civilisation of the Romans, for the most part, departed with them.' The Roman law disappeared for a time from the judicial system of Roman Law. our country. After the conversion of the English to Christianity, however, it must indirectly have exercised considerable influence on Anglo-Saxon jurisprudence, through the medium of the dignified ecclesiastics who in Witenagemot and Shirenot took so large a part in the making of laws and the administration of justice. Directly, also, it was re-introduced from the Continent, in the 12th century, as a consequence of the revived study of Jurisprudence which had there taken place. In the year 1149, Vacarius, a distinguished Lombard Jurist, who had been invited to England by Archbishop Theobald, established a school of Civil Law at Oxford, and publicly taught the Roman jurisprudence to a numerous and eager band of students, for whose use he wrote his Summa, consisting of annotated extracts from the Digest and the Code. silenced by King Stephen, the impulse study of Roman law was not arrested. Primi (written probably in the early part of Henry II.'s reign) contain many extracts from the Theodosian Code or the Breviarium; and the legal treatises of both Glanvill and Bracton, the latter especially, are strongly marked by a large infusion of Roman principles and terminology. As a system, however, the Roman law was soon rejected in Although Vacarius was soon 1 Mr. Coote (Romans of Britain) has ably urged all that can be said for a more complete survival of the Roman civilisation, sheltered in the ark of the cities.' * L'Eglise détendit pied à pied le terrain de la société romaine; elle en fut, sous le gouvernement politique des barbares, la représentation éclairée et courageuse ; elle en recueillit, elle en protégea la gloire passée. C'est à elle principalement qu'est due la conservation de ce droit admirable, qui partage encore aujourd'hui avec le Christianisme la domination morale chez les peuples civilisés. Thierry, Tableau de l'Empire Romain, p. 359; [but cf. Lappenberg, i. 163, and translation of passage in Gneist, Hist. Engl. Const. p. 9, note, the small influence exercised by the Roman Ecclesiastical law the weakened influence of Rome upon the princes of the realm."-ED.] Gervas. Dorub. (Decem Script. col. 1665), in describing the strife between Theobald, Archbishop of Canterbury, and the Papal Legate, Henry Bishop of Winchester, says: Öriuntur hinc inde discordiae graves, lites et appellationes antea in auditae. Tunc leges et causidici in Angliam primo vocati sunt. Quorum primus erat Magister Vacarius. Hic in Oxonfordia legem docuit.' Robertus de Monte is the authority for the date, 1149, and for his compilation of nine books from the Code and Digest 'qui sufficiunt ad omnes legum lites quae in Schola frequentari solent decidendas.' Vacario nostro indictum silentium, sed Deo faciente, eo magis virtus legis invaluit quo eam amplius nitebatur impietas infirmare. Joh. Sarisb., Polycraticus, lib. viii. c. 22. • Of Bracton 'the entire form and a third of the contents were directly borrowed from the Corpus Juris.' (Sir H. S. Maine, Anc. Law, p. 82.) Bracton was largely indebted to Azo's Summa on the Code and Institutes of Justinian. (Savigny, Geschichte des Römischen Rechts, iv. 538 seq.) Sir Travers Twiss, in the Germanic origin of English institutions. England; but some of its forms, and many of its principles, were absorbed into and amalgamated with the system which our own courts of Justice had been gradually developing for themselves out of the primitive national usages. Our language, and the main outlines of our political and judicial institutions, are all inherited from our Teutonic ancestors; each has undergone a spontaneous development during the course of centuries, each has assimilated new elements; but the national identity of race, language, and institutions has never ceased to exist.1 The germs of our present constitution and laws must, therefore, be sought in the primeval institutions of the first Teutonic immigrants. Of these institutions we have little positive knowledge. According to Bede, the original immigrants consisted of the three kindred tribes of Angles, Saxons, and Jutes. Of these Tacitus does not even mention the Saxons or Jutes, and only names the Angles as one of a number of North German tribes, without fixing their locality. In the second century Ptolemy identifies the seats of the Saxons and Angles as the district between the Elbe, the Eyder, and the Warnow, now constituting the modern Duchies of Holstein, Lauenburg, and Mecklenburg. Before the age of Bede the name of Saxon had been extended from the designation of a single insignificant tribe to that of a wide confederacy of North German tribes. Retaining their independence of Rome, tenacious of their heathen worship and their primitive barbarism, they habitually plundered the richer nations who had succumbed to the Roman sway. Scarcely, if at all, affected by contact with Roman influences, the Teutonic tribes who invaded Britain had probably a less distinctly marked political organisation than that of their kindred on the banks of the Rhine and the Danube, a picture of whose institutions has been handed down to us in the pages of Cæsar and Tacitus. But after making due allowance for this difference, for the indistinctness Introductions to the several volumes of his new edition of Bracton, has thrown fresh light on the dates and incidents of the legist's career. The very diversity of the elements which are united within the Isle of Britain serves to illustrate the strength and vitality of the one which for thirteen hundred years has maintained its position either unrivalled or in victorious supremacy. If its history is not the perfectly pure development of Germanic principles, it is the nearest existing approach to such a development.