1 1 :^ 'A 'i Ml CORNELL LAW LIBRARY SI2 flforttf II Haul *rl)onl Sitbrarg »« 282.812°""" ""'"•"'•VLIbrary ,,i"',f„jela«onofc Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017614870 THE RELATION OF CUSTOM TO LAW. BY ^ GILBEET T.'^'SADLEK u.A. (oxon), ll.b. (lond.)- LONDON : SWEET & MAXWELL, LIMITED, 3 OHANGERY LANE, W.0.2. 1919. PRINTED BY THE EASTEBN PEKSS, LIMITBD, LONDON AND READING. PEEFACE. The subject of this thesis has not often been specially dealt with, and the references to it, by many writers, are vague and con- fusing. The use of the phrase "customary law," by such jurists as Sir Henry Maine, has not helped to give light, but rather the reverse. Yet the theme is one which goes to the very centre of jurisprudence, as the science of law in States. The elucidation and illustration of the relation of custom to law may help to make jurisprudence more fascinating even than before. Whatever changes may come in modern States, in the way of giving up some aspects of their independence and sovereignty, so as to form a federation of States, this story of how custom arose and was recognised (or not) as law must be of perennial interest. G. T. S. CONTENTS. PAGE Exposition of the tenns "Custom" and "Law" ... 1 I. The cause 6i customs in the instincts of men, inter- preted by reason 10 (i) Writers who have sought for the tendency towards law in the human mind 12 (ii) Historical instances indicating the instincts behind customs 17 (a) The jiis naturale in Eoman jurists ... 17 (b) The jus natii/rcB in the writings of Grotius ... 23 II. Customs which arose from the repeated acts of a people, some of which customs attained to the marks by which they were later called laws 27 (a) Customs of self-help in ancient Borne ... 28 (b) Customs of the family in ancient India ... 29 (c) Customs behind the law merchant' 30 (d) Customs in early English life 33 III. Customs which arose from the decisions of a popular authority, some of which customs attained the marks by which they later were called laws. Instances of such authorities ... 36 (a) The Brahmin priests 37 (b) The Boman pontiffs 38 (c) The paterfamilias ia "Rome 43 (d) The brehons in Ireland 43 (e) The early Deemsters in the Isle of Man ... 46 (f) The chieftains of the Orkney Islands ... 47 (g) The law-say-man in Iceland 48 VI CONTENTS. PAGE IV. The State recognition of some customs as laws because of their bearing certain marks ... 50 (a) Customs recognised in Eoman Law ... ... 56 (b) Customs recognised in English Law 59 (c) Customs recognised in Wales ... 73 (d) Customs recognised in India 76 (e) Customs recognised in HoUand ... ... 77 (f) Customs of merchants recognised in England 78 (g) International customs recognised in England 83 OASES TO WHICH REFEEENCES AEE MADE. Arnold v. Poole Corporation, 4 Man. A G. 860 Attorney-General v. Wright (1897), 66 L. J. Q. B. 834 Bastard v. Smith (1837) , 2 Mood & B. 129 Bechuanaland Exploration Co. v. London Trading Bank (1898), 2 Q. B. 658 Blewett V. Tregonning (1835), 3 A. & B. 554 Bradbee v. Christ's Hospital, 2 D. (N. S.) 164 Bryant «. Foot, 9 B. & S. 444 Cunningham D. Foublanque, 6 Car. & P. 44 Crouch V. Credit Fonoier of England, Ltd., L.B 8 Q. B. 374 '. Dalton V. Angus (1881), App. Cas. pp. 740-832 Elwood «. BuUock, 6 Q.B. 383 Edelsteiu v. Sehuler & others (1902), 2 K. B. 144 Pitch «. Bawling, 2 H. Bl. 393 Goodwin v. Bobarts (1875), L.E. 10 Ex. 76 Grimstead v. Marlowe, 4 Term. Bep. 717 Hall «. Nottingham, 46 L. J. Ex. 50 Hartop V. Hoare, 1 Wils. 8 Horton v. Beckman, 6 Term. Bep. 760, 764 ... Jenkins v. Harvey (1835) , 1 Cr. M. & B. 877 Jones V. Waters, 1 C. M. & E. 713 L. & N. W. Ey. V. Fobbing Levels Commissioners, 66L. J. Q.B. 127 Lethulier's Case, 1 Salk. 443 Lockwood V. Wood (1844), 6 Q. B. 50 Ex. Ch. Lyons u. Depass, 3 P. & D. 177 Mogadara «. Holt, Show. 31 Mounsey v. Ismay, 1 H. & C. 729 79, PAGE 71 63 69 80 69 71 68 71 79, 81 64 65, 68 81 69 81, 83 65 65 71 70 69 65 63 78 1 71 30, 78 65 VHl CASES TO WHICH REFEEENCES ARE MADE. Musammat Lali «. Murli Dhar, 22 T. L. E. 460 Noble V. Durell, 3 Term. Eep. 271 Paquete Habana (1899), 175 V. S. 677 Pitts V. Kingsbridge Highway Board, 25 L. T. 195 Eaoe V. Ward, 4 El. & Bl. 702 ... Sogers V. Brenton, 10 Q. B. 26 ... Sandara v. Jameson, 2 Cor. & K. 557 Selby V. Eobinson, 2 Term. Eep. 758 Sewell V. Cerp, 1 Car. & P. 392... Serjeant 1). Eead, 1 Wila. 91 Sheppard v. Payne, 12 C. B. (N. S.) 144 Simpson v. Wells (1872), L. E. 7 Q. B. 214 Sowerby v. Coleman (1867), L. E. 2 Ex. 96 Steel V. Houghton, 1 H. Bl. 51 Swanananja v. Mutta Eamalinga, 3 Mad. H. C. 75, 77 Tyson v. Smith (1838), 9 Ad. & El. 406 Ex. Ch. at p. 421 Vanheath D. Turner, Winch. 24 West Band Central Gold Mining Co., Ltd., v. Eegem (1905), 2 K. B. 391 ; 74 L. J. K. B. 753 Whitstable Free Fishers v. Foreman, 37 L. J. C. P. 273 Wigglesworth v. Dallison (1778), 1 Sm. L.C. (11 Edn.) 645 Wilkes t). Broadbent, 1 Wils. 63 Yates u. Pym, 6 Taunt. 446 "Zamora," Prize Cases (1914-1917), Eeports by E C. M. Trehem, Part 3, pp. 330, 331 PAGE 54 68 83 66 66 68 72 66 72 68 68 69 69 66 76 68, 69 78 83 64 65 67 71 8S THE RELATION OF CUSTOM TO LAW EXPOSITION OF TEEMS. CUSTOM. " Custom is unwritten law peculiar to particular localities " (a). This is the strict sense of " Custom," as immemorial local custom. But in this thesis the word is used to cover trade usages and the law merchant before such are recognised by the State, and whether they be recognised or not. Customs, existing in a State, and which will be recognised, are already law. Both terms apply to such customs. Customs that will not be recognised are customs only, and not laws. Customs may be general common law before they are openly recognised, and after they are recognised. Or customs may be particular (o) The Laws of England, The Earl of Halsbury, X. 218. Lockwood V. Wood (1844), 6 Q. B. 60 Ex. Ch. 2 THE RELATION OF CUSTOM TO LAW. customs, or they may be already part of the law merchant, before or after they are recognised by the State. The present essay seeks to deal with all such customs, to mark out which are laws already, because they will be recognised by the State ; and to show how all such customs arise and how they become laws. Not all customs are or will be laws. The term "custom" is used herein not merely in the strict sense but in the wide sense to include usages of trade, and the usages behind the law merchant, and general customs over a country. " The men who first drew, accepted and in- dorsed a bill of exchange did as much for the law as any lawyer has ever accomplished. They may or may not have acted on the advice of jurists : but whether or not, they began a practice which grew into custom, and as such was recognised by the tribunals as a law-creating one, one confer- ring rights and imposing obligations. There is much of this, far more probably than is com- monly imagined, in the history of every system of law" (b). Custom is, in the broad sense, all the social rules which are observed by the bulk of the members of a society — be it a clan or a nation — as well as the rules which pertain to a locality or to a trade. (b) J. Muirhead, Historical Introduction to the Private Law of Rome (1916, p. 233). THE RELATION OF CUSTOM TO LAW. 3 LAW, By law, in this thesis, is meant State Law. Laws are (1) customs in a State which will be, or have been, recognised by the State; and (2) Statutes which the State has promulgated. Austin declared that law meant positive law, i.e. general commands set by a Sovereign to the members of an independent political society (c). It has often been pointed out, however, that not all laws are commands. Austin himself indicated some laws that are not commands, viz. laws to explain laws, and laws to repeal laws, and laws of imperfect obligation. Xevertheless, the criticisms on Austin's definition of laws, as general commands, are not of so great value as they appear at first to be. For the laws that are not general commands are mostly incidental to those that are such. A better term than com- mands, however, is the word " rules " in defining a "law." Again, not all laws are "set" by a sovereign. Customs that will be recognised by a judge are already laws, and are not " set " by the sovereign. Hence Dr. Holland's definition is to be pre- ferred to Austin's : viz. that Positive Law consists of rules " enforced by a sovereign political authority " {d). The State has two parts, the Sovereign and the Subject, and a law (c) Lectures on Jurisprudence, Lecture VI. (d) Jurisprudence (1916), p. 43. 