The Executors of James Coolidge Carter \^J and :tion James Coolidge Carter V Law: Its Origin Growth and Function Being a Course of Lectures Prepared for Delivery before the Law School of Harvard University By James Coolidge Carter, LL.D. of the New York Bar G. P. Putnam's Sons New York and London Cbe •Rnfcfcerbocfeer prees 1907 4 1 COPYRIGHT, 1907 BY G. P. PUTNAM'S SONS Ube Knickerbocker pre0s, PREFATORY NOTE THE origin and nature of law, both written and unwritten; its growth and development; its function in the social order; its powerful influence as an effective force in the progress and civilisation of mankind; the importance of distinguishing between the nature of written and unwritten law and, ascer- taining the proper and legitimate province of each, were subjects which possessed for Mr. Carter an absorbing interest and to which he devoted much attention, particularly during the last few years of his life, when his retirement from active practice afforded him more opportunity for study and reflection. The general field of inquiry was not new to him, for at a much earlier period, when still in the full tide of professional activity and burdened by the exacting demands of a large and important practice at the Bar, he had taken the principal part in op- posing the adoption by the State of New York of the well known Civil Code, of which the late David Dud- ley Field was the author; and this task and the inquiries which it led him to make, were pursued by him with the keenest interest. The arguments which he then framed and ad- dressed to successive legislatures and governors, led to the final rejection of the proposed Code. His iv Prefatory Note views were published in a series of pamphlets, the first of which appeared in 1883 under the title The Proposed Codification of our Common Law. Five years later, he delivered an address before the Vir- ginia State Bar Association, which was afterwards published under the title of The Provinces of the Written and Unwritten Law, and later, in 1890, an address before the American Bar Association upon The Ideal and the Actual in the Law embodied further views and reflections upon the same general topics. It was to the study devoted to these subjects in the somewhat brief periods of leisure permitted by the demands of his active professional work that Mr. Carter himself attributed the deep and absorbing interest which they possessed for him. After his retirement from active practice, he determined to devote a portion of his leisure to writing a somewhat more important and complete expression of his views on these topics than had been contained in his former pamphlets and addresses but at the suggestion of President Eliot, of Harvard University, he substituted for this proposed work a series of lectures to be delivered before the Law School of that University. I find among his papers a brief memorandum in his handwriting, evidently written before this change of purpose and intended as a suggestion for a preface to the work which he at first designed to write. It is endorsed "By Way of a Possible Preface, " and is as follows: It happened to me many years ago to be appointed by the Association of the Bar of the City of New York upon a Com- Prefatory Note v mittee charged with the duty of opposing a bill which had been introduced into the Legislature of that State, entitled "An Act to Establish a Civil Code." This proposed Code purported to be the work of a Legis- lative Commission which had been created by an Act of the same Legislature, adopted many years before, and at the head of which was the late David Dudley Field; but it was in fact, as he often declared, entirely his own work. This eminent lawyer was a man of great intellectual audacity, the worthy disciple in that particular of Jeremy Bentham. He would not tolerate the suggestion that there was any unsurmount- able difficulty in reducing into statutory form the entire body of the law which governs the private transactions of men. He insisted that the whole of it could be embraced in a volume of very moderate size and that its adoption would substan- tially supersede the necessity of consulting that prodigious record of judicial precedent which fills so many thousand vol- umes and has been hitherto deemed an essential part of the furniture of every complete law library. Moved by the high incitements of conferring upon society a benefit so prodigious, and, as we may suppose, of achieving for his own name a renown like that bestowed upon the great law-givers of mankind, he threw himself into the enterprise of procuring the enactment of his proposed code with the greatest energy and prosecuted it for years with the utmost persistency. This made the task of opposition extremely laborious and the chief burden happened to fall upon myself. I was thus led into inquiries concerning the distinctions between written and unwritten law and was unable to find that these distinctions had ever been to any considerable extent pointed out. I was, however, led to entertain much doubt concerning the correctness of the conceptions most widely accepted of the nature, scope, and authority, not only of the written, but of the unwritten law. and came to think that, notwithstanding the number of treatises upon the subject, the original sources and nature of what may be called jurisprudence had never vi Prefatory Note been sufficiently explored; in particular the definition of law as a command, laid down by Austin and carried out into all its logical consequences by him, resting as it does, so far as the unwritten law is concerned, upon a manifest fiction, and confounding, as it also does, the separate provinces of the written and unwritten law, seemed to me to be a fundamental error. These defects, or errors, as they seem to me to be, in the current theories of our jurisprudence, I impute to an under- estimate among the members of our profession of the im- portance of theoretical inquiries. The most distinguished of our lawyers and judges are prone to regard with a species of disdain any resort in forensic argument to elementary principles, and comparatively little attention is given in our schools of law to the scientific study of the foundations of our legal institutions. ,;,_ This is very much to be regretted. To eulogise the law as one of the highest of human sciences and yet neglect to inquire what kind of a science it is, whether it rests upon a priori conceptions or is the fruit of an induction from the facts of human experience; whether it is the conscious com- mand of a supreme authority or an unconscious growth in the life of human society, is an inconsistency of which professed students should not be guilty. The interest aroused in me, in the manner above indicated, in the theoretic foundations of our law, and my sense of the importance of such studies, have moved me to publish some of the conclusions which seem to me well founded and the grounds upon which they may be supported. I am not so presumptuous as to think them in any way final or anything more than a contribution to a discussion, which, if suffi- ciently stimulated, must be fruitful in most important and serviceable truth. Mr. Carter's sense of the importance of the in- quiries which he thus describes, and the strong affection which he always entertained for his Alma Prefatory Note vii Mater and which led him to adopt for the expression of his ripened and mature views the form of lectures for delivery before its Law School, are touchingly shown by a provision of his will whereby he gave a large sum to the President and Fellows of Harvard College "which," he said, "I now wish may be ap- plied to the establishment and maintenance in the Law School of the University of a professorship of General Jurisprudence for the special cultivation and teaching of the distinctions between the pro- vinces of the written and unwritten law; but I do not intend to control the discretion of the donees in respect to the application of this fund. I mention my present preference." This was in addition to another large gift for the general purposes of the University. It was Mr. Carter's intention to deliver the lectures in the spring of 1905, and the rough draft of the manuscript was completed only a few days before he was stricken with the brief illness which resulted in his death on February 14, 1905. When he realised that he could never deliver the lectures, he ex- pressed a wish that they be published by his Executors. The manuscript had never been finally revised by him; but it has been thought best to print this volume from it just as it left his hand, save the making of a few verbal corrections. L. C. L. NEW YORK, June, 1907. LAW, ITS ORIGIN, GROWTH AND FUNCTION LECTURE I A COMPLETE study of the law would embrace three successive efforts. The first would be to acquire a knowledge of those rules which make up the law, as mere isolated rules; and this might be sufficient for a considerable degree of skill and pro- ficiency in practice. The next would be to compre- hend those rules as parts of a classified and orderly system exhibiting the law as a science; and who- ever aspires to be a thoroughly accomplished lawyer must take this step. The third and final effort j would be to explore the realms of science which' lie beyond the immediate boundaries of the law, ; and ascertain its origin, its essential nature, the method of its development, the function it fills in human society, and the place it occupies in the gen- eral system of human knowledge; in other words, to learn what is termed the Philosophy of the Law. The means for prosecuting the first two of these efforts have been, in a reasonable measure, already supplied. The decisions of a multitude of tribunals * 2 Law, Its Origin sitting during successive ages, and diligently re- corded, furnish abundant material from which to gain a knowledge of what the law at present is, and, besides these, we have numerous treatises, many of them thorough and admirable, together with codes both of ancient and modern states, all aiming to reduce the law into a scientific form. In the third and last stage of legal study, how- ever, comparatively little progress has been made. There are several reasons for this. In the first place, there is, in the economic sense, but little demand for this sort of knowledge. Courts are always eager to listen to intelligent discussion concerning particu- lar rules, or the general heads in the law to which such rules should be referred; but their concern is mainly with practical affairs, and they are inclined to be impatient of discussions which have but a remote pertinency, and to them all mere philosophy is apt to seem remote. Lawyers, even the most accomplished, feel little inclination towards studies which seem to afford but a small measure of practical utility, and most efforts in the field of Legal Philo- sophy are characterised with a polite sneer as being academic. Moreover this branch of knowledge being part of the field, not strictly of Law, but of Sociology, has necessarily been kept in abeyance by the circumstance that Sociology itself is but a recent study. Add to this the intrinsic difficulty of the subject, and we need not wonder at the little pro- gress made in its development. The criticism that such studies are academic is true, but it should by no means discredit them. It Growth and Function 3 is their highest recommendation; for it means that they are such as are usually pursued in universities, and it is in such places, pre-eminently, that the highest and most useful knowledge is taught. All university teaching is, or should be, scientific and philosophical; and never rests satisfied as long as a further step may be taken or a larger generalisation reached. But if proof be needed of the immediate practical utility of such knowledge it may be found in abund- ance in the present condition of legislation. I speak of this country, but without meaning to imply that it is worse here than elsewhere. There are a vast number of laws on the statute-books of the several States which are never enforced, and generally for the reason that they are unacceptable to the people. There are great numbers of others the enforcement of which, or attempts to enforce which, are produc- tive of bribery, perjury, subornation of perjury, animosity and hate among citizens, useless expendi- ture, and many other public evils. All these are fruits of the common notion, to correct which but little effort is anywhere made, that a legislative enactment is necessarily a law, and will certainly bring about, or help to bring about, the good in- tended by it, whereas such an enactment, when never enforced, does not deserve the name of law at all, and when the attempted enforcement of it is productive of the mischiefs above-mentioned, it is not so much law as it is tyranny. Among the evils which oppress society, there are few greater than that caused by legislative expedients undertaken V 4 Law, Its Origin in ignorance of what the true nature and func- tion of law are, and the effective remedy — at least there is no other — lies in an effort to correct this ignorance by knowledge. This neglect of the problems underlying our legal systems has left important points in our judicial literature in much confusion, and this is very mani- fest in the multiform definitions which have been given of Law. It might be thought that the oldest and most necessary function of human society, and one which from the dawn of speculation has engaged the attention of the most superior and dis- ciplined minds, would have received a final interpre- tation commanding general assent; but the case is quite otherwise. The various definitions exhibit the greatest diversity, both in expression and in sub- stance. They are generally vague and uninstructive, sometimes conflicting and irreconcilable, and scarcely any will endure a close scrutiny. I may illustrate this diversity by instances, most of which I gather from Prof. Holland's recent work on The Elements of Jurisprudence. Cicero, who, with other Roman jurists, was wont to regard what was termed the Law of Nature as the foundation of all law, in one place thus defines it1: "Lex est recta ratio imperandi atque prohibendi" ; in another thus "Lex nihil aliud nisi recta et a numine deorum tracta ratio, jubens honesta, prohibens contraria." 2 Such definitions can hardly be said to define anything. Assigning to the law a divine source and authority, and identifying it with " right reason," is but a con- *DeLeg.,L, 15. * Phil, xi., 12. Growth and Function 5 • fession of inability to define or explain it. It is but saying that law is so far the product of our highest reason that no human origin can be assigned ir it, and therefore that its source and authority must be divine. And to say that the law is what commands the honest and just to be done is but moving in a circle, for if we were to inquire what is honest and just the only answer would be what the law com- mands. A definition by Hooker is very concisely expressed, but marked by the same vagueness: "That which reason in such sort defines to be good that it must be done."1 What is this reason from which law thus proceeds, and where is it to be found, and how does it act in determining what is good ? Men may have different conceptions of reason, and be led by them to very different conclusions concerning law. The German philosopher Kant defines law as "the sum total of the conditions under which the personal wishes of one man can be recon- ciled with the personal wishes of another man, in accordance with a general law of freedom."2 But while this definition exhibits a profound insight into the purpose, or function, of law, it is otherwise vague and indefinite. What is the nature of the "con- ditions' ' here intended ? Are they found in the nature of men and things, or imposed by some external human authority, and if the latter, by what author- ity? Savigny, the most accomplished philosophical jurist of his time, at once profound and practical, de- scribes the law as "The rule whereby the invisible » Eccl, Pol., i.e. 3,c. 8. 2 Rechtslehre, Werke, vii., p. 27. 6 Law, Its Origin border line is fixed within which the being and the activity of each individual obtains a secure and free space."1 This language, however vague and obscure, describes law, or rather its function quite accurately, but it does not inform us of the origin of the rule, or the nature of its authority, matters quite necessary to a complete description. These instances are not given by Prof. Holland as attempted definitions of any law actually admin- istered; but of that general body of rules to which it is supposed that human conduct ought to conform, even though not enforced by the direct action of the State, — rules derived from what is called the Law of Nature, or from the general code of morality. He is a follower of the celebrated John Austin, and would restrict the name of Law to those rules which a fully organised State recognises and enforces, and which he, adopting the language of Mr. Austin, dis- tinguishes by the term Positive Law. He cites many instances of what, in his view, are attempted defini- tions of this law, besides giving his own. Among them is that of Demosthenes: "This is Law, to which all men should yield obedience for many reasons, and especially because every law is a dis- covery and gift of God, and at the same time a decision of wise men, and a righting of transgressions, both voluntary and involuntary, and the common covenant of a State, in accordance with which it beseems all men in the State to lead their lives." This definition, however, seems limited to those rules which are formulated by learned jurists from 1 Sy sterna des Reckts, i., p. 332. Growth and Function 7 the precepts of morality, and scarcely embrace the edicts of a tyrant, or the arbitrary enactments of a legislative body however rigorously they may be enforced. Another is that of Xenophon : ' ' Whatsoever the ruling part of the State, after deliberating as to what ought to be done, shall enact, is called a law." This defines well enough written or statutory law, but no other. Another is that of Hobbes, the cham- pion of arbitrary power, which also defines nothing but statutory law: "The speech of him who by right commands something to be done or omitted." Another is that of Bentham, who believed that legis- lation should embrace the whole field of law: "A portion of discourse by which expression is given to an extensively applying and permanently en- during act or state of the will, of a person or persons in relation to others, in relation to whom he is, or they are, in a state of superiority." It requires no small amount of intellectual effort to understand what this means, but it is phrased with studied pre- cision to express what the author thought law ought to be. John Austin, in his well-known work on The Province of Jurisprudence Determined, limits that province to what he designates as " Positive Law," which he defines thus: "Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme,"1 and he denies that any other so-called laws fall within the scope of jurisprudence. He, i John Austin, lecture vi, vol. i., p. 116. 8 Law, Its Origin like Bentham, whose disciple he was, thus makes the most important element of law, its authority, to proceed from the sovereign power, and pro- nounces the most profound judgment of an Eldon or a Marshall and the tyrannical decree of the most unscrupulous despot as equally entitled to the august name of law. And yet the theory of Austin has received, both in England and America, a wider acceptance and adoption among juridical writers than any other. There is in the other definitions I have referred to a basis of general truth, however insufficient they may be, but that of Austin seems to me to be radically and mischievously erroneous. This will clearly appear if the views I shall hereafter endeavour to maintain be at all well founded. The definition of a German jurist, Dernberg, is very concise. It is: "That ordering of the relations of life which is upheld by the general will." We would scarcely think that this writer was speaking of the same thing which Bentham and Austin sought to define. Austin, however, could cite Blackstone in his favour, whose definition is: "A rule of civil con- duct prescribed by the supreme power in a State commanding what is right and prohibiting what is wrong" ; but this, besides being open to much the same criticism as the definitions of Bentham and Austin, is subject to another, namely, that we are not told where we are to find the "right" and the "wrong" which the law enjoins or prohibits, except in the injunction or prohibition itself. Prof. Holland's own definition is, I think, while far from being perfect, one of the best: "A law, in the proper Growth and Function 9 sense of the term, is a general rule of human action, taking cognisance only of external acts, enforced by a determinate authority, which authority is human, and, among human authorities, is that which is para- mount in a political society." Sir Frederick Pollock, to whose disciplined mind and wide learning we might look with confidence for a satisfying definition, thinks one impossible at present, and says: "No tolerably prepared candidate in an English or American law school will hesitate to define an estate in fee simple; on the other hand, the greater a lawyer's opportunities of knowledge have been, and the more time he has given to the study of legal principles, the greater will be his hesitation in face of the apparently simple question, What is Law?" In this diversity of view two opposing tendencies are discernible. One of them may be described generally as an ideal tendency seeking to enthrone over human affairs a rule of absolute Right. The ancient jurists, the administrators and stu- dents of the law, recognised the sense of justice or right felt by all races and classes of men, and per- ceived that there were rules of human conduct con- stituting a rational system the enforcement of which satisfied this universal sentiment. Whence the sentiment came, or the rational precepts which accorded with it, they did not diligently inquire, but they perceived that a like order pervaded all the phenomena of the moral and physical world, that the heavenly bodies moved and the seasons suc- ceeded each other in accordance with some un- io Law, Its Origin yielding law, and that, in general, virtue was rewarded and vice punished, in accordance with some law equally imperative. They could not help believing that the universe, moral as well as material, was under the guidance of some All-powerful Mind, the Creator and Ruler of all, whom, expressing their ignorance rather than their knowledge they named indifferently Jove, God, or Nature. Their conclusion was that there was a real and true Law towards which all human law approached, and good men everywhere aspired, capable, in part at least, of be- ing apprehended by our reason, which was a part of universal Nature, and an emanation of the Divine Mind, and to this they gave the name of the Law of Nature. This conception fell in with the philosophical tenets of Stoicism, which was the school in which the Roman jurists were chiefly trained. It furnished a founda- tion for the jus gentium, a body of law which grew out of the necessities of justice in dealing with the relations between citizens of Rome and the people of her conquered provinces; and it thus found a place in the Roman Jurisprudence, and has been carried with it into the judicial literature of the modern nations of continental Europe which have adopted that system as the basis of their law. It was a favourite theme with Cicero in his legal writ- ings, and he kindles into eloquence whenever he touches upon it. His nobly phrased panegyrics have often been quoted. Nor is this law of nature a stranger to the jurid- ical writers of England. I might refer to many Growth and Function n who recognise it, although all may not understand it alike. I content myself with a citation from Blackstone. He says: "This law of nature being co-eval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe in all countries, and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all their force, and all their authority, medi- ately or immediately, from this original."1 This lofty conception of law can scarcely be regarded as scientific. If there were no other ob- jection to it, it would be enough that we know of no certain means whereby we can pronounce what the law of nature is. Blackstone, indeed, says that it may be reduced to one "paternal precept, 'that man should pursue his own true and substantial happi- ness. '"2 And while he thinks the task would be "pleasant and easy" if our reason were "as in our first ancestor before his transgression," he admits that in our present state it is encumbered with difficulties, except where Divine Providence "hath been pleased at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation." 3 But the difficulty of gain- ing any true knowledge of it is quite insuperable. The law of God must be absolute like himself, and before we can know his laws we must be absolute — jj'* that is, equal with him. We can know the absolute in no direction, and science could scarcely find in 1 Blackstone, book i., p. 41. * Ibid. » Ibid. 12 Law, Its Origin the Sacred Scriptures rules of conduct which it was the duty of the State to enforce. The other tendency in these diverse definitions is the one represented by that of Austin. Others, like him, impressed with the uncertainty which marks what is called the Law of Nature, and dis- satisfied with the rhetorical language in which the vague conceptions of it are clothed, go to the oppo- site extreme and refuse the name of law to every- thing which is not prescribed in definite language by the sovereign power of the State. With these everything which the so-called supreme power of the State commands, whatever its character in point of right, is law, and nothing else is entitled to that designation. And thus while the one tendency would enthrone Right, the other would erect Force, as the arbiter of human conduct. The inquiry naturally arises whence this vague- ness, confusion, uncertainty, and error concerning subjects which have engaged the attention of the most powerful minds from Aristotle to Bacon, pro- ceeds. Is the law incapable of definition? If so, it must be for the reason that it can not be known, or is not known; for whatever is known can be defined Or do the confusion and contradiction spring from the fact that truth has not been reached for the reason that the proper methods of investigation have not been adopted? In all the physical sciences it has long been recognised that little can be gained by indulging in hypotheses and conjectures, and that the true method of inquiry is to fix the attention upon the field of actual phenomena to which the Growth and Function 13 inquiry relates, and arrange our knowledge of the facts according to the order in which they stand related to one another. Science deals with facts alone, and where there are no facts there can be no science; and where there are facts no progress will be made in erecting a science which shall embrace them until these facts have been diligently studied.1 The two diverging tendencies to which I have alluded seem to me to have arisen from a failure to recognise these truths. In viewing the law as a body /of rules proceeding from a supposed Law of Nature \ — an invisible fountain of right — we are simply indulging in hypothesis. No such thing is open to our observation, and, consequently, not to our knowledge. So, too, when we ascribe all law to the command of the supreme power in a State we are simply contenting ourselves with an assumption. That extremely small part, comparatively, of the law consisting of statutory enactments may be thus defined with some approach to truth, but the great bulk of the law, that which is unwritten, does not » NOTE. — Since writing the above some observations of Prof. Maine, of a similar nature, have been brought to my attention. He says: "There is such a wide-spread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the con- viction that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors. And indeed there is one remarkable omission with which all these specu- lations are chargeable, except perhaps those of Montesquieu: They take no account of what law has actually been at epochs remote from the particular period at which they made their appearance." (Early Law, p. 174.) It is to be regretted that Prof. Maine did not devote himself to a systematic and sustained inquiry throughout the promising field here suggested instead of accepting the hypothetical conclusions of Austin. 14 Law, Its Origin appear to fall under the definition. This is conceded by Austin, and his mode of meeting the difficulty is the short and easy one of assuming that the Sovereign adopts the unwritten law as it is declared by the courts, an assumption not only unproved, but unprovable. It is a pure hypothesis. I know of no difference between the physical and the moral sciences so far as their methods are concerned. In the one as well as in the other there must be a field of actual and observable fact, and wherever there is such a field a science is possible. Where there is none, there can be no observation, and therefore no science. The world of fact open to our observation is not, in- deed, limited to the external and material world; our own thoughts and feelings are equally matters of fact made known to us by consciousness, and therefore parts, or susceptible of being made parts, of our scientific knowledge. My first endeavour in these lectures will be to find an answer to the question which has evoked so many different opinions, and which Sir Frederick Pollock deems it impossible at present to answer— What is Law? There is certainly a region of fact with which the law is concerned. The common description of law upon which all are agreed is that it is " a body of rules the regulation of human conduct," and whether we look to the exercise of the power of legislation, or to the action of judicial tribunals, we find that in every instance the -thing, and the only thing, sought to be affected by law is human conduct. Of course in Growth and Function 15 ^ connection with human conduct everything which directly bears upon it, including especially the nature and constitution of man, and the environ- ment in which he is placed, becomes part of the field of fact to be studied, for these are causes con- stantly operating upon conduct and affecting it. Human conduct, therefore, with everything bearing upon and restraining it, constitutes the arena of fact which the student seeking for a knowledge of the true nature of law must explore, and an atten- tive survey of this field, and a just arrangement of its contents can, I think, scarcely fail to clear up much of the confusion and uncertainty which now obscure our conceptions of the origin, nature, and function of the law. It may possibly be found that human conduct is in a very large degree self -regu- lating, and that the extent to which it can be affected by the conscious interference of man is much narrower than is commonly supposed. Inasmuch as the whole field of human conduct is to be explored, we should naturally begin with the earliest exhibitions of it to which our knowledge extends — that is, to conduct and its regulation in < primitive society. There is another reason for turn- ing our attention at first to primitive society. We can more easily learn the real nature and function of any complex instrumentality, whether it be a piece of mechanism like the steam-engine, or an institution like the law, if we begin by studying it in its original and simplest form. We thus per- ceive more easily what is essential, and the numer- ous additions or modifications necessary to adapt it 1 6 Law, Its Order to varying circumstances do not confuse us or divert the attention. It is not, indeed, possible for us to gain any direct knowledge of the social condition of pre-historic man. Our earliest records carry us back a few thousand years only, and these exhibit man at a considerably advanced stage of progress. We do not know how long he has been upon the earth; but we have sufficient reasons for the belief that he has been here for a period measured by millions of years. What progress may have been made during that period prior to any time of which we have any knowledge, we can not know with certainty. There are, however, numerous tribes of men now living who are nearly destitute of arts and industry, who do not cultivate the earth, who subsist wholly upon its wild products, who have only the simplest implements and dress, rudely fashioned from wood, stone, and the skins of beasts, and archaeology brings to our knowledge the existence of implements of similar character which must have belonged to men living in geologic periods long anterior to our own. We know, moreover, that the ancestors in historic times of the civilised races now upon the earth used similar implements for presumably similar purposes. We are safe, therefore, in the conclusion that the social conditions open to our observation of barbaric man are really those, or resemble those, of primitive or pre-historic man. The tribes of men lowest in the scale of civilisa- tion of which we have any knowledge are those which subsist upon the wild fruits or products of Growth and Function 17 the earth, without other labour than that required to gather or capture them. They are huntsmen who pursue their game on land or water with the rudest implements and at the same time gather wild honey, yams, cocoanuts, or other wild fruits. They are usually more or less unsettled, wandering not widely, but from place to place, as the needs of their existence require. Those who subsist mainly by the pursuit of wild animals upon the land roam through limited regions. Those who live upon fish, or where wild fruits are abundant, are more settled. Of these are the inhabitants of Terra del Fuego, the Patagonians, some tribes of Australia, the Bushmen of South Africa, the Wood Veddahs of Ceylon, the Andamanese in the Bay of Bengal, the Abipones of South America. They may dwell in caves or hollow trees, or in the rudest huts made of the trunks or branches of trees. They go, in some instances, naked, in others with very slight clothing, and in others, where the climate is severe, they are more com- pletely clothed in the skins of beasts. They have no arts or industries save such as are necessary for the manufacture of their weapons or the construc- tion of their rude habitations. They have scarcely any language. The relations of the sexes are differ- ent in different tribes. In some monogamy, in others polygamy, and in others promiscuity obtains. These societies are small and generally inclined to be peaceful, hostilities with neighbouring tribes being comparatively rare. They are usually gentle and kind towards each other. The only things in the nature of property which they possess are their 1 8 Law, Its Origin weapons and implements,, their clothing and habita- * tions, and the right of property in these things is recognised. They have no laws or organised govern- ment. There is no headship in the tribe except on those occasions when hostilities, offensive or defen- sive, with neighbouring tribes arise, and then the most capable is selected as chieftain to lead the rest. But his authority declines when the occasion for it has passed. There is no council of elders or other body clothed with public authority. All the members of the tribe are equal and independent. And yet in these societies there is a constant restraint upon conduct. This consists simply in the obligation felt by each one to do as others do — that is, to, .conform to custom. Every one knows that if Khe does violence to another, or steals his property, he will excite the resentment of the other, and probably receive from him, and those who will aid him, bodily punishment. He will provoke retalia- Tj tion. He will lose the approval and friendship of his fellow tribesmen. He will be made in various ways to suffer. These are the consequences, known beforehand, of a failure to conform to custom, and they are sufficient to secure conformity, not indeed in every instance, but in the great majority of instances. The prime requisite of" human society, that without which it cannot subsist, is that each member should know what to expect in the conduct of others, and that fair expectations should not be disappointed. When he knows this, and only when he knows it, he knows how to act himself. This requirement is supplied by conformity to custom. The obedience Growth and Function 19 does not proceed from any conception of a principle of right. It is not felt to be a crime to steal the prop- erty of a member of another tribe, or to do violence to his person, or even to murder him. Such acts indeed are often regarded as virtues and applauded as such. The custom is obeyed unconsciously in most instances because there is no temptation to depart from it, and where the temptation arises self- restraint is exercised through fear of the conse- quences. Custom, therefore, is the only law we' discover at the beginning of society, or of society . when first exposed to our observation. The word itself imports its main characteristic, namely, its persistency and permanency. The manner in which a compliance with such customs is enforced is shown in the case of the Australian tribes above referred to. We are told that among them "the holiest duty a native is called upon to perform is that of avenging the death of his nearest relative, for it is his peculiar duty to do so; until he has fulfilled this task he is constantly taunted by the old women; his wives, if he is mar- ried, would soon quit him; if he is unmarried, not a single young woman would speak to him; his mother would constantly cry, and lament that she had ever given birth to so degenerate a son ; his father would treat him with contempt, and reproaches would con- stantly be sounded in his ear." It is important to observe that the establishment of a custom requires time, and long periods of time, and as all conduct is preceded by thought, it also involves a long series of similar thoughts — that is, of 20 Law, Its Origin long-concurring common opinion. Custom rests, therefore, not only upon the opinion of the present, but upon that of the past; it is tradition passing from one generation to another. We know no primi- tive horde even without this inheritance, and this circumstance, and the respect and veneration for an- cestors which we everywhere find in primitive peoples, contribute to make custom more venerable and bind- ing. I can not do better than borrow the authority and the words of Mr. Herbert Spencer in describing at once the existence of custom among primitive tribes and the force it derives from its transmission from prior generations beyond the reach of observation. " It needs but to remember the painful initiation which at a prescribed age each member of a tribe undergoes (submitting to circumcision, or knocking out of teeth, or gashing of the flesh, or tattooing) — it needs but to remember that from these imperative customs there is no escape; to see that the directive force which exists before any political agency arises and which afterwards makes the political agency its organ, is the gradually formed opinion of countless preceding generations; or rather, not the opinion, which, strictly speaking, is an intellectual product wholly impotent, but the emotion associated with the opinion. This we everywhere find to be at the outset the chief controlling power. "The notion of the Yukis that 'if they departed from the customs of their forefathers they should be destroyed' may be named as a definite manifestation of the force with which this transmitted opinion acts. In one of the rudest tribes of the Indian hills, the Puans, less clothed than even Adam and Eve are said to have been, the women long adhered to their bunches of leaves in the belief that change was wrong. Of the Korana Hottentots we read that 'when ancient usages are not in the way every man seems to act as is right in his own eyes/ Though the Damara chiefs 'have the power of Growth and Function 21 governing arbitrarily, yet they venerate the traditions and cus- toms of their ancestors.' Smith says: 'Laws the Araucanians can scarcely be said to have, though there are many ancient usages which they hold sacred and strictly observe. ' Accord- ing to Brooke, among the Dyaks custom simply 'seems to have become law, and breaking the custom leads to a fine.' In the minds of some clans of the Malagasy 'innovation and injury are . . . inseparable, and the idea of improve- ment altogether inadmissible.' "This control by inherited usage is not simply as strong in groups of men who are politically unorganised, or but little organised, as it is in advanced tribes and nations, but it is stronger. As Sir John Lubbock remarks: 'No savage is free. All over the world his daily life is regulated by a com- plicated and apparently most inconvenient set of customs (as forcible as laws), of quaint prohibitions and privileges.' Though one of these rude societies appears structureless, yet its ideas and usages form a kind of invisible framework for it, serving rigorously to restrain certain classes of its actions. And this invisible framework has been slowly and uncon- sciously shaped during daily activities, impelled by prevailing feelings, and guided by prevailing thoughts, through genera- tions stretching back into the far past. " In brief then, before any definite agency for social control is developed, there exists a control arising partly from the public opinion of the living, and more largely from the public opinion of the dead." Let us next glance at the conduct of man at a slightly advanced stage of progress, namely, the pastoral state, in which he seeks his subsistence from herds of tamed animals, and must, therefore, roam with them wherever food for them is to be found. Unlike the primitive savage, instead of killing whatever animals he captures and consum- ing them in immediate enjoyment, he tames them 22 Law, Its Origin and takes only their increase; he practises absti- nence, and endures labour in the hope of a greater happiness in the future. It is in this more than in anything else that we find the promise of progress and civilisation; for whenever man has learned to H postpone present enjoyment to a future good he has //' taken the first step in individual and social progres- ' sion. But the life of the shepherd is still a wandering one. The communities are small, and present, in general, so far as the government of conduct is con- cerned, no features essentially different from those of the other less wandering tribes. The persistency of custom and its dependence upon environment may be well illustrated by a reference to one of these societies. The Bedouins of the Arabian desert, although the individuals have greatly advanced in consequence of contact with civilised peoples, still exhibit collectively the manners and customs which distinguished them three thousand years ago. The chief characteristic which marks the next stage in social advancement is the adoption, wholly or partly, of permanent abodes in place of a wander- ing life, and with it, necessarily, the cultivation of the earth. The numbers grouped together now become larger, but the increase is brought about in two different methods, and they present one of two widely different aspects according as the tendencies are to a militant or to a peaceful life. If the society has the former tendency, it increases by the con- quest of neighbouring tribes and consolidating them with itself; if the latter, the increase is manifested by the natural increase of its own population largely Growth and Function 23 accelerated by the diminution in hardships which follows from its abandonment of the wandering life and by the increased care of children. Confining our attention first to the warlike societies, we find that they exhibit what the primi- tive groups first noticed lack — some organisation of the State. In war there must be a leader, and abso- lute power must be reposed in him in order that war may be made effective. Internal quarrels in the warrior bands must also be repressed, and the power bestowed upon the chieftain is employed for that end. The most skilful warrior acquires this chieftaincy and it becomes paramount in him, and develops into kingship. This power, supported, in peace as well as in war, by bands of warriors, be- comes absolute, and the chieftain is able to choose his successor. He naturally chooses his son, and thus arises the tendency to hereditary monarchy. In order, however, that the king may maintain his authority over the tribes he has conquered, he selects a company of favourites from his subordinate chiefs, the leaders of his warrior bands and the heads of the conquered tribes, who are made rulers simi- larly absolute over such tribes, though subject to him, and through these tributes are exacted and levies of warriors made from the local populations. The land is everywhere distributed among those who have distinguished themselves in battle, or otherwise secured royal favour. Prisoners taken in war are made slaves to cultivate the land, and thus classes are created in the State, all except the slaves enjoying privileges over those beneath 24 Law, Its Origin them, and dependent for the enjoyment of such privileges upon the favour of the sovereign; and thus the kingdom becomes consolidated into a powerful tyranny. The African kingdoms of Da- homey and Ashantee are typical instances of such societies. How is conduct regulated in such groups ? We do not find any legislative bodies organised to enact laws, nor does the sovereign either by himself or through ministers declare any designed to affect the ordinary life of the people. The different tribes of the kingdom already, when conquered, had their customs, as we have seen, the silent growth of long periods of time, and these continue as before with all their sanctions. The tyrant could not change them, with all his power, even if he would, for, as we have seen, they are unchangeable except in the ways by which they were formed; but he does not wish to change them. All tyrants are unqualified advocates of the maintenance of things as they are. These barbarous sovereigns, indeed, are personally above the customs, and plunder, rob, and murder at their will. Their tyrannical authority is sustained by favour and fear, but public peace and order beneath them it is their interest to pro- mote. The ancient customs are supported by the ancient sanctions, except in the case of slaves who are left at the mercy of their masters. There is indeed an additional sanction. The State is or- ganised, although rudely. It has a political form; the sovereign and his subordinate chiefs are clothed with power in the bands of warriors whom they Growth and Function 25 command, and the weak, when injured, appeal to them, and they enforce redress. Violations of cus- tom are punished by the public authority, and thus beginning is effected in the public redress of private injuries; in other words, what we know as the public administration of justice begins, although in a very crude form. But whether an act is a public crime, or a private injury, depends as before upon its conformity, or nonconformity, to custom. The advance, for such we must regard it, furnished' by this new sanction of custom, is one of the results of the integration of small primitive tribes or hordes into a larger society, and, though effected by war and violence, is in itself beneficent. If we are to have absolute tyrannies, it is well when a number are swallowed up in one. LECTURE II TURNING now to the other division of early socie- ties first exhibiting the beginnings of political or- ganisation, namely, those characterised by peaceful dispositions, and which extend themselves, not by the conquest of adjacent tribes and their territories, we find, although not universally, tendencies towards democratic instead of monarchical organisation. This consists usually in the establishment of a coun- cil composed of elders of superior wisdom and moderation in which the public authority is lodged. We find examples of such societies among the bar- barous tribes of Germany in early ages. Although nearly all these tribes possessed warlike qualities which made them formidable in battle, they did not engage in war generally for the sake of extending their own sway by the conquest of the territory of adjacent tribes, but for plunder, or retaliation, or glory, and some of them were naturally inclined to peace, not taking up arms except in defence against hostile attack. Other instances of substantially similar societies are found among the islanders of the Pacific, such as the Tahitans, the Tongas, the Samoans, and the inhabitants of the Sand- wich Islands, although the external conditions are different. 