Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/41

 1. MAITLAND: A PROLOGUE 27 take their stand in the thirteenth among law-books which have the treatises of Glanvill and Bracton for their English equivalents. It is then a new world that they paint for us. To connect this new order with the old, to make the world of " the classical feudalism " ^ grow out of the world of the folk-laws is a task which is being slowly accomplished by skilful hands ; but it is difficult, for, though materials are not wanting, they are not of a strictly legal kind ; they are not laws, nor law-books, nor statements of law. The inter- vening, the dark age, has been called " the diplomatic age,'* whereby is meant that its law must be hazardously inferred from diplomata, from charters, from conveyances, from privileges accorded to particular churches or particular towns. No one legislates. The French historian will tell us that the last capitularies which bear the character of general laws are issued by Carloman II in 884, and that the first legislative ordonnance is issued by Louis VII in 1155.^ Germany and France were coming to the birth, and the agony was long. Long it was questionable whether the western world would not be overwhelmed by Northmen and Saracens and Magyars ; perhaps we are right in saying that it was saved by feudalism.^ Meanwhile the innermost texture of human society was being changed ; local customs were issuing from and then consuming the old racial laws. Strangely different, at least upon its surface, is our Eng- lish story. The age of the capitularies (for such we well might call it) begins with us just when it has come to its end upon the Continent. We have had some written laws from the newly converted Kent and Wessex of the seventh century. We have heard that in the day of Mercia's great- ness Off a (ob. 796), influenced perhaps by the example of Charles the Great, had published laws. These we have lost ; but we have no reason to fear that we have lost much else. Even Egbert did not legislate. The silence was broken by • We borrow fSodalitS classtque from M. Flach: Les origines de I'ancienne France, ii. 551. • Esmein, op. cit. 487-8; VioUet, op. cit. 152. Schroder, op. cit. 624: "Vom 10. bis 12. Jahrhundert ruhte die Gesetzgebung fast ganz . ., Es war die Zeit der Alleinherrschaft des Gewohnheitsrechts." • Oman, The Dark Ages, 511.