through the country by Judges in eyre, the old missi sent from the side of the King. The only considerable modification of these principles was made when the modern County Courts were established, courts extremely unlike the old Shire Courts. These last have left the merest trace behind them, perhaps in some mound now overgrown with trees which marks their ancient place of open-air meeting, perhaps in some trifling fine imposed on landholders for failing to attend a non-existent tribunal. Even with the addition of the newer County Courts, the English judicial system has another feature peculiar to itselfthe fewness of the judges employed in administering justice.

If you look across the channel to France, you find these characteristics reversed comparatively little judicial centralisation, a large number of local courts, a multitude of judges distributed over the various tribunals. The French King, like the English King, became the theoretical fountain of justice, but the effect was produced much more by the zeal with which expert lawyers trained in the Roman law preached his authority than by direct supersession of the local courts by emissaries of his own. On the

other hand, the character of the law itself, however administered, was much more changed in France and on the Continent generally than in England. The Roman law gained everywhere a considerable, and

here and there a complete, ascendency over ancient custom, and the French Civil Code, the outcome of the Revolution, is only a version of Roman jurisprudence. But, though much is obscure in the beginnings of what we Englishmen call the Common Law, it was undoubtedly in the main a version of Germanic usage, generalised by the King's courts and justices. Some savour of the ancient opposition between the popular justice and the royal justice still clung about it, since we know that, theoretically administered in the King's name, it came at a much later date to be thought the barrier of popular liberty against assertions of prerogative by Tudor and Stuart. Meantime that residuary authority over law and justice, which was never in ancient times quite dissociated from the King, survived the maturity of the common law. From this sprang the jurisdiction of the Court of Chancery, which cannot be said to have ever been exactly popular, but which certainly owed whatever unpopularity attached to it not to any supposed inherent badness, but to incidental vices, its dilatoriness and its costliness. But then from this same residuary authority arose the criminal jurisdiction of the Star Chamber, which has become with ordinary English historians a very proverb of judicial oppression. The true historical difference, however, between the so-called equity of the Court of Chancery, and the illegalities and unconstitutionalities of the Star

Chamber, is that one had its origin before the authority whence it sprang had been seriously questioned, while the other did not obtain an effectual jurisdiction till its time had gone by. The depth of discredit into which Star-Chamber justice fell marks the decline and fall of the King's beneficial influence over law. The royal judicial authority was once the most valuable and indeed the most indispensable of all reforming agencies, but at length its course was run, and in nearly all civilised societies its inheritance has devolved upon elective legislatures, themselves everywhere in the western world the children of the British Parliament.

CHAPTER VII.

THEORIES OF PRIMITIVE SOCIETY.

SOME years ago (in 1861) I published a work (on 'Ancient Law') which I described in the preface as having for its chief object to indicate some of the earliest ideas of mankind as they are reflected in Ancient Law, and to point out the relation of these ideas to modern thought.' It was not part of my object to determine the absolute origin of human society. I have written very few pages which have any bearing on the subject, and I must confess a certain distaste for inquiries which, when I have attempted to push them far, have always landed me in mudbanks and fog. The undertaking which I have followed in the work just mentioned, and in others, has been to trace the real, as opposed to the imaginary, or the arbitrarily assumed, history of the institutions of civilised men. When I began it, several years before 1861, the background was obscured and the route beyond a certain point obstructed by à priori theories based on the hypo

my

thesis of a law and state of Nature. In endeavouring to get past this barrier, I had occasion to point out the claims of the so-called Patriarchal theory of society to be considered a real historical theory; that is, as a theory giving an account upon rational evidence of primitive or very ancient social order. The Patriarchal theory is the theory of the origin of society in separate families, held together by the authority and protection of the eldest valid male ascendant; and, having dwelt on the peculiar importance of Roman law in investigations such as I was prosecuting, I insisted in a few book on pages of the testimony to this theory supplied by the earliest records of Roman jurisprudence. We have not indeed knowledge of any working system of institutions in which the Family exactly corresponds to the primitive family assumed by the theory. The Roman law, as a working system, takes a view of Family and Kinship not very different from that accepted in modern societies, but we happen to have unusual facilities for ascertaining a very ancient condition of this law, and it is not possible to doubt that, when the law was in this state, the Family and the Kinship of which it took cognisance had for their basis the authority of the eldest male ascendant. Other bodies of old usage and legal rule, less perfectly known to us than the Roman from the scantiness or the inferior quality of their materials, seemed to me