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LAW AND POLITICS IN THE 
 MIDDLE AGES 
 
LAW AND POLITICS 
 
 IN THE 
 
 MIDDLE AGES 
 
 WITH A SYNOPTIC TABLE OF SOURCES 
 
 EDWARD JENKS, M.A. 
 
 READER IN ENGLISH LAW IN THE UNIVERSITY OF OXFORD 
 
 LECTURER AT BALLIOL COLLEGE, AND FORMERLY 
 
 FELLOW OF king's COLLEGE, CAMBRIDGE 
 
 NEW YORK 
 
 HENRY HOLT AND COMPANY 
 
 1898 
 
lOl 
 
 J 5-3 
 
 A- \ \ 2.^3 (c 
 
 S 
 
PREFACE 
 
 The Middle Ages are Middle only in a sense. 
 They are Middle to us, whom a long-established 
 tradition has taught to regard History as beginning 
 with the foundation of Rome, and the emergence 
 into political life of the Grecian States. But in 
 another, and important sense, they are very Early 
 Ages indeed. They are the foundation epoch of 
 that group of communities, so alike in essentials, 
 so manifestly different in detail, which, for want 
 of a better name, we call Teutonic, and which at 
 the present day control the destinies, not only of 
 Western Europe, but of lands beyond the great 
 seas, of which their founders never dreamed. 
 They have produced a civilization wholly unlike 
 any civilization which has preceded it, a civilization 
 which, on its political side at least, is not only the 
 latest, but, as there is sober reason to believe, the 
 best in the world's history. That, in the building 
 
vi PREFACE. 
 
 of this civilization, these communities borrowed, 
 in some cases largely, in others much less freely, 
 from an older polity, may be readily admitted. 
 But that it was a borrowing, and not an inherit- 
 ance, no serious student of the Middle Ages can 
 well doubt. To conceive of Teutonic history as 
 an appendage to Roman history, is not merely to 
 ride an academic theory to death ; it is to indulge 
 in a profound misconception of the capacities of 
 human nature. It is to assume that a community 
 of men is capable, not merely of pretending to 
 adopt, but of actually adopting and living the 
 life of, any system of polity which happens to 
 strike its fancy. It would be as reasonable to 
 suppose that a child who amuses himself with 
 playing at soldiers is capable of conducting, or 
 even of taking part in, a real campaign. The 
 Middle Ages were the nursery of the Barbarian ; 
 they were the burial-ground of the Roman. And 
 it is just in this strange combination, with its 
 startling inconsistencies, that their artistic value, 
 their charm and pathos, lie. But, while the artist 
 may content himself with results, the enquirer 
 must look for causes, and trace the progress 
 of vital movements. 
 
 To separate from the mass of medieval history 
 
PREFACE. vii 
 
 those institutions and ideas which were destined 
 for the future, to distinguish them from survivals 
 which belonged to the past, is the aim of this 
 book. It professes to deal only with conduct, not 
 with speculation ; with action, not with thought. 
 It employs, admittedly, but one class of evidences ; 
 and it is to be feared that to many persons, 
 lawyers and laymen alike, the choice of materials 
 will appear unfortunate. The man who looks 
 upon Law as the arbitrary command of authority 
 will, not unnaturally, regard Law as a poor guide 
 to the historical enquirer. It has, accordingly, 
 been the first care of the writer to show that 
 Law, at any rate in the Middle Ages, is not the 
 arbitrary command of authority, but something 
 entirely different. 
 
 It should be further confessed that the book 
 makes no pretence of severe scholarship. 
 Though it deals with first-hand evidence, it 
 accepts frankly the conclusions of those ex- 
 perts whose labours have now, after the appli- 
 cation of nearly a century, placed the main 
 facts for the most part beyond dispute. But 
 for those labours, often ill-requited and always 
 rendered in a high spirit of devotion to the cause 
 of learning, no such task as that which the writer 
 
vm PREFACE. 
 
 has set before himself, could have been essayed. 
 If in any degree he has succeeded in rendering 
 an intelligible account of a period hitherto but 
 little known to the ordinary reader, it is to those 
 self-denying scholars that he owes that success. 
 And it is his special privilege to be able to 
 thank one of them, not only for help given to 
 the world at large, but for personal assistance 
 and encouragement. The name of Professor 
 Maitland so honours the page on which it is 
 permitted to appear, that the writer cannot deny 
 himself the pleasure of once more recording his 
 grateful thanks for the generosity which has 
 found time from more pressing claims to read the 
 proof-sheets of this book. It is hardly necessary 
 to add, that a generosity so genuine ought to 
 be entirely relieved from all responsibility for 
 conclusions which, to a scholar and a philosopher, 
 may have seemed superficial or premature. 
 
 It is hoped that the List and Synoptic Table 
 of Sources, appended to the book, will serve the 
 double purpose of inspiring confidence in the 
 reader; and of guiding him to the original 
 authorities. 
 
 Balliol College, 
 
 November, 1897. 
 
CONTENTS. 
 
 CHAPTER I. 
 SOURCES. 
 
 The Austinian idea of Law — Its inadequacy to explain past 
 
 conditions — What is Law ? — Two methods of studying the 
 
 question — The deductive — The inductive — Dangers of 
 
 the inductive method — Teutonic Law — ^The Leges Bar- 
 barorum — Not legislation, but r^cora?— Migration and 
 conquest — The aim of the Leges Barbarorum — The 
 personality of the Leges Barbarorum— Th.t Capitula — 
 Their origin — Imitation of Roman ideas — Character of 
 the Capitula— YeMiAdX Law — Its origin — Its results — Law 
 becomes local — It is administered by "peers" — It belongs 
 to a court — It is incomplete — Canon Law — The Law 
 Merchant i 
 
 CHAPTER II. 
 
 SOURCES — {continued) . 
 
 The place of England — Effects of the Norman Conquest — Law 
 is made local, and coniTnon — Law is judicial — Reforms of 
 the twelfth century — Law is royal — The Domain — Law 
 is national — Differences elsewhere — The state of things 
 in France and Germany — The Text-books — Difference 
 between French and German Text-books — The German 
 Text-books are treated as law — The French as expositions 
 of law — The " redaction " of the Coutumes — Process 
 of the redaction — The Landrechte of Germany — The 
 
CONTENTS. 
 
 PAGE 
 
 " reception of the foreign law " in Germany and in 
 Scotland— Other laws— The Town laws— Royal laws- 
 Differences between these and national law — Summary of 
 the history of Law— The age before Law— Appearance / 
 of custom — Alterations of custom — The custom declared 
 The custom recorded — The custom is consciously altered ; 
 but to a very slight extent — Law is revealed — Law as 
 the command of the State 3^ 
 
 CHAPTER III. 
 
 THE STATE. 
 
 The modern idea of a State— An abstraction— A borrowed 
 notion — The political stage of society not the oldest — 
 Gentile society — Leagues of clans — The war band — 
 Organized on different principles from the Clan — The 
 influence of the Empire— The Frank Empire a fiction — 
 The Fief— Military — Hierarchical— The resurrection of 
 the State — New features — The royal domain- — Its effect 
 on the kingship — Heredity — Judiciary character — Ad- 
 ministration — The members of the State — At first only 
 warriors — The feudal principle— The oath at Sarum — 
 Taxation ... ... ... ... ... ... ... 68 
 
 CHAPTER IV. 
 
 THE ADMINISTRATION OF JUSTICE. 
 
 The blood feud — Disappearing when Teutonic history begins — 
 The wer — No means of enforcing payment — Bootless 
 crimes — Position of the king — Enforces acceptance and 
 payment of the •zc'^r- The king's share— The bootless 
 crimes are offences against the king— Criminal Law — 
 State Justice and Clan Justice— The royal reforms — 
 Feudal Justice— Resurrection of State justice— The king's 
 peace— Extension of the idea— Possession— Breach of 
 the peace — Indirect jurisdiction — Superior methods of the 
 royal courts— The Writ— The Jury— A royal privilege- 
 Sold to private persons— Failure in Germany and France 
 —Judicial organization ; two principles — (i) Royal officials 
 in popular courts— Drawbacks to the principle— Circuit 
 
CONTENTS. 
 
 judges— C«rza Regis— {2) Royal judges in fixed districts- 
 French developement — German developement — Failure 
 of both — The Paulette — EngUsh developement — The 
 Curia Regis— The Circuits — The Justices of the Peace — 
 The Court of Chancery — Not merely a secretarial bureau 
 — Nor a mere Court of Equity — But an organ of law 
 reform — Origin of the Court— Formalism and Chancery 100 
 
 CHAPTER V. 
 
 LAND SETTLEMENT AND LOCAL UNITS. 
 
 Steps in social progress — Extensive and intensive agricul- 
 ture — The transitional stage — The Teutonic clans — 
 The purely Teutonic lands — The Teutonic village — Its 
 simplest elements — Its basis — A proprietary domain? — 
 A household or clan settlement? — Not a creation of the 
 State — And outside its influence — The Hundred — The 
 shire or county — Rivalry between the State and the Clan — 
 The creation of landowners — Reaction on the village — 
 Fate of the shire — The Roman Count — The German 
 Graf — Feudalism — The difference in England — The 
 Norman conquest — Danger from the sheriffs — The posi- 
 tion peculiar to England — Other countries — France : the 
 proprietary system — Weaknesses of the system — Arbitrary 
 areas — Concentration of powers — Proprietary offices — 
 Changes in the system — Lieutenants gin^raux — Intendants 
 — Germany : the military system — Gaueinteilung and 
 Vogteien of Charles the Great — Peace Districts — Military 
 Circles — Consequences of English developement — No 
 hereditary jurisdiction — No bureaucracy — No privileged 
 officials — Union of State and Clan — Local self-government 148 
 
 CHAPTER VI. 
 
 POSSESSION AND PROPERTY. 
 
 Possession a question of fact — Property a question of Law — 
 The Anglo-Saxon Dooms. — The Church's cattle and the 
 Church's peace — The Church's cattle — What are the 
 
CONTENTS. 
 
 Church's cattle ? — How did the Church acquire them ? — 
 The Church's peace— The payment of fines— Payment in 
 goods — Barter and sale — The royal influence — Subjective 
 notion of ownership — Following the Trail — Hand muss 
 Hand wahren — Land — Land ownership a share in a 
 group — The village is an exclusive group — The homo 
 migrans — The State breaks up the village ; by repressing 
 communal action, by encouraging freedom of settlement, by 
 protecting sales — Claims of the village — Claims of the kin — 
 Royal and clerical influence— The State's landowners and 
 their tenants — The Manor — Disappearance of the alod — 
 Execution against land — Village liability — Seizure of mov- 
 ables — The Chrene Cruda — Forfeiture by the king's ban — 
 The Law of Inheritance — The blood feud kin — The heirs 
 of the Hide — The exclusion of women — The gentile law of 
 Inheritance— Admission of women — Admission of the 
 emancipated — Admission of representatives — Cognatic 
 Inheritance — The Testament — Repetition of the process 
 after the appearance of feudalism — The State and Property 
 — The Peace — Extension of the idea — Seisin and Pos- 
 
 i88 
 
 CHAPTER VII. 
 
 CASTE AND CONTRACT. 
 
 Caste society— The noble — The farmer— The serf— Manu- 
 mission — State nobility — Clerics — The wergild system an 
 index to social organization — Nature of the wergild — 
 The nam — Its exercise restricted — The pledge as a defence 
 — The pledge as a security — Security for reappearance— 
 The surety— Developement of suretyship — Appearance of 
 Contract — Position of the surety — Extension to the prin- 
 cipal debtor— The Oath— Developement of the idea of 
 Contract— The written contract — England does not recog- 
 nize—The witnessed contract— The English theory of 
 Contract— Trespass on the Case— y4wz<;«/«/— Considera- 
 tion— Summary of the History of Contract 246 
 
CONTENTS. xiii 
 
 CHAPTER VIII. 
 
 SUMMARY. 
 
 PAGE 
 
 Law now a social force — May originally have been individual — 
 Habit — Becomes custom — The social sanction — Taboo — 
 Joint responsibility — Law a conservative force — The revo- 
 lutionary instinct — Law and social organization — Social 
 motives — Social principles — The gentile principle — The 
 Custom of the Clan — Features of gentile society — Groups 
 — Exclusiveness — Weakness of gentile principle — Earliest 
 form of the State — State principles — Rivalry between State 
 and Clan— The feudal compromise — Final victory of State 
 — But influenced by gentile ideas — An objection met — 
 Illustrations — Contract 295 
 
 List of Principal Sources 319 
 
 Synoptic Table of Sources 327 
 
 Index 347 
 
LAW AND POLITICS. 
 
 [CH. 
 
 is inclined to regard these inconsistencies as 
 belonging more to the theory than to the facts. 
 
 Nor is he, in truth, very far wrong. When all 
 deductions have been made for uncertainties of 
 interpretation, and authorities of doubtful validity, 
 it is yet possible to say with tolerable certainty 
 what is law and what is not, in the England or 
 the France of to-day. The contents of legal 
 systems may be complex and voluminous, but the 
 idea of Law is comparatively simple. Despite all 
 criticism, Austin's main position is unassailable, 
 regarded as a summary of existing facts. What 
 the State wills, that, and that alone, can the in- 
 dividual be compelled to obey, 
 itsinade- But this fact, suggestive as it is, loses half its 
 
 quacy to 
 
 explain value, unless it is regarded in its true historical 
 
 past con- ° 
 
 ditions. perspective, as the final outcome of a long un- 
 conscious process, fraught with infinite moment 
 to the human race. For, as we go back upon 
 the history of Law, we very soon reach a point 
 at which the Austinian theory is helpless to 
 explain the facts. Here is a "source" of law, 
 an authority which, for some reason or another,, 
 great masses of men feel themselves bound to 
 follow, not because they choose, but because they 
 must. And yet it certainly is not a command of 
 
I.] SOURCES. 3 
 
 the State, direct or indirect. Upon critical ex- 
 amination, it may turn out to be the work of a 
 mere private composer. Why do men obey it ? 
 Further back again, we find a purely impersonal 
 document, compiled, no one exactly knows how, or 
 by whom ; and yet it is the controlling force which 
 shapes the daily conduct of men. They do not 
 even consider the possibility of disregarding it. 
 It is not the work of the State, it may not even 
 be recognized by the State, there may be no 
 State to recognize it. Yet the essential ideas of 
 Law, the evident ancestors of our modern juristic 
 notions, are clearly there. 
 
 It is manifest, then, that, to the fundamental What is 
 
 Law? 
 
 question — What is Law ?, no dogmatic or com- 
 prehensive answer can safely be given. Not 
 only do systems of law change their contents, 
 but the conception of Law itself changes with the 
 progress of mankind. Before we look at the 
 history of laws, we must glance at the history of 
 Law. And this glance will show us something 
 of the secret places of human thought. For Man, 
 in his earlier stages at least, is a very material 
 creature ; and Law concerns his material interests, 
 He is, likewise, a creature of strong and ill-regu- 
 lated passions ; and Law is the force which will 
 
LAW AND POLITICS. 
 
 [CH. 
 
 ■> 
 
 I 
 
 y 
 
 Y' 
 
 Two 
 
 methods 
 of study- 
 ing the 
 question. 
 
 The 
 
 deductive. 
 
 control them. Therefore man's ideas of Law are 
 very genuine ; they are the expression of his 
 inmost feeHngs, the truest possible index to his 
 character. The study of Law as a mass of 
 arbitrary rules is, surely, one of the most repul- 
 sive pursuits in which a man of intelligence can 
 engage. The study of a legal system, as a 
 deliberate attempt to cover and regulate the sum 
 of existing material activities, appeals, after all, 
 only to the logical faculties of the student, and 
 creates but a limited horizon. But the study of 
 Law as the recordofhuman__progress, as the 
 goldgiLdeposit of the stream oFTime, is worthy 
 of the highest intellect, and stimulating to the 
 most_gifted imagination. 
 
 There are two roads by which we might: 
 attempt to arrive at a solution of the question — 
 What have men thought of Law in times gone 
 by? In all ages which have had any literary 
 expression, men have written and spoken of 
 Law. Plato and Aristotle, Ulpian and Gaius, 
 Vico and Montesquieu, Hobbes and Locke, have 
 speculated on Law, and contributed to the for- 
 mation of human thought upon the subject. By 
 a careful comparison of their writings, we might 
 trace the literary history of the idea of Law ; and 
 
I.] SOURCES. 5 
 
 no thinking man could deny that these writings 
 have profoundly, if indirectly, influenced human 
 conduct. But there is grave danger in such a 
 course. The great thinker is, by his very 
 nature, apart from his fellow men. His ideas 
 are not the common thought of his time ; they 
 are far more likely to be the common thought 
 of a future time. And yet Law is essentially 
 a thing for common men ; it is the rule of the 
 camp, the market-place, the shop, and the field. 
 If we want to know what Law was, not what it The 
 
 inductive. 
 
 ought to have been, we must take another road, 
 and look, not at the books of the philosophers, 
 but at the codes of the practitioners, at the rules 
 which (to return to our former point) men felt 
 themselves bound to obey, not because they 
 thought them wise, or good, or pleasant, but 
 because they could not help themselves. 
 
 But here a caution is necessary. A writer, Dangers 
 
 ^ _ of the 
 
 with a theory to prove, may glance quickly from inductive 
 system to system of law, in search of examples. 
 By ignoring dates and distances, by disregarding 
 important considerations which destroy the whole 
 } value of the argument, it is possible to find 
 illustrations from the history of Law for almost 
 any conceivable proposition. But inferences 
 
LAW AND POLITICS. 
 
 CH. 
 
 Teutonic 
 Law. 
 
 drawn from such a system of proceeding, even 
 by a student of encyclopaedic knowledge, are m 
 the highest degree untrustworthy, and wholly un- 
 scientific. For a student of limited knowledge, 
 the only safe plan is to take a single system, or 
 group of kindred systems, to trace their progress 
 through successive stages, to compare one stage 
 with another, and one local variation with another. 
 That is a truly scientific process. Even here, 
 external influences may detract from the value of 
 inferences apparently irresistible ; but at least the 
 chances of truth will be greater. An illustration 
 from other sources may occasionally be helpful. 
 But it will prove nothing. 
 
 The epoch in which the states of Western 
 Europe are now living, has a history and a unity 
 of its own, and is peculiarly suitable as material 
 for the study we are about to undertake. It is our 
 own epoch, we know more about it than we know 
 of any other, it appeals more powerfully to us 
 than any other, we have inherited its traditions, 
 we breathe its ideas. Dispute as we may about 
 the details, we know that the Roman Empire fell 
 as a political power, that the sceptre of Western 
 Europe passed from the Roman to the Teuton. 
 That the influence of Rome long overshadowed 
 
I-] SOURCES. 7 
 
 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 pro- 
 ceeds 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 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 Not legis- 
 Frank kingdoms, where the conscious imitation ft,^- ' • 
 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. 
 
LAW AND POLITICS. 
 
 [CH. 
 
 Quite possibly, too, the kings who collected them 
 took the opportunity of modifying certain details 
 during the process. But the notion of the king, 
 i.e. the State, as the source of legislation, is yet far 
 distant. Several of these codes profess to give 
 their own account of the way in which they were 
 drawn up ; and, in spite of all the criticism which 
 has been directed against the more extravagant 
 pretensions of the so-called historical school, there 
 can be little doubt that these accounts contain a 
 but record, large element of truth. The famous Lex Sahca, 
 the custumal of the race which became overlords 
 of half Western Europe, contains a prologue 
 which, though doubtless of later date than the first 
 redaction of the custumal itself, is yet of great 
 antiquity, and which describes the collection of 
 the origines causarum by four chosen men (whose 
 names and districts are given) after lengthy dis- 
 cussions with the.judices, or presidents of the local 
 assemblies. The first Burgundian code (early 
 sixth century), known as the Lex Gundobada, 
 describes itself as a " definition," and is confirmed 
 by the seals of thirty-one counts. The oldest code 
 of the Alamanni, no longer extant in a complete 
 form, is known by the suggestive title of Pactus or 
 Agreement ; while the extant edition, dating from 
 
I.] SOURCES. 9 
 
 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" {dsettan), "fastening" {gefcestnode), or 
 " securing " [getrymede) their laws.^ 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 ^ shows that, even in the tenth century, 
 • and under so powerful a monarch as Otto the 
 Great, Law was regarded a s a truth to be dis- 
 coyered^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 con- 
 cerning 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 grand- 
 children, the law was solemnly declared in that 
 
lo LAW AND POLITICS. 
 
 [CH. 
 
 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 dis- 
 coverable only in the last resort by an appeal. to 
 supernatural authority. 
 Migration There is one circumstance connected with the 
 
 and con- t-. i • i_ • i. 
 
 quest. 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 con- 
 quests. The Teutonic settlements west of the 
 Rhine were the first to produce compilations of 
 Teutonic law, and it may be, and indeed is, often 
 asserted, that this fact is due to the example of 
 the Code of Theodosius, the great monument 
 of Roman jurisprudence which confronted the 
 invaders of the Empire. But the real epoch 
 of law-producing activity coincides closely with 
 the conquering careers of Charles Martel, Pepin 
 the Short, and Charles the Great. During this 
 period are produced the Laws of the Alamanni, 
 the Bavarians, the Frisians, the Thuringians, 
 and the Saxons. In England, the Anglo-Saxon 
 
1.] SOURCES. 11 
 
 migrations give rise to a scanty crop of laws ; but 
 the real activity comes with the conquests by the 
 Danes. On the other hand, in Scandinavia, of all 
 Teutonic countries the most isolated, the oldest 
 extant code dates from the end of the twelfth 
 century or the beginning of the thirteenth. The 
 fact is an illustration of the great principle, that 
 mixture or, at least, contact of races is essential to 
 progress. The discovery of differences is needed 
 to stimulate thought and produce coherence. 
 Resistance and attack are alike provocative of 
 definition. The conqueror wishes to enforce 
 his customs upon his new subjects. He must 
 needs explain what they are. The conquered 
 demand the retention of their ancient practices. 
 They are compelled to formulate their claims. 
 So it is when Charles the Great conquers 
 Western Europe. So it is again when William 
 conquers the English, when the English conquer 
 India, when Napoleon conquers Germany. 
 
 This fact will, perhaps, help to account for one The aim 
 feature of the Lezes Barbarorum which has often ^s" ^'"'^ 
 
 "^ barorum. 
 
 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 
 
" LAW AND POLITICS. [CH. 
 
 process which produced them was probably a very 
 troublesome one, we shall be inclined to think 
 that their compilers only recorded what was 
 absolutely necessary. And this comprised just 
 those points which the processes of migration and 
 conquest had rendered doubtful. The ancient 
 custom had received a shock ; men doubted 
 how far some of its terms would apply to new 
 conditions. Even very modern systems of law 
 frequently omit all mention of rules which are 
 really fundamental. No statute, no recorded 
 decision of an English law court, says that a man 
 may destroy a chattel which belongs to him. Why 
 should it ? No one doubts the fact. Much less 
 does a primitive code trouble itself about theo- 
 retical 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 beyond those bounds which 
 have hitherto been deemed inexorable. The 
 criminal and the reformer are alike law-breakers. 
 The criminal is the man who endeavours to 
 
I.] SOURCES. 13 
 
 return to a state of things which society has once 
 practised, but has condemned as the result of ex- 
 perience. 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, becausej 
 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 our- 
 selves 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 The per- 
 sonality of 
 deserve to be noticed : but space forbids the the Leges 
 
 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 prin- 
 ciple, that all persons livin g in a cert ain place are 
 subject to" theTawof that place, has to submit 
 
H 
 
 LAW AND POLITICS. [CH. 
 
 to substantial exceptions. In the days which 
 followed the downfall of the Roman Empire, the 
 principle was not recognized at all. The pro- 
 vincials of Gaul, at the time of the Teutonic in- 
 vasions, lived under a great and uniform system, 
 devised by the jurists and officials of the Roman 
 empire, and embodied in the Theodosian Code 
 and other monuments. The invaders had no 
 thought of depriving them of this privilege. 
 They did indeed, in some cases, publish special 
 codes for their Roman subjects ; and so we get 
 a Lex Romana Wisigothorum, a Lex Romana : 
 Burgundionum and (possibly) a Lex Romana 
 Curiensis. But it seems again probable, that these 
 compilations are merely attempts to settle in- 
 evitable 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 
 of Paulus, the Lex Aquilia, and other purely 
 Roman sources.^ Amongst the Teutonic popu- 
 lations of the north and east, the question of the 
 provincials would, for obvious reasons, be less 
 important ; but the curious reference in the Lex 
 Sahca to the man qui legem salicam, vivit,^ seems 
 to indicate a similar principle. For slightly later 
 days, the matter is set at rest by the decree 
 
I.] SOURCES. 15 
 
 of Chlothar II. — "We have ordained that the a.d. 584- 
 
 628. 
 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 terrcs, unless they were pre- 
 pared 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 Volker- 
 wanderung, as well as the recognition of racial 
 differences by the barbarians.^ But, as the same 
 learned historian gives an excellent account of at 
 least a score of new German settlements, hostile 
 or friendly, within the Empire,^ the first question 
 resolves itself into one of figures ; while his 
 elaborate attempt to prove that the terms Franci 
 and Romani are names of ranks rather than of 
 races,' would seem, if successful, to point to the 
 fact that the Teutons settled down as an aristo- 
 cracy upon the enslaved provincials — a doctrine 
 which is M. Fustel's pet aversion. Certain it is, 
 that the barbarians themselves clearly recognized 
 the principle of the personality of laws. The 
 
i6 LAW AND POLITICS. [cH. 
 
 oldest part of the Lex Ribuaria (Tit. 31) contains 
 the following conclusive passage : — " This also 
 we determine, that a Frank, a Burgundian, an 
 Alamann, or in whatever nation he shall have 
 dwelt, when accused in court in the Ribuarian 
 country, shall answer according to the law of the 
 place where he was born. And if he be con- 
 demned, he shall bear the loss, not according to 
 Ribuarian law, but according to his own law." 
 Doubtless, even here, we may see foreshadow- 
 ings 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. I Law is at 
 first as much personal as is religion ; and a pro- 
 fession of law is much like a profession of faith. ^ 
 The The second stage in the history of Teutonic 
 
 Capitula. '' 
 
 Law is, apparently, very modern in character. 
 It looks like positive political legislation, as 
 we understand it at the present day. The 
 Capitularies of the Karolingian House, and of 
 the Beneventine Princes, the statutes and edicts 
 
I.] SOURCES. 17 
 
 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 Their 
 
 origin. 
 
 here we come upon one of the great sources of 
 error in medieval history. The Frank Empire, 
 in both its stages, was, in a very important sense, 
 a sham Empire. It aimed at reproducing the 
 elaborate and highly organized machinery of 
 the Roman State. Just as a party of savages 
 will disport themselves in the garments of a 
 shipwrecked crew, so the Merowingian and 
 Karolingian kings and officials decked them- 
 selves with the titles, the prerogatives, the 
 documents, of the Imperial State. No doubt 
 the wisest of them, such as Charles the Great, 
 had a deliberate policy in so doing. But the 
 majority seem to have been swayed simply 
 by vanity, or ambition, or admiration. Their 
 punishment was the downfall of the Frank 
 Empire ; but they might have been consoled for 
 their failure, could they have looked forward a 
 thousand years, and seen their pretensions 
 gravely accepted by learned historians on the 
 ' faith of documents pillaged from the Imperial 
 chancery, which they scattered abroad without 
 understanding their contents. The Frank Empire 
 
 c 
 
i8 LAW AND POLITICS. [CH. 
 
 was, from first to last, a great anachronism. 
 With a genuine civilization equal in degree to 
 that of their kindred in Britain and Scandinavia, 
 the Germans of continental Europe found them- 
 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." 
 Imitation Now oue of the most splendid prerogatives of 
 
 of Roman 
 
 ideas. the Roman Emperor was his power of legislation. 
 Quite naturally, his imitators, the Prankish kings 
 and emperors, strove to exercise it. Hence the 
 Capitula, or royal and imperial edicts, which, at 
 any rate for some time, no doubt played a great 
 part in the history of Teutonic law. The 
 difficult questions connected with them have 
 been acutely discussed by competent critics, who 
 are not by any means unanimous.^ But one or 
 two results seem clear. 
 
 Character The Capitula are distinguishable from the Leges. 
 
 ofthe 
 
 Capitula. i hey emanate directly from royal authority, they 
 
I.] SOURCES. 19 
 
 deal with less important matters, they have, pro- 
 bably, a less permanent effect. In the pure type 
 of Capitulary, the Capitulaper se scribenda, there 
 is no pretence of collecting the law from the 
 mouth of the people. Many of them are mere 
 directions to royal officials. The great Capitulare 
 de Villis, the equally important Capitulare de 
 Justitiis Faciendis, of Charles the Great, are of 
 this character. It is very doubtful if the Capitula 
 of one king bound his successors ; for we fre- 
 quently find almost verbatim repetitions by suc- 
 cessive monarchs. On the other hand, some of 
 the Capitula are legibus addita — incorporated by 
 general consent with, and treated thenceforward 
 as part of, a Lex, or custumal. Many of these are 
 now so embedded in the texts of the Leges, that 
 it requires a trained eye to detect them. Others, 
 like the great Capitulare Saxonicum of the year 
 797, declare openly their origin, and testify to 
 the premature appearance of an idea which is, 
 ultimately, to revolutionize law, the idea that the 
 king proposes new laws, and the people accept 
 them. A large number of Saxons, gathered to- 
 gether from divers pagi, Westphalian and East- 
 phalian, unanimously consent to the adoption of 
 the Prankish Capitula, with certain modifications. 
 
20 
 
 LAW AND POLITICS. [CH. 
 
 Moreover, the Capitula are of great importance 
 in stimulating the new idea that Law is territorial, 
 for the Capitula of a monarch bound all within 
 his realm, or such part of it as the Capitula might 
 specify. We are obliged to suppose, also, that 
 they secured practical obedience, at least during 
 the better days of the Frank monarchy ; for they 
 were twice collected in a convenient form, once 
 by the Abbot Ansegis in the year 827, again, 
 with daring interpolations, by the so-called 
 Benedict, some twenty years later. 
 
 But, it must be repeated, the Capitularies are 
 hothouse plants, due to the stimulus of Roman 
 ideals. The monuments of the purely German 
 countries which resemble them in name, e.g. 
 the Decrees of the Bavarian Tassilo, turn out, 
 on inspection, to be true Leges, produced or, at 
 least, accepted by a popular assembly under 
 Prankish 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 
 
I-] SOURCES. 
 
 21 
 
 long before the kings who rise up out of its 
 ruins claim the power to make laws. If we 
 leave England out of sight, there is an almost 
 unbroken silence in the history of Teutonic 
 law during the tenth and eleventh centuries. 
 The Roman Empire, real and fictitious, is dead, 
 and, with it, the idea of legislation, if not of 
 Law. When the idea revives again, in the 
 prospering France of the thirteenth century, we 
 find the legists asserting the royal power of 
 legislation in maxims which are simply transla- 
 tions of the texts of Roman Law. " That which 
 pleases him " (the king) " to do, must be held for 
 law," says Beaumanoir. A century later, Boutil- 
 lier is careful to explain that the king may make 
 laws, qui est empereur en son royaume. 
 
 And now, if we are asked the question — Feudal 
 
 Law. 
 
 Did men during those tenth and eleventh 
 centuries live without Law ? — the answer we 
 must give is, that they mostly did, and that 
 evil were the results. In the far south-west, 
 where the Visigothic settlers had been crushed 
 out of existence between the Saracens and the 
 provincials, in Acquitaine, Gascony, Navarre, 
 and Provence, the old Roman Law had remained 
 the every-day law of the people. This is the 
 
22 LAW AND POLITICS. [ch. 
 
 country of the Langue d'Oc, the later pays de 
 droit dcrit. But, elsewhere, the old Empire of 
 Charles the Great had become a country of what 
 the Germans call Sonderrecht ; each little district 
 had its own special law. For this was just the 
 epoch of feudalism, and the political unit was 
 no longer the clan, or the people, but the fief, 
 the district under the control of a seigneur, or 
 lord. Of the place of feudalism in political 
 history, we shall have to speak when we deal 
 with the State ; here we are concerned only with 
 its influence on notions of Law, 
 Its origin. The feudal seigneur derived his powers from 
 I two sources. On the one hand, he represented 
 I a little bit of the imperial authority of Charles the 
 I Great, which had, so to speak, set up for itself. 
 1 This is the true droit seigneurial. On the other 
 i hand, he had become, not merely lord, but pro- 
 prietor of his district, and, in this character, he 
 exercised droit fonder. He might claim seign- 
 eurial 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 
 
I.] SOURCES. 23 
 
 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 Boutillier 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 enquite 
 par tourbe, an enquiry by the multitude.* 
 
 This state of things, the result of the total brea k- its results. 
 down 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 Law 
 
 becomes 
 
 local institution. Agriculture is almost the sole '°=ai. 
 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 it is ad- 
 
 i ^ -. ministered 
 
 to the famous, but much misunderstood doctrine, ty 
 
 "peers." 
 
 oi judiciumj^er pares, "judgement by peers." 
 The personal nature of the tie between lord and 
 man forbade the hypothesis that any general rules 
 
24 
 
 LAW AND POLITICS. [CH. 
 
 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 enabled him to refusejojeaye 
 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 prin- 
 ciple 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 a re 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 ; andlgft 
 the facts to be settled by some formal process. 
 Trial by jury gives, in fact, where it is succ essfu l, 
 the death blow to trial by peers. 
 It belongs Once more, the law of the Fief is the law of a 
 ■ court. The power of holding a court was no^jhe 
 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 
 
I.] SOURCES. 25 
 
 enabled him to keep an eye on what was happen- 
 ing among his vassals. Moreover, long after the 
 military, the fiscal, and the administrative powers 
 of the seigneur had disappeared or become un- 
 important, his judiciary powers remained almost 
 intact. So feudal law is essentially a law of .^ 
 courts. No doubt, certain general principles 
 run through it all, and, later on, we shall see 
 attempts, such as the Libri Feudorum, to state 
 these in a universal form. No doubt, the right 
 of appeal from lord to overlord tended to produce 
 a certain uniformity in wide areas. But these 
 appearances are apt to be delusive. The ideal 
 type of feudal law is that so graphically depicted 
 in the works which pass under the title of the 
 Assises de Jerusalem, and which profess to de- 
 scribe the usages of that curious product of the 
 Crusades, the Latin kingdoms of Palestine. 
 These are divided into the Assises of the 
 High and of the Low or Burgess Court re- 
 spectively. 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, 
 
26 
 
 LAW AND POLITICS. [ch- 
 
 , not always very consistent, deligh ting in small 
 shadesd^ difference, difficult to discover. These 
 are the special characteristics of true fe udal 
 law. Where we find bold principles, simplicity, 
 uniformity, in so-calledTTeudal law— for example, 
 in English law of the thirteenth century—we 
 may be very sure that some_alienJnfluence has 
 been at work. 
 It is in- Finally, the feudalism of law is responsible for 
 
 complete. _, , , 
 
 one more result of great importance. Jbeudal 
 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. 
 Canon In the early days of the Frank dominion, the 
 
 churches lived under Roman Law. For one thing, 
 the Christian Emperors had legislated freely 
 on ecclesiastical matters, long before the Teutons 
 were converted to Christianity ; and the Mero- 
 wingians could hardly venture to meddle with 
 the organization of that mighty power which had 
 destroyed their ancient gods, and done so much 
 to give them the victory over their enemies. 
 For another, the churches were corporations, 
 
I.] SOURCES. 27 
 
 juristic persons ; and it took the Teutonic mind 
 a long time to grasp the highly complex notion 
 of a corporation." No doubt, the individual 
 mass priest of Prankish 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 Barbaroruvi to meet 
 their case. 
 
 As time went on, however, new influences 
 manifested themselves. The disappearance of 
 the Emperors from Rome, the schism between 
 Eastern and Western Christianity, left the Popes 
 in a commanding position with regard to the 
 Western Church. They stepped into the place 
 of the Roman Emperor, and issued Decretals 
 which the clergy considered as binding in eccle- 
 siastical matters. Prom the earliest times, also, 
 General Councils of the Church had met, and > 
 had legislated on matters of faith and discipline. 
 Towards the end of the fifth century, a collection 
 of these decrees and resolutions was made by 
 Dionysius Exiguus, and was regarded as of great 
 authority in Church matters. Neither did the 
 Church disdain the help of the secular arm, 
 especially in such delicate matters as tithes and 
 
28 
 
 LAW AND POLITICS. [CH. 
 
 patronage, in which the lay mind might require 
 the use of carnal weapons. The alliance between 
 the earlier Karolingians and the Papal See is 
 marked by the appearance of ecclesiastical 
 Capitula, many of them founded on Conciliar 
 resolutions, in which, although the Frank emperor 
 maintains the royal claims, the Church gets it 
 pretty much her own way." Similar documents 
 are found amongst the Anglo-Saxon laws ; '^ 
 and even the Scandinavian codes have their 
 kirkiubolktzr, or Church Books. ^^ But ecclesi- 
 astical legislation becomes more and more inde- 
 pendent as time goes on. A great stimulus is 
 given by the work of the forger who calls 
 himself Isidorus Mercator, which appears in the 
 ninth century ; and which incorporates with the 
 work of Dionysius Exiguus some sixty so-called 
 Decretals of more than doubtful authenticity. 
 Three centuries later, the great work of Gratlan 
 of Bologna, the DecretuTn Graiiani, though 
 obviously the work of a private expounder, was 
 received as an authoritative statement of eccle- 
 siastical law. Later still, in the year 1234, come 
 the Five Books of Gregory IX., in 1298 the 
 " Sext," or sixth book, of Boniface VIII., in 1317 
 the Decretals of Clement V., the " Clementines." 
 
I.] SOURCES. 29 
 
 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 Speculum, in which 
 Honorius extends the prohibition to all bene- 
 ficed clerks." This is not the place in which 
 to discuss the difficult question of the border 
 line between the provinces of Canon and secu- 
 lar law. It is sufficient to say that, from the 
 ninth century to the close of the Middle Ages, 
 not the most autocratic monarch of Western 
 Europe, not the most secular of lawyers, would 
 have dreamed of denying the binding force, 
 within its proper sphere, of the Canon Law. It 
 had its own tribunals, its own practitioners, its 
 own procedure ; it was a very real and active 
 force in men's lives. And yet, it would puzzle an 
 Austinian jurist to bring it within his definition 
 of Law. The State did not make it ; the State 
 did not enforce it. 
 
 The case of the Law Merchant is equally ^''g^.^-^!J"j 
 
30 LAW AND POLITICS. [CH. 
 
 instructive. Trade and commerce, almost ex- 
 tinct 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 trans- 
 actions to which they gave rise were beyond 
 the horizon of the law of the Fief and the old 
 folk-law of the market. Gradually, the usages 
 of merchants hardened into a cosmopolitan law, 
 often at positive variance with the principles of 
 local law, but none the less acquiesced in for 
 mercantile transactions, and enforced by tribunals 
 of commanding eminence and world-wide reputa- 
 tion, such as the courts of the Hanseatic League, 
 and the Parloir aux Bourgeois at Paris. Occa- 
 sionally, some special rule of the Law Merchant 
 receives official sanction from king or seigneur. 
 But, for the most part, the Law Merchant is 
 obeyed, no one knows why. It is simply one 
 of several authorities of different origin, which 
 may, and in fact do, come into conflict at many 
 points. The need of a reconciling influence is 
 obvious. In the thirteenth century the Teutonic 
 world is still awaiting the solution of the all- 
 important question — What is Law ? It is the 
 
I.] SOURCES. 31 
 
 glory of England that she, of all the countries 
 of Teutonic Europe, was the first to furnish that 
 solution. 
 
 Notes to Chapter I. 
 
 ^ Schmid, Gesetze dej- Angdsachsen, ed. 2. ^thelbirt, p. 2, 
 Ine. p. 20. 
 
 "^ Widukind, Annales (Men. Germ., SS. fo. iii. p. 440). 
 
 ' Lex Romana Burgundionuni, Titt. I. (3), IV. (3), V. (2), 
 XIX. (2), etc. 
 
 * Lex Salica, Tit. XLI. (1). 
 
 ' Fustel de Coulanges, L'invasion Germanique, pp. 340 
 and 543. 
 
 " Ibid., Bk. II. capp. iv.-x. 
 
 ' Fustel de Coulanges, De I'tnegalite du wergild dans les lois 
 franques (Nouvelles Recherches, pp. 561, sqq^. 
 
 ^ Cf. Boretius, Beitrdge zur Capitularienkritik. F. de Cou- 
 langes, De la confection des lois au temps des Carolingiens 
 (Nouvelles Recherches). M. Thdvenin, Lex et Capitula 
 (Bibliothfeque de I'^cole des Hautes Etudes, 1878, fasc. 35, 
 p. 137, sqq.). 
 
 ° La Somme Rurale (ed. Le Caron), Bk. I. Tit. 2. 
 
 '° On this interesting point, see Gierke, Deutsches Genoss- 
 enschaftsrecht, and Pollock and Maitland, History of English 
 Law, vol. i. pp. 469-495. 
 
 " Cf. the Capitularies of 802 {a sacerdotibtis propositd), of 
 803-4 {ad Salz), of 813 (e Canonibus excerptd), 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. Westgotalagen, ed. Beauchet, pp. 131, sqq. 
 
 ^* Decretals of Gregory IX. (ed. Friedberg), Bk. III. Tit. 
 SO, c. 10. 
 
32 
 
 LAW AND POLITICS. [ch. 
 
 CHAPTER II. 
 
 SOURCES — (continued). 
 The place At the time of the Norman Conquest, England 
 
 of Eng- 
 land, is^ from a legal standpoint, the most backward 
 
 of all Teutonic countries, save only Scandinavia. 
 While France and Germany have their feudal 
 laws, which, fatal as they are to unity and good 
 government, are yet elaborate and complete 
 within their own sphere ; while Spain, after long 
 harrying by the Moslem, is awaking once more 
 to brilliant life and precocious political develope- 
 ment under Sancho the Strong and CidCampeador; 
 England is still in the twilight of the folk-laws, 
 and, seemingly, without hope of progress. Eng- 
 land had never been part of the Frank Empire ; 
 and such rudiments of a feudal system as she 
 possessed before the Conquest cannot be com- 
 pared with the highly organized feudalism of the 
 Continent. To revert again to the admirable 
 French distinction, there might be in England 
 
U.] SOURCES. 33 
 
 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 permanent impress 
 on English law. When, at the beginning of the 
 twelfth century, an English writer is trying to 
 describe English law, in the so-called Leges 
 Henrici, he ventures to quote as authorities the 
 antiquated Lex Salica and Lex Ribuaria.^ 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 between 
 Pepin the Short and Pope " John."^ Evidently, 
 English law was, even then, in a very rudi- 
 mentary state. 
 
 But the Norman Conquest soon changed all Effects 
 
 of the 
 
 this. The Normans were the most brilliant Norman 
 
 Conquest, 
 
 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 
 
34 LAW AND POLITICS. [^H- 
 
 their Scandiaavian 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.^ Wherever the Norman goes, 
 to England, to Sicily, to Jerusalem, he is the 
 foremost man of his time. We cannot leave 
 these facts out of account in explaining the place 
 of England in the history of Law. 
 
 But the greatest genius will do little unless he 
 is favoured by circumstances ; and circumstances 
 favoured the Normans in England. The more 
 rudimentary the English law, the more plastic to 
 the hand of the reformer. While Philip Augustus 
 and St. Louis found themselves hampered at 
 every turn by the network of feudalism, while 
 even the great Barbarossa was compelled to 
 temporize with his vassals, and to respect the 
 privileges of the Lombard League, Henry 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 
 
II.] SOURCES. 35 
 
 to note the effect of the Norman Conquest on 
 the history of Law. 
 
 In the first place, it converted the law of Law is 
 
 , made/ffca/, 
 
 hngland into a lex terrce, 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 the 
 Normans, but a law of the land. It took about 
 a century to accomplish this result, which we 
 doubtless owe to feudal principles. England 
 was one great fief in the hands of the king, and 
 it was to have but one law. Writing in the reign 
 of Henry II., Glanville can speak of the "law and 
 custom of the realm." Such a phrase would then 
 have been meaningless in the mouth of a French 
 or German jurist. About this time a celebrated and 
 
 common. 
 
 expression makes its appearance in England. 
 Men begin to speak of the " Common Law." The 
 phrase is not new ; but its application is suggestive. 
 Canonists have used it in speaking of the general 
 law of the Church, as distinguished from the local 
 customs of particular churches. We may trace it 
 back even to the Theodosian Code.* In the word- 
 ing of a Scottish statute of the sixteenth century, 
 (and this is very suggestive), it will mean the 
 Roman Law.^ But, in the mouth of an English 
 
36 LAW AND POLITICS. [CH. 
 
 jurist of the thirteenth century, it means one thing 
 very specially, viz. the law of the royal court. 
 And because the royal court is very powerful in 
 England, because it has very little seigneurial 
 justice to fight against, because the old popular 
 courts are already antiquated, the law of the royal 
 court rapidly becomes the one law common to all 
 the realm, the law which swallows up all, or nearly 
 all, the petty local and tribal peculiarities of which 
 English law, at the time of the Conquest, is full. 
 I The Common Law is x}s\&jtis et consuetudo regni 
 I with a fuller developement of meaning. It is 
 I not only territorial ; it is supreme and universal, 
 This is the first great result of the Conquest. 
 Law is Again, the Common Law is the law of a 
 
 court. When the Normans first settled in 
 England, they endeavoured to collect law, some- 
 what in the old way of the Leges Barbarorum, 
 through the wise men of the shires and the in- 
 quests 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 English, which they more 
 
II.] SOURCES. 37 
 
 than once promised to observe.^ 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 Reforms 
 
 of the 
 
 by the two Henries. Henry Beauclerk begins twelfth 
 
 ■' JO century. 
 
 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 mtsst, or perambulating officials, 
 may have floated down to the twelfth century, 
 and the French kings are holding £chiquiers in 
 Normandy, and Grands Jours in Champagne. 
 But these are irregular and unsystematic ; in the 
 fourteenth century we find Philip the Fair promis- 
 ing to hold two Exchequers and two Great Days 
 a year, which implies that Exchequers and Great 
 Days have been rare of late.' By that time the 
 English circuit system has been long a fixed insti- 
 tution, working with regularity and despatch. It 
 has stood the shock of Stephen's reign ; under 
 the great king who is both Norman and Angevin, 
 
38 LAW AND POLITICS. [CH. 
 
 it has Struck its roots deep into the soil. Before 
 the end of the twelfth century, the king's court 
 has become the most powerful institution in the 
 kingdom, a highly organized body of trained 
 officials, who make regular visitations of the 
 counties, but who have a headquarters by the 
 side of the king himself. This court is at first 
 financial, administrative, judicial. In course, of 
 time the judicial element consolidates itself; it 
 becomes professional. It devises regular forms 
 of proceeding ; the first extant Register of 
 Writs dates from 1227, but, doubtless, earlier 
 registers have existed for some time in the 
 archives of the Court. Above all, it keeps a 
 strict and unassailable record of all the cases 
 which come before it. Any doubt as to 
 precedent can be set at rest by a reference to 
 the Plea Rolls, which certainly begin before 
 the close of the twelfth century. Later on, it 
 publishes its proceedings 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 
 
II.] SOURCES. 39 
 
 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 Law is 
 
 royal. 
 
 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 HofgeHcht at Mainz or Frankfort, the kings 
 of Leon and Castile their Audiencia Real at Leon 
 or Valladolid, Though the Parlement of Paris 
 and the Imperial Hofgericht had infinitely less 
 power in the thirteenth century than the King's 
 Court in England ; yet the Exchequer Records 
 of Normandy and the Olim or judgement rolls 
 of the Parlement of Paris may be compared with 
 the Plea Rolls of England ; and the Style de du 
 Breuil and the Grant Stille de la Chancellerie de 
 France may rank beside the Register of Writs, for 
 the work of Breuil at least was regarded as official.* 
 But the Norman Conquest had strengthened the 
 position of the Crown in England in more ways 
 than one. Not only was the king of England 
 in the thirteenth century infinitely more powerful 
 
40 LAW AND POLITICS. [CH. 
 
 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 in- 
 sisting on the military side of the Norman 
 Conquest, we may notice the fact that the king- 
 ship of England was, in the hands of William and 
 his successors, emphatically a " conquest," not a 
 heritage or an elective office. And, when we 
 come to look at the ideas which have gone to 
 make up our notion of property, we shall find that 
 the nouveau acquit, the " conquest," is much more 
 at the disposal of its master than the heritage or 
 the office. The Norman Duke who acquired 
 England made good use of that 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 pro- 
 minent part ; and a learned jurist has explained 
 that the essential feature of a charter is that it 
 
II.] SOURCES. 41 
 
 is a " dispositive " document, a document which 
 transfers to B some right or interest which at 
 present belongs to A.' So we get the long and 
 important series of English charters, which 
 culminates in the Great Charter of John and 
 the Merchant Charter of Edward I. When the 
 English Justinian is making his great enquiry 
 into the franchises which his barons claim to 
 exercise, he insists, and nearly succeeds in main- 
 taining, that, for every assertion Of seigneurial 
 privilege, the claimant shall show a royal charter." 
 It would have been absurd for Philip the Fair or 
 Rudolf of Habsburg to make such a demand ; 
 for their feudatories held franchises by older 
 titles than their own, unless indeed the German 
 Kaiser had founded himself on the authority of 
 Charles the Great. The charter is not a pecu- 
 liarly English institution ; the town charters of 
 Germany and France go back at least to the 
 twelfth century." 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. 
 
42 
 
 LAW AND POLITICS. [CH. 
 
 The But the lord of a domain may make rules for 
 
 Domain. , • i i r 
 
 its management, at least with the concurrence ot 
 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 one of the earliest ideas of proprietorship. 
 Long before the descendants of Hugues Capet 
 ventured to legislate as Kings of France, they 
 issued ordinances for their domains. The great 
 feudatories of the French Crown, the Dukes of 
 Normandy and Brittany, the Counts of Champagne 
 and Poitou, did the like. The legislation of the 
 smaller States of Germany, the feudal domains of 
 the Princes of the Empire, begins in a similar way. 
 And so it is quite natural to find, in the England 
 of Anglo-Norman times, Assises and Ordinances 
 which come nearer to modern ideas of law than 
 anything we have seen yet in our search. The 
 Assises of Clarendon and Northampton, the 
 Assise of Arms, the Woodstock Assise of the 
 Forest, the Assise of Measures in 1197, ^^ 
 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 
 
II.] SOURCES. 43 
 
 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 un- 
 trustworthy, that his servants turned against him ; 
 Henry, weak and incapable. The danger of royal 
 absolutism passed away. There was even danger 
 that the power of legislation would pass away too. 
 For not only had the royal authority fallen into 
 weak hands. The king's judges seemed to have 
 lost their inventive power ; and the list of writs 
 was almost closed when the third Henry died. 
 Henceforth judicial legislation would proceed 
 only by the slow steps of decision and precedent. 
 But there arises a king who, consciously or un- Law is 
 
 . . national. 
 
 consciously, 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 
 
44 LAW AND POLITICS. [CH. 
 
 preceded it, " That which touches all, shall be 
 discussed by all." How far Edward foresaw this 
 result, how far he desired it, how far he borrowed 
 the ideas of others, how far he acted willingly, 
 must be left for specialists to decide. But the 
 broad fact remains, that he created the most 
 effective law-declaring machine in the Teutonic 
 world of his day, that he gave to England her 
 unique place in the history of Law. One part 
 only of the scheme was a temporary failure. 
 Though Edward succeeded, after a sharp struggle, 
 in compelling the nominal adhesion of the clergy 
 to the new system, the Canon Law continued, 
 for two centuries and a half, to be a real rival 
 of the national law. But its day came at last ; 
 and, after the Reformation, the clergy found them- 
 selves 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 
 
II.] SOURCES. 
 
 45 
 
 this was the result of a thousand years of his- 
 tory ; and, as yet, it was true of England alone. ^^ 
 In this important matter, we are apt to be Differ- 
 
 . ences else- 
 
 deceived. For, if we look to the continent of where. 
 Europe, we see that there are ^tats Gdniraux in 
 France, Cortes in Castile and Aragon, a Reich- 
 stag 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. Lauriere and his 
 successors, was never submitted to the Etats 
 Gendraux ; it is the work of the king and his 
 Council. The scanty legislation of the Cortes 
 does not suffice for the needs of Spain, which have 
 to be met by such compilations as El fuero viejo 
 de Castilla, El fuero Juzgo, and Las Siete Par- 
 tidas, which are not legislation at all, but merely 
 new editions of the old Leges Wisigothorum, col- 
 lections of judicial decisions, and adaptations of 
 the Pandects. In Germany, the Diet ceases to be 
 an effective body from the death of Frederick II. ; 
 and, though 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 
 
46 LAW AND POLITICS. [CH. 
 
 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 Eriks- 
 son'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 seventeeth centuries. But, unhappily, the 
 history of Scandinavia is too obscure a subject 
 to be handled safely by any but a specialist. 
 The state It is from France and Germany that we learn 
 
 of things 
 
 in France most clearly and unmistakeably the results which 
 
 and Ger- ' ^ 
 
 many. followed from a failure to grasp the Edwardian 
 idea of Law. In France and Germany, the law 
 which prevailed from the thirteenth to the six- 
 teenth centuries was feudal, local, municipal, 
 
 The text- royal ; but not national. The feudal and local 
 
 books. 
 
 laws begin to appear in the thirteenth century in 
 
 1 the form of text-books, evidently the work of 
 
 private compilers, though in some cases in an 
 
II.] SOURCES. 47 
 
 impersonal guise. Thus we get the Trh Ancien 
 Coutumier of Normandy and its successors, the 
 Conseil of Pierre de Fontaines for the Ver- 
 mandois, the Livre de Jostice et Piet and the 
 Ltablissemens le Roy for the Orleanais, the 
 customs of Clermont in Beauvoisis by PhiHppe 
 Beaumanoir. Thus also we get the Saxon Mirror 
 of Eike von Repgowe, the German Mirror, the 
 Suabian Mirror, and the Little Kaisers Law 
 for Germany. But there is a curious difference Difference 
 
 between 
 
 between the fates of the two eroups. For while, French 
 
 ^ ^ and Ger- 
 
 in France, the purely expository character of the ™an text- 
 text-books is rarely lost sight of, while Bou- 
 tillier, as previously pointed out, expressly tells 
 us that the authoritative law must be searched for 
 in the greffe of the court or the enquite par tourbe, 
 in Germany the Rechtsbucher seem to have been The Ger- 
 
 , man text- 
 
 accepted, in all good faith, as actual law. The books^are 
 reason for this curious difference is not easy to '^"^ ' 
 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 
 
48 LAW AND POLITICS. [CH. 
 
 didaminis and the Summa curies 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 Kaiserrechi) as a textual authority ; " and 
 all kinds of legends grow up, which attribute 
 the authorship of the Saxon Mirror to kings 
 and emperors." 
 The On the other hand, the French mind clung to 
 
 only as 'ex- the idea that the text-books were not themselves 
 
 positions 
 
 of law. Law ; and, m the fifteenth century, we find a 
 most interesting process going on. The un- 
 certainty 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. 
 
