The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-12-28

The defendant pleads and proves, as
complete, or, at least, partial de
fense, that the milk was watered, and
the plaintiff seeks to avoid the effect
of the evidence by proving that milk
men generally thus adulteFate their
milk. This is the nature of the tran
saotion, and the parties, or their oOun-
sci, enter upon the argument before
the judge. They talk of principles
and rules. But these are nothing but
customs. The plaintiff tacitly relies
upon the rule or principle that pur-
chasers must pay for the goods they
buy. Without this he would have no
3Drinld fdcie case even. But why is
this principle? Plainly, for no other
reason than that IL is the universal
custom. Ii such were not the custom,
there would be no such principle. But
the defendant insists that the adulter-
alton Of the milk is not q custom, and
it is upon this that the real contest
turns. The plaintiff points to his
proof that milkmen generally are Civ
en- to- this practice. The defendant
criticises this evidence. He points
out that it does not appear that every
milkman waters his milk, and so that
the custom is not universal, even
among milkmen. He shows that
those who do do it, do it In secret, and
so the custom is not k1iotOa. He ar
CUES that the selling of milk is but al
instance of the larger.custom of sell
ing goods generally; and that the sell
ers of goods generally do not adulter-
ate their wares; and finally, he shows
that the adulteration OF milk, so far
as it is a custom at all, is the custom
of those who are denominated in So
ciety as rogues, whose practices are
wholly exceptional, and that the real
custom of society is TO condemn it.
There is no doubt of the existence OF
bad practices in society, no doubt
that the instances in which men act
contrary to custom are very manner
GUS. 1t is the very purpose of the
whole machinery of the law to repress
such practices and compel compliance
with the general custom. In the case,
however, of a custom admitted TO be
universal in any human society, no
doubt could be started concerning its
legality in the courts, nor concerning
its propriety in the forum of morals.
Neither law nor practical morality
can ever transcend universal Gus
tom. Polygamy may be wrong in
New York, but it is right among the
Turks. And in this we find further
cOrrOboration of the main proposition
=
law. The fountain cannot rise higher
than its source.
II the foregoing views are well
founded, am now justified in stating
the conclusions to which they lead.
These are that law is not a body of
| commands imposed upon society from
without, either by an individual SOW
ereign or superior, or by sovereign
body constituted of representatives of
OF oil
one of the elements of society SPRING
ing directly from habit and custom.
| 1t is therefore the unconscious creation
| of society, or in other words, a growth
For the most part it needs no inter
prefer or vindicate. The members OF
| society are familiar with its customs
| and follow Them and in following
| custom they follow the law. 1t is only
| for the exceptional instances that Judi
cial tribunals or Legislative enactments
| are needed. In those cases where the
| customs are doubtful, or conflicting,
| the expert is needed to ascertain or
| reconcile them, and hence the origin
| of the judicial establishment. But as
| the Judge is bound down strictly to
| the declaration of what actually ia,
| and must preserve a consistency in his
| declarations, occasions arise in which
| his functions are not adequate to social
1
! life new fields of action are constantly
| opening, and new instrnmentalities
| are required; and on the other hand.
| in other directions, decay and retro
| gression set in. New customs, new
modes of dealing, mus be contrived
| to meet the new exigeHcies, anu soci-
| ETY. by the unconscious eXertion of its
| ordinary forces proceeds 10 furnish IT.
| self with them. But this is a gradual
nj f..vxr r.Ff
| Guilty and loss. Another agency is
needed to supplement and assist the
work of society, AMI legislation
| springs into existeuCa 10 supply the
| want Legislation f. the product OF
an advanced civilization. Society by
a concerted and voluntary effort, but
| not seeking 10 revolutioniZe the past,
! or TO make wholly new creations,
! gives shape and direction 10 the new
customs struggling into existence, and
| accomplishes at one stroke what
would otherwise take years of toll.
II must be manifest that SO far as
| law proceeds from habits and customs
being merely the jural form I'm which
! they are exhibited, it cannot be inn
proved except by improvements in
habits and and customs. This meane
| that, TO this extent, law can be adj
vanced only by a general onward
movement in society. Neither the
lawyer nor the judge has any part in
this work except IA member OF the
community in common with his fell
low-citizens. Neither the judicial
tribunals nor tile legislature can pro.
perly attempt this task, FOR neither
| can create habits or customs. But
this reform is in every progressive So
| ciety constantly going on. Every all
vance in the arts OF life, every devel-
opment In educatOn every elevation
of the standard OF morality, every
amelioration in physical condition "a
at once reflected in the domain of the
law, and the Improvement here
| A. IL - 4.