Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 28

1st, The sources of law, and the various modes in which it originates: under which head I shall treat of the distinctions between law written and unwritten; law positive and natural; jus civile and jus gentium; law and equity: touching on various other topics which are suggested by them.

2ndly, From the sources of law, and the modes in which it originated, I shall proceed to the distinction between the law of things and the law of persons; and in endeavouring to analyse that distinction, I shall examine the notion of status or condition, and the distinction between public and private law: for the term public law, unless it be used in a sense which would include all law, denotes, as it appears to me, a particular department of the law of persons.

3rdly, I shall examine the arrangement of the Roman lawyers in their institutional and elementary writings; an arrangement which I believe to be just in the main, and which is unquestionably the groundwork of most of the modern attempts to give a systematic shape to the whole body of any system of law.

And this I am afraid will be nearly all which I shall be enabled to accomplish within the present course. I have thought it better to explain fully, and with passable distinctness, a few leading topics, than to touch on a great number lightly and hastily. The gentlemen who have so kindly come forward to support me in my first attempt, will, I am sure, make the due 510allowance for the imperfections unavoidable in a commencement, and for the occasioned interruptions which have been caused by inevitable illness. If I am able to get through these topics before the expiration of the session, I will then touch upon some of the details of the science, such as the various species of rights in rem; dominium, servitus, and so on: the distinction between contracts and quasi-contracts, and an outline of the various species of contracts. I am extremely sorry to be obliged to leave off in this lame manner, but I hope that I shall meet with the indulgence due to a first attempt.

Meanings of the phrase, ‘Sources of the law.’ 1. The direct or immediate author of the law.

In many legal treatises, and especially in treatises which profess to expound the Roman law, that department or division which regards the origin of laws, is frequently entitled ‘De juris fontibus.’ The expression fontes juris, or sources of law, is ambiguous.

In one of its senses, the source of a law is its direct or immediate author. For either directly or remotely, the sovereign, or supreme legislator, is the author of all law; and all laws are derived from the same source; but immediately and directly laws have different authors. As proceeding from immediate authors of different characters or descriptions, laws are talked of (in the language of metaphor) as if they arose and flowed from different fountains or sources: in other words, the immediate author of a given Rule (whether that author be the sovereign or any individual or body legislating in subordination to the sovereign), is styled the fountain, or the source, from which the rule in question springs and streams. But this talk is rather fanciful than just; for, applying the metaphor with the consistency which even poetry requires, rules established immediately by the supreme legislature are the only rules springing from a fons or source. Individuals or bodies legislating in subordination to the sovereign, are more properly reservoirs fed from the source of all law, the supreme legislature, and again emitting the borrowed waters which they receive from that Fountain of Law.

Taken in the sense to which I have now adverted, the fountains or sources of laws are their immediate authors or makers. Thus the supreme legislature is the author or source of the laws which it publishes directly. A corporate body, or a subordinate legislature (like those of our colonies), is the source of those laws which it makes and publishes with the sovereign’s consent. Courts of justice are a source of law, in so far as the law consists of judicial decisions, binding upon subsequent judges. And admitting for the present that customs 511constitute a distinct species of law, custom, or the persons with whom the custom originated, are authors or sources of law.

In another acceptation of the term, the fountains or sources of laws are the original or earliest extant monuments or documents by which the existence and purport of the body of law may be known or conjectured.

Taken in this acceptation, the fountains or sources of laws are properly sources of the knowledge which is conversant about laws: ‘fontes e quibus juris notitia hauritur.’

But the term ‘fontes’ (as thus understood) is restricted to the original, or to the earliest extant, documents. Documents which are copies of these, or which give at second-hand the evidence contained in these, are not fontes or sources of knowledge, but rivi or conduits through which it emanates from the sources. For example: Considered in mass, all the relics of antiquity, which regard the Roman law, are ‘fontes juris Romani;’ ‘fontes e quibus juris Romani notitia hodie hauritur.’ For (speaking generally) the extracts from the classical jurists contained in Justinian’s Digest, the Imperial Constitutions contained in his Code, with such other relics of antiquity as regard the Roman law, are the earliest evidence, or the earliest extant evidence, for the several parts of the system to which they respectively relate. These, therefore, are ‘fontes.’

