. They mean a
law, an ordinance, an order or dictate addressed to them by a sovereign,
or at least by a power of some sort, and they mean an ordinance which if
they break they are going to suffer for, either in person or in
property. In other words, they have a notion of law as a written command
addressed by the sovereign to the subject, or at least by one of the
departments of government to the citizen. Now that, I must caution you,
is in the first place rather a modern notion of law, quite modern in
England; it is really Roman, and was not law as it was understood by our
Anglo-Saxon ancestors. He did not think of law as a thing written,
addressed to him by the king. Neither did he necessarily think of it as
a thing which had any definite punishment attached or any code attached,
any "sanction," as we call it, or thing which enforces the law; a
penalty or fine or imprisonment. There are just as good "sanctions" for
law outside of the sanctions that our people usually think of as there
are inside of them, and often very much better; for example, the
sanction of a strong custom. Take any example you like; there are many
states where marriage between blacks and whites is not made unlawful but
where practically it is made tremendously unlawful by the force of
public opinion [mores]. Take the case of debts of honor, so called,
debts of gambling; they are paid far more universally than ordinary
commercial debts, even by the same people; but there is no law enforcing
them--there is no sanction for the collection of gambling debts. And
take any custom that grows up. We know how strong our customs in college
are. Take the mere custom of a club table; no one dares or ventures to
supplant the members at that table. That kind of sanction is just as
good a law as a law made by statute and imposing five or ten dollars'
penalty or a week's imprisonment. And judges or juries recognize those
things as laws, just as much as they do statute laws; when all other
laws are lacking, our courts will ask what is the "custom of the trade."
These be laws, and are often better enforced than the statute law; the
rules of the New York Stock Exchange are better enforced than the laws
of the state legislature. Now all our early Anglo-Saxon law was law of
that kind. For the law was but universal custom, and that custom had no
sanction; but for breach of the custom anybody could make personal
attack, or combine with his friends to make attack, on the per