Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/77

 2. JENKS: TEUTONIC LAW 63 gods, new practices are introduced, and are gradually accepted. Thus new custom takes the place of old. Here we have what may be called the negative and the posi- tive sides of Law. Old customs, proved by experience to be bad, are discarded ; new customs, likewise proved by experi- ence to be good, are adopted. But it is not to be expected that all should work smoothly. In every community there will be men who cling to the old bad customs, and refuse to accept the new. There will likewise be men who rashly desire to innovate beyond the limits which the general sense of the community considers safe. Some means must be found for keeping these exceptional persons in check. And so we get the appearance of those assemblies which are neither, accord- ing to modern notions, legislative, nor executive, nor judiciary, but simply declaratory. They declare the folk- right. It would be an anachronism to say that they made Law. We may be quite sure that they do not argue questions of expediency. Not until an old custom has been definitely condemned by the consciousness of the community, do they declare it to be bad — because, in effect, it has ceased to be a custom. Not until a new practice has definitely established itself as the rule of the community, do they declare it to be good. So little do they claim the power of making new law, that when they do, in fact, sanction a new custom, they prob- ably declare it to be of immemorial antiquity. A great deal of existing custom they do not declare at all; just because there is no dispute about it. This accounts, as we have said, for the fragmentary character of such early records of custom as we possess. Where there are no offenders, there is no need to declare the custom. The Law came because of offences. At first, as we have said, there is no record of custom, in the modern sense. It lives in the consciousness of the com- munity, and is declared, if necessary, by some assembly, more or less comprehensive. But the influences of migration and conquest introduce a new feature. Brought face to face with new circumstances, the community feels that its customs, to which it clings as part of its individuality, are in danger of being lost. It may have invented for itself some rude