king. Its influence pervades all classes, reaches every dwelling, and, in some degree, controls all action. Its throne may be disturbed, but it is sure to reassert its authority, and reduce to obedience its most rebellious subjects. It is a power eminently conservative, fearful of innovation, steadfastly arrayed against change. In this land, as in all others, there exists a multitude of social usages, the day of the birth of which no man can tell. They have stolen upon us silently and unnoticed. They have made themselves our constant companions, entered into our daily life, taken part in all our concerns. They have identified themselves with all our interests. They are themselves our interests. We should cease to be what we are without them, and their sudden extinction would be to us like translation to another world. They constitute a power which no legislator may ignore, a power ruling within as well as around him. It would be unaccountable, indeed, if legislation, so popular as ours, so direct and immediate an expression of public sentiment, should escape the influence of these usages. Whatever peculiarities they exhibit must find their way into the written law of the land.

Our present purpose does not embrace an inquiry into the reasons why that, to which we have been long accustomed, should rule as an ever-present power within us. We aim only at presenting the fact, and directing attention to the intensity and universality of this power. The usages of society are its habits, and the same reason which accounts for the control of habit over the man, explains the power of usage over a community.

To obtain some adequate appreciation of the unavoidable influence which the established usages of society exert over popular legislation, we need but observe how great is the power of that which is usual over the individual man. It not only guides his conduct, but it lies at the foundation of his faith. Such is our mental constitution that frequent repetition of an act or event enforces belief in its continued recurrence. In an extended sense, this is a universal truth, applicable alike to the facts of physical and intellectual nature. With all of us, the common reason for belief, is the knowledge that what we rely upon as

a fact is in correspondence with what has previously existed. We know that a heavy body will fall toward the center of the earth, if unsupported; we believe that fire will burn, that heat will change ice to water, but we believe only because observation has taught us that such have been their habits heretofore. The same is true in regard to all expected physical phenomena. It is equally true in regard to mental and moral action. Of this the most simple illustrations may be given. We believe that memory will preserve to us the scenes of this day-that the power of reasoning, once acquired, will continue that attention is essential to perfect understanding, but our belief is only another name for a conviction that that which hath been is that which shall be. So in morals, no one doubts that the tendency of a life of indolence and vice is to suffering, or that a course of virtuous action is promotive of happiness, and this undoubting conviction is but a deduction from repeated results of past observation. So instinctive is the belief which is caused by that which is usual, or customary, that we have learned to denominate usages, laws. Thus we speak of the laws of being, of motion and of mind, and mean nothing more than their usages. It would be a curious speculation to enquire how far it would be possible for human reasoning to exist, were it not for this constitutional tendency to yield to that which is usual, the assent of our understanding. Certain it is that without it the limits of knowledge would be narrow indeed, for even our faith in human testimony has no other foundation. Our experience has taught us that reliance may generally be placed upon assertions of fact by our fellow-men. We therefore repose confidence in them. There is more truth than falsehood in the world. We rest upon this conviction in our individual life, and as members of the community. Upon the same principle human testimony is daily received in our courts of law as a basis for the vindication of social rights, and the repression and punishment of wrongs. So, too, we judge that certain motives will influence to certain conduct, or the converse, that a given line of conduct indicates certain motives. We do not desire to be understood as asserting that the conclu

sions we draw are always right conclusions; that the faith we adopt is a true faith. I speak now only of the fact that from such evidence we commonly deduce belief-and that as regards most of our convictions, especially those which have a practical influence upon life, we can give no other reason for the faith which is in us than that such has been the custom, the conduct, or the belief of others.

