Early  Journal  Content  on  JSTOR,  Free  to  Anyone  in  the  World  
This  article  is  one  of  nearly  500,000  scholarly  works  digitized  and  made  freely  available  to  everyone  in  
the  world  by  JSTOR.    

Known  as  the  Early  Journal  Content,  this  set  of  works  include  research  articles,  news,  letters,  and  other  
writings  published  in  more  than  200  of  the  oldest  leading  academic  journals.  The  works  date  from  the  
mid-­‐seventeenth  to  the  early  twentieth  centuries.    

 We  encourage  people  to  read  and  share  the  Early  Journal  Content  openly  and  to  tell  others  that  this  
resource  exists.    People  may  post  this  content  online  or  redistribute  in  any  way  for  non-­‐commercial  
purposes.  

Read  more  about  Early  Journal  Content  at  http://about.jstor.org/participate-­‐jstor/individuals/early-­‐

journal-­‐content.    

JSTOR  is  a  digital  library  of  academic  journals,  books,  and  primary  source  objects.  JSTOR  helps  people  
discover,  use,  and  build  upon  a  wide  range  of  content  through  a  powerful  research  and  teaching  
platform,  and  preserves  this  content  for  future  generations.  JSTOR  is  part  of  ITHAKA,  a  not-­‐for-­‐profit  
organization  that  also  includes  Ithaka  S+R  and  Portico.  For  more  information  about  JSTOR,  please  
contact  support@jstor.org.  
1874.] Stubbs's Constitutional History of England. 233

Miss Frothingham's version seems to us excellent ; it reads easily,

and at the same time has much of the conciseness and point of the
With a deal of searching we have been able to find a
original. good
few passages which seem to need correction. On p. x, of the Preface,
Afterkritik is rather than "faultfinding," criticism. P.
"?spurious,"
v
xi, "savor more of the fountain translates "mehr nach der
hardly
" " "
Quelle schmecken ; fountsim-head would answer. On p.
perhaps
109, the first sentence needs revision in order to make it English.
On p. 124, the last sentence should read, opinion is that true
"My
in pictures was hit upon scene
perspective incidentally through
; but even when that art was in its perfection it
painting already
must still have been no task to its rules to a single
easy apply plane,"
"
etc. On p. 171, "arguti is rather "subtilties of detail" than
"traits of animation." P. 183, the "Borghese Gladiator" is better
as the " Fighting "
known Gladiator ; and at this place it might be
mentioned that afterwards withdrewr the conjecture once
Lessing (for
not a that it was a statue of Chabrias.
very happy one)

?
12. The Constitutional History of England in its Origin and Develop
ment. William Stubbs, M. A., Regius Professor of Modern
By
History. Vol. I. Oxford : At the Clarendon Press. 1874.

The of Professor Stubbs stands so that

authority deservedly high,
a critic who undertakes to deal with his works must feel the
always
task to be one of no little and His name has
difficulty danger.
often been mentioned in the pages of this Review, and with
always
respect and He is not only learned and accurate, but, unlike
praise.
some of his rivals in the same field, his
is admirable, and
judgment
his caution almost excessive. Regius As
Professor at Oxford, he

gives to the study of history. Even yet this stands

dignity study
at that University in slight esteem, overshadowed as
comparatively
it still is by the prescriptive authority of the classics ; and the pres
ent work is doubly valuable if it is an evidence that Oxford intends
at last to interest herself seriously in the history of England, and
to tolerate no that indifference which has thus far left the
longer
national annals in the hands of Scotchmen or amateurs. A scien
tific training is as necessary to the historian as to the mathemati

cian, and it is the misfortune of that she has never

England yet
had a scientific historical school.
Mr. Stubbs's first volume deals with the constitutional of
history
England during the long period of seven centuries between the first
234 Stubbs's Constitutional History of England. [July,

establishment of the Germans and the of Magna Charta.

