Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/79

 ^. JENKS: TEUTONIC LAW 65 Popes and Councils, through the speedier process of revela- tion. The Canon Law did not profess to be the command of men ; it professed to be the will of God. The Law Merchant and the Feudal Law were, in appearance, the terms of many agreements which merchants and which feudal lords and vassals had implicitly bound themselves to observe. But, at bottom, they were not very different from customs which, as the result of experience, had proved to be those under which, so men thought, the business of trade or of landowning could be best carried on. The Roman Law was the deliberate" expression, by the wisdom of ages, of that right reason which men were coming to look upon, more and more, as the true index to the will of the Unseen Powers. Its origin as the command of the Roman Emperor was well-nigh for- gotten ; and we may be very sure that, in Western Europe at least, it was not enforced by the will of those successors of Justinian who sat upon the trembling throne of Byzantium. Had it been so, the Roman Law would have disappeared for ever when Mahomet 11. overthrew the Eastern Empire. But it was just at that time that the Roman Law was " received '* in Germany. We have travelled far, and as yet have seen no justification for the Austinian theory, that Law is the command of the State. As we said befo re, the first time th at this theory becomes a pproximately true, is when the English Parliament Is est ablished at the close of the thirteenth century. This is "the crowning work of England in the history of Law. But it is possible to overrate its effect. The great virtue of the English Parliamentary scheme was, that it enabled the expo- nents of all the customs of the realm to meet together and explain their grievances. If we glance at the Rolls of the English Parliament, we shall find that the great bulk of thei petitions which are presented during the first two hundred years of its existence, are complaints of the breach of old customs, or requests for the confirmation of new customs which evil-disposed persons will not observe. These petitions, as we know, were the basis of the Parliamentary legislation I js of that period. What is this but to say that the Parliament ..p was a law-declaring, rather than a law-making body.'' Some- I