116 The Evolution of Law. 



stone consists of decisions of the Courts which hold 

 that certain customs are binding, because they have been 

 common throughout the land, and have prevailed from a 

 time to the contrary of which the memory of man ninueth 

 not. 



For generations custom is the only source of law. It is a 

 characteristic of primitive communities, of simple structure 

 and with small store of civil experience, that a course of 

 conduct which has been the custom of ancestors is regarded 

 as binding for no other reason than that it has been liabit- 

 ual. Modern tests of validity, that it is reasonable, cer- 

 tain, etc., are not requisite. Even when tlie village 

 community has become subject to a sovereign, the law of 

 custom still prevails and is paramount ; for the sovereign 

 does not make new law ; he enforces the old. No king or 

 assembly ever enacted the law of ^;a^rtrt. protestas, which 

 through the long course of Roman history determined 

 religion, morals, manners, rights and duties by an iron rule, 

 relaxed at last but never completely loosened ; its influence 

 co-extensive with the Roman Empire, transmitted through 

 many a channel to this day, and still apparent in the law of 

 primogeniture and the few remaining disabilities of women. 



It is probable that among the first customs that were 

 converted into law were many that were derived from 

 religious ceremonial. Religion was the chief business of 

 the family, as war was of the community (tribe). Nothing 

 was done before the domestic hearth without offering to 

 the Lares ; no furroAV was turned and no seed planted with- 

 out invocation of the gods, attended with strictest rite and 

 ceremonial. The battle nuist wait for the generals to 

 consult the augurs for those were the days when augurs 

 met without laughing. So strict was this ritualism that 

 the drop])ing of a word or the omission of a gesture was 

 of fatal consequence. The formality and punctiliousness of 

 the religious rite remained when it received sanction from 

 the State, and became a legal obligation. De m'm'nms iioti 

 curat lex, the law is not concerned about trifles, is a 

 legal maxim of modern growth. It is a natural result of 

 primitive conditions of thought and culture, superstition, 

 narrow experience and shallow understanding, that form 

 should count for more than substance. The reason of a 

 custom soon passes out of sight and out of mind ; but though 

 the reason fails, the law remains : and the ceremonial which 



