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chapter 1: The Physical Basis of Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Physical Basis of Law
Almost everyone of ordinary information understands very well what is meant by the word “law,” but even the most learned jurists, when called upon to give an accurate definition of the term, find themselves at a loss. No jurist has yet achieved a definition of law that does not require the use of the idea of law, either implied or expressed, as a part of the definition. All will agree that the word in its meaning implies a set both of general principles and of particular rules. Upon law what we call rights are founded, and by it wrongs are forbidden; but if we ask the meaning of the terms “rights” and “wrongs” we simply move around a circle by saying that rights are what are legally recognized as rights and wrongs are what the law defines as wrongs. Thus we get back to the place whence we started.
A celebrated judge in this country has defined law as “a statement of the circumstances in which the public force will be brought to bear through the courts,” but this definition makes an immaterial matter the substance of the definition and ignores altogether the idea that a law is a rule.1 Law would exist without public force applied, for long before there were courts there was a great body of law that a man was bound not to violate and that was generally obeyed. The fact is that no one can go any further than to say that law is a part, and only a part, of the now large body of rules that govern men in their relations and conduct toward one another in the social organization to which they belong. Even here we must understand that we include rules which govern men in their relations to the social organization under which they live and that among civilized men law is considered to govern the relations of social organizations toward one another. For this latter kind of law we have the term “international law,” and its enforcement is not made by any court. Rules of law at different times in the past have covered many more human relations than at other times. Generally speaking, the progress and development of law have been in differentiating rules of living that were of sufficient importance to the social organization to be regarded as law, from other rules, once as potent, that have gradually passed into mere social customs.
It is necessary at the outset to lay stress upon the dominating fact of men having always lived in social organizations. It is possibly conceivable that men might have lived as solitary animals, but if they had done so there would have been no laws. The existence of laws presupposes human beings living in a social complex. The science of law, if there is such a science, is but one of the several sciences that are concerned with men living in a social state. Sociology, ethics, politics, political economy, as well as history, biology and psychology, all have a common ground, for they are all social sciences or have social science aspects. They are all more or less related to each other, and all are necessary to a proper understanding of each science. This truth was happily expressed in the oration of the greatest of Roman advocates for the poet Archias—an oration which, as a whole, reached the highest ground ever attained by a lawyer in a forensic speech. There Cicero said that “all the sciences which pertain to human conduct have a sort of common bond and are related to one another by a kind of kinship in blood.”
This fact of living in a social state is the fundamental fact for the history of law. The development of law has been merely one phase of the social development. This legal development has been a wholly natural social process and result, which man could no more have escaped than he could have avoided the compelling force of his physical frame. This truth as to human life having been always a social existence is the basis of Aristotle’s famous deduction, “Man is a social animal.”
So far as the sciences concerned with humanity give us light, men have always lived in society. This means not in the family, but in some social aggregate larger than the mere family of a male and female or females and children. The ordinary idea of human development has been that the family was the original unit, but, as will appear, the evidence to the contrary is so conclusive that it may be considered as settled that a family life was not developed by men until ages after their advent as animals truly and distinctly human beings, though of a low type of mental development as compared with civilized men. Human animals came out of some lower type of animal with the ways of living of creatures who lived in a herd. Man might have had some other kind of mind than he has, had he not been a social animal, but we must accept another fundamental proposition that man’s mind is a social intelligence, and its processes are dictated by the fact that it has been made by the living in a social state and in no other condition. Law is, of course, the result of this socially formed mentality in adapting the race to its physical surroundings, and in striving to overcome those surroundings.
The time has long gone by when one should apologize for running counter to human conceptions that are founded upon human ignorance, inherited prejudice, or crass stupidity. If the purpose were to write a work upon geography, it would not be necessary to begin with an extended demonstration of the sphericity of the earth, although a few centuries ago a man could, with entire legality, have been burned at the stake for asserting such a proposition. Similarly in a work designed to explain the legal aspect of man’s life, it must be assumed that human beings in their mental nature, and the laws as products of that nature, are the result of ages of evolutionary development, in spite of the fact that many honest and sincere people believe such teaching to be criminal and despite the fact, also, that in some parts of the United States such teaching has been made in fact a crime. Curiously enough, St. Isidore, who died a.d. 636, lays it down as undoubted truth that “at first men were naked and unarmed and helpless against wild beasts, without any protection against cold, without any way to preserve heat”; and Alcuin (a.d. 735–804), a great churchman, knew enough to say that “there was a time when men wandered like beasts here and there over the earth, without any power of reason whatever.”
