system, and to estimate, in untechnical language, the extent to which English law fulfils that function?

We are taught that the most precious thing in the universe is that mysterious principle which we call 'life,' and that the preservation and multiplication of life is, or should be, the chief object of the guides (official or unofficial) of mankind. Even the melancholy theory of Malthus did not, seemingly, deny this truth; it merely despaired of the efforts of humanity to give effect to it on more than a limited scale. And, in any case, the achievements of industrial science have long since laid the bogy which Malthus raised.

But if this doctrine be true of individuals, why should it not also be true of communities? Doubtless there are communities (to say nothing of States 25) whose existence appears to be of somewhat doubtful augury for the welfare of mankind; but, if we believe that every individual, at least until he has given irrefragable proof to the contrary, is worthy of life, are we not much more bound to believe this true of an entity which has been brought into existence by mutual needs and services?

We are also told by physiologists that the essential condition of physical life is the accordance of the object with its environment. Is there any reason to doubt that the same condition applies to the life of a community, which is, of course, a spiritual life, for a community can have no physical existence apart from that of its members? Let us pursue the matter a little further, always remembering the dangers which attend the argument from analogy.

In spite of the wave of pragmatism which is, with somewhat disastrous results, passing over the world, most persons whose opinions are of value admit, or assume, that, while the influence of mankind on its environment is rapidly growing, there yet remain certain unalterable conditions subject to which all human activity must work; and it cannot be for nothing that these conditions have received, in practically all the tongues of western civilization, the name of 'laws.' Doubtless, as Professor Gray forcibly urges in the work before referred to,26 there are important differences between these 'laws' and the laws with which a jurist is primarily

25 It is essential to the writer's argument that the distinction between the community and the artificial organization known as 'the State' should be borne in mind (see above, pp. 112-116).

26 NATURE AND SOURCES OF THE LAW, p. 213.

concerned; but those differences do not alter the fact that jurists, like all other people, have to reckon with them, unless, perhaps, we take the narrow view that a jurist is concerned only with the form of laws and not with their contents. What is the use or the interest of an elaborate hortus siccus of mere legal formulæ, apart from the influence on human conduct which these represent? For, as Montesquieu says, laws are 'the necessary relations derived from the nature of things.'

Unfortunately, however, these unalterable conditions are not easy to discover, especially those affecting human intercourse. While it is not going too far to say, that the progress of ascertaining them as they affect inorganic and even organic, but non-human, phenomena, has been, especially of late years, astounding, it must be confessed that infinitely less success has attended the researches of the students of human nature, and especially of human nature as it manifests itself in common life. And it is not difficult to see why. For, with all the marvellous complexity which characterizes the world of inanimate nature, and the world of plant and brute life, man presents the further baffling complexities raised by the existence of reason and will. We may say, if we like, that these qualities are also present, to some degree, in the brute creation; just as we may say that the communal, or at least the gregarious instinct or faculty, is also present there. But the fact remains that the difference of degree, in these respects, between mankind and the brutes, is so great as to amount to a difference of kind. After all, if we go back to the primitive protoplasm, differences cease to exist, or, at any rate, to be distinguishable.

In face of the problems raised by this infinite complexity, there is but one refuge from despair, viz., the belief in a fixed rule and order which, if we could but discover it, would solve them. This is the foundation of faith: there is no chance, only ignorance. All the wisest and greatest of mankind have believed this theologians, moralists, lawyers, naturalists; but only the last, by reason of the comparative simplicity of their material, have gone far to demonstrate it. Something has, however, been done by those students who grapple with the infinitely more difficult problems of human conduct; and in the religious, the moral, and the legal systems of the world we see the results. It is, of course, a commonplace of anthropology, that these three branches of human endeavour have spe

cialized off from a common stock within comparatively recent times, even in western civilization; it is almost equally clear, that the separation of the physical and the moral sciences has taken place within a period which we may fairly call historical. And it is one of the peculiar marks of modernity in English law that, on the whole, it shows a remarkable tendency to restrict itself to its own special sphere, avoiding appeals to the emotions, which are the typical methods of religion, and to the reason, which are the subtle weapons of morality.

Having, then, to deal with what is, perhaps, the most intractable of all media, the human will, the builders of English law have never forgotten that this medium is one of the most direct and, therefore, one of the most precious manifestations of life, neither to be stamped out as necessarily anarchical, nor to be stored up and used like one of the blind forces of inanimate nature. Only when it manifests itself in ways obviously fatal to the life of the community, does the community, acting on the primary law of self-defence, interfere to crush the individual will; only where the object to be gained, in itself essential to the welfare of the community, cannot be achieved by spontaneous effort, does the community harness the individual will to the chariot of State. English law takes life itself as the guide to life, and treats the individual as a man, not as a machine. It is this deep respect for individual liberty within widely drawn bounds that is the dominant note of English law; and it is justified by the vigour, the achievements, above all the internal harmony, of those communities which, the world over, have adopted its principles. It is difficult to imagine any more cogent proof that English law is in accord with the truth of things.

