An introduction to the history of the development of law

Front matter

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Table Of Contents

Chap. PaSe I. ORIGIN AND NATURE OF LAW, AND THE LAW OF

NATURE, 11

II. THE MOSAIC LAW, 28

Chapter I Origin And Nature Of The Law, And The Law Of Nature

The history of law is the history of our race, and the embodiment of its experience. It is the most unerring monument of its wisdom and of its frequent want of wisdom. The best thought of a people is to be found in its legislation; its daily life is best mirrored in its usages and customs, which constitute the law of its ordinary

transactions.

There never has existed, and it is entirely safe to say that there never will exist, on this planet any organization of human society, any tribe or nation however rude, any aggregation of men however savage, that has not been more or less controlled by some recognized form of law. Whether we accept the fashionable, but in this regard wholly unsupported and irrational theory of evolution that would develop civilization from barbarism, barbarism from savagery, and the existence of savage men from a simian ancestry, or whether we adopt the more reasonable theory, sustained by the uniform tenor of all history, that barbarism and savagery are merely lapses from a primordial civilization, we find man at all times and under all circumstances, so far as we are informed by the records which he has left, living in society and regulating his conduct and transacting his affairs in subordination to some rules of law, more or less fixed, and recognized by him to be binding upon him, even though he has oftentimes been in rebellion against some of their provisions.

The recognition of the existence of law outside of himself, and yet binding upon him, is inherent in man's nature, and is a necessity of his being. And this is as much as to say that the very existence of human society is dependent upon law imposed by some superior power. While from our present standpoint the ultimate finite existence is that of the individual, and all true philosophy recognizes that society exists for the individual, and not the individual for society, yet it is also true that the individual is intended to exist in society, and that he must in many things subordinate his own will to that of society, and inasmuch as society can not exist without law, it is a necessary deduction of reason that the existence of law is coeval with that of the human race; and that the Creator of the human race is the fountain and source of all law, not only that which is designated as the divine law, but equally also all just human law. From the Creator alone all human law derives its sanction ; without reference to the Creator there can be no justification for the existence of human law. For, without the sanction of the Creator and His authority for the ordination of human society, man lias no right to make laws for his fellow man, or for his posterity, since all men are equal in right, and all are ultimately responsible for their acts in the tribunal of conscience alone, which means merely before the tribunal of their Creator. Neither, therefore, upon the efficacy of any supposed social compact, such as has been vainly imagined by men like Jean Jacques Rousseau, who would eliminate the Creator from his own creation, nor upon the brute force of the majority to enforce its ordinances, does the existence of the social order depend. J For, if the origin of law were to be sought in compact, a similar compact would suffice to abrogate it; and if it depended on the force of the majority, the wrongfulness of disobedience to its behests would depend entirely upon its discovery and manifestation to the world.

Suppose two shipwrecked men thrown upon a desert island, far removed from all human society, far removed from all its agencies and instrumentalities for the prevention and punishment of crime, and one in wantonness kills the other, is the act any less a crime, because it may never be discovered, because it may never be reached by the avenging arm of justice, because the social compact has never been in force in that remote region of the earth? Our conscience and our common sense rebel against the inference of any distinction between such a crime and that of the ordinary murderer within the pale of civilization.

But what is this law, of which we propose to trace the origin and the history? In the treatment of the development of law, it is certainly a necessary prerequisite that we should have some adequate idea of that with which we are to deal, and some knowledge of its scope and meaning.

There is much controversy, and indeed it may be said that there is almost hopeless confusion among the writers on elementary law in regard to the definition, origin and sanction of human law. Eunning through all their pages there seems to be a mortal apprehension of the acknowledgment of the existence of a Creator, of the Fatherhood of God and the Brotherhood of Man, of the sole and only conditions which make law intelligible ; and there is constant and wearisome and meaningless recurrence to the theory of a social contract supposed to have been entered into by men in a state of nature and for which there is not the remotest justification in history, or in reason, or in common sense, and to the theory of the powers of society resting ultimately upon brute force, which can not by any possibility be a justification for anything. In one thing only do all writers on law now agree, and that is in the unqualified repudiation of Blackstone's famous definition of municipal law as unsound and wholly untenable. The great Commentator on English Law says that law is "A rule of conduct prescribed by the supreme power in the State, commanding that which is right and prohibiting that which is wrong." It is very justly objected that the latter part of this definition is either wrong or superfluous, and that the previous part is indefinite and unintelligible, besides being in many respects untrue. We know, for example, that custom and usage make law ; and yet custom and usage are not prescribed by any supreme power in the State. To mention a common illustration within the experience of every man, we are all familiar with the direction upon country roads— -Keep to the right, as the law directs." There is usually no law that so directs except the law of custom. Usage, and not any supposed supreme power in the State has dictated the rule as a matter of convenience.

