quality of conservatism. Where variation engenders the new, it preserves the o'd; and the same eternal oscillation under the forces of change and those of stabilization takes place in the one range as in the other. But tradition possesses, as it were, a certain supporting handicap of inertia. In general, the burden of proof falls upon the innovation. To any evolutionist it is well that this is so, for the very fact that that inertia exists shows that it has had its utility in the course of things. Most innovations break against its solid and stolid bulk; and if one makes a breach it must have had its qualities in order to do so. It is possible to be too stable, but the dangers of stability are perhaps to be preferred to those of mutability. Crystallization versus chaos: the choice of extremes is the typical human choice of ills, but very likely the via media is not always along the mathematical mean.

The only characteristics that tradition can carry forward are those which have, at some time, survived the conflict by their superior fitness to environment at that time. For the mores, the environment has been the sum of life-conditions at the time. If one society of human beings got on better than others, and increased in numbers and power, because its code of behavior was better suited to life-conditions—by reason of a superiority in industrial coöperation, or in its marital arrangements, or in its regulative system, or in its religion-its code succeeded with it and gained extension and intensity. The tradition of success laid hold of it and endowed it with the authority of the illustrious dead who had sponsored it. It became fixed and immutable, to the eyes of those who received it. If life-conditions had not been subject to change thereafter, this would have been well; and we should doubtless all be practicing the successful code ever since. But in view of the perennial change in life-conditions, all we can be sure of about tradition is that what it transmits to us must have been an adequate adjustment at one time and under its conditions. The only way in which a traditional social order can be accepted as infallible, and applied to much later conditions, is by subjecting it to such interpretation as to deceive ourselves as to its real nature and meaning. Such interpretation is necessary in order, for example, to fit the prescriptions connected with the mores of the ancient Hebrews to the life of contemporary America.

By the action of variation, selection, and tradition, then, the mores, which are the external projection of mental action on life-conditions, show adaptation to those life-conditions, and are evolutionary. For the essence of evolution is such adaptation. Cases of adjustment of codes to types of physical environment abound throughout ethnography and are particularly marked in the life of frontier-societies, where the code of the settlers almost unconsciously comes to approach, in many respects, that of the natives. But even the modern great city has a code of its own, new to the world, which it is developing all the time as material life-conditions become more complex; and which is currently

enough set in contrast with the rural code. But the life-conditions of a society are by no means all of a physical or material quality; they include neighboring societies, and, as distance has been annihilated by progress in the arts, almost all human societies have become neighbors to one another. Thus the adjustments in the mores must needs become ever more delicate and subtle, with ever increasing prospects of maladjustment, consequent pain and discomfort, selection, and readjustment. The fact that the modern case is so complex forms a reason why it is better to come at the whole matter from a study of the simpler and more primitive forms.

What is said of the mores in general applies a fortiori to law. Mores are the society's traditional ways of acting in the presence of interest. But now one of the major interests of any society is that there shall be cohesion, order, discipline, and coöperation within. Otherwise it is subject to aggression from without. The extreme case is that of war, when internal regulation reaches its acme of extension and severity. What is a crime in war-times is perhaps not even a misdemeanor in peace. In that sense, war represents a reversion to the crudities of the primal regulative system, with its frequent death-penalties for what are to us trivial offenses, its undeveloped apparatus of courts, advocates, etc. Here, in any case, is shown an insistence, under special stress, upon the regulative system that governs conduct in the interest of society's self-preservation.

Excluding war from the general case, it is clear that any society at any time must show discipline and order in the conduct of its members, if it is to persist under an unintermittent competition. For these qualities have survival-value in them. Only under the protection of extreme isolation, which minimizes the competition, may the socially or the organically obsolete last on. The mores take care of the more scattered and intimate questions of conduct. There is an extensive field where law does not enter at all, as, for instance, that of the domestic arcana. The essence of marriage is the personal, not the legal, relation. Man and wife have to live together in adjustments, involving good-breeding, self-sacrifice, etc., which the law cannot touch. All such intimate relationships are matters of the mores. But certain more external cases, and classes of cases, enter more visibly and tangibly into the arena of public accessibility and regulation; and these become public precedents.

