gnize 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.
And it was not written down for a great many centuries, and even after
being first written it wasn't usual to affix any _penalty_; they were
mere customs, but of an iron-bound nature--customs that were followed
far more devoutly than the masses of our people follow any of our
written laws to-day. And their "sanction" was twofold: In the first
place, the sanction I have mentioned, universal custom, social
ostracism for breach. A second and very obvious sanction, that if you
do a thing that I don't like and think is against the law, I am going
to knock you down or kill you if I can! That was a sanction, and a
perfectly good one; and the question that arose, therefore, was not at
all as to penalty for the law-breaker; it was whether there should be
a penalty for the law-breaker's being killed. That is the reason they
didn't have to have any penalty! In those days if there was a custom
that a certain tribe had a certain pasture, and a man of another tribe
pastured his cattle in that pasture, the first man would go to him and
they would have a fight, and if he killed him he would be, as we say,
arrested; then the matter would be inquired into by the kin of the
murdered man or neighbors, and if the killer could prove that the
murdered man had committed a breach of the law, he went off scot
free--so, as a matter of fact he would to-day, if it were justifiable
homicide. In other words, it was a question of whether it was
justifiable homicide; and that brought in the question what the
law was, and it was usually only in that way. 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 person that committed the breach, and
then, when the matter was taken up by the members of both tribes, and
finally by the Witenagemot as a judicial court, the question was, what
the law was; and if it was proved, for instance, that the law was that
there _was_ private property in that pasture belonging to the man who
committed the murder he went o