CLAIMS OF THE ROMANISTS. 17 Roman, but Teutonic, we find Mr Finlason recognizing the istence of a large mass of custom; "the most valuable hts of the people were embodied in customs, which were written." Are these then Teutonic or Roman in origin? Finlason's answer is extraordinary. After admitting that ich unwritten law was mentioned in, and its existence implied the written law, he continues: "but its origin is not to be und in any of the written laws, and it therefore could only ve been derived from the Roman law." Why? we wondergly ask: and the answer seems to be that as the Saxons were rbarians and brought nothing worthy, in Mr Finlason's opinion, the name of law, any system of unwritten law, which Mr nlason may subsequently think worthy of the name, can only ve arisen from Roman sources. Such an argument suggests great ignorance of historical progress, and lack of appreciation the value and fertility of early customs and institutions, barbarous" though they may seem. to an enlightened manist. The whole of the argument requires the assumption at no Saxon customs had in them even the germs of later titutions, an assumption incorrect, as Mr Finlason admits, th regard to criminal law, and without foundation, as will be n, in many other portions of the English legal system. na For, having dealt with the negative side of Mr Finlason's cument, we may now turn to his positive claims. Though se are often of a shadowy nature, involving the assertion that ain very general principles pervade both laws and must e been derived by one from the other, we yet find our aphor definitely committed to the claim of a Roman origin for, Per alia: I. The Manorial system. II. The Municipal stem. III. A regular judicature and judicial tribunals with filled judges of the law and jurors, or sworn judices facti, for Je matters of fact. In short, as Mr Finlason vaguely puts it: the general scope of our civil procedure and the whole scope of r law, so far as it relates to civil matters." IV. The political ganization, and divisions of the country. 15 18 DIVISION OF THE SUBJECT. With these specific claims and those of other write notably Mr Coote1 and Mr Seebohm, we may best deal by trea ing the Anglo-Saxon Law, under four heads, as follows: I. Land Law. II. Family Law. III. Law of Courts and Procedure, Civil and Criminal. 1 Mr Coote has summarised his matured positions in the Preface to (b) Municipal. The Romans in Britain, pp. vi. vi and in the Introduction, pp. 2--5. CHAPTER III. ROMAN LAW IN THE EARLY LAND LAW. THE researches of recent German writers and of Mr Seebohm have thrown a flood of new light on the English and German land systems, and Mr Finlason's remarks on this point have become out of date. He laid special stress on the resemblance of the folc-land to the ager publicus, on the system of military services, and on the connexion of the manor, with its villani and manorial court, with the Roman villa and coloni1. On this point he contented himself with a simple statement that, "the Saxons established themselves in the manors and adopted the manorial system"." There was, he said, no trace in the written laws of the establishment of such a system by the Saxons. The Latin translation of the Laws of Ina used the terms "colonus vel villanus3," the original words being geneat and ceorl, and this choice of words in translation was supposed to prove the Roman character of the institution. There was also a most extraordinary argument that because copyholds were held of the manor "by immemorial usage", therefore manors were of Roman origin, an argument which, if it proves any thing, would prove that inanors originated with the aboriginal Britons. But on this point we may safely leave Mr Finlason for conclusions more modern both in date and spirit. The real question in dispute among historical students at the present day is as to the origin of manors. Were the village 1 Reeves, 1. 10, note. 2 Ibid. Pref. p. 46. 3 Laws of Ina, Thorpe, §§ 19, 22, 40, 42. 4 Reeve, Pref. p. 51. 5 Seebohm, English Village Com. munity, Pref. p. ix. 20 THE MARK AND THE MANOR. communities living in the hams and tuns of England at the outset of English history free village communities, or communities in serfdom under a manorial lordship? If the first alternative is accepted, English history and the English land law begin with free village communities, gradually degenerating into mediaeval serfdom; and, as the free village community is an essentially Teutonic institution, the germs of the English land system are seen to be Teutonic, and not Roman. If, on the other hand, English history commences with a population, perhaps themselves freemen, tilling the soil in serfdom to a lord, and gradually freeing themselves from servile tenure, it has been suggested, though the evidence is not very clear, that such a system, similar to the later manorial one, has elements in it derived, in all probability, from the Roman system of coloni. Until quite recently the weight of opinion has been in favour of the former view. G. L. von Maurer in Germany united the system of common husbandry which he found there, and the village community which inhabited it, into the conception of the "Mark," as the unit of Teutonic civilization. Kemble, in his Saxons in England," built up the English polity as an aggregation of Marks, communities of freemen tilling the land in common; while Nasse, in Germany, showed the similarity between the English and German land-systems. Mr Freeman adopted in full Kemble's view of the Mark system, although its existence in England is largely a matter of conjecture'. Prof. Stubbs, with his usual caution, has recognized this conjectural character, and contents himself with saying that "it cannot safely be affirmed that the German settlers in Britain brought with them the entire system of the Mark-organization?." But recent German investigations, notably those of Dr Landau and Professors Hanssen and Meitzen, and the admirable work of Mr Seebohm have thrown great doubt on many of the previously accepted conclusions of the advocates of the Mark. 1 See also Sir H. Maine on Village Communities, c. 5. 2 Stubbs, Hist. 1. 83. 3 Landau, Die Territorien, etc. Hamburg, 1854. Hanssen, Agrarhistorische Abhand lungen. Leipzig, 1880. Meitzen, Georg Hanssen, als Agrar-Historiker. Tubingen, 1881. Seebohm, Village Community, p. 371. RECENT INVESTIGATIONS. 21 Mr Seebohm, for instance, in an elaborate analysis1 of the early evidence of the existence of Marks, produced by Von Maurer, shows that evidence to be at least equally consistent with the hypothesis of a manorial villa with serfs as tenants. It is again a little startling to find that the well-known "three-field" system, hitherto confidently asserted to be the common possession of English and German Saxons, is really a South German system2; and that the North German lands, from which our Saxon and Anglian ancestors came, were, and still are, tilled by marl and manure on a one-field system. Investigation of the Welsh and Irish land systems has shown a very early species of land culture existing among them, and, in the case of the Welsh, certainly showing no traces of Roman influence. The solution of the question is very difficult and involved, and we can only profess to state briefly the way in which Roman influences are alleged to have acted on our Land system. 3 The advocates of the Mark allege that England, by the Saxon invasion, was portioned out among communities of freement, who held their land in common and tilled it according to strict customs of cultivation. These freemen, their land and their village organization, constitute the Mark. Each freeman holds his homestead or alod as his own property: the arable and pasture-lands are portioned among the freemen at stated intervals, and cultivated or grazed according to fixed rules of agriculture. The woods or waste, which surround the cultivated land, belong to the community in common; and each community is embedded in unappropriated forests or moors, which in time are held to belong to the folk or nation into which the Marks have amalgamated. We have thus three classes of CUSTOMARY ESTATES 5, held, not by any writing, but by customary rules. I. The estate of the Family or Individual; Family Land or Heir-land; the ethel or alod. This is essentially an estate of 1 Seebohm, pp. 329-335. 2 Hanssen, pp. 190 et seq. See bohm, p. 372. 3 Seebohm, pp. 181-213. 4 Kemble, Saxons in England, 1. p. 54. Stubbs, Hist. 1. 49. 5 Anglo-Saxon Law, p. 57. 6 Ibid. pp. 68, 72, 73. Pollock, Land Laws, p. 191. Note B. |