adoption
There is no use in the fact that, to the mass of read
disguising
ers, early English history is dull and consti
reading, early English
tutional is peculiarly dull reading. Yet its scientific interest
history
is very great. The constitutional which marked these seven
changes
centuries were more radical than any which have occurred since
their close. include the entire conversion of an archaic,
They pagan
community into a nation which was
only waiting for the masterly
touch of Edward I. to become a model in history. The various

stages of this preliminary progress; the obscure forms of society

and law, with their irritating and pedantic details ; the experiments
in government which succeeded, or, still worse, those that failed;
the incessant and intricate between the old that was
always struggle
?
passing away and the new that was at hand ; all these changes and
varieties of the a treatment and consume
story require profound
infinite time. That Professor Stubbs should have succeeded in
this of his subject into six hundred pages is
compressing part only
to be explained exclusion of all extended
by his careful argument,
and his moderation in of thelearning. He has
display produced
a work which for compactness and can be with
solidity compared
but a A different or a careful
nothing dictionary. arrangement
index might convert it into a sort of English And
easily Ducange.
Mr. Stubbs's is far in advance of any previous
although History
work of the and will retain its over
kind, probably long superiority
all still the critic be allowed to
express a that
rivals, may regret
the author, instead of writing a did not rather a
history, compile
like thatof Ducange or has proved
glossary Spelman. Experience
that such as the can ever is best to
immortality antiquarian expect
be earned in this manner. Even the best histories are soon super
seded and cease to be read; but Ducange, Spelman, Grimm, must
be consulted and re-edited. Professor Stubbs could propose
always
for himself no task so brilliant or so useful as that of furnishing
the world with a index and to all the records of
complete glossary
early English history. How valuable such a work may be has been
shown who has done it for the laws alone. There
by Dr. Schmid,
are no books so essential to the student and so little accessible in
as this sort of There are none which
English history cyclopaedia.
bar so the influence of dangerous or feeble or
effectually theorizing,
which tend so directly to shorten the labor of good historians.
There is another reason this method of proceeding would
why
have been suitable in the case. Without the
especially present
slightest disrespect to Professor Stubbs, who stands above the range
1874.] Stubbs's Constitutional History of England. 235

of criticism, even his strongest friends must concede that his

captious
mind is better to the work of than to the art
adapted compilation
of story-telling. The historian must be an artist. He must know
how to the leading ideas of the subject he has chosen, how
develop
to the thread of his narrative in hand, how to subordi
keep always
nate details, and how to accentuate But of such an art
principles.
Mr. Stubbs is altogether He would
innocent.perhaps regard it as

slightly contemptible, indeed, in England

and, it has become
really
so, although, strange to say, in it has been of late superbly
Germany
Mr. Stubbs has no theories to advance, no to
developed. principle
demonstrate. His History aims at the correct appreciation of facts,
so far as are at hand, rather than at the development of an
they
idea. He is a perfect editor; he would be an admirable
lexicog
rapher; but as an historian he will infallibly be voted dull.
This is the more to be regretted because there is no reason nor
excuse for it in the itself. The mass of mankind, of course,
subject
will always think constitutional history dull, but Mr. Stubbs does
not write for the mass of mankind. He writes for a small class of
or students who are interested in the
lawyers peculiarly subject,
and alive to its extreme To them the constitu
fully importance.
tional history of England is perhaps the most interesting history that
ever was written. offers to them the of a nation
England spectacle
which has passed through all the stages of change both in public and
private law, from pure down to the latest
archaism germs of future
institutions now
struggling life, either intoin her own soil or that of
her offshoots, and this mass
in all of public and private law it can

hardly be said that there is a single serious of legal

interruption
She is therefore a among nations, in her
continuity. curiosity unique
Rome can alone claim a with her, but at least
development. rivalry
on the side England has an over
political indisputable advantage
Rome.
So far as law is concerned, the of this
private early history great
is still almost a blank. Neither Mr. Stubbs nor other
system any
writer has it, and it is destined to remain un
seriously attempted
touched until Germany has forced England into scholarship. All
that is known of early English private law must as yet be read in
German books. Until the appearance of Mr. Stubbs's work, this was
also very much the case in regard to constitutional law ; the excel
lent books of Kemble and Palgrave were Mr.
becoming antiquated.
Stubbs, however, is a German scholar, and is not ashamed of ac

knowledging his indebtedness to Germany. Yet it is safe to say

that even Mr. Stubbs might have gone with advantage still more
236 Stubbs's Constitutional History of England. [July,

