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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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relegated