesiastical lord; they had in a large number of cases been reared in the midst of the English agricultural system, of which the village community with its long streets, its homesteads, its open fields divided into shots or furlongs and subdivided into what were originally acre and half acre strips, its meadows, pastures, common arid waste, was the local unit and that part of the system with which they were in daily contact. To this system that of New England bears a striking resemblance. One cannot compare the old manor maps of the seventeenth and eight- eenth centuries with any plan based upon the land records of a New England town without feeling that the similarities are more than coincidences. There is the same village street, the same homestead plots, the same great fields, the same shots and furlongs, and the same subdivision into smaller strips; there are the enclosed meadows held by a few, the pasture and the waste common to all, and there are numbers of trifling manners and customs which show the English origin. It was the local, non-feudal land system which was transplanted with important changes to New England, and formed the basis of the law of real property. But were we to be satisfied with this statement of the case, 13. ANDREWS: COLONIAL CONDITIONS 433 we should be guilty of accepting a hasty analogy. There were other reasons why the local agrarian system of England was in its outward form reproduced by the New England settlers. Had it not accommodated itself to their notions of equality and equity, and to the economic needs of a people settling in a new and uninhabited country, it might have been altered and changed beyond recognition. But the local land- system of England was pre-feudal in its origin, and probably grew out of a primitive system of agrarian equality, a fact which the equal strips, the scattered holdings and the common rights serve to attest. The New England settlers were enter- ing an environment similar to that out of which the English village came, and they therefore found it necessary to change the English local system but little in order to apply . the methods of allotment demanded by a new country. The col- onists took no retrograde step ; all changes from the exist- ing system at home were in keeping with the higher ideas of property and equality which the 'New Englanders brought with them. The principles which governed their action were three: first, that of preventing the engrossing of lands and their accumulation in the hands of a few, the dangers of which in England were familiar to the colonists ; * secondly, that of subserving the law of equity by treating every man fairly, not only in giving him a share in conquered or purchased lands, but also in so allotting that share that he might be subject to all the advantages and drawbacks that bore upon his neighbors ; 2 and thirdly, that of hastening settlement and 1 " Whereas much experience shows that sundry inconveniences do arise to the burdening, disturbing or depopulating of smaller plantations, were either sundry lotts or accommodations are engrossed into one hand or possessed or held by unsuitable or unfit persons," etc. Guilford Mss. Book of the More Fixed Orders. " Where as there hath been a great abuse in several towns and plantations in this colony in buying and purchasing Home-lotts and laying of them together by means whereof great depopulation may follow," etc. Laws of the Colony of Connecticut (ed. 1715), p. 51. 2 1 have discussed this question briefly in an article entitled " Die Stadt in Neu-England," in the Zeitschrjft fur Social-und Wirthschafts- geschichte, vol. ii. pp. 103-131, 224-240, especially p. 232, note 58. To the instances there quoted I will add two others, as the question is an important one. " And whereas by the Law of Natural Equity and Right all those that joyned in making the conquest and those that joyned in subdueing the .country from a Wilderness (as it then was and in a great measure 434 ///. THE COLONIAL PERIOD the improvement of land. 1 Land was therefore divided 2 by the towns or by the bodies of proprietors into fields, called " squadrons " in Worcester, " furlongs " in Middletown, " shots " in Milford, and " quarters " in New Haven, and these were subdivided into smaller strips ranging from one acre 3 to forty or more in size. Various methods were em- ployed for obtaining equality, 4 and every effort was made to hasten cultivation and to increase industry. Removal was discouraged by liability to forfeiture ; 5 alienation was limited by laws common to nearly every town in New England ; 6 the still is) to a condition fit for tillage and Profit should also joyntly and share in the advantages that arise from this their Conquest and Indus- try and accordingly the first Planters did devide the lands thus obtained among themselves," etc. " An Act for the Settlement of Intestate Es- tates," Conn. State Archives, Foreign Correspondence, II 146, Cf. Tal- cott Papers, I, 148. " It is a fundamental agreement that all lands whether upland, meadow or home lotts should be made equal, that if it was not equall to other mens in the quality of it it should be made up in quantity, or if it unequall in distance of place it should be made equall in quantity also. So that where you find any parcell to exceed in number of acres more than it is charged with rate you may know that it is allowed for satisfaction to equall his lands to other mens." Milford Mss. Town Records, Dec. 28, 1646. For all the extracts from the Milford Town Records I am indebted to Miss J. L. Brownell. 1 " It was inhabitants and not land that was wanting." Talcott Papers I, p. 145, Cf. Conn. Col. Rec. II, pp. 185, 187. Palfrey estimates the value of land in 1713 at 6 farthings an acre. History of New Eng- land, IV, p. 364. * There was greater regularity and uniformity than in England. One system was new, the other old. But by curving the allotted strips, by running the shots and fields a little more irregularly, by throwing in a few gores and headlands, we should have what would be in its main features the same system. 3 " It is agreed by vote that the remainder of the Dreadful Swamp . . . shall be laid out into acre lotts." Milford Town Records, I, p. 62. * The " Purchase Right " which each proprietor had in the town was determined not only by the amount of money subscribed to the pur- chase of the lands but also by the number of heads in each family. I have discussed the " Purchase Right " at some length in " Die Stadt in Neu-England," and have endeavored to show that its scattered character was due to the desire to obtain equality. This principle permeated the system as the following will show: "Ordered that in this division every one shall have his division in two places, half in the nearest field and the other half in the furthest." Milford Town Records, I, p. 10. " The field was divided into two parts lengthwise and the order of holders in one tier would be reversed in the other thus making the distribution more equal." River Towns of Connecticut, pp. 44-45, J. H. U. Studies, VII. 5 Rules to this effect are to be found in every book of Town Records. Milford Town Records, I, p. 13. River Towns, p. 50. '"Ordered that no man shall sell his house but first he must pro- pound his person and chapman to the town and within twenty days after his propounding it the town to answer his desire to take it off or 13. ANDREWS: COLONIAL CONDITIONS 435 burden of taxation and the care of the fences, highways, etc., was distributed as evenly as possible; and every effort was made to increase the amount of land brought under cultiva- tion. All this was characteristic of New England in general and of Connecticut in particular. . The life in the latter colony was predominantly agricultural, the industrial and commercial aspects had hardly begun to appear, the govern- ment was republican and for a hundred and fifty years of all the colonial governments it was the one most independent of the mother country l the laws made were adapted to the let him take his chapman always provided the Inhabitants may buy and sell within themselves notwithstanding this order." Mil ford Town Records, I, p. 11. I have quoted this law from the Milford Records, because it contains some new points supplemental to the many others printed before and has itself never been printed. A similar law passed by the Colony of Connecticut came to the notice of the legal advisor of the Board of Trade who commented on it thus: "This Act would be very extraordinary in England but whether it may not be proper in a country where they are encompassed with enemies is humbly sub- mitted to your Lordship's consideration." The limited range of this law, which grew, as did the intestate law, out of the necessities of the settlement, and the brief period during which it was enforced, pre- vented it from assuming so important a place in the relations between England and the coldnies. 1 The colonies most exempt from English interference and control were of course Maryland, Pennsylvania, Connecticut, Rhode Island, and Massachusetts. Massachusetts, however, had a royal governor and was obliged to deliver her laws for the approval of the Council within three years after they had been passed, though if they were not repealed within that time they could not be repealed at all. Pennsylvania had a five years limit. But the laws of Connecticut and Rhode Island were not repealable by the Crown; these colonies never lost their charters as did Massachusetts, never came into direct dependence upon the Crown as did Maryland for a short time, and were almost outside the knowl- edge of the Privy Council and the Board of Trade. There is, however, one difference in the attitude of these colonies toward English law which is interesting. Rhode Island, by referring herself to the law of England in cases where she had none of her own, made some of the laws of England to be her own laws. Connecticut, on the other hand, in case of doubt referred to " some plain and clear rule of the Word of God." In 1665 the Deputy Governor and the Assistants desired the advice of the General Court concerning incest, whether the law of the colony " that orders in defect of a law we should have recourse to the Word of God for our law " were binding or not. The Court decided that the colony should act according to the Word of God. Conn. Col. Rec., II, p. 184. Robert Quary commented on this statement in the Book of Laws as follows : " The people are of a very turbulent, factious and uneasy temper. I cannot give their character better than by telling your Lordships that they have made a body of laws for their govern- ment which are printed ; the first of which is that no law of England shall be in force in their government till made so by act of their own. Having told your Lordships this, I think there is no further room to admire at. any extravagancy acted in the government." Quary to the 436 ///. THE COLONIAL PERIOD conveniences of the inhabitants rather than to the common and statute law of England, and the policy of the colony at all times was to remain hidden as far as possible from the notice of the home authorities. It is no wonder, therefore, that there should have grown up under the conditions agrarian and economic attendant on the settlement of a new, partly uninhabited, partly unconquered territory, laws based not on legal theory but on custom, laws that either were not known to English law a or were not in accord with it. Of all these laws none was more important, more an organic part of the life of the colony or fundamental to its welfare, than that which governed the disposal of intestate estates. It is manifest that people influenced by the principles already mentioned in their distribution of land would apply the same principles to the distribution of the realty of an intestate. They certainly would not have undermined the colonial struc- ture by admitting into its construction methods foreign to the general plan. Primogeniture, favorable to the accumula- ton of estates, but unfavorable to a rapid increase of the inhabitants, a furtherance of agriculture, and a cultivation of the soil, and opposed to the natural law of equity, was not in accord with the principles of the New England settlers. The intestacy law was, therefore, the unavoidable and logical outcome of the principles which underlay the land-system of Board of Trade, B. T. Papers, Plantations General, Entry Book, D, fol. 201, Cf. Mil ford Town Records, I, 1 ; Talcott Papers I, 143, II. Appen- dix. " Instructions to Agent." Gershom Bulkeley in his " Will and Doom" complains that "by this Law all the Law of England (Common or Statute or other) is exploded at once." (From MSS. copy of the transcript sent over by Lord Cornbury in the possession of the Conn. Hist. Society. The transcript is in B. T. Papers, Proprieties, N. 20.) I know of but two Connecticut Acts directly taken from the English Statute law before 1750. First, "Act about Bastards" from 21 Car. c. 27 and second, " Act for Ease of those who soberly Dissent " from 1 Wm. and M. c. 18 commonly called the Toleration Act. Five others, however, are probably based on English Statute law. 1. "Act concern- ing the Dowry of Widows." 2. "Act concerning forms of Writs." 3. " Act concerning Deputies Salary." 4. " Act for Regulating Juries and Wiltnesses." 5. "Act relating to Sureties upon Mean Process in Civil Action." In 1750 the Colony printed all Acts passed by Parliament which were considered to be binding on the colony. There are ten Acts in all, and none of these had been reenacted by the colony. Conn. Col. Rec. viii. p. 352. 1 Two laws certainly were not known to English law. 1. " Act for the punishment of Lying." 2. "An Act for the preventing of Oppres- sion." 13. ANDREWS: COLONIAL CONDITIONS 437 New England. This becomes the more apparent when we real- ize that for more than sixty years it existed as a custom in no way binding on the people, and that it did not become a law in Massachusetts until 1692, or in Connecticut until 1699. 1 By the English common law the eldest son was the sole heir and was entitled to the whole estate exclusive of all other children ; whereas the colonial law 2 directed that the real estate of an intestate be distributed in single shares to all the children except the eldest son, to whom, following the ruling of the Mosaic Code, the law assigned a double portion. 3 The Connecticut law was not the arbitrary act of the assembly of the colony ; it was the sanctioning of a custom which had grown out of the consent of heirs to an intestacy, and which had been proved by experience to be the best adapted to the needs of the colony. 4 Governor Talcott gives in brief the 1 Conn. Col. Rec. IV, p. 307. " I have observed," writes Lieut. Gov- ernor Law, " the law to be of no ancienter date than 1699 and our old law book, dated in 1672, prescribes no rule excepting the righteousness and equity lodged in the breast of the County Court." Law to Talcott, Talcott Papers, I, p. 119. Also I, pp. 122-123, 144, 392-394. II, pp. 225, 244-245. The October Orders of 1639 contain the earliest form of the law, as follows: " But when any prson dyeth intestate the sayd order- ers of the affayres of the Towns shall cause an Inventory to be taken and then the Public Court may graunt the administracon of the goodes and chattels to the next of kin, joyntly or severally, and divide the estate to wiefe (if any be) children or kindred as in equity they shall meet." Conn. Col. Rec., I, p. 38. This was repeated verbatim in the Code of 1650. In the Revision of 1673 to which Law refers there are slight changes in phraseology but none in meaning. *"The said Court of Probate shall and hereby are fully empowered to order and make a just distribution of the surplusage or remaining goods and estate of any such intestate, as well real as personal in manner following: That is to say one-third part of the personal estate to the Wife of the Intestate (if any be) forever, besides her dower or thirds in the housing and lands during life, where such wife shall not be otherwise endowed before marriage; and all the residue of the real and personal estate by equal portions to and among the children and such as shall legally represent them (if any of them be dead) other than such children who shall have any estate by settlement of the Intestate in his lifetime, equal to the other's share; children advanced by settle- ment or portions not equal to the other shares; to have so much of the surplusage as shall make the estate of all to be equal; except the eldest then surviving (where there is no issue of the first born or any other eldest son) who shall have two shares or a double portion of the whole, and where there are no sons the daughters shall inherit as co-partners." 8 Deut. xxi. 17. 4 Another clause of the Act makes this clear. " Unless where all the parties interested in any estate being equally capable to act, shall mutually agree of a division among themselves and present the same 438 ///. THE COLONIAL PERIOD reasons for the intestate law in his instructions to Belcher : " And much of our lands remain unsubdued, and must con- tinue so without the assistance of the younger sons, which in reason can't be expected if they have no part of the inherit- ance; for in this poor country, if the landlord lives, the tenant starves : few estates here will let for little more than for maintaining fences and paying taxes. By this custom of dividing inheritances, all were supply'd with land to work upon, the land as well occupy'd as the number of hands would admit of, the people universally imploy'd in husbandry; thereby considerable quantities of provisions are rais'd, and from our stores the trading part of the Massachusetts and Rhode Island are supply'd, the fishermen are subsisted, and the most of the sugars in the West Indies are put up in casks made of our staves. By means of this custom his Ma j 'ties subjects are here increased, the younger brethren do not de- part from us, but others are rather encouraged to settle among us, and it's manifest that New England does populate faster than the Colonies where the land descends according to the rules of the common law. And such measures as will furnish with the best infantry does most prepare for the de- fence of a people settled in their enemies country. If this custom be, so ancient and so useful, non est dbolenda, sed privare debet communem legem." 1 Such were the conditions out of which the intestate law grew, and such were the reasons for its embodiment, after sixty years of customary use, into law. Economists can find evidence here for the study of land-appropriation in a new country ; students of the history of law will be interested in the growth of customary law ; but for us the interest is of a different character. The law was clearly contrary to the corresponding law in England. Certain disaffected ones in in writing under their hands and seals, in which case such agreement shall be accepted and allowed for a settlement of such estate and be accounted valid in law." Winthrop said the same in his Memorial to the committee of the Privy Council. "The Memorialist heps leave further to observe to your Lordships that the pretended custom of dis- tributing intestate real estates amongst all the children was no other- wise introduced than by the consent of parties when lands in those parts were of little or no value." Talcott Papers, I, p. 394. 1 Talcott Papers, I, pp. 145-146, Cf. 188-189. 13. ANDREWS: COLONIAL CONDITIONS 439 the colony, opposed to the government, 1 and overzealous in finding flaws in colonial law and administration, and ever ready to exhibit such discoveries to the authorities in Eng- land, began to question the validity of the custom even before it became a law. This was done by Governor Talcott himself in 1691, 2 and by Major Palmes in 1698, :{ while in Massa- chusetts Dudley complained of the law in 1693. 4 The ques- tion was not destined, however, to become prominent for nearly thirty years, but it early became of importance as part of a larger question, the forfeiture of the charters and the proposal to unite the charter and proprietary colonies to the Crown. The agitation to produce this latter result seems to have grown out of the desire to unite the colonies of North- ern America under one military head, 5 and was increased by the controversy over the right of appeal to the King in Coun- cil and the dissatisfaction arising therefrom. In Massachu- setts a law had been passed regarding appeals, but it was 1 Major Palmes refused to pay his dues because he considered the government restored after the revolution of 1688 " no government." Col. Rec. IV, pp. 325-326. 3 It is not unlikely that there were other early unrecorded protests against the custom, though probably not many, if there were any, before 1688. Gershom Bulkeley speaks as follows in his " Will and Doom," "if a Man dye Intestate they will and do .... distribute his lands among sons and daughters, &c., as if they were pots and kettles. . . . So that their law will not allow an heir or Inheritance at the Common Law which is another repugnancy to the Law of England." It is an interesting fact that Governor Talcott himself, who afterwards so loyally defended the intestate law, should have petitioned the legisla- ture in 1691 when but twenty-two years old against the equal division of his father's estate, and should have claimed possession of the real estate by right of primogeniture. Talcott Papers, I, p. xix. "Palfrey, IV, p. 491. * " For want of which [i. e. the same English laws] there are different laws and forms of administration very disagreeable not (only) in lesser matters but even in the descent of estates at the common law." Dud- ley's " Paper on the Governments of New England, New York, etc." B. T. Papers, New England, vol. 7. F. 13. 5 The period from 1695 to 1715 was a time of trial for the colonies. They were attacked by the French, were in constant trouble from the Indians, were disturbed by the many irritating reports of royal officers and merchants in the colonies, and were not sufficiently established to resist encroachment and to maintain a position of self-reliance. As a result, they were often in distress, and it is little wonder that many in New England and New York petitioned for a stronger central govern- ment. In 1697 Harrison, Ashurst, Sewall of Salem and others peti- tioned for a union of colonies, the Board of Trade thought that secur- ity could be obtained in no other way, the Lords Justices favored the scheme, and, in consequence, although the agents of New Hampshire, 440 ///. THE COLONIAL PERIOD annulled, altered, re-enacted, and again annulled. 1 New- Hampshire refused an appeal in the Allen case in 1701 ; 2 Connecticut an appeal in the Hallam case in 1699 ; a but in each of these cases the King in Council granted the petition for an appeal, resting the decision on the plea that it was the inherent right of his Majesty to receive and deter- mine appeals from all his Majesty's colonies in America. 4 Connecticut, on the other hand, based its determination to- resist such appeal upon its willingness that the Privy Coun- cil should be the interpreter of the colony's law. 5 It was not difficult to find additional charges. Complaints were made that the colony broke the Navigation Acts, har- bored pirates, neglected to take the oaths required by law, encouraged manufactures, were negligent in military duties and in the erection of fortifications, encroached on the juris- diction of the Admiralty, and opposed the authority of its officers, protected escaped soldiers, seamen and servants, 6 and failed to comply with certain requirements of the home gov- ernment as in the case of the proclamation regarding coin, the instructions to naval officers, the command to aid New York with quotas of men against the French and Indians etc. Through the influence of Dudley and the pertinacity of Edward Randolph, for it was he who personally led the campaign in the lobby of Parliament, 7 a bill was brought New York and Connecticut opposed the plan, New Hampshire, Massa- chusetts and New York were joined in 1697 under one governor, and with Connecticut and Rhode Island were placed under Bellomont as their military head. The year before an admiralty system had been erected for the colonies by commission under the seal of the Admiralty of England. In the North courts were erected at Boston and New York. 1 Palfrey, IV, pp. 172-174, 200. * Ibid, .pp. 218-219. ' Caulkins, History of New London, pp. 222-227. 4 Palfrey, IV, p. 224. ' In a deposition taken before Governor Cranston of Rhode Island two men, Fitch and Mason, said that they had heard Governor Fitz John Winthrop say, " I '(or we) will grant no appeals for England but I (or we) will dispute it with the King, for if we should allow appeals I will not give a farthing for our charter." B. T. Papers, Proprieties, O. 39. 8 Letter from the Board of Trade to Governor Blakeston of. Mary- land. B. T. Papers, Maryland, Entry Book, B. ff. 88-90. Winthrop in his complaints probably did little more, if we may judge from what we are told of them in Talcott's reply, than voice the complaints current among those opposed to the colonial administration. Documents relat- ing to the Colonial History of New York, IV, p. 1079. 7 Randolph's bill of expenses incurred amounted to 96. 11.6. B. T. Papers, Proprieties, G. 20. 13. ANDREWS: COLONIAL CONDITIONS 441 forward in 1700-1701 for reuniting to the Crown the govern- ments of several colonies and plantations of America Massachusetts Bay, New Hampshire, Rhode Island and Providence Plantations, Connecticut, East and West New Jersey, Pennsylvania, Maryland, Carolina and the Bahamas and St. Lucia Islands on the ground that " the severing of such power and authority from the Crown and placing the same in the hands of subjects hath by experience been found prejudicial and repugnant to the trade of this Kingdom and to the welfare of his Majesty's other plantations." * The bill, however, by reason of " the shortness of time and the multiplicity of other business," 2 failed to pass, but the Board thinking it very likely that it would come up again for consideration, desired from the colonies all possible informa- tion that would aid in the matter. From 1701 to 1706 charges continued to be sent in. Quary, Bass, Congreve, Larkin, Dudley, and Cornbury all drafted lists of com- plaints. The Board in a representation to the Council in 1703 expressed its opinion " that the great mischief can only be remedied by reducing these colonies to an immediate de- pendence on the Crown." 3 For Connecticut it was a time of anxiety. The influence of the Hallam case, of the contro- versy over the Narraganset country and the boundary line with New York, of the case of the Mohegan Indians, 4 of the 1 The text of the Act is to be found in B. T. Papers, Proprieties, Entry Book, C. ff. 426-430. 1 Board of Trade to Governor Blakeston: B. T. Papers, Maryland, Entry Book, B. ff. 86, 83. 8 B. T. Papers, Plantations General, Entry Book, C. f. 240. Every effort was made to Discover charges particularly against Connecticut and Pennsylvania. In 1703 Penn wrote to the Crown, " I observe your bent is extremely strong to bring all proprietary governments under the disposition of the Crown." B. T. Papers, Proprieties, M. 19. 4 It is interesting to note that the quarrels in the colony which brought it to the attention of the Board were in 'large part agrarian. This was but natural in a community where husbandry was dominant. Talcott said as late as 1728 "many of the actions here (in Connecticut) are conversant about nothing else" (than the titles of land). Talcott Papers, I, 157. The Hallam appeal rested on the denial of a devise of land to " the ministry " of the colony, on the ground that it was either in violation of the Statute of Mortmain, or, if it could not be so construed, it was a devise to " the ministry " recognized by the laws of England, that is, the ministry of the Episcopal Church. As all towns in Connecticut made grants to " the ministry " or to " the church," a decision in Hallam's favor would have made havoc with ecclesiastical land titles in the towns. Caulkins, History of New London, pp. 222-227. 442 ///. THE COLONIAL PERIOD petition of the English Quakers against a Connecticut law, was to keep certain aspects of Connecticut's management steadily before the Board of Trade and to lead to what were often serious misrepresentations to the home authorities. In consequence Connecticut got a bad name. In 1704 the colony narrowly escaped having a governor put over it 1 through the authority of the King in Council. But that body evi- dently preferred that Parliament should take the matter in hand, and in 1706 a bill similar to that of 1701 was intro- duced. It passed the House of Commons but failed of pas- sage in the House of Lords. 2 The long list of charges against the proprietary and char- ter governments already on the books of the Board was con- tinually supplemented by additional charges from Congreve, 3 1 The Board of Trade sent a representation based on the charges of Dudley and Cornb.ury to the Privy Council. The Council sent it to Northey and Harcourt, the Crown lawyers. They replied advising that a governor be placed over both Rhode Island and Connecticut. This opinion was reported to the Board and was communicated to the agents of the colonies. A hearing was appointed at which they were to state why, in point of law, the Crown should not appoint governors over these colonies during the war. The hearing appointed ~tor Nov. 30, 1704, was put off from week to week until Feb. 12, 1705. In the mean- time Lord Cornbury sent over Gershom Bulkeley's " Will and Doom " to strengthen the case against Connecticut. The work was received Jan. 16, 1705. It is probable that at the hearing the agents were able to show the ' inexpediency, if not illegality of a military governor, for on the day of the hearing the Council, evidently convinced that the matter could be best attended to by Parliament, directed the Board to draw up a list of charges, which was done, the chief source being the letters of Cornbury and Dudley. The order in Council also in- structed the Board to transmit the list of charges to the Governor of New York and New England. This was done April 18, 1705, and Cornbury was ordered to send copies to Connecticut and Rhode Island, where public depositions were to be made as to the truth or falsity of the charges. (Documents relating to the Colonial History of r\>u> York, IV, p. 1141.) Upon the evidence thus received the Board based its representation of- Dec., 1705, in consequence of which an Order in Council was issued directing the Board to lay before her Majesty the misfeances of the charter governments. (B. T. Journal, 18, f. 153.) This report was sent to Mr. Secretary Hedges. He in answer sent back a 'draught of a bill relating to the uniting of the colonies to the Crown. After some alteration, Feb., 1706 ("f. 219), this bill was intro- duced into Parliament. B. T. Papers, Proprieties, M. 47; Journal, 18, ff. 177-178, 252, 281; 20, ff. 9, 11. 