Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/76

 62 /. BEFORE THE NORMAN CONQUEST terrible powers with sacrifices and ceremonies ; but they will not always be appeased. There are terrors above him and around him. From this state of fear, custom is his first great deliverer. To speculate on the origin of custom is beyond our province ; we note only its effects. And these are manifest. What has been done once in safety, may possibly be done again. What has been done many times, is fairly sure to be safe. A new departure is full of dangers ; not only to the man who takes it, but to those with whom he lives, for the gods are apt to be indiscriminate in their anger. Custom is the one sure guide to Law ; custom is that part of Law which has been discovered. Hence the reverence of primitive societies for custom ; hence their terror of the innovator. Custom is the earliest known stage of Law; it is not enacted, nor even declared: it establishes itself, as the result of experience. But, in all these societies which, for want of a better term, we call " prtjgressive," there are two forces at work which tend to alter custom. As man's powers of reasoning and observation develope, he begins to doubt whether some of the usages which custom has established are, after all, quite so safe as he has thought. The custom of indiscriminate revenge is perceived to lead to the destruction of the community which practises it. The custom of indiscriminate slaughter of game is seen to lead to hunger and starvation. These results are, by man's growing intelligence, apprehended to be the judge- ment of the gods upon evil practices, no less than the thunder- storm and the earthquake. So the custom of indiscriminate revenge is modified into the blood feud, and, later, into the rule of compensation for injuries. The horde of hunters, living from hand to mouth, becomes the tribe of pastoralists, breeding and preserving their cattle and sheep ; and the notion of a permanent connection between the tribe and its cattle becomes slowly recognized. The rudimentary ideas of peace and property make their appearance. The other force at work is the correlative of this. If old customs are laid aside, new customs must be adopted. As the terror of innovation gradually subsides, as it is found that a new departure does not always call down the anger of the