wrongs, distinguished from those of the tribe or clan. Representative institutions, trial by jury, incorruptible judges, habeas corpus, trespass, slander, trade unions, gaols, and workhouses, are abstract ideas far beyond the reach of savage minds, and if uttered to them would be nothing but foolishness. All that corresponds to law in this primæval or degraded state consists in trapping and eating one's adversary. All commerce consists in satisfying the bodily appetites. All morality, religion, and education consist in sacrifices and war-dances. Hunting and witchcraft may be said to divide between them all that flows from reason these exercise body and mind alike, and fill up the pauses of appetite. It is true that tribes are also found in many quarters of the world only a little higher in advancement, others again higher and higher, until some of the lineaments of those institutions usual in a settled and populous community are discerned. These glimpses of human progress in various stages may be found in the pictured pages of travellers and historians. But notwithstanding all their scattered lights, it is impossible to construct any intelligible history of how the law came to expand into its present full development, what conditions supplied the impulse and directed the growth. Sir Robert Filmer tried to frame a theory of government by tracing society from Adam and Eve to the seventeenth century. He steadily searched for, and always contrived to find, the patriarchal system embodied in every stage-the divine right for the kings, and the passive obedience for the subjects. But Locke had little difficulty in exposing the flaws, assumptions, and self-contradictions manifold, which were conspicuous in his specious chain of deduction. And most authors since those days have rested content with occasional glimpses of old-world ideas visible in ancient codes and histories, but with many a chasm of darkness between. The historical method fails chiefly in its history. It fails to tell whether the savage state is the first state or the last -the starting-point of all, or the falling away and lowest degradation of the many. It solves none of the secrets when, how, or by what subtle influences the noble savage of the woods was transfigured into the peaceful citizen— how the spear became a ploughshare, and the vengeful and murderous blow became a warfare of words transacted by

third parties on a stage-how most of the complicated wants of man came to be satisfied by some appropriate remedy, or quieted altogether by the knowledge that no remedy at all can be found.

The analytical method of explaining law. The analytical method is the other means of studying and seeking some mastery of the law. To resolve the main processes and machinery of the law into the elementary principles and axioms, is to suggest at once the best division of details, and to supply the best clue to the knowledge of what is, and to the secret of what ought to be. The law is always transforming and expanding itself by a process analogous to the growth of a tree. It is seen among savage tribes as a seed or root or a sapling, and after the lapse of ages it is the pride of the forest. The root has gradually accommodated itself to the soil and searched in all directions for support, and according to the soil so is the tree and the branches. The leaves and branches and trunk have changed, and yet the identity has remained. But why the root has travelled more in one direction than another-why the branches lie more to the east or the west-why they take this shape or that, and finally why one soil is more kindly than another, are secrets too deep for the scrutiny of ordinary men. Yet it is something to know what is the interior mechanism of the tree-the circulation of the sap-the organic structure of the wood, the bark, the leaves, and the roots, the chemistry of the soil-the mutual relations of the constituent members. Analysis can only carry us a few stages, and none can wholly explain why one nation has a more favourable soil than another, and why the tree is here and there of a statelier growth. Human nature serves as common ground, but patriotism and national vanity cover it over with flowers and leaves of mantling green. The variety of soils and situations, however, can scarcely fail to suggest comparisons, reflections, and researches; and as no system of law has yet approached perfection, and the best seems the busiest in searching out still better principles, better processes, and better ends and aims, it must be invaluable to resort to some common classification and' some standard of advancement, round which these can be grouped for common reference. Such advantages are those which analysis alone can supply.

General definitions of law by various writers.-Such being a general survey of the bearings of the municipal law, it is necessary to approach nearer, and inquire what definition of the word has been arrived at by the great writers of ancient and modern times. And at this stage it is salutary to reflect that it may be altogether impossible to give any definition at all, for however common may be the experience which each individual almost necessarily acquires of some of the processes of the law daily going on around him, he may yet be wholly unable to fix its generic and specific rank with scientific exactness. Nor is there much to surprise in this state of things, for notwithstanding the researches and the reflections of many centuries, the philosophers cannot be said to have yet settled among themselves how to define truth, beauty, virtue, conscience. Yet every one will admit that each of these is not only an existing thing, but familiar to his thoughts and feelings, however difficult to express their discriminating qualities.1 It would be

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1 In considering the scientific value of definitions, it should be recollected that the sense of satisfaction derived from a definition, or from the best reason to be given for a doctrine or rule, is not always proportioned to the increase of information or insight afforded. The mathematicians, in expositions of their science, have not shrunk from an endeavour to explain why it is that a body to which motion is communicated moves in a straight line. Thus POISSON, in his 'Mecanique Celeste," P. ii., p. 1, § 113, says that the reason is that no reason can be stated why a body should not move in a straight line." And this, though a merely negative reason, satisfies the mind, and at least takes the edge off further inquiry. Probably on similar grounds it is that amid all the many definitions of virtue which the moralists of all times have been busy in constructing, demolishing, refining away, and canvassing, there is a soothing satisfaction left in the mind by that much-abused yet irrepressible definition given by many, that virtue is nothing else than "the eternal fitness of things." Few persons can avoid ringing changes on this old idea. It is a singular coincidence that BENTHAM unconsciously follows the mathematicians in his explanation of the essential equality of the law. He says, "No reason can be assigned why the law should seek to give one man more than another."-1 Benth. W., 302.

