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usages which a particular community is found to have adopted in its
infancy and in its primitive seats are generally those which are on
the whole best suited to promote its physical and moral well-being;
and, if they are retained in their integrity until new social wants
have taught new practices, the upward march of society is almost
certain. But unhappily there is a law of development which ever
threatens to operate upon unwritten usage. The customs are of course
obeyed by multitudes who are incapable of understanding the true
ground of their expediency, and who are therefore left inevitably to
invent superstitious reasons for their permanence. A process then
commences which may be shortly described by saying that usage which is
reasonable generates usage which is unreasonable. Analogy, the most
valuable of instruments in the maturity of jurisprudence, is the most
dangerous of snares in its infancy. Prohibitions and ordinances,
originally confined, for good reasons, to a single description of
acts, are made to apply to all acts of the same class, because a man
menaced with the anger of the gods for doing one thing, feels a
natural terror in doing any other thing which is remotely like it.
After one kind of food has been interdicted for sanitary reasons, the
prohibition is extended to all food resembling it, though the
resemblance occasionally depends on analogies the most fanciful. So,
again, a wise provision for insuring general cleanliness dictates in
time long routines of ceremonial ablution; and that division into
classes which at a particular crisis of social history is necessary
for the maintenance of the national existence degenerates into the
most disastrous and blighting of all human institutions--Caste. The
fate of the Hindoo law is, in fact, the measure of the value of the
Roman code. Ethnology shows us that the Romans and the Hindoos sprang
from the same original stock, and there is indeed a striking
resemblance between what appear to have been their original customs.
Even now, Hindoo jurisprudence has a substratum of forethought and
sound judgment, but irrational imitation has engrafted in it an
immense apparatus of cruel absurdities. From these corruptions the
Romans were protected by their code. It was compiled while the usage
was still wholesome, and a hundred years afterwards it might have been
too late. The Hindoo law has been to a great extent embodied in
writing, but, ancient as in one sense are