Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/56

 42 /. BEFORE THE NORMAN CONQUEST proposes new laws, and the people accept them. A large number of Saxons, gathered together from divers pagi, Westphalian and Eastphalian, unanimously consent to the adoption of the Frankish Capitula, with certain modifica- tions. Moreover, the Capitula are of great importance in stim- ulating the new idea that Law is territorial, for the Capitula of a monarch bound all within his realm, or such part of it as the Capitula might specify. We are obliged to suppose, also, that they secured practical obedience, at least during the better days of the Frank monarchy ; for they were twice col- lected in a convenient form, once by the Abbot Ansegis in the year 827, again, with daring interpolations, by the so- called Benedict, some twenty years later. But, it must be repeated, the Capitularies are hothouse plants, due to the stimulus of Roman ideals. The monuments of the purely German countries which resemble them in name, I e. g. the Decrees of the Bavarian Tassilo, turn out, on in- 1 spection, to be true Leges, produced or, at least, accepted 1 by a popular assembly under Frankish influence. The Anglo- Saxon Dooms are really declarations of folk-law by Clan chiefs, acting as mouthpieces of their clans, at least until Ecgberht has brought back imperial notions from the court of Charles the Great. In isolated Scandinavia, there is no trace of royal legislation at this period. And when the Frank empire falls to pieces in the ninth century, it will be long before the kings who rise up out of its ruins claim the power to make laws. If we leave England out of sight, there is an almost unbroken silence in the history of Teutonic law y/during the tenth and eleventh centuries. The Roman Empire, ^ real and fictitious, is dead, and, with it, the idea of legisla- tion, if not of Law. When the idea revives again, in the prospering France of the thirteenth century, we find the legists asserting the royal power of legislation in maxims which are simply translations of the texts of Roman Law. " That which pleases him " (the king) " to do, must be held for law," says Beaumanoir. A century later, Bouteillier is careful to explain that the king may make laws, qui est emr pereur en son royaume.