appears still to have some practical effect. I give what seems to me to be such an instance, for what it is worth.

On the subject of rights of common, certain general rules of law exist, independent of any local custom. These have grown up, like most of our real property law, in the AngloNorman period and under the Norman rules of feudal tenure. They appear in our authoritative text-books, and have been embodied in the decisions of our Courts. Yet recent judges, of very high authority, have shewn a disposition considerably to modify the customary law, as to freeholders' rights of common, previously established both by books and decisions. The general doctrine, of attributing a legal origin to beneficial rights which have been long used, has been specifically supported by modern historical research, as against previous technical notions that such rights have no legal origin 30. Such an instance would be very rare, but it seems to shew that the original force of the rule, whether in the case of particular custom proved in a suit, or of general custom found in a text-book, is considered to come from the lay usage, and not from the declaration of the judge or the testimony of the writer.

As a matter of expediency, the possibility that a considerable amount of judicial tradition may be upset or modified, by reference to almost prehistoric times, does not commend itself much to the practical mind. At Rome such a possibility could scarcely have existed. Besides the greater facilities for converting the old law into statute, with more or less modification, in the Edict, there is the strong probability that the work of Scævola entirely superseded all

30 See Joshua Williams's note on Lord Dunraven v. Llewellyn, in the Appendices to his Principles of the Law of Real Property. Also Lord Hatherley's judgement in Warwick v. Queen's College, L. R. Equity Series, 6 Ch. App. pp. 723, 4: and that of Sir G. Jessel in Baylis v. Tyssen-Amherst L. R. 6 Ch. Div. p. 510.

previous authorities. In England, as such weight would scarcely be given to any text-book, the possibility of which I speak seems rather to call for a reduction of our customary law to statute at the earliest opportunity. The intention of continental codes has been, in general, to abolish customary law, though it does not appear that the intention has been perfectly carried out.

The simpler case of English text-book law which, though sometimes called customary, is really based exclusively upon decisions and practice, will be noticed in, the general remarks on text-book law.

31 Above, p. 293.

32 See e. g. Code Napoléon, "Loi du 30 Ventôse An 12," in Tit. Prél: as to Prussia and Austria, Holtzendorff Th. 1. System. Th. p. 323; the opening passages in the Publikationspatent and the Kundmachungspatente; and generally the brief statement in Savigny, System 1. § 31.

33 As to Prussian law, see the passages quoted above in note 28. The Austrian Bürgerliches Gesetzbuch contains an express saving of Customs (not merely local), where a statute refers to them (Einleitung § 10). For the French Code, see below, p. 326, note 13.

CHAPTER XII.

TEXT-BOOK LAW: GENERAL REMARKS.

Text-book law unwritten. I shall conclude the subject of text-book law with a few general remarks, suggested in the main by the two historical examples which we have been considering, on the different elements themselves which are included in this residuary class, and on the authority which those different elements respectively enjoy. Excluding, to begin with, all matter which though found in text-books is also found elsewhere as statute or judiciary law, we may set down the remainder as, to speak juridically, unwritten law. None of it, with the exception of one debated case—that of the Roman licensed prudentes', is drawn up or issued in a regular manner by any legislative authority. All of it, on the other hand, is in the form of general rules or maxims, and resembles, so far, statute rather than judiciary law. There the homogeneity of text-book law ends. Its two main elements may be roughly stated as jus moribus constitutum and jus a prudentibus compositum-customary and professional law. But while these two classes are in some cases not very easy to distinguish, the latter moreover includes several different constituents of different degrees of authority.

Jus moribus constitutum. By the mores here spoken of I mean not Court practice but national custom. It has been 1 Above, ch. 9. p. 296, 7. 2 Ib. ch. 7. p. 272.

3 Ib. ch. 8. p. 273.

shewn above how, in the Roman state, a considerable part of the law existing to a late historical period may be referred to this source. The rude forms of the earlier jus civile were in their origin truly national, though they became a patrician monopoly. It is not really till the barrier of caste has been broken down that the great developement of Roman law takes place which gives the later and more valuable part of it a distinctly professional rather than a national character. By that time certain old rules had become so rooted in the conservative Roman nature that they were left at least theoretically undisturbed ever after.

Into our own jural system, in spite of Blackstone's deduction of our maxims and customs from Alfred and Edgar®, I believe this branch of text-book law to enter very little. Although both the name and the original of our common law1 come from before the Conquest, the customary part of it at present in existence is almost entirely deducible from the practice of the Anglo-Norman Courts. On this subject the cautious language of Hale may be advantageously compared with Blackstone's vague grandiloquence®.

As far as regards actual application I do not know that any difference can be observed between the old custom arising from a national, and the early practice arising from a professional, source. Practically, therefore, we may for some time accept Savigny's theory, of the prudentes being the organ or representative of the people, although historically this ceases to be true with ourselves at a very early period. And beside the fact that early rules, the progress of which we can fairly trace in our courts, are traditionally ascribed to national custom, it must not be forgotten that the individual

4 Above ch. 8. p. 280.

6 Blackstone Int. § 3. pp. 66, 67.

8 Ib. ch. 10. p. 300.

10 Above, ch. 8. p. 274.

5 Ib. ch. 9. p. 290.

7 Above, p. 74.

9 Hale Hist, ch. 4. p. 66.

cases, upon which the generalisations of early practice were based, are almost as inaccessible to us as the foundations of custom.

Basis of customary law. To a certain extent the question of the origin of law must recur under this head. The present subject is, however, not a matter of pure history or archaeology, as that question might by some be considered. Constitutional law is at any rate still a living and growing reality; and the theory of other customary law has still with ourselves some practical meaning". On the Continent undoubtedly, the abolition of customary law purports, in most important countries, to have been effected 12. This abolition, however, is by no means free from exceptions and reservations. I find, for instance, in a recent comment on a passage in the French code which Savigny regards as abolishing all general customary law, an adoption of his own tests for determining the validity of such law13. It may therefore be worth while to complete the considerations initiated in a previous part of this work", with more direct reference to the process through which custom is determined to be law.

Austin. With regard to legal authority, Austin classes, under the one head of judiciary law, not only all the rules which are to be extracted from recorded cases, but all rules already generalised, which "have grown up by custom or usage and become law by judicial adoption" or consist of "law fashioned on opinions and practices which obtain amongst lawyers15". To this last class may, as he justly says, be referred a large portion of English law, through

11 Above, ch. 11. note 30, p. 322.

12 Above, p. 323.

13 Compare Aubry et Rau (Cours t. 1. § 23. p. 43) on the "loi du 30 Ventôse au 12," as to the nécessité juridique, with Savigny on the necessitatis opinio (System, 1. § 29 pp. 174, 180). See the numerous instances (mostly however of local custom) in which they quote the Code as expressly referring to ancient usages. Also, the references in note 28, p. 321.

14 Above, pp. 165, 6.

15 Austin 37. p. 655.