But the works of the Glossators and Commentators who wrote in the Middle Ages, with the works of Civilians who have written in subsequent periods, are not fountains or sources of that knowledge of the system which may be gotten at the present hour. For the countless authors of those countless volumes derived their own knowledge of the Roman Law from ancient documents or monuments which are still extant and accessible. Accordingly, the works of the Glossators and Commentators who wrote in the Middle Ages, with the works of Civilians who have written in subsequent periods, are by the German writers on jurisprudence distinguished from the documents which constitute the fontes or sources by the general and collective name of ‘Literatura.’

The term ‘fontes juris’ has, therefore, a double signification. As proceeding from immediate authors, of various characters or descriptions, laws are said to emanate from various sources or springs: whilst the earliest extant documents which attest their being or purport are also entitled ‘sources or springs of law,’ or source or springs of the knowledge which is conversant about it.

512And so (in regard to the English law), the statutes, the reports of judicial decisions with the old and authoritative treatises which are equivalent to reports, may be deemed sources of English jurisprudence; whilst the treatises on the English law, which merely expound the matter of those statutes and reports, are not sources of English jurisprudence, but are properly a legal literature drawn or derived from the sources.

Law considered with reference to its sources, is usually distinguished into law written and unwritten.

The distinction between written and unwritten law in the modem acceptation of the term, is this: Written law is law which the supreme legislature establishes directly. Unwritten law is not made by the supreme legislature, though it owes its validity, or is law by the authority, expressly or tacitly given, of the sovereign or state. Accordingly the modern Civilians, with whom the distinction as thus understood originated, commonly ranked under jus scriptum, laws made by the populus or plebs, senatus-consulta and the constitutions of the emperors. Laws enacted by the people assembled in centuries, were made by the supreme legislature, and were therefore jus scriptum in the sense above explained; and the same may be said of the constitutions or orders of the emperors after they openly assumed the style of sovereignty. How the plebs or the senate came to be held equivalent to the populus assembled in centuries will be considered in a subsequent part of this lecture.

According to the same division, the edicts of the Prætors and other judicial functionaries, the rules introduced by the practice of the tribunals, the writings and opinions of juris-consults, and laws established by custom, were unwritten law, or jus non scriptum. For although law originating in any of these sources, owed its validity to the assent of the supreme legislature, it was not made by the supreme legislature, directly and immediately.

The distinction between written and unwritten law, as drawn by the modern Civilians, was adopted by Hale, and imported by Blackstone into his Commentaries. Both Hale and Blackstone restrict leges scriptæ, or written laws of this kingdom, to statute acts or edicts made by the king, by and with the consent of the lords spiritual and temporal and commons in Parliament assembled. General and partial customs, and laws established by the practice and usage of the Courts, they rank under leges non scriptæ, or unwritten laws.²⁵

²⁵ The foregoing part of this lecture is not contained in the former edition, the corresponding part of the MS. having (as it appears) been missing. It is here supplied from J. S. M.’s notes.—R. C.

513By the Roman Lawyers themselves, little importance was attached to the distinction between written and unwritten law. And, in every instance in which they take the distinction, they understand it in its literal sense. When they talk of written law, they do not mean law proceeding directly from the supreme Legislature, but law which was committed to writing at its origin: quod ab initio literis mandatum est. And accordingly they include in written law, not only the laws of the Populus and Plebs, with the Senatus-consulta and Constitutions of the Emperors, but also the Edicts of the Prætors and other Magistrates, and the Responses of the Jurisconsults.