Again: what is the sense in this connection of the expression—"Commanding that which is right and prohibiting that which is wrong?" Have there not been statutory enactments which did the very reverse? Have there not been statutes which prohibited that which is right and commanded that which is wrong? It is easy for the student of English History, or the student of the history of Imperial Eome, to answer this question in the affirmative. And has there not been usage which sanctioned sacrifices to Moloch, and custom which justified murder? Then again, what connection is there between the fundamental principles of right and wrong, on the one side, and a revenue law imposing a tax upon bank checks, or levying a duty at the custom-house upon imported goods, on the other side? What principle of fundamental right is subserved by a statute which requires the record of conveyances of real estate? There is a connection, it is true, in all such cases between right and custom, and between right and statute ; but it is not the connection assumed by Blackstone.

Likewise, the question recurs,— What is this supreme power in the State, which has the prerogative of making law? Only with reference to England does Blackstone attempt to give an answer to it, and that answer is far from satisfactory. He says that it is the Parliament, composed of the King, Lords and the Commons ; and the whole tenor of his work, as was pointed out long ago by his critics, Bentham and others, is to the effect that it was the King alone. For Blackstone was an advocate of the theory of the divine right of kings to rule independently of their people— an infamous doctrine which it is only necessary at this day to mention in order to insure its immediate repudiation, but which was in fact not only the theory, but the practice of the English Government in the days of Plantagenet, Tudor, and Stuart sovereigns, and down to that comparatively modern time, two centuries and a half ago, when Oliver Cromwell and his merciless horde of pious ruffians and shrewd fanatics shattered the theory forever on the bloody battlefields of Naseby and Marston Moor.

But while unanimously and most justly repudiating Blackstone 's definition, with all that it implies, our modern writers on elementary law are hopelessly at sea when they attempt to define for themselves what municipal law is, what is its scope, and what are its sanctions. And by the sanctions of law I here mean the grounds and the reasons upon which obedience is required to its enactments. The French publicists and some of the German writers, followed in this regard by various English and American authors, have, under the influence of atheistical theories eliminating God from his own creation, found the origin of law in a supposed contract entered into between the members of society to conduct themselves with propriety towards each other, an agreement which they designate as the Social Compact. As has been already intimated, the notorious Jean Jacques Rousseau is the author of the term, and is generally credited with being the first propounder of the theory. As a matter of fact, the theory is much older than Eousseau. The germs of it may be found in Plato, and in writers long before Plato. But wherever and with whomsoever it originated, it never had tenable foundation. The condition of society never existed, and can not even logically be assumed ever to have existed, which would have justified the assumption of such a theory. And yet it has found much favor with some American writers, who are fearful to find a common source for religion and politics, the Church and the State, which in their practical operation it was the aim of our governmental system as far as possible to keep distinct and separate, in one original mandate from God to man, and who therefore are reluctant to go back to Sinai or to Eden for the source of our municipal, as well as of our religious law. And here let me say, in passing, that while Church and State are and ought to be separate in our country, it is not true, and it can never be true, that religion and politics can be wholly dissociated from each other.

Our American writers are generally content to say that municipal law is the expression of the will of the people, which means in practice the will of the majority ; and that it derives all its efficacy from the right of the majority to govern. But it requires no very profound consideration of the subject to show that this begs the whole question and is shnply a confession of ignorance; and that while in our system the right of the majority to govern, and therefore to make law, must within certain limitations be admitted, yet neither in the majority of the people, nor even in the whole of the people acting unanimously, if that were possible, is the fountain of law to be found.

For illustration of the subject — for here, perhaps, it may be best explained by illustration — let me suppose that a community has become so demoralized that it refuses to punish murder, or highway robbery, or arson, or rape, as a crime ; would such refusal make the act less criminal? If the majority of a people, or their legislative agents duly authorized by them, infringed the inalienable rights of conscience and prohibited the quiet exercise of the religion which one honestly believes to be true, would the prohibition be right and just, merely because it was ordained by the people? If the majority of a people, or their legislative agents duly authorized by them, took the property of one person and arbitrarily transferred it to another, how would the transaction be made consistent with our sense of right and justice? But you will say that the people, or a majority of them, will do nothing so unjust. Why not? Have not peoples and nations, majorities and minorities alike, done what was wrong and unjust ? And is not all history full of such injustice? That we now at this time in our own country may not deliberately do or authorize such wrong, may well be admitted ; but what has that to do with the principle involved, if other nations and other ages have committed or may yet commit the wrong ?