4 THE RELATION OF CUSTOM TO LAW. is a rule which the sovereign enforces by sanc- tions. The law need not be a general command, nor need it be deliberately " set " by the sove- reign : but always it is a rule enforced by the sovereign. Some customs are so enforced, or if brought into a Court they will be so enforced : they are then already laws : but not all customs are laws. If they exist in a State, and will be, or are, enforced by the sovereign political authority, they are laws. Outside of a State there are no laws, only customs. A State must needs have a number of men : more than a few families or clans. Rousseau suggested 10,000 people could form a State, but that number is too small, though in the Middle Ages such small States existed with dignity. But such States were in danger of being conquered and hence arose large unities. There must be a fixed territory. A nomadic people are not a State. There must be a unity, or cohesion of the people, an internal organisation. Each State has a distinction between sovereign and subjects. The sovereign need not command or " set " all laws, but he enforces them. Anarchy cannot give a State. The State is an organism (e), body and soul, organisation and life. It is not a. lifeless forma- tion, but it can grow. It acts, and makes (e) J. K. Bluntschli, The Theory of the State (English translation, p. 10). THE BELATION OF CUSTOM TO LAW. 5 changes within itself, and has ideas. It is not, however, a separate conscious person, though there have been some German writers who have tried to uphold this (/). A law is thus a rule which can be enforced by the State's coercive power. A State may exist by conquest, as by the Norman William I., or by the work of a leader who gathers peoples together against some common enemy, as when Saul arose in Canaan and unified the tribes against the Philistines (g). Or a State may arise by the voluntary association of tribes, as in Ancient Rome, if tradition is to be believed : or of peoples spread over a large area, as in the United States of America. But in all cases a State is characterised by a central authority or sovereign. The people make an implied contract — not an express contract, as Hobbes and Rousseau seemed to declare — to associate together for, self-defence and for internal peace. The central power acts for these ends by laws which it enforces, and whose enforcement the people, as a whole, generally believe in and accept. Some social customs become laws in the State, i.e., are enforced by the central authority. For Maine to declare that because in a half- civilised, tax-collecting Empire in the East, the ruler Ranjeet Singh did not set or alter the customs which yet were obeyed in his State, (/) Idem, pp. 22, 23. (s) 1 Samuel ix. 6 THE RELATION OF CUSTOM TO LAW. does not affect the question : because, as Maine himself indicates, those people were not governed by positive laws. Austin's distinction between positive laws and other laws still holds good. Indeed, Maine seems to have accepted Austin's analysis {h), and spoke of it as a " scientific process." Austin dealt with States of an advanced civilisation, and not with primitive societies which had no central coercive govern- ment. In a State, law exists if the State will enforce it, and if customs are taken up into the State thus, or will be taken up (should occasion to refer to them arise), these and only these customs are law. There is no such thing as Customary Law as distinct from State Law. Customary Law is State Law as derived from customs. The distinction is clear between customs in a State which the State will not enforce, and those it will enforce. The latter are customs which are also laws. Maine acknowledged that the amount of force used in primitive societies was exceedingly small, "inconceivably small" [i). He distinguishes between " customary law ' ' (in such a society) and "enacted law." But his terms here introduce a confusion. For if these be in a primitive society, " immemorial (h) Early History of Institutions, p. 343. See W. Markby, Elements of Law, pp. 6-8. (i) Idem, p. 392. THE RELATION OF CtJSTOM TO LAW. 7 Custom blindly obeyed," as he says, why use the word " law " of these customs at all? When he further acknowledges that there is practically no force used as a sanction in such societies, the use of the word "law" for the rules which in primitive societies are generally observed, becomes still less necessary. Its use approaches nigh to the use of "law" in the phrase a "law of nature," where a mere blind uniformity is meant. It is best then to confine the term " law " to the rules in a State which the State will enforce. There is a clear, if not rigid, distinction to be made between a primitive society obeying its customs, and a State in which laws are enforced. These laws may be (literally) written or unwritten : but all the rules that are enforceable in a State are its laws. Lewis H. Morgan distinguished clearly between the grouping of " gentes " and the political State. He shows how in the former custom prevailed. " The obligation of blood revenge, which was turned at a later day into a duty of prosecuting the murderer before the legal tribunals, rested primarily upon the gens of the slain person " (k). Before the period of the Homeric poems (about 850 B.C.), the Asiatic Greeks lived in groups of gentes, but moved from gentile to political society, till there came the laws of (ft) Ancient Society (1877), p. 238. 8 THE EELATION OF CUSTOM TO LAW. Drace (624 b.c), Solon (594 b.c.) and Cleisthenes (509 B.C.). Tlie social system of barbarism was founded upon kinship; hence the gentes, with customs of electing chiefs, descent to the male line, mutual help and redress of injuries, adoption of strangers. So " the growth of the idea of government among the American aborigines commenced with the gens and ended with the confederacy. Their organisations were social and not political. Until the idea of property had advanced very far beyond the point they had attained, the substitution of political for gentile society was impossible " (I). Where, then, the organisation is merely instinctive without any central coercive force enforcing the customs, there is no State as yet, and no law : but when a State is reached, all customs which it will enforce are among its laws. In the growth of Customs, and their movement into laws, the general order has been — (a) the habits of the people; (b) the formation thus of a custom; (c) the declaration of the custom by a sub-State authority, and (d) last, the recog- nition by the State that customs bearing certain marks are laws. Thus, in regard to India, Markby wrote (m), " Custom is a less direct instrument of charge than legislation, and it (I) Idem, p. 214. (to) An Introduction to Hindu and Mohammedan Law, by Sir William Markby (1906), p. 14, THE RELATION OF CUSTOM TO LAW. 9 operates more slowly and secretly, but its operation is very extensive, especially in tlie earlier stages of legal history. . . . Thus we find in the Laws of Manu (n), that it is specially ordered that the King who knows the sacred law must inquire into the laws of castes, of districts, of guilds, and of families, and thus settle the peculiar law of each (o). . . . Looking over long periods of time, we can see that under the influence of Custom vast changes have taken place, which, originating in the habits of the people, have gradually come to be recognised as law." (n) See Sacred Books of the East, XXV.^ Book 8, V. 41, 46. (o) This proceeding is rather the work of the sub- State leader or authority than the work of a sovereign in a civilised State, such as was accomplished by the English. ». 0. L. ( 10 ) I. The Cause of Customs in the Instincts of Men, interpreted by Reason. Behind Customs are the instincts of men, interpreted by reason, that is, by the analytic and sympathetic power of man's mind. Such instincts are three, viz., the instinct of self-preservation, the instinct of sex and parent- age, and the growing instinct of sympathy, i.e., compassion for those who suffer, or a desire to be fair to the needs of others. Reason interprets these instincts, and customs are developed to express them. Thus the instinct of self-preservation led to the rules for reprisals between individuals and between States. The blood-feud, " bot " and "wer," the rule of distress for a debt, such arose because of the desire for self-defence or self-preservation. Customs of marriage arose from the sex- instinct, as interpreted by reason; and customs of succession for the property to be kept in the family arose from the instinct of parentage. The instinct of sympathy is a secondary result of the mind, a growth, but it has been a real THE RELATION OF CUSTOM TO LAW. 11 power in the formation of customs, some of which have been later recognised as laws, as in those customs which uphold fair play and justice, and faithfulness to one's word solemnly given. Instincts, interpreted by reason, may thus be said to have created custom. The custom of primogeniture arose in Con- tinental Feudalism — ^being taken over from the barbarians — because of the desire of the lord to have one person, clearly defined, to whom he could look for his feudal dues; and who better than the eldest son? But in England other customs had arisen which were allowed by the Normans to continue as local particular customs, such as borough English in the district of Nottingham, wherein descent was to the youngest son, perhaps because he was longest in the home and least able to care for himself (a) : and gavel- kind in Kent, wherein descent was to all the male heirs, that all might have a share in the estate. Such customs of descent (and those also in other lands) arise from the family-instinct, interpreted by man's reason. There was thus a latent tendency towards laws in the people themselves, and not only in their semi-official or official leaders. Before ever such leaders "declared the law," it had gradually arisen in customs which themselves had come from the instinctive needs of men for some form (o) Holdsworth, History of English Law, in. 236. 