Brunner - Pollock & Maitland's History of Law

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Pollock and Maitland's History of English LawAuthor(s): Heinrich BrunnerSource: Political Science Quarterly, Vol. 11, No. 3 (Sep., 1896), pp. 534-544Published by: The Academy of Political ScienceStable URL: http://www.jstor.org/stable/2139936 .

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POLLOCK

AND MAITLAND'S

HISTORY

OF

ENGLISH

LAW.1

OUR

nowledge

f

the

development

f Englishaw

n the

welfth

and thirteenth

enturies

as been

so

enlargedn modern

imes,

by

mportant

ublications

f

materialnd by special

investigations,

that comprehensiveresentationas come o benotmerely prom-

ising

ask ut

n urgenteed.

Reeves's

istory

ofthe

nglish

Law,

which

n the

first olume f the latest

dition eals with

he period

down

o Edward ,

must

e described

o-day

s antiquated.Published

a

century

go,

t

wasfor hetime

n

exceedingly

eritorious

ork;but

Finlason's ttempt

omodernize

t was

a

lamentable ailure,

nd his

alterations

nd

additions,

s I think demonstrated

in 873,

marked

no

advance

but

rather

deplorable

tep

backward. There s the

more

reason orwelcoming worknwhich wo egalhistorians, ho ong

ago

gave

notable

proofs

f

capacity,

ave

at once

brought

he

history

of

English

aw,

or

he

period

rom

54

to

272,

up

tothe ull

eight

of

modern cientific

esearch.

With

style

hat

s

alwaysdignified

and

often

aptivating,

t

has

what regard

s the

highest

xcellence

in

legal-historical

riting:

t is

thought

ut,

ll

through,

n an

emi-

nently

ealistic

pirit.

Its

importance

onsists not

merely

n its

direct

romotion

f the

knowledge

f

English egal

development,

ut

also inthefructifyingnfluence

hich t

may

be

expected

o

exercise

upon

the

history

f

other

Germanic

egal systems.

From he

older

choolof

English

egal

historians,

ho treated

he

English

aw

as a

thingby itself,

ompletely

solated

from he

rest

of the world,

nd

who

recognized

ts

derivation

rom he

common

law of

the

Germanic

aces

only

ncidentally- usuallyby

an

occa-

sional

citation

rom

Tacitus,

Pollock

and Maitland distinguish

themselves y bringing

nto

English

egal

history

he

full tream

f

scientific

esults

ttained

by

Germanistic

esearch

during

he

past

threedecades. The German iterature as been extensivelyon-

1

The

History

of

English

Law

before

he

Time

ofEdward

I.

By

Sir

Frederick

Pollock,

Bart.,

M.A.,

LL.D., Corpus

Professor

of

Jurisprudence

n the

Uni-

versity

f

Oxford,

nd

Frederic

William

Maitland,

LL.D.,

Downing

Professor

of the

Laws

of England

n the University

f

Cambridge.

Cambridge,

University

Press,

1895.

2 vols., 8vo;

xxviii,

78,xiii,

684

pp.

2

American

Law Review,

ol.

viii,

pp.

138

et

seq.







THE HISTORY

OF

ENGLISH LAW.

535

sulted nd

is

frequentlyited. Considerable se

is

made of concep-

tionspeculiarto German aw. German egal expressions,uch as

thinglike and thinglikeness

(dinglich,

Dinglichkeit),

are intro-

duced ntoEnglish egal speech. Constant ttentions paid to the

Norman aw

and its sources, lthough,

n

my udgment,he nfluence

which t has exercised upon the development f the English aw

should

have

been

more strongly mphasized.

The proportionnwhich ach of the two authorshas contributed

to the

common

work s not indicated

n

the book itself, lthough

prefatory ote by Pollock declares that the execution f the plan

drawn

p

in

common

as

devolved or he mostpartupon Maitland.

