sulted in the disruption of our country; the Union was maintained because there arose in our midst one truly representative figure that was able to combine force and conciliation as they were needed, to restore and to perpetuate the union of our states. After all, it is a question of opportunity.

But however that may be, in the last analysis Von Thering and Savigny agree. It is only a question how popular will shall be expressed. Thering himself says:

"Law is an uninterrupted labor, and not of the state power only, but of the entire people. The entire life of the law, embraced in one glance, presents us with the same spectacle of restless striving and working of a whole nation, afforded by its activity in the domain of economic and intellectual production".

Neither stands for the sanctity of the mere statute. Both recognize the controlling force of popular will.

In our country the same conflict has been variously presented. Many attempts to provide a final code have been made, usually with the result that the demand for amendments has been greater than before. The most notable contest, no doubt, was the one over the Field code, which James C. Carter successfully combated. On the one hand we heard the claim that essential law can be finally expressed; on the other, that any such attempt must result in paralysis of public will, and ultimately in popular defiance of the statute, because the growth of standards is irresistible, and no mere letter can withstand or finally express them. Granted that both these leaders may have gone to extremes, the arguments must leave us persuaded of a great danger in attempting to regulate and to control the conduct of the individual with too much detail. In the light of our own experience we must at least be impressed by the warning words of James C. Carter in a course of lectures prepared at a later day:

"There are a vast number of laws on the statute books of the several states which are never enforced, and generally for the reason that they are unacceptable to the people. There are great numbers of others, the enforcement of which, or attempt to enforce which, are productive of bribery, perjury, subornation of perjury, animosity and hate among citizens, useless expenditure, and many other public evils. All these are fruits of the common notion, to correct which but little effort is anywhere made, that a legislative enactment is necessarily a law, and will certainly bring about, or help to bring about, the good intended by it, whereas such an enactment, when never enforced, does not deserve the name of law at all, and when the attempted enforcement of it is productive of the mischiefs above mentioned, it is not so much law as it is tyranny".

It is the same idea which Burke had powerfully expressed:
"The laws reach but a very little way. Constitute
government how you please, infinitely the greater part
of it must depend upon the exercise of powers which are
left at large to the prudence and uprightness of min-
isters of state. Even all the use and potency of the laws
depend upon them. Without them your commonwealth
is little more than a scheme upon paper, and not a liv-
ing, active, effective organization."

As had also Von Holst when he wrote:

"The institutions of a country derive their vital energy exclusively from the feeling and thinking of its people. The more they get into discrepancy with these, the more they become impediments of life, instead of being its regulators and incentives".

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In other words, freedom is guaranteed not so much by the form of institutions as by the spirit of the people.

It is that thought which Lord Haldane so aptly put in his address:

"There is a more extensive system of guidance which regulates conduct and which differs from both in its character and sanction. It applies, like law, to all the members of a society alike, without distinction of persons. It resembles the morality of conscience in that it is enforced by no legal compulsion. In the English language we have no name for it, and this is unfortunate, for the lack of a distinctive name has occasioned confusion both of thought and of expression.. German writers have, however, marked out the system to which I refer and have given it the name of 'Sittlichkeit'.

And again:

""Sittlichkeit is the system of habitual or cus-
tomary conduct, ethical rather than legal, which em-
braces all those obligations of the citizen which it is 'bad
form' or 'not the thing to disregard. Indeed, regard
for these obligations is frequently enjoined merely by
the social penalty of being 'cut' or looked on askance.
And yet the system is so generally accepted and is held
in so high regard that no one can venture to disregard it
without in some way suffering at the hands of his neigh-
bors for so doing.
* * It is the instinctive sense

*

of what to do and what not to do in daily life and be-
havior that is the source of liberty and ease. And it is
this instinctive sense of obligation that is the chief foun-
dation of society. Its reality takes objective shape and
displays itself in family life and in our other civic and
social institutions. It is not limited to any one form,

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and it is capable of manifesting itself in new forms and
of developing and changing old forms. Indeed, the civic
community is more than a political fabric. It includes
all the social institutions in and by which the individual
life is influenced, such as are the family, the school, the
church, the legislature and the executive".

To demonstrate the truth of these observations, we need but reflect how completely popular will bends or even negatives apparently plain mandates of the law, old and new. Take the jury system. In the early days juries were composed of actual witnesses to the case to be enquired into. At a later stage in our country, juries were selected from among men who qualified by showing that they had not the intelligence or the interest to read about the common occurrences in their own community; and finally, today, we have reached what may be called a normal standard by assuming that a citizen may have impressions about a controversy, and yet be of sufficiently impartial mind to fairly pass upon the weight of evidence. Much of this has been accomplished without statute. The secrecy of the ballot has not suffered material statutory modification, but it is interesting to observe how its original purpose has been abandoned, and a new one has been substituted for it. The fear that the large body of a community-more especially wage earners-might be intimidated by proprietors on election day, has undergone a complete revolution, and today we find leaders of labor unions warning legislators that the ballot will be used against them unless their legislative conduct meets with the approval of those leaders. The secrecy of the ballot is availed of more especially by proprietors and their sympathizers; and sometimes by members of labor unions, to avoid the consequences of independent conduct which may be imposed upon them by their own fraternity. And, finally, the secrecy of the ballot is the last bulwark of those election frauds

with which our country has had so extensively to deal, and which, as means of political oppression, have no parallel.

When the duel was abolished no substitute was provided, and in search for a remedy, the damage suit was resorted to. Obviously, it could not be accepted as a complete remedy, because an injury to character and reputation can never be satisfied by material compensation.

As Von Ihering says:

"Our modern jurisprudence has entirely lost sight of the simple idea developed above by me, that there is question in an infringement of one's legal rights, not merely of a pecuniary value, but of the satisfaction of the wounded feeling of legal right. Its measure is the basest and emptiest materialism-money and nothing else".

The result is that the greatest injuries are not corrected at all, unless it be by a retaliation less dignified than the duel, prompted by a sense of unbearable personal wrong, and based upon the hope that a jury will invoke the higher law to override the statute.

A more modern illustration of evolution in conflict with the theory of the law is provided by the Interstate Commerce Commission. It was justified as the bearer of a delegated power from the legislative branch of the government. In composition and character it was really an executive body, and today, to all intents and purposes, it is governed by the rules, processes and methods of a judicial body.

How completely public sentiment can put at rest even a constitutional provision is aptly illustrated by the fate of the Amendments to the Constitution of the United States, which were adopted for the protection of the negro. In the South they have been defied, and in the North they are being ignored. This is not the place to discuss the right or the wisdom; but the process of