THE MEDIAEVAL ACHIEVEMENT
The mediaeval man has never succeeded in ridding himself of his reputation for lawless behaviour. It is possible, no doubt, to overestimate the amount of disorder that existed, but nevertheless the fact remains that violence is a conspicuous element in almost any mediaeval chronicle. Born amid the ruins of the Roman peace, the early days of the middle ages witnessed the successive failures of several attempts to restore some semblance of authority; and this confusion was further confounded by persistent invasions. Feudalism was the compromise finally reached, and although it made wide concessions to the military idea, nevertheless in the end it accomplished the difficult task of subjecting armed force to the rule of law. Naturally progress was quicker in some places than in others, but everywhere at least a lip service was paid to the idea of law, and as the middle ages proceed it becomes more and more evident that law was winning. Religion had an important rôle in this development and contributed the valuable conception of Jehovah as a law-giver and law-enforcer—a conception derived from Judaism. Out of all the confusion and disaster of the middle ages there arose the unanimous cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. Of the many intellectual systems devised in the middle ages, there was one which proved to be a practical as well as an intellectual answer to some of the most urgent of life’s problems, and that was law, law which was directly based upon the divine attribute of justice.
It might have been that the idea of law was no more than a despairing refuge in an impossible Utopia, devised by minds frightened by the evils around them. But Utopias belong to modern history; the mediaeval man was above all a man of action, and out of the night of the dark ages he began to build the fabric of law. To him the rule of law was not only a worthy achievement of the spirit, but also a great active crusade, and the greatest of all the crusades, because it alone survived its defeats.
THE RENAISSANCE AND THE STATE
Such is the subject matter of legal history in the middle ages where we can follow the rise and progress of law and the rule of law. When we come to Machiavelli we reach the spirit of the Renaissance, and begin to find law itself questioned, for his distinction between public and private morality is essentially the same heresy as to divide the substance of the Godhead; a double standard introduces a sort of polytheism utterly repugnant to mediaeval thought. And true enough, there soon came the State, as a sort of anti-Christ, to wage war with the idea of law. The issue of this conflict is perhaps still uncertain, but mediaeval thought is to-day fighting hard for the cause of law against the amoral, irresponsible State. It was mediaevalists in England, armed with Bracton and the Year Books, who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke upon Littleton before their eyes. Could anything be more mediaeval than the idea of due process, or the insertion in an instrument of government of a contract clause? Pacta sunt servanda,1 it seems to say, with the real mediaeval accent. It was Machiavelli himself who gave us the word “state” and filled it with the content which we now associate with it.2 Instead of the mediaeval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality. And so, where many a mediaeval thinker would ultimately identify law with the will of God, in modern times it will be regarded as the will of the State.
THE REFORMATION
The second aspect of this intellectual revival is the Reformation. The study of Greek led scholars to examine the New Testament in the original tongue, and soon they began to interpret it in the light of private judgment instead of following traditional custom. This abandonment of custom is highly significant of the change from mediaeval to modern times. The attempt to reconstruct Christianity from the New Testament and the earliest fathers meant a denial of over a thousand years’ growth and development in Christianity, based upon custom. This denial of the validity of theological development operating through custom and slowly shifting tradition had its parallel in legal history. Custom tends to be depreciated more and more by the State, until finally the legal restrictions within which it is confined eliminate it as one of the major sources of law. In other words, the State and the central organs of government, the courts and the legislature, are becoming the sole source of law.
The quarrel of Henry VIII with the papacy was for a time purely mediaeval in its character. Many a king and noble had been involved in similar matrimonial tangles and had incurred the displeasure of the Holy See. There was even mediaeval precedent for the confiscation of monastic property and the limitation of appeals to the papal court, but the modern spirit appears when the quarrel is carried a step further, and the doctrinal basis of Catholicism is questioned. With the reign of Edward VI the Reformation is definitely accepted as a political weapon against Rome, and (after a short reaction under Mary) the early years of Elizabeth made it the permanent basis of English political and religious life.
THE REFORMATION AND THE LAW
This attack upon the foundation of the Church was bound to undermine the mediaeval State as well. Church and State had frequently quarrelled during the middle ages, but it was the very intimacy which existed between them that provoked dissension. They were not two different powers, but merely two aspects of the one divine mission of ruling the souls and bodies of men by law. Law in the theological sense, and law as the lawyer knew it, were both based upon the same foundation—the will of God as expressed through authority (whether ecclesiastical or royal), tradition and custom. To attack the authority of the Church was therefore to attack the whole mediaeval system of law. Just as the Reformers went behind traditional Christianity to the historical sources, so there was a movement to go behind traditional law and seek for its origins. A striking example of this is the growth of two schools of Roman law, the first of which was content with Roman law as it was modified by mediaeval custom, while the second insisted upon a return to the strict letter of the classical texts.
The attack upon the traditional basis of mediaeval Christianity had its counterpart in political theory. It soon became evident that as a result of the Reformation, religion was no longer to be universally admitted as the basis of civil government. The foundations of religion had been shaken, and were differently interpreted in different countries and by different thinkers. As substitutes, various theories were proposed. In a number of them “the people” were brought into the reckoning, and attempts were made to base the theory of government upon the idea that kings existed for the convenience of their subjects, instead of (as in the middle ages) both king and people working together for the glory of God. An early form of this idea is to be found in the controversies during the sixteenth century upon the question (at that time very topical) whether a bad king could be properly assassinated by his outraged subjects. Later still it was proposed that kings, that is to say, the State, and all the forces of government, including law, are based upon a contractual relationship between ruler and subject. Some were prepared to assert this as an historical fact; to others the contract was merely to be presumed from existing circumstances.
THE REFORMATION AND THE