Law originating in custom, or ex disputatione fori, they style jus non scriptum. For law originating in custom, or floating traditionally amongst lawyers (as in England it is well known that there is much law constantly manufacturing at the bar, which in time is adopted by the judges, and by them again emitted to the bar), is not committed to writing ab initio, although it may afterwards be recorded in legal treatises, or may be adopted by the supreme legislature and promulged in a written form. Justinian, in the second title of the first book of his Institutes, mentions the distinction in the sense last adverted to. Gaius, in his enumeration of the sources of Law, passes over the distinction in silence. The latter says, ‘Constant autem jura ex legibus, plebiscitis, senatus-consultis, constitutionibus Principum, edictis eorum qui jus edicendi habent, responsis prudentium.’²⁷ He afterwards speaks of Customary Law, or of the ‘jus quod consensu receptum est;’ and also of Mos as a source of law. But he nowhere adverts to writing, or to the absence of writing, as forming a ground of distinction between the species of laws.

²⁷ Gaii Comm. I. 2.

The distinction (if such it can be termed) which was taken by the Roman Lawyers, is altogether insignificant: Insignificant, inasmuch as commission to writing, by, or by authority of immediate author, is an accident; though no considerable body of law can be preserved and known, unless written, with or without authority.

Written and unwritten law, according to the improper and juridical meaning of the terms, is an important distinction.

That which has been taken by the moderns is important. But nothing can be less significant or more misleading than the language in which it is conveyed. For, first, law, though it originate with the supreme legislature, is not necessarily written. 514It may be, and in many nations has been, established and promulged without writing. And, on the other hand, law flowing from another source, though obtaining as law with the consent of the supreme legislature, may be committed to writing at its origin. Such, for instance, are the laws of Provincial and Colonial Legislatures. And such especially (as I shall shew hereafter) were the edicts of the prætors.

Laws, then, are distinguished in respect of their sources, or of their direct or immediate authors, into laws which are made directly and immediately by the supreme legislature, and laws which are not made directly and immediately by the supreme legislature, although they derive their validity from its express or tacit authority. I shall now proceed to give examples of these two kinds of laws.

Examples of laws made directly by the sovereign. 1. Acts of the British Parliament.

An example of laws made by the sovereign body directly and immediately, is that of our own Acts of Parliament, which are made directly by the supreme legislature in its three branches, the King, the House of Lords, and the House of Commons.

2. Ordinances made by the États Généraux in old France, while they subsisted, and by the King afterwards.

Another example is that of the enactments passed by the États-Généraux in France, while that body continued to exist and to be recognised as the supreme legislature. When the Kings of France became constitutionally the sovereigns, or when the French Government became a monarchy, the royal ordinances were laws of the same kind.

In Rome under the Commonwealth, or in liberâ republicâ, laws established by the supreme legislature were of three kinds: there were three distinct bodies whose decrees were considered as made by the sovereign or supreme legislature. These were 1st—the populus, assembled in curiæ, according to the most ancient form, or, according to the manner subsequently introduced, in centuries; 2ndly, the plebs, assembled in tribes; and 3rdly, the senate.

Strictly speaking, the sovereignty resided in the populus; which included every Roman invested with political powers, and therefore included members of the senate, as well as citizens who were not senators. To laws made by the populus (whether assembled in curiæ, according to the more ancient manner; or in centuries, according to the more recent fashion), the term ‘leges’ or ‘statutes’ (when used with technical exactness) was exclusively applied. But as the term ‘leges’ or ‘statutes’ was afterwards extended improperly to laws made by the plebs, ‘leges’ strictly so called, or laws made by the populus, were 515commonly styled, for the sake of distinction, ‘Leges curiatæ’ or ‘Leges centuriatæ.’

The plebs (as distinguished from the senate) included all citizens of plebeian birth who were not senators.

