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this we answer, that the action of natural forces frequently ought to be, and may be, modified in behalf of moral ends; that if strong commercial motives are acting on unwise or unkind parents to induce a disregard of the claims of children, society may wisely step in to maintain those claims. In other words, the common welfare no more allows the authority of the parcnt to be used to the permanent injury of the child, then it does the strength of that parent to be employed in the coercion or abuse of an adult, and a system of labor that is offering inducements to such injuries is obnoxious to law, on exactly the same grounds as the slave-trade.

The direction of law against usury has not the same grounds. There is no adequate reason for singling out the price for the use of money among all other prices, and fixing it by law. The effort runs so directly across natural law as to make such legislation in a large measure futile, and when not futile, productive of effects the exact reverse of those intended. In the one case, therefore, that of the minor, it is practicable and obligatory upon us to interfere with commercial law; in the other, that of usury, it is not, and each case rests on the nature of the ends to be reached, and of the means at our disposal. General principles do admit as possible and desirable a regulation of commercial action in behalf of social and moral ends. They do not admit, as in an eight-hour law, an effort to peremptorily cut short natural forces, to alter prices of labor, without altering the conditions out of which that price inevitally springs.

A last illustration under this third class remains to us, and one that has long engaged the public mind—prohibitory liquor laws. These, we think, present one of the clearest cases of the right of society to involve moral ends in civil aims, and protect itself at once from the physical and social and moral conseqences of a traffic by making it criminal. In the first place, the proposed legislation lies wholly within the province of law. It pertains to trade and goes not beyond the regulation of trade. Indeed, no new principle is involved in prohibition beyond those necessary for the support of any form of license. A license is a partial suspension of trade, and involves the right, if the case is shown to require it, of a

further suspension, extending to a complete suspension or prohibition of trade. The same power that enables us to limit the trade to A. will enable us to take it from him also.

Not only does the subject-matter of legislation lie wholly within the province of law, prohibition can be adequately maintained on purely civil grounds. In no direction are social order, the public quiet and safety, and individual rights of person and property, more often trespassed on, than in connection with this trade. Its physical consequences are breaches of public order and decency, pauperism and crime. A most lamentable fact is it, if the wife and child of the drunkard must exist in society, robbed of every thing, in perpetual danger even of life, and that society be powerless to cast any adequate protection about them. That view of civil law which takes from it the right of interference in a case like this, puts society in the helpless and absurd position of a spectator in a mob, who may oppose violence to violence, and bear off the victims of violence, but who has no power to disperse the rioters or arrest the ringleaders. Society is thus left to deal with effects, and forbidden access to causes, though these are of a tangible and civil character, and sure to be productive of fresh effects of the same character. It must attend on the unwholesome traffic, keep its purlieus clear of paupers, collar and stalk off its brood of boisterous criminals, but can not meddle with the direct physical sources of these evils, the responsible, central agents of these wrongs. There is no rational view of the office of civil law which can so restrict its power, which can put the quiet, the safety, the property, the happiness and morality of the community at the mercy of unprincipled commerce, bending all rights, the dearest and highest, to the one right of trade. Men may traffic and only traffic as they respect those weightier interests of citizens, whose guardian deity, in her regal legislative and judicial robes, is the grave and searching spirit of civil law, overlooking the community, to strike down, not merely the thief whom all are pursuing, but every direct and detrimental offender against the public prosperity.

Now, the high, the moral ends which are incident to such

legislation, certainly do not render it unfit, certainly add to its fitness. Well may society do what it can in so defining the conditions of traffic as to make them as favorable as possible to public virtue. Nor is there any law of nature, rendering the successful execution of such statutes impossible. The only barrier to them is that always presented by crime, powerful in itself and in the favor of parties refusing to recognize its true character.

We accept then this legislation as justified by its subject, by the kind and degree of the evils it seeks to remedy, and by its mode of prevention. A public sentiment that will not sustain it, may render it nugatory, and, therefore, for the time being, unsuitable, but this fact does not remove it from the class of laws justly aimed at as a later condition of the public welfare.

