for the sake of the prosperity of the com munity at large. But will he be permitted to do it, not for these reasons, but for the mere sake of driving a particular neighbor out of the neighborhood? It is true that the law on this subject is not yet developed and settled, nor will it ever be until it is so settled as to conform to the ordinary sense of justice. On a hill in the city of San Francisco there is a so-called " spite-wall" erected by a rich man, surrounding on three sides the lot of a poor owner who had refused to sell his lot to the rich man. The right so to erect and maintain that wall may exist under the crude principles of the an cient common law; and it certainly exists under the doctrine of Allen v. Flood. But it is none the less a stain upon the memory of the man who erected it, and upon the character of his children who maintain it, and upon the jurisprudence of the State of California, — a State in which the little f1nger of a rich man is stronger than the loins of the law. If the wall had been erected to defend the windows of its author from the prying curiosity of his neighbor, or for any other purpose tending to promote the beneficial enjoyment by him of his own property, and not merely to des troy the property of the other proprietor or to prevent him from enjoying it, — then its erection would have been permissible under sound theories of law and right. Nor can the theories of the civil law be so entirely disjoined from those of the criminal law as the doctrine of this case requires. A man may not wantonly set fire to his neighbor's house without incurring the penalty of fel ony; but he may burn it down to arrest the spread of a conflagration, in conformity with the principle sains populi suprema lex, with out incurring even a civil liability. It is treason to give aid and comfort to the pub lic enemy. But how often is it innocently done, or done under compulsion? In both cases it is done without the mens rea, the criminal motive, which, in the criminal law
is everything; and the actor is innocent, and the jury is allowed so to say. It is only in very early and crude stages of hu man development that the act is punished without any regard to the motive. What is here said is not intended to be said in general disparagement of the law. It is not to be inferred from all this that the law is, on the whole, flighty, irregular, and uncertain. On the contrary, a general pur pose of justice runs through it and inheres in it, which is the same from age to age, modified merely to adjust itself to the changing conditions of mankind. The law might almost be said to be "The ebb and flow of each receding age, The everlasting to-be, which hath been." It moves forward with a progressive de velopment, — not with a motion which is absolutely regular, not without undula tions, not without occasional retrocessions, not without occasional spasmodic move ments backward or forward, — but, on the whole, with a steady progression and beneficial evolution. New principles are formulated, but are found not to work well, and are abandoned, while the general sym metry, the eternal oneness of the law re mains the same. Nor is it otherwise with human fashions. The " plug " or " keg " hat worn by the gen tleman, but derided by the rustic, is an old headcovering, though it changes slightly from year to year, under a policy of manu facturers and merchants, devised to promote their own profit. The female figures given in " l'algrave's History of the Anglo-Saxons," taken from the sculptured walls of ancient ca thedrals, show that our remote maternal an cestors dressed very much as their modern daughters do. In every historic age, so far as I am aware, women have worn their hair long, and in a remote age it was regarded as a shame for them to wear it short.1 The female bodies that were exhumed at Pompeii 1 I Cor., ch. xi., v. 5 to 15.