Earlier nvestigationsy Pollock and by Maitland afford ufficient

data

for

determining

ith ome

degree

f

precision

he

uthorshipf

portions

f the

work;

but

since the

authors

hemselves

o

notdesire

that ny distinctionhouldbe drawnbetween heir eparatecontri-

butions, he reviewer s not entitled o express any conjectures

uponthismatter, ut s boundto treat he

work

fthetwo utbors s

their

ntellectual roperty

zu

gesammter

and,

as the German aw

has it, or, to use an English phrase,as a sort of tenancyby

entireties.

As

the

title f the work

ndicates,

he

history

f the

English

aw s

to be

treated nlydown

o the

accession

of Edward

, the English

Justinian.

This limit

f time,however,

s not

rigidly

bserved:

the

description

f

many egal

institutions

tarts,

or

he

sake of

obtaining

a

convenient

oint

of

departure,

with

the formwhich

they

have

assumed

n

the common

aw. In some

cases, too,

the

development

is tracedback to theancientGermanic eginnings.

The authors ivide

heir

material nto

wobooks.

The

first

ook,

a

Sketch

of

Early English Legal History, orresponds

o

what

German

writers all

general

or

external

legal history.

The

second book,

The

Doctrines

f

English

Law

in the

Early

Middle

Ages,

s

devotedto

the institutions

f

private

nd

of

criminal

aw

and of the

law of

procedure.

Constitutional

istory roper

s ex-

cluded.

The

authors

riginally

ntended

o

add a third

ook,

which

was to contain tudies n DomesdayBook. This plan theyaban-

doned

and

rightly,

or

these studies

would

have

fitted

ll in

the

frame

f the

publishedwork,

which

eals most

fully

with

he

egal

development

rom

Henry

I

to

Edward .

As

it

is

quite mpossible

ven

to summarize

he rich

contents f

The

History of English Law,

I

must confine

myselfhere,

at the

riskof

seeming captious ritic,

o

singling

ut

a

fewmatters

hich







536

POLITICAL

SCIENCE

QUARTERLY

[VOL. XI.

give occasion

either or ndicating

different

oint

of

view on

my

ownpartorfor orrectionsr additions.

The first ook

begins

with

general

view

of

Anglo-Saxon

egal

conditions.

Although

hese

ought

o

be

depicted nly

with

eference

to

the

Anglo-Norman

eriod,

he whole ection

s

still

a

little

too

scanty,

nd

is

not

on

a level

with he

other

hapters

f this

xcellent

work.

Precisely

n

view

of

the later

development,

mention

might

have been

made of

the

power

of mitigating

lfhting)

the

strict

aw

which, ccording

o

Edgar,

ii, , pertained

o

the

Anglo-Saxon

ing.

For the

Dane/ag

no use appearsto have been made of Steenstrup's

Normannerne.

The

general

xtension

f

the

ystem

f

compositions,

which s

shown

by LElfred,ntroduction,

9, ? 7,

is

not

considered.

The Burgundian

ing

mentioned

n

pages

i6

and

28

of

the first ol-

ume

was

not

named

Gundobald,

utGundobad. The

historic

osition

of

the

gesibas

s not made

quite clear,

because the

transplantation

f

this oldest class

of

Anglo-Saxon

etainers

rom

he ord's

house and

their

ransformationnto

hereditary

state f

privileged

andholders

are overlooked. The same developmentccurred fterwardnthe

case

of the

thanes,

who

originally

eld office

n

the

household f

the

ord.

There s

a

misconception

f

Cnut, i, 2,

when his

passage

is

cited

to sustain he

statement hat

a

defendant ho

was of evil

reputemight

e driven o clearhimself

y

the

fore-oath

lone (vol. ,

p. i6).

The

fore-oath

rove the homo redibilis

o

clear himself,

and this

he did

by simple

ath of

purgation.

The homo

ncredibi/is,

the man

of

evil

repute,

ad

to

swear

a

threefold

athor

accept

the

ordeal.

The

Anglo-Saxon

lavery

or rime

annot

be

regardeds

a

paymentfcomposition yservice, s the workingut ofa debt.

In

Chapter

II, England

under the Norman

Kings,

the narra-

tivereachesfirmer

round.

