law rested on a totally different basis. It represented the
legal ethics of a society on most of its sides brutally and crassly
individualistic. That that society had come to an end instead of
evolving to its natural conclusion--a developed capitalistic
individualism such as exists to-day--was due to the weakness of its
economic basis, owing to the limitation at that time of man's power
over Nature, which deprived it of recuperative and defensive force,
thereby leaving it a prey not only to internal influences of decay but
also to violent destructive forces from without. Nevertheless, it left
a legacy of a ready-made legal system to serve as an implement for the
first occasion when economic conditions should be once more ready for
progress to resume the course of individualistic development, abruptly
brought to an end by the fall of ancient civilization as crystallized
in the Roman Empire.

The popular courts of the village, of the mark, and of the town, which
had existed up to the beginning of the sixteenth century with all
their ancient functions, were extremely democratic in character. Cases
were decided on their merits, in accordance with local custom, by a
body of jurymen chosen from among the freemen of the district, to whom
the presiding functionaries, most of whom were also of popular
selection, were little more than assessors. The technicalities of a
cut-and-dried system were unknown. The Catholic-Germanic theory of the
Middle Ages proper, as regards the civil power in all its functions,
from the highest downward, was that of the mere administrator of
justice as such; whereas the Roman law regarded the magistrate as the
vicegerent of the _princeps_ or _imperator_, in whose person was
absolutely vested as its supreme embodiment the whole power of the
State. The Divinity of the Emperors was a recognition of this fact;
and the influence of the Roman law revived the theory as far as
possible under the changed conditions, in the form of the doctrine of
the Divine Right of Kings--a doctrine which was totally alien to the
Catholic feudal conception of the Middle Ages. This doctrine,
moreover, received added force from the Oriental conception of the
position of the ruler found in the Old Testament, from which
Protestantism drew so much of its inspiration.

But apart from this aspect of the question, the new juridical
conception involved that of a system of rules as the crystallized
embodiment of the abstract "State,"