Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/37

 1. M Air LAND: A PROLOGUE 23 were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern convey- ancing. The Anglo-Saxon " land-book " is of Italian ori- gin.^ That England produces no formulary books, no books of " precedents in conveyancing," such as those whi^i in considerable numbers were compiled in Frankland,^ is one of the many signs that even this low Roman law had no home here ; but neither did our forefathers talk low Latin. In the British India of to-day we may see, and on a grand scale, what might well be called a system of personal laws, of racial laws ^ If we compared it with the Frankish, one picturesque element would be wanting. Suppose that among the native i*aces there was one possessed of an old law-book, too good for it, too good for us, which gradually, as men studied it afresh, would begin to tell of a very ancient but eternally modern civilization and of a skilful jurisprudence which the lawyers of the ruling race would some day make their model. This romance of history will not repeat itself. During the golden age of the Frankish supremacy, the age which closely centres round the year 800, there was a good deal of definite legislation : much more than there was to be in the bad time that was coming. The king or emperor issued capitularies {capitula).'^ Within a sphere which can not be readily defined he exercised a power of laying commands upon all his subjects, and so of making new territorial law for his whole realm or any part thereof; but in principle any change in the law of one of the folks would require that folk's consent. A superstructure of capitularies might be reared, but the Lex of a folk was not easily alterable. In 1827 Ansegis, Abbot of St. Wan- drille, collected some of the capitularies into four books.^ His work seems to have found general acceptance, though it shows that many capitularies were speedily forgotten and • Brunner, Zur Rechtsgeschichte der romischen und germanischen Urkunde, i. 187. • Brunner, D. R. G. i. 401 ; Schroder, op. cit. 254. Edited in M. G. by Zeumer; also by E. de Rozi^re, Recueil g^n^ral des formules. • The comparison has occurred to M. Esmein, op. cit. 56. • Brunner, op cit. i. 374; Schroder, op, cit. 247; Esmein, op. cit. 116. Edited in M. G. by Boretius and Krause; previously by Pertz. • Brunner, op. cit. i. 382; Schroder, op. cit. 251; Esmein, op. cit. 117.