12 THE RELATION OF CUSTOM TO LAW. of marriage, land-tenure, compensation fox injuries (" bot "), succession to the dead, the use of barter, and funeral rites (b). (i) Many jurists have tried to pierce the customs of peoples to find their cause in some mental phenomenon, but not always with success. Gustav Hugo (1768-1844) wrote Lehrbuch des Naturrechts ah einer Philosophie des positiven Rechts (1809). Law, he declared, was formed in customs, outside legislation, both in Rome and in England. It arises from manners. The positive written law tried to make exact the order of customs which existed previous to the positive law. F. C. von Savigny (1779-1861) was influenced by Hugo's work. He wrote Vom Beruf unser Zeit fiir Gesetzgehung und Rechtswissenschaft (1814), a pamphlet, and his System (1840). Law, said Savigny, is the product of a people's genius ( Volksgeist) . The law concerning a family, or private property, exists in the general will to have families and private property. " Custom is not a source of law, but evidence of it." This, siirely, is a use of the term " law " that is not to be justified, a confusion, in fact. (h) The use of the term ' ' instinct ' ' here is in its wider connotation, such as is adopted by Mr. MacDougall in Social Psychology, chap. HI., where the list of instincts includes the instinct of pugnacity, the gregarious instinct, the sexual in- stinct, the acquisitive instinct. Such lie behind those habits in which customs arise. See G, F. Stout, Manual of Psychology, pp. 302-364. THE RELATION OF CUSTOM TO LAW. 13 Savigny wrote : " What are the grounds of the origin of common law, or in what do the law- sources consist ? In the general consciousness of a people lives positive law, and hence we have to call it people's law. It is the spirit of a people, living and working in common^ in all the individuals, which gives birth to positive law. We acknowledge an invisible origin of positive law. A proof of this lies in the universal, uniform recognition of positive law, and in the feeling of inner necessity with which its con- ception is accomplished. This feeling expresses itself in the primaeval assertion of the divine origin of law or statutes. ..." " Wherever men live together, in this natural whole is the seat of the generation of law. What works in an individual people is the general human spirit, which reveals itself in that people in a particular manner. . . . Custom is the badge and not a ground of the origin of positive law. . . . The ancient German institution of village courts (Schoffengerichte) which were composed of skilled persons, rested upon a state of immediate recognition of the customary law. The knowledge of customary laws is not required from the judge : they are like foreign laws. The party must allege and prove them." It may be questioned whether Savigny is right in his hypothesis of a " general human spirit." There are simply instincts in common, which instincts have come up from the lower 14 THE RELATION OF CUSTOM TO LAW. animals by evolution, but are modified in men by reason, self-conscious thought which analyses and synthesises. Savigny went too far in assuming that " law " lay in men's minds. Law was gradually developed by the instincts in men's minds, as these were helped by reason to express themselves, and thence gradually customs arose. G. F. Puchta (1798-1846) was a disciple of Savigny and his successor at Berlin in 1842. He wrote Encyclopadie (1825), and Das Gewohn- heitsrecht, on customary law (1828). He de- clared that law is from the "general will," and the State only expresses that will. A system of law was a revelation of spiritual life. " Two guides have been given to man by which the tendency to individualistic separation is guided, viz., Love and the sense of Eight." " Right is the common will of persons." " Justitia est constans et perpetua voluntas jus suum cuique tribuendi," as Justinian said. Thus Puchta sought to show that right does not arise from custom, but the reverse is the truth. " Usage is only the last fact of the process by which the right which has arisen and is living in the members of the people externalises and embodies itself." The right is known by usage, not created by it. " The usage will possess the required condition (to be recognised by a judge as a right) whenever it can be shown to be the outcome of a common conviction of the people." THE RELATION OF CUSTOM TO LAW. 15 That common conviction is seen in " longa consuetude " (oft-repeated immemorial custom), and in its being in accord with divine command- ments. So Arndts, in EncyMopddie, " Customary law is law by virtue of its own nature, as an ex- pression of the general consciousness of rights." So Windscheid, in Pandektenrecht, " The ultimate source of all positive law is national reason." The truth in these writers is, as above indicated, that customs arise from the mental life of man exercised on his natural or acquired instincts. But these writers tend to attribute such instincts to some " general will," as if there were a will greater than all the individual wills of men, a special will for each separate society. There may well be a vast World- Will behind and below all wills, but to speak of each society or nation having a common will is an assumption such as Rousseau made, but one which cannot be proved. Dr. N. Falck (bom 1784), a professor in Christiania, in his Encyclopddie, declared that " Custom becomes a law through the common will. It only continues to exist by the will of the legislative power." This writer also assumes a " common will," whereas there can only be a general consent to each custom. Such a general agreement on this or that custom is not a metaphysical entity or substance called a " will." 16 THE RELATION OF CUSTOM TO LAW. General consent does not make a law. It only makes a custom. The legislative power, as Dr. Falck showed, can alter the custom or abolish it. But more than that, that power can refuse to recognise a custom as law at all. Not all customs become laws. Hence the custom does not become a law through any mythical " common will." It only becomes a law if it attains certain marks (set out below) by which it will be recognised by the State, or if it )oe already recognised. On attaining those marks (as ancient and reasonable) it becomes law, because the State recognises (or will recognise) such a custom. This mythical idea of a "common will" as making customs into laws is set out also in the writings of T. H. Green (c). The idea of a common good undoubtedly exists — in varying degrees — in many people in a State : but so different are the ideas in people that it cannot be said to be a common will. The State is not a person. It has no "general will" (d) as a distinct metaphysical substance, such as Green spoke of. Rotisseau assumed rather than proved the existence of a volonti genirale. The members of Parliament in Britain may be elected by hardly half the number of those possessing the franchise, and by far less than half the population. Such an imaginary " will " cannot (c) Lectures on the Principles of Political Obligation, in his Works, Vol. II. (d) Page 409. THE RELATION OF CUSTOM TO LAW. 17 make laws from customs, except by " recog- nition " or by Statutes. (ii) Coming from tlie writers who more or less try to indicate the background of custom to historical illustrations of the existence of such a psychical source of custom, there are two phenomena in history which help to unveil this source of custom. (a) Jus naturale in Roman jurists. Some writers have tended to confuse jus naturale with jus gentium, relying on the saying of Gains that jus gentium was by naturalis ratio (e). But in that declaration Gains never mentioned jus naturale, far less identified it with the jus gentium. Rather he said that the jus gentium was caused by the reason in all men. The jus naturale -is a term, then, larger than jus gentium. Much in the latter comes from the former. The former consists of some instincts set out by reason. The latter consists of rules which actual peoples made or adopted, and which were recognised by the Roman praetors. Slavery was not allowed by the jus naturale, but it was in the jus gentium,, in the rules of all the peoples around Rome. The Romans them- selves made slaves of many whom they captured in war : 30,000 were sent from Tarentum to Rome, and 150,000 Epirots from Greece. Ulpian (e) Institutes, I., 1. Jus gentium is that which naturalis ratio inter omnea homines constituit. 