279 Effects of the Conversion of the Barbarians to Christianity. and the doctrine and principles of imperial rule were prominently put forth (a). The name and character of senators, optimates, and the like was given to the potentates of the land, and the king had his consistory or council, of which they were members (b). Those who were dignified with these titles could only be tried in the court of the sovereign, a privilege which had been enjoyed by the "Illustrious" under the Roman emperors (c). The optimates, together with the dignified clergy and the heads of the monasteries, were the prominent members of the Great Council. The duty, or the privilege, of making laws for the community with the advice of his consistory or of the Great Council (d), was assumed by the king. Codes of laws were issued by the advice or with the sanction of the council, but purporting to have their force from the royal authority. The condition of the Anglo-Saxon nobles who were scattered over the country, who had ample and congenial occupation in providing for the security of their strongholds and their surrounding domains, and not unfrequently in acts of aggression (e), *rendered it scarcely pos[*280] sible that any effectual measures for the establishment of a system of Civil Jurisprudence should emanate from them, had they been qualified for so important an office. But such a task was eminently suited to the habits and inclinations of the Christian clergy (ƒ) who had been introduced amongst the conquerors; indeed, they alone were competent to its performance. To the clergy, therefore, as we have seen, it was principally if not entirely committed to compile the laws relating to civil rights which were promulgated in the codes which were issued by the successive kings of Anglo-Saxon and Danish race. Little was to be derived from the ancient customs of the conquerors; that little was re down to the Rebellion, and by the same agents, v. int. al. Lord Campbell's Lives of the Chancellors, ii. p. 453, 561. (a) Vide supra, p. 15; and 'see Guizot, Cours d'Histoire, tome i. p. 338, as to the Continental States. (b) V. supra, p. 71, 72. 80; and Guizot, Cours d'Histoire, tome i. p. 338, and tome iii. p. 204. (c) V. supra, p. 77; and Guizot, Cours d'Hist. iii. p. 204. (d) I observe in a work of great research, by a gentleman already known in the literary world (Anstey's Lectures on the Laws and Constitution of England), just published, the following passage: "The members of the Wittenagemote annulled the royal Edict, when contrary to law and justice," referring to Heming, p. 27. The facts, as they there appear, are that the king had given away some land which belonged to the church of Worcester. The bishop instituted proceed ings in the Wittenagemote or Great Council of Mercia, to recover the land, and by the judgment of the Proceres the land was adjudged to the bishop, he having made some valuable presents, which are minutely described, to the King and to the Queen: the charter which was drawn up on the occasion is signed by the king as his own grant. The early part of this work embodies in a comparatively small space the result of the laborious inquiries of Sir T. Palgrave into the ancient customs of the German tribes who settled in England. The writer displays great reading and diligence. "The wisdom of our ancestors" was never, perhaps, more energetically asserted. (e) V. ibid. tome iv. 35me Leçon, p. 130, et seq. This was one of the most striking alterations which took place among the barbarians after their conquest, ibid.-and one that mainly contributed to rear the Feudal system, which, constitutionally considered, it is plain was quite as far from being German as Roman (v. ibid. p. 131); it was the result of circumstances. I believe that the 35th and 36th Lectures present a true picture of the times: to expect that a feudal baron, as there described, should turn his attention to civil legislation, appears to me to be quite out of the question. (f) Alcuin (v. supra, p. 13) evidently compiled some of Charlemagne's Capitularies on the subject of Civil Jurisprudence. See his letters cited by Mons. Guizot, Cours d'Histoire, ii. p. 329, "Sur les testamens, les successions, et plusieurs autres sujets;" there are other passages to a similar effect. The Institution of Lord and Man and Lord and Vassal. 280 duced into form, and many of such customs were accommodated to those of a corresponding nature which had prevailed among the Romans (a). Care would of course be taken that any alterations that were made should be in accordance with the existing state of society; the interests of the lords and territorial owners being peculiarly the objects of regard. In the mean time an institution sprung up (b), namely, the relation of Lord and Man (the parent of Lord and Vassal), which ultimately had a most material influence on the laws of property. The kind of patronage which was incident to this relation was not confined to the chiefs or nobles, as was that which is spoken of by Tacitus; it extended to every rank and class of freemen who were at their own disposal (c). Nor was it merely an honorary devotion on the part of the inferior, like that of the companions of the ancient German chiefs; it was, as we have seen (d), the subject of a mutual bargain confirmed by an oath (e). At first this connection, like that between the patron and the client, was purely personal. In process of time, however, the institution of [*281] lord and man may have originated, all the incidents of the relation of patron and client were transferred to it, if they were not adjuncts at its original introduction. This institution was so moulded as to be made subservient to the exigencies of a society that was almost perpetually in a state of preparation for armed aggression or defence, if not actually engaged in open hostilities (ƒ). But the connection between the lord and the man soon ceased to be merely personal. The king, the titled clergy, those who were honored with official dignities, and the other great owners of allodial land, found it convenient, according to the