114 The Evolution of Law. 



erence to arbitration was voluntary, to a by-stander. 

 Next, the arbitrator was some man in authority, priest or 

 magistrate ; possibly, in important cases, the chief or 

 patriarch ; obedience being still voluntary, but likely to 

 be enforced by force of public opinion the life of early 

 as well as of advanced law. The next step occurs when 

 the tribe or State assumes jurisdiction to the extent of 

 giving the plaintiff power to compel the defendant to 

 come before a magistrate for settlement of the dispute. 



The most ancient legal proceeding of which we have 

 record gives strong support to the theory that this was the 

 first stage in the growth of law. This was the Legis 

 Actio Sacramenti, the source and pattern of all later actions 

 in Roman and Continental and old English law. The trial 

 began with the bringing of the slave or property in dis- 

 pute into court. Then began a feigned combat, which is 

 thus described by Gains : 



" The claimant held a wand, and, grasping the slave or 

 thing over which he claimed dominion, said : < This man 

 I claim as owner, by the law of the Quirites, according to 

 the reason that I have stated. Thus upon him I lay my 

 lance.' The adversary then repeated the same formula, 

 and touched the property with a wand which represented 

 his spear. This process was called the hand-grapple, and 

 symbolized a fight for possession. The magistrate, repre- 

 senting the State, ordered tliem to loose their hold. Then 

 each challenged the other to stake a sum of money on the 

 truth of his assertion. The wager accepted, issue was 

 joined, and the money was put into the hands of the mag- 

 istrate as a compensation for rendering judgment." 



In some such rough way as this the plaintiff compelled 

 his adversary to come into court to have justice done as 

 fitted the times. This getting a man into court was the 

 most important part of ancient law, as is witnessed by the 

 fact that the early codes give first place and great space 

 to the law of procedure. When the parties are in court, 

 the magistrate must pronounce judgment according to law 

 that is, he must determine rights and duties by applica- 

 tion of some rule or principle. These rules and principles 

 are the substance of the law, the reason and excuse Avhich 

 justify the interference of the public with the will of the 

 individual. 



The first appearance of substantive law is as custom, 