II.] SOURCES. 
 
 49 
 
 Perhaps they thought that a custom once formu- 
 lated might be altered ; at least there would be 
 something to attack. Perhaps they dreamed of 
 
 a unified France, living under one law. If The "re- 
 daction ' ' 
 so, they must have had a rude awakening, of the 
 
 Coutumes. 
 
 For when, as the results of the labours of 
 Charles VII., Louis XL, Charles VIII., and 
 Louis XII., the official Coutumiers are finally 
 before the world, it is a startling picture that 
 they reveal to us. Each district lives under its 
 own law, and is judged by its feudal seigneurs. 
 Not merely great feudal 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 ofificial Coutumiers 
 of the sixteenth century. The English law- 
 book describes, in crabbed language no doubt, 
 a system which is uniform, simple, and in- 
 telligible ; the Couiumier depicts a state of 
 anarchy and disintegration, of anomalies and 
 inconsistencies. And yet it speaks only of a 
 
 E 
 
50 
 
 LAW AND POLITICS. [CH. 
 
 single district ; there are dozens of other Cou- 
 tumiers, and the whole pays de droit hrit, to 
 be taken into account. And the mischief is not 
 to be cured by ordinary remedies. Splendid as 
 was the work of the great French jurists of the 
 seventeenth and eighteenth centuries, of Moulin, 
 Guy Coquille, Loisel, Domat, Pothier, it needed 
 the red arm of the Revolution to make a 
 Common Law for France. 
 Process of A word must be said as to the process by 
 
 the redac- 
 tion, which these official Coutumiers were compiled ; 
 
 for it is illuminative of the history of Law. 
 
 There is no thought of imposing new rules. The 
 
 custom is, indeed, " projected " by the royal 
 
 officials, and examined by commissaries of the 
 
 Parlement of Paris ; but, before it can be declared 
 
 to be law, it must be submitted to an assembly 
 
 containing representatives of all orders and 
 
 ranks in the district, and solemnly discussed and 
 
 accepted by them.^^ This is no mere form. In 
 
 the great collection of Bourdot de Richebourg," 
 
 published in the eighteenth century, we find 
 
 the very names of those who were present, in 
 
 person or by deputy, at the reading of the 
 
 various projets ; we know the very points upon 
 
 which they raised objections. The object of the 
 
II.] SOURCES. 
 
 51 
 
 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 enquUe par tourbe ; it 
 collects, but it does not make, the law. 
 
 Turning to Germany, we find that there have The Lanj- 
 
 1 • -1 .-r->, r rechte o'. 
 
 been attempts at a similar process. The Land- Germany. 
 
 rechte which appear in the fourteenth and fifteenth 
 
 centuries, the Austrian Landrecht i( dating so far 
 
 back as 1292), the Bavarian Landrecht of 1346, 
 
 the almost contemporary Silesian Landrecht, are 
 
 little more than official editions of the Suabian 
 
 Mirror and the Saxon Mirror. But the inherent The " re- 
 ception 
 weakness of German legal developement gives rise of the 
 
 foreign 
 
 at this point to the greatest tragedy in the history law;" 
 of Teutonic Law. Overcome by the evils ofinGer- 
 
 ■^ many, 
 
 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 
 
52 LAW AND POLITICS. [CH. 
 
 law. Through the universities, through the 
 writers and teachers, through the learned Doctors 
 who fill the courts of Germany, the Roman 
 Law becomes the Common Law of the German 
 Empire. Even feudal law, for which, of course, 
 there is no provision in the work of Justinian, 
 catches the impulse ; and the " Feud Books " 
 of Milan are received in Germany proper as 
 the Decima Collatio Novellarum, that is, as the 
 legislation of Roman Emperors. The process is 
 going on during the whole of the fifteenth and 
 sixteenth centuries ; but the crowning point is the 
 establishment, in the year 1495, of the Reichs- 
 kammergericht, 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.^' We must also remember that 
 and in '■>' Roman Law effected a similar triumph in distant 
 
 Scotland. 
 
 Scotland, 
 
n.] SOURCES. 
 
 53 
 
 But it is possible to exaggerate the triumph, other 
 
 ivT • 1 • laws. 
 
 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 Ger- 
 mans have a maxim : " Town's law breaks land's x 
 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 The town 
 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'Schevins of France, the 
 bailies' courts of Scotland, have built up elaborate 
 systems of local law, which strive to maintain 
 exclusive control within the limits of their juris- 
 diction. The town laws of Liibeck, Hamburg, 
 Goslar, Vienna, and Magdeburg, the statuts of 
 Avignon and Aries, the plaids de rdchevinage 
 de Reims, the Bjarkoar'dtten 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 
 
54 
 
 LAW AND POLITICS. [CH. 
 
 land of the Common Law, and some of them had 
 custumals of their own. But they were of small 
 importance ; and they stood much in fear of the 
 law of the land. It is very doubtful whether any 
 royal judge in England would have accepted the 
 maxim : " Town's law breaks land's law." Had 
 he done so, it would have been with great re- 
 servations and modifications. The victory of the 
 Common Law put very narrow bounds to the 
 growth of municipal custom in England. 
 Royal Finally, it must not be forgotten, that royal 
 
 laws. 
 
 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 liiais G&niraux 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 curious 
 right of registration claimed by the Parlements, 
 grow in number and importance. As new 
 spheres of legislation — aliens, marine, literature — 
 
i-J SOURCES. 55 
 
 make their appearance, they fall into the royal 
 bands. 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 Im- 
 perial legislation. But neither in France nor inDiffer- 
 
 . ences 
 
 Germany can the royal legislation compare with between 
 
 these and 
 
 the" Parliamentary legislation of England. The national 
 absolutism of the ancien regime is often mis- 
 understood. 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. 
 
56 
 
 LAW AND POLITICS. [CH. 
 
 Summary We are now in a position to sum up the results 
 history of of our long inquiry into the history of Law. 
 
 Law. 
 
 And if, for a moment, we seem to trespass 
 beyond the domain of Law, -upon the domain 
 of anthropology, we need only trespass upon 
 paths which the labours of trustworthy guides 
 have made clear for us. 
 The age "^ One of the strongest characteristics of primitive 
 
 before 
 
 law. 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 man, 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 
 terrible powers with sacrifices and ceremonies ; 
 but they will not always be appeased. There 
 are terrors above him and around him. 
 
 Appear- From this state of fear, custom is his first great 
 
 ance of . 
 
 custom, deliverer. To speculate on the origin of custom 
 is beyond our province ; we note only its effects. 
 
"•] SOURCES. 57 
 
 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 ; o 
 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 L 
 result of experience. 
 
 But, in all those societies which, for want of a Aitera- 
 better term, we call " progressive," there are two custom. 
 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 c. 
 game is seen to lead to hunger and starvation. 
 These results are, by man's growing intelligence. 
 
58 LAW AND POLITICS. [CH. 
 
 apprehended to be the judgement of the gods 
 upon evil practices, no less than the thunderstorm 
 and the earthquake. So the custom of indis- 
 criminate 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, 
 bleeding 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 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 negativeL 
 and the positive sides of Law. Old customs, 
 proved by experience to be bad, are discarded;'' 
 new customs, likewise proved by experience to 
 be good, are adopted. But it is not to be 
 expected that all should work smoothly. In 
 
n.] SOURCES. 
 
 59 
 
 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 nu ist__bg_fbunfl fnr kppping these 
 exceptional persons in check. And so we get 
 the appearanc e of thos e assemblies which ate 
 neither, accordingjg_niodern_jiotions, legislative, A 
 nor €xecutive^jiorjudiciary7 but simply declaratory. 
 They declarethe^folk^right. It would be an The 
 
 ' — : ~ '"^-^ --- custom 
 
 anachronism to say that they made Law. We declared, 
 may be quite sure that they do not argue ques- 
 tions of expediency. Not until an old custom 
 has been definitely condemned by^ the con- 
 sciousness_jof_jJie-£omniuniLy,^d(Lthey declare it 
 to be b ad — 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 declar e it to be good. SoJittle_do they 
 claim the power of making new law, that when 
 they do, in fact, sanction a new custom, they 
 probably de clare 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 
 
 
6o LAW AND POLITICS. CH. 
 
 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. 
 Custom is At first, as we have said, there is no record of 
 
 recorded. . _ ,. . , 
 
 custom, m the modern sense. Ityhyes m the 
 ^ consciousness of the community, and is declared, 
 w if necessary, by some assembly, more or less com- 
 prehensive. 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 system 
 of runes or other symbols ; it may, and this is 
 more probable, have come into contact with some 
 higher civilization which possesses a superior art 
 of recording. Such is the case with the earliest 
 monuments of Teutonic Law. They are not even 
 written in Teutonic speech ; and this fact has 
 misled some critics into supposing that the Leges 
 Barbarorum are really new sets of rules imposed 
 by an alien conqueror. But, below the curious 
 Latin of the Roman scribe, it is easy to read the 
 still ruder language of the Teutonic folk. The 
 famous " Malberg glosses " of the Lex Salica are 
 
 \ 
 
"•] SOURCES. 6i 
 
 only the clearest example of a truth which may 
 be traced in all the Leges Barbarorum. One 
 has but to turn to the glossaries which accompany 
 the classical editions, to see how the scribes were 
 puzzled by hosts of strange Teutonic phrases for 
 which they could find no Latin equivalents. 
 The Anglo-Saxon and the Scandinavian Laws 
 are transcribed in their native tongues. The 
 Leges Barbarorum are not enactments, but / 
 records. 
 
 For all this, their " redaction " was an epoch Custom 
 
 is con- 
 in the history of Law. It threatened to make sdousiy 
 
 altered j 
 
 permanent what before was transitory, to stereo- 
 type 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 but to a 
 
 very slight 
 
 limited character and short duration of the law extent. 
 of such a conqueror even as Charles the Great, 
 shows that the new idea at first met with little 
 
62 LAW AND POLITICS. [CH. 
 
 success. The Law of the Church, the Law of 
 the Merchants, the Law of the Fief, and the 
 Roman Law, are the real innovating forces which 
 transform the folk-laws into the law of medieval 
 Europe, 
 revealed ^°^ °"^ °^ these was Law in the Austinian 
 sense. The Canon Law posed as a revelation, 
 and, as such, was thoroughly in harmony with 
 primitive ideas of Law. That which the folk 
 discovered, through the painful process of ex- 
 perience, to be the will of the unseen Powers, 
 was discovered by Popes and Councils, through 
 the speedier process of revelation. The Canon 
 Law did not profess to be the command of men ; 
 it professed to be the will of God. The Law 
 Merchant and the Feudal Law were, in appear- 
 ance, 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 
 
11.] SOURCES. 63 
 
 upon, more and more, as the true index to the 
 will of the Unseen Powers. Its origin as the 
 command of the Roman Emperor was well-nigh 
 forgotten ; and we may be very sure that, in 
 Western Europe at least, it was not enforced 
 by the will of those successors of Justinian who 
 sat upon the trembling throne of Byzantium. 
 Had it been so, the Roman Law would have 
 disappeared for ever when Mahomet II. over- 
 threw 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 Law as the 
 
 command 
 
 justification for the Austinian theory, that Law is °^^^ 
 the command of the State. As we said before, the 
 first time that this theory becomes approximately 
 true, is when the English Parliament is established 
 at the close of the thirteenth century. This is 
 the crowning work of England in the history of 
 Law. But it is possible to overrate its effect. 
 The great virtue of the English Parliamentary 
 scheme was, that it enabled the exponents of all 
 the customs of the realm to meet together and ex- 
 plain 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 
 
VIII. c. 
 10. 
 
 64 LAW AND POLITICS. [ch. 
 
 during the first two hundred years of its existence, 
 are complaints of the breach of old customs, or 
 requests for the confirmation of new customs 
 which evil-disposed persons will not observe. 
 These petitions, as we know, were the basis of 
 the Parliamentary legislation of that period. 
 What is this but to say that the Parliament was a 
 law-declaring, rather than a law-making body .-* 
 Sometimes, indeed, the Parliament did make very 
 27 Hen. n^w 1^'^- I*^ made the Statute of Uses, in de- 
 fiance 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 de- 
 claration of Law ; when it tried to make Law it 
 ran the risk of ignominious 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 
 
"■] SOURCES. 6s 
 
 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 compara- 
 tively 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 Law- 
 
 this. The making of Law is a supremely important and Law- 
 declaring. 
 
 thing ; the declaring of Law is an important, but a 
 very different thing. Law is made unconsciously, 
 by the men whom it most concerns ; it is the 
 deliberate result of human experience working 
 from the known to the unknown, a little piece of 
 knowledge won from ignorance, of order from 
 chaos. It is begun by the superior man, it is 
 accepted by the average man. But it will not do 
 for the inferior man to spoil the work of his betters, 
 by refusing to conform to it. So Law must be 
 declared, and, after that, enforced. This declara- 
 tion and enforcement are the work of the official 
 
 F 
 
66 L.4ir AND POLITICS. [CH. 
 
 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 Middle Ages was to 
 devise a machine which should declare and en- 
 force Law, uniformly and steadily. The supreme 
 triumph of English statesmanship is, that it solved 
 this problem some five hundred )ears before the 
 rest of the Teutonic world. By bringing together 
 into one body representatives of those who made 
 her laws, by confronting them with those who 
 could declare and enforce them, England was 
 able to know what her law was, to declare it with 
 certain voice, and to enforce it thoroughly and 
 completely. 
 
 Notes to Chapter II. 
 
 '^ See Schmid, Gesefzc der Angdsachsen, ed. 2, pp. 4S2, 4S5. 
 
 ^ Ibid., at p. 500. 
 
 ' Luchaire, Manuel dcs Institutions Francoises, p. 257, n. 
 See the interesting excursus on the historj' of Norman Law by 
 Brunner, Entstehung der Schwurgerichte, cap. vii., and by the 
 same author in Holtzendorff's Encyklopddie der Rechtswissm- 
 schaft, Part I., sth ed., pp. 303-348. 
 
 * Pollock and Maitland, History, vol. i. pp. 155, 156. 
 
 ^ Acts of the Parliament of Scotland, 1540, cap. L vol. ii- 
 P- 356. 
 
II.] SOURCES. 67 
 
 ° Stubbs, Select Charters, ed. 5, pp. 84 (William I.), 96 
 (Henry I.), 119 (Stephen). 
 
 "^ Laurifere, Ordonnances des rois de France, ann. 13 12, vol. 
 xii. p. 354. 
 
 ^ VioUet, Precis de VHistoire du Droit Franfais, p. 160. 
 
 ' Brunner, Zur Rechtsgeschichte der romischen und german- 
 ischen Urkunde, p. 211. 
 
 1° Pollock and Maitland, History, vol. i. p. 559. 
 
 1^ Stobbe, Geschichte der deutschen Rechtsqtielkn, Pt. I. p. 485. 
 Esmein, Histoire du Droit Franfais, 2nd ed., p. 312. It is 
 noteworthy that one of the oldest and most important of 
 French town-charters, the so-called Etablissemens de Rouen, 
 was granted by an English king. 
 
 ^^ Hobbes, Leviathafi, cap. xxvi. 
 
 ^' See, for example, the document given in Loersch and 
 Schroder, Urkunden zur Geschichte des deutschen Privatrechtes, 
 ed. 2, Part I. No. 339. 
 
 ^* Stobbe, op. cit., p. 318. 
 
 ^^ Esmein, op. cit., p. 749. 
 
 ^* Bourdot de Richebourg, Coutumier geniral. Paris, 1724. 
 
 ^' See the process described by Brunner, in HoltzendorfPs 
 Encyklopddie, Part I. pp. 291-294, and Schroder, Deutsche 
 Rechtsgeschichte, pp. 722-731. 
 
68 LAW AND POLITICS. [CH. 
 
 iCHAPTER III. 
 
 THE STATE, 
 
 The By a State, or political society, we understand, at 
 
 modern 
 
 idea of a ^-j^g present day, a community ( i ) of considerable 
 size, (2) occupying a clearly defined territory, 
 (3) owning direct and complete allegiance to a 
 common authority, and (4) invested with a per- 
 sonality which enables it to act more or less as 
 an individual. These characteristics have been 
 so thoroughly discussed by eminent v/riters of 
 the present century, from Bentham to Bluntschli, 
 that it is hardly necessary to dwell upon them. 
 Briefly, it may be said that the first and second, 
 though always to be found in those organisms 
 which, at the present day, we admit to be States, 
 are perhaps not absolutely essential ; while the 
 third and fourth are vital to every conception 
 of a State. It is difficult to fix the minimum 
 number of persons capable of constituting a 
 political community ; instances of very small 
 
"!•] THE STATE. b) 
 
 States are at present to be found. It is just 
 conceivable that a migratory community might 
 be allowed to take rank as a State, if it fulfilled 
 the other conditions of State existence. But a 
 community which did not recognize the right of 
 a common authority to control its affairs and to 
 speak in its name, could not be treated as a 
 political unit, for there would be no means of 
 dealing with it. It might be a nation, it could 
 not be a State. And a community which did not 
 act as a personality with a perpetual existence 
 could not be recognized as a State ; for as its 
 members changed, by deaths and births, by 
 emigration and immigration, they might decline 
 to be bound by the engagements of their pre- 
 decessors, on the ground that those engage- 
 ments were not of their own making. Such a 
 contention would be fatal to the existence of 
 State life. 
 
 This last condition may be said to be theAnab- 
 
 •' stractio 
 
 product of the other three, and to constitute the 
 final result of a long historical process, which has 
 culminated in modern times. That the State 
 should act as an individual, should maintain good 
 faith, clemency, and moderation, should endeavour 
 to further the world's progress— these are some 
 
^o 
 
 LAW AND POLITICS. [CH. 
 
 of the most advanced political ideas of the age 
 in which we live. But it will be seen that they 
 involve an intellectual effort of no mean quality. 
 A human being is a concrete fact, familiar to the 
 meanest intelligence. A corporate personality is 
 an abstraction, which is only arrived at by a 
 process of reasoning. And that particular cor- 
 porate personality, which we now understand as 
 the State, is an abstraction unusually difficult 
 to grasp, as may be seen by the commonest of 
 tests. A man of merely average morality will 
 hesitate at defrauding an individual, even if he 
 can do so with safety. He will hesitate less at 
 defrauding a railway company or a club, though 
 these are very simple abstractions. He will not 
 hesitate at all about cheating the State, if he can 
 do so with impunity. He cannot see that he is 
 doing any wrong at all. 
 Abor It ig evident, then, that we make a very 
 
 rowed •' 
 
 violent assumption, if we assume that primitive 
 Teutonic Law has any conception of the State, 
 as we understand it. Though it will probably 
 be found to be suggestively modern, the precise 
 date at which the word " State " makes its appear- 
 ance in Teutonic countries is of little importance ; 
 for it is a word which conveys no special meaning, 
 
 notion. 
 
ni.] THE STATE. 71 
 
 and is used to cover all sorts of ideas. Perhaps 
 
 the only point worth noticing about it is, that it 
 
 is evidently borrowed from Latin ; and we may 
 
 possibly be safe in drawing the conclusion that 
 
 the Teutonic languages had no native equivalent 
 
 for it. But, even to a Roman, the word status 
 
 alone had no such meaning as that which we 
 
 now attribute to the term " State." The phrase 
 
 status rei publicce would indeed have conveyed 
 
 to a Roman of the fifth century after Christ a 
 
 meaning very similar to our modern notion of a 
 
 State ; and the fact that the Teuton borrowed 
 
 only a fragment of the phrase may seem to 
 
 show that, even when he borrowed from it, he 
 
 had no very clear understanding of its meaning. 
 
 But we must not seek in philological speculation 
 
 the rudiments of the Teutonic State. 
 
 It is one of the best established conclusions of The politi- 
 cal st^e 
 
 anthropology, that the political stage is not the "^^"^'g^'y 
 earliest stage in the history of society. Before" 
 men are held together by obedience to a common 
 leader or ruler, they are held together by the 
 tie of blood and worship of a common ancestor. 
 Before the State comes the Clan. But the 
 relations between the two stages are often mis- 
 understood. There is much vague talk about the 
 
72 LA W AND POLITICS. [CH. 
 
 State being an enlarged family, as though a mere 
 increase of numbers would inevitably substitute 
 the State for the Clan ; just as, according to 
 another, but equally doubtful theory, it substi- 
 tuted the Clan for the Family or Household. 
 But whereas there is in the latter theory just this 
 amount of truth, that Household and Clan are 
 organized on the same principles of common 
 ancestor worship and real or fictitious blood re- 
 lationship ; there is no such identity of principles 
 between the State and the Clan. The success 
 of the State means the destruction of the Clan. 
 State and The reason will be clear if we consider for a 
 
 Clan. 
 
 moment the relationship of the two organisms. 
 It comes through the art of war, one of the chief 
 factors in early civilization. The qualities of the 
 warrior are so all-important in early stages of 
 man's history, that his best intellectual endeavours 
 are directed to improve them. Now one of the 
 essentials of success in war is the power of 
 combination. More and more are we coming 
 to the conclusion that Providence is on the 
 side of the big battalions. Given equally good 
 organization, the largest army will win. No 
 doubt the gradual discovery of this truth had 
 much to do with the substitution of the blood 
 
III.] THE STATE. 73 
 
 feud for indiscriminate revenge, with the substi- 
 tution of wergilds for the blood feud. The 
 warrior was needed to fight his clan's battles ; he 
 must not be sacrificed in the private feud. 
 
 But this principle, carried a little further, 
 results in leagues or combinations of clans for 
 the purposes of warfare. As the Clan is a better 
 fighting machine than the single warrior ; so the 
 league of clans is more powerful than the single 
 clan. The clans which combine are the success- 
 ful clans ; the clans which remain isolated are 
 destroyed.^ 
 
 This is just the point at which we can take Leagues 
 
 of clans. 
 
 up the thread of Teutonic history. The armies 
 which swarm into the Roman Empire, the armies 
 which invade Britain, are. leagues of clans. The 
 admirable study of the German invasion of Gaul, 
 undertaken by M. Fustel de Coulanges, reveals 
 clearly the two results which the progress of the 
 art of war has produced among the Germans 
 in the three centuries which have succeeded 
 the era of Tacitus. The most famous of the 
 old Tacitean clans, the Chatti, the Chauci, the 
 Cherusci, have disappeared, or been swallowed 
 up in greater organizations. Their places are 
 taken by new groups — Franks, Saxons, Alamanni 
 
74 LAW AND POLITICS. [CH. 
 
 — which are not ethnical names at all, but 
 (and this is especially significant) names which 
 inevitably suggest military organization.^ The 
 " Frank" is a warrior, or, perhaps, a wanderer. 
 The " Saxon " is a swordsman {saksman) ; the 
 " Alamann " a stranger, that is, an invader. On 
 the other hand, it is discoverable that these 
 new bodies are not homogeneous. The Franks 
 comprise Salians, Sicambrians, Ampsivarians, 
 Chamavians, Ribuarians. The Saxons include 
 fragments of the Chauci and the Cherusci ; the 
 Alamanni are formed out of the Quadi, the 
 Hermonduri, and other clans. A new organism 
 has swallowed up the old. 
 The war But the new organism is not a mere enlarge- 
 ment of the old ; it is based on entirely different 
 principles. The Clan has a natural leader ; the 
 league of clans has none — it is an artificial body, 
 though, doubtless, nearness of blood and similarity 
 of worship have something to do with its forma- 
 tion. The leader of the Clan is the man who, 
 on the principles of heredity, represents the 
 eponymous ancestor of the clan. The natural 
 authority of a league of clans would appear to 
 be the chiefs of the component clans. And such 
 a body does, apparently, tend to form itself 
 
III.] THE STATE. 75 
 
 But it is one of the least disputed conclusions of 
 human experience, that an army controlled by a 
 group of leaders has no chance against an equal 
 army controlled by a single leader. And so the 
 league of clans produces the war chief, who may, 
 perhaps, borrow the old Clan title of king, but 
 whose proper designation among Teutonic peoples 
 is " heretoch," or host leader. This is the true 
 character of the leaders of the Teutonic inva- 
 sions. Childeric and Clovis, Alaric and Ataulph, 
 Gundioc and Gondobad, Hengst and Horsa, are 
 war chiefs. How they or their predecessors 
 were originally chosen, it is impossible to say ; 
 by the time at which we find the war chief in 
 history, he has become hereditary, doubtless in 
 imitation of the Clan king, whose name he has 
 borrowed. Perhaps there was a formal selection 
 — later events in the history of the State seem 
 to render the fact probable ; perhaps he came 
 unconsciously to the front by his superior military 
 abilities. In any case, his position is unmistake- 
 able. He is, first and foremost, a leader of 
 warriors. When Saint Remi writes his letter 
 of congratulation to Clovis, he addresses him in 
 the following significant words — " Rumour has 
 reached us that thou hast taken into thy hands 
 
76 LAW AND POLITICS. [ch. 
 
 the conduct of war matters {administrationem rei 
 bellied). It is not surprising that thou beginnest 
 to be what thy ancestors have always been."^ 
 When the Teutonic peoples are converted to 
 Christianity, it is as bands of warriors that they 
 are baptized. 
 Organized But a military leader will naturally organize 
 
 on dif- 
 ferent his army on other than Clan principles. In the 
 
 principles ^ 
 
 '^'lan*^ Clan it is age and birth, the nearness to the 
 common ancestor, which are the titles to con- 
 sideration. In the army, military skill and 
 strength are the qualities which command respect. 
 Another of the valuable services rendered by 
 M. Fustel de Coulanges to the study of this 
 question, is the establishment by him of the 
 disappearance of the old Teutonic blood nobility, 
 in the face of the new military organization. The 
 old Clan families, the Amali and Balthi among 
 the Goths, the Asdings among the Vandals, 
 the Agilolfinger among the Bavarians, die out 
 before an aristocracy founded on a totally 
 different principle. Only in a few of the Leges 
 Barbarorum is there any mention of a nobility 
 by blood. But there is much to be said of 
 a new class, the persons in truste dominica, 
 the antrustions, whose importance is marked 
 
n.] THE STATE. 77 
 
 )y the fact that for injury to them the offender 
 nust pay the triple wergild.* As we shall see, 
 vhen we come to deal with the organization of 
 society in ranks, these privileged persons are 
 simply royal ofificials, chosen for their military or 
 idministrative qualities. Many of them are of 
 servile birth ; it is impossible that they should 
 claim ancestral honours. The nobility of blood 
 has been replaced by the nobility of the sword 
 and the office. Among the Franks, there is no 
 trace of the former class when the Leges are 
 compiled. Clovis and his successors go by the 
 Clan title of Merowings. But this is a polite 
 fiction ; the relationship of Clovis to Meroveus, 
 if Meroveus ever existed, is unproved and un- 
 provable. 
 
 The principle of selection for personal merit 
 has wider results than the overthrow of a Clan 
 nobility. It is responsible for what is, perhaps, 
 the most vital difference between the Clan and 
 the State. 
 
 The Clan is a community of groups ; the State 
 is a community of individuals. All that we 
 know of Clan organization leads us to believe 
 that it stopped short at the Household. With 
 the individual members of the Household, it 
 
78 LAW AND POLITICS. [CH. 
 
 dealt only through their natural head, the House- 
 Father. They were in his mund ; his voice 
 spoke for them at the Clan assemblies, he led 
 them to fight in the Clan battles. The Germans 
 of whom Tacitus writes conducted their warfare 
 by familite et propinquitates.^ But the King in 
 the time of the Leges Barbarorum dealt directly 
 with the individual. The man who failed to 
 attend the host at the king's summons paid a 
 heavy fine, not to the clan, but to the king.® The 
 one unmistakeable resolve of the invading chiefs 
 is, that every freeman shall be liable to direct 
 military service. So deeply rooted is this idea, 
 that the successors of Clovis enforce it, not only 
 on their Teutonic followers, but on their pro- 
 vincial subjects, who, as Roman citizens, have 
 long been exempted from duties in the host.' 
 The trinoda necessitas, the war-duties of service 
 in the field, manning the walls, and bridge build- 
 ing, are incumbent on every freeman in the Anglo- 
 Saxon kingdoms. The Clan is an exclusive 
 organization, founded on rigorous principles of 
 religion and kinship, and reverencing birth and 
 
 vage as the symbols of dignity. The State is a 
 community of casual units, bound together by the 
 
 'tie of military allegiance, acting directly upon its 
 
III.] THE STATE. 79 
 
 individual members, valuing only personal ability, S 
 and willing to take personal ability wherever it x 
 can find it. 
 
 Such seems to have been the rudimentary idea The influ- 
 
 1 f 1 • 1 1 T • enceofthe 
 
 of the State which the Teutonic peoples had Empire. 
 projected at the epoch of the Leges Barbarorum. 
 But now we have to remember that the most 
 enterprising of these peoples were brought face 
 to face with a much more advanced conception of 
 the State, perhaps the most advanced which has 
 ever been realized in practice. The organization 
 of the Roman provincial empire dazzled the eyes 
 of Clovis and his successors ; and they made a 
 gallant attempt to live up to the brilliant example 
 set before them. It is not necessary to suppose 
 that, in so doing, they were actuated by any 
 lofty principles. The instinct of such a warrior 
 as Clovis is for plunder ; and Clovis saw in the 
 organization of the Roman Empire an admirable 
 machinery for the extortion of large and constant 
 supplies of plunder. At first, he and his 
 successors contented themselves with the position 
 of Roman officials, though we may be sure that 
 they did not account very strictly for their doings 
 to the Imperial authorities. They are the 
 magistri militum and consules of the Empire. 
 
8o LAW AND POLITICS. [CH. 
 
 Ultimately, they declare their independence. 
 But, in their own minds, they do not destroy the 
 Empire ; they succeed to it. The old organi- 
 zation is kept up, at least in language; the 
 officials of the Merowingian palace are strictly 
 modelled on the hierarchy of Byzantium, the 
 Prankish graf is the successor of the Roman 
 comes. In the end, the Prankish king assumes 
 the sacred title of Imperator, and is crowned at 
 Rome. 
 The Frank But, of course, the whole thing is a mimicry and 
 
 Empire a o j 
 
 fiction. a sham. AnotherofM. Fustel's admirable services 
 to the study of the period, is the discovery that 
 the word respublica, so common among the writers 
 of the Roman Empire, disappears from the 
 Prankish documents, otherwise closely framed on 
 Roman models.^ The word disappeared, because 
 its meaning was no longer understood. The 
 Prank understood a war chief at the head of an 
 army ; and he knew what plunder was. A State 
 and its revenues, to be used for the common weal, 
 he did not understand. To the Merowingian 
 king, the kingdom which he or his ancestors had 
 won was a piece of property, to be treated as 
 other pieces of property. The language in which 
 the definite assertion of independent authority by 
 
"!•] THE STATE. 
 
 8i 
 
 the Prankish kings is described by the chronicler 
 who writes the Life of St. Trivier, is well worthy 
 of notice. He speaks of them as removing the 
 law {jus) of the Empire, and putting aside the 
 government of the State {respublica), to enjoy 
 their own power {propria potestas)^ The deliberate 
 way in which the Frank kingdom was parcelled 
 out again and again in family settlements, points 
 in the same direction. 
 
 But such an idea is, of course, absolutely incon- 
 sistent with the Roman conception of a State as 
 it then existed, and we need not wonder that the 
 Frank Empire, even after the brilliant reign of 
 Charles the Great, fell rapidly to pieces. It had 
 been a sham Empire from beginning to end, 
 making pretensions which it could not support, 
 using forms which it did not understand, under- 
 taking duties which it could not perform. Its real 
 importance lies in the ideas which it contributed to 
 the intellectual endowment of the Teutonic race. 
 The most unimpressionable architect can hardly 
 live for years in a city crowded with ancient build- 
 ings, without absorbing unconsciously some ideas 
 which will influence his work when he goes to 
 distant lands. And the Franks were by no means 
 unimpressionable people ; their first fault was, 
 
 G 
 
82 LAW AND POLITICS. [CH. 
 
 that they were too impressionable. When the 
 Teuton begins to build again the fabric of the 
 State, after the earthquakes of the anarchic 
 centuries, we shall find that he has ideas which 
 he did not exhibit in the days of Clovis. But, 
 so far as historical continuity is concerned, we leap 
 from the days of Clovis to the days of Henry the 
 Fowler and Rodolph of Burgundy. The interval 
 is occupied by an artificial monstrosity, which forms 
 no real part of the history of the Teutonic State. 
 
 The Fief, The true connecting link between the Teutonic 
 ideas of the fifth century and those of the tenth, 
 is that mysterious and many-sided phenomenon 
 which we call feudalism. Feudalism had so many 
 causes and so many aspects, that all explanations 
 of its meaning seem inadequate. But one thing 
 
 Military/ will Strike US vcry specially about the Fief. It 
 is a group of warriors, just as were the Franks 
 whom Clovis had led into Gaul, and the Wisigoths 
 whom Ataulph had led into Acquitaine. The lord 
 of a Fief is, above all things, a war lord ; at whose 
 ban or summons all his vassals must turn out to 
 fight. Historically, as we know, the Fief is a frag- 
 ment of the Frankish empire which its official 
 ruler has converted into something very like 
 private property. But the disturbed years of the 
 
III.] THE STATE. 83 
 
 ninth and tenth centuries have made it the unit 
 for military protection against the Normans, the 
 Wends, the Czechs, and the Moslems. It is, 
 primarily, a group of warriors ; not a wandering 
 band like the bands of Ataulph and Clovis, but a 
 band settled on a fixed territory. 
 
 We observe, however, another point about this Hierar- 
 
 f hies, I 
 
 system of feudalism. It has become hierarchical. 
 This fact we can, no doubt, account for histori- 
 cally ; by remembering that the feudal hierarchy 
 of the tenth century represents the official 
 hierarchy of Charles the Great, just as that, 
 again, represents the official hierarchy of the 
 Provincial Empire. But the readiness with 
 which we can account for a fact should not blind 
 us to its significance. When the lord of a fief 
 found himself with a thousand fighting men on 
 his domains, it did not follow that he could 
 summon them all personally to war. He could 
 only summon his immediate vassals, who, in their 
 turn, summoned their under vassals, and so on. 
 To use technical terms, the lord had the ban, but 
 not the arriere-ban. But this feature, it will be 
 observed, is fundamentally opposed to the prin- 
 ciple of direct military service, as established 
 by the Teuton's of the invasions. Judged by 
 
84 LAW AND POLITICS. [CH. 
 
 that Standard, the later Carolingian empire had 
 become, not one State, but an almost countless 
 number of little States. Still, as the shadowy 
 sense of unity was never quite lost, even in those 
 years of terror, as feeble and doubtful descendants 
 of Charles the Great went on calling themselves 
 kings and emperors, until the extinction of the 
 line, it seems more properly to be regarded as a 
 reversion to an older type of organization, the 
 system of federated clans. Just as the tribal 
 army had been a coll ection of clans o r families, 
 so the imperial army of Charles the Simple or 
 Louis d' Outremer was a collection of fiefs. As 
 the leaders of the tribal army could act only 
 through the chiefs of clajns and heads of house- 
 holds, just as no one Jbut a member of a clan 
 could be a member of the trib al army : so the 
 emperor or the king could act only through his 
 great vassals and under vassals, and no one but 
 a feudal vassal of the empire c ould _ serve in the 
 host. In the years of anarchy, the Clan ha d 
 gained on the^tate. 
 The resur- But the inherent military weakness of the Clan 
 
 rection of . , . , i • i 
 
 the State, organization showed itself in the successes which 
 attended the attacks of the heathen on the feeble 
 empire of the heirs of Charles the Great, and the 
 
"!•] THE STATE. 85 
 
 impending ruin is only averted by the revival of 
 
 th e State . In the last years of the ninth and 
 
 during th e^ tenth centuries, we see the feudal 
 chiefs of Western Europe striving to rid them- 
 selves of the ghost of the Roman Empire, and 
 to set up something more practical in its place. 
 In what we now call Germany, they never, of 
 course, entirely succeeded ; sentiment, as still in 
 Germany, was stronger than common sense. 
 But, even in Germany, the kingship was always, 
 in theory, distinct from the Empire ; and, among 
 the Western Franks, we get at this time the 
 creation of the first typical modern State, the 
 kingdom of France. The three successive 
 elections of Hugh the Great (888), Rodolph of 
 Burgundy (923), and Hugues Capet (987), mark 
 the definite rupture with the old traditional idea 
 of the Frankish Empire. As the Chronicle of 
 Saint Medard, speaking of the last event, is care- 
 ful to inform us — " So the kingdom of the Franks 
 was disjoined from the line of Charles the Great, 
 Emperor and King of the Franks." " There 
 can be no mistake as to the character of the new 
 authorities, or the reason for their creation. 
 They are to be leaders in war against the invad- 
 ing heathen. "At that time" (says Ordericus 
 
86 LAW AND POLITICS. [ch. 
 
 Vitalis), "the unbelieving nation of the Huns, 
 drunk with slaughter, rapine, and all kinds of 
 cruelty, poured itself over the Gauls. The 
 Frank, Burgundian, and Acquitanian princes, 
 gathering together, chose Prince Hugh as their 
 king." " " He was elected by the prelates and 
 magnates of the whole of the Gallic kingdom," 
 says Walter of Dery, telling of the choice of 
 Rodolph of Burgundy, " to expel thence the rage 
 of the heathen madness." " It is the same 
 with Conrad the Franconian and Henry the 
 Fowler in Germany, though, as we have said, 
 the traditions of the Empire are stronger there, 
 and men never quite seem to know whether they 
 are electing a German king or a Roman emperor. 
 " Then, when the princes and elders were as- 
 sembled, the army of the Franks, in the place 
 which is called Fritzlar, appointed him " (Henry 
 the Fowler) " to be king, in the presence of the 
 whole peoples of the Franks and Saxons."^* 
 The Teutonic king of the Middle Ages, like his 
 predecessor of the fifth century, is, first and fore- 
 most, a war chief; and the State is a band of 
 warriors. 
 New But, if we begin to look closely at the position 
 
 of the newjdngs, after the first disturbances have 
 
"!■] THE STATE. 87 
 
 passed away, we find that they are claiming some- 
 thing more than mere leadership in war. It is, 
 perhaps, but a slight variation from their original 
 function that, when they have driven back the 
 enemy from without, they turn to put down the 
 an archy wi thin. This developement is a marked 
 feature of the twelfth century ; to the Peace of 
 God succeeds the Peace of the King. The 
 Truce of Henry IV. in Germany, and theA.D. 1103. 
 Soissons Peace of Louis the Young in France, a.d. 1155. 
 are landmarks in the history of the State. The 
 king is no longer merely a war chief; he is the 
 maintainer of order within his realm. 
 
 But this is not all the change. It is important The royal 
 
 domain. 
 
 to remember that the medieval king was not a ; "x 
 landless knight errant, like his predecessor of the 
 fifth century. He was, practically without excep- 
 tion, always a great feudal chief, with broad 
 domains of his own. Henry the Fowler held_ the 
 magnificent fief of Saxony, long before he became 
 king. Hugh the Great was Count of Paris, and 
 had great possessions in the Valley of the Seine 
 and the Orldanais. Hugues Capet was one of 
 the greatest landowners (if we may call them so) 
 of the north of France." We shall never under- 
 stand medieval history, unless we distinguish 
 
88 LAW AND POLITICS. [CH. 
 
 between the domain of t he king, which he held 
 before his election, as feudal proprietor, and the 
 royal rights which, in theory at least, were con- 
 ferred on him only by election. 
 Its effect The feudal domain soon began to react on the 
 
 on the 
 
 kingship, kingship. It is hard for any man, very hard for 
 an unlettered warrior, to live constantly up to the 
 artificial doctrine that he is two persons in one. 
 And, as the idea of property is simpler than the 
 idea of kingship, it is not surprising to find that 
 the kings manifested a strong tendency to look 
 
 Heredity, upon their kingdoms as domains. It is to this 
 tendency, undoubtedly, that we owe the hereditary 
 character of the medieval kingship. We have 
 seen that it was, at first, clearly elective. But 
 the elective king had hereditary ^ domains ; and 
 when these went to his heir, it was natural th at 
 the kingship should go with them. In this way 
 the Crown of France and, ultimatelyj_evenj;he 
 kingship of Germany, become hereditary. We 
 cannot be sorry for the result. Of all political 
 institutions, elective monarchy is that which 
 stands most conclusively condemned by the 
 verdict of history. But it is worth while to note 
 the chief cause of its downfall, 
 
 chaJacto. Moreover, to the feudal position of the 
 
I"-] THE STATE. 89 
 
 medieval king the State owes a still greater 
 accession of strength than the hereditary 
 character of its rulers. When we come to deal 
 with the Administration of Justice, we shall see 
 that, next to its military character, the most 
 important feature of feudalism is its judicial 
 aspect. The Fief is a judicial as well as a mili- 
 tary unit ; the lord of the fief has jurisdictional 
 rights over every one of his vassals, and, pro- 
 bably, over many persons who are not, in strict- 
 ness, his vass als. He may not pronounce judge- 
 ment ; but judgement must be pronounced in 
 his court. What more natural than that the 
 
 feudal chief whojhas become a king should claim 
 similar rights^ over jhe^ man who have become 
 his subjects ? Of course, there is a fierce and 
 bitter struggle ; for the king's claims of Justice 
 are opposed to the claims of those who elected 
 him, with no thought, certainly, of diminishing 
 their owrLJuudadictional privileges. But, in the 
 end, the king wins, as we shall hereafter see. 
 In England, the victory is early and complete ; 
 because England is one fief, an acquired fief, and 
 the royal domain is coextensive with the king- 
 dom. The English kings of the twelfth century 
 have to promise, in their charters, " equity and 
 
stration. 
 
 90 LAW AND POLITICS. [ch. 
 
 mercy in all judgements " ; they have become 
 judges, as well as leaders in war and preservers 
 of the peace. ^^ The struggle is longer and harder 
 elsewhere ; in France, Scotland, and Germany, 
 the king is never wholly successful. And the 
 fact is one of the chief causes of that superior 
 solidity which the State in England manifested, 
 all through the Middle Ages. 
 Admini- Lastly, to its feudal elements the State pro- 
 bably owes that general power of management of 
 the affairs of its members which we call Admini- 
 stration, and about the proper limits of which 
 we are apt to differ so strongly. The medieval 
 king was a feudal chief, the feudal chief was a 
 landowner. Besides his territory, as we should 
 consider it, on which his free vassals were 
 settled, he had his domain in the strictest sense, 
 his inland, which he cultivated by forced labour, 
 under the management of his bailiffs. For the 
 control of his bailiffs and serfs he often prescribed 
 regulations or ordinances ; " and, in any case, 
 the policy of management, was entir ely in h is 
 hands. With his accession to the kingship, J ie 
 saw this power widen in possibilities, till it 
 covered the whole of his kingdom. Of course 
 he found himself opposed at everyjurn^bynval 
 
"!•] THE STATE. 91 
 
 claims. But his officials were prompt to seize 
 opportunities^ and soon the theory became 
 established, that, where no positive rival claims 
 could be substantiated, the king, as general 
 guardian and administrator of the realm, was 
 entitled^ tojthe business. So we get such special 
 subjects of royal management as widows and 
 orphans,^ aliens, Jews, lunatics, and, later on, the 
 pr inting -press. Nature is so fertile in novelties, 
 that the gleanings are often worth more than 
 the harvest. 
 
 Thus we have traced the growth of the State, 
 from its origin as a military institution of the 
 simplest type, to its compound developement of 
 defender against attack, keeper of internal peace, 
 dispenser of Justice, administrator of the affairs 
 of the land. How it acquired legislative power, 
 we have previously seen.'^ To complete our 
 sketch, we have but to face one important 
 question. The State, yes. But who constitute 
 the State ? To answer this question, we must 
 again go back on our history. 
 
 The State begins, as we have seen, with a band The n 
 
 ■ bers o 
 
 of warriors, ow0^ing allegiance to a war chief It state, 
 has ^eenthe subject of keen dispute whether the 
 Teutons of the Volkerwanderung brought with 
 
92 LAW AND POLITICS. [CH. 
 
 them their wives and children, their slaves and 
 their herds ; or whether they were simply armies 
 in marching array. The question is not very 
 important for our purpose ; for we may be quite 
 sure that such women and children as may have 
 accompanied the hosts were considered as being 
 each in the mund of the warrior whose tent or 
 At first waggon he or she shared. It is more important 
 
 only 
 
 warriors, to notice, that the step by which the Frank 
 marked his definite attitude of comradeship with 
 the provincial was by forcing him to military 
 service." This is not the rule of the later 
 Roman Empire ; the soldier there is a volunteer 
 and a professional, and this fact may have been 
 one of the great causes of the dissolution of the 
 Roman State. But the Frank idea of the State 
 is a body of warriors. 
 
 The feudal The Same idea re-appears with the resurrection 
 
 principle. 
 
 of the Teutonic State in the tenth century. The 
 State consists of the king, and those who h ave 
 sworn fealty to him ; and the kingdom is the 
 territory comprising their fiefs, and, of course, 
 the domain lands of the king. But the direct 
 action of the King is limited to the l atter ; jnM:he 
 former, he deals only with the chiefs, the men 
 who have sworn fealty to him. Indirectly, 
 
Ill-] THE STATE. 
 
 93 
 
 perhaps, he can demand the levy of all the free- 
 men, or, at least, all the fief-holders in his king- 
 dom. But, except in the case of his direct lieges, 
 he can only do it circuitously. 
 
 This is why the oath at Sarum is so momentous The oath 
 
 at Sarum, 
 
 an event, not only in English history, but in 
 Teutonic history. When King William in the 
 Lammas of 1086 summoned the knights of all his 
 followers, or, as the Anglo-Saxon chronicle puts 
 it, "all the landowning men of property there 
 were over all England, whosesoever men they 
 were" and made them swear oaths of fealty to 
 him against all other men, he was enlarging 
 the boundaries of the State, and marking an 
 epoch in its history.^* Henceforward, when 
 he summoned his array, he would have a direct 
 claim, not only on his tenants-in-chief, but on 
 their under vassals. Any vassal who took up 
 arms against him, even at his own lord's com- 
 mand, would be guilty of the crime of treason. 
 It is long before the kings in France win 
 such a victory. In the France of 1358, the 
 king can barely obtain from the Estates of the 
 Langue d'Oil an acknowledgement of his right 
 to levy the arriere-ban}^ In Germany, the old 
 tradition of Karolingian times, that the king can 
 
94 LAW AND POLITICS. [CH. 
 
 call upon every armed man for service, dies away 
 before the new feudal idea of fief duty ; and the 
 army of the Empire, which had once assembled 
 in its glory at the ban of Charles the Great, 
 becomes less and less of a reality, till it dwindles 
 into that shadowy state of existence, so graphi- 
 
 A.D. 1648. cally described by Carlyle. After the Treaty 
 of Westphalia, it becomes practically impossible 
 to enrol it. But this is because the German 
 State has itself ceased to exist. 
 
 Taxation. The results are the same, if we trace the growth 
 of the State through that duty which became the 
 substitute for military service and the basis of 
 political organization, viz. the duty of paying taxes. 
 Changed conditions of warfare brought about 
 in Western Europe generally, at the close of 
 the eleventh century, the practice of commuting 
 military service for the payment of money. The 
 astute move made by Flambard in 1094, when 
 he took from the ten thousand men-at-arms 
 assembled at Hastings their ten shillings apiece 
 of victual money, soon found its successor in the 
 scutages of the twelfth century. The " host 
 tax " in France, and the " common penny " in 
 Germany, are similar developements ; the last is 
 formally recognized as the basis of the Imperial 
 
Ill-] THE STATE. 95 
 
 army and its roll call by the Nurnberg Diet 
 
 of 1422. 
 
 But the limitation of military service, or its its exten- 
 sion, 
 
 equivalent, to the immediate vassals of the king, 
 even to the landowning men of the kingdom, left 
 the State still but a narrow institution, an insti- 
 tution surrounded by rivals which maintained a 
 steady resistance to its claims. The decisive 
 step was taken when the State began to assert 
 its right to tax, not only its immediate vassals, 
 but all persons living within its territory. This 
 attempt dates definitely from the end of the 
 twelfth century; and it is again worthy of note 
 that the event which prompts it is a military 
 event — the wars of the Crusades. The Ordin- 
 ance of the Saladin Tithe in England, the aide 
 pour le cas de croisade in France, are the signals 
 of the new movement ; and the State is resolutely 
 bent upon establishing as a regular practice a 
 doctrine so vital to its increase and prosperity. 
 The general fall in the value of money, the 
 increase of State activity, with its increase of 
 expenses, combine to render the old feudal 
 aids and scutages, and the revenues of the 
 royal domains, insufficient for the purposes of 
 government ; and the King is thus furnished 
 
96 LAW AND POLITICS. [CH. 
 
 with a plausible excuse for enlarging his claims. 
 
 in Eng- But the struggle is long and bitter ; and it is 
 only the generous policy of 1295 which enables 
 the State to win an early and complete victory 
 
 Germany, in England. In Germany, the Imperial tax 
 never establishes itself in the Middle Ages as a 
 regular institution.^" The Holy Roman Empire 
 
 France, remains to the end a feudal body. In France, 
 the State does indeed make good its claim, after 
 long struggle, and subject to many unjust ex- 
 ceptions, to direct and universal taxation. But 
 the struggle is fought on wrong lines ; and 
 the results are disastrous. The failure of the 
 scheme of £tats in 13 14 throws the kings back 
 on their rights as feudal lords ; and as, by the 
 successful policy of the monarchs of the Capetian 
 line, province after province is added to the 
 royal domains, it is treated as an estate to 
 be exploited, rather than as a kingdom to be 
 governed. Thus the taxes in France become 
 the property of the king, not of the State ; and 
 the system of taxation begins to assume that 
 complexion of anomaly, confusion, and privilege, 
 which Necker exposed with such terrible force 
 in 1784. 
 
 It is, in fact, only^in England, and, possibly, in 
 
I"] THE STATE. 
 
 97 
 
 Scandinavia, that the State, even at the close of 
 the Middle Ages, at all approaches that condition 
 of sovereign omnipotence described by Hobbes, Sover- 
 and elaborated by Bentham and Austin. In the state. 
 England, at the close of the sixteenth century, 
 the union of all the elements of society has pro- 
 duced a State which is, for practical purposes, 
 over all persons and in all causes supreme. But 
 neither in Germany, nor in Scotland, nor in 
 France, would Hobbes' doctrine have applied. In 
 Germany, the Holy Roman Empire was dying of 
 inanition, and its powers were strictly limited ;■ it 
 was barely real enough to prevent the culmination 
 of territorial sovereignty among its members. 
 In Scotland, the State was still confronted with 
 an older and more powerful enemy than even 
 the great feudal vassal. On the Scottish Parlia- 
 ment Rolls of the year 1587, there is an in- 
 structive list of "the clans that has captains, 
 chiefs, and chieftains, on whom they depend oft- 
 times against the will of their landlords, as well 
 on the borders as highlands, and of some special 
 persons of branches of the said clans." Imme- 
 diately preceding this entry, is a list of the 
 landlords and bailies "dwelland on the borders 
 and in the highlands where broken men has dwelt 
 
 H 
 
98 LAW AND POLITICS. [CH. 
 
 and presently dwells. " '^^ It is a perfect picture ; 
 the Clan versus the State. France is often spoken 
 of as the supreme example of a compact and 
 united State from the days of Louis XI. But it 
 is one thing to be centralized, another to be united. 
 Whoever studies carefully the constitutional 
 history of the angien regime, will not fail to see, 
 under the centralizing machinery of the royal 
 policy, deep and irreconcileable differences of 
 organization. Many systems of law ; pays de 
 droit hrit and pays coutumiers. Many systems of 
 taxation ; pays de giniraliti, pays d'^iats, pays 
 d! election, pays de la grande gabelle, pays de la petite 
 gabelle. Many systems of finance ; provinces de 
 I' imposition foraine, provinces d Stranger' effectif, 
 provinces des cinq grosses fermes. Many kinds of 
 courts ; royal, feudal, municipal, ecclesiastical. 
 So far from being a united country, France is, 
 at the close of the Middle Ages, even at the fall 
 of the anfien regime, one of the most disunited 
 countries of Europe. There is no sovereign 
 State ; the Austinian doctrine will not apply. 
 When Louis XIV. made his famous boast — 
 L'£tat, cest moi — he was not revealing his own 
 power, he was exposing the weakness of his 
 State. 
 
