The Evolution of Law. 117 



was once significant of real relations, and decisive of right 

 and duty, is reduced to mere formula and gestures of no 

 import. 



So old law becomes technical to the last degree ; error 

 in the letter kills, so that the spirit can not make alive 

 again by amendment of course. Gains says, if you sued 

 by Legis actio sacramenti for injury to your vines, and 

 called them vines, you would fail ; you should call them 

 trees, because the text of the XII. Table made mention of 

 trees only. An old Teutonic law reads : If you sue for 

 a bull, you will miscarry if you describe him as a bull ; 

 you must give him the ancient judicial designation of the 

 leader of the herd. The fore-finger must be called the 

 arrow-finger ; and the goat the feeder on leeks. And even 

 as late as the time of Edward I., the rule held that " he 

 who fails in a word, fails in his cause." This technicality, 

 which has been called a disease of early law, is trans- 

 missible by descent, and runs far down into modern law. 

 In England it had a most extravagant outcome in the 

 system of special pleading so long in use. 



At last it comes to pass, in progressive communities, 

 that the iron rule of form and ceremonial can no longer be 

 endured, and the " cake of custom " breaks at last. Social 

 and political life have expanded and deepened, becoming 

 manifold and complex, so that the old laws are not ade- 

 quate to present needs. Xew rights and duties arise to 

 Avhich they are not suited. How shall these be fitted to 

 the new order of things ? The fact is, they are not fitted, 

 but new rights and duties are adjusted to the old ways, are 

 transferred from the domain of morality to that of legality, 

 and are somehow forced and squeezed into the ancient 

 formulas without thought of logic or convenience. 



When the mind regards form as the essence and reason 

 of law, it easily adapts old ceremonies to new material 

 without perception of inconsistencies. The ceremonial 

 law is hard to change, because it has come to be regarded 

 as the conservative element in society. Average morality 

 has run far in advance of positive law, but in order that 

 the law may be brought to harmonize with it, the popular 

 conscience must have a long period for action upon the 

 public will, and through this upon State administration. 

 Then begins the work of a new and unique agency for 

 harmonizing law Avith social needs and ideas. This first 



