THE UNWRITTEN CONSTITUTION

OF THE UNITED STATES.

CHAPTER I.

ORIGIN AND DEVELOPMENT OF MUNICIPAL LAW IN

GENERAL.

BLACKSTONE'S definition of law has been generally accepted as in the main reliable, not only popularly, but also professionally. Indeed, the scientific element of the definition, viz. : that municipal law is "a rule of conduct prescribed by the supreme power of the state," has been so earnestly accentuated and elaborated by the master-minds who have truly dominated legal thought in England and in this country for the past half century-I refer, of course, ⚫ to Bentham and Austin,—that the professional, as well as the popular, mind has been led into the adoption, as an axiomatic truth, of a most serious error concerning the origin and development of municipal law.

Except in the matter of form, the statement that municipal law is "prescribed by the supreme power of the state" is false and misleading, unless by the "supreme power of the state" is meant the aggregation of all the social forces, both material and spiritual, which go to make up our civilization. But the meaning commonly attached to the words "the supreme power of the state" is that of the supreme power in the government, as distinguished from the people who compose the body politic. Austin and his followers admit that the law-making power is subject to moral and physical restraints, and that these restraints co-operate very largely in forming and modifying the substantive law; but since no rule can be called a law, which is not enforced by a sanction, prescribed by the law-making power, the moral influences at work upon society cannot be said to create law. And even where a rule of law is for the first time enunciated by an English or American court, Austin claims that it first became a law when the court announced its decision. I do not suppose Austin intended to assert that the decision of the court was purely arbitrary; that it only reflected the sentiments of the occupants of the judicial bench. I cannot believe that he was unconscious of the natural sequential development of the law, operated upon by all the social forces, out of which civilization is in general evolved. But the

reader of his work on jurisprudence will have no very clear conception of this scientific development if he has not obtained the idea elsewhere. The rigid logic of Austin is inclined to fasten upon the reader the more or less popular superstition concerning the omnipotence of the law-making power.

Undoubtedly there is no living law without a sanction or penalty, and there must be somewhere some one who has the power to inflict the penalty. The law is intended to force upon a rebellious minority the observance of those rules of conduct the infractions of which will inflict injury upon others. Physical force is of course needed. Hence the blindfolded Goddess of Justice not only holds up in her left hand the scales with which she can impartially mete out justice between parties litigant, but she also bears in her strong right hand the sword, which she must wield with effect, in order to enforce her decrees. If a decree of the court is to be enforced, the sheriff, who is the local representative of the executive department of the government, summons his posse comitatus, i.e., he calls upon the good and lawabiding citizens of the county to support him, and none can lawfully refuse to obey the call.

But granting that to make a rule of conduct a law a penalty must be attached and imposed for its infraction, it does not necessarily follow that that penalty must be enforced by an organized govern

ment, or that its enforcement by such a government essentially changes the character of the rule. When the English colonists first made their settlement in this country, we are told they brought with them the English common-law, and enforced it among themselves, so far as that law was compatible with the surrounding circumstances. If one of the colonists had made an attack upon the person or property of another, before there had been any organized government, armed with the power to enforce the law, would the Austin school of jurists claim that these colonists were without law, and hence this reprehensible deed was not illegal? Would they claim that there was no law on the borders of American civilization, where the only government is the vigilance committee, and where the only court of justice is presided over by Judge Lynch? If a man is murdered or a horse stolen in such a community, and the offender is captured by the vigilance committee, tried by Judge Lynch, and punished in accordance with the custom of the country, he has suffered the penalty of the law, as much as the criminal in an orderly, more civilized community, who is tried and condemned by a regularly organized court, and punished by the ordinary administrative officers of the government. The only difference between the two cases is the degree of development in the administration of the law. Lynch-law, in a