Digest. In the Occident the time for the Germanic “folk-laws”
(Leges Barbarorum) had come, and a Canon law, ambitious of
independence, was being constructed, when in the Orient the
lord of church and state was “enucleating” all that was to live
of the classical jurisprudence of pagan Rome. It was but a
brief interval between Gothic and Lombardic domination that
enabled him to give law to Italy: Gaul and Britain were beyond
his reach.
The Anglo-Saxon laws that have come down to us (and we have no reason to fear the loss of much beyond some dooms of the Mercian Offa) are best studied as members of a large Teutonic family. Those that proceed from the Kent and Wessex of the 7th century are closely related to the continental folk-laws. Their next of kin seem to be the Lex Saxonum and the laws of the Lombards. Then, though the 8th and 9th centuries are unproductive, we have from Alfred (c. 900) and his successors a series of edicts which strongly resemble the Frankish capitularies—so strongly that we should see a clear case of imitation, were it not that in Frankland the age of legislation had come to its disastrous end long before Alfred was king. This, it may be noted, gives to English legal history a singular continuity from Alfred’s day to our own. The king of the English was expected to publish laws at a time when hardly any one else was attempting any such feat, and the English dooms of Canute the Dane are probably the most comprehensive statutes that were issued in the Europe of the 11th century. No genuine laws of the sainted Edward have descended to us, and during his reign England seems but too likely to follow the bad example of Frankland, and become a loose congeries of lordships. From this fate it was saved by the Norman duke, who, like Canute before him, subdued a land in which kings were still expected to publish laws.
In the study of early Germanic law—a study which now for some considerable time has been scientifically prosecuted in Germany—the Anglo-Saxon dooms have received their due share of attention. A high degree of racial purity may be claimed on their behalf. Celtic elements have been sought for in them, but have never been detected. At certain points, notably in the regulation of the blood-feud and the construction of a tariff of atonements, the law of one rude folk will always be somewhat like the law of another; but the existing remains of old Welsh and old Irish law stand far remoter from the dooms of Æthelberht and Ine than stand the edicts of Rothari and Liutprand, kings of the Lombards. Indeed, it is very dubious whether distinctively Celtic customs play any considerable part in the evolution of that system of rules of Anglian, Scandinavian and Frankish origin which becomes the law of Scotland. Within England itself, though for a while there was fighting enough between the various Germanic folks, the tribal differences were not so deep as to prevent the formation of a common language and a common law. Even the strong Scandinavian strain seems to have rapidly blended with the Anglian. It amplified the language and the law, but did not permanently divide the country. If, for example, we can to-day distinguish between law and right, we are debtors to the Danes; but very soon law is not distinctive of eastern or right of western England. In the first half of the 12th century a would-be expounder of the law of England had still to say that the country was divided between the Wessex law, the Mercian law, and the Danes’ law, but he had also to point out that the law of the king’s own court stood apart from and above all partial systems. The local customs were those of shires and hundreds, and shaded off into each other. We may speak of more Danish and less Danish counties; it was a matter of degree; for rivers were narrow and hills were low. England was meant by nature to be the land of one law.
Then as to Roman law. In England and elsewhere Germanic law developed in an atmosphere that was charged with traditions of the old world, and many of these traditions had become implicit in the Christian religion. It might be argued that all that we call progress is due to the influence exercised by Roman civilization; that, were it not for this, Germanic law would never have been set in writing; and that theoretically unchangeable custom would never have been supplemented or superseded by express legislation. All this and much more of the same sort might be said; but the survival in Britain, or the reintroduction into England, of anything that we should dare to call Roman jurisprudence would be a different matter. Eyes, carefully trained, have minutely scrutinized the Anglo-Saxon legal texts without finding the least trace of a Roman rule outside the ecclesiastical sphere. Even within that sphere modern research is showing that the church-property-law of the middle ages, the law of the ecclesiastical “benefice,” is permeated by Germanic ideas. This is true of Gaul and Italy, and yet truer of an England in which Christianity was for a while extinguished. Moreover, the laws that were written in England were, from the first, written in the English tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very ancient and barbarous Lex Salica is a Latin document, though many old Frankish words are enshrined in it. Also we notice—and this is of grave importance—that in England there are no vestiges of any “Romani” who are being suffered to live under their own law by their Teutonic rulers. On the Continent we may see Gundobad, the Burgundian, publishing one law-book for the Burgundians and another for the Romani who own his sway. A book of laws, excerpted chiefly from the Theodosian code, was issued by Alaric the Visigoth for his Roman subjects before the days of Justinian, and this book (the so-called Breviarium Alarici or Lex Romana Visigothorum) became for a long while the chief representative of Roman law in Gaul. The Frankish king in his expansive realm ruled over many men whose law was to be found not in the Lex Salica or Lex Ribuaria, but in what was called the Lex Romana. “A system of personal law” prevailed: the homo Romanus handed on his Roman law to his children, while Frankish or Lombardic, Swabian or Saxon law would run in the blood of the homo barbarus. Of all this we hear nothing in England. Then on the mainland of Europe Roman and barbarian law could not remain in juxtaposition without affecting each other. On the one hand we see distinctively Roman rules making their way into the law of the victorious tribes, and on the other hand we see a decay and debasement of jurisprudence which ends in the formation of what modern historians have called a Roman “vulgar-law” (Vulgarrecht). For a short age which centres round the year 800 it seemed possible that Frankish kings, who were becoming Roman emperors, would be able to rule by their capitularies nearly the whole of the Christian Occident. The dream vanished before fratricidal wars, heathen invaders, centrifugal feudalism, and a centripetal church which found its law in the newly concocted forgeries of the Pseudo-Isidore (c. 850). The “personal laws” began to transmute themselves into local customs, and the Roman vulgar-law began to look like the local custom of those districts where the Romani were the preponderating element in the population. Meanwhile, the Norse pirates subdued a large tract of what was to be northern France—a land where Romani were few. Their restless and boundless vigour these Normans retained; but they showed a wonderful power of appropriating whatever of alien civilization came in their way. In their language, religion and law, they had become French many years before they subdued England. It is a plausible opinion that among them there lived some sound traditions of the Frankish monarchy’s best days, and that Norman dukes, rather than German emperors or kings, of the French, are the truest spiritual heirs of Charles the Great.
In our own day, German historians are wont to speak of English law as a “daughter” of French or Frankish law. This tendency derived its main impulse from H. Brunner’s proof that the germ of trial by jury, which cannot be found in the Anglo-Saxon laws, can be found in the prerogative procedure of the Frankish kings. We must here remember that during a long age English lawyers wrote in French and even thought in French, and that to this day most of the technical terms of the law, more especially of the private law, are of French origin. Also it must be allowed that when English law has taken shape in the 13th century it is very like one of the coutumes of northern France. Even when linguistic difficulties have been surmounted, the Saxon Mirror
