cial and rational test of the judgment of a man trained to decide.

It is still only the minority who recognize how the change of emphasis which I have called the law of fashion has prevailed even in the realm of morals. The other day I was looking over Bradford's history the book which Mr. Bayard brought as a gift from Lambeth to the Massachusetts State House

and I was struck to see recounted the execution of a man with horrible solemnities for an offence which still, to be sure, stands on the statute book as a serious crime, but which no longer is often heard of in court, which many would regard as best punished simply by the disgust of normal men, and which a few think of only as a physiological aberration, of interest mainly to the pathologist. I found in the same volume the ministers consulted as the final expounders of the law, and learnedly demonstrating that what now we should consider as needing no other repression than a doctor's advice, was a crime punishable with death and to be ferreted out by searching the conscience of the accused, although after discussion it was thought that torture should be reserved for state occasions.

To take a less odious as well as less violent contrast, when we read in the old books that it is the duty of one exercising a common calling to do his work upon demand and to do it with reasonable skill, we see that the gentleman is in the saddle and means to have the common people kept up to the mark for his convenience. We recognize the imperative tone

which in our day has changed sides, and is oftener to be heard from the hotel clerk than from the guest.

I spoke of the scientific study of the morphology and transformation of human ideas in the law, and perhaps the notion did not strike all of you as familiar. I am not aware that the study ever has been systematically pursued, but I have given some examples as I have come upon them in my work, and perhaps I may mention some now by way of illustration, which, so far as I know, have not been followed out by other writers. In the Lex Salica- the law of the Salian Franks - you find going back to the fifth century a very mysterious person, later 3 named the salmannus the sale-man - a third person who was called in to aid in completing the transfer of property in certain cases. The donor handed to him a symbolic staff which he in due season handed over in solemn form to the donee. If we may trust M. Dareste, and take our information at second hand, a copious source of error, it would look as if a similar use of a third person was known to the Egyptians and other early peoples. But what is certain is that we see the same form used down to modern times in England for the transfer of copyhold. I dare say that many of you were puzzled, as I was when I was a law student, at the strange handing over of a staff to the lord or steward of the manor as a first step toward conveying copyhold land to somebody else. It really is nothing but a survival of the old form 2 Merkel, ch. 46.

A.D. 1108, Beseler, 263, n.

of the Salic law, as M. Vinogradoff at last has noticed, in his work on Villainage in England. There you have the Salic device in its original shape. But it is the transformations which it has undergone to which I wish to call your attention. The surrender to the steward is expressed to be to the use of the purchaser or donee. Now, although Mr. Kenelm Digby in his History of the Law of Real Property warns us that this has nothing to do with the doctrine of uses, I venture to think that, helped by the work of learned Germans as to the development of the saleman on the continent, I have shown heretofore that the saleman became in England the better known feoffee to uses, and thus that the connection between him and the steward of the manor when he receives the surrender of a copyhold is clear. But the executor originally was nothing but a feoffee to uses. The heir was the man who paid his ancestor's debts and `took his property. The executor did not step into the heir's shoes, and come fully to represent the person of the testator as to personal property and liabilities until after Bracton wrote his great treatise on the Laws of England. Surely a flower is not more unlike a leaf, or a segment of a skull more unlike a vertebra, than the executor as we know him is remote from his prototype, the saleman of the Salic law. I confess that such a development as that fills me with interest, not only for itself, but as an illustration of what you see all through the law-the paucity of original ideas in man, and the slow, coasting way in which he works along from rudimentary

beginnings to the complex and artificial conceptions of civilized life. It is like the niggardly uninventiveness of nature in its other manifestations, with its few smells or colors or types, its short list of elements, working along in the same slow way from compound to compound until the dramatic impressiveness of the most intricate compositions, which we call organic life, makes them seem different in kind from the elements out of which they are made, when set opposite to them in direct contrast.

In a book which I printed a good many years ago I tried to establish another example of the development and transformation of ideas. The early law embodied hatred for any immediate source of hurt, which comes from the association of ideas and imperfect analysis, in the form of proceedings against animals and inanimate objects, and of the noxae deditio by which the owner of the offending thing surrendered it and was free from any further liability. I tried to show that from this primitive source came, in part at least, our modern responsibility of an owner for his animals and of a master for his servants acting within the scope of their employment, the limited liability of shipowners under the law which allows them to surrender their vessel and free themselves, and that curious law of deodand, under which a steam engine was declared forfeited by the Court of Exchequer in 1842. I shall have to suggest later that it played a part also in the development of contract.

4 Regina v. Eastern Counties Railway Company, 10 M. & W. 59.

Examples like these lead us beyond the transformations of an idea to the broader field of the development of our more general legal conceptions. We have evolution in this sphere of conscious thought and action no less than in lower organic stages, but an evolution which must be studied in its own field. I venture to think that the study is not yet finished. Take for instance the origin of contract. A single view has prevailed with slight modifications since Sohm published Das Recht der Eheschliessung in 1875. But fashion is potent in science as well as elsewhere, and it does not follow because Sohm smashed his predecessor that there may not arise a later champion who will make some impact upon him. Sohm, following a thought first suggested, I believe, by Savigny, and made familiar by Maine in his Ancient Law, sees the beginning of contract in an interrupted sale. This is expressed in later law by our common law debt, founded upon a quid pro quo received by the debtor from the creditor. Out of this, by a process differently conceived by different writers, arises the formal contract, the fides facta of the Salic law, the covenant familiar to us. And this dichotomy exhausts the matter. I do not say that this may not be proved to be the final and correct account, but there are some considerations which I should like to suggest in a summary way. We are not bound to assume with Sohm that his Frankish ancestors had a theory in their heads which, even if a trifle inarticulate, was the majestic peer of all that was done at Rome. The result of that assumption