-Stubbs, Const. Hist. i. 6. Bede (b. 672, d. 735) records very few circumstances relative to the English conquest of Britain from his own sources, but for the most part transcribes the De Excidio Britanniae, composed about 560, of Gildas, b. 516. [On this point cf. Zeuss: Die deutschen und die Nachbarstämme, pp. 54 et seq.; and for a very careful sketch, vide Hannis Taylor, Origin and Growth of the English Constitution, chap. ii. ent. The founders in the Fatherland. On the older family constitution vide R. Schmid in Hermes, vol. 32 (1829).-ED.] " of the picture itself, and for the contradictory ways in which it has been interpreted, we may yet gather from this source some general knowledge of the primeval institutions of our Teutonic forefathers. man polity. In the time of Tacitus, Germany appears to have been divided Ancient Geramong a number of independent tribes, who had ceased to be nomadic and occupied fixed seats in settled communities. The whole land of the settlement belonged to the community (the Mark, or Vicus), who annually allotted the arable land among the freemen, while the pasture land was both held and used in common. An aggregate of communities (vici) of the same tribe constituted the pagus (the Gau); and an aggregate of pagi made up the civitas, or populus.? In their political life the monarchic, aristocratic, and democratic elements were clearly marked; but the ultimate sovereignty seems to have resided in a free and armed people. Some of the tribes had kings selected from particular families; others had not. But the La constitution de la Marche paraît dans Tacite. Il la désigne évidemment The Mark dans son xxvie chapitre par le mot ager, qu'il oppose à arva Larva per annos system. mutant, et superest ager], et quand il dit que les barbares aimaient à entourer leurs habitations et leurs champs de vastes terrains vides [suam quisque domum statio circumdat, c. 16] pouvant leur servir de défense. Or l'usage de la Marche est le signe d'une transition entre l'état nomade et l'état agricole, entre le régime de l'eutière communauté de la terre et celui où commence à se montrer la propriété foncière privée. En effet la Marche est un vaste territoire indivis qui s'étend au delà des cultures-un vrai boulevard. Geffroy, op. cit., p. 185. On the Mark system in its social, judicial, and political aspects, see Kemble, Saxons in England; G. L. Von Maurer, Gesch. der Marken Verfassung, &c.; Schmid, Gesetze der Angel-Sachsen; Nasse, Agricultural Community of the Middle Ages (by Ouvry); Stubbs, Const. Hist. vol. i.; Maine, Village Communities, Lects. i. and iii. [Cf. also, Garsonnet, Hist. des Locations Perpétuelles, 1879. Germ. Mark, p. 40 seg. ; do. Merovingian and Carlovingian, p. 469 seq.; Seebohm, Village Community in England, 1883; Hearn, The Aryan Household, 1879; Waitz, Deutsche Veríassungsgeschichte (Kiel, 1880); Lappenberg - Pauli, Geschichte von England, and Sohm, Frank. Reichs und Gerichts Verfassung. Hannis Taylor, Origin of Eng. Const. pp. 7-8; Gneist, Hist. Eng. Const., p. 2. "Mark" is the old German word for boundary," and hence comes to mean boundary land, and further "any area of lane having defined boundaries." See Thudicum, Die Gau und Marken Verfassung in Deutschland (Erlangen, 1856) -ED.] [The difficulty of understanding, and consequently of accurately rendering these names given by Cæsar and Tacitus to Teutonic institutions, is noted by Geffroy, Rome et les Barbares, Paris, 1874, p. 207, where he justly remarks that those writers were evidently interpreting a foreign terminology which they may not themselves have thoroughly understood. Pagus is connected by Geffroy, p. 209 (n. 1), following Rudorff, Gromatici Veteres, ii. 239-40, with pax pango, náyw, πήγνυμι, and vicus with οἶκος.-C.] De minoribus rebus principes consultant, de majoribus omnes; ita tamen ut ea quoque quorum penes plebem arbitrium est, apud principes pertractentur. -Tac. Germ. c. xi. The well-known words of Montesquieu, speaking of the English Constitution, 'Ce beau système a été trouvé dans les bois,' have reference to the existence of this triple constitution among the Germans. King had only a limited power,' and was rather the representative of the unity of the tribe than its ruler. In the Vici and pagi justice was administered by principes, elected by the nation in its popular assembly, and assisted in each district by a hundred companions or assessors.2 They had also Duces, their leaders in war, elected probably from among the principes, but whose authority was based, not like that of the kings, on noble birth, but on personal valour.3 Each district contributed its hundred fighting men to the national host. The principes were attended by bands of retainers (comites), who protected the person of their lord in war and upheld his