There is, at first, no distinction between the personal and the public (if these two classes of cases may be roughly so termed) or between mores and law. It is themis in Homer for a child to kiss his father; but yet the king is charged with upholding the themistes, and does it as an executive officer. Naturally, though, he does not enforce caresses between parent and child. That the law is at first mere precedent is strikingly illustrated in the judgment-scene wrought on the

shield of Achilles: there are a number of elders there; they all hear the case and each then speaks the precedent as he sees it. That is, he applies the current code whose tradition he, as an elder, is supposed to know best, to the specific circumstance. The audience applauds or not; and in the midst lie two pieces of gold, to be given to the judge who speaks the precedent straightest.11

Precedents touching salient lines of conduct are presently codified in some fashion: in formulas, or verses, or, at length, on "tablets." This was long ago; but the very first codifications must have been preceded by an unreckonable period of test in usage. No one knows or can know their origins, except as he can infer it from what we can know of their subsequent course. Because they are so old they look to be inevitable and "natural." And so they are currently referred to some mythical, supernatural source they were "given" on Tables amidst terrific exhibitions of supernatural potency. Further, if we examine such codifications, we find them pretty much alike; and that strengthens the impression that they are somehow inevitable, and therefore "natural." But human societies are nearly enough alike to be obliged, as a condition of self-preservation, to taboo practices that might be termed anti-social. Such taboos might be thought to be the result of acculturation (contagion, borrowing) if any possible agency of communication could be discovered or even imagined between remote parts of the earth in primitive ages. The better explanation of concurrences is that they are parallelisms-taboos that have sprung up under similar conditions as the only adequate response to them.

The taboo: Thou shalt not kill (thy fellow-tribèsman) represents the very essence of social necessity, if internal cohesion and order are to be maintained; and Thou shalt not steal (from a tribal brother) establishes the right to property, thus excluding aggressions, reprisals, and consequent chaos and disorganization. No society can long persist in the competition without such inhibitions. Here are laws, then, which have an eternal survival-value in them, so far as we can predict in the light of the past, over space and through time; they are as good in a modern society, as a conditio sine qua non, as they have been in the most rudimentary group. It will be noted that they contemplate merely the fellow-tribesmen-the members of the so-called "we-group," or "in-group" for it is proper and praiseworthy to kill the alien, to rob him, and to do to him all the other things which the code forbids within the group. There is here no outcome of a yearning altruism; the code is as un-moral from that point of view as are any of its analogues in nature-the lion's claw, the viper's tooth, the law of the pack.

If we confine our attention to the elements common to all codes of laws, over all earthly space and through such a vista of time as we can span by recourse to our records, ethnographic and historic, and if we are naïve, we may readily conclude that this presence of similar or even identical provisions in them supports the assumption that they were put there by some Power. That is the way similarities in organic nature used to be explained; it was "unity of design" that accounted for all that—a pseudo-explanation restating the question. Or we may say that part of law is "given," as species were given; and admit that the rest was made by man, or, at least, not by "Nature," as formerly it was admitted that varieties of animals and plants could be produced under the operation of natural or "lower" agencies. Or we may dodge the whole explanation by drawing a blank check on "natural law."

From the evolutionary standpoint, these similarities and identities are simply variations that have persisted in the conflict because endowed with lasting survival-value under any life-conditions of society yet known to us. Tradition has passed them down unimpaired, because they respond to a perennial necessity for the very self-preservation of society. In that sense, they are natural and not Natural law; but now we know what the "natural" means. We are on the familiar scientific ground so strongly fortified by Lyell and others, who championed the competency of forces which we see daily in operation about us to produce any and all results that come before our eyes. In that position inheres intellectual liberation; and it is not recorded that the possession of a long and orderly perspective has ever constituted a handicap when science has come to practical application.

RECONSTRUCTION AND THE LEGAL PROFESSION'

THOMAS W. SWAN

Yale University School of Law

The Great War has brought every country of Europe face to face with vast and critical problems of Reconstruction-political, economic, social. Our own country also, in its political, economic and social institutions, feels the tremors of the great European convulsion. Despite the immunity of our land from devastation and our comparative freedom from the burdens of the conflict, our participation in the war has brought us problems of critical importance to the continuance of our political and social structure. What are to be our international relations of the future? What is to be our domestic polity with respect to the division of powers between the national government and the states? Under the pressure of war emergencies the national government has vastly extended its control over the activities of the individual. It has regulated the prices at which we could buy our bread and our coal; it has built houses for certain of its employees; it has taken over the control and management of various public utilities. People are asking whether such governmental activities should be abandoned in time of peace; whether vital necessities such as transportation systems, telegraphs, coal mines, should be returned to private ownership and operation just as before the war. The cost of creating vast armies, of enlarging our navy, and of developing a merchant marine has raised new problems of government finance. Lastly, and more important than all in my judgment, are the problems relating to the relations of capital and labor, and to the preservation of our institutions against the menace of unrest and extreme radicalism called Bolshevism. These are some of the problems which face the legal profession as a result of the war. They face not only the lawyers, they face every citizen, every member of every community in the country. They are questions of public policy depending for their answer upon the will of the majority of the people. Only by the creation of an enlightened and intelligent public opinion by free discussion can they be solved correctly.

In such a time as this the highest conception of the professional duty of the lawyer requires him to contribute to the thought of the country upon questions of public policy. It is the duty of every citizen

1

1 An address delivered May 10, 1919, as one of a series of "Reconstruction Lectures" arranged by Yale University on the Dodge Foundation for Yale Lectures on the Responsibilities of Citizenship.