Charta_ of England. These were regarded as so bound up with
the very life of the people as to have a place by themselves, and
a superior force to anything to the contrary to which the free
consent of the people was not formally given. But in general
Romans and Englishmen preferred to make custom their law, and to
let this law grow "not with observation," but insensibly from day
to day as the needs of their social organization might be found
to require. It was a wise preference, and founded on a better
philosophy than they knew--than the world knew, until the theory
of evolution was demonstrated by Darwin and applied to
governmental science by Spencer.

A customary law for a people of advancing civilization and power
must expand with corresponding rapidity. There will soon be
disputes as to what it is on certain points and a demand for some
authoritative information as to this. In Rome, the priests gave
it at first, and then the lawyers. In England, the priests never
gave it, as priests. There was no sacred college of law.
Priests took part in legislation. A priest, at the king's right
hand, was his spokesman in doing equity. But it was from the
first the king as a judge, or the king's judges deputed by him
and sitting for him, who settled controverted questions of common
law. For the Roman and for the Englishman the first
representatives of government who could be called judges were
primarily and principally executive officers. The Roman
_praetor_ was not given judicial functions because he had
legal attainments. The _aula regis_ of early England was
composed of the great officers of state. The chief justiciar,
however, soon ceased to be prime minister. His associates on the
bench, as law became a recognized profession, came to be chosen