Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/22

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8
1. BEFORE THE NORMAN CONQUEST

the whence and whither of a few of the severed and ravelling threads which have been making a pattern too large for any man's eye.

To speak more modestly, we may, before we settle to our task, look round for a moment at the world in which our English legal history has its beginnings. We may recall to memory a few main facts and dates which, though they are easily ascertained, are not often put together in one English book, and we may perchance arrange them in a useful order if we make mile-stones of the centuries.[1]

By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 212,[2] Ulpian in 228.[3] Ulpian's pupil Modestinus may be accounted the last of the great lawyers.[4] All too soon they became classical; their successors were looking backwards, not forwards. Of the work that had been done it were folly here to speak; but the law of a little town had become ecumenical law, law alike for cultured Greece and for wild Britain. And yet, though it had assimilated new matter and new ideas, it had always preserved its tough identity. In the year 200 six centuries and a half of definite legal history, if we measure only from the Twelve Tables, were consciously summed up in the living and growing body of the law.

Dangers lay ahead. We notice one in a humble quarter. Certain religious societies, congregations (ecclesiae) of non-conformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be; but as yet It was, if the phrase be tolerable, unlawful law, for these societies had an Illegal, if not a crim-

  1. The following summary has been compiled by the aid of Karlowa, Römische Rechtsgeschichte, 1885 — Krüger, Geschichte der Quellen des römischen Rechts, 1888 — Conrat, Geschichte der Quellen des römischen Rechts im früheren Mittelalter, 1889 — Maassen, Geschichte der Quellen des canonischen Rechts, 1870 — Löning, Geschichte des deutschen Kirchenrechts, 1878 — Sohm, Kirchenrecht, 1892 — Hinschius, System des katholischen Kirchenrechts, 1869 ff. — A. Tardif, Histoire des sources du droit canonique, 1887 — Brunner, Deutsche Rechtsgeschichte, 1887 — Schroder, Lehrbuch der deutschen Rechtsgeschichte, ed. 2, 1894 — Esmein, Cours d'histoire du droit f ran^ais, ed. 2, 1895 — Viollet, Histoire du droit civil français, 1893.
  2. Krüger, op. cit. 198; Karlowa, op. cit. i. 736.
  3. Krüger, op. cit. 215; Karlowa, op. cit. L 741.
  4. Krüger, op. cit. 226; Karlowa, op. cit. i. 752.