Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/50

 36 /. BEFORE THE NORMAN CONQUEST (getryviede) their laws.^ Owing to the scantiness of external evidence, it is impossible to assert with confidence the precise character of the process adopted in the earliest times. But a curious storj preserved by the Saxon annalist Widukind ^ shows that, even in the tenth century, and under so powerful a monarch as Otto the Great, Law was regarded as a truth to be discovered, not as a command to be imposed. The question was, whether the children of a deceased person ought to share in the inheritance of their grandfather, along with their uncles. It was proposed that the matter should be examined by a general assembly convoked for the purpose. But the king was unwilling that a question concerning the difference of laws should be settled by an appeal to numbers. So he ordered a battle by champions ; and, victory declaring itself for the party which represented the claims of the grandchildren, the law was solemnly declared in that sense. The original proposal would have been an appeal to custom ; but the plan actually adopted reveals the thought, that even custom is not conclusive proof, that Law is a thing which exists independently of human agency, and is discoverable only in the last resort by an appeal to supernatural authority. There is one circumstance connected with the compilation of the Laws of the Barbarians which is specially suggestive of influences leading to the developement of rudimentary ideas of. Law. By far the most important of these codes are directly connected with migrations and conquests. The Teu- tonic settlements west of the Rhine were the first to produce compilations of Teutonic law, and it may be, and indeed is, often asserted, that this fact is due to the example of the Code of Theodosius, the great monument of Roman jurisprudence which confronted the invaders of the Empire. But the real epoch of law-producing activity coincides closely with the con- quering careers of Charles Martel, Pepin the Short, and Charles the Great. During this period are produced the Laws of the Alamanni, the Bavarians, the Frisians, the Thuringians, and the Saxons. In England, the Anglo- Saxon migrations give rise to a scanty crop of laws; but »Schmid, G«»«tz« der Angeltachsen, ed 2. j^thelbirt, p. 2, Inc. p. Sft •Widukind, Annalet (Mon. Germ., SS. fo, iii. p. 440).