Institutions
are either crescive or enacted. They are crescive when they take shape
in the mores, growing by the instinctive efforts by which the mores are
produced. Then the efforts, through long use, become definite and
specific. Property, marriage, and religion are the most primary
institutions. They began in folkways. They became customs. They
developed into mores by the addition of some philosophy of welfare,
however crude. Then they were made more definite and specific as regards
the rules, the prescribed acts, and the apparatus to be employed. This
produced a structure and the institution was complete. Enacted
institutions are products of rational invention and intention. They
belong to high civilization. Banks are institutions of credit founded on
usages which can be traced back to barbarism. There came a time when,
guided by rational reflection on experience, men systematized and
regulated the usages which had become current, and thus created positive
institutions of credit, defined by law and sanctioned by the force of
the state. Pure enacted institutions which are strong and prosperous are
hard to find. It is too difficult to invent and create an institution,
for a purpose, out of nothing. The electoral college in the constitution
of the United States is an example. In that case the democratic mores of
the people have seized upon the device and made of it something quite
different from what the inventors planned. All institutions have come
out of mores, although the rational element in them is sometimes so
large that their origin in the mores is not to be ascertained except by
an historical investigation (legislatures, courts, juries, joint stock
companies, the stock exchange). Property, marriage, and religion are
still almost entirely in the mores. Amongst nature men any man might
capture and hold a woman at any time, if he could. He did it by superior
force which was its own supreme justification. But his act brought his
group and her group into war, and produced harm to his comrades. They
forbade capture, or set conditions for it. Beyond the limits, the
individual might still use force, but his comrades were no longer
responsible. The glory to him, if he succeeded, might be all the
greater. His control over his captive 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 diff