The senate (as distinguished from the plebs) included all citizens of patrician birth, and also all citizens of plebeian birth who filled (or had filled) certain of the higher offices. For example: Consuls, prætors, and tribunes of the plebs, together with ex-consuls and ex-prætors, were members of the assembly styled the senate, whether they were patricians or plebeians.

The distinction between patrician and plebeian, and the distinction between senate and plebs, were therefore disparate. For, although every patrician seems to have been a senator, many of plebeian birth sat and voted in the senate.

A law passed by the plebs was styled, in accurate language, a plebiscitum. But as every plebiscitum was equivalent to a lex, the term ‘leges’ was extended improperly from laws made by the populus to laws made by the plebs.

How plebiscita acquired the form of leges, or came to be considered as laws made by the supreme legislature, it is not very easy to determine. For the plebs was only a portion of the whole Roman People, and therefore was not the body wherein the sovereignty resided. It seems not unlikely, that the plebs (instigated by their Tribunes) assumed the power of legislating for the whole community: and that the senate (too feeble to resist) yielded, after a struggle, to the unconstitutional pretension. Gaius tells us expressly, that the senate at first refused to recognize plebiscita as leges generally binding; but that the force of leges was at length imparted to plebiscita through a law passed by the populus.²⁸

²⁸ Gaii Comm. I. 3.

It also seems probable (as is suggested by Hugo, an eminent German writer on the Roman Law), that a compromise took place, and the plebiscita were prepared first by the senate and then adopted by the plebs. And, if that supposition be just, every law of the kind was made with the concurrence of both, and was nearly equivalent to a Lex, or statute made by the entire people. The power of supreme legislation, instead of being exercised by the populus assembled in a single body, was exercised by two bodies into which the populus was divided. One of these bodies (namely the senate) possessed the initiative, or the power of proposing laws. The other of these bodies 516(namely the plebs) possessed the power of passing or rejecting laws concocted and proposed by the senate.

Laws passed by the senate (which were styled senatus-consulta) were also equivalent to leges made by the assembled populus.

It has often been inferred from a passage in Tacitus, that consults or acts of the senate first acquired this virtue under the reign of Tiberius. But they are distinctly placed by Cicero (writing liberâ republicâ) on a level with leges and plebiscita. Nor is there here the slightest difficulty. For, since the tribunes of the plebs sat in the senate, and by simply uttering their veto might have arrested its proceedings, it follows that a consult of the senate was passed with the concurrence of the plebs, assenting to the act by its representatives. Senatus-consulta therefore were not acts of the senate alone, but acts of the senate in which the plebs by their representatives concurred.

Liberâ republicâ, or, during the Commonwealth, the supreme legislative power resided in the Roman People (including the senate and plebs).

This legislative power was sometimes exercised by the people, as collected in a single assembly. At other times, it was exercised by the same people as divided into two bodies:—namely, by the plebs, with the concurrence of the senate; or by the senate, with the concurrence of the plebs. And, in either of these last-mentioned cases, the joint act of the parts into which the whole was divided, was equivalent to an act of that sovereign whole as united in one assembly. If our House of Lords and House of Commons sometimes sat and voted in one assembly, and sometimes separately as at present, they would afford an exact parallel to the manner in which the sovereignty was divided in the Roman Republic. Acts passed by the two bodies assembled in one house, would correspond to leges curiatæ and centuriatæ; acts originating in the one House and adopted by the other, would be plebiscita or senatus-consulta. The only difficulty in this explanation is, that the equestrian order, although of course members of the populus, were not members either of the senate or plebs. Enactments passed by one of those bodies with the concurrence of the other were therefore not, strictly speaking, acts of the entire populus; though acts of the populus, united in curiæ or centuriæ, were so.

The Constitution of the Roman Republic is not very accurately known; nor, with a view to the study of the Roman 517law, is any very accurate knowledge of it necessary; since the whole of the body of Roman law which existed in the time of Justinian was of a date posterior to the termination of the republican government. But a knowledge of the general outline of the Roman constitution is necessary for understanding the law terms.

