Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/78

 64 /. BEFORE THE NORMAN CONQUEST system of runes or other symbols; it may, and this is more probable, have come into contact with some higher civiliza- tion which possesses a superior art of recording. Such is the case with the earliest monuments of Teutonic Law. They are not even written in Teutonic speech; and this fact has misled some critics into supposing that the Leges Barba- rorum are really new sets of rules imposed by an alien conqueror. But, below the curious Latin of the Roman scribe, it is easy to read the still ruder language of the Teutonic folk. The famous " Malberg glosses " of the Lex Salica are only the clearest example of a truth which may be traced in all the Leges Barbarorum. One has but to turn to the glossaries which accompany the classical editions, to see how the scribes were puzzled by hosts of strange Teutonic phrases for which they could find no Latin equivalents. The Anglo-Saxon and the Scandinavian Laws are transcribed in their native tongues. The Leges Barbarorum are not enact- ments, but records. For all this, their " redaction " was an epoch in the history of Law. It threatened to make permanent what before was transitory, to stereotype a passing phase. It remained no longer possible to deny the existence of a custom which was recorded in black and white ; it was difficult to say that a new custom was old, when no trace of it appeared on the official record. And yet, customs must be altered if communities are to progress ; and the Teutonic communities were progressive in no small degree. So there was a chance for a new kind of Law; a Law which should be declared by the conqueror. But the limited character and short duration of the law of such a conqueror even as Charles the Great, shows that the / new idea at first met with little success. The Law of the /^ Church, the Law of the Merchants, the Law of the Fief, and the Roman Law, are the real innovating forces which trans- 1 form the folk-laws into the law of medieval Europe. ^ Not one of these was Law in the Austinian sense. The Canon Law posed as a revelation, and, as such, was thor- oughly in harmony with primitive ideas of Law. That which the folk discovered, through the painful process of experi- ence, to be the will of the unseen Powers, was discovered by