Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/51

 ^. JENKS: TEUTONIC LAW 37 thereal act ivity comes with the conquests by the Danes. . On the other hand, in Scandinavia, of all Teutonic countries the most isolated, the oldest extant code dates from the end of the twelfth century or the beginning of the thirteenth. The , fact is an illustration of the great principle, that mixture or, at least, contact of races is essential to progress. The dis- covery of differences is needed to stimulate thought and produce coherence. Resistance and attack are alike provoca- tive of definition. The conqueror wishes to enforce his customs upon his new subjects. He must needs explain what they are. The conquered demand the retention of their ancient practices. They are compelled to formulate their claims. So it is when Charles the Great conquers Western Europe. So it is again when William conquers the English, when the English conquer India, when Napoleon conquers Grermany. This fact will, perhaps, help to account for one feature of the Leges Barbarorum which has often puzzled readers of them. They omit so many things that we should consider important ; and they relate in minute detail matters which seem to us trivial. But, if we remember that the process which produced them was probably a very troublesome one, we shall be inclined to think that their compilers only recorded what was absolutely necessary. And this comprised just those points which the processes of migration and conquest had rendered doubtful. The ancient custom had received a shock ; men doubted how far some of its terms would apply to new conditions. Even very modern systems of law fre- quently omit all mention of rules which are really funda- mental. No statute, no recorded decision of an English law court, says that a man may destroy a chattel which belongs to him. Why should it? No one doubts the fact. Much less does a primitive code trouble itself about theoretical completeness. Law is the expression of order and settled rule; but it is none the less true that the law came because of offences, that is, because of variations from existing rule. And it is to law-breakers, paradox as it may sound, that the progress of law is due ; for what we call Progress is simply the attempt of the individual to extend his freedom of action