The conclusions we have reached are briefly these: Moral order is the only perfect and possible order of society. Society may do for itself by direct legislative action all that it is intrinsically desirable should be done, and that can be done. The three considerations that especially guide and set limits to this power, are the liberty of the individual, natural law, and moral law. These all demand consideration, and to neglect them is to fail of the end aimed at.

The three directions in which reform, under these restrictions, invokes the aid of law, are first in conforming the organic law of the state to the general principle of equal rights; second, in completing those measures by which society provides for its safety, prosperity and growth; and third, in giving the best civil conditions to the moral action and life of the citizen.

ARTICLE III.-THE "SOCIAL CONTRACT" AND MAINE'S ANCIENT LAW.*

By E. H. GILLETT, D.D., Professor in University of the City of New York. TO MANY minds there is a strange fascination in those studies which carry us back to periods that antedate historic records, and bring us face to face with objects, events, or institutions which passed away before a written memorial of them was possible. The mute fossil comes forth from its rocky sepulchre, where it has been entombed for ages in silence and darkness, to make its startling revelation of forms of life and conditions of existence as marvelous to us as if they had belonged to some distant planet. The very words we use in our daily speech, become compact volumes of antique lore, when subjected to the tests which comparative philology has learned to apply, and unfold to our view modes of thought and social relations of which we find scarcely a trace in the oldest human records. It is thus that we are enabled to travel back in thought to the infancy of the race, to trace the rudimental forms of speech, to discern national affinities between the peoples of widely separated lands, and to establish important facts in their history with a certainty that belongs only to veracious and imperishable records. Nay, we may even pass beyond the date of human existence on this planet, and picture to our minds a state of things more wonderful than ancient fable ever feigned, when an infinite Providence by gigantic forces was preparing the world for the habitation of man.

But human institutions are often the records-sometimes fossilized-of ages of which written history has left no trace. They too have a marvelous tale to unfold. Traced back to their original by a sagacity and skill like those which have extended their meaning from the fossil stone, or the metamorphosed forms

*ANCIENT LAW. In connection with the Early History of Society, and its Relation to Modern Ideas. By HENRY SUMNER MAINE, Member of the Supreme Council of India, and Regius Professor of Civil Law in the University of Cambridge. With an introduction by THEO. W. DWIGHT, LL.D., Professor of Municipal Law, Columbia College. New York: CHARLES SCRIBNER & Co. One vol. crown 8vo.

of human speech, they reveal to us the usages and conditions of primitive society, and the successive stages of national development. What Sir Roderick Muchison and Lyell have done for Geology, and Max Müller and other comparative philologists have done for the Science of Language, has been essayed in the sphere of legal institutions, by one worthy to be ranked with them for enthusiasm and success in a favorite pursuit, Mr. Maine, in his "Ancient Law."

It is a curious fact that over the field which he has explored, and from which he has drawn the conclusions in regard to the origin of government which are embodied in his work, opposing parties have passed and repassed in controversial strife, each assuming that its own theory accorded with, and was based upon all ascertainable facts. He comes after them, and shows beyond the possibility of question that both were wrong, or at least that neither did more than merely approximate to truth. Meanwhile the respective theories have had their day, have impressed themselves on legislation and social philosophy, have moulded states, or determined the conditions of political development, while opposing parties, and sometimes opposing armies, have been marshalled under their banners.

With the new political life and energy developed in connection with the revival of learning and the great Reformation of the sixteenth century, the popular elements of the state began to assert their importance in a manner hitherto unprecedented. Among Protestant nations, Papal supremacy no longer held in check the royal power. Thus at the same moment two antagonistic forces were brought face to face. In England for generations no king had attained a power so despotic as that of Henry VIII., especially after the statute of Præmunire had fortified his throne against Papal aggression. Never before had the popular consciousness of power and right been so clear and strong; and to us, with an a posteriori experience, it seems too evident to admit of question that an ultimate collision of the two forces was inevitable. To some extent an analogious condition of things existed in other countries, Roman Catholic as well as Protestant; but before the sword could be unsheathed for

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