I.

dissolubly associated with this illustrious building, Lecture and herein of judicial tenure, of the trial by jury, and the doctrine of judicial precedent. This will be followed by a consideration of Our Law in its New Home, its American expansion, development, and modifications, including written constitutional limitations; and this will lead to an examination of the English and American system of law and jurisprudence in its general features, wherein will appear its excellences and defects. This will be succeeded by a consideration of the conservative and radical forces in our law, of which Blackstone and Bentham are types and exponents, and of the true end, methods, and limitations of legal reform. And finally I shall attempt to trace the progress of law in this country during the first century of our national existence, with a view to exhibit its present condition, and then to mark out the probable, if not necessary, lines of its future growth and improvement.

Compendiously expressed, it may be said that these lectures, so far as unity of design can be predicated of them, relate to Our Law in its Old and in its New Home, England and America.

our law"

as used in these

defined.

What do I mean by the expression "our law"? The exSimple as it seems, this is a most important inquiry. It lies at the threshold, nay, more, it lies at the very foundation of all legal studies scientifically lectures conducted. What is meant will be made more clear by first stating, negatively, what is not meant. By the phrase "our law," I do not mean moral law; on the contrary, I mean to exclude it, -so far, at all

Lecture events, as moral law stands distinguished from civil or municipal law.

I.

Does not include

ethics or morality.

As soon as the development of man's intellect enables him to distinguish right from wrong, he inevitably comes under the sway of what is termed moral law, and thenceforth it is impossible for him to do any act, however momentous or however minute, having a moral quality, of which that law does not take cognizance. Conscience having its imperial and divine seat in every breast, susceptible of having its vision made more comprehensive and more acute, its touch more delicate, and its decrees more perfect by enlightened education, yet incapable of being torn from the breast of man, conscience is a universal judge, holding its assize at every man's door, sitting in judgment upon every act and every omission partaking of a moral quality, to condemn or to approve. It administers in its own way and by its own methods what may, indeed, be termed the moral code: and yet it is absolutely essential to a correct legal conception of law to define its province, and to separate it for purposes of definition, classification, study, and administration,

1 By the metaphorical language of the text, in which conscience is personified, I do not imply that conscience is a separate, special, or exceptional moral faculty in our nature. On the contrary, I am inclined to agree with those who deny this, and maintain that conscience is the ethical manifestations or revelations of our whole moral nature, which is indivisible, — and not those of a supposed single and distinct sense or faculty. Those who are curious on this subject will find it discussed at length by Professor Lorimer ("The Institutes of Law," Edinburgh and London, 2d ed., 1880, chap. vi., pp. 186-201). Unlike this distinguished writer, I am unable to see that the question whether conscience is a separate faculty or not has any special bearing on practical jurisprudence.

I.

from the domain of ethics or morality, that is to Lecture say, for all the purposes of the lawyer and the judge, or, more comprehensively, for all the purposes of jurisprudence, which concerns itself only with civil. laws properly so called; namely, rules of conduct which are enforced or enforceable by the State.

ethical

rules.

But this does not imply, as I shall show more fully after defining the term "law," that rules regulating civil conduct may not, so to speak, be imported by the tribunals, when necessary for the purposes of the actual decision of causes, from the field of When morality. Such rules, however, become invested rules bewith the quality of law only when and to the extent come legal that the judges authenticate or adopt, or set upon them the imprimatur of the State, that is, recognize and enforce them by their judgments. This is not, as charged by the Benthamic school, a usurpation by the judges, but a legitimate and often necessary function of the judicial office. In the past, large additions to our legal rules, notably in equity and commercial law, have been made in this way, and further additions must, whenever the necessity arises, continue to be made, and in fact are daily made, from this unexhausted and perennial source. It is a mistake to suppose that this process has ceased. In consequence of modern inventions, aggregations of capital, and changed social conditions, I am inclined to think that at no previous period has this method of legal growth and change been in more constant and active operation than at the present time. Even the accepted general doctrines of courts of equity (and this is measurably true of courts of law) are not stereotyped, but

Lecture possess, within recognized limits, a progressive and flexible character.1

I.

Austin's "Province of Jurisprudence deter

Austin rendered, perhaps, no greater service to jurisprudence than in his elaborate chapters on the "Province of Jurisprudence Determined," wherein he defined the boundaries of jurisprudence, and seption to the arated it from the domain of ethics or morality.2

mined," a valuable

contribu

science of

law.

1 Re Hallett's Estate, Law Reports, 13 Chancery Division, p. 710, per Sir George Jessel. This great equity judge there says: "The rules of courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. They have been established from time to time, altered, improved, and refined from time to time. In many cases we know the names of the chancellors who invented them, - as, for example, the separate use of a married woman, the restraint on alienation, the modern rule against perpetuities, and the rules of equitable waste. We can name the chancellors who first invented them, and state the date. The older precedents in equity are of very little value; the doctrines are progressive, refined, and improved."

2 Mr. Justice Markby, after expressing his approval of Austin's conception of law and of sovereignty, and his sense of our indebtedness to him for drawing so firmly the distinction between law and morals, thus proceeds: "Austin, by establishing the distinction between law and morals, not only laid the foundation for a science of law, but cleared the conception of law and of sovereignty of a number of pernicious consequences to which in the hands of his predecessors it had been supposed to lead. Laws, as Austin has shown (Lecture VI., p. 275), must be legally binding; and yet a law may be unjust. Resistance to authority cannot be a legal right, and yet it may be a virtue. But these are only examples. Into whatever discussion the words 'right' and 'justice' enter, we are on the brink of a confusion from which a careful observance of the distinction between law and morals can alone save us. Austin has shown not only what law is, but what it is not. He has determined accurately the boundaries of its province. The domain he assigns to it may be small, but it is indisputable. He has admitted that law itself may be immoral, in which case it is our moral duty to disobey it; but it is nevertheless law, and this disobedience, virtuous though it may be, is nothing less than rebellion" (Markby, “Elements of Law," 2d ed., London, 1889, § 12, p. 4). The justness of these observations may be admitted without admitting the correctness or sufficiency of Austin's definitions of law and sovereignty.

I.

Continental, and particularly German, commentators Lecture upon the law have not always, if indeed they have ever, fully made this separation, a separation so essential to the advancement of legal science. I quite agree with Professor Amos, who, referring to this subject, says:

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nental

relations

"It cannot be denied that the best and most Contiphilosophical thinkers of Germany, cognizant as view of they are of the true relations of law and morality, between "and of legal and moral terms, have to a certain law and morality. "extent contributed to popular confusion by their "reluctance to abstract, even provisionally, law "from its moral surroundings. This abstraction "has nowhere been so completely achieved as by Englishmen. The result of this philosophic tendency in Germany has been to merge the scien"tific treatment of law in the larger region of "general ethical inquiry; and consequently, instead "of the science of law making an even and independent progress of its own, it has undulated with every wave of ethical speculation, and has conse'quently suffered the retardation incident to the growth of the most involved because the most "composite branch of intellectual research." 1

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1 Amos, "The Science of Law," New York, 1876, chaps. i., ii., iii. A most striking illustration of the correctness of Professor Amos's observations may be found in the work of Professor Lorimer above cited. It is written in the spirit and pervaded by the doctrines of the German philosophic school. It has all the speculative interest and charm that a vigorous and captivating style can give it, but it is essentially an exotic. As a practical lawyer brought up in the English school, and for a lifetime accustomed to its views and methods, it may be that I underestimate the value of speculations of the German philosophers; but I am unable to see that their views and methods are capable of being transplanted with any considerable advantage