The strictly analytical or logical treatment of law as a science results in resting it in the abstract upon force, and force alone. But socially and politically viewed, the force of law depends on its coinciding with the moral judgment of society, and its conformity to a just public opinion. That accomplished essayist, Frederic Harrison, defines law to be a general rule respecting the property, person, reputation or capacity of the citizens of a State, which the sovereign power therein will cause to be observed by the authority it delegates to its tribunals, or will enforce in its tribunals; and his conclusion is that the arrangement of the corpus juris of any system ought to depend in many things on practical convenience, which is, after all, the source of law, and cannot be exactly distributed by logical analysis of an abstract kind.

De Tocqueville insisted that the attempt to make laws logically complete involved an absurdity, and Schlegal, in his Philosophy of History, objects that the civil law was too severely just, and did not make allowance enough.

Sir Henry Maine, seeking a wider basis for jurisprudence than the purely analytic method allowed, may be said to be the chief exponent of the historical method which discloses the relations and true end of legal rules, introducing the element of progress, and a constant development, without disturbing that fixity and uniformity, that solidarity, so to speak, which is essential to a system of law as a working whole.

Civilization began with the imposition of a settled customary yoke upon all men and all actions, which nature, in its perpetual tendency to change, prevents from impeding all progress, until to-day all free governments, founded as they are upon discussion, are "able to gain the benefit of custom without the evil" can "have order and choice together," and the ordinary springs of progress are left to their elastic action. And in this way our law has worked itself free from those anomalies which formerly seemed so monstrous to men trained in the civil law.

In a country of popular institutions, with every case of note reported in the newspapers, with an intelligent and cultivated audience, and with a judiciary absolutely above reproach, the dominion of justice and reason can be extended and the domain of brutal force and arbitrary will contracted, without being compelled to resort to hard and fast legislative definitions; but, in an absolute government, it may well be claimed, that progress is to be secured rather through direct legislation than evolution.

The statutes, decrees and juristical writings which contained the law of the Roman Empire when Justinian came to the throne, were numerous, scarce and disputed, and complete collections existed neither in public libraries nor in the hands of individuals. No judge and no practioner could be sure he possessed all the authorities,

and there were many points on which opinions of equal validity dif fered. It was, therefore, that through governmental interposition, the Code and the Digest were compiled to give the statute and the judicial decision, and the institutes, the elementary hand book. "It is the first care of a reformer," says Gibbon, in his celebrated 44th chapter, "to prevent any further reformation," and so the emperor denounced the punishment of forgery against those who presumed to pervert or interpret the will of their sovereign, but he could not bind the native freedom of the mind or the action of coming generations, and therefore commentary upon commentary, gloss upon gloss, change upon change, followed the attempt to lay down an unvarying legal rule.

The condition of India prior to the adoption of its code was, in many respects, similar to that of the Eastern Roman empire. Macaulay tells us there was no fixed law under which the Hindoo people lived; that texts could be produced on any side of any question; that expositors, equal in authority, perpetually contradicted each other; that obsolete laws were constantly confounded with the laws actually in force, and that the decisions of the tribunals were altogether arbitrary. Since, therefore, England exercised over this vast dependency the powers of an enlightened, but nevertheless. despotic government, the necessity arose for a certain definition of what the law was, and in that respect the action of the British Parliament might be said to have conferred a blessing, "a blessing which absolute governments are better fitted to confer upon a nation than a popular government."

In 1789 France had so many systems of jurisprudence, .that Voltaire said the traveler had to change laws about as often as he changed horses. The written and the customary law conflicted, and what was in force and what was obsolete was in dispute, and all these systems had not only to be made harmonious, but brought into consonance with the principles of the great revolution and with the policy of the empire. This was effected by the code Napoleon, but it is stated by Monsieur Portalis, in the preliminary discourse to that great work, that "no matter how perfect a code may be, it is no sooner finished than a thousand questions present themselves."

It is in reference to this code that Sir Walter Scott, in his life of Napoleon, commends the law of England as preferable, "because each principle of English law has been the subject of illustration for many ages by the most learned and wise judges, acting upon pleadings conducted by the most acute and ingenious men in each successive age. This current of legal judgment has been floating for centuries, deciding as they occurred, every question of doubt which could arise from the application of general principles to particular circumstances; and each particular case, so decided, fills up some point which was previously disputable, and becoming a rule for similar questions tends, to that extent, to diminish the debatable.

ground of doubt and argument with which the law must be surrounded, like an unknown territory when it is first partially discovered.'

Bentham himself, the greatest practical law reformer, the predecessor of Austin in analytical jurisprudence, attacking the English law as "confused, indeterminate, inadequate, ill-adapted and inconsistent, as to a vast extent, the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision," nevertheless says: "Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political States, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement, in a word, all points taken together, in constructiveness, to that which may be seen to be afforded by the collection of English reports of adjudged cases.'

Doubtless, as Chancellor Kent says, the great proportion of the rules and maxims, which constitute the immense code of the common law, grew into use by gradual adoption, and received from time to time the sanction of the courts of justice without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. When, therefore, heretofore undeclared rules are announced in judicial decision, this cannot accurately be called "judicial legislation," since the application of the already existing truths of science, required by changed circumstances, can in no sense be held to be a new creation. Of course the decision in Taltarum's case, by which the statute De Donis was substantially abrogated, is open to that objection, though that decision had been preceded by the general judgment that it ought to be made, and was sustained, when made, by its substantial benefit to the community. But, in the lapse of four centuries, the boundary between making and administering law, has become perfectly clear, and universally respected, yet it is in the decisions of courts upon actual states of fact that the central principles of legal conduct are chiefly to be found, and to them in a much larger degree than to legislation is to be attributed the existing body of our law.

