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§ 66.

Old French law the

foundation

law.

PRIOR to the conquest of England, in 1066, the law governing Normandy was that existing in common with France. It is true that by the treaty of Saint of Norman Clair, in 912, a part of Neustria, constituting substantially the future Normandy, was transferred by Charles the Simple to the Normans. But the old Frank institutions, so far from being cast aside by the new occupants, were endued with additional vigor. No judicial records of those days remain; and only general intimations from which we can gather that until the invasion of England the Normans retained the old Frank institutions. After the establishment of the Normaus in England, and the introduction by them of Frank law, that law became the subject of much interest and of copious exposition. The curia regis (king's bench), a reproduction of the French royal court, became the starting point of the principal reforms. Under Henry II. the term Scaccarium (Echiquier) was used in the same relation; and in England the echiquier was at once a court of justice and a tribunal of accounts. Under Henry I. the members of the scaccarium were divided into barons and justices; the justices being men trained to the law, and gradually absorbing the business litigation of the state, the king's bench taking personal litigation, and litigation affecting the peace of the realm. The scaccarium became in this way a school of capable officials, whose duty it was to establish an accurate system of business accounts for the Norman realm; the results being retained in the Magni Rotuli Scaccarii. Of this we have records of greater or less fulness for the years 1180, 1184, 1195, 1198, 1201, and 1203; and the details here given, open, in respect to income and receipts, an interesting view of the Norman juridical system of those days. The Norman curia

1 The exchequer rolls were edited in 1840-44, by Stapleton, under the title: "Magni Rotuli Scaccarii Normanniæ sub regibus Angliæ," 2 vols., with "observations on the great rolls of the Exchequer." A review and summary of this work is given in the Mémoires de la Société des Antiquaires de Normandie, vols. 15 and 16; and in the

16th volume of the same work a fragment of the Rotulus for 1184 is published by Delisle, with valuable notes. Dr. Brunner, in his excellent essay on this topic, in Holtzendorff's Rechtslexicon, i. 298, refers to an unfinished essay by Delisle: "Des revenus publics en Normandie au XII ième siècle in der Bibliothèque de l'école des

ducis adopted with increased efficiency the jurisdiction of the French royal court. The popular tendency was to extend trial by duel. This was held in check by the curia ducis, which established a system of justice which was carried on under ducal writ. Under the curia ducis, trials by duel and by wager fell into disuse, and trial by inquisitio (or proof) was instituted; and under this inquisitio a jury was summoned and proof by witnesses and writings adduced, the jury being composed of persons from the vicinage supposed to be acquainted with the facts.-A statute of Henry II. (1150-2) established a specific form of inquisitio, called recognitio, as an ordinary method of proof, to be adduced before the justiciarii itinerantes holding assizes from place to place under writs from the ducal chancery. No material change of the Norman system was effected by the conquest by Philip Augustus, who, on acquiring possession, expressly guaranteed to the land all its privileges. To Philip Augustus no peculiar development of Norman law is to be assigned. The statuta et consuetudines Normanniae-Etablissements et Coutumes de Normandiecontains two parts: the first of which consists of statutes of the last years of the twelfth century and of the earlier years. of the thirteenth century; the second part, Tractatus de brevibus et recognitionibus, exhibits a more recent condition of things, giving the details of the Norman recognition practice, to which reference has been made. The first original register or roll-book of the judicial acts of the Norman exchiquier now in existence goes back to 1336, although there is proof of the existence of an official register in the thirteenth century. As many as 834 judgments of the exchiquier in the thirteenth century are given by Delisle in his compilation published in Paris in 1864. But, according to Dr. Brunner, the most copious and comprehensive reproduction of Norman law is a work prepared not later than 1280, the Latin title

chartes, S. II. 5, S. III. 1, 3." The whole topic is discussed with great ability by Mr. Stubbs, in his Constitutional History of England, London, 1880.

1 Brunner mentions that this com

pilation is to be found, in French, in Warnkönig's Französische Rechtsgeschicte, vol. ii.; and, in Latin, in Marnièr's Etablissements et Coutumes, etc., Paris, 1839.

being "Somma de legibus consuetudinum Normannie," the French title "Grand Contumier de Normandie." The statutes and customs of Normandy are given by the unknown author of this work not only with fulness and accuracy, but with a system not unlike the English law books previously published, so that it may be ranked with them as an exposition of contemporary Anglo-Norman law. That the work met the practical wants of the times is illustrated by the fact that it was used for centuries as an authoritative exposition of Norman law. Its value as an exposition of Anglo-Norman law arises from the fact that it contains the laws and customs of Normandy at the time when some of those laws and customs were incorporated in the English system. Subsequent to the preparation of the Somma, the Norman law gradually approximated to the French, not so much in the abrogation of statutes as in the modification of customs, and in the construction given to these statutes by the French judges then presiding in the Norman courts.1

