VIII

THE FOUNDATIONS OF LAW

1 THE ASCENDANCY OF CUSTOM

IF a judge, in the pre-feudal Europe of the early ninth century, had to say what the law was, how did he proceed? His first task was to examine the texts. These consisted of the following: Roman compilations, if the case had to be decided according to the laws of Rome; customs of the Germanic peoples, almost all of which had been gradually committed to writing; and finally those legislative edicts which the sovereigns of the barbarian kingdoms had issued in great number. In cases where these authorities returned a clear answer, there was nothing to do but obey. But the task was not always so simple. Let us leave aside those cases, in practice no doubt quite frequent, in which, since the manuscript was lacking, or—as with the massive Roman collections—inconvenient to consult, the rule in question, although its source might have been the law-book, was in fact known only by usage. The most serious problem was that no book was capable of deciding everything. Whole aspects of social life—relations inside the manor, ties between man and man, in which feudalism was already foreshadowed—were only very imperfectly covered by the texts, and often not at all. Thus, by the side of the written law, there already existed a zone of purely oral tradition. One of the most important characteristics of the period that followed—the age in which the feudal regime was really established—was that this margin increased beyond all bounds, to the point where in certain countries it encroached on the whole domain of law.

In Germany and France this evolution reached its extreme limits. There was no more legislation. In France the last ‘capitulary’, a very unoriginal one moreover, dates from 884; in Germany, the spring seems to have run dry from the dismemberment of the Empire after the death of Louis the Pious. At most a few territorial princes—a duke of Normandy, a duke of Bavaria—promulgate here and there one or two measures of fairly general application. It has sometimes been supposed that this failure was an effect of the weakness into which the royal power had fallen. But this explanation, which we might be tempted to accept if only France were in question, would clearly not be valid for the much more powerful sovereigns of Germany. Moreover, these Saxon or Salian emperors who, north of the

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