DEVELOPMENT DURING PAST CENTURY 471 



cms offenses. The amount of crime in proportion to the population 

 was enormously greater than now; there were no preventive meas- 

 ures, no police, not even street lights. The law of torts occupied 

 almost as small a place as it did in the proposed codes; the law of 

 contracts was so unformed that it was not certain whether Lord 

 Mansfield's doctrine that a written commercial agreement needed 

 no consideration would prevail or not. Business corporations were 

 hardly known; almost the whole field of equity was hidden by a 

 portentous cloud. Lord Eldon had just become chancellor. What 

 the law of England was, such with little difference was the law of our 

 own country. Its application to the complex life of the present was 

 not dreamed of; and it must be greatly changed before it could be 

 adapted to the needs of the present. Yet to say of it, as did Ben- 

 tham, that it was rotten to the core and incapable of amendment, 

 was grotesquely incorrect; to say as one of his latest disciples did 

 that it was the laughing-stock of the Continental nations is strangely 

 to misread history. In 1803, with all its imperfections and crudities, 

 it was probably the most just and humane system of law under 

 which human beings were then living. 



On the Continent, feudal rights characterized civil law; torture 

 was the basis of the administration of criminal law. And in no coun- 

 try of any size had the people yet obtained what had been given to 

 Englishmen by their greatest king more than six hundred years 

 before, a common law. Each province throughout southern and 

 western Europe had its custom, each land-owner his own jurisdic- 

 tion. The rigor of the criminal law had been somewhat modified in 

 France by the legislation of the Revolution, and just at the begin- 

 ning of our century the Civil Code, first of the French codes, was 

 adopted. These codes, temporarily or permanently impressed on 

 a large part of Europe outside of France, constituted the beginning 

 of modern legislative reform. 



III. General Direction of Change 



The spirit of the time molds and shapes its law, as it molds 

 and shapes its manner of thought and the whole current of its life. 

 For law is the effort of a people to express its idea of right; and 

 while right itself cannot change, man's conception of right changes 

 from age to age, as his knowledge grows. The spirit of the age, 

 therefore, affecting as it must man's conception of right, affects 

 the growth both of the common law and of the statute law. But 

 the progress toward ideal right is not along a straight line. The 

 storms of ignorance and passion blow strong against it; and the 

 ship of progress must beat against the wind. Each successive tack 

 brings us nearer the ideal; yet each seems a more or less abrupt 



