514: POLITICAL INSTITUTIONS. 



custom* that some of our subjects make use of the written 

 law.&quot; Instance the fact that our own Common Law is mainly 

 an embodiment of the &quot; customs of the realm/ which have 

 gradually become established : its older part, nowhere existing 

 in the shape of enactment, is to be learnt only from text 

 books ; and even parts, such as mercantile law, elaborated in 

 modern times, are known only through reported judgments, 

 given in conformity with usages proved to have been pre 

 viously followed. Instance again the fact, no less signi 

 ficant, that at the present time custom perpetually re-appears 

 as a living supplementary factor ; for it is only after judges 

 decisions have established precedents which pleaders after 

 wards quote, and subsequent judges follow, that the applica 

 tion of an act of parliament becomes settled. So that while 

 in the course of civilization written law tends to replace 

 traditional usage, the replacement never becomes complete. 



And here we are again reminded that law, whether written 

 or unwritten, formulates the rule of the dead over the living. 

 In addition to that power which past generations exercise 

 over present generations by transmitting their natures, bodily 

 and mental ; and in addition to the power they exercise over 

 them by bequeathed private habits and modes of life ; there 

 is this power they exercise through these regulations for 

 public conduct handed down orally or in writing. Among 

 savages and in barbarous societies, the authority of laws thus 

 derived is unqualified ; and even in advanced stages of civili 

 zation, characterized by much modifying of old laws and 

 making of new ones, conduct is controlled in a far greater 

 degree by the body of inherited laws than by those laws 

 which the living make. 



I emphasize these obvious truths for the purpose of point 

 ing out that they imply a tacit ancestor-worship. I wish to 

 make it clear that when asking in any case What is the 

 Law? we are asking What was the dictate of our fore 

 fathers ? And my object in doing this is to prepare the way 

 for showing that unconscious conformity to the dictates of the 