The

development

f the

egal anguage

and

the relative

nfluence xerted

upon

it

by

the

Anglo-Saxon nd

the French

re

vividly

nd

attractively

escribed.

The

striking act

is

made

clear

that

the

Anglo-Saxon egal

terms

ontinued o exist

only

n

the case

of

antiquated

nstitutions,

hile he

new and living

law appeared

n

French arb.

The

illustrations

iven ythe uthors

mayperhapsbe supplementedyinstancingherules regardinghe

iuramentum

rac/um

nd

pianum

(nonfrac/um).

That the

distinction

was known

o the Norman

aw,

s

provedby

the

Concilium

Li/lebon-

nense

f

io8o.

What

he

authors

ay

on

page

68

of the first olume

about

the

iuramen/um

rac/um

s

partly

orrected

y note

x

on

page

599

of

the

second

volume,

where

t is

indicated

as

possible

that

the

oath

in

question

was

one

broken

into

clauses,

i.e.

dictated







No- 3-. THE HISTORY OF ENGLISH LA W.

537

clause by clause. To me there s no question bout

the

matter:a

comparison f the old French sources leaves no room for doubt.

When it is

said

in

William,i, 3 (cf. ii, 2),

that

the Frenchman

s

to

defend

himself gainst the Englishman

with

an unbroken

ath

(mid unforedan

te),

this mplies, n my udgment,hat

at that

time

the

Anglo-Saxonrecited o

his

Anglo-Saxon dversary,

who

was

taking he oath,the formula f the oath, clause by clause,

n

the

Anglo-Saxon ongue. As the Norman did not understandAnglo-

Saxon,

he could

not be constrained

o have

the

oath dictated

o

him

by the Anglo-Saxon,nd to repeat t word

or

word;

he was

allowed

to swear simple ath,without bservance f wordsrecited, nd,as

we may well assume, n his mother ongue. In the Leges

Henrici

(64, ? 3) this privilege f the Erancigena ppears

as the

special

right f the alienigena n general. The German egal sources lso

are acquainted with the exemptionof the foreigner

rom

the

staved oath

(gestabter

Eid, the

iuramen/um

rac/runof Anglo-

Norman

aw).

Chapter

V

contains valuablediscussion

f the

relation f

Eng-

lish aw to Roman and to canon aw. Of the wo t was thecanon aw

that xercised y farthe more mportantnfluence.

In

antithesis

o

the egal developmentf Germany,he clergy

n

England upported

the national

aw

against he

Roman aw.

The

royal udges,by

whom

the English ommon aw was elevatedfrom rude

mass

of

uncertain

customs

nto consolidated nd harmonious ystem,

were

church-

men oyal to the king.

ChapterV, The Age of Glanvill,

deals

with

the reforms f

Henry I, which ntroducedhe uryof proofntoudicial procedure

and

laid

the basis forthe development

f the

procedureby writ,

the

strongest ulwark gainst he Romanizing

f

the

English aw.

The history f the curia regis nd of the courts hat branched ff

from t is excellently arrated. Acute are the remarks pon Glan-

vill's

Tractatus,regarding hich he conjecture

s

expressed

hat

t

was

not composedby Glanvillhimself, ut by his secretary, ubert

Walter.

On page 123 it is declared

to

be

probable

that

Henry

I

introduced he recognitionsn Normandy eforehe became kingof

England. According o the positionof the documents

n

the

Liber

ANiger

apizuli

Baiocensis,

t is, in my udgment, ndubitable that the

introductionf the recognitionsn Normandyookplace not later

than

150-II152, and thuspreceded he similarmeasures f Henry I

in

England, nd served s a modelfor hem. Of course he decisive

documents annotbe used in the form

n

which hey re printed y











540 POLITICAL SCIENCE

QUARTERLY.

[VoL.

XI.

In

discussing the concepts of manor

and borough, the

procedure

of

the authors seems to me a little too skeptical.

The second volume of the work begins

with

the

chapter

Owner-

ship

and

Possession.