18 THE BBLATION OF CUSTOM TO LAW. declared slavery was non jure naturali; quia quod ad jus naturale attinet, omnes cequales sunt (/). Florentinus, after Gaius, declared servitus est contra naturam. Thus it is possible to see a distinction between jus gentium and jus naturale witbout going so far as to declare witb TJlpian that natural law is in the animals, viz., in their instinct of sex- union {g). Such an instinct is not one modified by reason or self-consciousness as in men : and it is by such modification that it gives rise to custom {K). Dr. Moyle has indicated the time when the Stoic doctrine of jus naturale came to be a power in Rome (z). " Greece became a Roman province in the middle of the second century before Christ, but her philosophers were as yet regarded at Rome with dislike and suspicion, and in B.C. 161 their teachers had been expelled from the city. Stoicism was first raised to full influence in the higher ranks of Roman society by means of the group which gathered round Scipio j^milianus, who died b.c. 129; and Quintus M. Scaevola, consul in B.C. 95, and the founder of scientific (/) Digesta of JTistinian, L. 17. 32. (g) Digesta, I. 1. 1., par. 8. (k) For a metaphysical examination into the difference between the instincts in man and the animals, see T. H. Green, Prolegomena to Ethics, pp. 83, 84. (i) Imperatoris Justiniani Institutionum Libri Quattuor (1903), p. 87. THE EELATION OF CUSTOM TO LAW. 19 jurisprudence, was one of its earliest eminent disciples. "We may believe from the last- mentioned date onward its doctrines were applied to the development of law with consistency and success. . . . The edict of the praetor peregrinus had been in existence and applied to citizens in their relations with foreigners for more than a century and a half." Thus the jus gentium (rules common to peoples around Rome and accepted by the praetor) had been in Rome before the ideas of the jus naturale came to be distinctly recognised : but those ideas in the minds of peoples around Rome preceded the jus gentium really, and ran down into primitive human instincts. For, as Isidore wrote {k) : " Jus naturale est commune omnium nationum, eo quod ubique instinctu nationum, non con- stitutione aliqua habetur : ut viri ac f eminae conjunctio, liberorum successio ac educatio." So Paulus wrote (l) : " Id quod semper sequum ac bonum est, jus dicitur, ut est jus naturale." James Bryce has written on Cicero's view of jus naturale (m), and also shows it is to be distinguished from jus gentium. " Cicero, though he would not have described himself as a Stoic, subsequently adopts their (k) Orig V. 4. 1. (I) Digesta, I. 1. 11. (m) Studies in History and Jurisprudence, II. 137. 20 THE RELATION OF CUSTOM TO LAW. language on this point, and lays great stress on Nature as the source of the highest law and morality, invoking the doctrine in his speeches as well as expounding it in his treatises (n). "With him, the law of Nature springs from God, is inborn in all men, is older than all the ages, is everywhere the same, cannot be in any wise altered or repealed. It is the basis of all morality. It ought to prescribe the provisions of positive law far more extensively than it in fact does, and to give that law a higher and more truly moral character. We might expect Cicero to go on, if not to identify it with the jus gentium, which he contrasts with the peculiar law of Rome, at any rate to describe it as the source and parent of jus gentium. This, how- ever, he does not actually do, though more than once he comes near it. Jus gentium is, to him, a part of positive law, though much wider in its range than jus civile : whereas the law of Nature is altogether an ethereal thing, eternal, unchangeable, needing no human authority to support it, in fact it is St. Paul's ' law written on the hearts of men.' " It will be clear from these passages that jus naturale is not to be confused with jus gentium, arnd the words of Henry Maine cannot be indorsed : (n) De Republica, fragment preserved by Lactantius, Div. hist. VI. 8. 7. THE DELATION OF CUSTOM TO LAW. 21 " The jus naturale is simply the jus gentium seen in the light of a peculiar theory " (o). The jus naturale was the instinct of sympathy which reason worked up into principles of life. "What were the principles wrapped up in the jus naturale ? Voigt set them forth (p) as the following : (a) The claims of blood ; (b) Faithfulness to engagements; (c) Equitable apportionment of advantage and loss, so that one person was not enriched by the unfair loss of another; (d) Supremacy of voluntatis ratio, the recog- nition of intention instead of merely deal- ing with the words or forms used. Such jus naturale, Voigt showed, is applicable to all men, in all ages, and is in accord with an innate conviction of right (innere Rechtstiber- zeugung). The ' jus naturale, as Dr. Muirhead points out {q), meant " a higher ideal," to which the Stoics strove. The jus civile was for cives. The jus gentium was for the freemen of all nation- alities. The jus naturale was for mankind. (o) Ancient Law, chapter III. (p) Moritz Voigt (Leipzig) — in Die Lehre vom jus naturale mquum et bonum und jus gentium (1856 : 4 vols.) — traces (in Vol. I.) the idea of jus naturale in the Greek philosophers (Socrates, Plato, Aristotle, and the Stoics) and in Cicero; and further, in Boman Law (Gains, Faulus, Marcian, Justinian). (g) The Private Law of Rome, p. 272. 22 THE RELATION OF CUSTOM TO LAW. By the jus naturale the higher, nobler customs arose among men, and laws were altered thereby : e.g., the custom of allowing a son to have a pecuUum, and then a peculium castrense. These allowances by the father arose from the spirit in the jus naturale spreading in Roman society. Such customs were gradually recognised by law (r). The old fatriafotestas arose as a custom — " quum jus potestatis moribus sit receptum " {s). The father had the power of life and death over the son. But by the growth of the jus naturale in men it came to be felt a thing of shame that a father should kill or sell his son. " You are guilty of an unlawful and dis- graceful act, that you sold your freeborn children " (t). It was disgraceful before it became illegal. Customs changed as leniency increased, and what was leniency but the principle in the jus naturale, even though not called by that name ? and " the latter periods of Roman law present a gradual emancipation of filius familias by successive inventions of new kinds of peculium " [u). So with slaves. They had been often cruelly treated in the Republic; some were exposed, some (r) Constantine made a law concerning 'peculium quasi cas- trense. See Ortolan, History of Roman Law, p. 312. {s) Digesta, I. 6. 8. (i) Cod. VII. 16. 1. («) E. Poste on Gaiue : InstiUitiones , p. 65. THE SELATION OF CUSTOM TO LAW. 23 slept in private prisons, some were chained together to work in the fields. Many who revolted were crucified. But Seneca, who was influenced by the idea of the jus naturale, taught that slaves had the dignity of men. Such a sentiment came not from Christianity, but from the Stoics of Greece. Seneca said that masters who ill-treated their slaves were pointed at in the streets and blamed («). Thus the custom of ill-treatment was changed by the jus naturale. Then law appeared, and Claudius declared that masters were not to kill their slaves. He destroyed the ergastula, or private prisons. Antoninus Pius made a law that a master who ill-treated his slave could be compelled to sell him. For centuries the working of the jus naturale affected the customs, and so gradually the laws, of Rome. (b) Grotius indicated in his De jure belli et pads (y) that certain customs of natural law would be adopted as International Law (jus gentium). Such natural law he called jus naturce. " Let us see what is allowed by natural law (natura) .... If I cannot otherwise preserve my life, I may, by any force which I can use, repel him who assails it; this arises from the right which nature gives me for my own (x) De Clem., 1. 