den. It is objected by Sir H. Maine that the necessity of sanction as an ingredient of law is disproved by the fact that "customary law is not enjoined by a sanction ;" and he goes on to state, by way of illustration, that " in the almost inconceivable case of disobedience to the award of the village council, the sole punishment, or the sole certain punishment, would appear to be universal disapprobation. And hence, under the system of Bentham and Austin, the customary law of India. would have to be called morality, an inversion of language which scarcely requires to be formally protested against." If the statement," customary law is not enjoined by a sanction," is used in a general sense it cannot be sustained, since there are innumerable cases in this country in which fine and imprisonment have been assigned as a punishment on conviction on indictment at common law for offences, e. g., malicious mischief, which are the mere creatures of custom. And even if the statement be restricted to India, it does not disprove the position that a sanction is essential to a law. "Universal disapprobation" is not a less severe punishment than the infamy which has always been regarded as so heavy an ingredient of discipline in the English common law. Distinction between written and unwritten law illusory. 12. The distinction sometimes made between written and unwritten law is open to grave exception. There is no case litigated, no matter how novel it may appear, that does not depend more or less upon written law; there is no case litigated, no matter how express may be the statute determining it, which does not depend more or less upon unwritten law. Cases of the first impression, as they are called, appeal to a far wider range of written authorities than do cases less novel; and on the other hand, there is no statute nor no decision, no matter how direct and precise, that does not require an appeal to unwritten law for its interpretation. In fact the more pointed and exact a statute or decision is, the more subtle and refined are the distinctions to which it gives rise. The statute of frauds, for instance, was drawn with great skill and care; yet there is scarcely a word in the statute that has not been productive of 1 Maine's Village Com. 68. innumerable adjudications, each one of these adjudications presenting differentia which become the topics of new litigation. Recently it has been the custom to incorporate in statutes clauses defiuing their terms; yet there is no one of these definitions that does not call for a re-definition.2 Statutory imposed in law is law fixed words § 13. A statute, according to the Roman law, is a specific law imposed by an authority to whom obedience is due. It must be specific, and in this it is distinguishable from common and customary law, which will be presently noticed. It must be imposed by an authority to whom obedience is due. This authority need not, as we have seen, be that of a legislature, nor need it be that of a sovereign executive, whose edicts, according to the Roman law, are statutes. But, in the Roman law, the laws ' Infra, §§ 30, 114. We may take as an illustration the "Territorial Waters Jurisdiction Act" (41 and 42 Vict. c. 73), passed by the British Parliament in 1878 for the purpose of settling doubts created by the ruling in R. v. Keyn, L. R. 2 Ex. Div. 63, to be hereafter noticed (inf. § 186). To the statute are appended the following definitions: "The territorial waters of her Majesty's dominions,' in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of her Majesty." .. Yet on this very question international law has presented no settled rule: by some high authorities a marine league being given as a limit, and by others, equally high, such a distance as would be protective of the shore, which would be nine miles, the present range of cannon shot. (Inf. § 186.) A decision, therefore, of a court having jurisdiction is necessary to settle doubts as to a statute enacted to settle doubts as to a prior decision. Nor would a deci sion on the statute be final, since it would be impossible to construct such a decision without using terms ambiguous either in themselves or in their application to issues subsequently to arise. The same remark may be made as to a subsequent definition : "Offence, as used in this act, means an act, neglect, or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force." But what offences are punishable by indictment in England at any given time? What treatise gives us all these offences exhaustively? And how many fresh commentaries would such treatise require to meet each new case that arose ? Milton tells us of an— "Anarch old Who by decision more embroiled the fray." And so it is with all attempts to define. We can define satisfactorily enough for the purpose of deciding any one particular case. But the next case that arises requires a minuter differentiation for the purpose of showing that such case falls or does not fall within the rule previously established. of a corporation, municipal or private, and the laws of a family, imposed by its head, are statutes; and even in the English law the term is applied to the laws of corporations and schools, as far as concerns those subject to such laws. The test, both in the Roman law and our own, is capacity to exact obedience and formularization in fixed words. There is, however, this distinction, that ordinarily with us laws issued by an executive, no matter how binding, are called ordinances or decrees or proclamations, while in the Roman law they fall under the general head of statutes. A distinction, also, is taken with us between public and private statutes. A public statute is a statute which establishes a general system. A private statute is a statute which is confined to a special case.1 The practical difference between the two classes is that of a public statute, at common law, the courts take judicial notice, while a private statute must be pleaded and proved. By particular legislation, however, private statutes may be clothed with the incidents of public statutes. Custom is the first stage in the formation of law. § 14. It is possible, as we have seen, to conceive of a law imposed on a people by a sovereign in accordance with his own a priori speculations. Such a law, however, would not be permanent in its effects unless it harmonized with the conscience and needs of the people on whom it should be imposed. We may set aside, therefore, as exceptional legislation of this class, and confine our attentention to the common law, or to statutes which are the expressions of popular sentiment as to what law should be; and of both common law and statutes of this class custom may be spoken of as the first stage. When or how a particular usage originated, is a question as impossible to answer as the question put by the sophist as to the precise number of grains of sand which constitute a heap; or the precise moment when a path across a common was first laid; or the precise period in which any particular language took its mature shape.1 1 Infra, § 598. 