LONDON, ENGLAND.

Edward Jenks.

SOME PHASES OF THE LAW OF MARRIAGE

the vast field of Comparative Law there is no subject which so profoundly affects the welfare of society as that of marriage, nor has any other institution been so powerfully influenced by superstition, religion, philosophy, and politics.

Eastern legislators regarded matrimony as a means of securing salvation in the world to come; Cæsar and Augustus encouraged it to increase the power of the Roman Empire; crafty statesmen have ever sought by means of royal alliances to extend their borders or conserve their territory, while it is one of the glories of modern jurisprudence that in the regulation of marriage its chief aim has been to improve the physical and mental development of mankind. All these varied purposes are reflected in the laws, and it is interesting, and not without present utility, to trace their origin, growth, and effect, noting points of similarity and of difference, of progress and of decadence.

I

Age, intelligence, and consent, to the Western mind the three great essentials of marriage, are considered of small importance by vast millions in the East. To the Hindoo the taking of a wife at a very early age is an imperative duty, for all hope of happiness after death depends upon the birth of a son. "By a son," says Menu, "a man discharges his debt to his own progenitors," and "obtains victory over all people; by a son's son he enjoys immortality; and afterwards, by the son of that grandson he reaches the solar abode." 2 In the anxiety to secure these great rewards betrothal had its origin,3 By this means the parents anticipate the future of their children even in infancy. It is the binding tie, and the second ceremony of "con1 Pour les Hindous c'était et c'est encore la plus importante affaire de la vie, la seule espérance de salut après la mort. I GIBELIN, DROIT CIVIL DES HINDOUS, 22. 2 2 COLEBROOKE, DIGEST OF HINDOO LAW, Book V, chap. 1, arts. X-XI. Jamais, chez aucun peuple, le mariage ne fut établi sur des bases faites pour inspirer plus de sollicitude et d'intérêt. Évidemment c'est là que doit se trouver l'origine des fiançailles. I GIBELIN, 22.

C'est le premier acte qui lie définitivement les contractants. I GIBELIN, 21. In China also, if the betrothal is regular, it is held to be a marriage, even though it be not consummated. ALABASTER, NOTES AND COMMENTARIES ON CHINESE CRIMINAL LAW, 174.

ducting to the house," which takes place at puberty, merely marks the advent of the period for the husband to claim his bride.

This blight of child marriages affects the Chinese also, and arises from similar causes. They believe that the spirits of the departed wander restlessly about unless a son performs the burial rites and offers up the fixed periodical sacrifices at the tomb. This dire fate they seek to avoid by early unions.6

Fear of torment after death urged the Persians to the same course. Their prophet-legislator, Zoroaster, proclaimed that it was a calamity to die unmarried because children were so many degrees in the progress to eternal joy, and the good works of those left behind assisted the parents in crossing the bridge Tchineval, over which all souls must pass to reach their heavenly home. This doctrine seems all-compelling, but he supplemented it by the offer of earthly rewards to those who reared numerous families, thus establishing a precedent which has been followed by other nations in later days.

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7

The marriage of daughters was regarded by all ancestor worshippers as a matter of less vital importance than that of sons. The latter were charged to visit the tombs of their ancestors and care for them as temples of gods, while the daughters were only expected to weep for them as mortals. Some influence was necessary to compel the disposal of girls at an early age, and all the Hindoo lawgivers denounced the father who did not cause his daughter to wed when she could become a mother. Menu declared such a man "reprehensible"; Yama that he was "as guilty as the person who procured abortion"; and Vrihaspati that he was "a criminal who ought to be punished." 10 Zoroaster went further, and asserted that if a girl who had attained the age of eighteen died a virgin, the torments of the infernal regions awaited her until the general resurrection.11

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These early and almost universal marriages have been the chief

5 L'idée qu'on se fait de la vie future de l'influence heureuse qu'elle peut recevoir du culte des descendants pour les ancêtres, est une des raisons qui font désirer aux Chinois une nombreuse postérité. TISSOT, LE MARIAGE, LA SÉPARATION ET LE DIVORCE,

39.

6 DOUGLAS, CHINA, chap. 3.

7 PASTORET, ZOROASTRE, CONFUCIUS ET MAHOMET COMPARÉS, 424.

PLUTARQUE, QUESTIONS ROMAINES, § 14.

2 COLEBROOKE, DIGEST OF HINDOO LAW, Book IV, chap. 1, art. XIV.

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