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Book I. England.Edit

Introduction.Edit

The following short notes concerning the documents here translated, are not intended in any way to be exhaustive. They will fully answer their purpose if they prove to be suggestive, if they seem to make the pieces they refer to desirable and interesting reading. The works of Gneist and Stubbs will furnish all the general knowledge that is necessary as a ground work.

No. I., the laws of William the Conqueror, is probably the sum and substance of all the enactments made by that sovereign. Especially interesting are the reference in § 6 to the wager of battle — the first mention of that institu- tion in English law — and the law against capital punish- ment in § 10. Important also is the act dividing the spiritual from the temporal courts — an act which tended to increase the independence of the clergy.

No. II., the bull of pope Adrian IV., long has been, and still is, an apple of discord among scholars. Is it a genuine document or not? The question is a weighty one, for the transaction it bears witness to was the first step towards the annexation of Ireland to England — an annexation which really took place, after a warlike expedition sixteen vears later. That a papal bull was dispatched to England about this time and concerning this matter is certain. That this was the actual bull sent is doubted by many—I myself am not among the number—from the fact that in form and wording it differs from other papal bulls of the time. The question is still being investigated, and we are promised a word from a certain Berlin professor whose authority is very great in such matters.

It is interesting to note that the claim of Adrian IV., here advanced, to jurisdiction over all islands was founded, as we learn from John of Salisbury, on the forged donation of Constantine (v. Book iii. No. iii.). Urban II. had disposed of Corsica under the same pretension. Lord Lyttleton in his still valuable History of Henry II. (vol. v. p. 67) speaks as follows concerning this whole transaction:

"Upon the whole, therefore, this bull, like many before and many since, was the mere effect of a league between the papal and regal powers, to abet and assist each other's usurpations; nor is it easy to say whether more disturbance to the world, and more iniquity, have arisen from their acting conjointly, or from the opposition which the former has made to the latter! In this instance the best, or indeed the sole excuse for the proceedings of either, was the savage state of the Irish, to whom it might be beneficial to be conquered, and broken thereby to the salutary discipline of civil order and good laws."

No. III., is the list of articles laid before Thomas Becket in 1164, for finally refusing to sign which that prelate went into his long exile.

The custom of appealing to Rome—a custom which had begun under Henry I. whose brother was papal legate for England—had assumed alarming dimensions under Henry II. The king had almost no jurisdiction over his clerical subjects. And, to make matters worse, the clergy did not refrain from crimes which called for the utmost severity of the law. In ten years we hear of more than one hundred unpunished cases of murder among them. It was to put a stop to such lawlessness that Henry caused the constitutions of Clarendon to be drawn up by two of his justiciars. They contain nothing new, no right that did not belong by precedent to the crown. It was the way in which the struggle with Becket was carried on, not the weakness of the King's standpoint that caused the latter to fail in his endeavours. Public sympathy turned against him and, in 1174, he was obliged to expressly permit appeals to Rome. Papal influence was to increase in England until it reached its zenith under Innocent III.—liege lord and collector of tribute. Of No. IV., the Assize of Clarendon, Stubbs says (Charters, p. 141): "It is a document of the greatest importance to our legal history, and must be regarded as introducing changes into the administration of justice which were to lead the way to self government at no distant time."

It is interesting to note (in § 21) the comparative mildness of the measures against heretics. Half a century later heresy and apostasy were alike punished with death. No. v., the Dialogue concerning the Exchequer, is one

of the few actual treatises of the middle ages. It is a most learned essay concerning all that went on at the bi-yearly meetings of the exchequer officials, and branches out into a description of all the sources of revenue of the English crown, and of the methods of collecting them. The value of this essay for early English history cannot be over-estimated; in every direction it throws light upon the existing state of affairs.

According to Brunner, Gneist, Pauli, and P. Liebermann[1] the Dialogue was completed in the winter of 1178-9. Stubbs thinks—or has thought— that it was composed after 1181, perhaps as late as 1188. The author of the work, whose name is not mentioned in the two existing manuscripts, has been proved by Madox to be Richard, son of Bishop Nigel of Ely. Richard, as well as his father, was for many years a high official at the exchequer, was clear-headed and logical, and was, in addition, gifted with great literary ability. His knowledge of the classics is shown by his frequent quotations from them.

