The state has in general two, and only two, articulate organs for law-making purposes— the legislature and the tribunals. The first organ makes new law ; the second attests and confirms old law, though under cover of doing so it introduces many new principles. Holland, Jur. 65. "The statute law is the fruit of the conscious power of society, while the unwritten and customary law is the prod uct of its effort. The former is indeed to a certain extent a creative work ; but, as we have already seen, the condition of its efficacy is that it must limit itself to the office of aiding and supplementing the un conscious development of the unwritten law." Address of James C. Carter, Rep. (1890) Am. Bar Ass'n. 236.
The earliest notion of law was not an enunciation of a principle but a judgment in a particular case. When pronounced in the early ages, by a king, it was assumed to be the result of direct divine inspiration. Aft erwards came the notion of a custom which a judgment affirms or punishes its breach. In the outset, however, the only authoritative statement of right and wrong is a judicial sentence rendered after the fact has occur red. It does not presuppose a law to have been violated, but is enacted for the first time by a higher form into the judge's mind at the moment of adjudication. Maine, Anc. Law (Dwight's ed.) pp. xv, 5. See PRECE DENT. As to Primitive Notions of Law, see 10 Am. L. Rev. 422.
The idea of laW has commonly been ana lyzed as composed of three elements: (1) a command of the lawgiver, which command must prescribe not a single act merely, but a series or class of acts; (2) an obligation im posed thereby on the citizen ; (3) a sanction threatened in the event of disobedience; Benth. Frag. on Gov. ; Austin, Prov. Jur. ; Maine, Anc. Law. Hamilton declared a sanction essential to the idea of law. Fed eralist, No. 15.
The latter clause of Blackstone's defini tion, supra, has been much criticised. Mr. Chitty modifies it to "commanding what shall be done or what shall not be done" ; 1 Chit ty's Bla. Com. 44, note ; and Mr. Stephen omits it in his definition. See supra. As to Law and Command, see 1 Law Mag. & Rev. N. s. 189.
These definitions, though more apt in reference to statutes and edicts than to the law in general, seem, even in reference to the former sort of law, to look rather at the usual form than the invariable essence of the thing. The principle of law, that a promise without a consideration is void, neither commands men to provide a consideration for every promise nor forbids them to promise, without con sideration, for this is lawful; for does it forbid them to fulfill such promises. It simply amounts to this, that if men choose to break such promises, society will not interfere to enforce them. And even many statutes have no form of a command or prohibition ; and, moreover, some that are such in form are not in reality. An enactment that no action shall he brought a simple contract after the lapse of six years from the time the cause of action accrued cannot aptly be said to command men to bring actions within six years, nor even, in fact, to forbid them to bring such actions after that time ; for it is still lawful to sue on an outlawed demand, and, if the defendant do not object, the piaintiff may succeed. It may he deemed a com mand in so far as it is a direction to the court to dismiss such actions ; but as a rule of civil conduct it amounts simply to this, that when an obligation has become stale to a certain degree, society will justify the debtor in repudiating it.
A work on legal history disclaims philo sophical analysis and definition of law, as belonging neither to the historical nor to the dogmatic science of law, but to the theo retical part of politics. Legal science is said
to be "not an ideal or ethical result of po litical analysis ; it is the actual result of facts of human nature and history." Accord ingly, "law may be taken for every purpose save that of strictly philosophical inquiry to be the sum of the rules administered by courts of justice." When, therefore, "a man is acquainted with the rules which the judges of the land will apply to any subject of dispute between citizens or to any act complained of as against the common weal, and is further acquainted with the manner in which the decisions of the common court can be enforced, he must be said to know the law to that extent." It is not necessary that he should "have opinions on the metaphysical analysis of laws or, legal duty in general, or the place of the topic in hand in a scientific arrangement of legal ideas." 1 Poll. & Maitl. Introd.
The difficulty of defining law is nowhere more clearly shown than in a work on Eng lish and American law, in which the leading definitions are enumerated and criticised. It is truly said that the expression "our law," adopted by the author, does not mean moral law, although rules regulating civil conduct may "be imported by the tribunals when nec essary for the purposes of the actual decision of causes, from the field of morality," when they become invested with the quality of law to the extent that they are recognized and en forced by the judges. The author referred to agrees with Mr. Justice Ma.rkby (Elem. of Law § 12) that no greater service was ren dered by Austin than the definition of the boundaries of jurisprudence which separate it from ethics or morality. This separation was too much overlooked by continental ju rists, with the result, particularly in Ger many, of merging "the scientific treatment of law in the larger region of ethical inquiry." (Amos, Science of Law ch. 1., ii., iii.) Nor does the law include the science of politics or government, which falls "within the do main of the statesman or legislator" (see al so Pollock, Hist. Science of Politics). So law and legislation are not synonymous; the latter is the usual and effective instrument for changing and amending the former or making additions to it. Leaving behind him what the law is hot and pausing before un dertaking to define what it is, the author re marks, "It requires a bolder man than I to propound a definition of the law of the land which is both comprehensive and accurate." He criticises the definitions of Blackstone, Markby, and Austin (supra) as being de fective in that the words "prescribed," "com mand," "addressed," "set," would require an elasticity not consonant with their general or appropriate use. These definitions are apt and accurate as describing the ordained or enacted law of a state, but would exclude a large body of what is, unquestionably, law. He adopts Holland's as sufficiently accurate for his purpose, "although with a conscious sense of its inadequacy." It answers the purpose because "law, as the lawyer has to deal with it, is concerned only with the le gal rights . . . coercion by the state is the essential quality of the law, distinguish ing it from morality or ethics." The conclu sion is, "If you ask me to define law, I can, speaking as a lawyer, do no better than to adopt Professor Holland's definition already given. If you ask me to enumerate all the ultimate sources whence legal rights and duties originate and how these are evolved, I hide my diminished head and confess my in ability to satisfactorily formulate an an swer." Dillon, Laws and Jur. Lect. I.