1 Palfrey, IV, 368-369. See previous note. 8 Charles Congreve to the Board af Trade, Dec. 4, 1704. This letter containing a list of complaints against Connecticut was written at the order of the Board. B. T. Papers, Proprieties, M. 49. 18. ANDREWS: COLONIAL CONDITIONS 443 Dudley, Quary, Gauden and others. 1 The failure of the bill of 1706 was a severe blow to its supporters, and the colony for several years experienced a relief from its anxiety. In 1715 the matter came up again because of the complaints regarding banks, naval stores, the trouble with Carolina, etc., and the House of Commons appointed a committee com- posed of members of the Board of Trade " to inspect into the miscarriage and to prepare a bill to resume the grants of the proprietary governments." 2 Again a list of charges was prepared, 3 but, whether another failure was feared 4 or a juster policy decided upon, a different plan was tried for Connecticut. The committee of the Privy Council directed the Board of Trade to inquire of the colony through Jer. Dummer, the agent in London whether it would be will- ing to surrender its charter peaceably. Connecticut's an- 1 Quary to Board of Trade, Jan. 10, 1708-9. B. T. Papers, Planta- tions General, Entry Book, D. ff. 200, 205. The -following extract will show the nature of Quary's misrepresentations. The important fact to be noted is that the Board had faith in Quary. .He was in high favor with the members and they listened with gravity to his suggestions and to the information which he gave. B. T. Journal, vol. 15, minutes for June 26, and succeeding dates, 1703, " I attended the Governor Colo- nel Winthrope, who received me very kindly and desired me not to look too narrowly into the mistakes of that government. I quickly found that there was good reason for that caution for on examining the custom-house I found nothing but confusion and roguery. I was apprised of many dishonest practices acted in that place before I went but did not expect to have found matters so very bad. The person that acts as collector was one Mr. Withred, a pillar of their church, but a great rogue, for there is no villainy that a man in his post could do but was constantly practiced by him. ... It would tire your Lord- ship to give you a history of the illegal trade carried on and encour- aged in this government from Ciiracoa, Surinam and other places. . . . This is a very populous country, able to raise 10,000 effective men and yet would never assist their neighbors in defending their frontiers from the public enemy, who hath destroyed whole towns and carried away the inhabitants for want of a regulated government and militia. . . . I have no hope of preventing illegal trade in that government whilst it is in the hands of those people." B. T. Papers, Plantations General, Entry Book, D. ff. 200-205. " Memorial from Mr. Stephen Gauden, relating to the misfeances of Carolina and other Proprietary Governments, whereby they Forfeit their Charter." July 25, 1716. B. T., Proprieties, Q. 81. " * B. T. Journal, "25, f. 216, Aug. 11, 1715. * B. T. Papers, Proprieties, Entry Book, F. ff. 464-465. 4 This may be inferred from Gauden's Memorial : " The committee appointed by the Parliament . . . seemed somewhat at a loss how to fix proper causes and reasons for the doing" [of that for which they were appointed!. 444 ///. THE COLONIAL PERIOD swer is a masterpiece of firmness and politeness and, although in the name of the Governor and Company, was undoubtedly written by Saltonstall. l He commends the justice and honor of the ministry in thus referring the question to the corpora- tion, a method wise and just, possessing not the least appear- ance of force and terror. He contrasts it with previous methods unreconcilable with common rights, law and custom, of which the colonies had had full experience. This spirit of fairness he attributes to the existing King and Ministry, who, though unlimited and subject to none, yet observed the limits of wisdom and justice, and were tender of what others should enjoy as well as of their own prerogative; who did not make use of their power to terrify the colony out of its rights and property, but gave it leave to speak for itself. After these quieting words, the Governor and Company regret that they cannot choose that resignation of their rights which the King and Ministry think might be best for them, and conclude this portion of the letter with the follow- ing instructions to the agent : " You are therefore hereby directed in plainest terms to acquaint their Lordship that we can't think it our interest to resign our charter. But on the contrary, as we are assured, that we have never by any act of disobedience to the Crown made any forfeiture of the privileges we hold by it, So we shall endeavor to make it manifest and defend our right whenever it shall be called in question." The limits of this paper will not allow a further discussion of the attitude of the home government toward the Colony. It is, however, fundamentally important that we should ap- preciate the relations which had previously existed, and the one-sided character of the information which the Board of Trade, the Privy Council and even Parliament itself received. The mere titles of the papers containing charges against the proprietary and charter governments cover twenty-one pages of an entry book. Regarding Connecticut there is al- most nothing to relieve the unfavorable impression received 1 " Letter from the Governor and Company of Connecticut relating to the surrender of their charter to the Crown by G. Saltonstall to Mr. Jer: Dummer, their agent, dated Oct. 28th, 1723, from N. Haven." B. T. Papers, Proprieties, R. 49. 13. ANDREWS: COLONIAL CONDITIONS 445 by the Board, except a letter now and then from the Gov- ernor, and the answers to the queries that were occasionally sent to the colony. The references to Connecticut in the Journal are rare, and generally relate to some complaints against her. It is difficult to determine how far the Board believed the statements sent it, but its representations do not show any inclination to lighten the impression which the letters from the colonies give. This was the position that Connecticut occupied in the sight of the home authorities when John Winthrop, a grand- son of one Connecticut Governor and nephew of another, denying the validity of the intestate law, claimed all the real estate of his father who had died in 1717, and, ignoring the right which he had of appeal from the Court of Probate to the Court of Assistants, expressed his determination to ap- peal to the King in Council. This determination was carried out, and as the result of Winthrop's efforts the intestacy law was annulled by an Order in Council Feb. 15, 1728, as con- trary to the laws of England and not warranted by the charter. 1 The case was a private one and the colony was not heard in the matter. There is no doubt that the defendant, Lechmere, was inadequately defended by some one little versed in the colony's affairs, that his evidence was far from complete, his purse far from full, and that he was especially in want of " a good sword formed of the royal oar." 2 Win- throp, on the other hand, was ably defended by Attorney General Yorke and Solicitor General Talbot. The Commit- tee of the Council did not call in the assistance of the Board of Trade, and there are no documents bearing on this phase of the case among their papers. Winthrop did not rest his 1 The decree is printed in full in Conn. Col. Rec. VII, Appendix. Mass. Hist. Soc. Collections, 6th ser. vol. V, pp. 496-506. It will be impossible to give here even an outline of the facts of the case. See Talcott Papers, I, pp. 94 note, 187, 241. Mass. Hist. Soc. Proc., March, 1893, pp. 125-127. Conn. Col. Rec., VII, p. 572 if. That there was considerable justice in Winthrop's position becomes evident when we know of the contents of Wait Winthrop's will and of Lechmere's im- pecunious condition. Mass. Hist. Soc. Collections, 6th ser. vol. V, pp. 367 (note) -370; also Winthrop's letter to Cotton Mather, pp. 425-428. The most detailed account of the case is to be found in the same vol- ume, pp. 440-467. * Talcott Papers, ft, pp. 77-78, 136. Conn. Col. Rec., VII, p. 191 note. State Archives, Miscellanies, II, doc. 313. 446 ///. THE COLONIAL PERIOD case solely upon the question of the validity or invalidity of the law, but he repeated most of the charges, which were already familiar to the Council and its committee, and thereby, as Mr. Parris said, " very much assisted his case." 1 The legal aspects of the trial have attracted but a small amount of attention from historians, for the incidents were neither dramatic nor politically exciting, yet there were in- volved in the case principles of great moment to the colonists, questions, the solution of which was to affect the future re- lations between them and the home government. The effect of the vacating of the law shows at once that the Privy Council acted without a reasonable understanding of the matter at issue. It based its opinion upon the literal interpretation of the charter from its own point of view, and was entirely without an honest appreciation of the equity in the case. 2 Two conditions, defensible in themselves, had come into conflict. For the moment the customary law of one country, arising from one set of historical circumstances, was to be enforced in another country, the agrarian and economic life of which had brought into existence a custom- ary law very different. The common law of England and the common law of the colony did not agree. The latter did not represent the defiant will of a body of law-makers, it represented a principle of land-distribution which the ex- perience of the colony had shown to be best adapted to its own prosperity and continued existence. This becomes clearer when we note what would have been the economic effects of voiding the intestate law. The first result would have been a general unsettling of titles to lands left intestate or alienated after intestate settle- ment. This was due to the fact that a large majority of the people consisted of farmers and agriculturists, possessing 1 Talcott Papers, II, p. 77. * Govr. Talcott recognized the unfairness of the decision from the standpoint of equity, when he said in a letter to the Board of Trade Nov. 4, 1731, "Your Lordships will be best informed of the reason, necessity and usefulness of our laws by considering the state and cir- cumstances of our country so many ways differing from that of Eng- land." B. T. Papers, Proprieties, S. 36." Talcott Papers, I, p. 250; II, p. 225. It is worthy of notice that Winthrop's own counsel declared against the judgment of the Council afterward* Talcott Papert, II, p. 72. 13. ANDREWS: COLONIAL CONDITIONS 447 little personal estate. 1 Many of these settlements reached back to the beginnings of the colony, and the invalidating of titles would have affected large numbers of descendants who would thus have been liable to ejection at the instance of the eldest heir. 2 Such ejectment concerned the younger sons and the female heirs, for whom under such conditions there would be no place in the colony. 3 Even if the titles to estates already settled in the Court of Probate should be allowed to stand, yet there were many estates of twenty or thirty years standing that had never been settled, and more of a later date, so that the suffering would only be limited, not ended. Furthermore, litigation would have at once ensued, which would have involved the colony in an eco- nomic loss greater than that entailed in a resistance to the decree. The agrarian system of the towns would have given to this litigation a curious complexity. Quarrels were cer- tain to arise within the towns themselves regarding the ownership of the common and undivided lands. 4 Would the title rest with the heirs at common law of those who re- ceived by grant from the King, that is, the patentees, or with those who as proprietors and contributors to the common fund purchased the lands from the Indians, and received their shares according to the size of their families and the amount of their subscription? 5 Judges, too, in settling all 1 Talcott Papers, I, p. 234. * Talcott Papers, I, p. 146. * Ibid., I, pp. 122, 146. * In the Middletown Mss. Proprietary Records there is " An Ac- count of the Interest of the Several Proprietors of the Common and Undivided Lands [computed] according to the Custom of Deviding Intestates in the Colony of Connecticut." Dec. 28, 1733. A study of the lists herein co'ntained shows graphically the practical working of the intestacy law. In 1673 a list of proprietors had been drawn up, 52 in number, with real estate " rights " in the undivided lands ranging from 224 to 24. In 1733 this list was revised, and it was found that by constant subdivision of " rights " through purchase, bequest and intestacy settlement, the number of proprietors had increased to 328, the number of "rights" to 386 (circa) ranging in value from 103 to 9sh. with by far the greater number valued at less than 5. An ex- amination of such lists proves how impossible it would have been to carry out the Order in Council voiding the law. The Middletown pro- prietors paid no attention whatever to the king's decree. 5 Talcott Papers, I, 177. It is not unlikely that considerable trouble might have been caused had this feature of the case been brought to the attention of the authorities at honje. It might have been decided in favor of the Patentees if we may judge from the legal opinion of At- 448 ///. THE COLONIAL PERIOD these disputes, would have been thoroughly perplexed as to whether they should obey the decree, in which case the foundation of the colony would have been " rip't up from the bottom and the country undone ; " 1 or whether they should disregard the decree, and so bring down upon the colony the loss of its charter. But the injustice would have concerned others besides those holding lands derived from intestate settlements. Creditors who had taken lands in payment of debts a pro- cedure not in favor with the colony because of the cheapness of lands would be defrauded, unless the lands, which might have considerably improved in their hands, had been made chargeable for the original loan and the improvements. 2 Furthermore, the will and intent of many who had died intestate might have been frustrated, inasmuch as they, trusting in the colonial custom, with which they had been perfectly satisfied, had made no will. 3 In addition to these results, so contrary to justice and equity, certain economic consequences would have inevita- bly followed the carrying out of the Order in Council, con- sequences detrimental not merely to the colony, but, judg- ing from the standpoint of her clearly avowed colonial policy, to England as well. The voiding of the law meant the abatement of husbandry. The towns of all New Eng- land, and of Connecticut in particular, were, at this stage of their development, predominantly agricultural. The results of such abatement would be a desertion of lands, a lessening of population, and a decrease in the supply to the neighbor- ing provinces, which, engaged in trade and fishery, were dependent on Connecticut for provisions. 4 It was a clever stroke on the part of the colonial supporters of the law torney-General Northey, Aug. 7, 1703, upon an Act of New Hampshire for Confirmation of Town Grants, "it is fit that same be repealed for that it confirms all grants of lands that have heretofore been made unto any person or persons by the inhabitants of the respective towns within that Province or by the selectmen or a committee in each Town without having any regard to or saving of the right of any persons who might be entitled to the same before the making such grants." B. T. Papers, New England, M. 46. 1 Talcott Papers, I, p. 177. Ibid., I pp. 122, 146-147. Ibid., I, pp. 144, 189, 234. /&<*., I, p. 147. 13. ANDREWS: COLONIAL CONDITIONS 449 when they showed that its confirmation was adapted to the furthering of England's policy, and that its vacation was to the injury of that policy. Voiding the law would lead to manufacturing, for the younger sons from sheer necessity, driven from agriculture, would turn to trade and manufac- turing, or else would be obliged to leave the country. 1 Thus, by this argument, England was placed on the horns of a dilemma as regards the colonies, either beggary or insufficient population on the one side, or the promotion of trade and manufactures on the other. This, as Law surmised, " was a tender plot," and there is no doubt that as an argument it was frequently repeated in order that it might be " thot of at home." 2 These economic results are sufficient to show that the law was an organic part of the life of the colony. Indeed, as Talcott said in a later letter to Francis Wilks in London, " we cannot think our law will be looked upon to be contrary to the law of England for the colony could not have been settled without it." 3 The colony immediately made every effort through its agents, Dummer, Belcher, and Wilks, to defend the law if possible. There was reason for hope in such action from the fact that the Massachusetts law of 1692, after which the Connecticut law has been modeled, with one amendment, one addition, and three explanatory acts had been confirmed by the Crown. 4 Furthermore, the law was a general one in New England and, if the Order in Council were to be insisted on, it might endanger the titles to a considerable amount of New England real estate ; and it would seem incredible that the home government could persist in so crippling the col- onies. 5 Therefore the colony was justified in believing that, if all the arguments were fairly presented to the Lords of 1 Talcott Papers, I, pp. 147, 189; II, pp. 245-248. Ibid., I, p. 123. Ibid., II, p. 246. 4 Ibid., II, p. 79, Mass. Hist. Soc. Proc., 1860-62, p. 72-73. 5 Talcott Papers, I, pp. 153-154. pp. 77-85. Governor Talcott says that the law had been sent over with other laws " some thirty years ago," by Gov'r Winthrop and that as nothing was said about the 'law then the colony had reason to think itself safe. There is a mistake here some- where; the law was passed in 1699 and Gov'r Winthrop sent over the Book of Laws as an enclosure in his letter of Oct. 27, 1698. B. T. Papers, Proprieties 2A. It may be that he is referring to the October order as revised in 1673. 450 ///. THE COLONIAL PERIOD Trade, the good offices of that Board might be obtained. 1 This was an important step, for by the report of the com- mittee of the Council the matter had been referred to the Board. 2 The strongest argument against the law was that it was contrary to the law of England, and in the discussion which followed the colony exerted all its strength to minimize the force of this argument. The question is an important one in itself, but the value of the discussion lies in the expression of opinion on the part of the English and the colonial authorities regarding the interpretation and strict construc- tion of the phrase " contrary to the law of England." There were three views held regarding the English law in the col- onies, as to how far it was binding there, and to what extent the colonial corporations had been invested by their charters with law-making powers. The first of these opinions was held by all those who were opposed to the colonial preroga- tives, such as Palmes, Hallam, Gershom Bulkeley, in his " Will and Doom," Winthrop the appellant, in his " Com- plaint " and " Memorial," Dudley and others. According to this view the colonies were erected as corporations within the kingdom of England; they held by and were subject to the laws of that kingdom, and their legislative power ex- tended to the making of by-laws and ordinances only for their own good government, provided the same were not contrary to the law of England. 3 From this point of view 1 Talcott Papers, I, pp. 174, 249. *Ibid., I, pp. 200-201. B. T. Papers, Proprieties, R. 108. 8 Talcott Papers, I, p. 393. Dudley in his letter to the Board of Trade expresses this view. " On the part of the Crown it would be pro- vided [in case a union of colonies was affected] that the laws of Eng- land, common and statute, which have hitherto always been or ought to have been the laws of all those provinces, should be so declared and the government there directed to present to the King not Magna Charta or chapters of capital laws, but such by-laws as the several provinces in their settlements require, which are not provided for by the common and statute law of England." B. T. Papers, New England, vol. 7, F. 13. For Dudley's motives see Palfrey IV, pp. 367-368. Bulkeley said in his " Will and Doom," " We think that the colony of Connecticut is de Jure (we wish we could say de facto) as much subject to the Crown of Eng- land as London or Oxford." Again, "forgetting . . . that their Courts are but inferior Courts and their laws not laws properly so called or parcel of the Laws of England but only By-Laws, i.e. the Local, private and particular orders of a corporation." 13. ANDREWS: COLONIAL CONDITIONS 451 all laws passed by the colonial assemblies which were of a higher character than by-laws, and which, even within that limit, touched upon matters already provided for by Eng- lish common or statute law, were illegal. The colonies were as towns upon the royal demesne. The second view was expressed by the agent of Connec- ticut, Francis Wilks, arid was doubtless held by those at home who, with English proclivities, were nevertheless well disposed toward the colonies. According to this view, it fol- lowed that when the colonists came to America they brought with them the common law to which they were entitled as Englishmen, and such part of the statute law as was in force before the settlement of the plantations took place. To this body of law, written and unwritten, binding on the colonies, were to be added all such later Acts of Parliament as ex- pressly mentioned the plantations, and such Acts as had been re-enacted for the colony by her own legislature. 1 But no other statutes passed since the settlement could be held as binding. Therefore, according to Wilks, that law was con- trary to the law of England which was contrary to the com- mon and statute law prior to the settlement, or to the statute law made afterwards which expressly mentioned the planta- tions. Both of these views, however, were strictly opposed by the colony. To the statement that the common and statute law existent at the time of the settlement was in force in the colonies, the answer was made that the charter nowhere directed the administration to be according to one law or another, whether civil, common, or statute law ; 2 that by a decision of the Council itself an uninhabited and con- quered country was to be governed by the law of nations and of equity until the conqueror should declare his laws, 3 and that if such declaration had not been made, then it was evident that the law of equity and of nations governed and not the common or statute law of England. 4 Therefore, the 1 Talcott Papers, I, p. 274. Ibid., I, pp. 149, 158. * Blancard v. Oaldy, Salkeld's Reports, I, p. 411. Talcott Paper*, I, p. 144; II, Appendix, "Instruction to Agent." Talcott Papers, I, p. 148. 452 ///. THE COLONIAL PERIOD colony argued, English common law could be binding be- yond the sea only in case it had been accepted by the col- onist's own choice. 1 From the nature of the laws passed, it is evident that the colonial government never considered the common law to be in force within its jurisdiction, and in this belief it said it had never been corrected or otherwise in- structed from the throne. In this connection Governor Talcott pertinently asks, " And why should we be directed to make laws not contrary to the laws of England if they were our laws, for what propriety can there be in making that a directory to us in making a law which was our law before we made it." 2 As this was the case, it is evident that something more was implied in the charter than the making of by-laws. In that document was proposed an object, the religious, civil, and peaceable government of the colony, which could not have been attained by the passing of by-laws. The charter implied a power to enact in the colony that which was law in England and also any good and wholesome law which was not contrary to it; and such limitations could not be to by-laws only. 3 Furthermore, the colony insisted that the analogy to a municipal corporation in England was not sound, inasmuch as it was the privilege of English- men to be governed by laws made with their own consent. 4 The colonies were not represented as were the English towns in Parliament; therefore the only laws made with the con- sent of the colonies were those of their own legislatures, and those were more than by-laws. The opinion of the colony, therefore, was that the phrase, " contrary to the law of England," referred only to laws contrary to those Acts of Parliament which were in express terms designed to extend to the plantations. 5 That this had been the practice as well as the theory in Connecticut is evident from Congreve's letter to the Board of Trade, in which he says, " They allow of 1 " The common law always hath its limits environ'd by the sea." Tal- cott Papers, II, Appendix, " Instructions to Agent," p. 492. *Ibid., II, Appendix, "Instructions to Agent." These instructions were drawn up by John Read and not by Talcott, II. 489 note. Ibid., I, p. 149. 'Ibid., I, p. 159; II, Appendix, "Instructions to Agent" *Ibid., I, p. 152. 13. ANDREWS: COLONIAL CONDITIONS 453 none of the laws of England either common or statute to be pleaded in their courts." * According to the opinion held by Winthrop and Wilks the intestate law was clearly contrary to the law of England. Even Lieutenant Governor Law of the colony seems to have inclined to this view, for he came to the conclusion that the colony in acting in the past, contrary to the view expressed by Wilks, had been mistaken. 2 But Gov. Talcott was led into no such concession ; he stood firmly on the ground already taken, and adroitly persisted in maintaining the complete validity of the intestate law. He probably realized that under the circumstances concession was more dangerous than resistance, and that to accept Wilks's theory would be to strike a blow at the absolute integrity of the charter. " We would," he writes, " with the greatest prostration request your Majesty, that when we find any rules of law needful for the welfare of your Majesty's subjects here, which is not contrary to and agrees well with some one of the Tryangles of the law of England, as it then is, or heretofore had been, when England might have been under the like circumstances 1 B. T. Papers, Proprieties, M. 49. See also Talcott Papers, I, p. 154. Gershom Bulkeley says much the same in his " Will and Doom," but facts come to us from 'his pen strangely distorted, while his arguments are full of pedantry a.nd bitterness. " The case is otherwise with us, their Majesties are not yet received to reign in Connecticut, their laws are of no force or effect here." ..." The abolition of the Common and Statute laws of England and so of all humane laws, except the forgeries of our own popular and rustical shop ... A strange fancy that com- ing over from England to another of the King's dominions we should so far cease to be his subjects as that the laws of our King and Nation should not reach us." The most recent legal decision affecting our sub- ject is that of Justice Baldwin in " Campbell's Appeal from Probate," 64 Connecticut Reports, 1894. He held that the Connecticut rule of in- heritance, differing fundamentally from the rule of England, had been the uniform doctrine of the Connecticut courts (p. 290) ; and he gave it as his opinion " that the common law rule of the exclusion from inherit- ance of all tracing their descent through uninheritable blood was never in force in Connecticut" (p. 292). His decision is both historically and judicially sound. * Talcott Papers, I, p. 121. It was Jonathan Law who in 1731 drafted the " Act for the Settlement of Intestate Estates," which was to take the place of the old Act. It excluded females from the inheritance, but admitte'd the younger sons to inherit with the eldest son, as co-heirs. This did not better matters at all for it was equally contrary to the common law of England with the older Act. State Archives, Civil Offices II, doc. 169. Foreign Correspondence II, doc. 146. See Wilks's remarks upon this Act. Talcott Papers, I, p. 241. 