26 Law: Origin, Growth and Function 27 The characteristics of these tribes are, in general, an increasing scarcity of wild game, the possession of a fruitful soil, yielding a large product for moderate labour, some increase in the density of the popula- tion and consequently some advance in co-operation by means of a division of employments and exchange of services. These conditions greatly enlarge the intercourse between individuals and multiply their relations with each other. The necessity thus arises for a more extended regulation of conduct. We do not, however, find that any new instrumentality is employed. No laws are made by the kings, or the local chiefs acting under their authority, or by councils composed of chiefs or elders. This cannot be wholly in consequence of ignorance of the art of writing, for laws orally promulgated may be enforced and may be perpetuated by tradition. The only way in which conduct is regulated at this stage is, as before, by custom. The change from the sparse numbers of primeval tribes living upon the natural fruits and products of the earth has been very slow and gradual, and as the changes occur new customs grow up to answer the new needs, but custom is still .the only law. There is less and less resort to forceful and^vtoIenTredress of injuries and more and more of appeal to public authority for justice. This justice is administered by various persons or bodies; some- times by the King, sometimes by his officers sur- rounding him, sometimes by local chiefs, who have the government of districts, sometimes by a council of chiefs or elders. But in such cases they act judicially; the rights they enforce and the wrongs 28 Law, Its Origin they redress are such as derive their character as rights or wrongs from the existing customs. There is now what did not exist in the wandering horde, a society more or less efficiently organised, and a public administration, however imperfect, of justice or rather something which points towards, and may eventually become, an administration of justice. These conditions have subsisted in many parts of the earth from our first acquaintance with them down to the present time. This earliest assumption of functions in their nature judicial by the chiefs or councils, in societies which have become some- what settled and organised, does not, at once, super- sede the other agencies by which violence and dis- order were previously repressed, such as private vengeance, the unfriendly opinion of tribesmen, or the superstitious fear of evil coming from the ghosts or spirits of the departed, but it reinforces those agencies. Their united power in restraining con- duct is often very great. Tacitus says, speaking of the German tribes, that their good customs were of greater power than the good laws of other people. "Plusque ibi boni mores valent quam alibi bones leges." Nor is there as yet any conception of justice other than as of an obligation to obey the injunction of custom and tradition which in most, if not in all. tribes is assumed to be imposed by some great ances- tor or ancestors, or other disembodied spirits, exer- cising from an unseen world their authority over mundane affairs. The profoundest enquirers into the internal factors which make up the primitive Growth and Function 29 man everywhere find a belief in the existence of a world other than the visible ^qgf , inhabited by gods and demigods, and by the spirits of man's own an- cestors as well — beings who hold and exercise a mys- terious power over the lives and fortunes of the living. Offences against the customs and usages are offences against them, and from them proceed the commands to obedience. The interpreters of this Divine Will, sometimes under despotic rulers, were the king and the priesthood; in more democratic societies, the elders or wise men, together with the priesthood. This spiritual power is wielded by those who come to be regarded as in communication with the unseen world, and thus constitute a priesthood. They act in alliance with the public authority, and afford powerful assistance in the maintenance of peace and order. Another feature, characteristic of this as well as of all the preceding social stages, while it operates in some ways to enlarge violence and make strife more deadly, yet on the whole restricts it. This is the f amily^JJ£«. The family appears as the unit of society. Its members stand by each other in all fortunes. If strife breaks out between some indi- viduals of the family itself, the others compose it; but if a member of one family is slain by the member of another, or otherwise injured, the quarrel is taken up by the respective families, irrespective of right or wrong. Retaliation is the immediate impulse; homicide is offset by homicide; robbery by robbery; an eye for an eye and a tooth for a tooth is the maxim of action. We are not to suppose that all 3° Law, Its Origin the members of a family welcomed the opportunity which an offence given by one of its number afforded to engage in strife with another family. On the contrary, these quarrels were so likely to result in bloodshed that they were dreaded, and the com- mission of an unprovoked injury which would com- pel the kinsmen of the guilty person to risk their lives in his defence was an injury also to the family to which he belonged. The family might punish him themselves, or even abandon him for punish- ment to the family he had wronged. As the tribe becomes more settled, and industrial pursuits become more established, bringing with them some accumulations of property, some division of labour, some trade and commerce, and conse- quently some increased complexity in social life, the necessity for increased peace and order becomes more deeply felt, and the want can be supplied only by the adoption of some more peaceful method of redressing grievances. So long as there was little or no property, and disputes arose more from mere passion and accompanying violence, the intervention of the chieftain, or the priesthood., was probably the best agency for' bringing about peace and order; but on the springing up of industry with its ac- companying contractual relations and accumulations of property, new customs arise, and with them more distinct conceptions of what is due to one from another as the reward of service, and the want necessarily becomes felt of some more intelligent and just decision of controversies. When men enter into contractual relations with each other, expecta- Growth and Function 31 tions are immediately raised, and when these are disappointed trouble arises until some satisfactory redress is afforded. This can come only from a decision by those acquainted with the grounds of the dispute and able to decide it in such way as to afford reasonable satisfaction; in other words, from a decision by experts. What is demanded at this stage of human progress is, not some new law, for the conception even of legislation does not as yet exist, but some properly qualified judge, and some method of compelling the appearance of an adversary before him — that is to say, a method of procedure. An existing dispute between men must, of necessity, consist of a difference of opinion concerning the conduct which one is entitled to expect from the other, and the expectation of either party can be justified only by an appeal to what he supposes to be the existing rule or custom applicable to the case. Neither party will assert a new rule, for that would, of itself, condemn him. Accordingly we find that the first step in the way of improving the adminis- tration of justice is to establish a tribunal for the sole purpose of determining controversies. This is the beginning of Procedure^ and "procedure pre- supposes an already existing law, or something standing in the place of law, which is to be adminis- tered by it. This stage of society, that of increasing industry with its accompanying trade and commerce, is also the one in which writing becomes necessary, and in which it is first found to be employed. Judicial tribunals could not, indeed, be so established as 32 Law, Its Origin to effectively answer their purpose without the aid of writing, and therefore I shall roughly regard the creation of such tribunals as nearly contempora- neous with the introduction of the use of writing, -} which, I believe, will be found upon historic inquiry to be probable. A conjecture of Blackstone is not unnatural that the dominance of custom in the governing of con- duct at the period under consideration may be owing to the fact that there could be no written law until the art of writing had been acquired, and the existence of some very ancient codes, like the laws of Solon, may suggest that as soon as men had discovered an instrumentality by which they could frame laws they employed it for the purpose of providing themselves with more fixed and certain rules of conduct than mere custom could supply. But the conjecture seems not very probable, inas- much as writing is supposed to have been known about 1500 B. c. — many centuries prior to any authenticated instance of its use in the making of laws. It may, however, have been employed for purposes the knowledge of which has not come down to us; but the important question is, whether it was employed for the purpose of supplanting cus- tom. II must pause, therefore, to scrutinise tKeTear- liest well-known instances in which writing was employed for the purposes of legislation, with the view of seeing how far, if at all, this may have been the object, or whether custom still remained, not- withstanding this new instrumentality, the only source from which rules of conduct could be de- Growth and Function 33 rived. We may feel sure that if writing were ever in early times employed to supplant custom, that purpose would clearly appear in the most ancient codes of which we have any knowledge. Omitting any reference to the Code of Draco, of which we know little or nothing, the first consider- able employment of writing in the composition of laws was in Athens by Solon some time about the year 594 B.C. For a long period prior to this, Athens had been a large populous State, and had reached a high stage of civilisation. Its citizens were ex- tensively engaged in commerce and in various forms of industry, and a regular government, with an archon, or archons, for chief rulers, had existed for several centuries. It was the age which just preceded the most glorious period of Grecian history, the period of Thermopylae and Marathon. Moreover, intellectual cultivation had advanced to a con- siderable elevation. Thales was already indulging those philosophical speculations which two centu- ries later were carried forward with a power and subtlety never since surpassed, by Socrates, Plato, and Aristotle. In such a society, with such pur- suits, the law of contract must find a most important place, and there is indeed occasion for a juristic system approaching, though not reaching, in extent and refinement that which we find in the advanced period of Roman civilisation, or in the cultivated societies of modern times. What, then, was the principal motive which in- duced the people of Athens, under the guidance of Solor^ to seek to embody their will in written lan- 3 34 Law, Its Origin guage ? Was it that they believed that a law existing only in the public consciousness and evidenced only by custom, was insufficient for the ordinary pur- poses of civil society at the stage which society had then reached, and that it was expedient that all their customary rules of a juristic nature should be reduced to written formulas, or was it that there were ^special exigencies causing disturbances in society and bringing customs into doubt and conflict^ and making it necessary, in some measure, to recon- struct the social and political organism on some^ basis of reconciliation? We shall find that the latter of these two questions suggests the true answer. Following what has just been said of the condition of Athens at the time, we may add the observations of an intelligent scholar upon the same points: "It was a time of fermentation in society; Psammetichos had opened the Nile region to the Greeks (B. c. 666) ; the first money had been coined in ^Egina ; navigation took all at once a gigantic stride forward; young adventurers gained in a few years great riches, and those parts of the communities en- gaged in trade took form as a new middle class, and stood defi- antly opposed to the ancient families; property in land was outstripped by movable capital ; around Athens on all sides — in Argos, Corinth, Sicyon, Megara — the old system of things had been broken, the ruling families had been overthrown, and through the downfall of the constitutions single tyrants had come to power, who shone by their riches, employed mer- cenary troops, and pursued a narrow policy of self -aggrandise- ment. In this revolutionary time, spite of all splendor, the ;t>est possessions of the nation were endangered — namely, the '.free citizen class and the sovereign authority of the law."1 1 Ernst Curtius, in Johnson's Encyclopaedia, sub verbo, " Solon." Growth and Function 35 All this indicates conflicts of custom in the in- terior of society, a destruction of that concurrence of public sentiment upon which the stability of custom reposes, and a social conflict which could be repressed only by overwhelming physical force, or by a reconciliation based upon popular assent. Passing to the contents of the legislation of Solon, this view of the condition of society and of the purpose of the new laws is confirmed. Solon played the part of mediator between the contending parties. He lightened the burdens of the debtor class, enabling the poor to escape from the grinding tyranny of their creditors, took the political power from the ruling families which had theretofore exer- cised it, gave all citizens a share, though not an equal share, in the enactment of laws, redistributed the burdens of taxation, and generally gave a more democratic form to the political constitution of the State. All this imports a sudden settlement of pre- existing conflicts in popular customs, and one which can be effected in two ways only, either by over- powering force, or by social agreement, and in the latter case written law seems to be a necessary instrumentality. By no other means can the points agreed upon be defined by a permanent memorial to which appeal can be made at all subsequent times. Turning now to the history of legislation in ancient Rome, we find that the earliest considerable ;iployment of writing was in the enactment of what is known as the Twelve Tables, in the year 451 B.C., the 3O2nd year of the foundation of the 36 Law, Its Origin city. The condition of Rome at that period resem- bled in many particulars that of Athens at the time of the enactment of the Code of Solon. Rome was a large and populous State with a government in many respects highly organised. It had a population of several hundred thousand, a large commerce, and a consequent minute division of employments and large aggregations of wealth. There was a large debtor class which shows that in the course of social devel- opment the stage of contract had long been reached. In every rude society from the first beginnings, the governing power, together with the administration of justice, is lodged either in a king or with the older and more prudent members. These, as society ad- vances and wealth accumulates, become the most wealthy, and the powers of government, including the interpretation and enforcement of the customs, are naturally wielded more or less in favour of the interests with which they are lodged. It was so in a high degree in Rome, and this condition had been the source of dissatisfaction and unrest for a long time prior to the adoption of the Twelve Tables. The royal government, which under seven succes- sive kings lasted two hundred and forty years, had ^ been overthrown and a government somewhat re- publican in form, with Consuls as the chief magis- trates, established in its place. The Consuls were, after a few years, displaced by a Dictator, and his authority was soon afterwards transferred to a body of ten called Decemvirs. The people were divided into two principal classes, the-patricians and_the plebeians, and the constant complaint of the latter Growth and Function 37 was that the powers of government, both executive and judicial, being lodged with the patricians, were exercised in favour of their own order and to the oppression of the plebeians. The latter class had become so powerful and its frequent rebellions so dangerous that its demands could no longer pass unheeded, and the Decemvirs were charged with the duty of reorganising the political government and framing such laws as would reconcile the conflicting elements of the State. They were engaged in this work for two years, in the course of which they sent a commission to Athens to examine the govern- mental framework and the laws devised by Solon, and their work in the form of Ten Tables was accepted, and, with two additional ones, subse- quently adopted, remained, professedly at least, the basis of the Roman jurisprudence until the age of Justinian. The use of writing had, we may safely presume, been carried from Greece to her colonies soon after she had acquired it, and would thence pass easily to Rome. It must have been known in that city for centuries before the Twelve Tables, and there is reason to believe that during this period it was occasionally employed in the enactment of some particular laws, but the Twelve Tables were the first instance of its employment upon a considerable scale. The important features of this review of the early legislation of Athens and Rome, to which I wish to call attention are these: First, that a high degree s of social advancement, displaying large populations, 3$ Law, Its Origin division of employments, development of industry and commerce, and highly organised governments, was reached and maintained without the employ- ment of written laws; second, that the chief motive of the first resort to such law was internal conflict among the different elements of the State threaten- ing revolution, a conflict which could not be ter- minated except by the complete subjection, by overwhelming force, of one of the contending par- ties to the other, or by the faithful observance of a reconciling agreement. Such an observance would scarcely be possible unless the terms were perma- nently embodied in written law. Custom is effectual only when it is universal, or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist. I now return from this incidental consideration of the early employments of writing for the purposes of legislation to the further treatment of that stage of social progress marked by enlarging industries and consequent efforts to substitute in place of the violent redress of injuries the peaceful method of judicial tribunals, and the steps successively taken until the establishment of such tribunals. Any exact tracing of the progress, or of the order, in which the successive steps were taken would be impossible. In the civilisations of Greece and Rome the process had become far advanced at the time of the beginning of the known history of those nations ; nor does the history of the States of modern Europe throw more than a feeble light upon the precise nature of this early process; but if we put together Growth and Function 39 the scattered pieces of information which are still within our reach, and draw from them their full significance, we may trace the general features of the progress, and this is all that is necessary. The main difficulty in this study is to rid ourselves of the notion that in these remote times men had the same objects and interests in view and were moved by the same desires as we are conscious of ourselves. We may do something towards removing this ob- stacle by attempting to form a rude picture of early society, beginning with barbarian times, times even preceding those of increased industry, such a picture as all of them present with greater or less similitude, but which is best furnished to us by the accounts we have of the German tribes, our own ancestors. We are to imagine a tribe of men living in fixed habitations, and subsisting mainly by the rude cultivation of the earth. Substantial equality among the freemen is to some extent broken by the presence of some elevated above the others by superior prow- ess, or character, or accumulations, or the possession of priestly qualities, but there is a head of the tribe, an elected chief or king. There is no permanent political organisation for any public purpose. There are meetings, some regular, and others special, of the freemen, at which matters involving war or peace with neighbouring tribes and any other im- portant matters interesting to the whole tribe are considered and determined. There are many slaves consisting chiefly of captured enemies, and their descendants, and the more powerful members of the tribe are usually those having the largest pos- 40 Law, Its Origin sessions of land and slaves. Property and marriage exist. The unit of the tribe is the family, the mem- bers of which live together and stand by each other. These institutions rest upon custom alone. There is no ethical conception of a right except some vague belief that some unseen power will punish one who violates custom. To plunder from the members of any neighbouring tribe is no crime. Custom, as the word itself imports, is generally obeyed, but there are frequent departures from it, and consequently much violence and turbulence among tribes com- posed of the more warlike men; but among the more peaceful groups the observance of custom may be even more complete than obedience to law in modern societies. <^The only security for person or property among those who are warlike is to let each man know that he can invade neither without losing his life or suffering punishment at the hands of him whom he injures. The path of safety is to follow custom. /When this is done expectation is not dis- appointed and resentment is not provoked. Tur- bulence and strife arise from many causes; but the principal ones are: (i) the mere love of fighting, the disposition to quarrel upon slight offence, the pas- sage from words to blows and weapons and con- sequent homicide. The family of the slain are angered and seek revenge upon the slayer who takes refuge in his own family, and they stand to their arms in defence. A pitched battle may ensue, and other lives be sacrificed, and a family feud occasioned which may not be cured for a generation. (2) Disputes about land. Titles, resting much upon 1 Growth and Function 41 occupancy or tradition, are subject to much doubt. One man charges another with being a trespasser and demands that he leave the disputed territory. A refusal is nearly certain and a fight to death ensues. (3) A man is found in guilty intimacy with the wife or daughter of another. An injury like this provokes instant vengeance. We have survivals in our own country at the present time of these ancient modes of redress. But the progress of industrialism is not consistent with the retention of these methods. The man who has begun to long for increased possessions does not wish to keep himself and his retainers in arms to defend them, and he comes to dread the personal peril; and the one who labours has less leisure for quarrel. The desire for peace is more and more felt, but it must be "peace with honour." It must not be allowed to be thought that an injury can be inflicted with impunity. The point is how to get out of the trouble without fighting. The way to attempt it is obvious enough; it is not to begin fighting; in other words, to parley, and parleying means negotiation and possible compromise. This usually involves calling in the aid, or accepting the proffered intervention, of the bystanders or other third parties, and thus the efforts of many are enlisted to compose the strife. If a man has been slain in mutual combat provoked by both parties, the re- sentment is not so deep; but the family of the victim have a feeling that the slaughter of one of their members must be avenged. If they may save their honour without retaliation they are satisfied. 42 Law, Its Origin The payment of a sum of money or delivery of other property means that the aggressors have purchased peace from the friends of the victim and thus ac- knowledged their power. Accordingly, we find a custom established everywhere in barbarous society of the payment of a certain fixed sum by the family of one who has slain another to the family of the victim by way of compromise for the injury. It would be nearly true to say that we know of no race or tribe of men in the past who, or whose ancestors, in the case of civilised people, did not have this custom, or any now barbarous tribe which does not have it. We do not indeed find it in existence at the time of the earliest historical accounts of Greece and Rome which have been preserved to us; but those accounts do not reach back to the really barbarous times of those nations. The Laws of Solon and the Twelve Tables of Rome were regulations for peoples who had for centuries emerged from a state of barbarism, but we can not doubt that if light were thrown upon the antecedent periods we should find that this method of composing strife and preventing blood- shed preceded, among them, the selection of magis- trates to declare and execute law.1 There are in the poems of Homer many evidences that such was the fact, and lexicographers inform us that the Greek word voivTJ and the Latin poena originally signi- fied the price, or composition, by which crime was expiated. The Germans, our own ancestors, were found in this condition of barbarism within historic times, and Tacitus informs us that all crimes were iKoenigswarter, D6velop$ement de la Soctite Humaine Part ii., ch. i. Growth and Function 43 compounded by the payment of cattle.1 The an- nals of the Jews do not carry us back to the times when they were barbarians, yet that the practice of compounding was once prevalent among them is manifest from passages in the old scriptural writings.2 Among the savages and barbarians of our own day, the custom of individuals or families to avenge their own wrongs and to accept compensa- tion as the price of forbearance may be said to be universal. Mr. Alexander Sutherland, in his interest- ing and valuable work entitled ' The Origin and Growth of the Moral Instinct, has especially pointed out the payment of compensation for violent injuries as being the first step from the indulgence of retalia- tive vengeance towards a more peaceful redress. He says: ''Somewhere about the level of the higher savages, or more generally of the lower barbarians t the increase of settled life, and the possession of huts and crops liable to destruction in war, produce a jgreaier__ appreciation _of_ the ad Feuds are now avoided by the payment of com- pensation. According to Morgan (League of the Iroquois, p. 331), if an Iroquois committed a murder, a feud was at once established between the two families, unless, as was sometimes done, the relatives of the murderer refused to stand by him; or unless, as was far more often the case, they agreed to make a payment in wampum or other property, to the family of the murdered man. Galton tells us that among the Damaras a murder will commence a feud unless the family of the mur- 1 Gertnania, 12. J Num. xxxv., 19. 44 Law, Its Origin derer pays two oxen to that of the person slain. Of the Maoris, Thomson says (i., 123) : * Revenge was one of a chief's first duties ; an insulted New Zealander would rush to his tribe and relate the injury he had suffered; then, if payment were refused, war might ensue. *re Land and women were the chief causes of strife. They were cautious of rushing into wars, and in every dispute mediations were gladly accepted until blood was actually shed. Every offence but murder had some pecuniary equivalent. "Guinnard states that the Patagonians (or Arau- canians) ' put to death the enemies of a slain person, unless they agree to pay a heavy ransom,' (p. 179) and among all the more primitive negro races, with no exceptions that I have noticed, murder can be atoned for with a sufficient payment. Brookes says that among the Dyaks the ordinary compensation for murder is worth about eight pounds sterling; and St. John says that adultery is compounded for by a customary fine to the family that has been aggrieved. Some barbarian races, more vindictive or less avari- cious than others, are with greater difficulty induced to forego the blood penalty for a payment; but there is none, so far as I know, in which it is not more or less customary to accept compensation and avoid a feud." Mr. Sutherland's book, which fell under my notice when I had nearly completed these lectures, contains a very instructive chapter on "The Growth ,V"of Law"1 from which the above passage is taken - and in which I am glad to find a confirmation of my own views. 1 Vol. ii., p. 163. Growth and Function 45 Prof. Cherry, in his lectures upon The Growth of the Criminal Law in Ancient Communities, com- pares the stage of barbarism in four ancient peoples widely separated in time and geographical situation, and finds in each of them the same practice of re- dressing injuries by private retaliation, or self-help, tempered by composition on the payment of a ransom. These four peoples, some of them em- bracing large parts of the human race, were the ancient Irish, the Hebrews, the Mahometans, and the early English. He might have included in the range of his observation numerous societies of bar- barians now living in which the same methods of repressing internal strife are employed. But the evidences are numberless, and the fact may be regarded as universal and admitted.1 No- where does the practice appear more conspicuously than among the barbarian conquerors of Western Europe, including England. That it was the only, or principal, form in which violence and crime were repressed is manifest from the fact that the Laws of the Barbarians are, to a very large extent, occu- pied in enumerating the various compensations which are to be paid for injuries done to person or property, and the Laws of Alfred present the same feature. But it must not be supposed that the custom of accepting compensation, even when the amounts were fixed by what was called the law, such as the •* * Laws of the Barbarians and of Alfred just mentioned, really amounted to what is properly called law. 1 The chapter in Koenigswarter contains the fullest information. Part ii., ch. i. 46 Law, Its Origin These so-called laws were not laws in the modern sense of written law — that is, commands which would be enforced by the State in a formal manner. Of such law there was at the time none, because there were no tribunals to declare, interpret, and enforce it. The very fact that the compensation was resorted to as the only means of preventing violence and bloodshed is complete proof that no other law than private., vengeance or self-help Ifltny tribe or people nad the^owerto compel the acceptance of compensation for murder, it would have had power to prohibit murder directly and to enforce the prohibition by effective punish- ment. The object of the laws fixing the amount of the wergild was to supply an indefiniteness of custom. Inasmuch as the compensation was the fruit of a parleying between the combatants, there would be contention about the amount, and such amount would exhibit wide differences according to the nature of the offence and the character of the parties. Where there was a willingness to accept a compensation there would still remain a difference about the nature and amount of it. The aggrieved party could honourably accept an amount provided it was fixed by some one other than his adversary. The laws just mentioned assumed to determine the sums for every description of offence, and this de- cision would be eagerly accepted by a party who wished to save himself the peril of deadly strife, and thus the amounts, with the aid of the laws, would come to be established by custom. Compen- sation, therefore, was no certain preventative of Growth and Function 47 violence. It was the recognised right of the injured party to refuse to accept it, if he chose; and what would then happen? Manifestly as the attempt to prevent a fight had failed, it must take place, and the parties must stand up for it. The right of a party to redress an alleged wrong by his own arm is evident from the fact that when all efforts for a pacification had failed, rules were made for conducting the inevitable fight. This was the origin of the judicial trial by battle, of which Gibbon says: "It was not as a mode of proof that the combat was received, in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury." However, with the progress of indus- trialism the effort to prevent violence would increase, and if an injured party refused to be pacified after his adversary had offered the customary redress, the remonstrances of the fellow-tribesmen would be employed, and if these failed, intimations, or a plain declaration, would follow that the tribe was determined upon peace, and if the obstinate party persisted in his purpose, he would encounter a force which would render the strife dangerous only to himself. He must do something, and the question is what he shall do. Thep©4s-but one^answer to this : he must leave it to sojne third persoh to say what he shall do, and this is drbitrati&i£j^&& sole possible resort which the parties to a deadly strife can have, and preserve the point of honour, when one refuses to accept the redress offered by another, and is made aware that persistence in his purpose to take revenge upon another will cost him a sacrifice he is not 48 Law, Its Origin willing to make. This is a lesson which has been taught to contending individuals or families through many ages in the past. Nations are beginning now to learn it. The person or persons selected as arbitrator or arbitrators would of course be of the class supposed to be grave, impartial, and familiar with the customs, for it would be expected that the decision would be based upon comparing the conduct of the disputants with the established customs. This arbitration of quarrels is a near approach to the establishment of a court. All that needed to be added to constitute a court was to create permanent arbitrators and compel disputants to keep the peace and provide a mode by which they should be forced to submit their differences to the decision of the tribunal. That judicial tribunals came to be established by taking this step is open to little doubt; but a long period was occupied in reaching the end. Why was it that an expedient apparently so obvious was not more speedily adopted ? Simply for the reason that it is a direct advance abolishing self-help by sub- stituting public help ; and this requires the conscious action of society as a corporate whole. It must have a corporate will and a corporate power — that is, it must become a living intelligent organism. Some individual, or some selected individuals, must be capable of commanding the physical force of the body of society, must be able to contribute methods of compulsory arbitration, and have the power needed to enforce them. This condition will not arise until the demand for it becomes sufficiently Growth and Function 49 strong, but the demand will come as soon as the industrial spirit seeking increased possessions and more perfect peace in order to increase them, and to hold them, has created the social conviction of a necessity for the improvement. The step may be facilitated by accident. War with neighbouring tribes may bring forth a military chief who will be able to make his power permanent and thus erect himself into a king or civil chieftain, or a civil coun- cil may be voluntarily chosen, and a head thus given to society capable of discerning and supplying public needs; but such as these can not originate out of their own heads a scheme of improvement and impose it upon society regardless of custom. There are no Law-givers such as are reverenced in history. Moses, Lycurgus, and Solon took the cus- toms of their time, and gave them form and furnished better methods of securing their enforcement. Solon, according to Plutarch, when asked why he did not give the Athenians better laws, answered that he gave them the best they were fitted to receive. Niebuhr informs us that "no one in the ancient world took it into his head to make a new system of laws. In the Middle Ages, also, a legislation merely springing from the will of a law-giver is scarcely to be traced anywhere"; and the same view is well expressed by Coulanges, who says "that legislators did not exist among the ancients. Nor did ancient law originate with the votes of the people. In early days the laws present themselves as something even then venerable and unchangeable."1 ' Coulanges, The Ancient City, p. 250. 4 50 Law, Its Origin For obvious reasons, as already observed, the passage from self-help, including arbitration, can not be traced in the history of Greece or Rome. At the times to which our earliest accounts of those nations reach, courts of some description were al- ready established, the age of barbarism having been long anterior, but the description of the Legis Actio Sacramenti, the most antique form of Roman pro- cedure, and the parent form of all subsequent civil actions, as preserved to us in the Institutes of Gaius, bears upon its face the marks of its origin. The form of proceeding is thus described by Prof. Maine: ''Two armed men are wrangling about some dis- puted property. The Praetor, vir pietate gravis, happens to be going by, and interposes to stop the contest. The disputants state their case to him, and agree that he shall arbitrate between them."1 The Legis Actio Sacramenti was compulsory, but the record in it, embracing the above statement, clearly shows that the Praetor, the Judge, was the suc- cessor of a private citizen to whom two disputants had voluntarily submitted their difference. The corresponding stage in the social history of Western Europe is, for similar reasons, enveloped in equal obscurity. History affords rare and obscure glimpses of the details of life, although there are large masses of documentary matter still unexamined which would probably furnish much additional light. But such evidences as are available agree in making it probable that the first step in repressing the private redress of wrongs among Western Euro- i Ancient Law. p. 376 Growth and Function 51 pean peoples was in bringing about an arbitration of quarrels. Prof. Maine has pointed out a very significant correspondence between the functions of the Druids as described by Caesar in his Commen- taries on ike Gallic War and those of the ancient Brehons as they are revealed in the translations of the ancient so-called ''Irish Laws" published not many years ago. Caesar informs us — I give the language of Prof. Maine — that the Druids were supreme judges in all public and private disputes; and that, for instance, all questions of homicide, of inheritance, and of boundary were referred to them for deci- sion, . . . that the Druids presided over schools of learning to which the better youth flocked eagerly for instruc- tion, remaining in them sometimes (so he was informed) for twenty years. Prof. Maine further says, referring to the newly published "Law-Tracts," relating to the ancient laws of Ireland : The extensive literature of law just disinterred testifies to the authority of the Brehons in all legal matters, and raises a strong presumption that they were universal referees in disputes. Among their writings are separate treatises on inheritance and boundary, and almost every page of the translation contains references to the ' eric ' fine for homicide. We have here convincing proof that in the widely separated divisions of the Celtic societies at sub- stantially the same social stage there was a class of persons who made the customs of their peoples the subject of especial study and were habitually em- ployed as arbitrators in disputes. This employment of arbitrators must have been voluntary, for there 52 Law, Its Origin was, at the time, no organised society capable of enacting laws or contriving other social arrange- ments. The Brehon laws, so-called, do not purport to be the enactments of any public authority, but collections of the legal maxims and rules adopted by the Brehons in performing the judicial functions voluntarily bestowed upon them. The fact that among these ancient peoples there were classes of persons devoting themselves solely to what may be called the law — that is, the rules and customs observed by their tribes, proves that there was a demand for their knowledge and services as the arbiters of dis- putes, and that such demand had existed for long periods. They could have no authority except such as was derived from the assent oFdisputants, and such assent must have been habitually given; for otherwise there would not have arisen the demand -Jior such a class. The custom, therefore, was brought about of displacing the bloodshed and violence of self-help with the peaceful jnethod of arbitration^ The fair inference is that all the well disposed of the tribes resorted to these customary methods of settling disputes, and that those who refused to do so were those vicious and depraved members who habitually defied custom — that is, the lawless class. Arbitration could not be literally compelled, for its very existence implied that there was no organised public authority which could compel anything; but custom supplied a powerful force in bringing it about, and other com- pelling influences were added to custom. Among the Celtic tribes described by Caesar, if a disputant refused to obey the decision of a Druid he was, as Sir Growth and Function 53 Henry Maine gathers, excommunicated, by which we are to understand that he was excluded from the pro- tection and shut off from the fellowship of his tribe, and this substantially made him an outlaw, which was regarded as the severest of penalties. Where the rule of the priesthood is strong, as it was among the tribes of Gaul, and must necessarily be where the priests exercise judicial functions, this depriva- tion of privileges operates as a heavy punishment. The Brehons do not appear, at least after the con- version of the Irish to Christianity, to have been a priestly class; but they were always closely allied to the chief or king of the clan, and could bring their influence to aid in enforcing their decisions. There is less evidence of the settlement of quarrels by arbitration among the German tribes and the other ancestors of the English people. There was originally among the Germans what stood for a rough public administration of justice by those popular assemblies which seem to have been uni- versal among those tribes. Our knowledge of their customs is derived mainly from the Germania of Tacitus, and he informs us that these assemblies took cognizance of all judicial matters. There could have been little uncertainty in the enforce- ment of the judgments of these bodies. Their authority was unlimited. Every freeman was bound to be present, and could be obliged to answer any complaint. The rude clashing of shields and brand- ishing of spears in the hands of the judges, which announced a decision, sufficiently indicated that it must be unhesitatingly obeyed. It may well be 54 Law : Origin, Growth and Function imagined that such a body would listen to no trifling complaints, and that self-help must still be the main reliance for defence against minor injuries, and also that the parties to any important dispute who pre- ferred not to fight would exhaust every means of pacification, including arbitration by a third person, before they provoked the rough justice of armed warriors. The German conquerors of England of course carried their customs with them, and we find the Court of the Hundred, the legitimate successor of the popular assembly, the first well-known judicial institution 'in the history of England. It there exchanged its tribal for a territorial jurisdiction, and until the further integration of society under a more complete recognition of royal power it was the chief method for avoiding the violence of self-help by the substitution of judicial action. But the rude instrumentality of a popular court constituted of the great body of freemen, is a very insufficient guaranty of that peace and order which advancing industrialism requires. It may punish great offences, but the minor wrongs will still be left unredressed, except by private punishment, and while this may moderate and tend to repress the worst forms of violence, no general peace can be brought about except by pro- ducing peace in small localities, and this can be done only through the instrumentality of a political organ- isation of localities providing means by which quar- rels and disturbances may be prevented; in other words, courts must be brought into existence, and voluntary arbitration be superseded by the exercise t of compulsory jurisdiction. LECTURE III IN giving a general view of early judicial tribunals, I can best direct attention to England, partly because I have never studied this part of the history of other nations, and partly because the course of social progress elsewhere has not, as I suppose, in substance been different from that exhibited in England. To make this view intelligible we must glance at the general condition of society at the time. The tribal organisation of the Anglo-Saxon con- querors, such as had obtained in the forests of Germany, had become superseded, and that equality in the holding and enjoyment of the land which was one of the features of that organisation, had passed away with it. England was a conquered country. It had been acquired by the skill and valour of bands of warriors, and a great part