The story of the law must begin, then, with men as they first were in mind and body countless ages ago. Those original attributes of mind and body, inherited from age to age, practically rule men to-day, though generally in a subconscious or instinctive way. Through those many ages the physical frame of man has remained what it was in the beginning, but his mental development is entitled to be considered the most extraordinary phenomenon of organic life. A celebrated apothegm, originally stated in Latin, says that “in the world there is nothing great but man, and in man there is nothing great but mind.” Yet it required many ages to create in man that greatness of intellect, and the expansion of the human intellect is still continuing.
The physical rules that govern our bodily frame are the same to-day that they were in the beginning of mankind, for that physical frame has suffered no change. The laws of generation, birth, nutrition, growth, decay, and death have the inevitability of natural law. Such physical laws are like all other rules which we call natural laws. They are fixed and unalterable by human effort. Violation of those physical laws produces physical results. But human laws have none of the inevitability of natural laws. They may be violated without any physical effect on the violator, for they attempt to make or are a standard of conduct of human beings toward one another. The scientific name given to the knowledge and the doctrine of human laws is “the science of jurisprudence.” Law in this sense is commonly supposed to be the result of human reasoning and of conscious purpose. Yet there was a time, before man had developed the mental faculties necessary to produce consciously purposeful laws, when the rules that regulated human conduct in the social state had all the sureness and inevitability of natural law, for the laws existed merely as customary animal reactions to surrounding conditions.
If, to obtain a better perspective in looking at this matter, we should go back to a time preceding the existence of human beings on the earth, we should find ourselves toward the close of the vast geological age that is called the Tertiary. Nature had then completed her highest and most successful experiment, prior to the advent of human kind, in creating miniature animals suited to live upon this earth in a closely knit social community. In such social communities we shall find the analogies that are most suitable to describe men, who began as mere animals and have lived always in social communities of some kind, and have thus produced those rules of social conduct which we call “the laws.”
There is an additional reason for beginning the history of the law with man’s advent on the earth. Lawyers have never written legal history in a large way. The philosophical histories of the law have been the work of philosophers and metaphysicians, who have succeeded in rendering legal science unintelligible to lawyers and laymen alike. If we begin with man’s beginning, we at once get rid of the wildness of metaphysics and the dreaming of philosophy, for that shadowy learning is purely a human mental construction. The world was the same practically that it is to-day just prior to man’s coming. That coming added merely another kind of animal who knew neither philosophy nor metaphysics, but who had certain laws.
In the latter part of the Tertiary Age, just prior to man’s coming, certain animals had already brought social existence to such a perfection that from a time over a million years ago until the present those animals have not been changed in their habits of life. They had then become, and they still remain, most successfully adapted to conditions. To these animals the Wise Man in Proverbs tells us to go for wisdom: “Go to the ant, thou sluggard, consider her ways and be wise.” This is, of course, a commendation of the feverish and unremitting industry of the ant, that is to say, of the female ant. The less said about the male ant’s industry, the better. But ants are more than a model for reclaiming the sluggard: Lessons of wisdom in the sphere of law, little dreamed of by the Wise Man, may also be obtained by going to these lowly insects.
It is not paradoxical even to speak of the jurisprudence of ants. They are, indeed, as the great Dramatist says:
They have a polity of their own through which their communes exist and prosper under a set of laws which provide for the perpetuation of the society, the care and rearing of the young, and the provision of food by artificial means for the support of the community—a set of laws so successful in operation that ants are by far the most numerous of all the animal inhabitants of the globe and are spread almost as widely as men in climates the most diverse. While not domesticated as are their cousins, the bees, they have been a source of perennial interest. The vast amount of writing upon them, recording in many volumes the results of observation and experiment, enables one to speak with certainty regarding these small creatures. The humor of Mark Twain upon the stupidity of ants cannot be considered valuable in a serious discussion.
