Page:Yale Law Journal - Volume 27.pdf/38

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14

YALE LAW JOURNAL

Massachusetts furnishes a good illustration of what I have in mind. The early settlers hated English law and everything that had to do with it with a hate that was both deep and cordial; but they were Englishmen with English ideals, and notwithstanding they adopted the law of Moses as their law, the form it assumed in their hands was that of the law of England, except in so far as religious matters were concerned. The reason for this is obvious: English law was, and the divine law was not, adapted to the industrial conditions that prevailed in Massachusetts. In other words, English law was adapted to their needs, and it was as natural for them to adopt it as their law as it was for them to use the English language.

Since a law is made by a community to effectuate its ideals, the problem for every community is, always has been and always will be to determine just what limitations it should impose on individual freedom of action to promote its well-being; and it may be useful to see how our Celtic-Anglo-Saxon ancestors solved that problem. History shows that they were accustomed to administer all their public affairs in local assemblies in many ways like a New England town meeting except that these assemblies exercised judicial as well as legislative and administrative functions.[1] When such an assembly was exercising its judicial functions, the test it employed to determine the legality of the act complained of was to inquire whether it was customary. That, as I shall attempt to show, was but another. way of inquiring whether it was reasonable, or one of which they approved; for the issue of its legality was not decided by written rules, but by a vote of a majority of the suitors—or as we should say, those qualified to vote in that precinct—present and voting.

It is common knowledge that we are apt to think of the things we approve as customary. In short, with most men, inquiring whether an act is customary is but another way of inquiring whether it meets with their approval, and that was more nearly true a thousand years ago than it is to-day.

The test, therefore, that our ancestors in fact applied to determine the legality of an act was to inquire whether it was reasonable. In other words, about the only limitation our Celtic-Ahglo-Saxon ancestors imposed on individual freedom of action was that of not doing anything that would injure or

  1. Thayer, Evidence (1898) 8.