AngloSaxon law of distinc

§ 67. The classical Roman law was administered by the courts established by the Romans during the Roman dominancy of England. "It is a very remarkable fact," tive origin. says Sir R. Phillimore, "that, from the reign of Claudius to that of Honorius (a period of about three hundred and sixty years), her judgment-seats had been filled by some of the most eminent of those lawyers (Papinian, Paulus, and Ulpian), whose opinions were afterwards incorporated into the Justinian compilation." This, however, was only during the Roman occupancy. In the chaos that followed the Roman law, as such, ceased to be authoritative, though an acquaintance with it lingered among the clergy. The first system of law that emerges, in the awakening at the close of

1 Further details as to the old Norman law will be found in Dr. Brunner's article, already noticed, in Holtzendorff's Ency. (1882), 300-1. Stapleton's work has already been noticed. See, also, Madox, History and Antiquities of the Exchequer; Floquet, Hist. du parlement de Nor

mandie, 1840; Howard, Anciennes Lois des Français, Rouen, 1766; Brunner's Abhand. das Anglo-Normaun, Erbfolg. Syst., 1869.

2 Int. Law, Preface to 1st ed., citing Duck, de Usu ac Autor. Juris Rom., I. ii. c. 8, pars secunda, § 7.

the middle ages, is mainly made up of Anglo-Saxon statutes, which were in some respects analogous to the privileges (Volksrechte) of the other Germanic nations.-In the half century that intervened between Athelbert and William the Conqueror, those statutes were greatly extended, with some additions, it is true, from the canon law, but more from the Roman. The Anglo-Saxon statutes were adopted at the popu lar legislatures (Witenagemote), in which the king consulted with the Witan, or eminent men of the land, as to the public welfare. These statutes (Domas) were in part the codification of old customary law, in part the imposition of new legal rules. According to Gneist,' followed by Brunner, the legal literature of that period is to be classed as follows:

(1) The old Kent legislation, embracing the laws of Athelbert (560-616), on the subject of money paid to recompense injured parties and of acts of penitence; also the so-called laws of Hlothar and Cadric (673), relating to criminal law and process; and the laws of Wihtrad (696), relating to ecclesiastical and criminal topics.

(2) The laws of Ine, king of the West Saxons (688-727), remarkable, according to Brunner, for their wide range, as well as for the fact that West-Saxony was later the "caput regni et legum." (Leges Hen. I., c. 70.)

(3) From the period of the consolidated monarchy came the laws of Alfred of West-Saxony (871-901), probably about the close of his reign. They contain in part a republication of the laws of Athelbert, Offar, and Ine; rules in respect to the Wergeld, to oaths, and to suretyship, being contained in Alfred's treaty with the Danes (880-890). Of the two remaining laws of Edward the Elder, the older relates to sale, to perjury, and the withholding of rights; the later contains rules in respect to the preservation of the peace. Among the laws of Athelstan (924-940) are enumerated the Concilium Greatangleagense, the Concilium Exoniense, the Concilium Fefreshhamense, the Concilium Thunresfeldense, and the Judicia civitatis Lundoniæ, which gives, in detail, among other things, the rules relative to the

1 Geschichte, etc., der Eng. Commem. Verfas., 1863; Self-Government, etc., 3d ed., 1871.

London guilds. The laws of Edmund (940-946) cousist of the Concilium Lundinense, and the Concilium Culintunense. Under the laws of Edgar (959-975) are enumerated the Constitutio de hundredis, the Concilium Wihtbordestanense, and the Concilium Andeferanense. The laws of Athelred (978-1016) which close the legislation of the Saxon kings, include the Concilium Wudestockiense, the constitutions of 1008 and 1014, the Concilium Wanetungense, the treaty with the Danes, and the Concilium Aenhamense.

(4) The laws of Knut (1016-1035), which were adopted at the Concilium Wintoniense, and which are in main reproductions of the older Anglo-Saxon laws.

(5) Certain compilations made by private parties among the Saxons after the Norman Conquest, for the purpose of showing the Saxon law to the Norman authorities. Chief among these are the so-called laws of Henry I. These begin with Henry I.'s charter of 1101, and with certain privileges granted to the city of London, with a short introduction by the editor. Then follow the decree of Burchard of Worms, the lex Salica and the lex Rubruariorum, the Frank Capitulations, and in peculiar fulness the Anglo-Saxon laws which the editor took from the Latin translation known as the vetus versio, although several Norman statutes are included in the compilation without noticing the distinction. That the work emanates from an ecclesiastic may be inferred from the use of phrases from the canon law and the omission of any from the Roman standards, as well as from the want of legal exactness and freedom in the style; and that the compiler was an Anglo-Saxon is clear from the fulness and sympathy with which the distinctive Anglo-Saxon jurisprudence is brought out. The so-called laws of Edward the Confessor, which purport to give the result of an inquiry by William the Conqueror, through experts, as to Anglo Saxon laws, show, according to Dr. Brun

The time of publication is disputed. The impression for some time was that the book was published in the reign of Stephen or of Henry II.; but Liebermann, in his essay entitled Die

Abfassungszeit der Leges Henrici I., in the Forschungen zur Deutschen Geschichte, xvi. 582 ff, argues with much force that the book as a whole was composed in the years 1108-1118.

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