Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/58

 44 /. BEFORE THE NORMAN CONQUEST I ^1 This state of things, the result of the total breakdown of the Prankish scheme of government, had certain well-marked effects on the history of Law. In the first place, it stamps Law definitely as a local institution. Agriculture is almost the sole industry of the period. To pursue agriculture, one must occupy land ; to rule agriculturists, one must rule them through their land. Feudalism expressed itself through land- holding; it was a military system with land as the reward of service. So, too, the peculiar character of the Fief led up to the famous, but much misunderstood doctrine, of judicium per pares, "judgement by peers." The personal nature of the tie between lord and man forbade the hypothesis that any general rules would cover the terms of relationship. There- fore, the vassal demanded to be tried by the special law of his fief. The contractual character of the feudal bond en- abled him to refuse to leave himself entirely at the mercy of the lord as sole judge. Besides, the question might be between a vassal and the lord himself; and the lord could hardly be judge in his own cause. So the principle was firmly established, that the feudal court, at least in the case of freemen, is a court in which the lord is merely president, and the pares, or homage, i. e. the men of the same fief, are judges. These are totally different in character from the modern jury, with which they are often confused. The modern jury takes its law from the judge, and finds the truth of the facts. The pares declared the law, i. e. the rule of the fief ; and left the facts to be settled by some formal process. Trial by jury gives, in fact, where it is successful, the death blow to trial by peers. I Once more, the law of the Fief is the law of a court. The power of holding a court was not the only privilege which the feudal seigneur inherited from the days of Charles the Great. But it was the one he valued most, because it brought him in a steady revenue, in fees and fines, and enabled him to keep an eye on what was happening among his vassals. Moreover, long after the military, the fiscal, and the admin- istrative powers of the seigneur had disappeared or become unimportant, his judiciary powers remained almost intact.