code, were compilations of existing laws; and the same may be said
of the common or customary law of England, of France, and of
Germany.

I am aware that recent analytical writers have sought to associate
LAW with FORCE, and to hold that law is a command, and must have
behind it sufficient force to compel submission. These writers find
at the outset of their examination, that customary law, the "Lex
non scripta," existed before force, and that the nomination to
sovereign power was the outcome of the more ancient customary law.
These laws appear based upon the idea of common good, and to have
been supported by the "posse comitatus" before standing armies or
state constabularies were formed. Vattel says (book i., chap. ii.),
"It is evident that men form a political society, and submit to
laws solely for their own advantage and safety. The sovereign
authority is then established only for the common good of all the
citizens. The sovereign thus clothed with the public authority,
with everything that constitutes the moral personality of the
nation, of course becomes bound by the moral obligations of that
nation and invested with its rights." It appears evident, that
customary law was the will of small communities, when they were
sovereign; that the cohesion of such communities was a confirmation
of such customs of each, that the election of a monarch or a
parliament was a recognition of these customs, and that the moral
and material FORCE or power of the sovereign was the outcome of
existing laws, and a confirmation thereof. The application of the
united force of the nation could be rightfully directed to the
requirements of ancient, though unwritten customary law, and it
could only be displaced by legislation, in which those concerned
took part.