by gradual and general recognition. Every system of jurisprudence declares this truth. The civil law and its great expounders are all full on the binding force of custom. "Consuetudinis ususque longævi," says the Code, "non vilis auctoritas est.* And again: Inveterata consuetudo pro lege non immerito custoditur, et hoc est jus, quod dicitur moribus constitutum. Nam cum ipsæ leges nulla alia ex causa nos teneant, quam quod judicio populi recepta sunt; merito et ea quæ sine ullo scripto populus probavit, tenebunt omnes. Nam quid interest suffragio populus voluntatem suam declaret, an rebus ipsis et factis? Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogentur.

Custom," says Voet, "is in many respects like statutory enactment. It is an unwritten law gradually introduced by the usages of those who adopt it, and thus acquiring the force of enactment." Legi in multis similis est consuetudo; jus non scriptum, moribus utentium paullatim introductum, legis habens vigorem."S

Forti states well and simply, the manner in which custom establishes its empire. "In the infancy of human society, as writing is little used, and affairs are not yet complicated, differences are adjusted rather according to notions of natural right than statutory enactment. The example of one generation becomes a law for their descendants, and the rules found in the past, furnish a guide for the present and the

*Code, Lib. viii. Tit. 53, Quæ sit long. consuet.

+32 § Ff. Lib. i. Tit. 3, de Legibus.

"Consuetudo Regni est communis lex."-Anon. Cro. Eliz. 10. § Voet, Comm. Lib. i, Tit. iii., § 27, de leg bus.

future. Thus is introduced a kind of law that is called custom." *

So France, before the Revolution of 1789, was to no small extent governed by the unwritten customs (usages) of her different provinces.†

To this source is also chiefly to be traced the great body of the original English law, "that ancient collection of unwritten maxims and customs called the COMMON LAW" which still exercises such extensive

* "Nell infanzia delle humane societa, perche non vi e uso di lettere ne gran complicazione d'affari le discordie tra gli uomini associati ad uno stesso vivere civile si compongono piutosto secondo la ragion naturale che per autorita di leggi autenticate della scrittura. Poi l'esempio dei maggiori divien legge pei nepoti, e le regole che furon formate pel passato danno norma al presente ed al futuro. In questa guisa s'introduce una specie di gius che dicesi, di consuetudine."-Forti, Instituzioni Civile, Lib. i. Cap. ii. 11, p. 19.

Franceso Forti, of Pescia, a nephew of Sismondi the historian, born in 1806, died in 1838. He is, in the domain of the law, one of the most eminent instances of the inextinguishable genius of his unhappy country. Toullier, Tit. Prel, Sect. xi., § 188.

* *

"L'étude du Droit Francois," says Camus, "comprend la connoissance des coutumes, des ordonnances, et de la jurisprudence etablie par les arrêts. ** Chaque province a sa coutume particuliere quelquefois diametralement opposée à celle d'une province voisine. Les coutumes sont plus generales que les ordonnances dans ce sens que leurs dispositions embrassent plus de questions de notre droit. C'est l'etude des coutumes qui doit être la premiere, par la raison qui j'ai touchée qu'elles s'appliquent a un plus grand nombre de questions."

These provincial customs, or common law, formed the subject of separate treatises written by the most eminent of the French legists. Thus, the customary law of Normandy was discussed by Basnage; of Orleans, by Pothier; of Paris, by Dumoulin.-Camus, Etude du Droit Francais, 4th Letter, pp. 81, 110.

Blackstone, Introd. Sect. 1.

"Consuetudo," says Coke, "is one of the main triangles of the laws of England, those laws being divided into common law, statute law, and custom."-Coke, Inst. 110, b.-" particular customs. I say, particular customs, for if it be the general custom of the realm, it is part of the common law.". -Coke, Inst. 115, b.

sway in both England and America, and on which we daily see engrafted regulations owing their origin to the same principle.* Sine scripto jus venit, quod usus approbavit, nam diuturni mores consensu utentium comprobati legem imitantur.†

As, however, societies advance, and become consolidated or crystallized into regular governments, they do not wait for the slow process of custom to establish general rules. In order to create more certain and rapid uniformity, they resort to positive enactments, to statute laws. And these enactments, in many cases, more or less supplant the usages which precede them. Such is the gradual tendency of civilization.