18. (y) Edition published by John W. Parker, Cambridge Press, 1853, Vol, in., cap. I. 24 THE HELATION OF CUSTOM TO LAW. preservation. Further, I may take possession of a thing belonging to another, from which a certain danger impends over me, without con- sideration of another's fault. So by natural law (naturaliter) I have a right to take from another a thing of mine which he detains . . . and the like I may do for the sake of recovering a debt. So when punishment is just, all force is just without which punishment cannot be attained. ... So Plato approves a war carried on till those who are guilty are compelled to undergo penalties to the satisfaction of the innocent who suffer by it (z). In order to recover what is ours, if we cannot take exactly so much, we have a right to take more. . . . From these general rules we may see what is lawful against an enemy by natural law." As to the trade of neutrals during war, Grotius makes three lists of articles of commerce : " There are some articles of supply which are useful in war only, as arms : others which are of no use in war (sunt qua5 in bellow nullum habent usum), but are only luxuries (voluptates) ; others which are useful both in war, and out of war, as money, provisions, ships and their furniture. ... In the third class, objects of ambiguous use (usus ancipitis), the state of war is to be considered. For if I cannot defend myself, except by intercepting what is sent, («) De Bep. V. p. 471. B. THE RELATION OF CUSTOM TO LAW. 25 necessity gives us a right to intercept it, but under tlie obligation of restitution, except there be cause to the contrary. . . . We have referred this question (of contraband) to Natural law (jus naturae) because we have not been able to find in history anything on ^the subject as determined by instituted law (constitutum jure voluntario gentium esse)." Further, " in war, force and terror may be used (vis ac terror), by natural law, so also deceit (dolus) in certain cases." But Grotius confessed that he knew that " some of the kinds of fraud (fraudium) which we have said are allowed by natural law (naturaliter), have been repudiated by some people." Under Caput II., Grotius distinguished the jus gentium from the jus naturce, in regard to what was allowed in war. Thus, it is clear that the common sense of man (in a lower stage of morals from what he is able to reach) has declared for defence of himself and his property by any means needed for such, even unto reprisals : and indeed such a will is at the foundation of the ethics of modern International Law, which for self-defence allows reprisals, both in peace and war, and on this is based the international "rights" of pacific blockade, angary, embargo, and the seizure of contraband. So far as these rights are now recognised by law- making treaties, such as the Hague Conventions of 1899 and 1907, it is possible to see how customs E. C. L. 3 26 THE RELATION OF CUSTOM TO LAW. arise and pass into laws. They arise by the common desires of men in society, and by general consent they pass into agreements between States, and give rise to International Laws. Here, in the jus naturce are reached, then, some of the instincts which created custom. It is evident that by jus naturce Grotius did not indicate the ideals of fair play, justice, and equity which were hidden in the jus naturale of the Stoics. The jus naturce was rather the self- regarding instincts of men. Such self-regarding instincts have played a large part in the production of customs which later were recognised by States as inter-State (called International) Law. The custom of seizing contraband from neutrals, of reprisals in self-defence, of angary arise from these self- regarding instincts. Other customs in Inter-State Law (recognised by the Hague Conventions) arise from the instinct of sympathy such as the granting of days of grace to enemy merchant ships found in harbour at the outbreak of a war, or the right allowed to coasting fishing boats to be immune from capture as long as they were not used for any warlike purpose. Thus is is evident that instinct lies behind many of the customs now allowed as laws between States. ( 27 ) II Customs which ahose from the hepeated Acts OF A People, some of which Customs ATTAINED TO THE MaEKS BY WHICH THEY WEEE LATER CALLED LaWS. Customs have arisen in two ways : either by a people repeating certain acts (as the use of a footpath) till they become habitual, or by some popular authority making decisions on cases voluntarily brought before him. It is con- venient to separate these two occasions, but in history they are often connected. For the popular authority, the popular leader to whom appeal is made, interprets the customs which exist among the people. In his breast lies the custom. He forms a link between the loosely organised tribe and the highly organised State with its central coercive Government. But, in interpreting the custom, the popular arbitrator often slightly alters it, and so makes a new custom. Maine thought that such decisions originally created the customs of a people, but only rarely can it have been so. The arbitrator 28 THE RELATION OF CUSTOM TO LAW. modified customs very gradually, but repetition of acts (arising from instinct) was the primary source of the main body of the customs of a people. Historical examples of such customs may be given. (a) CUSTOMS OF SELF-HELP IN ANCIENT ROME. The Laws of the Twelve Tables (b.c. 451) point to a previous period in which the rules adopted in that Code were largely acted on as customs among the Roman people. The debtor was dragged by the creditors before a voluntary arbitrator. This was so even in the time of the kings, who did not interfere unless a riot was likely to occur. If the debtor refused to pay the debt which the arbitrator decided was due, the creditors would put the debtor in chains. A thief, if a slave, caught red-handed {furtum manifestum), was often killed : if a freeman was caught red-handed the custom was for the pay- ment of four-fold the value of the article stolen : if caught when he had deposited the article custom decreed that two-fold its value should be paid. Such customs were recognised in the Laws of the Twelve Tables, but no doubt they grew up gradually from the instincts of self-preservation, which were very strong among the Romans. Similarly, the lex talionis was observed, barter THE RELATION OF CUSTOM TO LAW. 29 was a custom, as was the transfer of an article or house as a pledge for a debt (fiducia), and the reconveyance of the same if the debt was paid. The contract of mutuum was very ancient, being at times solemnised by an oath before the statue of Hercules in Rome. Other customs which grew up prior to the Code were patria potestas, the succession to sui heredes, adrogatio to keep up the familia, and slavery. Well might Tacitus speak of kings who per- suaded rather than commanded men. Such customs rested on the social sanction of exclusion from society, or on a sanction of self-help, as in the case of a thief or debtor. In Rome, laws could even be repealed by the " tacit disuse of the people " (a). (b) CUSTOMS OF SUCCESSION IN INDIA. Before the Brahmin priests modified customs by their decisions, there grew up in India native customs from the instincts (self-regarding or sympathetic) as directed by reason. John D. Mayne, in Hindu Law and Usage, wrote : " My view is that Hindu Law is based upon immemorial customs, which existed prior to and independent of Brahminism, and that, when the (o) Digesta, I. 3. 32. 1. 30 THE BELATTON OF CUSTOM TO LAW. Aryans penetrated into India they found there a number of usages . . . and accepted these. . . . The religious element subsequently grew up and distorted the legal conceptions " (b). Brahminism did not create the customs of the undivided family (a group of families), the order of succession, and the practice of adoption. It was from repeated acts of the people in their village communities that these immemorial customs arose. (c) CUSTOMS BEHIND THE LAVT MERCHANT. The law merchant is a definite body of law ruling mercatores et marinarii. The law once was administered in local courts. Thus the Statute of the Staple (c) and the Carta Mer- catoria (d) declare that the Court is to be of merchants and strangers (foreigners). The law merchant was part of the Common Law of England : the judges took notice of it : it was jus gentium (e). Such law merchant was no doubt influenced by Roman Law, for " the four consensual Roman contracts cover most of the field of mercantile (b) Hindu Law and Usage, pp. 4-6. (c) 27 Edw. ni. St. 2. (d) 31 Edw. I. (e) Mogadara v. Holt, Show. 31. THE RELATION OF CUSTOM TO LAW. 31 law " (/), and the Court of Admiralty used Roman Law to some extent. But before the rules of merchants were recog- nised by the State they existed as customs which had grown up to satisfy the natural instincts of self-preservation and acquisition in merchants. Thus, one of the needs of merchants is haste. They cannot stay for long formalities of convey- ance. Hence arose the negotiability of bills of exchange, the sale in market overt, the customs of factors to give a valid title to a third party. All such came to be recognised by law and enforced by the State, but the social sanction of merchants "enforced" such at first. Thus, bills of exchange " to bearer " go back to 1379, when they were mentioned. The early " bills " were promissory notes. In 1704, a Statute of Anne made clear the difference between an order to pay (i.e. a bill of exchange) and a promise to pay {i..e. a promissory note). Lord Mansfield helped to settle the law in many cases (1756-1788). It was the repetition of early acts among mer- chants that gave rise to their customs, before the State stepped in to recognise and enforce such customs as the "law merchant." So with the usages of the mariners of the (/) A. C. Carter, English Legal Institutions : and see Digesta XIX. 2. 13; XIV. 21 : XXII. 2. as to bottomry and general average. 