and Austin. I have long thought this to be a serious error. It might, indeed, be admitted to be true in respect to statutory law; but this constitutes an extremely small part of the body of our jurisprudence. The bulk of our law is composed of those unwritten precepts and rules which are recognized and enforced as law by the judicial tribunals, irrespective of any legislative sanction. The writers I have named assume that the legislature really adopts and enjoins obedience to the precepts and rules declared by the courts" (7).

"Savigny's leading position is that the largest portion of the law of every Nation is the exact product and measure of the whole National character and temper (8), that each element of that Law has a real, though secret and undecipherable, relation to the whole, as well as to all the central characteristic Institutions of the Nation; that the study of a mature System of Law is something far more than a mere committing to memory of a number of Legal Rules, and implies a profound familiarity with a few leading principles on the one hand, and with the mode of their application to an indefinite variety of details, on the other" (9). Markby on the other hand goes to an untenable extreme, when he affirms that the ideas of law cannot arise until after a number of special decisions (10).

7 Hints to Young Lawyers-Address, Columbia U. 1894.

8 This is in truth the national will or public opinion. This expression must be taken in a broad way, for it is among the provinces of a constitution to control the popular will.

9 Amos' "An English Code," p. 58. 10 Element of Law 4th ed. sec. 95.

§ 13. Society is a natural condition. The state or society is the necessary and normal, i. e. natural, whole of which men are parts. It is therefore an original rational organism like reason itself, an original fact, an essential condition of human existence. The science of right cannot begin with the supposition of a condition of human life, before the state existed (11).

Jural Right is the Product of the Combined Will of the People (12). That is individual right and aggregate right come into potential existence by virtue of the will or as we say by consent (13). Right then in the general sense is the capacity of the person to do or refrain from doing acts, to have use and dispose of things according to the law of the land (14).

Puchta says, "Freedom is the Foundation of Right and real relations of Right emanate from it. . . . In thus founding Right upon the possibility of an act of the will, the essential principle of right is indicated as that of equality (15). Jural or legal right is in and of society. "All legal right and wrong has its origin after society was put in motion. To talk of law and right as applied

11 Puchta-Kasties, Outlines of Juris., p. 140; Penhallow v. Doane 8 Dall. 547, 93; 1 Wilson's Works, 270.

12 Puchta-Hasties Outlines, p. 152.

181 Wilson's Works, 170.

14 Holland Juris., 71. Hasties Outlines Jur., p. 12. This idea of a Right is clearly the legal view in England and America. Calder v. Bull

3 Dall. 386-394 quoted by Webster Arguendo, Dartmouth College Case, 4 Wheat. 576. The reasoning of continental Jurists is peculiarly analogous to the American idea. e. g. see Hasties Outlines Jud., pp. 127, 140, 152.

15 Hasties Outlines, p. 12.

to mankind at a supposed period anterior to society is a contradiction of terms" (16).

§ 14. The bases of government, conflicting views. There have been two schools of thought existent from the earliest times and while one of these lay dormant for centuries, it has at last gained the supremacy in the most civilized portions of the World. Both assume to trace their origin to the same ultimate source, Natural Law. The one bases the right to rule on divine selection and is commonly called the theory of the divine right. Persons of the other school affirm this tenure to rest on fraud and force. This other school of thought assumes the natural equality of men and bases the existence of all social institutions on some form of agreement. A differing conception as to the nature of this agreement divides the members of this latter school of thought into two classes, whose views pass respectively under the names, Divine Right, original compact and consent.

Divine right of sovereigns. The idea of divine right finds support in the scriptures and in the tradition of poets and the reasoning of Philosophers. The advocate of absolute power can point back to the very dawn of Grecian life, and from their hero poet quote the words of Nestor, rebuking the plebeian who raised his voice in opposition to the King: "Be still, thou slave, and to thy betters yield; be silent, wretch, and think not here allowed that worst of tyrants, an usurping crowd. To one sole

16 Holland, p. 26-37, quoted Keener's Sel. on Jur. p. 13.-1 Wilson 270. Marshall's view, Arguendo, Ware v. Hylton 3 Dall 211. Sir James McIntosh quoted. Dodge v. Woolsey, 18 Howe 331-75.

monarch Jove commits the sway. His are the laws, and him let all obey." Or, as put by another translator: "Ill for the common weal is the sway of many; let one man rule and be king alone; from Zeus he holds his office" (17). It is in Greece that we find the first struggle between these contending principles (18) and at a later period the same result is reached by a different process of reasoning by which natural law is substituted for the direct interposition of God.

Slavery affirmed to accord with natural law. Aristotle, the Greek tutor of Philip's son, Alexander the Great, said: "If the shuttle could weave by itself alone, one would not know what to do with slaves. The slave is the man of another. Do there exist men as inferior to

17 Iliad, Book 1: "In a tragedy of Eschylus, the suppliants use this language to the King: 'Sir, you are the city and the public; you are an independent judge. Seated upon your throne as upon an altar, you alone govern all by your absolute commands.'" 1 Wilson's Works, p. 70. 18 "The political era of the Iliad is plainly fixed. It is the era of democracy lifting its head against nobility and hereditary rule. Thersites is the democratic agitator, hated by the bard who sings in royal or aristocratic halls, and who paints him a monster of ugliness most hateful to a race which adored beauty, as well as a paragon of moral vileness; exults in the chastisement inflicted on him, and makes the people sympathize with the chieftain who inflicts it, as he undoubtedly wishes the crowd in the agora would do. The passage is in spirit cognate to one in Theognis. It is not likely that the course of political events should have twice traveled the same round. The chiefs preside in the public assembly and lead, perhaps dictate, its councils; but there is a public assembly the need of popular assent is felt. Public opinion is repeatedly personified as in the Iliad II, 271: Telemachus in the assembly of Ithaca summoned by him makes a direct appeal to the people. All this bespeaks the transition from monarchy and aristocracy to democracy, such as the Greek colonies in Asia Minor evidently underwent, and probably from their maritime and adventurous character, their novelty, and the volatile spirit which in Herodotus they exhibit, more rapidly than it was undergone by the communities of old Greece." The age of Homer, Goldwin Smith, Am. Hist. Rev. Oct. 1901, p. 5.

other men as the brutes are? If they exist they are destined to be slaves. There are men who have hardly enough reason to understand the reason of others, and the corporeal labor is all they can produce; they are slaves by nature" (19). The right of the powerful to rule needed no further argument.

Consent and representation. The development of philosophy by other hands caused the Greeks to seek for a reason for all things, and to apply to all things the test of logical examination. This spirit of reasoning pervaded all subjects, and naturally spread to the problem of government and law as well as other subjects; questioned old notions; shook from its foundations the notion of ancestral right to rule (20); planted the germs of political thought, which bore the first fruit of popular government, taking actual form in a constitution and a government based upon the consent of the people, and whose sheetanchor was the intelligence and morality of the people (21), for in the assemblage of the citizens (of Athens) vested the real political supremacy (22).

The principle of civic liberty-equality before the law --had been asserted. To the whole people had been confided the safety of the state and the supreme exercise of its laws (23). "The Athenian state was a community of citizens among which no single family or class could

19 D'Lioys Philosophy of Right, vol. 2, p. 83-4.

20 Curtius' Hist. Greece, vol. 1, pp. 355, 356, 424, 425; vol. 2, p. 473; Gibbon's Decline and Fall, etc., 44.

21 Demosthenes' Third Phillipic; Curtius' Hist., vol. 1, p. 424. See Washington's first Message to Senate.

22 Curtius' Hist. Greece, vol. 1, pp. 355, 356.