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good faith, whether we look to commercial honesty or to relations of personal confidence. With few exceptions, the law has in such matters been constantly ahead not only of the practice, but of the ordinary professions of business men. We have similar results on a more striking scale when a law which is not indigenous brings in with it the moral standards on which it is founded. Thus a good deal of European morality has been made current in India by the Anglo-Indian codes; and European morality itself has been largely moulded not only by the teaching of the Christian Church, but by the formal embodiment of that teaching in both ecclesiastical and secular laws. The treatment of homicide by early English criminal law was founded on the extremely strict view taken by the Church of the guilt of blood-shedding; and the extinction of duelling in this country seems to be due, in no small part, to the steady refusal of English law to regard killing in a duel, even without any circumstances of treachery or unfairness, as anything else than murder. We are not speaking here of the mere fact that persons abstain from unlawful conduct through dread of the legal consequences, a fact which, taken by itself, has no moral significance at all.

Again, rules of law differ from rules of morality in excess as well as in defect. It is needful for the peace and order of society to have definite rules for a great many common occasions of life, although no guidance can be found in ethical reasoning for adopting one rule rather than another. There is no law of nature that prescribes driving on either the right or the left side of the road, as is plainly shown by the fact that our English custom to take the left side is the reverse of that which is observed in most other countries. But in a land of frequented roads there must be some fixed rule in order that people who meet on the road may know what to expect of one another. And, the rule being once fixed either way for the sake of general convenience, we are bound in moral as well as in legal duty to observe the rule as we find it. On much the same footing are the rules which require particular forms to be observed in particular transactions, for the purpose of making the proof of them authentic and easily found, or in the interest of the public revenue, or for other reasons. There are not many such cases in which the form actually imposed by the law can be said to be in itself the only appropriate one, or obviously much better than others that might be thought of. But, since it has been thought fit to require some form, it is necessary

that some one form should be authorized. Here too the choice between courses which in themselves were morally indifferent is determined by the law, and thenceforth it is the moral as well as the legal duty of every one concerned, if he will act as a good citizen and a prudent man, to do things in the appointed manner and form.

But there is more than this. As in many cases acts and conduct that are morally blameworthy must go quit of anything the law can do, so in many cases, on the other hand, persons are exposed, for reasons of public expediency, to legal responsibilities which may or may not be associated with moral fault, and which cannot be avoided even by the fullest proof that in the particular case the person who is answerable before the law was morally blameless. A man may, of course, make himself answerable by his own promise for many things independent of his moral deserts, or even wholly beyond his control: but we are here speaking of liability not accepted by the party's own act and consent, but imposed by a rule of law which does not depend on any one's consent for its operation. Thus a man is liable in most civilized countries for the wrongful acts and defaults of his servants in the course of their employment, whatever pains he may have taken in choosing competent servants and giving them proper instructions. Obviously this is a hard rule for the employer in many cases; but its existence in every system of law shows that in the main it is felt to be just. Again, both Roman and English law have made owners of buildings1 responsible, in various degrees, for their safe condition as regards passers by in the highway, or persons entering them in the course of lawful business: and this without regard to the amount of the owner's personal diligence in the matter. Again, questions often arise between two innocent persons, of whom one or other must bear the loss occasioned by the wrongful act of some one from whom redress cannot be obtained; as when a man who has obtained goods by fraud from their owner sells them to an unsuspecting third person, and then absconds, leaving nothing behind him. Here the original owner and the buyer may be equally free from fault, but they cannot both have the goods, and their price cannot be recovered. Hardship to one or the other is inevitable.

