533
[end of lecture 29]

LECTURE XXX.

CERTAIN SUPPOSED SOURCES OF LAW EXAMINED.—JUS MORIBUS CONSTITUTUM, JUS PRUDENTIBUS COMPOSITUM, JUS NATURALE.

Recapitulation.

In my last two Lectures I endeavoured to explain or indicate the respective natures and the mutual relations, of the three disparate distinctions which I will now enumerate:

1st. The distinction between written or promulged law and unwritten or unpromulged law, in those improper senses, annexed to the opposed epithets, which are styled their juridical senses: or, between law proceeding immediately from a sovereign or supreme maker, and law proceeding immediately from a subject or subordinate maker (with the authority of a sovereign or supreme).

2ndly. The distinction between written law and unwritten law, in those more proper senses, annexed to the opposed epithets, which are styled their grammatical or literal senses.

3rdly. The more important distinction, between law established directly, and law established obliquely; or between law established in the legislative manner, or in the way of proper legislation, and law established or introduced in the judicial mode, or by way of judicial legislation: or between law established by its immediate author, as directly and properly exercising legislative functions, and law established or introduced by its immediate author, as properly exercising judicial functions.

534I also stated and examined the distinction between written and unwritten law, which is made by Sir Matthew Hale and Sir William Blackstone; who apparently intend the distinction between written and unwritten law, in the juridical meanings of the terms; but who seem to blend and confound this last-mentioned distinction with the utterly disparate distinction between written and unwritten law, in the grammatical senses of the expressions.

Having briefly recalled to your recollection these distinctions, I will now suggest the subjects of the present lecture.

Supposed kinds of positive law.

Every Positive Law, obtaining in any community, is a creature of the Sovereign or State: having been established immediately by the monarch or supreme body, as exercising legislative or judicial functions: or having been established immediately by a subject individual or body, as exercising rights or powers of direct or judicial legislation, which the monarch or supreme body had expressly or tacitly conferred.

But though every positive law exists as positive law through the position or institution given to it by a sovereign government, it is supposed by a multitude of writers on general and particular jurisprudence, that there are positive laws which exist as positive laws, independently of a sovereign authority.

The kinds of positive law to which this independent existence is the most frequently attributed, are the following:

1° Customary law: or, the positive law which is made by its immediate authors on customs or mores:—

2° The positive law which is made by its immediate authors on opinions and practices of private lawyers:—

3° The law, which, as forming a part (or as deemed to form a part) of every system or body of positive law, is styled natural or universal.

To show the falsity of the supposition in question, through a brief examination of the natures of these three kinds of law, is the main object of the present lecture. The nature of customary law, of law formed on opinions of private lawyers, and of natural law (as a kind of positive law), are therefore its principal subjects: And to these subjects I will now address myself in the order in which I have announced them.

Customary laws; notorious, and needing proof.

The laws or rules styled customary may be divided into two classes.—Those which are enforced by the tribunals, without proof of their existence; and those which must be proved, before the tribunals will enforce them.

Laws or rules of the former class, are styled notorious. Or 535it is said that the tribunals take judicial notice of them; or that the tribunals are conscious judicially of their existence.

The division which I have now stated, must not be confounded with the division of laws into general and particular. General Laws or Rules (or as they are sometimes styled Common Laws or Rules) obtain throughout the territory of the given independent society. Particular Laws or Rules obtain in districts or places, which are portions of that territory.

This division and the former division, are disparate or cross divisions.

For, first; Many particular laws (or many of the laws which are restricted to districts or places) are not customary, but statute laws. And (secondly) many laws which are at once particular and customary, are noticed judicially by the tribunals. Such, for instance, are the particular laws, styled the custom of gavelkind, which are restricted to a certain region of our own country.

Civil and Canon Laws, as recepta, ranked by Blackstone with particular customs.