practice which had prevailed with the Roman patrons, to commit to their "men" portions of their domains, by way of benefice, to be held subject to the general duties incident to clientela, or upon express services to be rendered by the man to his lord; the grants being sometimes extended to descendants, or to those whom. the beneficiary might choose to select as his successors in the enjoyment of the land (g). Hence the old Roman distinction between the dominium directum and the dominium utile in land, now began to appear, and the institution of lord and vassal was established. The privileges which were enjoyed by the vassal of the king caused many allodial owners of high note and consequence to aim at that distinction, and the security which was purchased by dependence on a man (a) Mons. Guizot, following M. Savigny, remarks that, "the laws of the Visigoths and Burgundians were much more Roman than Barbarian," Cours d'Hist. tome i. p. 226, et v. p. 336–7 and 342. “Roman civilization," he observes, "at length metamorphosed the barbarians," v. ibid. 343-5. The pages above referred to show, that the influence of the clergy brought about on the Continent precisely the same effects as have been described in the preceding Chapters as regards England. The clergy were the principal officiators even on the introduction of a warrior into the order of Knighthood, Guizot, 36me Leçon, tome iv. p. 178. (b) Book I. chap. viii. p. 35, 36; chap. ix. p. 37. (c) It did not comprehend the lowest class or Churls, all of whom (though nominally free) were already the dependents of some master. (d) Supra, p. 37. (e) The more I consider the constitutional and legal history of these early times, the more I am confirmed in the opinion that the basis of the Anglo-Saxon and Continental relation of lord, or master and man, was that of patron and client, and patron and freedman, not of prince and comes. (f) Book I. chap. ix. p. 39, et seq. 279 Effects of the Conversion of the Barbarians to Christianity. and the doctrine and principles of imperial rule were prominently put forth (a). The name and character of senators, optimates, and the like was given to the potentates of the land, and the king had his consistory or council, of which they were members (b). Those who were dignified with these titles could only be tried in the court of the sovereign, a privilege which had been enjoyed by the "Illustrious" under the Roman emperors (c). The optimates, together with the dignified clergy and the heads of the monasteries, were the prominent members of the Great Council. The duty, or the privilege, of making laws for the community with the advice of his consistory or of the Great Council (d), was assumed by the king. Codes of laws were issued by the advice or with the sanction. of the council, but purporting to have their force from the royal authority. The condition of the Anglo-Saxon nobles who were scattered over the country, who had ample and congenial occupation in providing for the security of their strongholds and their surrounding domains, and not [*280] unfrequently in acts of aggression (e), *rendered it scarcely pos sible that any effectual measures for the establishment of a system of Civil Jurisprudence should emanate from them, had they been qualified for so important an office. But such a task was eminently suited to the habits and inclinations of the Christian clergy (f) who had been introduced amongst the conquerors; indeed, they alone were competent to its performance. To the clergy, therefore, as we have seen, it was principally if not entirely committed to compile the laws relating to civil rights which were promulgated in the codes which were issued by the successive kings of Anglo-Saxon and Danish race. Little was to be derived from the ancient customs of the conquerors; that little was re down to the Rebellion, and by the same agents, v. int. al. Lord Campbell's Lives of the Chancellors, ii. p. 453, 561. (a) Vide supra, p. 15; and 'see Guizot, Cours d'Histoire, tome i. p. 338, as to the Continental States. (b) V. supra, p. 71, 72. 80; and Guizot, Cours d'Histoire, tome i. p. 338, and tome iii. p. 204. (c) V. supra, p. 77; and Guizot, Cours d'Hist. iii. p. 204. (d) I observe in a work of great research, by a gentleman already known in the literary world (Anstey's Lectures on the Laws and Constitution of England), just published, the following passage: "The members of the Wittenagemote annulled the royal Edict, when contrary to law and justice," referring to Heming, p. 27. The facts, as they there appcar, are that the king had given away some land which belonged to the church of Worcester. The bishop instituted proceedings in the Wittenagemote or Great Council of Mercia, to recover the land, and by the judgment of the Proceres the land was adjudged to the bishop, he having made some valuable presents, which are minutely described, to the King and to the Queen: the charter which was drawn up on the occasion is signed by the king as his own grant. The early part of this work embodies in a comparatively small space the result of the laborious inquiries of Sir T. Palgrave into the ancient customs of the German tribes who settled in England. The writer displays great reading and diligence. "The wisdom of our ancestors" was never, perhaps, more energetically asserted. (e) V. ibid. tome iv. 35me Leçon, p. 130, et seq. This was one of the most striking alterations which took place among the barbarians after their conquest, ibid.-and one that mainly contributed to rear the Feudal system, which, constitutionally considered, it is plain was quite as far from being German as Roman (v. ibid. p. 131); it was the result of circumstances. I believe that the 35th and 36th Lectures present a true picture of the times: to expect that a feudal baron, as there described, should turn his attention to civil legislation, appears to me to be quite out of the question. (f) Alcuin (v. supra, p. 13) evidently compiled some of Charlemagne's Capitularies on the subject of Civil Jurisprudence. See his letters cited by Mons. Guizot, Cours d'Histoire, ii. p. 329, "Sur les testamens. les successions, et plusieurs autres sujets: there are other passages to a similar effect. age The Institution of Lord and Man and Lord and Vassal. 