32 THE RELATION OF CUSTOM TO LAW. Atlantic. A collection of such came to be arranged as the Oleron Code of sea laws, later given in Les Us et Coutumes de la Mer (Bordeaux 1647), confirmed by the Roll of 12 Edward III. The Code was made about 1150, by Eleanor, daughter of the Duke of Aqui- taine (Oleron being the isle on the West of France included in Aquitaine). The Code, or "lex et consuetude de Oleron," is set out in The Black Booh of the Admiralty, and in Liber Horn (from the name of a man who died in 1328 in London), which are in the archives of the Guildhall, London. In the Code are given the judgments as to the powers of masters to sell merchants' goods to pay necessary expenses, how to act in shipwreck, sickness, collisions, and the rules concerning pilots. It is evidence that the Code is founded, as it says, on the usages of merchants long established by repetition. Behind the law lay the customs. This becomes even more clear in regard to the sea laws of Yisby (Wisby), collected in a Code at Liibeck about 1240. It gives the customs of the mariners of the North Sea and Baltic and often in versions of it says : " These rules the shippers and merchants have resolved among themselves." There is a real distinction between custom and law, but when the custom attains certain marks the State practically has to recognise it, if the State would govern men, and keep the peace among those who for long have observed the THE HELATION OF CUSTOM TO LAW. 33 custom (g). A custom existing in a State, which the State will enforce or has already recognised, is a law. (d) CUSTOMS IN EARLY ENGLISH LIFE. Lists of fines (wergild, hot) were drawn up by Ethelbert, Ine, and Alfred, and called "Dooms." Such were to be paid by any one who had committed murder, or theft, or assault. " A thegn had a wergild six times as great as a ceorl." There was no formal contract and no imprisonment in connection with such compen- sations. These fines were fixed by the people themselves, and by repetition became customs. The Courts of freemen only declared such customs. So we read of a case in 1072 at Penenden Heath, when a special County Court was held. " Lanfranc recovered certain lands of the see of Canterbury from Odo," and the Bishop of Chichester, " a very old man and most learned in the laws of the land, ' ' was " brought to the court in a wagon (in una quadriga) by the King's command to discuss and explain the ancient legal customs " (h). (g) See The Black Book of the Admiralty, edited by Sir Travers Twiss, 4 vols. (1871). The Laws of Ol^ron are in Vol. I. The Laws of Wisby are partly identical with the Laws of OUron. Qi) Pollock, The Expansion of the Common Law, p. 37, quoting the Textus Roffensis. 34 THE RELATION OF CUSTOM TO LAW. Magna Charta was practically the beginning of enacted law in England. Then came the Pro- visions of Merton (1236) and of Marlborough (1267). The King was below the law, as Bracton said. Henry III. did not " set " the law. " No one -thought the King could alter the common law of the Catholic Church " (i). The consuetudo of the borough was the lex of the borough, and sometimes it was committed to writing. Gradu- ally the Common Law, drawn from Dane law and Mercian law and Wessex law, prevailed, though Kent had a Lex Kentiae (as in gavelkind). The customs by long repetition had grown up, and were respected and obeyed. The manorial court interpreted rather than " set " the customs, but by interpretation often added new points to the customs. The Courts expounded the cus- toms, which, by being ancient and reasonable, were law already, being tacitly recognised by the State, and would be openly recognised if occasion demanded. An example will illustrate this. " In 1223, Richard of Beseville and Joan his wife brought an assize of novel disseisin against Peter of Goldington and thirty-six others for land in Ravensthorpe." They all agreed that Richard and Joan held the tenement, but should not have cultivated it th^t year : it should have lain fallow : when Richard and Joan cultivated (i) Maitland & Pollock, History of English Law, I. chap. VII. THE RELATION OF CUSTOM TO LAW. 35 it, Peter and the others pastured their beasts on the corn when it had sprouted. Richard and Joan did not deny the custom, but sought the judgment of the Court. " And therefore it ia considered that the said Richard and Joan remain in their seizin, and that Peter and the others be in mercy " (Jc). In all these cases it is possible to discern the growth of custom by repetition of what seemed reasonable among a people. (fc) Maitland & Pollock, History of English Law, II., chap. m. ( 36 ) in. Customs which arose from the Decisions of Popular Authorities, some of which Customs acquired the Marks of Law. By popular authorities are meant leaders who, from their manifest learning in the customs of a society, are looked to spontaneously by a people as voluntary judges or arbitrators or guides. These leaders are not appointed from above, by the Government of a State, but recognised from below, by the people. They may act in a State, an immature State, as arbitrators were volun- tarily chosen in Rome, in the time of the "Kings." Such kings were not sovereigns so much as leaders probably. They did not inter- fere with the customs of the people unless such customs led to riots. Generally, however, such popular authorities have acted in societies which have had no central coercive authority, societies which were not yet States in the modern accepta- tion of the term. They were, anyhow, sub-State authorities, whether existing in a State or not : and while they seemed to only declare the customs they really added to such, or altered such gradu- ally, as also did "case-law " in civilised States. THE RELATION OF CtfSTOM TO LAW. 37 This will become apparent by examples, from whicli also it will be clear tbat tbe rules which were altered or added to (as well as declared) by these authorities were rules chiefly concerned with the order of succession, or the amount of compensation (" bot "), or the customary method of " distress " for debt. Such matters were not always settled by habit- ual repetitions of certain acts by a people. They often needed some " wise man " to choose between alternatives or decide a course in new cases, as well as declare what had been customary in past cases. (a) THE BRAHMIN PRIESTS. The sources of Hindu Law, according to Mayne (a), are texts and decisions on the one hand, and customary law on the other. Such custom must be ancient and continuous, and not be opposed to morality (as in the case of dancing girls' contracts), if the British Courts are now to recognise it. The Law of Manu said that "immemorial usage is transcendent law." So the British Judicial Committee declared that " clear proof of usage (in India) will outweigh the written text of the law." Indeed, as will be seen later, the British judge practically must (a) Mayne, Hindu Law. 38 THE RELATION OF CUSTOM TO LAW. recognise ancient and revered customs, if lie is to rule the people, and to keep the peace. Mayne shows that " immemorial customs " existed before the Brahmin priests : but these priests modified them. " On the one hand, while I think Brahmanical law has been principally founded on non-Brahmanical custom, so I have little doubt that those customs have been largely modified and supplemented by that law." These priests were hardly State authorities. By their religious power over the people they were revered as authorities. They tinged the native usages with their own views on the family, on the order of succession, or on the adoption of a son. Thus the Brahmins did not make State law, but made new customs : yet those customs gradu- ally ceased to be new, and as they had, or took on, marks of being certain and ancient, they became law in that any State had to recognise them retrospectively, as the British have done. (b) THE EOMAN SACERDOTES. Hunter, in his work on Roman Law (6), wrote : " At the time of the Twelve Tables (451 B.C.) the State did not as yet claim to decide civil disputes, although it sanctioned the use of force to bring an alleged wrongdoer before the (6) Roman Law, pp. 967, 974. THE RELATION OF CUSTOM TO LAW. 39 tribunals. At an earlier period, as we may infer from the peculiarities of tlie oldest form of legal procedure — the sacramentum — even this limited authority was denied. The earliest type of judicial proceedings was a mock combat, followed by a reference to arbitration. The first judges were simply arbitrators. Civil jurisdiction sprang out of arbitration. The coercive authority of the State grew out of the voluntary sub- mission of the subject. That is the keynote to the history of civil procedure in Rome. . . . The authority of the State in civil matters was first established when a defendant was not allowed to refuse arbitration." It was by the pontiffs that the customs were made known in the time of the " Kings." Indeed they acted under the kings, then under the consuls, and lastly under the praetors. " Their science of law was (c) closely bound up with their science of religion and astronomy. Theirs was the knowledge of the jus sacrum and the calendar; they alone could tell the dies fasti and nefasti, i.e., the days on which an action at law might or might not be commenced. The knowledge and control and development of the formulce relating to the legis actiones and to juristic acts came to rest entirely with them. The early legal opinions of the College of Pontiffs, which formed the basis and norm of (c) E. Sohm, Institutes of Roman Law, pp. 88, 89. 