I need not comment upon the well-known facts that ants are insects allied to the other Hymenoptera like the bees and wasps; that but one of the community, the queen, produces any progeny; that the community is divided into defined castes of wingless and aborted females, who are the workers, and winged males, who are an idle and worthless class, except as to the one which fertilizes the queen, whereupon the useless herd of drones is killed, submitting to this fate with resignation. The ants select places for building the communal dwelling with great care and judgment in reference to drainage and the nature of the soil. Rooms are provided in the general pueblo, so to speak, for use as nurseries in the rearing of the young as well as for the storage and preservation of food. Two of the notable advances of the human race toward civilization were the domestication of animals and the cultivation of plants, yet the leaf-cutting ants, in rooms provided by them in the communal dwelling, fertilize their darkened fields and cultivate minute plants that furnish a store of food. Likewise the honey ants, who live mainly upon the sweet juices of trees and plants, have their droves of aphides, which live upon and secrete for their ant-owners the sweet saps of trees. These droves are herded and regularly milked by the worker ants. They are in every sense the domesticated animals of the ants.
Then, too, these astonishing ants have learned the lesson of communal sanitation. Personal cleanliness and cleanliness of the dwelling are rigidly enforced among them. They are indefatigible in removing all sorts of litter and refuse of food from their homes. They even harbor beetles, it is said, in their nests, who are kept for the purpose of removing the communal garbage. The homes are regularly closed and sealed each day, and as regularly opened, and sentries are posted for guarding the gates.
Human maintenance of roads is a comparatively late development of civilization. The ants, however, have their made roads stretching from their homes in all directions, which seem to be laid out with care and which they follow in their food or predatory excursions. When, in making a road, they come to a rill of water, they tunnel it in true engineering fashion and maintain the tunnel. The building of a cylindrical arch is a great invention of our race, but the ants were doing it before the lowest type of humanity appeared on this planet. The leaf-cutting ants are ingenious enough to sew leaves together to suit their purposes.
The ants have their predatory instinct against strangers, just as our human race had and still has it. A column of driver ants on the march, devouring every creature they meet, is probably the fiercest carnivorous horde on this globe. A settled tribe of ants has its scouts who, like the scouts who spied out the Promised Land, go forth to look over the land and, when they find a commune of another tribe such as they desire to attack, rush back to the main body of the tribe and make some report; then the army, in a scene of frantic excitement, imitated in our cities when troops go forth to war, begins to form. The whole tribe, except the drones, rushes forth from its dwelling and takes up its march; it arrives at the place of attack, and a sudden savage onslaught is made. The tribe that is attacked fights gallantly for its homes and firesides. The assaulting army of female workers, like the standing army of women of Dahomey or the Amazon bands of Penthesilea on “the windy plain of Troy,” fights as gallantly; at last all the warriors of the one tribe are killed, and the young and immature captives are carried away to be nurtured and brought up to increase the slave hordes of the conquerors. This is very like the Athenian conquest of the island of Melos, as related by Thucydides. It is very like the command to the Jews in Deuteronomy: “When the Lord thy God hath delivered it (a city) into thine hands, thou shalt smite every male thereof with the edge of the sword. But the women, and the little ones and the cattle...shalt thou take unto thyself.” And such is the primitive law of war everywhere among men.
The maintenance of slaves is probably the most curious anticipation of the ants. The slave ants are obedient and hard-working; they seem to be satisfied with their condition and are devoted to their masters. Certain tribes of ants are perfectly helpless, and depend for their lives upon their slaves. The ants, of course, instinctively are seeking more workers, and the origin of slavery among men is precisely the same. Ants have no weapons, but some of them develop better natural means of attack, for among ants which have the soldier caste, who have larger heads and more powerful jaws, there is shown an improved type of “shock troops” who seem to be irresistible.
As a patriot devoted to her tribe and homeland, the ant is a wonderful creature. She knows no fear; she fights with devoted courage; she is eager for battle; she hurls herself upon the foe; she never retreats; either she dies on the field or she never leaves the field until the battle is won. The ant knows no good for herself as separated from the good of the community. If service be the test, she is entitled to the highest praise. She is an indefatigable worker and carries, for her, immense burdens. Her strength in proportion to her size is prodigious. If the burden is too heavy for one, two or more unite in the work. Her readiness to sacrifice herself for the public welfare is amazing.
With the altruistic civic service of the honey ants nothing in human life can compare. Certain of these workers act as reservoirs for food. They load themselves with sweet juices until their abdomens are for their size enormously distended; then they laboriously make their way to the home, and are helped by other ants up the wall of the room to the ceiling, and there they cling day in and day out until their store of honey is required by the society. Coöperation for the public good is the absolute law of ant life, and this law is scrupulously obeyed. But at the same time this intensity of communal life and feeling results among ants, as it often has resulted among men, in a bitter hostility toward all stranger ants. We have seen how remorseless they are in sacking the home of another community and in reducing its dwellers to slavery. Many an experiment has shown that stranger ants introduced into an ant community are at once set upon and killed.
