ZEITSCHRIFT FÜR KIRCHENRECHT. Herausgegeben von Dove. Berlin, 1861.

ZEITSCHRIFT FÜR RECHTSGESCHICHTE.

Herausgegeben von Rudorff,

Bruns, Roth, Merkel, Böhlau. Weimar, 1861. ZEITSCHRIFT FÜR DEUTSCHES RECHT. Herausgegeben von Beseler,.

Reyscher und Wilda. Leipzig, 18:39. 20 Bände.

ZOEPFL, H. Deutsche Rechtsgeschichte. Braunschweig, 1872. 3 vols. ZORN, P. Das Beweisverfahren nach langobardischem Rechte. München, 1872.

THE ANGLO-SAXON COURTS OF LAW.

THE long and patient labors of German scholars seem to have now established beyond dispute the fundamental historical principle, that the entire Germanic family, in its earliest known stage of development, placed the administration of law, as it placed the political administration, in the hands of popular assemblies composed of the free, ablebodied members of the commonwealth. This great principle is, perhaps, from a political point of view, the most important which historical investigation has of late years established. It gives to the history of Germanic, and especially of English, institutions a roundness and philosophic continuity, which add greatly to their interest, and even to their practical value. The student of history who now attempts to trace, through two thousand years of vicissitudes and dangers, the slender thread of political and legal thought, no longer loses it from sight in the confusion of feudalism, or the wild lawlessness of the Heptarchy, but follows it safely and firmly back until it leads him out upon the wide plains of northern Germany, and attaches itself at last to the primitive popular assembly, parliament, law-court, and army in one; which embraced every free man, rich or poor, and in theory at least allowed equal rights to all. Beyond this point it seems unnecessary to go. The State and the Law may well have originated here. There is no occasion for introducing theories in regard to the development of families into tribes, of family heads into patriarchal and tribal chiefs, of the tribe into the state, of the tribal chief into the king, of the family council into the state assembly, or of family custom into public law. We know, as yet, absolutely nothing of the society from which the Indo-European family immediately sprung, or from which it voluntarily or involuntarily separated itself. But there is no sufficient reason for supposing that, within the Germanic society itself, the family was ever exclusively powerful. There is strong internal evidence in the Germanic laws to indicate that, whatever may have been the previous social condition of the race, its earliest political and legal creation was in the form of an association of small families, with or without actual or theoretical relationship, but without a patriarchal chief; an association whose able-bodied male members, uniting, not as families, but as individuals equally entitled to a voice, formed one council, which decided all questions of war and peace; elected all officers, civil or military, that circumstances required; provided for the security of property; arbitrated all disputes that were regularly brought before them; and left to the families themselves the exclusive control of all their private affairs, as belonging to the domain of family custom. So far as concerned the purposes for which this association existed, the state was already supreme. Within its own sphere, the family was uncontrolled.

This popular assembly was the primitive law-court of the Germanic race. What may have been its composition when the Germans were a nomadic race, if, indeed, they ever were a really nomadic race, is a subject of little importance. For all ordinary purposes of historical reasoning, the present division of Europe has existed from indefinite ages. The Germans have occupied the centre of Europe, so far as any thing is known to the contrary, as long as the Greeks and Romans have occupied their peninsulas. The Saxons, from whom the English sprung, have been from all historical time the inhabitants of the territory which their descendants still occupy. Their habitations have been fixed; their dwellings have been permanent; their boundaries have been established. At the time when German law and society were first brought within the view of history, the German popular assembly consisted, and to all appearance had always consisted, of the free inhabitants of a fixed geographical district. The army, indeed, when assembled for war, was a court of law, because it was the people that were assembled; and the people, wherever assembled, were the state. But at home the free men of each geographical district met at a fixed spot within that district, at fixed times, and formed the court of law. The idea of the State was not merely a personal but a geographical idea, if not in theory, at least in fact.

Various names were used, and are still in use, to designate this political and territorial unit. English writers have usually called it the tribe. They have also called it territorially a pagus, a canton, a shire, a gau. There are objections to all these terms. The territorial meaning of pagus, gau, canton, and shire, is that of a division or section of a country, whereas the idea to be expressed is that of an entire country, a territorial unit. The tribe is equally unsatisfactory, as expressing the political unit, for the reason that the scientific meaning attached to the word tribe by historians is precisely the meaning which is not meant to be here conveyed. The German organization is important only because, and only so far as, it is not a tribal but a political organization; not a tribe, but a state. In this difficulty there seems to be no resource better than that of adopting American usage. The idea to be conveyed is entirely expressed, both in its political and territorial meaning, by the American use of the word state, as in the term United States, signifying, as it does, not merely definite territorial boundaries, but confederated political organizations. Instead, therefore, of the words tribe and gau or canton, the word state will be here used to designate the primitive political and territorial unit of Germanic society, the civitas of Cæsar and Tacitus.

If any correct inference can be drawn from the facts known in regard to the earlier and ruder stages of German society, it would seem that the entire race was divided into an almost innumerable variety of such petty states, varying greatly in size and customs, but each enjoying its own independence of action through its own popular assembly, and each considering itself at liberty to join or to abandon a confederation with other states, as suited its ideas of its own interests. Even when conquered in war, and held in political subjection, each state would ordinarily preserve its own powers of self-government to a degree that would render a resumption of its independence easy, and, in time, almost inevitable. Yet it is obvious that if military conquest, under the influence of foreign example, ever took the shape of consolidation, so that two or more states were united in one, and their popular assemblies ceased to exist independently, and became merged in one great assembly of the entire nation, such a change might easily give birth to a military monarchy, a territorial aristocracy, a feudal anarchy, or almost any other form of transition. Such seems, indeed, to have been the case with the most powerful of all the German confederations, the Franks, when they first appear in history. The small states of which the Frankish kingdom was composed had not confederated together, but had been consolidated. Possibly it was this policy of centralization which gave them supremacy in Europe. But in return it hastened the decay of their democratic institutions, which could only be safe in states so small that the popular assembly could actually include the body of free men in healthy and active co-operation. From the moment the small state became merged in a great nation, the personal activity of the mass of free men in politics became impossible, if for no other reason than for the mere difficulties of distance. Nevertheless, even in this case, the functions of a supreme court of law would remain vested in the great national assembly, until, with all other public rights, they fell ultimately into the hands of the king.

It seems most probable that some of these petty states were very small; so small as to need no subdivision for administrative purposes. In this case, their popular assembly must have provided, by frequent meetings, for the ordinary business of the law. But, in the rule, the state appears to have been large enough to require subdivision into adminis