It is remarkable that the Civil and Canon Laws (as obtaining in England) are ranked by Blackstone and Hale with particular customary laws. Inasmuch as they are not restricted to districts or places, but obtain as Law throughout the kingdom, it is clear that they are general, and not particular (taking the terms in the meaning which I have just stated). If they are particular, because they are only applicable to particular matters or subjects (as marriage, testaments, and so on), it follows that every law is a particular law. For no one law regards all the subjects about which the aggregate of Laws is conversant. If they are particular, because they are enforced by particular or peculiar Courts, so is Equity particular, and so are certain of the Rules enforced by the General Courts of Common Law. Each of these Courts has rules peculiar to itself: the practice of the Exchequer, and of the Common Pleas, varying from one another, and from the practice of the King’s Bench.

The truth is, that the Canon and Civil Laws (as obtaining in England) are what would be styled by the Roman Jurists ‘singular:’ that is to say, not singular, as applying exclusively to peculiar subjects, or as obtaining in districts or places, but as not harmonising or being homogeneous with the great bulk of the system.

This want of harmony or consistency with the great bulk of the system, the Roman Lawyers denote by a very odd expression: ‘inelegantia juris.’³⁷ Now the Canon and Civil Laws (as 536they obtain in England) may be singular or inelegant, but they are not less portions of the general law of the land than Common Law or Equity.

The division of laws into general and particular, I shall consider in a future Lecture. With reference to my present purpose, a particular customary law is not distinguishable from a general, provided it belong to that class of customary laws of which the tribunals are judicially conscious or informed, and which they will enforce without proof of their existence.

I shall now advert to general customary laws, and to those particular customary laws which tribunals will enforce without proof of their existence. Those particular customary laws of which the tribunals are not judicially informed, I shall consider afterwards. For to them, many of the remarks immediately following will not apply.

A custom is only a moral rule until enforced by the tribunals.

Independently of the position or establishment which it may receive from the sovereign, the rule which a Custom implies (or in the observance of which a custom consists) derives the whole of its obligatory force from those concurring sentiments which are styled public opinion. Independently of the position or establishment which it may receive from the sovereign, it is merely a rule morally sanctioned, or a rule of positive (or actual) morality. It is, properly, jus moribus constitutum. It properly obtains as a rule through the consensus utentium; its only source or its only authors, are those who observe it spontaneously, or without compulsion by the state.

When turned into a law, it is law emanating from the sovereign or a subordinate legislator or judge.

Now a merely moral, or merely customary rule, may take the quality of a legal rule in two ways.—it may be adopted by a sovereign or subordinate legislature, and turned into a law in the direct mode; or it may be taken as the ground of a judicial decision, which afterwards obtains as a precedent; and in this case it is converted into a law after the judicial fashion. In whichever of these ways it becomes a legal rule, the law into which it is turned emanates from the sovereign or subordinate legislature or judge, who transmutes the moral or imperfect rule into a legal or perfect one.

On the first of these suppositions, the legal rule which is derived from the customary, is Statute Law: and it is styled statute, and not customary law, although it is made, by its immediate author, on a pro-existing custom. For since he utters it openly and professedly, as and for a positive law, no one confounds the source of the positive law itself with the source of the customary rule on which it is shaped by the legislator.

537On the second of these suppositions, the legal rule which is derived from the customary, is a rule of judiciary law. But though, as a rule of judiciary law, it is not less positive law than it would be if it were a statute, it often is deemed law emanating from custom, or jus moribus constitutum. For since the judicial legislator is properly acting judicially, and therefore abstains naturally from the shew of legislation, he apparently applies a pre-existing rule, instead of making and applying a new rule. And as the pre-existing rule which he appears to apply is apparently the customary rule on which he shapes the positive, the source of that customary rule, and the source of the positive law which he virtually establishes, are not unfrequently confounded.

Whether the moral rule be converted into judiciary or into statute law, it emanates as law from the legislator, who grounds a statute upon it, or from the judge, who assumes it as the basis of a judicial decision. The source or fons of the legal rule, is not consensus utentium, although it retains the name of customary law, when clothed with the legal sanction in the judicial mode.

Those who maintain that it existed as law before it was enforced by the legal sanction, or that it was established as law consensus utentium, confound law with positive morality, and run into numberless inconsistencies which they cannot possibly avoid. They are obliged to admit that its continuance as law depends on the sovereign pleasure; although if it existed as law independently of the will of the sovereign, no one could abrogate it, except its authors.

