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26 0U8T0MAHY LAW.
sense, hound by any previous interpretation of the natural law, and is, in the theory of jurisprudence, to be considered as the criterion of the provisions of that law, while the tribunal is presumed always to follow standards of interpretation of natural law already acknowledged or accepted by the state, so far as they exist.1
The decision made by any judicial tribunal may, therefore, be always compared by succeeding tribunals with other standards of natural law which are presumed, equally with that decision, to indicate the natural law as received by the state. With the lapse of time, by the accumulation of concurrent expositions of the natural law, the power of each tribunal, successively to make law in this incidental manner, becomes more limited; because the recognition of natural law by the state, through anterior tribunals, has become more definite by being more widely applied.'
§ 31. The principle by which judicial precedent becomes an exposition of the legal rule of action, is also that which causes custom to be juridically recognized as having the coercive force of positive law. It is not that any number of similar actions
1 Bentham: Morals and Legislation, ch. xvii., 20 (of Appendix to the original ed., 1823, vol ii., p. 274). "In that enormous mass of confusion and inconsistency, the ancient Roman, or. as it is termed, by way of eminence, the civil law, the imperative matter and even all traces of the imperative character, seem at last to have been smothered in the expository. Esto had been the language of primseval simplicity: esto had been the language of the twelve tables. By the time of Justinian (so thick was the darkness raised by a cloud of commentators), the penal law had been crammed into an odd corner of the civil—the whole catalogue of offences, and even of crimes, lay buried under a heap of obligations—will was hid in opinion—and the original esto had transformed itself into videtur in the mouths of even the most despotic sovereigns." It depends upon the intention, whether this was blamable or not. It was perhaps only an affectation on the part of the prince to speak like an expounder of existing law when called upon, by an exercise of autonomic juridical power, to relieve the law of obscurity, caused by conflicting opinions of juridical persons who were not sovereign.
"Ram: LcgalJudg., c.i., xiv. Bacon, de Aug. Lib., viii., c. 8,10. Aphor., 21—31. Lindley's Thibaut, Append., xii., and note. Falck: Jurist. Ency., § 10. (French Tr.): "A cote du droit coutumier vient se placer la practiquejudiciaire, Geric/its-gebrauch, l'nsage du palais, (unit fori, Observanz, stylus curia) e'est a dire, l'ensemble des regies de droit qui se forment par la practique uniforme des functionaires publies dans les affaires juridiques.
"Les maximes ainsi etablies ont aussi force des lois; mais quand commencent elles a l'avoir? C'est ce qu'il n'est pas possible de preciser; tout se reduit a ceci; il faut que le nombre des precedents (prcejudicarse) soit sufflsant pour conftitucr une opinion sur un point de droit. II est evident qu'il serait irrationel d'attribucr un pareil effet a une seule decision judiciaire. Quelquefois cependant l'autorite d'un fonctionaire ou d'un corps a etc assez grande pour mettre hoM de doute, par une seule decision, des points de droit controverses."
CUSTOM AN EFFECT OF LAW. 27
by private persons in certain supposed circumstances can make a law for others in similar circumstances. No one person subject to the supreme power of civil society is legally held to do, or refrain from doing, this or that act, simply because others before have, or have not, done the same; nor have any number of private individuals the power, by their example, to establish a coercive rule for another individual. Custom is juridically regarded as an effect of law, not as a cause of law. It is judicially received as an exposition of law, because that which has been generally received and acted upon by the subjects of a civil state as a rule of action is presumptively identified with the will of the supreme power of the state,1 and is, therefore, judicially held to be reasonable or jural. The existence of the custom is judicial evidence of a rule accepted by the state for a rule of natural reason applied to certain circumstances:" and hence a
1 Aristot.: Rhet., Lib. i., c. 2. Metaphy., Lib. i., c. 8. Selden: De J. Nat. etc., Heb., Lib. i., c. 6. Cicero: de Inventione, Lib. i. Ac. Hobbes: De Civitate, ch. 26.
