"a mere collection of distinct enactments made at different times by the Conqueror." It is not one legislative act, nor even an authentic form of the various enactments made, some of which are accessible from other sources in a more ancient version.

According to a story repeated by Hoveden1, William showed a marked preference for the Danelagu, or laws of the Danish part of England. This tale finds no support elsewhere and is probably incorrect. The Laws of William, as preserved in the shorter version, and his confirmation of the older laws afford no special traces of Roman influence.

There only remains the code of the "Laws of Henry I.", purporting to be a collection of his legislative enactments2. But this is clearly not authentic. The number it assigns to the English Bishoprics dates it after A.D. 1133; and it refers to the canonization of Edward the Confessor and Gratian's Codification of the Decretals, both which events took place in 1151. On the other hand it alludes to Queen Matilda as alive, who died in 1118, and contains no references to the laws of Henry II., who succeeded in 1154. Most of its clauses appear to be extracted from old English sources, mingled with some genuine ordinances of William I. The Bishop of Chester considers it "a collection of legal memoranda and records of custom, illustrated by reference to the Canon laws, but containing very many vestiges of old English jurisprudence." It is evidently of a later date than the reign of Henry I. "It would appear to give probable, but not authoritative illustrations of the amount of national custom existing in the country in the first half of the 11th century, but cannot be appealed to with any confidence except where it is borne out by other testimony."

Its most interesting feature for us is the evident acquaintance of the compiler with civil and canon law3. In dealing with the conduct of a suit he cites the substance of a passage

1 Freeman, N. C. iv. 425, v. 869.
2 Freeman, N. C. v. 872. Thorpe,

p. 267. Stubbs, S. C. 104.

3 If compiled after 1150, Vacarius

had begun to teach the Civil Law in England.

4 Laws, 33, 4. Thorpe, p. 232. C. Theod. lib. 2. cap. 9.

FEATURES OF THE PERIOD.

61

from the Theodosian Code as to the time in which a defeated litigant might appeal against an unjust decision. One of the provisions as to the rights of a husband to use violence against an adulterer seems derived from a passage in one of the novels of Justinian'. The compiler also cites the Salic Law as to accomplices in murder, and the Decretals on clerical offenders, while one passage on the widow's rights is identical with a passage in the Ripuarian Laws*. A number of chapters contain provisions translated literally from the Saxon Laws.

While therefore the compilation is not a collection of laws promulgated by Henry I.o, but a digest of Anglo-Saxon laws and usages made by some private individual, the fact remains that that private individual is acquainted with and even cites as of some authority systems of law, including the Roman, other than his own.

Any detailed examination of English Law after the Conquest we may leave till Glanvil and Bracton afford us materials more ample than the Placita Anglo-Normannica. We may however touch shortly on three features of the period; the rise of feudalism, the removal of the bishops from the secular court, and the changes in the law as to married women.

The removal of the bishops was effected by an ordinance of the Conqueror', and commences the long record of difficulties between the State and the Church. It is of interest for our subject, because in the presence of the bishops in the popular courts we have found a constant source of Roman influence on popular laws and customs. But this source of influence is much diminished by their removal to deal solely with those matters "quae ad regimen animarum pertinent." Yet the judges were frequently ecclesiastics and thus in another quarter the clerical and Romanizing influence was continued.

Of greater importance is the rise of Feudalism. At the time of the Norman Conquest it is "a complete organization of society through the medium of land-tenure, in which, from the 1 Laws, 82-8. Just. Nov. 117. ▲ Laws, 70, 22. Thorpe, p. 251. Stephen, Hist. Criminal Law, 1. 15; 55.

2 Laws, 88, 10. Thorpe, p. 259. 3 Laws, 5, 27. Thorpe, p. 221.

5

e.g. cc. 7, 8, 11, 70, 87, etc.

