CHAPTER I. INTRODUCTORY. ELEMENTS OF THE LAW OF LAND BEFORE THE REIGN OF HENRY II. THE English law of land is of a mixed origin. The customs of the early Teutonic invaders, the inevitable effect of conquest and settlement of the land on a large scale, the gradual and what may be called the natural growth of feudal ideas, the effect of the Norman Conquest in developing these ideas into a system of law and in importing doctrines unknown before, the subsequent influence of the Roman and Canon law, all these are elements of which account must be taken in attempting to trace the growth of the law of land. By the time of the reign of Henry II a definite system of law may be said to have arisen. This will be the subject of the next chapter. In the present an attempt will be made to take some account of the elements out of which the system of the law of land ultimately grew. SECTION I. ANGLO-SAXON CUSTOMARY Law. § 1. Effect of the Teutonic Settlement. The earliest element in the English law of land is certainly the Teutonic. Whatever traces may have existed of the laws of Rome at the time of the earliest Teutonic invasion, no vestige of B them is to be found in the evidence we possess of the AngloSaxon customary law. The conquerors, unlike the tribes which overran Italy, Gaul and Spain, retained the customs, the religion, and the language which they brought with them uninfluenced by the people whom they dispossessed. Moreover, those customs were of pure home-growth, without any admixture of the element of Roman law or civilisation. 'Our forefathers came from lands where the Roman eagle had never been seen, or had been seen only during the momentary incursions of Drusus and Germanicus 2. The mode in which Teutonic settlement was effected is matter of conjecture only. There is however no doubt that it was the work of successive bodies of invaders during parts of the fifth and sixth centuries. But the process was not merely that of invasion by bodies of armed men, it was the migration of whole communities bringing with them the organisation and the customs which had regulated their life at home 3. で It is probable that when the invaders had dispossessed the natives of a large tract of land the allotment of the territory was effected in a regular mode, so as to reproduce the main features of land-tenure with which they had been familiar in their Continental homes. The Britons seem to have been so completely exterminated or driven westward, or those that remained reduced to so abject a state of servitude, that no appre 1 Mr. Finlason, in the preface to his edition of Reeves' History of English Law, thinks that the Roman law lingered on and was adopted by the conquerors. There appears, however, to be no sufficient evidence in favour of this view. Probably some few doctrines and practices of Roman law were introduced by the clergy after the adoption of Christianity, especially that of disposition by will (compare Tacitus, Germania, c. 20, 'nullum testamentum'), but the large infusion of Roman law which exists in our own was mainly of much later introduction. See Stubbs' Constitutional History, i. p. 62. 2 Freeman's Norman Conquest, i. 20. 3 The invaders come in families, and kindreds, and in the full organisation of their tribes: the three ranks of men, the noble, the freeman and the læt: even the slaves are not left behind.' Stubbs, Const. Hist. i. p. 64. ciable influence was exercised by the native element upon Teutonic customs. There is no direct evidence as to the mode in which the conquered portions of the territory were colonised by invaders. Materials for conjectures more or less probable are afforded by the records of similar proceedings in the case of other Teutonic and Scandinavian conquests1, and by the nomenclature and legal and other phenomena which are found existing in later times. It must be borne in mind that the invaders, though still retaining many habits derived from ancient Teutonic customs, had attained to a certain degree of political organisation at the time of the invasion. The body of invaders is a regular army led by a chief, and divided into 'hundreds' of warriors, who are united by a bond of real or supposed kinship, and probably come from neighbouring homes 2. There can be little doubt that regard was paid to this division of the host into hundreds in the distribution of the conquered territory. It is impossible to trace the exact links of connexion between the hundreds of warriors who constituted the sub-divisions of the Teutonic army and the territorial hundred of later times; there can however be no question that the two are connected, and the most plausible conjecture seems to be that a definite area of territory, though probably not of uniform size, was in the original process of colonisation assigned to each hundred, that the name then gradually ceased to have, a personal, and began to acquire a territorial signification, that it was adopted as the most important division for fiscal and judicial purposes, and that, as the whole country became colonised and brought under a uniform system of organisation, the 1 Stubbs, Const. Hist. i. 72. 2 'Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur, et quod primo numerus fuit, jam nomen et honor est.' Tacitus, Germania, c. 6. This too was the number of the assessors of the princeps for judicial purposes. Eliguntur in iisdem conciliis et principes qui jura per pagos vicosque reddunt. Centeni singulis ex plebe comites, consilium simul et auctoritas adsunt.' Ib. c. 12. |