Extension of ‘source’ to every ‘remote cause’ of Law.

Taking the term ‘source’ in a loose signification, Customs may be styled sources of laws. For the existence of a custom, with the general opinion in favour of it, is the cause or occasion, or is one of the causes or occasions, of that legal rule which is moulded or fashioned upon it. But taking the term ‘source’ in the same loose signification, the causes of the custom from which the law emerges are also a source or fountain of the law itself: And, generally, any cause of any law must be ranked with its sources or fountains.

Accordingly, certain writers (as I shall shew hereafter, when I come to Natural Law) have ranked experience and reason, together with the external circumstances wherein mankind are placed, amongst the sources of the laws whereby mankind are governed.

A happier reductio ad absurdum of the position maintained by those writers could hardly be devised.

538Auctoritas Prudentium, Authority of Conveyancers, etc., are in the same predicament as Customary Law. So of Practices of Lawyers, etc. But if by ‘source’ be meant the legislative authority from which law proceeds, they are not sources although they are causes. If you like, you may indeed extend the word ‘sources’ to these, but then you ought also to extend it to any cause whatever which leads to the establishment of Law; e.g.: Reasons assigned in debate; the particular incidents which have occasioned certain laws, etc.; any circumstance, in short, which determined the Legislator or Judge to create the rule. As I have already endeavoured to shew, there can be no law without a legislative act; and for the sake of distinctness I should wish to limit the word ‘sources’ to the legislative power by which Law is established; and to designate the causes which lead to its establishment by the word ‘causes,’ or by some equivalent expression.

Generation of Customary Law, per Cicero.

That a custom becomes law, only when enforced by the political sanction, was clearly perceived by Cicero, and stated by him with more of precision than is commonly met with in his writings. If we reject the talk about nature, and allow for his habit or trick of sacrificing precision to euphony, we shall find, in the following passage, a correct statement of the origin of customary law. ‘Justitiæ initium eat a naturâ profectum. Deinde quædam in consuetudinem ex utilitatis ratione venerunt. Postea res, et a naturâ profectas, et a consuetudine probatas, legum metus et religio sanxit.’

Law styled customary, then, is not to be considered a distinct kind of law. It is nothing but judiciary law founded on an anterior custom. As merely customary law (in the loose and improper sense of the term law), or rather as merely positive morality, it comes immediately from the subject members of the community by whom it was observed spontaneously or without compulsion by the State; but as positive law, it comes immediately from the sovereign or subordinate judges who transmute the moral and imperfect into legal and perfect ruIes.

Hypothesis of Blackstone, etc. about Customary Law.

But though this account of the matter is palpably true, it is commonly supposed by writers on jurisprudence (Roman, English, German, and others) that law shaped upon customs obtains as positive law, independently of the sanction adjected to the customs by the State. It is supposed for example by Hale and Blackstone (and by other writers on English jurisprudence) that all the judiciary law administered by the Common Law Courts (excepting the judiciary law which they have 539made upon statutes) is customary law: and that since this customary law exists as positive law by force of immemorial usage, the decisions of those Courts have not created, but have merely expounded or declared it.

The following are a few specimens of the numerous absurdities and inconsistencies with which this hypothesis is pregnant.

All the customs immemorially current in the nation are not legally binding. But all these customs would be legally binding, if the positive laws, which have been made upon some of them, obtained as positive laws by force of immemorial usage.

Positive law made upon custom is often abolished by Parliament or by judicial decisions. But supposing it existed as positive law by virtue of the consensus utentium, it could not be abolished, conformably to that supposition, without the consent and authority of these its imaginary founders.

According to the hypothesis in question, customary laws are not positive laws until their existence as such is declared to the people by decisions of the Common Law Courts. But if they existed as positive laws, because the people had observed them as merely customary rules, such decisions would not be necessary preliminaries to their existence in the former character; since the people would know their existence as positive laws, without the testimony of the judges.

