the greatest governmental embodiment of law that the world has ever known.

If we turn from the sacred writings of the Jewish race to those of the most intellectual race in recorded history, the Greeks, we shall see the higher law vindicated with incomparable power in the moral philosophy of the three great dramatists, Eschylus, Sophocles, and Euripides. These were the Greek prophets. The constant theme of their tragedies is that all men and all political institutions are subordinate to the operations of the higher law, whose retributive justice was called Nemesis. The terrible character of this retributive justice is illustrated by Sophocles in his great Theban Trilogy, for he teaches us that even an unintentional violation of the higher law by an innocent man must be atoned for. The argument reaches its greatest height in the noble play of Antigone, where the conflict between the law of the state and the higher law is emphasized. The brother of Antigone had committed a crime against the state of Thebes, and by its laws his body was denied the final dignity of burial. In defiance of the laws, Antigone buries her brother, in obedience to the call of affection and the dictates of humanity. The king, who incarnated the power of the state, demanded of her whether she had

transgressed its sovereign laws, and to that Antigone nobly replied:

Yes, for that law was not from Zeus, nor did Justice, dweller with the gods below, establish it among men; nor deemed I that thy decree mere mortal that thou art-could override those unwritten and unfailing mandates, which are not of today or yesterday, but ever live and no one knows their birthtide.

This was the Greek conception that there existed above all state-made laws a higher law of retributive justice, which was eternal and immutable and from whose workings neither God nor man could escape.

Five centuries later, the greatest of the Roman jurists, orators, and essayists, Cicero, spoke in the same terms of a higher law:

Which was never written and which we are never taught, which we never learn by reading, but which was drawn by nature herself.

If we turn from the classic Tiber to the lovely Avon, we find again that the supreme genius of all poets and dramatists accepted in his great tragedies the same theme. Nowhere does he illustrate it more beautifully than in the Merchant of Venice, for in the trial scene he takes great

pains to emphasize that, as a matter of strict law, Shylock was right in his contention. Venice was a commercial state and its material welfare depended upon the sanctity of contracts and the stability of precedents. Therefore Portia, having sustained the legal justice of Shylock's contention, turns to him and says:

Then must the Jew be merciful.

To emphasize the significance of the word, "must," Shylock repeats it and thus challenges the existence of the higher law:

Upon what compulsion must I? tell me that.

Portia then proceeds to vindicate the compelling power of the law of mercy. She does not suggest that mercy is a matter of grace, but that its mandate is greater than that of a Venetian Doge or the Council of Ten. The usurper has his legal right to the penalty, but the higher law compels him to surrender that right. Portia thus nobly proclaims the higher law:

'Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway,

It is enthroned in the hearts of kings,
It is an attribute to God himself.

With his incomparable insight, Shakespeare put this vindication of the higher law into the mouth of a woman, one of the most beautiful of his heroines, for in the permanent differentiation in the social office of the sexes, which no law or constitutional amendment can ever wholly override, the woman is the peculiar advocate and highpriestess of the higher law. In her care peculiarly rest the ideal and the abstract. To man, as the constructive agent of society, is chiefly given the concrete and practical. The futile attempts to obliterate this divinely ordained difference in the social office will, I fear, only tend to lessen the nobler usefulness of the woman, without increasing that of man. But to discuss this would be to enter into a controversial theme foreign to my subject, into which even angels might fear to tread, although an ever-increasing number do make the rash excursion.

If we turn from the doctrines of these great teachers of all nations and ages to the legal institutions of mankind, we shall find the most striking evidence of the higher law. While ana

lytical jurists of the Austin school may deny its existence or its relation to the laws of the state, the fact remains that as the rocks show unmistakable evidences of the glacial movements, so our state-made institutions and laws bear equally striking evidence of those mighty moral movements which, like the glaciers at the beginning of the world, have swept over its surface and determined the form and shape of continents and oceans.

In states which, like the Jewish state, were a combination of Church and State, the influence is naturally more evident; but if we take the greatest of all secular states in history and examine its body of law, the noblest that man has ever developed, we shall find the clearest recognition of the higher law as an organ of society, of which courts can and should take cognizance.

Thus arose the distinction between the jus civile, or the law of the state, and the jus naturale, or the law of nature. The Roman jurists recognized that while the local law of the state was of value within its own scope, yet there was on occasion the necessity of applying a system of law which it conceived to be of higher obligation and was called "natural" because it was common to all mankind and was regarded as arising out of a state of nature that antedated civil government.