454 ///. THE COLONIAL PERIOD , in that particular, which we are when we make the law, that it might not be determined to be contrary to the law of Eng- land." The opinions of the English lawyers of this period, so far as I am able to discover them, are neither definite nor com- plete. In a report to the Board of Trade, Attorney General Yorke and Solicitor General Talbot upheld the colony's position regarding by-laws. They affirmed that the assem- bly of the colony had the right by their charter to make laws which affected property, on condition that such laws were not contrary to the law of England ; but, although it seems probable that they intended " law of England " to cover the whole law, they did not make it clear what they meant by this term. 2 Yet these same lawyers in a later judgment declared that in one particular case, the barring of an heir to entailed lands lying in the plantation by a process of fine and recov- ery in England, the common law did not extend to the planta- tions, unless it had been enacted in the plantation where the entailed lands lay. 3 The Board itself supported the colony against adverse criticism 4 when it stated that according to the charter the laws were not repealable by the Crown, but were valid without royal confirmation unless repugnant to the law of England. 5 The most definite expression of opinion, however, was adverse to the view which the colony took. Mr. West, in a judgment rendered regarding admiralty juris- diction in the plantations, took the ground that wherever an Englishman went there he carried as much of law and liberty with him as the nature of things allowed; that, in conse- 1 Talcott Papers, I, pp. 149-150. *B. T. Papers, Proprieties, R. 130. Aug. 1, 1730. Talcott Papers, I, p. 238. II, Appendix. " Instructions to Agent," p. 493. *Ibid. I, p. 152, Winthrop's 8th Complaint. II, pp. 75-76, Parris' Opinion. 8 " Copy of a Representation of the Board of Trade to the House of Lords" Jan. 23, 1733-34. British Museum, 8223 e-15. Mentioned by Wilks, Talcott Papers, I, p. 294. In 1760 the Board took a different view " supporting his Majesty's right to examine into every provincial law and to give or to withhold his negative upon any good "reasons which may be suggested to him by the wisdom of his Privy Council or by his own royal prudence and discretion." B. T. Papers, Proprieties, Entry Book, I, ff. 299-307; Cf. opinion of House of Lords, 1734, Tal- cott Papers, I, p. 297. 13. ANDREWS: COLONIAL CONDITIONS 455 quence of this, the common law of England was the common law of the colonies, and that all statutes in affirmance of the common law passed in England antecedent to the settlement of any colony were binding upon that colony. He also held, as did Wilks, that no statutes made since the settlements were in force unless the colonies were particularly men- tioned. 1 His view, which I do not doubt was very generally held by English lawyers outside of the colony, was simply a legal opinion, and was probably based on little real knowl- edge of the subject to which it referred. We are> therefore, fortunate in having another and different view of the matter of greater practical value. In 1773 the legal advisor of the Board, Francis Fane, returned to the Board his comments upon the first installment of the laws of Connecticut and he completed his examination of the entire 387 laws in 1741. In this report opinion came face to face with facts, and the lawyer realized the anomaly of attempting to force English law upon a people whose conditions of life were in so many particulars different from those at home. In his comment upon the intestate law Fane notices that it was different from the law of England, but it is evident that this aspect of the case troubles him little. He is chiefly concerned with matters of rule, form, and procedure, and it is in these particulars that his real objection to the law lies. He recommends the repeal of the Act, 2 but would substitute another law " either as it is now done in England or by such other methods as may best fit the province where this law is to take effect." In this statement there was for the colony a world of mean- ing. Furthermore, in his criticism of the later amendments and additions to the law he says nothing about their being contrary to the law of England ; his recommendations for repeal are based upon the ground of uncertainty or upon some other defect of the law which would naturally attract a lawyer. An analysis of his comments upon the remaining 1 " Mr. West's Report relating to the Admiralty Jurisdiction prac- ticed in the Plantations." June 20, 1730. B. T. Papers, Plantations General, L. 10. * Fane evidently took it for granted that the Connecticut laws could be repealed hy the King in Council. It is not probable that the Board had instructed him on that point. 456 ///. THE COLONIAL PERIOD 884) laws l gives us approximately the same result. The laws recommended for repeal were too strict, severe or un- reasonable, incomplete or not severe enough, inexact, giving too much power to certain bodies, etc. In only one instance is a law declared contrary to the law of England, and then it is the legal principle implied in a part of the law that a man can be convicted on a general presentment which is declared repugnant. It is true that in a number of cases he recommends the repeal of a law which is different from the law of England, but it is not on the ground of its differ- ence that the recommendation is made; it is because the law is unsatisfactory from a legal standpoint and would not be a good law in any civilized community. In nine cases, how- ever, he considers the colony's convenience, and recommends the acceptance of the law, even though it would not have been proper for England or was not so good as the corresponding law in England. In these instances he recognizes the prin- ciple that the colony was generally the best judge of its own law, and practically concedes two of the points for which the colony contended, the principle of equity and that of custom. Fane's comments are uniformly fair and reasonable, and con- tain not a trace of animus toward the colonies. 2 The circumstances and discussions thus far outlined are necessary to an understanding , of the influences that acted upon the Board when it came to draw up its representation to the committee of the Council upon the petition of Belcher 'The following is an analysis of the report: There are in the list 387 Acts and 3 Resolutions. Of the Acts 312 are good, proper, well contrived for the purpose intended, reasonable, con- taining nothing amiss, fit to be confirmed, open to no objection or agree- able to the conveniences of the colony, and 75 are open to objection and should be repealed. Of the latter 28 are too severe or unreasonable, 2 are not severe enough, 9 are too loose, inexact, or uncertain, 6 give too much power to the selectmen, the county court or the court of assist- ants, 3 omit certain necessary definitions or limitations of the corre- sponding English law, 7 are different from the law of England and for the object intended inferior to the English law, 2 are incomplete in themselves, 9 concern Bills of Credit, 3 the intestate law, 5 are good in part and 1 has been repealed. It would be worth while as a commen- tary upon Gershom Bulkeley's " Will and Doom " to compare his parti- san arraignment of the Connecticut laws with the judicial criticisms of Francis Fane. *" Francis Fane on the Connecticut Laws." B. T. Papert, Proprie- tie$, V. 19-27. 13. ANDREWS: COLONIAL CONDITIONS 457 and Dummer. 1 In this petition the colony begged the King to confirm by an order in Council to the inhabitants of the province the lands already distributed under the intestate law, to quiet them therein, and to enable them to divide the lands of intestates in the same manner in the future. 2 The colony had already discussed at considerable length the wording of the petition, debating whether it would be best to ask for a confirmation by an Order in Council, or to apply for leave to bring forward a bill in Parliament. Belcher strongly advocated the latter method. 3 Talcott in. a forcible communication presented his fears of Parliament in case the matter were brought to its attention, and he had good reason to fear if we are to judge from later events. He was a prophet in his apprehension that it might lead Parliament to inquire whether the government had not accustomed itself to take the same liberty of making other laws contrary to the law of England ; and, further, that it might lead Par- liament to the opinion that the charter had not made them a government or province but only a corporation. Yet, on the other hand, it was equally true that neither the petition of. Belcher nor the introduction of a bill in Parliament was needed, if that body had desired to end the privileges of 1 The order of events may be briefly given. The petition was sent to the King in February, 1730; it was referred to the Committee on Ap- peals Apr. 10, and to the Board of Trade Apr. 15. The Order in Coun- cil and the Petition were read* before the Board Apr. 21, and the letter of inquiry was sent to the Crown lawyers the next day. The Memorial of Winthrop in reply to the Petition was received and read on the 28th, and was sent to the Crown lawyers two days after. On the 13th of May, the Crown lawyers not having replied, a letter was sent to remind them of the Board's request. Finally, on Aug. 1, they replied and their re- port was read Aug. 13, when the preparations for the representation to the Committee of the Council were begun: a draught of the representa- tion was ordered on Nov. 12, and on the 18th a letter with the Petition and the Memorial was sent to Francis Fane. He replied on the 21st and his report was read on the 24th and the work upon the draught was continued. On Dec. 2, the agents, Dummer and Wilks with Winthrop, were summoned before the Board, and appeared and presented their case on Friday, the 4th. On the 8th the draught of the representation was agreed upon, and on the 31st it was signed. B. T. Papers, Proprie- ties, Entry Book, H, ff. 10-11, 23, 39. Journal, 40. ff. 90, 97, 104, 111, 209, 221, 295, 299, 303, 312, 316, 322, 339. *B. T. Papers, Proprieties, R. 108. I have used the copy of the peti- tion sent down from the committee to the Board of Trade, instead of the transcript enclosed by Belcher in his letter to Talcott, Feb. 10, 1730, and printed in the Talcott Papers, I, pp. 187-190. * Talcott Papers, I, pp. 167-168. 458 /// THE COLONIAL PERIOD Connecticut in 1730 as it practically did those of Massachu- setts in 1774. 1 It is not quite clear to which conclusion the agents ar- rived, though in the petition upon which the Board based its representation, confirmation was asked for by an Order in Council. 2 This request at once raised an exceedingly impor- tant question expressive of the political change which had come over England since the Revolution of 1688. Could the King by virtue of his prerogative and without the assistance of Parliament grant the wish of the colony? To this Attor- ney Francis Fane answered, at the request of the Board, as follows : " I cannot pretend to say whether the King by vir- tue of his prerogative can do what is desired by the peti- tioners. But I must submit it to your Lordship's considera- tion supposing the King had a power by his prerogative of gratifying the request, whether under the circumstances of this case it would not be more for his Majesty's service to take the assistance of Parliament, as that method will be the least liable to objection as well as the most certain and effec- tual means of gratifying the request of the petitioners." ! That this was the opinion widely held among English lawyers is evident from Belcher's letters, in which he mentions Lord Chancellor King and the counsel which he had secured as inclined to this view. 4 1 Talcott Papers, I, pp. 175-179. The history of the relations between Parliament and the proprietary and charter colonies since 1701 shows the accuracy of Talcott's judgment. The representation of the Board of Trade upon the petition, the resolution of the House of Lords and the revival of the effort to introduce a bill into Parliament in 1731 to unite Connecticut and Rhode Island (Talcott Papers, I, p. 221) were a speedy fulfilment of Talcott's fears. There is history here to be written. See Judge Chamberlain's remarks, op. cit., pp. 131-133. * The petition upon which the Board based its representation contains the words "pray your Majesty to be pleased by your Order in Council to confirm," the petition which Belcher enclosed to Talcott says " pray that you would be pleas'd to give leave that a bill may be brought into this present Parliament of Great Britain to confirm." It is evident that the latter was the form originally intended to be used (Talcott Papers, I, pp. 184, 191). But probably Talcott's fears of Parliament, and par- ticularly the pressure of more weighty matters upon Parliament just at that time, induced a change, and the petition was altered and request for a confirmation by Order in Council inserted instead. (Ibid., I, p. 197.) 8 B. T. Papers, Proprieties, R. 132. 4 Talcott Papers, I, pp. 167, 168, 184, 259. 13. ANDREWS: COLONIAL CONDITIONS 459 With this opinion of its legal advisor before it, the Board summoned to its presence the agents of the colony and Win- throp and listened to the arguments on both sides. 1 It then finished the draught of its own representation. Many in- fluences underlay the wording of that report, influences which it has been the purpose of this paper to disclose. The report was the resultant of at least three forces: first, the desire to gratify the colony in confirming the lands already settled under the intestate law, for Dummer had ably pre- sented the inconveniences which would follow the upholding of the decree of the Council; secondly, the determination to syncopate the privileges of Connecticut on the ground that she had been too independent of the Crown, and had too long a list of charges against her to escape some limitation of her powers ; and thirdly, the conviction, in view of the changing constitutional relations of King and Parliament, that the only safe method whereby such end could be accomplished was to apply to the King for leave to bring in a bill for that purpose. 2 A few extracts from the report will exemplify this. After recommending compliance with the request of the colony, the Board adds, " And we think this may be done by his Majesty's royal license to pass an Act for that purpose with a saving therein for the interest of John Win- throp, Esq. But we can by no means propose that the course of succession to lands of inheritance should for the 1 The minute in the Board of Trade Journal is as follows: "Mr. Dummer and Mr. Wilks attending, as they had been desired with Mr. Winthrop, their Lordships desired to know from them how the colony of Connecticut would be affected by the annulling the Act for settling intestate estates. And Mr. Dummer acquainted the Board that the colony would be reduced to the utmost confusion if their estates as they now hold them should not be secured to the present possessors, their tenures being liable to be reversed or at least to be disputed in a man- ner that cannot fail to be expensive and vexatious. Upon the with- drawal of these gentlemen their Lordships agreed to consider the matter further at another opportunity." B. T. Journal, 40, f. 316. It is a little remarkable that the clerk of the Board makes no mention of Winthrop's speech, for in Wilks's report of the interview we are told that he spoke at some length. Talcott Papers, I, pp. 217-218. Perhaps Mr. Winthrop had overreached himself. (Ibid., pp. 166, 171.) * Judge Chamberlain says that this recommendation of the Board marks a changing constitutional policy in the direction of parliamentary supremacy over the colonies which finally led to the severance of the empire. Op. cit., pp. 134, 136. 400 ///. THE COLONIAL PERIOD future be established upon a different footing from that of Great Britain. In return for so great a favor from the Crown we apprehend the people of Connecticut ought to submit to the acceptance of an explanatory charter whereby that colony may for the future become at least as dependent upon the Crown and their Native Country as the people of Massachusetts Bay now are whose charter was formerly the same with theirs. And we think ourselves the rather bound in duty to offer this to his Majesty's consideration because the people of Connecticut have hitherto affected so entire an independence of Great Britain that they have not for many years transmitted any of their laws for his Majesty's con- sideration nor any account of their public transactions. Their governors whom they have a right to choose by their charter ought always to be approved by the King, but no presentation is ever made by them for that purpose. And they, tho required by bond to observe the laws of Trade and Navigation, never comply therewith, so that we have reason to believe that they do carry on illegal commerce with impunity, and in general we seldom or never hear from them except when they stand in need of the countenance, the pro- tection or the assistance of the Crown." With this report the case of Winthrop vs. Lechmere, growing as it did, out of the land system of the New Eng- land colonies, has brought us step by step dangerously near to the principles and theories which underlay restriction on the one side and revolution on the other. How far this par- ticular case and the discussions which grew out of it aided in the shaping of those principles, we need not attempt to. discover. As part of the larger question of the uniting of the colonies and the annulling of the charters, its influence was direct and definite. After 1700 the fact of parliamen- tary supremacy was proven each time an effort was made to limit the independence of the proprietary and charter colonies and to bind them more firmly to the Crown ; and at the same time the continuance of such efforts for thirty years increased the familiarity of Parliament with the task of controlling the >B. T. Papers, Proprieties, Entry Book, H. ff. 25-27. Cf. Wilks's statement in Talcott Papers, I, pp. '217-219, 222. 13. ANDREWS: COLONIAL CONDITIONS 461 colonies. In this the English authorities were not showing themselves either arbitrary or despotic. The Board of Trade, the Crown lawyers, even the Privy Council acted according to their convictions, which, though honest, were based undoubtedly upon insufficient and ex parte information. Connecticut's policy of reticence was in part responsible for this; she had made it possible for her enemies to fill the minds of the home authorities with suspicion, and there was just enough truth at the bpttom of the charges for them to be extremely effective. Other colonies as well were on the black list of the Board. Among intelligent Englishmen both in and out of Parliament there was a strong feeling that some of the colonies were not acting consistently with the inter- ests of England, and needed the strong hand of Parliament to curb them, even to the taking away of their treasured privileges. 1 But the blow was not to fall yet. Parliament was perhaps not yet prepared to intervene in the management of colonial affairs, however general the opinion seemed to be that it had a right, in view of the events of 1688, to assume this function of the royal prerogative. Although for thirty years ample opportunities for so doing had been given, yet the rights and privileges of the charter colonies remained unimpaired. Per- haps the colonies had given insufficient provocation ; if so, time would soon render the provocation greater, not because of any defiant act of the colonies but because of the inevitable 1 See the representation of 1733 and the resolution of the House of Lords (Talcott Papers, I, p. 297), where strong language is used. Wilks reports a speech made one day in the House of Lords to the same effect (Ibid., I, pp. 294-295). The opinion of intelligent Englishmen can be inferred from an extract from Salmon's Modern History pub- lished in 1739. "The laws [of the charter governments] are liable to be repealed and their constitution entirely altered by the King and Parlia- ment; which, one would think, should render them extremely cautious in making laws that may prove disadvantageous to their mother country . . . for they may very well expect that when this shall be done to any great degree the Parliament will keep a severe hand over them and per- haps deprive them of their most darling privileges. It may be found expedient hereafter also for their own defence and security to appoint a viceroy or at least a Generalissimo in time of war . . . Or at least it may be found necessary to make all the colonies immediately dependent on the Crown, as Virginia, Carolina and New York are: for the char- ter governments are not to be depended on in such exigencies." Modern History by Mr. Salmon, III, p. 568 (London, 1739). 462 ///. THE COLONIAL PERIOD. tendency of their economic development. The intestacy law is but a straw showing the direction of the wind; it has a legal stamp upon it but it is in origin and effect an economic measure. The representation of 1730, followed soon after by that of 1733, resulted in a vehement body of resolutions of the House of Lords, but no further effect was seen. One session of Par- liament passed and still another, but, as no steps were taken pursuant to the resolutions, the colony began to breathe more freely. That it would have resisted the acceptance of an explanatory charter is evident; it is fortunate that it was never called upon to put the matter to the test. While the fate of Connecticut was thus hanging in the balance, another case, that of Phillips vs. Savage, was carried by appeal from the Superior Court of Massachusetts to the King in Council. 1 Here a decision in favor of the intestacy law gave new cour- age to Connecticut, and in another private suit, that of Clark vs. Tousey, the matter was again brought before the King in Council. The appeal was dismissed, however, by the Privy Council in 1745 not through any decision as to the right or wrong of the case, but because of the fact that Clark had not prosecuted the appeal within a year and a day as required by the Council. Connecticut accepted the dismissal as a decision in her favor, although it was in fact nothing of the kind. It ended the matter only because no one dared to make another appeal and the question never came up again. 2 With this dismissal the colony returned, to all outward appearance, to the position that it had occupied seventeen years before. But this was not true in fact. Seventeen years of experience with England's policy, years of argu- ment and controversy, had enlarged the mind and toughened the sinews of Connecticut ? s leaders, and had formed a body of tradition, made up of higher reveren.ce for the charter and higher regard for its integrity, to be handed down to the succeeding generation. It was not the influence of any theory of the fundamental rights of man, or of any inherent 1 For the case of Phillips vs. Savage see Mass. Hist. Soc. Proc. 1860- 1862, pp. 64-80, 165-171. 'The proceedings of the Privy Council upon the appeals of Clark and Tousey are to be found in Conn. CoL Rec. IX, pp. 592-593. 13. ANDREWS: COLONIAL CONDITIONS 463 hostility to England that underlay the attempt of Connecti- cut to keep her charter and to preserve her privileges; it was the determination to maintain at any cost the integrity of the colony and the welfare, happiness, and prosperity of its people. In the issue which arose in 1730, as well as in that which arose in 1765, it will be found that economic causes and conditions drove the colonists into opposition to England quite as much as did theories of political independ- ence or of so-called self-evident rights of man. We have now followed s'tep by step this important ques- tion from its starting point in the land system of New Eng- land to its final issue in the prerogatives of Crown and Par- liament. The land system, representing the pre-feudal idea rather than the feudal, was reproduced in America with some important changes. Out of this sprang the law of intestacy, differing in principle from that of England which rested upon feudal law. This difference between the common law of the two countries was taken advantage of by certain dis- affected ones of Connecticut who sought to benefit themselves by appealing to England against the colonial law. This matter, at first private, touching the lands and interests of but a few persons, became of wider importance by the vaca- tion of the law by the King in Council. By this the agrarian harmony of Connecticut, and possibly of New England, was threatened. This roused the colony, and the issue became a part of the larger question of the relations of the proprietary and charter colonies to the Crown. This made the matter of importance not merely to Connecticut and New England, but to the other colonies of this class as well. But the influence of the Winthrop case did not stop here; it passed even higher, and raised the question of fundamental importance to all the colonies as to the constitutional relations of Crown and Parliament. The settlement of this question foreshad- owed the action which Parliament was to take forty years after. PART IV. EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY 14. Anticipations under the Commonwealth of Changes in the Law. R. ROBINSON. 15. Bentham's Influence in the Reforms of the Nineteenth Century. JOHN FORREST DILLON. 16. Progress in the Administration of Justice during the Victorian Period. CHARLES SYNGE CHRISTOPHER, BARON BOWEN. 17. The Development of Jurisprudence during the Nine- teenth Century. JOSEPH HENRY BEALE, Ja. 18. The Extension of Roman and English Law throughout the World. JAMES BRYCE. 465 [OTHER REFERENCES ON THIS PERIOD: In Select Essays: The History of Code Pleading in America and England, by C. M. Hepburn: Volume II. Changes in the English Law of Real Property during the Nineteenth Century, bv A. Underbill: Volume III. In other Treatises and Periodicals: A Century of Law Reform, by various authors (1901); chapters on Equity, Corporations, etc. Two Centuries' Growth of American Law, by various authors (Yale Studies, 1901 ) ; chapters on Equity, Corporations, Property, Evidence, etc. Treatise on Statutes, by F. Dwarris (1848) ; a list of reformatory statutes from Charles II to Geo. Ill, pp. 835-868. The History of Legislation concerning Property in England, by J. F. de Villiers (1901). Law Reform in the United States and its Influence Abroad, by D. D. Field, American Law Review, August, 1891.] 466 14. ANTICIPATIONS UNDER THE COMMON- WEALTH OF CHANGES IN THE LAW 1 BY R. ROBINSON 2 IS essay touches on some of the alterations made or JL suggested by the statesmen and jurists of the Republic in our judicature and in our criminal and civil law. It avoids social, constitutional, and political questions political, like the union of Great Britain, though that involved an union of laws ; 3 constitutional, like the abolition and reconstruc- tion of the Upper House of Parliament ; 4 social, like the establishment of public works for the poor, 5 and of a public post-office. 6 The goodness of the laws of Charles II., contrasted with the badness of his government, has drawn a compliment from Blackstone, epigrams from Burke and Fox, and a paradox from Buckle. An enquiry into the source of these laws may show that the paradox is unreal, the epigrams unfounded, the compliment due to the Republicans ; that they, in ir This essay is taken from volume III, pp. 567-601, of "Papers read before the Juridical Society" (London: Wildy and Sons). It is without date, but was read in 1869 or 1870. 2 Barrister-at-law, Fellow of Owen's College, Oxford. With the above Essay may be compared the following: The Consti- tutional Experiments of the Commonwealth, by Edward Jenks (1890; Cambridge, University Press) ; The Interregnum, by F. A. Inderwick. "St. 1654, cc. 8, 9, 10: Whitelock, 517, 532, 632: "The decisions of the Engl. judges during the ursurpation," etc. Cp. Bacon, " Certayne articles touching the Union ... of Engl. and Scotl." [M. s. Qu. Coll. Oxf. 32.27 (D. 2. 129, [194])]. 4 Stt. 1648-9, c. 17; 1656-7, cc. 6, 18; 1659, July 12: Comm. Journ.: Whitelock, 377, 569, foil.: 6 Thurloe, 107, 668: Ludlow (246). B J. Coke, " Unum necessarium ." Stt. 1649, May 7: 1653-4, c. 20: Whitelock, 384, 531. Cp. St. 43 Eliz. c. 2: Child, "Proposals for the relief and employment of the poor" [11 Somers's Tracts, 606]. Comm. Journ. 1649, Mar. 21; 1657, June 9: Stt. 1654, c. 51; 1656, C. 30. 467 468 IV. THE NINETEENTH CENTURY redressing grievances which from the time of James and Bacon 1 had been fostering rebellion, forestalled the law- reformers, not of the Restoration only, but of our own age. The legislators of 1641 had struck blindly at all courts which seemed to them arbitrary or peculiar; they had not asked how far these were due to the faults of the Common Law, to the wants of society, to the difficulty of travelling. That year had seen the Privy Council, the Stannary Court, the Forest Court, nominally regulated, but, in fact, para- lyzed, the Court of Chivalry abolished by resolution, the Courts of Star Chamber, of Requests and of High Com- mission, and the right of temporal jurisdiction, which was among the " royal rights " of the Bishops of Durham and of Ely, taken away by statutes. With the Star Chamber the Palatine courts, as far as they were its antitypes, and the Courts of the Councils of Wales and of the North fell to the ground. Nay, it was forbidden to erect such tribu- nals. 2 But the necessity for them was overwhelming: di- versity of usage, caused by difference of circumstances, made it possible to pass a bill for the uniformity of law. Take, for instance, the series of High Courts of Justice constituted to try the King, the democrat Lilburn, the Roy- alists Hamilton, Holland, Norwich, Capel and Owen, con- stituted again or continued in 1650, again in 1651, again in 1652, again in 1653, again for the trial of Gerard and Vowel in 1654, again in 1656. Besides these, the jurisdiction of which was national, there was one erected in 1650 for Nor- folk and Norwich, Suffolk, Huntingdonshire, Cambridge- shire, Lincolnshire and the Isle of Ely. They were consti- tuted sometimes by Parliament, sometimes, seemingly, by the Executive. They were not meant to be perpetual ; but they were meant to reach by Equity crimes and criminals which Common and Statute Law and public opinion would not have reached. Clarendon calls them " a new form." Rather they were suggested by the Star Chamber, in favour of which *J. Coke, "The vindication of the profession and professors of the Law," A 4: Bacon, "Works" [e. g. vol. 10, ed. Spedding: essay "of Judicature:" " De Augm. Sc.:" "Henry VII."] 