of the land, as happens in all such cases, was awarded to the vic- tors in proportions assumed to correspond to the various degrees of rank and worth. The leader of the host became the king and received the largest share; next came those of noble birth, or superior prowess, who composed his immediate retinue, the thanes or nobles, to whom extensive awards were made ; and lastly, the common warriors. These, with the remnants of the vanquished Britons, became the people of England. At first there were several king- 55 56 Law, Its Origin doms, but these were eventually consolidated, as a consequence of war, into one. In place of the tri- bal organisation a territorial one was established em- bracing the whole kingdom, and this constituted a unity of which the king was the head. His power did not, however, like that of a Roman emperor, ex- tend to the making of laws. The traditions of the personal independence of the German tribes still remained, and no unacceptable authority under the name of law could be enforced by the king against the powerful thanes, the great landholders of the kingdom, without the aid of a standing army such as he did not possess. Industry, although it had be- come greatly extended beyond that of a barbarian tribe, was still very limited, the principal occupation being that of the cultivation of the land. Of educa- tion and knowledge there was scarcely any. England had become Christianised, and with it the author- ity of the Catholic Church had been extended over the land, and whatever there was of learning at the time was mainly to be found among the members of the priesthood. The actual condition of society was principally determined by the nature of the owner- ship of the land. The large proprietors cultivated large portions, and committed the possession of other large portions to tenants for cultivation by them, for rents or other services. Those who had no land, vil- leins, or slaves, were the tillers of the soil. Any such occupation of land is essentially feudal in its nature, although it may lack the precise forms which strict feudalism exhibited as it developed itself on the con- tinent. The land-owners were the men of independ- Growth and Function 57 ence and power. The landless were dependent upon them for their support, and for nearly everything else. Their condition approached that of slavery, and many of them were slaves. All the responsibili- ties of society devolved upon the landholding class, and it really ruled whether with or without the instru- mentality of courts. The large landholder exercised an authority of a paternal nature over his tenants and workmen; and when the rigid feudal system became established, he wielded it through the instrumentality of a seignorial court, such as the court baron in Eng- land after the Norman Conquest. Violence and its accompanying crimes, theft and robbery, such as a society advancing out of barbarism first seeks to repress, were committed principally among the lower classes, and the business of the courts, such as we find established, consisted in efforts to repress and punish these. The same condition which has been found in the early history of all known nations was exhibited here. As has been observed by Prof. JMaine, the first step in the public enforcement of law is the constitution of some sort of a tribunal with something in the nature of a prp.aedurfiLfqr the pun- ishment of offences. These rude tribunals we find established in the earliest history of England, in the principal divisions of the territory. There was the Court of the Hundred, and the Court of the County, and perhaps other petty tribunals. Of the precise origin of these courts we have no knowledge, and but little of their actual constitution and proceedings. We know of no legislation or other public act creat- ing them. Certain persons, the sheriffs and other 58 Law, Its Origin officials and the whole body of free landholders, were required to attend them, and were called the suitors. They constituted the judges. Over these tribunals the King exercised some supervision, exerted princi- pally through the sheriffs, who were his officers. There was little of purely private litigation, for there was as yet but a feeble development of civil rights, and this little mainly arose out of disputes concern- ing the possession of land. Other business than that of a judicial nature was transacted at these courts, such as the making of transfers of land. There were no professed lawyers attending them, and their pro- ceedings were extremely rude and simple. Besides these local tribunals, the King himself held a court. The head of a State must necessarily be j£, the fountain of justice, and, after the establishment The King's Court, as we first find it, was held at no of courts, the final arbiter in all important disputes. •\ particular place, but wherever he might be. It was held by the King himself, or by some high official deputed by him. It punished any crime committed in his presence or upon his lands, and it tookTcog- nisance of all controversies voluntarily submitted to him. The great nobles and landholders were not inclined to submit their disputes to the rude local tribunals held by ignorant men, but the King's Court possessed an authority and dignity which com- manded their respect. No radical change in the constitution of these courts was effected at once by the Norman Conquest. The introduction of the feudal system brought with it the establishment of the baroniaf"cburts, and the Growth and Function 59 privilege of holding these and courts of the manor was very often embraced in grants of land by the King; but the jurisdiction of these was confined to the particular manors or baronies, and to disputes between the tenants living upon them relating to the land and probably to some petty offences . The important question which concerns us is, What was the law administered in these tribunals and where was it to be found ? The answer is very plain. ;< It was custom. There was as yet no legislation, and consequently no written jaw. Nor were there any i judicial precedenls^wEch could be invoked, nor any treatises of writers of greater or less authority con- cerning the law. Some of the great ecclesiastics at- tached to the court may have had some knowledge of ecclesiastical law and through that, of the^Roman , but this could be of but little direct use Tiftne sposition of the matters brought before tribunals other than the King's Court. All complaints by one man against another, whether of a civil or criminal nature, arose from the fact that something had been done contrary to the complainant's expectation of what should have been done; and as every man expects that others will act according to custom, the complaint would be in fact, if not in form, that an act contrary to custom had been committed to the injury of the complainant. If the party against whom the com- plaint was made denied the accusation, he necessarily asserted that what he did was in compliance with custom. The dispute therefore necessarily turned, if the act was admitted or established, upon the ques- tion what the custom was, and these rude tribunals 60 Law, Its Origin held by the principal and most intelligent men were well adapted to determine that question. The judges in these acted in accordance simply with their sense of what was right, which was necessarily determined by what they thought to be customary. The great institution of property already existed, not by virtue of legislative creation, but it had grown up as a consequence of the customary action of men long before the establishment of any court. The goods and chattels which any man held he was permitted to hold in peace, because such was the custom, and because every one knew and felt that if he should attempt to take them it would cost him a fight, and an unsuccessful one, inasmuch as all the social forces, rude as they were, would be found on the side of the possessor. So also with the security of the person. Men refrained from attacking and injuring others,be- cause such was the habit, and an infringement of it would bring punishment upon the offender. And the same thing was true of the institution of the fam- ily and the rights growing out of that. None of these rights grew originally out of the establishment of courts, or any other exercise of governmental power ; on the contrary, courts came into existence for the pur- pose of affording better protection to them. Custom, therefore, at this stage of social progress is, as we have found it to be in the preceding stages, the only law. This view is confirmed by the legal antiquarians who have sought to discover by direct inquiry the original sources of our law. Blackstone says, speak- ing of the early laws by which society in England was governed : Growth and Function 61 " I therefore style these parts of our law leges non scripts, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and im- memorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that which is tacito et illiterate hominum consensu et moribus expressum" 1 He further informs us that "about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts, i. The Mercen-Lage, or Mercian Laws, which were observed in many of the midland counties, and those bordering upon the principality of Wales, the retreat of the ancient Britons ; and therefore probably intermixed with the British or Druidical customs. 2. The West-Saxon-Lage, or Laws of the West Sax- ons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the Laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish Law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people." 2 Out of these three laws, Roger Hoveden and Ra- nulphus Castrensis inform us, King Edward the Con- fessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom, and the author of an old manuscript chronicle assures us like- wise that this work was projected and begun by his grandfather, King Edgar. And, indeed, a general digest of the same nature has been constantly found » Bl. Com., bk. i., p. 64 ' ibid., p. 65. 62 Law, Its Origin expedient, and therefore put in practice by other great nations, which have been formed from an as- semblage of little provinces, governed by peculiar customs."1 i Blackstone further says : ' ' These' ' (the laws or cus- toms above mentioned) "are the laws which gave rise and original to that collection of maxims and customs which is now known by the name of the--common law. j^ I do not concur in the opinion of Blackstone that our present common law rests entirely upon ^these ancient customs, but I cite the passages to show that, in the opinion of a profound student of the his- tory of our law, these customs were the only law ad- ministered or known by the courts at the time of their establishment. The next period to which I shall call attention is that embracing the improvement and perfection of Jtegal tribunals. I need not say that this work of improve- ment must proceed pari passu with social progress. That progress is manifested in increasing peace, order, and industry. Such increase involves new forms of conduct, new conceptions of right, and demands bet- ter methods of legal enforcement, and such better legal methods in turn react upon, improve, and ad- vance the conceptions of right. There were several modes in which these tribunals in England were improved and perfected. The im- provement, of course began at the top, and the impulses received there were communicated through- out the system. In the first place, itinerant justices came to be appointed by the King, who journeyed * Roger Hoveden, p. 66. 2 Ibid., p. 67. Growth and Function throughout the realm, and took cognisance of the proceedings in the courts and of the sheriffs and other officials. These judges were selected from the reti- nue of officials surrounding the King, and were often men of considerable learning and skill. They com- pelled a better performance by the inferior courts of their functions, and served to give instruction to the judges holding them. In the next place, the King's Court itself, held by the most learned men of the time, some of whom were of really superior abilities, con- tinually enlarged its sphere of action by assuming a larger original jurisdiction over controversies and developed into branches which eventually became the several courts known in later times as the Ex- chequer, King's Bench, and Common Pleas. What- ever was done in the King's Court was everywhere recognised, followed, and obeyed, and what was called the custom of the King's Court became everywhere accepted as law. Again, the advance of society con- stantly developed new forms of conduct founded upon new convictions of right, and this created a de- mand^fointiew^ction by the courts in the way of relief. At first the forms in which relief was obtained were very few, and to meet the new demands it was necessary to devise new forms. This was done in some instances by ordinances of the King and his Council, such as the celebrated Assize of Clarendon, out of which arose several forms of action, the princi- pal of which was the Assize of Novel Disseisin. This furnished for one who had been wrongfully ejected from his lands an easy means of recovering the pos- session without resort to force. Such improvement 64 Law, Its Origin was in the nature of legislation. But the principal meafls by which the administration of justice was improved was by the device of the issue of new writs under the authority of the King, through whicrTnew or more complete judiciaLrelief was obtained. Where a sense of right had become clearpEEat is, where cus- tom had become fixed and clear, but there was no form of action adequate to give effect to it, applica- tion was made to the royal authority reposed in the Chancellor. It was there considered, and if it seemed well founded, that is, if the case was one in which relief ought to be granted, a writ was devised which required a court to take cognisance of the case. The issuance of such a writ was practically tantamount to a new determination of law, and the complainant under it received relief upon proof of the facts upon which it was granted. New writs of this character were from time to time issued, each constituting some new cause of action, until the list became exceedingly numerous, and a case could scarcely arise in which an injury could not be judicially redressed. The assump- tion by the Chancellor of judicial functions in the di- rect cognisance and hearing of controversies for which no suitable writ at the common law could be framed completed the system of judicial relief. There was another very important method of pro- cedure which has given to English law, in my estima- tion, a certain measure of superiority. By degrees, the pleadings in actions became so framed as to lead to the clear and separate ascertainment of matters of fact to be tried and determined by a jury. This enables the judge to consider calmly and without Growth and Function distraction what the law is arising upon a given state of facts, and leads to the creation of an orderly sys- tem of the Law of Evidence. In these modes, the principal of which I have indi- cated, the rude tribunals of England and the system of procedure in them were improved until they reached the condition in which we find them there and in this country three centuries ago. The time occupied in this improvement was more than three centuries, but the particular question to which I di- rect attention is — -What was the law and where was it to be found, which these tribunals recognised and enforced during this period? The answer, I appre- hend, must still be the same. It was custom, and custom alone. It must have been so, inasmuch as there was no other source from which the law could be derived. There was no legislation creating law, or next to none. An occasional enactment, like the article in the Great Charter, that no one should be deprived of his freedom without the judgment of his peers, may be found ,*but for the great bulk of the law administered in these tribunals during the period under consideration, no source or authority can be found save that of custom. It is indeed the period in which judicial precedents come to be known and reg- ularly followed, but what was precedent in the first instance? It was simply a judicial declaration custom, and it was follQwe^jaot so much because it was precedent, but because it was satisfactory evi- dence of custom. A precedent is but authenticated custom. It is like the coin of the realm. It bears the public stamp which evidences its genuineness. 66 Law, Its Origin We accept a coined piece of gold, not in reality be- cause it bears the public stamp, but because it is believed, from the stamp, that it contains a certain quantity of gold. Its currency would at once be lost if there were no certainty upon this point. The char- acteristic in early and rude societies — it is so to a much less extent in enlightened society — is that cus- toms, in many respects, are not settled and are in conflict. A judicial decision determines them so far as it extends. If it be a correct one — that is, if the true custom is chosen, (and by true I mean the one most consistent with the largest usage), it is ac- cepted, and conduct is regulated accordingly, and the conflicting practices are discredited and pass away. This is the reaction of the judicial power upon cus- tom, one of the great instrumentalities of social pro- gress. At this stage, therefore, of our investigation, custom is still the law. We now come to the last stage in our inquiry con- cerning what has actually governed the conduct of men in society. This is the stage of full enlighten- ment, such as is exhibited in Europe and the United States at the present day, when the legal tribunals whose progress I have been tracing have reached a condition of high development and efficiency. It is the stage of high development in industry and the arts of social life. Our immediate point of attention is the character of these tribunals and the actual nature of the work they perform. I take up for ex- amination the courts of England and the United States, for the reason that we are best acquainted with them, and because we may be sure that the Growth and Function 67 condition of courts in other countries, however vary- ing from that of these, is not fundamentally different. We find that they are of various sorts, according to the matters of which they take cognisance, and ac- cording as they exercise an original or appellate juris- diction. We find them held by men who have received a special professional education in the law and who possess in general the highest character for ability, learning, and integrity. We find also a class of lawyers of similar education who attend to the interests of the suitors seeking the judgment of the tribunals, and whose business it is to endeavour to persuade the judges of the rightfulness of the conduct of their clients in the cases brought before the courts for adjudication. And we find these courts taking cognisance both of controversies between individuals and controversies between individuals and the State. Their judgments, except when held in suspense by appeal, stand as the voice of the law, and the execu- tion of them is enforced, when necessary, by the physical power of the State. We find among the instrumentalities employed, both by the judges and lawyers, to aid them in their duties, many thousands of volumes of Reports of previous proceedings in the courts of various jurisdictions, in recent and prior times, and other thousands of volumes of treatises professing to expound and make known the law. Looking at the prodigious amount of matter con- tained in all these volumes, of what do we find it to consist? It consists, first and mainly, of statements of the whole mighty multitude of the transactions, that is, of the conduct, of men in their relations and 68 Law, Its Origin dealings with each other, so far as those transactions have been made the subject of controversy during a period extending backwards for centuries, and of the judgments of the courts pronounced thereon; and, secondly, of the statements of the conduct of men in their relations, not with each other individually, but with the general body of society, so far as such conduct has been challenged for illegality, and of the judgments thereon. The matter first described will be recognised as pertaining to what is called Private Law, and that secondly described as pertaining —— — n wii ii to what is Reserving for the moment, the consideration of the matter falling under the head of Public Law, and di- recting our attention to Private Law alone, we find, upon looking into the reasons given for the particular judgments pronounced by the courts, that a large number of them declare that the particular transac- tions described are like, or substantially like, some other transactions which had previously engaged the attention of the courts and had been decided in a particular way, and the like decision is therefore made in the particular case under consideration; in other words, the case is decided by an appeal to known precedent, or to known precedents. Now the prece- dent, or precedents, thus invoked as the ground of decision we know to have been, in the first instance, the approval and enforcement of some existing cus- tom of men having no force or authority except from the fact that it was a custom, and therefore we per- ceive that the decisions made upon the basis of prece- dents were really made upon no other basis than that Growth and Function 69 of authenticated custom. The operation, therefore, of the tribunals has consisted simply in scrutinising the features of the transactions and placing them in some already determined class in which they belonged, the judgment pronounced being nothing but the legal consequence of the fact that they belonged to a par- ticular class. Each of these precedents is, in effect, an assertion that the law arising upon a state, or grouping, of facts, such as that presented by the precedent, is what the court pronounces it to be. This state of facts has been determined either by the agreement of the parties, as where a defendant demurs to the declaration or com- plaint of the plaintiff, or where a jury has found what the fact is. These various groupings of fact, thus presented by the various transactions which have been drawn into question, we find, on consulting the digests and treatises in which they are arranged, to be very numerous, and to embrace examples of most of the ordinary transactions of life, and as they are arranged in classified order in such books, it is easy in most instances of dispute to find a class of cases which the disputed case so nearly resembles that it is prop- erly disposed of at once by declaring that the same rule of law applies to it as that which distinguishes the class to which it belongs, and, be it observed, all the particular cases fall under one or the other of two ultimate classes composed, the one, of things ap- proved, and the other of things condemned, by the law. Now we find that cases are continually occur- ring of transactions which appear to resemble in most of their features an already established class, but 7° Law, Its Origin which have some new feature not belonging to such class, and never before presented, and which, it is urged before the court, calls for a different disposition. Let us suppose that an action is brought upon a policy of marine insurance to recover for the loss of a ship by a peril of the sea. It is proved that the insured had private intelligence that there had been very heavy weather on the seas over which his ship was sailing, and that he procured his policy without dis- closing his information. Now I am speaking of pro- ceedings in court at the present time, but I may suppose, for the sake of the illustration, that this was the first occasion upon which the effect of conceal- ment in the law of insurance arose. If there had never been any custom that the applicant for insur- ance of a marine risk disclosed, at the time of the application, whatever knowledge he had of matters material to the risk, the defence of concealment would have been to no purpose, and the underwriters would have been condemned to pay the loss ; but in the case supposed, the insurer proves that under- writers had so long been in the practice of asking what knowledge the applicant for insurance had concerning the vessel he wished to insure, that appli- cants had been in the habit of communicating their knowledge, whether asked or not, and that all under- writers acted upon the supposal that they possessed all the information the applicant had received. The court leaves the case to the jury with the instruc- tion that if they find that there was a custom of disclosing material facts such as alleged, they find a verdict for the defendant, otherwise for the plaintiff, Growth and Function 71 and this ruling is approved by a court on appeal, and a precedent is thus created which will afterwards be followed. This precedent, it will be observed, created a new class. The contract contained in the policy belonged to the class of actions approved by the law, that is, to the class of contracts, and the obligation of these rested upon no ground, originally, other than that of custom. I know of no reason why men were in the first instance compelled to perform their con- tracts except that such performance was in accord- ance with custom. It has often been said by the most approved writers that custom is one of the sources of law, and indeed Blackstone views the body of our unwritten law as being custom, or founded upon custom; but the sort of custom thus intended is ancient, custom, reaching so far back that its begin- ning is not known. Such a limitation of custom in the making of law seems to me to be without founda- tion, and the object in giving the last illustration is to show that present custom, provided it is established, is as efficient as if it were centuries old. But I must endeavour to make this still more clear. Let me take the example of a second succeeding action in all respects like the one just under notice, except that the information concealed was derived from widespread public accounts of a great hurricane. The underwriter claims exemption from liability on the ground of concealment, and relies upon the de- cision made in the former case. The insured insists that the former case should not be regarded as a governing precedent, for the reason that this one presents a new feature which effectually distinguishes 72 Law, Its Origin and takes it from the class of contracts of insurance invalid because of concealment, or rather prevents it from being assigned to that class. He is asked if he has any evidence to prove that it is not customary to disclose notorious facts, and he answers that he has none; that the question has never before arisen. Here we reach a very interesting point in considering the question what law is, and where and how it is found, or, as some say, made — at all events how it comes to be known. We are at the very bottom of the matter and considering an operation which is going on every day before our eyes and subject to the clearest observation. Our closest attention should therefore be given to what is really done. The court, we may suppose on appeal, remarks that the case is novel, and must be decided upon principle — a vague expression, but correct enough. It says it can hardly see how the underwriter can justly claim exemption; true, the assured failed to disclose his information, but the only effect of a disclosure would have been to give the underwriter knowledge of the peculiar peril, which knowledge he already had derived from other sources ; he would have taken the risk even if the disclosure had been made, and therefore he had not changed his condition in consequence of the dis- closure. For these reasons the decision is against the underwriter. Was this case decided by custom? Some would say it was not, because, avowedly, there was no precedent, which is authenticated custom, nor any evidence of actual custom not to make disclosure of notorious information, and they would declare that it was a clear case where the judges had made the law Growth and Function 73 out of their own heads, upon a simple consideration of whether the failure to disclose was right or wrong. That the decision was based upon the consideration whether that action was right or wrong is, in a sense, true; but whose notion of right and wrong was it? ^ It did not come from on High. It was not sought for in the Scriptures, or in any book on ethics. The judges in considering whether the act was right or wrong applied to it the method universally adopted by all men ; they judged it by its consequences; they considered that the underwriter, in all probability, and therefore presumably, knew of the special peril, unless he was utterly negligent of his business, which could not be supposed; that therefore he had lost nothing by the act, nor in any manner changed his position. If we went no further it would be manifest thatcustom decided the case, for to determine whether ilrvvas right or wrong by the customary modes of deter- mining right and wrong is to determine it accord - ing to custom. The court, indeed, declared that its decision was made upoff pwnciple;J$Lt what is meant by this? What is the impofroTthis word "princi- ple"? It has various meanings, but as here em- ployed it denotes a proposition very widely true, and the truth of which is universally admitted. The court in this case judged of the character of the act of concealment as we all, from the very constitution of our nature, judge of all conduct, by its consequenc, It found that the underwriter haHlsuSered no harm in consequence of the concealment, because he would have taken the risk, even if the knowledge had been disclosed, and that it was a principle of law that a 74 Law, Its Origin man could not fairly complain of the act of another unless he had suffered injury from it; but this was a principle of law only because it accorded with the universal custom of men. In the view of logic the method by which the conclusion is reached is by first affirming that one can make complaint of ihe_actio.n of another only when he is injured by it. This is dividing all human actions into two classes, those which injure and those which do not injure others. The next step is to affirm that this particular act of concealment did not injure and therefore does not belong to the class of acts which can be made ground of complaint. The final proposition is, that an act by one of the parties to a contract which cannot be made a ground of complaint by the other cannot be used by such other to relieve him from the obligation of the contract. This intellectual process is the em- ployment of what is called the reason, and has been sometimes supposed to be peculiar to the law. This is really why Cicero pronounces the law to be right reason — recta ratio — existing from eternity, coeval with the Divine mind, but it belongs no more to the law than to any other branch of intellectual activity. It does, indeed, exist from all eternity, or at least ever since man existed, for it indicates the mode, and the only mode, in which the human mind acts when it engages in reasoning. It observes the conse- quences of acts, and places them in different classes according to their respective consequences, which con- sequences are the'quaKtiejs of the acts, This is what mere children begin" "to "clo, and the mightiest scien- tific mind does but little else. Growth and Function 75 I dwell with greater minuteness on the proceed- ings of courts at the present time ; because the techni- cal language in which they are conducted tends to keep out of sight the real grounds upon which they proceed. It will not be a useless repetition, there- fore, to employ additional examples to illustrate and confirm the truth that present custom constitutes the guide of action in all cases depending upon the unwritten law. We may take the case in which the plaintiff seeks to recover a piece of land to which he claims title. He produces a deed, and the question is whether the language of that instrument is sufficient to transfer the title. It therefore turns upon the interpretation of that instrument. The court decides in favour of the plaintiff on the ground that the language employed in the deed, according to the ordinary use of language, is sufficient to effect a passage of the title. This is the rule observed in the interpretation of all written docu- ments, and thus we perceive that that important branch of the law is but an enforcement of present custom. Whenever the question is as to the mean- ing of writing, custom determines it. Take the case of an action upon a promissory note where the defence is that the note was given for a particular purpose, and was without other considera- tion, and that the person to whom it was given per- verted it from the intended purpose to another use, and that the plaintiff when he acquired it had notice of the special purpose for which the note was given. There is much contradictory evidence, let us suppose, concerning the way in which the plaintiff came into 76 Law, Its Origin possession of the note, and the judge leaves the case to the jury with the instruction that if they should find that the plaintiff came by the note in the ordi- nary course of business, without notice and for value, he is entitled to a verdict in his favour. Present custom is here a turning-point of the case. Again: a husband defends an action brought against him for dresses furnished to his wife, on the ground that they are excessive and extravagant beyond all reason, and the court leaves the case to the jury with the direc- tion to find a verdict for the plaintiff, provided they are of the opinion that the goods furnished were such as were customarily worn and used by women of a station in life such as the defendant's wife. Custom thus supplies the rule by which the liability of the husband is regulated, and the same is the case with the liability of an infant. Take an instance from the largest class of cases which now engages the attention of courts, that in which the plaintiff makes a claim grounded on an assertion of negligence on the part of the defendant, and it becomes necessary for the court to instruct the jury concerning the nature of negligence and to lay down the rule of law for their guidance. Negligence will be defined as "the omission to do something which a reasonable man, guided by those considera- tions which ordinarily regulate the conduct of human affairs, would do, or doing something which a pru- dent and reasonable man would not do. MI Now what is meant by a ' ' reasonable ' ' man ? It is a man whose 1 Alderson, B., in Blythe vs. Birmingham Water Works Co. 8 Exc., 781. Growth and Function 77 conduct is guided by what is called reason. But what is reason in the matter of conduct? It is the observation, common with all men, of the conse- quences of conduct and the government of future conduct in accordance with the teaching of such obser- vation. What are the "considerations which ordi- narily regulate the conduct of human affairs" here spoken of ? ' They are that men should so act in rela- tion to others as not to justify their displeasure or resentment, and the fact that ifmen act according to the fair ex£ectations_pf others^ they wifl not awaken displeasure, and that if they follow ordinary custom they will be secure from harm. What a judge really says to a jury, therefore, when he instructs them in a negligence case that the defendant was bound to do all those things ' ' which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, " is that he was bound to act according to custom. All, laymen as well as lawyers, would feel if a judge should instruct a jury that the defendant was bound to take precau- tions greater, or less, than are usually taken in a case such as that upon trial, that the law had been incor- rectly laid down. The question will arise with those to whom these views are for the first time presented, how the citizen is to inform himself of customs which he is required to obey, and how judges themselves, in the absence of precedent, find out what custom is. A large part of the answer is that every one acquires a knowledge of custom as fast as there is need of having the know- ledge. A man can hardly live in society without 78 Law, Its Origin knowing how men act — that is, what custom is. He knows what to do and what not to do, as well as what to wear and what not to wear. Custom is of all .4)1 things the one most universally known. No one needs to be told that he must not injure the person of another, or take his property, or violate his engage- ments when he has induced another to part with some- thing upon the strength of them. Of course there are cases, absolutely very numer- ous, but small when the whole body of human activ- ity is considered, in which men honestly differ as to what ought to be done, that is, as to what cus- tom requires, and other cases, also very numerous, in which men refuse or neglect to do what they well know that they ought to do. When a man is hon- estly ignorant concerning any matter, the natural recourse is to some person or persons likely to be better informed than himself. In the earliest and simplest societies we know anything about, if there was a dispute between different members, and they cared to settle it without fighting, they called in the aid of the oldest and most respected members of the tribe, who had had the largest experience in life, and who enjoyed the reputation of taking just views of things. We do the same thing to-day, The judges of our courts fill the place occupied by the seniors of the savage tribe. This is the answer given y Blackstone. He says, after assigning established ustom as one of the foundations of the common law he should have made it the only foundation) : But here a very natural, and very material, question arises: how are these customs and maxims to be known, and by Growth and Function 79 whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the 'viginti annorum lucubrationes* which Fortescue mentions; and from being long personally accustomed to the judicial decisions of their predecessors.1 But the law needs not only to be declared, but, where necessary, it is to be enforced, and part of the constitution of a court is the presence of one of its own officers or an officer of the law, the sheriff, who may command the whole power of the State to execute the mandate of the court. The judge to whom is I intrusted the office of declaring what custom is, finds out the fact, for the most part, in the same way that other men do, by his senses; but this means is supple- mented with him by his knowledge of the work of his predecessors. What makes the accomplished law- yer more fit than other men for the work of ascer- taining and declaring custom, is the fact that custom is a government of conduct according to its conse- quences. This is the proper study of the lawyer, if he makes the best use of his time. The reports, which are the books containing all the disputed cases of conduct in the past, and the affairs of the present day, are supposed to be thoroughly known by him. The judge permits no witness to be called to enlighten him as to what custom is (I do not speak of particular customs) . He is required to take judicial notice of it ; 1 Blackstone, book i., p. 69. 8o Law, Its Origin but the word judicial might be omitted, for every one in the ordinary business of life is required to take the same notice at his peril. And here we have another proof that custom is law, for how could men be justly to nhfiy mlfts which they had not means of knowing? _ ^ ^ "^ T3ut if the law laid down by the enlightened tribu- nals of the present day be nothing but custom, what, it may be asked, is meant when courts declare cer- tain customs bad, and disallow them? It is true that language like this is often employed, but the phrase- ology is misleading. There are particular customs, that is, customs prevailing in certain localities, or in certain branches of business. These are allowed, when they are allowed at all, for the same reason that custom generally is taken to be the law, that is, be- cause the particular conduct in question has been governed by it. But the question always arises whether the particular custom relied upon finds a place in the large category of universal custom. If it be found to have any element taking it out of that category, it is not really an instance of custom, but is a departure from custom. It is not enough to make conduct customary that the instances of it are frequent and numerous. Thefts are extremely fre- quent, but they are, like all crimes, departures from custom — mere bad practices which true custom con- demns. Let it be supposed that a milkman brings an action against his customer for the price of milk furnished to him, and the customer asserts and proves as a defence to the action, in whole or in part, that the milk was watered. The milkman seeks to meet Growth and Function 81 this defence by asking to be allowed to prove that milkmen generally water their milk, and that every one knows, or has reason to suspect, such to be the custom. If the judge should ask him if he proposed to prove that he and all other milkmen openly watered their milk before the eyes of their customers, he could scarcely answer in the affirmative. The act was done in secret with the view of concealing it from customers. Now the sale of milk is but an instance of a contract, and the general custom is that con- tracts are made and performed openly and in good faith. The distinguishing characteristic of custom- ary conduct is that it is what all parties affected by it mi^t^airl^^fect, and this at once stamps the water- ing of milk as a violation of custom — a mere bad prac- tice which might with propriety be treated" as a crime. LECTURE IV. n CONTINUING our scrutiny of this great history ^-* of the treatment of human conduct by the enlightened judicial tribunals, we find that transac- tions have been brought before them which are in all substantial respects the same with some one or more previously decided, and yet one of the parties is not satisfied with that decision, and insists it was wrong, and it appears from the discussions that the previous decisions have not been acquiesced in generally, and that transactions of various kinds are continually occurring not in harmony with the decisions— that is, that human conduct does not actually govern itself in accordance with them. In such cases we find that the courts have re-examined the prior decision, or decisions, which had thus been questioned, and have sometimes declared that they were erroneous and would no longer be followed, and if we look closely to see in what the confessed error consisted we shall find that it was in a wrong classification of the transaction adjudicated upon — that is to say, that it was classified as being against the approved customs of society when in fact it was, upon a just view, in ac- cordance with them, or as being in accordance with them when it was in fact against them. Here we observe two things: first, that human conduct 82 Law: Origin, Growth, and Function 83 follows its own inherent laws uncontrolled, except in minor matters, even by the deliberate judgments of courts, and that if some piece of conduct really in accordance with custom is declared by the courts to be otherwise, society will, if the matter be one of grave importance, pursue its own course, regardless of the decision. It will follow the fundamental law which governs conduct, namely, that custom is the controlling power. In the next place, we sEall ob- serve that the courts themselves recognise, tacitly, at least, this fact, and when they perceive that a rule of law as laid down by them is not generally ac- ', cepted, that is, that it fails to control conduct, they \ change the rule. Now, the real thing to which the courts look for a guide in such emergencies is the actual customs of society. If they see that conduct which they once pronounced wrong continues to be repeated, not in exceptional instances merely, but generally, they see that such conduct is one of the ways of society; that the business of life could not be conducted in the way in which it actually is conducted except upon the assumption that such conduct is right; in other words, that it is actually in accordance with custom, and that their previous classification of it as otherwise was erroneous. We have here a fur- ther proof that a judicial precedent is nothing but a supposed custom authenticated by the public of- ficial stamp ; that such stamp may be placed errone- ously, and that in such cases it loses its power and authority. If a base coin were, by error, to receive the public stamp declaring it to contain so much gold, that stamp would be ineffectual to give it value after J 84 Law, Its Origin |the truth had been discovered. A judicial precedent I is not law per se, but evidence of it only. The real law is custom. I must emphasise a principal feature observable throughout the proceedings of judicial tribunals in the enlightened stage under consideration. This is that they are engaged in a conscious effort to admin- ister true justice; and that they seek to accomplish this by studying the features of the particular trans- actions brought before them and assigning them to one or another of the vast multitudes of classes or sub-classes which make up the structure of the law, or adding to that structure by forming new classes, or correcting it by a re-formation of previous classifica- tions. This is the same kind of work which is per- formed in astronomy, geology, ornithology, and all ,-Hiother sciences. The law thus appears in its true character as an Inductive Science. The difference between it and other sciences is that the classifica- tions of the latter are subsidiary to the purpose of arranging knowledge into orderly form, with a view to its better comprehension and to its further in- crease; while in the law the classifications are made, not for the mere purposes of scientific knowledge, but to compel men to do or to suffer what it is right that they should do or suffer. This classification, how- ever, made for the practical purposes of life, is really, at the same time, the true one for scientific purposes. I must also observe here that Law in this, its scien- tific aspect, embraces only that part of law which ; consists of the enforced customs of society — that is, unwritten law, and that the operation of this law is Growth and Function 85 in large measure, though not wholly, confined to the province of Private Law, that is, the law which gov- erns the ordinary private transactions of men with each other. It is the law for which the Roman word jus is the best expression. And it is well to keep constantly in mind that this law, being tantamount; to the customs enforced by society, is an existing fact, or body of facts, and that the cailrfg ^° ™+. mp^ it, or pretend to make it, bi^Lto jgff/i .p.n^ ^yr^/pr.