ample, how the theory of the 'rights of man' first came up in the
world; but does not thereby either prove or disprove it. It may have
been a fallacy suggested by accident or a truth first discovered in a
particular case. Maine, therefore, and the historical school generally
require some basis for their inquiries, and that basis is supplied by
the teaching of Bentham and Austin. I will only observe in connection
with this that Fitzjames is tempted by his love of such inquiries to
devote a rather excessive space in his law-book to inquiries about the
logical grounds of conviction which have the disadvantage of not being
strictly relevant, and the further disadvantage, I think, of following
J. S. Mill in some of the more questionable parts of his logic.

The writings of Bentham consisted largely in denunciations of the
various failings of the English law; and here Fitzjames takes a
different position. One main point of the book was the working out of a
comparison already made in the 'Cambridge Essays' between the English
and the French systems. This is summed up in the statement that the
English accepts the 'litigious' and the French the 'inquisitorial'
system. In other words, the theory of French law is that the whole
process of detecting crime is part of the functions of government. In
France there is a hierarchy of officials who, upon hearing of a crime,
investigate the circumstances in every possible way, and examine
everyone who is able, or supposed to be able, to throw any light upon
it. The trial is merely the final stage of the investigation, at which
the various authorities bring out the final result of all their previous
proceedings. The theory of English law, on the contrary, is 'litigious':
the trial is a proceeding in which the prosecutor endeavours to prove
that the prisoner has rendered himself liable to a certain punishment;
and does so by producing evidence before a judge, who is taken to be,
and actually is, an impartial umpire. He has no previous knowledge of
the fact; he has had nothing to do with any investigations, and his
whole duty is to see that the game is played fairly between the
ligitants according to certain established rules. Neither system,
indeed, carries out the theory exclusively. 'An English criminal trial
is a public inquiry, having for its object the discover of truth, but
thrown for the purposes of obtaining that end into the form of a
litigation between the prosecutor and the prisone