I"-] THE STATE. 99 
 
 Notes to Chapter III. 
 
 ^ See this idea excellently worked out by Morgan, Ancient 
 Society, Part II. cap. v. {The Iroquois Confederacy). 
 
 ^ F. de Coulanges, L'lnvasion Germanique, pp. 297-299. 
 ^ Duchesne, Histoiice Francorum Scriptores, i. p. 849. 
 
 * Lex Salica, xli. 3, xlii. i, Ixxviii. i {optimatibus vel aiitrus- 
 Uonibus), Lex Alamannorum, xxix., Wihtrsed's Laws, 20, 
 Alfred's and Guthrum's Peace, 3, etc. i 
 
 ^ Tacitus, Ger mania, 7. 
 
 * Lex Ribuaria, Ixv. ,1. • 
 
 ' F. de Coulanges, La Monarchic Franqtie, pp. 291-295. 
 ' Ibid., pp. 1 18-120. 
 
 * Dom. Bouquet, vol. iii. p. 412. 
 
 ^° Ibid., vol. ix. p. 56. So also Ordericus Vitalis, Bk. I. 
 p. 369. 
 
 " Ibid., p. 16. 
 
 " Ibid., p. 7. 
 
 '^^ Widukindi Chronicon, Lib. i. pap, z6 (M. G., ss. iii. p. 
 429). 
 
 '^'^ Esmein, Histoire du Droit Franfais, pp. 324, 325. On 
 the history and claims of the royal domain, cf. Choppin, De 
 Domanio Fraticim, 1588. 
 
 ^^ Stubbs, Select Charters, 5th ed., p. 99 (Henry I.), p. 121 
 (Stephen), p. 251 (Richard)^ p. 271 (JpM). 
 
 '* This appears to be tlie true character of the English royal 
 Assises of the 12th century, and the early Ordonnances of the 
 French kings. 
 
 1' Cf. F. de Coulanges, La Monarchic Franque, pp. 289-295, 
 above cited. See also on this point Boretius, Die Wehrpflicht 
 unter den Karolingern. (Beitrage zur Capitularienkritik.) 
 
 1' Stubbs, op. cit., pp. 81, 82. 
 
 " Laurifere, Ordonnance of 1^$$, vol. iiL p. 134. 
 
 2° Schroder, Deutsche Rechtsgeschichte, p. 527. 
 
 21 Acts of the Parliament of Scotland, vol. iii. pp. 465 
 and 466. 
 
LAW AND POLITICS. [CH. 
 
 CHAPTER IV. 
 
 THE ADMINISTRATION OF JUSTICE. 
 
 The administration of justice, which is now looked 
 upon as one of the peculiar and inevitable functions 
 of the State, comprises, in modern times, several 
 very distinct processes. The State, at least in 
 some cases, apprehends and prosecutes the 
 offender, investigates the facts, declares the law, 
 pronounces the award, and carries it into effect. 
 The first truth which the student has to grasp is, 
 that these different processes have different 
 histories, that they were acquired by the State 
 in different ways, and at different times. The 
 convenient doctrine of modern writers, that the 
 administration of justice, as we understand it, 
 was always the special function of the king or 
 State, is quite unwarranted by the facts of 
 Teutonic history. 
 The blood The earliest notion of justice, as distinct from 
 
 feud. .... 
 
 mere indiscriminate revenge, that we find among 
 
IV.] THE ADMINISTRATION OF JUSTICE. loi 
 
 the Teutonic peoples is, undoubtedly, the blood 
 feud. Barbarous as such an institution appears 
 to us, we have but to think for a moment, to 
 realize its immense importance, as a step in 
 human progress. A man receives a wound from 
 another, is perhaps killed. Instantly the passion 
 for slaughter awakes. All who are in any way 
 interested in the dead man — those who wor- 
 shipped his gods or fought by his side, are eager 
 to avenge his death on any person who may be 
 supposed to be connected with his murderer. 
 General carnage is the result; no man's life is 
 safe. But, if it can once be established, that the 
 right of vengeance belongs only to a limited circle 
 of the dead man's relatives, and may be exer- 
 cised only against the immediate relatives of the 
 offender, the area of vengeance is substantially 
 narrowed, the evil of the deed proportionately 
 ' decreased. This is the work of the blood feud. 
 How the momentous change is made, we have 
 no knowledge, at least from Teutonic sources. 
 In all probability it was connected with the in- 
 creasing definiteness of marriage relationships, 
 and that tendency towards monogamy, which 
 
 we find in every progressive society. But, when Disap- 
 pearing 
 
 we first turn the search-light of history on the when 
 
I02 LAW AND POLITICS. [CH. 
 
 Teutonic Tcuton, he is found to be passing tlirough and 
 
 history 
 
 begins, beyond the blood feud. Only indirect traces of 
 the feud remain, for the most part, to mark its 
 vital influence on early society. The Lombard 
 kinof Rothar insists that the new custom of com- 
 pounding for wounds shall prevail among his 
 subjects, cessante faida hoc est inimicitia} " If 
 a stranger slave slay an Englishman," say the 
 Wessex customs which Ine confirmed, " his 
 master ought to give him up to the (dead man's) 
 lord or kin, or to pay sixty shillings for his life. 
 If the master will not make this bargain for him, 
 then let him set the slave free, and let his kin pay 
 the dead man's wer, if he has free kin ; if he has 
 not, then let his foes deal with him."^ Charles 
 the Great, in a Capitulary of 802, sternly forbids 
 the kin of a slain man to increase the evil already 
 committed, by denying the peace to the man- 
 slayer who craves it.^ 
 
 Thea/ff-. To the blood feud, then, succeeds the wer or 
 money payment as compensation for the injury 
 inflicted. Here again we are in the dark as 
 to the origin of the change, which may, pos- 
 sibly, have taken place before the introduction 
 of coined money into the Teutonic world, but 
 was probably almost contemporary with that 
 
IV.] THE ADMINISTRATION OF JUSTICE. 103 
 
 event. It is, of course, highly probable that 
 Christianity, with its hatred of bloodshedding, 
 may have had much to do with the substitution 
 of payment for corporal revenge. But upon 
 these obscure points we can only conjecture. 
 One thing is tolerably clear, that the change was 
 not very old when the Leges Barbarorum began 
 to be compiled. For the earliest of these codes, 
 the Lex Salica and the Lex Ribuaria, the Edict 
 of Rothar and the Dooms of .^thelbirht, are 
 chiefly concerned with minute and careful regula- 
 tions on the subject. And, as we have said, a 
 matter with which primitive codes concern them- 
 selves is pretty sure to be a disputed novelty. 
 The connection between the blood feud and the 
 new system of compositions is abundantly clear 
 from the texts recently quoted. If any further 
 proof were necessary, we have but to point to 
 the Low Latin \iot<1 faidus, which is used indis- 
 criminately in the Leges, to signify either the feud 
 itself, or a payment by which it is bought off. 
 
 But two points in connection with the system No means 
 
 ofenforc- 
 
 of pecuniary compositions require careful ing pay- 
 attention. To begin with, it seems to have 
 been a purely voluntary system. It is difficult, 
 in fact, to see how the Clan, an organ destitute 
 
104 LAW AND POLITICS. [CH. 
 
 of anything like an executive machinery, could 
 have enforced the acceptance of the wer, without 
 bringing down upon itself that state of general 
 disturbance which the wer was designed to avoid. 
 Its elders (rachimburgi) could pronounce the 
 amount of the wer which the precise nature of 
 the offence merited ; but it is extremely impro- 
 bable that they possessed any means of securing 
 its payment.* The manner in which the early 
 texts speak of the money composition seems to 
 show that acceptance and payment are alike 
 voluntary. If the avenger succeeds in bringing 
 the evil-doer before the elders, he must take 
 care that the accused gives security to abide by 
 the pronouncement. For this security modern 
 Germans have coined the appalling word 
 UrteilserfUllungsgelobnis ; the Roman scribes 
 express it by the simpler term ^des facta.^ On 
 the other hand we see, even in Charles the 
 Great's day, signs of the man who will not accept 
 the money payment, who prefers to carry on his 
 feud.'' 
 
 Bootless In the second place, it was always admitted 
 that there were some offences for which the 
 money payment could not atone. Even in the 
 time of Tacitus, the Germans drew a distinction 
 
 crimes. 
 
IV.] THE ADMINISTRATION OF JUSTICE. 105 
 
 between the crimes which were made the subject 
 of accusation before the consilium, and the 
 offences which were left to the blood feud or the 
 wer? Whatever the consilium of which Tacitus 
 speaks may precisely have been, it is clear that 
 it was a thing different from the avenging kin. 
 The Westgotalag contains, in both its stages, 
 an instructive chapter on Orbotcsmal, or bootless 
 offences, which it also describes by the significant 
 name of nithingsvcerk. For these, no pecuniary 
 payment will atone ; the offender is banished, 
 and his goods forfeited.* 
 
 These are our two starting points for the Position of 
 
 ^ ^ the king. 
 
 history of State justice. The king comes to 
 the help of the Clan by compelling the avenger 
 to accept the wer, and by compelling the offender 
 to pay it. He likewise takes upon himself the 
 punishment of bootless crimes. 
 
 The king compels the acceptance of the wer. Enforces 
 
 accept- 
 To this point we have already alluded, in speak- ^""' 
 
 ing of the existence of the feud. Another passage 
 or two may be quoted from the legislation of 
 Charles the Great. " If a feud arise, let him be 
 seized who is opposed to a peace ; and let them 
 be compelled to peace, even if they are unwill- 
 ing." ' " If any one on the spur of necessity 
 
io6 LAW AND POLITICS. [CH. 
 
 has committed homicide, let the count in whose 
 jurisdiction the deed was done compel the pay- 
 ment of the composition and the swearing of the 
 peace ; and, if either party refuse to consent to 
 that, ... let him (the count) cause the con- 
 tumacious party to come into our presence, that 
 we may send him into exile for such term as we 
 may think good, till he be chastised." " 
 and the But it would have been difficult for the king 
 
 of the iver. to have deprived the avenger of his right of 
 vengeance, unless he could have assured to him 
 the payment of the composition or fine. The part 
 played by the royal officer in the enforcement 
 of the wer is admirably explained by Dr. Sohm 
 in his monograph, entitled Der Process der Lex 
 Salica}^ When the offender has made default, 
 the claimant proceeds to the graf or count, a royal 
 official, and demands execution against the goods 
 of the offender, to the amount specified by the 
 rachimburgi as the equivalent of the fine. The 
 newness of this procedure at the time when 
 the Lex Salica was drawn up, is shown by the 
 almost savage rules which govern its exercise. 
 " But if the graf\i\\&xi summoned shall dare to 
 take more than is lawful or right, let him redeem 
 himself or compound for his life." " And if, after 
 
IV.] THE ADMINISTRATION OF JUSTICE. 107 
 
 all efiforts to secure payment have failed, the 
 avenger insists upon his original right of blood, 
 he cannot be denied. The wer is only a sub- 
 stitute if paid. If the guilty person cannot find 
 a friend to redeem him, he must pay with his 
 life. He is given into the hand of the avenger, 
 who does with him what he will.^^ But this 
 final remedy is thrust more and more into the 
 background. Charles the Great gives it another 
 blow when he undertakes to levy wer, not only 
 on the offender's movables, but on his land. "If 
 the quantity of movables there found shall not 
 suffice for the composition, then let it be made 
 up from his immovables." " Still, however, 
 the idea of revenge as the final remedy dies 
 hard. It awakes to new life with the feudal 
 Appeal of Battle ; it remains to our own day as 
 the private duel. 
 
 But the co-operation of the king in the enforce- The king's 
 
 share. 
 
 ment of the wer brings about one very important 
 by-result. The king's officer does not work for 
 nothing. The Lex Salica tells us that two parts 
 of the sum raised by the graf go to the injured 
 party ; while the third remains to the graf him- 
 self dLs/reius or /redus}^ The word is suggestive. 
 Th&fredus is the fine paid to the king for the 
 
io8 LAW AND POLITICS. [CH. 
 
 breach of Friede, the peace. By refusing to com- 
 pound for his offence, the offender has been guilty, 
 not only of a private injury, but of an offence 
 against the king.^* This idea gives the king a 
 direct and extremely practical interest in the 
 punishment of offences. The royal commission 
 for enforcement of the wer is 33J per cent. We 
 can now understand why the ancient Peace of 
 Hildebert and Chlothar declares that the man 
 who compounds for a theft privily is a thief 
 himself." He has stolen the king's fredus. 
 And so we get the beginning of that double 
 element in legal proceedings — the claim of the 
 Party and the claim of the State — which has had 
 so much influence on legal developement. The 
 Lex Salica knows it as faidus et fredus. The 
 Anglo-Saxon Laws express it as wer and wife. 
 The The attitude of the king towards the orbotamal, 
 
 bootless 
 
 crimes are the bootless ofifences, is equally clear. We have 
 
 offences 
 
 against the seen that the proper consequence of these is 
 banishment and forfeiture. The community will 
 have nothing more to do with a man who kills 
 another in a church or at the Thing, who slays a 
 sleeping man, or a woman. He may go out into 
 the wilderness ; the community will no longer 
 tolerate him. 
 
IV.] THE ADMINISTRATION OF JUSTICE. 109 
 
 But this penalty has a double aspect. The 
 goods of the offender may be shared between the 
 Clan and the State ;^* but in the outlawed man 
 the State loses a warrior. Accordingly, we soon 
 find that the orbotamal are reckoned as offences 
 specially directed against the king. The change 
 seems to have taken place, amongst the West 
 Goths of Sweden, between the compiling of 
 the older and the newer editions of the West- 
 gotalag. In the latter we note the significant 
 statement, which follows the enumeration of the 
 orbotcemal : "All these cases are breaches of the 
 king's peace (ethsore). Each offender redeems 
 himself from the wilderness with forty marks 
 when the injured party has interceded for him." " 
 So we get the rule that the king's ban entails 
 a heavy fine, a punishment, as distinct from a 
 composition. The State is willing to waive its 
 extreme rights, and to keep its warrior, on pay- 
 ment of a fine. As ideas of justice become 
 stricter, the alternative changes into corporal 
 punishment ; but the theory is the same. The Criminal 
 "eight ban cases" of Prankish law, the "pleas 
 of the crown " in England and Scotland, are the 
 beginning of true criminal law. If the offender 
 will not submit to the punishment ordered by the 
 
no LAW AND POLITICS. [CH. 
 
 State, if he flees for it, the alternative is always 
 the same, banishment and confiscation of goods. 
 This is the " outlawry " of England, the " horn- 
 ing" of the Scottish courts. It is a terrible and 
 very effectual remedy, and is always at the 
 disposal of the State. In England, so late as 
 the eighteenth century, to recover a debt in the 
 king's courts, the first step is outlawry of the 
 debtor. 
 State For some time, the provinces of the Clan and 
 
 Justice 
 
 and Clan the State are kept distinct. As the old German 
 
 Justice. 
 
 maxim puts it, the ordinary case is decided " by 
 Richter's ban, by' Asega's judgement, by Bauer's 
 will." The Richter is the royal official, who exe- 
 cutes the sentence. The Asega is the ruling elder, 
 who formulates the decision of the assembly, the 
 Urteil or Doom. The Bauern, are the assembly 
 of elders, who declare the law. But the royal 
 element gains fast. The Bauern are replaced by 
 the official Schoffen or scabini of the Karolingian 
 organization. The Asega disappears, except in 
 Frisia and the Rhineland, where Teutonic con- 
 servatism is strong ; his functions are absorbed 
 by the Richter. In England, the royal sheriff 
 ousts the ealdorman. The echte Ding, or popular 
 assembly, meeting by ancient custom at the 
 
IV.] THE ADMINISTRATION OF JUSTICE. in 
 
 change of moon, gives way before the gebotene 
 Ding, summoned by the royal official when need 
 arises. The court of the harath, or Hundred, in 
 Sweden becomes an appendage to the rcsfsin- 
 gathing or royal court ; and may not be held 
 more than twice a year without the permission 
 of the landshcerra or royal official, or at least of 
 the laghman, who is by this time falling under 
 royal influence.^" Not only has the king the The royal 
 strong hand, which can enforce justice ; he has 
 more than one improvement to offer which we 
 must call scientific. The ancient methods of 
 proof are clumsy. If the accused can get his 
 neighbours to swear that he did not commit the 
 offence charged, he will get off". The oath- 
 helpers are easy to procure ; only in Scandinavia 
 does the tylft seem to have maintained its 
 genuineness. Elsewhere it is replaced by the 
 ordeal or the judicial combat, later by the pro- 
 duction of writings, all of these being peculiarly 
 royal methods. The old cumbrous process of 
 nam, or distress levied upon the offender's goods, 
 to make him appear before the moot, is forbidden, 
 as leading to disturbances ; the accused is sum- 
 moned by the royal ban. If he will not come, 
 he is outlawed, and, before he can appear and 
 
112 LAW AND POLITICS. [CH. 
 
 defend himself, must pay the kin^s ^oferhyrnes,^^ 
 or contempt-fine. The justice of the State proves 
 itself superior to the justice of the Clan. 
 Feudal But, in Continental Europe, the rise of feudalism 
 
 Justice. 
 
 deals a severe blow at royal justice. The king's 
 official, throwing off the allegiance which he owes 
 to the king, treats his judicial powers as private 
 property. Perhaps he revives the ancient tradi- 
 tion of the Roman Empire ; for we must always 
 remember that the Karolingian graf has in him, 
 so to speak, a background of the Roman comes. 
 Towards his non-military subjects, his roturiers 
 and Bauern, he is, probably, a real judge,, just as 
 was the comes. Towards his feudal vassals, he 
 is much more like the Karolingian Richter. He 
 summons the court and executes the sentence. 
 But it is doubtful if he may even preside in 
 person ; the seigneur always appoints a bailli, in 
 Scotland the hereditary sheriff must have a 
 sheriff-depute. The lord may be a party to the 
 case, and " no one can be judge in his own cause." 
 Certainly he does not, nor does his representa- 
 tive, declare the law. That is, as of old, the 
 function of the assembly ; and here, again, the 
 Fief will remind us of the Clan. But there is 
 small room left for the State. The £iablissemens 
 
IV.] THE ADMINISTRATION OF JUSTICE. 113 
 
 le Roy, a well-reputed French law book of the 
 late thirteenth century, will not allow any ban 
 but the lord's within the limits of the fief. 
 " Neither can the King put his ban in the 
 Baron's land, nor the Baron his ban in the land 
 of the Vavassor." ^^ The coutumier or non-feudal 
 tenant pays sixty shillings for various offences 
 against his lord.^* But sixty shillings is the old 
 Karolingian royal fine. The seigneur has ac- 
 quired for himself the royal right. In Germany, 
 the great feudatories will not hear of the royal 
 claims, and wring from the Kaiser the Privileges 
 in favour of the Princes, which definitely re- 
 nounce the royal right of interference. Only in 
 one respect does feudalism contribute anything 
 to the justice of the State. The feudal system is 
 a hierarchy, at its head stands the king. But a 
 hierarchy begets the notion of appeal from lord 
 to overlord, a notion entirely foreign to Clan 
 justice, and probably borrowed from ecclesiastical 
 sources. In later times, the skilful jurists wJio 
 surround the French throne will make good use 
 of this notion ; the German princes nip it in the 
 bud by procuring Privileges against Appeals, But 
 in the palmy days of feudalism it is worth very 
 little. Even the bootless offences have ceased 
 
 I 
 
114 LAW AND POLITICS. [CH. 
 
 to be the province of the State. The seigneurs 
 (and they are legion) who exercise High Justice, 
 have their eight-pillared gallows, and dispose of 
 the greatest offences. In the year 1363, the 
 king of France claims for the Parlement at Paris, 
 his supreme law court, only four classes of cases 
 — (i) matters affecting Peers of France, (2) 
 matters affecting " certain " prelates, chapters, 
 religious persons, barons, consuls, scabini, and 
 communes, (3) matters affecting the royal domain, 
 (4) appeals from royal officials.^* Nor must it 
 be supposed that, under this last head, the 
 Parlement was really obtaining appellate juris- 
 diction of a sweeping character. The royal 
 provosts and bailiffs were long restricted in the 
 exercise of their offices to the area of the royal 
 domain. In the year 1315, Louis le Hutin 
 expressly recognizes the absolute right of the 
 feudal seigneur to criminal jurisdiction in all 
 cases.^* So powerless, indeed, do the kings and 
 Kaisers of the twelfth and thirteenth centuries 
 feel themselves, in the face of feudal claims, that 
 they encourage the creation of municipal courts, 
 whose jurisdiction is yet another blow to the 
 justice of the State. The Church, also, has her 
 independent courts, which are full of business. 
 
IV.] THE ADMINISTRATION OF JUSTICE. 115 
 
 At the close of the thirteenth century, State 
 justice is almost dead in continental Europe. 
 Men are judged by their lords, by their fellow- 
 burghers, by their priests ; they are not judged 
 by the State. 
 
 It is very suggestive to notice, that the Resurrec- 
 tion of 
 
 medieval king makes head aeainst the claims foy^i 
 
 ° ° justice. 
 
 of feudalism in precisely the same way as his 
 ancestor, in the early days of the Teutonic State, 
 made head against the Clan. The parallel is 
 another strong point of resemblance between the 
 Fief and the Clan ; it is also a confirmation of the 
 view which regards the Frank Empire (as dis- 
 tinguished from the kingdom) as a pretentious 
 unreality. We have seen that the primitive king 
 gained his judicial position by guarding the peace, 
 by assisting the imperfectly developed moot of 
 the Clan, and by offering superior methods of 
 procedure. The story repeats itself. 
 
 One of the most prominent features in the The king's 
 
 peace. 
 
 rise of the medieval monarchy is the importance 
 attached to the keeping of the peace. It is true 
 that the kings did not take the initiative. The 
 peace of the Church and the peace of the gild 
 are older than the peace of the king.^* But the 
 king's peace is the best, because it is the strongest. 
 
ii6 LAW AND POLITICS. [CH. 
 
 So long as it is well kept, there is a chance for 
 industry to flourish. When the English Lion of 
 Justice, who in his time " made peace for man and 
 beast," gave up the ghost in Normandy, " then," 
 says the Chronicler, "there was tribulation soon in 
 the land, for every man that could forthwith robbed 
 another.'' ^' At first the king's peace is purely 
 personal ; when he dies, there is no royal peace 
 till his successor has proclaimed his own. When 
 the guardians of the realm, on the death of Henry 
 III., proclaimed the peace of the absent Edward, . 
 they took a step of immense importance, which 
 was fitting to mark the accession of the English 
 Justinian. Peace is to be henceforth perpetual ; 
 hitherto it has been the peace of the king, now it 
 is to be the peace of the kingdom. Edward's 
 contemporaries are not all so fortunate. St. 
 Louis has to content himself with the quarentena ; 
 not till forty days are over may disputants engage 
 in private war.^' Only on the royal domain are 
 private wars absolutely prohibited.^' In 13 15 the 
 nobles of Amiens deny that the prohibition 
 applies to them ; the king covers his retreat by 
 promising to search the registers.^" The old idea 
 of the blood feud dies hard after its feudal invigo- 
 ration. The kings sometimes even use it for 
 
IV.] THE ADMINISTRATION OF JUSTICE. 117 
 
 their own purposes. Frederick II. sanctions it 
 for the defence of the Empire.^^ Charles VI. of 
 France, in his great Ordonnance of 14 10, directs 
 his royal officials, if they cannot find the actual 
 disturbers of the peace, to seize and imprison 
 their nearest relations and friends.^^ In the 
 seventeenth century, the Oranbofk, or murder- 
 fine, is still shared amongst the relatives of the 
 deceased in Sweden and Denmark ; and until the 
 changes introduced by Knut and Waldemar in 
 the twelfth and thirteenth centuries, is enforceable 
 against the kin of the malefactor.^^ But such 
 methods are unworthy of State justice, and are 
 only resorted to in bad times. The great rule is 
 established, that he who acts " against the peace 
 of our lord the king " is an outlaw, and has for- 
 feited his land and goods. He is " in the mercy of 
 the king " ; and any punishment short of death and 
 confiscation is a merciful indulgence. Moralists 
 have often commented on the severity and 
 monotony of the medieval criminal law, which 
 seems to have but one penalty for every offence. 
 No doubt this is a grave defect in later times ; 
 but historical justice does not allow us to forget 
 the immense difficulty in setting up a criminal 
 law at all, and the necessity for supporting it by 
 
ii8 LAW AND POLITICS. [CH. 
 
 the most terrible engine known to man's inven- 
 tion. A severe criminal law is probably better 
 than no law. 
 of'the"°" ■^^'' ^^^ doctrine once established, that breach 
 ' ^^' of the peace is an offence against the king, it is 
 soon seen to be capable of almost unlimited 
 application. Originally, no doubt, a breach of 
 the king's peace meant a flagrant act of violence. 
 But it is difficult to draw the line. Strictly speak- 
 ing, any act which, however slightly, disturbs 
 the physical personality of an individual, is a 
 breach of the peace. But where does his 
 personality cease ? Not, certainly, at his corporal 
 integument ; for, in that case, his money might 
 be stolen from his pocket without a breach of the 
 peace. Nor even at his clothes ; for then the 
 theft of a horse from his stable would not be a 
 breach of the peace. In fine, the doctrine of 
 " the peace " is extended to cover everything in 
 a man's possession : everything over which he has 
 Posses- and claims to exercise physical control. The 
 doctrine of Possession is a mystery concerning 
 which many volumes have been written ; and to 
 dwell on the subtle questions to which it gives 
 rise would be out of place. But this is its 
 simplest element. That which a man physically 
 
 sion 
 
IV.] THE ADMINISTRATION OF JUSTICE. 119 
 
 controls, with title or without, is in his possession. 
 Every physical interference with such a thing 
 is a breach of possession. Every breach of Breach of 
 
 the peace. 
 
 possession is a breach of the peace. This is a 
 marvellously fruitful idea for the extension of 
 royal justice. It seems to have sprung into life 
 in the twelfth century, probably with the publi- 
 cation of the Decretum Gratiani, in which the 
 Canonist's actio spolii, harking back by a long 
 series of steps to the Roman Interdict Unde vi, 
 is made the basis of an action for breach of pos- 
 session. Our own Henry II. made noble use of 
 his opportunity ; the " possessory assizes " of his 
 day, the assises of novel disseisin, mort d' ancestor, 
 d'arrein presentment, which brought so much busi- 
 ness to the royal courts, are direct applications of 
 the Canonist doctrine. However good a man's 
 claim, he is not justified in taking possession 
 by force. If he does so, the State will restore 
 the ejected person before the question of right 
 is discussed. In France, the doctrine meets 
 with furious opposition from the feudatories, and 
 is only saved by the subtlety of Simon de Bucy, 
 President of the Paris Parlement, who distin- 
 guishes between the Saisine, which is an affair of 
 the feudal court, and the mere possession, which is 
 
I20 
 
 LAW AND POLITICS. [CH. 
 
 matter for the king.^* Any breach of possession, 
 however slight, is a breach of the king's peace. 
 And so we get the Nouvelle disseisine and the 
 Trouble et empichment in France, and, later and 
 still more fruitful than the possessory Assises, the 
 Writ of Trespass in England, which is to bring 
 so many cases into the king's Courts, that the 
 word " trespass " becomes almost an equivalent 
 for " offence " in general. In Scotland the 
 brieve of spuilzie still more directly reproduces 
 the canonical process. In Germany, the Kaiser 
 seems to have lost his chance. Only in case of 
 real defiance of the Empire (Reichsverwdgerung) 
 does the State claim direct jurisdiction.^^ In 
 Scandinavia, on the other hand, where feudalism 
 has scarcely existed, the right of the king to 
 punish breaches of the peace is clearly laid down 
 by Birger Jarl in the thirteenth century, and 
 becomes part of Christopher's Landslag in the 
 fifteenth. ^^ 
 Indirect But the king also gains much jurisdiction by 
 tion. indirect interference with rival jurisdictions. The 
 hierarchical character of the feudal system comes 
 in here very usefully ; for if the vassal cannot get 
 justice in the court of his immediate lord, what so 
 natural as that he should appeal to that lord's 
 
IV.] THE ADMINISTRATION OF JUSTICE. 121 
 
 superior, " for defect of justice " ? And, though 
 the overlord, even if he be the king, will hesitate 
 about accepting the appellant's statement at once, 
 he will not refuse him an order to his lord, bid- 
 ding the latter do good and hasty justice according 
 to the custom of the country. If the seigneur 
 neglect to obey this command, the king may then 
 avocate the cause to his own court. Sometimes, 
 the remission to the feudal tribunal is avoided by 
 a glaring fiction — the " because the lord has 
 therein renounced his court," of the English writs. 
 Sometimes, the royal lawyers assert that if the 
 king is once " seised " of a cause, no matter 
 in what capacity, the power of the inferior 
 tribunal is gone. This is the prevention absolue 
 of French law.^' The English king took a still 
 bolder step when he laid it down, in a lost 
 Assise, that no man need answer for his free- 
 hold without a royal writ. This was in the 
 reign of Henry II. ; perhaps the royal jurist 
 had in his mind the oath taken at Sarum some 
 century before. Of a like character is the purely 
 feudal jurisdiction of the king himself, who, as 
 we have previously seen, is always a great feudal 
 lord with domains of his own. Alongside of the 
 provosts and bailiffs of the feudatories, are the 
 
122 LAW AND POLITICS. [ch. 
 
 provosts and bailiffs of the royal domains, includ- 
 ing especially, as time goes on, the great privileged 
 towns to which the king has granted charters, 
 and which, despite their privileges, are, on strictly 
 feudal principles, " in the hand of the king." 
 And it is the king's aim to make his courts as 
 good as possible ; in order that they may attract 
 business from their rivals, and pave the way 
 for the hoped-for consummation, when, on the 
 annexation of the fief to the royal domain, the 
 men of the fief shall " resort " to the tribunal of 
 the royal bailiff. 
 Superior Thus we comc to the third means by which 
 
 methods 
 
 of the the State extends its jurisdiction. For we may 
 
 royal ^ ■' 
 
 courts. ^g^j^g j^ g^g granted that State justice would not 
 succeed in defeating its rivals unless it had some- 
 thing better to offer than they. We have seen 
 before how the Prankish king gained on the 
 courts of the Clan by the use of the royal ban and 
 the new methods of proof. The same story is 
 repeated by the royal courts of later times. 
 
 The Writ. One of the most powerful instruments of royal 
 
 aggression in the Middle Ages is the Writ or 
 
 >reve, which, as its name implies, is a short 
 
 written document, emanating from the royal 
 
 chancery. At first it has no special significance ; 
 
IV.] THE ADMINISTRATION OF JUSTICE. 123 
 
 any royal document is a Writ. But the term 
 soon becomes specially appropriated to those 
 royal commands which are issued in the ordinary 
 course of administration — the writ to summon 
 the host, the writ for levy of a feudal aid, the 
 writ for election of knights of the shire. Espe- 
 cially is it used for those royal commands which 
 are, in form, merely assisting, but, in reality, 
 undermining the courts of the Fief and the Clan. 
 The writ is, in fact, the later representative 
 of the old royal Ban, not now proclaimed by 
 sound of trumpet, but inscribed on parchment 
 and sealed with the royal seal. It has many 
 advantages over its rivals. In the first place, it 
 is written, its delivery to the addressee can be 
 easily proved, much more easily than the old 
 verbal or symbolic message of the Clan courts, 
 the summons of English law, the semonce of 
 Normandy, the mannung of ancient Germany, 
 which are clumsy oral proclamations, requiring 
 the presence of numerous witnesses, and only 
 available at certain hours of the day. Again, 
 it proves itself. If a letter comes from a baron 
 or a viscount, its authenticity may be doubted. 
 But no one can doubt the royal seal, or dispute 
 the contents of a royal document. All through 
 
124 LAW AND POLITICS. [CH. 
 
 the Middle Ages, the unimpeachable character 
 of the royal writ is one of its magic powers.^' 
 Again, the man who disobeys the royal writ, does 
 so at his peril. He is setting himself in opposition 
 to the power which, if not greater than all other 
 powers in the land combined, is probably greater 
 than any one of them taken singly. What pre- 
 cisely will happen to the contumacious recipient, 
 no one, perhaps, knows. He will be fined ; in 
 the background there lies the original penalty of 
 the royal ban, exile and confiscation of goods. 
 Fourthly, the king keeps a register of his writs ; 
 when his officials have once issued a writ, they 
 are likely to issue others of the like form. But 
 I a writ judiciously worded, expressing a principle 
 I which men have begun to adopt, is likely to 
 1 become a precedent ; and a precedent frequently 
 ^'acted on becomes a law. It is no good for a 
 man to take forcible possession of land to which 
 he believes himself to have a right, if he knows 
 that the royal chancery will issue a well-known 
 writ to the sheriff compelling him to give up his 
 forcibly-acquired possession at once. Lastly, 
 though the writ is, originally, doubtless, the 
 actual expression of the royal will, and issued 
 solely in royal business ; as time goes on, it is 
 
IV.] THE ADMINISTRATION OF JUSTICE. 125 
 
 found a profitable practice to issue writs to private 
 suitors who are willing to pay for them. And 
 private suitors are very willing to pay for them ; 
 they "purchase" writs, so great are their advan- 
 tages, at a high price. When they have bought 
 them, they produce them in the court of a fief, 
 and either put an end to or modify the feudal 
 proceedings. It is useless for Magna Carta to 
 prohibit the selling of justice ; the writs con- 
 tinue to be sold none the less, because they are 
 useful. 
 
 Again, another powerful weapon is the use of The jury, 
 that process of proof by Inquest which, in later 
 times, becomes the familiar Trial by Jury. The 
 notion of the older lawyers was, that this celebrated 
 institution was always popular in character. But 
 they were misled by superficial resemblances in 
 ancient popular institutions which, upon closer 
 examination, are found to be radically different 
 in character. The Ntsmth of Scandinavian Law 
 is the nearest popular analogue ; the Anglo-Saxon 
 Oath Helpers and the German Gemeindezeugniss 
 are very different things. But the Inquest a royal 
 
 privilege 
 
 which is the historical origin of our Trial by 
 Jury is an essentially royal privilege, not exer- 
 ciseable by the courts of the Clan or the Fief. It 
 
126 LAW AND POLITICS. [CH. 
 
 is used by Charles the Great and his successors 
 as a special means of discovering property be- 
 longing to the Fisc ; perhaps they borrowed it 
 from Roman Law. In the last days of the Mero- 
 wingian kingdom, the royal domain had been 
 plundered right and left. The plunderers were, 
 naturally, bent on concealing the plunder. 
 Charles Charles the Great bade his missi hold local 
 
 the Great. . . . 
 
 enquiries, at which the men of the neighbour- 
 hood should be compelled, whether they liked 
 it or not, to swear upon oath as to the disputed 
 facts. Their position was an unpleasant one ; 
 they had to be protected by special powers. But 
 the process was so successful, that the churches 
 borrowed it, though it is doubtful whether it 
 could properly be used by any but royal founda- 
 tions. It was eminently suited for a new king, 
 coming to a country of the circumstances of 
 which he was ignorant. William the Bastard used 
 it for the compilation of Domesday ; Edward I., 
 in collecting materials for the Hundred Rolls. 
 In Normandy it was a ducal privilege. 
 Sold to But the privilege could be sold. If it was 
 
 private 
 
 persons, convenient for the king to decide a disputed 
 question by a reference to the sworn verdict of 
 the men of the neighbourhood, so was it 
 
IV.] THE ADMINISTRATION OF JUSTICE. 127 
 
 especially convenient for the private suitor. 
 The existing methods of proof, though perhaps, 
 originally, royal innovations, were themselves 
 becoming antiquated. Trial by battle was 
 unpopular with many people ; in England it was 
 especially unpopular, as a badge of Norman 
 tyranny. People were losing faith in Ordeals ; 
 they were abolished by the Lateran Council in 
 1215. The still older proof by Oath-helpers, 
 modernized into the " wager of law," had become 
 a farce. So there was much room for a new 
 method of proof; and the Jury filled the gap. 
 It is the method specially chosen for the deci- 
 sion of possessory questions ; in the thirteenth 
 century the royal justices of Assise are going 
 regularly round the shires in England, holding 
 Inquests thrice a year. In Normandy, before 
 the end of the twelfth century, the barones jurati 
 are perambulating the Vicomtds and holding 
 Inquisitiones. The Parlement of Paris sends 
 out its commissaires on all sides to hold enquites ; 
 and, by the end of the thirteenth century, has 
 established a Chambre des Enquites, though the 
 French Inquest is already losing its original 
 character, and becoming infected with ecclesi- 
 astical notions. St. Louis, in his anxiety to 
 
128 LAW AND POLITICS. [CH. 
 
 abolish the Battle, even makes grants of placita 
 spades, the special pleas of the sceptre, to his 
 feudatories, amongst them the right of holding 
 Inquests. But, to the last. Trial by Jury remains 
 Failure in a Specially royal privilege. In a country in which, 
 and as in Germany, the Crown is weak, it hardly 
 
 France. 
 
 Strikes root at all. In France, the strong oppo- 
 sition of the feudal officials and the Romanizing 
 jurists succeed in destroying its simplicity and 
 value before it has held a fair chance of show- 
 ing its merit. In Scotland it takes no hold, only 
 in England, where the royal power is strong, is 
 the Jury a permanent and triumphant institution, 
 the normal method of deciding questions, not 
 only between king and subject, but between sub- 
 ject and subject. There, no doubt, it becomes 
 the bulwark of liberty. What was once the 
 privilege of the Crown has become the right of 
 the subject. The process which, in the thirteenth 
 century, has to be forced upon the criminal by 
 the peine forte et dure, is, in the sixteenth, the 
 national boast. But, for all that, it is in origin 
 a royal privilege, and one of its chief functions 
 in the history of Law has been to bring cases 
 into the courts of the State. 
 Partial By meaus such as these, the State has, no 
 
 character 
 
iv.J THE ADMINISTRATION OF JUSTICE. 129 
 
 doubt, acquired some share in the Administra- 2*' '•>? 
 
 '■ States 
 
 tion of Justice before the close of the thirteenth ^'='°''y- 
 century. In the main, that share has been won 
 by a strong competitor in a keen struggle ; though 
 the dim Roman tradition which, in continental 
 Europe at least, has never entirely died out, and 
 which, with the revival of the study of Roman 
 Law, has awoke to new life, has been a powerful 
 ally of the State. But the dogmatist who asserts 
 that the Administration of Justice is the original 
 and exclusive function of the State, may be 
 advised to glance for a moment at the condition 
 of Europe in the later Middle Ages. If he looks 
 towards the South, he will see that the royal 
 Siete Partidas recognize, alongside of the royal 
 adelantados and perquisidores, the feudal senores, 
 and the elective alcalde ; he will see, in the four- 
 teenth century, the royal Ordinance of Alcala 
 fully admitting the feudal jurisdiction of the 
 Castilian hidalgos, and the Cortes of Zaragossa 
 guaranteeing to the feudal nobility of Aragon 
 their exclusive rights of judgement over their 
 vassals, even in capital cases — they are to be 
 senores de horca y cuchillo?^ If he glances at the 
 North, he will find Stiernhook, well on in the 
 seventeenth century, explaining that the position 
 
 K 
 
130 LAW AND POLITICS. [CH. 
 
 of the king as dispenser of justice is a very 
 modern affair, and, even in his day, subject to 
 popular rights of a substantial character.'"' If 
 he travels to Scotland, he will find scarcely any 
 royal justice worth the name, until the establish- 
 ment of the Court of Session in the sixteenth 
 century. If he studies the official account of the 
 little kingdom of Hannover, drawn up in the year 
 1832, he will find no less than fifty-six lay pro- 
 prietary courts at work, exclusive of municipal and 
 ecclesiastical jurisdictions. Above all, if he looks 
 at the great collection of French custumals, drawn 
 up by royal authority in the sixteenth century, 
 and published by royal command, he will see 
 such an array of feudal tribunals that there 
 seems to be almost no room for the State courts ; 
 the volumes of Bourdot de Richebourg read 
 like a denial of the existence of State justice. 
 Even in England, where the State is immeasur- 
 ably stronger than elsewhere, he will, perhaps, 
 think of the long and bitter struggle over the 
 clerical immunities, which began with Henry II., 
 and which was not concluded till the Reforma- 
 tion. It is not true, of course, that the Church 
 maintained her independence as a judicial power 
 in those countries which did not accept the 
 
IV.] THE ADMINISTRATION OF JUSTICE. 131 
 
 doctrinal Reformation. We find the orthodox 
 Philip of Spain, in the year 1581, holding a 
 solemn enquiry on the subject of ecclesiastical 
 jurisdiction, and, as a result, insisting that an 
 appeal lies from the clerical to the royal tribunals. 
 We remember also the Pragmatic Sanction of 
 Charles VII., to which the French nation clung, 
 even after its pretended repeal by Louis XI. 
 But it is true to say that, until the Reformation, 
 no single monarch of Western Europe could, 
 with any show of plausibility, claim to be over 
 all persons and in all causes within his dominions 
 supreme. 
 
 The success of the State, as the Administrator judicial 
 
 organiza- 
 
 of Justice, depends, however, not more on the tion. Two 
 
 principles. 
 
 completeness with which it annexes the jurisdic- 
 tion of its rivals, than on the method of its own 
 judicial organization. Two leading principles 
 have governed the action of the Teutonic State 
 in this matter. 
 
 At first, we observe that the State is content Royal 
 
 ofHcials in 
 
 with sending- officials into the popular courts, to popular 
 
 ° -^ ^ courts. 
 
 collect the fines which, as we have seen, belong to 
 the State, to try the bootless crimes, and to render 
 that assistance to local justice which is one of the 
 most effective methods of recommending the royal 
 
132 
 
 LAW AND POLITICS. [CH. 
 
 Ante, pp. jurisdiction. So we get the royal graf or comes 
 sitting with the Asega, the sheriff with the ealdor- 
 man, the sacebaro and the schultheiss with the 
 thunginus and the rachimburgi, the sheriff's gingra 
 or junior along with the Hundred's ealdor. The 
 moot is held under the protection of the royal 
 shield, or of that banner which, in its crudest 
 form, as a wisp of straw, may to this day be seen 
 in Germany, floating over the field which is under 
 the sentence of the Court. In Scandinavia, if we 
 may trust the somewhat confused account given 
 by Stiernhook, " the State does not even trouble 
 itself to appoint separate judicial officers, at least 
 until later times. The provincial governor and 
 the royal beneficiary do not appear to sit with 
 the ruling elder and the president of the Hundred 
 in the trial of cases. But the king shares the 
 fines which the popular courts impose.*^ 
 
 Draw- 'phg principle, however, which unites the State 
 
 D3.C1CS 
 
 p°rindpie ^"^ ^^ d'SXi in the Administration of Justice, 
 valuable as it is to the State in many ways, has 
 its drawbacks. The popular procedure is, as we 
 have seen, cumbrous and ineffectual. The 
 increase of business caused by the activity of the 
 State renders attendance at the moot irksome. 
 Charles the Great is obliged to ordain that no one 
 
IV.] THE ADMINISTRATION OF JUSTICE. 133 
 
 but the new professional scabini and the actual 
 litigants and witnesses need attend the moot, 
 except on the ancient customary days." This 
 step at once draws a sharp line between the echte 
 Ding, which is still a popular moot, and the 
 gebotene Ding, which has now become a royal 
 court. In England, soon after the Conquest, we 
 get the parallel distinction between the Sheriff's 
 Tourn, when the tithing rolls are called over and 
 the View of Frankpledge held, and the monthly 
 session of the Hundred, when ordinary litigious 
 business is done. A step further, and we find circuit 
 the State, no longer content with its ordinary ■*" ^^' 
 officials, sending round special ministers, to hold 
 sessions for the trial of very important cases, 
 usually of great crimes, as well as to inspect and 
 report upon the ordinary machinery of the local 
 courts. These are the missi of the Karolingian 
 Capitularies : the Justice-General and his de- 
 puties, who, in ancient Scotland, perambulate 
 the country twice a year, " on the grass and on 
 the corn." 
 
 But, in the later Middle Ages, we observe a rival Cuna 
 
 Regis. 
 
 principle at work. The king, the head of the State, 
 has from the first been surrounded by military 
 and household officials. As, with the progress 
 
134 LAW AND POLITICS. [CH. 
 
 of war and conquest, he becomes a great land- 
 owner, he requires many officials to manage his 
 domain. Questions arising out of this manage- 
 ment are constantly coming before him. As they 
 increase in number and complexity, it becomes 
 impossible for him to dispose of them personally. 
 They are left to be decided by his domestic 
 officials, who constitute his hof or palatium, his 
 curia. At first this body is not a judicial body 
 at all, in the modern sense. It is the Court at 
 St. James', rather than the Court at Temple Bar. 
 It is merely the household of a great potentate, 
 in which the affairs of interest to its master are 
 discussed. Still less is it a universal Court of 
 Justice for the whole kingdom. Never was a 
 wilder and less historical doctrine broached, than 
 that the Curia Regis of the French and Anglo- 
 Norman kings was a tribunal for the general 
 disposal of disputes between any of the king's 
 subjects. Offences against the king's peace, 
 offences against the royal property, disputes 
 between royal officials — these are the original 
 business of the Curia Regis. 
 Royal But it IS found convenient to extend the 
 
 judges in . 
 
 fixed principle. The royal domain is scattered over 
 
 districts. ' 
 
 many areas ; the royal peace must be kept in 
 
IV.] THE ADMINISTRATION OF JUSTICE. 135 
 
 many districts. So we get the royal baillis and 
 privots in- France, the royal Vogte in Germany ; 
 and each of them holds a court for the settlement 
 of the affairs of his office. Now these courts are 
 totally different from the old popular courts, by 
 the side of which they exist, but from whose 
 jurisdiction they are carefully exempted. Some 
 of them, it is to be feared, go the way of the 
 popular courts, and, in the triumph of feudalism, 
 get into proprietary hands, especially in Ger- 
 many, where the State is lamentably weak. 
 We may suspect the Burggraves of Nurnberg 
 and Goslar to have been originally bailiffs of the 
 royal domain." But others retain their original 
 character, and establish, alongside the feudal 
 hierarchy, a royal hierarchy which, at any rate 
 in France, enters into a deadly struggle with it. 
 There is an important difference, however, between 
 the French and the German organizations. The French 
 
 develope- 
 
 French kings seem to have entrusted to their ment. 
 bailiffs, if not to their provosts, the maintenance 
 within their districts of that royal peace which, Ante, pp. 
 
 86, 87. 
 
 as we have seen, was one of the chief functions of 
 the revived monarchy.*^ By consequence, as the 
 power of the State grew, the power of the local 
 State courts grew likewise. The position of the 
 
136 LAW AND POLITICS. CH. 
 
 king as feudal suzerain rendered the feudal nobility 
 of the bailiwick (for, of course, there were many 
 fiefs on the royal domains) amenable, at least in 
 theory, to the royal bailiff. The subtle expansion 
 of the theory of " royal cases " by the great legists 
 whom the Capetians retained in their pay, added 
 enormously to the judicial powers of the bailiff. 
 As the latter is deprived of his pohtical functions, 
 he becomes more exclusively a judicial officer. 
 New courts of justice appear between him and 
 his supreme authority, the Parlement of Paris. 
 These are the " Presidial Seats," and, somewhat 
 later, the provincial Parlements, of one of which 
 the great Montesquieu was president. Thus, 
 on the eve of the Revolution, the State has, all 
 over France, an elaborate systems of courts, 
 whose action is, indeed, fettered by the rival 
 claims of feudal and municipal jurisdictions, but 
 which are, heart and soul, in the interests of 
 the State. 
 
 In Germany the work of royal justice has 
 German been far less thoroughly done. The Karolingian 
 circuit system disappears as the princes win their 
 jurisdictional privileges and exemptions. The 
 duty of maintaining the royal peace is recognized, 
 indeed ; and the Landfriedensbezirk, or Peace 
 
 ment 
 
IV.] THE ADMINISTRATION OF JUSTICE. 137 
 
 District, with its Captain and its Commissioners, 
 has its court, from which an appeal will lie to the 
 Reichshofgericht or Palace Court of the Emperor.** 
 But the Peace Captain is too often a feudal 
 prince, and the Peace Courts become feudal 
 benefices.*' Even when they are no longer 
 given to the great feudatories, but to the royal 
 bailiffs, the result is the same. The Landvogt 
 of the thirteenth century becomes the Land- 
 graf of the later Middle Ages, an independent 
 feudal magnate, one of the destroyers of the 
 Empire.*' 
 
 If the principle of staffing the State courts Failure of 
 
 both. 
 
 with royal officers has led to the extinction of 
 the royal jurisdiction, as in Frankland and Scot- 
 land, where the hereditary counts and sheriffs 
 become virtually independent of the State, the 
 principle of special State Courts appears likewise 
 unable, at least in some cases, to prevent a 
 similar catastrophe. We may suspect that, even 
 in France, it would have gone hard with the 
 royal courts, but that a desperate remedy was 
 found. The really startling features of the 
 French royal courts of the later Middle Ages are 
 their heredity and venality. By a series of steps The 
 
 ■' ^ ^ PauletU. 
 
 which are well known to students of French 
 
138 LAW AND POLITICS. [CH. 
 
 legal history, and which culminated in the famous 
 Arret Paulette of 1604, the judicial offices of the 
 French Crown became transferable and heritable 
 on payment of an annual duty. The favourite 
 mode of filling the royal Exchequer was, at one 
 time, the creation of a new batch of offices, use- 
 less for purposes of administration, but valuable 
 as the means of procuring an immediate sum of 
 money by their sale, and a steady future income 
 by their taxation. Under this system, it is 
 amazing that anything like justice should ever 
 have been done, that corruption should not have 
 choked all the wheels of judicature. But it is 
 equally clear that no more effectual means of 
 securing the loyalty and the obedience of the 
 State judges could well have been devised. The 
 royal judges are always anxious to extend the 
 royal jurisdiction, for this will bring them a 
 greater profit on their investments. When they 
 resent, as, to their credit, they do often resent, 
 the arbitrary action of the Crown, they can be 
 brought to order by a refusal to renew the 
 Paulette. But the system can hardly be deemed 
 an entirely satisfactory basis for the Administra- 
 tion of Justice by the State. 
 
 English ■' ^ 
 
 deveiope- Quce morc, we turn to England, to see what 
 
 ment. ' => ' 
 
IV.] THE ADMINISTRATION OF JUSTICE. 139 
 
 she has made of the difficulty. At first sight 
 we fail to note anything special. Whatever 
 may have been the nature of the Anglo-Saxon 
 Witan, it is clear that the Anglo-Norman king 
 has his Curia Regis, which, like its French The Curia 
 analogue, is at once a body of great feudatories 
 and a body of officials — a Cour des Pairs and 
 a Cour de Palais. Like the French Parlement, 
 it rapidly organizes itself into several depart- 
 ments — Inner Council, Exchequer, Royal Pleas, 
 Common Pleas. But, even after the failure of 
 the sheriffs in 11 70, we do not observe that the 
 State sets up local courts to do its work. It 
 has its Domanial Courts, and its Peace Courts ; 
 but these are not new organs with new dis- 
 tricts. They are the old Courts of the Shire, The 
 
 • 1 rr <Tii • • 1 1 Circuits. 
 
 with new staffs. Thrice in the year the royal 
 justices come round the shires, to take inquests, 
 to deliver the gaols, to hear the reports of the 
 juries, to look after the interests of the Crown 
 generally. Four times in the year the local The 
 
 Justices of 
 
 justices hold their Sessions of the Peace for the 'he Peace. 
 shire, and do the minor work of criminal justice, 
 always in the name of the Crown. It is doubtful 
 if the royal justices buy their places ; at any rate, 
 they are frequently changed. The man who sits 
 
140 LAW AND POLITICS. [CH. 
 
 as a judge at the end of one reign, may be plead- 
 ing before the bar at the beginning of the next. 
 Certainly the local justices do not buy their 
 places ; they are not worth buying. Moreover, 
 the royal justices, who deal with the important 
 cases, are constantly under the king's eye. 
 Though not necessarily, they are in fact, the same 
 men who sit on the Bench at Westminster, that 
 "certain place" in which, according to the Great 
 Charter, Common Pleas are to be held. The 
 Exchequer and the King's Bench are still more 
 closely in touch with the king ; their members 
 also go round the shires. If they do not finish 
 cases there, they can reserve them for trial at 
 Westminster. Points of law can always be argued 
 before the full Court. Thus the royal judges are 
 a permanent link between the State and the Clan. 
 They know the popular mind, because they see it 
 in the juries of the shires to which the Hundreds 
 furnish their quotients, and in the local landowners 
 who surround them at Assises. They know the 
 royal mind, because, for half the year, they sit in 
 the precincts of the royal palace. They are not 
 steeped in local prejudice, because they can see 
 things from a central standpoint. They are not 
 infected with bureaucratic aloofness, because they 
 
IV.] THE ADMINISTRATION OF JUSTICE. 141 
 
 come frequently into contact with non-official 
 minds. They make the country known to the 
 Crown, and the Crown to the country. They 
 administer a common law, they are not attached 
 to the customs of a particular locality, as a per- 
 manently seated tribunal always must be. So 
 also the local justices are State officials ; but they 
 are local residents too. Their rule may be harsh, 
 but it is intelligible. It is not the supercilious in- 
 difference of a stranger official ; it is the far less 
 galling exercise of familiar authority. The State 
 Administration of Justice secures a triumphant 
 victory in England, as nowhere else, largely 
 because of its judicial organization, which happily 
 combines the central with the local, the pro- 
 fessional with the popular feeling. 
 
 But a word must be said about another equally The 
 
 ^ ^ Court of 
 
 singular feature of English judicial organization. Chancery. 
 Though not in itself a declaration of principle, the 
 existence and influence of the English Court of 
 Chancery make one of the most striking idiosyn- 
 cracies of English Law. 
 
