THE GROWTH OF ENGLISH LAW.

CHAPTER I.

THE BEGINNINGS OF ENGLISH LAW, 1000-1272.

BEFORE the time of Edward I. English law did not exist: Anglo-Saxon, Danish, Norman, and Roman law then partially prevailed, and Norman, ecclesiastical, and Roman influences were each at work. By the year 1272, however, English law, as we now understand it, had attained a definite shape, numerous changes, as well in its substance as its form, thereafter occurred from century to century, and from this date we witness not so much the gradual creation of a national law and judiciary, which is the characteristic feature of the previous period, as variations, co-extensive with the growth of England, of a national jurisprudence. Metaphorically speaking, from this time the various streams from different sources are united into one, which, widening, varying in aspect, broken in one place and diverted in another, has yet one unmistakeable and complete individuality. The metaphor, it is true, must not be pressed too far; it must not be supposed that English law from the time of Edward I. contained streams themselves clearly defined at that date, for it is a mixture of several systems, each being gradually modified during the course of time. "The picture of two streams

R.

B

pre

of law meeting to form one river would deceive us, even could we measure the volume and analyse the waters of each of these fancied streams. The law which prevails in the England of the twelfth century-this one thing we may say with some certainty-cannot be called a mixture of the law which prevailed in England on the day when the Confessor was alive and dead, with the law which vailed in Normandy on the day when William set sail from Saint Valery. Nor can we liken it to a chemical compound which is the result of a combination of these two elements. Other elements which are not racial have gone to its making. Hardly have Normans and Englishmen been brought into contact, before Norman barons rebel against their Norman lord, and the divergence between the interests of the king and the interests of the great feudatories becomes as potent a cause of legal phenomena as any old English or old Frankish traditions can be. Nor, to take but one other example, dare we neglect, if we are to be true to our facts, the personal characters of the great men who accomplished the subjection of England, the characters of William and Lanfranc. The effects, even the legal effects, of a Norman conquest of England would assuredly have been very different from what they were, had the invading host been led by a Robert Curthose. And in order to notice just one more of the hundred forces which play upon our legal history, we have but to suppose that the Conqueror instead of leaving three sons had left one only, and to ask whether in that case a charter of liberties would ever have been granted in England. We have not to speak here of all these causes; they do not come within the history of law; only we must protest against the too

common assumption, that the English law of later times must in some sort be just a mixture, or a compound, of two old national laws" (a).

This protest is necessary against a too stringent application of the metaphor, but with the qualification to be found in the passage which we have quoted it makes the character of the early growth of our law more comprehensible.

But in a brief review of the growth of English law during the first three centuries after the Conquest, one cardinal point needs at the outset to be emphasised, and that is the connexion of the law with the political and social state of the country. Nothing has tended more to divert men from a study of English law than the regarding it as a separate science; for it can never be properly studied unless it is considered in its relations to the nation generally and to national life. Law in some way is constantly affecting the daily affairs of each member of the community, and yet there is no subject which has been considered in a more detached manner and with less reference to its social or political effects.

The means of obtaining justice are of the first importance in every community, and we may therefore at once direct our attention to the subject of judicial institutions. Of Anglo-Saxon law the evidence is necessarily

(a) The History of English Law before the Time of Edward I. By Sir Frederick Pollock, Bart., M.A., LL.D., Corpus Professor of Jurisprudence in the University of Oxford, of Lincoln's Inn, Barrister-atLaw, and Frederic William Maitland, LL.D., Downing Professor of the Laws of England in the University of Cambridge, of Lincoln's Inn, Barrister-at-Law. In 2 vols. Cambridge, 1895. Vol. I. p. 58.

obscure, and in such a state of society as existed in England prior to the Norman Conquest elaborate institutions of any kind are not to be expected. But, on the other hand, there may exist in rude communities a simplicity which may well be the envy of more advanced societies. And this was the case in the England of the AngloSaxons. The ordinary courts of public justice "were the county court and the hundred court, of which the county court was appointed to be held twice a year, the hundred every four weeks. Poor and rich men alike were entitled to have right done to them, though the need of emphasising this elementary point of law in the third quarter of the tenth century suggests that the fact was often otherwise" (b).

We should be wrong, however, if we allowed our ideas of courts of law in modern times to govern our minds in regard to those of such a primitive age as the tenth century. The courts were then held in the open air. Of their procedure we know nothing; indeed, procedure scarcely existed. The judges were, of course, the leading men of the county and the hundred respectively: there was the ealdorman; the bishop too sat in the county court, since the Church claimed for him a large share in the direction of even secular justice. Probably the bishop was often the only member of the court who possessed any learning or any systematic training in public affairs. The means of enforcing judgements were rude; the subjects of these judgements were offences and wrongs common in every simple state of society-homicide, theft, more especially cattle-stealing. "The law of contract is

(b) History of English Law before the Time of Edw. I., Vol. I. p. 18.

so rudimentary as barely to be distinguishable from the law of property." In later years above and below the local courts are the king's courts and the private courts of lords, spiritual and temporal, of various degree. Of the latter next to nothing is to be seen in Anglo-Saxon times. That there were rights of private jurisdiction is a matter of surmise rather than of proof. It is possible, it may even be probable, that to a limited extent they existed before the Conquest. It is sufficient, however, to assume such a possibility from subsequent facts without direct evidence at an earlier date.

Of the preservation of the peace, and of the punishment of offences by the king, there is as little evidence as of private jurisdictions; but that it existed is nevertheless not a matter of doubt, though the extent of it is unknown. But what we have to bear in mind is that in these early times "the king's peace "does not represent a general royal jurisdiction. The phrase comes from a time "when the king's protection was not universal but particular, when the king's peace was not for all men or all places. Breach of the king's peace was an act of personal disobedience, and a much graver matter than an ordinary breach of public order: it made the wrongdoer the king's enemy." In fact a sanctity attached to the king's house, arising from the respect which belonged to him individually. His attendants and those over whom he threw his protection were entitled to be kept from hurt by means of his authority. Thus the particular protection of the early king grew into the general jurisdiction of later monarchs.

When we reach the times of the Norman and the