46

CHAP. IV. merely of an arbitrary force, acting upon a subject mass which is but imperfectly bound together by a network of religious and moral scruples.

It is convenient to recognise as laws only such rules as are enforced by a sovereign political authority, although there are states of society in which it is difficult to ascertain as a fact what rules answer to this description.

CHAPTER V.

THE SOURCES OF LAW.

of the term

THE obscurity which has involved the whole subject of the Ambiguity origin of law, and the mutual relations of customary, judge-source.' made, and statute law, is largely due to the ambiguous uses of the term 'Source.' These uses are threefold.

senses.

Sometimes the word is employed to denote the quarter Its three whence we obtain our knowledge of the law, e.g. whether from the Statute-book, the Reports, or esteemed Treatises.

Sometimes to denote the mode in which, or the persons through whom, those rules have been formulated which have acquired the force of law.

Sometimes to denote the authority which gives them that

force.

The last two uses are those which are most frequently confused together. Until the State is formed there can be no law, in the strict sense of the term. There may be, and doubtless always have been, morality and customary rules of conduct. After the formation of the State, such rules as receive its sanction and support, whether promulgated for the first time by the governing body, or already in operation among the people, become, in the proper sense of the term, 'laws.'

But one

source of legal character.

CHAP. V. The sole source of laws, in the sense of that which impresses upon them their legal character, is their recognition by the State, which may be given either expressly, through the legislature or the courts, or tacitly, by allowance, followed, in the last resort, by enforcement, as we have seen in the preceding chapter.

Several

sources of

as rules.

The sources of laws, in the sense of the causes to which existence they owe their existence as rules, are, however, several 1. These may be distinguished as usage; religion; adjudication; scientific discussion; equity; legislation. Some confusion has arisen from not observing that laws occasionally owe their existence as rules and their validity as laws to one and the same authority.

Custom.

Its growth.

I. Usage, or rather the spontaneous evolution by the popular mind of rules the existence and general acceptance of which is proved by their customary observance, is no doubt the oldest form of law-making. It marks the transition between morality and law. Morality plus a Stateorganisation enforcing the observance of certain parts of it is customary law.

Two questions are much debated with reference to usage. First, as to the mode of its growth as usage. Secondly, as to its transformation into law.

Its characteristic is that it is a long and generally observed course of conduct. No one was ever consciously present at the commencement of such a course of conduct, but we can hardly doubt that it originated generally in the conscious

1 Cf. Cic. Top. 5; Dig. i. 1. 7; Gai. i. 2. The 'roots' enumerated in the Institutes of Manu (ii. 6.) are four: Revelation, or the uttered thoughts of inspired seers; the institutes of revered sages, handed down by word of mouth from generation to generation; the approved and immemorial usages of the people; and that which satisfies our sense of equity, and is acceptable to reason. Tagore Lectures, 1880, p. 137. In Doctor and Student, i. 4, it is said that the 'law of England is grounded on six principal grounds: first, it is grounded on the law of reason; secondly, on the law of God; thirdly, on divers general customs of the realm; fourthly, on divers principles that be called maxims; fifthly, on divers particular customs; sixthly, on divers statutes made in Parliament.'

choice of the more convenient of two acts, though sometimes CHAP. V. doubtless in the accidental adoption of one of two indifferent alternatives; the choice in either case having been either deliberately or accidentally repeated till it ripened into habit. The best illustration of the formation of such habitual courses of action is the mode in which a path is formed across a common. One man crosses the common, in the direction which is suggested either by the purpose he has in view, or by mere accident. If others follow in the same track, which they are likely to do after it has once been trodden, a path is made.

Before a custom is formed there is no juristic reason for its taking one direction rather than another, though doubtless there was some ground of expediency, of religious scruple, or of accidental suggestion. A habitual course of action once formed gathers strength and sanctity every year. It is a course of action which every one is accustomed to see followed, it is generally believed to be salutary, and any deviation from it is felt to be abnormal, immoral. It has never been enjoined by the organised authority of the State, but it has been unquestioningly obeyed by the individuals of which the State is composed. There can in fact be no doubt that customary rules existed among peoples long before nations or states had come into being. At first no distinction was made between such of these rules as relate to individual character and such as concern society. Morality and customary rules were the same thing, but the distinction between the two was more and more sharply drawn as time went on.

After the organisation of States, many of the customary Its legal authority. rules of society still continued to be recognised, and acquired a further sanction. They had previously been enforced only by popular opinion, or by the licensed revenge of injured parties. They were now enforced by the political authority. They became law; and were doubtless for the time the only laws known. They were the unwritten, but well known, opinions of the community as to social right and wrong.

E

CHAP. V.

'Consuetudine ius est,' says Cicero, 'quod aut leviter a natura tractum aluit et magis fecit usus, ut religionem, aut si quid eorum quae ante diximus ab natura profectum, maius factum propter consuetudinem videmus, aut quod in morem vetustas vulgi approbatione perduxit; quod genus pactum, par, iudicatum 1'

The laws of Draco were repealed, says Gellius, 'non decreto iussoque, sed tacito illiteratoque consensu 2.'

'Quid interest,' says Julianus, suffragio populus voluntatem suam declaret an rebus ipsis et factis 3?'

Justinian lays down in his Institutes that diuturni mores consensu utentium comprobati legem imitantur*

It would be more correct to say that written law was an imitation of custom.

And our own Bracton: 'consuetudo quandoque pro lege observatur in partibus ubi fuerit more utentium approbata, et vicem legis obtinet; longaevi enim temporis usus et consuetudinis non est vilis auctoritas 5.

Custom exists as law in every country, though it everywhere tends to lose its importance relatively to other kinds of law. It was known at Rome as the 'ius moribus constitutum.' It is known in England as 'the common law,' or 'the custom of the realm,' the existence of which is now usually proved by showing that it has been affirmed by the Courts, or at least has been appealed to in the writings of great judicial sages. In an earlier age it was doubtless known to all whom it concerned, much as are now the ordinary rules of morality. Thus the law was declared in the English as in the Frankish hundredmoots, not by any judicial officer, but by the whole body of freemen present, who were represented in later times by the Rachimburgi, the Schöffen, and the Grand Jury. The

1 De Inv. ii. c. 54. Cf. consuetudinis autem ius esse putatur id quod voluntate omnium sine lege vetustas comprobavit,' ib. c. 22. I. ii. § 9.

2 Noct. Att. xi. c. 18.

3 Dig. i. 3. 32.

5 Bracton, lib. i. cap. 3, following Cod. viii. 53. 2; cf. R. v. Essex, 4 T. R.

p. 594.

Cf. Savigny, System, i. p. 181.