the importance of private law, as compared with penal law, constantly increases.
The law of uncivilized peoples lacks the first of these purposes. Its sole conscious object is to maintain, or at least provide a method of maintaining peace; it is scarcely aware that in maintaining peace it is enhancing the freedom of every individual.
The distinct and conscious purpose of early Teutonic law was to promote peace within the tribe, or among the members of a warband. Thus was law regarded by the people—as a means of peace. Its communication or ordainment might be ascribed to a God or a divine King. But in reality its chief source lay in slowly growing regulative custom.[1] The force of law, or more technically speaking the legal sanction, lay in the power of the tribe to uphold its realized purpose as a tribe; for the power to maintain its solidarity and organization was the final test of its law-upholding strength.
Primarily the old Teutonic law looked to the tribe and its sub-units, and scarcely regarded the special claims of an individual, or noticed mitigating or aggravating elements in his culpability—answerability rather. It prescribed for his peace and protection as a member of a family, or as one included within the bands of Sippe (blood relationship); or as one of a warband or a chiefs close follower, one of his comitatus. On the other hand, the law was stiff, narrow, and ungeneralized in its recognized rules. The first Latin codifications of Teutonic law are not to be compared for breadth and elasticity of statement to the Law of the Twelve Tables. And their substance was more primitive.[2]
The earliest of these first codifications was the Lex Salica, codified under Clovis near the year 500. Unquestionably, contact with Roman institutions suggested the idea, even as the Latin language was the vehicle, of this code. Otherwise the Lex Salica is un-Christian and un-Roman, although probably it was put together after Clevis's baptism. It was not a comprehensive codification, and omitted much