^ it} acting upon the true assumption that it already exists. Before passing from the evidences which show that in all stages of social progress the private law is iden- tical with custom, I must call attention to a striking feature observable in the condition of a subject nation which has been conquered by another posses- sing a different law. It may be the desire of the conquering nation to supplant the law of the people which it has subdued by the introduction of its own, and yet no instance can be found in which this has been done. The Romans did not abrogate the exist- ing law of the numerous nations over whom they imposed their political dominion. The Western Barbarians did not uproot the law they found pre- vailing in the Roman provinces which fell under their sway. The German conquerors of England did, indeed, nearly destroy the ancient laws of the Britons, but not until they had as nearly extermin- ated the Britons themselves. The United States adopted and enforced in their various conquests in Mexico, Porto Rico, and the Philippine Islands, the laws and customs of the native peoples. An excep- 86 Law, Its Origin tion is to be made in respect to such laws of the con- quered nations as are in their nature inconsistent with the maintenance of the new Sovereignty and to such laws as the conqueror may find it necessary to impose in order to maintain his supremacy; but these are public laws. The private relations of the conquered people with each other remain subject to the same government as before. Accordingly it is a principle of universal public law, everywhere recog- nised by courts, that in the case of the conquest of one nation by another the laws of the conquered nation remain in force, except so far as they are inconsist- ent with the supremacy of the conquering nation, and so far as the conquering nation has positively substituted different rules in their place. This is a significant proof that the private law is self-existent and irrepealable in custom. I now come to consider another feature observable in the proceedings of judicial tribunals still under consideration, and which forms a large and interest- ing figure in those proceedings. We find many trans- actions considered and adjudicated upon by the courts in which their action is determined, not by reference, in the first instance at least, to preced- ent or to custom, but by direct reference to what the legislative power has, by some written enactment, commanded or prohibited to be done, and we find, consequently, that human conduct is governed, to some extent, not by custom, but by the expressed will of the State — that is, by Legislation. It is obvi- ous that these two methods are radically different. When courts apply the law founded upon custom, Growth and Function 87 they do not make rules. They find rules already ex- isting, unconsciously made by society, the product, as it were, of its life; but the written laws which they enforce are rules consciously made by men clothed with the legislative power.\ I have hitherto purposely endeavoured to leave Cegislation out of view in order that we might contemplate custom and its opera- tion upon human conduct, uninfluenced by the con- sideration of other causes affecting it. I did, indeed, find it necessary to treat briefly of the first employ- ments of writing in the making of laws, in order to show that the omnipotence of custom as the guide of conduct was not to be imputed to ignorance of the art of writing, and for that purpose spoke with some detail of the early employment of writing among the Greeks and Romans, but now that we find in scrutinising the proceedings of courts in enlightened society that there is a much larger appearance of written or enacted law, some greater and closer attention must be given to it. What the real nature of Legislation is, beyond the fact that it is, in form, in writing, and purports to express the command of the sovereign power, and how far it is wise or expedient that we should attempt to govern conduct through its instrumentality, are in- teresting questions which I shall hereafter discuss. Thus far I have been confining my attention to the causes which, in point of fact, have governed and do govern conduct. I am still prosecuting that inquiry , and now come to consider to what extent Legislation has, in different places and in different ages, been, as a matter of fact, the source of rules for the govern- ment of conduct. 88 Law, Its Origin We found, in considering the first employments of writing in the making of laws of which history gives us any considerable knowledge, namely, the laws of Solon in Athens and the XII Tables in Rome, that these acts of legislation were not intended to super- sede the previous customary laws of those States, but to furnish better methods of executing those laws, and to effect an adjustment of internal political dis- putes which had arisen between different classes of citizens; in other words, that the object, substance, and nature of those written laws was not juristic, but political. I shall briefly glance at the subsequent employment of writing for the purpose of law-making in the early history of different countries down to and including the present time. The first of these subsequent employments is that presented by what are called the Codes of the Bar- barians. They were promulgated at various times during a long period covering parts of the fifth and sixth centuries of the Christian era; but the occas- ions which produced them, and the purposes they were designed to serve, and their contents, are so far similar as to justify their reference to a single class. In order to gain even the most general knowledge of the nature of these laws, which indeed is all that is requisite for our present purpose, it is neces- sary to glance at the political and social condition of Western Europe at the times when they were promulgated The martial valour of the Romans and their ambition for extensive empire had, at the time of Augustus, brought under their dominion the greater part of the known world. His advice Growth and Function 89 to his countrymen to check the career of conquest and to consolidate the vast possessions they had won, was accepted by them, and they displayed a genius in the arts of pacification quite as conspicuous as their renown in war. They sent out colonists, especially through Italy, Gaul, and Spain, who mingled with the native inhabitants, carried with them habits of industry, gradually induced the na- tives to devote themselves to agriculture, the arts, and commerce, and gave them an improved admin- istration of justice and better local governments. Moreover, they did not attempt the impossible task of violently substituting their own laws in place of the native customs, but allowed the latter to be in large measure retained. They sought in other ways to attach their new subjects to their authority, com- mitted to their hands many of the functions of local government, encouraged them to enlist in the Roman armies, and finally bestowed upon them the proud title of Roman citizens, with all the privileges per- taining to it. There was, however, at all times, a gentle pressure for the adoption of the Roman law, and its vastly superior adaptation to the purposes of a people seeking to acquire the arts and blessings of civilisation served to facilitate its reception. Under these influences the Roman provinces, especially in Europe, made in the course of five cen- turies from the time of their subjugation great ad- vances in civilisation, wealth, and knowledge. Hun- dreds of cities, many of them large and populous, arose, great accumulations of wealth were gathered and the magnificence of the imperial city was 90 Law, Its Origin emulated in baths, temples, and forums. Schools were established, and some of the great names in the classic literature of Rome were those of pro- vincials. Seneca, for instance, was a Spaniard. But a great peril at all times threatened the secur- ity of these flourishing provinces. The vast regions lying on the North and East were inhabited by rude barbarians, warlike and adventurous, ready to en- gage in any arduous enterprise promising the rewards of plunder and spoil. To repel the inroads of these terrible warriors the provinces had no military strength of their own. They were not permitted to indulge the military spirit and to raise and maintain armies under their own control with which to resist invasion. There was too much danger that these might be employed against the imperial authority. Rome herself undertook to defend her provinces, and this task was for centuries efficiently performed by her disciplined legions stationed along the whole frontier. Upon the fall of the Empire this safeguard melted away, and the barrier being removed, the barbarians broke in upon all sides. There being no military power to expel them, and no inducement to voluntary return, they gave terms to the vanquished inhabitants, established themselves in permanent occupancy of the territories they had conquered, and with no further enemies to subdue, they gradually settled into peaceful pursuits, together with the peoples they had conquered, and began their march along the pathway of civilisation and progress which those peoples had before trodden after their subjugation by the Romans. Growth and Function 91 And now there arose some anomalous legal con- ditions. Similar ones may have been exhibited before and since, when one nation has been subdued by another, but never, in known history, upon a scale so conspicuous. Here were the original inhab- itants of the conquered provinces living under a modified Roman law, which tolerated the existence, to some extent, of the prior customs of the provinces. Over them came the barbarians with their rude tribal organisations and customs. They could not, if they would, abrogate the law under which the people they had conquered were living. This law could not be at once abrogated without destroying the customs which it represented and enforced. As we have already seen, customs can not be de- stroyed at a stroke. To change them is a slow and gradual work. Nor, probably, did the barbarians desire wholly to abrogate them. They wished to make friends, not enemies, of the people among whom they intended to dwell permanently, and in no way could they better effect this purpose than by suffering them, so far as possible, to retain their laws and customs. Still less could they renounce their own laws. The attachment of their own followers to their customs was as strong as that of the native people to theirs. Necessity, as well as policy, pointed to the expedient of allowing both systems to stand side by side to such an extent as to permit the con- quered populations to have the benefit of their own laws and customs, so far as concerned transactions between themselves, while the barbarians might assert theirs wherever their interests and supremacy 9 2 Law, Its Origin were concerned. This expedient was adopted, or, rather, it came about naturally, of necessity; but to carry it into better effect it was needful to pro- mulgate the laws of the Barbarians in order that the conquered peoples might be apprised of what they were to obey when the two systems might happen to come into conflict. The political power would be in the hands of the Barbarians, and through this they would be enabled to assert the supremacy of their own customs whenever occasion might require. Prior to this time and before they started upon their career of conquest, they were governed by the un- written rules of conduct; their affairs were dis- cussed and settled in councils composed of the free- men of the tribes. Their kings were elected at these, and at these were determined, by the rude clashing of their weapons, the questions of war and peace, and a rude justice was administered. The purpose of the promulgation of the Barbarian Codes was to settle the conflict thus arising between different systems of custom, and they gave rise to the anomaly of two systems of law co-existing with each other, one territorial in extent, and applicable to the native people inhabiting the conquered territory ; the other, personal, applicable to the Barbarians, and carried with them wherever they went. Among these Barbarian Laws, and the most important, was the Code of the Salian Franks, a powerful confederacy of German tribes, who, with their neighbours, the Ripuarian Franks, had re- duced substantially the whole of Gaul to subjection and inaugurated the first dynasty, the Merovingian, Growth and Function 93 of the French kings. Others were the Codes of the Burgundians, of the Ostrogoths, the Visigoths, and the Alemanni, and there were still others. The conflict between these codes and the Roman law of the provinces did not prove so embarrassing as might be supposed. In the case of the rudest of the Barbarians, the Franks and the Burgundians, the characteristics of the provisions were that they re- lated very largely to political organisations and to the crimes of violence. They fixed the weregild, or sum required to be paid by a man to the kin of one whom he had slain, and corresponding sums for robbery and other injuries. Among violent and war- like people having no industries, all that is needed is the repression of those offences which disturb the internal peace of the tribe. They have no occasion for resorting to a cultivated jurisprudence, and the Barbarians might well, having the military and political supremacy, insist upon the adoption of these simple provisions for offences and leave the regulation of the other conduct of the peaceful native inhabitants to that system which was already per- forming that function. The aspect, therefore, which these conquered countries exhibited was that of rude barbarians living among peaceful inhabitants, and each under laws of their own, growing out of, and fitted to, their respective characteristics and with growing internal harmony. In the country subject to the Franks, the Salic Law was established for the Franks, and the Theodosian Code for the Romans. In that subject to the Visigoths a compilement of 94 Law, Its Origin the Theodosian Code, made by order of Alaric, regulated dis- putes among the Romans ; and the national customs, which Euric caused to be reduced to writing, determined those among the Visigoths.1 The pride of the conquerors was sufficiently gratified by the privilege which they enjoyed, like the posterity of Mahomet, of carrying their laws with them wherever they went, whereas the laws of the provinces re- mained local and territorial. The two systems were left to compete with each other, and the result of the competition was not doubtful. The Barbarians themselves, gradually changing their habits from those of warlike and predatory tribes to those of peace- ful and industrious citizens, would soon find that their rude laws contained no rules applicable to their changed condition, while the Roman law of the pro- vinces, penetrated by the spirit of a jurisprudence built up by a thousand years of civilisation, embraced pro- visions which would justly regulate every transaction of life. It was inevitable that in these subjugated countries the original inhabitants, while receiving from their conquerors a new infusion of independent and martial feeling, would in their turn subdue the ferocity of their masters, and allure them into the peaceful paths of industrial advancement. As this change progressed, the rude codes of the Barbarians would silently sink into desuetude and the cultivated jurisprudence of Rome re-assert its supremacy. This cursory review of the circumstances attending the promulgation of the Barbarian Codes enables us to perceive the purpose of this employment of i Montesquieu, Esprit des Lois, vol. ii., book xxviii., ch. iv. Growth and Function 95 writing in the framing of laws, and we immediately see that here also it was not juristic but political. It was political in the main, in both the instances we have before considered, those of Athens and Rome; but there it was for the purpose of re-organ- ising the political arrangements in order to reconcile internal conflicts between different classes of long established societies, and inasmuch as those con- flicts in part arose from dissatisfaction with the public administration of justice, the written Code, especially in Rome, reduced to writing some of the ordinary law. But the case was otherwise with the Barbarian Codes. There were no internal dissen- sions within the bodies of the tribes. Such internal peace as barbarians can exhibit prevailed. The motive was in great part to preserve for triumphant bands of savage warriors, in the midst of peaceful provinces which they had subdued, their supremacy over the vanquished by retaining those prerogatives and privileges which are becoming to conquerors. They were not unwilling that the provincials should preserve, for the regulation of their own affairs, the laws and usages which then prevailed among them. In some instances, indeed, the Barbarians caused some brief codes of Roman Law to be prepared for their use; but it was not their purpose to subject themselves to such laws and usages. To have a personal law which a man can claim wherever he goes is a most conspicuous mark of superiority, and this prerogative the conquerors chose to retain. A permanent memorial which could at any time be appealed to was needed in order to acquaint the 96 Law, Its Origin vanquished with the conditions which their masters chose to impose. This apparently anomalous exist- ence of a personal law with a different territorial system is well sketched by Messrs. Pollock and Maitland in their History of English Law : As the Prankish realm expanded, there expanded with it a wonderful "system of personal laws." It was a system of racial laws. The Lex Salica, for instance, was not the law of a district; it was the law of a race. The Swabian, wherever he might be, lived under his Alamannic, or as the expressive phrase tells us, he lived Alamannic law (legem vivere}. So Roman law was the law of the Romani. In a famous, if ex- aggerated, sentence Bishop Agobard of Lyons has said that often five men would be walking or sitting together and each of them would own a different law.1 Turning now to Great Britain, we find the first known instances of the employment of writing for the purposes of legislation to be of a somewhat different character. The original inhabitants of the island were Celts. The Roman conquest, although followed by four centuries of occupation, is but an episode in the history of Great Britain. The occu- pation was confined, for the most part, to fortified places and their neighbourhood, while the main bulk of the territory was still in the hands of the natives. The recall of the Roman legions at the downfall of the empire was the signal for the re- assertion by the natives of their power. The Roman inhabitants, conscious of their inability to withstand this pressure, resorted to the dangerous expedient of calling outside Barbarians to their aid. Those i Pollock and Maitland, (1899) vol. i., p. 13. Growth and Function 97 most available for this purpose were bands of free- booters from the promontory of Jutland who were harrying the coasts of England and France. They defeated the British Barbarians, and then turned their arms against the Romans. Fresh bands from their native Jutland and from the neighbouring Saxons poured in to join them, and wars ensued which ended in the extermination of both Roman and Briton, and thenceforth the Angles and the Saxons were to be the undisputed masters of English soil. They brought with them their customs and usages, which bore a resemblance to those of the Barbarians who made themselves masters of the Roman provinces upon the continent. These were personal independence and liberty, and popular assemblies in which kings were elected for their valour to act as military chieftains, and in which justice and other affairs were administered. As the tribes pressed in upon the Roman provinces on the continent their customs and usages were left to compete with the very different ones which had grown up under Roman dominion, and which con- stituted a law substantially Roman. We have already observed that as the Barbarians became softened and civilised by contact with the greatly superior numbers of the conquered provincials, and by degrees came to cultivate the arts and industries of peace, they required a more cultivated system of law, and they found it already at hand in the Roman- ised jurisprudence of the peoples whose masters they had become. They were as nations swallowed up in the bosom of the old populations, and their cus- 7 98 Law, Its Origin toms and laws, like their language, became gradually Romanised. The establishment of the Holy Roman Empire of Charlemagne, united with the growing papal authority, gave another impulse to this tend- ency, which was again caught up in later times by the revised study of the Roman law consequent upon the discovery of the Pandects at Amalphi, and thus in the end all the Western nations of the continent adopted the classic Roman law as the basis of their jurisprudence. And with their juridical system went also the political. The freedom and inde- pendence of the German tribes were lost in imperial- ism, and monarchs became absolute. The course of legal development proceeded other- wise in Great Britain. The German conquerors, having nearly exterminated both the Roman and the native populations, their customs and usages had no competition to struggle against, and were left to their own natural development. The enlarged territorial dominion, the increasing population, and foreign wars demanded more stability of rule, and the elected chieftain gave way to the sovereign by inheritance; but his authority was always limited in some form by popular safeguards, and the historic origin of our own liberties may be thus traced to our German ancestors. It would be in vain for us to seek among the origi- nals of English law for any instance of the employ- ment of writing for the purpose of law-making at any time from the completion of the Saxon conquest, near the close of the sixth century, to the Great Charter of King John in the thirteenth, corresponding Growth and Function 99 in significance or importance with the legislation of Solon in Athens, the Twelve Tables of the Roman Law, or even the Barbarian Codes. The genius of Alfred, patriot, soldier, statesman, and scholar, fitted him indeed for the task of lawgiver, had such a mission been acceptable to the people over whom he ruled. Our legal antiquarians have indeed be- stowed upon him the appellation, borrowed from im- perial Roman jurisprudence, of legum Anglicarum conditor; but his title to this distinction rests, not upon any laws written or enacted by his authority, but upon a compilation, made under his direction, of certain rules and customs obeyed and enforced in the various parts of England in his time, and vari- ously styled Alfred's Laws, or Dome Book, and which has been unfortunately lost.1 Permanent kingship was a new experience with Saxon peoples, and though necessary for their defence against the hostile elements to which they were opposed in their new settlements, did not include in their minds the prerogative of dictating laws. For the purposes of legislation there must be™ sovereign whose author- ity to enforce his laws is undisputed throughout his realm, or an assembly regularly constituted and rec- ognised as really representative. Neither of those conditions existed in England under the Saxon kings, and though numerous documents have been pre- served purporting to be laws, or dooms, of the Saxons, they consist chiefly of attempts to give certainty to the sums of money, payable by way of voluntary redress for murder and other injuries. They have i Bl. Com , bk. i., p. 65, TOO Law, Its Origin never been appealed to in subsequent times as con- stituting part of the law of England, nor have they been incorporated into any of the authoritative pub- lications of statute law. The authorities seem to agree that the Great Charter constitutes the first appearance of genuine written law in the juridical history of England. Says Professor Lee in his recent work on Historical Jurisprudence: It is with the Great Charter of 1215 that the distinction between written and unwritten law became certain and accepted. Before that date the enactments of national councils, however important they might be, were not pre- served as statutes of the realm. They belonged to the jus non scriptum.1 Messrs. Pollock and Maitland, in their learned and elaborate work, express the same view: "That charter takes its place as the first chapter of the en- acted law2"; and Mr. Green, in his History of the English People, says: It is in this way that the Great Charter marks the transition from the age of traditional rights, preserved in the nation's memory and officially declared by the Primate, to the age of written legislation, of Parliaments and Statutes, which was soon to come.3 And yet the Great Charter when rightly considered, in the light of the occasion and the motive which led to it, was not a reduction of customary to written law for the sake of the supposed advantages possessed by the latter as law. King John had been for years playing the part of an absolute monarch, and setting 1 Historical Jurisprudence p. 479, 2 Vol. i., p. 78. 3 Vol i. p. 245 Growth and Function 101 at defiance every limit upon the royal prerogative. His oppressions, while weighing heavily upon the body of the people, were felt more keenly by the barons, and had at length brought them into open war with their sovereign. He was obliged to yield, and the Great Charter was simply the treaty which he was compelled to sign in order to conclude the war. 1 It was the record of the conditions under which he was to be permitted to continue to wear the crown. The prior law had not in any manner failed because it was not in writing, but because the king himself had set it at defiance. It is, indeed, a proof, if proof were needed, that a written contract embracing many provisions is superior, in form and efficacy, to a verbal one, but it proves nothing more. I have yet to refer to the most significant and instructive instance of the employment of writing for the purpose of legislation. I mean that of the law of the Church of Rome, what is commonly called the Canon Law. The Roman Catholic Church, originally a small religious society, by degrees, in the face of persecution, had extended itself through- out the Roman Empire until in the reign of Con- stantine it was acknowledged and accepted by that empire as the only authorised spiritual power, and prior to the Reformation the whole European world had accepted its faith and acknowledged its author- ity. Its organisation became more and more elabo- rate, refined, and complete as its numbers and power increased. The fundamental conception upon which it was founded was that of a hierarchy instituted by »Stubbs, Con. Hist., vol. ii., p. 2. 102 Law, Its Origin Christ himself through the apostle Peter, and main- tained by his successors, the Bishops of Rome, as the visible vice-regents of the Almighty upon earth. The society constituted by it is not limited by the boundaries of nations, but embraces the whole body of believers, wherever found. Absolute obedience is due to it by every member, from the king to the peasant, and even by the corporate nationalities which profess the Catholic faith. It claims an em- pire not only over the minds and consciences, but also over the actions of men, and if it has failed to assert authority over all their actions it is because reason or policy has advised the abstention. It need not be said that pretensions like these can have no limitation except such as are self-imposed. The Divine authority must necessarily be absolute and supreme over all merely human power. These claims on the part of the Church have never been wholly acceded to in any nation except the Papal States of Italy before the abrogation of the temporal power of the Popes ; but they were at an early period admitted to a considerable extent. The conduct of the clergy, the regulation of church property, the administration of the personal property of deced- ents, marriage and divorce, the punishment of heresy, etc., were conceded to the jurisdiction of the spiritual courts, and many traces of this concession are still to be found in the jurisprudence of England and even of the United States. The legislative au- thority included within these claims is vested in the supreme pontiff and the general councils of the Church, and by its exercise from time to time, a Growth and Function 103 vast body of law has been created and reduced to a highly refined and logical system. The Code, the Novels, and the Pandects of Justinian, constituting the Corpus Juris Civilis, are paralleled by the Decre- tum, the Decretals, and the Extravagantes, con- stituting the Corpus Juris Canonici. Its commands are enforced by many weapons drawn from the spiritual armoury, of which excommunication is the most effective, and when these have failed, the temporal power has often lent its aid. This law, assuming to be an expression of the will of the Almighty, communicated through his vice-regent on earth, is embodied in writing, and is7 in theory, the most perfect exemplification of written law. Not being of human origin it cannot be created by custom, though human custom may be, and often is, recognised and sanctioned in its administration. If it were universally and completely enforced in harmony with its pretensions, it would entirely answer to Austin's definition of law, as being a command addressed by a superior to an inferior. The authors, however, whose labours built up the Canon Law, being ecclesiastics, were, in general, the most learned persons of their times, and their system exhibits the first efforts, subsequent to the downfall of the Roman Empire, to apply scientific principles to the composition of law, and the civil law of the Middle Ages is largely indebted to the Church for many of its improvements. This bene- ficial influence proceeded not only from the text of the Canon Law, but also from the direct work of the ecclesiastics who were frequently employed 104 Law, Its Origin as ministers of State and members of the judicial tribunals. But in answer to the question how far this system of written law has at any time come to govern the actual conduct of men in their transactions with each other and in their relations to the State, we must say that it has had comparatively little direct force or influence proprio vigore; and so far as it has had any authority, it has been derived from the State and dependent upon the State for its con- tinuance. It has really been efficacious in dealing with civil concerns only so far as it has recognised and enforced the actual customs of civil society. The great Churchmen who in the Middle Ages and later so frequently filled the great offices of State were quite as skilful in administering temporal as they were spiritual affairs, and in the performance of judicial duties they conferred the greatest bene- fit by applying to the enforcement of the customs of life, the order, system, and methods which they had learned in the Roman and Canon Law. In considering the instances of the employment of writing in the making of laws, I have thus far referred to those only (excepting the Canon Law) occurring in early stages of social development, and only the most notable. There are, however, many others to be found before either legislation or the law of custom and precedent had reached what may be called the scientific stage, and some brief attention to these will be instructive. There were quite a number of statutes, or ordinances in the nature of statutes, enacted in England, some of Growth and Function 105 them prior even to the Great Charter, but of many of them no permanent memorial has been preserved, a fact indicating that they were not of permanent importance. Such of them as have been preserved will be found to be in the main not attempts to re- duce the customary law to writing,'or to directly affect the ordinary- transactions of men, but to bring about some political object such as the correction of the mode of judicial procedure, relief from royal oppressions, or the defeat of the pretensions of the Church. Among these was the Charter of the Forest (1217), one of the chief measures designed to afford relief against the abuses and oppressions of the Forest laws; also what are called the Constitutions of Clarendon (1164) from the name of the place where they were enacted. They are thus described by Bishop Stubbs in his Constitutional History: The Constitutions of Clarendon are sixteen in number, and purport to be, as the history of their production shows them to have been, a report of the usages of Henry I. on the dis- puted points. They concern questions of advowsons and presentation, churches in the king's gift, the trial of clerks, the security to be taken of the excommunicated, the trial of laymen for spiritual offences, the excommunication of tenants- in-chief, the licence of the clergy to go abroad, ecclesiastical appeals, which are not to go further than the archbishop with- out the consent of the king ; questions of the title to ecclesias- tical estates, the baronial duties of the prelates, the election to bishoprics and abbacies, the right of the king to the goods of felons deposited under the protection of the Church, and the ordination of villeins.1 And he further describes them as being "a part of , Constitutional History, vol. i., p. 502. io6 Law, Its Origin a great scheme of administrative reform, by which the debatable ground between the spiritual and temporal powers can be brought within the reach of common justice and the lawlessness arising from professional jealousies abolished."1 The Assize of Clarendon, sometimes called the Great Assize (1166), was an enactment of which the principal feature was an improvement of judicial procedure in the case of criminals, and is a part of the same scheme of reform attempted by Henry to which the Constitutions of Clarendon belong. The statute of Merton (1236) is noted as being that in which the assembled barons declared they would not have the laws of England changed. The reign of Edward I., memorable in the history of English law, was quite prolific in legislation. The famous statute of Westminster (1275) was passed in the first session of his reign, but Edward's pur- poses were, in the main, reformatory and political in that sense. The reformation of abuses, the due execution of the existing law, the providing of more efficient methods of procedure; in other words, the framing of sufficient instrumentalities by which the existing customs could be better enforced, were the things he had in view, and these he sought to com- pass by the statute last mentioned. The famous statute De Religiosis (1279), which forbids the ac- quisition of land by the religious orders in such wise that the land should come into mortmain,2 is another political and reformatory measure. So also the 1 Stubbs, Con. Hist., vol. i., p. 503. 2 Ibid., vol. ii., p. 117. Growth and Function 107 Statute of Westminster the Second, and the Statute of Winchester, both enacted in the same year (1285). The first contains the enactment commonly called De Donis Conditionalibus, and also a provision for the better correction of errors of law committed in the course of a trial, and which therefore did not appear by the record; which is the original warrant for our present bill of exceptions. The important statute commonly known as Quia Emptores, which saved to the chief lord of a fee the services and profits due to him as the feudal owner notwithstand- ing any grant by the tenant, thus destroying one of the former consequences of subinfeudation, was enacted at the third Parliament of Westminster (1290). The object of this was the political one of saving to the King and his chief lords the services and profits just mentioned. The statute of Carlisle (1309) was one of the many acts of legislation de- signed to restrain the power and influence of the clergy and the Pope. The statute of Pr&munire (1355), declaring forfeiture and outlawry against those suing in foreign courts for matters cognisable in the King's Courts, was a feature of the struggle between the King and the Church. The Statute of Treasons (1352) for the first time defined the offence and punishment of treason. To further trace the course of British legislation down to the period to which I shall next call particu- lar attention, would involve a detail beyond the scope of these lectures. I may safely say that this sub- sequent legislation, however numerous the instances, was in point of purpose and effect, as in the cases io8 Law, Its Origin I have already considered, special and particular, the object being sometimes to correct an abuse, sometimes to institute a reform, sometimes to carry a point for or against the King, the barons, the Church, or the people. Still less have I room to trace for the same period the course of legislation on the continent subsequent to the promulgation of the Barbarian Codes. I must, nevertheless, briefly indicate the general character of the legal systems which grew up subsequently to those Codes and the extent to which they were influenced by legislation, confining my attention, however, mainly to France and Germany. As we have al- ready seen, the provinces of the Roman Empire of which the Barbarians became masters, were civil- ised States in which conduct was regulated by a law customary, but substantially Roman. The Barbarian Codes did not entirely, or in the main, replace this law, but superinduced upon it the customs of the Barbarians, as a personal law, binding in favour of the Barbarians and as between them- selves, but leaving the vanquished nations otherwise to enjoy their own customs. The shifting of the Barbarians from place to place, and the mingling of them together, aggravated the confusion caused by the simultaneous existence of personal and terri- torial law, and made it intolerable. Besides this, the unsettled condition of the whole territory, the incessant wars for the extension of empire or the aggrandisement of dynasties, the rapid changes in the boundaries of States and provinces, would have made orderly legislation impossible, had there been Growth and Function 109 at this period any developed capacity for legislation. Charlemagne, indeed, and his immediate successors, made efforts to reduce this confusion into something like order through their decrees called Capitularies, but I think it is agreed by legal historians that their effect was inconsiderable, and the practice of issuing them was soon discontinxied. Law seems to have been left to work out its own solutions, and the result was, at least in France, that, after the lapse of four centuries from the Barbarian conquest, the confusion of personal and territorial law gave way to the establishment of different territorial systems, called Coutumes, in different provinces. These sys- tems were in their nature customary law, variously compounded of the Barbarian customs and the old Romanised law, the latter almost continually grow- ing in comparative strength, as society became more civilised and given to industrial pursuits. This growing predominance of the Roman law received a fresh impetus from the revival of the scientific study of that law, after the discovery of the Pandects, at the University of Bologna. Students flocked thither from all countries, and the legal doctrines there acquired were disseminated throughout the nations of the continent. A cultivated jurisprudence was more and more demanded as civilisation ad- vanced and industry and commerce became more pervading. This was furnished ready-made by the Roman law, and the administration of justice in all the Western States of Europe became more and more permeated with it. Little resort was had to legislation in France until i io Law, Its Origin the middle of the fifteenth century. Between that time and the reign of Louis XIV., a number of royal ordinances were adopted, the principal of which had for their object to reduce the Coutumes to greater uniformity and precision and to improve judicial procedure. France under Louis XIV., had become a thoroughly consolidated absolute monarchy. The sovereign was ambitious alike of personal and national aggrandisement. His legislative power was unlimited, and a great opportunity for improvement in internal administration was opened to him. Under the guidance of the wisdom of Colbert, this oppor- tunity was employed in various efforts to reform the public administration. So far as the legal system was concerned there were three principal evils. The first was the lack of an orderly and uniform method of procedure in civil and criminal cases. The second was lack of uniformity in the law growing out of the various differing coutumes. The third was the uncertainty and confusion in the law itself, the con- sequence of the different sources from which much of it had been borrowed, and the want of harmony and capacity in the courts which administered it. The method of improvement adopted by Louis XIV. appears to have been to select branches or subjects of law. in which improvement was most needed, or perhaps in which it was most practicable at the time, and reduce them to writing. The most important of the measures were: (i) An Ordonnance for the reformation of the procedure of the courts in civil cases. (2) An Ordonnance for the reformation of the criminal procedure. The subjects embraced Growth and Function 1 1 1 by these two pieces of legislation are not substantive law, but instrumentalities, machinery, designed to carry such law into effect. They do not comprise rules for the regulation of conduct, but forms of pro- ceedings designed to enforce such rules; and they are, as I may hereafter more particularly show, the proper subjects of written law. (3) The Ordonnance du Commerce, which was an attempted reduction of the commercial law into writing — in other words, a codification. (4) The Ordonnance de la Marine. This was a like attempted codification of the maritime law. In these two last mentioned pieces of legis- tion we find the beginning in France of those attempts for the reduction of the unwritten and customary law to writing which culminated later in the Code of Napoleon. It will be perceived that none of these Ordonnances of Louis XIV. were designed to remedy the confusion in French law arising from the differ- ences in the provincial coutumes. Louis XV. had the advantage of the advice and assistance of the Chancellor d'Aguesseau, a con- summate lawyer, and under his inspiration a begin- ning was made in the task of bringing the law of the different parts of the kingdom into uniformity. This was done by the promulgation and execution of three separate Ordonnances, one relating to dona- tions— Ordonnance sur les donations, which had for its object the reduction of the law in all parts of France upon this subject to uniformity, being an attempt in the way of codification. Another in relation to testaments — Ordonnance sur les testaments, which recognised and preserved the two different systems ii2 Law, Its Origin of law on this subject then prevailing in the Northern and Southern parts respectively of the kingdom; and the other relating to trusts — Ordonnance sur les substitutions fid£i-commissaires, designed to effect reforms in the constitution and administration of trusts. This legislation under Louis XIV. and Louis XV. was, to a considerable extent, embodied by the framers of the Code Napoleon in their work. 1 In Germany, the course of development of law subsequent to the Barbarian Codes was somewhat different. The barbarous tribes, as they became by degrees more civilised, required, as we have seen, for the ordinary transactions of life a law more refined than the rude customs by which they were originally governed. Their civilisation was pro- moted by their contact with the Roman peoples, and hence arose a tendency in favour of the adop- tion of the Roman law. This tendency was greatly strengthened by the establishment of the Holy Roman Empire. The close connection of that Em- pire with Rome and the Church and its pretence to be the successor of the Empire of the Caesars dic- tated the sanction of the Roman law. But what more, perhaps, than all else led to the general adop- tion of that law was the circumstance that the administrators and teachers of the law, bred in the universities, everywhere participated in the revived study of the Roman law consequent upon the dis- covery of the copy of the Pandects, and exerted a steady influence in favour of its general introduction as the governing law in all private transactions. Never- » Lee, Historical Jurisprudence, ch. xv., sec. iii. Growth and Function 113 theless, the old customs were retained by the different provinces as they became consolidated into larger States, and the reconciliation of these with the Roman law was the continual task of judicial admin- istration. I suppose it would be true to say that the Roman law came to be adopted except where it was \ in conflict with settled local customs, and there the latter prevailed. Prior to the general movement in the j direction of codification initiated by the Code Napo- leon there was little in the way of legislation touching the law of private transactions. Some important private efforts were made to set forth the law of particular States, but these had no other authority than that of text-books. Prof. Lee states that " according to the German opinion, the legislative authority of the rulers had little to do with the private law. That was a matter of custom and should be left to the local communities to develop as they wished.'*1 In Italy, the Ostrogoths maintained, for a time, some of their barbarian customs superinduced upon the basis of the Roman law, but the latter was never displaced, and upon the revival of the study of jurisprudence it resumed its sway as the sole guide for the regulation of conduct. The Visigothic conquerors of Spain seem to have been ambitious of substituting their own law in the place of the Roman jurisprudence, but their suc- cessive declarations of the supremacy of their codes, and interdicts of Roman law, serve to show how difficult it is to supplant the law of a conquered 1 Historical Jurisprudence, p. 409. 