ing all its well educated men almost necessarily instrumental in the administration of its laws, the practice of them the most dignified of all employments, and their study the completion and key-stone of all the rest, concentrated upon them as upon a common focus, the analogies of all other arts, sciences, and pursuitswas the best to promote the science of jurisprudence. (a) On the contrary the constitution of England has been the most favorable, as its history will show, to the study of political science, because it contains more elementary parts, more equally balanced, and moreover more shut out from such foreign interferences as would have had a tendency to interrupt the natural operation of its own ingredients than any other. The consequence is, that there is no country in which political principles are so familiar as in England, so much so that they are seldom discussed; while in France, where the jurists have been hitherto much more scientific, those of the most ordinary application are common subjects of parliamentary debate. On the other hand, England has produced very few scientific law books, and those of very recent date. The fact is, that while in Rome the law became a science from intellectual causes, it is becoming so in England from economical causes, from causes arising from the necessity of the subject itself. The Roman lawyers were led to it by the direction of their studies, the English in some measure driven by the demands of the subject. For it is only within a few centuries that those revolutions in the state of property, and in the productive organization of society, have been taking place, which create the necessity for a correspondent change in the laws by which this organization is kept in order; and to effect which it becomes necessary to refer to the constitution of the laws themselves, in order to effect it constitutionally, that is to say, scientifically, and in such a manner as to correspond with what is already established.

The emergencies last adverted to, are those which chiefly require an appeal to the constitution of the laws. For as in political matters, those difficulties which lead to the discussion and settlement of political principles, are only brought about by the advances of some of the component parts of the state,

(a) It is said that Sir Matthew Hale said it was impossible to have a scientific knowledge of law without studying the civil law. It might, perhaps, be said now that most lawyers rather use law as an art than practise it as a science. Cicero passes the same censure, however, on the lawyers of his time. De Leg. i. 5.

so in jurisprudence, if the productive machinery of society were to remain stationary, the laws which regulate it would continue to have the same fitness which first suggested their application. But when by the effect of prosperous causes, the operations of society become enlarged and diversified, new principles of motion become necessary to effect these operations. Causes of this nature have, within a few centuries, been in full operation throughout Christendom,(a) and the complicated commerce which they have either mediately or immediately produced, can only be provided for by a liberal application of those principles by which a customary law adapts itself to the new as it did to the original habits of a community.

The scientific study of jurisprudence then, in our view of the matter, is the consideration of its origin and purposes of its particular laws, philosophically and historically, so as to determine whether any particular case is within the scope of its authority, and if not, to be able to form a new rule by the same process and from the same elements from which, by the theory of the functions of society, all laws must necessarily have originated.

The ultimate principle and essence of all property and all rights, is consent, whatever may be the mode or the cause of its being given. The same force which draws society together continues to be the 'primum mobile' of its social motion. The reason why this consent is given, and the manner in which it was given, are of no importance, except to show its extent and meaning. In all questions in which the public are directly and jointly interested, this consent is conveyed through their magistrates, and constitutes the 'jus publicum,' which of course is paramount to the 'jus privatum.' But with respect to all cases relating to individual interests, their individual consent is their supreme law, which in a free government can never be controlled or limited, except where it interferes with their own corporate interest.(b) Of this individual consent, the magistrates only act as interpreters or to repair its deficiencies, and their laws, so called, are but rules of evidence as to what the individuals intended, or may be supposed to have intended,

(a) See the very just observations of Sir James Marriott upon this subject in his eloquent opinion in the case of the ship Columbus in Admiralty. 1 Coll. Jur. 88.

(b) Barrett v. Pritchard, 2 Pick. 512.

which, by an equitable fiction of law, amounts to the same thing. And these rules are probably formed in this natural manner. There are certain transactions relating to property natural and necessary to every condition and use of it, as, for instance, bargain and sale, or its predecessor, exchange, (which is said by the civilians to be the most ancient of contracts,) and others only necessary in particular states and uses of it. The former kind would naturally precede, rather than follow, be the cause, rather than the consequence, of those personal relations which constitute the political connexion of mankind into states. For though property originates the necessity, and cements the union of society, the form and operation of its political functions are entirely through personal relations. The contracts by which these first negotiations were regulated, would be but few in proportion to the simplicity of society, and of the vicissitudes of property; and the same causes would insure them from any of those derangements which arise from unforeseen events. The similarity of pursuits and characters, the equality of condition, and most of all, the instinct of imitation, aided moreover by the rules of evidence and expediency, which would naturally be adopted by the paternal arbitrators to whom all disputes in such a state of society may be supposed to have been referred, would in time produce certain methods and terms of effecting all these transactions. These would constitute the customs of that society, which, in the same manner that the appointment of these temporary magistrates becomes confirmed into a regular government, by a collateral and cotemporaneous process acquire a power apparently intrinsic, which, as it is similar in the manner and date of its origin, would be equal in prerogative to the magistrates themselves and would not be allowed to be altered by them. The power of the magistrates, indeed, as well as that of the laws, is, in its origin, customary; of course in the first stages of its growth it must have been held under its original conditions, and exercised in the same manner. The magistrates could not have originated, nor can they constitutionally alter the laws; since they are both parts of the same system, and draw their nourishment and strength from the same fountains. They are both the result of natural functions of society, and produced by the cotemporaneous operation of its elements, to work out all the essential parts of which it contains the germs.

