A Concise History of the Common Law. Theodore F. T. Plucknett

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it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognise some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution—and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power. It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

      “The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine.”1

      Indeed, while the organisation of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life.2 Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the power of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy.

      THE ANGLO-SAXON PERIOD: RACES AND RELIGION

      SUMMARY

       The Coming of the Romans

       The English Conquest

       The Advent of Christianity

       England and the Danes

      While this was happening at the heart of the Empire, many of the outskirts were witnessing a process such as went on in Britain. The conquest of Gaul inevitably drew the attention of Roman generals to Britain, whose population had intimate ties of race, language and sympathy with the Gauls. At times the Britons seem to have sent assistance to their Celtic kinsmen on the continent, and so attracted the wrath of Rome. Finally in A.D. 43 the systematic conquest of the island was begun by Agricola, and for the next three and a half centuries Britain was under Roman rule. The character of this occupation cannot be better described than in the words of Haverfield, the scholar who has shed most light on this difficult and obscure period:

      “From the standpoint alike of the ancient Roman statesman and of the modern Roman historian, the military posts and their garrisons formed the dominant element in Britain. But they have left little permanent mark on the civilisation and character of the island. The ruins of their forts and fortresses are on our hill-sides. But, Roman as they were, their garrisons did little to spread Roman culture here. Outside their walls, each of them had a small or large settlement of womenfolk, traders, perhaps also of time-expired soldiers wishful to end their days where they had served. But hardly any of these settlements grew up into towns. York may form an exception.... Nor do the garrisons appear greatly to have affected the racial character of the Romano-British population.”1

      Britain was prosperous for a time. Then towards the middle of the fourth century troubles began; invasions from the north by the Picts and along the east coast by the Saxons grew more and more serious, until

      “finally, the Great Raid of Barbarians who crossed the Rhine on the winter’s night which divided 406 from 407, and the subsequent barbarian attack on Rome itself, cut Britain off from the Mediterranean. The so-called ‘departure of the Romans’ speedily followed. This departure did not mean any great departure of persons, Roman or other, from the island. It meant that the central government in Italy now ceased to send out the usual governors and other high officials and to organise the supply of troops. No one went: some persons failed to come.”1

      It is significant that sites which have been thoroughly explored fail to reveal Roman coins of later date than the opening years of the fifth century.2 Before these invaders, towns were abandoned; Roman speech and boundaries vanished: only the massive foundations of the roads survived. The Britons retired to the hills of Wales and Scotland and there resumed their Celtic culture and speech, and became, in the fulness of time, one of the springs of mediaeval art and learning.

      Of the three tribes who constituted the bulk of the invaders, two—the Angles and the Saxons—are hardly distinguishable either in language or customs, both coming, moreover, from the narrow neck of land which now separates Denmark from the mainland. From the end of the third century the Saxons appear in history as raiders and pirates, although the Angles, on the other hand, drop back into obscurity (as far as Roman writers are concerned) ever since Tacitus mentioned them in the beginning of the second century until the sixth century, when we read of them in England. They have left a mass of epic poetry, however, which gives some idea of the life their chieftains led; indeed, the similarities of this literature with that of Norway, Sweden and Germany suggest an international culture covering Northern Europe. The material remains of these tribes while still on the mainland, which have been unearthed, show a high degree of perfection in weaving, and that “the warriors of the period were armed in a manner not substantially improved upon for many centuries afterwards”. Many of their swords bear the marks of Roman manufacturers. They had also a Runic alphabet of their own devising, which long remained in use. Of their religion little is known with certainty; Woden, Thunor and Frig have given us the names of Wednesday, Thursday and Friday, but the surviving legends are too late to tell us much about early English culture and history. As early as the Bronze Age they had been familiar with the plough.3 The invaders must not be regarded as complete savages, therefore. Of the Jutes much less is known. They were the dominant settlers in Kent and it is significant that the early Kentish laws have marked peculiarities of

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