196 HARVARD LAW REVIEW. From the point of view of an individual, a collision with the public force is obviously a serious matter. Consequently, most individuals try to avoid one and govern their conduct accordingly; and thereupon the rules which determine the use of the sheriff have at once the effect of rules of conduct for individuals.^ There are, of course, exceptional cases. The Fugitive Slave Law^ could hardly have been described as a rule of conduct in Massachusetts, because most Massachusetts people preferred to risk a visit from the sheriff rather than return fugitive slaves. Other deplorable instances will occur to the reader. It is sufficient here to observe that they are rare. Most people make most of their conduct conform to most of the law. It is accordingly substantially, although not perfectly, correct to describe the law as a body of rules of conduct for in- dividuals, just as we describe a diamond as a precious stone ; that is, not by describing the thing itself, but rather by describing its effect on us, and our consequent attitude towards it. There is, however, in this description, besides the slight margin of inaccuracy already stated, a further difficulty, or more correctly speaking, a need of further explanation. Such a description tends to imply that the law, in so far as it is a set of rules of conduct, is a single set of rules ; and this is not true. The orders for the use of the public force are given by the judges. Consequently, the rules by which a judge decides whether he will or will not order the sheriff to act in any given case are for him, in the exercise of his judicial function, rules of conduct, pure and simple. They are the rules by which he decides what he will do. Consequently, the law is not a single set, but a double set, of rules of conduct It is primarily a set of rules of conduct for judges in the exercise of their judicial function. It is, secondarily, in its effect, a set of 1 Most definitions of the law assume that the law is primarily a rule of conduct. Blackstone, for instance, following Hobbs, defines municipal law as "a rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." i Bl. Comm. 44. But so far as the writer knows, no such definition of the law has been generally accepted as satisfactory. See remarks of Judge Dillon in " Laws and Jurisprudence of England and America," page 9. Further- more, Blackstone himself says that "all jurisdiction implies superiority of power. . . . And if the prince gives the subject leave to enter an action against him ... in his own courts, the action itself proceeds rather upon natural equity than upon municipal laws. For the end of such action is not to compel the prince . . . but to persuade him." I Bl. Comm. 242, 243. See also the remarks of Mr. Justice Holmes, Harvard Law Review, x. 462 : " The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, — and nothing else." 2 Acts of the 31st Cong, ist Sess. Chap. LX., approved Sept. 18, 185a