'St. 16 and 17 Car. i. cc. 10, 11, 15, 16, 28: Comm. Journ.: Clar. bks. 3 and 4. U. ROBINSON: ANTICIPATIONS 469 the Privy Council and the Chancery had parted with their criminal jurisdiction, which dexterously construed intentions into acts, which (like the High Courts of Justice, as Claren- don taunts them) did away with " distinction of quality " in capital cases, and made " the greatest lord and the mean- est peasant undergo the same judicatory and form of trial," * equalizing them in the dock as, during the French Revolu- tion, the guillotine equalized them on the scaffold. Claren- don's sneer, repeated in earnest in St. 1656, c. 3, that these tribunals were " for the better establishment of Cromwell's empire," 2 in other words, for the maintenance of order, is their apology. Changes more or less sweeping in the Superior Courts of Common Law and in the Law Terms were proposed. The latter were regarded by the people as of Norman, indeed, of the Conqueror's institution, and wasted time and money. Nor need we have wondered if, as the early Christians, abhor- ring Pagan festivals, administered justice daily, so the Puri- tans, abhorring Catholic festivals, had effaced the distinction between term-time and vacation. However, Michaelmas Term having been shortened so as to suit the farmers, no more was done. 3 The alterations made in the Superior Courts embar- rassed Chief Justice Foster after the Restoration, but, such was the strength of the Common-lawyers, did not satisfy the reformers. 4 Stt. 1649, c. 10, and 165%, c. 4, only accom- modated their forms to those of the new constitution. Fines 'Stt. 1648-9, cc. 6, 10: 1650, c. 1, Apr. 2, cc. 24, 40; 1651, cc. 8, 20; 1653, c. 25; 1653-4, c. 4; 1654, c. 27; 1656, c. 3 ; Comm. Journ.: "State Trials:" Cock, "English Law" (1651), p. 74: Whiteloek: Clar. bks. 11, 13, 14: Spence, pt. 2, bk. 1, c. 4, and bk. 4, c. 1. For the refer- ence to Spence I have to thank Sir G. Young. 2 " Divers officers and soldiers " call Cromwell " the first Christian King and Emperour" ["A supply to a draught of an act," etc. (1653), p. 22]. Cp. "The Homilies" (1547), bk. 1, serm. 10, pt. 3. I am in- debted to the Rev. J. R. Green for reminding me that Archbp. Heath, in 1559, spoke of Elizabeth as " our Emperour and Empress" [Free- man, 1 "Norman Conquest" 161, 626]. 8 Selden, "Janus Angl." bk. 2, 9: Warr, "The corruption and de- ficiency of the laws of Engl." etc., cc. 3 and 4: Winstanly, Barker, and Star, "An Appeal to the H. of C. etc., pp. 18, 19: Jones, "The new relurna brevium" etc., passim: Thierry, "The Conquest of Engl." etc., conclusion, 4: Spelman, "Of the Terms:" St. 16 Car. i., c. 6. * " Exam en legum Angl." (1656): Cole, "A rod for the lawyers" (1659). But see "A vindication of the laws of Engl. as they are now established." 470 IV. THE NINETEENTH CENTURY on declarations were taken away with those on bills and on original writs ; but fines on writs of covenant and of entry were left. 1 The conflicts of jurisdiction carried on not only between the Common Law Courts and the Chancery and the Admiralty and the Ecclesiastical Courts, but also among the Courts of Common Law themselves, carried on by means of fictions and prohibitions and injunctions, and causing great expense, were a scandalous evil. 2 The Committee of Law Reform (1653) dealt with this grievance. 3 It would have confined all tribunals within certain bounds, have kept all actions between subjects under that " lock and key of the Common Law " the Court of Common Pleas, have allowed barristers as well as Serjeants to plead before that bench, and every attorney to practise in any court, and have paid the judges by salary and not by fees. Now, it was covet- ousness father than desire to amplify jurisdiction, rather even than ambition, which led to those costly conflicts; and therefore such measures, combined with others against judi- cial corruption, would have abated nuisance. But they could not be carried. A century later Willes, C. J. C. P., proposed that Parliament should open his court to barristers ; he was met by the plea that there should be there (as there now is to some extent in the courts of first instance in Equity) a resident bar. In 1834 another attempt was made: in 1840, amid a furious tempest of wind (as Bingham, the reporter, notes), it was repelled. In 1847 the plan of 1653 was accom- plished/ 4 Between the Equity and the Common Law Bar there was a quarrel of old standing ; and now that the latter, the soul of the Rebellion, was in the ascendant, the Chancery seemed 1 6 Somers's Tracts, 179: St. 1653, c. 4: Resolution, Nov. 7: Stt. 1654, c. 53; 1656, c. 10. * North, "Guilford" (1742), p. 99. See Mr. Commissioner Hill's "Letter to Thomas Pemberton," etc. (1838), pp. 27-38: Bacon, "Works," vol. 10, p. 367 (ed. Spedding) : 12 Rep. 109: 4 Inst. 99: Jones, . *.; and other works, passim. 8 See its draughts in 6 Somers's Tracts, 211 foil, ridiculed in "The proposals of the Committee for regulating the law," etc. [ibid. 528-32], and sensibly criticized by the army in " A supply to a draught of an act," etc. (1653). * Wynne, "Serjeant at Law:" Manning, " Serviens ad Legem:" 10 Bing. 571: 1 and 6 Bing. n. c.: St. 9 & 10 Viet. c. 54: 3 C. B. 537. U. ROBINSON: ANTICIPATIONS 471 marked for destruction. Bishops had presided over it, kings had favoured it, its jurisdiction had been extended (sub- stantially, as time shewed, in compliance with the wants and spirit of the age), but illicitly, irregularly, and tyrannically. An injured public declared that it swarmed with " a number- less armado of caterpillars " and " Egyptian grasshop- pers ; " and in 1653 an act, which never operated, passed for its abolition. 1 Meanwhile, it had been reforming itself. In 1649 the Commissioners of the Seals, Whitelock, Keble, and 1'Isle, assisted by Lenthal, M. R., in provisional orders, for- bade prolix, scandalous, and ambiguous pleadings and set bounds to multiplicity of suits, to suits in forma pauperis and to the granting of injunctions: these were granted often for the sake of the fees, and dissolved by connivance with the Common Law judges, that they, when they went circuit, might not have nothing to do. 2 Many other attempts were made by the Commissioners and by the Commons to improve the court. But the " cases " of the latter were " far more precious than their carcases," and little was done till the Committee of 1653 suggested the best part of Cromwell's famous ordinance. 3 That passed on the 22nd of August, 1654. It was bitterly attacked by the bar, 4 and not unjustly; for it aimed with more earnestness than skill at rapidity, simplicity, and cheapness. Its prevailing tendency and that of the orders of 1649 and of public opinion was to deprive Equity of what she had taken from Law, and to pro- tect obligors and mortgagees. Plaintiffs were to give secur- ity for costs ; as many admissions as possible were to be made by each party ; each was to suffer for causing unnecessary expense; witnesses were to be properly examinee!, but not, it seems, in court. On the other hand, no case was to be heard for more than one day. The schedule again, besides 1 Jones, " The new returna brevhim," etc. Hudson, 25 " Archaeol " 349, foil. : J. Coke, " A vindication," etc. " An exact relation of the proceedings and transactions of the Parliament which began July 4, 1653, by a member thereof." * Orders in Beames: Jones, "Judges judged," etc., p. 92. * Whitelock, 519, 548: Jones, "The new ret. brev." etc. A 6: 6 Som- ers's Tract, 202, foil. 4 Stt. 1654, c. 44; 1656, c. 10: Whitelock, 621-7. Cp. 4 Comm. Journ. 701. 472 IV. THE NINETEENTH CENTURY attacking the length of legal documents (" the round- about, Robin-Hood circumstances, with * saids ' and ' aforesaids,' ' : the " huge gaps, wide as meridians in maps," the reckoning fifteen or eighteen lines to a folio) as an absolute evil, at- tacked it also as profitable to the lawyers ; the answer, that lawyers must be properly paid, indirectly if not directly, was old as Bacon. l On the whole, though some of the reforms were tacitly adopted by Clarendon, they were not enough; and the best thing which the Commonwealth did for Equity was, not to fuse it with I find no notion of fusing, but to reduce it to, Common Law. That it did by placing on the Equity Bench Common-lawyers whose political career had made them acquainted with the defects of their own school, and whose antecedents had disposed them to find in Equity one of the grounds of Common Law, to study it as a science, and administer it regularly. 2 That view, so rational, so- true to history, reconciling Coke and Selden with Bacon, Ellesmere and Hobbes, inherited from Hale by Nottingham, has descended through Camden and Eldon, and, if now out of date, was suited to England in the seventeenth century. England needed Equity, and yet that Equity should cease to be " mysterious," and " the measure of the Chancellor's foot." 3 A series of statutes professed to take away all " ordinary- jurisdiction," 4 and, no doubt, from spiritual persons, took it and every privilege away. The Courts Christian had long been doomed. They remind those whose hatred of the episcopate had led them to fix on spotted dogs the name of " bishop " that prelacy had been in the ascendant : 6 1 Carey, " The present state of England " (1627) : " Saint Hilary's tears" (1642 or 1643): 2 " Hudibras " 3, 325-30, and Grey's n.: Bacon, "Arguments against the Bill of Sheets" ["Works," vol. 10, p. 287 (ed. Spedding), cp. vol. 8, p. 226]: Williams, "Real Property," pt. 1, c. 9. '"A noble person," in Burnet's "Hale," pp. 113 foil. (1682). 8 Cp. Selden, "Table Talk" and Whitelock, 378, with Hooker [5E. P. 9] and Hobbes, " A dialogue between a philosopher and a student of the Common Laws of Engl." And see Smith, 1 Ex. Dev. 534 n. t. (1844); 2 Swanston, 414; 3 De G. F. and J. 238; Best, 1 Jur. Soc. Pap. 399, foil. ; Marshall, i&., 2, 283, foil. Stt 16 Car. i. c. 11; 17 Car. i. c. 28 (repealed by 13 Car. ii. c. 2); 1646, cc. 64, 66; 1649, c. 24: Clar. bks. 3, 4. 1 "Hudibras" 2, 531; 3, 2, 544; and Grey's.notes. 14- ROBINSON: ANTICIPATIONS 473 they reminded the many of penance done with paper lantern and in white sheet for heresies and vices; 11 of comfort given to tyranny and to popery: the law which they administered was not English, and though intrinsically less obscure, was less easily understood by the people than Common Law : their judges had been corrupt 2 and the civilians who pleaded in them unpopular: 3 lastly, the time favoured, and the con- stitution of those tribunals justified, and alteration. Yet ordinary jurisdiction was transferred only, and not entirely taken away : partly it was necessary, and partly it was suited to the age. The business of the Clerical Courts, administra- tive and litigious, had still to be done; acts regarded in law as crimes did not cease in public opinion to be criminal ; tithe was exacted still; property left by testators and intestates had still to be disposed of; clerks had still to be instituted and inducted: these duties were transferred by degrees to lay hands. 4 On the civil side of the Spiritual Courts analogous changes were made, such as Bacon might have recommended, 5 such as have nearly all been since carried out. All questions about tithes " Norman " though they were were tried at Common Law. 6 As to probate and administration: Bacon and Selden had argued that, by the Civil and the Canon and the English Law, the profane hand has a better right than the sacred to grant probate, to distribute legacies, to administer the property of intestates ; 7 Brown v. Wentworth 1 76, 2, 1, 870: Proceedings in the Bp.'s and Archdn.'s Cts., Oxf. *13 Rep. 24: 12 Rep. 78 and 3 1st. 147: 4 Inst. 336; cp., as to Sir John Bennet, Willet, "Synopsis Papismi" (Charitable work done in the U. of O.) and Macray, "Annals of the Bodl.," p. 37. 8 Froude, c. 24: Hallam, cc. 2, 4, 8: Steph., " Comm." intr. 1: Clar. . *., Burton, "Dairy," 4 Nov. 1654: Whitelock, 655: "Merc. Pol.," No. 238. 4 Stt. 1643, May 17 and 20, c. 10; 1644 Nov. 5. Cp. the permission given by St. 1 Eliz. c. 1, 39-43 to proceed with appeals to the Court of Rome in the cases of Tyrril v. Chetwood and Wife and Harcourt v. Tydell 6 See his " Certain considerations touching the better pacifications and edification of the Church of England." 6 Statt. 1644, c. 45, 1647, March 24, c. 85; 1648, cc. 110, 121, 1649, cc. 24, 31; 1650, c. 5; 1654, c. 45; 1656, c. 10: Harwood v. Paty, Hardres, 63: Jones, "The crie of bloud," p. 16; "A case concerning tythes;" Winstanly, etc. u.s. pp. 18, 19: W[m.] S[hepherd], "The Parson's Guide" (1654), c. 8. T Bacon u. s.: Selden, " Eccl. Jurisdiction of testaments." (c. 1626). 474 IV. THE NINETEENTH CENTURY and Hensloe's Case were recent authorities in their favour, 1 and another was the practice of civilized Europe, France, and especially Brittany, excepted. 2 In 1653, accordingly, a temporal tribunal was erected and endued with the powers of the Consistory and Prerogative Courts: it consisted of twenty judges, five of whom were a quorum; among them were Cooper, afterwards Lord Shaftesbury, Hale, Des- borough, Cock, Peters, and Rushworth. The measure was crowned by the establishment of district registries for all wills and for letters of administration. 3 Legacies were to be sued for at Common Law. 4 St. 165-p, C. 43, appointed delegates to try the validity of questionable marriages. The effect of all this was to replace Ecclesiastical by Common Law, not simply to bound the jurisdiction of the former by the latter. 6 " I would not have law bookes to be dealt withall like the Common Prayer Booke, which as (sic) hap- pily laine aside like an old caske for its ill savour," says John Coke, solicitor-general at Charles's trial, and afterwards Chief Justice of Munster, " but refined, purged, and con- formed to Right Reason, speedy justice, and consconable (sic) Equity. Let his expurgation be, at the first dash, of all matters ecclesiastical and bishops' appurtenances, for what feare is there to expel that brats (sic) having banisht the father?" 7 A mercantile country found our marine courts necessary, but in need of reform. Their judges were deputies, often without experience 8 and often inclined by covetousness or 1 Yelverton, 92: 9 Rep. 37. Cp. 5 Rep. i, xvi., xvij., 74: 9 Rep. 48. 1 Selden, 1. c. pt. 1, c. 6. "An experimental essay," etc. p. 3: Statt. 1653, c. 2, Dec. 24; 1654, c. 4: Burton, "Diary," 1656, Dec. 3 and 24: Wynne, Jenkins, 2, 695. 4 St. 1654, c. 44, 48: "Exam. legg. Angl," c. 14, 31, 33, 34: Rep. on Eccl. Cts. (1832), P. 39. "Exam. legg. Angl," c. 14, 27; p. . 69: 3 " Hudibras," 1, 623- 30. The attacks made in "A plea for ladies," etc. on Milton's book about divorce, which he defended by translating Bucer's, and by writing " Colasterion " and " Tetrachordon," prevented thorough legislation. 6 Wingate, " Maxims of Reason," 1, 4. "The Vindication," etc., p. 83. * As Lewes, Principal first of New Inn Hall, and then of Jesus Coll. Oxf., appointed by Lord Clinton, in 1558, Judge of the High Ct., of Ad- miralty [Ms. among the records of the court: Wood, 1 "Fasti Oxon." 127]. U. ROBINSON:. ANTICIPATIONS 475 by ambition to stretch their powers. During twenty years the Republicans settled and restrained their civil jurisdiction by statutes : 1 and, when these were set aside at the Restora- tion a bill embodying them was brought into Parliament and supported by Sir Leoline Jenkins. 2 St. 1649, c. 61, vested in the Common Law Courts (and presumably took from others) jurisdiction over crimes committed on or beyond the seas: St. 1650, c. 7, however, explained that the Court of Admiralty had such jurisdiction still. Letters of marque were granted though under restrictions. 3 Stress of war and ignorance of Political Economy made the Common- wealth pass Acts of Navigation and maintain the pressgang. 4 But impressment was balanced by high wages, short peri- ods of service, provision made for disabled seamen and for seamen's families. Stt. 1650, c. 28, and 1651, c. 22, per- petuated with aggravations in 1661 and 1663, approved by Blackstone, approved by even Adam Smith and Brougham, 5 were not repealed till 1854. District courts to try small causes were in demand: not only such as have been erected since 1846, but more like those which Smith, J., and the Solicitor-General have lately recommended. 6 The sheriff's county court, the hundred court, the freeholder's court baron, had become inadequate, and were too often obliged, by writs of pone accedas, recordari and false judgment, to send cases up to the Superior Courts, there to be slowly and expensively decided. In Bacon's time the subjects of England did already fetch justice somewhat far off, more than in any other nation that he knew, the largeness of the kingdom considered ; nor did the circuits nor the Courts of the Councils of Wales and of the North, which he compared to the French Parliaments, and to 'See among other Stt. 1648, c. 112; 1648-9, cc. 13, 14; 1640, cc. 21, 22, 23, 38; 1650, cc. 7, 33, 48, 50; 1651, cc. 3, 4; 1654, cc. 21; 1656, c. 10. 1 Williams and Bruce, " Admiralty Jurisdiction and Practice," intr. pp. 13, 14: Browne, "Civil Law," vol. 2, c. 1. 'Start. 1649, cc. 21, 38; 1650, e. 7. 4 Stt. 16 Car. i. c. 5; IT Car. i. cc. 30, 32; 164T, cc. 78, 101; 1648-9, cc. 18, 15; 1649, cc. 21, 73; 1650, c. 7; 1651, cc. 21, 29; 1652, cc. 15, 36; 1653, ord. 21; 1654, c. 13; 1656, c. 24. Bla. 1 "Comm." 418: Adam Smith, " W. of N." bk. 4, c. 2, and Mc- Culloch's 12th n.: Campbell, "Brougham," c. 8. 1st. Rep. of the Judicature Commission (1869), note. 476 IV. THE NINETEENTH CENTURY which he would have added a Border Court at Carlisle or Berwick, meet the want. 1 The inconveniences flowing from that practical denial, of justice to those rustics who had sustained slight injuries or had little debts outstanding con- spired with fashion to centralize England in London. The determination of wealth and ability to the capital had been resisted by Tudors, Stuarts and Republicans with futile measures against building and absentees. 2 But the Repub- licans were for resisting it also by improving the judicial and administrative system of the country. Carey in 1627 had turned to Spain, then in many respects another and a better England, 3 and asked for district courts with a sum- mary jurisdiction such as he saw there. 4 The first steps taken by the Long Parliament were even in an opposite direction : it abolished all courts of the kind, and, no doubt, their scope, like that of the Stannary Court according to Claren- don, " had been extended with great passion and fury." But in 1645 complaint was made of the tedious journeys to Westminster: in 1648 Carey's request was renewed and a proposal made that all Superior Courts but that of Parlia- ment should be swept away ; and many a pamphleteer j oined in the chorus : " Let the people have right at their own doors." 6 In answer, the Palatine and the Duchy Court of Lancaster were revived by statute under Bradshaw and others, courts of conscience were established and county judicatures planned for England, courts baron were erected in Scotland and manorial courts 6 in Ireland. * Bacon, " Certayne articles touching the Union of Engl. and Scotl.," u. s. 2 St. 1656, c. 24. Cp. d'Israeli, "Cur. of Lit." ("Building in the Metropolis," etc., and "Royal Proclamations"): Hallam, C. 8: Evelyn, " Fumifugium:" "The Apology for the Builder" (1685). Robertson, "Charles V.," notes: Allen, "The Royal Prerogative in Engl.," pp. 100 foil.: Stubbe, "a select senate" (1659). * Carey, "The present state of Engl.:" Jones, "Every man's case," p. 17. 5 Jones, "Eight observable points of law:" "An experimental essay, touching the reformation of the laws of Engl.:" Warr, "The corrup- tion and deficiency of the laws of Engl.," cc. 3, 4: Jones, "Judges judged," etc.; "the new returna brevium:" "Exam. Legg. Angl." c. 13: Lechford, " Plaine dealing," p. 25. ' These manors were created under the conftscatory statt. of Eliz., under "The Adventurers Act." (IT Car. i. c. 34), and under St. 1656, c. 23. Cp. St. 37 Hen. viij. c. 9; and see Kingston's case (1 Ridg. 384, 14- ROBINSON: ANTICIPATIONS 477 I pass from the courts to the attorneys, barristers, and judges. The first, not long distinguished from the second, had multiplied with the increase of business, and, on the abolition of arbitrary courts in 1641, those of them who had practised in these, and were called solicitors, flooded the Court of Chancery. There, though much of the work done by their modern representatives was then done by clerks of the court acting as the suitors' agents, they were very useful and very unpopular. The Commissioners of the Seals and Cromwell regulated both them and the clerks. 1 They tried also to regulate counsel's fees, 2 but (because these had risen naturally) without success. They did not perceive how much the Common-lawyers had strengthened their position by their action in the Rebellion. It was recommended in 1645 and 1649, and proposed in 1653, that no one practising at the bar should be a M. P. 3 That attempt to revive the Ordi- nance of 1372 would have been justified if the Lower House had sat as a law court; but, even so, had it not failed, it would have deprived the bar of those political instincts which may impair its scientific perfection, but, at least, keep it in the stream of national life. On one important point the Republicans were beyond their age. Parliament recommended Cromwell and his Council " to take some effectual advice with the judges for . . . reviving the readings in the several inns of court, and the keeping up of exercises by the students there." 4 Among the Equity judges and those of the Court of Probate and Administra- Vern. and Scr. 135), and Ormond's (St. 8 & 9 Will. iij. c. 5; 2 Bro. P. C. 256), and 2 T. R. 425, 705. They were perhaps created also by patent as in Delacherois' case (11 H. L. C. 62). They had no freehold- ers nor copyholders. 1 Earle, " Miscrocosmographie " ("and aturney"): Clar. bk. 9: Hud- son, . *. : J. Coke, "The Vindication," etc., p. 25: Orders in Beames: St. 1654, c. 44: Oglander, "Mem. of the Isle of Wight:" "Exam. Legg. Angl.," and Cock, u. s. * " Some advertisements for the new election of burgesses for the H. of C.:" J. Coke, I. c.: Clayton, "Reports and pleas of assises at Yorke," pref.: 6 Somers's Tracts, 184, 189: St. 1654, c. 44. 8 "Some advertisements," etc.: Whitelock, 430-3: 6. Somers's Tracts, 184. 4 Burton, "Diary," 1657, June 26: "Merc. Pol.," No. 309. Cp. 4 Rep. xviij., xix.: North, " Guilford," p. 22: Burnet, "Hale," etc., on " put-cases " and " mooters " : Smith, 1 Jur. Soc. Pap., 385, foil. 478 IV. THE NINETEENTH CENTURY tion there were some laymen, and there were to have been others in the county judicatures. These were not welcomed by the lawyers, 1 and, no doubt, they did some harm ; but they were " expert assessors," and also they brought public opinion to bear, as it is now brought by the Press to bear, upon jurisprudence and legal proceedings. Like the asses- sors in France and Germany, like those suggested by the Judicature Commission, and even like a jury, they gave the judicium to the lawyers' jus. That separation of duties, says Mommsen, and the tendency of pleadings to a clear issue, were the distinctive excellences of Roman Law/ 2 On the abolition of the House of Lords some of the Common Law judges, Hale, Rolle, Saint John, sat in the Commons. The practice of appointing judges " during their good be- haviour " was that of Spain and of mediaeval England, and was once, at least, adopted by Charles. Under the Common- wealth it was established, and after the Restoration it was by degrees, in the course of a century, established again. 8 Up to the time of the Great Rebellion judges had bought their places for fabulous sums, and had received in fees, bribes, and perquisites sums equally fabulous ; 4 and the in- equality of their incomes led to the conflicts of jurisdiction of which I have spoken. The Puritans struck at the root of this: they seized the notion that a law court is for the advantage of the community not a shop having the monop- oly of a certain kind of justice; they laid the foundation of the suitors' fee fund ; they had all fees paid into a public account ; they gave the j udges fixed, but handsome, salaries ; they did their best to check judicial simony. 5 1 Clayton, /. c. But see a petition against the monopoly of lawyers (British Museum iso. g. 12). and the 1st Rep. of the Judicature Com- mission, p. 14. " Hist. Rome," bk. 2, c. 8, n. 8 See Walter's case (Whitelock 11, 16: Kal. St. Pap. [Dom. Ser.], 1629-31, pp. 76-8), and Rolle's, Whitelock's, Keble's 1'Isle's, Kale's. See also 1 Sid. 2: St. 12 and 13 Will. iij. c. 2, 3: Hallam, c. 15 (compared with Macauley, c. 18): St. 1 Ann. s. 1, c. 8: 2 Ld. Raym. 747: St. 1 Geo. iij. c. 23: Blackstone in Steph. " Comm.," hk. 4, pt. 1, c. 6. 4 As Vernon, J.; Richardson, C. B.; Caesar and Buck: Jones, "The new returna brevium," pp. 23, 30. Comm. Joiirn. 5,528; 7,670: 6 Somers's Tracts, 186, 189: Whitelock, 882, 680: Cock, "Christian Government," p. 186. U. ROBINSON: ANTICIPATIONS 479 Partly principle, and partly necessity, compelled the Puri- tans to respect scruples about oaths and affirmations. Some of the sects were too strong to be oppressed; and, again, " variers " had the countenance of public opinion as long as they were " pious," and their variations within limits. A bill drawn by the Committee of 1653 did away with promis- sory oaths on admission into universities, corporations, soci- eties, companies, and with homage and fealty, and retained only oaths on admission to public offices. This anticipation of Locke and Berkeley and Bentham and even the Victorian legislation was due partly to dissent from the doctrine of the 39th Article, and partly to a sense of the harm done by multiplying oaths. 1 But how imperfect was this tolerance! Stat. 1650, c. 27, repealing the Elizabethan statutes which enforced attendance at church, itself enforced attendance at some place of wor- ship. The favour shown to the Hebrews, as much for pecuni- ary reasons as for religious, 2 did not extend to Secularists, Friends, Socinians, Roman and Anglo-Catholics. Such as it 'was, the Restoration put an end to it, and, in spite of the efforts made in 1668 by Hale and Bridgeman, it but slowly obtained once more. Gould, J., aUowed witnesses to hold up their hands after the '45 and in 1786 : so did Wilson, J.. and the Recorder of London in 1788 ; and so in 1791, after some demur, did Lord Kenyon. 3 The philosophical views contained in the Report of the Oaths Commission, and more fully in Mr. Denman's bill, hardly existed under the Com- monwealth. 4 1 Cp. 6 Somers's Tracts, 181, with Bps. Burnet and Tomline on the 39th Article, and with St. 17 & 18 Viet. c. 71, 43, 44. And see "Hudibras," 1, 2, 1112, and 2, 2, and "The Lady's answer to the Knight," 183, and Grey; "Exam. legg. Angl.:" Sanderson, " de Jur. Prom. Obi.," s. f. 2 Brett, "Narrative of the proceedings of a great council of Jews:" Dury, "A case of conscience:" "A narrative of the late proceedings at Whitehall concerning the Jews:" Ben Israel, " Vindiciae Judaeorum:" Lingard, vol. 8, c. 7: Hallam, c. 11: Carlyle, "Cromwell," pt. 9. Con- trast Kal. St. Pap. (Dom. Ser.), 1660-1, p. 366. There were, of course, undisguised Jews in England before Cromwell connived at their return [Smith, "Willet," (1634)]. 'Mildrone's Case, 1 Leach, C. L. 412: Walker's, id. ib. 498: Mee v. Reid, 1 Peake, 23. Cp. Reilly, 1 Jur. Soc. Pap. 435, foil., with Anstey, ib., 371, foil. 4 But see Cock, " Christian Govt.," p. 175. 480 IV. THE NINETEENTH CENTURY Legal proceedings and literature were in Latin or in French. The reformers demanded what Coke had advised, 1 that they should be in English. The French, they said, was " pedlar's " and " hotch-potch," the Latin " barbar- ous " and " quelque chose," and the only use of them was to give lawyers a monopoly of advocacy. 2 In 1650 and 1651, Parliament, complying with a petition from the army and with the general wish, enacted English should be the language of law, committed to the Speaker, the Commis- sioners of the Seals and the three Heads of the Common Law Courts the supervision of the translators, and pro- hibited the use of court-hand. Only the proceedings in the Admiralty Court were to remain in Latin the successor of Spanish, the predecessor of French as the diplomatic and international language. In 1651 the Upper Bench made a rule in English, and afterwards, while the Common- wealth lasted, all courts, even those of manors, recorded their proceedings in the vulgar tongue. 8 The reporters forewent the use of their " peculiar dia- lect," now under protest, evasively, and with regret, 4 now with cheerfulness, and even enthusiastically. 5 French and Latin were restored with Charles. The Wimbledon rolls were again kept (all but the returns to precepts) in the latter; cases, even those decided under the Commonwealth, appeared " in their native beauty " in the former. 6 But in ten years there was a cry for the late convenience ; 7 and in seventy years an act, bitterly opposed, almost neutralized two years *4 Rep. xx., xxi.: 1 Inst. xl., xli. (citing St. 35 Edw. iij. c. 5). * Jones, "Eight observable points of law," 4, 8; "The new ret. brev.," pp. 7, 15, 21-3; "Judges judged," etc., pp. 107, 114, 115; "Jurors judges of law and fact," pp. 4, 5, 51, 77, 79, 86: Warr, "The Corruption," etc., cc. 3, 4: Winstanly, etc., u. s., pp. 18, 19: Cock, " Christian Govt.," pp. 133-5. "Stt. 1650, c. 37; 1651, c. 4: followed up by Stt. 1654, c. 28; 1656, c. 10: Whitelock, 384, 475-83: Style, 261: Wimbledon rolls, Nos. 12-15; roll of misc. scripts; bks. 7-9: "Merc. Pol.," No. 19. Bulstr. u. s.: Noy [?], pref.: Clayton, u. s.: Hetley, pref., 26, 36. 