If all our customary laws have obtained from time immemorial, all of them may have obtained from the very beginning of the community. But many of the subjects about which these laws are conversant (as, for example, bills of exchange), had no existence till times comparatively recent. The imaginary authors, therefore, of these immemorial laws, legislated with a spirit of prophecy, and on matters which could not have concerned them.

There is much of the judiciary law, administered by the Common Law Courts, which has not been formed upon immemorial custom, or upon any custom: much of it having been made in recent times, on customs of recent origin; and much of it having been derived by its authors, the Judges, from their own conceptions of public policy or expediency.

Finally the hypothesis seems to be restricted to the rules of judiciary law which are administered by the Common Law Courts; though if all the judiciary law administered by them must, as judiciary law, be deemed customary law, the hypo540thesis ought to be extended to all the judiciary law administered by the other tribunals.

The prevalent notion about nature of Customary Law suggested to moderns by passage in Pandects.

The conceit that customary law obtains as positive law by virtue of the consensus utentium, was suggested to its numerous modern partisans by certain passages in Justinian’s Pandects, particularly a passage of Julian. The effect of the passage in question may be stated thus:

‘A custom long observed by the Roman People, is equivalent to a lex or statute which the people formally establish. For the written statute is legally binding, because the Sovereign People, by certain formalities, manifest their pleasure that it shall legally bind.

‘And the unwritten custom is also a positive law, inasmuch as the people, by their observance of it, manifest their pleasure that it shall be a positive law.’

The passage itself runs in the following manner:

‘Inveterata consuetudo pro lege non immerito custoditur: Et hoc est jus, quod dicitur moribus constitutum. Nam quum ipsæ leges nullâ aliâ ex causâ nos teneant, quam quod judicio populi receptæ sunt, merito et ea, quæ sine ullo scripto populus probavit, tenebunt omnes. Nam quid interest, populus suffragio voluntatem suam declaret, an rebus ipsis et factis?’³⁸

Without pausing to analyse the passage, I shall briefly remark on a few of the errors with which it overflows. First, it confounds an act of the people in its collective and sovereign capacity with the acts of its members considered severally, and as subjects of the sovereign whole. The laws which were made by the people in its collective and sovereign capacity, were broadly different from the customary rules which were observed spontaneously by its several and subject members. The former were positive Law. The latter had not the effect of positive Law, until they were adopted as such by the collective and sovereign people, or by those to whom it had delegated legislative or judicial powers.

Secondly: The position maintained in the passage is this:—That a customary rule which the people actually observes, is equivalent to a law which the people establishes formally; since the people (which is the sovereign) is the immediate author of each.

Now, admitting that the position will hold, where the people is the sovereign, how can the position possibly apply, where the 541people is ruled by an oligarchy, or where it is subject to a monarch? There, laws, established formally by the sovereign one or few, are not established by the subject many. And, on the other hand, customs observed spontaneously by the subject people, are not the production of the monarch, or of the sovereign body.

During the virtual existence of the Roman Commonwealth, the position maintained in the passage might have been plausible. But it is strange that the author of the passage (who lived under Hadrian and the Antonines) did not perceive its absurdity. He must have known that the Roman World was virtually governed by a monarch; and that laws established formally by that virtual monarch, and customs observed spontaneously by the subject Roman community, could not be referred (in any sense whatever) to one and the same source.

And here I would remark, by the bye, that the juridical meaning of the terms ‘written and unwritten Law’ arose from a misconstruction, by modern Civilians, of the passage which I have read and examined. The misconstruction is scarcely credible; since customary law and statute law are expressly referred by the passage to one and the same source: namely, the sovereign Roman People. It therefore is manifest, that the term ‘jus scriptum’ is used by the author of the passage, in the grammatical or literal sense. It is applied to the leges passed by the Roman populus, because they were committed to writing, at the time of their origin, by the authority of their immediate maker. And these leges are opposed (under the name of jus scriptum), to customary laws; because the latter (in so far as they originated in the consensus utentium) originated sine scripto.

Blackstone’s supplement to Julian.

Julian’s conceit exactly hits the taste of Sir William Blackstone, who borrows it with much complacency, gratefully enhancing its original absurdity by adding nonsense of his own. ‘Thus,’ he remarks (after he has cited the passage),—‘thus did they reason, while Rome had some remains of her freedom. And, indeed, it is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it was probably introduced by the voluntary consent of the people.’