It is undoubtedly true that the immediate source of municipal law is to be found in the will of the people; and that the rule of the majority in some way or other, not necessarily always a numerical majority, is the only practical rule for the ordinary government of society and for the formulation of municipal law. But there is no guaranty of infallibility for majorities or for nations, notwithstanding that the theory of infallibility necessarily underlies all law. It can not be, of course, that what a people ordains to be law must of itself be right, and that what it prohibits must of itself be wrong. We know too well to the contrary. And yet it is true that it is the purpose of all municipal law to enforce the right and to prohibit the commission of wrong. Primarily, however, right and wrong are independent of all municipal law and above it. Municipal law can not make that right which is intrinsically wrong; nor can it make that wrong which is intrinsically right, although for the furtherance of the general good it may prohibit that which, in the absence of prohibition, it would be right and proper to do.

The underlying principle of all just government and of all just municipal law is stated by St. Paul, when he says that " There is no power but of God" (Romans, xiii: 1). When we say, with reference to our republican institutions, and the right of nations to establish such institutions, that all power is from the people and in (lie people, we do not mean to contravene, but rather to emphasize, the doctrine of the great Apostle: for the full statement of the proposition is that all power is in the people from God. And this is no more than has already been intimated, that all the fundamental principles of law, not merely divine law, but human law also, are of divine origin, and are the dictate of the Almighty Himself ; and that by Him it is committed to the people to organize society, according to their varying circumstances, to carry the fundamental principles into effect. Indeed, it would be entirely appropriate to say that all substantial law is divine, and that all just human law is merely regulation.

Let us illustrate the subject by reference to some special examples. Let us take the crime of murder. All human law prohibits it, and all human law seeks with more or less earnestness to punish the commission of it with more or less varying penalties. What makes murder a crime ? Assuredly not the statute which denounces a penalty for its Commission. Murder is a crime against the Law of Nature ; and the statute merely recognizes the fact and provides the penalty, which has been left to society itself, that is, to the people to provide. And so we find that the penalty is often different, sometimes death, sometimes imprisonment for life or for a term of years, sometimes banishment, and sometimes other modes of punishment. Turn to civil matters. The right to hold property is a natural right; it is given by the law of nature, that is, by God Himself. It is not the creature of human law ; and it is not within the domain of human law to prohibit or destroy the right of holding property. But human law may properly regulate it, and for the peace and good order of society it must regulate it. All human law on the subject is merely the regulation of the original, fundamental, God-given right, which antedates all human law.

This is not religious dogma or theological discussion in which we are indulging. Consider it as we may, analyse it as we may, endeavor to escape from it as we may, we are ever driven back upon the proposition that civil society is founded upon the Divine ordination, and thai we can not eliminate God from the universe which He has created, least of all from the affairs of man, the crown of creation. We may wilfully shut our eyes to the light, but the result is ever to convict ourselves of absurdity. We can find no sanction and no justification for any human law that would ignore the Law of God. Of course, I have no reference here to dogmas which are the subject of doctrinal controversy, but only to those commandments of the moral law which are regarded by all right-minded men as of universal application, — in other words, to the Law of Nature, as it is sometimes distinguished from the Law of Eevelation.

Some writers object that the Law of Nature is an unsafe criterion for the basis of municipal law, because the Law of Nature, as they say, is indefinite, and is understood with differences by different nations, races, and peoples. But this objection overreaches itself; nor is it true in fact. There is no difference of opinion anywhere among the human race as to the criminality of murder, arson, robbery, stealing, adultery ; nor is there anywhere controversy as to the right of private property. There is often difference of opinion as to minor details; and there is often looseness of action even in regard to fundamental principles. But the Law of Nature is no less specific and no less definite because there are criminals who violate its precepts. The Law of Nature has been distinctly recognized by the courts as being above all constitutions and all human ordinances. Only in the Law of Nature can there be found warrant for what are called the inalienable rights of man, and which are so called because they are above all human law (See Ex parte Virginia, 100 U. S. 368). Opinion of Mr. Justice Field.