It

contains

the

substance

of

the

legal

rules

which we Germans are

in

the habit

of

grouping together

as

law of

things (Sachenrecht),

and

it is one of the

most

brilliant

parts

of

The

History of

English

Law. The requirement of real

delivery

in

the

conveyance

of

real

estate,

and the abolition of

symbolic

modes

of

conveyance

are

shown to

be

the

permanent result

of

the

transient

influence which the

study of Roman

law exerted upon English legal

development. To the same influence is ascribed

the

origin

of

the

rule that refuses o the termor he assisa novae

dissaisinae.

Henry

II's

system

of

possessory

actions

prevented any

such distinction as arose

in

the German legal

development between seizin (gewere)

according to

territorial

aw

(Landrecht)

and

according

to feudal

law

(Lehnrecht).

The free alienation

of

land was attained

in

England

at

a

relatively

early period,

because

it

was favored

by the

curia

regis.

Unreserved

praise is due to the discussion of the

bases of the

protection

of

pos-

session. It is one of the best contributions that has come from the

legal-historic side to

the literature of

the subject,

and

it

shows that

the

one-sided

possessory

theories are as

inadequate

to

explain

the

historical

development as are the

equally one-sided penal-law

theories -a lesson which

should be taken to heart elsewhere

than

in

England. The

question whether the relativity

of

property right

is

of

primitive origin

is

raised (vol. ii,

p.

77),

but

is

left

unanswered.

I

would

unhesitatingly answer

it in

the affirmative.

The

ius

maius

in the Breve de recto, romwhich is derived the English

ius

merum

(dreyt dreyt), has

a

prototype

in

the

Frankish law,

which

in

contro-

versies

touching

land

or freedom calls for

proof

of

the better

right

of

him

to

whom

the

proof

is

assigned.

The remark of

Bracton (fol. 53):

Aliud est dare

ecclesiam et aliud

dare advocationem. Laici tamen

secundum

communem

usum propter

eorum simplicitatem dant ecclesias,

quod

nihil

aliud est dicere quam

praesentare,

which is cited on page

135

of the second volume, gives a valuable

indication

touching

the origin of advowsons. As has

been shown

by

the

investigations of Ulrich Stutz,' the right of

patronage

or

advowson

is nothing

but a remnant of

the former Germanic owner-

ship

of

the

private

church. The laity in England, as

we see

from

1

Die

Eigenkirche als

Element des

mittelalterlich-germanischenirchen-

rechts X895),

p.

25. Geschichtedes

kirchlichen

enefizialwesensX895),vol.

i.







No. 3.]

THE HISTORY

OF ENGLISH

LA W.

541

Bracton,

were

holding ast to

the original

pointof view

even after

the papacy

had carriedto a successful

ssue

its struggle gainst

private wnership f churches.

The history

f the law of pledge

or

gage

is set forth riefly

but

notvery

learly. In this

matter he

authors

o not go back

of

Domesday

Book. The

discussion

f the forms

f the

gage of land

starts

withGlanvill.

In treating

f this matter

t would

have been

especially

worth

while

o reach back into

the

Anglo-Saxon eriod;

forAnglo-Saxon ocuments

ive

us, on the one

hand,

xamplesof

gage

withright

f use on the

part of

the gagee

(NutzungsSfand),

includingoth heGerman

odsatzuzng1

theNorman ifgage)ndthe

German

inssatzung' (Glanvill's

vadium

mortuum), nd,

on the other

hand,

rototypes

f the lassical

English

mortgage,articularly

gage

in

the

form f a conditional

onveyance,

hich

n the

Anglo-Saxon

period

ould

take place by

meansof delivery f the

and-book.

In

addition o the

citations iven

n

my

Rechtsgeschichte

er

omischen

nd

germanischen

rkunde

vol. i,

pp.

195

et

seq.),

we have recently

b-

tained

new bit of

evidence,

n indorsement

f ioi8 in

Napier and

Stevenson, heCrawford ollectionfEarly ChartersndDocuments

(Anecdota

Oxoniensia,

895,

p.