And naturally, since, as paraphrased from Mr. Reeve, the common law is the custom of the realm, on which the courts of justice exercise their judgment, declaring, by their interpretation, what is, and what is not, that common law. This custom consists of those rules and maxims concerning the persons and property of men, that have obtained by the tacit assent and usage of the people, being of the same force as the acts of the legislature, the consent and approbation of the people being signified by their use and practice of it.

Or as is said by another: "What governs the manners of men toward each other? It is the common law of social intercourse.

What constitutes the habits and customs of a country but a common law, gradually growing with civilization, and always accommodating itself to the situation of the people? Nor is the common law of jurisprudence less pliable. It is one of its excellencies that it is capable of change, of modification, of adapting itself to new situa tions and varying times, without losing its original character, its vital principles, its most useful institutions."

Whether, through legal fictions introducing new rules surreptitiously or through the doctrines of equity supplemental to, but not superseding the common law, or through the exposition and application of the common law itself, judicial action has been, and must necessarily be, the most prolific source of growth in the law.

The entire system which constitutes the law of common carriers is founded on the custom of the realm as applied by Lord Holt in Coggs v. Bernard, though the carriage by land and sea of to-day was not in the mind of the great judge who pronounced that opinion.

So the recognition of veracity as a distinct legal principle, in Pasley v. Freeman, is the basis of the redress so frequently accorded in cases of false representation.

Mitchell v. Reynolds discussed and applied the rule of the common law, that contracts unreasonably in restraint of trade are void, and since that day that central principle has been expanded to meet the exigencies of the time.

Perpetuities, combinations to lower or to raise wages, contracts to limit competition or to create monopolies, are all found to be within the elastic grasp of the common law, and subject to judicial determination in the application of old principles to the new states of fact, inevitably resulting from the ever varying course of events.

In Lickbarrow v. Mason, Mr. Justice Buller, declared Lord Mansfield to have been "the founder of the commercial law of this country," and this commendation that illustrious magistrate deserved by introducing his improvements by way of judicial decision. rather than by attempting to proceed by legislation.

Of course courts cannot and do not decide against the letter of the written law, but, as M. Portalis remarks in the preliminary discourse to which I have referred, "It is for the magistrate and the jurist, penetrated with the general spirit of the laws, to administer their application," and the general maxims of right being fixed, and general principles fruitful in consequences established, their enforcement in the settlement of the question arising in each particular instance, is necessarily remitted to judicial arbitrament.

It is correctly stated that "every time the result of a number of cases is expressed in a formula, and that formula becomes so stamped with authority that the courts grow disinclined to allow its terms to be revised on a mere appeal to the precedents upon which it originally rested, then, under such circumstances, there is pro tanto a codification." And however essential to the

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study of the principles of law, in the abstract, scientific classification may be, the attempt to classify legal principles scientifically by statute, to divide law on any fixed theory of right, is unnecessary and premature.

Complaint is made of the accumulation of reports, but what art, what science, is not subject to the reproach of multiplying books? And in what can excess be better tolerated than in ours? Besides, "some books," according to Bacon, "are to be tasted, others to be swallowed, and some few to be chewed and digested; that is, some books are to be read only in parts, others to be read, but not curiously, and some few to be read wholly and with diligence and attention. Some books also may be read by deputy." It is unnecessary in the application of settled legal principles to cite a library. Reports are necessarily multiplied by the increase of cases to be adjudged in the progress of invention and enterprise and society. To a certain extent of course, the labor of the industrious lawyer is increased, but "the labor we delight in, physics pain," and the search for authorities to sustain a particular contention, is not so exhaustive in this day of admirable digests as to justify legislative interposition. Nor is there that degree of lack of precision in or considerable disagreement among the decided cases on any given question which is often so confidently asserted. The explanation of the larger part of the difficulties arising in cases submitted to judicial determination, is to be found in the remark of Blackstone, that "experience will abundantly show that above one hundred of our law suits arise from disputed facts for one where the law is doubted of." If that were true in his time, it is most assuredly so in ours. Facts do not tend to simplify themselves, and no facts are so intricate as the facts of human nature.

And hence the difficulty in applying accurately the general principle of one case to the new facts of another, and the importance of looking to the principle of a decision rather than the manner of the particular argument used to support it, a difficulty legislation would be ineffectual to remove.

The law is, in truth, daily growing in the direction of method, simplicity and promptness in administration, and from time to time judicious legislation comes in to assist this natural and almost insensible movement.

Mr. Justice Matthews, in an address of great literary excellence, says that "the direct and specific function of the profession in the social and political state, in its progress in civilization, is to formulate its progress into laws and institutions, and superintend the gradual perfection of its organization, according to the idea of justice."

It cannot be doubted that the administration of the law is the real school of jurisprudence, and that it is to the purity and ability of the bar and the bench we are to look for the attainment of justice, rather than to the most perfect codes in the world.