into the of German historians in the more technical

deeply study
branches of private law. Nevertheless, a has been gained
great point
the concession that English constitutional history begins
by general
with the coming of the Germans in the latter half of the fifth century,
and Mr. Stubbs has done much to clear men's minds by rejecting at
the outset every suggestion of Boman influence, and resting his whole
structure upon the simple foundation of German archaic society.
The outlines of this thanks to German are
society, investigators,
now clear. The and Saxons wTho drove out the
sufficiently Angles
old British population brought to England a constitution of their
own. In Germany had before the earliest historical
they adopted,
period,
an
organization which bore the name of hundred ; and although
the term itself does not in their laws till a much later period,
appear
Mr. Stubbs admits that the earliest was
Anglo-Saxon society probably
founded this division or its lived in small
upon equivalent. They
settlements wThere the land was, held in common, or where,
perhaps,
at all there were extensive of common, but their con
events, rights
stitutional centred in the hundred, of which the or
activity village
was but a fraction. The hundred was their unit of
community
At the hundred court, the mallus, methel, or
organization. thing,
which met month, each freeman was bound to appear.
every probably
The to this was
court in essentials
legal procedure peculiar certainly
the same as that described in the Lex S?lica as existing among the

Franks at the same and has been sketched at consid

period, already
erable in this Review. at the beginning, when the
length Perhaps
German settlements were the hundred court was
very small, parlia
ment and law-court in one, and all of every kind may have
questions
been settled there under the of the ealdorman. But as
presidency
districts were the hundreds appear to have been
larger occupied,
in shires, and twice a year the freemen met together
grouped together
at a fixed spot and transacted business both legal and political in the
which had an in all suits, and was
shire-court, appellate jurisdiction

probably presided over by the ealdorman.

Thus the constitution was It was
early simple enough. purely
democratic. The ealdorman was a whose were no
president powers
than the freemen chose to concede. The free citizens ad
greater
ministered their own law and their own in their own
political system
courts. went out to war as went to their hundred-court ;
They they
same. If reliance is
law-court, parliament, and army were the any
to be placed in the characteristics of German these
general society,
or similar institutions must have existed in all the numerous shires

which are called kingdoms in the early history.

1874.] Stubbs's Constitutional History of England. 237

In to this however, the records are very vague, and

regard period,
results are not fixed dispute. Nearly four centuries
easily beyond
elapsed after the Germans first settled in England before any clear
notion of their can be obtained from their literature.
government
that time a whole civilization had over under
During spread Europe
the Frankish and had introduced a characteristic constitu
empire,
tional system. England was strongly influenced by it. Of that sys
tem the elevation of and the administration of the
royal authority,
hundreds officials, were marked incidents. It is, therefore,
by royal
natural that a law of Edward the Elder, of about the year
enough
920, should direct his reeves to hold their court every four weeks.
The royal sheriff presided therefore in the hundred-court. To this
extent administration had been centralized. was now united
England
under one and a great council assisted in the govern
king, political
ment. Later times have given to this the name of Witena
body
or court of the elders ; in Anglo-Saxon it seems to have
gemot, days
been known as the Witan or the Gemot.
merely
Here, then, begins the division of English constitutional history
into its two main branches, the political and the judicial. Omitting
all else in order to keep these great objects in view, the single
clearly
of interest in to the first must be to ascertain
point special regard
how far the Witan is to be considered as identical with the later Par
liament. On this subject the English historians are rarely to be
trusted. They
are apt to be led, by a sentiment of patriotism, into
the assertion as an article of faith of what is not only of
incapable
but inconsistent with facts. Even Mr. Stubbs, cautious as he
proof,
allows himself to dwell rather on the points of resemblance than on
is,
the differences between the two assemblies. The great German his

Sohm, has described more than Professor Stubbs has

torian, clearly
done the of the Anglo-Saxon political system. These
peculiarities
rest mainly on the fact that in England the ealdormen
peculiarities
represent the old tribal independence, the petty kings who preceded
the national union. Their was not created the
authority by throne,
but was older than the throne. What the crown won, it won from
the ealdorman. He was a with an not derived
viceking, authority
from, but of, the No law of the king's, but a
independent king. prin
ciple of the constitution, defined the plenitude of his power. Not
the will of the king alone, but a judicial sentence, could deprive him
of his office. The ealdorman excluded the king from the immediate
of his Local government was therefore the
government province.
rule, not of the king, but of the ealdorman. The king, in
appointing
him, not a servant of his will, but a and lord of the
appointed prince
province.
238 Stubbs's Constitutional History of England. [July,