9):

Ic

gesealde hym

ane

gyrde

landes

to

underwedde.

In this instance

he

creditor

btained

he

position

f

a tenant or

ife.

Gage

in the form

f

conveyance

nder

conditionubsequent

as

certainlylready

n

existence

or,

to

speak

more

precisely,

till

in

existence

in

the time

of

Glanvill. He,

however,

ad

no

occasion

o discuss

t,

because

the transaction

ore

the legal

form

f a feoffmentnder

condition ubsequent,

nd

it

was onlyfrom he economic ointof viewthat t served o secure

debt.

What

Glanvilldoes discuss

at some

length

s the older

gage

(Satzung)

f theGerman

aw,

which

ecame

mpracticable

n

England

and

had

no

future

here,

ecause

the

gagee

did not

have

the

pos-

sessory

ction.

Again,

thatform

f

gage

which

the authors

desig-

nate

as

the

Bractonian

gage

for

years

was

not

altogether

new

creation

f the

period

after

Glanvill;

it had

its

prototype

n

the

conveyance

nder

ondition

recedent

which

we

find

employed

or

the

purpose

f

pledge

as

early

s the Frankish

eriod.

In the chapteron contracts,he authors nquire vol. ii,p.

21,

note

2)

how

the

popular

custom

s

to be

explained

that

knives or

other

weapons

r

weapon-like

hings

were

not

given,

.e.

donated,

ut

that

he

gift

was cloaked

nthe form

f a sale.

In German

Austria,

[1

In the

so-called

Zinssatzung as

in the Roman

antichresis)

he gagee

treated

the

yield

or

profit

s

interest

n

the

money

due

him.

In

the

Todsatung

the yield

or profit

was deducted,

s

it

accrued,

from

he

principal

f

the debt.

EDS.]









No. 3.] THE

HISTORY

OF

ENGLISH LAW.

543

footing

s movable

property,

here ppearsto

be a

reminiscence

f

Anglo-Saxonaw.

Amongthe

groundsgiven

to explain

ultimogeniture

sometimes

known s

borough

nglish ),

I missthe

economic eason,

which s

decisive

n

the case of

peasant

holdings.

If theoldest

on receives

the

estate,

e

marries

t once and

begets

hildrent

a

timewhen

his

younger rothers nd

sisters

re not yet

independent,ut

must be

supported n

the

homestead. In most

cases the

estate

cannot ear

this

economicburden:

only

the

larger

homesteads re

equal to it.

If theyoungestontakesthe and,thenbythe time hat newgen-

eration

s

growing p

on

the

homestead,

he

elderbrothers

nd

sisters

of

the heirhave

reached

n

age

at which

hey

an look

out for

heir

own

maintenance.

Admirably

uminous s the

explanation

f

the

peculiar

develop-

ment

y which,

n

England, he

nheritancef

movable

roperty as

takenout of the

secular

aw and

placed

underthe

nfluence f

the

church.

For

the division

f

the

personal

state into

three

parts,

wife's art, airns'part,dead's part, heauthors eject thetheory

of a

Norman

rigin.

This,

think,

s

a

mistake, ut cannot

ttempt

to

prove

he

point

here: I reserve

his

problem

or

detailed

nvesti-

gation. For the

present

t

may

be sufficiento refer

o

chapter 07

of

the

Trs

A4ncienne outume

de

Bretagne

(in

the

recent

dition f

Planiol),

where

his

riple

ivision

uite

distinctly

ppears

as

law

of

the

burgesses

nd

of the

gens

de basse

condition.

The history f

familyaw,

n

which

t is made

particularlylear

that

the

English

aw

of matrimonial

roperty

as

constructed

o

fit

theconditionsftheupper ndwealthylass, mustpass overhere,

but not

without

xpressingmy

sincere

appreciation.