And what we notice in ourselves, we look for in our fellowmen. The evidence that controls our understanding, we regard as sufficient to control theirs, even in matters of religious faith. We anticipate that the son of a Buddhist will worship Budh-that one born and educated in Rome will be a papist -that the child of New England parents, reared in the family circle, will be a protestant, not because either has ever examined the evidences which support his faith, but because the usages to which he has been accustomed tend to impose belief. We may call such faith prejudice. It is so, but it is an early judgment adapted to the constitution of our nature. It is a part of man himself. Of this "vis consuetudinis" the legislative reformer in the faith, the morals or the material interests of the community must take account. He must admit that faith thus founded is not entirely without reason, and must anticipate the resistance that reliance upon evidence, the nature of which, in most things, all men regard as satisfactory, is calculated to present. Laws are unmeaning, if not mischievous, which are not adapted to the character and common habits of those intended to be governed by them, and when those common habits of thought, of reasoning, and of belief are carried into a legislative body, they must give tone to its action.

While such is the power of usage upon the individual man, it is not less controlling over men in a state of municipal society, and it is even more potential over their legislation. We have nothing now to say of its effect upon national character. It is doubtless true of a nation, as it is of every man, that its customs are true exponents of its character, and that they establish its reputation among mankind. But they do more. They give to it its laws. The great basis upon which the

rules of civil conduct of any people rest, is the social usages of that people.

In vain would be a search through the moldering records of the past, for any royal decree or for any parliamentary enactment, securing the relative rights which we now enjoy unquestioned, or enforcing the social obligations which we all acknowledge. Some of the domestic relations, indeed, are founded in nature, and some are of Divine appointment, but most of the rights and duties which grow out of them are such as usage has enjoined. Political privileges are the creatures of written law-most civil rights, however, have had a different origin. The general principles which regulate the ownership of property, the privileges attached to ownership-the evidence upon which title to it depends, the securities which are thrown around its enjoyment, as well as those which environ the person and reputation, are not the dictates of superior power, but the commands of common assent,-the long practised usages which men have tacitly adopted. Statute law may have recognized them, and may have added new sanctions, but it never created them. No human wisdom has ever yet been found adequate to devise a system of rules sufficient for the government of the most simple minded people. No code of laws has ever been framed by a legislature which answered all the necessities of social organization. Not a tithe of our laws had their origin in statutory enactment. They have come down to us from by-gone times, authority only, because they were the practised customs of our fathers. Even our organic laws our national and state constitutions and many of our statutory enactments-are but reproductions of older usages, with which their framers were familiar. The British Parliament, as has been seen, was the model after which the provincial, and subsequently the state legislatures, were formed. The concurrent assent of two deliberative bodies, the check upon their action by the chief executive, and most of the forms of legislation, were borrowed. The construction of the judiciary departments, the general distribution of powers between the executive, legislative and judiciary, and very many of the provisions of our bills of rights, are but written

recognitions of what had been the practised usages of our ancestors through many generations-many of them usages so old that no history has preserved the date of their birth. Written constitutions are perhaps the most remarkable illustrations of the controlling power which custom exerts over men as members of a political community. They show that it governs alike theories and practice. Such instruments look to the future more than to the present. Though intended to work practical results, they are in themselves theoretical,plans or schemes for anticipated social action. In them, if anywhere, we might look for a release from the behests of usage, and for a free rein given to unrestrained speculation. But such an expectation finds no fulfillment. Even here the usages of the time, the customs of civil society, assert their sway, and demonstrate the universality of their influence. There have been some notable instances of attempts to frame the organic law of a civil community, in disregard of popular usages, all of which resulted in failure. The constitution which John Locke formed for the province of South Carolina was one. If any theorist could have succeeded in such an undertaking, it would seem that Locke should not have failed. Deeply read, as he was, in the mysteries of the human mind, an ardent lover of his race, with the history and experience of the civilized world spread out before him, unembarrassed by the dissentient opinions of any associate, he had apparently every requisite for the work which he undertook to perform. But in its execution he omitted one element, the absence of which admits of no compensation. The constitution which he framed, though beautiful in theory, proved unfitted for those for whom it was designed. It ignored their habits of thought and of life, made no account of their social usages, and consequently was found impracticable in operation. It was laid aside. Plato's theory of a republic would doubtless have shared the same fate, had it been applied to the government of any nation existing in his age.

In the popular mind of most nations a distinction seems to have been made between certain usages regarded as constitutional, and others which regulate only common intercourse. The former have been considered as inseparable from national