is to do whatever his client ought to do, so far as he can form an opinion. The object is not simply in criminal cases to prove or disprove guilt, but to prove or disprove the propriety of conviction on the eyidence submitted by the prosecuting officer. Whether the criminal, if conscious of guilt, ought not to confess it in open court as a matter of duty, is not a jural but a moral question. The jural point is to find out the truth according to the evidence. In all cases the advocate is bound to abstain from offering any evidence which he knows to be false. But he may, even if he knows from his client that he is guilty, seek to prove that according to the evidence he cannot legally be shown to be guilty, just as the client himself, if arguing his own case, might do according to the rules of trial.

What evidence ought to be admitted in courts, and whether for special reasons certain persons, sustaining a close relation to an accused person, such as a wife, a legal counsellor, or a spiritual adviser, ought not to be called on to bear witness in his case, are matters that do not concern us here. There is a tendency since Bentham's time to introduce a wider range of proof than was before allowed, to receive the testimony of the parties themselves and of others before excluded. We may thus be approaching a time, when, if a man refuses to testify in his own case, it will be presumptive proof that the case is a bad one; as, when torture of slaves was allowed, to refuse to subject one's own slave to torture when challenged by an adversary, or to admit the adversary's slave, was a point that would be pressed before the judges* by the opposing party.

*This was actually pressed at Athens, and in general the testimony of slaves there was more valued than that of free men, which shows the untrustworthiness of a free Greek. Comp. Hudtwalcker von d. Diaeteten, p. 51, and the passages there cited in the notes. Demosth. c. Onet., i., p. 874, is especially in point. On the other hand, the fact that slaves who could not hold out against pain would often testify what they thought would free them from torture soonest, was urged against witnesses of this sort. Arist. Rhet. ad Alex., chap. xvi., 2.

CHAPTER X.

INSTITUTIONS, LOCAL GOVERNMENT, SELF-GOVERNMENT.

tions.

$234.

THE Common law of England has been called lex non scripta Law and institu- as distinguished from the lex scripta, or statute law. When we speak, however, of unwritten law, it does not of course follow from this language, that every law included in the list of laws so named, if always unwritten, did not originate in some will of a tribe or community, expressed at some definite time and then imposing an obligation on the people, or possibly in some will of a sovereign imposing obligation on his subjects. Such statutes or laws, formally passed, may have been trusted to the memory of judges without being reduced to writing, and they, as judges now do, may have applied them or the principle contained in them to analogous cases. Or the principle of the law in one country may have been adopted without legislation in another. In this way a law grew, as it does now, and the best things in it may have come from just or equitable decisions after the law was once enacted, without any knowledge or memory on the part of the people of this extended signification. Law grew, just as words grow, while a nation continues to live.

But if a lex non scripta can be supposed to have in part such a positive origin, we cannot justly say that all law so originated. The farther back we run into the antiquities of nations, we find laws made to a less and less degree. In small primitive societies this function of law-making was of little use, because relations were quite fixed, and progress slow. Nor can we suppose that legislative foresight, when it

called forth laws, anticipated the creeping in of new usages and customs. It rather recognized and sanctioned customs which already existed. There must have been customs to a great extent which communities admitted, which guided the decisions of judges, and were widened in their application; until at length codes, or collections of usages that all acknowledged to have a sort of binding force, expressed in clearer terms what a large tribe or community admitted to have the force of law, or modified that which had become questionable, and added some new matter.

If we can conceive of communities, chiefly of primeval ones, as thus passing from customs to unwritten law, from unwritten to written, we may form, perhaps, a juster conception of what are called institutions. How are these related to laws? How do they differ from one another in the course of time? How do nations differ from one another in the capacity to form them? What are the different kinds of institutions ?

If customs grow up in early societies until they have the force of law, this is a kind of unconscious process, in the same way as the steps towards the invention of machines which help the arm and leg are at first unconscious, that is, without previous plan. The customs will vary in different communities, because man himself varies, until races, dialects, national feelings are produced by such tendencies to variety, and in their turn add to the variety. The laws or customs that thus arise express the relations between men in a community to one another and towards the community as a whole. But law may also, as it works in modern states, establish something positive, for instance may found a bank, charter a city, set up a police system, create a bench of judges. The law gives rise to these forms of human activities in definite spheres and we call them institutions, as being set up or established. Thus in the word we express the fact that while law in itself has no power to act itself out or by its inward energy to control life in the state, it can impart an independent, permanent energy to something else in the state; it can

create, but not execute; give birth, and life, but not properly of itself live.

An institution, then, depends on the will or consent of the community for its existence, but yet has a lasting independent life of its own; it is capable of growth and expansion; if national, it may perhaps acquire such a separate power of its own that law, that even force, cannot easily overthrow it.

portance.

In this way we may define an institution as looked at in an Their political image when law, in the sense of positive enactment, controls the whole political life of a nation. But an institution of the early times bore just the resemblance to one of the present age, which custom before positive law bore to positive law. It grew up as personal habits grow up, without any distinct intention on the part of the individual, or as usages grow up in a community without the aim of making innovations. The habit, the usage, acquired a sway over the individual or in the society, before it was noticed and recognized. And it answered to a political or social want to such a degree that it entered into the thoughts and habits of a people, it became easier for them to discharge political duties in this way than in any other, it thus was perpetuated without any conscious attempt to perpetuate it; nay, if perchance attacked, it would rally multitudes in its defence, as a national tune or dish which a tyrant strove to prohibit would seem very much more precious than before, more precious than many things of far greater importance.

The growth of such institutions is one of their most remarkable qualities. In a later age there is very little Their growth. of this characteristic pertaining to institutions which are founded entirely by positive law, without being copies of antique ones. They stay where they are put, they do not spread their roots around by an inward life of their own, but are as closely confined within their own limits as are laws themselves apart from the expansive power of judicial precedents. The institutions of early times have no such fetters on them, but form themselves into something larger, and

until they reach a certain maturity take a continually deeper hold on the national life and feelings. They have, then, these two qualities, the first, that of growth by the force of national habit, the second, that of subsequent expansion, accommodation, and playing in with other national institutions of similar origin. During all this time law accepts of them, but, as it did not originate, so it does not modify them. At length comes a time, when, either from a change of national feeling, or from the love of system seen in codification, or from change of political institutions, they are altered and accommodated to the rest of the political fabric. It may be, also, that, at this advanced period of a nation's life, many new institutions somewhat similar are created by law, which may have the same self-subsistent, permanent life as the old ones. This depends on the fact whether a given nation is true to its earlier habits or has lost them. In general it seems to take a long time before the habits of institutional nations, as Dr. Lieber calls them, can be forgotten or become inoperative. No new institutions are then found growing up in such countries, but the old ones, remodelled or reproduced with some new principles, may still continue.

The nations and races which have been most remarkable for their institutional character are, Rome in its earlier days, before law stiffened and froze national habits, England, with some other portions of the Germanic race, India in early times, while the Celtic and Sclavonic races in the political sphere have had less of this character. Among the Greeks, Athens in its later history shows little of it, and the same is true of the Ionic race in general; but the Dorians, especially Sparta, had the opposite character. Among the eras when the institutional spirit had been most active within the historic period, the middle ages all over western Europe deserve especial mention. It was then, in a new form of society with considerable vital force, that small territories were left to themselves, without much intercourse with each other, to lay the foundations of a new social and religious society on the