DEPARTMENT IV HISTORY OF LAW 



(Hall 5, September 20, 11.15 a. m.) 



CHAIRMAN: HONORABLE DAVID J. BREWER, Associate Justice of the Supreme 



Court of the United States. 

 SPEAKERS: HONORABLE EMLIN McCLAiN, Judge of the Supreme Court of Iowa, 



Iowa City. 

 PROFESSOR NATHAN ABBOTT, Leland Stanford Jr. University. 



HISTORY OF LAW 



BY EMLIN M'CLAIN 



[Emlin McClain, Associate Justice of Supreme Court of Iowa. b. Salem, Ohio, 

 November 26, 1851. State University of Iowa, B.Ph. 1871; B.A. ibid. 1872; 

 LL.B. ibid. 1873; A.M. ibid. 1882; LL.D. ibid. 1891; LL.D. Findley College, 

 Ohio. Professor in Law Department, State University of Iowa, 1881-1901; 

 Chancellor, 1890-1901; Member Code Commission of Iowa; Judge Supreme 

 Court of Iowa, 1901. Member American Bar Association, 1889, Iowa Bar As- 

 sociation, American Historical Society, International Law Association. Author 

 of treatises on Criminal Law and Constitutional Law, compiler of Selected Cases 

 on Carriers, and on Constitutional Law; also of Iowa Digest, and Annotated Code 

 of Iowa.] 



ANY attempt to outline a history of law with the view of presenting 

 a connected account of its development as a branch of human 

 knowledge must be preceded consciously or unconsciously Differ- 

 by an elimination of allied or analogous matter, and by |nd Elim- 

 a differentiation of law from other sciences. For the sub- ination. 

 ject has intimate relation with every phase of man's social activity 

 and intellectual development; with religion, ethics, and morality; 

 with institutions, government, and legislation; with race character- 

 istics and their evolution; and its records form an important part of 

 the material with which anthropology and ethnology are concerned. 

 Such elimination and differentiation are necessary not only in order 

 to determine the subject-matter and arrive at a definition of law, 

 but also in order to secure a starting-point from which its develop- 

 ment may be traced. Among many primitive peoples law is not 

 clearly distinguished from religion, and its administra- Religion 

 tion is found to be in the hands of the priests. Not only and Law. 

 are legal proceedings accompanied by religious ceremonies, but the 

 exercise of the judicial power is conceived to be within the scope 

 of the sacerdotal functions. In Rome, for instance, the interpret- 

 ation of the law was a function of the Sacerdotal College, first as a 

 fact, and later perhaps only as an empty fiction down to the end 