8 ii4 Law: Origin, Growth, and Function people without exterminating them, and also how ineffectual are all efforts to govern the conduct of a civilised people by the customs of barbarians. The Jesuits of Spain have been wont to insist that their law is Spanish, not Roman, but the contents of their written codes and their own law-books contradict this pretension. LECTURE V THIS rapid and glancing review of the most con- spicuous instances of legislation in the ruder periods preceding the present (1 enlightened* age, is quite sufficient to enable us to answer the question for what purpose and to what extent it was resorted to throughout those periods. We have seen that it/ was employed to compose differences 1 )etween various classes in society and to furnish machinery by which the customary law might be more efficiently administered, and from time to time to better adapt that machinery to the changing and developing wants of society, and that where it was aimed directly at individual conduct it was for the purpose of secur- ing better obedience to the customary law by public punishment of the more flagrant violations of custom, which is the office of the criminal law; in other/ words, we find that at the first appearance of legis- lation its province and the province of Public Law were nearly conterminous. The province of Private Law is scarcely touched. In the present enlightened age we find a much greater resort to legislation; but the important question is whether its purpose and nature have been changed. This is easily answered. The whole of the legislation of any American State, to take an n6 Law, Its Origin example, is contained in its easily accessible statute- books. We may know the general contents of all of them from an examination of those of one State. They will be found to embrace its fundamental Constitution creating the Executive, Legislative, and Judicial Departments, the organisation of the State into political districts, the creation of the the various State and local officers and the designa- tion of their duties; provisions for the conduct of elections; a system for raising money to support State and local government by taxation and applying it in many different ways; provisions for creating and maintaining public highways, including rail- roads; for forming corporations, for preserving the public health, and for supervising many important public concerns, such as banking, insurance, etc., and a multitude of other public provisions including the whole of the law relating to the designating and punishment of crimes. Besides this, we find in the numerous volumes of statute-books vast masses of matter which, though in the form of laws, are not law in any proper sense. These consist in the making of provision for the maintenance of the public works of the State, for the building of asylums, hospitals, school-houses, and a great variety of other similar matters. This is but the record of the action of the State in relation to the business in which it is engaged. The State is a great public corporation which conducts a vast mass of business, and the written provisions for this, though in the form of laws, are not essentially different from the minutes of ordinary corporate bodies recording Growth and Function 1 1 7 their action. But when we search for any matter relating to the regulation of the ordinary conduct of men in their transactions with each other — that is, to Private Law, we find exceedingly little, and we may say that it is substantially true that the whole vast body of legislation is confined to Public Law, and that its operation on Private Law is remote and indirect and aimed only to make the unwritten law of custom more easily and certainly enforced. If we make a similar examination of the Statutes at Large 5 of Great Britain the result is the same; and the . same also, if we examine the legislation of Rome in the classic era of jurisprudence. There is one great seeming exception in the case of the various codifications of the customary law. We find in Roman Law the great volume of the Pan- dects; we find the Civil Code in France. There are Civil Codes in Germany. There is a reduction to , writing of one or more chapters of Private Law far England ; and there are Civil Codes in several Amer- ican States. But the exception in these cases, when we consider its true nature, is more apparent than real. The law enacted in these Civil Codes was not made by the legislation enacting them. It existed, for the most part, as law before, and the enactment added no force to it. In the cases of Rome, France, and Germany the unification of different peoples and provinces into larger nations had made it necessary for the tribunals to enforce different customs for different places, an inconvenient task; but this difference was gradually disappearing in the closer relations brought about by the consolidation of n8 Law, Its Origin nationalities, and the main purpose of the codifica- tion was to hasten the coming uniformity, which could be completely accomplished only by legislation. The motive to such codifications as have taken place in the United States and Great Britain was the supposed increased accessibility of the law by enab- ling it to be found in a single book, the same motive which led to the production of Digests. The crea- tion of new law was but a small part of the object. There are some smaller exceptions in which legis- lation is employed in shaping rules of private con- OTA! duct. I refer to instances in which actual changes are made in Private Law in particular cases ; but they are quite exceptional and occur in cases where the courts are in conflict, or where the customs as en- forced by the courts have been gradually changing in the course of social progress, and conflicts in cus- tom arise which the courts find it difficult to deal with. But these exceptional cases really fall within the province of Public Law, because it is the office of that law to furnish to the judicial tribunals a warrant for making those changes in decision which the changes in custom require, but which a regard for consistency prevents them from making. My conclusion is that so far as Private Law — the law which governs our conduct in our ordinary trans- actions with each other — is concerned, the influence of legislation — of written law — has been exceedingly small. The latter, in fact, constitutes what has been not inaptly styled "a mere fringe on the body of law." I have now completed my survey of human life in Growth and Function 119 all ages and in all stages of social progress, for the purpose of ascertaining the causes which have, in point of fact, governed, and which still govern, human conduct. This survey has embraced primitive man, the savage member of a wandering horde ; man when he first adopts a fixed place of abode; man when he first consciously organises a social state; man when he has first acquired the art of writing and when he first employs that art in the composition of laws; man as the subject of a conqueror imposing his dominion over realms not his own; man as the member of a conquered nation accepting submissively the rule of strangers; man in society where there is no power to protect him save his own right arm; man during the long period in which he seeks by the establishment of judicial tribunals to supplant the violence of self-help; man down to the period when judicial tribunals and legislatures have been established and perfected; man in the present en/: lightened age : — and the conclusion is clear that habit and custom in each of these different conditions furnish the rules which govern human conduct, and that they still exert over enlightened man the same imperious dominion that they did among the prime- val hordes which peopled the world before the dawn of civilisation, or that they now do among the bar- barous tribes which inhabit the wilds of Patagonia or Australia. To the absolute generality of this conclusion an exception is to be made for the influence of legis- lation; but the extent of this exception diminishes to a point where we may, for all large and general iso Law, Its Origin purposes, dismiss it from attention, when we con- sider that its principal function is to supplement and aid the operation of custom and that it can never supplant it, and also consider, what I may hereafter more fully show, that its own efficiency is dependent upon its conformity to habit and custom. What has governed the conduct of men from the beginning of time will continue to govern it to the end of time. Human nature is not likely to undergo a radical change, and, therefore, that to which we give the name of Law always has been, still is, and will 'orever continue to be Custom. But while all Law is Custom, all Custom is not necessarily Law. Law differs from custom as a part differs from the whole. There is a large range of human conduct of which the law takes no notice, though it is under the control of custom quite as much as that part which the law assumes to regulate. A great part of this conduct falls under the control of moral rules which are enforced mainly by public opinion and form the subject of the science of moral- ity, about which I shall have something to say hereafter. Other parts of it are such as are con- trolled by the usages of fashion or etiquette, and there is still another most important part lying be- yond the immediate scope of my inquiries in which the individual alone is concerned, and which em- braces what may be called his interior life. This is more especially within the sphere of religious thought and action. This conception of law, identifying, as it does, all the rules which govern the conduct of men in Growth and Function 121 their transactions with each other, including even the rules of morality, with custom and habit, will not, I suppose, be willingly accepted. Legal writers have at all times allowed much weight to custom, viewing it as one, but only one, of the sources of law, as if there were some governmental power standing above custom, the function of which was to pro- nounce judgment on the wisdom of custom, and select from it the rules it would enforce and reject the rest. Ancient customs they have indeed regarded as having the force of law, but this quality they impute, not to the custom, qua custom, but to its antiquity, whereas the conclusion at which I arrive erects present existing custom as the standard of law. This is not in harmony with the opinion of those who make law to be the positive command of the Sovereign power in a State, nor of those who, like the classical jurists of Rome, ascribe its origin to an incomprehensible something called the Law of Na- ture, and apparently not with the views of those who regard all morality as founded upon the com- mand of God, directly or indirectly revealed. It will seem to all these to detract from the sublime dignity which they would ascribe to law and moral- ity, and impair the reverence in which they should be held, to identify them with a thing seldom re- garded as carrying with it any high obligation. We say of men, by way of derogation, that they do this or that, because they have got into the habit of doing it, or because they feel that mere custom requires it, and we are all inclined to regard it as evidence of a lofty character when men disregard custom, and 122 Law, Its Origin act according to their own independent sentiments. Unvarying obedience to law we commend, but the followers of mere fashion, or custom, are regarded with a feeling akin to contempt. There are what we call, speaking in ordinary language, bad customs and habits (they are really practices contrary to custom), and we find it difficult to view anything as in- trinsically lofty and good which so often appears in forms either indifferent or evil. What is the reason of this hesitation and un- willingness ? Is it that we assign too much of worth, dignity, and elevation to law and morality, or that our ordinary views of custom are too low? I am sure that the latter reason points towards the truth, and it suggests a closer inquiry into the real nature and meaning of custom. This question lies beyond the ordinary subjects of legal discussion, but it is one which the Philosophy of the Law should attempt to answer. What then is wrapped up and concealed in the word custom which we so often employ, sometimes without assigning to it especial importance, and sometimes regarding it as importing something trivial or perhaps evil? We need but recall for a 1 single moment the account we have given of it, in order to perceive that the ordinary views of it are inadequate and erroneous. That thing which has held imperious sway over the conduct of men of all races, whether savage or civilised, and in all times, can not be low, trivial, or evil. Where is the secret of its power? The simplest definition of custom is that it is the uniformity of conduct of all persons Growth and Function 123 under like circumstances, but this suggests the question — "What is conduct, and what is its cause?'' To answer this without indulging in speculation, but extending our attention to all known truths ascer- tained by observation, whether of the world of mind or of the external world, we must avail ourselves of the teachings of the science of Psychology. Con- duct is some physical movement of the* body, and is invariably preceded by some thought or feeling which is its cause; and this thought or feeling is produced by some operation of surrounding things — the en- vironment— on the nervous constitution. Inasmuch as the constitutions of men in the same society are similar and the environments similar, the thoughts must be similar and the conduct consequently simi- lar. Hence human conduct necessarily presents itself in the form of similarity — habits and customs. This is true, not only of man, but of other races of animals. The uniformity, however, is not absolute. There are multitudinous exceptions and variations. The original constitutions of men are not precisely alike, nor are the environments of men, even in the same locality and society, precisely alike. Their thoughts are to a certain extent different, and the acts consequent upon the thoughts in like manner different. These differences are, for the most part, exhibited in matters of small importance, and do not obstruct social harmony. But there are causes and occasions which disturb social peace. This is more easily to be perceived in the simplicity of primitive society. Some will have better weapons, more skill, and greater strength and enterprise than 124 Law, Its Origin others. Some will desire the same things that others desire and to do things which others do not wish to do. Hence collisions arise, and some are irritated with the conduct of others, and exhibit that irritation by retaliation and revengeful punish- ment. If man lived in solitude, with no fellows, no such collisions would happen. They are possible only in society, and there they are inevitable. They neces- sarily tend to violence and strife, and unless in some manner restrained would cause perpetual private war. Our nature supplies the correction for this evil. Man seeks pleasure and shrinks from pain, and what he has once seen to take place he believes will happen under the like circumstances again. The child does not at first hesitate to thrust its hand into the fire, but does not make a second attempt. The savage, at first, may see no harm in taking the game another has caught, but when he receives punishment from the resentment of the other, or after he has received it many times and from many others, refrains from repeating the trespass. Things known to injure others thus come to be habitually avoided, and customs arise of carefully avoiding conduct giving offence to others. Again, as men act in nearly all cases according to custom, the ex- pectation of all is that others will continue so to act, and any disappointment of this expectation causes offence if the act is of an injurious nature. Hence the tendency to follow custom and to enforce it upon others is intensified. Those who obey this tendency are safe. Those who act contrary to it are pursued and punished. The worst offenders are Growth and Function 125 relegated to the criminal classes, but all incur disapproval. The operation of the influences thus described is discernible in the earliest known displays of human action. When man made his first appearance upon earth, he did not wait until some lawgiver appeared to tell him how he must act. He asked no question concerning what he might and might not do. He was endowed with powers and desires which de- manded activity, and he proceeded to act. The con- sequences of his first action began the formation of a guide for his future action, and every succeeding exercise of his powers was followed by consequences which he observed and from which he derived further instruction. He learned that he must not injure or assail the person of another. This teaching of experience was accepted by all, or nearly all, and the great right of personal security arose. He learned that he must not take the fruits of another man's labour, and under this lesson, taught to all, the great institution of private property came into being. His nature led him to unite himself to a woman and to cherish her and to care for their offspring, and the institution of the family arose. This little society was exposed to the depredations of strangers, and this danger prompted a unison of families into tribes in order to form a more perfect defence. He found a pleasure in plenty of possessions and, instead of con- suming ail the fruits of his labour, sought to save some. He learned to postpone present enjoyment to a future good, and wealth, with a division of employ- ments, increase of population, and improved cultiva- i26 Law, Its Origin tion of the earth, succeeded to the precarious con- dition of savage life. He found his pleasures and his ambition centring more and more in the circle of his own fireside and extending to his kindred, and thus began the development of the Moral Sentiment, the original stimulus to the civilisation and refine- ment of the race. At the same time all these con- sequences of his activity were having a reflex in- fluence upon himself, and became in turn the causes of the same things of which they were themselves the consequences. We know from physical and moral science that all the acts of man, including his thoughts, have lasting consequences affecting him- self. They not only influence his future action, but enter into and modify his physical constitution, and this effect is transmitted to his offspring. A man is what his thoughts and acts make him to be, and his posterity inherit and reproduce his virtues and his vices. Every virtuous thought and act tend to make the man better, and are the parent of other acts more virtuous still. As every man knows to some extent, consciously or unconsciously, that every one of his acts will be followed by consequences agreeable or injurious to himself, and will be acqui- esced in by others, or excite their displeasure, he is constantly considering conduct and consequences both in respect to himself and to others. This is the great study of life with all classes at the present time and has been such study in all times. It results in tracing out a sphere of conduct within which the individual can move and act with freedom and security, and beyond which he cannot pass without Growth and Function 127 encroaching upon the like sphere of another and exciting resentment with its consequences. If society were absolutely stationary, the boundaries assigning to each his own arena of action would become distinct and permanent, but as it is ex- periencing continual change, new conditions, exciting new thoughts and producing new forms of conduct, are continually arising and introducing confusion into customs which become gradually cleared up through the action of the same natural causes. Barbarous society is thus continually engaged un- consciously in the work of accumulating a body of custom embracing the wisdom of long experience transmitted from generation to generation, and in- creased in the transmission. Progressive societies both unconsciously and consciously, through the works of jurists, legislators, and reformers, pursue the same study of conduct and consequence, selecting and adopting whatever conduces to well-being, eliminating and repressing whatever is hurtful. The unconscious conclusions of the savage, the loftiest conceptions and aspirations of the sage, controlling manners and conduct, affecting the physical con- stitution and passing as an inheritance to posterity, become forever imbedded in the life of the race and express themselves in its customs. Custom, there- fore, is not the accidental, trivial, and meaningless thing which we sometimes think it to be. It is the imperishable record of the wisdom of the illimitable past reaching back to the infancy of the race, re- vised, corrected, enlarged, open to all alike, and read and understood by all. It was a happy ex- 128 Law, Its Origin pression of Lord Coke that the wisdom of the law was wiser than any man's wisdom. The work of the jurist to-day, the work of all the highest tribunals of enlightened Europe and America, is that same study of conduct and consequence which has been forever engaged in by the commonest of men. How poor the conclusions of the wisest of lawyers gathered from their own original reflections when compared with those garnered up in the actual customs of life! And how wretchedly poor in comparison are the written commands of the Sovereign State so far as they relate to conduct and manners, coloured and affected as they are with the ignorance, passion, and self-interest with which legislative bodies are filled! What higher or more dignified conception of the study of the law can there be than to make it ^ the task of seeking out, discerning, applying, and extending the principles upon which those grand generalisations of conduct have proceeded which are the fruit of human experience extending through countless ages? It may be wondered why the study of the law, which is the study of conduct and consequence, thus prosecuted from the infancy of time, should have left so many problems still unsolved, but it must be remembered that no human actions are exact repe- titions, and each as it occurs presents its own differ- ences, most of them indeed immaterial, and yet multitudes of them important. Life is an ever unfolding spectacle of new transactions and phases of conduct, which will forever demand the work of study and classification. Moreover, as the Growth and Function 129 moral nature becomes more sensitive, men become inclined to act more and more upon motives of justice and benevolence to others. The impulse is first felt by the more cultivated and intelligent, and tends to spread in ever widening circles throughout society. The higher forms of conduct ripen into new customs, and men become dissatisfied with the standards which the existing law applies. When these standards fail to conform to the actual customs their validity is challenged, and by degrees they become discredited and overthrown in the courts. The occupation of judicial tribunals and lawyers lies not only in solving new problems which the advance of time presents, but in correcting the errors of the past, or rather what would be errors if per- sisted in — that is, in conforming the law to the actual custom of the present. We have now reached what I conceive to be a just conception of the nature of Law in its largest sense; and this, not by starting from any a priori postulate, but from actual observation of the causes and rules by which human conduct ever has been and is, in fact, governed. The main elements of this con- ception may be thus summarised: f (i) Law begins as the product of the automatic action of society, and becomes in time a cause of the continued growth and perfection of society. Society cannot exist without it, or exist without producing it. Ubi societas ibi lex. Law, therefore, is self-created and self-existent. It is the form in which human conduct — that is, human life,presents itself under the necessary operation of the causes which govern 9 130 Law, Its Origin conduct. It is the fruit of the myriads of concur- ring judgments of all the members of society pro- nounced after a study of the consequences of conduct touching what conduct should be followed and what should be avoided. (2) Inasmuch as conduct is necessarily controlled by previous thought, and such thought is deter- mined by individual constitution, that is, character, and the environment, nothing can directly control conduct, which cannot control both character and environment. It is not, therefore, possible to make law by legislative action. Its utmost power is to offer a reward or threaten a punishment as a con- sequence of particular conduct, and thus furnish an additional motive to influence conduct. When such power is exerted to reinforce custom and prevent violations of it, it may be effectual, and rules or commands thus enacted are properly called laws; but if aimed against established custom they will be ineffectual. Law not only cannot be directly made by human action, but cannot be abrogated or changed by such action. (3) This thought, which must necessarily precede all voluntary action, is employed in the study of the consequences of conduct, and so far as concerns con- duct towards others (which is the only field of con- duct regarded by the law), it considers how any con- templated conduct will fairly be received — whether with satisfaction or with displeasure, whether with acceptance or with opposition; that is, whether it will comply with or disappoint a fair expectation. If the contemplated conduct is in plain conformity Growth and Function to custom, or the contrary, the judgment is instan- taneous ; if it is novel, hesitation arises and careful, perhaps prolonged, thought is given to it; but the thought is employed alone in considering the con- sequences of the conduct. This is the daily study of life with all men, and the study of the lawyer differs from it only in being pursued scientifically by an expert. (4) Since conformity to custom is the necessary form which human conduct assumes in social dealings, it is the only just and right form. No other standard can be erected over it. The raison d'etre of law, the function it discharges in the social organism, has already in great part been indicated; but the importance of a clear com- prehension of this justifies a little more extended treatment, for how can the work of legislation, which, in the modified sense already indicated, is the making of law, be well performed unless the function of all law be well understood ? In considering the function of law we are looking at it in its dynamical aspect as an operative force. Statistically regarded law is custom, when dynami- cally it is the force acting in harmony with custom and compelling obedience to it. What is the service which that force performs in the social organism, or rather what is the ultimate good at which it aims? Primarily we know that obedience to custom en- forced by law is a necessary condition to the existence of society, but society is not in itself an ultimate good ; it is but a part in the scheme which looks to the good of its members, to the good of the indi- i32 Law, Its Origin viduals who compose the race. Have we any means of knowing what the ultimate individual good is, so far as conduct is concerned? Going back to fundamental principles we find happiness to be "our being's end and aim," but in what line of conduct is the greatest happiness to be found? We have seen that it is not in immediate enjoyment, but that we often find a larger aggregate of happiness in postponing present enjoyment for more distant and wider results. These more distant results we may find to be desirable only because they are useful in securing results more distant still. Is there any final result, or condition, which we may pronounce to be good in itself, and at which we may aim as being the ultimate good, the summum bonum? Mr. Herbert Spencer gives an answer to this question which seems to me to be more agreeable to reason than any other. He regards the solution to rest in the answer to the question whether life itself is a blessing. Whoever thinks it is not a blessing, can find no real happiness anywhere. He is a pessimist and must welcome annihilation, as bringing an end to. present misery. But there are no real pessimists, at least among the sane. Life is a condition to which all cling, and for which most other things will be sacrificed. And if life itself is the supreme desire, the largest and completest life must be the nearest approach to pure happiness ; not indeed that momen- tary pleasure which accompanies the activity of any particular desire or passion, but that greatest aggre- gate sum of pleasures which is the fruit of the activity of all the powers of life. Growth and Function 133 Of the conditions necessary to enable the individ- ual to attain this object I name, without fear of contradiction, as the first, Liberty, the choicest of human blessings ; and I define Liberty as being the permission or power to do what one pleases to do without any . external restraint. Self-restraint we must continually exercise, and the practice of it is a means of the highest self -improvement ; but if one may do all he wishes to do without fear of external punishment or sacrifice he may be said to enjoy perfect liberty. He is then his own master. He then perceives the inevitable connection between his conduct and its consequence, recognises the fact that the pleasure or the suffering he experiences are rewards or punishments gained or suffered by him- self. He is then in a condition which he cannot otherwise enjoy, of working out that ultimate destiny which is in harmony with universal devel- opment and progress. It is manifest, however, that no such unrestricted liberty can be enjoyed in society. The primeval savage found that others desired the possession of the thing which was within his grasp, that he sometimes wished the exclusive enjoyment of what others possessed, and that moral struggles were thus pro- duced which aroused mutual resentments and con- sequent punishments, given and received. He learned to refrain from exciting the resentment of others, taught others to refrain in like manner, and custom thus fostered and enforced became the beginning of law. The direct and necessary tend- ency of this restraint was to trace out boundary 134 Law, Its Origin lines of individual action within which each person might freely move without exciting the opposition of others. Here we find exhibited in its earliest and simplest form the function of the law. It is to distinguish and separate the things which each individual may do or enjoy from the things which he may not do or enjoy without invading the equal liberty of others ; and when this is done the nearest approach to perfect liberty is reached. And if we look at the operation of the law under the complex conditions of modern enlightened life we reach the same result. If we scrutinise the proceedings in any judicial controversy we shall find that it turns upon the examination of some particular piece of conduct to determine whether it is within the rightful sphere of individual action. The study of the consequences of conduct prosecuted through countless ages has been animated by no other purpose and has had no other effect than to gather together and consolidate in the life of the race that vast body of knowledge which sometimes consciously, but more often un- consciously, instructs us what we may do without disappointing the fair expectations and provoking the opposition of others. The great German philos- opher Kant, assuming to proceed by an a priori inquiry reached the same conclusion and made this his definition of law : ' ' The sum total of the conditions under which the personal wishes of one man can be combined with the personal wishes of another man in accordance with a general law of freedom" and Savigny, after an inductive inquiry, more clearly expresses the same conclusion in his definition: Growth and Function 135 "The rule whereby the invisible border-line is fixed within which the being and the activity of each individual obtains a secure and free space." But the boundary line of individual action marks out not only the limits beyond which other indi- viduals must not pass, but also the limits which the state in its corporate capacity must not pass, and so in determining the true function of law we also determine the true province of legislation. Society has an organised power which is usefully exerted only for the purpose of assisting man in working out his destiny. This power operating externally pro- tects society against its enemies; its function in its internal operation is to insure the enforcement of law, that is of custom, and, so long as it confines itself to its true province, to make still more clear those boundary lines of individual action the observance of which is the supreme guaranty of Liberty. Any law which has an effect beyond that of maintaining these lines, is by so much an encroachment upon just liberty, and as that liberty is the choicest of blessings so that encroachment is the worst of woes; and whether it is made by the decree of an absolute monarch or by the regular enactment of the legis- lature of a democratic government, is, alike in either case, what we denominate by the word Tyranny. But I will not here disparage the high office of legis- lation by pointing out the evil which flows from it whenever it departs from its just province and invades the domain of Liberty. Within its province it is capable of a work of great and increasing beneficence. It is, even more than the work of the judge, the 136 Law: Origin, Growth, and Function conscious activity of society to improve its condition by improving its laws. In the order of succession this activity follows the work of the judge, f Custom f first operates unconsciously to produce law. ^Jn a / ^further stage of social advancement, society becomes an organised power and consciously exerts itself to 1 aid and perfect the development of law. ^Finally it / comes to do what the judiciary from its inability ; to break suddenly from the past and from its limited j capacity to continue political instrumentalities for \ the enforcement of custom is unable to do, not to \ make law, but to make rules relating to law, as well j as the complex machinery which the practical ad- I ministration of law by the state requires. Here is a task the proper performance of which taxes the highest capability of the intellect of man. It is here that the so-called great law-givers of the world have earned their glory. Moses and Solon tower above the great captains of their times. "The vain titles of the victories of Justinian are crumbled into dust, but the name of the legislator is inscribed upon a fair and everlasting monument." But I must reserve the subject of legislation for a separate and more particular treatment. LECTURE VI. OUR scrutiny into the causes which govern human conduct, while it has led us to the conclusion that custom is the principal one, at least so far as our relations with each other are affected, and the only one which the unwritten law regards, has in- cidentally informed us that the law, whether written or unwritten, does not attempt to enforce custom always and universally, and common observation equally apprises us that there is a part of the field of conduct of which the law for some reason takes no notice, and which is yet, in great part, though not wholly, under the control of custom. We cannot fully understand the nature and function of law, without including the whole field within the limits of our inquiry, and ascertaining what part of it lies beyond the scope of the law and the reasons which underlie the limitations which the law imposes upon its own activity. It is thus that some consideration of the subject of Morality becomes pertinent to our main inquiry. No one can become a thorough lawyer without an intelligent comprehension of the general subject of Ethics, nor, let me add, without a fixed and constant sense of the personal obligation to conform his own life to the rules which the study of Ethics reveals. 137 138 Law, Its Origin That part of conduct to which I now call atten- tion as being controlled by custom, without the aid of law, is that which relates to what are usually regarded, whether properly or not, as the smaller affairs of life, the less important intercourse of men with each other in society, and which is subject to social rules. We have found that the rules which the law sanctions require our obedience to custom because otherwise there would be incessant strife and violence; that is to say, that obedience to so much of custom is a necessary condition to the existence of society. It would seem to follow, there- fore, that if there be any part of social conduct which, though not involving the existence of society, yet affects in a material degree the comfort and enjoyment of it, — and there is a large field of such conduct, — it also ought to be under the dominion of custom. This we find by observation to be true. If I am invited to a dinner party, and accept the invitation, I am bound to keep the engagement, and this obligation, though I cannot be held answerable to the law for its violation, is enforced by sanctions sometimes more powerful than those of the law. All that the law can do to enforce its obligations is to annex to the violation of them undesirable con- sequences; but to the violation of some merely social obligations society sometimes attaches consequences much more feared. The offender seriously disappoints the expectations of his friend, excites his displeasure, and perhaps forfeits his friendship. The circle of his friends participate in the displeasure, withdraw their courtesies from him, and continued repetition of the Growth and Function 139 offence would bring upon him social ostracism. There are numerous offences against social custom which are punished in like manner. A man must not appear shabbily dressed, or in a state of intoxi- cation, or set a bad example. Offences like these disappoint expectation and create in others irritation and resentment. The ordinary rules of etiquette and fashion obtaining in social circles have a similar foundation and sanction. Social customs like these are often spoken of depreciatingly as merely con- ventional, or capricious, or whimsical. They do indeed differ greatly in importance from those of which the law takes notice, and very different degrees of culpability are attached to the violation of them. Such obligations, however, are, in their nature, the same as those of the law, the difference being in the rigour with which they are enforced. Where vio- lations of custom are calculated to excite such irri- tation and displeasure as to provoke violence and perhaps bloodshed they are destructive of society, and the repression of them becomes necessary to social existence. Society must apply to this repres- sion its most effective compulsory force, and this in civilised States is furnished by organised and regular law; but those offences which simply impair the comfort and pleasure of society are left to be re- pressed by the spontaneous action of social opinion operating in the ways I have indicated. The func- tions also of this social discipline are the same with those of the law, namely, to secure to every one the free permission to do all he wishes to do without encroaching upon the like liberty in others. Conduct 140 Law, Its Origin by one person which, though it does not injure another either in his person or property, yet offends his feelings, is an invasion of his personal sphere within which all wish to be secure from intrusion, and such security is necessary to the equal freedom of all. Social discipline and punishment begin, long before the law is reached, with all offences. Where the force of regular law is applied it is directed against those of greater magnitude, leaving the others, however, to be still enforced by custom. These two modes of discipline are alike also in this: the sanc- tions of each — that is, the forces which compel obedience — are external. They are not like the promptings of what we call conscience. I do not mean Jhat conscience does not ordinarily enjoin obedience to law or social opinion, — undoubtedly it does; but it does not necessarily do so; indeed it sometimes enjoins disobedience. Some, while agree- ing that we are bound to conform to custom so far as the law enjoins it, may not be inclined to concede the view that a like moral obligation exists to follow custom even when it is not enforced by legal sanctions. They have the feeling that it is best, so far as possible, for each one to determine what is right and to do that, rather than conform to a mere social standard. I will not stop here to inquire whether there is any such thing as absolute right, or in what it consists. I think it true that we all have a certain feeling that there is such a thing as right in itself, and however difficult it may be to define it, such difficulties do not detract from the dignity and importance of the sentiment. Those to whom Growth and Function 141 I refer perceive, what is indeed true, that the dic- tates of custom, whether enforced by law or not, are of a conventional nature, and they are therefore inclined to deem them of less weight, and especially is this the case when they find, as they occasionally, and perhaps often, must, that they are not in har- mony with their views of what is intrinsically right. They feel some hesitancy in determining what con- duct to pursue when custom points in one direction and conscience in another. That there is at times a real opposition here is doubtless true, and I am one of those who believe that the command of con- science in such cases should be obeyed; but it should be the true voice of conscience, and not what it is apt to be, that of ignorance, self-conceit, or obstinacy. What I wish to point out, in the firsti place, is that custom, however conventional, doesj in nearly every case dictate what is just, according I to the common sense of justice. I start with the' assumption, which every one must concede, that human society is the necessary product of the human constitution. If we consult our own consciousness we find that we are so made that we cannot live except in society, and observation teaches that man is nowhere to be found living in any other condition. Whatever is necessary in the scheme of the universe must be right, and society therefore is right and necessary, and what is necessary to society is, in itself, necessary and right. Now, if in coming into society each individual should deem himself obliged to pursue that conduct, and that alone, which he deemed to be intrinsically right in itself, and should Law, Its Origin act accordingly, he would find that he was con- tinually disappointed in the conduct of others affecting himself, and that others were alike dis- appointed in his action affecting them, for it is certain that their notions of what was intrinsically right would not agree. Some would be better edu- cated than others, and would reject the standards which others would adopt. Some would be misled by vanity, or other faults, much more than others. In short, there would be every variety of difference of opinion, and consequently, every variety of action. If these differences were impartially weighed they would generally be found not to be of much moment, but such is the effect of vanity and obstinacy that, in the eyes of the individuals, they are magnified and assume an undue importance. Disputes and collisions, with the consequent disappointments and irritations, would mark all social intercourse, and greatly impair that harmony essential to the happi- ness and benefit of society. Nothing but law would prevent bloodshed and violence, and such dissension as the law did not assume to restrain would widely prevail. It is therefore manifest that some rule other than the individual sense of right should be adopted for the government of conduct in that field not occupied by the law. The notion that each indi- vidual should be left to follow the dictates of his own conscience must be at once abandoned. What sub- stitute can be found ? It might be suggested that a few of the wisest and best might be selected to frame rules, but they would inevitably frame such rules as would accord with their individual notions, and Growth and Function 143 to impose them upon others who did not happen to agree to them would be mere tyranny, and defensible only because it seemed to be necessary. Moreover, how could any human beings, however good and wise, frame rules which would serve to govern those infinitely numerous and varied acts which make up the ordinary intercourse of social life, and how could the rules be learned ? This is manifestly impossible. If it were possible that a body of rules could be framed by the equal voice of all, which would represent the average beliefs and sentiments of all, with a certainty which all would admit, and it could be perfectly learned, it would seem to be an ex- pedient as good as could be desired. What is needed is an ever-present guide informing us instantly how to act without stopping to think. Inasmuch as every one of our acts is preceded and caused by a thought, a man's conduct is the unerring evidence of those thoughts. Customs, therefore, being common modes of action, are the unerring evidence of common thought and belief, and as they are the joint product of the thoughts of all, each one has his own share in forming them. In the enforce- ment of a rule thus formed no one can complain, for it is the only rule which can be framed which gives equal expression to the voice of each. It restrains only so far as all agree that restraint is necessary. It is the reign of liberty, for it gives to each individual the largest possible area in which he can move and act with unrestricted freedom. This discipline is the source of the courtesy, deference, politeness, and all the graces of social life. Moreover it has i44 Law, Its Origin the same supreme excellence which belongs to the enforced rules of law. It is a growth beginning like the law far back in the early stages of civilisation, cultivated by the contributions of wisdom and experience, the final result of the combined efforts of society to select and retain what is beneficial, and reject what is hurtful. Manifestly rules thus framed must be superior to any which the wit of particular men could devise. They are not indeed perfect, and as they are the product of the average thought, must change as that thought changes — that is, as the moral sentiment expands and develops. There still remains another division of the field of conduct which I have not as yet touched. It is one over which custom, whether alone or reinforced by law, asserts no jurisdiction. It is where man enjoys absolute freedom from external control. Inasmuch as custom dictates what we must do in that part of our conduct affecting the existence, good order, and comfort of society, if there be any part of conduct which does not involve the welfare of others, there interference should stop, and man be left absolutely free. I do not mean that he should be free in the sense of being no longer governed by a regard to the consequences of his conduct, but free so far as respects external control. The great law of causation, as supreme in the moral as in the physical world, here operates to attach to every action its inevitable consequences, and this supplies motives and influences conduct; but, aside from this, man is here free. This is the world of personal and individual life, not less interesting than that of sociaL Growth and Function 145 life. It covers conduct so unimportant or so trivial that it is not worth while for others to concern them- selves with it, as what a man eats, or drinks, or wears, what occupations he follows, what amusements he enjoys, what society he prefers ; these are his concern alone. It covers also conduct too lofty and serious to be graduated by an average which would destroy individuality and bring all men to a common level. A man must practise so much of justice, charity, sympathy, and benevolence, as others may fairly expect of him, but while he must not display less, others will not complain if he displays more. He must be a good citizen and neighbour ; he may be a conspicuous blessing to his race. What is the rule which here regulates our lives? In considering that part of our conduct which con- cerns others, I have sought to discover those rules only which actually regulate conduct, not those which ought to regulate it. Science asks primarily only what is, not what ought to be. So