 But we must observe wherein that idiosyncracy Not 
 
 merely a 
 
 really lies. The Chancery as a secretarial bureau, ^^^^^^^ 
 a ministerial department for the authentication of 
 royal diplomas, is a feature of all, or almost all, 
 
reform. 
 
 142 LAW AND POLITICS. [CH. 
 
 Teutonic States in the Middle Ages, from 
 Nora Scotland to Spain.*' In a sense too, all the royal 
 
 mere 
 
 Court of courts are Equity Courts ; they are not bound by 
 
 Equity. 
 
 the formal technicalities of the popular courts, 
 they are not mit Ge/ahr, they can hear a case over 
 and over again,^" while a litigant who brings a 
 decided case before the popular court a second 
 time is liable to a fine or a whipping." These 
 are not the peculiarities of the English Court of 
 Chancery. 
 But an The peculiarity lies in the fact, that, after the 
 
 organ of 
 
 law ^ State Courts have organized themselves into a 
 definite scheme, with formulcs , officials, rules, and 
 doctrines of their own, there gradually arises 
 another State court which sets up a different 
 and, in many cases, inconsistent scheme of law, 
 or, at least, of procedure, which it maintains 
 for centuries in the face of the authoritative 
 courts, and which ultimately modifies the older 
 law profoundly. There is nothing like this in 
 other countries. The Chambres de Requits of 
 the Paris Parlement may have had a somewhat 
 similar origin ; but they become merely privileged 
 courts, for dealing with special classes of persons 
 and special classes of cases. They are not a 
 Court of Equity for the realm. All the Imperial 
 
IV.] THE ADMINISTRATION OF JUSTICE. 143 
 
 Courts of Germany are Billigkeitsgerichte ; but 
 they are not engines of law reform. 
 
 The origin of the equitable jurisdiction of the Origin of 
 
 _ e r^\ • *^^ Court. 
 
 Court of Chancery is now fairly well established. 
 The process of writ-making, previously described, 
 came to an end about the close of the thirteenth 
 century ; either because the judges of the 
 Common Law Courts lost their inventive energy, 
 or because the newly-created Parliament was 
 jealous of the process, perceiving, very rightly, 
 that to make new writs was to declare new law. 
 But it was urgently necessary that new law should 
 be declared ; and Parliament, which ought, ac- 
 cording to our views, to have declared it, had 
 not yet assumed legislative activity. A temporary 
 remedy was provided by the Statute of West- 
 minster the Second in 1285, which allowed the 
 Chancery, i.e. the bureau, not the court, to 
 frame new writs " in like case " to the old. 
 But this was an inadequate provision for a pro- 
 gressive community ; and men took the readier 
 step of petitioning the Crown when no remedy 
 was provided by the Common Law. Where 
 the matter seemed one for legislative enact- 
 ment, the king laid it before his Council, and, 
 ultimately, before the Parliament. Where it 
 
144 LAW AND POLITICS. [ch. 
 
 seemed to be merely a matter "of grace," he 
 referred it to his Chancellor, who, as head of the 
 Chancery and an ecclesiastic, had the double 
 advantage of knowing whether the Common Law 
 provided a suitable writ, and, if not, what would 
 be the remedy which "conscience " would dictate. 
 Gradually the practice assumed regular shape. 
 To the petition or " bill " of the claimant, his 
 opponent was allowed, nay compelled, to put in a 
 sworn answer ; the parties might interrogate each 
 other. Successive chancellors followed the rules 
 which had guided the practice of their prede- 
 cessors, and declared new rules of their own. 
 The Court added to its litigious business a large 
 administrative business. It administered estates 
 of infants, took accounts of debtors and trustees, 
 declared priorities between rival claimants to the 
 estate of a deceased person. Sometimes it would 
 perform useful functions in aid of proceedings in 
 the Common Law Courts. Sometimes it would 
 render these proceedings nugatory, by imprison- 
 ing litigants who conducted them. In so doing 
 it acted in the name of Equity, or "good con- 
 science." But it preserved to the end its character 
 as an " extraordinary " tribunal. The proceedings 
 before it were a " suit " or humble petition, not an 
 
IV.] THE ADMINISTRATION OF JUSTICE. 145 
 
 " action." It adjudicated on fact as well as law, 
 without the aid of a jury. In strict theory, no 
 suitor had a right to any remedy, though some 
 remedies were never denied in suitable cases ; 
 the relief given was " of grace." 
 
 It will strike the reader that the existence of Formalism 
 
 and 
 
 the English Court of Chancery is due to the Chancery. 
 excessive formalism of English Law. This is 
 undoubtedly true. Formalism has its virtues ; it 
 stands strong against the arbitrary interference of 
 a king, it resists the invasion of foreign law. But 
 it has also its dangers. A community which goes 
 on making new law, must have new law declared. 
 It is singular, perhaps, that the one country in 
 Teutonic Europe which, in the fourteenth century, 
 possessed a satisfactory legislative organ, should 
 also develope this peculiar law-declaring Court. 
 The inference is, that England was a country 
 in which material developement was in the later 
 Middle Ages exceedingly strong, so strong that 
 it could not wait for Parliament to keep pace 
 with it. But, that the Court of Chancery per- 
 formed a valuable and unique service in the 
 expansion and reform of English Law, no student 
 of legal history can possibly doubt. 
 
146 LAW AND POLITICS. [CH. 
 
 Notes to Chapter IV. 
 
 ^ Leges Latigobardorum. Rothar, 45. 
 
 2 Ine's Ratifications, 74. Schmid, Gesetze der Angelsachsen, 
 
 pp. 54. 56. 
 
 3 Capitulare Missorum G'en'erale of 802, cap. 32. Boretius, 
 vol, i. p. 97. 
 
 * On the functions of the rachimburgi, see the excellent 
 study by M. Fustel de Coulanges, Recherches sur Quelques 
 Froblkmes d'Bisfoire, pp. 423-500. 
 
 ^ Schroder, Deutsche Rechtsgeschichte, p. 82. Edictum 
 miperici, 6. Boretius, vol. i. p. 8. 
 
 * Capitulare Haristallense of 779, cap. 22. Ibid., p. 51. 
 ' Tacitus, Germania, capp, 12 and 21. 
 
 ^ Westgotalag, ed. Beauchet, p. 169, 
 
 ' Capitulare Missorum in Theodotiis Villa Datum of 805, 
 cap. 5. Boretius, vol. i. p. 123. 
 
 1° Capitula of 818-819, cap. 13. Boretius, vol. i. p. 284. 
 
 1^ PubHshed at Weimar, 1867. Cf especially § 24. 
 
 ^2 Lex Salica, L. 2, ed. Hessels. 
 
 1^ Edictum Hilperici, c. 8. Boretius, vol. i. p. 9. 
 
 1^ Capitula Legibus Addenda, 818, 819, cap. 11. /&'(/., p. 283. 
 
 ^^ Lex Salica, L. 3. 
 
 ^* Cf. Grimm, Deutsche Rechtsalterthiimei; 3rd ed., p. 656. 
 
 ^' Pactus pro tenore pads, cap. 5. Boretius, vol. i. p. 5. 
 
 ^^ The injured party or his relatives take one part, the 
 hcBrath a second, the king the third. Westgotalag, ed. 
 Beauchet, p. 299. 
 
 " lUd., p. 298. 
 
 ^^ Ibid., C. R., Fornxmis bolkcer, XLIII. (i), Stiernhook, 
 De Jure Sveonum et Gothorum Vetusto, p. 50. 
 
 ^^ Athelstan's Dooms., II., 20. Schmid, op. cit., p. 142. 
 
 ^2 itablissemens de St. Louis, Bk. I, c. 24, Lauribre, vol. i 
 p. 126. 
 
 ^* Ibid., cap. 150, p. 231. 
 
 ^* Ordinatio de Parlamento of 1363 in Laurifere; and see 
 also Ordonnance of 1452, ibid., vol. xiv. p. 202. 
 
 25 lUd., vol. i. pp. 568-576. 
 
IV.] THE ADMINISTRATION OF JUSTICE. 147 
 
 2^ Esmein, Histoire du Droit Fran^ais, pp. 255-258. 
 
 2' Anglo-Saxon Chronicle, ann. 1135. Laud MS., in ed. 
 Earle, p. 261. 
 
 ^' Ordonnance de St. Louis (1245), Lauribre, vol. i. pp. 56-58. 
 
 ^' Ord. de St. Louis (1260), ibid., voL i. p. 87. 
 
 ^ Ord. de Louis le Hutin (1315), ibid., vol. i. 564. 
 
 ^^ Schroder, op. cit, p. 6r7. 
 
 *2 Ordonnance de Charles VI. (1413), art. 225, Lauribre, 
 vol. X. p. 138. 
 
 *3 Stiernhook, De Jure Sveonum et Gothorum Vetusto, Bk. 
 11. Part II. cap. iv. 
 
 3* £tablissemens de St. Louis, Bk. I., c. 65, Laurifere, vol. i. 
 p. 157 and note. Grand Coutumier de France, II. 21, 22. 
 
 ^^ Schroder, op. cit., p. 530. 
 
 36 Stiernhook, op. cit., Bk. II. Part II. cap. iii. 
 
 3' Esmein, op. cit., pp. 432, 433. 
 
 3^ Schroder, op. at., p. 655. 
 
 5' Brauchitsch, Geschichte des Spanischen Rechts, caps, vii., 
 ix., and x. 
 
 *" Op. cit., Bk. I. caps. iL and iii. 
 
 *i Ibid., cap. iii. 
 
 *^ Revenues of the king in the honest and good province of 
 Westgothia, in Appendix to Beauchet, Westgotalagen, p. 449. 
 
 *3 Lud wig's Capitulare Missorum oHjg,ca.'p. 14. Boretius, 
 vol. i. p. 290. 
 
 **' Schroder, op. cit, p. 594. 
 
 *' Luchaire, Mantiel des Institutions Franfaises, p. 546. 
 
 *® For an example of such an appeal in 1296, cf. Confirmatio 
 of that date, affirming decision of Gerlacus Dominus de Bru- 
 berg, Capitaneus, and the twelve conservators of the peace for 
 the land of Thuringia. In Mon. Germ., fo. Leges., vol. ii. 
 pp. 464, 465, 
 
 *' Schroder, op. cit., p. 538. 
 
 « lUd., pp. 487, 488. 
 
 *' See the character of each explained by Giry, Manuel de 
 Diplomatique, Book V., Les Chancelleries. 
 
 ^^ Capitulare Saxo7iicum of •]<)'], C3ip.^. Boretius, vol. i. p. 71. 
 
 ^' Capitulare Mantuanum, of 781, c. 4. Ibid., p. 190. 
 
148 LAW AND POLITICS. [CH. 
 
 human 
 progress, 
 
 CHAPTER V. 
 
 LAND SETTLEMENT AND LOCAL UNITS. 
 
 human" '^^^ '"^'^ ^^° ^ave laid the great guiding lines of 
 human history are, for the most part, absolutely 
 unknown. Their works cover the earth, but their 
 names have perished. Here and there a legend 
 attributes the discovery of fire to a Prometheus, 
 the invention of the galley to a Danaus. But 
 these are desperate efforts, which betray their own 
 futility. The unknown hunter who first made 
 the sheep or the ox the companion of man, the 
 unknown herdsman who first realized that the 
 seed of the wild ears, if sown at the fit time, 
 would bear fruit an hundredfold, were working 
 revolutions, compared with which the most 
 brilliant coup d'dtat is a meaningless trifle. 
 Allow as we may for the communication of ideas 
 by war and conquest, speak as we may of uncon- 
 scious developement, the fact remains that, once 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 149 
 
 and again, there has dawned upon the con- 
 sciousness of an individual a mighty secret, 
 big with the destinies of the human race. 
 
 One of the greatest of these secrets has been intensive 
 
 agricul- 
 
 the fact, now so commonly known as to appear ture. 
 self-evident, that the same piece of land, if 
 properly treated, will go on producing, during 
 an endless succession of seasons, a rotation of 
 crops. The whole of modern civilization turns 
 on this fact. But for its recognition, society, 
 industry, politics, as we now understand them, 
 could not exist. 
 
 But, just as it is abundantly clear that there are 
 races which, even at the present day, have never 
 grasped this fundamental fact, so it is almost as 
 clear that our Teutonic ancestors once occupied 
 a similar position. Whether they ever passed 
 through that purely nomadic stage which is the 
 normal antecedent of agricultural pursuits, we 
 can only conjecture. It is dangerous to assume 
 any universal order of progress. But it is 
 tolerably clear that the most important races of 
 modern Europe, the Teutons, the Kelts, and the 
 Slavs, have passed within historical times from 
 extensive agriculture, in which a patch of soil is 
 exhausted and left to lie waste, to intensive 
 
I50 LAW AND POLITICS. [CH. 
 
 culture, in which, by an alternative succession of 
 crops and fallow, the same land is used in 
 perpetuity. The whole subject has recently 
 been discussed with great learning by Dr. 
 August Meitzen,^ and his work, though we may 
 not, perhaps, accept all its conclusions, is a trea- 
 sure of great price to every student of history. 
 Whether or no, as Dr. Meitzen seems to think, 
 each race has its well-marked characteristics of 
 land settlement — the Kelt his walled block 
 surrounding the stead of the single household, 
 the Slav his great Joint Mansion in which four 
 or five score relatives live under the rule of a 
 Family Chief, the Teuton his co-operative vill of 
 farmers ploughing half-acre strips — something 
 has at least been done to throw light on the 
 erstwhile dark and debated problem of the 
 primitive agricultural unit. One or two points 
 seem fairly clear. 
 Roman In the first place, we may with safety assume, 
 
 surveying. 
 
 in spite of the ingenious theories of M. Fustel de 
 Coulanges,^ that the Teuton of the invasions did 
 not, at least universally, accept the highly advanced 
 arrangements of the land surveyors of the late 
 Roman empire.^ The elaborate professional 
 education in land measurements which Euclid 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 151 
 
 and his successors had bequeathed to the Roman 
 agrimensor of the Imperial age, with its rigid 
 mathematical arrangement of perches and 
 boundary stones, barely survived the downfall of 
 the Provincial Empire. In Italy, traces of it 
 are frequent and unmistakeable.* In Spain and 
 Southern Gaul it seems barely to have made 
 headway against the simpler system of the Kelt ; 
 and it is possible that M. Fustel did not pay 
 quite sufficient attention to the influence of the 
 Kelt in the area to which his researches were 
 specially directed. As we go further north, to 
 northern Gaul and Britain, traces of Roman 
 centuriation become rare curiosities. In Scan- 
 dinavia they are not to be met with. On the 
 other hand, there are abundant survivals of a 
 totally different plan of settlement ; and we are 
 not surprised to find that the invading Teuton 
 manifests a strong dislike to the agricultural 
 arrangements of his new home. Much capital 
 has been made of the severe penalties imposed 
 by the Lex Salica upon the breakers of hedges ; 
 and it has been assumed that these penalties 
 imply a full recognition of the modern system of 
 sharply divided fields. But, if our view of the ^«/f, pp. 
 nature of primitive law be correct, those very 
 
152 LAW AND POLITICS. [CH. 
 
 passages of the Lex which, in dealing with hedge- 
 breakers, do not (as most of them undoubtedly 
 do)^ refer merely to the hedge surrounding the 
 house, actually point to a state of society which 
 regards hedges with disfavour, as a new-fangled 
 invention. The Pactus Alamannorum fines the 
 man on whose hedge a horse stakes itself, in 
 half the value of the horse.* 
 Thetransi- In the secoud placc, it seems to be quite a 
 
 tional 
 
 stage. reasonable view, and one which has the support 
 of competent critics, that we can almost identify 
 the time at which the Teutonic races passed from 
 extensive to intensive tillage. As is well known, 
 our chief evidence concerning the Germans, in 
 the days when they had not crossed the Rhine, 
 comes from two authorities, both of them first 
 rate, both, unhappily, scanty. If we compare 
 the accounts given by Csesar with those furnished 
 by Tacitus, we shall probably notice an important 
 difference. Both allude to the agriculture of the 
 Germans ; but, where Csesar speaks of an annual 
 distribution of land by the chiefs amongst the 
 families and clans, Tacitus describes, not a re- 
 allotment of virgin soil, but a shifting from one 
 ploughland {arvum) to another.' In other words, 
 between the days of Caesar and of Tacitus, the 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 153 
 
 Germans have discovered the secret of fallows 
 and rotation of crops — they have discovered 
 that a field, if cropped in due course, and left 
 periodically to lie fallow, may be made a per- 
 petual source of agricultural wealth. Neither the 
 motives nor the opportunity for such a discovery 
 are hard to find. The irksomeness of frequent 
 changes of abode, the labour involved in reclaim- 
 ing the forest, are quite sufficient to create a 
 desire for permanent settlement. It is a common 
 mistake to suppose that nomadic societies are 
 nomadic from choice, and that migrations take 
 place merely from a restless desire of change. 
 Every study of the subject brings us nearer to 
 the conclusion that nomadism is the direct result 
 of hunger, and the migrations of races which 
 have once known the advantages of fixed abode, 
 the outcome of intense fear. Behind the Teutonic 
 invasions we see the threatening hosts of Finns 
 and Slavs. The invaders are themselves flying 
 before a fiercer foe. But they have learnt, 
 possibly from Roman captives, possibly from 
 returned hostages, the secret of permanent homes ; 
 and they are about to put it into practice. 
 
 Thirdly, we must again remember that thexhe 
 
 . I Teutonic 
 
 Germans of Caesar and Tacitus are no mere casual dans. 
 
154 LAW AND POLITICS. [CH. 
 
 hordes. Whatever may have been the precise 
 details of those social arrangements which the 
 Roman critics so inadequately described, we can 
 see that they were gentile in character. Roman 
 gentile society had broken down long before the 
 days of Caesar, and we may be sure that when 
 the great commander speaks of armies arranged 
 in groups of kinsmen, and of land allotted to 
 clans and families, he is not importing Roman 
 ideas into German society. It was the contrast 
 which struck him, the contrast between the 
 political society which Rome had become, and 
 the gentile society which Germany was. Before 
 the Teuton knows a land settlement, he knows 
 a personal organization, based on kinship and, 
 it may be, on ancestor worship. Let, us bear 
 that fact strongly in mind. 
 The Now we may look at the results. And if we 
 
 Teutonic . , 
 
 village. Wish to See what the Teutons notion of land 
 settlement was, we shall turn, naturally, to that 
 part of Europe which is peculiarly his own, in 
 which no other race has, within historical times, 
 been at work, and which, therefore, bears the 
 clearest impress of Teutonic genius. Afterwards 
 we may look at the lands which the Teuton has 
 invaded. 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 155 
 
 Speaking roughly, the countrj'- which lies east of The 
 
 purely 
 
 the Rhine, but west of a line runningf from Linz Teutonic 
 
 =" lands. 
 
 along the Danube to Regensburg and then north 
 by Bamberg and the Saale and Elbe (the Limes 
 Sorabicus of Charles the Great), and extending 
 within these limits northward from the Alps to 
 the perpetual snows of the Arctic regions, is, and 
 has always been, a purely Teutonic land. Here, 
 according to our latest authorities, the typical 
 unit of land settlement is a village of some ten 
 to thirty houses, clustered (but not adjoining) in 
 an irregular group, in the centre of a patch of 
 cultivated ground broken up into large unenclosed 
 fields. Within these fields,' the arable land is 
 divided into a great number of strips, usually of 
 about half an acre (a Morgen or day's work) each, 
 and rigidly equal amongst themselves. The 
 farmers of the village plough these fields, not 
 strip by strip, but with eight-oxen ploughs, to 
 which each contributes his share of labour, oxen, 
 yokes, and so forth. Whether sowing and harvest 
 were ever likewise in common, is a moot point. 
 The Teuton of historical times sows and reaps 
 certain strips, and calls these strips his own. 
 But there are two significant facts which seem 
 to hint that this is an innovation. One is the 
 
iS6 LAW AND POLITICS. [CH. 
 
 existence of the Flurzwang, or compulsory system 
 of tillage ; the other the rule that, before the 
 enclosures of modern times, the holding of each 
 farmer lay, not in a compact mass, as in present 
 day farming, but scattered in many strips in the 
 arable fields. Beyond these arable fields, are 
 the meadow lands of the village, which the 
 farmers share in proportion to their arable hold- 
 ings, and which may be temporarily enclosed 
 during hay growth. Beyond these again, are 
 waste and woodland, which may be administered 
 according to the mark-partnership system, or 
 may be left to take care of themselves, accord- 
 ing to the influence of external and internal 
 circumstances, 
 i.'^ , Readers in the least desrree familiar with the 
 
 simplest ^ 
 
 elements. gj-Qj-^^j gf controversy which has raged around the 
 village community, will be aware that the above 
 account of the Teutonic village is prudently 
 modest. Let it be observed that in several 
 respects it falls far short of that ideal picture of 
 communistic and free democracy in which the plat- 
 form orator delights. It does not claim that, even 
 in German Germany, the "hidated" open-field 
 village is the universal unit ; it only claims that it 
 is a typical unit. There may be all kinds of 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 157 
 
 special cases, mark-settlements, wood and marsh 
 communities, patrimonial domains. It lays down 
 no dogma of communal ownership ; for it may 
 well be that the Teutons of the sixth and seventh 
 centuries, in spite of the fact that they fling 
 charters about with reckless profusion, have no 
 very definite ideas on the subject of ownership. 
 It does not propound any theories of freedom or 
 self-government ; for a village settlement such as 
 it describes may be administered either by the 
 officials of a great landowner or by the villagers 
 in a common moot. It merely asserts, that the 
 most exclusively Teutonic parts of Europe bear 
 abundantly upon them traces of an agricultural 
 system which depends for its very existence on 
 the co-operative farming of intermixed lands. 
 The numerous " terriers," or estate-maps, which 
 have recently been brought to light by scholars, 
 place the fact beyond dispute.* The Scandina- 
 vian laws show us the system in full working 
 order. The Seeland Law of 1290, published 
 by Eric of Denmark, provides for a periodical 
 redistribution of hides, and remeasurement of 
 the agricultural area.^ The somewhat earlier 
 Jutish Law excepts only certain special improve- 
 ments from a similar process." The Law of 
 
158 LAW AND POLITICS. [CH, 
 
 the West Goths and East Goths in Sweden 
 state explicitly under what conditions and in 
 what manner a by or village may be divided in 
 severalty amongst its occupants." The individual 
 land unit of the early Middle Ages, among 
 Teutonic peoples, — the huf of Germany, the bo of 
 Scandinavia, the mansus of the Prankish docu- 
 ments, — is at least as likely to be a share in an 
 undivided village, or a shifting severalty, as it is 
 to be a definite and permanent area. 
 
 Its basis. The question naturally arises — upon what basis 
 was this settlement effected ? What was the link 
 which bound together the farmers of the village ? 
 It is so very unlike all that we know of barbarous 
 men to suggest a fortuitous partnership, based 
 upon perceptions of utility, that we may leave 
 such a notion out of account, at least for primi- 
 tive times. Three other possible suggestions 
 present themselves. 
 
 A pro- One is, that the hidated village represents 
 
 prietary ° 
 
 domain? the Organization of a proprietary domain by a 
 single landowner. It is, of course, barely pos- 
 sible that the hidated village of Germany was 
 produced by a process similar to that which took 
 place on a great Roman villa, where a gang of 
 slaves, working under the control of a villicus or 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 159 
 
 labour-master, gradually developed into a body 
 of coloni, bound to the soil, but enjoying un- 
 disturbed possession of their respective plots of 
 land. There are even traces of primitive German 
 customs which might have led to such a result.*'' 
 It is possible, of course, that arrangements which 
 seem to us very primitive may have been the 
 outcome of a gradual improvement in the position 
 of the cultivators of the soil. But all that we 
 know of the general course of legal developement 
 is opposed to this view ; and, apart from general 
 considerations, there are special objections to 
 the theory. It is almost impossible to imagine 
 an autocratic proprietor fettering the management 
 of his estate by parcelling it out into the intricate 
 subdivisions revealed by the terriers of the open- 
 field villages. Still less is it possible to believe 
 that he would have applied such a process to his 
 own terra indominicata, his demesne land, his 
 " home farm," as we should say. And yet the 
 terriers show that the half-acre strips, the Morgen, 
 cover the whole arable land of the village. More- 
 over, the Polyptica, or land registers of the ninth 
 and tenth centuries, classify the mansi of the 
 farmers as ingenuiles and serviles; and, though 
 the term ingenuus may,undoubtedly, in the Middle 
 
[6o LAW AND POLITICS. [ch. 
 
 Ages, mean a freedman, yet it is hardly likely 
 that the great bulk of the mansi ingenuiles of the 
 Polyptica are the holdings of enfranchised slaves." 
 We must remember that the mansus (without any 
 qualification) is the taxable unit of the Karolingian 
 empire. When Charles the Great is making his 
 supreme effort at military organization, in the 
 year 807, he bases the liability to military service, 
 after the holders of fiefs, on the holders of 
 mansi, or, as he otherwise expresses it, oiproprm 
 possessiones}^ And, as he expressly qualifies the 
 manse-holder as a freeman, and, moreover, treats 
 the freeman who has no manse as an exceptional 
 person, we are left with the alternative of 
 supposing, either that the average manse-holder 
 was a freeman by birth, or that the reign of 
 Charles the Great, with its wars and conquests, 
 had converted the bulk of the population of the 
 Prankish empire from slaves into freedmen. We 
 are also compelled to suppose that a similar 
 revolution had taken place among the heathen 
 Saxons about the same time. For, on his con- 
 quest of that turbulent people, the pious conqueror 
 requires that his newly Christianized subjects 
 shall contribute two manses of land and a house 
 to each newly founded church.^' The theory of 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. i6i 
 
 a proprietary origin of the village may possibly fit 
 the Romanized south of Gaul, where the Keltic 
 nobles seem rapidly to have assimilated Roman 
 ideas. It may apply to Teutonic settlements 
 in conquered lands, such as Britain and the 
 Slav countries to the east of the limes Sorabicus. 
 It will not account for the primitive village of 
 German Germany. 
 
 The two other suggestions may be taken a house- 
 together. The primitive village of Germany ^g"t^f ^' 
 may be either the settlement of a single house- 
 hold, which has expanded by natural increase 
 into a group of cognate households, and has sub- 
 divided the original territory to provide for its 
 offshoots. Or it may be the settlement of a clan 
 which has reclaimed a plot of land from the 
 wilderness by the joint labour of its members. 
 It is difficult to choose between these alterna- 
 tives ; for, before doing so, we should like to know 
 which is the older institution in Teutonic society, 
 the Household or the Clan. And this is a ques- 
 tion which the present state of our knowledge 
 does not enable us to answer. The passage from 
 Ceesar to which allusion has been made, unfor- 
 tunately, leaves the question open; He tells us 
 that the magistrates and princes (whoever these 
 
 M 
 
1 62 LAW AND POLITICS. [CH. 
 
 may be) annually allot to gentes et cognationes of 
 men such and such quantity of land as they think 
 fit.'* To a Roman of Csesar's time, the words 
 gens and cognatio would correspond almost exactly 
 with our words clan and household, i.e. with a 
 larger and somewhat indefinite and with a smaller 
 and definite body of relatives. There are some 
 things in the scheme of the German village settle- 
 ment which strongly make for the view that the 
 original foundation was by a clan, or larger gentile 
 group, especially the curious repetition of the 
 arrangement of strips in each field, which looks 
 as though each field were laid out once and for 
 all at the time of clearing. But these are mere 
 conjectures. 
 Not a Happily, for our immediate purpose, there is 
 
 creation of 
 
 the State, no need to decide between these rivals for pre- 
 cedence. Once admit, as we probably shall, that 
 the German hidated village (including always 
 the by of Scandinavia) is not the creation of a 
 landowner, but the spontaneous work of a group 
 of relatives, we are brought face to face with a 
 cardinal fact in the history of Law. The great 
 landowner is a creature of the State ; the village 
 group of farmers is not. The individual proprietor 
 of vast domains cannot maintain his position. 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 163 
 
 unless he can obtain the powerful assistance of 
 the State courts, and the strong support of the 
 military power. His interests conflict too evi- 
 dently with the interests of those who serve him, 
 and without whose labour his domain would be 
 worthless. He is the favourite of the State, and 
 every step of State progress is marked by a 
 corresponding increase in his ranks. When the 
 State extends its conquests into hostile lands, it 
 plants its faithful soldiers as landowners on the 
 conquered soil. When it annexes the domains of 
 the Church, it distributes them among a new 
 territorial aristocracy. When it finally breaks the 
 power of the Clan, it converts the Clan chief into 
 a landlord. On the other hand, the Clan and the 
 Household are older than the State, and utterly 
 opposed to it in principle. The Clan and the 
 Household are social groups ; the State is a 
 
 collection of individuals. The village, like the And out- 
 side its 
 Clan, is older than the State, and long remains influence. 
 
 outside its influence. Much has been said, by 
 those who deny the existence of the co-opera- 
 tive village, about the silence which the Leges 
 Barbarorum maintain on the subject of village 
 organization. Nothing more natural. The Bar- 
 barian Codes are drawn up under the auspices of 
 
1 64 LAW AND POLITICS. [CH. 
 
 the State ; they handle only matters with which 
 the State has some concern. When these conflict 
 with the customs of the village, when the stranger 
 bearing the king's letter wishes to settle in the 
 village," when the villagers desire to plough up 
 the king's highway/^ these matters are settled 
 by the Codes. The management of internal 
 affairs is for the village itself, not for the State. 
 The But it must not be supposed that the original 
 
 Hundred. 
 
 land settlement of the Teutons confined itself to 
 the village. All Teutonic countries know a unit 
 which, under the name oi hundert, hcBrath, hundred, 
 huntari, comprises a number of villages, and is, 
 at the time when Teutonic history begins, the 
 primary judicial unit. The etymology of the 
 name points irresistibly to the conclusion that it 
 was also, at one time, a military unit. But this is 
 not to say that it had not an older character, and, 
 it may be, an older name. Dr. Meitzen has shown 
 strong reasons for supposing that it is a relic of 
 the pre-agricultural stage, in which the members 
 of a clan fed their flocks and pitched their 
 tents on a patch of territory which afterwards, 
 as agriculture developed, became divided into 
 villages." The curious rule of old Swedish law 
 which, in a legal contest between the hcerath 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 165 
 
 or Hundred and the by or village, gives the 
 preference to the former, seems to strengthen 
 the conclusion that the larger unit is the 
 older ; ^» and the complete control which the 
 Haerath of Sweden exercises over its constituent 
 villages confirms this view. Moreover, the ex- 
 traordinary differences in the sizes and contents 
 of the Hundreds, seem to show that they could 
 hardly have been in origin military institutions, 
 nor is there any direct evidence of their connec- 
 tion with any general military system. A police 
 institution they do, undoubtedly, become ; but 
 this is later. Furthermore, it is just in those 
 countries in which the State, the military organi- 
 zation, is most powerful, that the Hundred most 
 completely disappears, while in the countries in 
 which the State makes little headway, in the 
 Scandinavia of the Middle Ages, the Hserath 
 is seen at its strongest. 
 
 Above the Hundred we observe yet another The shire 
 
 or county. 
 
 ancient institution, the gowe of Germany proper, 
 the pays (pagus) of Gaul, the shire of England, 
 the land oi Sweden. That this is also originally 
 a settlement of a national or popular character, 
 there seems small reason to doubt. The per- 
 sistence of the popular elements of this unit in the 
 
i66 LAW AND POLITICS. [CH. 
 
 purely Teutonic countries is the best warrant for 
 the belief. In spite of all the politicalizing and 
 feudalizing which it undergoes, there is a deep 
 consciousness of independent life Avhich breaks 
 out now and again into such powerful manifesta- 
 tions as those which produce the Dutch Republic 
 and the Vehmgerichte of Westphalia. The lagh- 
 man of Sweden, the ealdorman of England, and 
 the Asega of Bavaria and Frisia, are the spokes- 
 men of the gowe. The laborious geographical 
 researches of M. Auguste Longnon establish the 
 substantial identity of the Civitas of Roman and 
 Keltic Gaul, with the Gowe of Prankish Gaul." 
 Whether this unit is again to be referred to an 
 older state of civilization, it is impossible to say 
 with certainty. The Gowe may be the hunting 
 ground of the clan, just as the Hundreds may be 
 its pasture grounds, and the villages its agri- 
 cultural areas. The Swedish laws which give 
 the preference to the claim of the Haerath over 
 that of the By, give a corresponding preference 
 over the Haerath to the Land.^^ 
 Rivalry But the State cannot afford to allow this 
 
 between 
 
 andthe"" 2^"'^^^ Organization to maintain an independent 
 
 ^'''"- existence. The State is, as we have seen, in its 
 
 origin, merely a band of warriors ; it perpetuates 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 167 
 
 and extends itself by undertaking new functions. 
 It finds these functions fulfilled, to a greater or 
 less extent, by non-political bodies, the Village, 
 the Hundred, the Shire. It has, practically, the 
 choice of two methods. It may seize upon and 
 appropriate the gentile units ; or it may create 
 new units of its own. Much of the success of 
 the State, as an institution, will depend upon 
 the method adopted. 
 
 The invasion and settlement of a new country the 
 
 creation 
 
 afford an excellent opportunity for an attack on of land- 
 owners. 
 
 the village system. The invaders are a body 
 of warriors ; their numbers are, in proportion 
 to the country invaded, probably, small. The 
 booty they have acquired has made them rich. 
 The inhabitants of the conquered country are, 
 by the ancient rules of war, slaves of their captors. 
 Everything is favourable to a change from groups 
 of petty farmers to estates of single landowners. 
 That the old village system transferred itself to 
 that Britain which became England, is a strong 
 proof of the vitality of the system under unfavour- 
 able circumstances.^^ The warrior of Hengst 
 and Horsa remembered that he was a clansman 
 as well as a warrior. But we cannot doubt that 
 large tracts of conquered lands went to the 
 
i68 LAW AND POLITICS. [ch. 
 
 favourite followers of the kings. Quite early in 
 the Anglo-Saxon Laws we note the appearance 
 of the king's thegn,^* the lord of land,''^ who 
 takes his place as of right alongside of the reeve 
 and men of the township in the Hundred and 
 Shire moots,^^ who is subject only to royal juris- 
 diction,^' and who ac.cuses the churl suspected 
 of crime.^^ The same result happens in the 
 Prankish kingdom ; alongside of the men who 
 have mansi are the men who have beneficia ; ^' we 
 may, perhaps, suspect that the professional scabini 
 who, under Charles the Great, take the place of 
 the rachimburgi, are great landowners. Even 
 in Scandinavia, the Icender or fief-holder appears 
 beside the bondi or free farmer.^" In Gaul, the 
 seigneur finds the way prepared before him by the 
 arrangements of the provincial Empire. All over 
 Europe a landed aristocracy springs up ; and this 
 aristocracy is created by and pledged to the State. 
 Reaction But the domain of the landowner cannot exist 
 
 on the 
 
 village, beside the communal village without powerfully 
 affecting it. The landowner is expected by the 
 State to act as policeman, guardian of law and 
 order, in his neighbourhood. The practice of 
 commendation springs up. It is expressly legis- 
 lated^for by Charles the Great, ^^ whose immediate 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 169 
 
 successors order its universal adoption. The 
 seniorat becomes a general institution. It is the 
 same in England. Every man must have a 
 lord;^^ and unfaithfulness to him is visited with 
 the severest penalties.*^ The Westgotalag shows 
 us the laender as a collector of fines, i.e. as a 
 person in authority.^* The common speech of 
 France adopts the maxim : " No lord, no land." 
 The village moot has been replaced by the hall 
 moot : ^° the reign of the landowners has begun. 
 
 Nor is the State content with attacking the Fate of 
 
 the shire. 
 
 minor units. The Teutons who broke in upon 
 the Roman Empire found a political organization 
 which seems to have commended itself powerfully 
 to the views of their leaders. Briefly speaking, 
 the Western Empire, at any rate in the prefecture 
 of the Gauls, was a great mass of civitates, each 
 under the control of a comes, a state official with 
 almost plenary authority. The Comes adminis- The 
 
 Roman 
 
 tered, judged, taxed ; to the provincials of his Count. 
 district he represented the State.^® One State 
 function he did not perform ; he had no military 
 authority. But this was because the Roman 
 Empire had ceased to rely on compulsory service ; 
 it employed mercenaries and taxed its subjects to 
 pay them.^' 
 
I70 LAW AND POLITICS. [CH. 
 
 The Whether the Teutons of the invasions had any 
 
 German 
 
 Graf. official Corresponding with the Comes it appears 
 difficult to say. If not, they immediately adopted 
 the Roman idea, and made it the cardinal principle 
 of their government. The German Graf and the 
 Latin comes are convertible terms in the Leges 
 Barbarorum. That the Graf is a royal official, is 
 proved by the special protection accorded to him 
 in the Codes. His life is guarded by the triple 
 wergild. Royal also are the scir-gerefa or sheriff 
 in England, and the landshcsrra or provincial 
 governor in Scandinavia ; and the existence of 
 these officials looks as though the Teutonic State 
 had arrived at the institution without the aid of 
 Roman ideas. So too does the important fact 
 that the Teutonic Graf and his congeners are 
 military officials, while the Roman Comes of 
 the late Empire is not. The Karolingian Count 
 is the normal agency through which the host 
 is summoned.^^ The English sheriff leads the 
 forces of the shire. The landshaerra is shown 
 us as levying the militia.^' This function stamps 
 them at once as State officials. But the re- 
 searches of M. Longnon, before alluded to, have 
 even established the geographical identity of the 
 Prankish comitatus with the Gaulish civitas.^" It 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 171 
 
 is fairly clear that the Grafschaft is but another 
 name for the Gowe. In the cases of the land- 
 shasrra and the sheriff, res ipsa loquitur. The 
 State has annexed the province of the Clan ; the 
 royal official, at first existing side by side with 
 the gentile official, ultimately drives him out. 
 The ealdorman disappears before the sheriff, the 
 laghman before the landshaerra, the asega (except 
 in a few cases) before the Graf or Count. 
 
 The danger to the State comes, indeed, through Feudalism. 
 its own officials. The Roman background, so to 
 speak, of the countship, renders it enormously 
 powerful. The Prankish kings and emperors 
 cannot hold their officials in hand. The practice 
 of granting countships as fiefs or benefices has 
 led to their becoming hereditary. The absence of 
 any regular salary has caused them to be looked 
 upon as opportunities for exploitation. They 
 "'ceaSe to be organs of the State at all ; they 
 become independent estates, whose lords make 
 use of political powers in their own interests. In 
 despair, the State grants immunity from their 
 jurisdictions to favoured landowners, especially 
 to clerical landowners. These immunists promptly 
 take up similarly independent positions. During 
 the disturbances of the ninth and tenth centuries. 
 
172 LAW AND POLITICS. [CH. 
 
 the Teutonic State dissolves, as we have seen, 
 into its component parts, and has to be built up 
 again from its foundations. But it never recovers 
 control of the counties. These remain proprietary 
 fiefs, owning an allegiance to the State, but ad- 
 mitting of no interference within their boundaries. 
 The differ- This fate is, however, confined to the countries 
 
 ence in 
 
 England, which form part of the Prankish Empire. In 
 Scandinavia and England, the developement of 
 feudalism is comparatively slight. In Scandinavia, 
 the State very slowly makes headway against the 
 clan ; the landshaerra and the laender never attain 
 anything like the position of the Graf and the 
 seigneur, and are, consequently, never tempted 
 to revolt. In England, the State obtains a sudden 
 and complete victory through the circumstances 
 of the Norman Conquest. 
 
 The The Conqueror of England knows the dansfers 
 
 Norman "i & & 
 
 Conquest, gf feudalism only too well. In his earlier days 
 he has had to fight his rebellious vassals at 
 Val-es-Dunes. He knows exactly how much, or, 
 rather, how little his duchy of Normandy is an 
 integral part of the French kingdom. He deter- 
 mines that the English shire shall not become a 
 feudal county. He and his successors do, indeed, 
 create a few palatinates ; but, happily for England, 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 173 
 
 these soon become extinct, or are annexed to the 
 Crown. The Palatinate of Durham is the only 
 important exception ; and, as that is an ecclesias- 
 tical fief, the danger of it is small, for it cannot 
 become hereditary, and the king has a good deal 
 to say in the appointment of its holders. The 
 Norman kings seize at once upon the shire, and 
 administer it as a State district, making its sheriff 
 account annually at the Exchequer, and sending 
 royal officials frequently to report upon it. They 
 endow their titular earls with the third penny of 
 the shires ; but it is to be observed that the earls 
 do not administer the shires from which they take 
 their titles. The Norman clerks persist in calling 
 the shire a comitatus and the sheriff a vice-comes ; 
 but the names are meaningless. Only in the bad 
 times of Stephen are the sheriffdoms proprietary ; 
 the little shire of Westmoreland is the only shire 
 which becomes permanently hereditary. The 
 Norman king accepts the gentile shires of the 
 Somersaetas and the Wiltsaetas ; but he turns 
 them into royal districts. 
 
 Nevertheless, England does not entirely escape Danger 
 
 from the 
 
 the fate which has befallen the Frank Empire. siie"ffs. 
 Confident in their power to control the sheriffs, 
 the Norman kings entrust to them the exercise 
 
174 LAW AND POLITICS. [CH. 
 
 of that great increase of State authority which, 
 as we have seen, follows upon the Norman Con- 
 quest. They very nearly go too far. But, thanks 
 to the stern genius of the first Angevin king, the 
 danger is averted. On his return from the Con- 
 tinent in 1170, Henry Fitz-Empress hears evil 
 tidings of his sheriffs, and he sets about reform 
 in good earnest. He makes a clean sweep of the 
 existing staff. But that is not enough. The 
 office must be shorn of its dangerous attributes. 
 So the sheriff is forbidden to exercise criminal 
 jurisdiction ; this shall be the work of the itinerant 
 justices who, for a great part of the year, are 
 under the king's personal eye. The sheriff's 
 civil jurisdiction shall be diminished by new 
 methods of trial conducted by the Justices of 
 Assize and Nisi Prius, and, later on, by a strained 
 interpretation of the Statute of Gloucester. The 
 militia is being replaced by mercenary troops ; 
 and these shall not be entrusted to the sheriff. 
 Later on, the Justices of the Peace, the local 
 landowners, will rob the sheriff of his police 
 jurisdiction. When the militia is revived, in 
 Tudor times, it will be administered by a newly- 
 created official, the Lieutenant of the County. 
 At the end of the Middle Ages, the State in 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 175 
 
 England is found to have discovered a great 
 secret, the secret of annexing a gentile institution 
 without turning it into a feudal benefice. The 
 secret is very simple. It consists in maintaining 
 the identity of the unit, but dividing the exercise 
 of the authority. Sheriff, Lieutenant, Justices of 
 Assize, Justices of the Peace, all have the same 
 area of jurisdiction ; but they hold distinct 
 authorities from the State, they can be dismissed 
 by the State at a moment's notice, none of them 
 is strong enough to defy the State. The shire 
 is an executive unit, a military unit, a judicial 
 unit, a police unit ; but each of these functions is 
 lodged in different hands. 
 
 Very simple the secret seems. But England ^^^^^^^ 
 is the one instance of its discovery, if we except '^^^^^° 
 perhaps, Scandinavia, where, however, the 
 State does not attain a commanding position 
 till the end of the Middle Ages. In later times, 
 the system will be extended to Wales, Scotland, 
 and Ireland, when these countries are definitely 
 incorporated into the English scheme of govern- 
 ment. But there it stops. Let us now look for 
 a moment at what other States are doing to 
 solve the problem. 
 
 If a State cannot adopt and absorb older o&e^.^^ 
 
176 LAW AND POLITICS. [CH. 
 
 Institutions, it runs very great risk of being over- 
 shadowed by them. This is the case with the 
 newly-created States of France and Germany 
 in the tenth century. They are, as we have 
 seen, bare military organizations, having little 
 or no power to interfere in the internal 
 organization of their territories. In self-defence, 
 they must organize new schemes of their own ; 
 and it so happens that these two States afford 
 excellent examples of contrasted styles. We 
 may term the one the proprietary, the other 
 the military system. 
 France. The French system is the proprietary system. 
 
 The pro- 
 prietary Lonpf after the election of Hugues Capet, the 
 
 system. => & r ' 
 
 chief strength of the French kings lay, not in 
 their royal powers, but in those broad domains on 
 the Seine and the Loire which had first marked 
 them out as leaders of a feudal aristocracy. Their 
 direct influence on the rest of their kingdom was 
 limited to the summoning of the host and, pos- 
 sibly, the prevention of violent internal disorders. 
 But, in their own domains, they enjoyed all the 
 rights of the great feudal seigneur, intensified 
 by the prestige of the royal crown. Here it 
 was that their administrative capacity made 
 itself felt. Here it is that we notice the gradual 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 177 
 
 developemeut, in the tenth, eleventh, and twelfth 
 
 centuries, of that system which characterises the 
 
 monarchy of the earlier Capetians. Mairie, pr4- 
 
 voU, and baillage — these are the three concentric 
 
 circles which cover the royal domain, and which 
 
 stand, as rivals, side by side with the chatellenie, 
 
 vicomU, and comtS of the great fiefs, it may be 
 
 with the commune, centaine, and pays of the 
 
 old popular settlement. As the great fiefs are 
 
 gradually annexed by the crown, the baillage or 
 
 sdnichaussie is extended to them ; its extension 
 
 marks the advancement of the royal domain. 
 
 The supervision of the royal bailiffs becomes 
 
 one of the most important functions of the Parle- 
 
 ment of Paris. Three times a year the bailiffs 
 
 are to present themselves before the Chambre 
 
 des Comptes at Paris. Twice a year they are 
 
 to hold perambulating Assises in their bailiwicks. 
 
 To them is committed the supervision of the 
 
 provosts.*^ 
 
 But the system contained the seeds of three Weak- 
 nesses 
 
 fatal vices. The districts of the officials were °^ "'^ 
 
 system. 
 
 arbitrary, or, at least they became so, whatever 
 
 they may have been at first. The enlargement Arbitrary 
 
 areas. 
 
 of the royal domain was the result of a fierce and 
 protracted struggle, in which the kings, when 
 
 N 
 
178 LAW AND POLITICS. [CH. 
 
 they could not annex great fiefs, like Normandy 
 and Touraine, were content to secure little 
 estates to which their legists asserted royal 
 claims. As each of these little conquests was 
 acquired, its inhabitants were made to " resort " to 
 the jurisdiction of some provostship or bailiwick, 
 often separated from it by feudal territories over 
 which the royal officers had no authority.*^ The 
 provostship and the bailiwick thus became arbi- 
 trary and fantastic groups of isolated localities, 
 Concen- having no local unity. Ag-ain, the bailiff and the 
 
 trationof ° J b > 
 
 powers, provost had far too much power. Like the old 
 Karolingian officials, they exercised the whole of 
 the State's authority in their districts — they sum- 
 moned the troops, collected the taxes, presided 
 in the royal tribunals, executed the royal orders. 
 They were like the sheriffs whom Henry Fitz- 
 Pro- Empress destroyed. Finally, the mayors and 
 offices. the provosts, at least, were proprietary officials in 
 more senses than one. They paid themselves 
 out of the profits of their offices. The kings 
 were always promising that the provostships 
 should not be given enferme;^^ but they did not 
 keep their word. The bailiffs were intended to 
 be salaried officials ; but, with their subordinates 
 farming their offices, and their superiors of the 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 179 
 
 Parlement holding their posts as hereditary 
 property, it is not to be supposed that the bailiffs 
 formed a real exception. 
 
 The kings are, in fact, afraid of the hierarchy Changes 
 
 in the 
 
 which they have created. Philip the Long de- system. 
 prives the bailiffs of their military character, and 
 places a Captain General in each bailiwick.** The 
 institution of Royal Receivers by the same mon- 
 arch robs them of much of their financial power." 
 Philip of Valois forbids them to style themselves 
 " governors," ''^ and prohibits them holding in- 
 quests, except by consent of the parties.*' In 
 the sixteenth century, their Assises cease to 
 be held.*^ At first, many of their functions are 
 transferred to lieutenants ginSraux, or mXwssy Lieu- 
 
 tenants- 
 
 governors ; but this policy is so disastrous ginhaux. 
 that it is hastily reversed, leaving, however, a 
 legacy of trouble, which it needs the genius of 
 a Richelieu to cope with.*^ Finally, the French 
 monarchy adopts the intendant, originally a tem- imend- 
 
 ants. 
 
 porary inspector sent down from head-quarters, 
 then gradually made permanent. But his 
 district is not really a local unit at all. It is 
 merely the gSniraliti, or taxable area recognized 
 by the Treasury at Paris, just as the Intendant 
 himself is a bureaucratic official.^" There is no 
 
i8o LAW AND POLITICS. [CH. 
 
 true local government in France after the triumph 
 of the ancient monarchy, nothing which, like 
 the English shire, will afford scope for local 
 activities, while submitting to the unquestioned 
 control of the State. There are the great fiefs, 
 which the State has been unable to deprive of 
 their anarchic privileges. There are the chartered 
 towns, which the early kings have called into 
 existence as rivals to the great feudatories, 
 and which the later kings are now trying to 
 crush. There is the g^n6ralite, administered 
 from Paris, and known chiefly to its inhabitants 
 as a machinery for the extortion of taxes. This 
 is the great thought of the centralized monarchy. 
 The kingdom, as the result of a long and suc- 
 cessful struggle on the part of the Crown, has 
 become indeed a royal domain. L'^tat, cest 
 mot. But the answer to this boast is the French 
 Revolution. 
 Germany. In Germany, the story is very different. The 
 
 The 
 
 military political geuius of Charles the Great had seen 
 
 system, *■ " 
 
 Gaueintei- the dangers of feudalism, and had striven, by a 
 
 lung&rA 
 
 vogteien subdivision of the counties, and an improved 
 
 the Great, organization of the royal domain, to stem the 
 
 progress of feudal disintegration. But the task 
 
 is too gigantic for his feeble successors ; and 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. i8i 
 
 even the royal bailiffs become feudal proprietors, 
 the Landgraves and the Burggraves of the later 
 Middle Ages ; while the great fiefs, Austria, 
 Bavaria, Saxony, Brandenburg, Hannover, grow 
 to be the independent kingdoms of modern 
 Germany. Only in a few cases, mostly in the 
 lower Rhine country, do the counties remain 
 reichstmmittelbar, direct dependencies of the State. 
 Even of these, some break away at the close of 
 the Middle Ages, and, falling back on the older 
 traditions of popular organization, federate them- 
 selves into the independent Republic of the 
 United Netherlands. The real efforts of the 
 State are limited to the maintenance of internal 
 order, and the conduct of military affairs. 
 
 The Landfriedensbezirk of the eleventh cen- peace 
 
 • • 11 1 r Districts. 
 
 tury, the Peace District under the control of 
 a captain [Hauptman) and committee of royal 
 officials, is a genuine and well-meant effort to 
 create a local unit directly responsible to the 
 State. How far it becomes universal and sys- 
 tematic, we hardly know. But this, unfortunately, 
 we know, that its administration is entrusted to 
 princes who are also great feudal chiefs ; and 
 these naturally treat their offices as fiefs, rather 
 than as royal deputations." A desperate effort 
 
x82 LAW AND POLITICS. [ch. 
 
 of the earlier Habsburgs, in the thirteenth and 
 fourteenth centuries, to transfer the control of 
 the Peace Districts to the Imperial bailiffs, only 
 results in strengthening the feudal power of these 
 officials, who, as Landgraves, help to swell the list 
 of the petty independent German principalities 
 Military of the later Middle Ag-es/^ The celebrated 
 
 Circles. ° 
 
 Kreiseinteilung of Maximilian I. and Charles V., 
 purely military in character, though its framers 
 endeavoured to make it serve other ends, came 
 too late to arrest the progress of decay /^ It 
 could not maintain itself in the face of its feudal 
 rivals ; it failed even to provide a satisfactory 
 basis for the organization of the Imperial army. 
 After the Treaty of Westphalia, the German 
 Empire becomes merely a loose collection of 
 federated principalities ; its Diet merely an 
 assembly of potentates, far too intent on their 
 personal interests to work together for a common 
 purpose. The Holy Roman Empire proclaimed 
 its formal interment in 1 806 ; it had been a de- 
 caying corpse for more than two hundred years. 
 ''u^nces of "^^^ Comparative success of England in the 
 fevdope- ™^tter of local government has given her a 
 '"^"'- unique place among Teutonic countries, if we 
 except, perhaps, Scandinavia. With this possible 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 183 
 
 exception, England, and England alone, has 
 succeeded in reconciling the absolute supremacy 
 of the State with the existence of local indepen- 
 dence. While the State in France became a 
 rapacious bureaucracy, tempered only by muni- 
 cipal and feudal disintegration ; while the State 
 in Germany died of inanition, and gave place to 
 a crowd of absolute principalities, whose rulers 
 treated their subjects as food for the cannon, or as 
 milch kine for the supply of taxes ; the State in 
 England developed into a strong unity, whose 
 elements yet maintained that vivid consciousness 
 of local life which is essential to the existence of 
 
 a free and self-respecting nation. The State in No heredi- 
 tary juris- 
 England has not ruled through feudal proprietors ; diction. 
 
 therefore there have been no hereditary local 
 
 despots who have defied her mandates. She has No 
 
 bureau- 
 
 not destroyed the old landmarks ; therefore her "^cy. 
 subjects have not felt themselves to be helpless 
 atoms under the heel of a bureaucracy. Her No 
 
 privileged 
 
 officials have not been a privileged caste ofoffi"^'*^- 
 adventurers, speculating in their offices, and 
 exempt from the ordinary rules of law ; therefore 
 they have respected the rights of the citizen, and 
 are by him regarded neither with jealousy nor 
 
 1111 Union of 
 
 with fear. The State has boldly used the local state and 
 
 Clan. 
 