'March, pref.: Bridgeman, pref.: Leonard by Hughes, u. . Yelverton, pref. : 2 Siderfin. T "An appendix by way of dialogue [to the 2nd part of 'The peo- ple's ancient and just liberties asserted in the proceedings against and tryals of Thomas Rudyard, Francis Moor,' etc.] " (1670): North, " Guilford," p. 22. 14* ROBINSON: ANTICIPATIONS 481 later, and productive of some bad consequences, revived the statutes of 1650 and 1651. J It is no wonder either that the Republican jurists should have desired a code, or that they should have failed to make one. The outline of a code had been partly and roughly drawn ; the need for one was urgent ; the necessary science wanting. The outline had been drawn : authorities had been published in great numbers since 1640, some for the first time writs, original (by Hughes) and judicial (by Brown- low) ; " Bracton ; " " Britton," Bishop of Hereford, or who- ever else ; " The Mirror," in French and in English ; Fitz- Herbert's " De natura brevium; " the last three parts of " The Institutes." Cases and statutes had been abridged statutes by Wingate and by Hughes ; Coke's reports by Trotman, Dyer's by Ireland, Brooke's by March; while Shepherd had abridged statutes and cases too. 2 Digests, more or less systematic, had appeared Swinburne on "Wills," Bacon on "Uses," Wingate's " Statuta Pacts," Shepherd's " Parson's Guide ; " not to speak of Lambarde's and Selden's researches, West's " Symboleography," Brown- low's " Declaration and Pleadings." All these suggested something more, and made it seemingly feasible. " It is fit," said Sir Anthony Ashley Cooper, " that laws should be plain for the people." 3 To make them plain, John Coke proposed to clear them of everything, " either properly and directly, or collaterally and obliquely, repugnant to the law of God," a method which he may have pursued in Ireland, 4 and which had been pursued in the Judaized code of New England. 6 Ten years later Bulstrode wished " to file off the rust " from the laws, and to reduce them " into a sound *Stt. 4 Geo. ii. c. 26 (see 7 C. B., 462: Willes, 601); 6 Geo. ii. c. 14, 3, 5 (cp. Noy [?], pref.): Bl. 2 " Comm.," 323: Smollett, bk. 2, c. 4, 25: J. Wesley, "The doctrine of original sin," 1, 2, 9. 2 Add " Special and selected law cases concerning persons and es- tates, collected out of the Reports and Year Books of the Common Law of Engl." (1641), and Finch's "Law" condensed by Wingate. 3 Burton, " Diary," 1657-8, Febr. 2, Rutt's note. *"The Vindication," etc., pp. 25, 26. Cp. "Exam. legg. Angl.," cc. 11; 12; 14, 13. Coke, though his "Vindication" is flattering and cowardly, was praised by Cromwell for his conduct in Ireland and died bravely [Ludlow, 123 (137), 398 (407)]. 8 Lechford, " Plaine dealing," pp. 26, 27, cited in " Exam. legg. Angl." c. 14, 3. Even then English Puritanism looked to America. 482 IV. THE NINETEENTH CENTURY and solid body : " the task would be heroic, and those who did it the founders and restorers of our laws. * Parliament, meanwhile, had been less idle than ineffectual; it appointed a Committee of Law Reform; it read the book containing the whole system of the law which that committee composed ; it ordered three hundred copies of it to be printed; and, after that, all Cromwell's persuasion could not induce it to do any more. 2 The truth is, that the Dutch or Swedish simplicity which Hugh Peters demanded 3 was possible only in the United Provinces or in Sweden, and that the reformers were exorbitant. Still codification was desired. In 1666 a committee was appointed under Clarendon to make a code, 4 and Hale's " Pleas of the Crown," and his " Analysis of the Civil [rather, of the non-criminal] Part of Our Law," are torsjos of parts of the code of the Commonwealth. On the latter, though neither exhaustive, nor free from cross-divi- sions, a system might have been built far more palatial and perfect than Blackstone's ; and, comparing those sections, of it which correspond with the " Synopsis totius Littleton analytice" (1659), we see how near the Puritans were to that Baconian " reduction and recompilation of the laws " for which we wait. Mr. Fitz-James Stephen contrasts the " Pleas of the Crown " with the " Third Institute," as a code with a digest ; and Professor Amos says that though Hale has not extended his supremacy over the whole see of the Criminal Law, he was peculiarly qualified for the Papal Chair. 5 A criminal code is easier to make than a civil, and perhaps more useful: the magistrate is never a more suc- cessful schoolmaster than when he teaches from such a text- book; and the value of a civil code to the laity was even more exaggerated under the Commonwealth than it now is. *1 Bulstr., .pref. Cp. "An experimental essay," etc. (1648). *Whitelock, 519: Carlyle, "Cromwell," Speeches 2 and 5: "A Vin- dication of the laws of Engl.," u. s. * Peters, " Legacy " (in Harris 1 " Lives," xxv., quoted by Rutt, . .) : Whitelock, 430-3, 521, 601. * Comm. Journ. 1666, Oct. 5. 6 Austin, "Lectures" (1863), vol. 1, p. cix.; vol. 3, p. 279: A. Amos, " Ruins of the time exemplified in Sir Matthew Hale's ' Hist, of the Pleas of the Crown'" (1856), pp. 1, 3: Stephen, "Criminal Law," c. 2: Bacon, " Certayne articles," . ., etc. 14. ROBINSON: ANTICIPATIONS 483 In what is commonly though too narrowly called Crim- inal Law the Republicans made few improvements. As to treason and rebellion, that necessity of preserving some con- stitution which created High Courts of Justice must answer for their proceedings. As to other crimes, reforms were planned, but (so inadequate were conceptions of the dignity and value of the individual) few of these were carried out, and some measures were proposed and contemplated which were retrogressive. In 1648 it was suggested that treason, rebellion, and murder only should be capital, and that other felonies should be punished by fines or by servitude to the person injured. 1 The Committee of 1653 proposed to dis- continue pressing to death in default of pleading, 2 to acquit (without penalty or forfeiture, pardon or deodand) justi- fiable and excusable homicides, to punish principals in man- slaughter and accessories before the fact with judgment of death without forfeiture or corruption of blood, and accessories after the fact with forfeiture and five years' imprisonment; 8 to abolish "clergy;" to repeal the law approved by Selden " of devoting to the flames those wicked baggages who stain their hands with the nefarious murder of their husbands." Then acts were passed one, embody- ing another of their proposals, against provocations to duels ; 5 one against those who encouraged others in extrav- agance ; 6 others against cockfights and horseraces. 7 But the imaginary offence of witchcraft was left criminal ; deer- killing was punished by a fine of 15 or a year's imprison- ment ; acts, sinful or vicious rather than criminal, were pun- ished; incest, adultery, and repeated fornication were pun- ished with death ; so the Committee were for making bigamy capital, and cutting off the right hand of a murderer before 1 " An experimental essay," etc. 2 6 Somers's Tracts, 234," 235: "Exam. legg. Angl." c. 11, 9. Cp. Stt. 12 Geo. iij. c. 20; 7 and 8 Geo. iv. c. 28. 3 6 Somers's Tracts, 235. 4 6 Somers's Tracts, 236: 6 Rep. pref. (quoting Caesar, 6 B. G. 19): Selden, "Janus Augl," bk. 1, c. 11. Cp. Statt. 30 Geo. iii. c. 48; 54 Geo. iii. c. 146; 9 Geo. iv. c. 31. 8 6 Somers's Tracts, 188: Statt. 1654, c. 36; 1656, c. 10. 'St. 1656, c. 26: Comm. Journ. 1650, June 7: 3 Parl. Hist. 1346. 7 Statt. 1654, cc. 2, 39: Grey's note on " Hudibras," 1, 1, 800. 484 IV. THE NINETEENTH CENTURY hanging him.' 1 In 1649 Whitelock inveighed against the inequality of punishment ; and in 1656 Cromwell repeated his invective. 2 One doctrine of Whitelock's was accepted by the Committee: it was that criminals prosecuted by counsel should be defended by counsel; that -criminals should have copies of their indictments, and that their witnesses should be heard on oath. But it seems to have been thought that criminals had already too many chances, and therefore these rights and that of appeal were denied them. 8 The law of marriage, in a country such as this, is almost the groundwork of the law of property. The variety, the occasional contempt of ceremony in which the Puritans in- dulged, the downfall of that hierarchy which had taken cog- nizance of matrimonial affairs, made legislation unavoid- ble. A form of solemnization had been prescribed by the Presbyterian Directory, but was regarded with ridicule by Churchmen, with suspicion by those who prescribed it ; others did not regard it at all. 4 The Committee of 1653 proposed a new order: it became law that year, and in 1656 ceased to be compulsory, but, as optional, was ratified. It directed three weeks' advertisement to be given in Church, chapel or market-place of intended marriages ; the parents' or guardians' consent to be obtained; the form to be a mutual agreement expressed before a justice of the peace: girls below fourteen and boys below sixteen were not to be mar- ried. 5 That statute unwittingly revived something of the practice of Christian antiquity ; then the faithful, though he might hallow his union by the benediction of the Church, yet, hating paganism, and perhaps being of the lower or- ders, would avoid anything like confarreatio, and, as a Roman citizen, would be bound by the civil contract only ; 1 Statt. 1652, c. 27 (cp. 14 " St. Tr." 639 foil., 690 foil.) ; 1651, c. 12: 6 Somers's Tracts, 190, 235, and statutes cited above, pp. 589, 590: "Exam. legg. Angl." c. 14, 29, 32. * Carlyle's " Cromwell " (speech 5) : " Exam. legg. Angl." c. 11. 8 Whitelock, 433; "Life," 109-120: 6 Somers's Tracts '235: Hutton, 133: "Directions for justices of the peace," No. 7 (prefixed to Kelyng) : Mr. Commissioner Hill, "The repression of crime" (1857), pp. 25-41. 4 St. 1645, c. 51: Grey on " Hudibras," 3, 1, 888. Cp. Nelson, " Bull," 9: Cock, "Christian Govt.," p. 52. 8 Stt. 1653, c. 6; 1656, c. 10: 6 Somers's Tracts, 179. Cp. the New Engl. law (Lechford, I.e. p. 39). U. ROBINSON: ANTICIPATIONS 485 it also anticipated our statute of 1837, and even the French codes. 1 In accordance with it, the daughter of Saint John, C. J., was married in his presence ; and in actions of debts and of ejectment marriages between Friends were held valid. But at the Restoration the greater part of these irregular rites were and had to be confirmed. 2 The statutes of 1645 and 1653 improved also on the Tudor and Stuart registra- tion system; that system did officially what private records (such as the Liber obitalis at Queen's College, Oxford) had long done; it chronicled the performance of baptisms, wed- dings, and burials. The Republican method chronicled the occurrence of the birth, the making of the marriage con- tract, but the burial not the death. 3 The statute of 1650 against incest being penal, marriages took place within degrees which it did not prohibit, though the law existing did: many of these were pronounced invalid after the Res- toration. 4 Women were deservedly influential among the Republicans ; men's extravagance was restrained by statute ; a bill intended to restrain women's, and much needed, was thrown out ; and, not to speak of other movements in their favour, the protection given under Charles II. by Hale and others to wives against their husbands. 6 That men's titles to their estates in land should be thor- oughly known had become of great importance. Many an acre had been sequestrated and brought into the market ; 1 Milman, "Latin Christianity," bk. 3, c. 5: " Manuale Ebor." and "Man. Sarisb.:" Dr. Goldingham in Bunting v. Leplngwell, Moore, 170: Chaucer. "The wife of Bathe's prologue:" Menochius, " DC- praesump- tionibus" (1595), 3. 2. 7, et 11 cc.: Dalrymple v. Dalrymple, 2 Hagg. C. R. 64, 67-70: Jurieu, "Hist-Counc. Trent," bks. 7 and 8: Stt. 6 & 7 Will. iv. c. 85 ; 10 & 11 Viet. c. 58 : Le Code. Civil, 75, 76, 165 : Le Code Penal, 199, 200. The ring is a trace of coemptio: cp. Ben- j amin, " contract of sale." 2 1 Hagg. C. R. app. 9 n.: Burnet, "Hale:" North, "GuUford:" Stt. J2 Car. ii. c. 33; 13 Car. ii. c. 11. And see St. 6 & 7 Will. iii. c. 6, 63, 64. 8 Cp. the 70th Canon with 6 Somers's Tracts, 179; Stt. 1645, c. 51; 1653, c. 6, 4, 10, 11: and these again with St. 30 Car. ii. c. 3, and the acts since 1820. St. 1653 c. 6, extended to Ireland. 4 See Harrison v. Burwell: Hill and Wife v. Good: Watkinson v. Murgatroyd; Collet v. Collet; Hinks v. Harris. Cp. Selden, " De succes- sionibus," etc., cc. 14, 15; " Uxor Ebraica," bk. 1, cc. 12-15. 8 2 Lev. 128; 1 Str. 477; 1 Sid. 113, 116: 3 Keble, 433. Cp. St. 1656, c. 26, with " Parl. Hist." 1650, June 7. 486 IV. THE NINETEENTH CENTURY the market was full of powerful capitalists. Never had registration been in greater request. As long as landed property was transferred by physical delivery, so long its transfer was notorious to those to whom it was likely to pass. 1 And though that form, like mancipatio in Rome, was aban- doned on account of its awkwardness, there was a custom of selling " book-land " at the sheriff's county court, and of recording the sale at the nearest monastery in a cartulary or in a ra. *. of the Gospels or in a " land-book," and these were sometimes placed on the Altar. Such a register, but of the house's own title, is the Liber Evidentiarum of S. Augustin's at Canterbury. 2 Analogous to these records, dating from the earliest English times, were the court rolls of manors, as those of the manor of Taunton and Taunton Deane. But now monasteries had been swept away ; the Statute of Inrol- ments did not apply to counties palatine and to many cor- porate towns, and was not regarded in one case out of an hundred. 3 How many law suits were due to the want of a land registry we know from Hobbes * and we might guess from the establishment of such institutions for soldiers' debentures, and for the sale of Church, Crown, and Royalist property. 6 There were even proposals for county regis- teries: sales not recorded in them within a certain time were to be void ; land, the sale of which was so recorded, was not 1 1st Rep. of the Registration and Conveyancing Comm. (1850) pp. 3, 4; app. 6; Rep. of the Registration of Title Comm. (1857), p. 2; Steph. "Comm." 2, 1, 17, 20: Williams, 1 Jur. Soc. Pap. 45; 2, 589; Ludlow, 6. 2, 140. * Hickes to Shower, " Dissertatio epistolaris," p. 9 (1703) Brit. Mus. Arundel Mss. 310. The inventories or " stars," perhaps the same as ghetarim, which Richard I. made the Hebrews keep of their debts, mort- gages, lands, houses, revenues and possessions, were rather part of an apparatus for extortion than registers of title. See Roger of Hoveden, " Annales," pars post., Riv. prim., capitula de Judaeis; Selden, "Of the Jews sometimes living in Engl.: "Du Cange," sv. " star rum:" Steph. " Comm." 6, 14, 3, n. * Sanders, 2 Uses, 66 : Pierrepoint, " A treatise concerning registers," etc. (c. 1660). Was he the Protector's friend (as to whom see Carlyle, " Cromwell ") ? * " A dialogue between a philosopher and a student of the Common Laws of Engl." (of Courts): "Exam. legg. Angl." c. 14, 35: Cock, "Christian Govt." p. 171: Grey on 3 " Hudibras," 1, 1519, 1520. 8 Stt. 1646, c. 66; 1647, c. 75; 1648, c. 113; 1649, cc. 24, 42, 76; 1650, CC. 29, 30, 47; 1651, c. 10; 1652, cc. 6, 16, 23, 31; 1653, c. 10. U. ROBINSON: ANTICIPATIONS 487 to be subject to any incumbrance. But, because the Com- mittee could not, after trying for three months, settle what an incumbrance was, the proposal fell to the ground, and registration was left permissive, that is, nugatory. " The English people," said Cromwell, " will take Ireland, which is as a clean paper in that particular, for a precedent ; and when they see at how easy and cheap a rate property is there preserved, they will never permit themselves to be cheated and abused as they now are." 1 And yet the advocates of registration had not wholly failed. The Bedford Level was a creation of the Republicans; to them it owes its regis- tration system : 2 to them also are due, however remotely, the acts for Yorkshire, and Kingston, and Middlesex, the Victorian legislation for Ireland, the permissive statutes of 1862. 3 Pierrepoint objected to their schemes, the injustice done to persons nominally entitled, and the expense. 4 Hale was on the other side. 5 But a student of the history of land registries in England may well doubt whether any one interested in land desires them. As Hale said, every feature of the title must be inrolled, " as well for the time past as for the time to come; otherwise the plaister is too narrow for the sore . . . for, if any one leak be left unstopped, the vessel will sink as if more were open." The. law of personal property was at this time more im- portant than that of real. Personal property, when em- ployed in agriculture, had still a far higher relative value than it now has ; 6 and commerce was on the rapid increase. Cases like Twyne's 7 of mercantile immorality, connoting 7 Comm. Journ. 67, 100, etc.: Ludlow, 123 (137), 165 (184), 398 (407) St. 1653, c. 10. Cp. G. Smith, " Irish Hist, and Irish Character," .f. 2 Statt. 1649, c. 29; 1654, c. 20 (cp. c. 57); 1650, c. 10; 15 Car. ii. c. 17 (cp. 10 Sim. 127) : Dugdale, " Hist, of Imbanking," etc., cc. 32-41, 54 (1662): Carlyle "Cromwell." ' With St. 25 and 26 Viet. c. 53 cp. Bradish v. Ellames 10 Jur. (N. S.) * " A treatise," etc. u. s. 8 " A treatise showing how useful . . . the enrolling a.nd registering of all conveyances of lands may be," etc. Cp. Philpot, " Reasons and pro- posals for a registry," etc. (1671); Adam Smith, " W. of N.," book 5, c. 2, pt. 2, app. to articles 1, 2: Mill, "Pol. EC." bk 5, c. 8, 3. Prof. Rogers, "The laws affecting landed property" (1869), p. 11. 7 3 Rep. 82 (" quaeritur ut crescant tot magna volumina legis: in promptu caussa est; crescit in orbe dolus"). , 488 IV. THE NINETEENTH CENTURY mercantile enterprise, complicating law which otherwise might have been as simple as the Swedish ; a the growth of banking; 2 the fact that the Jacobean and Caroline exac- tions were so long borne; the evidences of Bacon, Mun, and Clarendon 8 all convince us of this. One result of that increase was that the mantle of Equity thrown by Ellesmere over the mortgagor was taken from him. Another was that debts, hitherto assignable by and to the Crown only, were made assignable by and to any one; hence that development of the law as to bills of exchange (especially necessary to commercial intercourse when the exportation of the precious metals was prohibited) which had taken place in Spain, took place in England. 4 Then, besides the minor courts of which I have spoken, means were proposed of recovering small debts and debts due from corporations. 5 Again, notwith- standing the jealousy of monopolies, inventors received patent rights, even if they did not come within the statute of James. 6 The Statute of Fraudulent Devises was fore- stalled; and even that of Frauds and Perjuries, suggested by Hale to Nottingham, brought in by him, enlarged and revised by Guildford and Jenkins, may well have been planned by the Committee of 1653. 7 Lastly, bankruptcy acts protected the unfortunate and sent the dishonest to be tried by a jury; imprisonment for debt, though no .doubt unnecessarily cruel, and bitterly attacked, particularly by prisoners, was well and successfully defended. 8 The frequency of sales of confiscated land, the unwilling- 1 Whitelock, 430-32; 601. "Exam. legg. Angl." c. 14, 39: Clar. "Life," 3, 7: St 22 and 23 Car. ij. c. 3, 2. 'Bacon, "Advice to Sir G. Villiers" (1615-16): Mun. " Engl. treas- ure by foreign trade" (c. 1625): Clar. bk. 1. 4 Breverton's Case, Dyer, 30 b.: Rolle, " Abr." (action sur case [V] 60, 61): Stt. 1646, c. 65; 1649, c. 24 (Scobell [1658], pt. 2, pp. 23, 28): 6 Somers's Tracts, 187. But see Mayor, "Baker's 'Saint John's Coll., Cambr.' p. 383." 6 Somers's Tracts, 184, 187. "Stt. 1650, c. 39; 1651, c. 2. 7 6 Somers's Tracts, 186: St. 1654, c. 25. Cp. Stt. 29 Car. ii. c. 3; 3 & 4 W. .& M. c. 14: and see Benjamin, "Contracts of Sale," bk. 1, pt. 2, c. 1 (where read 5 East, 17, and Wynne, "Jenkins," I, liij.) ; Gilbert, 171. Statt. 1653, c. 13; 1654, c. 41: Jones, "The new ret. brev." p. 11; "The peace of justice" p. *.; "Judges judged," etc.; "The crie of bloud ; " " Every man's case," etc. : petition to Cromwell from the pris- oners in the Fleet against oppression [Brit. Mus. '^LUTI: "Reasons U. ROBINSON: ANTICIPATIONS 489 ness of purchasers to take a parliamentary title, the outcry against feudal and manorial rights, drew men's eyes to the law of realty. " It were convenient," wrote an essayist in 1648, " that there might be no estate but absolute, for life or inheritance, without conditions and entayles, whether given by will or purchased by deed in writing ; and this would shorten all suits about estates." Such a change, though considered, was never brought about, 1 and another proposal of the es- sayist, that all customs should be assimilated, was rejected, even as to the customs affecting the inheritance of the land. But every temptation and security was offered to purchasers. 2 James had consented to the sacrifice of many feudal inci- dents on condition of being repaid by fee farm rents. Gus- tavus Adolphus had abolished purveyance in Sweden; the Republicans abolished it in England, and, with it, billet and free quarter. They put an end to the Courts of Wards and Liveries, to wardships, liveries, primer seisin, ouster-le-main, and charges incident to these, to homage, to fines, licenses, and seizures for alienation of lands held by tenure in chief; they turned into common socage all higher tenures. The profits to the State from these were replaced by a real land- tax, itself replaced after the Restoration by an increase of the Republican excise. 3 Then it was proposed to take away fines and recoveries, and to compel by simple means the pay- ment of rent. 4 Trusteeship to preserve contingent remain- ders was invented to evade the confiscatory acts ; as from ' the statutes against Romanists so much else in conveyancing flowed. 5 It would have been rash to disregard the claims of " the common people," as the copyholders (in opposition for the continuance of the process of arrests," etc. (c. 1651). Hugh Peters's " Good work for a good magistrate " was answered by Vaughan [Jones, "The crie of bloud," A 2]. 1 " An experimental essay," etc., . *. Cp. 6 Somers's Tracts, 182: " Exam. legg. Angl." c. 11, 22, 23. 1 Stt. 1642, c. 4; 1646, c. 67; 164T, c. 124; 1648, c. 122; etc. 8 Bacon, "Works," ed. Spedding, vol. 10, pp. 178 foil., 266 foil., 304, 305: Stt. 1643, c. 19; 1645, c. 59; 1646, Feb. 24; 1647, c. 92; 1649, c. 25; 1652, c. 14; 1654, c. 9 (abolishing wardship, etc., in Scotland); 1656, cc. 4, 7, 10, 25 St. 1656, c. 4, especially: 1 Bl. " Comm." 288,319. Cp. the Statt. of 12, 13, 14, and 15 Car. ii. * 6 Somers's Tracts, 182, 183. 8 Williams, 1 Jur. Soc. Pap. 54, 55: Davidson, "Precedents," intr. c. 1: Prof. Rogers, u. s. pp. 9, 10. 490 IV. THE NINETEENTH CENTURY to the gentry and the freeholders) were then and long after- wards called, 1 for these had been led to think that the suc- cess of the Parliament would relieve them of their " Nor- man " lords. 2 Accordingly, it was proposed to ascertain arbitrary fines upon the descent and alienation of copyholds, and to place the conditions of the tenure beyond the dis- cretion of the homage. 3 Many copyholds were actually enfranchised; but many, even of those confiscated, were still demised by copy of court roll and not otherwise. Com- monable rights were not so far recognized that commoners were allowed to break up common land. 4 The allotment system instituted under Henry VII, carried out under his grandchildren, recommended by Bacon, but already decay- ing, was partly restored, and there were fewer " silly " cot- tages. 6 But, after the Restoration, Parliament continuing to the greater tenures the relief afforded to them under the Re- public, but substituting an excise for a land-tax, left the lesser tenures exposed to the old abuses. That, as North says, " was somewhat unequal." ( What would have been the economical effect of these changes ? Would Coke's copyholder, 7 if his land, enfran- chised during the Commonwealth, had not been reinstated at the Restoration, have escaped being bought up by cap- italists? Would a land registry have preserved or aided "to extinguish a peasant proprietary? Would the annihila- tion of equities of redemption have favoured any but the rich? 1 Winstanly, Barker and Star, u. s. : Foote, " The Mayor of Garratt," 2, 1. Sheridan, " A trip to Scarborough," 5, 2. 1 Winstanly, etc., u. s. Cp. Cock, " Engl. Law," p. 48 ; Thierry, u. s. Absurd as it was to call the Royalists " Norman," still in that party were probably most of the lords of manors. Lambert was Lord of the Manor of Wimbledon during the Commonwealth. 8 6 Somers's Tracts, 183: "Exam. legg. Angl." c. 14, 36. 'Winstanly, etc., u. s.: St. 1646-7, c. 72: Cock, "Christian Govt." p. 174. 5 Bacon essay "of the true greatness of kingdoms and estates;" "Henry VII.;" speech of naturalization (1607): "An experimental essay," etc., u. s.: "The Fall Mall Gazette," No. 1286. North, " Guilford," pp. 23, 24, 140, 241. Contrast Cock, " Christian Govt." p. 170. * Co. Cop. in Williams, " Real Property," pt. 3. U. ROBINSON: ANTICIPATIONS 491 If we contrast the legislation of the Commonwealth with that of Frederick the Great, or with that of the French Revolutionists, or even with our legislation for India, we are struck by its poverty of principle, by its abundance of anomalies. How shall we account for this? The English had more learning than thought. They were not sufficiently nor critically acquainted either with Roman Law or with Comparative Nomology. They were illuminated, not by Philosophy, but by a misconception of what had been the religion of the Hebrews. They were slightly instructed in Philology (as opposed to Latin Literature), still more slightly in Natural Scienqe, Political Economy, and other sciences and quasi-sciences ancillary to jurisprudence. They had chaos before them, and they had not, except in Ireland, " a clean paper " to work upon. Such a fair field lay in Prussia, 1 in France, in India, and lies in Russia now. We in England have the materials which they had, but better digested ; we have those sciences. Philology has redeemed Law from barbarism 2 ; Political Economy and Natural Science have supplied it with principles. No solicitor-gen- eral and chief justice would propose John Coke's theocratic reform of our statutes and leading cases. Not an Hale only, but ordinary students in our universities, read Roman Law by the light of Roman History and the History of Philos- ophy. 3 We look at the systems of the Hebrews, the Spaniards, the Dutch, the Swedes, not with the contracted vision of the Republicans, but comprehensively, as critics should. And yet I mean, and therefore we cannot sneer with Black- stone at the crude and abortive schemes for amending the laws devised in the times of confusion. 'See Carlyle, "Frederick," 11, 1; 16, 1, 2, 4, 8. *Cp. " praebendarius, qui praebet ' auxilium episcopo" [E. Coke], " qui praebendam suscipit" [Du Cange] : and see Hamilton, "Discus- sions," (1853), pp. 344, 345: Phillimore. "Roman Law," pt. 1, c. 1: Doellinger, " Universities past and present." * Burnet, "Hale," pp. 17, 18: cp. Leibnitz, "New methods of teach- ing and learning law" (1667), and "Plan for rearranging the Corpus Juris" (1668); and see the lines beginning, "In Institutis comparo vos brutis," quoted by Lord Westbury, 1 Jur. Soc. Pap. 6 ; Phillimore, /. c., pt. 2, c. 4: Gueterbock, " Bracton," c. 7. 15. BENTHAM'S INFLUENCE IN THE REFORMS OF THE NINETEENTH CENTURY 1 BY JOHN FORREST DILLON 2 "TT>ENTHAM'S theories upon legal subjects have had a J * " degree of practical influence upon the legislation " of his own and various other countries comparable only to " those of Adam Smith and his successors upon commerce." Such is the opinion of Sir James Stephen concerning the in- fluence and effect of Bentham's legal writings and labors. 3 As late as 1874 Sir Henry Maine went so far as to declare: " I do not know a single law reform effected since Ben- " tham's day which cannot be traced to his influence ; but a " still more startling proof of the clearing of the brain pro- " duced by this system [the system of Hobbes, Bentham, and "Austin], even in an earlier stage, may be found in " Hobbes. In his * Dialogue of the Common Laws,' he argues " for a fusion of law and equity, a registration of titles to " land, and a systematic penal code, three measures which we are on the eve of seeing carried out at this moment." ' 1 These passages are taken from " The Laws and Jurisprudence of England and America," 1894, being lectures delivered at Yale Univer- sity; (Boston: Little, Brown, & Co.), Lecture XII, pp. 316-347; the author has revised them for this Collection. 'Member of the New York Bar. M. D. Iowa University; admitted to the Iowa Bar, 1852; judge of the seventh judicial circuit of Iowa, 1858-1863; judge of the Supreme Court of Iowa, 1863-1869; judge of the United States Circuit Court for the eighth judicial district, 1869- 1879; professor of law in Columbia University, 1879-1882; former Presi- dent of the American Bar Association. Other Publications: Law of Municipal Corporations, 1872; Law of Removal of Causes from State to Federal Courts, 1877; Law of Munic- ipal Bonds, 1876; Life, Character, and Judicial Services of Chief Justice Marshall. * Sir James FitzJames Stephen, " History of Criminal Law of Eng- land," London, 1883, vol. ii., chap, xxi., p. 216. * Early History of Institutions, Lecture XIII. Others also, well 492 15. DILLON: INFLUENCE OF BENTHAM 493 Opposite views are entertained by others. It is worth while, therefore, to essay to define Bentham's place in the history of our law, and to attempt an estimate of the character and influence of his writings ; and such is the purpose of this hour. Bentham's fertile and active mind embraced in the scope of its operations many other subjects than those of law and legislation, such as ethics, political economy, polit- ical reform, and even practical politics. Nevertheless, his principal attention was given to the English law and to the mode by which its improvement could best be effected; and this lecture will be restricted to his writings and labors con- cerning English law and the method of reforming or amending it. It is essential to a correct view of the character and value of Bentham's labors to bear in mind the period of time covered thereby, and also the condition of the English law especially as it existed when his efforts for its improve- ment were begun. 