d in later times a
new source of error has been added to those already existing, in that
pride of nationality which has led German writers to exaggerate the
completeness of the social fabric which their forefathers had built up
before their appearance in the Roman world. One or two English
inquirers who looked in the right quarter for the foundations of the
feudal system, failed nevertheless to conduct their investigations to
any satisfactory result, either from searching too exclusively for
analogies in the compilations of Justinian, or from confining their
attention to the compendia of Roman law which are found appended to
some of the extant barbarian codes. But, if Roman jurisprudence had
any influence on the barbarous societies, it had probably produced the
greatest part of its effects before the legislation of Justinian, and
before the preparation of these compendia. It was not the reformed and
purified jurisprudence of Justinian, but the undigested system which
prevailed in the Western Empire, and which the Eastern _Corpus Juris_
never succeeded in displacing, that I conceive to have clothed with
flesh and muscle the scanty skeleton of barbarous usage. The change
must be supposed to have taken place before the Germanic tribes had
distinctly appropriated, as conquerors, any portion of the Roman
dominions, and therefore long before Germanic monarchs had ordered
breviaries of Roman law to be drawn up for the use of their Roman
subjects. The necessity for some such hypothesis will be felt by
everybody who can appreciate the difference between archaic and
developed law. Rude as are the _Leges Barbarorum_ which remain to us,
they are not rude enough to satisfy the theory of their purely
barbarous origin; nor have we any reason for believing that we have
received, in written records, more than a fraction of the fixed rules
which were practised among themselves by the members of the conquering
tribes. If we can once persuade ourselves that a considerable element
of debased Roman law already existed in the barbarian systems, we
shall have done something to remove a grave difficulty. The German law
of the conquerors and the Roman law of their subjects would not have
combined if they had not possessed more affinity for each other than
refined jurisprudence has usually for the customs of savages. It is
extremely likely that the codes of the barbarians, archaic as they
seem, are only a compound of true primitive usage with half