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sions, and which, like the opposing force of vis inertiæ in mechanics, require the application of uniform and continued power to produce the proper effect. Thus, though truth has an irresistible claim upon the human mind, and will at length be recognised and adopted, yet those who first propose it, when the intellectual condition of society is opposed to it, or unprepared for it, may often fall martyrs to their own cause from not possessing themselves of this simple principle. Those, therefore, who would bring forward truth, must be persevering and courageous, and, if possible, connect it with power, in order to exhibit it properly, and make it felt.
Consequently, what is reasonable in itself must first have power on its side before it can establish itself as law; and this must be the legislative power, and that legislative power must be highly intelligent.
From history we learn, that, on account of this conflict, the influence and progress of truth upon great masses have been like the motion of a vessel beating against the wind; for the most reasonable part of the community is drawn from its straight-forward course, by the passions and selfinterest of the other, and may congratulate itself, if its course be at all progressive.
Law is classified according to the different objects to which it is applied. We may here take one general division from the Roman law; this will be into public and private. Public law, jus publicum,' appears under the form of the law of nations, and of the constitutions of nations or states, whether written or otherwise; private law, jus privatum, is what governs the relations of individual members of society, or what in English is called municipal law.”
1 Publicum jus est, quod ad statum rei romanae (rei publicæ) spectat; privatum, quod ad singulorum utilitatem. Justiniani Instit. lib. 1, tit. 2, § 4.
? Kent, in his Commentaries, vol. i, part 3, lect. 20, page 447, defines municipal law, as a rule of civil conduct, prescribed by the supreme power in a state. It is composed of written and unwritten, or statute and common law.
The first, public law, though not yet reduced to a code, as respects the law of nations, can still in its other departments be seen systematized in the constitutions of the several states of the union.
In the last form, it being fully and distinctly written down, I confine myself entirely to municipal law, (jus privatum.) This is divided into common law and statute law, which differ in the nature of the power by which they have been established, the one being by custom, the other by legislative authority.
The common but erroneous opinion, that the greatest part of all law is the work of a regular legislative authority, will make it the more necessary to give a distinct account of the origin and nature of common law. To look for this immediately under the form of distinct statutes would be in vain; it is not so formed. First, we may see it in the guise of manners and customs, which represent the permanent features in the general character of a nation. These permanent features, as remarked before, are formed as well from the individuality of the nation, as from the circumstances of soil and climate. Manners and customs, therefore, are the first expressions of the law, which will continue forming, with the whole spiritual and physical life of a people, and will be modified by increasing knowledge, by the forming of new relations, and by the change of necessities. They will become, like language, perfectly blended with the nature of all who may have grown up with them; but will gradually disappear if unable to adjust themselves to the alteration of circumstances. The common law, therefore, of every nation should be considered as a member of its body, and by no means as a robe, that has been fashioned at pleasure, and may be cast off at will.
The same power of man's soul, which has been seen to be the origin of all law, will equally impart to the most
complete state of jurisprudence a forward or a retrograde motion. A perfect state of rest is as little to be expected in law as in life, or in language, or in customs; so that there has never yet been a code which had not in fifty years, by addition and new habits, lost much of its original character. Law cannot be said to spring from legislative acts or statutes alone; on the contrary, statutes ought to be principally the expression of the legislative sanction of what has, by its consistency with reason, established itself in the law of custom. As only that part of the common law which has already been definitely fixed, can have been written down in statutes, and as we have already said that this law has been developing itself in past time, and still, and continually develops itself by custom, it will be readily seen, that it can never, at any one time, be entirely a written law. The real source, we have already shown to be in man's consciousness, and the source of all additions to it, at all times must be the same. But as these accessions are made by custom, it will be quite clear that customs should only form themselves into law, in as far as they are true expressions of this consciousness.
This law of custom, this result of the constant application of the reason of all the people to the circumstances and wants of all the people, is obviously the largest field for the application of those original principles of law.'
In the development of common law, out of the general consciousness of the people, the following constant recipro
The Romans acknowledged reason, ratio, to be the foundation of common law, by requiring the consuetudo to be rationabilis.
My dissertation : De longa consuetudine, page 5—12; Corpus juris civilis, Lex 2, Codicis, lib. 8, tit. 53: Verum non usque adeo sui valitura momento, ut aut rationem vincat, aut legem; and, Institutiones Justiniani, lib. 1, tit. 2, § 9: Ex non scripto jus venit, quod usus comprobavit, nam diuturni mores consensu utentiam comprobati, legem imitantur.
Novel, 134, Cap. 1. Malaque consuetudines, neque, ex longo tempore, neque ex longa consuetudine confirmantur.
city will be found to hold ; ideas proceeding from certain intellectual men sink into the hearts of the people, are found in the daily intercourse of life to have a real practical value, and are by degrees variously and extensively improved upon. At the same time, those ideas which happen to exist in the minds of the people, and in the spirit of the times, will be found to exercise a great though imperceptible influence on the rising generation of intellectual men, who, as we are taught by history, have been then only really great, when they rightly interpreted the tendencies of the age and of the people, and guided the latter with all that commanding energy and moral distinctness of purpose, which so emphatically mark extraordinary characters.
In this action and reaction common law will be developed and perfected; but it will not possess any constraining force until it shall be acknowledged as a general rule by all or the greater number of the people; its validity will therefore entirely depend upon its appearing that there is a very general consent of all parties in its favor. The agreement of a few individuals, it is evident, could never be taken as authority in this matter. Habits and customs thus grow into law, and their guarantee is contained in the will of the majority. Undoubtedly there are many of a different mind, who may never have agreed to those laws which they are notwithstanding obliged to obey, and which they may certainly look upon as coercive, but there is no help for them. If we examine the matter closely, we shall find, that the greater part of all laws, both public and municipal, has originated in the superior will of the more powerful or intellectual. It is certainly a weak side of this law, that it thus depends upon the will of the majority; for the greater number of votes is no clear proof of the truth and justice of the decision; it is quite possible for the minority to be the wiser and the better instructed. Therefore, according as
the laws have been made by physical or intellectual force, they will be selfish or reasonable, partial or universal, good or bad. The only remedy that can be applied to this evil is the greater diffusion of knowledge among the people.
Common law is thus popular autonomy, and, inasmuch as it is formed by the spirit, not of a single legislature, but of a whole people, during a long succession of ages, belongs truly to them, as an heirloom, which their fathers have held from time immemorial, and have transferred to them, and which they may doubtless modify for their own use; but whose character they should carefully preserve and leave unmutilated to their descendants. Such laws only are dear to a people, and in their estimation infallible. They have imbibed them with the traditions of the oldest inhabitants, and have known them since childhood, and have seen them existing under the same roof with themselves. Custom law or common law may therefore in all reason be considered an inseparable mixture of sacred and common ingredients. And though its origin be mystical and obscure, the strong and ardent attachment which the people bear towards it, may still be easily explained from its having continued with them from the period of their earliest recollections.
Law, when left in this manner to its natural progress, will conform itself to the internal characteristics of the people. This natural course is invariably found to be in accordance with certain general customs which, when care
1 It is a noble and true opinion which the compiler of the Saxon law has expressed in the following words :
" This law, 'tis not of my invention,
'T was of old handed down to us
By the wisdom of our forefathers."
66 Dies Recht hab ich nicht erdacht