1881.] on the K'lmj in his rcJatiun to Enrli/ Civil Justice. 641 



question, now much disputed, whicli was tlie older of the two, but it is 

 to bo observed that, liowever much a system of tribunals independent 

 of the king might bo organised, there was always supposed to be a 

 residuary and complementary jurisdiction in the king. Tlie Roman 

 law, which supplies the law of tlic civilised world wherever English 

 law does not prevail, is descended from this residuary jurisdiction. 

 What wc know as the Roman jurisprudence is not the primitive 

 Roman law, but it is that law distilled through the jurisdiction of 

 the Roman prretor, which jurisdiction had descended to him from the 

 ancient half-fabulous kings of Rome. 



In the ancient Teutonic administration of justice, which is specially 

 interesting to us as a Teutonic peojDle, we find the king and the 

 popular tribunal side by side. Tlie relations of the two are very 

 difficult to trace in our own island, much as modern learning has 

 done for the inquiry, but they are tolerably clear in the law of the 

 Salian Franks, which has descended to us as the Salic law, and which 

 is erroneously supposed to have something to do with the descent of 

 crowns. The Salic law is really a manual of law and procedure for 

 the ancient German Court of the Hundred. The king first appears 

 merely as claiming a share of the fines ; but as the history of law 

 proceeds, it is his authority which gives to the administration of 

 justice most of the characteristics which now belong to it. The 

 ancient Court of the Hundred had no power to enforce a large class 

 of its own decisions, the man who disobeyed them being at most 

 outlawed. But if the litigants agree beforehand that the king's 

 representative shall enforce the award of the court, he will do it ; 

 and so will the king himself if the lit'gant goes to him in person. 

 As the Frankish kings become more powerful, they intervene more 

 and more in the business of the Hundred Court. The Court, or 

 King's Dejjuty, takes the place of the elective President, or Thing- 

 man ; but then, on the other hand, all the judgments of the court are 

 enforced. Finally, even popular justice comes to be administered in 

 the king's name. 



Except in communities living within walled towns, whoso institu- 

 tions followed a peculiar course of development, royal justice steadily 

 grew at the expense of popular justice. What were the causes of 

 this ? First of all, the multitudinousness of the popular courts, and 

 the great burden which the duty of attending them threw on the free 

 cultivator. In England, the Reeve and four men attended the 

 Hundred and Shire Courts, and an even larger number of freemen 

 attended in the courts of the Continent. Even now a summons to 

 serve on a jury is not received with complacency, but what must the 

 duty of going to the Shire Court have been when most of England was 

 forest or fen, and when there were few roads but the old Roman 

 roads? Nor was the onerousness of the duty to be discharged in 

 court very slight, since the judges had sometimes to fight on behalf 

 of their own verdicts. There are councils of the Church which 

 protest against the burden thrown on poor men. The feudal courts 



Vol. IX. (No. 73.) 2 p 



