Ancient Law | Page 9

that the
office of the king was usurped by that council of chiefs which Homer
repeatedly alludes to and depicts. At all events from an epoch of kingly
rule we come everywhere in Europe to an era of oligarchies; and even
where the name of the monarchical functions does not absolutely
disappear, the authority of the king is reduced to a mere shadow. He
becomes a mere hereditary general, as in Lacedæmon, a mere
functionary, as the King Archon at Athens, or a mere formal hierophant,
like the Rex Sacrificulus at Rome. In Greece, Italy, and Asia Minor, the
dominant orders seem to have universally consisted of a number of
families united by an assumed relationship in blood, and, though they
all appear at first to have laid claim to a quasi-sacred character, their
strength does not seem to have resided in their pretended sanctity.
Unless they were prematurely overthrown by the popular party, they all
ultimately approached very closely to what we should now understand
by a political aristocracy. The changes which society underwent in the
communities of the further Asia occurred of course at periods long
anterior in point of time to these revolutions of the Italian and Hellenic
worlds; but their relative place in civilisation appears to have been the
same, and they seem to have been exceedingly similar in general
character. There is some evidence that the races which were
subsequently united under the Persian monarchy, and those which
peopled the peninsula of India, had all their heroic age and their era of
aristocracies; but a military and a religious oligarchy appear to have
grown up separately, nor was the authority of the king generally

superseded. Contrary, too, to the course of events in the West, the
religious element in the East tended to get the better of the military and
political. Military and civil aristocracies disappear, annihilated or
crushed into insignificance between the kings and the sacerdotal order;
and the ultimate result at which we arrive is, a monarch enjoying great
power, but circumscribed by the privileges of a caste of priests. With
these differences, however, that in the East aristocracies became
religious, in the West civil or political, the proposition that a historical
era of aristocracies succeeded a historical era of heroic kings may be
considered as true, if not of all mankind, at all events of all branches of
the Indo-European family of nations.
The important point for the jurist is that these aristocracies were
universally the depositaries and administrators of law. They seem to
have succeeded to the prerogatives of the king, with the important
difference, however, that they do not appear to have pretended to direct
inspiration for each sentence. The connection of ideas which caused the
judgments of the patriarchal chieftain to be attributed to superhuman
dictation still shows itself here and there in the claim of a divine origin
for the entire body of rules, or for certain parts of it, but the progress of
thought no longer permits the solution of particular disputes to be
explained by supposing an extra-human interposition. What the
juristical oligarchy now claims is to monopolise the knowledge of the
laws, to have the exclusive possession of the principles by which
quarrels are decided. We have in fact arrived at the epoch of Customary
Law. Customs or Observances now exist as a substantive aggregate,
and are assumed to be precisely known to the aristocratic order or caste.
Our authorities leave us no doubt that the trust lodged with the
oligarchy was sometimes abused, but it certainly ought not to be
regarded as a mere usurpation or engine of tyranny. Before the
invention of writing, and during the infancy of the art, an aristocracy
invested with judicial privileges formed the only expedient by which
accurate preservation of the customs of the race or tribe could be at all
approximated to. Their genuineness was, so far as possible, insured by
confiding them to the recollection of a limited portion of the
community.

The epoch of Customary Law, and of its custody by a privileged order,
is a very remarkable one. The condition of the jurisprudence which it
implies has left traces which may still be detected in legal and popular
phraseology. The law, thus known exclusively to a privileged minority,
whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college
is true unwritten law. Except this, there is no such thing as unwritten
law in the world. English case-law is sometimes spoken of as unwritten,
and there are some English theorists who assure us that if a code of
English jurisprudence were prepared we should be turning unwritten
law into written--a conversion, as they insist, if not of doubtful policy,
at all events of the greatest seriousness. Now, it is quite true that there
was once