Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/27

 1. MAITLAND: A PROLOGUE 13

barbarity. Scandinavian laws that are not written until the thirteenth century will often give us what is more archaic than anything that comes from the Gaul of the fifth or the Britain of the seventh. And, on the other hand, the mention of Goths in Spain should remind us of those wondrous folk-wanderings and of their strange influence upon the legal map of Europe. The Saxon of England has a close cousin in the Lombard of Italy, and modern critics profess that they can see a specially near kinship between Spanish and Icelandic law.1 In legal history the sixth century is the century of Jus-tinian. But in the west of Europe this age appears as his, only if we take into account what was then a remote future. How powerless he was to legislate for many of the lands and races whence he drew his grandiose titles — Alamannicus, Gothicus, Francicus and the rest — we shall see if we inquire who else had been publishing laws. The barbarians had been writing down their customs. The barbarian kings had been issuing law-books for their Roman subjects. Books of ecclesiastical law, of conciliar and papal law, were being compiled.2 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.3 It comes to us from the march between the fifth and the sixth centuries ; almost certainly from the victorious reign of Chlodwig (486-611). 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 unique4) there is


 * 1 Ficker, Untersuchungen zur Erbenfolge, 1891-5; Ficker, Ueber nahere Verwandtschaft zwischen gothisch-spanischem und norwegisch- islandischem Recht (Mittheilungen des Instituts fiir osterreichische Geschichtsforschung, 1888, ii. 456 ff.). These attempts to reconstruct the genealogy of the various Gerinanic systems are very interesting, if hazardous.
 * 2 For a map of Europe at the time of Justinian's legislation see Hodgkin, Italy and her Invaders, vol. iv. p. 1.
 * 3 Brunner, op. cit. i. 292 ff. ; Schroder, op. cit. 226 ff. ; Esmein, op. cit. 102 ff.; Dahn, Die Konige der Germanen, vii. (2) 50 ff.; Hessels and Kern, Lex Salica, The ten texts, 1880.
 * 4 However, there are some curious relics of heathenry in the Lex Frisionum: Brunner, op. cit. i. 342.