the question here is what, in fact, regulates our personal and individual life, not what ought to regulate it, although I imagine that the rule which will be found in fact to exist, is the best. If there be any rule, it must be one founded in the nature of man, and we cannot change it if we would; and necessarily — so, at least, we must admit — it must be the best possible rule. In answering the question I must take a step fur- ther back than I have yet taken towards the origin and cause of all conduct. The all-pervading law of causation teaches us that for every act there is a cause, and the cause of every voluntary act is what i46 Law, Its Origin we call a motive. Conduct of necessity obeys the strongest motive, and if we perfectly knew in the case of any individual what his constitution — that is, his character — was, and what the surrounding attrac- tions and repulsions presenting themselves to his mind were, we could with certainty predict his action. I shall not attempt to solve any of the puzzles presented by the speculations concerning the freedom of the will, but that we do in fact act in obedience to the strongest motive is a truth made evident by all human experience. If we wish to induce any one to do a particular act, we know of no means to that end except the furnishing to him of something which will create, or strengthen, in him some motive to do it. Even custom has no power by which it can compel a man actually to do anything. It can, by creating the fear of legal punishment or of adverse opinion, induce him to do, or to refrain from doing ; but this is simply supplying a motive; and the most dreaded punishments of the law or of social opinion are effective only so far as they create an efficient motive. And all motives are, at the last analysis, of the same nature with all men. They all resolve themselves into the simple desire to enjoy pleasure or happiness and to escape pain. The debauchee who plunges into sensual excess, and the lone ascetic who seeks to mortify every appetite with the scourge, the youth struggling for the Olympian wreath, or the martyr at the stake, are alike animated by the same motive — to experi- ence pleasure, or to avoid a greater pain. But how different the consequences of the conduct of different Growth and Function 147 men who yet act, and who cannot help acting, from the same motive! One man thinking of nothing but the pleasures of the flowing bowl commits excess, and awakens from debauch to find himself an object of pity or contempt to his friends and of self-disgust. Another thinks of next morning's headache, observes moderation, and awakens after his sleep happy and ready for the duties of the coming day. What makes this difference between the preferences which have shaped conduct in these two instances? I apprehend that it is just this; that one thought only of the pleasure coming immediately from indul- gence, while the other looked further to the more distant consequences of conduct, saw pain to be avoided and other pleasures to be enjoyed by modera- tion, and in order to gain what would be, on the whole, a greater sum of pleasure, postponed a present enjoyment to a future good, and practised self- restraint. He looked beyond the immediate to the more distant consequences of conduct, and governed his own action by a regard for them, and found therein a greater sum of pleasure. We here reach a thought upon which we cannot dwell with too much attention. Here is the respect in which man stands above the brute creation. Some of the lower animals do indeed store food in harvest-time for subsistence in winter; but I know of no other instance in which they practise self- restraint, — if indeed they do so here, for perhaps they do not lay away food until immediate appetite is fully satisfied; and so much is necessary for the preservation of the species. The provident conduct 148 Law, Its Origin stops there. It is also the respect in which some men stand in supremacy over others, and the su- premacy is in the proportion in which they exercise self-restraint. It is also the prime respect in which civilisation rises above barbarism. The savage cap- tures wild game sufficient to satisfy the immediate demands of his appetite, and then sinks to ignoble ease, or indulges his brute and warlike passions. The civilised man undergoes what with other pur- poses would be painful labour, and gathers a supply more than enough to sustain himself and his family, and employs the surplus in improving his habitation, procuring better clothing, providing means by which he may better enjoy his leisure, not only in making himself and his family happy, but in creating a scene of happiness about him. Man here acts in obedience to immutable laws. He is impelled by nature to seek happiness. He finds that conduct in one direc- tion is the source of happiness, in another of misery. The consequences which he has seen to flow from a line of conduct he expects to repeat themselves if the conduct is repeated. Moreover, his disposition to obey these teachings is strengthened and ad- vanced by growing and developing moral sentiment. He finds, at first, his happiness increased in the narrow circle of his family and home, then his regard and interest extend farther, and he finds increased happiness in the enjoyment of his friends and society. His sympathies become developed and enlarged, and elevate and enlarge his standard of conduct, and lead him to take within its range broader and broader circles, and to this result of Growth and Function 149 the alternate action and reaction between the sympathetic and the intellectual nature there is no end until it is recognised that — "All are but parts of one stupendous whole." And the habits thus engendered of seeking the more remote and wider good tend to rob that pur- suit even of the pain of self-restraint and convert it into a pleasure. An object repeatedly pursued for the sake of the pleasure it eventually brings becomes loved for its own sake, and the ultimate pleasure in the end is sunk in the present enjoyment of the means, and thus real happiness is found to consist in the well directed activity of our powers. How true this is in the pursuit of knowledge we all know, "If, " says Malebranche, "I held truth captive in my hand I would let it fly, in order that I might again pursue and capture it." 1 Does man in thus forbearing to gratify immediate desire and practising self-restraint in order to gain a more distant, but larger, good obey a rule? I con- ceive that he does. A rule is something obedience to which implies the pain of self-restraint, which is a real pain, at least until obedience to the rule has become so habitual and full of reward as to be trans- formed into a pleasure. If man simply yielded his conduct to the attractions of immediate enjoyment without regard to the ultimate consequences, pleas- ure would be the end of his conduct, but we could not properly declare it to be the rule. We should rather say that the man acted without rule. But 1 Hamilton's Lectures on Metaphysics, Boston, Lecture I. p. 9. i5° Law, Its Origin all men, except the utterly bad (if there are such), find that, in order to gain the largest sum of that which they universally and constantly seek, namely, pleasure, they must scrutinise the consequences of conduct and follow that line of action which, on the whole, is calculated to procure for them the largest measure of happiness; and the more civilised and enlightened they are, the more they feel bound to make this scrutiny, and to follow the conclusions to which it leads, even though it compels some self- sacrifice, self-restraint, and pain. Here is a rule, and an actually existing rule which men, or the bulk of them, really observe not completely and in all instances, for they frequently violate it, but it is none the less a rule. The law and custom are fre- quently violated, but they nevertheless remain rules. This contemplation of the probable, or certain, consequences of our conduct is obviously the mere exercise of what is called our reason. It is the endeavour to know what will happen in the future by considering what has happened under like circumstances in the past, and the rule of which I speak is a feeling that we must act in a certain way in order to bring about or prevent, as the case may be, the most desired, or the most feared, conse- quences. And there is no other actual rule in this field of personal and private conduct. If the viola- tions of it were more numerous than the compliances, and were all, or the bulk of them, prompted by the same cause, and that cause were one that restrained conduct, they would themselves constitute the rule. But no one will contend that this is the case. That Growth and Function 151 man should habitually act so as to gain misery for himself is not easily thinkable. All the violations of this rule consist, not in restraint, but in licence. The only consideration which restrains conduct is the dictate of reason advising the sacrifice of immediate pleasure for a more distant and wider happiness. The violations of the rule are really but exceptions, however numerous. The rule therefore which in fact governs in this sphere of personal and private conduct is that which impels us to obey the dictates of reason founded upon a scrutiny of the consequences of conduct. Ought it to be the rule ? This is an audacious ques- tion which we are not permitted to ask unless we are vain enough to presume to sit in judgment upon the work of the great Author of all, and imagine that we can discover a better one. What is the name given to this rule? Common speech frequently affords the most precise defi- nitions of things which it is difficult to well describe, and it does so here. It is conscience, the inward monitor — con and scire, to know or to feel — a con- viction within one's self as the product of one's own thought. And thus the universal feeling that man ought to follow the dictates of his conscience has a scientific basis. While conscience informs us that we should, in general obey the law and custom, for the reason that they embody the results of the common thought of all and of the operation throughout the unlimited past of that same reason which gives our own con- sciences the light by which they are guided, and are i52 Law, Its Origin thus the fruit of the experience of the race, which is wiser than any man's wisdom, still its own final command is supreme over both custom and the law. There may be cases in which a man maybe justified in defying custom, and even the law— " What conscience dictates to be done, Or warns me not to do, . This teach me more than hell to shun, That more than heaven pursue. " But we should be certain that the whisperings of vanity or the promptings of obstinacy are not mis- taken for the true utterance of the inward monitor. The former are likely to be regarded by others with contempt, the latter points out the pathway which heroism treads, and may win the crown of martyrdom. There is a certain feeling common to all which tends to make us think that conscience is a separate faculty bestowed upon man, a moral sense which instinctively and immediately informs him what is is right and what is wrong. We speak of the ' ' voice within" and use other phrases importing the exist- ence of such a moral faculty. For this view there is really no foundation. It can hardly be that there are two independent rules for conduct. If we have a moral sense which by its inherent power discerns and declares what is right it must be unerring. We should follow its dictates implicitly. We should never indulge a second thought. If what we call reason, or a regard for consequences, should be allowed to control our conduct, in opposition to this Growth and Function 153 interior sense, we should be following a false light. But we have no moral sense other than conscience, and this is, in fact, only another name for the dictates of reason founded on a view of the consequences of conduct. Whenever a question concerning conduct arises, we instantly proceed to ponder upon the con- sequences. We may be sure that those causes con- trolling conduct, which are the only ones we are ever conscious of obeying, are the only ones we, in fact, ever obey or ought to obey. The illusion, so to speak, by which we are led to imagine that conscience is a special faculty bestowed upon us arises, I apprehend, from the instantaneous action of reason in many cases. When we reflect that during the years of childhood we were daily taught that we must do certain things, and must not do certain other things, and that ever since we have been habitually practising upon precepts thus ac- quired and upon others formed by ourselves, we need not marvel at the rapidity with which we go through the mental acts necessary to direct our ordinary conduct. It is analogous to the like rapidity with which we exercise our bodily muscles. The action seems spontaneous and instinctive. What I have been saying tends to explain the peculiar significance of the word ought which has been the subject of much discussion. That we have a feeling well enough described as the " sense of ought1' I readily agree. It suggests to us an immedi- ate pointing of our conduct in a certain direction. It gives no reason, but assumes to speak, as it were, from its own authority. This arises, I imagine, 154 Law, Its Origin from the immediate recognition of the moral quality of actions which have been many times in our thoughts. As just mentioned, in childhood we were taught innumerable things, which we must, or must not, do, and since the period of childhood we have been teaching ourselves, with the aid of experience and reason, similar lessons, and thus we have been forming vast classifications of such things, and when in the course of our daily lives the temptation, the impulse, the occasion for doing any one of them arises, we do not go through any consideration of the con- sequences which may flow from the contemplated conduct ; all questions concerning its propriety have already been met and answered by early instruction or self -discipline; the act contemplated is at once perceived as falling within a class, the distinguishing characteristic of which is that it ought, or ought not, to be done; oughtness or ought-notness is the quality of the class, and affects the mind immediately, in like manner as the qualities of physical objects, such as whiteness, or smoothness, or hardness. This instantaneous recognition of the quality of actions founded on early teaching or self-discipline is, I apprehend, the feeling akin to the voice of conscience, which is often called our moral sense, or the sense of ought, or ought not. The utility of such a guide we readily understand. Were it necessary for us in our ordinary conduct to be pondering upon possible consequences at every point, life would be the scene of constant perplexity. The conclusions of reason tested by countless experiences, arranged and classi- fied, are like the digested wisdom of a body of ad- Growth and Function 155 judications in the law. The habits of our personal lives, like the customs of social life, become the repositories of the numberless conclusions of experi- ence. They are really the conclusions of reason founded upon the consideration of conduct, but they so instantaneously inform us as to what is to be done that we are not conscious of any deliberation and seem to be commanded by some mysterious inward monitor. The word ought has its correlative in right. I ought to do whatever it is right for me to do ; but right is more properly descriptive of the intellectual con- clusion of reason, while ought imports the sense of obligation to govern conduct in accordance with that conclusion. The reality and significance of the divisions I have made of the field of conduct are well illustrated by a comparison of the meaning of the words just and ought. Ought, as we have seen, is the voice in which conscience speaks; but what is the precise significance of just ? What is justice ? There has been much uncertainty upon this point. To some it has seemed to import a sublime attribute, almost an emanation, as it were, of the Deity, recognisable by an innate moral sense. Some regard it scarcely more than a synonymous expression of what is right or ought to be done. But the attempt to form a conception of some absolute attribute which would properly be named justice is an abortive one. All we know is that certain acts are called just, and we feel them to be just. The difficulty is in saying what things, and what only, belong Law, Its Origin to that class. Certainly all right things are not properly called just. It is right to aid the dis- tressed, to go to church, to cherish one's friends, but such acts do not possess the quality which justice denotes. If a man indulges to excess in intoxicating drinks, or engages in any other vice involving himself alone, we should say that his action was very wrong, but we would not call it unjust. Do unto others as you would that others should do unto you, would satisfy the sentiments of love and charity, but not that of justice. Justice, in its primary signification, comes into play only in respect to that part of the conduct of an individual in which others are concerned, but yet not all of that falls within its sphere. There are a multitude of minor customs and observances of life in which the word is not well employed. The disregard of common social obligations would not excite the sense of injustice. It is the matters of graver importance of which the law takes cognisance that fall within the field where justice has sway. It has relation to that body of rights which the law actually enforces, and which is called in the Roman Law by the word from which it is derived, jus. Hence the term jurisprudence, which is the science of legal justice— that is, of justice so far as it is enforced. And yet justice and law are equivalent words. We say sometimes, very properly, that a law is unjust, meaning that it is not what it ought to be, but there is no point of view from which we can criticise justice. Justice considered as a sentiment is the sense of Growth and Function 157 what ought to be done by one to another, and this is, necessarily, what one might fairly expect from another — that is, what is customarily done, for no one would think it justice to require from one any- thing not in accordance with custom. The occasions which call justice into activity are those in which there are differences between men, assertions of rival claims, irritations, and premonitions of strife, or actual strife. It is then that the need is felt of something which will allay' hostility and bring about peace. This can not be done by mere force. You may let contestants fight it out until one has con- quered the other, but this will not allay the irri- tation; it may serve only to fan the flame and induce preparation for another struggle. Nor will it be of any avail to imprison the contestants. The quarrel will be taken up by families, and friends; but if that one thing were done which all — excepting perhaps the contestants — will regard as the thing fit to be done under the circumstances, the strife would be ended. The contestants could not con- tinue it, for they could retain no sympathy or aid, and would be denounced on all hands as disturbers of the peace. Now there is one thing in such cases which all would think fit to be done, and that is what all, in general, would expect to be done, and this, as I have reasoned out at length, is a compli- ance with custom. But if the custom be doubtful, what then? This is the case in very many disputes; it is what the contestants are quarrelling about. The thing to be done is to ascertain the custom and conform to it. This is precisely the thing for which 158 Law, Its Origin courts were established, and hence they are called courts of justice. This strict limitation of the word justice to such matters as the law takes cognisance of must be enlarged to take in other cases in which the word justice is used in an analogous sense. There may be disputes of which the law takes no notice. One man may have impugned the character of another and a challenge has passed ; the seconds attempt to bring about a reconciliation without success. Each is prejudiced in favour of his princi- pal; the intervention of third parties is accepted, and they ascertain as nearly as possible which of the combatants has made the first departure from cus- tom, and dictate the mutual withdrawals and repara- tions which, in their opinion, should compose the difference, and all say justice has been done. The absolute supremacy of the rule of custom in determining the character of conduct is well shown by one of the common employments of the word justice. Suppose a law be enacted making it a misdemeanour for a man to enter upon the land of another after the other has, by notice in writing, for- bidden him to enter, and the person forbidden goes upon the land to recover some cattle belonging to him who have strayed upon it and are doing mischief. He is prosecuted and fined. The law has been exe- cuted, but all would say that injustice has been done. Justice, therefore, is something which sits in judgment even on the law. But what kind of law is it which thus sometimes operates to inflict injus- tice instead of doing justice? Not that unwritten law which springs from custom, but that written Growth and Function enactment which a few men called legislators frame. How seldom do we find anything but satisfaction with the judgments of our courts enforcing the unwritten law of custom? Suppose the trespass upon land just mentioned had been left to be re- dressed by an ordinary suit to recover the damages occasioned by it. The judge would have instructed the jury that the plaintiff was entitled to a verdict for whatever actual damages he had suffered, and the jury would have accorded him six cents, and all would feel that justice has been done. What is it that gives to the word justice its deep and august significance — its supremacy among the moral sentiments? I think a sufficient answer to this question is found in what I have said of the true nature of custom. When we reflect that the lives, peace, and comfort of men from the infancy of the race have been threatened and disturbed by the conduct of one individual exciting the resentment and passion of another and prompting retaliation and revenge, and that the only escape from the terrors and fears thus arising has come from the doing of that thing which all agree is fit to be done, and that to this thing the word justice is given, we can understand the power and solemnity with which the word is invested. It imports the end of strife and violence and the incoming of satisfaction and peace, and as it is the only thing which will bring this satisfaction and peace, its dictates are supreme and final, admitting of no appeal. Why does not the written law in all cases affect us with the same reverent regard? Why do we feel at liberty some- 160 Law, Its Origin times to denounce a regularly enacted statute as wrong, tyrannical, and unjust? It is because it is but the product of the will of one or a few men, and is liable to be affected by the ignorance, passion, and error to which their judgments are subject; but there is no ignorance, passion, or error in those conclusions of wisdom, tested by the experience of ages, which lie imbedded in the customs of life. We here again encounter a certain feeling of dis- appointment in finding Justice, which we have been wont to regard as an attribute almost of Divinity, so closely identified with the mere following of custom. We would have it something lofty, eternal, and unchangeable, but we find it, or rather its stand- ards, shifting as custom shifts. This phenomenon, in the view of some great minds, has tended to de- throne Justice from its lofty seat. It provoked the misanthropy of Pascal into some striking exaggera- tions. He says : "In the just and the unjust we find hardly anything which does not change its character in changing its climate. Three degrees of elevation of the pole reverse the whole of jurisprudence! A meridian is decisive of truth, or a few years of possession! Fundamental laws change! Right has its epochs ! A pleasant justice that, which a river or a mountain limits! Truth on this side the Pyre'ne'es, error on the other!'" But he hinted at a profound truth when he said : "Custom is a second nature which destroys the first. Why is not custom natural? I am greatly afraid that nature itself may be only a first custom, as custom is a second nature.1" 1 Pascal, Pensees, partie i., art. vi. Growth and Function 161 But the change is not in justice itself, but in the things to which it relates. If we remember that thought is the product of the action of the environ- ment on our organs of sense, and that the environ- ments and the constitutions of men are everywhere different, thoughts must be different and customs different. This is what separates man into different national groupings, and unites man with man in the separate groupings. The genial philosophy of Herod- otus, springing from his communion with men rather than from solitary contemplation, took a different view of custom. He is thus quoted by Sir William Hamilton: " The whole conduct of Cambyses toward the Egyptian gods, sanctuaries, and priests, convinces me that this king was in the highest degree- insane, for otherwise he would not have insulted the worship and holy things of the Egyptians. If any one should accord to all men the permission to make free choice of the best among all customs, undoubtedly each would choose his own. That this would certainly happen can be shown by many examples, and, among others, by the following: The King, Darius, once asked the Greeks who were resident in his court, at what price they could be induced to devour their dead parents. The Greeks answered, that to this no price could bribe them. Thereupon the king asked some Indians who were in the habit of eating their dead parents, what they would take not to eat but to burn them; and the Indians answered even as the Greeks had done." l And Herodotus added that Pindar had justly en- titled Custom as the Queen of the World. In associating Custom with Justice, therefore, we do not dethrone the latter, but seat Custom beside » Hamilton's Lectures on Metaphysics, lecture v., p. 60. ii 1 62 Law, Its Origin her. Justice is the felt necessity of doing that which secures order and peace. Custom furnishes the rule which answers to that necessity. The imperious necessity of justice is acknowledged even by those who hate it. The bad must fly to it as well as the good. The footpad plying his avocation on Hounslow Heath, who filed a bill in equity to compel his pal to give an account of the purses he had taken, had an impregnable case on grounds of justice as between himself and his confederate, though he had mis- taken his forum. Fisher Ames, in a celebrated de- bate upon the treaty with Great Britain, arguing that the carrying out of that treaty was required by a regard for justice, well described the force of that obligation : " If there could be a resurrection from the foot of the gallows, if the victims of justice could live again, collect together, and form a society, they would, however loath, soon find them- selves obliged to make justice, that justice under which they fell, the fundamental law of their State." i Justice is, therefore, not an absolute, but a relative virtue, finding its play in that field of our conduct which, according to the division I have employed, relates to our dealings and intercourse with each other in society, and enforcing in that field the things necessary to the existence of society. This existence is assured when, and only when, each receives from all the treatment he may fairly expect. Then men love to live together; otherwise they fly apart as if charged with resinous electricity. Justice may therefore be defined to be the principle which dic- 1 Fisher Ames, vol. ii., p. 61. Growth and Function 163 tates that conduct between man and man which may fairly be expected by both, and as none may fairly expect from another what is not in accordance with custom, justice consists in the compliance with custom in all matters of difference between men. It is the right arm of Peace and the antithesis of Force. This accords with the definition of the Roman Law — constans et perpetua voluntas suum cmque tribuendi. To each his due; but as we can know the due of each only from the common feeling of what is due, and this is dependent upon custom, the identity of justice with conformity with custom is implied. The comparative significations of justice and right here become apparent. I have heretofore said that conscience is the supreme and final arbiter over the whole field of conduct, while justice is concerned with that part of it only, which relates to our deal- ings with each other. The dictate of conscience is properly expressed by right, and this, therefore, is a larger term than justice. Right includes the just. Whatever custom pronounces to be just, conscience in general accepts and declares to be right; but in the field of purely private conduct justice has no concern, and what is here right, is not properly described as just, and although in all ordinary cases conscience declares the just to be right, there may be an exception. It is this possi- bility which gives rise to one of the difficult questions in casuistry, namely, whether it can be right under any circumstances to violate a promise upon which the promisee has acted. 164 Law, Its Origin What is the difference between the words must and ought f They are sometimes used in senses which have no ethical significance. Either word may be employed in common speech to indicate the necessity of some particular instrumentality to some particular object. Thus I may say I ought to have, or I must have, a sharper knife to cut this meat, and there is no important distinction between the meanings of the words when thus used. But there is a differ- ence when they are used in their ethical senses; there is a difference which the dictionaries do not explain, and which seems subtle and obscure. I think that the obscurity will be cleared up by stating that these words relate respectively to the two principal divisions of the field of conduct. Where the conduct in question consists of transactions in which the interests of more than one are concerned, must is more properly employed. Such conduct is governed in part by the law and in part by the other rules of custom, and the sanction or obligation attached to them is external to the individual. It is an external force over which he has no control, which he feels bound to obey without stopping to consider what the consequences may be. The law tells me I must, not that I ought, and I say to myself — I must do this, or I must not do that, because the law in the one case commands, and in the other case forbids. And it is the same with those obliga- tions of custom which are not enforced by law. If I have accepted an invitation to dinner, but do not wish to go, I feel an external force pressing me to go, and I feel that I must go. The question of con- Growth and Function 165 sequences is not ordinarily in these cases to be considered. I must obey the law without regard to consequences, and social custom as well, although the obligation is not in the latter case usually so rigid. But when we come to the field of private personal conduct the case is different. Here we feel no external authority speaking in the language of com- mand. Here conscience has an exclusive juris- diction, and its language is not "you must" or "you must not," but "you ought" or "you ought not." Nor are consequences felt to be immaterial here, on the contrary, the decision is arrived at as the result of a survey of all ' the consequences. The difference between the words comes into strong relief when they stand, as they sometimes do, in opposition to each other. Although private and personal life is the immediate and principal sphere of the activity of conscience, yet conscience as the ultimate governor of our entire conduct has a supervisory jurisdiction over the commands of custom and even of law. In ordinary cases conscience tells me to obey both, for both are in general neces- sary, or contributory, to the highest good; but sometimes it calls a halt, and advises a wider survey of consequences, and possibly disobedience. We can, indeed, hardly imagine conscience as ad- vising disobedience to the whole body of the un- written law, but particular enactments may easily be imagined, and perhaps found, which conscience would say might well be disregarded, and to over- throw the existing rulers and substitute new ones is 166 Law: Origin, Growth, and Function a right which in certain cases Americans cannot deny. In such cases, "I must" yields to "I ought.'* I am a military officer and am challenged to fight a duel. I feel that I must accept it, but conscience may interpose and change the feeling to "I ought not." The external authority of custom, even when not enforced by law, carries with it in most cases the superior power; "I must" is more likely to be obeyed than "I ought," but with the men of the highest mould the obligatory force of ought is equiva- lent to that of must, and the words are interchange- able. Alexander Hamilton gave a pathetic picture of the struggle between these rival sentiments when, having on many previous occasions borne his testi- mony against the practice of duelling, he said on the eve of his fatal meeting with Burr, and in the last words he ever wrote: "The ability to be in future useful, whether in resisting mischief or in effecting good, in those crises of our public affairs which seem likely to happen, would probably be inseparable from a conformity with public prejudice in this particular." 1 1 Hamilton's Works, vol. viii., p. 628. LECTURE VII HAVING completed the survey I designed of the whole field of human conduct with the view of ascertaining the causes which in point of fact con- trol and regulate it, it may be well to set forth in the form of a summary the general conclusions which that survey seems to justify and the steps by which it is reached. Conduct consists in some physical movement of the body, and it is of such movements only that the law takes direct notice, although in some exceptional cases where the nature of an act is qualified by the intention which prompts it, it may inquire as to that intention. Man has thoughts or feelings moved by the action of the external world upon his physical constitution which necessarily impel him to action, and inasmuch as the constitutions of men are similar, and the environments, in the same society, similar, the actions of men in the same society are similar, and conduct is consequently necessarily exhibited in the form of habits and customs. Man learns by experience that all action is product- ive, in its consequences, of either pleasure or pain, and, by a natural law, he expects that the same conduct, when repeated, will produce the like con- sequences. The motive to all action is to enjoy 167 1 68 Law, Its Origin pleasure or to avoid pain, and he can know what will afford him pleasure or relieve him from pain only by attention to the consequences of his conduct. The study of the consequences of conduct is there- fore the first, as it is the last, in which man is forever in every waking moment engaged. From this study he learns that certain kinds of conduct — that is, certain actions, — produce pleasure, and that others produce pain. These he classifies and is moved in his conduct to repeat the former and avoid the latter. He learns, however, that while the immediate con- sequences of some acts are pleasurable, they yet re- sult eventually in a greater aggregate of pain, while others which have consequences immediately painful produce eventually a larger sum of pleasure, and he learns to forego the immediate gratification of his natural desires and tendencies in the hope of securing a more distant but larger good, or of escaping a more distant but greater pain; that is, he restrains and governs his conduct according to his knowledge or judgment of its consequences. Here we have a rule of conduct. When man acts in pursuance of immediate natural impulse, he acts without rule; but when he follows a teaching or principle formed by a generalisation of the consequences of all con- duct open to his observation, and restrains his impulses in accordance therewith, he obeys a rule. The phenomena of the development of this funda- mental law require us to divide the field of conduct into two parts by separating that which affects only the individual acting from that in which his action affects others. In the first, man has ever Growth and Function 169 been and still is free from external restraint. He still acts according to rule, but that rule is furnished by his judgment of the consequences of conduct in their operation upon himself alone — that is, according to his reason, or what we call conscience, — and a survey of this field with an arrangement of the different varieties of conduct according to their consequences constitutes one branch of the science of ethics. The other field, the social one, differs only in this, that the individual finds that unless he regulates this part of his conduct in accordance with the fair expecta- tions of others, he will suffer punishment of some sort from them, and this supplies an external re- straint as a motive to induce him to shape his conduct in accordance with such expectation. The reason why he thus governs his conduct is that if he fails to do so he is likely to suffer punishment or disap- pointment from those whose expectation he dis- appoints, and this compels him to take notice of what that expectation is ; he finds that others expect him to act as he expects others to act in accordance with custom, and custom thus becomes the law in this field of conduct. The only means of enforcing this law of custom in those states of society which precede that in which it takes on an organised form is what is called self-help aided by social sympathy and other social influences. The individual takes the law, so to speak, in his own hands, and by in- flicting punishment on those who violate custom creates the motive for yielding obedience to it. This punishment may not be physical or violent. It is apt to be so where the offence is flagrant, but 1 70 Law, Its Origin minor offences are punished by social disapproval manifested in various ways. A marked change follows the adoption of organised government. This organisation exists from an early stage in a simple form for various social purposes, but its improvement is very largely superinduced by the felt necessity of doing away with the violence and mischief of self-help. The men of approved wisdom or other experts in the knowledge of customs are employed who declare what custom requires in cases of dispute, and by degrees society comes to use means for enforcing their decisions, and regular law comes into operation. But as this organ- ised control was reached in order to supplant the violence of self-help, its action is correspondingly limited, and is exercised only in the case of those breaches or alleged breaches of custom which en- danger the peace of society. The less important conduct is left to the regulation of custom by the methods before employed, the expression of social disapproval and social ostracism. As civilisation advances, and population, industry, and wealth increase, the social organisation expands and advances, and the means for ascertaining and enforcing custom become more perfect until regular judicial tribunals are established, armed with the whole power of the State to directly enforce then- decisions. The proceedings of these tribunals are embodied in permanent records, and their decisions act as authoritative declarations of binding custom — that is, they become precedents, and thereafter in cases of litigation where an apt precedent is found it Growth and Function is followed without further inquiry, and the pre- cedents themselves are by the private work of jurists arranged in scientific form and go to make up the fabric of substantive law. In the course of this social progress the more com- pletely organised State becomes capable of surveying its own condition and wants, and of perceiving that justice would be better administered if better pro- vision in the way of courts and judicial procedure were made, and if mischievous acts which have not as yet been publicly punished were declared and treated as crimes, and that the mechanism of gov- ernment in all its parts might be improved by new devices. It forms its will in respect to such concerns, expresses it in writing, and solemnly declares it by means of enacted laws. This is the making of Public Law in which legislation found its first employment, and which is still its chief, if not its only function. If we scrutinise the actual process which we employ to-day in ascertaining the law in any par- ticular case, we find that if the point in question be public law, we turn to the statute-book; if it be private law, we turn to the body of precedents. The information we thus derive suffices for all cases of ordinary doubt, and the great body of human conduct appears as a spectacle of peace and order. There are exceptions to this, where wrongdoers intentionally, or the ignorant innocently, violate the established customs, and there are other excep- tions where from the novelty of the transactions it becomes matter of doubt even with experts to what class the conduct in question belongs. Inasmuch as i;2 Law, Its Origin human affairs are never precise repetitions, and the complicated societies of civilisation are in a con- dition of constant change, there are, in point of absolute number, many of such cases, although they are few when compared with the whole volume of conduct. They constitute the subjects of litigation which engage the attention of courts, and if we follow the discussions there we find the difficulty to be that there is no known legal class of actions under which they can be clearly and at once brought, and the effort of the judge is to find the best rule by which the case may be determined. In this search the things considered are the ordinary ways in which the business, the intercourse, and the conduct of life are conducted, and whether the conduct in question is in harmony with them, or, if not, in what particular it is discordant. This is manifestly a study of the consequences of the conduct, and if among them there is found in that conduct any element which operates to defraud or deceive or invade the rights of person or property as they are settled by custom, or to betray trust and confidence, or in any way to disappoint fair expectation, the conduct is in violation of custom and is placed in the class of things condemned by the law. The final study of the highest court of appeal is, there- fore, in the last analysis, that same study of conduct and consequence in which all men are engaged every day and which began when man first began to act. Even where the question is one of the interpreta- tion of written law, involving the meaning of words and the legislative intent, the things contended Growth and Function 173 about in argument and decision are the customary employment of language, the customary motives of action, and the mischievous departures from established custom, which the statute was probably intended to remedy. The final conclusion of the inquiry, what rule or rules in point of fact governed human conduct, was that, so far as social conduct is concerned, custom is not simply one of the sources of law from which selections may be made and converted into law by the independent and arbitrary flat of a legislature or a court, but that law, with the narrow exception of legislation, is custom, and, like custom, self-existing and irrepealable. The necessary operation and therefore the junction of law thus defined we found to be the marking out of the largest area within which each individual could freely move and act without invading the like freedom in every other — that is, to insure the largest possible liberty. I shall have next to deal with the consequences of the conclusions thus summarised. The first which I note is that they involve the re- jection of the commonly accepted theories of the law. In speaking in the first of these lectures of the great number and variety of definitions which have been given of law, I observed that, however differing from one another in expression and in the less im- portant particulars, they might be arranged in one or the other of two classes, one seeking to establish law upon the basis of absolute Justice and Right, and the other making it proceed from the arbitrary 174 Law, Its Origin command of the Sovereign State; one seeking to enthrone over human conduct a rule of Order, and the other a rule of Force ; one fairly represented by the theory of Natural Law, and the other by the doctrines of Hobbes, Bentham, Austin, and others that law is a command. I have some observations to make concerning each class of these two opposite tendencies. Historically the doctrine of the Law of Nature had its origin with the philosophic jurists of Rome, or, at least, the first enunciation we have of it came from them, and by Nature they intended the Author of Nature, Jove or God. They declared that the true and fundamental law was in the mind of the Deity himself when he created the universe. Cicero sets forth this view in his treatises De Legibus and De Republica with great nobility of eloquence. According to him, the fundamental law which com- mands and forbids is the right reason of Supreme Jove. Quam ob rem lex vera atque princeps apta ad jubendum et vetandum ratio est recta summi Jovis.1 This pagan view has been accepted by many Christian jurists, of whom Blackstone is a good example. He says : "This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original." 