people were too well pleased with the result to be very critical as to the means by which it was accomplished. If the judges had taken this course to defeat a law which was dear to the people, they would certainly have roused a storm of indignant opposition. In this matter they were doing the will of the people, acting as the servants of the people, and hence it was that their proceedings were received with general acquiescence, and became part of the English law. It may throw light on the point, if we inquire what it is that gives force to an act of the legislature; how is it that the doings of a few score of men in one or two chambers are binding on millions of their fellows. The answer given by all republican thinkers, and by many who are not republican, is, that it is ultimately the will of the people which gives force to an act of the legislature; the people have willed that an assemblage of men organized in such and such a way shall make laws for the entire community; or, rather, the people have chosen to exercise the law-making power through the agency of such an assemblage specially intrusted with the work. But the question then presents itself: Does a people exercise the law-making power only in this way; or has it other means and agencies for making laws? We have already spoken of the English law as being to a great extent unwritten, that is, never embodied in written statutes. And there is no nation that has not a great deal of this unwritten law. No

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codè was ever so complete as to embrace all the law of a people, all that in the courts was recognized and enforced as binding. No legislature was ever so active as to make its statutes cover the entire field of admitted legal obligation. What is it that gives authority to all this unwritten (unstatutory, unlegislative) law? Many say, it is the tacit consent of the legislature, the implied or presumed consent of the legislature. But a legislature is chosen for positive action : its mere silence carries no binding authority. It is the agent of the people for the laws which it actually makes, not for the laws which it suffers to be made elsewhere. If in all nations a great deal of law has sprung up and found recognition in the practice of the courts, without the intervention of a legislature, this fact alone is enough to prove that a people has other means of law-making besides the action of a legislative body. It seems to me impossible to frame a theory of this subject which shall be in harmony with all the facts, unless by recognizing in the courts, in judicial practice, a means by which the law-making power of a people is to some extent exercised. It is clear that the English people exercised such a power through the judges in the instance just given; and that the Roman people exercised such a power through the prætor in cases like those before described.

It must be observed, however, that this agency of the courts never sets itself in direct opposition to a

written, statutory law. If it sets aside or does away with such a law, it accomplishes its end by indirect means, by fictions or evasions of different kinds. In this country it has a peculiar weapon so effective as almost to supersede the use of any other. Our States, as separate governments and as a united government, have written constitutions, which, while they subsist, are binding on legislatures as much as on courts of law or on private individuals. If a legislature passes a law which conflicts with the constitution, it transcends its powers, and so accomplishes nothing. The unconstitutional law is an unlawful law, that is, it is no law at all. Nobody has a right to make it, and nobody has a right to enforce it. A court therefore is, and from the nature of our government must be, authorized to ignore, refuse to recognize, and thus practically to set aside, any legislative act which is inconsistent with the constitution. Now, if a constitution is interpreted with some latitude, and particularly if the spirit of a constitution is regarded as binding not less than the letter, almost any thing unjust or bad may be represented as unconstitutional. And we find in fact that those who for any reason dislike a law, almost always represent it, and doubtless generally believe it, to be unconstitutional. We may presume, therefore, that in cases where the English judges or the Roman prætors, under the influence of a similar feeling, would have defeated a law by fiction or eva

sion, our American courts would set it aside as unconstitutional. Yet with us a popular feeling which is permanent and decided enough to operate through the courts would be pretty sure to find an easier organ in the legislature: the obnoxious law would be repealed by legislative act. The statute law would thus be brought into conformity with the settled will and convictions of the people; and there would be no necessity for a conflict, which is always undesirable, between the law as enacted by the legislature and the law as enforced by the courts.

In the next lecture we shall take up the system of the Roman law, beginning with the doctrine of status.

LECTURE V.

LAW OF STATUS AND FAMILY RELATIONS.

THREEFOLD division of STATUS (capacity for legal rights: 1. As to libertas: all men were liberi or servi; 2. As to civitas: all freemen were cives or peregrini; 3. As to familia: all citizens were sui juris (as patresfamilias, with or without wife and children) or alieni juris (as filiifamılias, subject to a life-long patria potestas). In each case the change to a lower position was called deminutio capitis (diminution of the law-person), which was minima when it was only loss or change of family relation; media, loss of citizenship; maxima, loss of personal liberty.

I. SLAVERY was referred by Roman jurists to the jus gentium, but not to the jus naturale.-Usually it began from captivity in war; but by its own nature was hereditary, being inherited from the mother (partus sequitur ventrem). The rule pater est quem nuptiæ demonstrant was inapplicable to slaves, who could have contubernium, but no legal matrimonium.-The slave might become free by the testament of his master, or by census when the master had him enrolled on the list of citizens. But the usual form of manumission was a fictitious suit between a vindex of the slave, claiming him as free man, and the master, who allowed judgment to go against himself: a form greatly simplified as time went on.

The slave had no rights recognized by the law, though certain laws (having the nature of police regulations) restrained excessive cruelty to slaves. The slave might, however, receive a legacy or an obligatory promise, acquiring them for his master. He might even enter into contracts binding on his master, as where the master had intrusted him with some business, or had given him a peculium to manage, or had derived any actual advantage from his contract.