1 Jeremy Bentham was born in London in 1748. In 1763, at the early age of sixteen, he was graduated with honors at Oxford. He was in due time called to the English bar. His first work, the Fragment on Government, qualified to judge, have assigned to Bentham a place in the foremost rank of men of extraordinary intellectual endowments. I subjoin an extract giving Macaulay's judgment. He is by no means a partial witness: he was a Whig of the Whigs; Bentham, a Radical of the Radicals. If there was anything that a Whig hated more than a Tory, it was a Radical. Macaulay had in Bentham's lifetime attacked with fierceness and rancor the Benthamic notions of politics. Yet within a few months after the death of Bentham, in reviewing (July, 1832) Dumont's " Mirabeau," Macaulay thus expresses his opinion of Ben- tham's character and labors: "Of Mr. Bentham," he says, "we would at all times speak with the reverence which is due to a great original thinker and to a sincere and ardent friend of the human race. In some of the highest departments in which the human intellect can exert itself he has not left his equal or his second behind him. From his contemporaries he has had, according to the usual lot, more or less than justice. He has had blind flatterers and blind detractors, flat- terers who could see nothing but perfection in his style; detractors who could see nothing but nonsense in his matter. He will now have his judges. Posterity will pronounce its calm and impartial decision; and that decision will, we firmly believe, place in the same rank with Galileo and with Locke the man who found jurisprudence a gibberish and left it a science." (A general truth, rather too strongly expressed.) See below for opinions of Brougham and others concerning Bentham's writings and labors. 1 See ante Lecture XI. 494 IV. THE NINETEENTH CENTURY being a criticism on a portion of Blackstone's Commentaries, was published (anonymously) in 1776; his attack on Usury Laws in 1787; his Panopticon in 1791; his protest against Law Taxes in 1796; his great work (Dumont's Edition, in Paris) on Legislation, Civil and Criminal, in 1802; on Codification in 1817; on Rewards and Punishments (Du- mont's Edition) in 1818; on Judicial Evidence, in Paris, in 1823, English translation thereof in 1825, and from original English manuscripts, edited by John Stuart Mill, in 1827. I omit in this enumeration, as not essential to my present purpose, some minor works concerning law or legislation, and many important writings relating to education, prison discipline, political reforms, morals, and kindred subjects. Bentham was, broadly speaking, contemporary with what may be styled the legal reign of Eldon. Tke common law in its substance and procedure was by everybody in England regarded with a veneration superstitious to the verge of idolatry. It was declared, and generally believed to be, " the perfection of reason." Lord Eldon and the Court of Chan- cery, with its suitorcide delays, " pressed heavily on man- kind." Imprisonment for debt, and distress for rent with all its harsh and oppressive incidents, were in unabated force. The criminal law, defective and excessively technical, abound- ing with capricious and cruel punishments, and which de- nounced the penalty of death on about two hundred offences, remained in a state which no one any longer hesitates to pronounce outrageous and shocking. 1 It was on this system that Bentham, when he was under thirty years of age, solitary and alone, commenced the attack which he inces- santly continued until his death in 1832, at the age of eighty-four. He was a multiform man ; but it is as a law re- former that he stands the most conspicuous and pre-eminent. He had all the personal qualities of a reformer, deep- hearted sincerity, unbounded faith in his own powers and self-sufficiency, unwearied zeal, and dauntless moral courage. 2 One who should not bear in mind the peculiar aversion of the English people to innovation, the inveterate conservatism of the bar, and the awe and reverence with which they re- x See post Lecture XITI. See ante Lecture VI., p. 180. 15. DILLON: INFLUENCE OF BENTHAM 495 garded the existing system, might suppose that the work of amendment would readily follow when the defects were pointed out. But Bentham's voice for nearly fifty years, so far as England was concerned, was like that of one crying in the wilderness. Parliament did not heed it; the bar did not heed it; nobody heeded it. For quite twenty-five years he seems to have had no. following beyond Mill, senior, and a few other personal friends. Happily for him he had a competence and was able to give his days and nights to the work to which he had resolved to consecrate his life. Hap- pily, perhaps, also, he had no domestic cares or distractions, being without wife or children. Bowring preserves an af- fecting letter from which it appears that at one time in his earlier life a lady had engaged his affections and rejected his proposals. In a letter written long, long years after- wards to the lady herself, the Recluse says : " I am alive, " more than two months advanced in my eightieth year, " more lively than when you presented me in ceremony " with the flower in Green Lane. Since that day not a " single one has passed in which you have not engrossed " more of my thoughts than I could have wished." He concludes: "I have a ring with some snow-white hair in " it and my profile, which everybody says is like ; at my " death you will have such another ; " and then playfully, perhaps pathetically, adds, " Should you come to want, it " will be worth a good sovereign to you." There is in this a genuine touch of nature! Alike in peasant, prince, poet, and philosopher, the human heart, once truly touched by love, becomes thence like the ocean, rest- less and insurgent evermore. Amid all his engrossing pur- suits, in which he wholly shut himself out from society, and indeed from every person but a few friends whom he would occasionally meet when the toil of the day was over, the vision and the memory of the giver of the flower in Green Lane, pushing aside for the while Codes, Panopticons, Chrestomathias, Pannomions, and all such, were, he con- fesses, present to him every day. But although " along the " plains, where Passionate Discord rears eternal Babel, the "holy stream of wedded happiness glides on," it glided 496 IV. THE NINETEENTH CENTURY not on for him, but passed him by irreversibly. One so thoroughly absorbed in work which he regarded as so press- ing and so important to the world, would have made, it is to be feared, a poor husband, just in proportion as he was a devoted philosopher. Doubtless she judged wisely. It was well for her, and perhaps well for him, that he never saluted the woman who gave him the flower in Green Lane with the tender and sacred name of wife. In forming a judgment of Bentham's work and of the way he did it and of the efficiency of that way, it is almost as essential to see how he regarded the English law as it is to inquire precisely how far his opinions were correct. Bentham's voluminous writings leave no doubt as to his views concerning English law. There was" no health in it. Admitting, as he did, that the legislative enactments and the reports of adjudged cases contained more valuable materials for the construction of a system of laws than any other nation in the world possessed, 1 he yet maintained that the existing law, so far from being the perfection of human reason or the product of matured experience, was (to use his own language) but " a fathomless and boundless chaos, " made up of fiction, tautology, technicality, and inconsis- " tency, and the administrative part of it a system of exquis- " itely contrived chicanery, which maximizes delay and denial " of justice." Thus viewing it, he saw no remedy but its overthrow and destruction as a system, and rebuilding it anew, using old materials as far as they were useful and no farther. He regarded the whole system, as I have often thought, with much the same feeling that the French people contemporaneously looked upon the Bastille, as a monument of feudalism, oppression, and injustice, fit only to be de- stroyed. Blackstone, on the other hand, viewing the system with the optimistic eyes of the age in which he wrote, com- pared it, in his inimitable style, to " an old Gothic castle, " erected in the days of chivalry, but fitted up for a modern " inhabitant. The moated ramparts, the embattled towers, *' and the trophied halls are magnificent and venerable, but " useless, and therefore neglected. The inferior apart- See ante Lecture VI., p. 174; Lecture X., p. 270. 15. DILLON: INFLUENCE OF BENTHAM 497 " ments, now accommodated to daily use, are cheerful and " commodious, though their approaches may be winding and " difficult." 1 What could be more charming, what more de- sirable! All the interest and grandeur that attach to a structure at once imposing, venerable, and historic, combined with the convenience that results from its being already fitted to the amplest modern uses, the only defect being, if, indeed, it is such, that the approaches may be (he does not feel quite sure that they are) somewhat winding and difficult. Bentham's claims upon our regard will not be duly valued unless we keep ever in mind the difficulties which he was called upon to face. He stood alone. For more than twenty- five years he stood absolutely alone. But like Milton (whose London house it was Bentham's pride to own, although it was one of his peculiarities that he utterly disesteemed poetry), like Milton in his blindness, through all neglect and discouragements, Bentham " bated not a jot of heart " or hope, but still bore up and steered right onward." I have not the time, if I had the power, adequately to present a picture of the obstacles Bentham met with. And yet I must not pass these entirely over, as they are the background of any portraiture of the man and his work. There was the traditional, constitutional, ingrained aversion of the English people to innovation, combined with their idolatrous regard for the existing order of things. 2 It is worth while to illustrate this. Burke was undoubtedly the most enlightened statesman of his age, one of the pro- foundest political thinkers and philosophers of any age. In one of his greatest speeches 3 he thus expressed in his felici- tous way the traditional and habitual regard of the English mind for the established Constitution and for ancient acts of Parliament : " I do not dare to rub off a particle of the venerable " rust that rather adorns and preserves than destroys the " metal. It would be a profanation to touch with a tool *3 Black. Com., 268; 2 Dillon, "Municipal Corporations" (4th ed.) 934, a, and note. * See ante Lecture XI. 'Conciliation with America, 1775. 498 IV. THE NINETEENTH CENTURY " the stones. I would not violate with modern polish the " ingenuous and noble roughness of these truly constitu- " tional materials. Tampering is the odious vice of restless " and unstable minds. I put my foot in the tracks of our " forefathers, where I can neither wander nor stumble. " What the law has said, I say. In all things else I am " silent. I have no organ but for her words. If this be " not ingenious, I am sure it is safe." Again, in 1791, speaking of the English Constitution, Burke says : % "We ought to understand this admired Constitution (of " England) according to our measure, combining admiration " with knowledge if we can, and to venerate even where we " are not able presently to comprehend." J Than this nothing can be more opposed to Bentham's mode of thought, since he would take nothing for granted, and would not, he said, admit murder or arson or any other act to be wrong unless it could be shown by reasoning to be so. I find in Henry Crabb Robinson's Diary 2 another contemporary illustration of the difficulty of attacking things established, so pertinent that it will excuse its irreverence. He relates that in 1788 a deputation of distin- guished men waited on Lord Chancellor Thurlow to secure his support in their attempt to obtain the repeal of the Cor- poration and Test Act. The Chancellor received them very civilly, and then said : " Gentlemen, I'm against you, by " G . I am for the Established Church, d me ! Not " that I have any more regard for the Established Church " than for any other church, but because it is established. " And if you can get your d d religion established, I'll be " for that too ! " This national peculiarity, as well as the natural conservatism of the bar, had been greatly intensified by the French Revolution. As late as 1808 Sir Samuel Romilly, speaking of his own parliamentary labors and dis- couraging experience, says : " If any person be desirous of " having an adequate idea of the mischievous effects which 1 Appeal from the New to the Old Whigs. Burke's Works, vol. iv., p. 213 (Little, Brown, & Co.'s Ed.). . 'Vol. i., chap, xv., American Ed., p. 243. 15. DILLON: INFLUENCE OF BENTHAM 499 " have been produced in this country by the French Revolu- " tion and all its attendant horrors, he should attempt some " legislative reform on humane and liberal principles. He " will then find, not only what a stupid dread of innovation, " but what a savage spirit it has infused into the minds of " many of his countrymen." * Eldon' was for a quarter of a century Lord Chancellor. It is certain that he never originated a reform act; and if he ever favored an act which could be fairly said to have been intended to amend the law, I do not recall it. It was difficult and almost impossible to pass any act which Eldon disapproved. He considered the existing system as perfect ; or if not, that if the least innovation were favored or al- lowed no one could tell where it would stop, and therefore the true course was to destroy all innovation in the egg. He was " accused by Bentham of nipping in the bud the " spread of improvement over the habitable globe." 2 And yet I love old Eldon. He could not help his impenetrable and incorrigible conservatism. He was sincere and immova- ble in his sincerity. If he was true to his party and " never ratted," he was also true to his heart and conscience and sense of duty. No breath of suspicion ever rested upon him or the absolute purity of his court. What a great advance had been made from the time of Bacon to the time of Eldon. Eldon had, moreover, the qualities of a great judge. He loved right. He hated wrong. He appreciated argu- ments of counsel and freely heard them. He was deeply learned in his profession. His judgment was sure-footed. His love of justice was so great, his sense of the fearful responsibility attaching to the exercise of judicial power so 1 " Life of Sir Samuel Romilly," edited by his sons, vol. i., Diary, June, 1808. See also his beautifully written Letters to C., letter iii., September, 1807, in same volume, 3d ed., London, 1842, p. 537. 2 Townsend, " Lives of Twelve Eminent Judges," vol. ii., chap, x., p. 455, London, 1846. Bowring says that Bentham hated Eldon as much as it was possible to his benevolent nature to hate, considered him the mightiest and most mischievous T>f all the opponents of law reform ; and he calls him, in another place, the Lord of Doubts. Defective as the laws were, they were doubtless in a vastly better condition than they would have been if Bentham could have subjected them to the full op- eration of his radical, and to a large extent impracticable views, which, however, were never favored in their full scope and details by such con- servative reformers as Brougham, Romilly, and Bickersteth. 500 IV. THE NINETEENTH CENTURY keen, that he habitually hesitated and doubted; but his doubts and hesitations all had their origin in the dread of doing injustice, and a noble anxiety to know and to do the right. If he vigorously resisted amendment or change in our law, he as vigorously protected and conserved existing excellences and merits. Again I say I love old Eldon! With all his ultra-conservatism and dubitations, *his only defects, I love his sturdy, genuine, honest nature. I have said this that you might not conceive an undue bias against Eldon from what Sydney Smith, Bentham and other Whigs have said of him and his court. The libel laws even were in Bentham's way. Not to men- tion other instances, as late as 1811 there was difficulty in obtaining a publisher for the " Introduction to the Rationale of Evidence." More than one bookseller declined, giving as a reason that the book was libellous. The " Elements of the Art of Packing," which lay six years printed but unpublished, had alarmed the " trade," and it never was fully published until after Bentham's death. But Bentham kept right on. At length he began to attract the attention of a few gifted minds. One of the earliest of these was Sir Samuel Romilly, who of all English lawyers is, as I think, the one that nearest approaches a perfect model. 1 1 Romilly was the means of rendering Bentham what turned out to be a most signal service. About 1788, when Bentham was forty years of age, Romilly sent to Genevese Dumont some of Bentham's writings. They greatly impressed this gifted man with their originality and value. Dumont gave a large portion of his life to the redaction and translating into French some of the most important of Bentham's works. But this required years. On April 5, 1791, Romilly writes to Dumont: "Ben- tham leads the same kind of life as usual at Hendon, seeing nobody, reading nothing, and writing books which nobody reads." In 1802 Du- mont's French edition of Bentham's treatise on " Legislation Civil and Criminal " appeared, and was translated into Spanish, Russian and Italian; in 1811 "Rewards and Punishments," and in 1823 "Judicial Evidence," thus treated and translated by Dumont, were published in Paris. This gave Bentham a European reputation, and quickened his tardy appreciation at home. In the history of letters there is nothing more remarkable than the relation between Dumont and Bentham. Ma- caulay's account of the services rendered by Dumont is as interesting as it is, generally speaking, accurate. Of the character and value of Dumont's labors the great reviewer remarks: " They can be fully appreciated only by those who have studied Mr. Bentham's works, both in their rude and in their finished state. The difference, both for show and for use, is as great as the difference be- tween a lump of golden ore and a rouleau of sovereigns fresh from the 16. DILLON: INFLUENCE OF BENTHAM 501 Romilly excepted, no persons in England of distinction or official influence acknowledged adhesion to Bentham's doc- trines until the early part of the present century. Among the most eminent of these was Mill, senior, the father of the still more eminent John Stuart Mill. Mill, the father, aftd his family were for years members of Bentham's house- hold ; and Mill was one of the ablest exponents and advocates of Bentham's doctrines. Afterwards came Bickersteth (sub- sequently Lord Langdale, Master of the Rolls), who was the well-beloved disciple ; for not long before the master's death he received his benediction in these words : " Of all my " friends, Bickersteth was the most cordial to law reform " to its utmost extent." Then came Brougham and Sir James Mackintosh, and at a later period others. Romilly, Langdale, Brougham, and Mackintosh each held seats in Parliament; and their efforts for the reform of the laws, civil and criminal, and the slow, tedious, and piecemeal process by which such reforms were accomplished, are known to history, and need not be related here, even if time there mint. . . . Never was there a literary partnership so fortunate as that of Mr. Bentham and M. Dumont. The raw material which Mr. Ben- tham furnished was most precious; but it was unmarketable. He was, assuredly, at once a great logician and a great rhetorician. But the effect of his logic was injured by a vicious arrangement, and the effect of his rhetoric by a vicious style. His mind was vigorous, comprehen- sive, subtle, fertile of argument, fertile of illustrations. But he spoke in an unknown tongue; and, that the congregation might be edified, it was necessary that some brother having the gift of interpretation should expound the invaluable jargon. His oracles were of high import; but they were traced on leaves and flung loose to the wind. . . . M. Dumont was admirably qualified to supply what was wanting in Mr. Bentham. In the qualities in which the French writers surpass those of all other nations neatness, clearness, precision, condensation he surpassed all French writers. If M. Dumont had never been born, Mr. Bentham would still have been a very great man; but he would have been great to himself alone. The fertility of his mind would have resembled the fertility of those vast American wildernesses in which blossoms and de- cays a rich but unprofitable vegetation, ' wherewith the reaper filleth not his hand, neither he that bindeth up the sheaves his bosom,' . . . Many persons have attempted to interpret between this powerful mind and the public. But in our opinion M. Dumont alone has succeeded. It is re- markable that in foreign countries, where Mr. Bentham's works are known solely through the medium of the French version, his merit is almost universally acknowledged. Indeed, what was said of Bacon's philosophy may be said of Bentham's. It was in little repute among us till judgments came in its favor from beyond sea, and convinced us, to our shame, that we had been abusing and laughing at- one of the greatest men of the age." Essay on Mirabeau, July, 1832. 502 IV. THE NINETEENTH CENTURY were. Lord Brougham thus excellently states the grounds of Bentham's title to distinction and to our regard: " The age of law reform and the age of Jeremy Bentham " are one and the same. No one before him had ever " seriously thought of exposing the defects in our English " system of jurisprudence. He it was who first made the " mighty step of trying the whole provisions of our juris- " prudence by the test of expediency, fearlessly examining " how far each part was connected with the rest, and " with a yet more undaunted courage inquiring how far " even its most consistent and symmetrical arrangements " were framed according to the principles which should " pervade a code of laws, their adaptation to the circum- " stances of society, to the wants of men, and to the promo- " tion of human happiness. Not only was he pre-eminently " original among the lawyers and legal philosophers of his " own country ; he might be said to be the first legal phil- " osopher who had appeared in the world. None of the great " men before him had attempted to reduce the whole system " of jurisprudence under the dominion of fixed and general " rules ; none ever before Mr. Bentham took in the whole " departments of legislation ; none before him can be said " to have treated it as a science, and by so treating made " it one. This is his pre-eminent distinction. To this praise " he is justly entitled ; and it is as proud a title to fame as " any philosopher ever possessed." 1 1 Lord Brougham's Speeches, Edinburgh, 1838, vol. ii., p. 288, Black's Edition. Brougham and Bentham were well acquainted. In a sense Brougham was one of Bentham's disciples. Both aspired to be law re- formers. Indeed, Brougham's most useful labors in Parliament were directed towards law reform. There were, however, radical differences of opinion between Bentham and Brougham as to the best method of effecting the desired improvement. These differences naturally arose out of the difference in the situation and surroundings of the two men. Bentham, though he was regularly bred to the law and called to the bar, never pursued the profession. Bentham thus summarized his own career as a practising lawyer: " I never pleaded in public. On my be- ing called to the bar, I found a cause or two at nurse for me. My first thought was how to put them to death; and the endeavors were not, I believe, altogether without success. Not long after a case was brought to me for my opinion. I ransacked all the codes. My opinion was right according to the codes; but it was wrong according to a manuscript unseen by me and inaccessible to me, a manuscript containing the re- 15. DILLON: INFLUENCE OF BENTHAM 503 Bowring once remarked to Talleyrand, " Of all modern " writers, Bentham was the one from which most had been " stolen, and stolen without acknowledgement." True," re- plied Talleyrand ; " et pille de tout le monde, il est ton jours " riche," " and robbed by everybody, he is always rich." I have thus sought to give a notion of Bentham's intel- lectual qualities, of his times, and of the general character of his writings respecting law and legislation. This has been necessarily an outline view only. It remains to attempt, by way of summing up, a critical estimate of the value of his labors, and the nature and extent of the actual influence upon our laws and jurisprudence of his doctrines and writ- ings. If we are to form a sound judgment on this subject, we must not mistake the point of view from which to look at him. To be truly appreciated, Bentham must, as I have already said, be regarded primarily and essentially as a law reformer generally, and specially as a reformer of the then existing law of England. He was bold, courageous, and original. He was the first to expose its defects and to sug- port of I know not what opinion, said to have been delivered before I was born, and locked up, as usual, for the purpose of being kept back or produced according as occasion served." Bentham's solitary habits made him unfamiliar with practical life, and unable clearly to distinguish the attainable from the unattainable. Brougham, on the other hand, was a man of affairs, acquainted with the world of men, with the world of lawyers, with the temper of Parliament, and able to form a practical judgment concerning matters of legislation. Though a man of liberal views, and with the courage boldly to main- tain them, he had in the matter of law reform not a little of the usual conservatism of the lawyer and the prudence and tact of the legislator. Bowring records that in anticipation of Brougham's great speech on Law Reform, Bentham said: "Insincere as Brougham is, it is always worth my while to bestow a day on him. I shall try to subdue him and make something of him. I shall see whether he has any curiosity to assist in tearing the established system of procedure to rags and tat- ters." This was Bentham's notion of the heroic, the destructive nature of the remedy required. .Brougham's heralded and famous speech on the Present State of the Law, and which he entitled " Law Reform," was delivered on the seventh day of February, 1828; but the remedy pro- posed by him was to preserve the garment and patch it up, instead of " tearing it to rags and tatters." Two days afterwards Bentham thus records his disgust and disappointment: "Mr. Brougham's mountain is delivered, and behold ! a mouse. The wisdom of the reformer could not overcome the craft of the lawyer. Mr. Brougham, after all, is not the man to set up a simple, natural, and rational administration of 504 IV. THE NINETEENTH CENTURY gest the remedies required. He destroyed with his own force the professional and general superstition that the law was perfect, and by his labors and writings he was the means of at length awakening the public mind from its stupor and inertia on this subject. His merits as a critic and censor of the law as he found it in his day and in his country, it is difficult to overvalue. Blackstone, the type of the profes- sional mind of his age, regarded the English law as almost perfection itself; and he found his pleasurable function to- be to defend, to exalt, to glorify it. 1 Bentham held pre- cisely opposite views. To him the English law, instead of a, model of excellence, was a system full of delays, frauds, snares, and uncertainties; and the lawyers were its unthink- ing or interested defenders. His remedy was not to stop leaks in the roof, put in new panes of glass, and otherwise repair the rotten and dilapidated structure, but to demolish it and rebuild anew. By many he was regarded for the greater part of his life as an iconoclast, and by others as a dreamer who labored under the harmless delusion that he was justice against the entanglements and technicalities of our English law proceedings." I do not know that Brougham ever heard of this con- temptuous opinion, although of course he knew that his proposed reme- dies utterly failed to meet Bentham's views of what the case demanded. In 1838 Brougham edited an edition of his own speeches (namely, the one above cited, printed by the Messrs. Black), himself preparing his- torical introductions to the various subjects, and among others to the speech on Law Reform. In tracing the history of this movement, he gives many pages to a consideration of Bentham's personal and intel- lectual qualities, and to a critical estimate of his writings upon law, jurisprudence, and legislation. Brougham excels in biographical sketches and descriptions of this kind, and this seems to me to be one of his best. It will well reward full perusal, but I have space only for the few sentences given in the text. Mr. John Stuart Mill in a note to his article on Bentham ("Dissertations and Discussions," Am. Ed., vol. i., p. 417), commends Brougham's view of Bentham, and explains and extenuates Bentham's " unreasonable attacks on individuals, and in particular on 'Lord Brougham on the subject of Law Reforms; they were no more the effect of envy or malice, or any really unamiable qual- ity, than the freaks of a pettish child, and are scarcely a fitter sub- ject of censure or criticism." The late eminent law teacher, Professor Theodore W. Dwight, wrote me, October 24, 1890, in regard to Bentham, thus: "I am astonished at his legal genius, revere him for his kindly disposition even towards brutes, am delighted with his wit and playful repartee, and enjoy his sarcasm, of which, however, he never made use except when the occa- sion required it." 1 See ante Lecture XI. 15. DILLON: INFLUENCE OF BENTHAM 505 a benefactor of his race, while in reality he was passing his life uselessly in Utopia. l It does not essentially detract from Bentham's merits, or the regard in which posterity should hold him, that he ex- aggerated, as he doubtless did, the absurdities and defects of the system that he assailed, or that his invectives against lawyers, who as a body supported it and resisted all attempts to reform it, were extravagant and unjust. All this may well be pardoned to his honest convictions, to his lifelong labors and his disinterested zeal for the public good. Nor does it essentially detract from his just estimation that he is an illustration of Bacon's observation that " there is a super- " stition in avoiding superstition, when men think to do best " if they go farthest from the superstition formerly received." Nor does it materially diminish his fame that we cannot ac- cept all of his doctrines as sound, or all of his conclusions from doctrines whose general soundness are no longer ques- tioned. The following which I give in John Stuart Mill's own words, seems to me to set forth with judicial fairness Ben- tham's chief merits and the nature of the obligations of the world to him : " Bentham," he says, " is one of the great seminal minds 1 Sir Samuel Romilly gives this interesting account of a visit which he made in 1817 to Bentham: " Our last visit was to my old and most valuable friend, Jeremy Ben- tham, at Ford Abbey. The grandeur and stateliness of the buildings form as strange a contrast to his philosophy, as the number and spa- ciousness of the apartments, the hall, the chapel, the corridors, and the cloisters, do to the modesty and scantiness of his domestic establishment. The society we found and left with him were Mill and his family and a Mr. Place, the Charing Cross radical tailor. We found Bentham pass- ing his time, as he has always been passing it since I have known him, which is now more than thirty years, closely applying himself six or eight hours a day in writing upon laws and legislation and in compiling his Civil and Criminal Codes, and spending the remaining hours of every day in reading, or taking exercise by way of fitting himself for his labors, or, to use his own strangely-invented phraseology, taking ante-j entacular and post-prandial walks to prepare himself for his task of codification. There is something burlesque enough in this language; but it is impossible to know Bentham, and to have witnessed his benevo- lence, his disinterestedness, and the zeal with which he has devoted his whole life to the service of his fellow-creatures, without admiring and revering him." Life of Sir Samuel Romilly, edited by his sons, vol. ii., p. 473 (3d ed. Diary, under date September, 1817). 