6 Thorpe, p. 268, note.

7 Stubbs, S. C. p. 81.

62

ENGLISH FEUDALISM.

king down to the lowest landowner, all are bound together by obligations of service and defence1." These obligations are based on and regulated by the extent of the land, and the nature of its tenure. This Feudalism is distinctly Frankish as found in France, and introduced into England, feudal relations had arisen from two sources, beneficial tenures and commendation. The conquering leaders distributed the land among their followers as beneficia, to be held under the obligation of assisting their lord by military service or the weaker landowners gave up their land to more powerful men, and received it back, with protection, in return for faithful service. Commendation, on the other hand, was personal: it involved the homage of the vassal and the protection of the lord, but no alteration in the tenure of the vassal's estate. Feudalism as combined from these had the two-fold character of land-tenure and of personal relation. As thus combined, it was partly of Roman, and partly of German origin2, “a compound of archaic barbarian usage with Roman Law." The Roman jurisprudence gives the idea of the usufruct; the German institutions that of personal subservience. But there is no sufficient ground for suggesting that the Roman emphyteusis, and relation of patronus and cliens have also a place in its development.

English Feudalism differs widely from Feudalism on the Continent. This result is largely due to the much misunderstood Gemot of Salisbury, and the oath of fealty which "all land sittende men" took there to William. "Whereas Continental Feudalism was disruptive in tendency, and the vassal owed allegiance to the mesne, rather than to the superior, lord, the English system was centralizing and coherent in the higher allegiance of the vassal to the king. William's policy weakened the mesne lords, and strengthened the crown; their vast territorial holdings lost their power when scattered over England; their tenants' fealty was deprived of its strength by the rights of the sovereign; the king and the people were allied against

1 Stubbs, 1, 153, 252. Waitz, D. V. G. II. pp. 226-258. Maine, Ancient Law, p. 107.

2 Stubbs, 1. 254. Maine, Ancient Law, p. 365.

the feudal lords. Moreover the Anglo-Saxon and Frankish systems had followed different lines of development. Something resembling Feudalism would have developed in England had the Norman keels never furrowed the sand at Pevensey, but it would have developed from different germs. Frank Feudalism sprang from benefices, and commendation; the English system was growing by the changing of the comitatus of the king, the gesiths or thegns doing personal service to their warrior leader, into a territorial nobility, whose lands had been given as a reward for personal service. Tenure of land from another was present; personal service was present, but they were not yet, as always in later feudalism, inseparably combined. Their origin, the territorial development of the comitatus, was peculiar to English history', and later English feudalism is largely indebted to the Anglo-Saxon polity.

That system became developed in all its oppressiveness by the ingenuity of Ranulf Flambard, the Justiciar of William Rufus, and was developed not by written legislation, but by the creation of custom by particular precedents. The firm rule of William's successor initiated the English judicial and administrative system. The Curia Regis, with its itinerant judges, is the origin of the Central Judicature, which harmonizes the practice of the popular courts of the shire; while the second Henry by making his sheriffs lawyers continues that unifying influence throughout the Courts of the Hundred. The period "which is called the reign of Stephen ", had thrown the whole system into confusion and anarchy, but the genius of Henry II. brings order out of the chaos; the fiscal and judicial circuits are restored; the system of inquest by sworn recognitors is borrowed from the Franks and applied, at first for financial purposes, and then for judicial inquiries, in which sphere it is the precursor and parent of Trial by Jury.

Such are the great changes in the system which administered the law; but one considerable alteration in the law itself claims attention, as preparing the way for those alterations which the influence of the Roman Law effected in the position of married women.

1 Stubbs, I. 152.

We have seen1 that in later Saxon times the childless widow took one third of her husband's estate, the widow with children one half, in the absence of any express agreement as to the dowry. Such an agreement might either restrict this proportion, or extend it to one half if childless, or to the whole property if she had borne children; and this share was absolutely her own. But under the Norman rule" the dowry in the absence of agreement was restricted to a life interest in one third of the lands which the husband possessed at the time of the marriage, a portion which might, by express agreement, be either restricted, superseded by personalty, or enlarged to one third of the lands of which he was seised at any time during coverture. The dower from personalty was in the Saxon proportions, but, when given, it barred any dower from the realty3. This only applies to the lands held by military tenure; for in socage, gavelkind, and copyhold lands, the dower is still one half, and in the Borough English towns and in some manors the whole of the lands.

1 Vide supra, p. 42.

2 Kenny, p. 65.

Kenny, p. 34.