The History of English Law before the Time of Edward I. Frederic William Maitland

The Lex Salica.The discovery of fragments of the laws of Euric the West Goth has deprived the Lex Salica of its claim to be the oldest extant statement of Germanic custom. But if not the oldest, it is still very old; also it is rude and primitive.³³ It comes to us from the march between the fifth and sixth centuries; almost certainly from the victorious reign of Chlodwig (486–511). An attempt to fix its date more closely brings out one of its interesting traits. There is nothing distinctively heathen in it; but (and this makes it unique³⁴) there is nothing distinctively Christian. If the Sicambrian has already bowed his neck to the catholic yoke, he is not yet actively destroying by his laws what he had formerly adored.³⁵ On the other hand, his kingdom seems to stretch south of the Loire, and he has looked for suggestions to the laws of the West Goths. The Lex Salica, though written in Latin, is very free from the Roman taint. It contains in the so-called Malberg glosses many old Frankish words, some of which, owing to mistranscription, are puzzles for the philological science of our own day. Like the other Germanic folk-laws, it consists largely of a tariff of offences and atonements; but a few precious chapters, every word of which has been a cause of learned strife, lift the curtain for a moment and allow us to watch the Frank as he litigates. We see more clearly here than elsewhere the formalism, the sacramental symbolism of ancient legal procedure. We have no more instructive document; and let us remember that, by virtue of the Norman Conquest, the Lex Salica is one of the ancestors of English law.

The Lex Ribuaria and Lex Burgundionum.Whether in the days when Justinian was legislating, the Western or Ripuarian Franks had written law may not be certain; but it is thought that the main part of the Lex Ribuaria is older than 596.³⁶ Though there are notable variations, it is in part a modernized edition of the Salica, showing the influence of the clergy and of Roman law. On the other hand, there seems little doubt that the core of the Lex Burgundionum was issued by King Gundobad (474–516) in the last years of the fifth century.³⁷

The Lex Romana Burgundionum.Burgundians and West Goths were scattered among Roman provincials. They were East Germans; they had long been Christians, though addicted to the heresy of Arius. They could say that they had Roman authority for their occupation of Roman soil. Aquitania Secunda had been made over to the West Goths; the Burgundians vanquished by Aetius had been deported to Savoy.³⁸ In their seizure of lands from the Roman possessores they had followed, though with modifications that were profitable to themselves, the Roman system of billeting barbarian soldiers.³⁹ There were many Romani as well as many barbari for whom their kings could legislate. Hence the Lex Romana Burgundionum and the Lex Romana Visigothorum. The former⁴⁰ seems to be the law-book that Gundobad promised to his Roman subjects; he died in 516. Rules have been taken from the three Roman codices, from the current abridgements of imperial constitutions and from the works of Gaius and Paulus. Little that is good has been said of this book.The Lex Romana Visigothorum. Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum.⁴¹ Euric’s son, Alaric II., published it in 506 as a statute-book; among the Romani of his realm it was to supplant all older books. It contained large excerpts from the Theodosian Codex, a few from the Gregorianus and Hermogenianus, some post-Theodosian constitutions, some of the Sententiae of Paulus, one little scrap of Papinian and an abridged version of the Institutes of Gaius. The greater part of these texts was equipped with a running commentary (interpretatio) which attempted to give their upshot in a more intelligible form. It is thought now-a-days that this “interpretation” and the sorry version of Gaius represent, not Gothic barbarism, but degenerate Roman science. A time had come when lawyers could no longer understand their own old texts and were content with debased abridgements.⁴²

Importance of the Breviary.The West Goths’ power was declining. Hardly had Alaric issued his statute-book when he was slain in battle by the Franks. Soon the Visigothic became a Spanish kingdom. But it was not in Spain that the Breviarium made its permanent mark. There it was abrogated by Reckessuinth when he issued a code for all his subjects of every race.⁴³ On the other hand, it struck deep root in Gaul. It became the principal, if not the only, representative of Roman law in the expansive realm of the Franks. But even it was too bulky for men’s needs. They made epitomes of it and epitomes of epitomes.⁴⁴

The Edictum Theodorici.Then, again, we must remember that while Tribonian was busy upon the Digest, the East Goths were still masters of Italy. We recall the event of 476; one emperor, Zeno at Byzantium, was to be enough. Odovacer had ruled as patrician and king. He had been conquered by the East Goths. The great Theodoric had reigned for more than thirty years (493–526); he had tried to fuse Italians and Goths into one nation; he had issued a considerable body of law, the Edictum Theodorici, for the more part of a criminal kind.⁴⁵

The Collectio Dionysiana.Lastly, it must not escape us that about the year 500 there was in Rome a monk of Scythian birth who was labouring upon the foundations of the Corpus Iuris Canonici. He called himself Dionysius Exiguus. He was an expert chronologist and constructed the Dionysian cycle. He was collecting and translating the canons of eastern councils; he was collecting also some of the letters (decretal letters they will be called) that had been issued by the popes from Siricius onwards (384–498).⁴⁶ This Collectio Dionysiana made its way in the West. Some version of it may have been the book of canons which our Archbishop Theodore produced at the Council of Hertford in 673.⁴⁷ A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774.⁴⁸ It helped to spread abroad the notion that the popes can declare, even if they cannot make, law for the universal church, and thus to contract the sphere of secular jurisprudence.

Justinian’s books.In 528 Justinian began the work which gives him his fame in legal history; in 534, though there were novel constitutions to come from him, it was finished. Valuable as the Code of imperial statutes might be, valuable as might be the modernized and imperial edition of an excellent but ancient school-book, the main work that he did for the coming centuries lies in the Digest. We are told now-a-days that in the Orient the classical jurisprudence had taken a new lease of life, especially in the school at Berytus.⁴⁹ We are told that there is something of a renaissance, something even of an antiquarian revival visible in the pages of the Digest, a desire to go back from vulgar practice to classical text, also a desire to display an erudition that is not always very deep. Great conqueror, great builder, great theologian, great law-giver, Justinian would also be a great master of legal science and legal history. The narrow escape of his Digest from oblivion seems to tell us that, but for his exertions, very little of the ancient treasure of wisdom would have reached modern times: and a world without the Digest would not have been the world that we know. Let us, however, remember the retrospective character of the book. The ius, the unenacted law, ceased to grow three hundred years ago. In time Justinian stands as far from the jurists whose opinions he collects as we stand from Coke or even from Fitzherbert.

Justinian and Italy.Laws have need of arms: Justinian knew it well. Much depended upon the fortunes of a war. We recall from the Institutes the boast that Africa has been reclaimed. Little was at stake there, for Africa was doomed to the Saracens; nor could transient success in Spain secure a western home for the law books of Byzantium.⁵⁰ All was at stake in Italy. The struggle with the East Goths was raging; Rome was captured and recaptured. At length the emperor was victorious (552), the Goths