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This is the aristocratic or limited period of government. As intelligence becomes diffused, industrial institutions increase, and wealth is distributed, larger numbers participate in the affairs of government, and a definite expression of fundamental law is procured. This is the period of constitutional government. A further advance in social progress is accompanied with a further distribution of govermental functions, until we reach a republican form of government, which is a government by representatives of the people. All of these forms of governments may exist, and have existed at the same time, since different societies arrive at a given state of development at different periods. A pure democracy existed in Athens, a republic at Rome, absolute monarchies in Asia, limited monarchies in Africa, and patriarchal governments in some parts of Europe, Asia and Africa, synchronously.
There are three phases of the transformation of law : the legislative, the executive and the judicial phase. These phases of transformation are represented in the corresponding departments or functions of government, the legislature, the executive, and the courts. It is the legislative function to translate law into statutory form. It is the judicial function to interpret and apply law. It is the executive function to execute the law. The legislature converts law into general form, the courts convert law into special forms, the governor converts law into practical forms. Governments early begin the translation of law into general forms by the enactment of a code, containing a few of the general laws. This code is sometimes framed by a personage who combines in himself all the functions of law-maker or legislator, judge, and administrator. In such cases, there is no distinction to be made between politics and jurisprudence. In the progress of the development of governments, as we have seen, the jurisprudential and juridical functions are separated from the political and organic functions, and a body of men is devoted to declaring and applying the law. This rise of a judicial body, and the corresponding rise of tribunals of justice, in
which both the written and the unwritten law are administered, render possible systems of jurisprudence.
Anterior to the establishment of distinct tribunals of justice, the positive law is of the most uncertain and fragmentary character. But with the establishment of courts commences a series of decisions which is organized into a system of jurisprudence. After a body of rules has been formed the method of deciding causes in courts becomes complex, intricate and artificial, so that whereas the judge formerly decided causes in a simple, arbitrary manner, upon his own view of the rights of the parties before him, he now decides according to precedent or authority. In the early stages of a system of jurisprudence the judge is as much a legislator as he is an interpreter. For, although there may be a code for his guidance, yet that code is necessarily imperfect and general, and does not include new cases which are constantly arising, and constantly demanding special laws for their decision. But in the course of judicial progress the judge is transformed from the quasi-legislator to the strict interpreter; and his function is to apply the statute law and the precedents to the cases which come before him. Jurisprudence is then a science of precedents, technicalities, and fictions, settled principles and inferential analogies. It is wholly artificial in its character. Res adjudicata is the maxim of all the courts in the decision of like causes; and unless some entirely new case arises, some state of facts without analagous precedent, something altogether unlike any thing found in the “ books," the judge feels bound to decide according to the “authorities” or the decided cases. Now in the course of this artificial development of juridical law, it may be that the adjudged law falls behind the true law-it may be that it fails to represent and symbolize the real legal phenomena of society. This is not an impossibility even from an a priori view ; and observation shows that it is not unfrequently the case. We have a completely artificial system of symbols for a complex, varied, and multitudinous class of phenomena. If these symbols are not frequently compared with the originals, especially where the originals are liable to great change, if the symbols are not modified to correspond with the originals, then the symbols become defective and anachronous. If, after the lapse of years, it is found that society has advanced beyond the rules laid down by the earlier authorities, which rules the later courts are still applying to the later order of things, then there occurs a discrepancy between the adjudged law and the true law. And if the courts are powerless to assimilate the positive and the unwritten law then there is no remedy for society but by the interference of a distinct function, the legislative function, to correct and modify the results of the adjudications, and to conform the written to the unwritten law. The tendency of great judicial systems is to remain stationary, to avoid change, to stand by authority, to resist progress, and neither to note nor recognize the transitions in society. Jurisprudence as it exists to-day is essentially Conservative, and often behind the times. In its Conservative aspect it operates as a check upon excesses. Still if it gets too far behind social progress in the aggregate, as it is prone to do society is injured and Jurisprudence falls into disrepute or impotency. Lord Moncreiff, in the address from which I have already quoted, says : “ For those who administer the law it is immutable. That which has been is that which shall be, and should be. The perfection of the science-which never can be perfect until mankind is so, and then it might be dispensed with-is that its precepts should continue as they have been, and the judge is condemned if the ancient landmarks are removed. When new occasions arise the old occasions must be invoked to solve them, and the old maxims and the old formularies must be sought for at the fountain head. But while law in its own eyes is immutable, time, the devourer of all things, even of law, changes the objects for which law alone exists, silently abrading surfaces, effacing features, raising land here, submerging it there, until the end and purpose which the law was made to serve has disappeared altogether, or is so altered in its incidents and its surroundings as, perhaps, to invert the effect of its provisions. This is a process in constant and daily operation, and one which the administration of the law is powerless to prevent or provide for. It is hard to learn the law as it is without being obliged to look beyond its confines, and to note how far it squares with the times. So an aggrieved community wait until the current of legislation sets toward the future and, taking warning by the past, provides for increased equity and security."
The inability of systems of jurisprudence, as they are now constituted, to modify themselves to suit the real wants of the age and community, renders frequent applications to the legislative department necessary. Hence large numbers of statutes are annually enacted in constitutional and progres. sive governments; and in some countries the whole law is codified. Partial or complete codification is essential to the adaptation of jurisprudence to society. How far or how complete codification should be made depends upon the circumstances of the time and social and political considerations. It depends upon the condition of the system of jurisprudence considered as a whole, and considered in its relation to society. And just here comes into prominence the superiority of a science of law which comprehends jurisprudence, political economy and history. Jurisprudence is but a single department of legal science, the department of translation or interpretation. But the complete science of law, by investigating legal pheonmena, not only independently, but relatively, affords superior facilities for the translation of law into symbols, and for comparing the symbols of the adjudged law with the true law, the social conditions which they represent. A legislator, who is a true legal scientist, has superior qualifications for codifying the law, over the mere judge or lawyer. And it would seem that in most
cases codification would be preferable to adjudication. The history of law shows that codification dates back to the earliest times—back to the very verge of the pre-historic period; that all people as soon as they have had a literature, have had also a code, more or less extensive and corresponding more or less nearly with the social environment. A large part of the history of the race is found written in its Codesits “Ten Commandments," its “ Twelve Tables." The Athenians and Spartans had their Codes—the Codes of Solon, Draco, Lycurgus. The Romans had an extensive Code, that of Justinian, which is the foundation of all the Codes of Western Europe. The northern nations of Europe and the Asiatics have had codes partial or complete. There are also many codes in America. In England, codification has not been popular for several hundred years, although much of the English law is adapted from the Civil or Roman law. But statute after statute has been passed, decision after decision has been rendered—the statutes to supplement and modify the decisions, and the decisions to interpret the statutes and the unwritten law, until the positive law of England is a perfect labyrinth. In recommending codification it is not to be inferred that there are no difficulties in the way. To represent, in exact terms of language, the legal phenomena of society requires an amount of industry, com· parison and investigation which is incomprehensible to the
uninitiated. If a Code Commission were to attempt to frame an entirely new code for a highly civilized people without any of the materials which jurisprudence and statutory enactments afford, the task would be well-nigh impossible, and the result would be, at best, wholly inadequate. It would be like constructing a new language for a people. Codes, like languages, are the creations of a vast number and variety of forces operating through a long period of time. But the difficulty of framing a good code is lessened by pursuing the historical method, and by taking antecedent or existing codes, statutes, decisions and treatises, and comparing