1 84 LAW AND POLITICS. [CH. 
 
 units as the basis of its own organization. The 
 parish and the county are the pivots of the 
 electoral system. Only in one instance does the 
 State conspicuously fail to absorb an older insti- 
 tution. After one or two half-hearted attempts, 
 it allows the Hundred to die out ; and the 
 somewhat clumsy efforts made in later times 
 to replace it, by Poor Law Union, County 
 Court District, Sanitary District, point elo- 
 quently to the danger of allowing a deeply 
 rooted institution to disappear. But even that 
 is better than putting provostships to farm, as 
 the French kings did ; or than formally handing 
 over the Hundreds to the great landowners, as 
 Local self- Frederick H. of Germany did.^* In Eneland 
 
 govern- ^ ° 
 
 "'^"'' the State has fearlessly left to local control much 
 that a timid State keeps in its own hands — 
 police, roadmaking, sanitation, education. The 
 result of the whole policy has been to foster, 
 if not to produce, some of the best features of 
 the Englishman's political character : his deep 
 respect for law, his Independence in the face 
 of authority, his self-reliance, his practical good 
 sense, his willingness to compromise, his sincere 
 though silent patriotism. 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 185 
 
 Notes to Chapter V. 
 
 '^ Siedelung und Agrarwesen der Westgermaneii wid Ostger- 
 manen, der Kelten, Romer, Finnen, und Slawen. See especially 
 Book XII. (in vol. ii.). 
 
 ^ U Alien et le Domaine Rural. See also Le Colonat Romain, 
 and Du Regime des Terres en Germanie, both in Recherches stir 
 Quelques Froblimes d'Histoire. 
 
 * As to these arrangements, see Die Schriften der Romischen 
 Feldmesser, ed. by Lachmann and Rudorff ; especially Siculus 
 Flaccus, De Conditionibus Agivrum, in vol. i. pp. 134-165. 
 
 * See, for examples, Meitzen, op. cit, vol. i. pp. 320, 321. 
 
 ^ This is certainly the meaning in Titles xvi. (5) and Iviii. 
 (4). On the other hand. Titles ix. (8) and, possibly, xxxiv. 
 (i), refer to field hedges {Lex Salica, ed. Hessels and Kern). 
 
 » III. 18. 
 
 ' Compare the well-known passages : Caesar, De Bella 
 Gallico, vi. 22; Tacitus, Germania, 26; and the discussion of 
 their meaning by Fustel de Coulanges, Du Regime des Terres, 
 cap. vii. 
 
 * See specimens of many of these reproduced in the 
 appendix to Meitzen's work. 
 
 * Kolderup-Rosenvinge, Samling of gamle denske Lowe. 
 vol. ii. ; and Thorsen, Eriks sallandske Lev. ii. 53 (p. 61). 
 
 ^° Kolderup-Rosenvinge, op. cit., vol. m.,Jutkse Low. i. 51. 
 
 ^^ Beauchet, Westgotalag. C. A., Jordthaer bolkcer, xiv. and 
 notes. 
 
 ^^ Tacitus, Germania, 25. 
 
 13 On the subject of the Polyptica, see F. de Coulanges, 
 DAlleu et le Domaine Rural, cap. xiii. 
 
 1* Capitulary of 807, Memoratorium, 1 and 2. Boretius, 
 vol. i. p. 134. 
 
 1^ Capitulatio de Partibus Saxonia, 15. Ibid., p. 69. 
 
 IS De Bello Gallico, vi. 22. 
 
 1' Lex Salica, xiv. 4. 
 
 '* Lex Gundobada, xxvii, 3. 
 
 1' Meitzen, op. cit, vol. i. pp. 140-151. 
 
i86 
 
 LAW AND POLITICS. [CH. 
 
 ■^'^ 'Bta.-achtt, Westgoialag. C. A., Jordthaer bolkcBr, xV\. On 
 the meaning of this preference, see my article in the English 
 Historical Review for 1896, pp. 510-514. 
 
 21 Atlas Historique de la France. Planches, ii., vii., viii., 
 ix., X., and Texte explicatif, p. 89. 
 
 22 Westgotalag. C. A., Jordthaer bolkcer, xvi. 
 
 23 On the land settlement of England, the student will, of 
 course, consult the classical works of Mr. Seebohm (The English 
 Village Community) and Professor Maitland (Domesday Book 
 and Beyojid). 
 
 2* Schmid, Gesetze der Angelsachsen. Ine's Dooms, 45 : 
 Alfred's and Guthrum's Peace, 3, Cnut, ii. 71. 
 
 25 Ibid., App. w. 2,, -By People's Ranks and Law. 
 
 26 Ibid., App. xxi. 7, § 2. This document is drawn up 
 after the Norman Conquest, but it represents a much older 
 condition of things. 
 
 2' Ibid., ^thelred, iii. 11. ■ 
 
 28 Ibid., iii. 3. 
 
 29 Capitulary of 807, Memoratorium, i. Boretius, vol. i. 
 
 p. 134- 
 
 3" Westgotalag. d. K., Jordthaer bolkcer, v. (x). 
 
 ^"^ Lex Salica, Extravagantia, A., ii., ed. Hessels, p. 420. 
 
 32 Schmid, op. cit, ^thelstan, ii. 2. 
 
 33 Ihid., Alfred, iv. § 2. 
 
 3* Westgotalag, ed. Beauchet. C. R., Orbotcemal, i. 15. 
 35 Schmid, op. cit., App. xxi. g, § 4. 
 
 3^ F. de Coulanges, L' Invasion Germaniqtie, p. 19. La 
 Motiarchie Franqtie, pp. 196-220. 
 3' Ibid., La Gaule Romaine, cap. ix. 
 
 38 Ibid., La Monarchie Franque, p. 213. 
 
 39 Westgotalag, ed. Beauchet. C. R., Kirkiu bolkar, iv. 
 
 *" See also on this point La Monarchie Franqtie, pp. 198, 199. 
 
 *i Testament of Philip Augustus, 1190. In Lauribre, vol. i. 
 pp. 18-22, also Ordonnance of 1361. Ibid., vol. iv. pp. 409- 
 412. And cf. Luchaire, Mantiel des Institutions Fran^aises, 
 pp. 546, etsqq. 
 
 *2 Cf. the almost countless Ordonnances de Ressort in 
 Laurifere. 
 
v.] LAND SETTLEMENT AND LOCAL UNITS. 187 
 
 *3 Ordonnances of 1303, 1401, 1408, 1493, in Laurifere. 
 
 ■''' Ordonnance of 131 7, in Lauribre, vol. i. pp. 635, 636. 
 
 ■•^ Ordonnance oi iT^zo. /&'</., pp. 712-714. 
 
 '"' 07-donnance of 1342. Ibid., vol. ii. p. 175. 
 
 ■" Ordon7tance of 1346. Ibid., p. 241. 
 
 ** Esmein, Histoire du Droit Fran^ais, p. 369. 
 
 « lUd., pp. 593-595- 
 
 ^'' /^«rf., pp. 595-602. 
 
 ^^ Schroder, DeutscJu Rechtsgeschichte, p, 538. 
 
 52 /&-rf., pp. 487, 488. 
 
 '^ There were three distinct attempts to create this scheme 
 — viz. by Albert II. in 1438, Maximilian I. in 1500, and 
 Charles V. in 1521. (See the constitutions in Kodi, Netu . . . 
 Sammlung der Reichsabschiede, and a map of the divisions of 
 152 1 in the appendix to Schroder, op. cif) 
 
 '•''■ Constitutio in Favorem Frincipum of 1232, cap. 7, in Mon. 
 Germ., Constitutiones, vol. ii. p. 292. 
 
LAW AND POLITICS. [ch. 
 
 CHAPTER VI. 
 
 POSSESSION AND PROPERTY. 
 
 Possession At the present day, the fundamental distinction 
 
 a question 
 
 of fact, between Possession and Property is familiar to 
 every one. As it is frequently, and not incor- 
 rectly put, the one is a question of fact, the other 
 a question of law. By Possession, at least when 
 we speak carefully, we mean that physical 
 relationship with a tangible object which enables 
 a man to control its user. I possess the table 
 that is in the house which I occupy, because, in 
 normal circumstances, I alone determine what 
 use shall be made of it from hour to hour. I 
 possess the garden annexed to my house, because, 
 normally, I alone decide what shall be grown in 
 every part of it. Whether I am justified by law 
 in exercising this control is, for the existence of 
 Possession, an immaterial question. I may have 
 stolen the table or poached the garden ; but, 
 while I do in fact control them, they are in my 
 
VI.] POSSESSION AND PROPERTY. 189 
 
 Possession. Still less does it matter that I am 
 only a tenant of the garden, or a borrower of 
 the table. My Possession may be brought to 
 an end very speedily ; but, whilst it lasts, it is, 
 none the less. Possession. 
 
 With Property, or, as it is called. Ownership, Property a 
 
 question 
 
 the case is different. Property is an interest, of Law. 
 recognized and protected by law, which entitles 
 the person in whom it is vested, not as a matter 
 of fact, but as a matter of right, to the full and 
 complete enjoyment of the subject over which it 
 is exercised. If I have stolen the table, it is not 
 my Property ; if I am merely the hirer of it, it is 
 not my Property. The first case is clearer than 
 the second. No system of Law will recognize 
 a title acquired by theft ; for theft is a breach of 
 the law, and for the law to recognize an interest 
 acquired by defying its clearest mandates, would 
 be to stultify itself openly. Sometimes, no doubt, 
 a system of law treats as Property an interest of a 
 terminable or partial character. English law, for 
 example, knows the phrases "special property," 
 " limited ownership " ; but the very existence of 
 such phrases shows that the idea of completeness 
 is recognized as the natural feature of Property 
 or Ownership. And, in any case, the phrase 
 
igo 
 
 LAW AND POLITICS. [ch. 
 
 " lawful owner " Is mere tautology, or, at best, 
 the result of a confusion of ideas which should 
 never have been allowed to find its way into 
 law-books. Happily, we have not, as yet, 
 heard of "unlawful owners." On the other 
 hand, the " unlawful possessor " is a clearly 
 recognized person. 
 Relation- It is a commonplace of historical jurists that 
 
 ship of 
 
 Possession garly systems of law do recognize Possession, but 
 Property, j^ ^^^ recoguize Property ; that the Possession 
 which they recognize ultimately ripens into 
 Propert}'- or Ownership. This is a delightfully 
 simple doctrine ; and there is, no doubt, this 
 one justification for it, that even very early 
 systems of law recognize a lengthened occupation 
 of land or movables as conferring substantial 
 rights on the occupant. But the doctrine receives 
 no other support from the facts of Teutonic Law. 
 So soon as we see Possession, we see Property. 
 We may say, if we like, that the Property 
 recognized by the Anglo-Saxon Dooms and 
 the Lex Salica is not Property as we understand 
 it. But then we must also make the same 
 observation about Possession. The first lesson 
 to be learnt from the study of legal history 
 is, that the fundamental conceptions of modern 
 
VI.] POSSESSION AND PROPERTY. 
 
 191 
 
 Law are the result of a slow growth which has 
 been going on for ages. 
 
 We open our Anglo-Saxon Dooms, which ^^^j^. 
 have this advantage over the somewhat ^1°"^^^ 
 earher Leges Barbarorum of the Continental 
 Teutons, that they are written in the vernacular 
 tongue, and are probably, on that account, freer 
 from the unconscious influence which a trans- 
 lator always exercises. The first document 
 which they show us is the collection of Dooms 
 named after ^Ethelbirht of Kent, the convert of 
 St. Augustine, whose reign covers the last forty 
 years of the sixth century. The Dooms of 
 iEthelbirht are thoroughly archaic in character, 
 far more archaic than the famous Lex Salica, in 
 spite of the seniority attributed to the latter 
 document. We read the first of ^thelbirht's 
 Dooms ; the oldest rule of English Law which 
 we know in authentic form. 
 
 " God's cattle and the church's, twelve-fold T{?^ , , 
 
 Church s 
 
 fine. Bishop's cattle, eleven-fold fine. Priest's ^„"\\g 
 cattle nine-fold fine. Deacon's cattle six-fold peace. 
 fine. Clerk's cattle three-fold fine. Church peace 
 two-fold fine. Court peace two-fold fine." ^ 
 
 No better starting-point for our enquiry could 
 be found. The oldest rule of English Law 
 
192 
 
 LA IV AND POLITICS. [CH. 
 
 speaks neither of Possession, nor of Property ; 
 but it speaks of two things from which the ideas 
 of Possession and Property will grow. Happily, 
 there can be no mistake about the distinction ; 
 for the text does not merely use different words, 
 it prescribes a different treatment. To make 
 the distinction absolutely clear, we may confine 
 ourselves strictly to what is said about the 
 Church. 
 The First, the Church's cattle twelve-fold fine. 
 
 Church's . . . . 7 7 \ T^t 
 
 cattle. {Godes feoh and ciricean xii. gylde.) There need 
 be little difficulty about that. The Dooms were 
 set in Saint Augustine's day. The saint will pro- 
 bably care for the interests of the Church. So 
 the rule is laid down — probably it was already 
 established in practice — that he who steals or 
 destroys the Church's cattle shall pay twelve-fold. 
 Two questions naturally arise out of this doctrine. 
 
 What The first is — What did the pronouncers of the 
 
 are the 
 
 Church's Doom understand by the Church's cattle .'' The 
 
 cattle ? ' 
 
 form in which they deliver their saying leaves 
 the answer, of course, very doubtful. It is clear 
 that they allude to a relationship between the 
 Church and the cattle, which to their contem- 
 poraries was familiar enough, for they do not 
 describe it, except by the use of the possessive 
 
VI.] POSSESSION AND PROPERTY. 
 
 193 
 
 pronoun. Probably they would have found it 
 very difificult to give any exact definition ; but, 
 if they had been pressed, it is highly probable 
 that they would have declared that the cattle 
 were those of which the Church was dgend, for, 
 in the next Kfentish Dooms, we find this word 
 used unmistakeably in such a sense.^ One 
 passage speaks of cattle being stolen, and 
 the dgend coming up with the thief ; the other 
 describes the claim of the dgend to cattle which 
 have been unlawfully sold in the London market. 
 Now we shall hardly be far wrong in translating 
 dgend^ by " owner," or "lord." It is the modern 
 German Eigentumer ; and Wiklif 's Bible speaks 
 of the ox knowing his lord, where the A.V. 
 describes him as knowing his owner.^ Moreover, 
 in the same Doom Book of yEthelbirht, we 
 read that, if one man slays another, he must pay 
 for it with his dgene scmtte, which can hardly 
 mean anything else than with his "own money."* 
 But nowhere in the Dooms do we find the 
 substantive dgen, or "ownership." 
 
 The second question which arises is — how How did 
 
 /v , . the Church 
 
 did the Church become agend of the cattle in acquire 
 
 ^ them? 
 
 question ? We may safely assume that Saint 
 Augustine and his fellow-missionaries did not 
 
 o 
 
194 LAW AND POLITICS. [CH. 
 
 bring cattle with them from Rome. Even if we 
 give to the word feoh its later and more expanded 
 meaning, and let it stand for belongings of any 
 kind, we may still be very certain that the Doom 
 does not refer merely to the scanty apostolic 
 outfit, the scrip and staff, or even the sacred 
 vestments, which the missionaries may have 
 brought with them. Liberality to the Church 
 was one of the first lessons taught to the 
 Teutonic convert. We have seen that, when 
 Charles the Great imposes a rather forcible Chris- 
 tianity upon the conquered Saxons, one of his 
 first stipulations is, that each church shall be 
 endowed with two mansi and a house. We may 
 fairly suppose that the cattle to be seen grazing 
 on the common meadow of a primitive English 
 village, had either been bred by their dgend, or 
 were the produce of a successful raid on a neigh- 
 bouring village. But the cattle of the Church 
 were the gifts of converts. This is one of the 
 many important principles of Law which the 
 Church is to foster. Cattle may be given to 
 the Church ; and the man who steals them must 
 pay twelve-fold. But let us go back to ^thel- 
 birht's Doom. 
 
 The 
 
 Church's "The Church's peace, two-fold fine." iCyric 
 
 peace. ^ ■' 
 
VI.] POSSESSION AND PROPERTY. 195 
 
 frith a. gylde.) Now this is, obviously, some- 
 thing very different from the theft of the Church's 
 cattle. For one point, we must not accuse the 
 doomsmen of saying the same thing twice over 
 in the same Doom. For another, still less would 
 they, in the same Doom, pronounce two such 
 widely different penalties for the same offence. 
 It is clear that the latter part of the Doom 
 refers to a breach of the Church's peace, which 
 may not have anything to do with the loss of 
 cattle or goods. Two men meet in a church, 
 and quarrel. The quarrel leads to blows. The 
 Church's peace has been broken ; the offender 
 must pay two-fold, i.e., probably, twice the sum 
 payable by the aggressor as wer for the damage 
 done to his victim. If both were in the wrong, 
 the Church will not be very sorry, for she will 
 get a fine from each. The notion of the 
 Church peace is not in the least singular. Every 
 man has a peace in his own house. If one 
 guest calls another a liar, he pays, in addition 
 to his fine to the party primarily injured, a 
 fine of a shilling to the householder.® If one 
 guest merely snatch a cup from another, when 
 a friendly drink is going on, he incurs a similar 
 liability.* The peace of an earl's house is more 
 
196 LAW AND POLITICS. [CH. 
 
 precious than that of an ordinary freeman.' The 
 king has a very terrible peace. If a man fights 
 in his house, he forfeits all his inheritance ; and 
 it is at the king's pleasure whether he live or 
 die.^ By the days of Ine, the Church has adopted 
 a fixed sum as her peace fine. It is the very 
 handsome amount of one hundred and twenty 
 shillings.' 
 Two (lis- Now here we have two perfectly distinct ideas. 
 
 tinct 
 
 notions. On the one hand, there is the offence of depriving 
 a man of valuable things. On the other, there is 
 the offence of creating a disturbance within an 
 orbit over which a man is assumed to have 
 physical control. Our forefathers had distinct 
 names for these ideas. The one was a breach of 
 mund (mund-bryce) ; the other a breach of frith 
 (^frith-bryce). Doubtless, usage often confounded 
 the two expressions. Doubtless they were very 
 near akin. But even the early Anglo-Saxon 
 Dooms distinguish clearly between the two 
 notions. When a man's wife, children, slaves, or 
 cattle are stolen or injured, there is mund-bryce. 
 When disturbance is created in his house, although 
 no ownership is damaged, there is frith-bryce. 
 Even where the names are not used, the differ- 
 ence of the penalties will tell us at once which is 
 
VI.] POSSESSION AND PROPERTY. 197 
 
 intended. The two notions are elaborately and 
 
 carefully distinguished in a semi-official document 
 
 entitled Be grithe and be munde, which we may 
 
 perhaps attribute to the reign of Knut." 
 
 Let us follow up these two ideas a little, and 
 
 see whither they lead us. It has been said that 
 
 the action of the Church probably contributed 
 
 very powerfully towards establishing one of the 
 
 elements of which our modern notion of Property 
 
 is composed. It established the idea that goods 
 
 might be alienated. But other influences were 
 
 at work. 
 
 The earliest object of recorded law is, as we The pay- 
 ment of 
 have before seen, the suppression of the blood fines. 
 
 feud. To achieve this end, it at first persuades, 
 
 and afterwards compels the injured party or his 
 
 relatives to accept a money payment (wer) in 
 
 satisfaction of the claim for revenge. The two 
 
 offences earliest recognized are assault and theft. 
 
 The law does not, at first, profess to deal with 
 
 hot blood. If a man is attacked, he may repel 
 
 force by force, and the law will not inquire too 
 
 curiously about proportion. If the thief is caught 
 
 red-handed, he may be slain. But if a man 
 
 wounds another and escapes, if a man is found 
 
 slain, if a secret theft is committed, the injured 
 
198 LAW AND POLITICS. [CH. 
 
 party or his relatives ought to bring the offender 
 before the moot, and then the elders will urge 
 the parties to swear the peace, and compel the 
 offender to give pledges to pay the appropriate 
 fine. 
 Payment But how is the fine to be paid ? If we are to 
 
 in goods. 
 
 trust first impressions, the early Teuton has a 
 great deal of money. The fines are, in many 
 cases, enormous. The thirst for blood can only 
 be assuaged by tempting offers. Thirty shillings 
 for unlawfully binding a freeman, forty-five 
 shillings for stealing a tame stag, fifteen shillings 
 for removing three poles from a hedge — these 
 are fines taken at random from successive Titles 
 of the Lex Salica." When we think of the 
 scarcity of money in primitive times, when we 
 remember that some of the pieces mentioned 
 in the records of the early Middle Ages are not 
 coins at all, but merely money of reckoning, we 
 shall wonder that the wergild system does not 
 break down at once, owing to the impossibility 
 of carrying it out. But a very useful passage in 
 the Lex Ribuaria helps us considerably. 
 
 " If a man begins to pay a wergild, let him 
 hand over a horned ox, unblinded and healthy, 
 as two shillings. A horned cow ... as three 
 
VI.] POSS£SSION AND PROPERTY. 
 
 199 
 
 shillings, A horse ... as twelve shillings. A 
 mare ... as three shillings. A sword without 
 a sheath as three shillings. A good cuirass as 
 twelve shillings ; " and so on.^^ It is clear that the 
 wergild system must have resulted in frequent 
 transfers of goods ; a litigant who had made good 
 a heavy claim might have found himself with a 
 large collection of miscellaneous articles on his 
 hands. Many of these would, probably, be quite 
 useless to him. He would naturally try to barter 
 them away. 
 
 This brings us to the next influence which is Barter and 
 
 sale. 
 
 to develope the nascent law of property. The 
 Anglo-Saxon Dooms recognize the merchant, 
 perhaps we ought rather to say, the pedlar ; for 
 it is nearly always a stranger who is assumed." 
 Apparently, the general view taken of trade is, 
 that it is a practice affording unlimited oppor- 
 tunities of fraud. "When a dealer from outside 
 deals with our folk," say Ine's Dooms, " let him 
 do it before witnesses. When a man claims 
 stolen goods from a dealer, and the latter has 
 not made his purchase before good witnesses, let 
 him prove clearly that he was neither an accom- 
 plice nor a thief, or let him pay thirty-six shillings 
 fine." '* .^thelstan forbids the purchase of any 
 
200 
 
 LAW AND POLITICS. [ch. 
 
 goods above twenty pence, except in the presence 
 of the portreeve or the reeve in the folkmoot." 
 In later times, the transaction witnesses of the 
 Hundred and the borough become an official 
 institution; and the "sale in market overt" 
 acquires a peculiar validity, which it retains to 
 the present day. 
 The royal It is not very difficult to trace the influence 
 
 influence. 
 
 under which the law of sale developes. It is 
 quite opposed to the spirit of gentile society, with 
 its abhorrence of strangers, and its exclusive 
 maintenance of the Clan group. The merchant 
 is nearly always a foreigner ; if he does evil, he 
 flees, no one knows whither : he has no kin to 
 be responsible to the injured party. In course 
 of time, he will form gilds, which are artificial 
 clans ; and they will be responsible for his mis- 
 deeds, will bury him when he dies, and feast him 
 while he lives. In the mean time, clumsy expe- 
 dients are tried. The merchant must bring all 
 his servants before the king's reeve in the folk- 
 moot, and with them men who will be responsible 
 for them ; if he wishes to increase their numbers, 
 he must obtain permission of moot and reeve. '° 
 The Kentish man who buys cattle in the London 
 market, may do so before two or three good 
 
VI.] POSSESS/ON AND PROPERTY. 201 
 
 churls. But he may also do so before the king's 
 wik-gerefay If a stranger is slain, the king gets 
 two-thirds, or, at least, half of the wer}^ The 
 stranger is, probably, a merchant. For reasons 
 which will hereafter be considered, the king is 
 anxious to establish the practice of sales, under 
 due restrictions. 
 
 So far then we have arrived, at a very early 
 period in our legal history. Things may be given 
 to the Church, may be handed over as wer, may 
 be bought before witnesses. To these sources of 
 ownership, we may safely add capture and pro- 
 duction. Subject to rules about hunting grounds, 
 and to the law of theft, that which a man captures 
 is his. So also are the cattle which he breeds, and 
 the spears and helmets which he makes. Behind 
 these elementary notions of ownership, the law 
 does not carry us. Earlier stages must be left 
 to the psychologist. All analogy suggests that 
 the root of ownership is user. When a man has 
 used a thing once, he wishes to use it again. He 
 resents any interference with the exercise of this 
 wish ; it is a breach of an incipient custom. But 
 these are speculations. What seems fairly estab- 
 lished is, that, at the earliest period of our recorded 
 legal history, the things which a man had received 
 
203 LAW AND POLITICS. [CH. 
 
 as wer, had bought before witnesses, had made, 
 or had captured, were in his mund. Interference 
 with them was theft, or mund-bryce. 
 Subjective But again we must be careful not to attribute 
 ownership, to primitive law ideas which it does not grasp. 
 The notion of ownership, even in movables, is not 
 objective ; it has not a separate existence. It is 
 slowly disengaging itself from the law of sale and 
 the law of theft, but, at present, it is still essen- 
 tially bound up with these ideas. Nothing can 
 show this more clearly than an account of that 
 picturesque process known to all early Teutonic 
 societies as Following the Trail. The extra- 
 ordinary agreement between the various accounts 
 of this process, which we get in the different 
 Leges Barbarorum, points irresistibly to the con- 
 clusion, that it was an institution developed by the 
 Teutonic races in their earliest homes. 
 Following The man who loses a beast follows the track of 
 
 the Trail. 
 
 its footsteps till he comes to the house at which 
 they cease, or till he finds it in the hands of a 
 stranger. Observing the due forms, he has a 
 right to search the suspected house, even, as the 
 Westgotalag says, the invisicsr hus, the granary, 
 the barn, and the sleeping chamber.'^ If the 
 animal is found under suspicious circumstances, 
 
VI.J POSSESSION AND PROPERTY. 203 
 
 e.g. locked-up or covered with straw, the pre- 
 sumption is irresistible. The householder is a 
 thief, and must pay the fine, the owner seizing 
 his beast. ^° But, if the man in whose hands 
 it is found attempts to justify himself, the ques- 
 tion arises — What is to become of the article 
 in the mean time ? Modern systems of law 
 would take the view that the claimant must 
 prove his title, and that, until he has done so, 
 there is no presumption against the holder. 
 Apparently this is not the view of early law. The 
 holder must prove by the oath of his neighbours 
 that the beast was born and bred in his house,^^ 
 or he must produce his warrantor.^^ In the 
 mean time, if the loss of the claimant is not 
 three days old, he may insist on the beast being 
 lodged in the hands of a third party ; if three 
 nights have passed, the holder may retain the 
 beast pending the trial. ^^ But the duty is still 
 on him to justify his position. He calls upon 
 his vendor to clear him of the charge of theft. 
 Now we see the point of the sale before witnesses. 
 The vendor can hardly deny a transaction thus 
 publicly conducted, and so he has to take the 
 place of the accused. He becomes, in fact, his 
 warrantor. Sometimes we seem to trace a 
 
204 
 
 LAW AND POLITICS. [ch. 
 
 difference between the mere witness, and the vin, 
 who is responsible for the vendor's title.^* But 
 we can hardly doubt that this is a later refine- 
 ment. The witness does not, as a rule, guarantee 
 the title of the person from whom the accused 
 party bought. He knows nothing about that. 
 But he swears that the accused acquired by a 
 bond fide sale. The accused is free from the 
 charge of theft. What then ? The process 
 must continue against the man who sold to the 
 accused, who, in turn, calls upon his vendor, 
 and so on, until the thief is found at last, or 
 it is proved that there was no theft. But, in 
 the mean time, we seem to have lost sight of 
 the article about which all this fuss arose. The 
 object is to obtain a theft-fine. No doubt, if the 
 claimant proves a theft, he is allowed to recover 
 his chattel, either from the convicted party, or 
 from the custodian, in whose hands it is deposited. 
 But, unless the holder should, while clearing 
 himself by oath-helpers from the suspicion of 
 theft, voluntarily give up the article, the con- 
 viction appears to be a necessary condition of 
 success.^^ A strong presumption for this view 
 lies in the fact that, at a very early date, the 
 limit to which the process may be carried is 
 
VI.] POSSESSION AND PROPERTY. 205 
 
 fixed at the third previous vendor. If the 
 history of the sales proves to be innocent for 
 three stages, the claimant can go no further.^* 
 
 But, in any case, the spirit of the process is Hand 
 
 muss 
 
 clear. All depends on proving a theft, or, which Hand 
 
 ■wahren. 
 
 is the same thing, raising a presumption of theft 
 which is not rebutted in a formal way. The 
 destination of the subject-matter seems to be a 
 secondary incident, turning a good deal on 
 fortuitous circumstances. There is no claim to 
 recover the subject-matter simply on the ground 
 of title. The clear scientific thought of Roman 
 Law — / say that this thing is mine — is entirely 
 wanting. It appears to be the best opinion that 
 Teutonic Law never, of its own motion, reached 
 this stage.^' There is a singular passage in 
 Bracton which shows how monstrous this fact 
 appeared to his educated mind, and yet how 
 strong was the influence which it exercised 
 on English law, Bracton tries to explain the 
 rule away by saying that, although it might 
 appear at first sight that the action to recover 
 a specific movable should be in rem, yet, as 
 the defendant would have the option of giving 
 the thing or paying its price, it was really in 
 personam?'^ This is, of course, to give the 
 
2o6 LAW AND POLITICS. [CH. 
 
 consequence of the rule as the reason for its 
 existence; but it is very significant that even 
 the powerful influence of the King's Courts 
 in the thirteenth century has not been able to 
 expand the old idea. We may go further than 
 that, and say that, until the nineteenth century, 
 Eno-lish Law never recognized the ownership of 
 movables in legal process. The man who tried 
 to recover his chattel had to prove that the 
 holder had committed a wrong in respect of it. 
 If he succeeded, he would get judgement for its 
 value, by way of damages for the wrong. But 
 it was at the holder's option to pay the value or 
 surrender the chattel ; and, if he chose the former 
 alternative, he became unassailable in respect of 
 the chattel. Substantial justice was done by an 
 elaborate series of rules which treated an unlawful 
 holder, who had really acted throughout in good 
 faith, as though he had committed a deliberate 
 wrong. But the old principle held fast in theory. 
 Hand muss Hand wakren. Meuble na suyte. 
 j^and. Hitherto we have spoken only of movables. 
 
 Now we must think of land, which, in a society 
 that has reached a territorial or sedentary stage, 
 becomes in each succeeding generation more 
 precious, as population increases. Land differs 
 
VI.] POSSESSIOJV AND PROPERTY. 207 
 
 conspicuously from movables in two respects. It 
 cannot be multiplied, and it cannot be carried 
 away. These are, however, physical differences 
 which, powerful as is their influence, do not 
 necessarily strike the primitive mind. A philo- 
 sopher would, doubtless, make the distinction the 
 basis of a Law of Property. But the primitive 
 man is not familiar with philosophy. We must 
 look elsewhere for the ideas which guide him. 
 
 If the view previously taken of the character Land 
 
 r 1 T' -11 1 ownership 
 
 01 the teutonic land settlement be correct, the a share in 
 
 the group. 
 
 early Teutonic agriculturist was a member of a 
 group. The question of what land was worked 
 by the group would be only of secondary import- 
 ance to him. With the virgin forest to fall 
 back upon, he would feel that a migration, 
 irksome though it might be, would not mean 
 destitution. The really important question for 
 him would be — To what group do I belong ? It 
 might be the original village of the Hundred, 
 which the clan first laid out when it settled 
 down to agriculture ; or it might be one of the 
 daughter villages which, it seems likely, were 
 settled by swarming from the parent hive. That 
 is only, on a small scale, the process of coloniza- 
 tion which goes on always in expanding races. 
 
2o8 LAW AND POLITICS. [CH. 
 
 Whether this group was strong or weak, per- 
 severing or idle, peaceful or quarrelsome, would 
 be of infinite importance to the individual clans- 
 The man. And we cannot doubt that any intrusion 
 
 village is 
 
 an exciu- on the domain of the group would be jealously 
 
 sive group. 
 
 resented. Furious as is the controversy which 
 The homo has raged over the " migrating man " of the Lex 
 
 migrans. 
 
 Salica, we cannot but see that there is some- 
 thing more in the matter than a simple case of 
 trespass. The Law has, in fact, discussed the 
 very case of trespass several Titles before ; and 
 the word which it has used is adsallire. The 
 man who "assails" another's vill, is to pay a fine 
 of sixty-three shillings.^* But the offence of 
 migrating cannot be dealt with in this simple 
 way. The passage is so interesting that the 
 important parts may be given at length. 
 
 " If any one shall wish to migrate upon another 
 in a vill " (one family of texts reads simply " shall 
 wish to migrate upon another's vill"), "if one or 
 any of those who stand [consistunt) in that vill 
 shall wish to receive him {susdpere .eum), but if 
 one there be who objects, he shall not have 
 leave to migrate thither." (Then follows an 
 elaborate form of protest, to be used if the 
 offender continues obstinate.) " And because he 
 
VI.] POSSESS/ON AND PROPERTY. 209 
 
 was unwilling to hear the law, he loses what 
 he has worked {laboravit) there, and is, further, 
 liable to a fine of thirty shillings." And then a 
 later text adds : " But if he shall claim to migrate 
 into another vill ' (or " another's vill ") " before 
 the moot {conventus) has been held, he pays a 
 fine of forty-five shillings." ^'' 
 
 The offence alluded to in this passage is de- 
 scribed in the old Prankish gloss as uuedresitelo, 
 which Dr. Kern, the learned commentator on 
 the Malberg speech, translates as "obstinacy."^' 
 On the other hand, the offence of trespass, upon 
 which a fine of sixty-three shillings is imposed 
 by the earlier Title, is described d&fecthis (" fight- 
 ing"), turphaldeo ("housebreaking"), alafalcio 
 (" farmbreaking").^^ The inference is irresistible, 
 that, while the earlier Title alludes to a violent 
 trespass, the later speaks of an attempt to join an 
 agricultural group. The whole of the arrange- 
 ments of the by, so minutely described in the 
 Scandinavian Laws, are absolutely inconsistent 
 with the free admission of strangers. One of the 
 rules laid down by Lydekin, an author of the early 
 fourteenth century, in his commentary on the 
 Westgotalag, is, that if a stranger makes any use 
 of the almcenninger, or common lands, he forfeits 
 
 p 
 
2IO LAW AI^D POLITICS. [CH. 
 
 his goods.^^ The Dooms of Ine state that if a 
 stranger or an unknown person wanders off the 
 road in a wood, and neither shouts aloud nor 
 blows his horn, he may be treated as a thief.^* 
 The State "Qxsx, as in SO many cases, we get our clearest 
 village • proof of the exclusiveness of the village from the 
 efforts which are intended to break it down. 
 These efforts merit careful attention. The policy 
 which directs them will be decisive in the forma- 
 tion of modern ideas of Property. 
 by repress- There is a very striking passage in the Laws 
 actkni °^ Liutprand of Lombardy, attributed to the year 
 733. " If the men dwelling in a vicus have any 
 complaint to make concerning field or vineyard, 
 meadow or wood, and have gathered together 
 in strength and said — ' let us scourge him ' (the 
 offender) ' and turn him out by force ' — and they 
 have gone about to do it, and any tumult has been 
 caused and blows or cruelty inflicted, or any man 
 been slain, let them make fine according to the 
 former law."^^ 
 
 The meaning of this is evident. The village 
 has been exercising its communal right of 
 managing its own affairs, and the State, jealous 
 of its own authority, perhaps reasonably appre- 
 hensive of disturbances, interferes with a strong 
 
VI.] POSSESSION AND PROPERTY. 211 
 
 hand. The actors in the movement are to pay 
 
 a fine of twenty shillings " to the party who in 
 
 the field or the vineyard, or the meadow, or the 
 
 wood, did his labour." Beyond this, they must 
 
 make their peace with the State ; and the State 
 
 expressly says that the offence is neither a broil, 
 
 nor an outbreak of servile insubordination, nor 
 
 an ebullition of rustic high spirits, but a deliberate 
 
 plot to murder. ^° 
 
 The State is not content, however, with merely by en- 
 couraging 
 repressive measures. It will break up the ex- freedom of 
 
 '■ settlement, 
 
 clusiveness of the village. If the king chooses 
 to give a man Letters of Settlement, and he 
 desires to settle anywhere, he produces his 
 Letters in the public moot, and any one who 
 dares to "protest" against him (the word is the 
 same as that used to describe the process of 
 expelling a homo migrans), incurs a fine of two 
 hundred shillings.^' After a stranger has re- 
 mained undisturbed for twelve months, he can 
 no longer be ejected.^^ On the other hand, if a 
 man desires to leave his home, and settle else- 
 where, he obtains the " witness " of the ealdorman 
 of the shire whom he first followed.^' The 
 meaning is quite plain. The State will convert 
 the exclusive group of communal farmers into 
 
212 LAW AND POLITICS. [CH. 
 
 a chance collection of isolated individuals, owing 
 allegiance directly to itself. But we follow the 
 process a step further. 
 by protect- It is hardly to be supposed that a group such 
 
 ing sales. ., ,, . 
 
 as we have examined would voluntarily allow its 
 members to dispose of their interests to strangers, 
 or even to other members. The former trans- 
 action would lead to the introduction of new 
 settlers, the latter to disturbance of family claims, 
 to inequality of position among the constituents 
 of the group, to difficulties in the common plough- 
 ing. And yet it is certain that, at a very early 
 date, such transfers were made ; no less certain 
 that they were subject to serious restrictions. 
 Claims of In the first place, it is clear that the other 
 
 the village. 
 
 members of the village group had, originally, to 
 be consulted. The formal transfer of Swedish 
 Law, the Umfaerth, is clearest on this point. The 
 intending transferor of land must fix a siuncet- 
 tinger, or meeting of the Thing, at which all the 
 members of the village are entitled to be present. 
 Then follows a solemn procession round the fields 
 and meadows, and a return to the homestead. In 
 addition to the witnesses, who testify to the sale 
 or other arrangement which has preceded the 
 formal transfer, there must be nine /astir, who. 
 
VI.] POSSESSION AND PROPERTY. 213 
 
 with hand on staff, sanction the proceedings. One 
 of them, the styrifaster, pronounces a solemn 
 formula of confirmation.*" This can hardly be 
 anything else than the consent of the village to 
 the contemplated transfer. The land which, as 
 the Anglo-Saxon Dooms put it, is invested by 
 shire's witness, is free of all claim, before death 
 and after death, to sell and to give to whom he 
 will." For this protection, the acquirer is well 
 content to pay the land-c6py^ Even among the 
 Ribuarian Franks, whose original ideas of land- 
 ownership must have been powerfully affected 
 by the Roman fashions with which they came 
 into contact, the conveyance of land took place 
 in the public moot.''^ 
 
 But the would-be transferor has to reckon, not claims of 
 
 ihe kin. 
 
 only with his neighbours, but with his own house- 
 hold. " No one," says the Law of the Saxons, 
 ' ' may make a transfer of his inheritance except to 
 the king or the church, and so disinherit his heir, 
 unless he do it compelled by hunger, to be fed by 
 the man to whom he transfers it."** If a man 
 wishes to sell an immovable, says the Westgotalag, 
 " he must first offer it to his heir." *^ The latter 
 has a month in which to exercise his right to 
 purchase. This is, of course, a derogation from 
 
214 
 
 LAW AND POLITICS. [CH. 
 
 the old strict rule ; but it none the less clearly 
 points to the existence of the rule. The retrait 
 lignager, or right of the heirs of a vendor of land 
 to set aside their ancestor's sale, exercised, during 
 the whole of the Middle Ages, a greater or less 
 influence on the transfer of land, and is too well 
 known to need further explanation. We can 
 see that the originally indefeasible claims of the 
 Family and the Clan are being steadily broken 
 down on one pretext or another. 
 Royal and Nor Can we doubt what is the influence at 
 
 clerical in- 
 fluence, work. Looking back at the provision of the 
 
 Saxon Law, we see that the strictness of the old 
 
 rule is relaxed only in favour of two recipients, 
 
 the Church and the king. Looking at the Law 
 
 of the Alamanni, we find that the first clause 
 
 provides that gifts to the Church shall not be 
 
 disturbed by the heirs of the donor after the 
 
 latter's death.** An early Capitulary of Ludwig 
 
 the Pious, intended to be read as part of the 
 
 Custumals {legibus addenda), declares that every 
 
 man shall have perfect liberty to dispose of his 
 
 res for the safety of his soul, and that his heirs 
 
 shall on no account seek to recover them." As 
 
 this passage speaks of a solemn delivery {legiti- 
 
 ma traditid) in a county, we can hardly doubt 
 
VI.] POSSESS/OJV AND PROPERTY. 215 
 
 that it alludes to gifts of land ; and we are 
 interested to note that, if the delivery cannot 
 be made in the county, because of the donor's 
 absence on the king's business, it should be 
 made in the presence of his neighbours 
 {pagenses).^ Stiernhook relates that it was the 
 Swedish custom in old days, after the solemn 
 announcement of a sale of land, to invite the 
 king and his court to a banquet at three tables ; 
 and then, in the presence of the king, the skotning, 
 or solemn pitching of a morsel of earth into the 
 bosom of the transferee, took place/^ It is im- 
 possible to doubt the existence of the design. 
 The State, and its proUgh, the Church, are bent 
 on turning the intermixed Hide, the undivided 
 share in the village lands, into the separate 
 individual . alod of later times. They do it by 
 encouraging transfers, by substituting for the old 
 formal and open ceremonial of conveyance the 
 documentary conveyance of Roman Law, by 
 treating newly-reclaimed land as the individual 
 property of the claimant, ^^ by insisting on en- 
 closure wherever possible. " A churl's field ought 
 to be closed summer and winter," say the Dooms 
 of Ine. " If it is unenclosed, and his neighbour's 
 cattle enter through the opening, he gets no 
 
2i6 LAW AND POLITICS. [CH. 
 
 damages, but must lead them out and bear 
 his own loss." " "If churls have a grass plot 
 in common, or other partible land to hedge, 
 and some have hedged their lots, and others 
 not, and they {i.e. cattle) eat their common 
 acres or grass, then let them go whose gap it 
 was, and make fine to the others, who have 
 hedged their lots."^^ Contrast this with the rule 
 of the Westgotalag : " No one may enclose land, 
 at least without the consent of those who own 
 an attunger."^^ The undivided share of the 
 primitive farmer has become the othal, tidal, alod, 
 the separate estate of the bondi or churl. The 
 commentator Lydekin shows us the jealousy 
 which existed between the two in the period of 
 transition.^* The distinction is marked in 
 Sweden by a difference of title, which separates 
 the othalbondi from the almcenningsbondil'^ 
 The And we must not forget, of course, that, all this 
 
 State's _ & . . > 
 
 land- time, the State has been setting up its own special 
 
 owners, a r r 
 
 class of landowners, who hold their land on very 
 different principles from those which the village 
 understands. They are not the members of 
 agricultural groups ; they are professional soldiers 
 or servants of the State, who treat their land 
 as a reward and guarantee of service to the 
 
VI.] POSSESS/ON AND PROPERTY. 217 
 
 king. They are gesithcundmen, who, if they fail 
 to attend at the summoning of the host, forfeit 
 their land and pay a heavy fine ; ^'^ or they are 
 thegns, who to the king's utwcsre (host) five 
 hides have." They are the holders of those 
 beneficia who, as Charles the Great rules, are 
 first liable to service in the army of Gaul.^^ 
 
 But, just because they are not agriculturists, ^""^ '^""^ 
 
 -' ■' to ' tenants. 
 
 they must get some one to work their lands for 
 them. We have good reason to suspect that, even 
 in purely gentile society, the Clan group finds 
 itself obliged to recognize in some way a circle 
 of dependants, or settlers who, without being 
 members of the village, contrive to hang on its 
 outskirts, and pick up a living in some way. They 
 may be men who have been expelled from other 
 villages, they may be escaped slaves, or strangers 
 from a distant land. They are the cotsetlcs, or 
 cottagers of English law, who hold no Hide 
 nor part of a Hide in the arable fields, the kdter 
 of Germany, the casati of Prankish documents. 
 But we see beside them another class, who, 
 whatever their origin, are evidently in a very 
 different position. This is the rent-paying man, 
 the gafolgilda of the Anglo-Saxon Dooms, the 
 landboe of Sweden, the tacksman of Scottish law. 
 
2l8 
 
 LAW AND POLITICS. [CH. 
 
 He is, at first, probably, a mere agent, or bailiff, 
 to whom the land has been bailed or delivered, 
 that he may work it for the owner, and render 
 an account of profits ; but he later becomes the 
 firmarius or farmer, who pays a fixed rent. 
 Even in early days, the rent-paying man is the 
 equal of the "boor," the typical member of the 
 village/® The man who fights in his house pays 
 the same fine as the man who fights in the house 
 of the boor.°° As a landmark in the history of 
 Contract, the holder of loan land, the rent-paying 
 tenant, as we should say, is highly important. But 
 he is still more important as helping to break down 
 the notion of that landholding by groups which 
 the State has set itself to destroy. Through him, 
 and through his employer, the notion of land- 
 ownership as a share in a joint enterprise becomes 
 changed into that universal system of tenure, or 
 landholding as the subordinate of a lord, which, 
 as the private side of feudalism, is so strongly 
 ^'^^^ marked a feature of the later Middle Agfes. It 
 is a great thesis, yet to be proved, that the 
 individual landholder, the king's thegn or the 
 beneficiary, because he finds it difficult to obtain 
 voluntary tenants, makes his way into the village 
 group, and compels the villagers to do him 
 
 manor. 
 
VI.] POSSESS/ON AND PROPER TV. 219 
 
 agricultural service in return for military pro- 
 tection, thus producing that striking institution, 
 known far and wide as the " manor," which is ' 
 the kernel of the feudal system. It is not yet 
 absolutely proved; but every accession of know- 
 ledge renders its truth more probable. Without 
 making any rash assertions, however, we are able 
 to see that the action of the State has set up, 
 beside the primitive land unit, a totally different 
 kind of unit, the individual holding of a tenant or 
 loansman.who will look to the State, and not to the 
 Clan, for the protection of his interests. Beside 
 the alod or the Hide appears the benefice or 
 fief; beside the folkland, the land owned by old 
 customary right, appears the ierra testamentalis, 
 the bookland, the land held by charter of a lord. 
 
 We can hardly doubt what the fate of the older Disap- 
 pearance 
 institution will be. The State does not like it, of the 
 
 alod. 
 
 even after it has become ' transferable and in- 
 dividual. There are grave doubts whether its 
 owner is liable to military service. Even so late 
 as the fourteenth century, Philip the Fair has to 
 admit that the alod is free from many kinds of 
 taxation." In England, the oath of Sarum 
 quietly ignores its existence, and we hear nothing 
 more of it in that country. In France, in the 
 
220 LAW AND POLITICS. [CH. 
 
 fourteenth century, Jean Boutillier will say that 
 if land is not held of any one else, it must be 
 held of God/^ The alleu has to bear the whole 
 weight of the maxim: "No lord, no land." 
 Again and again formally abolished, again and 
 again it re-appears, till the Revolution sweeps 
 away fief and alod, and substitutes a new con- 
 ception in their room.*^ In Germany, the feeble 
 State fails to stamp out the alod ; ** after its fall 
 a great resurrection of allodialism takes place in 
 the independent fragments of the dissolving 
 Empire/' 
 
 But we have yet to notice two determined 
 and successful efforts on the part of the State to 
 break down the old notion of membership of 
 the agricultural group, and substitute for it the 
 notion of individual property in land. The first 
 of these is the enforcement of execution against 
 immovables ; the second, the developement of 
 the law of inheritance and testament. 
 Execution It seems beyond measure clear, that early 
 
 against 
 
 land. Teutonic Law did not recognize the liability of 
 the agricultural group to be broken in upon by 
 the creditors of its members. Owing to the 
 rudimentary condition of the law of Contract, 
 which, as we shall see, is barely recognized as 
 
VI.] POSSESSION AND PROPERTY. 22 [ 
 
 an institution by primitive law, there could 
 be few contractual claims against individuals. 
 But, after the developement of the system of 
 wergilds, and indeed before it, there is much 
 liability for wrongs ; and, when once the rule 
 of pecuniary compensation has been established, 
 there will be many claims for the satisfaction of 
 injuries. There is a good deal in the Leges village 
 
 liability. 
 
 Barbarorum to suggest that the primitive village 
 incurred responsibility for the crimes (as we 
 should call them) committed, or supposed to have 
 been committed, by its members, especially 
 when the offender could not be identified. " If 
 a man is slain outside a house," says the 
 Westgotalag, " the villagers must pay a fine of 
 nine marks, or deliver up the slayer."^* If a 
 man is slain on the unclaimed land between 
 three villages, the villages must clear themselves 
 of complicity. If they fail, they must pay the fine ; 
 but, in compensation, they may divide the land 
 between them." The dislike shown by the Anglo- 
 Saxon Dooms towards the " landless (or lordless) 
 man of whom no right can be got," is probably 
 a relic of the same rule, *' which is itself, doubtless, 
 only another form of the liability of the kin for 
 the misdeeds of its members. The liability of 
 
222 LAW AND POLITICS. [CH. 
 
 the township survives into Norman times, till it 
 
 is superseded by the State's institution, the 
 
 Seizure of tithinPf.^' But the right to seize the goods of the 
 
 movables. i5 o o 
 
 individual offender is .clear too ; and it is one of 
 the early efforts of the State in the Administra- 
 tion of Justice to secure that this seizure shall be 
 conducted by its own officer.'" Only, the seizure 
 is limited to the movables of the offender. The 
 extreme limit of liability in respect of land is 
 shown by the famous and picturesque procedure 
 The of the Chrene Cruda. Apparently, it applies only 
 
 Chrene 
 
 Cruda. to the single case of homicide. The offender 
 who cannot pay the fine has one chance for his 
 life. If he can persuade one of his relatives to 
 undertake the liability, he enters into his house, 
 and, standing on the threshold, looking inwards, 
 he throws over his shoulders with his left hand 
 a handful of earth, which he has collected from 
 the four corners of his land, upon his surety. 
 Then, stripped to his shirt, unshod, with staff 
 in hand, he leaps over the hedge, and, it can 
 hardly be doubted, disappears for ever from the 
 village which he has disgraced, leaving his land 
 to his redeemer." But it will be observed that 
 the strictest limits are put to the process. 
 It only applies to the single case of homicide. 
 
VI.] POSSESS/ON AND PROPERTY. 223 
 
 The offender must swear that neither above the 
 earth nor below it has he wherewith to pay 
 the fine. He must choose his nearest relative 
 to redeem him ; if such an one cannot be found 
 within the third degree, he can go no further. 
 
 But the State steps in with a powerful remedy. Forfeiture 
 It is familiar already with the punishment ofkhig's\an. 
 forfeiture ; for, as we have seen, the gesithcund- 
 man who fails to attend the summons to the host 
 loses his land, which has been loaned him by the 
 king. The summons to the host is the original 
 dan. But the idea is capable of extension. Any 
 failure to obey a royal summons can be visited 
 with outlawry and confiscation. The State will 
 place this formidable procedure at the disposal 
 of the private creditor. If the accused party 
 refuses to appear before the moot (a step which 
 always places the Clan tribunal in a difficulty), if 
 he is a notorious evil-doer and, instead of paying 
 his fines or getting his relatives to stand surety 
 for him, takes to wandering about the woods, 
 the king will place him " outside his speech," and 
 any one who pleases may kill him at sight.'^ He 
 is forbannitus, and any one who harbours him 
 will incur a fine of sixty shillings ; '^ all his goods 
 will go to the king.'* It might be thought that 
 
224 
 
 LAW AND POLITICS. [CH. 
 
 this is a poor solace for the creditor ; but we 
 note that Charles the Great, in his additions to 
 the Lex Ribuaria, gives a satisfactory explana- 
 tion. After the missio in bannum has taken 
 place, a year must elapse ; during which time, no 
 doubt, the offender may buy his peace by paying 
 the fine, or by appearing in court and disproving 
 the charge. If he does neither, the king may be 
 spoken with on the subject ; and he will pay the 
 fine out of the offender's goods. If these are in- 
 sufficient, recourse may be had to his benefice.'^ 
 But we are still left in doubt whether the village 
 land of the culprit can be seized, until a Capitulary 
 of Ludwig the Pious, of the year 8i8, sets the 
 matter at rest. Here it is expressly stated, that, 
 if the movables of the offender will not suffice 
 to pay the fine, then the deficiency is to be made 
 up out of his immovables. And, as if to place 
 it beyond all cavil what immovables are meant, 
 the Capitulary goes on to explain, that if the 
 immovables are still in a state of undivided 
 owership (sinondum cum suis coheredibus proprium 
 divisum habuit suum), the count must call together 
 the coheirs and insist upon a division.'* The 
 State will enforce the claim of the creditor against 
 the claims of the kin. 
 
VI.] POSSESSION AND PROPERTY. 225 
 
 Lastly, in the law of Inheritance and testament, The Law 
 
 of In- 
 
 the State discovers a powerful weapon of attack heritance. 
 on that community which it has set itself to 
 destroy. The subject of Inheritance is so vast 
 and complicated, that it would be impossible to 
 treat it with the thoroughness which it so un- 
 questionably deserves, in a work which does not 
 profess to be technical. Probably there is no 
 subject which so well repays the attention of 
 the student of society. It takes us back to the 
 most elementary form of that principle of asso- 
 ciation which is the beginning of History. In 
 the changes which it has undergone, we trace the 
 rise and spread of ideas which have dominated 
 the human race. It touches man's closest in- 
 terests, and shows him in his most genuine light. 
 Here we are merely to see, in briefest fashion, 
 how the State has used the law of Inheritance 
 as a means of destroying the Clan. 
 
