Page images
PDF
EPUB

man is to adapt his conduct and operations so as to conform to them, for by such conformity alone can he make them minister to his well-being. And by so acting he can achieve results which, within his own range of influence, are far-reaching and durable. The farther his researches are carried, the more variety of occupation he makes for himself. He attains heights of knowledge and power, and a consciousness of growing civilisation, which are themselves good, and constantly refresh his mental and moral nature, as well as augment his material comfort and happiness.

Municipal law contrasted with laws of nature.-But with municipal laws, or those laws which govern the mutual relations of individuals in communities and nations, the fundamental notion is altogether different. Instead of these being fixed and invariable, and being searched for ab extra in external phenomena, instead of their existing altogether independent of man, they are essentially made by man himself. They are devised to meet his own wants; it is not his wants that are accommodated to them. The laws of nature are historical facts,-they point to the pastto the beginning of time, and a Great Architect, whose will alone is the measure and the limit of all knowledge concerning them. On the other hand, the municipal laws are devised by man himself, and devised for no other purpose than to further his own pursuits. They are the creatures of his own necessities. While the laws of nature are searched for because they already exist, the municipal laws exist only from the time when they are fashioned and settled. They vary, and disappear and reappear, and if man were blotted out of the world, they would perish with him. While the laws of nature are indestructible, the laws of man are provisional and temporary, reflecting his passing cares and pursuits-following him as a shadow, and not leading him as if he were a captive. It is not, however, to be supposed, that, though the municipal laws are made by man himself, they necessarily on that account conflict with the laws of God and nature. On the contrary, as will be seen hereafter, the law-maker usually searches for his materials in the storehouse of nature itself, and in the recesses of his own being, both mental and physical. He takes and adapts these to his purpose. But it is only when and

because these are accepted and adopted, that they become part of the municipal law.

In what the laws of nature and municipal laws agree.But though the laws of nature differ from municipal laws in their origin and relation to man, there is one respect in which they agree, and that is the influence which they exert, directly or indirectly, on the conduct of man in ail situations of life. The laws of nature, being divinely appointed, influence man's conduct by making his life all but impossible, unless they are observed and obeyed. They are irresistible, and compel his submission wherever he turns; he cannot escape from them, and yet cannot alter them. The municipal laws, on the other hand, being entirely artificial, are made so as to imitate the laws of nature,1 but can only exact such a halting obedience as is the fruit of choice rather than of compulsion. They compel, it is true, after a fashion, but not by any direct and immediate action. They operate circuitously through the

1 Some philosophers have speculated as to whether the notion of municipal law or of the laws of nature comes first in order of time, that is, whether we, having first acquired the notion of a municipal law, afterwards give a like name to the settled order of events which we observe in nature, and call them laws also; or whether, having first acquired the notion of laws of nature from our observation and experience, for example, of the laws of heat, falling bodies, flowing water, &c., we give a like name to the rules which are prescribed to us by third parties. This may be treated as an unsettled speculation; but the better opinion seems to be that the two notions are contemporaneous. Others try to learn something as to the essence of municipal law from the etymology of the word "law" in different languages. Aquinas, Suarez, Valentia, &c., derived the word "law,” or lex, from ligo, to bind; others derive it from lego, to read: Cicero derives it from deligo, to elect or choose, inasmuch as a law implies a choice of two things. These etymological inquiries may be said to throw no light whatever on the matter.

BURKE thus alludes to this subject: "Surely there cannot be a more pleasing speculation than to trace the advances of men in an attempt to imitate the Supreme Ruler in one of the most glorious of His attributes, and to attend them in the exercise of a prerogative which it is wonderful to find intrusted to the management of so weak a being. In such an inquiry we shall indeed frequently see great instances of this frailty, but at the same time we shall behold such noble efforts of wisdom and equity as seem fully to justify the reasonableness of that extraordinary disposition, by which men in one form or other have been always put under the dominion of creatures like themselves."-Abr. Eng. Hist. ch. ix.

reason, and by reaching the springs of human action. Man follows, and is intended to follow them, not because he cannot help it, but because reason itself says it is prudent to obey them. In this one respect both laws agree, namely, in the ultimate result of being followed and attended to, and this common feature binds both kinds of law as species under one genus. The one is intended to be an imitation of the other, not only in its certainty and uniformity, but often also in its origin; for nearly all codes of barbarous nations purport to have a divine origin. This arises, however, only from the artifice of legislators, who, in order to exact from rude communities a readier obedience to municipal laws, find no easier and more effectual means of doing so than by announcing them as the very voice of Heaven.1 Such an advantage, though invaluable at the starting-point, becomes at a later stage a grievous impediment and drag. For when obedience thus secured has grown with the growth of society, and has become a second nature, it is then too readily deemed an act of impiety to change and improve what has been referred to a superhuman source. Thus a law, though in itself essentially transitory and flexible, and capable of adapting itself to new wants as they arise, becomes stereotyped, and impedes the very movements essential to progress.2

1 PLUTARCH says that Lycurgus, Numa, and other great men, finding their people difficult to manage, and alterations to be made in their several governments, pretended commissions from Heaven, which were salutary at least to those for whom they were invented. Plut. Numa. See further, post, Introd. ch. ii.

