of the different Rights as they sprang up one after another in ordinary life, understanding by this term claims to the enjoyment of such advantages as may be produced by our own use of material things or by the acts of others. These Rights are originally confined to property, and here they rest upon the personal prowess or excellence of the individual. This, however, is exerted over the members of another tribe. There is, as yet, no competition among those of the same tribe, and only that which is captured from an enemy belongs to the capturer. Then ensues a division of land taken from the and each man, enemy, though his portion is allotted to him by general consent, feels, nevertheless, that he holds it as the reward of his valour. The same idea still prevails when the communal land is divided, though the dependence of Rights upon the general will is now coming into existence. Rights, however, spring originally from the subjective will and personal force of the individual. This, however, does not imply indiscriminate violence. The force is directed against outsiders and approves itself to the conscience of the plunderer and his companions. Then come Rights of another kind. Men enter into engagements with one another, and thus we have Rights in personam, which spring not from the power of one person but from the free consent of two. So far we have Rights existing in the simplest and in perhaps an ideal state. They require no regulation, for they are perfectly definite. They require no enforcement, for the approval of the community is their safeguard.

But this state of certainty does not last. Some

Rights are doubtful in their origin, and a decision must be given between rival claimants. Others are transmitted from one to another, and as the Rights in the new owners depend no longer upon their own personal excellence, a new criterion has to be discovered. Hence Rights have not been in existence long before they require regulation, a process, however, which is at first a peaceful one. Rights are still respected; all that the parties want is to know what they are. Hence the rise of the system of arbitration. A further step is taken when the increase of the tribe loosens the bonds which have hitherto preserved harmony, and Rights no longer meet with general respect for their own sake. Hereupon the State interferes. The system of arbitration is made compulsory, and the awards of the arbitrators are carried out if necessary by force. The discipline that is so healthful for the army is imported also into civil life. Hence in this stage of Law, we have the origin, the regulation, and the enforcement of private Rights. Of the origin of Rights I have said sufficient. They rise in the personal excellence of the individual, or in the free consent of two individuals. Of their regulation I shall speak more at length further on. Upon their enforcement I have still a few remarks to add. If we may make use of an ingenious surmise as to the origin of the five witnesses in the early form of mancipation, we shall see that the Romans grasped at the very beginning the true nature of State interference.1 The State cannot limit itself to the mere suppression of

1 Cf. Early Law and Custom, p. 352.

disorder arising out of quarrels. It not only stops the quarrel and appoints an arbitrator, but it also enforces the award of the arbitrator; in other words, it makes itself a party to the award. We are now on the threshold of the creation of Rights by the State, and it is important to watch the germs of this process. Whatever Rights it enforces acquire an importance and security which were wanting to them before. Hitherto they have really rested upon the opinion of a few neighbours; henceforth they are supported by the concentrated will of the people. But this concentrated will has no wish to interfere with private Rights. In some cases, of course, the individual will may seem to assert itself too far, as when the idea of making a testament and governing the disposition of property after death first appears. Then the whole people must watch the matter and see that the general arrangement is not disturbed, and so the testament is made publicly in the assembly. But in other cases the people or the State merely desire that when they do enforce Rights these shall really be in accordance with the intentions of private individuals. Now, hitherto the witnesses at a mancipation have played a very important part. They have not only preserved in their minds a record of the ceremony, but, being the friends of the parties interested, they are expected also to assist if necessary in the enforcement of the Right thus created. But this is now all changed. The State in future is to enforce the Right. What more fitting, then, than that the State should also witness the transaction? It will itself be aware of the exact

intention of the parties, and will do nothing but scrupulously carry them out. Such is the interpretation that may naturally be put upon the presence of the five witnesses in the mancipation, a number which has been supposed to represent the five classes into which the Servian constitution had divided the people. In other words, we see that a system of registration lay at the foundation of interference by the State. The State had no desire to disturb the Rights of individuals; but how could these Rights be known if the people by their representatives were not informed whenever a change in them took place? As we have seen, contracts, so far as they were concluded by the mancipation, fell under the same rule, and the State refused to enforce any Rights of whose origin it had not had due notice. That contracts in general did not share the same fate is due to the fact that, according to the view set forth above, they did not come under State control till a later period. Dealt with as they were in the Pontifical Court, and treated in their relation to offences against the gods, there was no such reason for requiring the presence of witnesses at the time of making them.

We have now come to the end of what may be called the second stage of legal progress, the stage which sees the origin of private Rights and the growth of a State-power to enforce them. In the third stage we shall see these Rights increasing in number and complexity, and the consideration of the various rules which have to be devised to govern them will introduce us to the different forms of Legislation.

CHAPTER X.

THE REGULATION OF RIGHTS.

THE question of the regulation of Rights to which we now turn our attention is of the utmost interest and importance, and upon the view which we take of it will rest the position and functions we assign to the science of Jurisprudence. I have used the term regulation of Rights because this seems to indicate clearly the original legal operation. As to their creation there is so far no question. They arise in the personal prowess of the individual or in the assignment to him of his share of the common land. When, however, there is a doubt as to the person in whom a particular Right when once created shall vest, then there is a matter for regulation. Now if we go back to the earliest cases and consider the course adopted by the original arbitrators, we see at once in what these regulations took their rise. There was only one thing to be done in the absence so far of all rules. The arbitrator stated what his own sense of justice intimated was fair. But this sense of justice was merely derived from his knowledge of what was usually done in similar cases where no contest arose. In other words, the earliest decision could be nothing else than a record of