While, then, the Roman Commonwealth virtually existed, law created immediately by the supreme legislature was established in three modes:—by leges, or statutes, strictly so called; by plebiscita, also styled leges; and by senatus-consulta.

While I am on the subject of leges, I will just observe, that lex in the Roman writers is always equivalent to the word statute. It invariably signifies some particular law, made in a manner which would induce us to call it a statute; and is never used (like our word law) as a collective name to signify all law, whatever its form or origin. The word which the Roman writers employ for this purpose is jus; which denotes all, laws and all rules of law, let their origin be what it may. It is a sure sign of utter unacquaintance with the Roman writers, to use the word lex in that enlarged sense; thus Chief Baron Gilbert, by speaking of lex prætoria, betrays his ignorance of the Roman Law.

After the destruction of the Commonwealth and the establishment of the Empire, the supreme legislative power, though it virtually resided in a monarch, was long exercised to appearance in the ancient and constitutional modes. Laws were still made by the populus, plebs, or senate, although those bodies were obedient instruments of the Emperor, and legislated at his suggestion, or at the suggestion of his creatures. As assemblies of the populus or plebs were the less commodious tools, the work of supreme legislation was commonly done to appearance by the smaller and more manageable body. The laws which really emanated from the military chief of the Empire, were usually voted by the senate at the instance of the prince (‘ad orationem principis’), and were promulged or published as senatus-consulta.

And here it may be observed that the only constitutional title of the chief of the state was Princeps: which corresponds not exactly to the term president of the senate, but rather to our phrase father of the senate; the oldest and most authoritative member who had no particular rights in consequence of his rank, except that of preaudience, and some honorary 518observances. The head of the state, though really despotic, was by fiction nothing more than princeps senatus; he was never called emperor (imperator), which was a mere military title and denoted general; except when he was considered as chief of the army. Princeps is the title invariably given by Tacitus.

From the accession of Hadrian, and perhaps from an earlier period, the Emperors openly assumed the supreme legislative power which they had before exercised covertly. Instead of emitting their laws through the populus, plebs, or senate, they began to legislate avowedly as monarchs and autocrators, and to notify their commands to their subjects in Imperial Constitutions.

These imperial constitutions (which are not unfrequently styled principum placita) were general or special.

By a General Constitution (edictum, lex edictalis, epistola generalis) the emperor or prince, acting in his legislative capacity, established a law or rule of a universal or general character, and not regarding specifically a single person or case.

Special constitutions were of various kinds, but agreed in this: that they regarded specifically single persons or cases. One kind of special constitution was called an extraordinary mandate; and was an order addressed to a civil or military officer, for the regulation of his general conduct in the execution of his office, or even for the regulation of his conduct on a particular occasion. But the most important and remarkable of all these special constitutions, were those decretes and rescripts which were made by the Emperors, not in their quality of sovereign legislators, but in their quality of sovereign judges: a decrete being an order made on a regular appeal from the judgment of a lower tribunal; and a rescript being an order preceding the judgment of the lower tribunal, and instructing that lower tribunal how to decide the cause.

By a Special Constitution of another class, the Emperor conferred on some single person some anomalous or irregular right, or imposed upon some single person some anomalous or irregular obligation, or inflicted on some single person some anomalous or irregular punishment. Such constitutions were styled privilegia. Or, speaking more accurately, such constitutions were pivilegia issued by the Emperors. For a Lex or Senatus-Consultum of the same purport or effect, would also have been a privilegium. When such privilegia conferred anomalous rights, they were styled favourable. When they 519imposed anomalous obligations, or inflicted anomalous punishments, they were styled odious. An act of the British Parliament giving to the inventor of a machine an exclusive right of selling it, would be styled in the language of the Roman Law ‘a favourable privilege.’ An Act of Attainder would be styled in the same language ‘an odious privilege.’

