sors. But it was not really viable from the beginning, and its existence ended as it began, in chaos. "Where," cried Barère, about two years later,

Where was the republic at the beginning of this campaign? In a few decrees, in the hearts of a small number of steadfast men, determined to the end on securing their liberty. Where is the republic now? In the unbending will of the representatives, in the courage of the armies, in the wish of the people, in the popular societies, in the victories of Vendée and Lyons, and in the hearts of those free comrades (sansculottes) who are devoid of monarchical and religious prejudice, who know no god but that of nature and of liberty.

This was not mere rhetoric; it exhibits by silence every failing of the radical democracy. It was a class device, it was based on the exhibition of force, it was the result of accident and theory compounded in equal parts, it was a set of substitutions where mere negations had left a void, it had no creative, organic originality, for it had no evolution behind it.

W. M. SLOANE.

AT

CUSTOMARY LAW. I.

Roman and Modern Theories.

T the time when the Roman law had reached its highest development, when the supreme power of interpretation was vested in a personal sovereign, the emperor, and when such changes as seemed desirable and could not well be made by interpretation could be and were made by imperial enactments, the Roman jurists and the emperors themselves asserted that law was established by custom as well as by legislation. They treated these two sources of law as equal in potency: they recognized that law, whether of customary or of legislative origin, might be changed either by legislation or by custom. Even written law, they declared, might be superseded by a contrary custom, or disappear in consequence of non-user: "enactments," Julian wrote, "are abrogated by desuetude." The jurists who expressed these opinions were not closet thinkers, but were actively engaged, as judges and as members of the imperial council, in the administration of justice and in the drafting of laws.

Neither in the Roman juristic literature nor in the imperial constitutions do we find any dissent from these doctrines. The only qualification anywhere hinted occurs in an imperial rescript of the fourth century, in which it is declared that custom is not to prevail against the spirit and purpose of the law as a whole, or against imperial legislation. If this passage be construed to apply to custom in general, it would be wholly inconsistent with Cf. Inst. 1, 2, 9, and Cod. 8, 52 (53).

1 Dig. 1, 3, fr. 32-40. 2 Dig. 1, 3, fr. 32, § 1. pr.; Nov. 89, c. 15.

Cf. Inst. 1, 2, § 11, and 4, 4, § 7; Cod. 6, 51, c. unica,

8 Cod. 8, 52 (53), c. 2: “Consuetudinis ususque longaevi non vilis auctoritas est, verum non usque adeo sui valitura momento, ut aut rationem vincat aut legem." Cf. Nov. 134, c. 1, in fine; Decr. Grat. dist. 11, c. 4, and Decretal. Greg. IX, 1, 4, C. II. Ratio iuris (and, often, ratio alone) is something narrower and more definite than reason. Ratio legis is the intent or purpose of a particular law; ratio iuris the tendency of the law in general. See Heumann, Handlexikon zu den Quellen des römischen Rechts, Ratio (5) and passages there cited.

the dicta of the imperial jurists and with other utterances of the emperors themselves. It probably refers to local custom; and the principle which it affirms applies equally to local custom and to local legislation. In a state in which law-making power is centralized, no form of local law can prevail against general law.1

The Roman doctrines regarding customary law were neither challenged nor doubted in the middle ages; but the qualification which we have just noted disappeared. The mediæval European idea of the relation of local and general law was precisely opposite to the Roman imperial idea. According to the medieval idea, the local law of the manor, village or city, whether written or unwritten, prevailed against the law of the province, and the law of the province prevailed against the law of the realm. This idea squared with the political facts, at least after the disruption of the empire of Charles the Great; and it began to disappear only when the political facts changed — when, first in England, later on the Continent, the hands of the kings were so strengthened that they were able to establish national states.

As far, indeed, as ecclesiastical law was concerned, the church upheld the Roman idea. It asserted that neither local nor provincial nor national law or custom, whether secular or ecclesiastical, could displace the general law of Christendom. It made significant reservations, however, which facilitated compromise. If neither the unity of the Christian faith nor the necessary discipline of the Christian Church were impaired or imperilled, not only might national councils adopt rules varying from those of Rome, but a contrary custom in a locality might be pleaded against the general laws of the church; and even in the absence. of any such positive legislation or custom, it was sometimes inquired whether the general rule established by the church had

3

1 So Windscheid, Pandekten, I, § 16, n. 5, § 18, n. 2. For other explanations, see Vangerow, Pandekten, I, § 16, note. Dernburg, Pandekten, I, § 28, n. 5, rejects all explanations offered, and assumes a flat contradiction.

