work on a Sunday.
The law of a weekly day of rest would then have existed, without being
formally promulgated, and would have been limited precisely where it
should be, by agreement between masters and men who would submit to
working on Sundays when they saw that it was necessary and inevitable.
Moreover this law would be strong enough to modify without destroying
the ancient customs of the people.

Here is another instance which occurs within the law laid down by the
Code, where the legislator makes use of a method of suggestion and
recommendation. Early in the nineteenth century the legislator
considered that it was seemly for a husband who surprised his wife in
adultery to kill both her and her accomplice. The sentiment is perhaps
questionable, but at all events, it was current. Was it given legal
sanction? No, not precisely. It is inserted in the law in the form of an
insinuation, a discreet recommendation and affectionate encouragement.
The legislator wrote these words: "In _flagrante delicto_ murder is
excusable." I am not approving the sentiment, but only this manner of
indicating rather than enforcing the law and what is thought to be a
wholesome practice, and in other instances I should think it excellent.

Finally, one of the essential qualities of the legislator is to show
discretion in changing existing laws, and for this purpose he should be
immune from the passions of men or at all events complete master of
those which beset him. For law has no real authority unless it is
ancient. Where a law is merely a custom which has become law, it is
invested with considerable authority from the first, because it gains
strength by the antiquity of the original custom. When on the other hand
a law is not an old custom but runs counter to custom, then, before it
can have any authority, it must grow old and become a custom itself.

In both cases it is on its antiquity that the law must depend for its
strength. The law is like a tree, at first it is a tender sapling, then
it grows up, its bark hardens, and its roots go deep into the ground and
cling to the rock.

We ought to consider carefully before we venture to replace the forest
tree by the young sapling. "Most legislators," said Usbek to Rhedi,[A]
"have been men of limited abilities, owing their position to a stroke of
fortune, and consulting nothing but their own whims and prejudices. They
have often abolished established laws quite unnecessarily, and plunged
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