perfect pari passu with the advance and improvement of society.1

Mr. Carter was a profound student of the English common law, and a strong believer in the value of customary or common law, as opposed to statute law, considering that those customary rules of conduct which are the result of the moral consciousness and progressive thought of a people, afford a better working basis for the government of a civilized state, than do rules of conduct prescribed by legislative authority. It is the function of the judges, he says,

to watchfully observe the developing moral thought, and catch the indications of improvement in customary conduct, and enlarge and refine correspondingly the legal rules. In this way, step by step, the great fabrics of common law and equity law have been built up without the aid of legislation, and the process is still going on."

Yet he recognizes the necessity for the employment of legislative action, or what he calls "the conscious agency of society," in the improvement of the law in its application to the constantly developing and increasingly complex forms of modern existence; insisting, however, that the sole function both of law and of legislation is "to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of 'Pp. 344-5. P. 329.

the like liberty to all others," and adding, that every abridgment of liberty demands an excuse, and that its only good excuse is the necessity of preserving it.1

It is the acknowledged duty of all good citizens to obey the law, be that law written or unwritten. The unwritten law, representing, as it does, a generally prevailing public conception of right action, must necessarily command the readiest obedience; statutory laws too frequently embody the ill-considered views of a moment, the expression of a temporary emotion, or the successful determination of a portion of the community to impose their will upon the remainder. The sound growth and development of the written law must follow and make more specific and more readily enforcible the principles of unwritten law, or it becomes an instrument of dissatisfaction and even of oppression. Yet no progress in the improvement of laws is realized through either evasion of or organized opposition to the laws of a self-governing people. As Washington said in his farewell address:

The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.

All obstructions to the execution of the laws, all combinations and associations under whatever plausible character, with the real design to direct, control,

IP. 337.

counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency.

However combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.1

The history of every civilized state presents many points of resemblance with that of every other. Primitive communities are bound together more or less loosely, dependent upon the need of union for common defense against some external enemy. As civilization progresses, a necessity arises for rules to govern the action of the individuals in the community toward each other, more than to protect the group against the aggressions of other groups; and as communities become more populous, and civilization more complex, rules of conduct must needs be increasingly minute and specific; but the fundamental principle guiding all successful civilization must be to preserve, in as large a measure as is consistent with the welfare of the whole, freedom of action in the individual. In monarchical countries this freedom is menaced more from the head of the state than from other individuals in it. Under democratic governments, 1 Messages and Papers, vol. i., p. 218.

the individual requires more protection against other individuals or groups of individuals; yet the abuse of monarchical power has often resulted in the same injury to the welfare of individuals as is occasioned by abuse of the power which, under democratic institutions, individuals or groups of individuals may acquire over other individuals or groups.

Queen Elizabeth of England, between the sixteenth and forty-third years of her reign, partly for the purpose of raising revenue, and partly to reward her favorites, granted a very large number of patents, conferring upon their holders the exclusive privilege or monopoly for designated periods of time, to manufacture, sell, or deal in specified articles of commerce. The injury to the community caused by these special privileges became so great as finally to produce a most remarkable and spontaneous outbreak both in and out of Parliament, which led to a complete and absolute disavowal by the Queen of any intention to afflict her subjects, the cancellation of the greater part of these patents, and the submission to the judgment of the courts of law of the validity of the remainder. The odious character of these monopolies in the view of the English people of that day, is vividly depicted in the debates of the time. The list of the objects of the monopolies is truly appalling. They embraced the exclusive right to deal in such articles as iron, powder, cards, leather, cloth, ashes, vinegar, sea coals, steel, brushes, saltpeter, and many

others. One Dr. Bennet, during a discussion in Parliament, is recorded as saying:

In respect of a grievance out of the City for which I come, I think my self bound to speak that now which I had not intended to speak before; I mean a Monopoly of Salt. It is an old Proverb Sal sapit omnia; Fire and Water are not more necessary. But for other Monopolies of cards, (at which word Sir Walter Raleigh blusht), Dice, Starch and the like, they are (because Monopolies) I must confess very hurtful, though not all alike hurtful. I know there is a great difference in them; And I think if the abuses in this Monopoly of Salt were particularized, this would walk in the fore rank.

He was followed by another member who severely criticized the monopoly in tin. This brought Sir Walter Raleigh to his feet. He could have contented himself with blushes concerning cards, but the attack on the Tin Monopoly compelled him to speak. The arguments he resorted to in its defense have become familiar to later generations.

When the Tinn is taken out of the Mine, and melted and refined [he said], then is every piece containing one hundred weight sealed with the Duke's Seal. Now I will tell you, that before the granting of my Patent, whether Tinn were but of seventeen shillings and so upward to fifty shillings a hundred, yet the Poor Workmen never had above two shillings the week, finding themselves: But since my Patent,