The common law itself is in reality a product of judicial activity. To be convinced of this, we need only to read carefully Blackstone's pages on the common law, which have remained classic and have been reproduced in substance in the most recent editions of Stephen's Commentaries. Yet, as a writer, Blackstone was highly respectful of tradition and little disposed to draw the veil from the artifices by which jurists had long deceived the public as to the true process of the formation of English law. . . . After declaring incidentally that the authority of the rules of the common law rests upon general reception and usage, Black-stone is content to examine a single question, yet one of such importance that all others become negligible, namely, the question of proof. When this has been determined, it is possible to consider the theory of the common law as completely established. Blackstone's solution of the question of proof robs of all verity in practice the theory of the origin of custom, borrowed by him from the Roman law.
"How are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land."18 We have already noticed 19 the singular authority which, due to the reverence for judicial decision, attaches in
18 Introduction, sec. 3, i. 19 Ibid., sec. 3, i, p. 59.
England to the precedents of the courts. "They are 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."20 Even this early statement is incomplete and inexact, and is frequently corrected in the pages that follow. Judicial decisions not only form the principal proof, but the sole means of proof of custom.21 Thus Blackstone comes to define the common law as "general immemorial custom, . . . from time to time declared in decisions of the courts of justice."22
Blackstone's expression, "living oracles," immediately suggests an analogy between the function of the oracle of antiquity, in religious matters, and the English judge in legal matters. The latter reveals custom as the former revealed the divine will. Neither admittedly creates or originates; each merely discovers and interprets. The judge to-day declares the custom as the oracle formerly spoke the divine will. Just as (according to pagan belief) the intentions of a god were apprehended before being affirmed by the oracles, so English customs, according to the traditional notion superstitiously preserved by modern jurists, exist prior to the judgments through which they are made known. From their first application they are held to be immemorial as though their origin was lost in the obscurity of time.
There are, one may say, in the history of a customary rule, two clearly distinguishable phases: one prior, the other subsequent to its judicial declaration. So long as the declaration of the custom does not intervene, the rule, though already existing in theory, is unknown,-we might say even unknowable, not only to the unprofessional mind but even to the jurist. The lawyer knows that the rule exists, but he must give up hope of discovering it through his own investigation. English custom, like the will of the pagan gods, remains hidden from vulgar eyes. Only the elect may perceive it,-the judges, endowed, like the oracle of old, with a special power of receptivity. But when the judge has performed his function, when he has pronounced his oracle and has recognized in such and such a rule the character of custom, behold the transformation! What before was uncertain and indifferent, is now a permanent rule.23 No one asks by what signs the judge recognized or divined the custom. His function fits him to penetrate its mysteries; on entering upon his duties he has given his oath to unveil them; from that time his judgment becomes the very voice of custom. When a question, already settled by a decision, is again raised before a court, it is enough to cite the prior decision, that is, to show the identity between the former case and the case under litigation, for the custom to be thereby proved and for the judge to be bound by it. Custom does not, therefore, acquire a practical value, that is, become applicable, until it is declared for the first time by the judge. But from that instant it becomes law. Henceforth, on the occasion of a similar hypothesis, the judge will not be asked to declare the custom. It is known. It binds him as well as the parties to the case. He is merely asked to interpose his authority to make it respected, and the precedents must be followed indefinitely.
20 Blackstone, "Commentaries," Introduction, sec. 3, i, p. 69. 21 Ibid., sec. 3, i, p. 71. 22 Ibid., sec. 3, i, p. 73.
23Blackstone, vol. i, Introd., sec. 3, i, p. 69; Stephen, vol. i, p. 53, "When in any case the law has been solemnly declared and det rmined what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments." Cf. Pollock, "Essays in Jurisprudence and Ethics," pp. 246-252.
We have seen, it is true, that Blackstone moderated this principle where the precedent is contrary to divine law, or is manifestly unjust or absurd. The exception in which Blackstone formulated this exception deserves quotation; it throws a final light upon the conception which English jurists hold of the relation between custom and judicial decision: "Yet this rule admits of exception, where the former determination is most evidently contrary to reason; and much more if it be contrary to the divine law. But even in such case the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined."24 . . . "So that the law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law."25