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VII.- JUDGE AND LAWYER.

IN
N one of Herbert Spencer's essays on the development

of professions, dealing with that of Judge and Lawyer, the eminent philosopher holds that the primary conception of law, which continued almost unchanged for a very long period, is that it was ordained by the Divinity, either by direct revelation or through the medium of Kings elected by God and acceptable to Him. Until the utilitarian idea gradually dawned in the minds of men, there was, of course, no justification for the law except its divine origin, direct or indirect. Hence it came that the first laws were enunciated in the form of commands by those who were in contact with the ruler ; and that after his death the worship of his apotheosized spirit was continued by others, who thus in time became his priests, the interpreters of his will, the mouth-pieces from whom issued the injunctions of the Divine Spirit.

These priests, then, were in those primitive times the only persons who knew the law, and were therefore alone able to apply it and act as judges.

This system, which Spencer has touched upon in his Principles of Sociology,” is illustrated by him with examples taken from the Indians of Guiana, the Kalmucks, and the Jews, from Egypt, Greece and Rome.

But to say that all peoples in primitive times have had priests for their legislators and judges, is too general an assertion, and is as dangerous as other generalisations.

In the infancy of peoples, all functions are combined and confused. Executive, legislative and judicial power, religious, social and military authority, were all one in the hands of a few—the strongest.

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Religion is in itself a force, in certain moments even the all-overpowering one. As regards this early period, we may safely admit the existence of the association suggested, which is true not only of the legislative and judicial power, but of all social functions without distinction. It constitutes, therefore, no peculiar characteristic of any one of them. It is not that the priests had the administrative power in their hands, but that they, as the dominating class, united the functions of the priesthood with those of justice as a consequence of their power, and also as a means of preserving it.

Instead of justice, we should rather say infliction of punishment, for in primitive times justice resolved itself into the infliction of punishment, either as a defence of personal authority, or to make its weight indirectly felt. However undeveloped they may be, it is always necessary to distinguish between legislative and judicial functions. The former, among some peoples little adapted to the develop. ment of law, remain in a rudimentary condition, so that a few general rules and a certain freedom in their application suffice, while on more suitable ground the mechanism of law perfects itself with amazingly rapid progress. Where the conditions are not favourable to the progress of law, it is absorbed by the theocratic element; thus it stagnates, as in India, into subtle dialectics, exterior practices and timid creeds, which stifle the substance. If, on the contrary, the field be one in which law flourishes, it soon detaches itself from theocracy, only preserving, as far as possible, respect for form and creeds. We may say-it is nothing new, but a profound truth-that in this struggle between religion and law lies the secret of the height to which the latter has risen amongst some peoples, and more especially in Rome: a struggle long and tenacious, though at first sight almost imperceptible, just because it was masked by respect for appearances.

From the moment of separation and of antagonism, dates the commencement of the legislative, and more particularly, of the judicial functions. Not before. For up to that time it is manifest that there had been only the effort on the part of one or more persons to preserve and increase their own authority, with a total disregard of social needs, and without any idea of tutelage. In those early times, therefore, there was not even the germ of development, for there was as yet no movement.

It becomes, then, our duty to distinguish between judge and legislator, to avoid confusion between the two functions which do not proceed pari passu. If from among the examples given by Spencer we take that of the Jews-the people who pre-eminently possessed a theocratical constitution—we find that justice was administered by judges and by the Elders who sat at the gate of the city, and who were only in some exceptional cases subject to the presidency of the High Priest. Beside them were the scribes and jurisconsults or pleaders, belonging either to the tribe of Levi or to that of Aaron, though not on this account necessarily priests.

In Athens, we may say in Greece, Solon was the legislator, and his regulations are not based on divine authority. Their power came from the purity of his life and the light of his genius, enforced by the oath taken by the citizens to observe them for a hundred years. The magistrates, too, were of his creation. The Areopagus had no sort of religious character, indeed it claimed the privilege of deciding the disputes of the gods. Of the four hundred citizens who composed it, the reputation for integrity and wisdom was all that was required. Wise, not sacred, was the legislation of Solon. He sowed the first seeds of civil legislation : consecrated the duty of supporting the members of the family: inculcated respect for the persons of others : made provision for widows

and orphans of those fallen in defence of their country, and accorded the privilege of bequeathing by will, with certain limits as to the exercise of the same.

In like manner in Sparta, Lycurgus confides the administration of justice to the twenty-eight members of the Senate: citizens, not priests; and makes them swear that the laws shall be kept until his return. He goes to Delphi declaring his intention of consulting the oracle, yet professing less confidence in its answer than in the good faith of his fellow-citizens; and to bind them more securely to their oath he never returns to his country.

The phenomenon now becomes more important, and we may study it best at Rome where it is most fully manifested.

At Rome the influence of the sacerdotal element in its true sense, whether in the legislation or the administration of justice, is very slight. The criminal jurisdiction and the civil one which there arose later, according to a general law, were in the hands of the King, of the Consuls (also called judices), of the popular political assemblies, and finally of the prætors.

From the very earliest times the King judged all cases; though there existed, under certain circumstances, the right of appeal to the people against his decision. It is known how the nature of the people lent itself to the development of a somewhat exaggerated formalism; owing to which one could not claim one's rights without adopting the sacramental formula, in which to make the mistake of a word, nay, even of a syllable, probably meant the loss of the case and the forfeiture of one's rights.

These formulæ were in the keeping of the priests, the only persons who, in a nation of soldiers, were likely to be able to write, to collect and transmit them. But it was not the priests who elaborated the law; this emanated from the King, from the learned men, and from the feeling of the people in general. The priests tried hard to make

their intervention indispensable, as this would have augmented the dignity of their office. Indeed, when we reflect on the long struggle between the Patricians and the Plebeians, it seems natural that the former, from whom the priests were taken, should set a high value on a monopoly which would have consolidated their preponderance.

All this is but an external element in the formation of the law. The priests knew the calendar, and said on what days cases could be tried, but for all this they had not the keys of the temple of Themis. In a similar manner they took some action in military affairs, giving auspices or declaring war; yet we cannot say that they took part in the development of the military art amongst the people of Latium.

This would be contradicted if it were true as Spencer asserts that the twelve tables were confided to the jealous custody of the priests; but it is now quite certain that the tables were committed to memory by the children in the schools and exposed in the forum libertatis, where they were burnt by the Gauls. The same considerations hold good for the administration of justice. It cannot be said that the priests were the judges. This has been asserted by Jhering, but his authority has been proved to be here at fault. Not even in sacred things did the priests have absolute jurisdiction, for in many cases the supreme judge was the people (at large). The judges were also legislators : first of all the King, then the Consuls, and the Decemviri, the Centumviri, and the Prætor. Along with these authorities we find another and most potent one: that of the father of the family over his wife and children. This right he exercised as the head of the domestic tribunal, judging many offences without appeai. The royal prerogative of administering justice is met with at various times and in many countries : in Greece, in the Asia of Homer, among the Jews, in England under the Saxon kings, and in ancient

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