40 THE EELATION OF CUSTOM TO LAW. the existing practice, were preserved in the archives of the pontifices, and to these archives none but members of the college had access. The pontifical jurisprudence came to be regarded as a secret science." Thus, in the earliest times the customs were not strictly law but were rules which the pontiffs held secretly. The people trusted them because of the religious awe in which these pontiffs were held. They were not State appointed (though allowed by the kings), but popular authorities who declared the rules of customs which the people obeyed. The Code of the Twelve Tables made known some of these customs, and recog- nised them as law ; but more customs lay behind, in the secrets of the pontiffs. Cicero has indicated this pontifical law in two passages in De legihus, which passages indicate laws which were in the Twelve Tables. " Let no one bury or burn a dead man in the city " {d). " Whoso shall have his teeth joined with gold, and one shall bury or burn him with it, let that be without prejudice " (e). The early use of the terms sacra and sacer shows how the priests gave decisions and produced customs. The sacra or religious rites of a god id) De legihus, II. 23, par. 58. " Hominis mortuom, inquit lex in XII., in urbe ne sepelito neve urito. " (e) De legihus, II. 24. par. 60. " Cui auro dentes juncti esunt, ast im cum illo sepeliet uretue, se fraude esto." THE RELATION OF CUSTOM TO LAW. 41 or goddess (as Minerva) were in each family carried out according to the rules of the priests. Marriage was arranged according to the sacred laws, and a man and woman shared all things (confarreatio). The priests sought pure-blooded descendants to perpetuate the sacra. If there were no son to succeed, the paterfamilias was told to " arrogate " one out of another family. An outlaw was sacer homo, devoted to a god, and for that god he could be killed by anyone. For other offences, a man could be killed as a sacrifice to the infernal Dis. Plutarch (/) declared that a man who sold his wife sacer esto. Servius TuUus is said to have written (ff) : " It was provided in the laws of Numa, that if any had unintentionally killed a man, he should present for the life of the slain man, a ram in public meeting (contio) " — Contio was a meeting called by a magistrate or priest. Thus the priest would get a victim for a sacrifice. It is clear that Roman Law originated not by the commands of a sovereign but by the rules of the priests, who were respected (or feared) by the people, as in many primitive societies. Custom was largely what the priests declared. Such custom even applied to the land : " He who ploughed up a land-mark should be devoted to the gods, himself and his oxen " (g). if) Romulus, 32. (ff) Eel. 4. 43. See B. C. Clark, Eatly Roman Law (1872). (g) Dionysius, Anti^q^, II. 74, attributed to Numa. It was E. C. L, 4 42 THE BELATION OF CUSTOM TO LAW. So also the actio sacramentum seems to have been originally a consecration of copper to priestly purposes : and if the king took it, it would be as pontifex Tnaximus {h). Hence it has been well said that there was " very little legal system " during the monarchy in Rome (i). The Digesta of Justinian (A) witnesses to the power of the pontiffs. " The Statute of the Twelve Tables was passed. These tables gave rise to the civil law, and in accordance with the same were devised the Statute actions .(legis actiones). But in con- nection with all these Statutes, the knowledge of the way to interpret them, and the conduct of actions founded on them, was left to the College of Pontiffs, and it was laid down, by order, which of these should superintend private causes every year : and the people continued to conform to this usage for about 100 years. Afterwards, Appius Claudius, having propounded and reduced to form the actions above mentioned, Gnseus Flavins, his secretary, the son of a freedman, purloined the book, and put it in the hands of the people at large. It was called the Flavian Civil Law." customary for historians to refer their oldest customs to the " Kings." (h) See B. 0. Clark, Eoman Private Law, pp. 89-91, 100. (j) J. S. EeidjLitt.D., A Companion to Latin Studies, -p. 301. (fc) Idem. 2. THE RELATION OJ" CUSTOM TO LAW. 43 (c) PATERFAMILIAS IN ROME. Another popular authority in ancient Rome was the 'paterfamilias . There can be no doubt that the heads of families largely influenced the production of ciistom, for they were the proprietors of wives, slaves, children, freedmen. Their decisions would be generally respected and obeyed. (d) THE BREHONS IN IRELAND. Dr. P. W. Joyce has described the ancient system in Ireland in these words : " The native legal system existed in its fulness before the 9th century. It continued till finally abolished in the beginning of the 17th century. In Ireland, a judge was called a brehon (Irish, brethren), whence the native Irish Law is commonly known as the Brehon Law, but its proper designation is Fenechas, the law of the Feine or free land-tillers. " The brehons had absolutely in their hands the interpretation of the laws and the application of them to individual cases. They were a very influential class of men, and those attaehed to chiefs had free lands. Those not so attached lived simply on the fees of their profession. The legal rules as set forth in the law-books were commonly very complicated. The brehon's fee was one-twelfth of the property in dispute, or of the fine in an action for damages. , . . There is no record of how the brehons acquired 44 THE RELATION OF CUSTOM TO LAW. the exclusive right to interpret the laws, and to arbitrate between litigants : it grew up graduallj' and came down as a custom from times beyond the reach of history. The legal processes in which they took part strongly resembled the procedures in archaic Roman law. " In very early times, the brehon was regarded as a mysterious, half-inspired person. " The brehons had collections of the law in volumes or tracts, all in the Irish language, by which they regulated their judgments. The two largest are the Senchus Mor and the Book of Aicill. The Senchus Mor is chiefly concerned with the Irish civil law, and the Book of Aicill with criminal law and personal injuries " (I). No doubt the Senchus Mor was produced by a Com- mittee appointed by Laegaire, King of Ireland, about 436 a.d. It contained the Laws of Distress (as the law of " fasting " on a debtor), the Cain Law {e.g., as to foster-age), and the Corns Bescna, or law of obligations (contracts, and also of status). Bat the Code contained no new laws ; it was a Digest of those in use, with the Scriptural and Canon laws. The Book of Aicill contained opinions of Cormac and Cenfaeludh (about 227 — 266 A.D.). It was a list of the compensations to be given for injuries: cf. Anglo-Saxon "bot." (0 A Social History of Ancient Ireland, 2 vols. (1903), I. chap. VI. THE RELATION OF CUSTOM TO LAW. 45 The brehons were not exactly a State Depart- ment. They were a professional class by force of custom (m). Henry Maine said of the ancient brehons : " The brehon law had not acquired yet, or very imperfectly acquired, that binding power which law obtains when the State exerts the public force through Courts of justice to compel obedience to it " (n). The brehons expounded old customs and rules from the Bible, and added thereto by their decisions on new cases. They were a sub-State authority. " Ireland never arrived at (i.e., so early) the legislative stage : no distinct legisla- tive machinery existed. The internecine wars rendered it impossible for any supreme King to command sufficient power, so that the central government was never strong enough to have much influence, either in the making of laws or in causing the existing laws to be carried out. . . . The brehon laws, then, are really not a legislative structure, but merely a collection of customs, attaining the force of law by long usage, customs which were thrown into shape and committed to writing by a class of pro- fessional lawyers or brehons. And a similar growth and development of custom-law took place in the early stages of all the Aryan (m) Xi. Ginnell, The Brehon Laics, pp. 81-86. (n) Early Institutions, p. 50. 