1 This is by no means the full measure of the rule in our law. For simplicity's sake, only part of it is now stated.

In all these cases the loss or damage, as between the two innocent parties who are left face to face, may be considered as accidental. The rule of law has to determine as best it can on which side the loss should fall; and since by the hypothesis neither party has incurred moral blame, and this is the very cause of the difficulty, it is plain that the rules of ordinary social morality will afford no guidance. We have to resort either to considerations of general public expediency, or, if no obvious balance of convenience appears either way, to the purely technical application of rules already settled in less obscure matters. And this last method is not a mere evasion of the problem, but is a reasonable solution so far as no stronger reason can be assigned to the contrary. For the principle of certainty requires that a rule once settled shall be carried out to its consequences when no distinct cause is shown for making an exception or revising the rule itself. If any sense of hardship to the individual citizen remains after these considerations have been weighed, and it has also been observed that citizens have an equal chance of benefit as well as burden under special rules of this kind, it may be said that exposure to this kind of liability is part, and not a large part, of the price which the individual has to pay the State for the general protection afforded by its power, and the general benefit of its institutions.

Thus neither the work nor the field of legal science can be said to coincide with those of any other science; and the development of this, as of all other distinct branches of science, can be carried on only by the continuous effort of persons who make it the chief object of their attention in successive generations. This has been recognized in the institutions, both practical and academical, of all civilized nations. A civilized system of law cannot be maintained without a learned profession of the law. The formation and continuance of such a learned class can be and has been provided for, at different times and in different lands, in various ways, which it does not now concern us to mention in detail. It is not necessary for this purpose that the actual administration of justice should be wholly, or with insignificant exceptions, in the hands of persons learned in the law, though such is the prevailing tendency of modern judicial systems. It is enough that the learned profession exists, and that knowledge of the law has to be sought, directly or indirectly, in the deliberate and matured opinion of its most capable members. And the activity of modern legislation makes little or no difference to this; for we are not now speaking of the gen

eral policy of the lawgiver, which in a free country is and must be determined not by any one class, but by the people through their representatives. The office of the lawyer is first to inform the legislature how the law stands, and then, if change is desired, (as to which he is entitled to his opinion and voice like any other citizen,) to advise how the change may best be effected. Every modern legislature is constantly and largely dependent on expert aid of this kind. A well framed Act of Parliament, whatever amount of novelty it may contain, is as much an application of legal science as the considered judgment of a court. Legislation undertaken without legal knowledge is notoriously ineffectual, or, if not ineffectual, apt to create new troubles greater than any which it cures. There is no way by which modern law can escape from the scientific and artificial character imposed on it by the demand of modern societies for full, equal, and exact justice.

Frederick Pollock.


"EVERYTHING gravitates to Washington: the highest in

terests and the most absorbing ambitions look to the National capital for gratification; and it is no longer the State, but the Nation, that in men's minds and imaginations is an ever present sovereignty. . . . We may preserve the Constitution in its every phrase and every letter with only such modification as was found essential for the uprooting of slavery; but the Union as it was has given way to a new Union, with some new and grand features, but also with some engrafted evils which only time and the patient and persevering labors of statesmen and patriots will suffice to eradicate." 1

"There has grown up a pride in the National Flag and in the National Government as representing National Unity. . . . As the modes in and by which these and other similar causes can work are evidently not exhausted, it is clear that the development of the Constitution as between the Nation and the States, has not yet stopped, and present appearances suggest that the centralizing tendency will continue to prevail."2

The above cited statements were written and published nearly ten years ago, but the centralizing tendencies therein noted have not ceased, and it would be easy to-day to glean from recent publications, including the daily newspaper, citations of a similar purport sufficient of themselves to make a magazine article.

The purpose, however, of the present inquiry is not so much to note the changes in public sentiment which have been going on, as it is to consider from a legal standpoint what changes have of recent years, as a matter of fact, taken place in the framework of the National Government.

It is a matter of history, and is well understood, that after the close of the late Civil War there was a reconstruction (more or less under National supervision) of the State Governments in those States which had sought to terminate the Union.

This fact is so widely known, and was so prominent a feature

1 Cooley, History of Michigan, p. 371 (1885).

2 Bryce, The American Commonwealth, Vol. I. p. 394.

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