[29] The Dialect of the Southern Counties of Scotland, its Pronunciation, Grammar and Historical Relations, with an Appendix on the present limits of the Gaelic and Lowland Scotch, and the Dialectal Divisions of the Lowland Tongue; and a Linguistical Map of Scotland, by James A.H. Murray (London, 1873).
[30] A Glossary (with some pieces of Verse) of the Old Dialect of the English Colony of Forth and Bargy, collected by Jacob Poole, edited by W. Barnes, B.D. (London, 1867).
ENGLISH LAW (History). In English jurisprudence “legal memory” is said to extend as far as, but no further than the coronation of Richard I. (Sept. 3, 1189). This is a technical doctrine concerning prescriptive rights, but is capable of expressing an important truth. For the last seven centuries, little more or less, the English law, which is now overshadowing a large share of the earth, has had not only an extremely continuous, but a matchlessly well-attested history, and, moreover, has been the subject matter of rational exposition. Already in 1194 the daily doings of a tribunal which was controlling and moulding the whole system were being punctually recorded in letters yet legible, and from that time onwards it is rather the enormous bulk than any dearth of available materials that prevents us from tracing the transformation of every old doctrine and the emergence and expansion of every new idea. If we are content to look no further than the text-books—the books written by lawyers for lawyers—we may read our way backwards to Blackstone (d. 1780), Hale (d. 1676), Coke (d. 1634), Fitzherbert (d. 1538), Littleton (d. 1481), Bracton (d. 1268), Glanvill (d. 1190), until we are in the reign of Henry of Anjou, and yet shall perceive that we are always reading of one and the same body of law, though the little body has become great, and the ideas that were few and indefinite have become many and explicit.
Beyond these seven lucid centuries lies a darker period. Nearly six centuries will still divide us from the dooms of Æthelberht (c. 600), and nearly seven from the Lex Salica (c. 500). We may regard the Norman conquest of England as marking the confluence of two streams of law. The one we may call French or Frankish. If we follow it upwards we pass through the capitularies of Carlovingian emperors and Merovingian kings until we see Chlodwig and his triumphant Franks invading Gaul, submitting their Sicambrian necks to the yoke of the imperial religion, and putting their traditional usages into written Latin. The other rivulet we may call Anglo-Saxon. Pursuing it through the code of Canute (d. 1035) and the ordinances of Alfred (c. 900) and his successors, we see Ine publishing laws in the newly converted Wessex (c. 690), and, almost a century earlier, Æthelberht doing the same in the newly converted Kent (c. 600). This he did, says Beda, in accordance with Roman precedents. Perhaps from the Roman missionaries he had heard tidings of what the Roman emperor had lately been doing far off in New Rome. We may at any rate notice with interest that in order of time Justinian’s law-books fall between the Lex Salica and the earliest Kentish dooms; also that the great pope who sent Augustine to England is one of the very few men who between Justinian’s day and the 11th century lived in the Occident and yet can be proved to have known the Digest. In the Occident the time for the Germanic “folk-laws” (Leges Barbarorum) had come, and a Canon law, ambitious of independence, was being constructed, when in the Orient the lord of church and state was “enucleating” all that was to live of the classical jurisprudence of pagan Rome. It was but a brief interval between Gothic and Lombardic domination that enabled him to give law to Italy: Gaul and Britain were beyond his reach.
The Anglo-Saxon laws that have come down to us (and we have no reason to fear the loss of much beyond some dooms of the Mercian Offa) are best studied as members of a large Teutonic family. Those that proceed from the Kent and Wessex of the 7th century are closely related to the continental folk-laws. Their next of kin seem to be the Lex Saxonum and the laws of the Lombards. Then, though the 8th and 9th centuries are unproductive, we have from Alfred (c. 900) and his successors a series of edicts which strongly resemble the Frankish capitularies—so strongly that we should see a clear case of imitation, were it not that in Frankland the age of legislation had come to its disastrous end long before Alfred was king. This, it may be noted, gives to English legal history a singular continuity from Alfred’s day to our own. The king of the English was expected to publish laws at a time when hardly any one else was attempting any such feat, and the English dooms of Canute the Dane are probably the most comprehensive statutes that were issued in the Europe of the 11th century. No genuine laws of the sainted Edward have descended to us, and during his reign England seems but too likely to follow the bad example of Frankland, and become a loose congeries of lordships. From this fate it was saved by the Norman duke, who, like Canute before him, subdued a land in which kings were still expected to publish laws.
