Far be it from us to smile at this fiction, whose childishness Maine so pitilessly uncovered. We find it again in many forms. It is justified and useful in every country where the mass of the population has not reached a relatively advanced stage of.social and juridical education; after that it survives through the tyrannical force of habit. The sarcasm which Maine employed against the jurists of his own country rebounds and strikes at the majority of French jurists, - all those, indeed, who adhere to the "school of expounders of the Civil Code." These concede to the legislator the functions (or rather one of them, the second) which the English conception assigns to immemorial custom. Upon the shoulders of the legislator they lay the responsibility for all the innovations which judicial legislation daily realizes under the imperative pressure of novel economic requirements and under the domination of the ceaseless necessity to do and to live. Too often the judges, themselves the involuntary instruments of the transformations of our legal system, are as unconscious of the throb of the law and the evolution going on about them, as we are of the rotation of the earth.
The study of the juridical theory of the sources of English law is rich in suggestion to the French jurist. In finding there, in an even more striking degree and consequently franker and cruder, and in an unaccustomed form, the fiction upon which the dominant French method still rests, he realizes better than before its improbability and childishness. To the Continental jurist, whose education has not been forced into those twists of mind peculiar to the English practitioner, it is impossible to be blind to the truth that this "immemorial custom," from which it is claimed an answer may be drawn for every new case and which regulates institutions born but yesterday, exists, according to the striking expression of Maine, only "in nubibus" or "in gremio magistratuum."
Was this illusion of to-day ever a reality? Did the common law, which so long has grown and been renewed through the work of the courts, take its rise in the rules and maxims of custom, as defined by the German school of writers on the Pandects? In the fragment cited from Maine's "Ancient Law" that author does not hesitate to deny this. And his opinion is confirmed by the most learned historians of English legal institutions of the Middle Ages, especially by Pollock and Maitland, whose scholarship can scarcely be contested. After a careful investigation into the origin of the common law, and the reason of its substitution for special custom, that is, for manorial and other regional jurisdictions, these authors conclude that the general custom of England, which later assumes the name of common law, could have been very justly defined in Bracton's time as the "custom of the King's court" or "the judicial precedents of the King's court." They have pictured this custom as developing by processes familiar to every system of judge-made law, that is, through judicial decisions and the use of analogy.30 Though it would certainly be an anachronism to attribute to the time of Bracton the modern English idea of case-law (i.e. the authority of precedent, even of a single decision), nevertheless in the early period there already existed a "consuetudo curiae," a mass of judicial tradition. This was at first more or less imperfectly made known to the judges by the work of the clerks, but it gathered strength and precision constantly as the personnel of the King's court was drawn more and more from the legal profession.31 But we are not to believe that even these early rulings of the King's court, which gave rise to the common law, faithfully reflected some preexisting body of actual customs (in the Roman and canonical sense of the word); Pollock and Maitland do not leave us even this remnant of illusion. These authors show how the situation created by the Norman Conquest (that is, the contact of peoples who had up to then lived under different systems of law), forced the King's court to adopt methods of eclecticism and compromise, consequently to create law; its judgments were based far more upon reasons of equity than of strict law. On the one hand, this court, made up of persons the majority of whom did not understand English, could not consider itself bound to apply the early Anglo-Saxon law; on the other hand, it was manifestly impossible to derive from the old customs of Normandy a set of rules to cover the situations growing out of the conquest and the establishment of the Normans beyond the Channel. Under the government of the Norman King there was something more than a mere transplanting of Norman legal precedent into England; a new body of judicial law was gradually created by a court whose personnel was imbued with Norman traditions. Pollock and Maitland describe it in these terms: "a flexible, occasional jurisprudence, dealing with an unprecedented state of affairs, meeting new facts by new expedients, wavering as wavered the balance of favor between him (the King) and his barons, capable of receiving impressions from without, influenced by the growth of canon law, influenced perhaps, by Lombard learning, modern in the midst of antique surroundings."32 The rules which formed the earliest basis of the common law were, therefore, the product of a fusion, partly of elements borrowed from various sources, Anglo-Saxon, Roman, and especially Norman and canonical, and partly of a large mass of material of original creation. This fusion was attained by the continuous labors of the King's court. Thus, to judicial practice the common law owes its origin as well as its gradual progress.
30 Pollock and Maitland, "History of English Law" (2d ed. 1898, Cambridge) vol. i, bk. i, chap, vii, p. 183 and note 1, quoting Bracton, f.l.b., who showed well the functions of analogy and the creative role of the courts in the adjudication of new questions, judgment upon which was surrounded with a special solemnity.
31 Ibid., pp. 173-184, and upon the transformation of the King's court, pp. 152 seq.
32 Ibid., p. 108.
English writers upon the genesis and evolution of the common law reveal, clearly enough, it would seem, the true part played in England both by the Roman and canonical doctrine of custom, and by an analogous doctrine which, in imitation, came to discover in custom, as generating cause and basis, the elements of spontaneous usage and unanimous acceptance by the persons affected, of direct and instinctive perception of the law by the whole body of the people, and of voluntary submission of all its members to the rules thus perceived. This doctrine forms a sort of screen, behind which customary law lives and moves, concealing its activities and deluding the public into a belief in the absolute fixity of a system of law which is all the while the subject of continuous transformation. The intrusion of this screen, hiding from indiscreet eyes the fluctuations and the processes of formation of the law, has never checked nor deterred the development of that species of custom which has preserved its productivity and vigor to our day, that is to say, general custom or common law. And English jurists made no claim to force local custom to conform to the fiction which up to that moment had served only to protect it, until the time when that mode of production of law ceased to meet the needs and aspirations of English society, and then only with the object of realizing within a short period its almost complete elimination.
The example of English law appears to us absolutely conclusive. It is useless to argue as an objection the individualistic spirit of this system of law. Certainly it is not in this characteristic feature of English law,reverence for the decided case, faith in the unlimited authority of precedent, even when isolated,-that we must search for the cause of those indissoluble ties between custom and judicial decision which are so clearly revealed by even a superficial observation of the operation of English common law.