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I have hitherto left out of sight the British Islands. From the very first their course of development sharply diverged from that of the Continent. Encompassed by the inviolate sea they sat outside the anarchy and desolation of the Continental struggle. By geographical position and peopled by sea-faring folk from Scandinavia, Flanders and Normandy the islanders were from the first what they have always remained, a naval and not a military people, though they developed naval supremacy slowly. The standing army in England did not come until after the civil war, when Cromwell, our only example of a military tyrant, raised a standing army, in excess of his pledge to the Parliament. Then again the happy incident of the necessity for supremacy of William the Norman over his scattered followers had led to the change made on Salisbury Plain which strengthened the kingly office, whereby the most dangerous feature of the feudal system, the independence of the Crown enjoyed by the great nobles, was destroyed. But the chief variant in direction throughout lay in the development of the laws expressing for the community its social duties.

While the feudal system was a living force, bodies of local custom for each district locally independent, varying according to the needs of the locality, for the most part unwritten, grew up in Europe; such bodies of custom regulated the simple relations of life on land, provision for the needs of sea-borne traffic being made by various marine laws derived from the customs of the sea ports. So various had these customs become that Beaumanoir (Prologue to the Coutumes de Beauvoisie) tells that the customs of France were so diverse that " on ne pourrait pas trouver le royaume de France deus chasteleries qui de toz cas uzassent d'une meisme coustume."

After the twelfth century the kings of the great countries from time to time, in the course of strengthening the royal authority, attempted collections and arrangement of these customs, generally with the suggestion that the legislation originated with the contemporary king.

Norway and Sweden collect their customs; the Spanish provincial laws are formed into las partidas by Alonzo X., the son of St. Ferdinand; King Edward does the same for Portugal, and Charles VII. and his successors for France.

But a common authority was required by which the conflicting

usages, customs and conditions could be reconciled and interpreted. This was found in the revived Roman law. It became "le droit qui est communes a toz es coustumes de France." Looking to the edict of the Praetor, or the rescript of the Emperor, or to the Papal pronouncement, assuming an origin of legislation by an absolute ruler for the community, it was jealously looked upon by the jurists in view of its effect upon the customary law. But it was no alien or exceptional law on the Continent as it became in England. It dominated or divided authority with the customs. "Le droit coutumier," says Montesquieu, "soit regardé parmi nous comme contenant une espèce d'opposition avec le droit romain, de sorte que ces deux droits divisent les territoires." Blackstone, writing in 1758, puts it thus: "In most of the nations of the Continent the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land. . . . We must not prefer the edict of the Praetor or the rescript of a Roman Emperor to our own immemorial customs or the sanctions of an English Parliament."

Scotland, after the expulsion of the English under the Edwards, adopted the Roman law in a modified form, incorporating in it some ancient custom. But in England, though the Italian might lecture on it at Oxford, the Roman law became and remained an alien law, associated, as the rough and tumble fight with Rome went on, with the foreign claims to toll and tithe in our dominions, in opposition to the English common law, the native custom, handed down from the past, for the most part unwritten, but acknowledged as the general law, the standard of the whole country, to which the alien law must conform.

For the difference between England and Europe, whether in the fourteenth or eighteenth century, was that, owing perhaps to her modified feudalism, to her aloofness from European quarrel, to her slight connection with Rome, to her sea wall against foreign expression of theological and political ideas, to the small area of land concerned, its level character, its suitability for wheat, to the comparative unity of race and language, she developed very early and very strongly a unity of customary law common to the whole country, customary law to which her Scandinavian and Saxon people were

accustomed, valuable not only as a repository of private law, but as general and well-recognized custom to which difficulties arising out of political action must be finally referred.

As the instinct of the Western European led to an increasing preference for the strength and possible tyranny of the king in place of the predatory uncertainty of baronial rule, the powers of the English king, though often strained to excess, especially under the Tudors, were faced with the necessity of conformity to the customary common law of the whole realm. It is to the body of this customary law that the Anglo-Norman barons refer when in the reign of Henry III. they were called upon to make one of the very few beneficial changes in the feudal customs of inheritance suggested by the Roman ecclesiastic: "Nolumus leges Angliae mutari.”