* Savigny: Heut. Rom. R., § 12. "So ist also die Gewohnheit das Kennzeichen des positiven Rechts, nicht dessen Entstehungsgrund." Custom is therefore the mark by which positive law is known to exist, not the cause of its existence. Tr., and refers to Puchta: "Das Gewohnheits Recht." "Every custom supposes a law," per Vaughan Cb. J. VII. Viner's Abr., 188. Statute law and common law as contrasted with Statute law, in English jurisprudence, have, therefore, the same theoretical foundation. And herein lies the essential correctness of C. J. Wilmot's saying, in 2 Wilson, 348. "The statute law is the will of the legislature in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing,"—and p. 850: "And statute law and common law both originally flowed from the same fountain." But compare the doctrine of Bl. Com., Introd., Sect. 3.
"Positive law," in English and American jurisprudence, is not always taken to mean statute law. Thus, in Somerset's case, Lord Mansfield says: "Positive law, which preserves its force long after the time itself from whence it was created, is erased from memory,"—but a legal rule is not a statute rule if the time of its enactment cannot be shown. So C. J. Shaw says, 18 Pick. R., 212: "by positive law in this connection may be as well understood customary law as the enactment of a statute;" and Blackstone, speaking of a provision of the common law, says, 1 Coram., 70: "now this is positive law fixed and established by custom."
Properly speaking, when custom has this general extent, its antecedent continuation is not inquired into, it is simply law. "A custom cannot be alleged generally within the kingdom of England; for that is common law." Co. Lit. fo., 110 b., and fo. 115 b. Sir Henry Finch, Tr., p. 77. Only particular customs require proof of their having been received for a certain length of time, to give them the force of law. Thus the authority of the Constitution of the United States rests on general custom, and much of the law of the several states not derived from England is customary law, although it has not had an existence such as is required by the law of England to give authority to a particular custom. Compare Mass. Quarterly Rev., vol. I., p. 466, On the legality of Slavery.
Of laws losing their force by desuetude. 1 Kent, 467, marg. p. 517, 7th ed., note. Dr. Irving's Introduction to the Study of the Civil Law, pp. 123—127. Woodes: Lcct. preL, p. xxxiii.
28 PRIVATE JURISTS FOREIGN STATES.
custom must be tested by other indications of natural reason which, in judicial recognition, are identified with the will of the supreme power.1
§ 32. Not only may judicial tribunals compare together the judgments of their predecessors in applying natural law to new relations of persons and things, but they may also adopt similar comparisons made by private individuals, either oral or written, and such private writings or exposition of the law may, by force of continued judicial recognition, become a farther limitation on the discretion of subsequent tribunals.'
§ 33. Besides, since all states, though independent of each other, are equally possessors of the powers of society, and hold it for the same ends, they may be equally presumed to intend to conform their laws to the natural law.' The laws of foreign
'This testing the legality or lawfulness of a custom is a judicial act, and to be distinguished from autonomic recognition or disallowance of customs by the sovereign. Co. Lit., fo. 141, a.: "Malus usus abolendus, and every use is evil that is (as our author saith), against reason ; quia in consuetndinibus non diutumitas temporis, sed soliditas rationis est consideranda. And by this rule cited by our author at the parliament holden at Kilkenny in Ireland, (40 E. 3) Lionel, Duke of Clarence, being then the Lieutenant of that realme, the Irish customs, called then the Brehon law (for that the Irish call their judges 1 Irehons), was wholly abolished; for that (as the parliament said) it was no law, but a lewd custom, et malus usus abolendus est. But our student must know that King John,*' &c . The gist of Coke's following observations appear to be— that it was by a sovereign legislative act of the Conqueror that the Brehon law was changed. In Le case de Tanistry, Davis Rep., the validity of a Brehon custom of inheritance was argued before the courts, and the usage decided to be invalid; because, according to the established judicial tests, it was no custom at all: the term custom having a fixed technical meaning.