A privilegium, in short, is a special act affecting special persons with an anomalous advantage, or with an anomalous burthen. It is derived from privatum, which, as opposed to publicum, signified anything which regards persons considered individually; publicum being anything which regards persons considered collectively, and as forming a society. Privilege in English denotes rather the anomalous right than the law giving the anomalous right, or impressing an anomalous obligation. Thus it would be said that an inventor had obtained the privilege of being the only seller of his invention; not that the legislature had enacted a privilege conferring on him that right. In common and loose talk, our word privilege seems to be merely synonymous with right. It may here be observed that although a privilegium, considered from one aspect, regards a single or determinate person; considered from another aspect, it regards persons generally. Although by a patent, an exclusive right of selling a given article be conferred solely on me, the same law is evidently general so far as respects the corresponding obligation on other persons to abstain from violating my right. And the same may be said of a privilegium imposing an obligation upon an individual; it supposes obligations on other persons generally to forbear from all acts which would hinder the performance of the obligation. It is for this reason that it is necessary to define a General Constitution negatively, as I have done in the definition above given: namely, a law or rule of a universal or general character, and not regarding specifically a single person or case.

A third class of these Special Constitutions, and the most important and remarkable, consisted of those decretes and rescripts which were made by the Emperors, not in their quality of sovereign legislators, but in their quality of sovereign judges; a decrete being an order made on a regular appeal from the judgment of a lower tribunal; and a rescript being an order preceding the judgment of the lower tribunal, and instructing that lower tribunal how to decide the cause.²⁹ For, 520although in modem Europe the judicial power residing in the sovereign is commonly delegated by him to individuals called judges, the Roman emperors were themselves judges in the last resort.

²⁹ Like the rescripts of the Roman Emperors the canon laws or decretal epistles of the Popes are all rescripts in the strictest sense.

I find this a convenient opportunity to observe that sovereignty, being unlimited and incapable of any legal limitation, includes the judicial as well as the legislative power. The judicial powers implied in sovereignty are in our own times commonly delegated wholly or in part; but in the nations of antiquity and in the Middle Ages the person or body of persons composing the supreme legislature was also the judge in the last resort, or even in the first instance. The populus of Rome, which was the supreme legislative body, was also the judge in capital cases. The Mickle-mote or Wittenage-mote of the Anglo-Saxons was both the legislature and a Court of Justice. Even after the Norman Conquest, the Aula Regis or Great Court Baron of the kingdom, was a Court of Justice as well as the sovereign or supreme legislature; and it is from the Aula Regis that our House of Lords, although no longer the same assembly, and not now the sovereign, but a branch of the supreme legislature, derives the judicial power which it still exercises. I cannot remember that Parliament in its collective capacity ever exercised judicial power, although there is one case (by the statute of Treasons, 25 Edward II. c. 2) wherein our present Parliament (meaning the King, Lords, and Commons) appears to have been invested by statute with the powers of a Court of Justice. Indeed, the judicial power seems to have been more completely detached from the legislative in our own country than in any other.

The proper purpose of a decrete was the decision of some question touching the existing law which had arisen in a particular cause between particular parties. But the law was often made by imperial decretes, as it is by the decision of our Courts. Where the existing law afforded no principle applicable to the case, or where the supreme judge was ignorant of the existing law, or disliked it and was desirous of setting it aside, he decided the case on some new ground, which usually became law as completely as if it had been solemnly enacted by an edict. To use our own expression, it served as a precedent. The principle on which it was founded was considered as law, and applied as such to the decision of subsequent cases.

This mode of establishing laws I shall analyse hereafter; in the meantime I will mention that the manner of legislating by 521judicial decision is the same, whether the judge be sovereign or subordinate; though the law in the two cases is derived from different sources. As a subordinate body clothed by the sovereign with legislative power may make laws by direct enactment, so the sovereign, acting in the capacity of a judge, may make them in the indirect mode of judicial decision. This distinction between direct and oblique legislation, or legislation in the legislative and in the judicial mode, is far more important than the distinction between written and unwritten law, or law made directly by the sovereign, and law made immediately by a subordinate authority.

