tive was absolute. Within the prescribed conditions, "capture" became
technical and institutional, and rights grew out of it. The woman had a
status which was defined by custom, and was very different from the
status of a real captive. Marriage was the institutional relation, in
the society and under its sanction, of a woman to a man, where the woman
had been obtained in the prescribed way. She was then a "wife." What her
rights and duties were was defined by the mores, as they are today in
all civilized society.

Acts of legislation come out of the mores. In low civilization all
societal regulations are customs and taboos, the origin of which is
unknown. Positive laws are impossible until the stage of verification,
reflection, and criticism is reached. Until that point is reached there
is only customary law, or common law. The customary law may be codified
and systematized with respect to some philosophical principles, and yet
remain customary. The codes of Manu and Justinian are examples.
Enactment is not possible until reverence for ancestors has been so much
weakened that it is no longer thought wrong to interfere with
traditional customs by positive enactment. Even then there is
reluctance to make enactments, and there is a stage of transition during
which traditional customs are extended by interpretation to cover new
cases and to prevent evils. Legislation, however, has to seek standing
ground on the existing mores, and it soon becomes apparent that
legislation, to be strong, must be consistent with the mores. Things
which have been in the mores are put under police regulation and later
under positive law. It is sometimes said that "public opinion" must
ratify and approve police regulations, but this statement rests on an
imperfect analysis. The regulations must conform to the mores, so that
the public will not think them too lax or too strict. The mores of our
urban and rural populations are not the same; consequently legislation
about intoxicants which is made by one of these sections of the
population does not succeed when applied to the other. The regulation of
drinking-places, gambling-places, and disorderly houses has passed
through the above-mentioned stages. It is always a question of
expediency whether to leave a subject under the mores, or to make a
police regulation for it, or to put it into the criminal law. Betting,
horse racing, dangerous sports, electric cars, and vehicles are cases
now of things w