* Kent's Comm. Lect, xxi., xxii. Falck: Jur. Ency. (French Tr.), § 10: "La doctrine, e'est a dire la theorie de ce qui est droit, exposee do vive voix on par ecrit, par les savants voues a l'etude de la jurisprudence, devrait, d'apres sa nature, etre seulement un moyen auxilliaire pour apprendre a connaitre le droit en vigueur; cependant elle est devenue, a plusieurs cgards, une veritable source du droit. La literature juridique en particulier a exercee, a certaines epoques, comme le montrent toutes les his- toires du droit, une si grande influence, que beaucoup d'ouvrages de jurisprudence ont obtenu formellement force de loL Mais, il faut le dire, e'est la un abus veritable, qui n'a pas d'autre motif que la paresse d'esprit, on la foi a l'autorite."
Dig., Lib. L, Tit. ii., c. 2, § 12. Ita in civitate nostra, autjure, id est lege, constituitur, aut est proprium jus civile, quod sine scripto in sola prudentum interpretatione consistit.
Grotius, B. et P., Lib. I., c. i., § 14. Savigny, on the vocation of our age for legislation and jurisprudence, Hayward's Transl., pp. 28, 29, 30. Rum on Legal Judgment, ch. 18, sect. 5. Reddie: Law of Marit. Com., p. 438.
This authority of private jurists must depend upon some juridical recognition: compare Bacon: de Aug. Sci.. Lib. viii., c. 3, § 10. De Justitia Universali, App., 72—92.
Though in the Roman system, an intrinsic authority seems to have been attributed to the Responsa Prudentum: see Savigny: Ho.ut. R. R, B. I., c. 3, §§ 14, 26. Butler's Hone Juridicie, Essay, Roman Law. De Ferriere: Hist, of Roman Law, ch. ix.
3 Heffter: Europaisches Vulkerrecht, p. 22, speaks of a class or school of publicists who find the natural law of jurisprudence in the expressed will of states, by assuming that they have intended to do justice—" Das Wollen der Gerechtigkeit in den Willen der Nationen eingeschlossen betrachten."
LAW OF NATIONS. 29
states (i. e. their municipal, or, more correctly, their national laws), whether arising from positive legislation, or from the judgment of their tribunals, applying the law of natural reason, may also be received by the tribunals of any one state as an exposition of the law of nature, where its own positive legislation or judicial interpretation of natural law does not afford sufficient guidance.1
§ 34. And when any principles or rules of action have been so long and so generally recognized among many nations that they have been historically known as the law of nations, or universal principles forming the subject of a general or universal jurisprudence, they will, for the same reason, which here applies still more forcibly, be presumed to conform to natural reason or naturallaw;' and be judicially received as the presumptive will of
1 Sir Henry Finch: Treatise on the Common Law, p. 6. Ram: Legal Judgment, p. 69—71, 76. Marshall: on Ins., Prelim. Disc . p. 24. Reddie's Inq. Elem. Ac., p. 196. "Finally, in the exposition of common law, judges have been accustomed to look to the legal systems and judicial experience of other nations, if not as standards, or imperative sources of the law, at least as affording practical guides by which they may be led to decide aright, &c." On this principle, the Roman law is referred to in English and American jurisprudence. Wood's Inst., Introd: Spence: Equity Jurisd. of Court of Ch., vol. i., 119, 122-3. 5 Bingham, 167. Long's Discourses, passim; Reddie's Hist. View of Marit. Com., pp. 428. 438. Cnshing's Roman Law, §§ 250, 333, 4, 5. Butler's Hone Juridicse, p. 60. So also the Canon Law, even in Protestant countries, Hor. Jurid. p. 122.
In the tribunals of Continental Europe, the Roman law has so long been received on this principle, that it is looked upon by many of the civilians, as being in and of itself an authoritative exposition of natural reason. In their language—Valet pro ratione, non pro introdncto jure. Non habet vim legis, sed rationis. Servatur ubique jus Romanum, non ratione imperii, sed rationis imperio.
* Savigny: Heut R R, B. i., c. 3, § 22. Grotius: B. et P., Lib. i., 12, 2. Cic. i., Tusc. Ep., 117—"In omni re consensio omnium gentium jus nature putanda est."
2 Bla. Comm., 11, note by Christian. "I know no other criterion by which we can determine any rule or obligation to be founded in nature than by its universality, and by inquiring whether it has not in all countries and ages been agreeable to the feelings, affections, and reason of mankind."