In the Witan the king and the Church alone the

represented prin
of national and the to centralization. The eal
ciple unity tendency
dormen an force, the ancient constitutional
represented antagonistic
of local How strong this principle was, can best
rights independence.
be seen in the lives of Aelfric and Eadric Streona. It made the king
dom a prey to internal and conquest. It was the
treachery foreign
natural forerunner of a feudal chaos ; and when Harold, imitating the
raised himself to the throne, the natural consequence would
Capetians,
seem to have been that England should share the fate of France.
To have this was the one great service which William
prevented
the Norman rendered to mankind. His crown upon success
depended
in trampling the last spark of life out of that local de
aristocracy,
scended from the which found its expression in the Witan.
heptarchy,
Nor is there any other single point inWilliam's policy which stands
out in equal prominence with this. Here is the justification of his
course in making a desert,
Northumbria and in cutting off Waltheof 's
head. To guard against any possible revival of the old system, he
scattered his grants to the Norman nobles over all nowhere
England,
the revival of a local aristocracy. His was wise and
allowing policy
successful, however rough it may have been. Never after Wil
again
liam's does one hear of Wessex, of Mercia, or of a Northumbrian
reign
Witan.
As a necessary consequence of this the old
policy, Anglo-Saxon
with the class it represented, nor is this result
Witena-gemot perished
a
in the least affected by the fact that the conqueror maintained for
time a certain hollow form which still bore its name. It is even made
more the fact, out Mr. Stubbs, that the
conspicuous by pointed by
judicial powers of the Witan were henceforward wielded by the Curia
Begis, which thus acquired a prominence hitherto denied it. Neither
Mr. Stubbs nor even Mr. Freeman would maintain that
probably
there is any evidence whatever to establish the existence of a
legis
lative assembly under Rufus, Henry I., Stephen, Henry IL, Richard
or John. The utmost that can be demonstrated is the occasional
indication of a consultative which, to the has no
body, say least,
stronger affiliations with the Witan than it has with the Curia Regis
or the Norman court of the barons. Two whole centuries elapsed
between the last genuine meeting of the Witan and the first meeting
of Parliament. When at length the practical wisdom of the English
mind and the of Edward
administrative
genius I. organized parlia
government, the constitution of that was the
mentary body essentially
to that of the Witan. It was national, it was
opposite representative,
it was popular. The Witan had been sectional, self-constituted, nris
 1874.] Stubbs's Constitutional History of England. 239

tocratic. The Witan the Parliament the con

represented heptarchy,
solidated nation. The Witan perpetuated all that was worst in the
old : Parliament offered all that was best in the new. The
system
as an in constitutional had never
Witan, experiment government,
worked or ; it was a failure. Parliament was from
easily thoroughly
the first a success. There is little in common between them, except
that both were legislative and judicial assemblies.
If Mr. Stubbs's caution has him from advancing any
prevented
very or very views in regard to the logical sequence
strong peculiar
of English institutions, the same cause is possibly accounta
political
ble for his failure to mark what he would consider the essen
sharply
tial elements in the judicial constitution. His description is confused
details. He too, a statement which is hardly tenable :
by begins, by
"
The unit of the constitutional machinery [in early Anglo-Saxon
or vicus." If he had said that the
times] is the township, the villata
unit was the shire, the statement would have had of support.
grounds
If he had said it was the hundred, he would have agreed with the
highest modern authorities. If he had called it the tithing, or the
an argument have been made in his favor. But one is
family, might
at a loss to understand in what single particular the villata or town
was a unit of constitutional It had not a con
ship machinery. single
stitutional function of any kind, sort, or
description. It had, if Mr.
Stubbs pleases to insist upon it, some small police functions ; and it is
that it may have had some sort of police-court, even
possible although
the existence of this court can be proved. Mr. Stubbs cites
hardly
" "
one charter of Richard I. to show that the word occurs
townshipmot
at all. Mr. Stubbs further says that the township appears in its eccle
siastical form as the But, on the other hand, the laws, the
parish.
records, the constitution itself, and the whole literature of Germanic
leave no doubt as to what the English con
society possible people
sidered their unit of constitutional It was the hundred,
machinery.
of which the was a mere fraction or subdivision, with no
township
of its own. The hundred-court., of at
separate activity consisting
least a certain number of freemen fromevery vill, and
meeting every
four weeks, was the foundation of everything in Anglo-Saxon :
history
of king, ealdorman, shire-court, army ; of all except the Church. The
hundred-court was the lowest court of civil and criminal ;
jurisdiction
no could be taken to the shire-court or to the that
complaint king
had not been first heard in the hundred. It was the lowest organiza
tion used by the king for judicial or administrative purposes. Even
so late an as I. shows that the hundred at that
authority Henry day
was still the unit of constitutional machinery as it was in the time of
240 Stubbs's Constitutional of England.
History [July,
"
the Saxon : Henricus rex .... omnibus baronibus suis.
kings
Sciatis quod concedo et ut amodo comitatus mei et hundreda
praecipio
in illis locis et eisdem terminis sedeant, sicut sederunt in tempore
r?gis Eadwardi et non aliter. enim voluero, faciam ea
Ego quando
satis summonere mea dominica necessaria ad voluntatem
propter
m earn.Et vol? et prsecipio ut omnes de comitatu eant ad comi
tatus et hundreda, sicut fecerunt in tempore Eadwardi." Mr.
regis
Stubbs himself cites evidence to the same effect. The entire
ample
fabric of civic as described Mr. Stubbs, testifies to the
society, by
same fact. The construction of Book and the Rotuli
very Domesday
Hundredorum proclaims it.
If this were a of there would be no
point secondary consequence,
occasion to comment it. But if the clew offered
upon by the hundred
is once lost, or even if it is loosely held, the entire of the Eng
history
lish constitution becomes a confused of words. The
judicial jumble
one Germanic institution was the hundred. The one code
permanent
of Germanic law was hundred-law, much of which is now the common
law of England. The hundred and its law survived all the storms
which wrecked dynasties and Witan. It was the foundation of the

