HISTORY OF COMMON LAW 333 



To courts under a government less free than England these words 

 might not apply. Custom and authority may, at many points, stand 

 up against a Naturrecht and maintain their ground. But these 

 points everywhere become fewer, as civilization advances. The 

 "general conscience of civilized men," to quote from an American 

 scholar who has done much from the scientific side to put our juris- 

 prudence on a solid footing, "or, in other words, positive morality, 

 ought to be, and, in fact, ultimately and in the long run is, the 

 paramount predominating political force in the civilized world, 

 and ... it is this that makes civilization possible." 1 



The applications of these principles of moral justice and natural 

 right by legal rules must, however, vary from land to land and age to 

 age. One family, one tribe, one village community, one folk-mote, 

 one medieval city, will follow one line of action, and another another. 



Here, as a tribe grows into a people and some sort of judicial 

 establishment is set up, a certain mode of procedure is adopted, 

 leading to a certain doctrine of substantive law; and there the 

 choice of another mode for the same class of controversies may 

 end in establishing a different right. 



The causes of human action indicated by history, when fully 

 ascertained, are seldom those that would have been reasoned out 

 by philosophers to whom that history was unknown. 



Law is the voice of order: human law of order in organized society. 

 But who utters the voice? How often does it speak? How are its 

 words recorded? Do they order the doings of to-day or of to-mor- 

 row ? Are they, once uttered, beyond recall? And if to be recalled, 

 what power shall do it? 



The history of science calls for an answer to these questions, - 

 calls for it, and gives it. 



The people of a race, or of a land, are in the foundation of things its 

 only lawgiver. At first they speak by silence. The relations with 

 each other which they find it convenient to maintain, defined only 

 by the usage of daily life; slowly though surely changing with their 

 growth or their decay; these in their settled order each genera- 

 tion in each land, without caring to inquire whether they come 

 from a political sovereign, receives as its unchallenged birthright, 

 its royal inheritance: these make it and keep it a nation. 



I speak of substantive law. The people make the rules for their own 

 behavior. They are content that courts, when courts arise, should 

 regulate theirs. 



This law is for long ages but a matter of oral tradition. The priests 

 may declare it. The priests may come to have their sacred books in 

 which it may be or may be said to be enrolled. But they are not for 

 the people to look into. It is not until education passes from the 



1 George H. Smith, A Critical History of Modern English Jurisprudence, 75. 



