personal law, taking effect by their recognition by separate states, or nations, each applying them in municipal, or international law, as before defined.

§ 28. Although it is herein before assumed that natural law has no recognition in jurisprudence as legally authoritative, except as it is supported by the power of society, or of the state, and therefore, when legally or judicially operative, must be identified with positive law, yet it is also considered as being true in point of fact that all sovereign states have acknowledged in some form the pre-existence of natural principles of right, and as the originators of positive law have claimed to correspond with them. Among authors and legislators these principles have always been recognized under names indicating the difference of their origin from that strictly called positive law, such as the law of nature, the divine law, the law of right reason, &c.'

Whether all interpretation of these principles, given by sovereign states in their municipal laws, can be considered as actually corresponding with the real divine, or natural rule, which they suppose to be pre-existing, may be judged from the various decisions which successive generations of lawgivers have passed on the acts of their predecessors, each in turn founding their own judgments and corrections upon a claim to more just views of truth and right reason.

§ 29. The application of jurisprudence to the relations of persons and things is in most modern states made by judicial tribunals, distinct from the supreme legislating authority of the state.' But whatever rules or principles such tribunals may apply as law, they apply them as being the will of the supreme authority, and as being themselves only the instruments of that will. The will of the state is to be ascertained by the tribunal in one of the following methods:

First. Direct, or positive legislation, is the first and ruling indication of the will of the state, whether it acknowledges or refers to any rule of natural origin or not.

Second. Since the will of the state is to be presumed to

1 Grotius: B. et P., Lib. i., c. i., § 10. D'Aguesseau: Euv., Tom. i., pp. 446-449, Premiere Instruc. Whewell: Pol. and Mor., § 477. Cicero: De Rep., iii., 22. Lieber: Political Ethics, § 133. Pascal: Lettres Provinciales, xiv.

JUDICIAL PRECEDENTS.

25

But this

accord with natural law, where the positive legislation of the state does not decide, the tribunal must ascertain the natural law which is to be enforced as the will of the state.' law can only be determined by such criteria as are supposed to be recognized by the supreme power of the state, if such criteria exist; and this law when so determined becomes identified in its authority with positive law."

If a state is supposed to be in the commencement of its existence as a state administering law, or governing by law, the only exposition of this natural law would be the reason and conscience of the judicial tribunal.'

§ 30. But since every judgment of the tribunal which has been executed and upheld by the power of the state must be received as accordant with its will, every such judgment becomes an indication of the natural law, as received by the state, and, therefore, equal in authority, for the judgment of future tribunals, to the law received by positive legislation. Tribunals established by the state have, therefore, of necessity, a quasi-legislative power; or the tribunal, the object of whose institution is to apply the law given by the state, is incidentally a source of law.'

But there is this difference between its powers in this respect and those of the state itself, that the latter is not, in any legal

'To use the terms of Roman jurisprudence—the law proceeding from the legislator is expressed by esto; that proceeding from the tribunal by videtur. Bacon de Aug. Sc., Lib. viii., c. 3, 10. Aphorismus 32. "Curiæ sunto et jurisdictiones quæ statuant, ex arbitrio boni viri et discretione sana, ubi legis norma deficit. Lex enim, ut antea dictum est, non sufficit casibus sed ad ea quæ plerumque accidunt aptatur. Sapientissima autem res Tempus, (ut ab antiquis dictum est,) et novorum casuum quotidie auctor et inventor."

Ram on Judgment, p. 2: "A judgment that is constructed of certain materials which are law, and is, when delivered, a part of the law of the land." Legislation is first in respect to authority, but in the natural order of existence the judicial rule appears first. Reddie's Inquiries, &c., p. 110–112.

3 See Encyc. Am., vol. vii., pp. 576, 580, 586. Appendix; Law, Legislation, Codes: by Judge Story-do. p. 584. "The legislation of no country probably ever gave origin to its whole body of laws. In the formation of society, the principles of natural justice and the obligations of good faith must have been recognized before any common legislature was acknowledged," &c. Cushing: Introd. to Study of the Roman Law. Boston, 1854, p. 22.

'Reddie's Inq. Elem. &c., p. 193-5. Bentham, objecting against this source of law, calls the common law, a law ex post facto: see Papers relative to Codification, No. L., § 3, and Reddie's Inq. Elem. &c., Suppl., p. 104. Dig. L. i., Tit. 4, § 38. Consuetudinem, aut rerum perpetuo similiter judicatarum auctoritatem, vim legis obtinere debere.

sense, bound 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."

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

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 primæval 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: Legal Judg., 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 côté du droit coutumier vient se placer la practique judiciaire, Gerichts-gebrauch, l'usage du palais, (usus fori, Observanz, stylus curia) c'est à dire, l'ensemble des règles de droit qui se forment par la practique uniforme des functionaires publics dans les affaires juridiques.

"Les maximes ainsi établies ont aussi force des lois; mais quand commencent elles à l'avoir? C'est ce qu'il n'est pas possible de préciser; tout se reduit à ceci; il faut que le nombre des précédents (præjudicate) soit suffisant pour constituer une opinion sur un point de droit. Il est évident qu'il serait irrationel d'attribuer un pareil effet à une seule decision judiciaire. Quelquefois cependant l'autorité d'un fonctionaire où d'un corps a été assez grande pour mettre hors de doute, par une seule decision, des points de droit controversés."

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,' 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

2

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. &c. 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 Ch. 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. 350:"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 Comm., 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: Lect. prel., p. xxxiii.

custom must be tested by other indications of natural reason which, in judicial recognition, are identified with the will of the supreme power.'

§ 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 consuetudinibus non diuturnitas 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 Brehons), 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, c'est à dire la theorie de ce qui est droit, exposée de vive voix ou par ecrit, par les savants voués à l'etude de la jurisprudence, devrait, d'apres sa nature, être seulement un moyen auxilliaire pour apprendre à connaitre le droit en vigueur; cependant elle est devenue, à plusieurs égards, une véritable source du droit. La literature juridique en particulier a exercée, à certaines époques, comme le montrent toutes les bistoires du droit, une si grande influence, que beaucoup d'ouvrages de jurisprudence ont obtenu formellement force de loi. Mais, il faut le dire, c'est là un abus veritable, qui n'a pas d'autre motif que la paresse d'esprit, ou la foi à l'autorité."

Dig., Lib. I., Tit. ii., c. 2, § 12. Ita in civitate nostra, aut jure, 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. Ram 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: Heut. R. R., B. I., c. 3, §§ 14, 26. Butler's Hora Juridica, Essay, Roman Law. De Ferriere: Hist, of Roman Law, ch. ix.

Heffter: Europäisches Völkerrecht, p. 22, speaks of a class or school of publicists