direct purpose. The substratum of the law was custom, the formation of custom was almost certainly unconscious. Back of the additions and changes produced by judicial decisions were impulses and leanings of which the judges themselves were little conscious. Why did the judges become hostile to the feudal incidents of estate, to entails, to the unalienability of property and contracts? Doubtlessly it was an impulse felt by the whole community as well as by the judges, and they moved with the mass. Always and now the prevalent sentiments and desires of the people have moved the judge along with them. Decisions, in limits, register what is accomplished or desired, rather than deliberately formed purposes of change or reform. The judge who contrived common recoveries, or the fictions in ejectment, contrived things in themselves absurd, to accomplish what the exigencies of affairs had importunately demanded, and did not introduce self-conceived reforms.

The activity of legislatures in modern times has served to diffuse the idea that the making of law is conscious and on lines deliberately selected. Probably the best refutation of this is to be found in the series of addresses delivered by the Presidents of the American Bar Association. By the rule of the Association these addresses are an annual review of the

legislation of this country. The thing they have most impressed on me is the small effect schemes of reform have had on this legislation. Events, accidents, the protection of life and health, burdens actual or supposed, inconveniences, frictions, &c., make legislation. This Association has tried to have a uniform code, regulating commercial paper, adopted by the several states. Most of it is a codification of existing laws. Its principal effect will be to correct mistakes which have been made in some of the states. Everyone commends it; no one seriously opposed it. Yet after years we have only gotten fifteen states to adopt it. Compare this with the spread over the country of the laws giving greater freedom of divorce. These laws were opposed by a formidable public

opinion; but the importunacy of the unhappily married, prevailed.

Biological forms and functions are evolved from preexisting forms and functions by gradual and not by sudden changes. New forms and functions come only by the accumulation of small changes in old forms and functions.

The same is true of the law. Its history shows no cataclysm or revolutionary changes.

From the foundation of Rome to the reign of Justinian there is perfect continuity in the development of the Civil Law. The Twelve Tables were a mere codification of preexisting law. The displacement of the Republic by the Empire, neither checked nor changed the current of legal development. The barbaric irruption, possibly the greatest social cataclysm the world has seen, led to the development of feudalism. But the barbarians did not import feudalism, it was evolved on and out of the novel conditions.

Remnants of the Civil Law, greater or less in different localities, modified or controlled this evolution throughout the Middle Ages. Nor did the revival of the Civil Law, possibly the most potent factor in the Renaissance, immediately supplant feudalism. The process was very gradual.

The French Revolution, another social cataclysm, was a great cleaning out of feudal remnants, and possibly represents. as abrupt and extensive a change of law as ever occurred in so short a time; but the restoration of the monarchy was a partial reversion to it, and there are now survivals of feudalism in Continental jurisprudence.

The Common Law has a similar history. We can trace its evolution without a break from the German forests to England, and thence to the United States. The Teutons who came to England did not coalesce with the Britons. They displaced them and transplanted their social organization and laws. The Norman Conquest is generally said to have brought with it the feudal system. But conditions in England similar

to those on the Continent had already developed a system of organization and law not unlike feudalism. William the Conqueror, promised to retain the ancient laws of England, and the introduction of feudalism was the work of the lawyers, and at first affected the theory of the law rather than the substance. The decay of feudalism was as gradual as its rise, and even now many survivals of it are to be found in our lawssurvivals of its nomenclature, of its reasons and of its substantive rules.

On the settlement of the United States, our ancestors brought with them the Common Law of England as bodily as they did their personal belongings. Local and other circumstances in their new home made a part of that law inapplicable, and they thus escaped many of the vexatious legal problems of the parent country. But even this extensive and beneficent change serves to prove rather than disprove the continuity of legal evolution; for far the larger part of the law, which they did not bring with them, was moribund in its original habitat.

The Revolution made no interruption in legal growth, so little in fact, that some courts in the United States have held that decisions in England since the Revolution in cases of first impression, are authoritative here, on the theory that they are exfoliations of the common law which we brought over with us.

So much for the continuity of legal systems. But what is true of the system is true of its parts; what is true in the general is true in the particular. The same continuity appears in the separate departments and doctrines of the law. Possibly as great a change as has been made is the amalgamation of law and equity in England and some of the United States; but this change was prepared by giving an equitable character to certain proceedings at law, such as the common count for money had and received, motions to strike out judgments, etc., and by statutes allowing equitable defenses in actions at law. And when the amalgamation came it was completely bereft of its radical character by retaining the old method of trial in

equity cases, or where this was not done, by the courts tying up the juries with instructions.

If we look to remoter causes, biological evolution originates: in the want of adaptability in the forms and functions of organisms to conditions; and evolution is mere progress to greater adaptability. If the conditions remained stationary life might reach a state of stable equilibrium in perfect adjustment to conditions. But the movement is towards a moving goal.

To this the law presents striking analogies. At any one time its struggle and tendency are to the then existing conceptions of right, justice, reason and public policy. The standard fixed by these is its goal.

In primitive times the law itself was considered to embody all of what is right, just, reasonable and politic, and this remains in the case in non-progressive legal systems. In progressive systems, a standard outside is raised to which the law moves mostly by judicial decisions, using the devices of fictions and equity. The history of this extraneous standard in our system would begin with Greek philosophy, possibly with the Stoical doctrines of living according to nature and of a law of nature. In this doctrine, vague as it might be, were embodied the fundamental principles of morals and justice, and conceptions of simplicity, order and symmetry. Roman prætorian law is another independent source of the conception of a standard outside of and superior to the law. In the classic age of Roman jurisprudence these two coalesced; prætorian law then merged in the civil law proper, was elevated, classified and simplified by the doctrine of the law of nature, and the result was to make Roman law one of the grandest of all moral codes and one of the greatest products of the human intellect. The writings of the classic jurists constitute one of the noblest of litera

tures.

This standard, worked into the law, on the revival of the study of Roman law, diffused itself over the continent of

Europe and percolated into England by contacts with the Continent, or was bodily imported in the law of personal property and in equity, probate and admiralty, law.

Returning to the methods in which this growth takes place, we find some of them to be of great interest.

I need not dwell on the curious part which fictions and equity have had in this growth, as there is probably little to add to what Sir Henry Maine has said on this subject.

Some phases of this growth show, as is the case in the biological world, that the adaptation of the law to a state deemed just has only been reached after a number of tentative positions, which err first on one side and then on the other, like the motions of a pendulum, until the law finally settles, as the pendulum does, at a middle point.

Take as an illustration the law of mortgages. These took the form of estates on condition-probably at the time the only form they could take. On default the property passed absolutely to the mortgagee. This was unjust to the mortgagor; for the transaction was not designed to end in a sale, but as a security. Then equity interposed and gave the mortgagor the equity of redemption; that is, the right to redeem after and notwithstanding the default. This was unjust to the mortgagee, as the mortgagor might take his own time to apply to equity to redeem. Then equity restricted the right to redeem by decreeing it to be foreclosed if not exercised in a fixed time. This might be unjust to the mortgagor because it might end in the mortgagee taking the property, when the true purpose was that the mortgaged property should be a security for the debt. Then the legislature interposed and substituted for a strict foreclosure a foreclosure by sale. At last the law, after a long vibratory process, first inflicting wrong on one party and then on the other, settled down to a just position.

There is an exactly similar story connected with the condition in leases avoiding the term if the rent is not paid on rent day.