2 1 De Leg, ii., 4. s Bl., book i., p. 41. Growth and Function 175 Now, in the language of Lord Bacon, "I would rather believe all the fables of the Talmud and the Alcoran than that this universal frame is without a Mind"; but science is the orderly arrangement of things we can know, and not of things we cannot know, and I think there is no irreverence in dis- missing from our attention those theories which rest upon our feeble imaginations of the Divine Nature; indeed, I think the term irreverence more properly belongs to the methods I am declaring in- sufficient. "God hath not made" [I am quoting the language of Sir Thomas Browne] "a creature that can comprehend him; 't is a privilege of his own nature ; ' I am that I am ' was his own definition unto Moses; and 't was a short one to confound mortality, that durst question God, or ask him what he was."1 We must, indeed, in tracing the line of causation along which the facts of any science are to be ar- ranged, come finally to some ultimate barrier beyond which we cannot pass; but we should not too soon conclude that the barrier has been reached. The rule of dramatic poetry, not to introduce a God upon the stage unless a crisis appears demanding the Divine intervention, should be the rule of philosophy also: Nee deus intersit, nisi dignus vindice nodus inciderit. But the prodigious space which the doctrine of the Law of Nature has filled in philosophical speculation as the foundation both of Ethics and Law is itself a phenomenon to be explained. It could hardly 1 Sir Thomas Browne, Religio Medici, sec. xi. i/6 Law, Its Origin have assumed such magnitude unless it were sup- ported by some great underlying truth, and if the explanation should not afford a reconciliation be- tween this theory of law and the views I have adopted, those views would be open to a doubt more serious than any I have as yet encountered. We must turn to the historical origin of this doc- trine, which, as I have said, first appeared among the philosophic jurists of Rome. While the territory of Rome was confined within its Italian limits, justice was administered in her courts according to the customs of the city, in which there was a large element of technicality. This did not prevent the doing of substantial- justice, for these technicali- ties and peculiarities inhered in the customs and thus entered into the contemplations of individuals in their dealings with each other. But with the expansion of Roman dominion and the enlargement of commerce came a great influx of provincials and foreigners, and extensive dealings between them and the native citizens. In any litigations arising out of such dealings it would have been gross injustice to apply the peculiar civil law of the city. Any person, whether he be called judge, referee, arbitra- tor, or by whatever name, whose office it is to settle disputes between others, must of necessity base his decision upon what he deems the parties fairly, and therefore probably, expected from each other, and in this task, when the dispute is between citizens of different States having many different customs, he seeks to find customs and ways which are common to men without regard to their particular nation- Growth and Function 177 ality. According to the civil law of Rome, a contract might not be valid unless some technical formula were complied with, and consequently Roman citi- zens would not regard themselves as bound in the absence of such compliance. But men, as men, of whatever nation, if they communicate at all, have means by which they may express terms and con- ditions and assent and dissent, and where they do this they expect compliance with their consensual engagements. A method of treatment in harmony with these conditions was applied by the Praetor Peregrinus of Rome in litigations between Roman citizens and provincials or foreigners, and while the Praetor Urbanus regarded the Twelve Tables and the Praetorian edicts, he looked only to the conduct of the parties, its character and consequences. Two bodies of laws consequently grew up at the side of each other, the jus civile limited to transactions between Roman citizens, and the jus gentium as wide in its application as the inhabited globe. The superiority of the latter as a scientific system was recognised by the Roman lawyers, and the domestic jurisprudence became from time to time enriched by borrowing from it many sound precepts. The philo- sophic jurists, among whom Cicero was a shining example, when they came to inquire into the nature of Law, could not find its real foundation in the nar- row jus civile; but in the jus gentium they found four characteristic features: (i) that it was not enacted by any man or body of men, for the Praetor Peregrinus did not, any more than the modern judge, presume to make law; (2) that it could not 12 178 Law, Its Origin be repealed, and was therefore self -existent ; (3) that its particular rules were reached by the processes of reason; (4) that it satisfied the universal senti- ment of justice. Whence did it proceed, and from what source did it derive its authority? It seemed inscrutable, and the only answer they could give to the question was to ascribe the origin and authority of law to that same Divine Power to which they attributed the other mysterious phenomena of the universe, the movements of the heavenly bodies, the successions of the seasons, the storms and tides of the ocean. It was Nature or God. Had they studied the facts of consciousness, and learned that conduct was necessarily exhibited in the form of habit and custom, they would have seen that the origin of law rested in a self-governing principle of society; and if they had carefully scrutinised the methods of the judicial tribunals, they would have seen that it consisted in the study of conduct and its consequences with the view of determining what was in accordance with custom or fair expectation, and that such study was simply the exercise of our ordinary reasoning powers upon the subject of con- duct; in this way they would have reached the enlightening conclusion that law was tantamount to custom. Any further inquiry would be how and why our natures were so made as to compel us to think and act in such a way — an inquiry which would have baffled them no more than it baffles us.. But in the law of custom thus reached, they would have found all the characteristics which they perceived in what they denominated the Law of Nature. The Roman Growth and Function 1 79 jurists have conferred upon posterity by their con- ception of the Law of Nature one great benefit, a clear apprehension of the fundamental difference between the written and the unwritten law. The doctrine which has in modern times divided with that of the Law of Nature the opinions of juridical writers is that which defines Law as the command of the Sovereign power in a State. It was not at first the product of an original and inde- pendent inquiry into the nature of law, but was contrived to answer the supposed exigencies of political necessity. It is first to be found set forth in the writings of the celebrated Thomas Hobbes in the early part of the seventeenth century. He was a thorough royalist in his political views, and writing at the time of the struggles against the House of Stuart, his main purpose was not so much to set forth a new theory of the ordinary law, as to justify the exercise of a severe authority in repressing rebellion against civil government. He was a rigid as well as a profound thinker, and never shrank from any of the logical consequences of his main tenets. His view was that the condition of man before the organisation of society was a state of an- archy or war, in which every man's hand was against his fellow, and that the only way of escape from such miseries was to be found in organised society, and that society was the more effective and bene- ficial the more the corporate power became com- plete and absolute. His ideal, therefore, was that of an unlimited and unquestioned supreme public .authority, preferably, though not necessarily, a i8o Law, Its Origin monarchical one. In his view the authority of the State should be supreme everywhere. Whatever the State commanded was just, and because the State commanded it, and whatever it chose to en- force must be taken to be its command. His defi- nition of law thus became "the speech of him who by right commands somewhat to be done or omitted." Nor did Jeremy Bentham, the next distinguished supporter of the theory, find his way to its adoption by a scientific inquiry into the nature of law. He accepted it because it suited his particular views and purposes. He was primarily a moralist, and believed that he had discovered the Summum Bonum in what he called the principle of Utility, which he described by the maxim, "The greatest good to the greatest number." It did not occur to him that, in the order of nature, happiness could be secured by man only by his own efforts and discipline in attending to the consequences of conduct and select- ing those forms which experience taught him would secure it. He thought that the pathway to happi- ness for all men could be found out by one, or a few wise ones, and man could be compelled to follow it and thus be made happy by law. He found a great obstacle in his way ; this was the practice of society to conform to rules of conduct declared by the judges. He insisted that they really made the rules while pretending only to -find them, and made them without authority, and he came to regard the unwritten law as a hateful usurpation, and he de- scribed the common method adopted by the judges in making use of legal fictions in order to make Growth and Function 181 legal remedies effectual, as "a wilful falsehood having for its object the stealing of legislative power by and for hands which could not, or durst not, openly claim it." The theory of Hobbes exactly suited his purpose. If law was a command alone, the judges would be obliged to look for their law to the only power that could make an authoritative command, namely, the Sovereign State, and the great condition of public happiness would be supplied by the preparation of a code containing the most wisely selected rules, and its adoption by legislative enact- ment. John Austin, whose lectures On ike Province of Jurisprudence Determined have exercised so wide an influence, was a disciple of Bentham and a believer in the doctrine of Utility. But he had not that ab- horrence of the unwritten law which animated his master. He believed that ultimately a complete written code enacted by legislation would be the perfection of law, but he doubted whether this was immediately practicable. His diagnosis of the actual condition of the administration of law seemed to be that mankind had stupidly and unnecessarily, as if for the want of competent advice and leadership, fallen into the blunder of allowing blind custom, instead of reason, to regulate their conduct, as if reason were some special faculty which could reach forward and discover those true principles of law and government which ought everywhere to be adopted. The following language employed by him is indicative of his view: "Many of the legal and moral rules which obtain in the most civilised communities rest upon brute custom and not upon 1 82 Law, Its Origin manly reason. They have been taken froni'preceding genera- tions without examination, and are deeply tinctured with the childish caprices and narrow views >of barbarity. And yet they have been cherished and perpetuated through ages of advancing knowledge to the comparatively enlightened period in which it is our happiness to live." Believing with Bentham that "the greatest good to the greatest number" was discernible by reason, and should be made the rule of conduct by positive law, he made law to consist wholly in command, and framed his well-known formula : " Every positive law is set by a sovereign person or by a sovereign body of persons (a legislature) to a member or members of the independent political society wherein that person or body is sovereign or supreme." This theory and definition of law has an apparent partial foundation. It properly defines legislation— that is, law consciously enacted by men, although a qualification is needed even here; beyond this it seems to me entirely erroneous. Inasmuch as in the view I have taken substantially the whole private law which governs much the larger part of human conduct has arisen from and still stands upon custom, and is the necessary product of the life of society, and therefore incapable of being made at all, the opposition between this view and the theory of Austin is irreconcilable. Inasmuch as I have estab- lished, as I suppose, my own view, I might, perhaps, regard this opposition as a sufficient refutation of that theory, but a separate and distinct exposure of its errors and inconsistencies will furnish additional confirmation to the doctrine I have supported. Growth and Function 183 While the Austinian definition encounters diffi- culty as soon as we come to consider the unwritten law, Austin felt that his master, Bentham, had fallen into a gross error in condemning and stigmatising this branch of law as the product of a fraudulent usurpation. He regarded the bulk of this law as a rational and legitimate system of rules. He felt that it must in some way find a place under his theory, and his con- trivance was to assert that the judges made the law declared by them, and made it, not by any usur- pation, as Bentham insisted, but rightfully, in virtue of an authority delegated to them by the Sovereign. Here, however, he was met by the hard fact that no one of the long line of illustrious judges who had occupied the English bench ever supposed for a moment that he was making law, either by virtue of a delegated authority or otherwise, and that all, or nearly all, would indignantly have re- pelled any imputation of doing it; but he treated their view with contempt, speaking of it thus: "The childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miracu- lous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges. "* But where does he find an authority in the judges to make law in the shape of commands, for certainly they are not themselves sovereign or a sovereign body? His way of meeting this difficulty is by imputing » Austin § 919 A - 1 84 Law, Its Origin the action of the judges to the real sovereign. He declares that an authority to command is delegated by the sovereign to the judges and that they com- mand by virtue of this delegation. Both these assertions are pure assumptions. The closest scru- tiny can find no such delegation, nor any command in pursuance of it. Austin concedes that there is no direct evidence of such delegation, but says that there is something equivalent to it, namely, the fact that the sovereign has the power to reject or disapprove the commands of the judges, and by not doing so ratifies them. But this is attempting to prove one assumption by making another, or rather two others. In the first place, under the familiar doctrine that ratification is equivalent to an original authority, it is an indispensable requisite that the principal should know the act of the agent which he intends to ratify; but the supposition that the sovereign person, or sovereign legislature knows all the decisions of the courts, or any considerable part of them, is utterly unfounded. To assume it is not merely to assume a thing which we do not know to be true, but one which we know to be untrue. The second assumption is that of a ratification by the sovereign. What evidence is there of this? None can be discovered. All we have is the silence of the sovereign. There is indeed in the law of agency a maxim that where a principal has knowledge of an act of his agent and makes no objection to it, it may be inferred that he ratifies it, and this is the ground upon which Austin bases his assertion of ratification. Growth and Function 185 Let us see to what this reasoning will lead. The theory, it will be borne in mind, is of the crea- tion— the origin — of law. Now upon the doctrine that the sovereign, by his silence, ratifies the acts of his judges, he must ratify just what they do, their real action, and nothing else. But they make no commands at all concerning conduct; they declare no rule; they simply sit in judgment upon controversies between litigants in a particular case, and declare that one shall or shall not pay money or deliver property, or accord some special relief, to the other. It might be said by a supporter of Austin's theory that although this is all they do in form, yet in fact, inasmuch as they make their decisions upon grounds and for reasons generally stated by them, they really declare what must be regarded as law at least for all like cases. This is a concession that the sovereign ratifies what they really do, and this is to declare that by virtue of some already existing law certain relief shall or shall not be awarded. What they really do, there- fore, is not to create law, but to declare that the law already exists. If what the judges did was to x declare a law not before existing, the subjection by them of one of the parties to liability for an infrac- tion of the law, in a transaction occurring before the existence of the law, would be an indefensible outrage. Any one who undertakes to support Austin's theory encounters here an ugly dilemma; the law by which the judge makes a decision either existed at the time of the transaction involved in the case, or it did not, and was made by the judge; 1 86 Law, Its Origin if it did exist, the judge did not make it, and the imagined ratification by the sovereign did not make it, there being no need of his interposition, express or implied. If it did not exist at the time of the transaction, then what the judge has done and the sovereign ratified is to compel a man to suffer for the violation of a law committed before the law was made. No theory of law can stand which involves such a consequence. Our courts act consistently, and the record of an action exhibits a perfectly logical process; but upon the Austinian theory it would present a revolting absurdity. Let me illus- trate the operation of that theory. A plaintiff brings his action in a novel case, never before considered, alleging certain facts and claiming that by existing law he is entitled to recover from the defendant a thousand dollars for an injury inflicted upon him; the defendant appears and admits the facts alleged, but insists that by existing law he did only what he had good right to do. The learned judge finds that neither party is right in his claim, because, as he says, there is no existing law applicable to the case, none having been made; but he is clearly of the opinion that there ought to be one which would support the plaintiff's claim, and that it is his duty, as the delegate of the sovereign, to make it, which duty he proceeds to perform, but in a most amazing manner. He does not dismiss the suit and at the same time declare what in all future like cases the law shall be, but, regretting, perhaps, the indirect manner in which he must perform his duty and the individual suffering he must inflict, he condemns Growth and Function 187 the defendant to do, what he declares there was no law requiring him to do, namely, to pay the thousand dollars. And yet this definition of law, though it has been subjected recently to much criticism, is still perhaps more generally accepted in England and America than any other. Sir Henry Sumner Maine, whose writings have commanded so much attention, while he has pointed out some of its errors, has given to it his general approval and praise. He declares that "to Bentham, and even in a higher degree to Austin, the world is indebted for the only existing attempt to construct a system of jurisprudence by strict scientific process and to found it, not on a priori assumption, but on the observation, compari- son, and analysis of the various legal conceptions."1 He has partially seen the absurd consequences of Austin's doctrine of ratification, and says: "It is a better answer to this theory than Austin would perhaps have admitted, that it is founded on a mere artifice of speech, and that it assumes Courts of Justice to act in a way and from motives of which they are quite unconscious."2 Such difficulties, though they moderate, do not by any means destroy, Prof. Maine's estimate of the correctness of the Austinian doctrine, and he thinks a more complete under- standing of the fundamental element of that doc- trine will conduce to a recognition of, at least, its theoretical soundness and of its value. This funda- mental element he makes to be Austin's conception. » Maine, Early History of Institutions, p. 343. 2 Ibid., p. 364. 1 88 Law, Its Origin of Sovereignty, to which he invokes especial atten- tion. He says : "When, however, it has once been seen that in Austin's system the determination of Sovereignty ought to precede the determination of Law, when it is once understood that the Austinian conception of Sovereignty has been reached through mentally uniting all forms of government in a group by con- ceiving them as stripped of every attribute except coercive force, and when it is steadily borne in mind that the deductions from an abstract principle are never, from the nature of the case, completely exemplified in facts, not only, as it seems to me, do the chief difficulties felt by the student of Austin disappear, but some of the assertions made by him, at which the beginner is most apt to stumble, have rather the air of self-evident propositions.1 " Let me then give that close attention to this concep- tion of sovereignty which Prof. Maine commends, and to his statement of it. He says that Austin's doctrine of Sovereignty "is as follows: There is, in every independent political com- munity— that is, in every political community not in the habit of obedience to a superior above itself — some single person or some combination of persons which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group — this individual or this collegiate Sovereign (to employ Austin's phrase) — may be found in every independent political community as certainly as the centre of gravity in a mass of matter. . . . This Sovereign, this person or combination of persons, universally occurring in all independent political communities, has in all such com- munities one characteristic common to all the shapes Sov- ereignty may take, the possession of irresistible force, not necessarily exerted, but capable of being exerted.2 " 1 Maine, Early History of Institutions, p. 362. 2 Ibid., pp. 349-350- Growth and Function 189 And further, he says : "The way in which Hobbesand he (Austin) bring such bodies of rules as the Common law under their system is by insisting on a maxim which is of vital importance to it — 'Whatever the Sovereign permits he commands.' Until customs are enforced by Courts of Justice, they are merely 'positive morality,' rules enforced by opinion, but, as soon as Courts of Justice enforce them, they become commands of the Sovereign, conveyed through the Judges, who are his dele- gates or deputies.1 " But this explicit statement of Austin's conception of sovereignty serves only to emphasise its falsity. It is useful only as a foundation for the proposition that the law declared by the judges is really made by them as the agents of the sovereign who ratifies their action and is thus adopted. The doctrine of ratification necessarily assumes power in the princi- pal to perform the act. I think I have sufficiently exposed already the error in this notion of law- making by the assumed ratification of a sovereign possessing an assumed absolute power, but I may show that Maine's own argument refutes his own proposition. Let me throw that argument into syllogistic form. This is the first premise in the syl- logism: Whatever the sovereign permits he com- mands. The second premise is — He permits courts of justice to sit and decide controversies by law which they declare to be already in existence', and the consequence is inevitable: he permits the courts of justice to so sit and declare. The declara- tion of the judges is the declaration of the sovereign. 1 Maine, Early History of Institutions, pp. 363-364. 190 Law: Origin, Growth, and Function He commands it for he permits it, and therefore the sovereign declares that the law is not made, but that it already exists! Bentham may insist, as he does, that this declaration by the judges is a "fraudulent pretence" to conceal their usurpation of legislative power; Austin may aver, as he does, that it is a "childish fiction," but it is the "fraudulent pre- tence," or the "childish fiction" of the sovereign himself. This is the severe logical consequence of Maine's defence of Austin's conception of sover- eignty. It establishes, not his definition of law, but the contrary one. LECTURE VIII. THERE are many who, though not accepting the theories of Bentham and Austin, have yet a feel- ing that the distinction between finding and making the law in a truly novel case is but a fanciful one, and that what is really done by declaring the law in such a case, it being before unknown, is to make it; they admit the seeming injustice of holding persons responsible for a violation of law not existing at the time of the action in controversy, but think it is no greater than to hold them responsible for a violation of a law at the time unknown. Such doubts deserve respectful treatment. Upon the view that law is custom, the maxim that all are presumed to know the law is well founded and reasonable. Custom is the one thing that all may safely be presumed to know. It is — what is more and better than known — felt. There is no injustice, therefore, in a rule which subjects men to the obligation of existing custom. There will be some cases of real doubt, but in all such cases the act or conduct concerning which the doubt exists really belongs to some class. It is either something which accords with fair expecta- tion, or does not so accord, and the point is decided by selected experts. As in a game of ball or other athletic game, things will be done on one side which will be disputed on the other, and the referee will 191 i92 Law, Its Origin be called upon to decide. His decision will be that the thing objected to was right or wrong according to existing rules, and no one will think that he makes the rule. The case may be an entirely novel one and difficult of determination, but the defeated party suffers no injustice because of this difficulty. Both sides had equal knowledge of the rules and the exist- ence of difficulty was the same burden to each. In the great game of society, as in the little one of ball, all the players are justly assumed to know the rules. What is really done in a novel case is the same thing that is done in every disputed case. The features of the transaction are subjected to scrutiny in order to determine to what class it belongs. The classes are not made; they exist in existing custom. There may be a difficulty in ascertaining the class growing out of the novelty of the case. Some features of the transaction suggest that it should be placed in one class, others that it should be placed in another. The case is in no manner different from that in which a new plant or animal is discovered bearing resemblances to more than one species. Careful observation is requisite in order to determine under which class it should be ranked and naturalists may differ about it; but the eventual classification is determined by the qualities which are really found in it, not by any qualities artificially imputed to it. So in the case of a novel transaction. The conduct drawn in question is either right or wrong according to its own qualities ; that is to say that its true legal character is already fixed, and the task of the expert — that is, the judge — is to find these Growth and Function 193 true determining qualities, and when he finds these he finds the class to which the transaction belongs, and therefore finds the law. He would misconceive his task if he should say that it was a new case and, without a correct ascertainment of its determining features, should arbitrarily declare it to belong to a class under which its real qualities did not bring it. Should he do this he would be making the law, and, indeed, the judge can only make the law by making a wrong declaration — that is, he can only make erroneous law. If, without scrutiny, he should arbitrarily assign the case to its right class, he would correctly declare the law, but he would not make it. Thus far I have accepted the proposition lying at the basis of Austin's theory of sovereignty, that which the sovereign permits he commands, as true; but only for the sake of the argument, and in order to show that the consequences deduced from it do not follow ; but is it true in fact ? Is it true that in every independent human society there is a sovereign power so absolute as to justify the inference that what it permits it commands ? To make it sure that I am stating the proposition fairly, I give it in the language in which Prof. Maine sets forth the funda- mental position of the Austinian doctrine, namely, that "in every independent community of men there resides the power of acting with irresistible force on the several members of that community. This may be accepted as actual fact."1 Prof. Maine here fully commits himself to the assertion of Austin, that in every independent State there is in the • Maine, Early History of Institutions, p. 357. 13 i94 Law, Its Origin sovereign or sovereign body the power of doing what he, in another passage already cited, declares "exactly what he pleases." An assumption more prodigiously untrue could scarcely be imagined. What ! A power in an earthly sovereign or sovereign body, to control the conduct of all the people in a nation "exactly as it pleases"? This would be a power to make conduct, to construct life, to create, if the sovereign so pleased, a new world! There is one Being alone to whom such a power can be assigned — one Being alone who can do "exactly as He pleases." It is quite needless for me to expose by any minute inquiry into the history of societies the error of the assumption, inasmuch as Prof. Maine immediately proceeds, quite without knowing it, to refute both Austin and himself. He goes on to say: "An assertion, however, which the great Analytical Jurists cannot be charged with making, but which some of their disciples go very near to hazarding, that the Sovereign person or group actually wields the stored-up force of society by an uncontrolled exercise of will, is certainly never in accordance with fact. ' ' [The italics are mine.] ' ' A despot with a disturbed brain is the sole conceivable example of such Sovereignty. The vast mass of influences, which we may call, for shortness, moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its Sovereign.1" Here we have it that while the sovereign actually possesses absolute, unlimited power, he never exer- cises it! How then, I beg to inquire, do we know * Maine's Early History of Institutions, pp. 358-359. Growth and Function 195 he possesses it? The only evidence we have of the possession of any power by a sovereign person or body is the actual exercise of it by such person or body. But Prof. Maine again relieves us of the task of detailed refutation by the language of the citation just made. "The vast mass of influences which we may call, for shortness, moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its Sovereign." It is hardly worth while to debate what sort of a thing sover- eignty is which is perpetually shaped, limited, and forbidden by a "vast mass of influences. " If there is a "vast mass of influences" which limits and forbids the exercise of sovereign power by a monarch or a legislature, they are the real sovereign, and what other name is there for them than custom? Austin's conception is sovereignty, plus a variety of things which prevent it from being sovereign. It is indeed what Prof. Maine styles it, "the result of Abstrac- tion," and he may add, an abstraction which de- prives the word, and the theory in which it plays so essential a part, of any significance or importance. To assert complete sovereignty in order to con- struct a theory, and then to say that the assertion is not in fact true, is to commit felo de se. The wonder is that Prof. Maine, after dealing as he does with Austin's theory, still continues to regard it as of such high value as a contribution to jurisprudence. The theory possesses for him the great attraction of simplicity, and with an evident desire to find support for it in the quarter where a theory must find support or be dismissed — that is, in the world Law, Its Origin of real fact, he casts a glance over the history of political societies and the present condition of social government. He first describes the sort of rule which obtains, or has obtained, in a recent native Indian empire, that of Runjeet Singh, in the north- - western region of India, called the Punjab. No- where has there been a more absolute despot, and one might think the monarch a fitting example of a sovereign who could do "exactly as he pleased." Prof. Maine thus describes his empire: " After passing through every conceivable phase of anarchy and dormant anarchy, it (the Punjab) fell under the tolerably consolidated dominion of a half-military, half-religious oli- garchy, known as the Sikhs. The Sikhs themselves were after- wards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight, there could be no more perfect embodiment than Runjeet Singh of Sovereignty, as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier, he kept the most perfect order. He could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation, and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took, as his revenue, a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies; he had all material of power and exercised it in various ways. But he never made a law. The rules which regulated the life of his subjects were derived from their immemorial usages, and these rules were admin- istered by domestic tribunals, in families or village-communi- ties— that is, in groups no larger, or little larger, than those to which the application of Austin's principles cannot be effected, on his own admission, without absurdity. Growth and Function 197 " I do not for a moment assert that the existence of such a state of political society falsifies Austin's theory, as a theory. The great maxim by which objections to it are disposed of is, as I have so often said before, ' What the Sovereign permits, he commands.' The Sikh despot permitted heads of households and village-elders to prescribe rules, therefore, these rules were his commands and true laws.1 . . . The theory remains true in such a case, but the truth is only verbal." 2 I cannot think this argument entirely creditable to Maine's powers as a reasoner. What sort of truth is that which is only verbally true? A theory which is consistent with the facts is a true theory, pro- vided it well explains the facts ; but a theory which is inconsistent with the facts is false, even as a theory ; and to say that it remains verbally true is to say something unintelligible. That the instance given by him renders the theory he endeavours to support ridiculous, at least at first blush, he admits, for he says: "An Eastern or Indian theorist in law, to whom the assertion was made that Runjeet Singh commanded these rules, would feel it stinging him exactly in that sense of absurdity, ' ' etc. Nevertheless, in Maine's opinion, it is not really ridiculous; and all that is needed to reconcile it with sense and truth is to carefully bear in mind the fundamental assertion admitted to be untrue, "What the sover- eign permits he commands." I cannot see why we may not with as much logical propriety say, "What- ever the peasant permits he commands," and thus prove the peasant to be the author of law. The only objection to it is that we have no evidence that 1 Maine's Early History of Institutions, p. 381. ' Ibid., p. 382. 198 Law, Its Origin the peasant has the absolute power which the propo- sition tacitly assumes, but that is precisely the same difficulty under which the assertion of Austin, thus defended by Maine, labours. But the real purpose for which Maine introduces this example of the empire of Runjeet Singh is to show that while with some of the races of men the system of Austin would be out of place, in others it would find substantial support, and if not now in fact true, would eventually become true. He takes the dominion of Singh as a type of "all Oriental com- munities in their native state."1 Here we have it that over the greatest part of the world despots have ruled for ages, and to a less extent are still ruling, each being of a character more nearly than anywhere else possessing the attributes of Austin's sovereign, namely, the power to "do exactly as he pleases," and yet here more absolutely than any- where else the law has consisted of immemorial usage, the sovereign never pretending to make a law! The early Aryan communities, the originals of all the States of the Western world, are regarded by Prof. Maine as representing all social government not of the Oriental type. The early government of these he finds to be the village council, but he also finds that it does not make laws, saying : " If the powers of this body must be described by modern names, that which lies most in the background is legislative power, that which is most distinctly conceived is judicial power. The laws obeyed are regarded as having always existed, and usages really new are confounded with the really old."2 » Maine's, Early History of Institutions, p. 382. 2 Ibid., pp. 388-389. Growth and Function 199 a not unfair description of our own unwritten law. Up to this point, Prof. Maine finds no appearance of law in the shape of a direct command of the sover- eign, either in the Eastern or Western world, but he observes the tendency very manifest in history, of one Aryan community, to aggrandise itself by the conquest of those adjoining it, to enlarge the area of its dominions to the magnitude of an extensive territorial empire, and then to proceed to " triturate" (to borrow his expressive phrase) the various local communities into a consolidated and centralised nation. The Roman Empire was the first great example of this movement, and the States of modern Europe are other instances of it. From these generalisations Prof. Maine draws a remarkable conclusion, and, in my view, as erroneous as it is remarkable. It is that in the passage of these local communities into an extended and centralised empire the laws distinctly altered their character; that while before the passage they rested upon cus- tom, and were obeyed almost blindly and instinct- ively, seeming to be parts of mere order, after the passage they were broken up and replaced by rules directly emanating from the sovereign, and the power behind them assumed the attitude and char- acter of purely coercive Force; that the theory of Bentham and Austin, while wholly inapplicable to Oriental conditions and to the primitive social conditions of Europe, did represent those in Europe which came into existence after the change; that legislative activity has rapidly increased and is increasing, and that eventually Austin's formula 2oo Law, Its Origin that law is the command of the sovereign will be as true in fact as it is elegant in theory. I must give in his own language the auspicious future which he predicts for this theory: "But, if the Analytical Jurists failed to see a great deal which can only be explained by the help of history, they saw a great deal which even in our day is imperfectly seen by those who, so to speak, let themselves drift with history. Sovereignty and Law, regarded as facts, had only gradually assumed a shape in which they answered to the conception of them formed by Hobbes, Bentham, and Austin, but the correspondence really did exist by their time, and was tending constantly to be- come more perfect. They were thus able to frame a juridical terminology which had for one virtue that it was rigidly con- sistent with itself, and for another that, if it did not completely express facts, the qualifications of its accuracy were never seri- ous enough to deprive it of value, and tended, moreover, to become less and less important as time went on. No concep- tion of law and society has ever removed such a mass of undoubted delusion. The force at the disposal of Sovereigns did in fact act largely through laws as understood by these Jurists, but it acted confusedly, hesitatingly, with many mis- takes and vast omissions. They for the first time saw all that it was capable of effecting, if it was applied boldly and consistently. All that has followed is a testimony to their sagacity." i Sagacious indeed must those minds have been — and in a miraculous way — who, seeking to describe law as it was, failed only because they accurately described law as it was to become, and rose from the ashes of scientific failure into a glory of prophecy of which they had not dreamed! Where does Prof. Maine find the evidence which 1 Maine's Early History of Institutions, pp. 396—397. Growth and Function 201 convinces him that the doctrine that law is the command of the sovereign, erroneous in the past to the point of absurdity as he admits, is destined to become truth in the future? What is there to reconcile him to a change so momentous? It is in the progressive change which he thinks is observable in the history of the advance of all Aryan nations, as they pass from small local communities into strong centralised States. As such States advance in population, wealth, and power he observes a corre- sponding activity in Legislation. He saw the classi- cal Roman law give way to the Pandects and the Code of Justinian, and he saw the ancient laws of France dissolved by legislative enterprise into the Code Napoleon. He says: "The capital fact in the mechanism of the modern States is the energy of Legislatures/'1 He thought he saw coming down from the past a conflict between the notion of Order and the notion of Force in the law, and that Force was to emerge triumphant. He says: " The word ' law ' has come down to us in close association with two notions, the notion of order and the notion of force. The association is of considerable antiquity and is disclosed by a considerable variety of languages, and the problem has repeat- edly suggested itself, which of the two notions thus linked to- gether is entitled to precedence over the other, and which of them is first in point of mental conception ? The answer be- fore the Analytical Jurists wrote would, on the whole, have been that ' law, ' before all things, implied order. . . . The Analytical Jurists, on the other hand, lay down unhesitatingly that the notion of force has priority over the notion of order." 1 Maine's Early History of Institutions, p. 398. 