Page:The Green Bag (1889–1914), Volume 12.pdf/165

 142

PHILOSOPHY OF LAW. BY .R. WAITK JOSLYN, LL.M. TT is the purpose of this article to discuss -*- the origin and nature of laws; to con sider what is good law, and to review. the function of statesmen and lawyers. In discovering the origin of and defining what law is, let us consider the United States inhabited by but three men. They have never seen each other. One lives where San Francisco now is; one at Chi cago; one at New York. Each thinks he owns the entire country, for there is none to dispute his sway. Each does whatever he desires. He may do anything no matter how absurd. He is " monarch of all he surveys." He may slay any animal; hew down any forest; build any highway; do anything that his most tyrannical or whim sical fancy may suggest. The ocean, the land, the heavens, he thinks are his. This is free, natural liberty of person and prop erty. There is no restraint or restriction upon them. No opposition to their desires. Now imagine Chicago to go West to Omaha and San Francisco to come east to Omaha. They meet for the first time. Each says to himself who is this being? What is he doing on my property? I will put him off or make a slave of him. A struggle follows : neither is overcome, but both exhausted. Pride gives place to rea son, and since neither can enslave the other, they begin to think there may be some mis take. Each may have right. They begin to argue. Here is the beginning of Rea son's rule and the suppression of Dictation. They find that each has rights to respect and that each does not own the entire coun try, as he had ignorantly concluded. They finally determine upon a compromise. They agree to divide the land, Chicago taking east of Omaha, San Francisco taking land west of Omaha. They agree to restrict

themselves. Chicago says, in order to avoid trouble in future and for the sake of peace, "I will restrain myself from going on your land." And San Francisco does the same. The basis of this agreement is the fact that the force of Chicago is equal to that of San Francisco. If Chicago could suppress San Francisco, he would dictate to San Francisco. That would be a condition similar to monarchical government where the stronger makes the laws because he has the advantage of the weaker, but where each is equally strong then both together make the laws. The restriction then that Chicago and San Francisco agreed to would be a law — it would be the first law. Law then, made by equals, is two things: ist, An agreement, 2d, A restriction upon natural liberty. So a law is nothing more than an agree ment between two or more persons to re strict their actions in some direction. So in a nation such as the United States where all citizens are equals, a law must be no more 'than an agreement between the different citizens of the nation, to restrict their actions in certain directions in order that peace may prevail in society. Imagine sometime after the struggle be tween Chicago and San Francisco that Chi cago met New York. A struggle followed, neither overcoming the other. So Chicago said, " Let us go to Omaha and submit this question to San Francisco." The result was that the three men agree as follows : — "We declare that neither of us shall go upon the lands of the other nor in any way interfere with the person of each other. If one of us breaks this agreement or law then the other two shall compel him to observe it, for we make it in order to have peace among us. This was the rule of the major