It is a commonplace of observation of ants that the peculiarity of this organized community is that there is no apparent organization. Each individual seems to act on his own initiative, without directions or orders. There are no superiors or inferiors. The ideal of absolute equality reigns. There is no overlord, no standing army, no officers, no privates. There is a most effective government, but there are no governors. The varied and complicated facts of government in a great ant-city, its home-making, home-guarding, home-nurturing, its building of roads, storerooms, nurseries, and vast structures that, proportionately to the size of ants, are equal to great centers of human population, the gathering and distribution of supplies, the cultivation and storing of crops, the keeping of herds, waging of war, and utilizing of captives, are carried out with perfect regularity. The laws are self-enforced, are apparently never violated, and this work goes on with the regularity and precision of an automatic machine, “without guide, overseer or ruler.” Ants have lived under their laws so long that they have become perfectly fitted to them, and even the time for closing the gates requires no warning sound of a curfew. Is it not plain that ants can live and work without direction or guide because, acting by instinct, they all act precisely alike?
It cannot be denied that this experiment of Nature is, to the extent that it has gone or can go, perfectly successful. The ants have certainly a considerable degree of what we usually call intelligence. And this is so with many other animals. A herd of musk-oxen in the frozen north, when it hears the hungry cry of a band of wolves, throws itself into battle array. The bulls face outward in a circle, standing shoulder to shoulder and presenting a ring of menacing horns to the foe. The cows and calves are all protected inside the barrier of menacing horns. It seems difficult to distinguish this conduct of musk-oxen from that of a wagon train of emigrants, let us say in 1850, crossing the western plains in the United States. When an Indian attack was impending, the wagons were arranged in a circle with the human beings, the horses and cattle inside the circle. These two performances differ little in intelligence. The musk-oxen are certainly acting with just as much intelligent coöperation as the human beings. The performances of the domesticated dog or the horse betray often the highest intelligence. The amazing communal life and engineering skill and discrimination of the beavers are reserved for later illustration. Similarly, the ant, when it decides to tunnel a stream or to select its home, acts with much intelligent judgment.
It is apparent that the laws of social organization of the ant are suited only to a natural condition where the young are produced by the one ant queen. The workers are all infertile, aborted females. The drones are killed at once after the queen has taken her nuptial flight. No possible dissensions in the community can arise like those of the bulls or stags or stallions fighting over the cows or does or mares. Nor can any question arise over property, for all the property connected with the community belongs to the whole community. This was the condition among primordial men. Every worker among the ants toils with all her might in obtaining the property, and all have equal access to it. Each ant acts as if its act could become a general rule of action, and this we shall see is true of all human primeval law. The natural condition of absolute equality results from each ant having full liberty to act like every other ant. The intense devotion to the community, the total ignoring of the individual, the innate passion for acquiring property for the community, are fundamental instincts that must be developed by any social animal that requires the storing of food in order that the community may survive.
Every ant community acts on the seeming principle, so popular among Socialists or incompetents, that the society owes a living to each of its members. No trouble, even, can arise over the young, for they belong to the whole community and are the cherished possession of the whole tribe. They have no parents, they are all orphans, and are brought up with the greatest care by the joint efforts of all the workers. Finally, the fact that these ants have continued in their habits of life without change through a million years indicates that the laws of social life that govern the ants have produced animals absolutely responsive and obedient to those laws. In other words, every ant is law-abiding. What, then, can be simpler to the reformer, than to turn humankind into ant-aping social communities and to make all men law-abiding?
Is it at all strange that the ideal commonwealths, which have been devised, borrow leaves from the book of the ants? All communal socialism is based upon the jurisprudence of the ants in an attempt to apply that polity to human beings. It is assumed that, like the life of the ants, all there is to human life is the problem of enough to eat and a roof to cover our heads. This is true of savage men. This is the Marxian assumption applied to civilized men. Almost every new religion begins with this fascinating dream of goods in common, no contentions, no degrees among men, all naturally working for the common end. The Socialists seem to look without disfavor even on predatory war, for this is the lesson of their exemplars, the ants. They find no place for the monogamous family life, for that is no part of the polity of the ants. Every ant society supports each individual ant. That is the theory of Socialism. The problem of socialistic communism is a very simple one on paper. Let each human being become as purely responsive to conditions as the ant, let him attain the perfect self-discipline and self-control, the self-abnegation and self-surrender of the ant, the devotion to the good of the community which is the controlling spring of emmet life—let each human being cease to be individual, and Socialism and Communism are very easy to attain. This means, of course, as we shall see, that the fundamental nature of the human mind as the ages have produced it, must be abolished. No one but an imbecile can hope for such a transformation or expect it.
