The Evolution of Law. 115 



sanctioned and enforced by an authority which is sovereign. 

 There are two stages in its development 1st, the growth 

 of custom, and, 2d, its sanction by the sovereign, whether 

 assembly, tribe or king. 



It is true that Maine and the German school do not 

 regard compulsion as a necessary element of the primitive 

 customary law. But their arguments seem to go no further 

 than to prove that ancient customs become habitual to such 

 a degree that they become constant factors of action. This 

 constancy is due to a conservative spirit and an apathy of 

 thought which belong to a time when status is the prevail- 

 ing condition of men. But unless personal will is somehow 

 limited there is no Law in the legal sense ; in this essay at 

 least law connotes compulsion. It is just when the individual 

 will begins to act in some way that conflicts with custom, 

 that law begins. As long as pure passive custom reigns 

 there is no law for instinctive action does not lie in the 

 province of will. 



Just outside of the land held in common by the most 

 primitive and rudimentary of States, the village com- 

 munity, in the wilderness, there is a spring of water. 

 A path leads to it, used for time out of mind by every 

 man in the community. It happens that some one builds 

 a hilt, or fences in a bit of ground, right across the path. 

 Then the germ of law latent in every society springs into 

 life and action. The chief, or the assembly of citizens, 

 declares that this is a trespass upon public and private 

 rights, and removes the obstruction : and, if the offender 

 resists, perhaps puts him out of the law, so that any man 

 may with impunity take his life. 



Again, it is the custom of the tribe that the control 

 of the persons and property of the family shall descend to 

 the eldest son when the father dies. This custom, neces- 

 sary for protection and preservation of the family, has 

 its sources far back beyond memory of man or reach of 

 investigation, in the needs and ideas of a primitive people ; 

 when it emerges into history it has been converted into 

 customary law. 



It is not necessary to go to ancient time for illustrations 

 of the law of Custom. Although it is the first phase of 

 legal growth, it remains always active and productive. 

 Modern laAv is full of it. A very large part of what is, in 

 strict terms. Common Law the Common Law of Black- 



