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LXXVII., Æthilbert, 732. “. jus regium in ea deinceps nullum reperiatur omnino excepto dumtaxat tale quale generale est in universis ecclesiasticis terris

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in hac Cantia." CLXVI., Offa, 791-796. "... ut sit libera tam in terrarum donatione seu in omnibus causis parvis vel magnis ut nulla secularis dignitas de nostra haereditate plus his in magno vel modico per vim aut petitionem aliquid exigat."..

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CCLXXXI., Æthilberht, 858. "... ut omnium regalium tributum et vi exactorum operum et penalium rerum principali dominatione furisque comprehensione et cuncta seculari gravidine immunis permaneat."

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DCCVII., Æthelred, 1002. "...omni alieno permanent extranea dominio et cunctis poenalibus causis."

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Whether grants like these are to be understood as excluding the action of the royal officials to the same extent as is expressed in the continental grants of immunity, may be a question. The doubt is somewhat strengthened by the fact that there are charters which follow the continental formula, but which are in every instance, so far as I am aware, forgeries of a late period.1

So far as the charters are concerned, the evidence that private jurisdictions were known to the law of England, before the year 1000, is limited to the inferences that may be drawn from these grants. The best authorities seem now to be agreed that the argument, as based on these grants, fails to prove the existence of such private courts of law.

There is another argument, not yet so familiar, which may throw some further light upon the subject. The legal history of England, in its earlier stages, stands in curiously intimate connection with that of the Continent. English law was always more conservative than that of the Franks. It was more slowly affected by Roman jurisprudence. It adhered more persistently to the popular principles of its archaic constitution. It offered an equal resistance to the good and the bad of Frankish example, - to the equity as: to the despotism of Charlemagne. But, although English law was affected slowly by that of the Continent, it was

! affected surely. Both in consolidation and in disintegration, England was centuries behind the Continent; but, nevertheless, both consolidation and disintegration came at last, only in forms somewhat less mischievous in their immediate effects, and much more beneficial in their ultimate results, than was the case in the Empire and in France.

Yet, even on the Continent, where feudalism established itself far earlier than in England, the creation of private jurisdictions was a comparatively late event.1 The first recorded attempt made to set up the authority of a private court against that of the State tribunals was that of Bishop Hincmar, of Laon, about the year 868. Down to this time, there is no reason to suppose that either the spiritual or the temporal lords had ever attempted to wrest jurisdiction from the public courts. They had been content with the private authority exercised by them and supported by the State, as regarded their own families and dependants. Such authority, verging though it did upon the character of a legal tribunal, was not, as yet, recognized by the law in any other character than that of a private association, which in no way excluded the ultimate jurisdiction of the public courts. But the utter dissolution of all political ties, which characterized the condition of Northern France during the latter years of the ninth and all the tenth century, created an absolute anarchy in the administration of justice. The public jurisdiction, in the absence of a central authority, fell into private hands, and became an object of inheritance. The private court of the landed proprietor acquired the character of a court of law. The old courts of the grafs and the new courts of the private lords became intermixed in a confusion that was and still remains inextricable, and unintelligible to the ordinary understanding.

But it so happened that the precise period which was so fatal to the structure of European society was exceptionally favorable to the quiet development of England. The struggle with the Danes, which marked the lowest point of England's power, was closed by Alfred and Guthrum's peace, about 880. Just as Northern Europe saw the last flickering ray of hope expire with the deposition of the Emperor in 887, England began to develop a degree of unity and political power which she had never before known. The partition of Mercia between Alfred and the Danes established the supremacy of Wessex beyond all future question. The abilities of Alfred, of his son Edward, and of his grandson Æthelstan, fortified this supremacy, and maintained the steady progress of national development during a period of half a century. The death of Æthelstan was followed by a moment of confusion; but the administrative skill of Oda and Dunstan soon restored order, which continued undisturbed till after the close of Edgar's reign in 975. Thus England passed in safety and content through all the darkest period of modern history, when every hope of happiness seemed extinguished in Northern France. During all this period, there was no time when the crown was in a position to make a sacrifice of its rights necessary or probable.