If every act of the ant were not what, for want of a better word, we call instinctive, the mental constitution of the ant would have been certain to change in the course of a million of years. We content ourselves with saying that it is the nature of ants to act as they do. The laws of ant social life are inexorable and incapable of being changed unless they be changed by some new natural condition acting upon the ant. What we mean by this is probably the great generalization of Pascal, who was thinking of human beings: “What is nature? Perhaps a first custom, just as custom is a second nature.”
The lesson we can learn from consulting the ants is that habits of acting or customary modes of acting of even intelligent animals become so fixed that it is impossible that they should be altered by mere animals, and so far as man as an animal has come out of his remote past, he has come stamped with this instinctive tendency to continue in customary habits of acting. But so far as he has become capable of altering his customary ways of acting, he has ceased to be a mere animal and has taken on, if you please, a Godlike attribute. But we may be certain that he will not alter his methods of life except to the extent that he is compelled to go. He will cling to as much of his ancestral robe of habit as he can retain.
Next, we may say that every social community of animals, by the very fact of its individuals living together, develops in each individual by nature or by habit or by customary mode of acting, an intense tendency in each individual to preserve that social community as an organization. In order to preserve the community there must be a store of food for the winter, requiring most intense labor. Hence come the ants’ tribal property, the common home, the unified labor, and the practice of slavery. We shall find in primitive men these same instincts, the same tribal feeling, the utter lack of any conception of the individual. The individual counts for nothing in the preservation of the community. This is just as true as that in the animal, whether with or without a social organization, there existed the animal tendency to propagate its species, impressed upon every normal animal as a natural and ruling passion. These two tendencies, to propagate and to continue the herd, continued to exist in men from their stage of mere animality, and the two together make up what may be called the basis of human community life as it came from the hand of Nature.
Now at this point in the beginning of this history it is necessary to emphasize a fact as to ants and to make a distinction between their development and that of men. In the case of the ants, their mentality and their rules of life have become precisely equilibrated to their physical surroundings. Just as surely as the moon, the other planets, and the earth are held in their orbits by the balance that has been reached in the natural forces that govern their movements, so the ants, by the condition of equilibrium which they have reached with reference to their natural surroundings, are rendered incapable of escape from, or of changing, their rules of existence and of conduct toward one another. But with man it has not been so, for man’s mentality in the long ages has suffered a great development.
Man began as an animal, responding merely to his surroundings, and the fact that he so began has led the Behaviorists to assert that such he has always remained. Their favorite thesis is that the individual man to-day is just what society has made him. This is true in a measure, but since man became civilized, the exact converse is shown to be true by the history of the law. Society now is what the individual man is making it. Somewhere in its development, by gradual and imperceptible degrees, the animal man passed from the stage of a brute wholly obedient to its circumstances and surroundings, to that of a being who, by his own purposeful mentality, could so alter the impact of his surroundings upon himself, that he could rise above the external world of the senses into the realm of the inner life of the spirit and could make it true that human society will become what the individual shall make it. To quote George Sand, the ideal life will become man’s normal life as he shall one day know it. If it be said that this change of mentality is a mystery, the answer is that the change in mentality can be traced, that it is not nearly so great a mystery as the initial change from inorganic matter to organic life, that beginning of life in which all are compelled to believe. Human society has been altered and will continue to be altered and to be made still better as men continue to rise higher in the realm of that inner life of the spirit. The world of thought, the world of dream, and all the past and the future will become the possession of more and more men.
We can anticipate that man will never become like the ant, perfectly law-abiding and perfectly fixed in his obedience to the rules of his social life, for should that day come man would be incapable of improving his rules of life and incapable of progress. Yet this does not mean that progress lies in violating the law, but rather in the capacity to alter the law. It will always be true that the highest type of man will be the one who recognizes his duty to obey the laws, as witness Socrates who without compulsion or necessity, even probably against the desire of those who had condemned him, went confidently to his death rather than disobey the law.