Now customary law (as positive law) is established by the sovereign. And, consequently, whether it be introduced (or not) by the consent of the people, depends upon the form of the government. If the people are the sovereign, or if they share the sovereignty with one or a few, customary law (like other 542law) is, of course, introduced by their consent (in the strict acceptation of the term): the people solely (or the people with the monarch or oligarchs) being its immediate or ultimate authors. But if the people have no share in the sovereignty, they have no part whatever in the introduction of positive law, be it customary or other. In the large sense, indeed, of the term ‘consent,’ customary law (like other law) is truly introduced by their consent, although the government be a monarchy or oligarchy: since they consent to the existence of the government, and of the laws established by the government, because they are determined by fear, or by some other inducement, to yield the government their obedience.

And under monarchies or oligarchies, as well as under governments purely or partially popular, much or most of the law which obtains in the community is (commonly) customary law. So that if customary law be a mark of freedom (or shew that the government of the community is purely or partially popular), monarchies and oligarchies are commonly democracies or commonly partake of the democratical form. I would therefore submit, that we cannot argue that the people are free because their law is customary. Though if we know aliunde that the people are free, we may conclude that their law, whether customary or not, was introduced by their consent.

Sir William Blackstone’s meaning may have been this:—That the antecedent customs, which are the groundwork of customary law, are necessarily introduced by the consent of the people: Or, in other words, are necessarily consonant to their interests or wishes.

But even this is false.

If the people be enlightened and strong, custom, like law, will commonly be consonant to their interests and wishes.

If they be ignorant and weak, custom, as well as law, will

commonly be against them.

During the Middle Ages, the body of the people, throughout Europe, were in the serf or slavish condition And this slavish condition of the body of the people originated in custom: Although the imperfect rights which custom gave to their masters, together with the imperfect obligations which custom imposed on themselves, were afterwards enforced by Law of which that custom was the basis. In various parts of Europe, the people have gradually escaped from the servile condition through successive acts of the Legislature. So that the body of the people in many of the European nations, have been released, 543by direct legislation, from the servile and abject thraldom in which they had been held by custom, and by law framed upon custom.

In Rome, the absolute dominion of the paterfamilias over his wife and descendants, arose from custom and consequent customary law, and was gradually abridged by direct legislation: namely, by the edicts of the Prætors, the laws of the People, and the edictal constitutions of the Emperors.

Let us turn our eyes in what direction we may, we shall find that there is no connection between customary law, and the well-being of the many.

In spite, then, of the grandiloquous talk by which it has been extolled and obscured, customary law has nothing of the magnificent or mysterious about it. It is but a species of judiciary law, or of law introduced by sovereign or subordinate judges as properly exercising their judicial functions. And it differs from other species of the same kind of law merely by this peculiarity; that it is formed or fashioned by the judges, who are its sources or immediate authors, upon pre-existing rules observed spontaneously, or wholly deriving their imperfect obligatory force from the religious or moral sanctions.

The motives which determine its authors to adopt these rules as law, are numberless.

But (generally speaking) the mere pre-existence of the customs upon which the law is moulded, is amongst those if not the only one. For, if the habits and expectations of the community, or of the influential classes of the community, have been accommodated to a given custom, that is a strong reason for erecting the custom into law, provided that the adjection of the legal sanction would give to the custom additional efficacy or force.

From whence it follows that Custom (or rather the pleasure of those, in whose observance or practice custom consists) is amongst the most frequent of the causes of Law, although it is not a source or fountain of law (taking those terms in their strict signification).

Jus prudentibus compositum. Law supposed to arise from the unauthorised opinions of private Lawyers.

From Customary Law, I pass to positive law which is made by its immediate authors on opinions and practices of private lawyers. Law of this kind is named by the Roman Lawyers jus prudentibus compositum; law constructed by private junisconsults respected for their knowledge and judgment.

The remarks which I have applied to the law styled cus544tomary, will apply (with a few variations) to that imaginary law, which is supposed to emanate from the Auctoritas prudentium, or from the opinions of private lawyers eminent for their knowledge and ability.