judicial constitution under the Conqueror as it had been under Cnut

and Alfred. Nor is this principle contradicted by the fact that the

Conqueror, like Charlemagne, and too like Alfred, Cnut, and

perhaps
Edward the Confessor, sent to hear
occasionally special judges special
cases in these courts, and to decide them the
by royal, equitable pro
cedure, which substituted the inquisitio per testes for the oath and
ordeal. Excepting the royal hundred-law was
equitable jurisdiction,
the sole law of England. The Conqueror, however, in an unlucky

moment, allowed the archbishops and archdeacons to withdraw from

the hundred-court all cases the Church, and to decide
involving
them in ecclesiastical courts, non secundum hundret sed secundum
not but canon
ca?ones, by hundred by law. But neither William I.
nor his sons, nor nor even II., made essential
Stephen, Henry any
change in the judicial constitution. The Assize of Clarendon
merely
shows the more regular and developed use of a power which seems to
have been exercised by Alfred nearly three centuries before. The in
troduction into the judicial procedure of those new forms of proof
which were to exclude the oath and the ordeal as Glanvil
proceeded,
says, from the highest equity, but was hardly in itself a revolution in
the old constitution. The real came when the
change king's judges,
who had hitherto been chiefly bishops and sheriffs, and had sat in the
or hundred courts, to form a class, and
county began professional by
means of their powers drew suits before a court of their
equitable
1874.] Stubbs's Constitutional History of England. 241

own. Thus their the old

jurisdiction gradually overlay hundred-juris
diction and sucked the blood from it; but even then the hundred
died inch inch, peacefully, and without a moment of cessa
slowly, by
tion in the of English law. One of the best in
continuity paragraphs
?:
Mr. Stubbs's book describes the result
"
The fixing of the Common Pleas at Westminster broke up the unity of
the Curia, but it was not until the end of the of Henry
reign III. that the

general staff was divided into three distinct and permanent bodies of judges,
each under its own chief. But the court or courts thus organized must no
as the last resource of suitors. The
longer be regarded reservation of knotty
cases to be decided by the king with the council of his wise men, continues
the ancient of the The very act that seems
personal jurisdiction sovereign.
to give stability and consistency to the ordinary jurisdiction of the Curia,
reduces it to a lower rank. The judicial supremacy of the king is not limited
or fettered
by the new rule ; it has thrown off an offshoot, or, as the astro
nomical theorists would say, a nebulous envelope, which has rolled up into a

compact body, but of light remains

the old nucleus unimpaired. The royal
diffused the close personal council, or tempered and adapted
justice, through
by royal grace and equity under the pen of the chancellor, or exercised in
the national assembly as in the ancient or concentrated in the
witenagemots,
hands of an irresponsible executive in the Star Chamber, has for many gener
ations and in many various forms to assert its vitality, unimpaired by its
successive emanations."

