JUDICIAL AND EXECUTIVE SYSTEMS. 511 



allied at the outset. The sword is the ultimate resort in 

 either case : use of it being in the one case preceded by a 

 war of words carried on before some authority whose aid is 

 invoked, while in the other case it is not so preceded. As 

 is said by Sir Henry Maine, &quot;the fact seems to be that 

 contention in Court takes the place of contention in aims, 

 but only gradually takes its place.&quot; 



Thus near akin as the judicial and military actions origi 

 nally are, they are naturally at first discharged by the same 

 agency the primitive triune body formed of chief, head men, 

 and people. This which decides on affairs of war and settles 

 questions of public policy, also gives judgments concerning 

 alleged wrongs of individuals and enforces its decisions. 



According as the social activities develop one or other 

 element of the primitive triune body, there results one or 

 other form of agency for the administration of law. If 

 continued militancy makes the ruling man all-powerful, ho 

 becomes absolute judicially as in other ways : the people lose 

 all share in giving decisions, and the judgments of the chief 

 men who surround him are overridden by his. If con 

 ditions favour the growth of the chief men into an oligarchy, 

 the body they form becomes the agent for judging and punish 

 ing offences as for other purposes : its acts being little or not 

 at all qualified by the opinion of the mass. While if the sur 

 rounding circumstances and mode of life are such as to 

 prevent supremacy of one man, or of the leading men, its 

 primitive judicial power is preserved by the aggregate of 

 freemen or is regained by it where it re-acquires predomi 

 nance. And where the powers of these three elements are 

 mingled in the political organization, they are also mingled 

 in the judicial organization. 



In those cases, forming the great majority, in which 

 habitual militancy entails subjection of the people, partial or 

 complete, and in which, consequently, political power and 

 judicial power come to be exercised exclusively by the several 

 orders of chief men, the judicial organization which arises as 