As a result of the combination of so many good qualities in its author the Dialogue is not only learned but readable and interesting. There is much to make one believe that the work has an official character, and that it was composed by order of the government. Liebermann regards it as a parallel work to Glanville's Tractatus.

In general Richard's assertions are deserving of the highest confidence. Occasionally, indeed, in the matter of derivations and of the origin of institutions, he is found to be weak.

Much of his information was gained orally, and in all cases he seems to have gone directly to the highest authority on the particular point to be treated of.

No. VI., Richard's punishments for criminal crusaders, is interesting as showing the discipline that was to be preserved on the ships going to Jerusalem. Curious is the mention of tarring and feathering. As far as I have been able to ascertain this is the first appearance in history of this peculiar punishment, still in vogue in America, though never administered except informally.

No. VII., Magna Carta, is the most valued bill of concessions ever wrested by a people from its king. It was granted by the most feeble and worthless monarch that England ever had, but strong and weak alike have since been forced to confirm it. Whenever, thereafter, a king wanted money or other favors from the people, he was obliged to swear once more to this charter of liberties. Thirty-eight distinct confirmations of this kind are recorded.

John succeeded in losing all that kings ave to lose. To France he sacrificed the great fiefs held by the English from the French kings—he had scorned to answer before Philip Augustus for the death of Prince Arthur, and they were confiscated in consequence. Of the church he became the bondsman, laying the independence of England in the hands of a papal legate, and promising a shameful tribute.[2] To the barons he conceded the privileges here translated. They will be seen to place legal restraint on the king in many different ways. The death-knell of absolutism had struck in England.

The demands that the king, as feudal lord, could make on his subjects were distinctly regulated—what aids he might ask, for what purposes, and when and how often. All barriers were levelled which had prevented freemen from obtaining justice in the county and other courts — either in criminal or in civil cases. Fines for petty offences

were not to be inordinate, and clemency in cei'tain cases was guaranteed. The taxes and payments of cities as well as of individuals were established upon a just basis. All in all, as Hallam remarks, "Magna Carta is the foundation stone of English freedom, and all later privileges are little more than a confirmation and commentary upon it."

No. VIII., the Statute of Mortmain, was intended, as Stubbs tells us, to put an end to " the fraudulent bestowal of estates on religious foundations, on the understanding that the donor should hold them as fiefs of the cliurch, and as so exonerated from public burdens. . . The Statute of Mortmain bears a close relation to the statute Quia Emptores, enacted eleven years later, in which the feudal dues of the superior lords, the king the chief of them, are secured by the abolition of subinfeudation; as, in this act, they are secured by the limitation of ecclesiastical endowments."

No. IX., the Quia Emptores just mentioned, was passed by Edward I., in 1290, to prevent tenants from disposing of their holdings to others, sub-tenants, who felt themselves dependent on no one save the lord from whom they immediately held. Henceforth the feudal aids were to be paid directly to the lords in chief.

No. X. The Manner of holding Parliament. Stubbs describes this document as a " somewhat ideal description of the constitution of parliament in the middle of the fourteenth century." Its value consists in its undoubted antiquity, for it is found already in fourteenth century manuscripts. Its claim to be a relic of the times of the Conqueror seems to have been urged in answer to an inward craving for the sanction of long custom. Just so, many of the laws in the " Sachsenspiegel " are made to date back to Charlemagne.

No. XI., the Statute of Labourers, was issued after the great plague of the Black Death, which raged in Europe from 1347 to 1349. The same fields remained to be tilled, the same manual labour to be performed; but a large proportion of the labourers had died, and the rest could command what wages they pleased. Edward III., to stop this evil, issued this rather Draconian decree.


  1. "Einleitung in den Dialogus cle Scaccario." Gottingen. 1875.
  2. See Book iv. No. v.