How then have these customs passed into laws? We

believe as rules of evidence, under the sanction first of temporary arbitrators, and afterwards of public commissioners. For since under a free and natural system of laws, men have a right to make any agreement they please, however contrary to the usual custom, this agreement will be recognised as the law to them, if clearly expressed and proved, if not directly contrary to any other corporate consent and agreement of the parties themselves as members of society; and since the judgment even of a court, in any particular case, no otherwise affects a subsequent case than as the judicial evidence of the custom, (1 Hale, H. C. L. 142.) and since custom itself is, (as the word itself implies,) nothing but a succession of cases, of which no one has any natural power to affect the succeeding, how is it that a number of these cases possess, by their combination, a power, not one fraction of which is possessed by each individually? Why certainly by the force of evidence, which makes preceding contracts actual parts of a subsequent contract to supply defects in its formation. After men had been some time together in society, custom, while it was gradually developing the outlines of their political association, would, in the same gradual manner, have given definiteness and form to private transactions of business most common in that condition of a community. But as men in making their arrangements generally attend mostly to the mode of execution, on the supposition of the regular execution of their plan, and less to the difficulties which may encumber or prevent it, they would, particularly in rude ages, naturally stipulate only with respect to the first mentioned point, leaving much to be understood from usage, and thus making the usage a part of their contract or law. To amend the consequences of their negligence, an appeal to the arbitration of some skilful and respectable individual would become necessary, who, as has before been observed, would in process of time acquire a public authority. as a magistrate. In the performance of his office, therefore, he would act partly as the representative of both of the litigants, and partly as that of the public; in most cases purely in the former capacity. The adequacy of this origin of the authority of the magistrate is still recognised in the practice of arbitration, and in the jurisdiction which courts are allowed to acquire by the acknowledgment of the parties which they would not otherwise have had. Therefore, putting the public interest out of the question, this arbitration would only be supplemen

tary to the express agreement of the parties, to supply its deficiencies. It would, therefore, be coextensive only with what they left unsettled; and as it derives its force originally from their act of appeal, it would only have equal authority, and in fact be incorporated with it and make a part of the custom. But it would have equal authority; because as matter of evidence it would be equally supposed to have been known and adopted by persons in the same situation, and, if any thing, the more from its being that part which is devised by wise men, 6 δογμα ανθρωπων 4gv It is in this last stage of its formation, as perfected and Φρονιμων shaped by the judgment of these arbitrators, (which is only the best evidence and truest description of it,) that the custom assumes the shape of a law. (a)

The magistrate, in the first place, as the representative of the parties, considers what they actually stipulated, which, in contracts, is the paramount law, because unless there were deficiencies in their stipulation, they would not need the assistance of laws, except to enforce its execution; and hence therefore, independently of this stipulation the magistrate has no jurisdiction, and, however contrary to the usual custom, it is still the law of the parties. Thus the transference of the risk of a thing sold is so material an incident to a transference of the property of it, that it is sometimes said to be the 'criterion of property,' that is to say, it is strong circumstantial evidence, where the direct evidence is defective, of an intention to sell.(b) But a person may agree to sell a thing, and yet retain the risk of it, upon the same principle of freedom by which he may insure that which is already another's. For it will be inferred that he has some consideration for this insurance in some other part of the contract of which this is a part, and the law respects. the knowledge and judgment of every man in his own affairs in the respects in which he has expressed himself; and it is constitutionally bound to do so, since it is only called in, not to supply the want of these qualities, but the want of forethought.

In the second place, as representative of both parties, on those points which the stipulation has not provided for, the magistrate would naturally consider the consent of the parties

(a) The following cases are referred to, to show the manner in which custom obtains its character of law by force of evidence. Jeffreys v. Small, 1 Vern. 217; 1 Eq. Ab. 291; Hall v. Digby, 4 Bro. P. C. 224; and for a more particular description of the origin and nature of customs, the celebrated case of the Tanistry in Sir John Davies's Reports.

(b) 8 Cranch, 276; 1 Gall. 445.