By the Roman Lawyers, these merely private though respected jurisconsults are styled conditores or founders of law. And by modern Civilians generally, and apparently by the Roman Lawyers, they are deemed the sources of the law, or the immediate authors of the law, which really was formed upon their opinions by legislators or judges. Positive Law of the kind in question, as well as the positive law formed upon custom, has therefore been thought to obtain as positive law, independently of sovereign authority.

But merely private jurisconsults, respected for their knowledge and judgment, are not conditores or founders of Law, although the weight of their opinions may determine others to found it. If their opinions determine the legislator, the influence of those opinions is a remote cause of the Law, of which the Legislator himself is exclusively, the immediate cause, or is exclusively the source. But any inducement whatever, leading the legislator to establish the Law, were just as much a remote cause of its establishment as the opinions by which he is guided. Justinian legislated by the advice of Tribonian. He also legislated at the instance of his Empress. And the blandishments of the wife, as well as the responses of the legal oracle, were remote causes of laws emanating from the Emperor as their source.

Nay, the writings of private lawyers are not law, although it be declared by the legislator that they shall thereafter be law. For they are not law as being the production of the writers, but by virtue of the Legislator’s adoption. Such, for example, is the case with those excerpts from the writings of jurists, of which Justinian’s Digest is almost exclusively composed. As forming parts of those writings, they were not law; but as compiled and promulged by Justinian, they took the quality of law immediately proceeding from the sovereign.

‘Quicquid ibi scriptum, hoc nostrum, et ex nostrâ voluntate compositum.’—Such is the language of Justinian himself when speaking of the excerpts in the Act confirming the compilation.

If a judicial decision, introducing a new rule, be suggested by the opinion of a private lawyer, his opinion is a remote cause, but it is not the source of the rule which the decision introduces. The source or immediate author of the new rule of law, is that 545Sovereign, or that subordinate judge, whose decision is determined by the authority of the legal sage.

Under the Commonwealth, the opinions of a Roman Jurisconsult derived the whole of their weight from the estimation in which he was held on account of his knowledge and judgment. His opinions naturally influenced the decisions of the tribunals, but the tribunals were not obliged to follow them.

But, according to an obscure story told in the Digest,³⁹ the tribunals were instructed (under Augustus), to take the Law, in doubtful cases, from certain jurisconsults who were appointed by the Legislature to expound it. Now, if this story be true, these jurisconsults (‘quibus permissum erat jura condere’)⁴⁰ were, in truth, judges of Law. They formed an extraordinary tribunal to which the ordinary judges were bound to defer.

And, on that supposition, their responses were judicial decisions, and not the opinions of merely private jurisconsults.

The story, however, is beset with inexplicable difficulties.

It is most probable, that the responses and writings of jurisconsults were never sources of Law: Although they acquired the influence which the opinions of the instructed and expert will naturally obtain.

If an ignorant and incompetent judge be swayed by the opinions of a learned and able advocate, the law, which his decisions might introduce, are his law. It would flow from him, as from its source or immediate author, although the knowledge, enabling him to decide, would be poured into his mind by the learned advocate who predominated over him from the bar of his own tribunal.

Customary law and law suggested by the opinions of jurisconsults compared.

The law introduced by judges on the authority of private jurisconsults, and the law which they make and mould upon pre-existing custom, are merely species of the same kind. Both are judiciary law, or law introduced obliquely; and the only difference between them lies in their causes; The opinions and authority of jurisconsults being a cause of the one, as pre-existing custom is a cause of the other. In the Roman Law, the two species are distinguished by distinct names. The one is styled ‘jus moribus constitutum;’ the other is styled ‘jus compositum a prudentibus,’ or jus civile (in the narrowest acceptation of the term).

In the language of our own law, the two species (though distinct) are not distinguished by distinct names. For all judicial decisions which serve as precedents, are considered 546as evidence of Law established by Custom. And, by consequence, all judiciary law (though its causes are various) is named after the source from which it is feigned to emanate. All of it is styled customary law.