 It seems fairly clear that the earliest and most The Wood 
 
 feud kin. 
 
 important step towards the developement of a 
 law of Inheritance, in the modern sense, is the 
 organization of the blood feud. The restriction 
 of the duty (perhaps we ought to say the right) 
 of revenge, to a comparatively small circle of 
 kindred, leads to a distinction between the larger 
 
 Q 
 
226 LAW AND POLITICS. [CH. 
 
 group, or Clan, and a smaller group, the sippe, or 
 maeg; while the success of the blood feud, a 
 success which we are apt to underestimate, itself 
 tends to the peaceful accumulation of property, 
 and undisturbed possession of goods. The intro- 
 duction of the wergild system is a still more 
 decisive step. The wer of a slain man is paid to 
 those of his kin who were bound to revenge him ; 
 they are compensated for the loss of their comrade- 
 in-arms, it may be also for their loss of the fierce 
 pleasures of revenge. The Leges Barbarorum 
 are full of the details of arrangements which are 
 made for distributing the blood fines among the 
 avengers of the deceased. But we have no 
 reason to suppose that, at first, the rights of the 
 maeg extended beyond the dead man's wer. The 
 The heirs Hide, the homestead and its accompaniments, 
 Hide. the familia et penates et jura successionum of 
 Tacitus," go to the sons ; failing them, to the 
 brothers ; failing them, to the paternal uncles of 
 the deceased. No doubt, these will be very 
 much the same persons as the kin who revenge 
 his death. But we dare not say that they will 
 be exactly the same. In the blood feud group 
 there will probably be several degrees of relations, 
 who will divide the wer proportionately amongst 
 
VI.] POSSESS/ON AND PROPERTY. ■zri 
 
 them.'* Amongst the homestead heirs, the nearer 
 degree excludes the remoter entirely. But we 
 see a strong resemblance of principle between the 
 two cases, which we may conveniently call gentile, 
 or agnatic. The woman does not share the feud, The ex- 
 
 elusion of 
 
 although, curiously enough, she transmits it to her women, 
 children ; no woman, no relative through a woman, 
 inherits the Hide. The reason in both cases is 
 clear. The woman does not fight ; therefore she 
 does not share the feud." The woman, when 
 she marries, goes into the mund of her husband. 
 Mund and property are: inseparable. By leaving 
 her father's mtind, she forfeits all claim to his 
 property. She cannot be allowed to bring a 
 strange mund into her paternal household. There 
 are even traces among the primitive Teutons of 
 a right of primogeniture ; and there should be 
 nothing in that to surprise us.'° Both primogeni- 
 ture and the exclusion of women are far older 
 practices than the feudal ideas to which they are 
 often attributed. But primogeniture, if it ever 
 existed in the early Teutonic world, has disap- 
 peared before the page of history definitely opens. 
 
 The meaning of the system just described is The gen- 
 tile law of 
 clear. It is a deliberate cause, or an inevitable inherit- 
 ance. 
 
 consequence, it is hard to say which, of a system 
 
228 
 
 LAW AND POLITICS. [CH. 
 
 of gentile community. If the solidarity of the 
 Clan group is not maintained by the law of 
 inheritance, the clan itself breaks up. That is 
 precisely what the State desires to see ; and we 
 may now rapidly review the process by which it 
 is effected. 
 The ad- In the Leges Barbarorum, we perceive that 
 
 mission of , . , . , , 1 i • i 
 
 women, an attack is being made on the rule which 
 excludes women from the inheritance. The 
 exclusion is, in fact, nowhere strictly maintained. 
 But the position in which we find female heirs 
 tells its own tale. In the earlier texts, they are 
 always postponed to males. The older edition 
 of the Westgotalag invariably adopts this practice. 
 The daughter is postponed to the son, the sister 
 to the brother, and so on." In the Lex Salica, 
 there has evidently been a compromise ; the 
 daughters and sisters appear (though the text 
 is corrupt) to inherit movables along with the 
 sons and brothers. But the famous clause which 
 excludes women from the succession to land is, 
 perhaps, the best-known fragment of all the 
 Leges Barbarorum ; and it has a meaning, 
 though not that generally attributed to it.'^ The 
 Ribuarian Law adopts much the same rule. 
 Women succeed generally along with men; but 
 
VI.] P0SSESSI07V AND PROPERTY. 229 
 
 they are excluded from the "ancestral inherit- 
 ance," which can hardly mean anything else than 
 the Hide.*^ Even the Burgundians, powerfully as 
 they are influenced by the Roman Law, which 
 knows no preference of sex, only give the in- 
 heritance to the daughter if there is no son/* 
 But we see the tide of exclusion slowly receding. 
 The later MS. of the Westgotalag, about a 
 century younger than the codex antiquior, merely 
 allows the male a somewhat larger share than the 
 female successor.*^ The Edict of Rothar places 
 legitimate daughters on the same footing as 
 illegitimate sons.** The Edict of Hilperic, which 
 amends the Lex Salica, admits daughters even 
 to the succession of lands, after the sons.*' A 
 Lombard jurist of the early eleventh century, 
 commenting on the same Law, says roundly, " if 
 a man has died leaving a son and a daughter, 
 they share alike." ** 
 
 The rule which excludes women is, in fact, 
 hard to defend ; and we may suspect that popular 
 feeling was, to a certain extent, responsible for 
 its downfall. There are two obvious flaws in it. 
 The woman may not marry at all ; and then she 
 will be in her father's mund at his death. Or 
 she may marry without mund ; for the informal 
 
230 
 
 LAW AND POLITICS. [ch. 
 
 marriage soon makes its appearance, if, indeed, 
 it is not older than its rival. And then there will 
 be no necessary conflict of authorities. Possibly 
 the right of succession was first extended to those 
 women who had not left the paternal household ; 
 the daughter on marriage received a marriage 
 portion, and lost all further claims.*' We shall 
 , > also not be far wrong in attributing some weight 
 to the powerful influence of Roman Law, and to 
 those new rules on the subject of prohibited de- 
 grees of marriage which the Church is endeavour- 
 ing to introduce. But, for all that, the action 
 of the State is undeniable, though it may be 
 difficult to prove. As we have seen, the Leges 
 Barbarorum are drawn up under royal auspices. 
 When we trace an innovation, we may strongly 
 suspect the influence of the king and his advisers. 
 No doubt, they cannot do very much ; but they 
 may expedite the adoption of a budding reform. 
 According to Swedish tradition, the admission 
 of the daughter to share with the son was due 
 to the powerful example of Birger Jarl.'" 
 
 Admission But a much more deadly attack is made on 
 
 of the ■' 
 
 emanci- ~ ^^g Clan system when emancipated heirs, the 
 
 forisfamiliated, are admitted to share the inherit- 
 ance of the father whom they have cast off. 
 
VI.] POSSESSION AND PROPERTY. 231 
 
 That a child should be able of his own will to 
 escape the parental yoke, is so contrary to primi- 
 tive rules, that we wonder how the right has 
 been secured. We turn to the title of the Lex 
 Salica in which the process is explained. The 
 man who wishes to remove himself from his 
 kin [parentilld), comes to the moot before the 
 thunginus, and there, breaking three alder twigs 
 over his head, casts the fragments into the four 
 corners of the court. Then he renounces by oath 
 all share in the inheritance and property of his 
 kin. If afterwards any one of his relatives is 
 either slain or dies a natural death, he can 
 claim no share of the murder-fine or inheritance. 
 Then follows a most significant clause : " But, if 
 he himself should happen to die or be killed, his 
 inheritance and fine go to the fisc." *^ After this, 
 we are not surprised to find the State encourag- 
 ing the practice of emancipation. But what is 
 a little surprising, and most important for our 
 purpose, is to discover that the emancipated 
 person ultimately acquires a right of succession 
 to the paternal inheritance. Yet this stage has 
 been reached by the beginning of the eighth 
 century, for we find the Lombard Capitularies of 
 Liutprand declaring, that if a man before his 
 
232 LAW AND POLITICS. [CH. 
 
 death gives daughters in marriage, and after- 
 wards dies, leaving other daughters domiciled 
 with him, the married and the unmarried 
 daughters share alike in the paternal inheritance.*'^ 
 The same rule is to apply in the case of married 
 sisters ; and we can hardly doubt that, before 
 long, it is held to apply to emancipated sons. 
 There are, indeed, expressions in the Capitularies 
 of Liutprand which confirm this view.*^ 
 Admission But we go a Step further, and note another 
 
 of repre- . . 
 
 sentatives. serious mroad upon the ancient principles of 
 inheritance. This we may call the right of re- 
 presentation, the principle by which, if A's son 
 dies in A's lifetime, leaving children, the latter 
 will share A's inheritance along with their uncles, 
 the sons of A. The principle seems so natural 
 to us, that we hardly realize that it can ever have 
 been an innovation. But it is contrary to all 
 agnatic ideas, which, to use technical expressions, 
 regulate succession per capita, and not per stirpes. 
 We see the new principle cautiously admitted in 
 the Laws of Grimoald of Lombardy, drawn up 
 towards the end of the seventh century. But 
 it there only applies to the sons of a man who 
 has died "in the bosom of the grandfather," 
 i.e. domiciled under the paternal roof* The 
 
VI.] POSSESSION AND PROPERTY. 233 
 
 Burgundian Law allows it for a grandson, but 
 expressly denies it to a granddaughter. '= Hilde- 
 bert II, extends it to the ofifspring both of 
 sons and daughters; but has to admit that it 
 does not apply to a brother's children.'^ The 
 Visigothic Law seems to have first admitted it 
 for the latter case." The acceptance of the 
 principle marks the definite defeat of the agnatic 
 system. In the place of the ancient Household, 
 held together by the mund of the House-father 
 and the Clan, in the place of the blood-feud 
 kindred, we get the cognatic family of modern cognatic 
 
 r 1 1 • 1 Inherit- 
 
 times, founded simply on blood relationship, dis- ance. 
 solving and reforming with each successive 
 generation. We know the force of metaphor 
 amongst unlettered peoples ; and we may suspect 
 that the State has been making use of a fascinat- 
 ing metaphor, which regards the deceased as the 
 head, and his relations as the limbs, of a corporate 
 body. Immediately below the head comes the 
 bosom ; there is but one bosom, and there is but 
 one blood in a man's descendants. But, beyond 
 the bosom, everything is double ; two arms, two 
 thighs, two knees, and so on. This is the notion 
 of inheritance which prevails after the old agnatic 
 ideas have died out, and before the Canon Law, 
 
ment, 
 
 234 LAW AND POLITICS. [CH. 
 
 with its Family Tree, has come in. We can 
 easily see how a skilful pleader might work it in 
 favour of cognatic succession. 
 TheTesta- Still more dangerous to the Clan than the 
 alteration of the law of succession, is the admis- 
 sion of testamentary gifts. While it is true, as a 
 great writer has said, that the Barbarians had no 
 Testament until they borrowed it from Roman 
 Law,'^ or until the priests persuaded people, as 
 the Westgotalag puts it, that an heir cannot, 
 without mortal sin, forbid his ancestor to make a 
 deathbed gift,'' yet we cannot help seeing that 
 they had developed institutions which amounted 
 to very nearly the same thing. The Gairethinx 
 of the Lombards, the Adfatimus of the Franks, 
 are not borrowed from Roman Law. In the 
 former, the intending donor appears " before the 
 freemen" (surely, in the moot) and, holding his 
 spear {gisil), pronounces the word lidinlaib, i.e. 
 "on the day of my death I will leave it." He 
 cannot then, unless for good cause, dispose of 
 his substance elsewhere, at least without giving 
 the donee an opportunity of redeeming it."° 
 In the Adfatimus, which, likewise, takes place 
 in the moot, or before the king, the donor makes 
 over his effects to the donee, by throwing a 
 
VI.] POSSESS/ON AND PROPERTY. 235 
 
 wand into his bosom [fatkm). The donee 
 takes solemn possession of the donor's house, 
 accompanied by witnesses whom he feeds at 
 the donor's table. If during twelve months the 
 donor's heirs raise no claim, the transaction is 
 unimpeachable.^" We need not suppose that 
 this right was unlimited ; every probability points 
 to the conclusion that it could at first only be 
 exercised in default of lineal descendants. We 
 know, as a matter of fact, that English Law is 
 unique in the liberty which it allows to a testator 
 to ignore the claims of his immediate relatives, 
 and that, in kindred systems, the right of the 
 direct heirs to upset a testament never wholly 
 . disappeared. But, for all that, the Gairethinx 
 and the Adfatimus are very significant for 
 our present purpose. They mark the final con- 
 quest over the remoter gentile heirs, those 
 pxrentes legitimi whom the Lombard Laws 
 cannot quite ignore,"" and those vicini whom 
 Hilperic sets aside."* Their connection with 
 the State is quite plain. " If any one has no 
 natural and lawful sons or daughters," ^says the 
 Ribuarian Law, " let him give all his property 
 by adoption to any one that he likes, relative or 
 stranger, in the presence of the king}"^ Charles 
 
236 LAW AND POLITICS. [CH. 
 
 the Great extends this jurisdiction to the count 
 and the missi, both royal officers ; "^ and, in thus 
 doing, starts that important practice of conveying 
 land by fictitious lawsuit, which is so striking a 
 legal feature of the Middle Ages, which does so 
 much to facilitate the transfer of land, and which, 
 when it does not disappear too soon before more 
 modern ideas, produces without effort a system 
 of land registration. We may indeed exaggerate 
 the consciousness of intention with which the 
 policy that we have just traced has been followed 
 b)' the State. But that the instinct of hostility 
 is there, is beyond measure plain ; and it is none 
 the less interesting that it is unconscious. When 
 the State offers to effect a division of a joint 
 inheritance between brothers,"* when it consti- 
 tutes itself heir of the deceased who leaves no 
 relatives within a certain degree,"' it may not 
 look beyond the immediate convenience or profit 
 of the step. But it is none the less guided by 
 that instinct of self-preservation, which is found 
 Repetition in institutions as well as in individuals. That 
 
 of the 
 
 aft°erthe *^^ ^taX& sets itself to break down any communal 
 ancerf System of property which exists within its terri- 
 
 feudalism. . • 1 -it. 
 
 tones, may be seen by the curious resurrection 
 of the struggle which takes place after the 
 
vi.J POSSESSION AND PROPERTY. 237 
 
 appearance of feudalism. We have remarked 
 before on the similarity between the Fief and 
 the Clan. It is seen again in the recrudescence 
 of gentile notions on the subject of property. 
 According to the doctrines of orthodox feudalism, 
 the vassal must not sell his fief, for that would be 
 to break the tie between himself and his lord, 
 between himself and his co- vassals. For the same 
 reason, his creditors must not be allowed to take 
 it in execution; nor may he leave it by will. For 
 other reasons, a peculiar system of inheritance, 
 which strongly recalls the blood feud kin of 
 gentile society, grows up among the holders of 
 fiefs. All the questions have to be fought over 
 again ; and the victorious combatant is always 
 the State. We may safely say, that a deep- 
 rooted instinct, sharpened by practical difficulties, 
 leads the State to wage incessant war against 
 any institution which adopts economic principles 
 different from its own. 
 
 But this brings us very near to another pro- The state 
 
 and 
 
 position. In its struggle with the Clan, the State Property, 
 has created Property, as we now understand it, 
 especially Property in land. For what do we 
 understand by Property ? Is it not that interest 
 in tangible things which can be bought and sold. 
 
238 LAW AND POLITICS. [CH. 
 
 taken in execution for debt, left to descend to 
 one's heirs, or disposed of by Will ? These are 
 the very essentials of our notion of property ; 
 and we see how they are one by one established 
 in the course of the struggle between State and 
 Clan. It is a commonplace of the Analytical 
 Jurists that Property is the creature of the State. 
 The dogma may have a new meaning for us, who 
 have realized that it has a historical background. 
 The Peace. In conclusion, we have only to look back for 
 a moment at that other primitive notion, the 
 notion of the frith, which seemed to be the root 
 of Possession, as the mund was the root of 
 Property. Fortunately, this will not take us long. 
 Extension It has not appeared, in the course of our study, 
 idea. jj^g^j- ^j^g j(jgg^ o{ the. frith has produced Property. 
 But it has a great history, for all that. It is a 
 very fertile notion, as may be seen from an 
 interesting passage in the Laws of Liutprand."* 
 If a man steals the clothes of a woman who is 
 bathing, and compels her to walk home naked, he 
 forfeits his wergild ; because, says the Laws, if 
 her husband or brother or kinsman heard of the 
 deed, he would of course take vengeance, and one 
 of them would be slain. Evidently the notion of 
 the Peace may be pushed to a great length. 
 
VI.] POSSESSION AND PROPERTY. 
 
 239 
 
 And it is so pressed. For when, after the 
 resurrection of the State in the latter part of the 
 tenth century, the Peace of the King swallows up 
 the Peaces of the Household, the Church, and 
 the Folk, we get a rapid developement of the list 
 of offences which come within its orbit. The law 
 of theft is a very striking example. The original 
 notion of theft certainly implies secrecy. It is con- 
 trasted with robbery, which is committed by force, 
 and which, if attempted by a sufficient number 
 of persons, may really amount to a rebellion."' 
 Nevertheless, at least in England, where the 
 State is strong, theft soon becomes a breach of 
 the State's Peace, and is matter for the King's 
 courts. A little further, and we find it estab- 
 lished that every trespass, every interference with 
 the physical control of a thing, is a breach of the 
 peace. It is against the peace of our Lord the 
 King. Only one serious danger does the rapidly- 
 growing principle encounter. The notions of Seisin and 
 
 Posses- 
 feudalism do not attribute to the fief-holder that^io"- 
 
 interest which we, in modern times, call ownership; 
 he has the interest of a holder, of a tenant, of a 
 person whose interest is less than that of the 
 donor, out of which it is carved. This is, of 
 course, very like Possession. But the fief-holder 
 
240 
 
 LAW AND POLITICS. [CH. 
 
 is, as we have seen, on feudal principles the 
 justiciable of his immediate lord, most especially 
 in matters which affect the title to his fief. These 
 matters must be decided in the lord's court. But 
 the subtlety of the royal lawyers is equal to the 
 emergency. The book which goes by the name of 
 the Grand Coutumier attributes, as we have seen, 
 the solution of the difficulty to Simon de Bucy, 
 President of the Paris Parlement in the four- 
 teenth century. He has distinguished between 
 that seisin, which is the interest of the fief-holder, 
 and that mere corporal possession which any one 
 may have, as a matter of fact, of any tangible 
 thing. In truth, the difficulty has been solved 
 in England before Simon's time; and the solution 
 is probably due to the revived study of Roman 
 Law, which had made the King's lawyers familiar 
 with the subtle doctrines of the classical jurists 
 of Rome. This is not to say, for a moment, 
 that the English notion of Possession is borrowed 
 from the Roman Law. It is merely to say that, 
 stimulated by the study of a masterly system, the 
 English jurists have grasped a logical distinction 
 which is to lead to results of vital importance. 
 With the Possessory Assizes and the Writ of 
 Trespass, the Law of Possession in England 
 
VI.] POSSESSION AND PROPERTY. 241 
 
 Starts on a new and glorious career. The King's 
 Peace will develope, alongside the actions founded 
 on Property, a new series of actions founded on 
 Possession, which, in the long run, will swallow 
 up their rivals. But, for all that, the notion of 
 Property and the notion of Possession remain 
 intrinsically separate. The one may lead into 
 the other ; as where a long continued Possession 
 is treated as equivalent to Property. But we 
 have seen no reason to suppose that, historically 
 speaking. Property is, as it is sometimes said to 
 be, Possession protected by Law. Each is a 
 fundamental conception of Jurisprudence. 
 
 Notes to Chapter VI. 
 
 ^ Schmid, Gesetze der Angelsacksen, ^thelbirht's Dooms, i- 
 
 2 Ibid., Hlothaere's and Eadric's Dooms, 7 and 16. 
 
 3 Isaiah i. 3. 
 
 * Schmid, oJ>. cit, ^thelbirht's Dooms, 30. 
 
 ^ Ibid., Hlothaere's and Eadric's Dooms, 11. 
 
 * Ibid., 12. 
 
 ' Ibid., Ine's Dooms, 6, §§ 2, 3. 
 ^ Ibid., 6, pr. 
 9 Ibid. § I. 
 
 1" Printed in Schmid, op. cit., pp. 384-389. 
 11 Lex Salica, ed. Hessels, Titt. xxxii.-xxxiv. 
 ^2 Lex Ribuaria, xxxvi. (11). 
 
 13 Schmid, op. cit, Hlothaere's and Eadric's Dooms, 15; 
 iElfred's Dooms, 34. 
 
 R 
 
242 LAW AND POLITICS. [CH. 
 
 ^^ Ibid., lae's Dooms, 25. I have ventured to differ slightly 
 from Schmid in the translation; but the difference is of no 
 importance to the point. 
 
 " Ibid., ^thelstan's Dooms, ii. 12. 
 
 1^ Ibid., JElfred's Dooms, 34. 
 
 ^' Ibid., Hlothsere's and Eadric's Dooms, 16. 
 
 ^' Ibid., Ine's Dooms, 25. 
 
 ^' Westgdialag, ed. Beauchet. C. A., TMuvcs bolkcsr, v. 
 
 20 /^/^. 
 
 2^ /&'(/., xvii. (i). This is said of a slave ; but, obviously, 
 the principle would apply to an animal. 
 
 22 Lex Ribuaria, xxxiii. i. Westg'dtalag, ed. Beauchet. 
 C. A,, ThiiivcR bolkcer, xii. (i). 
 
 ^^ Lex Salica, ed. Hessels, xxxvii. (2). The rule of the 
 Westgotalag is that the accused party finds a surety {taK). 
 Cf. C. A., ThiuvcR bolkcer, viii. (i). 
 
 2* WestgStalag, ed. Beauchet. C. A., Thiuvce bolkar, xix. 
 
 ^^ Lex Ribuaria, xxxiii. (4). 
 
 2^ Westgotalag, ed. Beauchet. C. A., Thiuvce bolkcer, viii. 
 (I) § I. 
 
 2' On this subject, see Holmes, The Common Law, pp. 165, 
 166, and Pollock and Maitland, History of English Law, 
 vol. ii. pp. 152-157. 
 
 2' Bracton, De Legibus et Consuetudinibus Anglice, Bk. III. 
 3> §4- 
 
 ^' Lex Salica, ed. Hessels, xiv. (6). 
 
 3" Ibid., xlv. (i) and (2). 
 
 3^ TJ/if., Glossarial Notes, § 222. 
 
 32 /&V., xiv. (6), and Kern's notes. 
 
 33 Lydekini Excerpta, ed. Beauchet, § 114. 
 3* Schmid, op. cit., Ine's Dooms, 20. 
 
 3' Leges Langobardorum, Liutprand, 134. 
 3^ Ibid.; see rest of Title. 
 
 3' Lex Salica, ed. Hessels, xiv. (4). Leges Langobardomm, 
 Rothar, 177. 
 
 35 Ibid., xlv. (3). 
 
 3' Schmid, op. cit, Alfred's Dooms, 37. 
 
 *» Westgotalag, zA.'Bea.vidciet. Q. K.,Jordth(er bolkcer, '\\. 
 
VI.] POSSESS/ON AND PROPERTY. 243 
 
 " Schmid, op. at., Cnut's Dooms, ii. 79. 
 
 ^2 Ibid., ^thelred's Dooms, iii. 3. 
 
 *^ Lex Jiibtiaria, lix. (i). 
 
 ** Lex Saxonum, 62. 
 
 *° Westgotalag, ed. Beauchet. C. A., Jordthxr bolkcsr, 
 iii. (i). 
 
 *' Zifjc Alamaimorum, I. (i) and (2). 
 
 *' Capitulary of 818, cap. 6. Boretius, vol. i. p. 282. 
 
 *8 Ibid. 
 
 *' Stiernhook, De Jure Sveonum et Gothorum, Bk. II. cap. v. 
 
 ^° Lex Baiuwariorum, xvii. (Text I.). The whole learning 
 of essarts is most valuable in this connection. 
 
 ^^ Schmid, op. cit., Ine's Dooms, 40. 
 
 " Ibid., 42. 
 
 ^3 Westgotalag, ed. Beauchet. C. A., Jordthmr bolkar, 
 xiv. (i). 
 
 ^* Lydekini Annotationes, ed. Beauchet, § 139. 
 
 *^ Beauchet, <?/. «V., p. 231, notes. 
 
 ^^ Schmid, op. cit., Ine's Dooms, 51. 
 
 ^' /&'if. By Wergilds, App. vii. 2, § 9. 
 
 ^^ Capitulary of 807, Mem. i. Boretius, vol. i. p. 134, 
 
 *' Schmid, op. cit., Ine's DoomSj 6, § 3, and see Vino- 
 gradoff, Villaiitagein Englaiid, p. 145. 
 
 ^^ Schmid, op. cit., Ine's Dooms, 6, § 3. 
 
 ^'^ Ordonnance of 13 14, Laurifere, vol. ii. p. 22. 
 
 *2 Somme Rurale, i. 84, ed. Charondas, p. 490. 
 
 '3 Viollet, Histoire du Droit Fran^ais, pp. 597-603. 
 
 ** Schroder, DeutscJie Rechtsgeschichte, p. 382. 
 
 «5 lUd., pp. 735, 736. 
 
 ** Westgotalag, ed. Beauchet. C. A., af mandrathi, xiv. (i). 
 
 ** Schmid, <7^. «>., ^thelstan's Dooms, ii. 2, 8. 
 
 *' Pollock and Maitland, History of English Law, vol i. 
 
 PP- 550-554. 
 
 '" Cf. the examples collected in Esmein, Les Centrals dans 
 le Trh Ancien Droit Francais, p. 93. 
 
 '^ Lex Salica, ed. Hessels, Iviii. 
 
 '^ Chilperici Edictum, 10. Boretius, vol. i. p, 10. 
 
244 
 
 LAW AND POLITICS. [CH. 
 
 '* Lex Ribuaria, Ixxxvii. 
 '* Lex Salica, ed, Hessels, Ivi. (6). 
 '^ Capitulary of 803, 6. Boretius, vol. i. p. 118. 
 '6 Capitulary of 818 (? 819), 11. Ibid., p. 283. 
 " Germania, 20, 32. And see Fustel de Coulanges, 
 Recherches sur Qmlques ProbUmes d'Histoire, ii. cap. 5. 
 '8 Schmid, op. cit. By Wergilds, App. vii. i. § 5. 
 " Leges Langobardoi-um, Liutprand, 13. 
 ^'' See Fustel de Coulanges, Recherches, ii. cap. 5. 
 " Westgotalag, ed. Beauchet. C. A., Arfthar bolkmr, i. (i). 
 *2 Lex Salica, ed. Hessels, lix. (5). 
 '3 Lex Ribuaria, Ivi. (4). 
 ** L^x Gundobada, xiv. (i). 
 
 85 Westgotalag, ed. Beauchet. C. R., arz/^ bolkmr, i. (i). 
 
 86 Z^^^j Langobardorum, Rothar, 158. 
 
 8' Chilperici Edictum, 3. Boretius, vol. i. p. 8. 
 
 88 QucesUones et Monita, § 4. Mon. Germ. fo. Leges, iv. 
 p. 590. 
 
 8^ Leges Langobardorum, Rothar, 181. 
 
 '" Beauchet, op. cit:, p. 171, n. 
 
 '1 Z^:v; i'a/zVa, ed. Hessels, Ix. The passage is specially 
 interesting to English readers ; for it finds its way, almost 
 verbatim, into the Leges Henrici Primi (Schmid, op. cit., App. 
 xxi. 88, § 13). 
 
 92 Leges Langobardorum, Liutprand, 2. 
 
 93 Ibid., tamquamfilii masculini. 
 9* lUd., Grimoald, 5. 
 
 95 Lex Gundobada, Ixxv. 
 
 96 Childeberti II., Decretio, cap. i. Boretius, vol. i. p. 15. 
 
 9' Lex Wisigothorum, iv. 2, § 8 (Canciani, v. p. 104). But 
 the rule only applies if there are no surviving brothers or 
 sisters of the deceased. 
 
 98 Maine, Ancient Law, ist. ed. p. 172. 
 
 99 Westgotalag, ed. Beauchet. C. A., Arfthmr bolkmr, x. (i). 
 "" Leges Langobardorum, Rothar, 172, 173. 
 
 1°^ Lex Salica, ed. Hessels, xlvi. 
 
 lo^ Leges Langobardorum, Rothar, 158-160. 
 
 Chilperici Edictum, cap. 3. Boretius, vol. i. p. 8. 
 
 103 
 
VI.] POSS£SS/0/\r AND PROPERTY. 245 
 
 1°* Lex Ribuaria, xlviii. 
 
 '^"^ Capitulare Legi Ribuarix Additum of 803, cap. 8. Bore- 
 tius, vol. i p. 118. 
 
 1°^ Capitulare Aquisgrafiense{%oi-^i^),ca.^.']. Ibid.,^. i-ji. 
 
 '^^ Lex Salica, ed. Hessels, xliv. (10). Leges Langobardorum, 
 Rothar, 158. 
 
 ^"^ L^ges Langobardorum, Liutprand, 135. 
 
 1"' See the interesting distinctions between theft, Moth, and 
 }iere, in Ine's Dooms, 13, § i (Schmid, op. cit.). 
 
246 LAW AND POLITICS. [CH. 
 
 CHAPTER VII. 
 
 CASTE AND CONTRACT. 
 
 Caste The view taken by the primitive Teutonic 
 
 society. 
 
 speculator of the constitution of society may be 
 gathered from the following passage, paraphrased 
 from the Elder Edda. 
 
 " Edda bare a child, dark of skin, and they 
 named him Thrall ; wrinkled was the skin of his 
 hands, clumsy his fingers, dirty his face, curved 
 his back. He it was who dug trenches, manured 
 the fields, and cut turves. From him is sprung 
 the race of serfs. Amma bare a child. They 
 called him Karl, the red and ruddy ; he learnt to 
 tame the kine, to make ploughs, to build houses, 
 to erect barns. From him is sprung the race of 
 farmers. Modir bare a child. They called him 
 Jarl ; yellow were his locks, clear his cheeks, 
 shining his eyes. He learnt to shake the spear, 
 to ride horses, to wield the sword ; God taught 
 him runes, bade him secure the inherited fields 
 
VII.] CASTE AND CONTRACT. 
 
 247 
 
 and the ancestral home. He was wise in runes ; 
 he learned to understand the cry of birds." ^ 
 
 This passage, though not very old, if we 
 reckon by centuries (it dates from about the 
 year 11 50), is very old from a comparative point 
 of view. Scandinavia in the twelfth century is 
 very primitive, more purely Teutonic, perhaps, 
 than any other country, because it has mixed 
 less with alien races. Moreover, the passage 
 itself betrays its archaic character. There are 
 but three classes of men to be accounted for. 
 The warrior-priest, the free farmer, the agricul- 
 tural serf It is a simple society, a society which 
 reappears in all the most primitive records of 
 Teutonic society. The etheling, the churl, and 
 the theow or Icet of the Anglo-Saxon ; ^ the 
 edhiling, the /riling, and the lazz of his conti- 
 nental brother ; ^ the nobilis, liber, and litus of the 
 Frisian Laws ; * all are merely different names for 
 the same social organization. Fighting, farming, 
 and labouring the ground ; these are the occu- 
 pations of Teutonic society as we first see it. 
 
 It will have been observed, moreover, that the a caste 
 
 society. 
 
 sole event which the Edda regards as deter- 
 mining the rank to which an individual shall 
 belong, is the event of birth. Social ranks are 
 
248 LAW AND POLITICS. [ch. 
 
 hereditary ; it is a system of caste. We know 
 nothing positively of the influences which first 
 determined the outlines of this hereditary 
 system. But it is not difficult to make a tolerably 
 The noble, safe conjecture. All gentile societies attribute 
 a special pre-eminence to the nominal founder 
 of the clan and his direct descendants. We 
 know the names of many of these noble families. 
 They are the Merowings of the Franks, the 
 Amali and Balthi of the Goths, the Billings of 
 the Saxons, the Agilolfings of the Bavarians, the 
 Gungings of the Lombards, the yEscings of the 
 Kentish men. The eponymous hero may simply 
 have been a successful adventurer, he may have 
 been an entirely mythical personage ; it is but 
 rarely that we can assure ourselves of his 
 actual existence. But the important fact to 
 notice is, that his descendants insist upon their 
 hereditary claim. Rothar, king of the Lombards, 
 in the prologue to his Laws, enumerates not only 
 his predecessors on the throne (who seem to have 
 been, in most cases, strangers in blood) ; but his 
 own personal pedigree. He informs us that he 
 is ex genere Harodos ; and he traces his descent 
 back for eleven generations, without, however, 
 reaching the eponymous Harod, or Haros.* 
 
VII.] CASTE AND CONTRACT. 249 
 
 With the middle class, the bondi, the churl, J^^ 
 
 farmer. 
 
 the /riling, we need have no difficulty. He 
 is the ordinary member of the Clan, not dis- 
 tinguished by any special relationship with 
 the Founder. The serf, or slave, for both The serf. 
 are recognized in early Teutonic society,* is, he 
 or his ancestors, the result of capture in war. 
 History cannot show us a time at which the cap- 
 tive was not deemed bound to serve his captor. 
 By the universal rules of war, his life was at the 
 disposal of his conqueror ; it was a mitigation of 
 ancient severity that he should be treated as a 
 domestic animal rather than as a wild beast. 
 The process of time still further alleviates his 
 lot ; the slave becomes a serf, a being between 
 a chattel and a man, bound to labour for his 
 master, but having something in the nature of 
 personality. With him ranks the man who, for 
 any reason, has fallen out of the Clan group, 
 or, being a stranger, has never belonged to it. 
 The shades of difference between one class of 
 servile persons and another, which the Leges 
 Barbarorum show us, are puzzling and doubt- 
 ful. The practice of formal manumission is just 
 coming in ; and, if it makes some things clearer, 
 it makes others more obscure. The enfranchised 
 
mission. 
 
 250 LAW AND POLITICS. [CH. 
 
 are, generally speaking, in the third rank of 
 society ; they are at least quasi-servile. But 
 different forms of manumission have different 
 results. The man who has been set free by the 
 spinning of the coin (Schatzwurf), the denarialis 
 regis of the Franks,' the fulcfreal of the 
 Lombards,* the folc-frei of the Anglo-Saxon 
 Dooms,' is in a better position than the privately 
 enfranchised person, the haldius of Lombardy, 
 the lidus of Germany. 
 ^.=^"?- But it will be observed that the practice of 
 
 manumission is, in any form, inconsistent with 
 the principles of hereditary caste. In a purely 
 caste society, no man chooses his position or has 
 it chosen for him. As he is born, so he lives 
 and dies. We are very far from saying that 
 the act of manumission is a Contract. What 
 we, in modern times, understand by a Con- 
 tract, is a promise or collection of promises, en- 
 forceable by law, to do or refrain from doing a 
 particular act or series of acts in the future. 
 The manumission is an act the fulfilment of 
 which is contemporary, or almost contemporary, 
 with its inception. It leaves no promise to be 
 fulfilled. Still, it is an act of free will ; a 
 deliberate departure from the existing order of 
 
VII.] CASTE AND CONTRACT. 251 
 
 things in favour of another which the doer of the 
 act prefers. It must be noted as one of the 
 earliest stages in the breakdown of a purely 
 caste society ; and we need not wonder that 
 Society places considerable restrictions on its 
 exercise. So far as we can see, no man can, 
 according to the Leges Barbarorum, by a merely 
 private act render a slave a full freeman. To 
 secure that result, there must be a solemn 
 ceremony, the approval of the king, the presence 
 of the assembly, the declaration by the Church. 
 But this very restriction tends to defeat its own 
 object ; for the privately manumitted person 
 is never treated by the law as purely servile. 
 He is ranked in a middle position between the 
 freeman and the slave ; and his existence tends 
 to obscure the old sharp lines of caste." 
 
 Two other very powerful influences also be- state 
 
 ■' ^ nobility. 
 
 gin to work at an early date. We have argued 
 that the Teutonic migrations were probably re- 
 sponsible for the creation of one of the most 
 powerful of all human institutions, the State ; 
 and we have recently had occasion to notice the 
 struggle carried on by the State to secure its 
 victory over older institutions. We can see the 
 same struggle going on in the organization of 
 
252 LAW AND POLITICS. [CH. 
 
 society. When we look carefully at the Leges 
 Barbarorum, we observe a significant fact. The 
 noble by blood is giving way before the official 
 nobility of the State. We find the noble by 
 blood only among those races which have not 
 come, or have only just come, under the dominion 
 of that State which has assumed the powerful 
 traditions of the Roman Empire, the kingdom of 
 the Franks. The noble by blood is to be found 
 among the Frisians, the Saxons, the Anglo- 
 Saxons, the Thuringians, the Bavarians. He 
 is not to be found among the Franks, the 
 Burgundians, the Goths, and the Lombards, who 
 have had a hard struggle to establish themselves 
 within the Empire. In the course of that struggle, 
 the new military institution, the State, has 
 become strong ; it has replaced the old nobility 
 of blood by a new nobility of service. These 
 are the Antrustions, the men in truste dominica 
 among the Franks, the proceres and seniores of 
 the East and West Goths, the optimates of the 
 Lombards. They are not a hereditary caste. 
 They take their rank exclusively from the royal 
 service; they bear decisive marks of their 
 character as servants of the king. The explana- 
 tion and establishment of this important fact 
 
VII.] CASTE AND CONTRACT. 253 
 
 is one of the numerous services which students 
 of medieval history owe to the late M. Fustel 
 de Coulanges. It would be a waste of time to 
 glean where he has garnered the harvest. They 
 who doubt the correctness of the position may 
 read for themselves the overwhelming proofs 
 adduced by M. Fustel." 
 
 But, it may be asked, how does this fact affect 
 the caste character of society among the early 
 Teutonic races ? Just in this way, that it 
 breaks in upon the principle of heredity, and 
 substitutes for it an exercise of free will. No 
 man was born an Antrustion or an optimas ; 
 at least there is no proof that the children of 
 such persons inherited their father's rank. On 
 the other hand, there is abundant proof that the 
 rank was acquired by something very like what 
 we should call a Contract. There is a formula 
 in the collection of Marculf which explains the 
 process completely ; and, as it is a formula and 
 not an isolated diploma, we may feel pretty sure 
 that the transaction was a common one. " Right 
 it is that they who promise us unviolated faith 
 {fides) should be protected by our aid. And 
 because such and such a loyal man {fidelis) in our 
 palace . . . with his arms in our hand has sworn 
 
254 
 
 LAW AND POLITICS. [CH. 
 
 to US trust and faith, therefore by this present 
 order we decree and command that from hence- 
 forth he be reckoned in the number of Antrustions. 
 And if any one shall dare to slay him, let him 
 know that he incurs a fine of six hundred 
 shillings for his wergild."" The rank of An- 
 trustion is conferred by an arrangement under 
 which the recipient renders himself the liegeman 
 of the king, and the latter confers on him official 
 rank. It is an early stage in the history of 
 feudalism; but, for our immediate purpose, it is 
 more important as a step towards the break- 
 down of hereditary caste. The Antrustion need 
 not even be a freeman, at least not a freeborn 
 man. The Lex Salica shows by direct inference 
 that the litus might become an Antrustion ; ^^ the 
 Recapitulatio, a commentary certainly as old as 
 the ninth century, speaks expressly of the 
 Romanus vel lidus in truste dominica, and the 
 puer regis in truste dominica}'^ The Roman and 
 the lidus are certainly manumitted serfs ; the 
 puer regis is, probably, a slave. It is curious to 
 note that these persons retain their relative 
 social rank even after admission to the royal 
 trust. The wergild of a freeman in the king's 
 service is, at least when the deed is concealed, 
 
VII.] CASTE AND CONTRACT. =55 
 
 eighteen hundred shillings ; that of the lidus nine 
 hundred." 
 
 Another influence, almost equally powerful, is cierfcs. 
 that of the Church. The Church, though a 
 foreign institution, wisely draws recruits from 
 Teutonic sources. Professing a religion which 
 regards all men as equal in the sight of Heaven, 
 she cannot well refuse to enrol men in her priest- 
 hood on account of social inferiority. We know, 
 as a matter of fact, that all ranks of men, from 
 serfs to kings, weary of the world, entered the 
 priesthood. Nor was the practice confined to 
 men. Women became nuns, took the veil, and 
 entered immediately into a new rank in life. 
 Perhaps the Edda was hasty in speaking of only 
 three castes. The position of the woman in 
 Mund is, surely, very like a caste. It comes by 
 birth and, according to primitive ideas, survives 
 till death. A woman may be transferred by 
 father to husband ; but she will still be in Mund. 
 Nay, if her husband dies, she will still be in a 
 similar position ; if she marries again, the second 
 husband must pay the modest sum of three 
 shillings and a penny as Reipus to the relatives 
 of the deceased, evidently as compensation for 
 loss of Mund.^* But the woman who takes the 
 
256 LAW AND POLITICS. [CH. 
 
 veil shakes off the Mund, and enters a new rank. 
 The Laws are full of provisions which show that 
 women are very anxious to avail themselves 
 of this opportunity. The frequency with which 
 they take the step is evidently shaking a caste 
 society to its foundations ; " and, of course, the 
 legislators, who are men, accuse them of taking 
 it with the worst of objects. ^^ With the general 
 acceptance of Christianity by the Teutonic peoples, 
 we have to note the appearance of a new order, 
 that of the cleric, which is not a caste, because it 
 is not hereditary, and because no one can be 
 forced into it against his will. The rapidity with 
 which it fills may partly account for the dis- 
 appearance of the blood nobility ; for, according 
 to gentile principles, the noble is both priest and 
 warrior. The professional cleric is a production 
 of comparatively late times. Neque Druides 
 habent, says Csesar, speaking of the Germans of 
 his day." 
 The We get our best picture of the organization of 
 
 wergild 
 
 system an early Tcutonic society, after these changes have 
 social taken place, from the extraordinarily minute and 
 
 organiza- r ' j 
 
 *'°"' complete Tables of Wergilds which the Leges 
 Barbarorum contain. In order that the wergild 
 system, upon which the whole peace of society 
 
VII.] CASTE AND CONTRACT. 257 
 
 depends, may be easily worked, it is necessary 
 that the value of every one's life and members 
 should be indisputably known, at least to the 
 elders who pronounce the Dooms. Any delay in 
 ascertaining this value would probably give rise 
 to an outbreak of the feud. Hence the elaborate 
 care with which nearly all the Leges Barbarorum 
 fix the penalties for the death or wounding of 
 members of every rank of society, as well as 
 for every other recognized offence. Hence the 
 reason that modern writers have described the 
 Laws, most unjustly, as mere Bussordnungen, or 
 lists of fines. In the Tables of Wergilds we 
 see exactly the relative importance attributed to 
 each rank of society — noble, official, freeman, 
 cleric, serf. 
 
 But if the wergild system is the result of the 
 organization of society into ranks, it is the starting- 
 point of the movement which is to revolutionize 
 that organization. The examination of its con- 
 sequences will lead us directly into the history of 
 Contract. 
 
 The wergild is, as we have seen, a bribe to the Nature 
 
 , . of the 
 
 injured man or his kin to forego the feud. But wergild. 
 it is only payment, not judgement, which stops 
 the feud ; if the offender cannot pay, the claimant 
 
 s 
 
2S8 LAW AND POLITICS. [CH. 
 
 proceeds with his vengeance. He seizes upon 
 the body of the offender or the debtor (for we 
 may now call him either), and kills him or, at 
 his option, binds him to slavery. Great difficul- 
 ties have been made over a famous clause of the 
 Twelve Tables, which appears to authorize the 
 creditors of an insolvent debtor to divide his 
 body amongst them. There is nothing in this 
 in the least inconsistent with early law. It is 
 hastily assumed that the insolvent debtor is an 
 unfortunate merchant, who has failed from no 
 fault of his own. This is an absurd anachronism. 
 The debtor is a man who has been guilty of some 
 offence (probably homicide), and has either con- 
 fessed the fact, or been found guilty by a tribunal 
 {(sris confessi rebusque jure iudicatus), and ordered 
 to pay the fine. He fails, after repeated oppor- 
 tunities, to find a surety or to pay. The right 
 of vengeance can no longer be denied to the kin. 
 They could have divided the wergild ; they now 
 divide the body, perhaps with a faint survival of 
 cannibal notions. Revenge may in early days 
 well have been sharpened by hunger, and the 
 blood feud system may have been a means of 
 distributing food as well as revenge. 
 
 But, in course of time, milder counsels prevail. 
 
VII.] CASTE AND CONTRACT. 259 
 
 The wergild system has, as we have seen, led 
 
 to the transfer of chattels. It is the custom to 
 
 pay the wergild by handing over goods. This The nam, 
 
 leads to the practice, so important in early law, 
 
 of the seizure of an offender's chattels by the , 
 
 unsatisfied claimant, the famous «^i%-T^Kich is ~~~7 -^ 
 
 simply the modern German na^mnen (to "take," 
 
 or " seize "). The Laws of Liutprand still know 
 
 the debt-slavery which plays such an important 
 
 part in early Roman history. If a man is a 
 
 spendthrift, or has made shipwreck of his affairs, 
 
 so that he has not wherewith to pay a fine, the 
 
 court {publicus) ought to hand him over as a 
 
 slave to the injured party. If the fine amounts 
 
 to twenty shillings or more, he becomes a slave 
 
 for life ; if for less, he serves till his labour has 
 
 paid the debt.^" Nay, the right of revenge is 
 
 still in the background. If, says the same code, 
 
 a thief cannot pay the fine, the court should hand 
 
 him over to the injured party, and he may do 
 
 with him what he will.^^ But the nam, or seizure 
 
 of goods, becomes the general remedy. The 
 
 Westgotalag allows the claimant the option of 
 
 getting the debtor banished.^^ 
 
 But this procedure is evidently open to grave 
 objections. Not only does it lead to violence and 
 
26o LAW AND POLITICS. [CH. 
 
 confusion where it is justified ; but there is the 
 
 very grave objection that it may be used in cases 
 
 Its in which the claim is really unfounded. Accord- 
 
 exercise 
 restricted, ingly, wc are not surprised to find attempts made 
 
 at an early date to set bounds to its exercise. 
 The older edition of the Westgotalag,^^ the Laws 
 of the Burgundians,^* and the Laws of the 
 Frisians,^^ apparently still recognize It as the 
 normal remedy, though the Burgundian Code 
 introduces a useful rule that slaves, horses, and 
 plough cattle are not to be seized if there are 
 other beasts. ^^ But the later edition of the 
 Westgotalag,^' the Anglo-Saxon Dooms,^' the 
 Lombard Codes,^' the Visigothic and the Bavarian 
 Laws,^" place more sweeping restrictions upon 
 the practice. These restrictions generally take 
 one of two forms. The seizure may only be 
 made by the claimant on his own authority in 
 certain specified cases, of which the most impor- 
 tant is the case of offenders caught red-handed, 
 or, which amounts to nearly the same thing, 
 of offences discovered and tracked within a 
 brief space after commission. Or there is the 
 requirement of some judicial formality as a 
 condition precedent to the exercise of the right. 
 We have seen, in examining the process of 
 
VJI.] CASTE AND CONTRACT. 261 
 
 Following the Trail, how the former restriction 
 works. The latter is the more important for 
 our immediate purpose. 
 
 The object of the delay is, of course, to give The 
 
 pledge as 
 
 the accused an opportunity of disproving the a defence. 
 charge. The Edict of Rothar forbids a claimant 
 to seize the goods of his debtor, till he has 
 " appealed " him, once, twice, and thrice. If he 
 ventures to do so, he pays nine-fold the value of 
 the thing taken.^^ Ine's Dooms compel a man 
 who seizes the goods of another before " bidding 
 him to right," to restore the goods seized and 
 pay a fine of thirty shillings.^^ The appropriate 
 Prankish formality goes by the name of Nextig 
 Anthigio?'^ Other Codes simply forbid seizure 
 except with the permission of a court.^* But 
 what if the right is duly exercised ? 
 
 It can hardly be doubted that, originally, the 
 goods seized were taken in compensation for the 
 claim. The Lex Salica shows us an elaborate 
 process in which the elders of the moot, the 
 rachimburgi, accompany the officer of justice to 
 the house of the debtor, and there put a value 
 upon his goods. The debtor may even, if he 
 pleases, name two representatives to share in the 
 task.^^ Our modern notion of selling goods taken 
 
262 LAW AND POLITICS. [CH. 
 
 in execution is yet very far off. The man who 
 sold goods which were notoriously another's 
 might find himself liable to a charge of theft. 
 But, in the Code of Rothar, we get a glimpse of 
 a new practice which is going to be very impor- 
 tant. We notice a significant change in the name 
 of the process. The old simple word nam, which 
 simply means to "seize," or "take," gives way, 
 almost universally, to the word pledge, and its 
 equivalents. The ordinary word in the Codes 
 which are drawn up in Latin is pignus ; to seize a 
 debtor's goods is pignerare eum, or, pignerare m 
 rebus suis. Teutonic equivalents are wed, pant. 
 The tak. The meaning of the expression becomes 
 
 pledge as a 
 
 security, clear from the passage in the Code of Rothar, to 
 which we have alluded. The seizer of the goods 
 must keep them in safety for a certain number of 
 days, varying with the distance between his resi- 
 dence and that of the debtor ; and, during that 
 time, they will be at the seizer's risk. If, at the 
 expiry of that time, the debtor has not liberated 
 them, they will stand at his risk.^° The goods 
 seized are no longer a payment, but a means of 
 securing payment or some other act. 
 
 What this act is, will depend on the circum- 
 stances. If the debtor acknowledges the claim 
 
VII.] CASTE AND CONTRACT. 263 
 
 and pays his debt, there is nothing further to be 
 done. The object of the proceedings has been 
 achieved. Should he, however, deny his liabiHty, 
 what is to be done ? Obviously, he must come 
 before the court, and let the case be tried. But 
 every piece of evidence that we possess shows 
 that men were exceedingly unwilling to come 
 into courts, especially in the character of 
 defendants. And one of the weaknesses of 
 primitive tribunals is, that they seem to possess 
 no direct means of compulsion. The clumsy 
 procedure of Summons detailed in the Lex 
 Salica,^' which, after a long and intricate course, 
 results in the outlawry of the contumacious 
 defendant, is a good illustration of this weakness. 
 The ultimate remedy is, no doubt, effectual 
 enough ; but, as it plays directly intio the hands 
 of the State, it is not likely to be looked upon 
 with favour by the popular tribunals. The 
 seizure of goods acts as a useful intermediary. 
 The accused cannot get his goods back without 
 appearing in court to answer the complaint. 
 The seizure of goods has become a Distress^ a 
 means of compelling a man to do a thing he does 
 not want to do. 
 
 But now, suppose the parties before the 
 
264 LAW AND POLITICS. [CH. 
 
 tribunal, and the accused to deny his liability. 
 Here we come upon one of the most characteristic 
 features of stncient procedure. It has been a 
 matter of great difficulty to get the accused before 
 the court ; if he is once allowed to depart, all this 
 work will be to do over again. Nay, it is even 
 very doubtful if he can be compelled to come 
 a second time, by any direct means. He has 
 attended the court and so fulfilled his liability. 
 When the doom [Urtkeil) has been pronounced, 
 the court will be functus officio. We remember 
 the penalty appointed to the man who raises a 
 plea which has been before discussed. 
 Security And yet, it is clear that, if the accused persists 
 
 for reap- 
 pearance, in his denial, the matter cannot be disposed of 
 
 all at once. The elders may pronounce the 
 
 Doom ; but they must also arrange for proof of 
 
 the accusation. It sounds odd to modern ears 
 
 to speak of the judgement as preceding the 
 
 trial ; and yet, if we use modern terms at all, 
 
 that is what we must say. The elders name the 
 
 fine appropriate to the offence charged ; and then 
 
 they declare that " the oath is nearer to A " 
 
 (the claimant) or " to B " (the accused). The 
 
 latter, unless he is a person of evil repute, is 
 
 usually entitled to the oath, i.e. to clear himself 
 
VII.] CASTE AND CONTRACT. 265 
 
 by oath-helpers, and, if he brings the appropriate 
 number, and they swear " with united hand and 
 mouth " that he is innocent, he will get off. 
 Where modern tribunals speak of the burden of 
 proof, ancient tribunals think of the right or 
 privilege of proof. And this generally belongs 
 to the accused ; since, as the Dooms of ^thelred 
 put it, " denial is ever stronger than assertion, 
 and claim is nearer to him who holds than to 
 him who demands." ^' The Westgotalag contains 
 minute rules for the award of the privilege of 
 proof (vitu).*" Later on, with the introduction of 
 the ordeal and the judicial combat, ideas change. 
 But, to return to our former difficulty. What The 
 
 surety. 
 
 is to be done to get the accused back into court, 
 or to compel him to pay the fine, if he fails in 
 his proof .-^ The answer that the Leges Bar- 
 barorum give is, that he must find a surety, a 
 man or men who will be responsible for his re- 
 appearance, and also for the payment of his fine, 
 if the proof goes against him. The liability of 
 the accused being dissolved by the appearance 
 in court and the delivery of the Doom, some 
 one must be found to take his place. We 
 can hardly doubt that, originally, the surety's 
 body was actually handed over to the creditor. 
 