Yet, notwithstanding this great development of royal justice, the

old hundred-jurisdiction long retained vitality, and especially in the
form of manorial courts has retained it down to our own time. The
manorial jurisdiction has given rise to much confusion of ideas. It is

perhaps popularly supposed that, under Norman influence, the manor

court created a new and kind of law in England ; that it
peculiar
wrung sovereignty from the Crown and their liberties from the
and set up a of its own. On this
people, legal system point again
Mr. Stubbs is not so clear as one would wish. He neither states
the nature and extent of manorial jurisdiction in England with all
the nor compares it with that in France and
preciseness possible,
nor does he even declare any decided as to
Germany, very opinion
its historical Indeed, on this he returns to what has
origin. point
been above criticised as a very hazardous in regard to the
opinion
Starting from the former that
township. apparently assumption
the was the unit of constitutional he
township machinery, quotes
Ordericus to the effect that the manor was the ancient
merely
"
now held a feudal and then adds : The mano
township by lord,
rial constitution is the lowest form of judicial organization.
manor had a court-baron, the ancient of the township,
Every gemot
vol. cxix. ?
no. 244. 16
242 Stubbs's Constitutional History of England. [July,
.... and a court Mr. Stubbs be right,
customary." Possibly may
but it would be to know on wThat evidence he
extremely interesting
rests his assertion that the court-baron was the ancient of the
gemot
township. Surely the charter of Richard L, already referred to, is
not all the evidence he has to offer on this point, though it is all that
is furnished. On the other hand, Mr. Stubbs knows better than any
one else, and intimates in various that the of the
places jurisdiction
court-baron, which is certainly the true of interest, was not the
object
jurisdiction of the township-gemot, but of the hundred. Almost in
the next line to that above he goes on to that certain ma
quoted, say
"
nors had also a court-leet or criminal cut out, as it were,
jurisdiction
from the criminal jurisdiction of the hundred." If the criminal juris
diction of the manorial court came from the hundred, Mr. Stubbs
at least to have said where the civil came from.
ought jurisdiction
not from the Undoubtedly both civil and crimi
Certainly township.
nal came from the hundred, for the reason that
jurisdiction simple
there was no other source from which it could have come.
Every
has assumed it to be hundred-jurisdiction.
legal authority always
and Scriven, Gneist, even Mr. Stubbs himself, are in accord
Scroggs
on this At least Mr. Stubbs, on the page, says in a
point. following
note that the jurisdiction of the hundreds fell more especially into the
"
hands of the territorial were in fact,
whose as courts
proprietors,
had been
earlier, in private hands." vested
they public jurisdictions
The manorial court, as known in the later law, was a hun
private
dred ; its jurisdiction was the same, its constitution the same, its pro
cedure the same, as those of the hundred. The of history
continuity
requires that this point should be strongly asserted. By confusing
manorial with the some of unknown
jurisdiction jurisdiction village
the logical development of the judicial constitution is
police-court,
disturbed. No one would for an instant suppose that Mr.
seriously
Stubbs is ignorant of the facts, but there is a certain vagueness in his
modes of expression which sometimes leaves the reader in the dark as
to his actual opinion, and on a capital point like this no historian
can afford to be vague. Too much stress cannot be laid on the fact
that manorial was in its origin and essence hundred
jurisdiction juris
diction ; unless, indeed, the author believes that it was not hundred
and in that case too much stress cannot be laid on the
jurisdiction,
The mere fact that the court was at one
negative. popular period
over an elected officer, at another a official, and
presided by by royal
at a third a lord of the manor, makes no difference in the
by legal
character of the institution. Whatever happened in France, it would
be hard to that baron ever wrung one attribute of sover
prove any
 Stubbs's Constitutional History of England. 243
1874.]

