strictly so called. It serves them as a test by which they may separate what is actually law in a given state from "positive morality," or from such imaginary law as used to fill the works on the law of nature. If this important object can be accomplished in a more truly scientific manner, the fictitious command of the state might be easily dispensed with. When Mr. Holland makes the attempt to do this, and concludes by defining law (jus) as "a general rule of human action enforced by a sovereign political authority (p. 34), he furnishes a test of such rules entirely independent of their origin. This may be the command of the state, in the sense of prescription or enactment, or they may be derived from the necessary relations between men, or between man and the state. As Montesquieu expresses the better view: "There is a primitive reason, and the laws are the relations between this and different beings, or the relations of the different beings among themselves." (Esprit, p. 2.) But upon this definition there is no ground for denying the same character to the laws of action in the physical world, enforced by the power that governs all nature. Or if we do deny the use of this term to signify those natural relations, the definition merely limits one use of the word "law," irrespective of the things it signifies. The distinguishing mark of human law is still the principle of order, and that is common to it with the rest of the universe. If this be true, we must accept Blackstone's view of all law as essentially the same, so far as it represents the principle of order, of definite effects from definite causes, whether we find it in the realm of physics, of social science, or of law in the narrowest sense of the term in which it is used for the rules that govern the enforcement of human rights and duties. The importance and value of the last, as of the others, lies chiefly in the fact that man can foresee and rely upon the results of his action, in his own person or that of his neighbor, and can therefore act as a free human being in a universe governed by law. Consider, for example, the immense addition to human powers produced by the general diffusion of the law of contracts, hardly known even in its rudiments to our early ancestors. It enables the merchant to extend his business over the whole navigable globe, and to reckon with confidence the result of transactions which may extend through years. It multiplies the power of the capitalist as many times as the number of persons whom he can induce by wages, or some other form of profitable contract, to labor in his interest and carry out his plans. These great results are not so much the consequence of the rule of ethics, which bids every man keep his word, as of the rules of law, which give each contracting party power to enforce upon others the obligations they have assumed. The vast edifice of commercial credit is the creation of law which allows man to count with reasonable certainty on the conduct of others. That this law may from time to time be modified by the state, that is by the agreed action of those who live under it, does not materially affect the conclusion. We shall see that even in such cases it is the first care of the state to prevent such changes from interfering with the vested rights, the well-founded expectations of the individual. (Note on retrospective laws.) The extent of such changes in an ordinary lifetime is very small. It has only been exaggerated by false theories which confound law with legislation. (Note on jurisprudence and legislation.) For particular purposes every man may consider the law in its bearing on his interests a closed and stable system, as much a part of the order of the universe as the laws of nature or those of morality, and this is all that Blackstone has asserted in this passage, to which so much exception has been taken. It is not easy to fix the exact relations of law (jus) and legislation, even at one chosen period of national his tory: even less so to give a definition that shall answer for different periods. But when we take a general survey of the history of law among the Aryan races, we may affirm with some confidence that in all of them in which the state has been developed as a governing power, the order of thought has been something like this. At the beginning, law and custom have been undistinguished: the duty of following the ancestral customs has been recognized before it occurred to any one that those customs might be changed or improved upon by the present generation. At this stage, the resemblance between customary jural law and the law of nature or physical law is complete. Both are systems independent of human will, to be observed and followed if one would prosper. One must plow and sow in a certain method if one would reap a satisfactory harvest one must govern his actions by the customary law if he would not bring pestilence or disaster upon his family or his tribe: one must bargain or marry or build with the requisite formalities, if he would look forward to certain results in the conduct of his fellow tribesmen. Subsequently there dawns upon the mind the conviction that with the assent of the rest, he may venture in some cases to depart from the exact usage. Here for the first time physical and jural law begin to differ. One cannot agree with the sun or the rain to permit a harvest, even though he delay sowing until a later period; but he can agree with his kindred or his tribe that a customary form may be omitted or a novel act performed, and yet no advantage be taken of the departure from immemorial usage. From the single act thus agreed on, the advance to a series of such acts, to a new rule, is only one of degree; and when the latter stage has been reached, and it is understood that the tribe may by agreement waive an inconvenient usage, or change the customary consequences of an act, legislation has begun. Historical evidence of these steps can hardly be expected, yet it would be presumptuous to say that no trace of them can be found in the history of English law. When Ethelbert's wise men under the influence of Christian Rome first wrote down the customs of Kent, they began with the rate of damages to be paid for an offense against the church. They could not have found ancestral custom on this point, for the whole generation had been born in heathenism. Even if the wrongs to the king and others had been so exactly estimated by usage as we find them in this code, there must have been something like legislation when elevenfold was fixed as the true measure here. A careful examination of the Anglo-Saxon laws, or of any similar code of a primitive people, would show, I think, the gradual development of legislation, that is the growth of a conscious power to modify the relations and conditions under which men were living together. It is another step forward when a special organ of legislation is developed. The wise men of Ethelbert had no power to legislate, and did not know that they were legislating when they fixed the ratio of compensation to damage in a novel case. They were simply writing down the customs of their forefathers, and supplying a figure which was blank in their own experience. In the course of seven centuries this gradually came to be the power of making statutes, of fixing the status of men with regard to each other, of doing away with old customs, and putting new customs in their place. Yet still it remained as it had been at first, an agreement modifying the customs of the nation. But when this legislative power was once fully formed, it went forward with wonderful rapidity to take full possession of the entire field of law. This is not the place to explain at length the reasons. Foremost among them is the union of law and morality which prevailed through the middle ages, and found its most complete expression in the canon law. When all law came to be considered as the direction of human conduct toward virtue and heaven, its character as legislation by a higher power was the logical consequence; and this once established, the law that could not be regarded as the revealed or natural legislation of God was explained in analogy with it by attributing it to an earthly sovereign. This tendency culminated in the eighteenth century, when law and legislation became identified. Blackstone, in spite of his repeated recognitions of consent as the source of law, adopted Puffendorf's definition, and made all law the command of a legislator. Bentham, Filangieri, and others, followed in the same track, but went further, because they rejected natural law, not merely as an independent kind of law, but even as a restraint or limitation on the legislative power. The social contract theory helped in the same direction, because while it recognized the existence of natural rights, it assumed that men could modify them at pleasure by their own agreement. Even the doctrine of inalienable rights-an after-thought, devised to meet the unwelcome form of social compact suggested by Hobbes and others did not practically limit this omnipotence of legislation. But the social contract, as well as natural law, disappeared from legal science as presented by Austin and his followers. The arbitrary motiveless will of the sovereign is to them the only source, only criterion of law, and the separation between such law and physical law, or law as the order of natural phenomena, is complete. Blackstone, it will be noticed, has nowhere defined the law. He has defined a law as a "rule of action" (and subsequently, a municipal law, as a "rule of action prescribed by the supreme power of the state"), and assumes throughout, as in this section (22), that "law," meaning the law, is only another term for the |