All law, divine and human, civil and religious, municipal and ecclesiastical, starts from a common source. The different branches, it is true, deal with different spheres of human action ; and they are not again to be blended, or to be administered by the same human authority. The Law of Nature, by which term we understand, as we have sought to explain, the original law imposed by the Creator upon man simultaneously with the commencement of human existence on this earth, has become, like the river which is stated in the Book of Genesis to have gone out from Eden to water the antediluvian earth, divided into four great branches, the Moral Law, Ecclesiastical Law, Municipal Law, and International Law ; and of these four only the two latter are ordinarily assumed to enter within the domain of what we understand as Jurisprudence. But the Law of Nature remains the common parent of all of them.

The term "The Law of Nature" has often been misapplied to designate the conduct and the usages of rude savages living, as it is said, "in a state of nature." But this is a manifest abuse of the term. The savages in question live, not in a state of nature, but in a state of criminal degradation far removed from the condition which the God of Nature had intended for man. The true Law of Nature is God's law to created human nature, not the abuse of it which crime and degradation and lawless

Introduction To Development Of Laav

passion have wrought in those who have sought to escape from its civilizing influence.

From this Law of Nature, from this Divine Law, as we may now properly call it, are derived all our rights and duties. In strictness, Human Law can not create either right or duty; its function is merely to regulate them. The freedom of the human will conferred by the Creator upon man is the sole source of all absolute human right, as the law which he gave at the same time is the source of all human duty. Secondary rights there are and secondary duties, which may be designated as the creation of human law; but even these spring from the divine ordination and the duty imposed upon man to respect the co-ordinate rights of his f ellowman. It necessarily follows that all human law is only the compliment of the Divine Law, or Law of Nature, whichever we may call it ; and the sole great purpose of the human law is to give effect to the Divine Law, to guaranty man in the exercise of his rights, and to require him to perform his duties. To conserve right and to enforce the performance of duty is the purpose of human law ; and within this scope has rested the effort of all legislators at all times in the history of mankind. No system of human law has ever assumed to create a right ; it has often enough assumed to restrict the natural rights of man; and no system has ever assumed to create a duty, except in the secondary sense to enforce pre-existing duty, or such duty as was assumed to be pre-existing.

The Law of Nature, as the source of all humau law, has been regarded by various writers as too indefinite and too uncertain to form a satisfactory basis for the superstructure of what we may designate and what has been designated as Municipal Law. But this is because they have confounded the term in its proper sense with the sense in which it has been used by Rousseau and his followers. Of course, the rude usages of savages living in a state of degradation and infamy, is no proper criterion of the Law of Nature. As well might we seek for models of patriotism in the penitentiary as turn to the lawless savages to learn the elements of law. The Law of Nature is the law of civilization; and it is the mistake of these writers to whom I have referred to suppose that it is something obsolete, antiquated, peculiar only to some possible or impossible state of society that has long since ceased to exist, if indeed it ever existed. And it is in this mistake that all their difficulty arises. The Law of Nature is as much the law to-day as it was when the first human society was established upon the earth. It is the law of right and wrong, which does not change, because it can not change ; and while we may differ about some of its details, no right-minded man will assert that there is any difference of rational opinion in regard to its fundamental principles. Reference has already been had to some of these. We may refer to them again. Murder, robbery, larceny, rape, arson, perjury, are recognized by all right-minded men to be intrinsically wrong, whether they are punished by human laws or not. No right-minded man will claim that their wrongfulness is the result of their prohibition by human law. They are wrong because they are prohibited by the Law of Nature, —that is, by the divine authority which ordained the existence of man as a social being, and left to society only the measure of the present punishment which it would mete out to them. And what is said of these salient offences against the divine ordinance is equally true of minor offences, however difficult it may be in some cases to determine where the divine ordinance ends and human provision begins.

A classification has been introduced into the discussion of Municipal Law by the use of the terms Substantive and Adjective. By the former is meant the body of the precepts of the law; by the latter the processes by which these precepts are carried into effect, — or, in other words, by which justice is administered. The classification, although in a somewhat altered sense is quite applicable to the Law of Nature and Human Law. The Law of Nature is the substantive collection of Divine precepts by which the rights and duties of man are all prescribed; the Human Law is the method adopted by society for the enforcement of these rights and duties.

