which in the thirteenth century were so near of kin had such different fates before them. The answer to that question is assuredly not to be given by any hasty talk about national character. The first step towards an answer must be a careful statement of each system by itself. We must know in isolation the things that are to be compared before we compare them. A small share in this preliminary labour we have tried to take. Englishmen should abandon their traditional belief that from all time the continental nations have been ruled by “the civil law,” they should learn how slowly the renovated Roman doctrine worked its way into the jurisprudence of the parliament of Paris, how long deferred was “the practical reception” of Roman law in Germany, how exceedingly like our common law once was to a French coutume. This will give them an intenser interest in their own history. What is more, in the works of French and German medievalists they will now-a-days find many an invaluable hint for the solution of specifically English problems.
We have left to Constitutional History the field that she has appropriated. An exact delimitation of the province of law that should be called constitutional must always be difficult, except perhaps in such modern states as have written constitutions. If we turn to the middle ages we shall find the task impossible, and we see as a matter of fact that the historians of our constitution are always enlarging their boundaries. Though primarily interested in such parts of the law as are indubitably constitutional, they are always discovering that in order to explain these they are compelled to explain other parts also. They cannot write about the growth of parliament without writing about the law of land tenure; “the liberty of the subject” can only be manifested in a discourse on civil and criminal procedure. It may be enough therefore if, without any attempt to establish a scientific frontier, we protest that we have kept clear of the territory over which they exercise an effective dominion. Our reason for so doing is plain. We have no wish to say over again what the Bishop of Oxford has admirably said, no hope of being able to say with any truth what he has left unsaid. Besides, for a long time past, ever since the days of Selden and Prynne, many Englishmen have been keenly interested in the history of parliament and of taxation and of all that directly concerns the government of the realm. If we could persuade a few of them to take a similar interest in the history of ownership, possession, contract, agency, trust, legal proof and so forth, and if we could bring the history of these, or of some of these, matters within a measurable distance of that degree of accuracy and completion which constitutional history has attained in the hands of Dr. Stubbs, we should have achieved an unlooked-for success. At the same time, we shall now and again discuss some problems with which he and his predecessors have busied themselves, for we think that those who have endeavoured to explore the private law of the middle ages may occasionally see even in political events some clue which escapes eyes that are trained to look only or chiefly at public affairs.
The constitutional is not the only department of medieval law that we have left on one side. We have said very little of purely ecclesiastical matters. Here again we have been compelled to draw but a rude boundary. It seemed to us that a history of English law which said nothing of marriage, last wills, the fate of an intestate’s goods, the punishment of criminous clerks, or which merely said that all these affairs were governed by the law and courts of the church, would be an exceedingly fragmentary book. On the other hand, we have not felt called upon to speak of the legal constitution of the ecclesiastical hierarchy, the election and consecration of bishops, the ordination of clerks, the power of provincial councils and so forth, and we have but now and then alluded to the penitential system. What is still the sphere of ecclesiastical law we have avoided; into what was once its sphere we could not but make incursions.
At other points, again, our course has been shaped by a desire to avoid what we should regard as vain repetition. When the ground that we traverse has lately been occupied by a Holmes, Thayer, Ames or Bigelow, by a Brunner, Liebermann or Vinogradoff, we pass over it rapidly; we should have dwelt much longer in the domain of criminal law if Sir James Stephen had not recently laboured in it. And then we have at times devoted several pages to the elucidation of some question, perhaps intrinsically of small importance, which seemed to us difficult and unexplored and worthy of patient discussion, for such is the interdependence of all legal rules that the solution of some vital problem may occasionally be found in what looks at first sight like a technical trifle.
We have thought less of symmetry than of the advancement of knowledge. The time for an artistically balanced picture of English medieval law will come: it has not come yet.
SKETCH OF EARLY ENGLISH LEGAL HISTORY
The difficulty of beginning.Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it: words such as bishop, priest and deacon.1 If we would search out the origins of Roman law, we must study Babylon: this at least was the opinion of the great Romanist of our own day.2 A statute of limitations must be set; but it must be arbitrary. The web must be rent; but, as we rend it, we may watch the whence and whither of a few of the severed and ravelling threads which have been making a pattern too large for any man’s eye.
Proposed retrospect.To speak more modestly, we may, before we settle to our task, look round for a moment at the world in which our English legal history has its beginnings. We may recall to memory a few main facts and dates which, though they are easily ascertained, are not often put together in one English book, and we may perchance arrange them in a useful order if we make mile-stones of the centuries.3
The classical age of Roman law.By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 212,4 Ulpian in 228.5 Ulpian’s pupil Modes-tinus may be accounted the last of the great lawyers.6 All too soon they became classical; their successors were looking backwards, not forwards. Of the work that had been done it were folly here to speak, but the law of a little town had become ecumenical law, law alike for cultured Greece and for wild Britain. And yet, though it had assimilated new matter and new ideas, it had always preserved its tough identity. In the year 200 six centuries and a half of definite legal history, if we measure only from the Twelve Tables, were consciously summed up in the living and growing body of the law.
The beginnings of ecclesiastical law.Dangers lay ahead. We notice one in a humble quarter. Certain religious societies, congregations (ecclesiae) of non-conformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be, but as yet it was, if the phrase be tolerable, unlawful law, for these societies had an illegal, a criminal purpose. Spasmodically the imperial law was enforced against them; at other times the utmost that they could hope for from the state was that in the guise of “benefit and burial societies” they would obtain some protection for their communal property.7 But internally they were developing what was to be a system of constitutional and governmental law, which would endow the overseer (episcopus) of every congregation with manifold powers. Also they were developing a system of punitive law, for the offender might be excluded from all participation in religious rites, if not from worldly intercourse with the faithful.8 Moreover, these various communities were becoming united by bonds that were too close to be federal. In particular, that one of them which had its seat in the capital city of the empire