"Those who will admit of no change in the state would render errors perpetual, and, depriving mankind of the benefits of wisdom, industry, experience, and the right use of reason, oblige all to continue in the miserable barbarity of their ancestors, which suits better with the nature of a wolf than that of a man."-A. Sidney on Govt. p. 405.

"It is observed by the best writers on this subject, that those commonwealths have been most durable and perpetual which have often reformed and recomposed themselves according to their first institution and ordinance, for by this means they repair the breaches and counterwork the ordinary and natural effects of time."-Pym loq. 3 St. Tr. 342.

Venice in the middle ages prided itself on the irrevocability of its laws, and most of the travellers and historians of the time believed this to be a sure sign of its immortality and of its extraordinary wisdom and insight!-Thuanus, Hist. Ocean. 56.

Supposed province of municipal law.-While municipal laws are created by man for his own purposes, it is natural to inquire what those purposes are. This, however, is an obscure and difficult research. Nothing is so closely interwoven with daily life as the law and its rules and restrictions. No human employment is withdrawn from its all-pervading influence, or so remote and isolated that it is not confronted at one stage or another as with an inscription on the wall, "Thus far shalt thou come and no farther." All the businesses of life repose on this essential condition-that there are limits in all directions, created by members of the community, each against each-limits which cannot with safety be overpassed. This sense of restriction haunts all the myriad occupations of man, like a wandering voice. What it is-whence and whither it comes and goes-might well exercise the speculations of philosophers. For society, in all the stages of its progress-in all conditions of time and place-whether loosely cohering in wandering tribes, or built up, tier upon tier, of

HARRINGTON declared that "the republic of Venice would be immortal-a commonwealth having no cause of dissolution, and standing with one thousand years of tranquillity upon her back.”Harr. Oceana.

HALE says: "He that thinks that a state can be exactly steered by the same laws in every kind as it was two or three hundred years since, may as well imagine that the clothes that fitted him when he was a child should serve him when he was grown up as a man. The matter changeth the custom: the contracts the commerce: the dispositions, educations, and tempers of men and societies change in a long tract of time, and so must their laws in some measure be changed, or they will not be useful for their state and condition. And besides all this, Time is the wisest thing under heaven."Hale's An. of Law.

"In modern days a condition of stagnation and decline has been the actual condition of many political societies for long periods of time. It is a condition prepared always by ignorance or neglect of some moral or economic laws, and determined by long-continued perseverance in a corresponding course of conduct. Then the laws which have been neglected assert themselves, and the retributions they inflict are indeed tremendous. In the last generation and in our time the Old and New Worlds have each afforded memorable examples of the reign of law over the course of political events. Institutions maintained against the natural progress of society have foundered amidst fanatic storms.' Other institutions upheld and cherished against justice and humanity and conscience have yielded only to the scourge of war.”—D. of Argyll's Reign of Law, 431 (3rd ed.).

closely knit communities-all silently pursuing their complicated occupations-has always had laws of some kind. Many a sage like Socrates, surveying the scenes of the marketplace, must have pondered over the secret why and how so many independent activities can be made to act so harmoniously. It is true that Homer said the Cyclops had no laws and no political constitutions.1 Herodotus says the same of the Androphages, and yet that they were great breeders of cattle.2 Historians say that the ancient Romans after the expulsion of their kings had no laws for twenty years, till they sent commissioners to inquire, and these brought them the Twelve Tables. The ancient Abyssinians, ruled by the descendant of the Queen of Sheba, were also said to have had no laws. And travellers have reported of the Caribbeans that they had no laws, and each killed his wife at pleasure.1 The Iroquois Indians are said to have relied on sentiments of shame, and had no punishments. And we are told that when there was no king in Israel, every man did that which was right in his own eyes. But these sayings do not conflict with the results of universal experience, that all nations and tribes must consciously or unconsciously have laws of some kind, and customs are the laws of barbarians.

3

Aversion of lawyers to much generalisation.-Yet the range or province of municipal law is a problem which the great thinkers of the world have done little to solve. Nor is the main reason of this far to seek. The municipal law is nothing, if it is not practical, and it cannot be known in its practical details without great and persistent toil. The master spirits of philosophy have shrunk from the irksomeness of penetrating so many petty, devious, and sordid labyrinths, and have passed them by on the other side as naught but a mighty maze without a plan. The votaries of the law, on the other hand, have been so engrossed with details, that they have not cared to apply their minds to theories and systems, which they themselves have found all but useless and unprofitable. They have always gladly cast aside the abstract for the concrete, and have bid

1 Hom. Odyss. vi. 5 ; ix. 106; x. 200.
31 Univ. Hist. 15 Univ. Mod. Hist, 233.

2 Herod. b. 4.

53 Schooler. Ind. 184.

❝ Judg. xvii. 6.

« PreviousContinue »