Thus CICERO well expresses what many of his successors have only repeated in language slightly different: "The impulse which directs to right conduct and deters from crime, is not only older than the ages of nations and cities, but coeval with that Divine Being who sees and rules both heaven and earth. Nor did Tarquin less violate that eternal law, though in his reign there might have been no

impossible to collect all the attempts made in different ages to fix the meaning of municipal law, and possibly many of these only end where they began, and substitute a synonym or a circuity of many words for two or three. Some authors resort to the language of eulogy, and avoiding close inspection or distracting details, dilate only on its gilded exterior and most conspicuous features.

Hooker, Burke, Dr. Johnson, Mackintosh, on law.Hooker eloquently says that "law has its seat in the bosom of God—has a voice, which is the harmony of the world— the least feel her care and the greatest are not exempted from her power, and angels, men, and creatures admire her as the mother of their peace and joy." Such an account indeed must often have astonished those who thought they had reason to know best, and to feel strongly how many terrestrial infirmities clung to the most admired justice. Burke also extolled law as the pride of the human intellect and the collected reason of ages; Dr. Johnson looked upon it as displaying the greatest powers of the understanding; and Mackintosh viewed the progress of jurisprudence as the noblest of spectacles, in which, during the long course of ages, cases of difficulty were gradually withdrawn from brutal force and arbitrary discretion, and subjected to inflexible rules. Hallam also carefully avoided committing himself to any attempts to fix the area of law. Eulogies such as these, bestowed on their familiar work, lawyers would scarcely dare to think or speak; but, when volunteered by bystanders, may well be welcomed and cherished with pride.1

written law at Rome against such violence, for the principle that impels us to right conduct and warns us against guilt, springs out of the nature of things. It did not begin to be law when it was first written, but when it originated, and it is coeval with the Divine Mind itself."-Cic. De Leg.

1 Hooker, Eccl. Pol. b. i.—HALLAM has observed that Hooker's description of law is in substance the same as the definition of Eternal Law by Suarez. But the criticism seems unjust to Hooker, whose originality and eloquence cannot suffer by the coincidence.-SIR J. MACKINTOSH says that Hooker referred to "the law of nature." -Mack. Disc. L. of Nations. What is meant by the law of nature is afterwards discussed.-See Introd. ch. ii. post.

HALLAM has said that "no systematic science, whether by the name of jurisprudence or legislation, can be laid down as to the principles

Definitions of law by the ancients.-Definitions in law can scarcely be said to be favourites, and they are sometimes pointed out as signals for caution.1 Yet the search is enticing, and it may be useful to see what great authorities have suggested as a definition of municipal law. The ancient codes were too practical, and their legislators too much in earnest, to trouble themselves about this requirement, the desire of later and more critical ages. The Indian codes, those of Persia, of Moses, the older Greeks and Romans, contain no attempt either to define or to make a division of the law. And many of the philosophers approach, rather than grapple with, the same subject. Socrates seemed to think the distinguishing characteristic of law was that it was dependent, not on caprice, but on the will of the gods, was unchangeable, and yet adapted to all conditions of humanity. Plato thought it was the enforcement of the three primary virtues— knowledge, fortitude, and temperance-and that without laws we should live like beasts.2 Epicurus said without laws men would devour one another.3 Aristotle thought law was a declaration emanating from the common consent of the community as to everything we ought to do, and as

which ought to determine the institutions of all nations, or, in other words, the laws of each separate community cannot be regulated by any universal standard in matters not depending upon eternal justice."-2 Hall. Lit. Eur. 586 (3 ed.). "Law has been studied in general rather as an art than a science."-2 Hall. Mid. Ag. 342 (12 ed.).

1 SWINBURN says: "Definitions are said to be dangerous in law." -Wills and Test. p. 1, sect. 3. The Roman Digest also noticed the perilous nature of definitions, the defects of which were so easily exposed by others.-Digest, b. 50. BURKE said the rights of men are incapable of definition, but are not impossible to be discerned. -Fr. Rev.

Yet fallacies in reasoning are in circulation, which have retarded law reform as well as confused the law itself, and which seem to arise from nothing else but a want of any clear definition of law and its province, as for example in copyright, blasphemy, and forfeiture for crime, and other chapters. So late as 1799 Abbott, a lawyer, afterwards Speaker, opposed the abolition of forfeiture in language which would be untenable in the present day.-34 Parl. Hist. 1068. Definitions, or attempted definitions, have this negative value, that they quickly expose any confusion of thought in those who use them. 3 Plutarch.

2 Plato, De Leg. ix.