2 Decr. Grat. dist. 11, c. 1-3, 11; dist. 12, c. 1, 2. Decretal, Greg. IX, 1, 4, Extrav. comm., 1, 1, c. unica.

c. 3, 4, 5, 7. Sexti Decretal, 1, 4, C. I, 2.

3 Decr. Grat. dist. 11, c. 6, 8; dist. 12, c. 3, 4, 6-11. Decretal, Greg. IX., 1, 4, c. 8. Sexti Decretal, 1, 4, c. 3. Cf. Maitland, Canon Law in England, p. 10, n. 3, 4.

1

ever been "accepted" - a practice which led to Gratian's broad assertion that "laws are instituted when they are promulgated; confirmed, when they are approved by the custom of those who observe them." 2

Apart from this question of the relation between general and local law, the medieval theory was identical with that of the Roman jurisprudence. Any different theory would have been singularly inconsistent with the legal situation. Not only were the customs of manors, of cities and of provinces recognized as law; there were also general European customs. Decisions made in Lombardy were cited in all the feudal courts of Europe; judgments rendered at Pisa, at Barcelona and at Oléron enjoyed an equally wide authority in questions of commercial and maritime law. Class custom was law not only for merchants, but also for artisans and peasants; and in certain matters (particularly in family law) the same authority was ascribed to the customs of different religious confessions. The destructive force of desuetude was recognized, not only as against custom but as against written law. Even legislators, in affirming the validity of older collections of written laws, sometimes added the significant limitation, "as far as these are still in use.

9 3

After the close of the middle ages, a different theory prevailed. Legislation was exalted above custom: it was denied that written law could lose its force through desuetude or be displaced by contrary custom; it was even denied that custom was or could be law otherwise than by the express or implied consent of the legislator. We associate these views to-day with the English analyt

1 Cj. Maitland, op. cit., pp. 31, 32.

8 E.g., Leyes de Toro (1505) 1.

2 Decr. Grat. dist. 4, c. 3.

Some of the Roman jurists had already attempted to assimilate custom to enacted law by treating each as an expression of the will of the sovereign people. Cf. Julian, in Dig. 1, 3, fr. 32, § 1: "Nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes; nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis?" Cf. also Hermogenian, eod. tit., fr. 35; "velut tacita civium conventio." But the conclusions drawn from this doctrine of popular sovereignty were opposite to those which have been drawn in modern times from the attribution of sovereignty to the legislator. In the sentence which immediately follows that above cited, Julian says: “Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris, sed etiam tacito consensu omnium per desuetudinem abrogentur."

ical jurisprudence. They are, however, much older than their English formulation; and they became dominant on the Continent long before they attained this position in English legal thought.

The development, or at least the general acceptance, of these views was closely associated with political changes which were taking place at the close of the middle ages, and with legal changes which were beginning at that period and which have been completed in our own time. On the Continent, the modern national state obtained its political organization in the absolute monarchy; the monarch was regarded as sovereign; and to admit that his actions could be restrained or his commands invalidated by custom was to deny his sovereignty and make his power merely governmental. Within each national state common law was needed, and on the Continent this could be developed only by legislation. The transition from feudal to democratic society required sweeping legal reforms, and these could be made only by

enactments.

In some of these matters the English political and legal development was altogether different from that of the Continent; in others an analogous development took place, but not by any means an identical development. Even a brief comparison will show, I think, that while the new theories were a natural product of Continental conditions, they represented in England either fruitless protest or unnecessary imitation.

3

In England, governmental power had been centralized three or four centuries earlier than in any other modern European state;

1 The common impression that the reception of the law-books of Justinian contributed to the development of the theory of princely sovereignty is, of course, quite correct; for in the later imperial constitutions there are clear assertions of the divine right of the prince: terrestrial majesty is derived by delegation from celestial majesty. In Justinian's Digest sovereignty is with the people; in his Institutes the imperium et potestas of the prince are derived from the people; in his Codex the emperors claim to rule iure divino.

2 Burgess, Political Science and Constitutional Law, I, 66, 93, 127, maintains that the authority of the absolute monarch was only governmental. He describes the absolute monarchies of Western Europe as democratic states with monarchic governments. His theory is thus identical with the juristic theory of the Roman principate.

It is hardly necessary, but it is perhaps prudent, to say that the word "new" is used relatively.