The English common law will not brook any competition of great scientific codes; it keeps the Roman civil law with its leanings to absolutism as an alien exception, only to be admitted to use where agreeable to the immemorial custom; it destroys the great body of Irish jurisprudence, so much more civilized and humane than its own practice; in later years its contact with the ancient legal systems of India is marred by the attempt to read their antique communism in the terms of the English feudal custom. In the revolts of the seventeenth century, both that in which Charles I. was murdered and in the later one in which his son fled, the acts, very trifling in themselves, which produced the upheavals were summed up in the requirement that the Scottish rulers brought up in the Roman law of Scotland should conform to the English common law on which the political edifice rested.

The two systems of law were and are in direct opposition; the one inquisitorial, the other litigious; the one resting on the authority of the absolute ruler, the other on the consent of the people; the one founded on the scientific elaboration of principle, the other on the construction by judicial decisions, laid up in the Year Books and Statutes, of laws looking to immemorial custom and based on the consent of the whole people. "Laws are they not," says a seventeenth-century philosophic writer, “which public approbation hath not made so. And to be commanded we do consent when that society, whereof we are part, hath at any time consented." We have been saved

from revolution in the past by this principle, and our greatest danger in the future lies in the increasing bulk of police regulations which do not rest either in origin or in execution on the popular will.

When in the eighteenth century the peoples of Europe were faced with the problems solved by obedience to the common law of England in the seventeenth, they were thrown back for their solution on scraps of philosophic fancy. There was for them no such body of common law enacted by the whole people to which they could refer their difficulties. L'Etat c'est moi.

PART I-EUROPEAN SOCIETY

CHAPTER I

THE DECAY OF THE OLD ORDER

i. Feudalism in the Eighteenth Century.-By the seventeenth century the feudal system as a means of living, governing the relations of the ruling class with the people, had fallen into irrevocable decay. The rights of the nobles no longer corresponded with their duties. As the princes grew stronger and the people less able to resist oppression and taxation, they ceased to have any rights at all against their rulers. Britain, as usual, stood apart, and, abolishing after the Restoration all the worst features of the feudal system, bent her energies to colonial expansion and oversea trade in which the last two Stuart kings took a prominent share. But long before the coming of the eighteenth century the state of society on the continent of Europe was such as to invite revolution. The kingship, at least in France, Spain and Portugal had so grown as to concentrate in itself the local authority hitherto exercised by the feudal magnates: but the rights and privileges which had been granted to these great men in return for the burdensome exercise of local authority, the freedom from heavy taxation, the monopoly of military office, a hundred irritating pinpricks

of privilege, handed down from the time of common action, remained. The standing armies, for the support of which the king had been allowed by his own authority to levy heavy taxes in countries always liable to invasion across an artificial border, were now commonly used not for any national purpose but in waging war for acquisition to the Crown of territories, titles or privileges, to satisfy the desire for mastery, to gratify personal vanity, or to engage in quarrels arising out of personal pique or family advantage. Still worse, the whole tendency of the exalted kingship, as the giver of all good things, was to draw the nobles to the Court in search of pensions and offices, leaving the tax-racked populations outside subject to the exaction of imposts of all sorts at the mercy of the king's officials and the lord's agents, without sympathy or assistance other than they would receive from the local priest as poor, as ignorant and as helpless as themselves.

In Germany, the larger states, Saxony, Bavaria, Hanover, and the jackal robber Brandenburg Prussia, took any side in the constant scrimmage which required soldiers and could pay for their purchase. Otherwise Germany, and Italy with its islands, split up into many little principalities, were the huntinggrounds over which the greater Powers sported, exchanging slices of other people's territories, when they were not occupied with robbing each other as part of a temporary treaty or family arrangement.

The characteristic of territorial exchange at the end of the seventeenth century was that the ruler treated the various states and peoples as his personal property to be bartered as part of a marriage settlement or of a treaty; the people exchanged being expected to accept the forms of religion (generally forms only) of their ruler. Thus the military and naval power of the great Empire of Spain was dissipated by the dynastic settlements in the course of which her widely separated dominions passed from one ruler to another. The strip which we now call Belgium, then the Spanish Netherlands, part of the Spanish Empire by cross marriages and descent, was tossed from one kinsman claimant to the kingship of Spain to another, the Emperor of Austria, while France and Holland in turn nibbled at the boundaries and made use of its helplessness to seize the fortresses and to gain diplomatic advantage on the

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