Sources of the English law. Esprit des Loix, 1. 28. c. 1. IT SECTION 1. T is generally agreed that the laws of England are derived from those of the northern nations, who, migrating from the forests of Germany, overturned the Roman empire, and established themselves in the southern part of Europe. 2. Both the Danes and Saxons were undoubtedly swarms from the northern hive: it may therefore be presumed that the description which Tacitus has left us of the manners and customs of the Germans is in every respect applicable to them; and as the Saxons, upon their establishment in England, exterminated rather than subdued the antient inhabitants, they introduced their laws, without adopting the smallest portion of those which prevailed among the antient Britons. 3. The French nation also derive their origin from a tribe of Germans, who crossed the Rhine under Cloyis, and established themselves in the northern provinces of France. 4. The different German tribes were first governed by codes of laws formed by their respective chiefs. One of the most antient of these is the Salic law, which is generally supposed to have been written in the fifth century. 5. Montesquieu says the tribe of the Ripuarian Franks, having united themselves to the Salian Franks, under Clovis, preserved their original customs. That Theodoric King of Austrasia, got them reduced into writing: He also collected the Laws of the Bavarians and Germans, who were subject to his Kingdom. Charlemagne, who was the first conqueror of the Saxons, gave them a code of laws, which is still extant. 6. While Clovis and his descendants governed Franee, that country was ruled by the Theodosian code, and the laws of the different German tribes, who had settled there. But the Theodosian code was in course of time abrogated or forgotten; because great advantages were allowed to those who lived under the Salic law. 7. During the reigns of the first French monarchs, a general assembly of the nation took place every year, in the month of March, afterwards in the month of May; where many ordinances were made, which acquired the force of law, and were called capitularia. 1. 28. c. 9. 8. The introduction of feuds produced a variety of regulations, inconsistent with the antient codes of laws; and France became at that time divided into an infinite number of small seignories, whose Montesq. lords acknowledged a feudal dependency only, not a political one, on the monarch. In consequence of this circumstance it became impossible that they Idem, c.12. should all be regulated by the same laws. The codes of the Germans and the capitularia were superseded by these local customs: each seignory and province had its own; and there were scarce two seignories in the whole kingdom whose customs agreed in every particular. 9. All these customs were reduced into writing, by the direction of the kings of France, in the course of the fifteenth century, and authenticated by the most eminent lawyers and magistrates of the different provinces; but they had in general been put into writing by private individuals, long before that period. 10. Normandy, like all the other provinces of France, was governed by its own customs; when it was ceded to Rollo, in the year 912, he caused an enquiry to be made into its antient usages, and added his sanction to their former authority. Now Houard's Preface. Origin of as Normandy did not experience those troubles and revolutions which disturbed the other parts of France, during the tenth and eleventh centuries, it is generally supposed that the original laws and customs of the Franks were preserved with more purity, and suffered less from a mixture of the canon and civil law, in Normandy, than in any other province of France. 11. Upon the establishment of the Normans in England, the whole customary law of that province, which according to Basnage, one of its best commentators, had been already reduced into writing, was introduced here. And as our kings had great possessions in France, and frequently visited that country for two centuries after the conquest, they borrowed from the French many of the improvements which were made in their jurisprudence, and established them in England. 12. If these facts are admitted, it will follow that the primeval customs of the Germans, as described by Tacitus, the codes of the different German tribes,* together with the laws of the Germans during the middle ages; the capitularia of the French monarchs of the two first races; and the customs of the different provinces of France, particularly those of Normandy, are the real sources from which our antient laws can, with any certainty, be deduced. 13. Upon these grounds I shall proceed to enquire into the origin and nature of feuds. In the ninth and tenth centuries there were only two tenures, or modes of holding land, upon the continent; which were called allodial and feudal. Allodial lands were those whereof the owner had the dominium di * Sir Henry Spelman says, 'In legibus Henrici I. Regis Angliæ multa reperio e lege Salica deprompta; interdum nominatim, interdum verbatim.' Gloss, voce Lex. Art. 46. n. 1. - rectum et verum; the complete and absolute property, free from all services to any particular lord. Allo- Dumoulin, dium proprietas quæ a nullo recognoscitur. Tenere in allodium, id est in plenam et absolutam proprietatem. Habet integrum et directum dominium, quale a principio de jure gentium fuit distributum & distinctum. So that the owner of an allodium could dispose of it at pleasure, or transmit it as an inheritance to his hildren. 14. A feud was a tract of land held by a voluntary and gratuitous donation, on condition of fidelity and certain services; which were in general of a military nature. The tenure of the feudatory was of the most precarious kind, depending entirely on the will and pleasure of the person who granted the feud. 15. We learn from Cæsar and Tacitus that the individual German had no private property in land; that it was his nation or tribe which allowed him annually a portion of ground for his support; that the ultimate property or dominium verum of the lands was vested in the tribe; and that the portions dealt out to individuals returned to the public, after they had reaped the fruits of them. Thus Tacitus says, Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum dignationem partiuntur. Facilitatem partiendi camporum spatia prestant; arva per annos mutant, et superest ager. 16. With these ideas and this practice, the Germans made conquests: when they acquired a province of the empire, the land became the property of the victorious nation; each individual laid claim to a share of it; a tract of ground was accordingly marked out for the leader of the expedition, and to the inferior orders, portions, corresponding to their respective merit and importance, were allotted. De Bello Gal. De Mor. Ger. |