limited by a variety of settled
customs traceable to the express conditions which had been agreed upon
when the infeudation took place. Hence flow the chief differences
which forbid us to class the feudal societies with true archaic
communities. They were much more durable and much more various; more
durable, because express rules are less destructible than instinctive
habits, and more various, because the contracts on which they were
founded were adjusted to the minutest circumstances and wishes of the
persons who surrendered or granted away their lands. This last
consideration may serve to indicate how greatly the vulgar opinions
current among us as to the origin of modern society stand in need of
revision. It is often said that the irregular and various contour of
modern civilisation is due to the exuberant and erratic genius of the
Germanic races, and it is often contrasted with the dull routine of
the Roman Empire. The truth is that the Empire bequeathed to modern
society the legal conception to which all this irregularity is
attributable; if the customs and institutions of barbarians have one
characteristic more striking than another, it is their extreme
uniformity.

[5] The passage quoted is transcribed with slight
alterations from a paper contributed by the author to
the _Cambridge Essays_ for 1856.

[6] _Cambridge Essays_, 1856.

CHAPTER X

THE EARLY HISTORY OF DELICT AND CRIME

The Teutonic Codes, including those of our Anglo-Saxon ancestors, are
the only bodies of archaic secular law which have come down to us in
such a state that we can form an exact notion of their original
dimensions. Although the extant fragments of Roman and Hellenic codes
suffice to prove to us their general character, there does not remain
enough of them for us to be quite sure of their precise magnitude or
of the proportion of their parts to each other. But still on the whole
all the known collections of ancient law are characterised by a
feature which broadly distinguishes them from systems of mature
jurisprudence. The proportion of criminal to civil law is exceedingly
different. In the German codes, the civil part of the law has trifling
dimensions as compared with the criminal. The traditions which speak
of the sanguinary penalties inflicted by the code of Draco seem to
indicate that it had the same characteristic. In the Twelve Tables
alone, produced by a society of greater legal genius and at first