That private jurisdictions should have originated in England, before they existed on the Continent, is in the highest degree improbable. Not only did England take no such lead in the movement of the time, but there is not the slightest evidence of the existence of any such institution, and there is strong evidence to the contrary. That they should have originated during the vigorous reigns of the great Wessex monarchs, before 975, is also highly improbable in itself. Moreover, there is no period in all early English history when the course of law seems to have been so regular as during this century of comparative repose. The charters granted by these monarchs are dull, moderate, and uniform to the last degree. The laws are energetic, and the royal power efficient. In the absence of all evidence pointing to any collapse of the judicial constitution, and in the face of all the facts which testify to the extent and vigor of royal authority, it is mere unsupported assumption to infer that there was any weakening in the bands of society, or any concession to private aggressions upon the rights of the crown, before the death of Edgar, and the overthrow of Dunstan's policy.

But, during the next half-century, the condition of England was widely different. The reign of Æthelred the Unready was marked by a series of disasters, each more destructive than the last, and culminating in the absolute collapse of the royal authority in 1013, and the deposition, or at least abdication, of Æthelred, who retired to the Continent. Absolute political disorganization prevailed. The situation of England during these years was, in all essentials, identical with that of the Continent one hundred years before. It is true that neither the French nor the Germans had ever been reduced to such humiliation as not only to depose their own king, but to choose a Dane and a pagan to wear his crown, as was done by the English in their submission to Swegen. It is also true that the dissolution of all conceptions of political union was hardly forced on the Continent to such an extremity as that to which it was systematically carried in England by the policy of Ælfric and Eadric Streona. But, in all essentials, the situation of England from 990 to 1017 was identical with that of the Empire one hundred years before. It was a situation of social and political anarchy.

| It would seem natural to suppose that the effect upon the judicial system of England must have been the same as on that of the Continent. During these long years of disorder, what was to prevent the great landed proprietors, with the church at their head, from assuming powers which did not legally belong to them? They protected their tenants and dependants as well as they could in the absence of a protecting government. Their courts might naturally, in practice, become courts of justice.

Nothing is known of the extent to which this movement may have been carried before the restoration of order. When a new government was established, the great house of Wessex no longer wore the crown. A foreigner sat on the throne. Cnut was welcomed by the English people, who never attempted to disturb his reign. On the other hand, he seems to have made no attempt to disturb their customs. He was not a great law-giver, like William and Henry II. He accepted the laws as he found them; and the administration of justice remained where it was left by the wars.

Yet, notwithstanding the inherent probability of the thing; notwithstanding the contemporaneous existence of private courts of law on the Continent, with their natural influence on English society; notwithstanding the concurrent agreement of all modern writers that private jurisdictions did exist in the law of England at least from the time of Æthelred, a careful examination of the evidence warrants the assertion that no contemporaneous evidence exists which will bear out any such theory. If such jurisdictions existed, they existed outside the law; they existed not as a part of the constitutional system; they received no countenance from the crown; they have left no trace on the contemporaneous records of the period.

Even a slight examination of the grounds on which the highest recent authorities have conceded the existence of private jurisdictions in the law of England, before the time of Edward the Confessor, that is, the year 1042, tends to raise a doubt as to their solidity. Mr. Kemble, while agreeing that there is no conclusive evidence that these tribunals existed before the time of Cnut, concludes "that they were so inherent in the land as not to require particularization" in legal documents, - a view which can hardly be considered as convincing even in regard to so defective a system of law as the Anglo-Saxon. Professor Stubbs has not expressed any very clear opinion upon the subject, but may perhaps be considered as accepting generally the views of K. Maurer and Dr. Schmid. Professor Maurer rests his argument on the following passage from the laws:1

Æthelred, III. 6. "... And let every vouching to warranty, and every ordeal, be in the king's burg."...

Even from this, however, he draws only a cautious conclu