Having now given examples of law made directly and immediately by the sovereign, I proceed to examples of law not made directly and immediately by the sovereign, although it exists or obtains as law by the express or tacit authority of the supreme legislature.

And, first, laws made by subordinate legislatures, in the direct or legislative manner, are not established immediately by the supreme legislature, although they derive their force from the authority of the sovereign.

Such were the laws made by the Irish Parliament before that Act of the British Parliament which acknowledged the independence of Ireland. In fact and practice, the Irish Legislature (consisting of the King and the Irish Houses of Parliament) was in a state of subjection to the supreme legislature of Britain: that is to say, to the same King and the British Houses of Parliament. An Act of the British Legislature bound the inhabitants of Ireland, if the Act contained a provision extending it to that country. And acts of the Irish Legislature might have been abrogated or modified by acts of the British.

Laws made by Collegia, or by Corporate bodies, belong to the same class. They are made immediately by the Corporate bodies themselves, but owe their legal validity to the authority of the sovereign.

The power of subordinate legislation granted to a subordinate legislature, is conferred by the sovereign legislature expressly or tacitly.

If it be granted or admitted by written or oral declaration, it is conferred by the sovereign expressly.

The sovereign confers it tacitly, by any conduct (not consisting in such declaration) which necessarily supposes that he acknowledges or admits it. For example, if he enforce a law 522made by a subordinate legislature, or permits his Courts of Justice to enforce that law, his positive or negative conduct necessarily supposes that he acknowledges a power of legislation in the immediate author of the law.

Of laws made by subordinate legislatures in the direct or legislative mode, the most remarkable are those which are made by Courts of Justice, not in their judicial capacity, and in the way of decisions on special cases, but by a power of proper legislation conferred upon them expressly or tacitly by the supreme legislature.

Such are the regulæ praxis published by our own Courts of Justice, which are distinguished broadly from the laws established by the same Courts in the indirect mode of judicial decision.

Such also were the arrêts réglementaires of the French parlements; which were not judicial decisions on specific or particular cases, but general laws or statutes, promulged by the parlements acting as subordinate legislatures. Their decisions on special cases were not only different in their character, but bore a different name: arrêts judiciaires, which is equivalent to judgments or decisions.

Such above all were the edicts of the Roman Prætors forming the body of law called Jus Prætorium. The manner in which this portion of the Roman Law was made, and the causes of its being made, are among the most interesting phenomena in the history of jurisprudence. It was not made in the way of decisions in particular cases, but consisted of general laws, made and promulged in the way of direct legislation; by virtue of a power asaumed at first by the Prætors, with the acquiescence of the supreme legislature, and subsequently confirmed to them by its express recognition and authority. Agreeably to their application of the terms written and unwritten law, corresponding to the distinction which I am now illustrating, Jus Prætorium is invariably classed by the modem Civilians under the head of unwritten law. For though such rules were written (in the grammatical sense of the expression), and moreover were promulged or published, they yet proceeded immediately from subordinate authors, and are therefore rightly classed under unwritten law, according to the improper sense of the opposed epithets written and unwritten as applied to law, which I call their juridical sense.

Another species of laws emanating immediately from a subordinate authority, consists of laws established obliquely, or by 523judicial decisions: namely, by the decisions of subordinate tribunals: for laws, as has already been observed, are occasionally made in this oblique manner by the sovereign himself. And agreeably to their application of the terms written and unwritten law in the juridical sense, the term unwritten law is applied by the same modern Civilians to the rules of judiciary law which were engendered by the usus fori: that is to say, which were immediately created by the Prætors, and other subordinate judges, as directly and properly exercising their judicial functions.

