Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/42

 28 /. BEFORE THE NORMAN CONQUEST Alfred, and then we have laws from almost every king: from Edward, ^thelstan, Edmund, Edgar, ^thelred, and Cnut. The age of the capitularies begins with Alfred, and in some sort it never ends, for William the Conqueror and Henry I take up the tale. ^ Whether in the days of the Con- fessor, whom a perverse, though explicable, tradition hon- oured as a pre-eminent lawgiver, we were not on the verge of an age without legislation, an age which would but too faithfully reproduce some bad features of the Frankish decadence, is a question that is not easily answered. How- beit, Cnut had published in England a body of laws which, if regard be had to its date, must be called a handsome code. If he is not the greatest legislator of the eleventh century, we must go as far as Barcelona to find his peer.^ He had been to Rome; he had seen an emperor crowned by a pope; but it was not outside England that he learnt to legislate. He followed a fashion set by Alfred. We might easily exag- gerate both the amount of new matter that was contained in these English capitularies and the amount of information that they give us ; but the mere fact that Alfred sets, and that his successors, and among them the conquering Dane, maintain, a fashion of legislating, is of great importance. The Norman subdues, or, as he says, inherits a kingdom in which a king is expected to publish laws. Were we to discuss the causes of this early divergence of English from continental history we might wander far. In the first place, we should have to remember the small size, the plain surface, the definite boundary of our country. This thought indeed must often recur to us in the course of our work: England is small: it can be governed by uni- form law: it seems to invite general legislation. Also we capitularies, see Stubbs, Const. Hist. i. 223. We might easily suppose direct imitation, were it not that much of the Karolingian system was in ruins before Alfred began his work. • The Usatici Barchinonensis Patriae (printed by Giraud, Histoire du droit fran^ais, ii. 465 ff.) are ascribed to Raymond Berengar I and to the year 1068 or thereabouts. But how large a part of them really comes from him is a disputable question. See Conrat, op. cit. i. 467; Ficker, Mittheilungen des Instituts fUr osterreichische Geschichtsfor- schung, 1888, ii. p. 236.
 * As to the close likeness between the English dooms and the Frankish