In neither system, does statute law, or law established directly, take various names in respect of its various causes. Whether it be made upon pre-existing custom, or whether (as often happens) it be made (in effect) by lawyers, it is considered as emanating from the legislator who is its immediate author, and is named accordingly. For, here, the source is more obvious than where the law is judiciary; and the confusion of the sources with the remote causes of law, is consequently avoided.

The jus a prudentibus compositum (though not marked, with us, by a distinct name) is not a stranger to our own law.

For example; much of the law in my Lord Coke’s writings, consists (in the language of Hale) ‘of illations made by the writer upon existing law:’ much of it, of positions and conclusions founded upon the writer’s notions of general Utility. For (as he says himself over and over again) ‘argumentum ab inconvenienti plurimum valet in lege.’ And, undoubtedly, many of these illations and conclusions of this most illustrious of our prudentes, have served as the basis of judicial decisions, and have thus been incorporated with English judiciary Law.

The only difference (in this respect) between our own and the Roman Law, lies in the different turns given to the expression.

With the Romans, judiciary law, bottomed in such illations and conclusions, would at once be referred to its remote cause. It would be styled jus a prudentibus compositum.

With us, the authority of the prudentes is affectedly sunk; and the judicial decisions, really framed upon their opinions, are considered declarations of Law established by immemorial custom.

Again: Much of the law of real property is notoriously taken from opinions and practices, which have grown up, and are daily growing up, amongst conveyancers. And, I may observe, that the body of eminent conveyancers for the time being, is a partial picture (in little) of that body of eminent jurisconsults who (at any given period) were the prudentes in ancient Rome. Neither the eminent conveyancers, nor the prudentes, can be considered as sources or authors of Law. But the opinions of both, as determining the decisions of the tribunals, may be considered as causes of that law, which (in spite 547of the puerile fiction about immemorial usage) is notoriously introduced by judges acting in their judicial capacity.

With regard to the responses of the jurisconsults, to whose opinions the tribunals were bound to defer, I remarked (in a former Lecture), that the responses of these jurisconsults, when given in answer to the inquiries of the tribunals, were properly judicial decisions:—judicial decisions of extraordinary judges, who were appointed by the sovereign to determine questions of Law, when the ordinary judges should find themselves at fault.

Consequently, the authors of these responses were properly juris conditores. ‘Nam eis hoc majestas imperialis permisit.’

Whether such extraordinary referees were ever really appointed, is one of the most difficult questions which the history of the Roman Law presents.

Strictly speaking, customs, or writings and opinions of lawyers, are Law in so far as they have been recognised by judicial decisions, and no further. As we have already shewn, there can be no law without a judicial Sanction, and until a custom has been adopted as Law by Courts of Justice, it is always uncertain whether it will be sustained by that sanction or not.

Where, however, the positions of a legal writer have been in part adopted, the rest of his doctrines are ordinarily considered as Law, in so far as they are related by consequence or analogy to that which has been actually recognised. In consequence of this relation, it is probable that it will be recognised should a question ever arise, and it is therefore acted upon with almost as much assurance as if it had actually received the judicial approbation. Strictly speaking, it is not Law, but it probably will be Law, should the acts which are done in pursuance or in contravention of it, be ever brought in question before a Court of Justice.

And it must be observed, that the probability of its receiving such adoption increases with the number of acts which have been done in pursuance of it. A natural reluctance on the part of the Courts to defeat the expectations which its being regarded as law have begotten, determines the tribunal to adopt it almost independently of its connection in the way of consequence or analogy with already existing doctrines. The authority of lawyers, numerous and experienced, has here great weight.

Having thus entered upon the examination of the laws supposed to emanate from custom, from the private or un548authorised lawyers, and from the fancied legislatrix, nature, I have now examined the two former of these three kinds of supposed law, and endeavoured to demonstrate that custom is not a source or fountain of law, although the law styled customary is fashioned on a pre-existing custom by sovereign or subordinate judges; and that private or unauthorised lawyers are not founders of law, although the laws of which they are styled the founders, are introduced by judicial decisions, which their opinions determine or influence. In accordance with the plan set out at the commencement of this Lecture, I should next proceed to examine the laws which are said to emanate from nature, and to shew that the law styled natural, like all other law, is introduced by the sovereign as legislating, or as judging, or by legislatures or tribunals which derive their powers from the sovereign.