266 LAW AND POLITICS. [CH. 
 
 The Germans of Tacitus were quite familiar with 
 the practice of voluntary dedication to slavery ; " 
 and there are traces of its application to the 
 practice of suretyship in later times. The Treaty 
 made by Charles the Great with the conquered 
 Saxons stipulates that no one shall by any means 
 dare to give another as pledge.*^ A Capitulary 
 of the year 803 speaks of the freeman who has 
 committed himself to the power of another as 
 a pledge.** 
 Deveiope- gut xho. simplicity of this primitive arrange- 
 suretyship. jj^g^t soon breaks down in favour of more 
 advanced ideas. The surety still places himself 
 in the power of the creditor ; but it is by a 
 symbolic procedure which, while it is clearly 
 intended to act as a transfer, probably leaves the 
 surety at liberty until default has actually been 
 made by the original debtor. Among the Franks, 
 this process was the exfestucatio, the handing 
 over of the rod, which is one of the best-known 
 symbols of authority ; ** among the Lombards, it 
 seems to have been the Gairethinx — the surety 
 is alluded to in close connection with this process 
 in the Laws of Rothar.*' Contemporary formulcB 
 and documents show that the ceremony was 
 frequently used. Expressions such as per 
 
VII.] CASTE AND CONTRACT. 267 
 
 festucam adrkamire, per festticam fidem facere, are 
 common.*^ But there seems to have been a 
 simpler alternative. If the surety accepted the 
 pledges belonging to the debtor from the hand 
 of the creditor, he thereby took upon himself the 
 liability attaching to them. To use the language 
 of the Laws : the debtor received back his 
 pledges by the hands of a surety.*' The reason- 
 ing is not difficult to follow. The pledge had 
 come to be looked upon as a means of securing 
 payment or, at least, appearance in court. The 
 liability seemed to be attached to the pledge. 
 The man who voluntarily assumed the pledge, 
 assumed the liability attaching to it. 
 
 By these means, the finding of a surety came 
 to be looked upon as the first duty of the accused. 
 T8 borge settanfor withertihtlan, to give a surety 
 against an unjust claim, is the expression of the 
 Anglo-Saxon Dooms.** The general direction 
 of the Alamannic Laws is, that a man who is sued 
 must, at the first summons, promise oath-helpers 
 (sacramentales) and find sureties {fidejussores), as 
 well as give a pledge to the presiding official for 
 his reappearance and payment.** The latter 
 clause is suggestive. By the giving of sureties, 
 the original debtor is released from liability to 
 
268 LAW AND POLITICS. [CH. 
 
 the claimant ; the surety has assumed the liability, 
 and it cannot be enforced against two distinct 
 persons." It would seem that even the surety 
 himself could only recover payment from the 
 original debtor by the indirect means of holding 
 his pledges ; until a Capitulary of Charles the 
 Great gave him a direct claim for damages." 
 But by taking his pledge, the Court binds the 
 principal debtor to performance of his duty. 
 Appear- Up to this poiut, the notion of Contract has 
 
 ance of , - . , , ^_, , . ^ i • i 
 
 Contract, not definitely appeared. 1 he claims for which 
 men give sureties are claims on delict — murder- 
 fines, theft- fines, assault-fines, and so on ; not 
 claims on contracts. The transactions of sale and 
 exchange [ceap and hwearf, as the Anglo-Saxon 
 Dooms have it), which, as we have seen, are 
 recognized as defences to the charge of theft, 
 are completed transactions, not promises to fulfil 
 obligations at a future date. Even the Antrus- 
 tion's homage and the priest's vow are much 
 more like self-surrenders than promises. At any 
 rate, they are not enforceable by action before 
 the popular tribunal ; there are more effectual 
 remedies open to the king and the Church. Still 
 less are the oaths of the oath-helpers, the sacra- 
 mentales of the Laws, in the nature of contracts. 
 
VII.] CASTE AND CONTRACT. 269 
 
 They are mere assertions, not promises. With 
 hand on the Holy Gospels or on the sword, the 
 oath-helpers swear that the accused did not 
 commit the deed,^^ There is no contract there. 
 Even where a man has had goods or land 
 delivered to him on loan {commendata, prcssHta), 
 he is not looked upon as being bound by contract 
 to return them. If he fails to do so, he is simply 
 treated as a thief ^^ 
 
 But the surety is in a different position. He Position 
 
 of the 
 
 has undertaken a liability which looks very much surety. 
 as if it were contractual. He has bound himself 
 to pay if the original debtor does not. The 
 names given to the arrangement by the Codes, 
 fides facta, fidejussio, are significant. So also is 
 the fact that the transaction was often accom- 
 panied by an oath, which may have been to 
 some extent promissory.^* Most significant of Extension 
 
 to the 
 
 all, we begin to get traces of a direct undertaking principal 
 of liability, without the interposition of a surety. 
 The famous Edict of Hilperic, which amends the 
 Lex Salica, declares that, if a man is called upon 
 to find a surety in court and cannot do so, he 
 may pass the festuca which he holds in his left 
 hand into his right, and so, apparently, constitute 
 himself his own surety.^' Two hundred years 
 
270 
 
 LAW AND POLITICS. [CH. 
 
 later, a Capitulary of Charles the Great provides 
 that if a freeman cannot pay a fine, or get 
 sureties, he may give himself in pledge to the 
 claimant, until he has paid the fine/^ 
 
 But we can hardly suppose that a law published 
 by the enlightened Charles is going back to the 
 days of actual debt slavery. We have seen, as 
 a matter of fact, that the same Charles strenu- 
 ously forbids this latter practice to his Saxon 
 subjects. The giving of the pledge, like the 
 giving of the festuca, has become a mere cere- 
 mony ; but a ceremony with which is bound up 
 the idea. of a liability incurred, the performance 
 of which is to redeem the pledge. We soon find 
 both the Festucal Oath and the Pledge used 
 outside the limits of the moot ; notably in those 
 processes of self-help which are still commenced 
 by the extra-judicial seizure, of which, as we 
 have said, the most important are the red-handed 
 capture and the Following of the Trail. In the 
 latter case, if the accused cannot produce his 
 warrantor, who corresponds closely with the oath- 
 helper of judicial proceedings, he makes faith 
 with six sureties that within fourteen days he will 
 clear himself on oath from the charge of theft, 
 and that he will give up the chattel unharmed." 
 
vn.] CASTE AND CONTRACT. 
 
 271 
 
 The Dooms of Eadmund provide that the (unin- 
 tentional) slayer shall send his representative 
 {/or-speca) to the kin of the dead man and give 
 pledge (wed) for the peace and payment of the 
 iver. This done, he must then find surety {bork) 
 for the latter undertaking, the original offender 
 having finally purchased his peace with the 
 pledge/* The last passage shows us that the 
 practice is not now confined to even quasi-judicial 
 procedure, such as that preliminary seizure of a 
 disputed object which will go down into the 
 Middle Ages as the Anefang. The giving of a 
 pledge has become the formal recognition of a 
 liability incurred ; it is but the shortest of steps 
 till we find it as the means of incurring a 
 liability. 
 
 The step is soon taken. The Code of Rothar The 
 
 pledge as 
 
 only knows the wadiatio, the pledging, as a a contract. 
 judicial arrangement, or, at most, as a step in 
 that process of extra-judicial seizure which is very 
 like legal procedure.*' But the Code of Liut- 
 prand, some seventy years younger, knows it as 
 a purely private arrangement, a means for securing 
 the enforcement of obligations. Quite general 
 is the rule. " Whatever man under the aegis of 
 our kingdom shall henceforth give pledges to 
 
272 LAW AND POLITICS. [CH. 
 
 any one, and produce a surety in the presence of 
 two or three witnesses, . . . must make it good 
 in all things.'"" One very famous application 
 of the rule soon makes itself conspicuous. This 
 is the betrothal, or contract to marry. Among 
 the Lombards of the eighth century, the Mund 
 is in full force ; and the marriage contract is not 
 made between the lady and her future husband, 
 but between the latter and the lady's mundius, 
 i.e. her father or other relative in whose hand she 
 is. It is a contract of sale and purchase ; but a 
 contract which is to be fulfilled in the future. The 
 parties are spunsatcs ; and, if either side breaks 
 off, he incurs a substantial penalty." Mean- 
 time, what is the process by which this arrange- 
 ment, technically known as Mita, is concluded ? 
 Obviously by the delivery of a ring, which the 
 Lombard Dooms call an arra^^ (perhaps, but 
 not quite certainly, borrowing from Roman Law), 
 but which the Anglo-Saxon Dooms call, in the 
 vernacular, a wed. The exchange of rings is 
 the wedding ; afterwards, the parties may be 
 affianced to each other in the presence of the 
 Church. At the present day, we reverse the 
 order of things ; but the engagement ring survives 
 to mark the ancient rule. Nor is the practice 
 
VII.] CASTE AND CONTRACT. 273 
 
 at all confined to the betrothal. Any contract 
 in Anglo-Saxon times is a wedding ; any breach 
 of contract is wed-bryce. "And first we teach," 
 say the Dooms of Alfred, " that every man hold 
 to his oath and his wed." But wed is, of course, 
 simply a pledge. The chief difficulty with which 
 the nascent institution has to struggle is, 
 apparently, its original connection with surety- 
 ship. In its origin, as we have seen, the pledge 
 has nothing to do with sureties. But, when the 
 pledge comes to be given, instead of taken, then 
 the accidents of procedure connect it with the 
 institution of suretyship, and people learn to 
 think of the two as inseparable. The idea is 
 further strengthened by the equally close connec- 
 tion between the two institutions in those few 
 cases in which seizure of a pledge is still allowed. 
 The man in whose hand a stolen beast is found 
 must produce a surety ; he may also have to give 
 up the beast as a pledge to a third party. The 
 Laws of Lombardy, from which we learn so 
 much of the developement of the pledge, always 
 speak of it in connection with suretyship. But 
 the Anglo-Saxon Dooms and the Prankish Laws 
 treat it, as we have seen, as an independent in- 
 stitution ; and a classical passage in the so-called 
 
 T 
 
274 LAW AND POLITICS. [CH. 
 
 Lex Romana Curiensis,^^ which probably dates 
 from the early ninth century, shows us that, 
 in south-eastern Germany, the purely symbolic 
 festuca has become the regular means of creating 
 a binding contract. ^^ But, even in this passage, a 
 reference to the surety suggests that the practice 
 of direct pledging is a novelty which has to be 
 explained. The Law is careful to say that the 
 parties may make a stipulation, without writing 
 and without sureties. As so often in similar 
 cases, the primitive mind has taken the accidental 
 for the essential, the symbol for the reality. 
 The Oath. Before passing, however, to the later history of 
 Contract, mention ought to be made of a cele- 
 brated controversy which denies to the Pledge 
 the credit of being the sole fountain head of the 
 great stream of contractual institutions. Many 
 authorities declare that, beside the Pledge, or 
 . Real Contract, there can be traced, in the Leges 
 Barbarorum, the Oath, or Formal Contract. The 
 controversy centres on the famous passage of 
 the Edict of Hilperic, which describes the process 
 of passing the rod from one hand to another 
 without the intervention of a third party. We 
 have previously assumed this to symbolize a 
 transfer of Mund, by which the debtor pledges 
 
vu.] CASTE AND CONTRACT. 
 
 275 
 
 himself to the creditor. But it is possible to treat 
 it as setting the right hand free, that it may be 
 raised for the purpose of taking the Oath. There 
 is no doubt that the Oath is older than the intro- 
 duction of Christianity. It was sworn with the 
 right hand uplifted and the left holding a weapon, 
 long before it was sworn on the Gospels ; and a 
 part of the older form survives in Scotland to the 
 present day. Unhappily, the corrupt state of 
 the text renders it impossible to say whether the 
 transfer described by the Edict of Hilperic took 
 place from right hand to left, or from left to 
 right. The latter reading would make powerfully, 
 though not decisively, against the theory of the 
 Oath. But certainly, under the Church's teach- 
 ing, the Oath assumed the character of a sacred 
 obligation. We remember the first of the 
 pious Alfred's Dooms. Certainly, also, there is 
 a strong probability that the Church enforced 
 the performance of Oaths by the threat of 
 excommunication, sometimes with the approval 
 of the lay tribunals. But there is no proof, it 
 would seem, that the Contract by Formal Words 
 ever formed part of Teutonic Law, in the sense 
 that it would be directly enforced by the courts 
 of the Clan, the Fief, or the State. The one 
 
276 LAW AND POLITICS. [CH. 
 
 contract which they recognize in early times is 
 
 the Contract by Pledge. 
 Deveiope- It will easily be understood that the incipient 
 the idea of Law of Contract has not surmounted all the 
 
 Contract. 
 
 weaknesses and dangers of childhood when it 
 has arrived at this stage. To have admitted 
 that any promise was enforceable if it were 
 accompanied by a pledge, would have been to 
 raise to its fullest height a difficulty which always 
 weighs upon primitive tribunals, the difficulty, 
 namely, of proof. A scientific law of evidence 
 comes very late in legal history. Primitive 
 tribunals know only formal and preappointed 
 methods of proof and disproof — the transaction 
 witnesses of the hundred and burgh, who speak 
 only to a special class of acts, the oath-helpers, 
 The who clear the character of the accused. The 
 contract, simplest and best proof of all, as it seems to us, 
 the proof by writing, is, of course, unknown in 
 primitive times ; and, even when writing becomes 
 known, it is long before it is used as a vehicle 
 for expressing contracts. So true is this, that 
 the Lombards, who, when they settled in Italy, 
 found the Roman inhabitants using written con- 
 tracts (the syngraphce and chirographa of late 
 Roman Law,) seem to have been utterly puzzled 
 
vn.] CASTE AND CONTRACT. 277 
 
 by them. We must not suppose that even the 
 syngrapha and the chirographum were written 
 contracts in our sense of the words ; but they 
 fulfilled the very important function of recording 
 or proving the existence of contracts. The 
 Lombards seem to have treated them, not as 
 proofs, but as pledges. The pledge having, as 
 we have seen, become a mere symbol, the 
 written document would serve as well as 
 anything else. A very learned German jurist. 
 Dr. Brunner, has established the interesting 
 fact that, among the Franks, in the parallel 
 case of conveyances of land, the blank parch- 
 ment upon which the record of the transaction 
 was ultimately to be written, was handed over, 
 with the turf, twig, glove, or other symbol, 
 to the intending purchaser, who subsequently 
 caused it to be inscribed with a record of 
 the proceedings." Sometimes even the inkpot 
 played a similar part.** Dr. Brunner has also 
 noticed facts which suggest that a similar idea 
 governed the case of Contracts. The early 
 contractual documents of Lombardy expressly 
 mention that the cartula is written, or, at least,- 
 " completed " by the notary post traditam, after 
 it has been handed over.** It is doubtful if the 
 
278 LAW AND POLITICS. [CH. 
 
 signatures of the parties were necessary. The 
 Laws of Liutprand speak of a man who has a 
 law suit in a distant city pledging himself by 
 messenger or by letter to appear and prosecute 
 his cause ; but the letter is not his own, it is 
 from his Schultheiss or judex, who is responsible 
 in damages if he (the claimant) does not appear 
 in accordance with his pledge.^' It is the old 
 idea of wed and borh, surviving under new forms. 
 A very remarkable passage in the same Code 
 expressly forbids, under a heavy penalty, the 
 writing of cartulcs " except according to the Law 
 of the Lombards or the Romans." *^ The legis- 
 lator is, apparently, frightened at the unlimited 
 prospect of a contractual age opened up by 
 the new fashion of pledges. But, of course, the 
 tide cannot be stayed. The document, which is 
 at first a mere pledge, becomes a record, finally 
 a regular method of proof The very passage 
 from which we have last quoted is obliged to 
 make an exception in favour of those persons 
 who deliberately wish to " descend from their 
 own law and make agreements and covenants 
 between themselves." It does not say that these 
 agreements shall be enforceable ; but it relieves 
 the parties from penal consequences. The idea 
 
vii.] CASTE AND CONTRACT. 279 
 
 of the Pledge lingers longest in the penalties so 
 frequently attached by medieval contracts to the 
 breach of their provisions. In time, however, 
 even this practice disappears, and the written 
 contract, through the Lombards, passes into 
 France and Germany proper, as the typical con- 
 tract of the Middle Ages, being finally made 
 statutory in the former country by the Ordon- 
 nance de Moulins in 1566.** 
 
 But the rule never reaches England. The England 
 
 does not 
 
 English Common Law does not know the written recognize. 
 contract ; such written contracts as exist in 
 England at the present day are the creation of 
 comparatively modern statute, and, even so, are 
 not written contracts, in the sense that writing is ■ 
 of itself sufficient to secure their validity. The 
 English Law of the Middle Ages does indeed 
 know the contract under seal ; but this has a 
 different origin. It is the contract made in court, 
 or, at least, in the presence of an official who can 
 testify to its genuineness ; for the seal is a 
 symbol of public authority, which, in the days of 
 feudalism, has got into private hands. Feudalism 
 is so weak in England, that this fact is soon 
 forgotten ; but in France the seal is long the 
 exclusive privilege of the seigneur. The private 
 
28o LAW AND POLITICS. [CH. 
 
 person cannot use a seal ; he must get his con- 
 tract sealed by the bailiff of the lord "under 
 whom he is couchant and levant." '" 
 The One other method of proof, perhaps the most 
 
 witnessed _ _ ... 
 
 contract, natural of all, remains to be noticed. This is 
 the proof by witnesses who were present at the 
 making of the alleged contract. There is 
 abundant beginning for this institution, in the 
 transaction witnesses so often mentioned, and in 
 the sureties who, as we have seen, were so closely 
 connected with the early contract by pledge. At 
 one time it seems to have been the rule, that the 
 
 The ^ offer of witnesses was a necessary preliminary to 
 every attempt to enforce a contract, as well as 
 in other cases ; and the name given to these 
 witnesses by the French medieval Custumals, 
 les garants, is particularly significant. But, 
 again, the defective machinery of the popular 
 tribunals blocks the way. The defendant may 
 disprove the claim by a word for word denial, a 
 twertutnay, backed by a greater number of oaths 
 than those which the claimant offers. Cross- 
 examination is unknown. In the royal and 
 baronial courts, at least in serious cases, the 
 defendant may challenge the claimant's witnesses 
 to battle. In the thirteenth century books, the 
 
 'suit." 
 
VII.] CASTE AND CONTRACT. 281 
 
 Saxon Mirror and the Coutumes de Beauvoisis, 
 we find it said that, unless the contract has 
 been partly performed, even the production of 
 witnesses will not do more than put the de- 
 fendant to his deresne or clearing oath. Such 
 a claim is mere sormise, a " try on," as modern 
 slang would put it." In England the " suit " 
 disappears entirely before the Trial by Jury, 
 where the jurors speak to their own knowledge, 
 and rely on any evidence they please.'^ 
 
 It would seem, then, that to England, where The 
 
 ' ^ English 
 
 the Jury is unfettered by rules of proof, we must p^°^°' 
 look for an original theory of Contract. And we 
 are not disappointed. The doctrine of English 
 law on the subject of "simple contract," i.e. 
 contract not proved by record or sealed docu- 
 ment. Is unique and interesting. It can be told 
 in a few words. 
 
 If the student searches the Regisitrum Brevium, 
 or Fitzherbert's Treatise on the Nature of Writs, 
 he will find no writ which is framed for the 
 direct purpose of enforcing a contract, except, of 
 course, the writ of Covenant, which only applies 
 to contracts under seal. Glanville, in fact, tells 
 us that the king's courts are not in the habit 
 of enforcing private covenants. Perhaps the 
 
282 LAW AND POLITICS. [ch. 
 
 Church courts may, but they can only use 
 spiritual penalties; perhaps the popular courts 
 may, but they soon almost entirely disappear.'^ 
 It looks as though England were going to fail 
 entirely in one of the most important branches 
 of legal developement. 
 Trespass But, though there is no writ of simple contract, 
 
 on the 
 
 Case. there is, after the year 1285,'* a very useful writ 
 of Case, or Trespass on the Case. Its orbit is 
 vague ; it may be used to cover any set of facts 
 in which a plaintiff has suffered damage from an 
 act which can be made to look like a trespass. 
 Very gradually, the Courts come to admit that if 
 
 Assumpsit, a man has undertaken [assumpsit) to do a thing 
 upon another's goods, or body, and does it badly, 
 the damage which ensues will be in the nature 
 of damage by trespass. At first, this notion 
 seems to apply only to cases in which the under- 
 taker is a person possessing special skill. If a 
 smith undertakes to shoe a horse, and lames it, if 
 a surgeon undertakes to amputate a limb and 
 mauls it, he is liable in Trespass on the Case. 
 The argument soon gets extended beyond these 
 limits. As the different ranks of society become 
 less sharply distinguished, the liability attaches 
 to any person who undertakes a work, and 
 
vil.] CASTE AND CONTRACT. 283 
 
 negligently performs it, so that the plaintiff 
 suffers damage. The gist of the action is still, 
 clearly, the wrong ; that, and the consequent 
 damage to the plaintiff. But, after a sharp 
 struggle, the Courts extend the doctrine from 
 misfeasance to non-feasance. The man who 
 undertakes a work and then fails entirely to 
 perform it, is just as guilty of a wrong as the 
 man who commences the work and does it badly. 
 The damage to the other party may be just as 
 great. The first half of the fifteenth century sees 
 this important change ; when it has been accom- 
 plished, English Law has a new and, apparently, 
 very elastic theory of contract. The doctrine is, 
 that any undertaking, no matter how made, will, 
 if badly performed or not performed at all, give 
 rise to an action for damages. This action will 
 be, in form, an action of Trespass till the middle 
 of the nineteenth century ; but, in reality, it will 
 be an action to enforce a simple contract. No 
 special forms of undertaking are required, no 
 writing, no fixed number of witnesses, no pledge. 
 If the jury are satisfied that the defendant 
 undertook (emprist sur lui, assumpsit) that he 
 failed to perform, and that the plaintiff suffered 
 damage, there will be no enquiry as to forms. 
 
384 J^AW AND POLITICS. [CH. 
 
 Considera- But One enquiry there will be, and it is a 
 
 tion. ^ •' 
 
 somewhat curious one, though to a commercial 
 society it seems natural enough. The Court will 
 ask — What did the plaintiff give the defendant 
 in return for his undertaking ? This is the 
 famous doctrine of Consideration, one of the many 
 unique peculiarities of English Law. The origin 
 of the term and of the doctrine are alike obscure ; 
 they make their appearance along with the action 
 of Assumpsit, as an integral part of it. The 
 name is a little younger than the doctrine ; we 
 do not get the name Consideration, in its tech- 
 nical sense, till the reign of Henry VIII. But 
 the doctrine is coeval with the full recognition 
 of the Action of Assumpsit ; it may be said to 
 date specifically from the year 1425.'' It is 
 obviously connected with a much older doctrine 
 of quid pro quo, a doctrine appropriate, not to 
 the Action of Assumpsit, but to the Action of 
 Debt. This, in its origin, supposes a man 
 bringing an action for non-return of articles 
 bailed to him, and would have been an action 
 in rem, but for the old Teutonic doctrine of 
 Hand muss Hand wahren. In such an action, 
 it was natural to ask the plaintiff what the 
 defendant had received, that he should be called 
 
VII.] CASTE AND CONTRACT. 285 
 
 Upon to pay for its non-return ; and, apparently, 
 the judges, somewhat frightened at the unlimited 
 vista opened up by the theory of assumpsit, 
 introduced a similar doctrine into that action. 
 But, most fortunately, the " tortious " character of 
 the latter proceeding expanded the doctrine of 
 quid pro quo in a very important way. The 
 gist of assumpsit is damage to the plaintiff; 
 the defendant may have gained some advantage 
 by neglecting his undertaking, but that is not 
 the point. He may be simply a fool, who is 
 neglecting his own interests. And so we find 
 it gradually settled, that loss to the plaintiff is 
 Consideration, equally with advantage to the 
 defendant. But this time it is loss suffered by 
 entering into the undertaking ; not loss resulting 
 from its breach, though the latter will still be 
 the measure of damages. From these simple 
 beginnings, the doctrine of Consideration, worked 
 out with infinite subtlety by generations of 
 English lawyers, becomes an integral part of the 
 Law of Contract. It is not a mere matter of 
 proof, like the writing and the witnesses of Con- 
 tinental contracts ; an agreement may be never 
 so clearly proved, by writing or witnesses, but, 
 if it was not made upon Consideration, it is not 
 
286 LAW AND POLITICS. [CH. 
 
 a binding contract. All kinds of suggestions 
 as to the origin of the doctrine have been made. 
 The most familiar is, that it is an adaptation of 
 the Roman doctrine of causa, borrowed from those 
 ecclesiastical and quasi-ecclesiastical courts, whose 
 jurisdiction in the earlier stages of Contract Law 
 we have before had occasion to notice. But 
 there is little or no evidence to support such 
 a view. "Cause" and "Consideration" are, in 
 fact, contrasted with great effect in a famous little 
 book, entitled Doctor and Student, which first 
 made its appearance about 1530, just when the 
 new doctrine of Consideration was becoming 
 prominent.'^ A still more remote origin is 
 alleged, in the Launegild, or loan-money, of 
 Lombard Law, which, it is known, possesses 
 many striking affinities with the English system. 
 But the Consideration seems to be a purely 
 native idiosyncrasy. It is certainly not the 
 pledge of the old Teutonic contract, for the simple 
 reason that the pledge passed from the debtor 
 to the creditor, while the Consideration must 
 " move " from the creditor to the debtor. The 
 ancient pledge survives in the " God's penny " of 
 the Middle Ages, the "Queen's shilling" of the 
 modern enlistment contract, and has quite a 
 
VII.] CASTE AND CONTRACT. 287 
 
 different history. Likewise, it is not the "part 
 performance" of the Saxon Mirror and Beau- 
 manoir ; for, from the very first, Consideration 
 might consist merely of a promise. Still less 
 is it a matter of proof; the Consideration may 
 be promised by word of mouth, or be gathered 
 from the circumstances. These are the Con- 
 tinental theories of Contract, and it is interesting 
 to note that, after having been recognized by 
 Glanville in the single case of Sale, they have, 
 apparently, disappeared before the influence of 
 the doctrine of Uses. If I " bargain and sell " 
 specific goods to C, by mere word of mouth, no 
 conditions being made about payment, the pro- 
 perty in the goods passes at once to C. That is 
 still the doctrine of English Law in petty sales. 
 But the older doctrine is revived for heavier cases 
 by the famous Statute of Frauds, passed in the 
 year 1677. By that statute, no contract for the 
 sale of goods for the price of ;^ 10 is to be valid 
 unless either (i) the buyer shall accept part of 
 the goods so sold, and actually receive the same, 
 or pay part of the price — this is the " part per- 
 formance " of Beaumanoir, or (2) give something 
 in earnest to bind the bargain — this is the " God's 
 penny " or pledge, or (3) that some memorandum 
 
288 LAW AND POLITICS. [CH. 
 
 in writing of the transaction be made and signed. 
 Certain other kinds of contracts must always be 
 evidenced by writing, and this is a real inno- 
 vation. But, it will be observed, the Statute in 
 no way diminishes the necessity for the exist- 
 ence of Consideration in every unsealed contract. 
 In fact, when the Courts come to define the 
 contents of the written memorandum which the 
 statute requires in various cases, they will say 
 that a statement of the Consideration must be 
 one of them, for Consideration is an integral part 
 of every unsealed contract. 
 Summary Xo sum up our loug story of the origin and 
 History of growth of Contract. Contract begins, in Teutonic 
 Law, with the staying of the blood feud. A 
 man buys the peace by depositing a pledge, and 
 finding sureties to guarantee the payment of the 
 fine or the disproof of the charge. He redeems 
 the pledge and frees the sureties, by performing 
 his duty. The practice survives, in a mock 
 form, in the pretty children's game of Forfeits. 
 The offender deposits an article in the custody 
 of an older person, who represents the primi- 
 tive tribunal, or of the offended party, and, 
 afterwards, redeems it by the performance of a 
 penalty imposed by a blindfolded arbitrator, who 
 
VII.] CASTE AND CONTRACT. 289 
 
 represents the impartial Justice of the Law. In 
 more solemn form it survives in the Recogni- 
 zance or Record Contract, by which a person 
 whose reappearance is desired is compelled to 
 acknowledge a liability to pay a substantial sum 
 if he fails to reappear, and, usually, to find 
 sureties who will acknowledge a similar liability. 
 The transfer of the rod, the symbolic pledge, 
 from one hand of the accused to the other, is 
 the " taking a man's own recognizances " of the 
 present day, the Selbstburgschaft of German 
 Law. This step helps powerfully to rid the 
 incipient institution of Contract of the encum- 
 brance of suretyship, which, from historical 
 causes, seems, at first, to be inseparable from it. 
 When this point has been gained, the liability 
 of the principal debtor becomes the conspicuous 
 feature in the transaction ; and it is argued that 
 this liability may be undertaken without the inter- 
 vention of a tribunal, if the proper solemnity of 
 pledge, which has by this time become, for most 
 cases, a mere symbol, is retained. The notion 
 is strengthened by the survival of those extra- 
 judicial proceedings, the Following the Trail, the 
 seizure of trespassing cattle (the Akernam of 
 Sweden), which result in the constitution of a 
 
290 LAW AND POLITICS. [ch. 
 
 pledge between the accused and the injured 
 party. Gradually it becomes accepted that a 
 man can bind himself to perform any obligation 
 by the delivery of a pledge. 
 
 But here legal procedure creates a difficulty. 
 Men may make agreements if they like, but the 
 Courts will not enforce them unless they can be 
 proved in some orthodox way. Various rules 
 are adopted. Some tribunals require proof by 
 witnesses, others by writing, others by public 
 testimony evidenced by seal ; others consider 
 part performance as evidence of the terms of 
 the arrangement. The pledge is merely a sign 
 that an arrangement was made ; it gives us no 
 help in ascertaining its terms. English Law, 
 exceedingly lax in the matter of proof, alone 
 adds an essential to the constitution of the 
 Contract. There must be mutuality ; if A is to 
 hold B to his promise, he must show that he too 
 incurred a detriment by the arrangement. But 
 no special form of proof is required in England, 
 till the Statute of Frauds introduces foreign rules. 
 
 Thus, briefly, is it that the Law of Contract 
 makes its appearance to revolutionize society. 
 By means of it, the old caste organization will 
 be broken down ; a man's position will no longer 
 
VII.] CASTE AND CONTRACT. 291 
 
 be that to which he was born, but that which he 
 acquires by the exercise of his own free will. It 
 is hard to say who or what is responsible for its 
 developement. It begins with popular Justice, 
 and is favoured by the State as tending to 
 maintain the Peace. It is also largely used by 
 the State as a means of breaking up the old 
 gentile organization. The kindred are replaced 
 by the lord and the borh, both of whom are, in 
 a sense, creatures of Contract. But it cannot 
 be supposed that the institution is favoured by 
 the Clan, whose caste principles it defies ; and 
 we have seen a distinct inclination on the part 
 of the State tribunals to put limits to its adop- 
 tion. This attitude of the State is to be amply 
 justified by history ; for politics are to be revolu- 
 tionized in theory by the Original Contract, 
 and in practice by the Bund of the Swiss cantons 
 and the Leges UpstalsbomiccB of the Netherland 
 counties. A new principle presents itself in 
 politics ; the principle that a State may be 
 founded on Contract. It is not likely that the 
 older type of State will accord a warm welcome 
 to its younger brother, the Republic of the Swiss 
 Cantons, the Republic of the United Netherlands. 
 In truth we look, for the future of Contract, not 
 
292 LAW AND POLITICS. [CH. 
 
 to the gentile organization of the Clan, nor to 
 the miHtary organization of the State, but to 
 some as yet undeveloped institution, which shall 
 supersede them both. 
 
 Notes to Chapter VII. 
 
 1 Ssemund's Edda, Rigsmal. (I have translated from the 
 Latin version; the metrical form may be seen in Thorpe's 
 edition. London, 1866.) 
 
 ^ Schmid, Gesetze der Angelsachsen, ^thelbirht's Dooms, 
 13, 14, 15, 16, 26; Wihtrsed's Dooms, 12, 13, 15, 21, etc. 
 
 ^ Nithard, Historix, iv. 2 (Mon. Germ. fol. SS. ii. p. 668). 
 In Latin form : nobiles, ingemii, liti {Capitulatio de Partibus 
 Saxonies, 15, 17, 20. Boretius, vol. i. p. 69). 
 
 * Lex Frisionum, i. 11. 
 
 ^ Leges Langobardorum, Rothar, Prologue. 
 
 ® E.g. Lex Frisiotmm, i. 1 1. 
 
 '' Lex Salica, ed. Hessels, xxvi. Lex Ribuaria, Ivii. 4. See 
 F. de Coulanges, UAlleu et le Domaine Rural, p. 329. 
 
 ' Leges Langobardorum, Rothar, 224. 
 
 ' Schmid, op. cit, Wihtrsed's Dooms, 8. 
 
 1" F. de Coulanges, L'Alleu, cap. xi. 
 
 ^^ La Monarchie Franque, cap. iv. 
 
 12 Marculf, i. 1 8 (ed. Zeumer, Mon. Germ. Leges, sect. v. p. 5 5). 
 
 ^* Lex Salica, ed. Hessels, xlii. 4. 
 
 ^* Recapitulatio Legis Salicm, ed. Hessels, A. 30, B. 33. 
 
 1^ Ibid., A. 31, 30. 
 
 ^^ Lex Salica, ed. Hessels, xliv. 
 
 1' Cf. Leges Langobardorum, Liutprand, loi, 102. 
 
 '^ Ibid., Aregis, 12. 
 
 1^ De Bello Gallico, vi. 21. 
 
 2" Leges Langobardorum, Liutprand, 152. 
 
 21 lUd, 80. 
 
 22 Westgotalag, ed. Beauchet. Additamenta, xii. (i). 
 
 23 lUd. C. A., Retlosce bolkar, vii. (i). 
 
vii.l CASTE AND CONTRACT. 293 
 
 ^* Lex Gundobada, xix. 3, cv. 
 
 2° Lex Frisionum, Additio sapienium, viii. 2. 
 
 ^* Lex Gundobada, cv. 
 
 ^' Ed. Beauchet. C. R., Ut girathcB bolkar, vi. 
 
 ^^ Schmid, op. cit, Ine's Dooms, 9, 46, § 2; Alfred's 
 Dooms, i. § 2. 
 
 ^' Leges Langobardorum, Rothar, 245, 246. 
 
 2° Lex Wisigothorum, v. 6, i (Canciani, v. 124); Lex 
 Baiuwariorum, xiii. i. 
 
 31 Z«ji?j' Langobardorum, Rothar, 245. 
 
 3^ Schmid, op. cit., Ine's Dooms, 9. 
 
 3* Ztf;c Salica, ed. Hessels, 1. (2). 
 
 3* Zac Baiuwariorum, xiii. i . Edictum Theoderici, cxxiii. 
 
 ^ Ed. Hessels, 1. (3). 
 
 3' Z^^« Langobardorum, Rothar, 256. 
 
 3' Ed. Hessels, i., Ivi. 
 
 3' -Z?* Alamannorum, xxxvi. (2), (3). 
 
 39 Schmid, »/. cit, ^thelred's Dooms, ii. 9, §§ 3, 4- 
 
 ■"' Ed. Beauchet. C. A., Jordthar bolkcer, v., vii., etc. 
 
 *i Germania, 8, 20. 
 
 *2 Capitulatio de Partibus Saxonim, 25. Boretius, vol. i. 
 p. 70. This passage may, however, possibly refer to the seizure 
 of a pledge from another person, 
 
 *3 Capitulare Legibus Additum of 803, 8. Ibid., p. 114. 
 
 ** Lex Ribuaria, xxx. 1. 
 
 *^ Z^^ijj' Langobardorum, Rothar, 172. 
 
 *^ See Esmein, i:tude sur les Cofitrats dans le tres anfien 
 Droit Fran^ais, 75-77. 
 
 *^ Leges Langobardorum, Liutprand, 38. 
 
 ■•^ Schmid, op. cit., Edward's Dooms, i. i, § 5. 
 
 *' L.ex Alamannorum, xxxvi. (2). 
 
 *" Lex Salica, ed. Hessels. Extravagantia, B. 6, "After 
 the debtor has given a pledge, he will be free." 
 
 " Capitulatio de Partibus Saxonice, 21. Boretius, vol. i. p. 70. 
 
 =^ Leges Langobardorum, Rothar, 359, 363. Lex Salica, ed. 
 Hessels, cii. (p. 413). 
 
 ^3 Leges Langobardorum, Rothar, 262. Lex Salica, ed. 
 Hessels, Hi. Extravagantia, A. ii. 
 
294 
 
 LAW AND POLITICS. [CH. 
 
 ^* Lex Ribuaria, xxxiii. 4; Iviii. 21 ; Ixvii. 2, etc. 
 
 ^^ Edictum Chilferid, 7. Boretius, vol. i. p. 9. 
 
 ^^ Capitulare Legi RibuaricB Additum of 803, 3. /(5/(^., p. 
 117. 
 
 °^ Z^^ Ribuaria, xxxiii. 4. 
 
 ^8 Schmid, (7^. «?., Edmund's Dooms, ii. 7. 
 
 °* Leges Langobardorum, Rothar, 360-362. 
 
 *" Ibid., Liutprand, 15. 
 
 *^ 7&Vf., 119. Lex Salica, ed. Hessels. Extravagantia, A. i. 
 
 *^ Zif^ifj Langobardorum, Liutprand, 30. 
 
 '^ Z^ji; Romana Curiensis, xxiv. 2. 
 
 ** Zur Rechtsgeschichte der romischen und germanischen 
 Urkunde, pp. 104-107, 262-265. 
 
 *^ Loersch and Schroder, Urkunden zur Geschichte des 
 Deutschen Privatrechtes, 2nd ed., No. 90. 
 
 ^* Brunner, op. cit., p. 99. 
 
 ^'' Leges Langobardorum, Liutprand, 26, 27. 
 
 *' Ibid., 91. 
 
 '' Ordonnance de Moulins, Art. liv., teste Esmein, op. cit., p. 
 213, note (s). 
 
 "• Esmein, op. cit, 43, citing Beaumanoir, xxxv. 18. The 
 reader will not confuse the contract under seal with the so- 
 called " contract of record," which does not require a seal, 
 because it is embodied in the court records, and, therefore, 
 indisputable. 
 
 ''^ Esmein, op. cit., pp. 45-55. 
 
 '2 See on this point. Pollock and Maitland, History of 
 English Law, vol. ii. 603-607, 634-637. 
 
 ''^ Glanville, De Legibus et Consuetudinibus Anglice, x. 8, 18. 
 It will be observed that the Pledge {vadium) is fully enforceable. 
 
 '* Le. from the passing of the Statute of Westminster the 
 Second, 13 Edw. I., c. 24, § 2, which authorized the Chancery 
 to frame new writs in consimili casu. 
 
 '^ On the whole subject, see my History of the Doctrine of 
 Consideration in English Law, cap. iii. ; and, on this point 
 especially, pp. 203, 204. 
 
 '^ Second Dialogue, capp. 23 and 24. 
 
VIII.J SUMMARY. 295 
 
 CHAPTER VIII. 
 
 SUMMARY. 
 
 So far back as records go, Law has always been Law now 
 
 a social 
 
 the expression of social force. Whatever views force. 
 men may have held as to the origin of those rules 
 of conduct which they have felt themselves bound 
 to follow, the force which has compelled their 
 obedience has been the approval or disapproval 
 of the community in which they have found them- 
 selves. That approval or disapproval may have 
 assumed different forms ; that community may 
 have been based on one or other of many different 
 principles, it may have been organized on one or 
 other of many different plans. But, so far back 
 as recorded history goes, the force at the back of 
 Law has always been a social force. 
 
 There is, however, not a little in the early May 
 
 originally 
 
 history of legfal ideas to raise a plausible con- ^^ve been 
 
 JO i- individual. 
 
 jecture that Law, at least in its rudimentary state, 
 is older than society. The non-gregarious animals 
 
296 LAW AND POLITICS. [CH. 
 
 are governed by a force to which we apply the 
 name of Instinct, but which, in its results, is 
 hardly to be distinguished from Law. We can 
 predict with almost perfect certainty that such an 
 animal will do certain acts, and will not do certain 
 other acts, far more confidently indeed than we 
 can make a similar assertion of human beings in 
 the best ordered society. And yet, it is certainly 
 not a social force of any kind which ensures this 
 regularity of conduct. It is, if we are to credit 
 those who are best entitled to be heard on such a 
 subject, the force of inherited experience. 
 Habit. Are we to say that Man, the highest of all 
 
 animals, never passed through this stage ? It 
 may be freely admitted that we have no direct 
 evidence of any pre-social condition of the human 
 race, of any period in which isolated individuals, 
 or even isolated pairs, represent the normal con- 
 dition of mankind. But there is nothing inherently 
 impossible in such a state of things, nothing at all 
 inconsistent with the recorded stages of human 
 history. Under such conditions Man may very 
 well have acquired, in precisely the same way as 
 the bear and the tiger, instinctive habits, which 
 afterwards developed into deliberate conduct. 
 May it not even be that similarity of habits is 
 
VIII.] SUMMARY. 297 
 
 the oldest social principle of the human race, the 
 original basis on which human societies were 
 formed ? 
 
 But, whatever may have been the cause, it is Becomes 
 
 custom. 
 
 quite clear that the effect of the association of 
 men in groups was, ultimately, to transmute the 
 habits of individuals into the customs of com- 
 munities, and to sanctify these customs by a force 
 wholly unknown to isolated individuals. The 
 weakness of the individual habit is, that it gives 
 way before caprice, before temptation, before 
 mere curiosity. No one can really be a law unto 
 himself ; however firmly he may resolve to follow 
 a certain rule, he will break it if he thinks fit. 
 But if he is a member of a community, whose 
 members all regard the rule as binding, the case 
 will be different. If he then breaks the rule, he The social 
 
 sanction. 
 
 must be prepared to face the disapproval of his 
 fellows. There may be no regular organization 
 for expressing this disapproval ; the form which 
 it will take may be uncertain. But we have no 
 reason to suppose that it will be ineffectual. At Taboo. 
 the very least, the offender will be " taboo " ; and 
 any one who has studied the effect of this process 
 in its modern and very mitigated form of "cutting," 
 or " sending to Coventry," may realize something 
 
298 LAW AND POLITICS. [CH. 
 
 of its efficacy in primitive times, when Man had 
 far less internal resources than he has now. A 
 well-arranged "taboo" would probably mean 
 speedy starvation for the victim. 
 Joint It is evident, then, that from the association of 
 
 responsi- . , 
 
 biiity. men mto groups we must date a new stage m the 
 evolution of Law. As Man's logical faculties 
 begin to develope, as Reason in its feebler forms 
 takes the place of Instinct, we observe a new idea 
 which is to give tremendous force to the influence 
 of Law. Arguing from the seen to the unseen, 
 unhappily familiar with disasters arising from 
 human agency — with murder, theft, incendiarism 
 — Man believes that the disasters for which no 
 human agency will account must be the work of 
 unseen beings, whose anger has, by some means or 
 another, been aroused. It may be only that they 
 are hungry; hunger always looms largely before 
 the consciousness of primitive Man. And so, 
 propitiatory sacrifices are offered, that the wrath 
 of the Unseen Powers may be appeased, as their 
 hunger abates. But it is equally likely to be that 
 some breach of habit or custom has aroused their 
 indignation. Man is aware that such breaches 
 are a frequent source of calamities arising from 
 human anger ; he draws an obvious inference 
 
VIII.] SUMMARY. 299 
 
 when he attributes to a similar cause the anger of 
 the Unseen Powers. 
 
 It is in this connection that social force 
 begins to work so powerfully on rudimentary 
 notions of Law, that from henceforth the history 
 of Law becomes inseparable from the history 
 of Society. Breach of habit by the member 
 of a social group is believed to be a source of 
 danger, not only to the individual who commits 
 it, but to the group of which he is a member ; for 
 the Unseen Powers cannot be expected to discri- 
 minate very accurately. The group which har- 
 bours an accursed man is itself accursed. The 
 offender must be got rid of. He will be lucky if 
 he is not sacrificed to propitiate the angry gods; 
 lucky if he gets off with " taboo." 
 
 There is nothing far-fetched in this theory. It 
 is both antecedently probable, and supported by 
 evidence. A community formed upon similarity 
 of habits would naturally resent any deviation 
 from habit by one of its members. It would 
 argue that a strange animal had got into its 
 midst ; and we know the fate that a strange beast 
 meets with in a herd of animals. The evidence 
 of the intense dislike which primitive commu- 
 nities show towards the man of strange ways is 
 
300 LAW AND POLITICS. [CH. 
 
 overwhelming. Tolerance is one of the very 
 latest virtues of civilization. 
 Law a It would appear, then, that the force exercised 
 
 conserva- 
 tive force, by Society, through the medium of Law, is a 
 
 wholly conservative force. It makes steadily for 
 
 a maintenance of the existing order. Enlightened 
 
 systems of Law contain provision, of course, for 
 
 change ; but this is only in very modern times, 
 
 and, be it respectfully suggested, with somewhat 
 
 doubtful sincerity. It may be questioned whether 
 
 there have been many legislators who were 
 
 willing to recognize that their work was only 
 
 temporary. The difficulty of procuring any 
 
 alteration in Law, expressed or unexpressed, is 
 
 proverbial. 
 
 The But Man is not wholly, even now, a social 
 
 revolu- • 1 Ti • 1 1 • -1 
 
 tionary animal. Besides his social, or conservative 
 
 instinct. 
 
 faculty, which leads him to follow the beaten 
 paths, to do as those around him are doing, he 
 has an inventive, or revolutionary faculty, which 
 leads him to assert his own individuality. In 
 the mass of mankind this faculty is but slightly 
 developed ; it shows itself only in those little 
 personal peculiarities which distinguish one 
 character from another. But in a few men it is 
 very powerful, and cannot be suppressed. It 
 
VIII.] SUMMARY. 301 
 
 then shows itself in proposals of change, whether 
 in religion, politics, domestic life, or other branch 
 of human economy. It meets, of course, with 
 profound opposition ; it awakens the primordial 
 distrust of novelty, which is so deep seated in 
 mankind. An immense majority of the changes 
 thus proposed perish in the proposal. This does 
 not, of course, necessarily mean that they are 
 unsound ; it merely means that they are un- 
 acceptable to the community. Only a few 
 commend themselves to the general acceptance, 
 and, ultimately, become Law. But what is most 
 important to observe is that, with rare and 
 peculiar exceptions, reforms are not first declared 
 to be Law and then adopted in practice. They 
 are first adopted in practice, and then declared to 
 be Law. The reader who has followed the 
 history of the Sources of Law contained in the 
 first two chapters of this book, will have noticed 
 that, until the full developement of the State in 
 the later Middle Ages, these Sources are not, 
 in form, either imperative or enacting. The 
 only substantial exception to this rule is to be 
 found in the Prankish Capitularies ; and we have 
 seen that they were of comparatively little 
 importance. Law is declared, it is not made ; it 
 
302 
 
 LAW AND POLITICS. [CH. 
 
 tion. 
 
 is a discovery, a statement of the conditions under 
 which, as wise men have shown, Hfe can be Hved, 
 not an arbitrary decree enacting that life shall be 
 lived in a particular way. 
 Law and But, if Law is a social force, it will be pro- 
 
 social 
 
 organiza- foundly affected by the character of the society 
 which administers it. And it may be suggested 
 that a failure to appreciate this fact is, to some 
 extent, responsible for the inadequacy of many of 
 the attempts which have been made to explain 
 the history and nature of Law. For one thing, 
 writers on Law have failed to distinguish between 
 the motives which have led to the formation of 
 human societies, and the principles upon which 
 those societies have been constituted. For 
 another, they have failed to realize the differ- 
 ences between the principles which have been 
 successively adopted as the basis of Society, and 
 the rivalries which have existed between them. 
 Upon the first point, a word or two will be 
 sufficient ; the latter requires a little fuller 
 treatment. 
 
 Societies may be originally formed, or may 
 continue to cohere, from all kinds of motives. 
 Fear, hunger, desire of wealth, religion, love of 
 knowledge, have all, in their turn, been powerful 
 
 Social 
 motives. 
 
vni.] SUMMARY. 303 
 
 factors in the formation of societies. But when 
 we have said that a society was formed as the 
 resuh of fear, with the object of defence against 
 external attack, we have said nothing as to the 
 principle upon which it is constituted. Is it a 
 purely voluntary association of casual units, or 
 a body forcibly held together by the control of 
 a ruler, or a group of relatives recognizing only 
 the tie of blood as the basis of membership ? No 
 doubt the motive of association will be the 
 decisive influence upon the conduct of the society ; 
 but the principle of association will be no less 
 important in affecting its organization. 
 
 In the course of our researches into Teutonic Social 
 
 principles. 
 
 history, we have observed three fundamental 
 social principles at work, of which all others 
 are mere varieties. These may be termed, 
 the Gentile, the Military, and the Contractual 
 principles. Each results in the formation of a 
 typical society — the Clan, the State, and the 
 Partnership. These typical societies are capable 
 of subdivision and of aggregation ; but, whether 
 they are subdivided or grouped with other 
 societies of a similar type, their character is 
 unmistakeable. The member of the Clan or any 
 one of its analogues is such because he is (actually 
 
304 
 
 LAW AND POLITICS. LCH. 
 
 or feignedly) descended from certain ancestors. 
 The member of the State is such because he owes 
 military obedience to its head. The member of 
 the Partnership is such because he has agreed to 
 become a member. All other societies fall under 
 one of these three types. The Monastery, the 
 Gild, the College, are of the gentile type, although, 
 of course, the gentile tie is a fictitious one. The 
 State, for reasons which will be obvious, has few 
 imitators, except in the monopolist associations 
 which it occasionally creates, and the Rings and 
 Trusts which assert their own power. The 
 Club, the Learned Association, the Voluntary 
 Committee, are, of course, of the partnership type. 
 The In point of historical sequence, these principles 
 
 prilicipie. develope in the order named. If, as has been 
 suggested, human society first began with an 
 association of beings united only by common 
 habits, we have no record of such a state of 
 things, at least in Teutonic history. When first 
 we meet the Teuton in history, he is the member 
 of a gentile society, a society based on the principle 
 of descent from a common series of ancestors. 
 This society is engaged in military, economic, 
 religious, and convivial pursuits ; the gentile bond 
 serves for all purposes of association. 
 
vni.] SUMMARY. 305 
 
 In this state of affairs, Law is the Custom of The 
 
 Custom of 
 
 the Clan. And the Custom of the Clan is simply the Ckn. 
 the unified expression of those similar habits 
 which, if our suggestion be sound, originally 
 brought the ancestors of the clan or group of clans 
 together. When the practice of ancestor-worship 
 has invested the deceased members of the clan 
 with a sacred character, a breach of custom will 
 be, not merely an anomaly, but a gross impiety, a 
 deviation from those practices which the gods, 
 when on earth, sanctified by their example. Not 
 only may the party primarily offended revenge 
 himself; but, probably, any member of the clan 
 may destroy the offender as unworthy of member- 
 ship, or sacrifice him to the angry gods. 
 
 We know little from Teutonic sources of the Features 
 
 of gentile 
 
 details of gentile history, but certain broad society. 
 features of gentile society can be detected from 
 survivals. Gentile society is not competitive, at Caste. 
 least within its own ranks. The place of each 
 member is allotted to him by the circumstances 
 of his birth ; he changes it only as the course of 
 time brings him to the position of an elder, and 
 removes him from the control of living ancestors. 
 There is not much encouragement for him to 
 accumulate flocks and herds ; for, supposing him 
 
 X 
 
3o5 LAW AND POLITICS. [CH. 
 
 to be a full Householder, his right to graze cattle 
 on the Clan pastures will probably be limited, 
 and. if he is a person in Mund, the fruit of his 
 labours will not be at his own disposal. It 
 is extremely improbable that gentile rules of 
 cultivation will allow him to acquire more than 
 
 Groups, the normal quantity of land. Again, gentile 
 society is composed of groups ; such organized 
 action as the Clan is capable of manifesting, is 
 applicable only to the Heads of Households ; no 
 interference between the House Father and the 
 members of his Household is tolerated. If the 
 Clan requires the services of the latter, it is of 
 the House Father that it must demand them. 
 He is responsible for their misdeeds to the Clan. 
 
 Exciu- Finally, the Clan is an exclusive body ; it will 
 
 siveness. 
 
 have nothing to do with a stranger in blood, 
 however desirable an acquisition from a utilitarian 
 point of view, except in extreme cases, and under 
 the elaborate disguise of Adoption. 
 Weakness But a society which discourages individual 
 
 of gentile . . 1.1 • t 
 
 principles. Competition, which only acts indirectly upon the 
 bulk of its members, which refuses to recruit its 
 ranks with new blood, contains within itself the 
 seeds of decay. However admirable as a peace 
 organization, it is no fighting machine. Where, 
 
VIII.] SUMMARY. yyj 
 
 as in ancient Germany or undiscovered America, 
 there is a practically boundless territory, in which 
 weaker communities can maintain themselves 
 without interference by more powerful rivals, the 
 Clan system may last indefinitely. But, so soon 
 as pressure begins to operate, its weakness 
 becomes apparent. Even against its own mem- 
 bers, the action of the Clan is feeble ; want of 
 executive power is a marked defect in all gentile 
 institutions. Against outside force, its action 
 is still less successful. An army in which age 
 and heredity are the titles to command, whose 
 members have never been accustomed to the 
 wholesome stimulus of competition, whose ranks 
 are not open to merit unless that merit happens 
 to be lodged in the descendants of a particular set 
 of ancestors, is an army doomed to destruction 
 so soon as it meets a force organized on more 
 effective principles. And so powerful a stimulant 
 of inventiveness is physical danger, that we are 
 able to see exactly how it produces the required 
 organ. The disasters of the Clan give rise to 
 the war chief with his band of followers, chosen 
 exclusively for their devotion and military ability. 
 After all, in fighting, the chief thing is to fight 
 well. 
 