Pope in his well-known lines asks a question and answers it:
And if we ask why man has not developed a set of laws that all men instinctively obey, without question and without faltering, the answer is the plain reason that man has left that stage behind him. He has all of the intelligence of the ant but he has one infinitely higher attribute, that puts upon him certain evils, but at the same time opens to him an endless heritage of progress.
Every act of the ant is purely instinctive. She acts as she does because she cannot act otherwise. She has no choice. Human beings also have instincts. The great mass of our daily acts is purely instinctive, the experimental psychologists now tell us. Some of those instincts have improved and grown better with the improvement of the race. Our emotions of fear or bravery, of pity or harshness, of sympathy or ill will, of envy or generosity, of love or hatred, are not reasoned conclusions. When we are moved to tears or laughter, when our hearts glow and our eyes shine at hearing or reading of noble and heroic deeds, when we feel keenly the suffering of man or beast, when our minds are touched to generous compassion, we feel and act by instinct. Love for our parents or family, love of the home in which our eyes opened to the light, faithful affection for the streets over which our childish feet were led, and love for our country whose flag floating in the air is an inspiration and an undying hope, no less come to us by our instincts.
At the same time our self-assertion, our greed, envy, and covetousness, our feelings of self-interest and selfishness, our lowest attributes of sensuality or lust, all the influences of the body on the mind, are no less instinctive. Men mainly differ in the extent to which the intellect commands these instincts that have been inherited from the savage. Had men remained the creatures of merely instinctive intelligence they could doubtless have peopled the earth; they could have developed communities of a high order living under an absolute law reigning over individuals who would never violate the law. They would have developed a stability of institutions and thereby have become incapable of progress. But man has developed a higher type of mind capable of infinite expansion and of overcoming natural surroundings, and has thereby become able by his own purposeful exertions to keep constantly mounting to higher realms of existence.
While the communists have made an impossible application of the lesson of the ants, it seems possible that some philosopher, calling himself a jurist, as philosophers have the hardihood to do, thinking on the problems of social life as developing rules of law to govern the conduct of individuals toward one another, might have hit upon the inference that men must once have lived in a condition when they, too, would be as helpless in the grasp of their rules of social life as are the ants. If men had remained without any reasoning power whatever, they would have been helpless to change. The philosopher Hobbes, who claimed to be a jurist, once cast his eye upon these natural communities of ants, at a day before the evolutionary conception was at all understood. But Hobbes was definitely committed to the dogma that human law is a rule imposed by a superior ruler upon an inferior subject, and that not nature but authority creates law. This dogma long made jurisprudence a nightmare. Hobbes at once dismissed the ants as being wholly useless for a jurist’s investigation. No doubt he saw that the polity of the ants entirely refuted his theory of law, and it was too much to ask of a philosopher that he should abandon his theory out of a regard for facts. The fact, however, remains that a large part of the law has always been dictated by natural causes and much of our jurisprudence is and must remain, however we disguise it, as inevitable as the jurisprudence of the ants.
How much more inspiring it is to believe, as the story of the law proves, that the creature man has achieved his own destiny! Grant that he is obedient to natural laws so far as he must be, yet as a docile echo of those laws, by the force of reasoning power alone, he has steadily rounded and continues to round the vast orb of his fate. No one can look at the story of the law and not be a firm believer in the future of the race. The informed lawyers, in spite of their often gloomy views, must be the true optimists. Legal history teaches that the science of jurisprudence, without which progress would have been impossible, is not the work of the few but of the many, not the work of lawgivers or of great men, but the steadily and silently built structure of voiceless millions, “who bravely led unrecorded lives and dwell in unvisited tombs.”
It is a sound corrective to our thinking to remember, in the words of a great scientist, that “what we are is in part only of our own making; the greater part of ourselves has come down to us from the past. What we know and what we think is not a new fountain gushing fresh from the barren rock of the unknown at the stroke of the rod of our own intellect; it is a stream which flows by us and through us, fed by the far-off rivulets of long ago. As what we think and say to-day will mingle with and shape the thoughts of men in the years to come, so in the opinions and views which we are proud to hold to-day we may, by looking back, trace the influence of the thoughts of those who have gone before.” It is in the history of the law, far more than in any other social science, that we catch from its very beginning the great corporate life of humanity which has made us what we are.
[1. ]The judge is Oliver Wendell Holmes. See American Banana Company v. United Fruit Company, 213 U.S. 347, 356 (1909). —C. J. R., Jr.