Page:Popular Science Monthly Volume 5.djvu/618

600 It will have been seen, in the above description of universal phenomena, that a purely abstract mode of treatment has been adopted. So far as universally confessed historical facts are presupposed, the truth of such facts is boldly assumed. But the main basis of the arguments are the elements of human nature itself, as they are written, not only in the venerable documents of ancient history, but on the face of every traveler's narrative, of every ancient body of laws, of every honored institution subsisting in the midst of the national life of the most advanced countries of Europe. It is obvious, then, that the generality and permanence of the momentous facts above described afford the groundwork of a great science, the Science of Law.

This science is distinguishable from the Science of Ethics, to which it may be coördinated, as well as from the Science of Politics, to which it is subordinated. The materials of the science are: a description of—1. The essential institutions of human society, by the use of which the objects of that society are carried out through the medium of government; 2. The nature, conditions, and limits of law as an expression of that side of governmental action which consists in the enumeration of general rules of action; 3. The accidents of law, such as language and interpretation, terminology, and devices for legislation.

When these materials are carefully scrutinized, it will be found that they are composed of elements as permanent and universal as the elements of human nature itself. All that is arbitrary and idiosyncratic for any particular state is banished from the inquiry. The surplus is as applicable to one state as to another; to the most immature system of law as to the most advanced; to an Eastern as to a Western community; to the modern as to the ancient world.

It is curious that this universality and permanence have been generally conceded to ethical truths, and have latterly been more and more freely conceded even to political phenomena, modified indefinitely, as these must needs be, by the excessive complexity of the conditions which constitute them. But the region of law has, up to a recent time, been held to be the natural home of caprice and irregularity. Some writers, indeed, such as Montesquieu and M. Charles Comte, have quoted the varying laws in the different countries of the world with almost an ironical gladness at their bizarre and party-colored appearance. It has been very generally held that governments have been created by violence or accident, and have reflected the vices of their origin in the reckless selfishness of their legislation. It has been said again and again that force is the origin of all social institutions, and that the modes of directing that force have been determined in every state by the chance breath of political caprice or passion. It has been forgotten, or has escaped notice, that the caprice has been accidental and the order is essential.

It will be noticed that there are two distinct conceptions of human