those of the feudal lords), of the twelfth century. Its date is commonly supposed to be in the latter part of that century or perhaps a little earlier, i. e., in the reign of Stephen or Henry the Second. It was the first attempt of that kind and also the last; for the growing power of the king's courts, treated by Glanvil soon after, attracted all the attention of practitioners and writers and the folk-moots, largely governed by local custom in each shire, gradually declined and died out without leaving any written record. The work of Glanvil and the Dialogue of the Exchequer are both nearly contemporary with those last mentioned; but they describe a different system, and belong to the period just opening, and not to that which had closed forever.

These with the leges of Hen. I. and Edw. Conf. have often been printed. The earlier editions of Wheloc and Lambard are rarely seen in America, and are now superseded by the collection of Ancient Laws and Institutes of England, edited for the Rolls' series by Price and Thorpe, London, 1840, in one volume folio, or in two volumes octavo, with an English translation of the Anglo-Saxon portions, and some notes. A still more useful edition to those who read German is that of Dr. Reinhold Schmid, professor at Berne, first published in 1832, and a second time much improved in 1858, one volume, 8vo. Both contain the texts and a German translation and introduction, and the later one has also very valuable notes and an excellent glossary.

(28) These are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of the common law. Yet the maxims and customs so collected are of higher antiquity than memory or history can reach, page 67.

Much wit and some serious argument have been spent upon this doctrine of the immemorial antiquity of the

common law. "Our English lawyers, prone to magnify the antiquity like the other merits of their system, are apt to carry up the date of the common law until, like the pedigree of an illustrious family, it loses itself in the obscurity of ancient times." (Hallam.) The observation is not intended to be a complimentary one : yet it may be accepted as perfectly just. The common law and the family are alike abstractions, existing apart from the concrete members of which each is composed. The actual rules and customs of the common law may change almost with every generation. We may trace with the greatest ease the dying out of a large part of the institutions and usages and legal conceptions of the year-books, or the introduction at a much later period of most of those which fill our reports to-day. We may prove from history that the particular rules of law have their birth and continuance and decay as truly as the generations of men; and yet the system of common law as a whole may as truly be styled of immemorial antiquity as the succession of ancestors to whom the present representatives of a family owe their existence. The common law is common reason, and like that has an existence quite independent of its teachings to each successive generation.

There is, however, a sense in which this immemorial existence may justly be asserted of each common-law doctrine. The particular custom or maxim or rule which we now call a part of the common law cannot show the precise date of its birth, or its individual progenitors as every member of the family can do. It has come "without observation" as a mere development or growth from what existed before it. It has not like a statute or a decision its fixed date of beginning, prior to which we can say that it was not. When it makes its first appearance, it is not as something new in principle, but only a new application of familiar and settled principles; and even this new application is to something

of the same species or class with those previously governed by it. The common law changes only as the persons and things which are its objects change. It is easy to see that all the rules which govern the vast subject of railway communication-the relations of carriers to their passengers and the owners of their freight-must be very modern: for no such questions could have arisen sixty years ago. Yet by far the largest part of those new rules have been formed of the principles which regulated the stage-coach and the carrier's wagon, modified only to fit the novel qualities possessed by a powerful, rapid, and dangerous means of communication. Tracing any one rule back from decision to decision, we cannot find at any step a place where the court has consciously made a new law. If each of these steps has differed a little from the one by which it was reached, still each rests upon its predecessor for all the authority which can be said to be purely legal. The mental operation of the judge in taking each step forward is of precisely the same nature with that taken in cases of no apparent novelty, where a law proved by the decision of A's case against B is extended to the new case of C against D. The judge who finds a decision made in favor of a man against a woman, applies the same principle to the case of a woman against a man; he who reads a decision respecting the liability of a man who has kept a chained tiger applies it to the case of one who has built a reservoir stored with water (Rylands v. Fletcher, L. R. 3 H. L. 341), without thinking in either case that the law he applies is affected. So the judge who decides that a clerk employed by the railroad company in Boston is a fellow servant with the switchman who neglects his duty at Albany, is conscious of making no change in the law, though the decision from which he derives it related to an injury caused by one servant to another working in the same

room.

The law does not change; but the world it

governs does. The immemorial quality of the common law is not affected by any novelty in its applications; and each of its rules is entitled to be considered immemorial also, if it is necessarily implied in the system, and if in tracing it back we can find no definite beginning, no point at which an act of legislation intervened.

It need scarcely be mentioned how intimately this doctrine is connected with that as to the true nature of judicial power. (Note 30, p. 213.) The two are merely different statements of the same truth; and each proves the other. If the judges made law instead of declaring it, every rule of the common law would have its fixed date of origin, and probably, also, its fixed date of repeal.

(29) The only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it, page 68.

Blackstone has been followed almost or quite uniformly by later writers in rejecting the distinction between customs and maxims as parts of the common law, and reducing that law altogether to customary law, so-called. In this he departs from the common usage of our earlier writers, all of whom recognize the distinction, when they discuss the subject at all, and attach more importance to the maxims than to custom itself: for instance, St. Germain, in the Doctor and Student, and Hale, in his History of the Common Law. Nor was it peculiar to English writers. Although the civilians did not in all cases recognize it, yet Ulpian points out very clearly the distinction between custom (consuetudo) and the consensus of opinion (mores) which is inferred from custom and gives it force: mores sunt consensus populi longa consuetudine inveteratus. (Ulpian, Frag. tit. 1, 4.) So, also, Julian: Ancient custom (consuetudo) is not improperly kept for law; and this is the law which is said to be derived from

usage (moribus). Also described by him as unwritten law - ea quæ sine ullo scripto populus probavit. (Dig. lib. 1, tit. 3, 132.)

In saying that the authority of these maxims rests entirely upon general reception and usage, and the only method of proving that this or that maxim is a rule of the common law is by showing that it hath been always the custom to observe it, Blackstone seems not sufficiently to distinguish the particular customs of which he is about to treat in the same connection, and those general customs which constitute the common law. The former must be proved by showing that it has always been the custom to observe them: for it is by their observance that the existence of the exception to the general custom is known. But certainly it is not true that a rule of the common law must or can be shown to exist by evidence of usage under it. On the other hand, as Blackstone himself immediately points out, "the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law," is found in judicial decisions: and when these judicial decisions are examined, it is plain that the legal part of them, as distinct from findings of fact, rests not upon proof of general usage, but upon appeals to the common sense and convictions of the community. It is evident that the binding force of a custom is found in the rule or maxim deduced from it rather than the binding force of the maxim found in the usage from which it is deduced. No custom is obligatory in itself, because there is no reason why from the mere repetition of acts there should spring an obligation to continue further the acts so repeated. (Hellfeld, Jurispr. Forensis, 84.) Thomasius appears to be the first who saw the full force of this difficulty. Previous writers had been in the habit of assuming that custom made law directly and without any intermediate step. To avoid the dif