Hence we conclude that the indeterminate character of their sources and the vagueness of their penalties, which avail broadly to separate the laws of opinion or society from positive law, are insufficient to exclude them from the category of commands, or to render them incapable of generating a species of true rights that are usually designated as moral rights.

VII.

We have now completed our task of comparing and contrasting with other kinds of law the law of the lawyer and of the tribunal, or positive law, as defined by the English school of analytical jurisprudence. But, inasmuch as the doctrines of this school have recently been the object of a trenchant criticism that has considerably weakened the authority once accorded them, the value of the foregoing discussion will perhaps be increased by a brief justification of our initial assumption that all positive law is a command of the sovereign, i.e., the regular, established ruling element of the state. It will doubtless be admitted that, in effect, this undertaking will be accomplished when it is shown that such definition is fairly applicable to that portion of positive law which has been molded upon preexisting custom and is non-statutory, or, in other words, to "customary law."

There is a general consensus of opinion that no rules for human conduct are positive law-law par excellence — unless they possess a quality of necessity, or an obliging power derived from a coercing activity that is proper to political organization. Thus, Kant seems to teach that even the juridical rules of pure reason are inchoate or "provisory" merely, until they are realized through a civil union as public compulsory laws.1 Law [says Falck], defined in the objective or universal sense of the term, designates the body of rules (normae) that stand under the protection of the state, and they are at once distinguished in principle from other rules of conduct that stand either under merely ethical laws, or that may be observed from considerations of prudence, as well as from usages which are not obligatory.2

1 See Philosophy of Law (trans. by Hastie), pp. 76–79, 164–165.

2 Outlines of Jurisprudence (trans. by Hastie), p. 184.

And Ihering asserts, with still greater emphasis, that

only those rules set up by the community deserve the name of law which have force, or since, as we have seen, the state alone possesses the monopoly of force, which have the power of the state behind them.1

Even Puchta, who belongs to the class of jurists that go to the extreme in separating from the conception of law the notions of political organization and compulsion,2 lays down that

right is embodied in rules of action; it enjoins that something be done or left undone. The consciousness of right is, therefore, at the same time the will that what is conformable to right shall become a fact. . . . This will, however, needs an organ in order to be carried out in fact. And this organ in which the common will is embodied, and by which it receives its realization, is the power of government, through whose existence the people becomes a civil commonwealth or state."

Now, it is just because customary law consists of rules that are protected, i. e., applied and enforced by the sovereign of the state, or the sovereign's judicial and executive mandatories, and draws from this fact a measure, at least, of its necessity or obliging power, that such law falls under the category of law positive. To illustrate: The treatises of the "early English prudentes," headed by Glanville, are books of positive law, for the reason that they contain substantive rules and forms of practice that actually obtained under the royal judiciary system, "and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles." On the other hand, why do we deny the name of positive law to such important customary rules as the following: The King of

"5

1 Der Zweck im Recht, p. 318, quoted by Lightwood, Nature of Pos. Law, p. 319. 2 See Savigny, System, § 52; Windscheid, Pandektenrecht, § 37; Trendelenburg, Naturrecht, p. 90.

8 Outlines of Jurisprudence (trans. by Hastie), p. 33.

See Clark, Practical Jurisprudence, pt. ii, ch. x; Glanville, Tractatus de Legibus, prol.; Bracton, De Legibus, etc., lib. i, pref. 5 Blackstone, Commentaries, Int. § 3, p. 73.

England must assent to any bill passed by the two houses of Parliament; British ministers must resign when they have ceased to command the confidence of the House of Commons; 1 no President of the United States shall be reëlected more than once; presidential electors shall not really elect? Simply because these conventions are not under the immediate or mediate protection of the sovereign power as such, and no judicial or executive agency would take notice of their violation.