But where are we to find this Law of Nature? I answer unhesitatingly in the Law of Eevelation, in the spontaneous dictates of the human heart, in the fundamental principles of our Ayran Civilization. The principles of right and wrong are inherent in our nature ; and the Law of Revelation, which distinctly formulates these principles in positive precepts, only affirms and re-enacts the Law of Nature.

Let us illustrate. ' ' Thou glial t not kill " is a precept of the Law of Nature; it is likewise one of the Ten Commandments of the Law of Revelation. It enters into the Code, moral and municipal, of every nation that exists in the world, or that has ever existed. The mode in which the precept is enforced differs in the different municipal systems, although the penalty of death is and always has been well nigh universal.

It is in the mode in which the great precepts of the Law of Nature, or the Moral Law, have been formulated by the different branches of the human race, and in the method whereby they are sought to be enforced, that the difference consists between the great municipal systems of the world. Some nations have been lax in their enforcement, and some have overloaded them with extraneous matter; but the great effort of all the nations has always been substantially the same. We can now pass to an examination of their methods in more or less detail.

Chapter II

First of all the municipal codes of the world in their importance to ns, and relatively also the first in the embodiment of the Law of Nature in statute form, although by no means the first in the order of time, the so-called Mosaic Law demands our consideration.

Upwards of fifteen centuries before the Christian Era — the exact time has never yet been determined — a movement occurred, the greatest and most important in the annals of recorded time before the era of the promulgation of the Christian Eeligion. This was the Exodus of Israel from Egypt. You know the history from your Bible, and from the numerous text-books in the schools which give an account of it. It is in brief that the children of Israel, who had been domiciled in Egypt for 215 years and during the latter part of that period had been held in servitude there, suddenly went out from that country in a body, numbering probably about three hundred thousand persons, not three millions, as commonly stated, and withdrew into the deserts of Arabia Petraea, incidentally causing the destruction of the Egyptian army in the Red Sea, and occasioning a commotion that was felt far and wide over all the shores of the Mediterranean. The leader of this movement was Moses, a man of extraordinary ability, versed in all the learning of his time— one who had once stood in close relation to the Egyptian throne, and may have been regarded for a time as the heir apparent to the crown of the Egyptian monarchy. Subsequently an exile in Arabia on account of disturbances in the land of the Nile, he had ample opportunity during the many years of his sojourn in that country to consider the lessons of philosophy which he had learned from the Egyptian priesthood, to become familiar at the same time with the history and the traditions of his own people, and likewise to acquaint himself with the laws, the literature, and the history of Ancient Chaldaea. Setting aside for the time as foreign to our present purpose all consideration of the divine inspiration of the morality of the Bible, every intelligent reader of that sacred volume will readily recognize that the author of the first four of the five books of it which go under the name of Moses, and who was at the same time the leader of the great revolutionary movement commemorated in the Book of Exodus, must have been a man of wonderful intelligence and capacity, and eminently worthy to become the legislator of his people and the greatest legislator of

all time.

The Mosaic Legislation, as it is called, was promulgated during the forty years for which it was ordained

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that the people of Israel should lead a nomadic life in the wilderness of Arabia Petraea, before entering on a more settled condition in the Promised Land. It was committed to writing, as it is generally conceded, by the great legislator himself in the three books known by the names of Exodus, Leviticus and Numbers. The Book of Deuteronomy, which contains an elaboration and development of it would seem to have been a later work.

The Mosaic Legislation is claimed by its author to be based on the mandate of the Almighty Himself. ' ' Thus saith the Lord God, ' ' is the formula with which he usually introduces his ordinances ; and he begins it all with the Ten Commandments stated to have been given by God Himself amid the thunders of Sinai. These Ten Commandments are the primary and fundamental provisions of the Law ; all the rest and residue of the Mosaic institutions are designed merely to carry these fundamental enactments into effect. These Commandments constitute what is known as the Law of Revelation ; they give concrete form and expression to the Law of Nature. For now we can say that there is no substantial difference between the Law of Nature and the Law of Revelation. When we are asked what the former is, we can point to the latter. The Ten Commandments are well known to you. Every Christian youth learns them as the primary precepts of his religion; and every Christian youth is taught how they were delivered to Moses by the Almighty. They are the substance and the essence, the beginning and the end of the Mosaic Law ; and they are as binding to-day as when they were promulgated to the people of Israel in the valleys of the Sinaitic Peninsula. Since they are the Law of Nature, they have been binding since the world began ; and inasmuch as they embody the Eternal Truth and are essential to the preservation of human society, they must continue to be binding until man and time shall be no more.