3o8 LAW AND POLITICS. [CH 
 
 Earliest The war chief and his band, of whom we have 
 
 form of 
 
 the State such abundant evidence in early Teutonic history, 
 are the earliest form of the State. At first, no 
 doubt, they are considered as a temporary institu- 
 tion ; but successful institutions have a tendency to 
 become permanent. Victory brings a conscious- 
 ness of power, and a desire to use it. The war 
 chief and his band may carry their arms into new 
 territory, and settle down as conquerors upon an 
 enslaved population. More probably, they will 
 head a migration of the clans from which their 
 members are drawn, or constitute themselves 
 protectors of those clans in their ancient seats. 
 In any case, they will bring a new element into 
 social life, an element which stands, by its very 
 nature, in marked contrast with the older elements 
 which confront it. This is no fancy picture ; the 
 reader may be challenged to point out a single 
 example of a Teutonic State founded in any other 
 way, until the Swiss Bund and the Netherland 
 League introduce a new principle into politics. 
 
 State The two institutions, the Clan and the State, 
 
 principles. 
 
 stand thus face to face with each other. Lmked 
 together against external attack, they are pledged 
 to the deadliest internal warfare. We have seen 
 that the leading characteristics of the Clan are a 
 
VIII.] SUMMARY. 
 
 309 
 
 caste organization, a respect for the autonomy of 
 its constituent groups, and exclusiveness. The 
 principles of the State are precisely the oppo- 
 site — encouragement of individual ability by the 
 offer of splendid rewards, an insistence on ab- 
 solute and direct obedience by every one of its 
 members to its acknowledged head, and a willing- 
 ness to purchase ability wherever it can get it. 
 Institutions founded on such opposite principles Rivalry 
 
 between 
 
 can never exist peaceably together. By its st^t^ ^nd 
 very nature, the State becomes an aggressor 
 upon the province of the Clan. The Clan 
 conducts agriculture by a system of communal 
 groups ; the State replies, first, by setting up a 
 system of individual landowners, secondly, by 
 breaking down the communal system of the Clan. 
 The Clan reappears in an artificial form as the 
 Merchant or Craft Gild, with its fixed rules 
 to prevent competition, its insistence on that 
 apprenticeship which is the analogue of Adoption, 
 and its rigid exclusion of strangers. The State 
 does not rest until it has suppressed the gilds, 
 and brought trade and handicraft under its own 
 control. If the Catholic Church of the Middle 
 Ages resembles in its organization the State 
 rather than the Clan, the religious Orders are an 
 
310 LAW AND POLITICS. [CH. 
 
 almost complete reproduction of gentile ideas. 
 But they are the subject of unceasing jealousy on 
 the part of the State, which, in nearly all cases, 
 succeeds in destroying them. The declaration of 
 custom or Law is originally the work of the Clan. 
 The State first procures an authoritative state- 
 ment of this Custom by the gentile authorities, 
 and then, partly by bribery, partly by force, 
 assumes both the function of declaring and the 
 function of applying the law. In so doing, it 
 stamps Law with its own military character. Law 
 ceases to be, in theory, the discovery of wisdom 
 and piety ; it becomes, in form, the command of 
 an autocrat. How far the reality corresponds 
 with the arrogant assumption, we have seen much 
 reason to doubt. But an assumption, steadily 
 maintained, is on the way to become a reality. 
 The feudal The Struggle between State and Clan is long 
 
 com- 
 promise, and bitter ; and at first it looks as though the 
 
 State were going to fail. The epoch of jeudalism 
 
 marks the end of the first campaign ; and, on the 
 
 whole, the Fief, which is, evidently, a compromise 
 
 between State and Clan, seems to have more of 
 
 the Clan than of the State in its composition. 
 
 Sufficient attention has hardly been paid to 
 
 feudalism as the resultant of these two rival 
 
VIII.] SUMMARY. 3[i 
 
 principles of association ; but this seems to be its 
 
 true place in the philosophy of history. With the Final vic- 
 tory of the 
 revival of the State, however, in the tenth and state. 
 
 eleventh centuries, the struggle is recommenced ; 
 
 and, in the long run, as we have seen, the State 
 
 is victorious all along the line. 
 
 But, like a wise conqueror, the State has not But influ- 
 
 . . . . enced by 
 
 disdained to borrow from its defeated rival, gentile 
 
 ideas. 
 
 Gentile ideas spring from instincts deep-rooted in 
 humanity, and they cannot be entirely neglected. 
 No doubt that, so far as efficiency, pure and 
 simple, is concerned, the principles of the State 
 are sounder than the principles of the Clan. 
 Strenuous personal rivalry, guided by absolute 
 discipline, and recruited by external talent, will 
 prevail in any struggle against an institution 
 founded on respect for age and hereditary rights, 
 and exclusion of foreign ability. But respect for 
 age,' and heredity, and that preference for one's 
 own kin which has acquired the significant name 
 of " clannishness," are not easily got rid of, except 
 in times of extreme pressure, even by purely 
 political bodies. A State which recognizes the 
 existence of an hereditary legislature, which still 
 allows some of its offices to be disposed of by 
 " influence," and which treats the exclusion of 
 
312 
 
 LAW AND POLITICS. [CH. 
 
 alien immigrants as a practical question, can 
 hardly be said to have cut itself entirely free from 
 gentile ideas. Nor is it, perhaps, desirable that it 
 should. For, if gentile ideas do not make for 
 efficiency, at least they make for stability. If we 
 have been correct in our survey of medieval 
 history, the most successful State has been that 
 which has absorbed, instead of destroying, the 
 gentile organization with which it has been brought 
 into contact. 
 An objec- The Struggle between the State and the Clan 
 
 tion met. 
 
 is really the key to the internal politics of the 
 Middle Ages ; and its existence contributes to 
 medieval history that curious dualism, with its 
 inconsistencies and its oddities, which is to many 
 students the chief charm of the period. But some 
 will find it hard to accept the doctrine as anything 
 but a metaphor, or, at most, as a fanciful theory, 
 in spite of the fact that a similar struggle may be 
 seen writ large in the histories of non-Teutonic 
 peoples — in Grecian history, Roman history, Irish 
 history. The difficulty arises, no doubt, from the 
 want of a clear dividing line between the actors in 
 the great struggle. Objectors will urge that, in 
 certain periods, the inhabitants of a country are, 
 at the same time, members of clans and members 
 
VIII.] SUMMARY. 313 
 
 of the State, vassals of feudal seigneurs and 
 liegemen of the King. And that is unquestion- 
 ably true. Whilst, in the Middle Ages, there 
 are great classes which we can range definitely 
 on one side or other of the struggle, there are 
 likewise great classes of men who might be on 
 either. 
 
 But is this a real difficulty ? May not a man illustra- 
 tions. 
 
 be a member of two different institutions, and 
 yet, in time of rivalry, side with the one rather 
 than the other ? The House of Commons con- 
 tains many (perhaps too many) members who are 
 also influential members of railway companies. 
 Let us suppose, which is quite possible, that the 
 House of Commons is at feud with the majority 
 of the railway companies on a question of rates. 
 If the struggle becomes acute, each of such mem- 
 bers will find himself bound to take one side or 
 the other ; to support the power of the House of 
 Commons against the railway companies, qr that 
 of the railway companies against the House of 
 Commons. But, for a large number of students 
 of history, the difficulty can be removed still more 
 effectually by an appeal to the analogy of the 
 older English universities. 
 
 To such students it is perfectly well known 
 
314 LAW AND POLITICS. [CH. 
 
 that the average graduate of Oxford or Cambridge 
 is a member of two perfectly distinct, though 
 closely connected, bodies. He is a member of 
 his university, and a member of his college.. 
 These two bodies are organized in totally different 
 ways, their objects are different, though harmoni- 
 ous, their methods are utterly dissimilar. The 
 government of the University is partly in the 
 hands of the whole body of graduate members, 
 partly in those of resident graduates, partly in 
 those of an elective Council, partly in those of 
 officials appointed by them. The government of 
 the College is, with rare exceptions, in the hands 
 of its Fellows, and of officials appointed by them. 
 The objects of the University are, primarily, 
 educational, in the technical sense ; those of the 
 College, primarily, domestic or social. The Uni- 
 versity proceeds by methods which are, roughly 
 speaking, competitive ; it recognizes merit alone 
 in its awards. The College, while recognizing 
 merit, takes many other qualities into account, 
 and exercises a large discretion in dealing with 
 its members. 
 
 The relations between the university and the 
 colleges at Oxford and Cambridge are, happily, 
 so harmonious, that it requires an effort of the 
 
viil.] SUMMARY. 315 
 
 imagination to picture a struggle between them. 
 But it is a conceivable, though improbable hypo- 
 thesis, that there might some day arise within 
 the university a compact and powerful group of 
 men bent on destroying the collegiate system ; 
 and this, despite the fact that these men, or some 
 of them, might themselves be members of col- 
 leges. Let us suppose them to aim at dividing 
 the corporate property of the colleges among 
 the individual Fellows and Scholars, at insisting 
 that college offices and college livings should be 
 awarded according to some special standard of 
 merit and not according to seniority, at exacting 
 a solemn promulgation of college statutes and at 
 planting a university official in each college to 
 secure their enforcement, at refusing to recognize 
 the college as an intermediary between its 
 undergraduates and the university, in short, at 
 converting the colleges into local departments of 
 the university, dependent upon headquarters for 
 direction and support. In such a policy, though 
 highly improbable, there is nothing fantastic or 
 impossible, nothing that a body of able and 
 strong-willed men might not set themselves to 
 accomplish with reasonable hopes of success, pro- 
 vided only that external circumstances favoured 
 
316 LAW AND POLITICS. [CH. 
 
 their scheme. But such a policy would, of course, 
 provoke a struggle so intense, and so bitter, that 
 it would influence the whole of academic life. 
 Every question arising, almost every event, would 
 be found to be in some way connected with this 
 fundamental movement. Such, or something like 
 it, was the question at issue between the State 
 and the Clan ; the course of the struggle has been 
 traced in detail in the previous chapters of this 
 book. 
 Contract. In conclusion, it must be admitted that little 
 can safely be predicted of that important institu- 
 tion the growth of which has been sketched in 
 the immediately preceding chapter. It is certain 
 that the notion of Contract has made serious 
 inroads upon the older ideas of Law and Politics ; 
 few thinkers can doubt that it is destined to play 
 a yet greater part in social history. There are 
 already signs that it is regarded with fear and 
 dislike by older institutions ; and even the most 
 advanced advocates of change are found to look 
 with suspicion upon it, as an instrument capable 
 of wounding the hand which uses it. But that, 
 in some form or another, it will come into conflict 
 with the military notions upon which the great 
 majority of States are still founded, is tolerably 
 
VIll.] SUMMARY. 317 
 
 certain. The appeal ostensibly made to con- 
 tractual principles by the Southern States, in the 
 American Civil War, was not successful ; the sur- 
 render at Appomatox is a tremendous precedent 
 against the contractual doctrine in politics. But, 
 in its modified form of Compromise, the Contract 
 is daily doing a great work, even in the domain 
 of politics proper ; in other spheres of social life 
 its influence is, of course, enormous. And it is 
 not a little significant, from the point of view 
 which we have assumed, that one of the most 
 influential of English politicians should have made 
 a scientific study of the subject of Compromise, 
 with special reference to its function in the 
 conduct of political life. When an expert has 
 spoken, it behoves a theorist to keep silence. 
 
LIST OF PRINCIPAL SOURCES. 
 
 I. Leges Barbarorum. (Folk Laws.) 
 
 Lex Salica, ed. Hessels and Kern. London. 1880. 
 
 Lex Burgundionum. Monumenta Germanic Historica, Fo. 
 Leges, torn. iii. pp. 497-S78; and ibid., 4° Leges, sect. i. 
 torn. ii. pp. 1-122. 
 
 Lex Ribuaria. Ibid., Fo. Leges, torn. v. pp. 185-268. 
 
 Lex Wisigothorum, ed. Bluhme. Paris. 1847. 
 
 Leges Langobardorum. Mon. Germ. Fo. Leges, torn. iv. 
 pp. 1-225. 
 
 Lex Alamannorum. Ibid., torn. iii. pp. 1-182 ; and ibid., 4° 
 Leges, sect. i. torn. v. pp. 1-176. 
 
 Leges Baiuwariorum. Ibid., Fo. Leges, torn. iii. pp. 183- 
 496. 
 
 Lex Frisionum. Ibid., Fo. Leges, torn. iii. pp. 631-7 11. 
 
 Lex Thwingorum. Ibid., Fo. Leges, torn. v. pp. 103-144. 
 
 Lex Saxonum. Ibid., Fo. Leges, torn. v. pp. 1-102. 
 
 Lex Francorum Chamavorum. Ibid., Fo. Leges, torn. v. 
 pp. 269-276. 
 
 Leges Anglo-Saxonum, ed. Schmid {Die Gesetze der Angel- 
 sachsen). Leipzig. 1858. 
 
 [The earlier of these have also just appeared in Liebermann, 
 Die Gesetze der Angelsachsen. Halle. 1897-1898.] 
 
 Leges Sveonum, ed. Collin and Schlyter {Samling of Sveriges 
 gamlalagar). Stockholm and Lund. 1827-1877. 
 
 [The Westgbtalag has also been edited, with a French trans- 
 lation, by Beauchet. Paris. 18 94. J 
 
320 LIST OF PRINCIPAL SOURCES. 
 
 Leges Norvegorum, ed. Keyser, Munch, and Storm {Norges 
 gamle Love). Christiania. 1846-1895. 
 
 Leges Danoriim, ed. Kolderup-Rosenvinge {Samling of gamle 
 danske Love). 1821-1846. 
 
 [There does not appear to be any separate collection of 
 Icelandic Folk Laws ; but most of them will be found in the 
 Norwegian and Danish collections.] 
 
 2. Capitula. 
 
 Capitularia Regum Francorum. Mon. Germ. Fo. Leges, 
 torn. i. and ii. pp. 1-16, and 4° Leges, Sect. ii. tom. i. and ii. 
 Capitularia Regum Langobardorum. See Leges Langobard- 
 
 3. Canon Law. 
 
 Corpus Jtiris Cationici, &A. 'Fn&Sbtrg. Leipzig. 1879. Con- 
 taining — 
 
 1. Decretum Magistri Gratiani. 
 
 2 . Decretales Gregoiii Noni. 
 
 3. Constitutiones Bonifacii Octavi. (The " Sext.") 
 
 4. Constitutiones Clenientis Quinti. (The " Clementines.") 
 
 5. Extravagantes. 
 
 4. Roman Law. 
 
 Codex Theodosianus, ed. Hanel. Bonn. 1839-1842. 
 
 Lex Romana Wisigothorum ("Breviarium Alaricianum"), 
 ed. Hanel. 1849. 
 
 Edictum Theoderici. Mon. Germ. Fo. Leges, tom. v. pp. 
 145-179. 
 
 Lex Romana Bttrgundionum. Mon. Germ. Fo. Leges, tom. 
 iii. pp. 579-624, and 4° Leges, Sect. i. tom. ii. pp. 123-188. 
 
 Corpus Juris Romani Justinianei. Berlin. 1895. Con- 
 taining — 
 
 1. Institutiones, ed. P. Krueger. 
 
 2. Digesta, ed. Mommsen. 
 
 3. Codex Justinianus, ed. P. Krueger. 
 
 4. Novellce, ed. Schoell and Kroll. 
 
LIST OF PRINCIPAL SOURCES. 321 
 
 5. Statutes. 
 
 English : Statutes of the Realm from Magna Carta to the 
 end of the Reign of Qtieen Anne. 11 vols. 1810-1828. 
 
 Scottish : The Acts of the Parliaments of Scotland. 11 vols. 
 1814-1824. 
 
 German: Constitutiones et Acta Regiim Germanicorum. Mon. 
 Germ. Fo. Leges, tom. ii. pp. 16-582, and 4° Leges, Sect. iv. 
 torn. i. and ii. 
 
 Collectio Constitutionum Imperialium, ed. Goldast. 4 vols. 
 1609-1615. 
 
 Nem . . . Sammlung der Reichsabschiede, ed. Koch. 4 vols. 
 1747- 
 
 French : Ordonnances des rots de France de la troisilme race, 
 ed. Laurifere, etc. 21 vols. 1723-1849. 
 
 Spanish : Teatro de la Legislacion Universal de EsfaHa ef 
 Indias, ed. Lopez. 28 vols. 1791-1798. 
 
 [This edition also contains extracts from the other Sources 
 of Spanish Law, analytically arranged.] 
 
 Scandinavian. 
 
 Swedish: Diplomatarium Suecanum, Liljegren and Hilde- 
 brand. 1829-1878. 
 
 [Volume IL of Hadorph's-ffy»2-^r(?m/J(7r. Stockholm. 1674, 
 also contains statutes of later date than those given in 
 the Diplomatarium?^ 
 
 Norwegian : Diplomatarium Norvegicum, Lange and Unger. 
 12 vols. 1 848-1888. 
 
 [A good many of the older statutes will also be found 
 in Keyser and Munch, Norges gamle Love. Christiania. 
 1846-1895.] 
 
 Danish : Aarsberetninger fra del kongelige Geheimearchiv , 
 vol. V. 
 
 Corpus Constitutionum Danix, Secher. 1887. 
 
 6. Text-books. 
 
 A. England. 
 
 Judicia Civitatis Lundonice, in Schmid, Gesetze der Angel- 
 sachsen, 2nd ed., pp. 156-172. 
 
 Y 
 
322 LIST OF PRINCIPAL SOURCES. 
 
 Reditudines Singularum Fersonatvm. Ibid., pp. 370-382. 
 Leges Edwardi Confessoris. Ibid., pp. 491-519. 
 Leges Willelmi. Ibid., pp. 322-351. 
 Quadripartitus, ed. Liebermann. 1892. 
 Leges Henrici Primi, Schmid, op. cif., pp. 432-490. 
 Consiliatio Cnuti, ed. Liebermann. Halle. 1893. 
 Instituta Cnuti, ed. Liebermann. (In Anniversaria Uni- 
 versitatis Havniensis for 1826.) 
 
 B. Scotland. 
 
 Hegiam Majestatem, in Acts of the Parliament of Scotland, 
 vol. i. pp. 597-641. 
 
 Quoniam Attachiamenta. Ibid., pp. 645-659. 
 Iter Camerarii. Ibid., pp. 693-702. 
 
 C. Italy. 
 
 Concordia, in Men. Germ. Fo. Leges, tom. iv. pp. 235-288. 
 
 Liber Papiensis. Ibid., pp. 290-585. 
 
 Exposiiio. Ibid, (as a commentary on the Liber Papiensis). 
 
 Lombarda. Ibid., pp. 607—638. 
 
 Libri Feudorum. See De Feudis Libri Quinqtie of Cujacius. 
 Lyons. 1566. 
 
 (The Libri Feudorum are sometimes printed as an Appendix 
 to the Corpus Juris Civilis, as Decima Collatio Novellarum^ 
 
 D. Germany. 
 
 Codex Fabenbergensis, in Eccard, Corpus Historicum Medii 
 ^vi. 1723. Vol. ii. 
 
 Auctor Vetus de Benefidis, in 
 
 Sachsenspiegel, ed. Homeyer. 1842-186 1. 
 
 Summa Prosarum Dictaminis, ed. Rockinger. Quellen und 
 Erbrterungen zu bayrische Geschichte, ix. 203. 
 
 Deutschenspiegel, ed. Ficker, Der Spiegel deufscke Leute. 1859. 
 
 Schwabenspiegel, ed. Lassberg. 1840. 
 
 Summa Curice Re^s, ed. Stobbe, in Archiv. fiir CEsterrei- 
 chische Geschichte, xiv. 307. 
 
 Kleine Kaiserrecht, ed. Endemann. 1846. 
 
 B amber gensis (Johann v. Schwartzenberg), ed. Mentz. 15 10. 
 
LIST OF PRINCIPAL SOURCES. 323 
 
 E. France. 
 
 Trh Ancien Coutumier de Normandie, ed. E. J. Tardif, Cou- 
 tumiers de Normandie, Part I. 1881. 
 
 Etdblisscvmis le Roy (St. Louis), in Lauriere, Ordonnances, 
 vol. i. and ed. Viollet. 3 vols. 1881-1883. 
 
 Coutumes de Toulouse, ed. A. Tardif. 1884. 
 
 Grand Coutumier Normand, ed. Gruchy, L'ancienne Coutume 
 de Normandie, 1881 ; and E. J. Tardif, op. cit., vol. ii. 1896, 
 
 Charte aux Normands, in Coutume reformee de Normandie, 
 ed. Basnage. 1694. 
 
 Tris Ancienne Coutume de Bretagne, in Bourdot de Riche- 
 bourg, Couttimier General, vol. iv. 1724. 
 
 Style de du Breuil, ed. Lot. 1877. 
 
 Grant Coicstumier de France, ed. Dareste and Laboulaye. 1868. 
 
 Coutume de Poitou, ed. Beautemps-Beauprd. 1865. 
 
 Coutume de Berry, ed. Thaumassifere. 17 01. 
 
 [The following text-books, though influential, can hardly be 
 regarded as Sources : — 
 
 Assises de Jerusalem. Beugnot. 1841-1843. 2 vols. 
 
 Le Consdl de Pierre de Fontaines, ed. Marnier. 1846. 
 
 Le Liv7-e de Justice et de Flet, tA. 'R.?ip&Vd. 1850. (Collection 
 des documents inedits.) 
 
 Coutumes de Beauvoisis par Philippe Beaumanoir, ed. 
 Beugnot. 2 vols. 1842. 
 
 La Somme Rurale de Jean Boutillier, ed. Charondas. 1603.] 
 
 F. Scandinavia. 
 
 Sjallandske Love (the so-called " Waldemar's " and " Erik's ") 
 in Kolderup-Rosenvinge, Samling of Gamle danske Love, 1821- 
 1846, vol. ii. 
 
 Thord Degn's Artikkr. Ibid., vol. iii. 
 
 7. Official Custumals. 
 
 A. England. 
 
 Most of the early charters affecting English Law will be 
 found collected in Stubbs' Select Charters . . . of English 
 Constittitional History, 1870. 
 
324 LIST OF PRINCIPAL SOURCES. 
 
 A. Scotland. 
 
 Leges inter Scottos et Brettos, in Acts of the Parliament of 
 Scotland, vol. i. pp. 663-665. 
 
 Use of Merchis. Ibid. , pp. 713716. 
 
 B. Germany. 
 
 CEsterreichisches Landrecht, ed, Hasenohrl. 1867. 
 Leges Upstalsbomicce, in Richthofen, Friesische Rechtsqtiellen. 
 1840. 
 Bairisches Landrecht oi 1516, ed. Munich. 1520. 
 Schlesisches Landrecht, ed. Gaupp. 1828. 
 Dithmarsisches Landrecht, ed. Michelsen. 1842. 
 Wurtemberger Landrecht, ed. Reyscher. 1834. 
 Pfalzer Landrecht, ed. Vogelin. 161 1. 
 
 C. France. 
 
 All the important official Coutumiers are to be found in 
 Bourdot de Richebourg, Cotittimier General. 1724. 
 
 D. Spain. 
 
 El Fuero viejo de Castilla, ed. Asso and Rodriguez. 1771. 
 
 Espejo de fodos los Derechos, in Opiiscttlos Legales del Rey 
 Don Alfonso el Sabio, 1836, vol. i. 
 
 El Fuero Juzgo. Madrid, 1815 (by Royal Academy); the 
 Latin text also in Monumenta Portugalie, vol. i. 
 
 El Fuero Peal, ed. Montalvo, 1544, and in Opusndos 
 Legales, vol. ii. 
 
 Las Siete Partidas, ed. Lopez. 155 5- 3 vols., and ed. 
 Nys. 1883. 
 
 Ley de Toro, ed. Castello. 1527. 
 
 Nueva Recopilacion, ed. 1592 (Alcala). 
 
 E. Scandinavia. 
 
 Sweden : Magnus Eriksson's Landslag, in Collin and Schlyter, 
 Samling of Sveriges gamla lagar, vol. x. 
 
 Christopher^ s Landslag. Ibid., vol. xii. 
 
 [The code of Charles IX., though not coming in our period, 
 may be of value as an illustration. It was published in a 
 Latin translation by Loccenius. Stockholm. 1672.] 
 
LIST OF PRINCIPAL SOURCES. 325 
 
 Norway : Magnus Haakonson's (" Lagabotir's ") Landslog, in 
 Keyser and Munch, Norges gamk Love, vol. ii. 
 
 [Almost contemporary with the Code of Charles IX. for 
 Sweden is the Code of Christian IV. for Norway, ed. by 
 Hallager and Brandt. Christiania. 1855.] 
 
 8. Municipal Codes. 
 
 A. Scotland. 
 
 Leges Quatuor Burgorum, in Acts of the Parliament of Scot- 
 land, vol. i. pp. 703, 704. 
 Artictdi in itifure Camerarii. Ibid., pp. 680-682. 
 
 B. Germany. 
 
 The chief collections of medieval German Town Laws are 
 those of — 
 
 Gaupp. Deutsche Stadtrechte des Mittelalters. 1851-1852. 
 
 Gengler. Id. 1852. 
 
 Bischoff. CEsteireichische Stadtrechte und Priviligien. 1857. 
 
 C. France. 
 
 £tablissenuns de Rouen, ed. Giry. 1883. 
 
 Statuts de Montpellier. 
 
 Statuts de Marseilles. 
 
 Statuts d^ Avignon, ed. De Maulde. 1879. 
 
 Statuts d! Aries. 
 
 Coutume de Toulouse, in Bourdot de Richebourg, op. cit. 
 
 D. Scandinavia. 
 
 Sweden : The old Swedish Town Laws are printed in the 
 collection of Collin and Schlyter, so often referred to. 
 
 Norway : The " old " and the " new " Bylov for Norway are 
 printed in vols. i. and ii. respectively of Keyser and Munch. 
 Norges Gamle Love. 
 
 Denmark : The Sleswig, Flensborg, Aabenra, and Haderslev 
 Laws are edited by Thorsen {/ydske Lov, etc.). 1855. 
 
326 LIST OF PRINCIPAL SOURCES. 
 
 9. Precedents. 
 
 A. England. 
 
 Plea Rolls : List of those in the Public Record Office, 
 Scargill-Bird. 1894. Amongst those published in extensa 
 are — 
 
 Jiotuli CuricB Regis, ed. Palgrave. 1835. 2 vols. 
 
 Select Pleas of the Crown, ed. Maitland. (Selden Society.) 
 1888. 
 
 Select Fleas in Manorial Courts. Ibid. i88g. 
 
 The Court Baron. Ibid. 1891. 
 
 Judicial Decisions : Placitorum Abbreviatio (tempp. Richard 
 I., John, Hen. III). 1811. 
 
 Bracton's Notebook (cases temp. Hen. IH.), ed. Maitland. 
 1887. 3 vols. 
 
 Year Books. The earlier ed. by Harwood for the Rolls 
 Series. 1863-1873. 4 vols. The later in the foUo ed. of 
 1679. ir vols. 
 
 Registrum Brevium, ed. 1687. 
 
 B. Germany. 
 
 Weisthicmer, gesammelt von J. Grimm. 1840-1878. 
 
 C. France. 
 
 Recueil des jugements de I'Mchiquier de Normandie, ed. 
 Delisle. 1864. 
 
 Plaids de t Echevinage de Reims, ed. Varin, in Archives 
 Administratives de Reims, vols. i. and ii. 
 
 Les Olim (du Parlement de Paris), ed. Beugnot. 1839. 
 
 Registre Criminel du Ch&telet, ed. Soci^te des Bibliophiles 
 frangais. 186 1. 2 vols. 
 
 Parloir atix Bourgeois, ed. Le Roux. 1846. 
 
 D. Spain. 
 
 Leyes del Estih, in Opiisculos Legales del Rey Don Alfonso 
 el Sabio, 1836, vol. ii. 
 
 E. Scandinavia. 
 
 Udvalg of gamle Danske Domme. Kolderup-Rosenvinge. 
 1842. 4 vols. 
 
SYNOPTIC TABLE OF SOURCES. 
 
 NOTES. 
 
 1. Theie has been no attempt on the part of the compiler to attain uniformity of 
 spelling or nomenclature. In each case the source has been indicated by its popular 
 title, which, it need hardly be said, is seldom of official origin. The dates assigned 
 to the various items are those generally accepted by the leading specialists. 
 
 2. A title in italics indicates that the source was originally the work of a private 
 composer. 
 
 3. A title between square brackets, [ ], indicates that the source does not survive 
 in its original form. 
 
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 Lex Gundobada 
 (Burgundians), 
 
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 PrsECeptio Chlo- 
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 For Neustria.) 
 
 (Misc. For whole 
 
 
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 [Pactus Alaman- 
 norum.] 
 
 Edictum Chlothari 
 Frank Icingdom. 
 
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 Hatfield Decree 
 against heresy. 
 (North.jMercia, 
 E. Anglia, 
 Keut.) 
 
 Hlothere's and 
 Eadric's Dooms 
 (Kent). 
 
 Ine's Ratifications 
 (Weiisex). 
 
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 Lex Ribuaria 
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 Lex Alaman- 
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 Statiitum Karlman 
 • lands). 
 
 Decretum (Lex) 
 Baiwariorum. 
 
 Decretum Tassil- 
 onis [Bavaria), 
 
 Decretum Tassil- 
 onis (Bavaria). 
 
 
 
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 3 
 
 
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 Liutprandi Leges. 
 
 [Notitiade Actori- 
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 Ratchis Edictum 
 et Statuta. 
 
 Statuta Ahistulfi. 
 
 Capitula Aregis 
 
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 The Capitulare 
 ( col lection 
 of Im perial 
 Capitula). 
 
 Capitulare de Succ 
 
 Mandatumdelege 
 Romana. 
 
 Edictum de Bene- 
 ficiis. 
 
 Constitutio de 
 Veneficiis. 
 
 The Expositio 
 (commentary on 
 the I mperial 
 Capitula). 
 
 
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 1 1 
 
 I 1 
 
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 Q 
 
 
 
 
 
 
 
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 Peace of the Eng- 
 glish and Danes. 
 (Danegelt.) 
 
 ^thelred'sLawof 
 Wantage. 
 
 Counsel of the 
 , WitanatEnham 
 (? Ensham). 
 
 Knufs Counsel at 
 Winchester. 
 
 Witherlags Ret 
 (Knut). 
 
 
 III 
 
 The Ten Statutes 
 of William I. 
 
 Ordinance exclud- 
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 causes from the 
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 Codex episiolaris 
 Babeiibergensis. 
 
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 Frciburger Stadt- 
 recht. 
 
 Soester Stadt- 
 recht ("JUS- 
 
 
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 Pax Generalis Hen 
 
 Privilegium (Papse) 
 imperial rights). 
 
 Pax Wormatiensis 
 rights on investitu 
 
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 Leges Quatuor 
 Burgorum. 
 
 
 
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 Charter of Liber- 
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 Ordinance for 
 holding courts 
 of County and 
 Hundred. 
 
 Leges Edwardi 
 Cofifessoris, 
 
 Leis e custumes 
 que lireis Will, 
 graniad alpople 
 de Engleierre. 
 
 Quadripariiins. 
 
 Leges Henrici 
 Prlmi. 
 
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 Ordonnance de 
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 Stablissemens de 
 Rouen. 
 
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 i^li ill 
 
 ? 
 
 
 Cunccssio Invcsti- 
 tiine Episco- 
 purum (S-ixuny). 
 
 Roncaglia, General 
 
 Constitutio Duca- 
 tus Austria;. 
 
 orum. 
 
 m. (Pax Roncalica.) 
 
 Liibcckcr Stadt- 
 ruclit. 
 
 ctione clericorum. 
 
 KGlnerStadtrecht. 
 
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 Conslitutiones Feuc 
 Feudal Code.) 
 
 Edictum in favorcn: 
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 Constitutio de testa 
 
 Pacta Placcntina 
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 Constitutio contra '. 
 
 Mandatum de Appi 
 Sciitcniia de feodis 
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 Record^ (" Con- 
 stitutions") of 
 Clarendon. 
 
 Assise of Claren- 
 don (procedure). 
 
 [Assise of Novel 
 Disseisin.] 
 [Grand A.sbi?c.] 
 
 Assises recorded 
 at Northampton. 
 
 Assise of Arms. 
 
 AsMse of Wood- 
 stuck (Forests). 
 
 First (?) Plea Roll. 
 
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 ArlikUr (Dei 
 mark). 
 
 GSrderatb (Sw 
 
 den). 
 
 SmSlandslag (Sw 
 den). 
 
 Wisby Stadsla 
 
 (Sweden). 
 
 Magnus Eriksson 
 Stadslag (Sw' 
 den). 
 
 Landbierker^ 
 (Denmark). 
 
 
 
 S 
 
 n 
 
 
 Siete Partidas. 
 
 Ordinance of 
 Alcala d' Hen- 
 ares. 
 
 S 
 
 
 00 
 
 
 
 
 Ordonnance d e 
 Police. 
 
 Ordonnance d e 
 I'arri&re-ban. 
 
 Serment des baillis. 
 
 Ordinatio de Par- 
 lamento. 
 
 Ordonnance sur le 
 fait des aides. 
 
 Ordonnance sur 
 TAmiraut^. 
 
 Ordonnances sur 
 les Assises. 
 
 Grant Coustumier 
 
 de France. 
 
 
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 lo »n <o so t<. r^ 
 tn Tt m m m m 
 
 f 
 
 recht. 
 
 Munchener Stadt- 
 recbt. 
 
 SchlesischesLand- 
 recht. 
 
 Goldene Bulle. 
 
 
 5 
 
 S 
 
 
 
 
 
 
 1 
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 Use of Merchis. 
 
 QttoniamA ttacMa- 
 menta. 
 
 Iter Camerarii. 
 
 
 
 
 •o 
 
 Statute of Provi- 
 sors. 
 
 Statute of Trea- 
 sons. 
 
 Statute of Praemu- 
 nire. Statute of 
 the Staple. 
 
 Ordinance for Ire- 
 land. 
 
 Act establishing 
 Quarter Ses- 
 sions. 
 
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 1 A 
 
 Fors de B^arn. 
 (There had been 
 several earlier 
 collections.) 
 
 Ordon nance d* 
 Orleans. 
 
 Ordonnance de 
 Roussillon. 
 
 Ordonnance de 
 
 Moulins. 
 
 Ordonnance dc 
 Blois. 
 
 {Nouvelle] Cou- 
 tume de Paris. 
 
 (Nouvelle) Cou- 
 tume de Nor- 
 mandie. 
 
 C u t u"m e s d ' 
 Orleans. 
 
 \ 
 
 irt « *o ^O 
 
 s" s :? 1? 
 
 I? ;? S' :? 
 
 
 Wurte m b e r g e r 
 Landrecht. 
 
 
 
 S 
 
 
 
 
 
 
 
 
 £.2 
 
 Statute for notice 
 to quit. 
 
 Statute against 
 leagues and 
 manrents. 
 
 Statute for regis- 
 tration of all 
 seisins. 
 
 Statute for seisins 
 in boroughs. 
 
 Act establishing 
 convention o f 
 boroughs. 
 
 Statute of pre- 
 scriptions. 
 
 Statute declaring 
 sovereignty o f 
 Parliament. 
 
 Statute prohibiting 
 clergy acting as 
 judges or advo- 
 cates. 
 
 Const it ut ion 
 
 Statutes. 
 
 Statute for further- 
 ance of criminal 
 justice. 
 
 Statute establish- 
 ing general 
 Land Registry. 
 
 
 
 3 1 
 
 
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 ■rj- 
 
INDEX. 
 
 [The passages numbered in bold figures contain the chief explanations or 
 definitions of the subjects referred to.] 
 
 Adfatimus, The, 234-235 
 ^thelbirht. See " Anglo - Saxon 
 
 Laws" 
 ^thelred. See " Anglo - Saxon 
 
 Laws " 
 ^thelstan. See " Anglo - Saxon 
 
 Laws " 
 Akernam. See "Swedish Law" 
 "Alamanni," 73, 74 
 Alamannic Law, 8, 10, 214, 267 
 Alod, 215, 216, 219, 220 
 Anefang, The, 271 
 Anglo-Saxon Laws, 9, 20, 28, 102, 
 
 108, 191, 199, 210, 213, 215, 
 
 216, 221, 260, 265, 267, 271, 
 
 272, 273 
 Antrustions, 76, 77, 252, 254 
 Appeals, 113, 114 
 Arriire-ban, The, 83, 93 
 Asega, 110, 132 
 Assises, 42, 119, 177, 179 
 Assumpsit. See " Trespass on the 
 
 Case " 
 Austinian theory of Law, 1, 29, 44 
 
 B 
 
 Bairn, The, 112, 135, 177-179 
 Ban, The, 82, 83, 109, iii, 113, 
 
 123, 223 
 Barbarossa, 34 
 Battle, appeal of, 107, 127 
 Bauern, no 
 Bavarian Law, lo 
 
 Beaumanoir, 21, 281 
 
 Birger Jarl (Swedish King), 230 
 
 Blood feud, 13, 101-102, 105, 106,. 
 
 116, 197, 225-227, 257, 258 
 Bondi, The, 168 
 Boniface "VIII., Pope, 28 
 Bootless crimes, 104, 105, 113, 114 
 Bourdot de Richebourg, 50 
 Boutillier, 21, 23, 47 
 Bracton, 205 
 Brunner, Dr., 40, 277 
 Bucy, Simon de, 240 
 Burggraf, the, 135 
 Burgundian Law, 14, 229, 233, 260 
 
 Csesar, evidence of, 152, 161, 162 
 
 Canon Law, 26-29, 44, 62, 119 
 
 Capitaine GhiSrale, The, 179 
 
 Capitula, The, 16-20, 28 
 
 Centuriation, 151 
 
 Chancery, Court of, 141-145 
 
 Charles V. (Emperor), 182 
 
 Charles the Great, 11, 17, 19, 102,. 
 104, 107, no, 126, 132, 160, 168, 
 180, 217, 224, 236, 268, 270 
 
 Charter, The, 40-41 
 
 Chirographum, The, 276, 277 
 
 Chlothar II., 15 
 
 Chrene Cruda, The, 222 
 
 Churches, action of, 26-29, 193, 
 194, 214, 21S, 230, 25s, 275 
 
 Circuit system, 37, 38, 133, 136,. 
 
 139. HP 
 Clan, nature of, 71, 74, l6r, 162. 
 
348 
 
 INDEX. 
 
 Clan, rivalry with State, 72, 97 
 Clement V., Pope, 29 
 Clementines, The. , See " Canon 
 
 Law" 
 Clerical Immunities, 130, 131 
 Clermont in Beauvoisis. See 
 
 " Beaumanoir " 
 Clovis, 75, 79 
 Comes. See " Count " 
 Commendation, 168, 169 
 Common Law, 35, 36, 38, 141 
 " Common penny," 94 
 Conquest, its influence on ideas of 
 
 Law, 10, II 
 Conrad the Franconian, 86 
 Conseil. See " Pierre de Fontaines '' 
 Consideration, doctrine of, 283-288 
 Corporations, 26, 27 
 Cortes, 4S 
 Cottagers, 217 
 Coulanges, Fustel de, 15, 73, 76, 
 
 ISO. 151 
 Count, The, 106, 112, 132, 169- 
 
 170 
 Coutumiers, 47, 48-51 
 Curia Regis, English, 37, 38, 133, 
 
 134, 139-141 
 Custom, its place in the history of 
 
 Law, 56-57 
 
 D 
 
 Decima CoUatio Novellarum. See 
 "Libri Feudorum" 
 
 Decretals. See " Canon Law " 
 
 Decretum Gratiani. See "Gratian 
 of Bologna " 
 
 Deresne, 281 
 
 Dery, Walter of, 85 
 
 Deutschenspiegel, The. See ' ' Ger- 
 man Mirror" 
 
 Dionysus Exiguus, 27, 28 
 
 Distress, 263 
 
 Doctor afid Student, 286 
 
 Domain, royal, influence of, 42, 87- 
 88, 90, 177 
 
 Drenthe, Oordelboek of, 47 
 
 Eadmund. See "Ango- Saxon 
 
 Laws " 
 Ealdorman, no 
 Ecgberht, 20 
 Achiquiers, 37 
 
 Echte Ditig, no, 133 
 
 Edda, The, 246-247 
 
 Edward I. (English King), 41, 43, 
 
 44 
 Elders. See " Rachimburgi " 
 Emancipation (of children) 230-232 
 Enfranchised, The, 250 
 EnquSte (generally). See "Jury, 
 
 Trial by" 
 Enqulte par tourbe, 23, 47, 51 
 Atablissemens le Roy (St. Louis), 
 ,47 
 
 Etats Glniraux, 45 
 Extensive Agriculture, 149, 152 
 
 Feudalism, 22-26, 82-91, 92-93, 
 
 112, 171-175. 236-237 
 Fides facta, 104 
 Fief, The. See " Feudalism " 
 Flurzwang, The, 156 
 Folk-laws. See "■Leges Barbarorum " 
 Following the Trail, 202-205 
 Frank Empire and Kingdoms, 17, 
 
 18, 79-82 
 Frankpledge, 133 
 " Franks," 73, 74 
 Frauds, Statute of, 287 
 Frederick I., Emperor. See 
 
 "Barbarossa" 
 Fredus, or fretus, 107, 108 
 Freemen, 249 
 Frisian Law, 10, 260 
 Fuero Juz^o, 45 
 Fue7V viejo de Costilla, 45 
 
 G 
 
 Gafol-gilda, 217, 218 
 Gairethinx, 234, 266 
 Gebotene Ding, in, 133 
 General Councils. See " Canon 
 
 Law " 
 GhiiralM, The, 179, 180 
 Gentile organization, 154 
 German Mirror, The, 47 
 Glanville, 35, 281, 287 
 "God's penny," The, 286 
 Gowe . See "Shire " 
 Graf. See"CowcA" 
 Grafschaft. See ' ' Shire " 
 Grandchildren, succession of, 9 
 Grands yours, 37 
 Grant Stille de la Chancellerie, 39 
 
INDEX. 
 
 349 
 
 Grafian of Bologna, 28, 119 
 Gregory IX., Pope, 28 
 Gundobada, Lex. See ' ' Bureundian 
 Law " 
 
 H 
 
 Hserath. See "Swedish Law " 
 
 Hanseatic League, 30 
 
 Hedges, 151 
 
 Henry I. ("Beauclerk"), 34, 37 
 
 Henry IL (English King), 34, 37, 
 
 38, 42, 174 
 Henry the Fowler, 86, 87 
 Henry IV. (Emperor), 87 
 Hide (of land), 156, 158, 159, 160, 
 
 226, 227, 229 
 Hilperic, Edict of. See " Salic 
 
 Law" 
 Hobbes, his theory of Law, 44 
 Honorius, Pope, 29 
 Homing. See "Ban " 
 " Host tax," 94 
 Hugh the Great, 85, 86, 87 
 Hugues Capet, 85, 87 
 Hundred, The, 164, 165, 184 
 
 I 
 
 Immunists, 171 
 
 Incompleteness of early codes, 1 1 
 Ine. .Sf« " Anglo-Saxon Laws " 
 Ingelheim, Court Book of, 47 
 Inheritance, Law of, aa&-234 
 Inquest. See "Jury, Trial by" 
 Intendant, The, 179 
 Intensive agriculture, 149, 152 
 Intermixed lands, 155 
 Isidorus Mercator, 28 
 
 J 
 
 Jlrusalem, Assises de, 25 
 Judicial combat, 9, 
 Judicial Organization, 131 
 Jury, Trial by, 24, 128-128, 281 
 Justice-General, 133 
 Justinian, Law of, 51 
 
 King's Peace, 196, 238-241 
 Kirkiubolkar, 28 
 Kleines Kaiserrecht, The. 
 "Little Kaiser's Law" 
 
 See 
 
 Ijznder, The, 168, 169, 172 
 
 Laghman. See " Swedish Law '' 
 
 Land, execution against, 107, 220- 
 224 
 
 , sale of, 212-216 
 
 Landfriedensbezirk. See " Peace 
 District " 
 
 Landgraf, 137, 182 
 
 Landowner, The, 163, 167-169 
 
 Landrechte, 51 
 
 Landshcerra. See " Swedish Law ' "■ 
 
 Landvogt, 137 
 
 Lnunegild, 286 
 
 Law-breaking, kinds of, 12, 13 
 
 Law Merchant, 29-30, 62 
 
 Leges Barbarorum, 7-16, 18, 32, 
 bo-6i, 103, 107, 108, 151, 152, 
 163, 164, 226, 251, 252, 256, 
 2S7, 26s, 274 
 
 Edwardi Confessoris, 33, 36 
 
 — — Henrici, 33 
 
 Upstalsbomicie, 291 
 
 Legislation, 18, 42 
 
 Lex Aquilia, 14 
 
 Lex Romana Curiensis, 14, 274 
 
 Libri Feudorum, 25, 52 
 
 Lieutenant, County, 174 
 
 Lieutenants Giniraux, 179 
 
 Little Kaiser's Law, The, 47 
 
 Liutprand. i>ee " Lombard Law " 
 
 Livre de fostice et Pkt, 47 
 
 Local Government, 183, 184. And> 
 see, "Count," "Shire," "Hun- 
 dred," " Peace District," etc. 
 
 Locality of Law, 13, 15, 23, 35 
 
 Lombard Law, 102, 210, 231, 232,. 
 23s, 238, 248, 259, 260, 261, 
 262, 266, 271, 272, 273, 2;6, 
 277, 278 
 
 Lombard League, 34 
 
 Longnon, Auguste, 166, 170 
 
 Louis IX. ("Saint"), 34 
 
 Louis XIV., 98 
 
 Louis le Hutin, 1 14 
 
 Louis the Young (French King),. 
 
 Ludwig the Pious, 224 
 Lydekin, 209, 216 
 
 M 
 
 Maeg, the. See ' ' Blood Feud " 
 Magnus Eriksson (Swedish king)f, 
 46 
 
35° 
 
 INDEX. 
 
 Magnus Lagabbtir (Norwegian 
 
 King), 46 
 Malberg Glosses, 60-61 
 Manor, The, 219 
 Mansi. See " Hides " 
 Manumission, 249, 250 
 Marculf, Formulce of, 253 
 Maximilian I. (Emperor), 182 
 Meitzen, August, 150, 164 
 " MELL," The, 46 
 Migration, its influence on ideas of 
 
 Law, 10, II 
 Missi, Karolingian, 37, 133 
 Mita, The, 272 
 Moulins, Ordonnance de, 279 
 Mund, 227, 255, 272, 274 
 
 N 
 
 Ncemth. See " Swedish Law " 
 Nam. See " Swedish Law " 
 Nobles, 76, 77, 248, 252 
 Norman Conquest of England, 33, 
 
 34, 88-41, 172-175 
 Normandy, Records of, 39 
 
 O 
 
 Oath, The, 274-276 
 
 Oath-helpers, 125, 267, 268, 269 
 
 Oferhyrnes, 112 
 
 Olim, The, 39 
 
 Oranboth. See " Swedish Law" 
 
 Orbotamal. See " Swedish Law" 
 
 Ordeals, 127 
 
 Ordericus Vitalis, 86 
 
 Ordonnatices of French Kings, 42, 
 
 45, 54-55 
 Otto the Great, 9 
 Outlawry. See ' ' Ban " 
 
 Pagus. ^■e^" Shire" 
 Palatinates, 172, 173 
 Pant. See " Pledge " 
 Parlement of Paris, 114, 130, 140, 
 
 177 
 Parloir aux Bourgeois, 30 
 " Part Performance," 281 
 Paulette, The, 137-138 
 Paulus, Sentences of, 14 
 Pays de droit krit, 22, 50 
 
 Peace District, The, 136, 137, 181, 
 
 182 
 Peaces, 87, 109, 115-120, 135, 194, 
 
 195, 238-241 
 Peers, Judgement by, 23-24 
 Personality of Law, 11-16 
 Philip Augustus (French King), 
 
 34 
 Philip II. (Spanish King), 131 
 Philip the Fair (French King), 37, 
 
 219 
 Philip the Long (French King), 
 
 179 
 Pierre de Fontaines, 47 
 Plea Rolls, 38, 39 
 Pledge, The, 259-274, 277-279 
 Polypnea, 159 
 Possession, 118, 188-189. And «« 
 
 Chapter VI., generally 
 Pragmatic Sanction, 131 
 Prevot, The, 135, 177 
 Progress through law-breaking, 12 
 Proof, modes of. III, 264, 261;, 
 
 276-281 
 Property, 189-190. And see Chapter 
 
 VI., generally 
 Provincial Parlements, 136 
 
 " Queen's shilling," 286 
 Quidp-o quo, 284-285 
 
 R 
 
 Rachimburgi, 104, 261, 264 
 Rcefsingathing. See " Swedish 
 
 Law" 
 Reception of Roman Law, 61-54 
 Receveurs Roy aux, 179 
 Record, Contract of, 289 
 Redaction of the French Coutumes, 
 
 50-51 
 Register of Writs, 38, 43 
 Reichskammergerieht, The, 52 
 Reichstag, 45 
 Reichsverweigerung, 120 
 Reiptis, 255 
 
 Representation, right of, 232-233 
 Ressort, process of, 178 
 Retrait lignager, 214 
 Ribuarian Law, 16, 33, 198, 213, 
 
 224, 228 
 Richter, The, no, 112 
 Riksdaag, 46 
 
INDEX. 
 
 351 
 
 Rodolph of Burgundy, 85, 86 
 Romani, 15 
 
 Roman Law, influences the bar- 
 barians, 10, 14, 15, 18, 21, 26, 35 
 — , study of, forbidden. 
 
 'reception" of, 51- 
 
 29 
 
 54, 62-63 
 Rothar. ^«e " Lombard Law " 
 
 Sachsenspiegel. See "Saxon Mirror '' 
 Saint Medard, 85 
 
 Remi, 75 
 
 Sale, early law of, 199-201 
 
 Salic Law, 8, 33, ig8, 208-209, 
 
 228, 229, 231, 23s, 254, 261, 
 
 263, 269, 274, 275 
 Sarum, Oath at, 93 
 Saxon Law, 10, 19, 47, 213, 267 
 Saxon Mirror, The, 47, 48, 281 
 "Saxons" 73, 74 
 Scabini, no, 133, 168 
 Scandinavia (generally), 11, 20, 
 
 45,46, III, 120, 172 
 Schoffen. See " Scabini " 
 Schwdbenspiegel, The. See ' ' Suabian 
 
 Mirror " 
 Scutage, 94 
 
 Seal, in contracts, 279-280 
 Seigneur. 5s« " Feudalism " 
 S^s, 249 
 
 Session, Court of (Scotland), 130 
 Sext, The, of Boniface VIII., 28 
 Sheriff, no, 132, 139, 170, 173- 
 
 174 
 Sheriff's Toum, 133 
 Shire, The, 165, 166, 171, 173 
 Siete Partidas, 45, 129 
 Sippe, The. See " Blood Feud " 
 Sohm, R., 106 
 SoraJbicus Limes, 155, 161 
 Sormise, 281 
 Spanish Law, 129 
 Spuilzie, 120 
 State, The, modem conception of, 
 
 68-70 
 
 , origin of, 78-75, 76, 91 
 
 , nature of, 76, 77, 84-91 
 
 , sovereignty of, 96, 97 
 
 , justice of, 105-146 
 
 , conflict with Clan, 163, 166, 
 
 167 
 Stiernhook, 129, 130, 132 
 Style de du Breuil, 39 
 
 Suabian Mirror, The, 47, 48 
 
 Suit, The, 280, 281 
 
 Summa curia: regis, 47 
 
 Summa prosarum dictaminis, 47 
 
 Summons. See ' ' Writ " 
 
 Suretyship, 267-274 
 
 Swedish Law, 105, 108, 109, iii, 
 116, 125, 164, 165, 169, 170, 
 202, 209, 212, 213, 215, 216, 
 221, 228, 229, 230, 234, 259, 
 260, 265, 289 
 
 Swiss Bund, 291 
 
 Syngrapha, The, 276, 277 
 
 Tacitus, evidence of, 152, 226 
 
 Tak. .See "Pledge" 
 
 Tassilo, 20 
 
 Taxation, 94^96 
 
 Tenure, 218 
 
 Testament, The, 234-236 
 
 Teutonic Law, 7 
 
 Thegn, The, 168, 217 
 
 Theodosius, Code of, 10, 14, 35 
 
 Thuringian Law, 10 
 
 Town Laws, 42, 53-S4 
 
 Tris Ancien Coutumier, 47 
 
 Trespass on the Case, 282-283 
 
 Trustis do7ninica. See "Antrus- 
 
 tions" 
 Twertutnay, 280 
 Tylft. See " Scandinavia " 
 
 U 
 
 Umfaerth. See " Swedish Law " 
 United Netherlands, Republic of 
 
 the, 181 
 Urteilserfiillungsgelobniss, 104 
 
 Village, The Teutonic, 155-156, 
 158, 159, 161-164, 208-216, 221 
 Visigothic Law, 14, 233 
 Vogt, The, 135, 180, 182 
 Volkerwanderung, 15 
 
 W 
 
 Wager of Law, 127 
 Warranty, 203 
 Wed. .Si'*" Pledge" 
 
352 
 
 INDEX. 
 
 Wergild system, 102-105, 197-199, 
 
 226, 256-259 
 Wesigoialag, The. See " Swedish 
 
 Law" 
 Westminster the Second, Statute 
 
 of, 143 
 Westphalia, Treaty of, 94, l8z 
 Widukind, 9 
 Will. ^s« " Testament " 
 
 Women, exclusion of from Inherit- 
 ance, 226, 227-230 
 
 Writ, The, 122-128 
 
 Writs, Register of. See "Register 
 of Writs " 
 
 Year Books, 38 
 
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