506 IV. THE NINETEENTH CENTURY " in England of his age." " He is the teacher of teachers." " To him it was given to discern more particularly those " truths with which existing doctrines were at variance." " Bentham has been in this age and country the great ques- " tioner of things established. It is by the influence of the " modes of thought with which his writings inoculated a con- " siderable number of thinking men, that the yoke of author- ity has been broken, and innumerable opinions, formerly " received on tradition as incontestable, are put upon their " defence and required to give an account of themselves. " Who, before Bentham, dared to speak disrespectfully, in " express terms, of the British Constitution or the English " law ? . . . Bentham^ broke the spell. It was not Bentham " by his own writings ; it was Bentham through the minds " and pens which those writings fed, through the men in " more direct contact with the world, into whom his spirit " passed. If the superstition about ancestorial wisdom ; if " the hardiest innovation is no longer scouted because it is " an innovation, establishments no longer considered " sacred because they are establishments, it will be found " that those who have accustomed the public mind to these " ideas have learned them in Bentham's school, and that the " assault on ancient institutions has been, and is, carried " on for the most part with his weapons." 1 Essay on Bentham, "Dissertations and Discussions" (Am. Ed.), vol. i., pp. 355-358. John Stuart Mill in his Autobiography says: "During the winter of 1821-22, Mr. John Austin, with whom at the time of my visit to France my father had but lately become acquainted, kindly allowed me to read Roman law with him. [John Stuart Mill was then in his seventeenth year.] My father, notwithstanding his abhorrence of the chaos of barbarism called English law, had turned his thoughts towards the bar as on the whole less ineligible for me than any other profession; and these readings with Mr. Austin, who had made Ben- tham's best ideas his own, and added much to them from other sources and from his own mind, were not only a valuable introduction to legal studies, but an important portion of general education. With Mr. Aus- tin I read Heineccius on the Institutes, his Roman Antiquities, and part of his exposition of the Pandects, to which was added a considerable portion of Blackstone. It was at the commencement of these studies that my father, as a needful accompaniment to them, put into my hands Bentham's principal speculations, as interpreted to the Continent, and indeed to all the world, by Dumont, in the ' Trait6 de Legislation.' The reading of this book was an epoch in my life, one of the turning- points in my mental history" (chap. Hi.). Further legal education Stuart Mill appears not to have received. 15. DILLON: INFLUENCE OF BENTHAM 507 If time permitted, it would be easy to trace Bentham's in- fluence through other minds, and in the way here pointed out, in England and in this country, 1 not only in modifica- tions and changes in specific legislation and in modes of judi- cial procedure, but upon existing notions in respect of legal education, the necessity for and the methods of legal reform. It would be interesting, for example, to draw the parallel between Bentham and Austin, one of Bentham's most eminent disciples, and to show the partial reaction of Austin against He was never called to the bar. I may here mention what, it seems to me, is a remarkable circumstance. When Bentham was seventy-seven years of age he committed to John Stuart Mill, then about nine- teen years of age, who was without other legal training than that above mentioned, the work of editing and preparing for the press " The Ra- tionale of Evidence." Speaking of this subject, Mill in his Autobiog- raphy (chap, iii.), says: "About the end of 1824, or beginning of 1825, Mr. Bentham, having lately got back his papers on Evidence from M. Dumont (whose Traite des Preuves Judiciaires, grounded on them, was then first completed and published), resolved to have them printed in the original, and bethought himself of me as capable of preparing them for the press. I gladly undertook this task, and it occupied nearly all my leisure for about a year, exclusive of the -time afterwards spent in seeing the five large volumes through the press. Mr. Bentham had be- gun this treatise three times, at considerable intervals, each time in a different manner, and each time without reference to the preceding; two of the three times he had gone over nearly the whole subject. These three masses of manuscript it was my business to condense into a sin- gle treatise, adopting the one last written as the groundwork, and in- corporating with it as much of the two others as it had .not completely superseded. I had also to unroll such of Bentham's involved and paren- thetical sentences as seemed to overpass by their complexity the meas- ure of what readers were likely to take the pains to understand. It was further Mr. Bentham's particular desire that I should, from myself, endeavor to supply any lacunae which he had left ; and at his instance I read, for this purpose, the most authoritative treatises on the English Law of Evidence, and commented on a few of the objectionable points of the English rules, which had escaped Bentham's notice." " My name as editor was put to the book after it was printed, at Mr. Bentham's positive desire, which I in vain attempted to persuade him to forego." " The ' Rationale of Judicial Evidence ' is one of the richest in matter of all Bentham's productions. The book contains, very fully developed, a great proportion of all his best thoughts; while among more special things it comprises the most elaborate exposure of the vices and defects of English law, as it then was, which is to be found in his works, not confined to the Law of Evidence, but including, by way of illustrative episode, the entire procedure of practice of Westminster Hall." 1 The influence of Bentham in America, not only in respect of the emendations of the Law of Evidence, but through the efforts of other men who had caught his spirit, is directly seen in the extent to which codification has been adopted. See ante Lecture IX., p. 260, note. The labors of the celebrated Edward Livingston afford another interesting illustration of Bentham's influence in this country. In the prime of his 508 IV. THE NINETEENTH CENTURY some of Bentham's extreme views, and the extent to which the questions thus raised are profoundly agitating at this moment not only a few thinking minds but the body of the profession, and this not only in England, but in every country which speaks the language and which has adopted the institutions of England. This would lead to a considera- tion of the controversies between the analytical and the his- torical schools of jurisprudence, which their respective ad- vocates yet debate with much of their original warmth, tend- ing to the result, however, that there is, after all, truth in each; that properly understood the two schools are not an- tagonistic but complementary; and that the true course is to combine the logical or analytical with the historical and experimental, the former mainly supplying data for scientific arrangement, the latter mainly supplying the matter for a revised, improved, and systematic jurisprudence. I must life misfortunes led Livingston in 1804 to quit the home of his ancestors in New York and to make a new home in New Orleans, then recently acquired by the United States. The question whether the procedure in Louisiana should be according to the common law or continue upon the basis of the civil and Spanish law having been judicially determined in favor of the latter, Livingston drew up what is in effect a Code of Pro- cedure, which was adopted by the Legislature in 1805, consisting of twenty sections and of about twenty-five printed pages. In its essen- tial features it anticipated the codes of nearly half a century later. Under an act of the General Assembly of Louisiana, approved February 10, 1820, which provided that a person learned in the law shall be ap- pointed to prepare a Code of Criminal Law, Evidence, and Procedure, Livingston was on February 13, 1821, elected by the joint ballot of the Legislature to discharge this duty. He reported his plan to the next Assembly, which "earnestly solicited him to prosecute this work accord- ing to his report." In 1829 Livingston had an interesting correspondence with Bentham, in which the former acknowledged that he received his first impulse " to the preparation of an original, comprehensive, and complete system of penal legislation from Bentham's works which had appeared in the French of Dumont in 1802." Hunt, " Life of Edward Livingston," p. 96, note. " The perusal of your works," said Livingston to Bentham, " first gave method to my ideas, and taught me to consider legislation as a science governed by certain principles, applicable to all its different branches, instead of an occasional exercise of its powers, called forth only on particular occasions without relation to or connection with each other." He thus concludes: "Hereafter no one can in criminal juris- prudence propose any favorable change that you have not recommended, or make any wise improvement that your "superior sagacity has not suggested." Hunt, p. 96, note; Bentham's Works (Bowring's Ed.), vol. x., p. 51. Livingston prepared a complete Code of Crimes and Punish- ments, of Procedure, of Evidence, and of Reform and Prison Discipline ; but having been elected to Congress and practically ceasing to reside 15. DILLON: INFLUENCE OF BENTHAM 509 content myself with mentioning, without dwelling upon, these interesting subjects. Passing from these general considerations, I proceed to notice specifically two other subjects. One is Bentham's reforms in the Law of Evidence. Here the direct fruits of Bentham's labors are plainly to be seen. In some respects his " Judicial Evidence," before mentioned, is the most im- portant of all his censorial writings on English law. In this "work he exposed the absurdity and perniciousness of many of the established technical rules of evidence. " In certain cases," he says, " jurisprudence may be defined, the art of " being methodically ignorant of what everybody knows." Among the rules combated were those relating to the com- petency of witnesses and the exclusion of evidence on various grounds, including that of pecuniary interest. He insisted that these rules frequently caused the miscarriage of jus- tice, and that in the interest of justice they ought to be swept away. His reasoning fairly embraces the doctrine that parties ought to be allowed and even required to testify. This work appeared in Paris in 1802, and in England in in Louisiana, his codes were never enacted into laws. Each code was accompanied with an elaborate introductory report; and these labors gave him great and deserved fame at home and abroad. Chancellor Kent declared that Livingston had " done more in giving precision, specification, accuracy, and moderation to the system of crimes and punishment than any other legislator of the age, and that his name would go down to posterity with distinguished honor." Hunt, p. 281. Bentham urged that Parliament should print the whole work for the use of the English nation. Hunt, p. 278; Bentham's Works, vol. xi., p. 37. Villemain declared it to be " a work without example from the hand of any one man." Hunt, p. 278. Sir Henry Maine pronounced Livingston to be " the first legal genius of modern times." " Village Communities," paper on " Roman Law and Legal Education," published in 1856. Although the Livingston Code was not adopted as a whole, yet Bancroft is quite justified in the observation that "it has proved an unfailing fountain of reforms suggested by its principles." Intro- duction to Hunt's Life of Livingston, p. xvii. The Livingston Codes and Reports were republished in full in 1873 by the National Prison Association of the United States, with an Introduction by Chief-Justice Chase, in which he expresses the satisfaction of the Association in re- producing a work marked with such " keenness of insight, clearness of statement, force of logic, beauty of diction, elevation of sentiment, and breadth of sympathy." He declared his own opinion to be that the work " will prove that if Livingston was in advance of his times, the day is at least approaching when his broad and comprehensive views will not only be appreciated but realized." 510 IV. THE NINETEENTH CENTURY 1825 and 1827 ; but it produced no immediate effect on the professional mind. It was generally regarded as the specu- lations of a visionary. As I write I have before me Starkie's Evidence, the third edition of which appeared in 1842, and the wisdom of the exclusionary rules of evidence is not so much as criticised or questioned. But Bentham had set a few men thinking. He had scat- tered the seeds of truth. Though they fell on stony ground they did not all perish. But verily reform is a plant of slow growth in the sterile gardens of the practising and prac-* tical lawyer. Bentham lived till 1832, and these exclusion- ary rules still held sway. But in 1843, by Lord Denman's Act, interest in actions at common law ceased, as a rule, to disqualify; and in 1846 and 1851, by Lord Brougham's Acts, parties in civil actions were as a rule made competent and compellable to testify. I believe I speak the universal judgment of the profession when I say that changes more beneficial in the administration of justice have rarely taken place in our law, and that it is a matter of profound amaze- ment, as we look back upon it, that these exclusionary rules ever had a place therein, and especially that they were able to retain it until within the last fifty years. Let us be just. The credit of originating this great im- provement is due not to Denman and Brougham, but it essen- tially belongs to Bentham, although he was in his grave before it was actually effected. 1 Lord Justice Stephen for- cibly remarks of Bentham's assault on the system of judicial evidence that " it was like the bursting of a shell in the " powder magazine of a fortress, the fragments of the shell " being lost in the ruin which it has wrought." 2 The 'moral is obvious. The philosophic student of our laws may often have a keener and juster insight into their vices and imper- fections than the practising lawyer, whose life and studies are exclusively confined to the ascertainment and application of the law as it is, and who rarely vexes himself with the question of what it ought to be, or makes any serious effort 1 See post lecture XIII. ' " General View of the Criminal Law of England," p. 206 ; also In- troduction to his Digest of Evidence. 15. DILLON: INFLUENCE OF BENTHAM 511 to reform it. But let me not be misunderstood. While the philosophic student is able to point out defects in the laws, yet the history of the law shows that only practical lawyers are capable of satisfactorily executing the work of reform. Bentham's failure in directly realizing greater practical re- sults grew out of his mistaken notion that the work of actual amendment could be accomplished without experts, that is, without the aid of the bar and without its active support. The last matter to which I shall refer is that to which Bentham gave the name by which it is now universally known, codification. With a view to ascertain with exactness Bentham's views, I have recently gone over anew his writings relating to this subject. Very different ideas in our day are, as I have here- tofore said, attached to what is meant or implied by a code, and much of the dispute concerning codification is after all one over words, or one arising from the want of a previous definition of the subject-matter of the disputation. 1 What Bentham meant by codification, however, is plain enough. He meant that a code should embrace all general legislation, not simply as it exists, but as it ought to be amended and made to exist, that is, all legislation except local and special statutes ; that it also should embody all the prin- ciples of the common law which it were expedient to adopt, these to be expressed in words by legislative enactment, the gaps or lacunce to be filled up in like manner by the legis- lature; the whole to be systematically arranged, so that all possible cases would be expressly provided for by written rules; that the function of the courts to make " judge-made law " as he is fond of stigmatizing it, should cease, and that thereafter all changes or additions to this complete and au- thoritative body of law should be made by the law-making body, and by it alone. I must say that in my judgment this in its full extent is not only an impracticable scheme, but one founded in part upon wrong principles. In a refined and complex civiliza- tion no legislative foresight, no finite intelligence, can antic- 1 See ante Lecture VI., p. 180. 512 IV. THE NINETEENTH CENTURY ipate, define, catalogue, and formulate in advance rules ap- plicable to the infinite number and the infinite variety of cases that will inevitably arise. This view of a code also exaggerates, or, to use Bentham's language, maximizes, the evils of case-law, and underrates or minimizes its advantages. It overlooks the fact that case-law is a permanent necessity. The judicial office will, at all times, under any possible code, have to deal with and determine questions and cases not pos- sible to be provided for by any express statutory provision. 1 A well-constructed code may, and doubtless will, lessen the number of such questions and cases ; but no code can do more. The rest must be left to the courts. M. Portalis, in a well-known paper relating to the French Civil Code, ex- presses this truth with clearness and force. " It is to juris- " prudence [using the term in distinction from statute or " positive law] that the legislator must abandon those rare " and extraordinary cases which cannot enter into the scheme " of a rational legislation ; the variable, unaccountable de- " tails which ought never to occupy the attention of the leg- " islator, and all of those objects which it would be in vain " to attempt to foresee, and dangerous prematurely to " define." We have now, and for centuries have had, two wholly in- dependent manufactories, so to speak, of law, the legis- lature professedly making statute law, the courts silently making case-law ; and this without any unity of conception, plan, or action. Statutes are piled upon statutes, and the law reports of Great Britain and America may be roundly put at eight thousand volumes, and are constantly multiply- ing. 2 This colossal body of case-law is wholly unorganized and even unarranged, except so far as digests and elemen- tary treatises may be considered as an arrangement, which scientifically viewed they are not. The infinite details of this mountainous mass in its existing shape bear me witness, ye who hear me ! no industry can master and no memory retain. The English portion of it has been aptly likened to See ante Lecture X., p. 268; Dillon, Munic. Corp. (4th ed.), voL ii., 934, a; Amos, " Science of Law," chap. v. See ante Lectures VIII., IX, X., passim. 15. DILLON \ INFLUENCE OF BENTHAM 513 " chaos tempered by Fisher's Digest." The American por- tion already exceeds in size and complexity the English por- tion, and as we attempt to survey it we are reminded of the dread and illimitable region described by Milton, where ..." Chaos umpire sits, And by decision more embroils the fray By which he reigns." I do not believe that it is practicable to codify it all, in the sense that the resulting code shall supersede for all pur- poses the law reports; but on many subjects, and to a very large extent in respect of all, codification is practicable, and so far as it is practicable, it is, if well done, desirable. Mark the qualification, if well done, not otherwise. Any code that is made, whatever may be its scope, must be based upon the fundamental principle that the existing body of our law as it has been developed in the workings of our institutions and tested by our experience is in substance the law that is best fitted to our condition and wants ; for all true law has its root in the life, spirit, ideas, usages, in- stincts, and institutions of the people. It springs from within ; it is not something alien to the people, to be imposed on them from without. If a metaphor will not mislead, true law is a native, independent, natural growth, and not an exotic. Bentham did not deny this in principle, but he was too much inclined to look at laws logically rather than his- torically. It follows that a code must not be one imitated from or servilely fashioned after Roman or foreign models. On this subject Bentham had correct notions. His bold, original mind and his self-sufficient powers saw as little to admire in the Roman as in the English law. I repeat it as my judgment that our code must not pre-suppose that the Roman law as it anciently existed, or as it exists in the mod- ern adaptations of it in the States of Continental Europe, is superior in matter, substance, or value, to the native, natural, indigenous product. It must assume precisely the contrary. Freeman puts a general truth epigrammatically when he says " that we, the English people, are ourselves 514 IV. THE NINETEENTH CENTURY '* and not somebody .else. . . . Englishmen after all are " Englishmen." 1 This is equally true of the American people. And both Englishmen and Americans want their own laws, and not those of some other people. It would be as impossible radi- cally to change their legal systems as to change the nature of the people. The materials for such a code already exist. A period of development is at some time reached in the legal history of every people when it is necessary to restate and reconstruct their laws. It seems to me that we have reached that period. Our materials for such restatement and reconstruction, which we may, if you please, call a code, are ample. They surpass in extent, in abundance, in variety, in richness, and above all, in adaptation to our wants, any supply that can come from foreign sources. 2 What Sir Henry Maine aptly calls " tacit codification " is a process which is in constant operation, through the la- bors of judges and text-writers. In this work elementary writers of learning and experience take an important part. In the scattered condition of our case-law their works are indispensable. When judges and text-writers deduce from the cases a principle and formulate it, and that formula is stamped with authority, either by long usage or judicial sanction, so that the courts do not go behind it to the cases from which it was deduced, there you have to this extent codification. This " stereotyping, as it were, of certain " legal rules, is," says Maine, " at this moment proceeding " with unusual rapidity, and is indeed one of the chief agen- " cies which save us from being altogether overwhelmed by " the enormous growth of our case-law." 3 What is needed is the constructive genius and practical wisdom that can take these truly rich, invaluable, native but scattered materials, using with a wise and generous eclecticism foreign materials only when the native do not 1 Preface to lecture, " Chief Periods of European History." * See ante Lecture VI., p. 174; Lecture X. Village Communities" (Am. Ed.), pp. 368, 369. The subject of text-books as one of the literary authorities of our law, their office and use, the functions of text-book writers, and the nature of text-book law, I have seen nowhere so fully or well presented as in Professor Clarke's "Practical Jurisprudence," part ii., chaps, vii.-xii., inclusive. 15. DILLON: INFLUENCE OF BENTHAM 515 exist or the foreign are manifestly .superior, and out of all these build an edifice of law, primarily designed and adapted to daily use, which shall be at once symmetrical, harmonious, simple, and commodious. There is here room and need for all. The institutional writer, the law teacher, the philosophic student, the scientific jurist, the experienced lawyer, the learned judge, the practical legislator, has each his place. They are not repellent and antagonistic agencies, but allies and co-laborers in the noblest work that can engage the attention, and draw forth and exemplify the highest powers of the human intellect. Toward the realiza- tion of this ideal let us press on with generous ardor, guided not by the motto of Ihering, prescribed for Continental action, " Through the Roman law, but beyond it," but rather by this other motto : " Through our own law, " and beyond it wherever it is plainly defective or incom- " plete." 16. PROGRESS IN THE ADMINISTRATION OF JUSTICE DURING THE VICTORIAN PERIOD 1 BY CHARLES SYNGE CHRISTOPHER, BARON BOWEN 2 NO story can be more difficult to tell than that of the progress of reforms in the administration of the law during a period of fifty years. It consists for the most part of the history of countless changes of detail, many of which must remain absolutely unintelligible to the greater portion of the public. To comprehend their exact value would re- quire a number of minute and technical explanations suf- ficient to fill, not merely one chapter, but several volumes. All that can be aimed at within the compass of a few pages is to endeavour to sketch in outline the broad features of a picture which it would be hopeless to attempt to render elab- orate or complete. The recent fusion of the superior tribu- nals of the country into a single Supreme Court of Judica- ture is a landmark on which the attention of the lay world fastens, and which it in some measure can appreciate. Yet this change, important as it is, has only perfected and crowned a long course of simplification and reform, of which it is the logical consequence. Perhaps the best way of mak- ing the narrative understood by those who are not adepts in the language or the procedure of the law will be to explain briefly, even if it must of necessity be roughly, what the great English Courts of Justice were at the beginning of the reign, 1 This essay was published as a chapter in " The Reign of Queen Vic- toria; a Survey of Fifty Years of Progress," 1887, volume I, pp. 281- 329, edited by Thomas Humphrey Ward (London: Smith, Elder, & Co.). 