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trustworthy evidence. Substantially the conclusions of the jurists as to the influence of the conception of the family on historic law remain unimpaired. It is true that a great part of the "legal ideas of civilized races may be traced to this conception, and that the history of their development is the history of its slow unwinding."[1] But that there is no anterior condition to that in which the patriarchal family – "a group of men, women, and slaves, of animate and inanimate property, all connected together by subjection to the paternal power of the chief of the household" – is the unit of society, is not, so far as we are aware, affirmed by any historical jurist. The evidence on that question will be found in the article Family above mentioned.
Another natural group whose place in legal history has recently been the subject of careful investigation is the village community. In one of its forms – the township – "it is an organized self-acting group of Teutonic families, exercising a common proprietorship over a definite tract of land, its mark, cultivating its domain on a common system, and sustaining itself by the produce. It is described by Tacitus in the Germania as the vicus; it is well known to have been the proprietary and even the political unit of the earliest English society; it is allowed to have existed among the Scandinavian races, and it survived to so late a date in the Orkney and Shetland islands as to have attracted the attention of Sir Walter Scott" (Maine, Village Communities, p. 10). Founding on the researches of G. L. von Maurer, of Nasse, and others on the Teutonic mark, and comparing them with the observed phenomena of the village community in India, Sir H. Maine has shown, in the work just cited, how this widely diffused institution illustrates legal history, more particularly with reference to property in land, and to the conservation of customary law.
The lateness of the intervention of the state or sovereign as a direct legislator has been adverted to in the previous discussion. Formal law-making by the state is everywhere posterior to its intervention as the enforcer of law. Not that law-making was consciously separated from judging, or that the assembly or officer who represented the state was conceived as exclusively judicial. But the state, whether represented by a public assembly or by an officer, undertook to decide disputes between man and man long before it presumed to say on what principle such disputes should be decided. The judge everywhere comes before the legislator, if indeed terms so purely modern can be applied without danger to early law. That the pronouncements of the judge were themselves a source of law, – that he created the law which he professed to declare, – is true in a sense which, however, requires us to obliterate the most conspicuous of all the duties of a judge conceived in relation to mature law. That the law existed before the judgment, that the judgment should simply declare pre-existing law, that ex post facto laws are unjust – are the inveterate beliefs and prejudices of a civilized society, the strength of which is manifested by the fictions elsewhere noticed as concealing the manufacture of new law. No such conception is to be imported into the notions of early society as to the right and wrong of civil justice. The office of the judge was to settle disputes, to do right where wrong had been done; and whether his decision was founded on law, or custom, or religion, or on personal wisdom or inspiration, was a question which we cannot conceive as being asked, when these things were not distinguished in thought.
A conclusion suggested by the earliest forms of procedure in Roman law is that the intervention of the judge is originally that of a private arbitrator. The legis actio sacramenti retained down to a very late period certain symbolical proceedings, in which the features of a private quarrel were simulated. It was a petrified legal drama, like that played by the vouchers in the English action of ejectment. The parties wrangle over the disputed property, the magistrate interposes, and they agree to abide by his decision, each staking a deposit on the justice of his case. Maine felicitously compares these formalities with the trial scene depicted on the shield of Achilles in the Iliad, in which the sacramentum is represented by two talents of gold to go to the judge who shall best decide the points in dispute in the opinion of the spectators. The reward given to the private arbitrator has become in legal symbolism the fee payable to the court on the hearing of the cause. "In confirmation of this view," says Maine, "it may be added that many observers of the oldest judicial usages of modern Europe have remarked that the lines inflicted by courts on offenders were originally sacramenta" (Ancient Law, p. 378). The symbolism of another legis actio is susceptible of a similar interpretation. The condictio was a personal action taking its name from the notification to the defendant to appear before the judge on a day named, and it simulated a quarrel settled, not by the interposition of the arbitrator, but by agreement of the parties in the form of a wager, to be decided by the arbitrator at a future time. It is consistent with this view of the first manifestations of judicial functions that early as compared with mature law should assign so large a place to mere procedure. The adjective law, as it is now called, was the first portion of the law to take definite shape, and long maintained its place in the foreground of the system. When a special class in society, whether an aristocratic or priestly caste or a profession, became, as was almost universally the case, the exclusive custodians of the law, the formalities of procedure were their most important secrets. It is represented as a revolution in Roman society when the clerk of one of the aristocratic lawyers divulged to the public his master's notes for the conduct of legal proceedings. And at all times, it may be said, the law of procedure or practice is in a special sense the law of the professional lawyer, his knowledge of which makes him a skilled craftsman.
The more definite the judiciary power the more do we approach the state of things in which the postulates of analytical jurisprudence are true. Another mark of maturing law is its expression in writing, which, while it destroys the secret monopoly of a class, tends to develop the separate profession of free practising lawyers, who in all progressive societies count as the most powerful instrument for moulding the shape of the law. The influence of lawyers upon law is one of the topics on which the comparison of English and Roman law throws a flood of light, but its illustration would carry us beyond our present limits. Nor can we do more than allude to the importance tentatively assigned by Maine to the question whether a written law comes relatively early or late in the history of a nation. He appears to hold that the relatively early code of the Romans saved them from that degeneration of custom which takes place when it is transmitted by oral tradition from one generation to another.
We have discussed elsewhere, under the headings EQUITY and FICTIONS, two of the modes by which legal changes have been brought about indirectly. Direct law-making by the sovereign power, there is reason to believe, is not only everywhere later than these agencies, but its activity is progressive, and constantly tends to displace them. A glance at the English statute-book will show that the legis lature at the present day undertakes the deliberate altera tion of the law to a much greater extent than it has ever done before. A rough illustration is the fact that the chronological table of the statutes from 1235 to 1877
- ↑ Maine's Village Communities, p. 15.