46 THE KELATION OF CUSTOM TO LAW. nations" (o). Both of the terms "law" and " customary law " apply to a rule whicli has " attained force of law " by attaining to those marks by which it will be recognised as law by the State in which it exists, should occasion arise. (e) THE EARLY DEEMSTERS IN THE ISLE OF MAN. From early times up to 1270 the Isle of Man had Scandinavian kings. Later it had Scottish and English kings. But laws were " breast laws," i.e., written in the breasts of the deemsters, or judges. In 1614 Speed wrote of Ireland : " All controversies are there determined by certain judges . . . and these they call deemsters, and chuse forth among them- selves " {p). They were popular authorities. A. W. Moore (q) says the word " deemster " means doom-steerers. A salary of £7 10s. used to be paid by the State to deemsters, and this was raised in 1645 to £15. But the deemsters were the people's officials, and as late as 1577 were elected by the people from among them- selves. They were looked upon as being the repositories of the customs and traditions which (o) p. W. Joyce, A Social History of Ancient Ireland, I. chap. VI. (p) Theat. Gt. Brit:. 46. (q) History of the Isle of Man, 2 vole., pp. 744-746. THE RELATION OF CUSTOM TO LAW. 47 constituted the Common Law, and their opinions upon them were considered as authoritative." About 1422 the customs were reduced to writing, but the "breast-law" still continued. The earlier deemsters were clearly, then, sub- State authorities, popularly elected or recognised. It is possible to perceive how they would declare customs, and add new rules by their decisions. Those rules which became ancient and certain and reasonable were law if existing in a State, with a central coercive government, for they would be recognised, on occasion, retrospectively as well as prospectively, as law. The time when a custom becomes law is not^ as Austin said, the time when a judge recognises it; it is the time (only vaguely to be ascertained) when, in a State, it acquires certain marks (to be hereafter dis- cussed) by which it must needs be recognised as law, should occasion arise. (f) THE CHIEFTAINS OF THE ORKNEY ISLES. The Orkneyinga Saga (r) tells of the chieftain who offered his services to prevent further blood- shed, and tried to " lay down terms of atone- ment." Wherever the Lea Talionis held sway disputes arose as to the amount of compensation, and appeals were made to some wise man or elder who knew what was customary or could (r) Section 27. 48 THE RELATION OF CUSTOM TO LAW. decide in a new case («). The chieftain, in ancient Orkney Isles, was not appointed by a sovereign to be judge. His mediation was offered to or requested by the people : it could be refused, and then trial by battle ensued. So concerning Normandy, M. Tardif tells of the chief's mediation in mediaeval times, of his fee, and how no compensation could be had for some wrongs (t). In the 12th century, in the Orkneys, the earl received some payment by those concerned in a blood-feud : but customary compensation to the relatives of a murdered man was still given (u). (g) THE LAW-SAY-MAN IN ICELAND. Viscount Bryce in his Studies in History and Jurisprudence (I.) has described the Althing of ancient Iceland. It was a voluntary annual assembly of the nation, having first met in 930 A.D. It elected an oiBcer called the law-say- man, who declared the common law. The Althing met yearly till 1800. It was originally formed by the deliberate purpose of men seeking law and justice. The Law-speaker was not a judge appointed by a State. He delivered no State judgments. (s) See Ancient Laws of Ireland (6 vols.), (t) Le Tris Ancien Coutumier de Normandie, chap. 36. («) Records of the Earldom of Orkney, by J. S. Clouston. THE RELATION OF CUSTOM TO LAW. 49 He declared rules whicli all accepted. There was no King and no executive to carry out the rules declared. The people recognised their own customs and obeyed them. « « ^ * ^ 4|f In all these cases it is clear that customs have generally been voiced by some popular leader who gradually added new customs by his decisions. Some of these were later recognised by the State to be laws. ( 50 IV. The State recognition of some Customs as Laws, because of certain Marks which THESE Customs bear. Austin declared that a custom became a law wlien it was recognised by a judge of the State. But if it was recognised as law it must have been law already: e.g., in an agreement based on some particular local custom, or on a custom existing behind the law merchant, the recog- nition is retrospective, for it goes back to the time when the agreement was made, and recognises that the agreement was legal, was one which could be legally enforced by the State, was a contract. Consequently customs which will he recognised by a judge are already law, and are so because they bear certain marks. Austin's words are as follows : " The prevalence of a custom amongst the governed may determine the sovereign, or some political superior in a state of subjection to the sovereign, to transmute the custom into positive law. Respect for a law-writer whose works have gotten reputation, may determine the legislator THE RELATION OF CUSTOM TO LAW. 51 or judge to adopt his opinions, or to turn the speculative conclusions of a private man into actually binding rules. The prevalence of a practice amongst private practitioners of the law, may determine the legislators or judge to ipapart the force of law to the practice which they observe spontaneously. Now, till the legislator or judge impress them with the character of law, the custom is nothing more than a rule of positive morality; the conclusions are the speculative conclusions of a private or un- authorised writer; and the practice is the spon- taneous practice of private practitioners. . . . The custom is transmuted into positive law when it is adopted as such by the courts of justice, and when the judicial decisions fashioned upon it are enforced by the power of the State. But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality (a). John W. Salmond has, however, clearly put the truth of the matter in these words : " Custom is law not because it has been recognised by the courts, but because it will be so recognised, in accordance with fixed rules of law, if the occasion arises. . . . The Austinian theory forgets that the operation of custom is determined by fixed legal principles " (6). (a) Jurisprudence, I. 37, 104. (b) Idem, p. 157. 52 THE RELATION OF CUSTOM TO LAW. The recognition or ratification of customs as laws of State is not a matter of caprice. The judge is guided by certain principles which have grown up in history, by the existence of certain marks or characteristics in the custom. It is these which lead the judge to recognise it as law, ^nd to recognise that it was law when the agree- ment, for example, or decease of the intestate, took place. The following points, therefore, need to be noted. (a) It must be clearly borne in mind that not all customs become laws. Customs, as such, are not, therefore, to be called "Customary laws." This is a confusion which occurs in many writers. Customary law is part of law. (b) It must be further clearly recognised that Judges practically must recognise some customs as laws, if a people are to be governed, and a revolution be prevented. (c) Further, it must be perceived that why some customs are recognised is because they already bear certain marks or characteristics as ancient and reasonable. (d) Last, it is necessary to see that recognition of a custom as law, by the State authority, is retrospective : just as the ratification of an act of an agent, done for the principal (he being in existence at the time) is a retrospective act of the principal. So that a custom is also a law of a State (1) if the State has coTue into existence, with its central coercive sovereign power, and THE RELATION OF CUSTOM TO LAW. 53 (2) if the custom hears the marks by which it will be, or is, recognised by a judge of that State. When the State exists, all customs in its social life (general or local customs), which the State will enforce, are also laws. Before the State exists, there are no laws (even if customs be called " customary laws " by some writers) ; there are only customs. For a law to exist there must be possible the State enforcement of the rule, should it need to be enforced in any instance. These four points will emerge more clearly in the instances given below. But a few words may be added upon the second point, as to why the judge recognised a custom as law if it bore certain marks. The deep yet clear reason for the whole process seems to have escaped the notice of many juristic writers. The reason is a practical one, the need of governing a people in peace. Recognition or ratification by a judge is! not to be thought of as a purely arbitrary pro- ceeding. He is a servant of the State, which exists to keep the peace, within and without. Hence the judge must, in a sense, recognise some customs, if order is to be preserved. Customs which the people hold as sacred or essential to their life, or reasonable, must be recognised as law by the judge, and his recognition is retro- spective: i.e., if the custom has attained certain marks he must and will recognise it as ha"