from the grasp of the Norman kings. The manorial courts

eignty
after, as before, the conquest, were but private hundred-courts, in

which, not the lord, but the freemen declared the law, and such
they
have ever remained. The chain which unites our modern judicial
constitution with that of Alfred the Great is perfect in its more ar
chaic as in its more sequence.
royal
This notice has exceeded its proper limits, and there is no
already
space left for Professor Stubbs's treatment of the
examining great
ecclesiastical in which he is peculiarly at home. But per
questions
a critic be allowed to express regret that he is not to have
haps may
the assistance of Professor Stubbs's great knowledge and judgment in
to one which is of some interest to An
regard point specialists.
active has for years much attention in Ger
controversy occupied
many on the relative merits of the two characteristically Germanic
?
or modern of machinery, that of the jury, and
systems judicial
that of the Echevins, Sch?ffen, or Scabini. English historians have
hitherto been so interested in their own as
exclusively jury system
to show little interest in that other which was once its
procedure
rival. Yet there are indications which suggest that even in England
the older institution may have been for a long period in active exist
ence. #Mr. Stubbs does indeed call attention to the fact that in the
twelfth century justice appears to have been administered in the
shire-court a distinct class of freemen who were bound oath
by by
to the honest performance of their duties. He points out that there
was a very numerous of men, distinct from the mem
body ordinary
bers of the court, upon whom the fell of as judices or
duty acting
juratores, and whose fines for neglect of that duty fill the Pipe Roll
"
of Henry I. The and of Yorkshire owe a hundred
judges jurors
"
that no more be or ; and so in a
pounds they may jndges jurors
number of other cases. Mr. Stubbs is, however, very cautious in
an as to the functions of these
expressing opinion precise judges
and jurors. That at so early a time they could have had little in
common with modern
jurors, is obvious. But the same class of men
seems to be meant the in the so-called Laws of
by paragraph Henry
"
I. : Regis judices sunt barones comitatus qui liberas in eis terras

habent, per quos debent causae alterna

singulorum prosecutione
tractari." And their existence would seem to go back into Anglo
Saxon times, if any inference can be drawn from entries in Domes
"
day like that in the Customs of Chester : Tune (tempore regis
Edwardi) erant XII judices civitatis, et hi erant de hominibus regis
et episcopi et comitis : horum si quis de hundred remanebat die quo
sedebat, sine excusatione manifesta, X solidis emendabat inter
 244 Taylor's Etruscan Researches. [July,

regem et comitem." To the same institution be traced

may possibly
the reference in the Consultum de Monticolis a document
Wallise,
which is commonly ascribed to the age of Ethelred, but which
"
Schmid inclines to refer to that of Athelstan or even earlier : XII

lahmen, i. e. legis homines debent. rectum discernere Walis et Englis,

VI Walisei et VI Anglici ; et perdant omne quod suum est si injuste
vel se rectius nescierunt." There not
judicent, adlegient quod may
be sufficient evidence to prove the adoption into the English consti
tution of the Frankish Sch?ffen system, but there is certainly enough
to make it desirable that the point should be more thoroughly inves
and its constitutional interest explained.
tigated,

13.?Etruscan Researches. By Isaac Taylor. 8vo. pp. xii, 388.

London :Macmillan & Co. 1874.
"
Mr. Taylor does not overstate, in his first or
Prologue," chapter,
the interest of the Etruscan There another ethno is hardly
problem.
and left which so presses for an answer.
logical linguistic question
That there should have been a of whose works and institutions,
people
and even, we know so much, a neighbor and rival during
language
several centuries of that race from which we derive
Latin-speaking
our and itself a not contributor to that civ
civilization, unimportant
ilization, and that we know
should where notto place it in the sys
races ? this is a constant trial and
tem of human and languages,
mortification to the votaries of ethnology. It is a problem akin with

that of the Basques, not without differences also.

though important
We are more content to accept the Basques as a relic of a South
readily
western and almost crowded out
European population, dispossessed
of existence the tribes of our own kindred when them
by they spread
selves to cover But the Etruscans
soil. are a
European community
a
as it were,
in surrounded on all sides
dropped down, spot by peoples
whom we know, and showing no signs of being older and more origi
nal than these ; and there are traditions of their come in from
having
afar : how can it be to connect them with some recog
impossible
nized division of the human race outside of Italy]
A question like this, of course, has not gone without finding many
would-be answers. There are of in the world who can
plenty people
settle however difficult, of which the conditions are suffi
any matter,
indefinite and obscure. Mr. some of
ciently Taylor reports briefly
the attempts made in this direction, and the results reached. There

is hardly an or extinct race of men with whom the Etruscans

existing