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.
Public-domain text, read in full here on John Shaqi.
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