2 Infra, § 27. "Customs," says Bacon, 66 are laws written on living tablets." 3 See infra, § 61. 4 Infra, § 94. "The changes, and improvements of the law," says Judge Strong, of the Supreme Court of the United States, in an address before the Law Department of the University of Pennsylvania in 1879, "have been so gradual as to be almost imperceptible during their occurrence. Yet, if any two Custom makes law, not law custom. § 15. It has been sometimes said that a custom does not become law until adopted as law by the sovereign either through courts or legislatures, and this view has been sustained by the high authority of Mr. Austin. Such, however, as has been well remarked,1 is not the case as a matter of fact. The courts do not determine that a custom is to be in force in the future; they decide that when a reasonable custom exists, it governs prior cases in the sphere of its operation. We may recur, as illustrating this position, to the annulling, by common consent, in the colony of Pennsylvania, of such English statutes as were inconsistent with colonial conditions. When the legislature, on periods not very remote from each other be contrasted, they will be found to have been exceedingly important." The whole of this excellent paper may be referred to as sustaining the position taken in the text, and in succeeding sections. See infra, § 61. The ground of customary law, so says Dr. Bruns in Holtzendorff's Enc. 1. 397, is not the will of the people to create the law, nor is it the conviction that the law already exists, but it is the popular consciousness that so the law must be. Customary law does not rest on the power of the people over the law, but on the power of the law over the people, But as our own common law yields to statute law, so the Roman customary law is only operative in matters in which statutes leave undetermined, and may be at any time vacated or modified by statute or public policy. Yet customary law is prior in the Roman sense to statute law, and the first statutes that were passed were passed to embody customs. When, however, these customs cease to express the popular will, then, whether or not sanctioned by statute, they are annulled or modified by statute. But by the classical Roman law, customary law when universal, so far ap proximates to our common law, that in matters in which it does not conflict with statutes, it stands on the same authority with statutes; and it may even, when universal, cause an obsolete statute to become inoperative. Of the unconscious change of substance under unchanged forms the commissioners of the civil code of Pennsylvania (Messrs. William Rawle, T. I. Wharton, and Joel Jones) thus speak in their second report presented in 1832: "The changing relations, customs, and intelligence of communities, exert an irresistible force in operating a change upon the laws; the change, therefore, is in the substance-the names and theories remain by force equivalent to the force of language." To same effect see views of Herbert Spencer, infra, § 106. In Sir H. Maine's Dissertations on Early Law and Custom (London, 1883), he shows how from the practice instituted by the Norman kings of travelling from place to place to administer justice, the more modern system of circuit riding arose. 1 Holland, Juris. 48. 2 Whart. on Ev. § 187. Mr. Holland gives a similar illustration: "The laws of Draco, says the formation of the state government, called upon the judges to report what English statutes were in force in the colony, neither judicial report nor legislation repealed the statutes that were declared to be dropped. Custom, without the action of either court or legislature, had annulled them; and all that court and legislature did was to declare that this custom was effective, and that the statutes had ceased to be in force.1 Yet that custom makes the law, and not law custom, is shown by the fact, just noticed, that when a custom is recognized by the courts as existing, the recognition operates retrospectively, the custom being regarded as law before it was judicially recognized. And not only are customs created, but they are changed or destroyed by conscience and necessity. They are like buoys placed in a shallow river to mark out the channel. When the channel is discovered, these buoys or other marks are stationed to show where it runs. When the channel shifts, they are shifted. When the channel ceases to exist, then the marks are removed. See infra, § 61. In Lord Selborne's speech, when introducing the judicature bill in the House of Lords in 1873, he said, in reference to the fusion of law and equity: "My Lords, it is probably an universal law-certainly it is a general law-concerning all legislative matters of importance in this country, that they depend on the gradual formation of a sound public opinion, founded on experience, and if that is true with regard to any class of measures, it is emphatically true of those measures which relate to improvements or amendments in the law. Time, therefore, is required-and, on the whole, I think it is good that time should be required -to bring opinion on these subjects to the maturity necessary for sound legislation. On this particular subject it has been growing for a considerable number of years. During many years, that opinion has been forming among the most educated and enlightened classes of society in your Lordship's House and in the other House of Parliament, and particularly among those who are most conversant with the administration of justice. This being so, my Lords, unless I encourage in myself too much hope, I venture to think opinion has now reached a point which will enable me to grapple with the great subject." And further on he said : "I think it would be a great mistake to suppose the credit of successful measures, when the time comes at which they can be adopted, belongs to |