The preoccupation of Roman law with the safeguarding, inheritance
and transfer of family property (property in slaves an important part of
it) had been intensified when the empire became Christian. Donations
to the clergy were encouraged, and the endowment began which was to
make churches the great landowners of early medieval Europe and the
pioneers of estate-management. Such practices as the granting of a
dowry by the bride’s family to the husband on marriage were important
to barbarian society and as fruitful a source of argument, as they had
been to the Romans. The courts of the Frankish civitatescontinued to
follow the requirements that land should be transferred by public act
and written deed which had been enacted by the Emperor Constantine.^8
The barbarian kings, instructed by the Church, had reason to try to
keep Roman law in operation. But change came inevitably from the
ending of imperial direction, the economic decline of the West and with
it the disappearance of such civic life as there had been, and the inter-
mingling of the Germanic newcomers with the existing population.
Roman law, which the clergy of whatever race claimed for their own,
was in many details incompatible with barbarian custom, itself varying
from people to people. As late as the middle of the ninth century it could
still be said that five men together in the same room might each follow
his own law. The practical consequence of this ‘personality of law’ was
that disputes were more easily settled by customary forms of arbitration
in local assemblies than by judgments which attempted to apply a
general code of law.^9 Nevertheless, the barbarian rulers did take from
the Romans a real authority to make law and give justice—this as pro-
tectors of the property rights of churches and the nobility. The German
king was the head of a settler society and much nearer to his people than
an emperor in Rome could ever have been: and after his conversion he
was more susceptible to ecclesiastical influence: all of which emphasized
his duty to control the disposition of lands. For his part, the king
expressed in his charters or ‘acts’ not at first a concern for the statusof
his kingdom, but for its stabilitas: its mere ability to ‘stand’ at all.^10
12 Frankish and Anglo-Saxon Justice
Roman Empire, ii. 760–1, 774, and Savigny, Geschichte des römischen Rechts, i. 40, 81–3; the
Formulaetell us about the forms of royal justice: for a wider view of the realities of dispute
settlement, see the articles in The Settlement of Disputes in Early Medieval Europe, ed.
W. Davies and P. Fouracre (Cambridge UP, 1986).
(^8) E. Levy, West Roman Vulgar Law: The Law of Property, Memoirs of the American
Philosophical Society, 29 (Philadelphia, 1951), 138 ff., 170 ff.
(^9) P. Vinogradoff, Roman Law in Medieval Europe, 3rd edn. (Oxford UP, 1961), 24–6.
(^10) J. M. Wallace-Hadrill, The Long-Haired Kings(London, 1962), 213 ff., on the begin-
nings of Frankish law-making; D. Ganz and W. Goffart, ‘Charters earlier than 800 from
French collections’, Speculum, 65 (1990); for the emphasis on stabilitas, Diplomata regum
Francorum e stirpe Merowingica, ed. K. A. F. Pertz, MGH Diplomata in Folio 1 (Hanover,
1872), 29. 14 ; Formulae, 46. 20 , 171. 25 , 200. 25.