republican jurists, sine scripto; for it is certainly treated by that author as of some authority, we know that it did not remain literally unwritten beyond the time of Aelius", and it was clearly a gradual formation, not originating entirely in pre-literary times.

Conclusion. While, therefore, I admit that the literal meaning of this unfortunate antithesis occasionally presents itself to the Roman jurists, I maintain that its general practical use with them is as a distinction between customary law, on the one hand, and law drawn up and issued in any regular manner by any legislative authority, on the other 18. Under customary law they recognise two elements; national custom, and the practice of courts as represented in the opinions of prudentes. The judiciary legislation, which according to Austin converts a moral rule of custom into law proper, they do not recognise at all.

The above is also the practical use of the distinction jus scriptum and non scriptum by our English jurists, so far as they use it at all. The ambiguities which arise from an intrusion of the literal meaning, in the opening pages of Glanville and Bracton, will be very briefly noticed hereafter. With modern continental writers written and unwritten in general designate respectively enacted and customary law1.

16 This seems to meet the objection in the latter part of Savigny's note (c) to System 1. § 22 p. 106.

17 Below, p. 292.

18 This is the view of those (Hübner and others) who explain jus scriptum von dem durch einen Gesetzgeber promulgirten Recht (Savigny, System, p. 107). I do not think the technical meaning of promulgare is to be pressed here.

19 See for example Aubry et Rau (Cours, t. 1. § 2) "Droit coutumier ou non écrit." "Le droit écrit est celui qui a été décrété et promulgué par l'autorité publique."

CHAPTER VIII.

TEXT-BOOK LAW: ROMAN CUSTOMARY LAW.

Scanty information. In the endeavour to treat Roman Customary Law as an independent phaenomenon, from which are to be drawn the special conclusions proper to it, on jurisprudence in general, we find the greatest difficulty both in the character of our authorities and the manner in which they have been used. There is, to begin with, an extremely meagre amount of direct testimony on the subject. A dozen short extracts in the first book of the Digest, with three rescripts in the Codex, constitute the main part of our materials. These again are, in most cases, evidently suggested by, and intended to deal with, local rather than general custom. The rules and principles may possibly

have been much the same for both: but the fact should not be disregarded, as it has almost universally been by the middle age writers, who have imported these maxims of Roman law into their respective systems. Another frequently recurring difficulty, which meets us conspicuously in our own English law, is the confusion between national custom and Court or professional practice. The two are by no means kept separate in the writings of Roman jurists and the constitutions of Roman emperors, under the headings of jus moribus constitutum and jus a prudentibus compositum, as might be imagined from Austin's adoption of

C. J.

1.8

these phrases. The Roman mores are often clearly those of experts, while the law attributed to prudentes is often as clearly primaeval custom. Savigny, it is true, treats the expert as the mere organ whereby the common consciousness of the people operates in special force and definite terms1. I think, however, this can scarcely be taken as an exact statement of the case except in the very beginning of a system of law. In general we soon come to the time when a distinction must be drawn between what the prudens simply records, and what he has an obvious hand in constructing. I have endeavoured to draw this distinction, in the actual instances of Roman customary law, towards the latter part of the present chapter.

2

Roman Theory of Customary Law. Consuetudo, as we have seen in one sense in which the word was used by Roman jurists (Paulus and Callistratus), indicated the run of cases decided upon a statute, as constituting an interpretation of that statute. Here, so far as (to use Austin's phrase) the interpretation is genuine, no new law is made: so far as it is spurious-so far, that is, as a new rule is introduced— that rule is originally the creature of the court. Whether we are to class it as case-law or not depends upon the question whether the individual decisions were still referred to as authoritative, or, which appears to me more probable, were replaced by the generalisation of some eminent author. In the latter case it is text-book law originating in judgements, like many of the rules preserved or drawn up by our own Coke.

