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Another illustration of the same principle, of even more interest to American lawyers, may be found in the treatment of the early English statutes as a part of the common law of America. In England these statutes from 9 Hen. III. are clearly written law, binding upon the judge in the terms of their enactment, without reference to any opinion that he may entertain as to their reasonableness and policy. But in America this is quite different; it is the common law as modified by statutes that has been adopted here, and the statutes have no distinct authority as such, but only as they change, confirm, or abrogate the doctrines of the common law. It makes no difference in this respect whether the date of adoption is fixed at the first settlement of the country (4 Jac. 1, 1607), according to the Virginia rule, or at the Declaration of Independence (1776) as in New York. Of course where the legislature of a colony or a state has adopted specific English statutes as a part of their own written law, this general principle may not apply; but otherwise it is so founded in the very nature of the case that it must be regarded as the true doctrine. The statute of Merton, of Westminster, or of uses and trusts may still be read from the English statute book for the information of an American court; but if they believe, as they frequently do, that many of its provisions are inapplicable in this country, and therefore have never been taken up into common usage, they will reject them and determine by their own judgment to what extent these statutes have become a part of the law in force with us. There are no doubt opinions and even decisions to the contrary, giving the English statutes the force of written law here, but the doctrine as stated is not only that of the majority, but is the only one consistent with any practical use of these statutes.

We thus see why written law becomes unwritten or common law, whenever the text loses its peculiar au

thority as conclusive evidence of the legislative intention; so that whenever the court is at liberty to judge how far it can reasonably and justly give effect to the terms as written, it makes no difference whether these terms were originally employed by the legislature or not. They have ceased to be the source of the existence of the law, and have become merely a source from which, with others, the courts learn what the law really is. Blackstone's statement, that the civil and canon laws are unwritten because not enacted by parliament, but received by immemorial usage and custom, has only this meaning. Mr. Austin indeed has given it a differ ent one. "The division of Blackstone and Hale stands thus: Acts of the supreme legislator are leges scriptœ: whether as made immediately by the supreme legislator or as set down in writing by the authority of the makers, does not distinctly appear." (Nor, it may be added, can a reader guess what difference this would make if it did appear. A writing by the authority of the makers can hardly be anything but an enactment, since no legislator from the time of Moses has ever deemed it necessary to authenticate his work by an autograph. That it does not mean a delegated legislative power is clearly shown by what follows.) "But any law not created immediately by the supreme legislator is non scriptum, provided, that is, that its original instruction be not set down in writing." And after some very far-fetched doubts as to the supposed confusion in these distinctions, he concludes that the true distinction depends, not on a difference in the source from whence the law emanates, but on a difference in the modes in which it originates. "When the law or rule is established directly, the proper purpose of its immediate author or authors is the establishment of a law or rule. When the law or rule is introduced obliquely, the proper purpose of its immediate author or authors is the decision on a specific case or of a specific

point or question; or in other words that written or unwritten law emanates in the way of direct or judicial legislation from a sovereign or subordinate source." (Lectures, Vol. 2, pp. 546–549, and compare pp. 528-533.) Austin also borrows from German writers a distinction between the grammatical and the judicial sense of these distinctions, supposing that the ancients meant by it no more than that the laws were actually written down or preserved in memory. I know of no ancient authority for this; the passage of the Pandects commonly quoted for it (Dig. 1, 1, 6), stating that the Athenians used written law, and the Spartans unwritten, is not conclusive; while the case of the responses of the Roman jurisconsults, properly understood, directly contradicts it. The responsa unquestionably were at one time regarded as unwritten law, and later as written law; but they were among the earliest parts of the Roman law which were collected into books, and therefore should always have been considered a written law in the merely grammatical sense of the term. There is no proof whatever that this determined the usage, but there is strong reason to believe that it was the official character given to these responses by Augustus, when he made the prudentes an official body, as differing from their former private position, and prescribed the form of their responses. The written text then became conclusive evidence of the sense of the responses, and, therefore, jus scriptum. According to Austin's own interpretation of the words, they should have remained non scriptum, even then, since they were written, not by the sovereign, but by a subordinate and delegated power; but the Roman jurists could hardly foresee the sense which Mr. Austin has given to these terms.

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Upon this discovery of the Amalfi pandects, see n. 3, p. 43, ante. The notion that the Roman law was previously in neglect and oblivion was the general belief of Blackstone's time, as well among the votaries of that law upon the continent as in England; until early in this century Savigny published his History of the Roman Law in the Middle Ages (A. D. 1815, and subsequently), in which he carefully traced the continued use of that law in some parts of Italy and elsewhere during the whole period intervening between the fall of the western empire, and the revival of the law in the twelfth century, and of its study by the glossators and their successors down to the fifteenth century. The effect of this work upon public opinion was very great; and, as often happens in such cases, the re-action from former errors went to an extreme almost as erroneous in the other direction. Savigny having established the fact that the Roman law was not entirely forgotten, many writers, who perhaps have never read his book and know his conclusions only at second hand, have taken for granted that it remained in full vigor, and have found illustrations of its influence in places and times that knew it only by name, if at all. Professor Brunner has even traced the use of the Anglo-Saxon "books" or land-charters, and their effect upon legal titles to land in England, to the law of the later empire, which had disappeared before Hengist and Horsa landed in Thanet-if they ever did land there! (See the section devoted to Anglo-Saxon charters in his work, on Remische und Germanische Urkunden.)

To the brief sketch of the Roman law, as contained in the Corpus Juris, here given, it should be added that since Blackstone's time its study has entered upon a new phase, in which the compilations of Justinian have received less attention than the historical development of that law, from the leges regia down to its connection with the various national codes which have been based

upon it. The new method of study was no doubt the natural effect of the labors of Niebuhr and others upon the history of Rome, and of the growth of a historical school of jurisprudence in Germany, led by Hugo, Savigny, and others, which marked the earlier years of the present century. The contest between this school and that of the philosophical jurists led by Thibaut had a great influence upon juridical study for at least a generation. Perhaps its most important effect, so far as England was concerned, grew out of the apparent accident that when John Austin went to Germany in 1827 to prepare himself for his labors as a professor of English law, he fell under the influence of Thibaut and his school, and not that of their opponents. Thibaut adhered strongly to the older methods of study, and regarded all law as essentially legislation. His influence is discernible in every page of Austin's writings. But of all systems of national law none could be less easily fitted into the rigid formulæ of that system than the English common law. Its growth has been historical, customary, by development from within and not by imposition from above: and the use of Thibaut's theories only completed the distortion which, it must be confessed, had begun with Blackstone's adoption in these introductory lectures of the doctrines of Puffendorf and others as to the law of nature. Had Blackstone confined himself to the treatment of municipal law as a rule of civil conduct, and thus "distinguished from the natural or revealed, the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct but also the rule of faith" (p. 45), as he has done in the body of the Commentaries, and not prefixed the pages in which he makes these also a part of the municipal law, we probably should not have found Austin and his disciples following so blindly in the same direction. Had Austin accepted the doctrines of the historical school to explain the

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