But, systematically to administer a rule by applying it and punishing infractions of it, is to command it. Thereby the desire for its observance is signified by a very "sufficient sign of the will," and the presence of the power and purpose of constraining obedience to it is put quite beyond doubt. "In principle," says Clark, "I agree with Austin that all law administered by the magistrates of a community has necessarily an imperative character." 3

The difficulty in recognizing that "common law" (whether suggested by customary rules, i. e., "the law of opinion," by the civil and canon law, or by pure considerations of utility) is virtually a body of commands emanating from political authority, seems chiefly due to the remarkable way in which judges, aided by lawyers, have veiled their legislative activity under forms of words expressive only of the application of existent positive law. The marvel of the fiction is, not that it has misled the world at large, but that it has availed to hoodwink the professional legists themselves, the very class who originated and have since sedulously maintained it.

ASHEVILLE, N. C.

CHARLES M. PLATT.

1 Regarding the whole mass of these constitutional understandings from a strictly legal standpoint, De Tocqueville declared that "the English constitution has no real existence" (elle n'existe point). Euvres Complètes, I, 166, 167.

2 See Hobbes's definition of "civil law," Leviathan (Morley's Univ. Lib.), ch. xxvi, p. 123.

8 Clark, Practical Jurisprudence, p. 168.

As to the "suggesting causes" of judiciary law, see Austin, Jurisprudence, vol. ii, pp. 655, 656.

5 See Maine, Ancient Law (3d Am. ed.), pp. 29-32.

THE REVOLT AGAINST FEUDALISM IN

ENGLAND.

HE existing electoral franchise in England is the outcome

THE

of three great measures of Parliamentary reform. The first of these Reform Acts, that of 1832, introduced uniformity into the electoral system, and gave votes to the middle classes. Hitherto there had been nothing approaching uniformity. The large cities in the North of England and in the Midland counties which had grown up with the era of manufacturing, were inadequately represented or not represented at all in the House of Commons. Of the old boroughs which were represented, in some the electors were corrupt in the mass, in others the elections were controlled by the government, and others still were nomination or pocket boroughs in the hands of the large landowners, who, in addition to dominating these rotten boroughs, largely influenced the election of members for the county divisions in which their estates were situated. Until after 1832, the House of Commons was therefore practically chosen by the landed aristocracy. The second of the Reform Acts was passed in 1867. It bestowed the franchise on householders in the boroughs, thus enfranchising the working classes in all the large towns. The last act of the series, that of 1884, enfranchised all the small householders in the counties - the working classes in the rural districts, whose political position had been left untouched by the acts of 1832 and 1867.

Each of these Parliamentary Reform Acts was followed by a quickening of political life in the country, and by measures in Parliament which are landmarks in English history. After the act of 1832 came the new Poor Law, the Municipal Corporations Act and, a little later on, the repeal of the Corn Laws. The first of these measures closed the dismal period in Poor Law history which extended from 1760 to 1834, and culminated in the terrible and wide-spread scandals exposed by the royal

commission of 1833. Under the act of 1834 the country was divided into union districts, and a system of poor relief was established which is practically uniform all over the country. It is administered by guardians, elected by the people who pay poor rate, and is checked and controlled by a powerful government department in London, which has had several titles since the act of 1834, but which since the early seventies has been known as the Local Government Board. The second of the great measures following the Reform Act of 1832, the Municipal Corporations Act of 1835, put an end to scandals in municipal administration which were almost on a par with those that had been connected with Parliamentary elections prior to 1832. This is the act under which all the incorporated towns in England now enjoy their extensive rights and privileges.

After the Reform Act of 1867, and before that of 1884, came the acts which established the present system of elementary education in England, several measures for the relief of Nonconformists, the abolition of purchase in the army, the reform of the civil service, and two Land Acts for Ireland.

Less than nine years have elapsed since the first general election after the Parliamentary Reform Act of 1884. Since that election, when for the first time the working class in the rural and mining districts went to the polls to vote for Parliamentary candidates, Ireland has largely monopolized the mind of the country and the time of Parliament. But notwithstanding the prominence of the Irish question and the extent to which it has harassed and embarrassed both of the old political parties, there has been in the country the same quickening of political life as followed the acts of 1832 and 1867; and while the County Government Act of 1888 and the Free Education Act of 1891 are the only great measures as yet on the statute book to mark this quickening, the direction in which the new activity is tending is everywhere apparent.

Much of this political activity is against what remains of the old feudalism, or, to put it more definitely, the power of the landlord in county, municipal and national government. This