In the study of early Germanic law—a study which now for some considerable time has been scientifically prosecuted in Germany—the Anglo-Saxon dooms have received their due share of attention. A high degree of racial purity may be claimed on their behalf. Celtic elements have been sought for in them, but have never been detected. At certain points, notably in the regulation of the blood-feud and the construction of a tariff of atonements, the law of one rude folk will always be somewhat like the law of another; but the existing remains of old Welsh and old Irish law stand far remoter from the dooms of Æthelberht and Ine than stand the edicts of Rothari and Liutprand, kings of the Lombards. Indeed, it is very dubious whether distinctively Celtic customs play any considerable part in the evolution of that system of rules of Anglian, Scandinavian and Frankish origin which becomes the law of Scotland. Within England itself, though for a while there was fighting enough between the various Germanic folks, the tribal differences were not so deep as to prevent the formation of a common language and a common law. Even the strong Scandinavian strain seems to have rapidly blended with the Anglian. It amplified the language and the law, but did not permanently divide the country. If, for example, we can to-day distinguish between law and right, we are debtors to the Danes; but very soon law is not distinctive of eastern or right of western England. In the first half of the 12th century a would-be expounder of the law of England had still to say that the country was divided between the Wessex law, the Mercian law, and the Danes’ law, but he had also to point out that the law of the king’s own court stood apart from and above all partial systems. The local customs were those of shires and hundreds, and shaded off into each other. We may speak of more Danish and less Danish counties; it was a matter of degree; for rivers were narrow and hills were low. England was meant by nature to be the land of one law.
Then as to Roman law. In England and elsewhere Germanic law developed in an atmosphere that was charged with traditions of the old world, and many of these traditions had become implicit in the Christian religion. It might be argued that all that we call progress is due to the influence exercised by Roman civilization; that, were it not for this, Germanic law would never have been set in writing; and that theoretically unchangeable custom would never have been supplemented or superseded by express legislation. All this and much more of the same sort might be said; but the survival in Britain, or the reintroduction into England, of anything that we should dare to call Roman jurisprudence would be a different matter. Eyes, carefully trained, have minutely scrutinized the Anglo-Saxon legal texts without finding the least trace of a Roman rule outside the ecclesiastical sphere. Even within that sphere modern research is showing that the church-property-law of the middle ages, the law of the ecclesiastical “benefice,” is permeated by Germanic ideas. This is true of Gaul and Italy, and yet truer of an England in which Christianity was for a while extinguished. Moreover, the laws that were written in England were, from the first, written in the English tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very ancient and barbarous Lex Salica is a Latin document, though many old Frankish words are enshrined in it. Also we notice—and this is of grave importance—that in England there are no vestiges of any “Romani” who are being suffered to live under their own law by their Teutonic rulers. On the Continent we may see Gundobad, the Burgundian, publishing one law-book for the Burgundians and another for the Romani who own his sway. A book of laws, excerpted chiefly from the Theodosian code, was issued by Alaric the Visigoth for his Roman subjects before the days of Justinian, and this book (the so-called Breviarium Alarici or Lex Romana Visigothorum) became for a long while the chief representative of Roman law in Gaul. The Frankish king in his expansive realm ruled over many men whose law was to be found not in the Lex Salica or Lex Ribuaria, but in what was called the Lex Romana. “A system of personal law” prevailed: the homo Romanus handed on his Roman law to his children, while Frankish or Lombardic, Swabian or Saxon law would run in the blood of the homo barbarus. Of all this we hear nothing in England. Then on the mainland of Europe Roman and barbarian law could not remain in juxtaposition without affecting each other. On the one hand we see distinctively Roman rules making their way into the law of the victorious tribes, and on the other hand we see a decay and debasement of jurisprudence which ends in the formation of what modern historians have called a Roman “vulgar-law” (Vulgarrecht). For a short age which centres round the year 800 it seemed possible that Frankish kings, who were becoming Roman emperors, would be able to rule by their capitularies nearly the whole of the Christian Occident. The dream vanished before fratricidal wars, heathen invaders, centrifugal feudalism, and a centripetal church which found its law in the newly concocted forgeries of the Pseudo-Isidore (c. 850). The “personal laws” began to transmute themselves into local customs, and the Roman vulgar-law began to look like the local custom of those districts where the Romani were the preponderating element in the population. Meanwhile, the Norse pirates subdued a large tract of what was to be northern France—a land where Romani were few. Their restless and boundless vigour these Normans retained; but they showed a wonderful power of appropriating whatever of alien civilization came in their way. In their language, religion and law, they had become French many years before they subdued England. It is a plausible opinion that among them there lived some sound traditions of the Frankish monarchy’s best days, and that Norman dukes, rather than German emperors or kings, of the French, are the truest spiritual heirs of Charles the Great.