2 Ibid., p. 371. Law, Its Origin And the " force'' thus spoken of is pure arbitrary force, that described by Austin as belonging to the sovereign who has the power of doing " exactly as he pleases." yf Prof. Maine does not offer to us reasons tending to show that legislation ought to supersede unwritten law, though this is probably his view, but yields his acceptance of Austin's theory for the reason that he thinks that it is now in fact superseding it, and will do so completely in the future. It would have been gratifying if he had pointed out the particular facts evidencing the progress of this momentous change, beyond the brief references to the activity of legislation in the later Roman Empire and in the modern States and to the Justinian and Napoleonic Codes. I think it will be found upon a weighing of the evidence that the notion that legislation is occupying the field and discharging the functions of the unwritten law is quite unfounded, and that the great change taking place, according to Prof. Maine, by which the notion of Force is to become supreme over Order, is quite imaginary. In the first place, in order to estimate the weight of the considerations alluded to by him, it is to no purpose to make reference to the general fact of legislative activity in modern times. Is that activity employed in making the substantive laws regulating conduct — that is, in asserting jurisdiction over the field hitherto occupied by the unwritten law? This is the true question. I have heretofore, in marking out the province of written law indicated that the directions in which its activity, according to its Growth and Function 203 essential nature, was properly displayed was, not in overthrowing or displacing the unwritten law, not by acting in hostility to it, but in acknowledging the supremacy of custom and becoming its faithful handmaid and servant, and supplementing and aiding it by doing those things which custom could not do for itself. Now, if we turn to see in what the activity of legislation, which Prof. Maine calls "the capital fact in the mechanism of modern States," is really displayed, we find it to be in performing the function I pointed out as the appropriate province of legis- lation— the political organisation of the State in all its branches, the making provision for the election and appointment of multitudes of officials, for the establishment and maintenance of schools, poor- houses, prisons, and other public works, the whole provision for criminal law, the maintenance of a legislative and judicial system, provisions for the creation and control of corporations, banks, insurance companies, for supplying details necessary to secure certainty in the operation of the unwritten law, such as fixing days of grace, prescribing positive precautions to determine responsibility in cases of negligence, conforming the unwritten law to custom where custom had outgrown precedent, and in at- tending to the vast business involved in carrying out these objects. Taking the statute-books of any of the States of this country or of England, we shall find, as I have heretofore observed, that nearly all their contents consist of work of this character, which is not the making of law in any juristic sense. That part which does really deal with the govern- 204 Law, Its Origin ment of conduct is, so far as it is valid and effective, so small that it may well be neglected in any inquiry concerning the main factor in our substantive law. It has been correctly described as "a mere fringe upon the body of the common law." It may be thought at first sight that the examples of the great codifications such as those of Rome, France, Germany, and some American States, are genuine instances of the assertion of the supremacy of legislation over unwritten law, I reserve the subject of codification for subsequent treatment; but I may remark here that since all these codifications are, with certain exceptions not important to the present question, avowed re-enactments of existing law, they do not evidence any assumption of its functions but rather a confession that all that legis- lation can do in relation to it is to acknowledge and adopt it. What is law without legislation cannot be made more law by enactment. There are better ways of ascertaining whether legislation has during the period of its modern activity been gaining a supremacy over the law of custom, than by a general reference to the fact of such activity. There have been many attempts to introduce new rules abrogating existing customs or inconsistent with them. This initiates an imme- diate conflict and the result of it furnishes a crucial test by which we may determine the comparative force of legislation and of the unwritten law of custom. I purpose giving some attention to this test by citing instances in which newly enacted law has come in conflict with deep-seated custom. Growth and Function 205 These instances have sometimes arisen from the want of forethought in the legislator, in not fully perceiving what the effect of an enactment would be, and sometimes from the positive determination to change existing law. The original Statute of Uses, if enforced according to its terms, would have nearly created a revolution in the long-established customs by which men bestowed their property for the benefit of relatives or others; but the courts over- ruled the language of Parliament and so limited the law that its only effect upon these customs was to cause the introduction of two or three additional words in a conveyance. The Statute of Limitations would have prevented the redress of frauds after the lapse of a certain number of years, but the courts, obeying the deep-seated motives in the minds of men created by custom, did not hesitate, in case of concealed fraud, to disobey its injunction. The British Parliament, in obedience to a notion that the practices of dealers in provisions in market-towns, called engrossing, forestalling, and regrating, to buy up commodities coming to market and resell them at retail, tended to burdensome enhancement of prices, began as early as 1552 with an attempt to break up such practices by legislation, and between that time and 1706 enacted some prohibitory stat- utes; but this came in contact with large general customs and the freedom of contract, and utterly failed of enforcement, and by the Act of 1772 they were all repealed in penitential shame. The multi- tude of laws prohibiting the sale of intoxicating drinks, being designed to restrict their use, come in 2o6 Law, Its Origin contact not indeed with universal custom, but with very common and widespread practice. It has been /^ found impossible to enforce these except in small T rural communities, and but partially there. But a more complete illustration of the actual limitations of the so-called sovereign power, and the unwisdom of any exercise of it to change an estab- lished custom, is to be found in the events which are happening in the days now flying. Some considera- tion of these events is very pertinent here, and justi- fies a somewhat detailed notice. There is no custom more universal than that of the building and main- tenance of the ordinary public highways at the public expense and the using of them by every member of the community upon absolutely equal terms. An exception has been indulged in the case of railroads, the construction and maintenance of which in most countries have been committed to the hands of private persons, or corporations, operating under franchises granted by the State. They still remain, however, public highways, and the equal use of them on equal terms by the public — an equality possible only by concerted action and agreement among the naturally competing roads — has been, for the most part, a jealously guarded custom. But no vigilance has been found sufficient to prevent numerous departures from it. Powerful interests, acting sometimes upon the cupidity and sometimes upon the fears of the railway companies, have been able to obtain preferential rates, and when we consider how much the price of all commodities depends upon the cost of transportation, it is not Growth and Function 207 surprising that numerous vast private fortunes should have been secured by these discriminating practices. At first, they were scarcely considered objectionable, and were, indeed, almost regarded as proofs of the superior enterprise and merit of those who secured the benefit of them. But the unerring wisdom of universal custom was never more manifest than here. The advantages thus gained by a favoured few enabled them to crush their rivals in the great fields of industry, and the shocking injustice became more and more manifest. To repress and abolish these mischievous departures from custom was a clear occasion for the employment of legislation, and it was used by the enactment of the Interstate Commerce law, which enjoined the preservation of equality in rates and made the practice of discrimi- nation criminal. But it was not found easy to en- force the law. The prohibition was easily evaded by resorting to rebates and other devices, and the mischief continued. It was a condition of things by no means satisfactory to the great and powerful railroad companies. Discrimination was the un- willing resort of weak companies whose necessities demanded the occasional purchase of traffic at rates unreasonably low, or whose fears of the withdrawal of traffic by powerful interests compelled them to yield to unreasonable demands. But if one line of transportation ventured to cut a rate it was a neces- sity for all the rivals to follow. The force of this necessity is not fully comprehended by all; but the truth is that the cutting of a rate by a railroad company, however secretly done and incapable of 2o8 Law, Its Origin detection and punishment at the hands of a prose- cuting officer, becomes immediately known to other companies and their patrons, for the traffic will at once flow to the road of the rate-cutting company. The situation, then, is this for the manager of a railroad company: Unless he conforms to the cut his company loses the traffic, and with the loss of traffic would come the failure, first, to pay dividends, then to pay interest on fixed charges, then insolvency and a receiver. Were the road his own private property his plight would be comparatively endur- able, for he would have to render no account of his failure; but what answer would be expected from a numerous body of stockholders on reporting to them that one of his rivals had disobeyed the law and the common agreement by cutting rates, and that, as he could not conscientiously follow the example, misfortune was the necessary result? It would be likely to be that, if he entertained such sentimental views of the transportation business, he ought to have informed the stockholders before he accepted his office and took their property and interests in charge. The mischiefs arising out of the practice of discrimination had become so unendurable that the competing roads combined in different parts of the country, to put an end to it. The method employed (I speak of the efforts made by the great lines east of Chicago) was by an agreement containing very drastic provisions for detecting and exposing any discriminating practice, and really making it more dangerous for the companies to depart from the agreement than to keep it. It contained stipulations Growth and Function 209 that the rates should be reasonable but left it eventually optional to each company whether to conform to the agreed rates or not, exacting com- pliance, however, for a few days, so that, in cases of an intended rejection of the rates, notice might be given to the other companies of a probable com- petition. On its face this agreement was wise and beneficial, and I know of no good reason for dis- trusting the actual intention of its authors, but it was destined to challenge hostility. It so happened that, several years before, Congress had enacted a law designed, on its face, to repress contracts, conspiracies, and combinations in restraint of trade. The spectacle of great combinations of powerful interests, commonly called "trusts" had excited public interest and suspicion and a clamour that Congress should take measures to prevent them or deprive them of their supposed powers for mischief. As usual, each of the rival political parties sought to turn this clamour to its own advantage and claimed to be the best guardian of the public interests against the encroachments of combined wealth. The party in power, in order to make good its pre- tences, carried the above-mentioned statute through Congress. Legislation framed to secure partisan advantage is dangerously apt to be fraught with mischief; but in this instance it was shaped by prudent and cautious hands. It declared all con- tracts, combinations, and conspiracies in restraint of interstate trade or commerce to be illegal, and subjected them to penalties of fine and imprison- ment, and authorised in a vague way a resort for 14 210 Law, Its Origin prevention to the remedy of injunction. Thus framed, the act could have no operation except against practices properly embraced under the class of ''contracts, combinations, and conspiracies — in restraint of interstate trade," and by the long and well-established law, these restraints had been confined to such as were injurious to trade; and whether any particular contract or combination was really injurious was, in its nature, a question of economic fact, although some practices had been held necessarily injurious to trade, and therefore, as a matter of law, to fall within the condemnation. The undiscriminating suspicion of the public was extended to all powerful combinations, and em- braced the agreement above mentioned between the railroad companies, and the government, whose policy was represented by the anti-trust legislation, could not maintain its attitude of assumed hostility to "Trusts" without attacking the agreement. A bill was accordingly filed by the Attorney-General for an injunction against the execution of the agree- ment, which, having been dismissed by a Circuit Court was carried by appeal to the Supreme Court. Much subsequent confusion and difficulty might have been avoided had the court deliberately and with no preconceived hostility scrutinised that agree- ment with the view of determining its real purpose, and whether its probable effect would be, in fact, injurious to commerce. But no court, however exalted, is uninfluenced by strong popular sentiment, and this high tribunal failed to keep in mind the imperious necessity of uniformity in the rates of Growth and Function 2 1 1 railroad transportation over parallel lines, and con- sequently failed to perceive the merit of the agree- ment. It was animated by an underlying suspicion that the effort nominally to secure uniform rates was really designed to secure high rates, and it seized upon the provision which involved a slight, tem- porary, and innocuous restraint upon competition as vitiating the whole agreement, thus declaring that any agreement containing any restraint whatever upon competition, whatever the purpose might be, was per se injurious to trade. It is safe to say that this doctrine was without precedent. I should as a lawyer, especially as I happened to be of counsel for the defeated parties, have hesitated to indulge in any criticism of this decision pertinent to the questions I am discussing had not members of the court itself exercised that privilege in the fullest manner and made it manifest, I think it safe to say, that the decision will not be followed by the tribunal which declared it. Inasmuch as the decision of the court was founded upon an interpretation of the statute, it must be taken that Congress enacted a law re- specting railway companies which made any con- tract, combination, or conspiracy containing any ingredient, however small, in restraint of competition illegal and a crime in those engaged in it ; and con- sequently that an agreement between railroad com- panies simply designed to secure uniformity in reasonable rates, though not compulsory upon the parties save for a few days, was a crime ! Now, as all the managers of all the great railways of the •country were parties to the condemned agreement, 212 Law, Its Origin or to others like it, express or implied, it was brought to light that some hundreds of citizens of eminence had been violating the law and were liable to fine and imprisonment; yet no criminal prosecutions were set on foot, and the Attorney-General seemed to have exercised the supreme prerogative of pardon which the Constitution reserves to the chief magis- trate. But what effect has the decision had upon the conduct of the presidents, directors, and man- agers of the railroad companies? None whatever. They have indeed abrogated their formal written agreements, but they still confer and fix uniform rates by concert — that is, they are in the daily prac- tice of forming the combinations and conspiracies which the law condemns! And no attempt is made to bring any one of the criminals to justice! The artillery of the Attorney-General's office is as silent as if every gun were spiked. It was easy for the Government to pretend to execute the law, but when it found out what executing the law really involved it recoiled. And both the railroad officers who made, and make, themselves criminal, and the Government that fails to punish them, are right. Both yield to a necessity which is absolutely im- perious. What creates the wrong is the statute; that is, with the interpretation the Supreme Court has placed upon it. This illustration gives a clear notion of the anoma- lous conditions thrust upon society when the written law commands one thing and the universal custom another. The Government, by the Anti-Trust Act, as interpreted by the court, has declared the slightest Growth and Function 213 degree of restraint of competition in traffic arrange- ments concerted between parallel railroad lines to be illegal and criminal. This is to make competition and difference in rates the supreme policy, whereas universal custom requires the suppression of com- petition in rates and the preservation of uniformity ! The result of this conflict is not open to doubt. The Written Law is victorious upon paper and power- less elsewhere. The Attorney-General is sensible of the feebleness of the command resting upon him to enforce a law the enforcement of which would send a hundred of the most eminent citizens to jail and throw the industry of the country into con- fusion. Meanwhile, the interests of peace and order are left to the protection of the nominal criminals ! The command of the Sovereign will prove impotent against the unyielding force of custom. Uniformity of rates in railway transportation, upon which the safety of industrial enterprises so entirely depends, will be preserved. It will be preserved to a certain extent by informal consultation and concert between competing lines, but this being without the aid of Government enforcement will be subject to frequent and vexatious violations. The most effective method will be the acquisition by one interest of the control of the management of all competing lines by the acquisition of ownership, or of the control of owner- ship. One gigantic scheme in this direction has been baffled by what is called the Northern Securities decision, made in an action instituted by the Govern- ment to enforce the provisions of the same Anti- Trust Act. But other efforts will be made, and 214 Law, Its Origin should they not prove effective, real ownership will be acquired by one or a few individuals; and the goal least expected by those who have insisted upon com- petitive and discriminating war will be reached. The practical difficulties of another resort, that is, govern- ment ownership, or fixing of uniform rates by gov- ernment, will be made clear when all others shall have proved ineffectual. The deep-seated and far- reaching custom of society demanding uniform rates for the enjoyment of the benefits of all government franchises, will render abortive all legislative at- tempts which stand in its way. A still more impressive illustration of the impo- tence of written law when brought into conflict with custom is to be found in our present national history. During the existence of slavery in the United States, the negroes in the slave States were regarded and treated as personal property absolutely destitute of every civil right, and the notion that they could participate in government through the privi- lege of voting was something not to be dreamed of. This condition was a deep-seated and universal cus- tom. The abolition of slavery, as a consequence of the civil war, converted the whole race at a stroke from slaves to freemen — at least in theory. But they were freemen in little more than name. They were not indeed any longer bought and sold or claimed as property by their former masters., but the equality which belongs to freemen was everywhere denied them, and various devices were resorted to, such as compulsory apprenticeship, by which the race might be again reduced on a large scale Growth and Function 215 to a condition of practical slavery. The General Government then proceeded upon the notion that if the privilege of the ballot were extended to the freedmen there would be a competition, as else- where under free suffrage, for their votes, and legislators wotild be chosen who would enact laws to enforce their rights. But the expected competition did not arise, and the legislative bodies of the several Southern States, still composed of white men only, proceeded to enact laws embodying various devices which would, and did, practically nullify the gift of the ballot. This provoked a more energetic deter- mination by the General Government to enforce the right of the freedmen to the ballot and to a general equality with the whites before the law. A formi- dable mass of legislation was enacted in pursuance of this determination, crowned by an amendment of the Constitution itself, prohibiting all political discrimina- tion of every form between citizens, based upon the distinctions of colour or race. The legislative de- vices by which the white men had been enabled to baffle the gift of political equality to the freedmen being thus rendered ineffective, they took the only course remaining to them and resorted to such forms of force and fraud as seemed best calculated to defeat the Constitutional and Congressional enactments. In some places terror was produced among the ne- groes by a general and noisy display of firearms pre- vious to and at the time of the elections, by which the negroes were intimidated and abstained from voting through fear ; in others, where they ventured to vote, the ballot was fraudulently tampered with so as to 2i6 Law, Its Origin render their votes ineffective. To such an extent had this almost unconcealed practice of force and fraud by whole communities proceeded as to alarm the more moral elements of the communities guilty of it, and excite the fear that all distinctions between right and wrong would become obliterated and society itself fall into anarchy. Not even this suggested a withdrawal of their opposition to the Federal legisla- tion, but only more ingenious contrivances by which they might avoid the grosser practices of fraud and violence and borrow the appearance of legality in their effort to deprive the black race of political equal- ity. To this end constitutional provisions de- fining and qualifying the right of suffrage have been contrived and adopted in some States, and are likely to be further extended, whereby, without open dis- crimination, the practical exclusion of the inferior race from political power is secured. The validity of these constitutional provisions has been challenged at the bar of the Supreme Court, and it is not easy to see how they can escape judicial condemnation, but thus far that tribunal has avoided the questions thus thrust upon it, and there is an apparent disposi- tion among the judges to escape them altogether. Should this disposition prevail, the whole of the mighty Federal legislation contrived to give political equality to the blacks will be practically annulled, leaving behind, however, the great constitutions of States, which should be models of openness, directness, and dignity, deeply marked by the evidences of con- cealment and deceit. I do not discuss the question whether political equality ought to be bestowed upon Growth and Function 217 a race to which social equality cannot be extended. Even tyranny may be beneficent in its aims, but never in its results, and the attempt to compel a com- munity of men to do right by legislative command, when they do not think it to be right, is tyranny. It is Force in conflict with Order. Force will not gain its end, but will superinduce a mass of evil and suffer- ing which was the last thing it desired or expected. Many other instances might be given showing the impotence of legislation when put in conflict with custom, and refuting the notion that Law is now tending, or ever will tend, to become the creature of Force rather than of Order. Conduct will forever follow the great governing influences proceeding from the constitution of man and the environment in which he is placed. It will change as these influences change, and not otherwise. In nothing is human vanity more largely displayed than in the love of a theory. The simple and beauti- ful forms in which consequences develop themselves when a sufficient cause is assumed, as in the problems of mathematics, furnish a pleasure which the mind desires to hold in its grasp, and it recoils from any scrutiny into facts from a secret fear that the posses- sion will be endangered and turns back to revel in the delights of the theory. Bentham could not contem- plate without indignation the fact that the world was r i governed by something different from enacted law. To talk about conduct following its own laws, and obeying custom, would have put him in a passion. To remind him that every human society, from the beginning, had followed custom, would have probably 218 Law, Its Origin drawn the answer that he was well aware of the stupidity of mankind, that that was the very thing which angered him, that were it not for that his sys- tem would have been adopted long before! Austin was somewhat less dogmatic but almost equally fond of his theory. The conception of a sovereign power in the State which could "do exactly as it pleases" would be in his view effective in reaching, by means of legislation, a consistent and simple system of law. He did not, like his master, Bentham, reject "judge- made law" with abhorrence, but saw in it an ap- proach to what law ought to be ; and as he found it enforced by the sovereign power of the State, he fell into the error of thinking that this sovereign power had really created what it thus enforced. Not stopping to inquire whether the so-called sovereign power was in fact sovereign, he chose to assume it ; and his maxim that "what the sovereign permits he commands" furnished a ready demonstration that all law actually enforced by the State was the com- mand of the sovereign. Prof. Maine was, apparently, a thorough believer in Austin's theories when he be- g£in his inquiries. He soon learned that when the actual facts of the origin of law are studied the notion that they are in any sense the creation of the sover- eign must be relinquished. Nowhere in the actual world could a sovereign power be found engaged in the creation of law except in the Roman Empire and in the great modern States, and even in those States the sovereign was only beginning to be the author of law. He caught, however, at the appearance of this ten- dency and predicted its increase until it should be- Growth and Function 219 come perfect, and then, in his prophetic view, the Austinian theory would stand justified and estab- lished. Neither Bentham nor Austin sufficiently held in mind that the province of science was rigidly confined to the observation and orderly arrangement of facts, or that it was anything more than a process of reasoning from assumed premises; but this was no particular failing in them. It was the common fault of the time in which they wrote. How great the real ignorance of true science then was, even with the most highly educated, may be imagined from an ex- pression of Macaulay, who, eulogising Bentham, says that he found "Jurisprudence a gibberish and left it a science ' ' ! Prof. Maine lived in the full blaze of the scientific achievements which have lighted the way for all seekers after the truth. He knew the rigid pathway by following which those successes had been won, and makes the apology for Austin which I have mentioned, saying that he "more than once reminds us that, though his principal writings are not more than forty years old [at that time], he wrote before men's ideas were leavened to the present depth by the sciences of experiment and observation."1 But Prof. Maine is guilty of the neglect which he seeks to excuse. He has indeed explored the early institu- tions of society to learn the forms of conduct which they exhibit and the rules which actually govern the action of men, but this is a part only of the territory of fact which the inquirer must explore before he can reach a true notion of the origin of law. It is only the external field of observation. There is an internal 1 Maine's Early History of Institutions, p. 373. 220 Law: Origin, Growth, and Function field quite as important, into which Prof. Maine never sought to enter any more than Bentham or Austin. He never scrutinised the realm of con- sciousness to learn how conduct really originates, a,nd what is its cause or why it is that the actions of men so persistently present themselves in the form of custom, and why departures from custom are so universally condemned and punished. No adequate conception of law can be reached until this task has been faithfully prosecuted. LECTURE IX I NOW turn to another of the consequences of that view of the nature and function of law which I have adopted, namely, the limitations it places upon the province of Legislation. In reaching that view it became necessary for me to treat briefly of the nature of enacted law as distinguished from that which is the growth of custom and to consider at some length the principal uses for which it had been employed from the earliest times, and I have been obliged to say much more upon the same topic in criticising the theory that all law is the command of the sovereign power; but the importance of the subject demands that I should present in a connected view the real nature of legislation, the uses for which it may be employed, and the mischiefs likely to flow from ill- advised resorts to it — in other words, that I should mark out the Province of Legislation. The popular estimate of the possibilities for good which may be realised through the enactment of law is, in my opinion, greatly exaggerated. Nothing is more attractive to the benevolent vanity of men than the notion that they can effect great improve- ments in society by the simple process of forbidding all wrong conduct, or conduct which they think is wrong, by law, and of enjoining all good conduct by 221 222 Law, Its Origin the same means ; as if men could not find out how to live until a book were placed in the hands of every individual, in which the things to be done and those not to be done were clearly set down. The man who. by his writings, has done most to cultivate and propagate this notion in recent times is Jeremy Ben- tham, of whom I have had frequent occasion to speak. Although educated for the bar. he never engaged in the practice of his profession. He was a student, and Ethics, particularly what might be called the Ethics of Government, was the main subject which engrossed his attention. Inasmuch as Governments exist for the sole purpose of securing happiness to the governed, he thought it their duty to deliberately set about the accomplishment of that purpose and to ascertain what conduct would promote and what obstruct happiness, and to make laws in writing en- joining the former and prohibiting the latter, and insuring a fair distribution of the total amount of the happiness thus achieved among the governed in pro- portion to their obedience to the law. It provoked the rather coarse, but expressive, sarcasm of Carlyle, who, as you know, did not revel in pictures of human happiness, or greatly love the common herd, that it was a scheme ''for the distribution of an attainable amount of Pig-wash among a given multitude of Pigs." I do not adopt this characterisation of the work of a great and philanthropic man. This theory seems on its face very simple. Its complexities and difficulties appear only when we come to look at the means by which it is to be carried into effect. These means Bentham carefully elabo- Growth and Function 223 rated by making a detailed analysis of the nature of man, and a careful enumeration and classification of all the pleasures and pains he was capable^of experi- encing, of all his various passions and tendencies, and of the multitude of varying conditions of time and place affecting his conduct. From investigations like these he gathered the principles which should guide the action of the legislator in the enactment of Codes of law, both penal and civil. The statement and explanation of these principles, with which, it is to be borne in mind, the legislator is to make himself familiar, occupies a space which would amount to thousands of ordinary octavo pages, and is a pro- found and instructive compendium, presented in ac- curate and precise, though not attractive, language. With Codes framed upon the basis of these principles he would supersede all existing law and have them contain the only rules of conduct which judges should be permitted to enforce. Here, it will be perceived, is an a priori scheme for the creation of human happi- ness through the instrumentality of Government. Man is not to work out his own happiness by learning from the teachings of experience what is right and what is wrong and acting accord- ingly, but by studying a book ; and Bentham makes provision for beginning the instruction of children by learning the book by heart, and repeating it as they would the melodies of Mother Goose. He says: " In this manner before sixteen years of age, without hin- drance to any other studies, the pupils in public schools would become more conversant with the laws of their country, than 224 Law, Its Origin those lawyers at present are, whose hair has grown grey in the contentions of the bar." 1 This scheme assumes that the legislator can know beforehand from the nature of man all the conduct he can by possibility exhibit, determine, and enjoin what is conducive to the greatest happiness of the greatest number, and forbid what is destructive of that happiness. The world- wide difference between this theory of law and that which I have ventured to think the true one, is palpable at a glance. They are, indeed, opposites. The one views man as coming into existence with faculties which enable him to perceive the consequences of his own conduct, and to regulate it accordingly; so that when he finds that action of a certain character arouses the resentment, anger, and retaliation of others, he avoids it, learns that com- pliance with custom is expected both by himself and others, and that consequently when he complies with it he is safe, and thus makes compliance with custom his rule of action; that in this way a boundary line is marked out within which every man may act freely, but beyond which he must not go; that with this freedom of action he is left to work out his own happiness or misery by his own efforts; that society enforces this conformity to custom by punishing departures from it, and to this end constructs the machinery of government and enacts the laws which are adapted to the purpose, the whole scheme being the result of an Order altogether analagous to the 1 Bentham, Works, vol. i., p. 158. Growth and Function 225 order which governs the movements of the physical world. The other is a scheme by which society is made to engage in the business of finding out what conduct on the part of its members will secure the greatest amount of happiness to all, and then com- pelling its adoption by Force. The one is founded on the belief that no part of the universe is outside of the domain of existing Law; that when the human race was brought into the world, as it was composed of beings who were to act, their actions would fol- low an already existing law, and not prasent a scene of anarchy. The other assumes that the race was, so to speak, dumped upon the earth without rule or compass, unable to properly govern itself until some philosophic moralist arose to turn his thoughts inward and discover that the chief end of man was happiness, and that the way to live was to form a government which should appoint a commis- sion to frame a body of rules for attaining happiness, which rules the government would by force compel all men to obey. The one view of the function of government may be symbolised as that of a police- man who stands by and does nothing as long as no one in the crowd breaks the peace, acting on the assumption that right consists in minding one's own business, and wrong in trespassing upon others, and that every one knows perfectly well, without being told, what is right and what is wrong; the other as that of a schoolmaster with the whole of society for his pupils, all ignorant how to act until they had learned what the end of action was and the way to attain it. Bentham had a talent for apt illustration, 15 226 Law, Its Origin which he frequently employed to satirise the things he disliked, and he once said, speaking of the un- written law, that law was taught as a master teaches his dog, by waiting until he did something wrong and then beating him! He could not have described it more accurately. That is the way of nature through- out the universe. Why should not the master wait until the dog had done something wrong? Certainly he should not have punished him before. But per- haps Bentham intended that the master beat his dog for doing something the animal had no reason to think wrong. But this is not true, at least of good masters, such alone as Bentham can be supposed to have had in mind. If he had been asked how he knew that the dog was ignorant of wrongdoing, I cannot imagine what he would have said. Certainly he would not have intimated that a code of dog conduct ought to have been prepared in some language known to dogs and distributed among them. The way in which the dog had learned that the conduct for which he was punished was wrong was that when he was a puppy he was petted, caressed, fed, and otherwise made happy when he obeyed his master, and when he disobeyed him, at first gently scolded, then more sternly, afterwards slightly punished, and finally more severely, until he had learned to associate happiness with obedience and misery with disobedi- ence, and thus well knew that he had deserved the blows he received. The same is the case with the human being, child and man. The child is taught as the puppy was. Where the parental relation does not exist the discipline may be less gentle and affec- Growth and Function 227 tionate, but it is the same in method. In the infancy of society, when one man encroached upon another he met sometimes with reproof, sometimes with retaliatory resentment, sometimes with violent pun- ishment. It thus came about that certain things became associated with the prospect of suffering and others with that of reward, or, at least, of acquies- cence; and as this instruction is one which goes on with every man every moment of his life, it is per- fectly learned. This is the sort of knowledge that every man has of the law resting upon custom. There may be cases where the legally right and the legally wrong may not be known, but how few they are ! Every convicted criminal knows that it is idle to pretend that he did not know he was doing wrong, for no one would believe him. Of this mode of knowing the law Bentham apparently had no know- ledge. He really seemed to think that the enactment and publication of the law was not only the best but the only way of bringing a knowledge of it to the bulk of the members of society. Of course that knowledge which all have of what things are right and what wrong in the unwritten law does not often include a knowledge of the precise penal consequences which may follow the commission of a wrong, nor is it of any importance that it should. It is enough for a man to know that a thing is right and that he ought to do it, or that it is wrong and that he ought to abstain from it. The notion that the whole criminal class are entitled to have brought home to them the particular amount of the penalty which the law attaches to particular offenses, 228 Law, Its Origin in order to enable them to weigh more exactly the chances they are contemplating, is wholly irrational. The absurdity — I can call it no less — of Bentham's view is that the true method of making law known is to first enact it in writing and then print and publish it. There is no objection to this, but its efficiency is based upon the assumption that the bulk of man- kind do and will read the laws that are so published, whereas, in fact, it is safe to say that scarcely one man in a thousand does this. But the consequences of misguided legislation should not blind us to its beneficent uses. It should make us only the more solicitous to learn what its true nature is, what its uses are, and the dangers against which caution should be exercised in the employment of that instrumentality ; that is to say, to know the Province of Legislation and the limita- tions of its exercise. In what I have had to say heretofore concerning written law, it has been mainly in pursuance of my general purpose to explore the whole field of human conduct with the view of discovering all the causes which in fact restrain and regulate it; and so far three things have appeared to be true as matters of fact concerning legislation: (1) that it is an instrumentality first employed at a somewhat advanced state of social progress and after society has come to assume an organised form; (2) that the purposes for which it was at first and still is employed were political rather than juristic, to remove political evils, perfect the organisation of the state and thus to aid the unwritten law of custom and make it more effective, rather than to attempt Growth and Function 229 to furnish a substitute for it; that its action, there- fore, was confined to the province of Public (3) that the only considerable exception to this was the instance of codification, an exception more ap- parent than real, the cases in which it was resorted to being mainly where several states or provinces having different customs had become united under one government, and the different customs were con- fused and needed unification. Since legislation has for the period of three thou- sand years been confined to the province of public law, as above indicated, I might be warranted in drawing the conclusion that this was the only purpose to which it was adapted; but I shall be abundantly justified in this if, after considering its essential nature, it shall appear to be quite unfitted, and, indeed, incapable of taking a principal part in the regulation of the conduct of men in their private re- lations with each other. I have remarked that Austin's definition of Law was a tolerable description of Legislation; but I think it would be a better definition to say that it is simply the formal written expression of the will of the Sovereign State. When society has become a conscious organism it has a will, and the act of ex- pressing this, whether by the decree of an absolute monarch or by the voice of a legislative body, is what is commonly called legislation. All such ex- pressions are called laws, but all of them are not really such in the sense in which I have regarded law. As I have already pointed out, the State is a great corporation having many things to do. such as 230 Law, Its Origin the building of roads, and constructing a great variety of public works, appointing officers and marking out their duties. It can express its will in these par- ticulars only by declaring it in writing, but such declarations are not in the strict sense laws, because they are not designed to regulate directly the con- duct of men in their dealings with each other. Such acts are really nothing but expressions of the cor- porate will of the State in the transaction of its par- ticular business. Legislation does, however, in a large number of in- stances express the will of the State in relation to conduct, and its acts of this nature are without impropriety styled laws. For instance it confers upon individuals the power of acting under cor- porate forms and prescribes numerous rules to which such action must conform, thus laying the foundation for the law of corporations. It imposes upon the people generally many duties such as the payment of taxes, the rendering of military service, etc., and its acts of this nature affect conduct, but incidentally only, their chief object being to create efficient in- strumentalities for enforcing and aiding the funda- mental law of custom. Between legislation, even when thus embracing the commands of the State aimed at conduct, and the unwritten law, the difference is, we might say, world- wide. The former is made by a single human person, or by a very few persons, and necessarily exhibits the imperfection and error which attaches to all such works. It is created by a breath of the human will and may be abrogated by another breath. The latter Growth and Function 231 is self -existent, eternal, absolutely right and just for the purposes of social government, irrepealable and un- changeable. It may be justly called Divine ; for, being identical with custom which is the form in which human nature necessarily develops conduct, it can have no other author than that of human nature itself. These fundamental distinctions between the un- written law of custom and the commands of the sovereign have been recognised in the thought of the world ever since legislation began. Universal custom in Athens made it the duty of relatives to bury the bodies of the dead ; and when the tyrant Creon made a decree forbidding, under penalty of death, the burial of Polynices, and ordaining that he should be left a corpse for birds and dogs to eat, a ghastly sight of shame, his sister Antigone dared to disobey the decree ; and when asked by the tyrant, 1 ' And thou didst indeed dare to transgress that law ? ' ' answered: "Yes, for it was not Zeus that had pub- lished that edict; not such are the laws set among men by the justice which dwells with the gods below; nor deemed I that thy decrees were of such force that a mortal could override the unwritten and unfailing statutes of Heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth." And the voice of human feeling as expressed in dramatic poetry was the voice also of the philosophic jurists of an- tiquity. Cicero in his dialogue De Legibus makes the interlocutor thus define the fundamental unwritten law: 232 Law, Its Origin MARCUS: Therefore law is the discrimination of things just from things unjust ; proceeding in obedience to that original and fundamental nature of all things in accordance with which the laws of men are framed which inflict punishment upon the wicked, and defend and keep guard over the righteous. QUINTUS: I understand it very clearly, and I not only think that no other enactment should be regarded as law, but should not even be so called. MARCUS: Would you not, then, call the Titian and Ap- puleian enactments laws? QUINTUS: No, not even the Livian. MARCUS : And you are right ; especially for the reason that they may be annulled by a mere line of the Senate, while that law the force of which I have explained can neither be enacted nor repealed.1 Again, the law proceeding from legislation consists of a multitude of distinct propositions or commands having no necessary connection with each other, and all of them absolute and arbitrary. No reason is assigned for them. Stat pro ratione voluntas. A cer- tain fact, or grouping of facts, is taken and erected into an ideal class, and it is declared that whenever such fact, or grouping of facts, occurs in conduct certain legal consequences will inevitably follow, whether just or unjust. Now such fact or grouping may, for aught the legislator knows, or can know, be accompanied by some other fact which will modify the character of the grouping and convert what otherwise would be just into injustice. Nevertheless, the law must have its course unaffected by such un- foreseen circumstance, although the result will be to defeat the intention of the lawmaker and create 1 Cicero, De Legibus, lib. ii., ch. v, vi. Growth and Function 233 injustice where he designed to prevent it. The un- fitness of such law to govern the unknown conduct of the unknown future is manifest. In the unwritten law of Custom such anomalies cannot occur, for in that law there are no absolute and arbitrary rules. There is, indeed, one absolute rule, but it is not arbitrary. It is that custom must be obeyed. This is not the expression of will, but the dictate of order. Whether any particular conduct does or does not conform to custom can be told only when it comes for the first time to be displayed, and, in cases of dispute, only by the judges who are the experts appointed by society for that purpose. The vast body of so-called rules of law found in our digests and treatises and mentioned in the reports of decided cases are but the results, and logical deduc- tions from the results, of the cases thus decided, arranged and classified with regard to scientific order. None of them are absolute. They are all provisional and subject to modification. Having pointed out the true measure of legislation and its wide difference from the unwritten law, I proceed to enumerate the principal uses which it is capable of serving and which are embraced within what may be called its province. First: The State may, by an expression of its will, simply do something, in which case all that it has directly in view is accomplished by such expression : for instance, it may grant the public franchise of building and operating a railroad. This neither adds to nor changes existing law, and is not, there- fore, in a narrow and precise sense, legislation, 234 Law, Its Origin although after the road is constructed a variety of rights and duties relating to it will arise under exist- ing law. But a simple grant by the State of some- thing which it has the right to grant differs in no respect from the grant by a private person of some- thing he has a right to grant. Second: The State may command something to be done by others; for instance, it may command one of its officers to cause a prison, a courthouse, or other public building to be constructed. This does not make law in the proper sense of law. It affects the conduct of the person it commands, but in no other sense than that in which the conduct of a soldier is affected by the command of his superior officer. It is a particular, not a general command. This species of legislation is often employed in conjunction with that first above described, as when an act is passed creating a Banking Department. Certain offices are created, which is a thing done; besides this, the persons appointed to fill them are commanded to perform the various duties assigned to them in exercising a supervision over banking institutions, and the bank officers are required to make regular reports to the department, containing particular items of information concerning the operation and condition of the corporations under their management. Legis- lative commands thus made, requiring special things to be done, are part of the machinery of government, but a part very different from that relating to the rules which govern the ordinary conduct of men in re- lation to each other. It is properly described as public law, by way of distinction from private law. Growth and Function 235 Third: Another form in which the State may ex- press its will is that of commands which do affect the conduct of all the members of society, as where a law is enacted defining and punishing a crime, a species of legislation also belonging to Public Law; and the State may enter the province of strictly private law and affect the conduct of its members in their ordinary relations with each other, as where it enacts a law for the registry of deeds and declares that a registered conveyance shall take precedence over one prior in date but not registered; or it might go further and define a contract, and declare what contracts should be valid and what invalid. These forms in which the will of the State may be expressed indicate the purposes towards which its conscious action may be directed, and lead to the inquiry whether there are any, and what, useful rules of wisdom and prudence for guiding its action. Manifestly there are such; but before endeavouring to state them we should have a clear understanding of the quality of the power, for rules very largely depend upon that. If legislators, whether one alone or many in a body, possessed perfect