Doctor and Student, p. 63. Doct. "Therefore it seemeth that contracts be grounded upon the law of reason, or at least upon the law that is called jus gentium;" and p. 176: Stud. "First, it is to be understood that contracts be grounded upon a custom of the realm, and by the law that is called jut gentium, and not directly by the law of reason."
It is this ascertained standard which apparently Pothier, in Treatise on Obligations, 15, intends by "pure natural right." And see definition of Matims, in Ram : Legal Judgment, p. 14, and the citations.
Whatever principle a tribunal may admit to be a principle of universal jurisprudence must be taken to be received in the national law which that tribunal is appointed to administer. (Suarez: De Leg. et Deo Legisl., Lib. ii., c . 19, § 2—6.) The tribunal refers to the historical indicia of this universal jurisprudence as being one of the criteria of the legislative will of the state, which is to be juridically applied. In the Roman jurisprudence, no principle was ascribed to the jut gentium, which was not included in the civil law (i. e., national law) of Rome. Comp. Foelix: Droit International Prive, § 5. Reddie's Inq. El. <tc , p. 26, and see post eh. ii., and iv.
30 UNIVERSAL Jurisprudence.
the state: and though these principles must originally have acquired that character of universality from the independent legislative wills of single states, yet, when they have acquired that historical character, they may be judicially received by the tribunals of any one state as an independent indication of natural law, presumed, from the fact of being received in universal jurisprudence or for universal jurisprudence, to be adopted as a priori principles by that national power whose juridical will the tribunal is intended to execute.
§ 35. When the natural law, or law of natural reason has thus been judicially interpreted, and thus made a part of the positive law of any one state or nation,1 (i. e. positive in respect to
But for an opposite theory of natural law in Jurisprudence, see Hoffman's Legal Outlines, sect. viii.
Smith's Merc. Law, p. 2. Speaking of the comparative utility of historical researches in the law of real estate and mercantile law :—" Our mercantile law, on the contrary, is wholly founded on considerations of utility; and though many of its rules are derived from the institutions of ancient times and distant countries, still is their introduction into our system owing, not to a blind respect for their origin, but to an enlightened sense of their propriety. No one, unless acquainted with their feudal source, could assign any reason for those rules which respect fines, escheats, or recoveries; but it is not necessary, for the purpose of enabling the reader to see the justice and good sense of the law of general average, to show him that it formed part of the maritime code of the ancient Rhodians. At the same time, it cannot be denied that the history of our commercial law is a subject of great interest and rational curiosity, &</."
Here is an example of a very common misapprehension of the origin of law in general, and particularly of the derivation of that branch called mercantile law. The author misapprehends the reason why the rule of general average has the force of law in cases of maritime losses. It is not law because agreeable to justice and good sense. If it were not that the maritime nations of Europe (the Rhodians being the first, perhaps, as matter of history) had actually given it the binding force of a law within their several jurisdictions, the judges of English courts would have had no right to apply it in enforcing a contribution. If the judges of our courts should to-morrow be of opinion that the rule hitherto pursued is not "agreeable to justice and good sense," they might—according to the author's argument—decline to apply it any longer.
And see another instance in Abbott on Shipping, Preface to the First Edition; where the author gives the reasons for referring to the maritime code of Louis XIV., as authority for English tribunals; and see Benedict's Admiralty Pr., § 5. Duer, on Insur., p. 2. Emerigon, c. i., § 6, note, by English editor. That the Roman tribunal made judicial reference to the laws of the Rhodians on the ground of its being an existing foreign law, see Peckius: De Re Nautica, Ad leg. Rh. De Jactu. Bubrica. <
1 Vinuius Coram., Lib. i., Tit. 2, 8 1. "'Vocaturque jus civile.'—In specie nimirum, nam jus civile sumptum pro eo jure quo in universum civitas utitur, etiam jus naturale et gentium, quatenus receptum est, comprehendit; eoque sensu, obligationes, qu» ex contractibus juris gentium descendunt, dicuntur civiles: licet a legislature