In our own day, German historians are wont to speak of English law as a “daughter” of French or Frankish law. This tendency derived its main impulse from H. Brunner’s proof that the germ of trial by jury, which cannot be found in the Anglo-Saxon laws, can be found in the prerogative procedure of the Frankish kings. We must here remember that during a long age English lawyers wrote in French and even thought in French, and that to this day most of the technical terms of the law, more especially of the private law, are of French origin. Also it must be allowed that when English law has taken shape in the 13th century it is very like one of the coutumes of northern France. Even when linguistic difficulties have been surmounted, the Saxon Mirror of Eike von Repgow will seem far less familiar to an Englishman than the so-called Establishments of St Louis. This was the outcome of a slow process which fills more than a century (1066-1189), and was in a great measure due to the reforming energy of Henry II., the French prince who, in addition to England, ruled a good half of France. William the Conqueror seems to have intended to govern Englishmen by English law. After the tyranny of Rufus, Henry I. promised a restoration of King Edward’s law: that is, the law of the Confessor’s time (Lagam Eadwardi regis vobis reddo). Various attempts were then made, The Norman age. mostly, so it would seem, by men of French birth, to state in a modern and practicable form the laga Eadwardi which was thus restored. The result of their labours is an intricate group of legal tracts which has been explored of late years by Dr Liebermann. The best of these has long been known as the Leges Henrici Primi, and aspires to be a comprehensive law-book. Its author, though he had some foreign sources at his command, such as the Lex Ribuaria and an epitome of the Breviary of Alaric, took the main part of his matter from the code of Canute and the older English dooms. Neither the Conqueror nor either of his sons had issued many ordinances: the invading Normans had little, if any, written law to bring with them, and had invaded a country where kings had been lawgivers. Moreover, there was much in the English system that the Conqueror was keenly interested in retaining—especially an elaborate method of taxing the land and its holders. The greatest product of Norman government, the grandest feat of government that the world had seen for a long time past, the compilation of Domesday Book, was a conservative effort, an attempt to fix upon every landholder, French or English, the amount of geld that was due from his predecessor in title. Himself the rebellious vassal of the French king, the duke of the Normans, who had become king of the English, knew much of disruptive feudalism, and had no mind to see England that other France which it had threatened to become in the days of his pious but incompetent cousin. The sheriffs, though called vice-comites, were to be the king’s officers; the shire-moots might be called county courts, but were not to be the courts of counts. Much that was sound and royal in English public law was to be preserved if William could preserve it.
The gulf that divides the so-called Leges Henrici (c. 1115) from the text-book ascribed to Ranulf Glanvill (c. 1188) seems at first sight very wide. The one represents a not easily imaginable chaos and clash of old rules and Royal justice. new; it represents also a stage in the development of feudalism which in other countries is represented chiefly by a significant silence. The other is an orderly, rational book, which through all the subsequent centuries will be readily understood by English lawyers. Making no attempt to tell us what goes on in the local courts, its author, who may be Henry II.’s chief justiciar, Ranulf Glanvill, or may be Glanvill’s nephew, Hubert Walter, fixes our attention on a novel element which is beginning to subdue all else to its powerful operation. He speaks to us of the justice that is done by the king’s own court. Henry II. had opened the doors of his French-speaking court to the mass of his subjects. Judges chosen for their ability were to sit there, term after term; judges were to travel in circuits through the land, and in many cases the procedure by way of “an inquest of the country,” which the Norman kings had used for the ascertainment of their fiscal rights, was to be at the disposal of ordinary litigants. All this had been done in a piecemeal, experimental fashion by ordinances that were known as “assizes.” There had not been, and was not to be, any enunciation of a general principle inviting all who were wronged to bring in their own words their complaints to the king’s audience. The general prevalence of feudal justice, and of the world-old methods of supernatural probation (ordeals, battle, oaths sworn with oath-helpers), was to be theoretically respected; but in exceptional cases, which would soon begin to devour the rule, a royal remedy was to be open to any one who could frame his case within the compass of some carefully-worded and prescript formula. With allusion to a remote stage in the history of Roman law, a stage of which Henry’s advisers can have known little or nothing, we may say that a “formulary system” is established which will preside over English law until modern times. Certain actions, each with a name of its own, are open to litigants. Each has its own formula set forth in its original (or, as we might say, originating) writ; each has its own procedure and its appropriate mode of trial. The litigant chooses his writ, his action, and must stand or fall by his choice. Thus a book about royal justice tends to become, and Glanvill’s book already is, a commentary on original writs.