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| Joined: | Mon Nov 21st, 2005 |
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For a considerable part of the period when the common law was taking form in England there may be observed in the writers on law a certain struggle between the Roman idea of “lex” and the mediæval conception of law as immemorial usage. The judges of those times, who were generally in orders, were better acquainted with Roman legal conceptions than many of their brethren of a much later time. Their knowledge and reverence for these ideas, coupled with the necessity they were under of administering a law of a different origin, at a less advanced stage of development, but with roots so deep in the traditions and habits of the people that its binding force was unquestionable—these are the chief explanation of apparently incompatible statements concerning the basis and extent of the royal authority, which even the “addiciones” in a text like Bracton’s cannot wholly explain. In the field of private law somewhat the same struggle is to be seen between “lex” and “consuetudo”; the one a product of the classical period of Roman law, the other a growth of the Middle Ages out of roots that are quite different. The mediæval desire for unity led the jurists of the time to make interesting attempts to reconcile these conflicting conceptions. Constantine’s famous dictum, “Consuetudinis ususque longaevi non vilis auctoritas est,1 they gladly fasten upon, but it will not fully serve their needs until it is practically inverted.2 So the author of Glanvill feels it necessary to apologize to his learned readers for an English customary law which he never thinks of questioning.3 Glanvill is quoted word for word by the author of “Fleta,” but without acknowledgment.4 Bracton also begins his treatise with the usual liberal quotations from the “Institutes,” and borrows from Glanvill the sentence identifying “consuetudo” with “lex,” but his treatment of the subject is fuller and much more valuable.5 It is clear that these mediæval writers are faced with a “cousuetudo,” a “lex non scripta,” which is binding much as “lex” was binding in the later Roman Empire. In order then, to apply their favourite texts in support of the existing law, they are under the necessity of including within “lex” what was certainly not included in Justinian’s time. The outstanding fact is that custom had really become “law”. It was accepted by common usage “pro lege”. This is almost the central fact in early English law; but we moderns, like the Romans of the later Empire, are so prone to identify “lex” and “law” that we can hardly appreciate the difficulty in which Glanvill and Bracton found themselves. Glanvill’s apology for “consuetudo” was directed at the classicists, and is easily understood by ourselves; to a twelfth-century Englishman, if unlearned in Roman law, it probably had very little meaning.
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That information can be added to the information offered in the Essay on The Trial by Jury by Lysander Spooner, where the two forces of good and evil were confused by the evil people as a counterfeit good was created and maintained by evil people. A dictatorial "class" of people claimed to be "protecting and serving" the people, and the actual people were instead enslaved and the product of their labor was stolen by this common legal fiction.