4:94 POLITICAL INSTITUTIONS. 



those who disobeyed, sufficiently imply the motive ; and this 

 motive was definitely shown in the feudal period in France, 

 by an ordinance of 1296, which &quot; prohibits private wars and 

 judicial duels so long as the king is engaged in war.&quot; 



Once more the militant nature of legal protection is seen 

 in the fact that, as at first, so now, it is a replacing of indi 

 vidual armed force by the armed force of the State always 

 in reserve if not exercised. &quot;The sword of justice&quot; is a 

 phrase sufficiently indicating the truth that action against 

 the public enemy and action against the private enemy are in 

 the last resort the same. 



Thus recognizing the original identity of the functions, we 

 shall be prepared for recognizing the original identity of the 

 structures by which they are carried on. 



523. For that primitive gathering of armed men which, 

 as we have seen, is at once the council of war and the 

 political assembly, is at the same time the judicial body. 



Of existing savages the Hottentots show this. The court 

 of justice &quot; consists of the captain and all the men of the 

 kraal. . . . Tis held in the open fields, the men squatting in 

 a circle. . . . All matters are determined by a majority.&quot; . . . 

 If the prisoner is &quot; convicted, and the court adjudges him 

 worthy of death, sentence is executed upon the spot.&quot; The 

 captain is chief executioner, striking the first blow ; and is 

 followed up by the others. The records of various historic 

 peoples yield evidence of kindred meaning. Taking first 

 the Greeks in Homeric days, we read that &quot; sometimes the 

 king separately, sometimes the kings or chiefs or Gerontes, 

 in the plural number, are named as deciding disputes and 

 awarding satisfaction to complainants; always however in 

 public, in the midst of the assembled agora,&quot; in which 

 the popular sympathies were expressed : the meeting thus 

 described, being the same with that in which questions 

 of war and peace were debated. That in its early form 

 the Eoman gathering of &quot; spearmen,&quot; asked by the king to 