1 1835-1894. B. A. Balliol College, Oxford, 1857, M. A. 1872, D. C. L. 1883; Barrister and Bencher of Lincoln's Inn; judge of the High Court, Queen's Bench Division, 1879; judge of the Court of Appeal, 1888; lord of appeal in ordinary, 1893. 516 16. BOWEN: THE VICTORIAN PERIOD 517 and the kind of imperfection that existed in their constitu- tion and their practice. The ancient barrier which separated the several Courts of the Common Law from the Court of Chancery still subsisted in the year 1837. Two systems of judicature, in many re- spects at variance with each other, flourished side by side under the famous roof of Westminster Hall. The principle of a division of labour by which distinct machinery can be accommodated to special subject-matter is based upon reason and convenience. A large portion of the law business of the country is made up of litigation in the result of which no one is directly interested but the rival combatants. But there are many matters of which the law takes cognisance that necessitate a special and a more complicated mechanism for their adjustment. The property of infants, for exam- ple, requires to be protected trusts to be managed day by day during a long period of years the estates of de- ceased persons to be dealt with for the benefit of creditors, the assets to be collected and distributed, accounts to be taken, directions to be given, questions to be settled once for all that affect the interests of many. It is desirable that special tribunals should be armed with the particular organi- sation requisite for purposes such as these. The distinction between law and equity went, however, far beyond what was needed to carry out this natural division of labour. The two jurisdictions had no common historical origin, and the prin- ciples on which they administered justice were unlike. The remedies they afforded to the suitor were different; their procedure was irreconcilable; they applied diverse rules of right and wrong to the same matters. The common law treated as untenable claims and defences which equity allowed, and one side of Westminster Hall gave judgments which the other restrained a successful party from enforcing. The law had always cherished as its central principle the idea that all questions of fact could best be decided by a jury. Except in cases relating to the possession of land, the relief it gave took, as a rule, the shape of money compensation, in the nature either of debt or of damages. The procedure of the Court of Chancery, on the other hand, was little adapted 518 IV. THE NINETEENTH CENTURY for the determination of controverted issues of fact, and it was constantly compelled to have recourse for that purpose to the assistance of a court of law. The common law had no jurisdiction to prevent a threatened injury; could issue no injunctions to hinder it; was incompetent to preserve property intact until the litigation which involved the right to it was decided; had no power of compelling litigants to disclose what documents in their possession threw a light upon the dispute, or to answer interrogatories before the trial. In all such cases the suitor was driven into equity to assist him in the prosecution even of a legal claim. The Court of Chancery, in its turn, sent parties to the Law Courts when- ever a legal right was to be established, when a decision on the construction of an Act of Parliament was to be obtained, a mercantile contract construed, a point of commercial law discussed. Suits in Chancery were lost if it turned out at the hearing that the plaintiff, instead of filing his bill in equity, might have had redress in a law court; just as plaintiffs were nonsuited at law because they should have rather sued in equity, or because some partnership or trust appeared unex- pectedly on the evidence when all was ripe for judgment. Thus the bewildered litigant was driven backwards and for- wards from law to equity, from equity to law. The conflict between the two systems, and their respective modes of re- dress, was one which, if it had not been popularly supposed to derive a sanction from the wisdom of our forefathers, might well have been deemed by an impartial observer to be expressly devised for the purpose of producing delay, uncer- tainty, and untold expense. The common law tribunals of Westminster Hall con- sisted of three great courts, each with a different history and originally different functions. In the growth of time, and by dint of repeated legislation, all, so far as the bulk of the litigation of the country was concerned, had acquired equal jurisdiction, and no practical necessity was left for the maintenance side by side of three independent channels of justice, in each of which the streams ran in a similar fash- ion and performed the same kind of work. First came the Queen's Bench, composed of a chief justice and four 16. BOWEN: THE VICTORIAN PERIOD 519 puisne judges. Its authority was supreme over all tribunals of inferior jurisdiction. It took sovereign cognisance of civil and criminal causes alike kept the Ecclesiastical Courts and the Admiralty within bounds, controlled magistrates and justices, supervised the proceedings of civil corporations, repressed and corrected all usurpations, all encroachments upon common right. It wielded two great weapons of justice over public bodies: mandamus, whereby, when no other remedy appeared available, it compelled them to fulfil the law; prohibition, by means of which it confined all inferior authorities strictly to their respective provinces and powers. The Court of Common Pleas, historically the most ancient of the three, which had retained, with no par- ticular benefit to society, supervision over the few ancient forms of real actions that still survived, exercised also a general authority over personal actions. It was directed by a chief justice and four puisne justices. It laboured, how- ever, under the disadvantage that, as far as the general bar of England was concerned, it was a ' champ clos.' Serjeants- at-law had exclusive audience in it during term time, and it was not till 1847 that this vexatious and injurious monopoly was finally abolished. The Court of Exchequer had been from early years the special tribunal for dealing with mat- ters in which the king's revenue was interested. It still retained in revenue cases and some other matters a particu- lar jurisdiction, though clothed by this time (like the Queen's Bench and the Common Pleas) with power over all actions that were personal. Besides these functions, it was also a Court of Equity, and took part from time to time in the Chancery business of the realm. A chief baron was at the head, assisted by four puisne barons, of whom two still re- main and preserve to us a title which otherwise would be extinct, the present Baron Pollock and Baron Huddleston. The procedure at the common law, as compared with the wants of the country, had become antiquated, technical, and obscure. In old days the courts at Westminster were easily able to despatch, during four short terms of three weeks each, together with the assizes and sittings at Guild- hall, the mass of the business brought before them. But, 520 IV. THE NINETEENTH CENTURY from the beginning of the century, the population, the wealth, the commerce of the country had been advancing by great strides, and the ancient bottles were but imperfectly adapted to hold the new wine. At a moment when the pecuniary enterprises of the kingdom were covering the world, when railways at home and steam upon the seas were creating everywhere new centres of industrial and commercial life, the Common Law Courts of the realm seemed constantly occupied in the discussion of the merest legal conundrums, which bore no relation to the merits of any controversies except those of pedants, and in the direction of a machinery that belonged already to the past. Frivolous and vexatious defences upon paper delayed the trial of a litigant's cause. Merchants were hindered for months and years from recov- ering their just dues upon their bills of exchange. Causes of action had become classified, as if they were so many Aris- totelian categories a system which secured learning and precision, but at the risk of encouraging technicality ; and two causes of complaint could not be prosecuted in one and the same action unless they belonged to the same meta- physical ' form.' An action on a bond could not be joined with a claim upon a bill of exchange. A man who had been assaulted and accused of theft in the market-place of his town was obliged, if he wished redress for the double wrong, to issue two writs and to begin two litigations, which wound their course through distinct pleadings to two separate trials. If a surprise occurred at Nisi Prius or the assizes, the court was unable to adjourn the proceedings beyond a single day. Old fictions still survived, invented in bygone ages to assist justice with no particular harm left in them, it is true, but which were well fitted to encourage the popular delusion that English law was a mass of ancient absurdity. In order to recover possession of any piece of land, the claimant began his action by delivering to the defendant a written statement narrating the fictitious adventures of two wholly imaginary characters called John Doe and Richard Roe, personages who had in reality no more existence than Gog and Magog. The true owner of the land, it was averred, had given John Doe a lease of the property in question, but John Doe had 16. BOWEN: THE VICTORIAN PERIOD 521 been forcibly and wrongly ejected by Richard Roe, and had in consequence begun an action of trespass and ejectment against him. Richard Roe, meanwhile, being a " casual ejector " only, advised the real defendant to appear in court and procure himself to be made defendant in the place of the indifferent and unconcerned Richard Roe, otherwise the de- fendant would infallibly find himself turned out of posses- sion. Till within the last twenty-six years, this tissue of invention of unreal persons and of non-existent leases pre- ceded every investigation of the claim to possession of land. Nor was the trial itself of a common law cause productive of certain justice. Right was liable to be defeated by mis- takes in pleading, by variances between the case as previously stated upon paper and the case as it stood ultimately upon the evidence, or by the fact that the right party to the suit had not been nominally joined, or that some wrong party had been accidentally joined with him. Perhaps the most serious blemish of all consisted in the established law of evidence, which excluded from giving testimony all witnesses who had even the minutest interest in the result, and, as a crowning paradox, even the parties to the suit themselves. * The evidence of interested witnesses,' it was said, * can never induce any rational belief.' The merchant whose name was forged to a bill of exchange had to sit by, silent and unheard, while his acquaintances were called to offer conjectures and beliefs as to the authenticity of the disputed signature from what they knew of his other writings. If a farmer in his gig ran over a foot-passenger in the road, the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passenger. In spite of the vigorous efforts of Lord Denman and others, to which the country owes so much, this final absurdity, which closed in court the mouths of those who knew most about the matter, was not removed till the year 1851. In a strictly limited number of cases the decisions of the three courts could be reviewed in the Exchequer Chamber a shifting body composed of alternate combinations of the judges, and so arranged that selected members from two of the courts always sat to consider such causes as came to 522 IV. THE NINETEENTH CENTURY them by writ of error from the third. The House of Lords, in its turn, was the appointed Court of Error from the Exchequer Chamber. The modern system of appeal, ren- dered necessary in our day by the weakening of the Courts in Bane and the development of what has been called the single-judge system, had not yet come into existence. Nor, in truth, on the common law side of Westminster Hall was there any great necessity for it. The Queen's Bench, the Common Pleas, and the Exchequer whatever the imper- fection of the procedure were great and powerful tri- bunals. In each of them sat a chief of mark, with three puisnes to assist him, and the weight of authority of four judges, amongst whom there could not well fail to be present one or more men of the first rank of intellect and experience, was sufficient as a rule to secure sound law and to satisfy the public. The prestige, again, of the Exchequer Chamber in such cases as were allowed to reach it upon error was of the highest order. But the principle upon which appeals were allowed by the law in some matters, and refused in others, was full of anomalies. Only matters of ' error ' which were apparent on the record could be the subject of a hear- ing in the Exchequer Chamber. No appeal lay on subjects so important as a motion for a new trial or to enter a verdict or a nonsuit motions which proceeded on the assumption of miscarriages in law by the judge or the jury who tried the cause. If the aggrieved party had not succeeded in complying at the trial with the difficult formalities of the rule as to bills of exceptions an old-fashioned and often impracticable method of challenging the direction of a judge no review of it was possible. Error lay from a special verdict, where the parties had arranged, or the judge di- rected at the trial, a special statement of the facts. No error lay upon a special case framed without a trial by consent. That is to say, no appeal was permitted unless the expen- sive preliminary of a useless trial had first been thrown away. The technicalities which encumbered the procedure of the courts furnished one reason, no doubt, for the arrears which loaded the lists at the accession of her Majesty. Other accessory causes may be found in the survival till a late 16. BOWEN: THE VICTORIAN PERIOD 523 date of the old-fashioned term of three weeks, recurring four times a year, at the end of which the courts ceased sitting to decide purely legal questions while the three chiefs repaired to jury trials at Nisi Prius. It was not till after the beginning of the reign that an Act of Parliament was passed which enabled the Queen's Bench, the Common Pleas, and the Exchequer to dispose in Bane sittings after term of business left unfinished on their hands. Under the old system, the last day of term was famous for the crowd of counsel and of solicitors solely intent upon having their pending rules ' enlarged,' or, in other words, adjourned till term should again begin. The Queen's counsel in the front benches spent the day in obtaining the formal leave of the court to this facile process, and in marking each brief in turn with a large ' E ' as the token of a regular ' enlarge- ment.' ' How do you manage to get through your business in the Queen's Bench?" said a spectator to the late Sir Frederick Thesiger (afterwards Lord Chelmsford). ' We find no difficulty,' said the eminent counsel ; ' we do it always with great Ease.' At the beginning of 1837, the accu- mulation of arrears in the Queen's Bench, to which court the great bulk of business necessarily drifted, had been most formidable. Three hundred cases of various descriptions were waiting for argument in Bane. The Law Magazine of two years later still complained, in its notice of the cur- rent events of the quarter, that the Bane arrears had reached to such a pass that a rule nisi for a new trial could not in all probability be disposed of under two years and a half from the time of granting it, at the end of which time, if the application were even granted, the cause would still have to be reheard. The Court of Chancery was both a judicial tribunal and an executive department of justice for the protection and administration of property, but the machinery that it em- ployed for the two purposes was, unfortunately, not kept distinct. Its procedure in contentious business served as tlie basis of its administrative operations, and persons between whom there was no dispute of fact at all found themselves involved in the delays and the embarrassments of a needless 524 IV. THE NINETEENTH CENTURY lawsuit. In its judicial capacity the Court of Chancery gave effect to rights beyond the reach of the common law, corrected the evils that flowed from the imperfect jurisdic- tion and remedies of the Common Law Courts, and dealt with whole classes of transactions over which it had ac- quired a special cognisance. The code of ethics which it administered was searching and precise academical, per- haps, rather than worldly, the growth of the brains of great masters of learning and of subtlety, whose maxims and refinements had crystallised into a system. But its practice was as dilatory and vexatious as its standard of right and wrong was noble and accurate. For deciding matters of conflicting testimony it was but little fitted. It tossed about as hopelessly in such cases as a ship in the trough of the sea, for want of oral testimony a simple and elementary method of arriving at the truth, which no acuteness can replace. It had no effective machinery at all for the examination or the cross-examination of witnesses, and (as we have seen) fell back upon the Common Law Courts whenever questions of pure law were raised, or as soon as depositions and affidavits became hopelessly irrecon- cilable. Oral evidence had always been at common law the basis of the entire system, although the common law per- versely excluded from the witness-box the parties to the cause who naturally knew most about the truth. The Court of Chancery, on the other hand, allowed a plaintiff to search the conscience of the defendants, and the defendants, by a cross bill, to perform a similar operation upon their antag- onist, but only permitted the inquiry to be on paper. A bill in a Chancery suit was a marvellous document, which stated the plaintiff's case at full length and three times over. There was first the part in which the story was circum- stantially set forth. Then came the part which " charged " its truth against the defendant or, in other words, which set it forth all over again in an aggrieved tone. Lastly came the interrogating part, which converted the original alle- gations into a chain of subtly framed inquiries addressed to the defendant, minutely dovetailed and circuitously arranged so as to surround a slippery conscience and to stop up 16. BOWEN: THE VICTORIAN PERIOD 525 every earth. No layman, however intelligent, could compose the ' answer ' without professional aid. It was inevitably so elaborate and so long, that the responsibility for the accu- racy of the story shifted, during its telling, from the con- science of the defendant to that of his solicitor and counsel, and truth found no difficulty in disappearing during the operation. Unless the defendant lived within twenty miles of London, a special commission was next directed to solicit- ors to attest the oath upon which the lengthy answer was sworn, and the answer was then forwarded by sworn mes- senger to London. Its form often rendered necessary a re-statement of the plaintiff's whole position, in which case an amended bill was drawn requiring another answer, until at last the voluminous pleadings were completed and the cause was at issue. By a system which to lawyers in 1887 appears to savour of the Middle Ages, the evidence for the hearing was thereupon taken by interrogatories written down beforehand upon paper and administered to the wit- nesses in private before an examiner or commissioner. At this meeting none of the parties were allowed to be present, either by themselves or their agents, and the examiner him- self was sworn to secrecy. If cross-examined at all (for cross-examination under such conditions was of necessity somewhat of a farce), the witnesses could only be cross-exam- ined upon written inquiries prepared equally in advance by a counsel who had never had the opportunity of knowing what had been said during the examination-in-chief. If the examination was in the country, it took place at some inn before the comissioner and his clerk, the process seldom cost- ing less than 60L or 70Z. It often lasted for days or weeks, at the end of which its mysterious product was sealed up and forwarded to London. On the day of the publication of the depositions copies were furnished to the parties at their own expense; but, from that moment, no further evidence was admissible, nor could any slip in the proofs be repaired, ex- cept by special permission of the court, when, if such leave was granted, a fresh commission was executed with the same formalities and in the same secret manner as before. The expense of the pleadings, of the preparation for the hearing, 526 IV. THE NINETEENTH CENTURY and of the other stages of the litigation may be imagined, when we recollect that it was a necessary maxim of the Court of Chancery that all parties interested in the result must be parties to the suit. If, for example, relief was sought against a breach of trust, all who were interested in the trust estate had to be joined, as well as all who had been privy to the breach of trust itself. During the winding journey of the cause towards its termination, whenever any death occurred, bills of review or supplemental suits became necessary* to reconstitute the charmed circle of litigants which had been broken. On every such catastrophe the plaintiff had again to begin wearily to weave his web, liable on any new death to find it unravelled and undone. It was satirically observed that a suit to which fifty defendants were necessary parties (a perfectly possible contingency) could never hope to end at all, since the yearly average of deaths in England was one in fifty, and a death, as a rule, threw over the plaintiff's bill for at least a year. The hearing in many cases could not terminate the cause. Often inquiries or accounts were necessary, and had still to be taken under the supervision of a master. Possibly some issue upon the disputed facts required to be sent for trial at the assizes, or a point of law submitted to a common law court. In such cases, the verdict of the jury, or the opinions of the court so taken, in no way concluded the conscience of the Court of Chancery. It resumed charge of the cause again, when the intermediate expedition to the common law was over, and had the power, if it saw fit, to send the same issue to a new trial, or to disregard altogether what had been the result. In a case which was heard in February 1830, there had been seven trials, three before judges and four before the Chancellor, at the close of which the suit found its way upwards to the House of Lords. When a cause had reached its final stage when all inquiries had been made, all parties represented, all accounts taken, all issues tried justice was done with vigour and exactitude. Few frauds ever in the end successfully ran the gauntlet of the Court of Chancery. But the honest suitor emerged from the ordeal victorious rather than triumphant, for too 16. BOW EN: THE VICTORIAN PERIOD 527 often he had been ruined by the way. Courts where ulti- mate justice is achieved, but where delay and expense reign supreme, became at last a happy hunting-ground for the fraudulent. The hour for reform has struck when the law can be made an instrument of abuse. We must not make a scarecrow of the law, Setting it up to fear the birds of prey, And let it keep one shape till custom make it Their perch and not their terror. With all its distinction and excellence, the Court of Equity was thus practically closed to the poor. The middle classes were alarmed at its very name, for it swallowed up smaller fortunes with its delays, its fees, its interminable paper processes. The application of such a procedure to the large class of transactions, where no fact was in dispute, and only the careful administration of an estate required, was a cruel burden upon property. A large portion of the cases before the Court of Chancery had " nothing of hostility and very little of contentious litigation in them." Trusts, it may be, had to be administered, obscure wills or deeds to be inter- preted, assets of a deceased person to be got in, classes ascertained, creditors paid. Though nobody wished for war, yet all the forms of war had to be gone through the plaintiff and the various defendants drew out the pleadings in battle array, interrogated and answered, took evidence upon commission, examined and cross-examined upon paper. " It is a matter of frequent occurrence in court," say the Chancery Commissioners of 1851, " to see cases encumbered with statements and counter-statements, evidence and counter-evidence, with which the parties have for years been harassing each other, although there has been throughout no substantial dispute as to the facts, and although the real question lies in a very narrow compass, and would probably have been evolved in the first instance if the court had had the power summarily to ascertain and deal with the facts. The judges of the court were the Lord High Chancellor (who then, as now, was a political officer and changed with every change of Ministry) ; the Master of the Rolls stood 528 IV. THE NINETEENTH CENTURY next in dignity ; last came the Vice-Chancellor of England a judge who in 1813 had been created to relieve the pressure. Some equity work was also done by the Chief Baron, or, in his stead, a puisne baron sitting on the equity side of the Exchequer; but this could only be during a limited portion of the year. The appellate system was defective in the extreme. The Chancellor sat singly on appeals from the Vice-Chancellor of England and from the Master of the Rolls (whose inferior in the science of equity he easily might be), and presided in the House of Lords over the hearing of appeals from himself a position the less satisfactory inasmuch as, owing to the imperfect con- stitution of that august tribunal, the Chancellor was very often its ruling spirit. These appellate functions left him not too much time to bestow on his own duties as a Chancery judge of first instance. To a court so loaded with procedure and so undermanned in its judicial strength, the Chancery business of this kingdom, contentious or non-contentious, metropolitan or provincial, all flowed. A formidable list of arrears naturally blocked the entrance of the Temple of Equity. At the beginning of January 1839, 556 causes and other matters were waiting to be heard by the Chan- cellor and the Vice-Chancellor. Those at the head of the list, excluding all which had been delayed by accidental circum- stances alone, had been set down and had been ripe and ready for hearing for about three years. Three hundred and three causes and other matters were in like manner waiting to come on before the Master of the Rolls. Those at the head of his list had been standing about a year and a half. The total amount of causes set down and to be heard was 859, and it was facetiously observed that a greater arrear would probably never appear in the lists of the Court of Chancery seeing that it had become wholly useless to enter any cause which was not to be brought on out of its turn as a short or consent cause. Since in each suit there were on an average two hearings, each destined to be separated by a period of something like two years, it was obvious that, in even the most ordinary litigation such, for example, as that which involved the payment of debts or legacies out 16. BOWEN: THE VICTORIAN PERIOD 529 of a deceased man's estate four years must be wasted in absolute inactivity, over arid above any delays that might occur in taking accounts or prosecuting inquiries. If, as seemed possible to skilled observers of the day, the Chancellor should prove unable to do more than keep pace with his appellate work, it would be so they calculated six years before the last in the list of 1839 came on for hearing even on its first stage; if a second hearing was required, thirteen years or more would elapse before this was reached ; while, if on the final hearing the master's report was successfully objected to, the long process -must begin de novo. " No man, as things now stand," says in 1839 Mr. George Spence, the author of the well-known work on the equitable jurisdiction of the Court of Chancery, " can enter into a Chancery suit with any reasonable hope of being alive at its termination, if he has a determined adversary." Attached to the Court of Chancery, performing a large portion of its functions, responsible if we are to believe the torrents of criticism directed against them during the earlier portions of the reign for much of its delay, were the masters of the Court of Chancery, their offices, and their staff of clerks. One great blot upon this portion of the Chancery system was that it was for all practical pur- poses under the control and superintendence of nobody in particular. The office of master of the court was one of historical dignity and antiquity. His duty in 1837 was to act in aid of the judge, to investigate and report upon such matters as were referred to him, including the investigation of titles, to take complicated accounts, to superintend the management of property of infants and other incompetent persons within the jurisdiction, and to be responsible for taxation of costs. A considerable portion of these judicial and ministerial duties he discharged by deputy. The work was done in private with closed doors, removed from the healthy publicity which stimulates the action of a judge. There was little practical power to expedite proceedings or force on the procrastinating litigant. At the beginning of the reign, complaints were loud both as to the expense and the delays in the masters' offices; and one of the best 530 IV. THE NINETEENTH CENTURY informed Chancery lawyers of that day recorded it as his opinion, in the year 1839, that, with proper regulations in those offices, nearly double the quantity of business might be done and with greater promptitude. The Chancery judges at this