But it will be convenient to postpone the complete examination of the laws styled natural, and the distinction made between laws natural and positive, until after I have explained the jus gentium of the earlier Roman lawyers, and the distinction between jus gentium and civile, as made by them and by the classical jurists.

God or nature not a source of positive law.

Reserving the examination of the law styled natural, I shall here content myself with remarking that God or nature is not a source of law in the strict sense; that is, of law established by the sovereign or state immediately or remotely. God, or nature, is ranked among the sources of law, through the same confusion of the sources of law with its remoter causes, which I pointed out in treating of the law supposed to emanate from custom, and of the law supposed to emanate from private lawyers or jurisconsults. Taking the principle of general utility as the only index to the will of God, every useful law set by the sovereign accords with the law set by God, or (adopting the current and foolish phrase) with the law set by nature; or, assuming the existence of a moral sense, every law which obtains in all societies, is made by sovereign legislatures on a Divine or natural original: But in either case it is a law, strictly so called, by the establishment it receives from the human sovereign. The sovereign is the author of all law strictly so called, although it be fashioned by him on the law of God or nature; just as customary law is established by the sovereign, although he fashions it after a pre-existing custom. God, or nature, is the remote cause of the law, but its source and proximate cause is the earthly sovereign, by whom it is positum or established.

Extension of ‘source’ to every ‘remote cause’ of Law, leads to confusion.

549The ‘jus quod natura inter omnes homines constituit,’ the ‘jus moribus constitutum,’ and the ‘jus a prudentibus conditum sive compositum,’ are manifestly in the same predicament. Each derives its distinctive name from its remote cause or one of its remote causes. And deriving its distinctive name from a cause leading to its establishment, it is supposed to emanate from that cause as from its fountain or source, and to exist as Law (strictly so called), independently of the position or institution which it receives from the sovereign or state.

The grossness of this confusion of ideas may be shewn briefly and clearly by a familiar example. In common talk, though not in technical language, an Act of our own Parliament is sometimes named after the person who proposed it or introduced it as a bill. Now since it derives its name from the Lord or Commoner who introduced it, and since its introduction by him was amongst the causes leading to its enactment, it follows (by analogy) that he, and not Parliament was its source or author. Grenville or Eldon was clearly the conditor or founder of Grenville’s or Eldon’s Act. For is it not called Grenville’s or Eldon’s Act, and did not the introduction of the bill by Grenville or Eldon precede the act of the Legislature?

Supposition that the sovereign merely declares pre-existing law criticised.

According to the suppositions which I have now examined, Customary Law, and law formed on the opinions of private lawyers, obtain as positive law independently of sovereign authority.

By certain writers on general jurisprudence, a similar supposition has been made in respect to all law. The law (say they), which obtains in any community is not arbitrary or capricious. It is caused by the circumstances in which the society is placed; or the sovereign is determined to make it, and to make it what it is, by those very circumstances. The Sovereign, therefore, is not the author of Law, but merely describes or defines Law already made to his hand.

From whence it follows;

That a law, and the reason which determines its author to make it, are one and the same thing: And that if any private man conceive and describe a law, which hits the circumstances in which the society is placed, that project of his is parcel of the law of the land, and he a legislator and monarch.

The origin of this absurd speculation is obvious. Much of the positive law obtaining in any community is Custom turned into Law by the adjection of the legal sanction. Now, in this case, it may be said, in a certain sense, that the sovereign 550describes or defines law pre-existing; especially if the custom, as adopted by the sovereign, take the shape of a statute. The rule existed as custom in a comparatively vague form, and is described more accurately in the statute. Though it is manifest that if the sovereign merely described the custom, that description would not make it Law. The description, completion, and correction of positive morality, are as much an end for which political government is wanted, as the obtaining, by its establishment, a more cogent sanction.

But the Sovereign makes it law, not by the mere description, but by the sanction with which he clothes it.

[beginning of lecture 31]