Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/43

 1. MAITLAND: A PROLOGUE 29 should notice that the kingship of England, when once it exists, preserves its unity: it is not partitioned among brothers and cousins. Moreover we might find ourselves say- ing that the Northmen were so victorious in their assaults on our island that they did less harm here than elsewhere. In the end it was better that they should conquer a tract, settle in villages and call the lands by their own names, than that the state should go to pieces in the act of repelling their inroads. Then, again, it would not escape us that a close and confused union between church and state prevented the development of a body of distinctively ecclesiastical law which would stand in contrast with, if not in opposition to, the law of the land.^ Such power had the bishops in all public affairs, that they had little to gain from decretals forged or genuine,^ indeed ^thelred's laws are apt to be- come mere sermons preached to a disobedient folk. How- ever, we are here but registering the fact that the age of capitularies, which was begun by Alfred, does not end. The English king, be he weak like JEthelred or strong like Cnut, is expected to publish laws. But Italy was to be for a while the focus of the whole world's legal history. For one thing, the thread of legis- lation was never quite broken there. Capitularies or statutes which enact territorial law came from Karolingian emperors and from Karolingian kings of Italy, and then from the Ottos and later German kings. But what is more important is that the old Lombard law showed a marvellous vitality and a capacity of being elaborated into a reasonable and progressive system. Lombardy was the country in which the principle of personal law struck its deepest roots. Be- sides Lombards and Romani, there were many Franks and Swabians who transmitted their law from father to son. It was long before the old question Qua lege vivis? lost its importance. The " conflict of laws " seems to have favoured the growth of a mediating and instructed jurisprudence. ' Stubbs, Const. Hist. i. 263: "There are few if any records of coun- cils distinctly ecclesiastical held during the tenth century in England." book described by Miss Bateson, E. H. R. x. 712 ff. English ecclesiastics were borrowing, and it is unlikely that they escaped contamination.
 * There seem to be traces of the Frankish forgeries in the Worcester