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the objects of jurisprudence, but one solely of courts and jurisdiction; not what the right is or what the remedy should be, but solely from what tribunal redress can be given. It never could have arisen save from the jealousies of co-ordinate courts, and the distinction can only be arrived at by confining the terms within arbitrary rules which deprive them of their primary meaning. * * The enlightened legislation of the last year-to be completed, I hope, next year-terminates the reign of this anomaly, as far as theory goes; but there has sprung up around each of those divisions so strong a growth of distinctive principles and formularies in the course of centuries of able administration, that it will take many years before the rival camps will effectually unite. Probably they never will until their mutual technicalities are merged in a code.” Lord Moncreiff refers in the last part of the passage above quoted to the Judicature Act which united the courts of law and equity. The same thing has been done in many of the United States. The New York Code formally abolishes the distinction between law and equity.
From what has been said already in regard to the limitation of legal phenomena and the powers of tribunals, it will be seen that the province of law is exceedingly extensive. But something remains to be discussed in regard to the quality of the phenomena, or the character of the control of the State over society. In this connection I shall only consider how far the functions of government are positive and how far negative. If two persons make a contract which is valid, the State will see that it is enforced. If a person lives in a populous town, he may be prevented from building his house of wood or other combustible material, the safety of the surrounding property being secured by the erection of stone, brick, or iron buildings. If he carries on business, the law will prevent him from conducting a business which is a nuisance to the community. In fact, if one does anything the law may place some restraint upon his mode of doing it. The principal function of government is negative. It is negatively regulative. Herbert Spencer divides the functions of government into two classes : positively-regulative and negatively regulative, the latter being the principal. He considers that "all that is needful for the normal performance of the internal social functions is, that the restraining or inhibitory structures shall continue in action; these activities of individuals, corporate bodies and classes, must be carried on in such ways as not to transgress certain conditions necessitated by the simultaneous carrying on of other activities. So long as order is maintained, and the fulfil.. ment of contracts is everywhere enforced; so long as there is secured to each citizen, and each combination of citizens, the full return agreed upon for work done, or commodities produced; and so long as each may enjoy what he obtains by labour, without trenching on his neighbour's like ability to enjoy, these functions will go on healthfully more healthfully, indeed, than when regulated in any other way."* The State should not demand that the citizen should do this or do that; that he should build a house ; make a contract; marry a wife ; unite with the church; engage in business. But if a person concludes to marry, the State will prescribe the conditions. The State has always regarded marriages as within its peculiar province. By the Rules of Ulpian (title xiii.) it appears that “lege Julia prohibentur uxores ducere senatores quidem, liberique eorum, libertinas et quæ ipsæ quarumne pater materne artem ludicram fecerit; iidem et ceteri autem ingenui prohibentur uxorem ducere palam corpore quæstum facientem et lenam, et a lenone manumissam, et in adulterio deprehensam, et judicio publico damnatam, et quæ artem ludicram fecerit : adicit Mauricianum senatus consultum a senatu damnatam.” By the commentaries of Gaius it appears that “sciendum autem est non omnes nobis uxores ducere licere ; nam
quarundam nuptiis abstinere debemus.” “Sane inter fratrem et sororem prohibitæ sunt nuptiæ, sive eodem patre eademque matre nati fuerint sive alterutro eorum.” “Fratris filiam uxorem ducere licet : idque priorum in usum venit, cum divus Claudius Agrippinam, fratris sui filiam, uxorem duxisset."* And the Incas of Peru married their own sisters under the law. Restraint of the disposition of property by will has always been considered a proper function of the State. By the Rules of Ulpian (xxiv. 17) it appears that “pænæ causa legari non potest, poenæ autem causa legatur, quod coercendi heredis causa relinquitur, ut faciat quid aut non faciat, non ut ad legatarium pertineat ut puta hoc modo; si filiam tuam in matrimonium Titio conlocaveris, decem milia Seio dato.”
The State may very properly interfere in such important matters as marriage and disposition by will. It may, perhaps, construct public highways, canals, railroads : it may furnish public media of communication, such as the postoffice or the telegraph; but these affairs should not be actively engaged in by the State unless private enterprise will not bring about the desired results. And it is not at all certain but that private enterprise would effectuate these matters quite as soon as the community requires them. At least, wherever internal improvements, industrial institutions, education, science, art, will flourish without the positive interference and assistance of the State, the State ought not to intervene. The prime object of government is to protect the members of the community and not to assist them; to maintain order, and not to dictate what that order shall be.
It is this negatively regulative principle which keeps governments and courts from having more than they can do. When the functions of the State cease to be negativelyregulative and interfere largely and positively in, the affairs of the citizen, when law becomes in fact anything more than a condition of social evolution, then confusion and disorder ensue. So long as government keeps in its proper place, there is sufficient moral force in the community to enforce the laws in a vast majority of instances. Thus all social intercourse, when left to self-regulation, needs no tribunal but public opinion. The greater part of the affairs of life when only negatively regulated by law, are conducted in accordance with the true law; and recourse to the municipal tribunals, although not infrequent in the absolute, is comparatively rare. The ideal legal period would be when courts and governments were no longer needed.—when every citizen knew the right and did it.
* Gaius, Oom., Lib. I, 58, 61, 62.
Thus far in the discussion I have not brought out promi. nently the distinction between the written or positive law and the unwritten or unadjudged law. I shall now proceed to consider the transformation of the unwritten law, which I call the true law, into positive enactments and judicial decrees. Since the true law is a condition of the existence and development of society, the effort of the law-giver and the judge should be to make the positive and adjudged law the exact symbol and representative of the legal conditions of society. If the written and adjudged law do not interpret in true terms the legal phenomena of society, or do not correspond with the demands of society, either the law will not be obeyed and enforced, or society will be forced into a position antagonistic to itself, and will be developed in a direction contrary to its tendencies. In surveying the field of history one is impressed with the feeling that much of the written and adjudged law of mankind has undoubtedly been of the latter character; so that the world has witnessed, on the one hand, constant scenes of violation of law, and on the other hand, constant efforts of the law-giver and the judge to retard, modify, or accelerate the true progress of the subject. In all times, the painful spectacle has been pre
sented of the legislator and the judge imposing their own laws upon society. In the effort to conform social progress to their standard, they have sometimes precipitated the horrors of revolution and anarchy. It is not contended that all citizens would be law-abiding if the positive law was the complete representative of the unwritten law, or if the true law was applied to their lives and affairs. Nor is it contended that life would become uninterruptedly peaceful and prosperous if legislators and judges were always wise and honest. Such a condition of things could only exist at a more advanced stage of civilization than any people has yet reached. It would be only possible in that ideal period, when the true law of social development would be intuitively perceived by all and obeyed by all. That might be denominated the self-administrative period. But I doubt not that some infractions of law, some irregularities and anomalies, are just as essential in the progress of society as the regularities and uniformities. The existence of a large number of individuals in society, who are either too ignorant or too stupid to perceive their true relations to their fellows, or who are too selfish and impulsive to conform to those relations when known, leads to the necessity for the transformation of the unwritten law into statutes and adjudications, and to the prescription of penalties for violations. In the progress of society and, indeed, simultaneously with the appearance of the simplest social structure, there arises a governmental organ, a vehicle for the expression and enforcement of law. In the ruder forms of society, the governmental function resides in the head of the family, of the tribe, of the community, or of whatever organization is unified from local elements. This is the patriarchal period. In a more advanced period of social development, the governmental function resides in a single head, with accessories under the control of the head. This is the period of monarchical government. Sometimes the governmental functions reside in a number of persons or departments.