state in peace,' receiving in return such presents as their leader could confer. The power of all the chiefs, whether reges, duces, or principes, was greatly limited. All important State affairs were discussed and determined in the national assemblies, held at stated times, and attended by all the freemen of the tribe. Questions of minor importance were settled by the principes, meeting as a separate body, and this body also appears to have taken the initiative in bringing matters before the large assembly. Below the freemen was a class of men intermediate between the slave and the freeman. They were not slaves, but they had no political rights. They were the cultivators of the soil which they held under the freemen, to whom they rendered a part of its produce as Last of all came the mere slaves, chiefly made up of prisoners of war and of freemen who had been degraded for some crime. rent. Among the freemen there were differences of rank and social status; some were of noble blood and some were not; but this distinction carried with it no inequality of political rights. Military valour was shared by the Germans with all the northern nations; but one of their national traits was remarkable from the earliest times the respect paid by them to the women of their race, who on their side were celebrated for an exceptional chastity. The tie of kindred was strong and all-pervading; it formed the basis of social organisation, and entered into the military, the legal, and the territorial arrangements. Side by side with it may be discerned the 1 Nec regibus infinita aut libera potestas.-Tac. Germ. c. vii. Eliguntur in iisdem consiliis et principes qui jura per pagos vicosque reddunt. Centeni singulis ex plebe comites consilium simul et auctoritas adsunt. Id. c. xii. Reges ex nobilitate, duces ex virtute sumunt.-Tac. Germ. c. vii. In pace decus, in bello praesidium. Id. c. xiii. [For the Celtic comites, see Lefort, Le Droit et les Institutions des Gaulois. Paris: Thorin, 1877.-C.] 5 [On the position of women in early Teutonic settlements, cf. Georg Waitz, Deutsche Verfassungs Geschichte, Kiel, 1880, vol. i. pp. 48, 67-69.-ED.] • See Tacitus, op. cit., for the importance of the family tie; its bearings on the germ of Feudalism in the relation existing between the princeps and his comites, though it was as yet unconnected with the tenure of land. Such were the general features of the Political and Social system which our Teutonic forefathers brought with them to their new island home. But the process of migration and conquest necessarily produced certain modifications and developments of the primitive institutions. One of the earliest of these developments was the institution of Royalty. assume the According to the Saxon Chronicle, the chieftains of the first settlers The Teutowere only distinguished by the title of Ealdorman, or Heretoga, the nic leaders former word expressing the civil, the latter the military, aspect of the Regal title. same office. But the successful leader soon won for himself a position much stronger than that of any chief in the old land, and, in most cases, assumed the regal title, as more accurately denoting his altered relation to his followers. The word Cyning, or King, [probably] connected [in Teutonic thought] with Cyn, or Kin, marked out the bearer of the title as the representative of the race, the head and leader of the people, not the lord of the soil. His reputed descent from Woden, the God from whom all the English kings professed to descend, invested with a semi-sacred character the authority which his own prowess and the will of the people had conferred upon him. (597-681). The conversion of the English to Christianity exercised an important Conversion of the Enginfluence upon the national development. The Church not only intro- lish to duced a higher civilisation, mitigated the original fierceness of the Christianity heathen conquerors, softened their pride of birth and race, and exalted the power of the intellect above that of brute force, but also supplied a new and powerful bond of union to a divided people. Once within the pale of the universal Christian Church, the English, moreover, were necessarily brought into relations with the general political society of Europe; and in the highly organised system of ecclesiastical synods they found a pattern by which to regulate the procedure of host, c. 7; feuds, c. 21; inheritance, c. 20; the kin of the unfaithful wife, c. 19; exogamy unusual, c. 4. Geffroy (op. cit. p. 207) says: Il est facile de distinguer dans les récits de César et de Tacite l'existence de petits groupes d'autant mieux constitués que les cercles en sont plus étroits, et qu'on se rapproche d'avantage du groupe le plus simple et le moins nombreux, celui de la famille. 1 S. a. 449 (of the Jutes): Heora heretogan, " Hengest and Horsa. S. a. 495 (of the West Saxons): Her comen twegen ealdormen on Brytene, Cerdic and Cynric.-A.-S. Chron. ; cf. Freeman, Norm. Conq. i. 77. [King, probably old German Chuning," Kunig,"="race." Cf. Gneist, Eng. Const. cap. 2, p. 14, note, who remarks that the etymology of the word "King" is dubious; and Lappenberg, i. p. 566, seq. On the rise of the Anglo-Saxon Monarchy; vide also Hannis Taylor, Origin and Growth of the Eng. Const., p. 109; cf. infra, p. 23, note1.-ED.] |