So, the first demand of that extraordinary people which has been to the world the great exemplar of organization and administration, of order and discipline,its first serious internal struggle, was for a body of writ ten law to replace the vague and undefined customs and usages by which they had till then been governed. This was the origin of the law of the Twelve Tables, which united the functions of a constitution and a code, and was for nearly a thousand years, until the time of Justinian, the basis of the jurisprudence of Rome.t

* Among the most, marked instances of the constant tendency of custom to become law, may be noticed the American Marine Insurance doctrine of one third new for old, entirely the creature of a usage which has gradually grown up with the last half century.

† Inst. Lib. i. Tit. 2, § 9.

"The most striking point," says Arnold (Hist. of Rome, ch. vi. p. 70), "in the character of the Romans, and that which has so permanently influenced the condition of mankind, was their love of institutions and of order; their reverence for law, their habit of considering the individual as living only for that society of which he was a member. This character, the opposite to that of the barbarian and the savage, belongs apparently to that

So, we see in France, the old multifarious customs which, before the Revolution, ruled the various provinces of the kingdom, giving way to the code, the greatest and most permanent work of the central authority of the empire.*

So again in England, although the common law, the great customary law, as fixed by the art of printing, expounded and extended by judicial interpretation, retains, even to our time, so great a sway, still, we daily see it modified by and giving way before the inroads of the lawgiver.

But wherever a great body of customary law exists, or has ever existed, a familiar knowledge of its provisions and its history is indispensable to the jurist. First, in point of time, it is often first in point of importance, as explaining and even to a certain extent controlling the statute law to which it apparently gives place.

The importance of bearing this in view in the consideration of our present subject, will be recognized when it is recollected that the great body of unwritten

race to which the Greeks and Romans both belong, by whatever name, Pelasgian, Tyrrhenian, or Sikelian, we choose to distinguish it."

The Decemviri legibus scribendis, were appointed to frame as well a Constitution as a Code of laws. Like the Greek voudrai, "they were to provide for the whole life of their citizens, in all its relations, social, civil, political, moral, and religious."—Arnold's History of Rome, ch. xiii. p. 146.

* But even this great body of statute or written law bears traces of the controlling force of ancient usage. "Whatever is ambiguous," says the Code (Art. 1159, speaking of the Interpretation of Contracts), "is to be interpreted by the usage of the district where the contract was made." Ce qui est ambigu s'interprete par ce qui est à usage dans le pays où le contrat est passé." And again (Art. 1648), "L'action resultant des vices redhibitoires doit être intenté par l'acquereur dans un bref délai suivant la nature des vices redhibitoires et l'usage du lieu où la vente a été faite." See also, Art. 1736 and 1748.

usages called the Common Law of England, is also the basis of the law of this country. The sources, indeed, of American and English jurisprudence, are identical. This is universally true, with the exception only of those States, like Louisiana, Florida, Texas, and California, which, before they were annexed to the United States, belonged to countries governed by the civil law. The colonists who settled this country, were Englishmen, with the feelings, the attachments, and the prejudices of Englishmen. It became necessary for them to establish or recog nize and adhere to some system of law from the moment they landed. That system was of necessity the English, and accordingly, we find the doctrine to have always been that the colonists were subject to, and, as it were, brought with them, the great principles of the common law of the mother country, with such modifications as the legislative enactments of Parliament had at that time introduced into it, or the particular situation of the colonists in their new condition required. It is to be understood, then, as a general principle,-that the basis, the fundamental element, the starting point, of the jurispru dence of the States of the Union, is the common law of England, so far as the same is not actually repugnant to our system. The exceptions we shall hereafter consider; but so it has been repeatedly decided and affirmed in the thirteen old States, as they are called, which in 1776, threw off the English sovereignty. The declaration of rights made by the first Continental Congress, in 1774, declares that "the respective colonies are entitled to the common law of England, and to the benefit of such of the English statutes