Laws originating in customs, and in the of opinions of the jurists, not distinguishable from other laws in respect of their source.

The term unwritten law in the same meaning is applied by the same Civilians to jus moribus constitutum, and jus prudentibus compositum, that is to say, law emanating (or supposed to emanate) from opinions emitted by respected, but merely private, jurisconsults in responses, in commentaries, or in systematic treatises. But neither laws originating in customs, nor laws originating in the private opinions of jurisconsults or institutional writers, are (properly speaking) distinct species of law in respect of their sources.

A custom, as such, independently of legislative sanction, is not a law, but a moral rule. When it has been embodied or promulged in a statute, or made the ground of a judicial decision, it has the force of law; but then it is statute law built on an anterior custom, or law established by a judicial decision of which anterior custom was the basis or principle.

The same reasoning applies to law originating in the opinions of private jurisconsults. The writings and opinions of jurisconsults are often causes of law by determining acts of legislation, and oftener by determining decisions of Courts of Justice. But the source or immediate author of the law is the legislator, sovereign, or subordinate who legislates in pursuance of their opinions, or the judge, sovereign, or subordinate whose decisions their opinions determine.

There are certain opinions of Roman jurisconsults to which this observation does not apply, if we give credence to certain statements in the Digest as to the authority conceded to these jurisconsults.³⁰ For, assuming that these jurisconsults had the authority there alleged to have been conceded to them, they were in effect, though not in name, judges of the law; and their opinion was therefore tantamount to a judicial decision. But it is more likely that the responses of private jurisconsults were never sources of law, though they exerted upon the decisions of 524judges that influence which is naturally exercised by known and expert persons over persons comparatively ignorant and unskilful.

³⁰ Dig. I. 2, 2, § 47. Inst. I. 2, § 8. And vide post, p. 545.

The great influence which the responsa prudentium, or opinions of private jurisconsults, naturally exercised in the making of the law, is manifest from this, that the Pandects are wholly composed of excerpts from their writings. These writings and the Imperial Constitutions had, in the time of Justinian, entirely superseded all the other sources of law, and his compilations, the Pandects and Code, wholly consist of them. Some of our own writers have exercised the same kind of influence: Lord Coke, for example, whose opinion, though not in itself a source of law, would be considered as conclusive evidence of the law as it existed in his time.³¹

³¹ There is perhaps no modern body of law which directly owes less to the cause last mentioned (namely the opinions and writings of private lawyers) than the English law. The reason of this is partly its extreme wealth in the memory (assisted by reports) of judicial precedent, and partly its extreme poverty in systematic treatises. But indirectly it owes much to this cause, as will be found insisted on by the author in Lecture XXX. post, pp. 546, 547.—R. C.

Another species of laws not made by the supreme legislature, are laws (if such they can be called) which are established by private persons, and to which the supreme legislature lends its sanction. These (in truth) are nothing but obligations imposed by virtue of rights which the legislator has conferred. For example, By my will I may impose certain conditions upon devisees or legatees. By virtue of a contract, the contracting parties impose upon one another certain obligations. As a father or guardian, I may prescribe to my child or ward certain conduct, which the Courts of Justice will compel him to follow.

I mention this because such commands are styled by some modern writers autonomice-gesetze, which is equivalent to laws made autonomically, or by private authority. This, however, is incorrect, because a private person cannot be the author of law; though he may be a party to a transaction, by which transaction, in virtue of a general law made by the legislator, he gives certain rights and creates certain obligations.³²

³² For the more complete analysis of the compound nature of an autonomic law, refer to vol. i. p. 180, and note there.

Having stated and exemplified the distinction between laws made directly by the sovereign and laws not made by him directly, although existing as laws by his express or tacit consent, I shall next re-state the distinction, or rather the two disparate distinctions, between written and unwritten law, and then proceed to state various distinctions between laws, partly 525founded on the difference between their sources, and partly on the difference between the modes in which they originate or arise.