106 



SCIENCE. 



[Vol. II., No. 25. 



by this agency is perhaps more rapid than by 

 legislation. The legal principles enunciated 

 in the decisions of a system of courts such as 

 we have under the general government and in 

 the several states are rapidly developing to 

 meet the demands of the vigorous growth of 

 civilization. Some mouths ago the public 

 prints announced a decision of the supreme 

 court of California which well illustrates this 

 statement. In more than two-fifths of the area 

 of the United States all agriculture is dependent 

 upon artificial irrigation. In 1866 the Con- 

 gress of the United States, in order to promote 

 mining industries in this region, and inci- 

 dentally to promote agriculture, enacted a 

 statute giving to individuals and corporations 

 the right to take the water of the running 

 streams of that country from the natural 

 channels in which they run, and use the same 

 for mining and agricultural purposes. Now, 

 the nature of this use is such that the water 

 itself cannot be returned to the natural chan- 

 nels to be used again ; and bj- this law the an- 

 tecedent common law relating to riparian rights 

 was repealed. As the agricultural interests 

 of the countrj^ were developed, it was soon 

 discovered that all agricultural operations were 

 under the control of water companies ; for 

 these companies claimed ownership to the 

 water, and the right to use it themselves or to 

 sell it to whom they pleased. But the decision 

 mentioned above was to the effect that these 

 companies possess only the water-ways, the 

 canals and hj'draulic appliances connected 

 therewith ; that thej' are common carriers of 

 water, and are themselves subject to the law 

 relating to common carriers. Hy reflection it 

 will be perceived that this decision will affect 

 vast interests, and deepl}' influence the daily 

 life of thousands, and eventuall3' of millions, of 

 people. This serves to illustrate the nature 

 of the court-made law, which is so rapidlj' 

 growing, and affecting in a multitude of wa^-s 

 the relations of men, and restricting the rights 

 of the few for the benefit of the many, which 

 is in the very nature of law. In the above 

 statement it will be observed that the initial 

 change in the law was the statute of 1866. 

 So the national and state legislatures ai'e con- 

 stantly engaged in making new laws for the 

 government of the people ; and this, in the 

 main, ever in obedience to popular demand. 



Such is the practice. The legislature stimu- 

 lates the court, and legal decisions incite new 

 legislation ; and thus it is that the public men 

 of this country and of other civilized nations 

 devote their energies to the development of 

 government by devising new laws for the reg- 



ulation of conduct, and creating new oflSces 

 for the administration of law. 



Again : in everj* communit}' there is a bodj' 

 of good and earnest people demanding reform, 

 or devising methods for the improvement of 

 mankind in diverse ways, — for the relief of 

 the unfortunate, for the education of the 

 masses, to diminish suffering, crime, and 

 Ignorance ; and the energies of these people, 

 exerted ever}' where, in season and out of 

 season, create a sentiment that law-making 

 bodies cannot ignore. 



Yet, in opposi)tion to all this, the publicists 

 ask for less government, and say, ' Let soci- 

 ety alone.' This theoretic opposition to the 

 course of progress, manifest in the develop- 

 ment of institutions, arises from the stand- 

 point, or phase of the philosophy of evolution, 

 at which our thinkers have arrived. The laws 

 of biologic evolution are applied to sociologj'. 

 The philosophy of science, which is but in- 

 choate, is adjudged to be complete, and prin- 

 ciples that require restriction are held to be 

 universal. 



In biologic evolution the cause of progress 

 is recognized as the survival of the fittest in 

 the struggle for existence ; and this has been 

 widely accepted as the cause of sociologic 

 progress, and Herbert Spencer is the prophet 

 of this philosophj'. As set forth bj' him and 

 his large following, progress is secured bj- an 

 inexorable law of nature, which brooks no 

 interference ; and the efforts of mankind to 

 improve the condition of mankind do but 

 retard the natural process : and the proper 

 sphere of government is the direct suppression 

 and punishment of crime, and that onl}'. It 

 is from this postulate that the theorists are 

 antagonizing the practice of all the legislatures 

 and courts of civilization. Though Mr. Ward 

 does not state the problem as above, yet his 

 book is written to controvert the Spencerian 

 and generallj' accepted theorj-, to present a 

 new philosoph}' of society- which shall be suf- 

 ficient warrant for the course pursued bj' 

 practical statesmen and jurists, and to support 

 the earnest people of the world in their efforts 

 to benefit the race. His postulate, though 

 stated in other terms, is essentially this : that 

 social progress is due to the struggle for hap- 

 piness, and the adoptioh of that conduct which 

 secures happiness ; and that the process, in- 

 stead of being natural and genetic, is artificial 

 and teleologic ; that men devise methods for 

 securing happiness, and gradually attain their 

 ends. 



Mr. Spencer looks upon society as an 

 organism, and iu this he is followed b}- Mr. 