280 duced into form, and many of such customs were accommodated to those of a corresponding nature which had prevailed among the Romans (a). Care would of course be taken that any alterations that were made should be in accordance with the existing state of society; the interests of the lords and territorial owners being peculiarly the objects of regard. In the mean time an institution sprung up (b), namely, the relation of Lord and Man (the parent of Lord and Vassal), which ultimately had a most material influence on the laws of property. The kind of patronwhich was incident to this relation was not confined to the chiefs or nobles, as was that which is spoken of by Tacitus; it extended to every rank and class of freemen who were at their own disposal (c). Nor was it merely an honorary devotion on the part of the inferior, like that of the companions of the ancient German chiefs; it was, as we have seen (d), the subject of a mutual bargain confirmed by an oath (e). At first this connection, like that between the patron and the client, was purely personal. In process of time, however, the institution *of lord and man may have originated, all the incidents of the rela[*281] tion of patron and client were transferred to it, if they were not adjuncts at its original introduction. This institution was so moulded as to be made subservient to the exigencies of a society that was almost perpetually in a state of preparation for armed aggression or defence, if not actually engaged in open hostilities (f). But the connection between the lord and the man soon ceased to be merely personal. The king, the titled clergy, those who were honored with official dignities, and the other great owners of allodial land, found it convenient, according to the practice which had prevailed with the Roman patrons, to commit to their "men" portions of their domains, by way of benefice, to be held subject to the general duties incident to clientela, or upon express services to be rendered by the man to his lord; the grants being sometimes extended to descendants, or to those whom the beneficiary might choose to select as his successors in the enjoyment of the land (g). Hence the old Roman distinction between the dominium directum and the dominium utile in land, now began to appear, and the institution of lord and vassal was established. The privileges which were enjoyed by the vassal of the king caused many allodial owners of high note and consequence to aim at that distinction, and the security which was purchased by dependence on a man (a) Mons. Guizot, following M. Savigny, remarks that, "the laws of the Visigoths and Burgundians were much more Roman than Barbarian," Cours d'Hist. tome i. p. 226, et v. p. 336-7 and 342. "Roman civilization," he observes," at length metamorphosed the barbarians," v. ibid. 343-5. The pages above referred to show, that the influence of the clergy brought about on the Continent precisely the same effects as have been described in the preceding Chapters as regards England. The clergy were the principal officiators even on the introduction of a warrior into the order of Knighthood, Guizot, 36me Leçon, tome iv. p. 178. 281 Effects of the Norman Conquest. of power, or on a bishop or monastery, induced many, who unaided were unable to protect themselves and their property from violence and aggression, to commend themselves and their estates to the patronage and protection of some dignified person or powerful territorial owner; imitating in this respect the practice which had prevailed to a great extent in the Roman provinces (a). Hence, as we have seen, in the time of Edward the Confessor there was scarcely any portion of land in the kingdom that was not held of some superior lord, that lord being in many instances the vassal of some dignitary or more powerful lord, or of the king (b). The lands so held became, as has been noticed, the subject of specific legislation in the Codes (c). As regards Civil Jurisprudence generally, it is to be observed, that the Anglo-Saxon Codes (here I am in part using the language [*282] of a modern observer, well conversant with the subject) (d), contain so few ordinances relating to the private rights of individuals in civil business, that other regulations must have existed in the cities, and wherever commercial intercourse had awakened or kept alive the faintest sparks of civilization. A local unwritten or customary law, therefore (unless, indeed, the Roman law was in such cases directly referred to), must have existed. But the constitution of the judicial tribunals absolutely prevented any organized system of customary law from being established. The presidents might advise, but the assembled members of the court gave the judgment. There were no records of the decisions of any court which could serve as precedents (e). The decisions of one tribunal were not binding on another, nor, indeed, as far as we can learn, was any court bound by its own decision, if from caprice, or any other cause, the opinions of its members should take a different turn. There is no notice of any authentic records having been kept, even of the proceedings which took place in the King's Court, either originally, or by way of appeal from the inferior jurisdictions; though, no doubt, appeals brought before the King's Court occasioned the enactment of many of the laws contained in the codes, if those laws are not, in fact, in many instances, the very decisions themselves. Such are the general features of the laws relating to civil rights, which prevailed at the time when the next great event that presents itself occurred, namely, the Norman Conquest. This event, as we have seen, placed almost unlimited power in the hands of the Conqueror. The treason (for the opposition to his claims if founded, as he insisted they were, hæreditario jure according to the constitutional law, may be so designated), of the great body of those |