The mirror. (Stillwater, Minn.) 1894-1925, 1917-01-25
superior political authority whicl


to see that they are observed. The
history of law is therefore nothing
more nor less than an observation
of the fuctuating character of this
supreme law-giving authority,
from the earliest recorded times
when the paterfamilias or head Of
the family was the law-giver, hav-
ing even the power of life and
death over his immediate family,
until the present day when this
authority rests either, in the case
of a monarchy. with the king or
ruler, or in the case of a democra-
cy, with the people themselves. It
has always been found necessary
to have certain definitely known
rules of conduct to regulate the
daily relations of each member of
any certain social unit with the
other members. If this were not
so there would be endless friction
and discomfort, to say nothing of
the suffering that would naturally
be inflicted by the strong on the
weak. And so in the earliest stages
of society of which historians have
any knowledge, the family consti-
tuted the chief social unit and the
head of the family was the supreme
law -giver. This condition can be
traced down even into Roman his
tory, at which time the pater-
familias had what we would now
consider extraordinary powers.
The same fact is attested in many
nations at the present day, as for
example in the case of the Japan
ese. who hold their ancestors in
such high and holy esteem, for
this very reason.
In course of time, however, as
pointed out by Sir Henry Maine,
in his admirable book, Ancient
Law" as the peoples of the earth
increased, the size of the social
unit became enlarged and so we
find that for reasons of self. pro-
lection and self-preservation a
number of kindred families be-
came banded together into a tribe
and the patriarch of the tribe or
chief then became the law-giver.
Usually he was a person pre-emi-
nent amongst all the other men,
bers of the tribe, either for his
prowess with arms, his wisdom,
or for some such reason. In the
event of two members of tribe
having a dispute over a given mat
ter, it was to him that they ap-
pealed for an adjudication of their
differences. He it was who would
prescribe the areas within which
the respective members of the
tribe should feed their flocks.
And thus in perfectly natural
way we observe the evolution of
custom, the origin of all law, ac-
cording to a number of authorities.
Although we might take any one
of thousands of illustrations of the
evolution of customs and their
ripening into laws, let US select the
English law of primogeniture.
According to this law, the eldest
son always succeeds. on the death
of his father, to the position and
estates of the father. No doubt in
the earliest stages of society in
England it was customary for the
eldest son so to succeed, by reason
of his at least presumed superiority
in point of years, experience and
accomplishment. Originally this
same reason would extend to an
indefinite number of families and
would be faithfully followed by
each, until in the course of GEN.
turies the custom would be so
firmly rooted and so universally
observed that it would acquire all
the force and binding character of
a law of the land.
Thus. at the present day it is a
rule of English law that where no