Ulpian, who is in all practical law a clearer and more trustworthy writer than either of the Roman jurists above mentioned, treats consuetudo as something distinct from

1 System 1, § 25, p. 148. See the same author quoted below, ch. 12, p. 325.

2 Above p. 217, note 12.

decided cases and to be proved by them".

For, though

the passage in question refers to local custom, as do most of our authorities on Roman customary law, it does not appear necessary to confine his dictum to that case. One thing is perfectly clear-that the previous judgement is purely evidence, and not essential to the validity of the custom".

66

As to the validity or binding force of custom we are told, also by Ulpian, that long custom, in matters which do not come to us on the authority of scriptum, is wont to be observed pro jure et lege', which we may perhaps translate as statute law." Elsewhere Ulpian gives a ground for this binding force, where he defines mores as the tacit agreement of the people confirmed by long custom. This tacit agreement was suggested probably by that Greek idea of a common agreement of the state, which Papirian introduced from Demosthenes (or Hypereides) into his definition of lex®.

The same theory is carried further by Julian, into an inexact comparison between the general following of a custom by the people as a number of individuals and the formal passing of a law by the people as an assembly 10. This

3 Ulpian, Dig. 1. 3. 34: above p. 217, note 11.

4 See also Dig. 1. 3. 32 pr. where Savigny considers reference to the custom of Rome, failing the custom of a particular civitas, to be intended. Very probably the original reference of Ulpian to local custom, which is extracted from his book De officio proconsulis, may be connected with the rescript of his master Alexander Severus to Aper A.D. 225 (Cod. 8. 53. 1). 5 System 1, § 30, p. 192, note l. 6 See last chapter, p. 271.

7 Digest 1. 3. 33. Diuturna consuetudo pro jure et lege, in his quae non ex scripto descendunt, observari solet.

8 Ulpian, Tit. 1, § 4. Mores sunt tacitus consensus populi longa consuetudine inveteratus. See too Hermogenianus Dig. 1. 3. 35. Sed et ea quae longa consuetudine comprobata sunt ac per annos plurimos observata, velut tacita civium conventio non minus quam ea quae scripta sunt jura servantur. • Above p. 97. 10 Cited above p. 270, note 9.

"conceit," as it is termed by Austin, is eagerly adopted by our own Blackstone, for which the former author justly takes him to task". I have a little more to say upon this doctrine of a consensus utentium, with regard to customary law, in my concluding chapter on the present subject. At present I return to Julian,

According to this jurist, tacit agreement is also by the most correct opinion the ground of the abrogation of statute law through desuetude 12. Whatever be the merit of the reason given, there seems to be no doubt as to this strong effect allowed by Roman law to disuse. The principle is repeatedly recognised by Justinian, and the one passage making against it is satisfactorily explained by Savigny, as merely denying, to a local custom, power against an express general statute 13.

Instances of Roman Customary Law. In considering the actual cases where Roman law is expressly stated to have arisen from custom, usage, or the equivalent expression, unwritten sources, we find mores, as I have intimated, a large and varied heading. Mores include, at the lower end of the record, obvious Court practice, so long as not drawn up and formally published by a regular authority. But at the higher end lie matters of national usage so old as to equal in age, if not to precede, the earliest traditions either of legislation or of jurisdiction.

11 Blackstone, Int. § 3, p. 74. Austin, 30. p. 558. I cannot, however, follow Austin's probable original, Savigny, System 1, § 25, p. 147, into the extremely subtle and non-natural distinctions of note e.

12 Dig. 1. 3. 32. 1. Quare rectissime etiam illud receptum est ut leges non solum suffragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogentur.

13 Savigny, System 1, § 25, pp. 152, 153: also Beilage 2 to B. 1. The passage referred to is Cod. 8. 53. 2. Consuetudinis ususque longaevi non vilis auctoritas est: verum non usque adeo sui valitura momento ut aut rationem vincat aut legem. For a different explanation see Goudsmit's Pandects, § 15, note 2.