As

regards

some

special

points,

or

example,

he

courtesy

f

England

and the

uxores

Danicae,

I

have

already

et

forth

my pinion lsewhere.2

The

careful reatmentf

Crime

nd

Tort

ch.

viii)

and

Proced-

ure

(ch. x)

offersheattentive

eader een

enjoyment.

take

pecial

pleasure n

observing hat

n

these

chapters he authors

have

fre-

quently xpressed heir

greement

ith

he

viewswhich had

setforth

in earlierwritings.By wayofshowingmygratitude, mustmake

known n

unintentional

isdeedwhich

committed

n

my essay

on

the

Unintentional isdeed.8

I

cited

here law

of

Roger

of

Sicily,

nd

1

Le tierz au mort,

'autre

tierz

l'homme ou a la femmequi demoure,et

I'autre tierz s enffanz 'iceulx deux.

2

Zeitschrifter

Savigny-Stiftung,

VI, 97; XVII,

19.

8

Ober

bsichtslose

issethat m

altdeutschen

trafrechte.







544

POLITICAL SCIENCE

QUARTERLY.

the

authorshave

taken thecitation

fromme vol.

ii,p.480).

In Merkel,

Commentatioua Zuris Siculi sive Assisiarum Regum Regni Siciiiae

Fragmentaphropbonuntur,he

passage reads

precisely s I

cited t:

Qui

de alto e

ipsum recipitatt hominemcciderit

t ramum

ncautus

prohiciens on

proclamaveriteu

lapidem d

aliud iecit

hominemque

occidit,apitali

ententia

eriatur.

The

passage

correspondswith

our

knowledge erived

from ther

sources

regarding he

treatmentfunintended

isdeeds

n Germanic

criminal

aw;

butas I have

subsequently

iscoveredfrom randile-

one,

ii

Diritto

RomanonelleLegge

Normannedel

Regno

di

Sicilia

I884),

P.

II

7, Merkel,

n copying

he manuscript

hich e

printed,made n

incomprehensible istake.

After

he word

1

ccidit

the codex>

n

practical greement ith

ts model,

Dig. 48, 8, 7, contains

he

words:

huic

pene

nonsuccumbit. Then

follows

passage

concerning

poisoning, hich nds, '

capitali

sententia

eriatur.

Merkelcom-

pletely verlooked he

passage

about

poisoning

nd

substitutedts

final

clause,

capitali sententia

feriatur,

or

huic pene

non

succumbit after he word

occidit. That is

a

blunder

which ne

wouldnotexpect n thepartof a man ikeMerkel,whose aborson

the Monumenta

Germaniae

Historica

had

given

him

the

deserved

reputationfan

accurate ditor. But

quandoque

dormit

omerus.

Merkel eems to

have

had a

very nlucky aywhen

he was

collating,

in

Rome,the Codex

Vaticanus,

. at. no.

8782.

The

passage

from

Roger

of

Sicily

s

therefore

n

futureo be

omitted rom

he

vidences

of

the

doctrine f

the

unintentional

isdeed; or,

at

the

utmost,

ts

insertion

n

the Sicilian statute

may

be

taken

as

evidence that

amongthe Normans f theperiod heancientGermanic iewof the

unintentional

isdeed

had not

wholly isappeared.

But

my

eview as

already rown

oo

ong. When,

hirty ears

go,

I

began

to

occupymyself

ith

he

history

f

the

English

aw,

often

felt

s

if

German

and

English egal

history

were

separated

by

an

impassablemountain

ange.

Since that

ime

he

ceaseless labor of

science

has

driven tunnel

hrough

he

heart

f

the

mountains.

In

the successful

xcavation

f this

tunnel

nd in

the workof

making

ittraversable ollock and Maitlandhaveplayed prominentart.

BERLIN,

June2I,

I896.

HEINRICH

BRUNNER.

[That

Professorrunner

ay

not

be

held

responsible

or

ny

rrors

hat

may

have

crept

nto

his

nglish

ersion

f his

review,

t should

be stated hat ime

did

not

permit

he

ending

f

proof

o him.

The

greater

ortion

f

this

eview,

with ome

dditional

material,

ill

shortlyppear

n the

Zeitschrift

er

avigny-

Stiftungfur

echtsgvschichte.EDS.]