come down from age to age, strengthening with our strength, and becoming more sharply defined in its main features as its antiquity has increased.

In all laws there must, for like reasons, be a fundamental distinction somewhat analogous between the written and unwritten law, for the origin of writings can be traced, and still there must have been an antecedent law which those writings displaced or modified, as well as a mode of interpreting and acting on written laws which is not expressed in the body of those laws themselves. In the Roman law the distinction was of little note, and was somewhat literally applied, for written law was deemed to include only what was originally committed to writing, such as the laws of the populus and plebs, the senatus consulta, and constitutions of the emperors, as well as the edicts of prætors and magistrates, and the responses of jurisconsults; while that part of the law, consisting of rules of practice and of argument, and orally used and referred to, but not recorded, and known as customary law, was called the unwritten law.1

Though this distinction has always been drawn between the written and unwritten law, between the statute law and the common law, it is a distinction which indicates little more than the origin, or rather the form in which the law has been promulgated, for it is obvious that whether a law, if properly made, has been immediately put into writing and printed, or has circulated as an oral tradition, can make no real difference as regards its binding effect. It may be more difficult to ascertain and interpret an oral law than one that is put into articulate language; for, the more vague and general a law is, the more difficult it is to be applied and acted upon, and vagueness is more likely to attach to a law which circulates in the memory of the people than to one which is recorded in written language, and which the rules of interpretation can fix with reasonable certainty.

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Statute law is supplementary to common law. But though the mere distinction between common law and statute law is based on the original medium in which each law is found, rather than on the subject-matter of the law itself,

there is also a large and important difference in their scope. and mutual relations. The statute law is in strictness merely supplementary to the common law. The common law, however it may have originated, is assumed to have formed the sum total of the laws governing the community before statutes were made and published. Being the sum total of the law, it is further assumed, and this assumption is the most remarkable of its characteristics, to have provided for nearly all the ordinary evils which laws could cure, and to have supplied the remedy for nearly every wrong, at least such as were prominent at that remote age. It has been and still is the province of the legislature to discover and amend the common law in those points where it is vague and inadequate, or fails to meet the exigencies of the time. The whole series of statutes embody these results of legislative vigilance. Hence, in order to understand thoroughly what a statute means, it is often necessary, and always useful, if not indispensable, to know what was the state of the common and statute law on the subject antecedently to the statute in question. When that preliminary knowledge is acquired, the task of interpretation is greatly facilitated, for, as will be seen hereafter, one of the canons of interpretation is, first to ascertain, what was the evil or mischief in view of the legislature when the statute was passed.

There is in civilisation no rule more clearly established than this, that the exposition of the law shall be left to the courts, and the declaration of new law be left to the legislature; and as a corollary to this the maxim is inexorable, that when once the legislature has spoken, those words cannot be unspoken by any power except the legislature itself. Once a statute, always a statute. Nothing short of a new statute is required to repeal a prior statute, and no length of non-user will ever render the words of a statute less obligatory and less decisive than they were the first day the statute was published. This, however, was by no means the ancient idea of legislative action. The notion that a statute became void, when the king who was the chief actor in passing it died, or when it had been long neglected, was current in England in early times, as it was current then and much later in other countries. The ancient doctrine was, that statutes could go into

desuetude by neglect.1 Hence the practice so common in the reigns succeeding that of John, of republishing Magna Charta at the commencement of each new reign, and even at the commencement of a new parliament.2 And Richard II. had an ordinance that all previous statutes be kept, which shows how loose were the notions at first entertained as to the indelibility of statutory law.

Theories as to origin of common law.-Several theories have been current as to the mode in which the common law originated, though Lord Hale said its original was as undiscoverable as the head of the Nile,1 and Fortescue and Coke, as we have seen, are extravagant in antedating its rise. Not a few resort to the ingenious fiction, that the common law is merely a collection of ancient statutes which have been worn out by time, but of which the purport and bearing have lingered in the memory, and have been handed down as traditions from age to age. This theory indeed eludes all the lessons of history, and as an explanation it in reality amounts only to this, that some of the statutes are a little older than we suppose, while the point to be elucidated is the state of things antecedent to statute, for statutes after all indicate an advanced stage of society. Another theory is, that the common law is merely a collection of the general customs found universally current, and acted on by the people. Special or local customs are familiar in many branches of the law at the present day, as will be seen in subsequent chapters; but their operation is not universal. Local customs are confined to a limited area, and to limited classes of people, and often to special times or occasions; and as such they are devia tions from or exceptions to the general law, and binding on a limited part of the community only, or at least on

1 Barrington, Stat. 186.

The Romans had a principle, that by long disuse a law became void and of no effect.--Cic. in Verr. v. 18; Inst. 1, 2, 11;. Dig. 1, 3, 32. In Scotland this doctrine is applied to all the Scotch statutes passed before the Union in 1707.

25 Ed. 2, Ord. c. 27 (Stat. Realm.)

3 Hale, Hist. C. L. 65.

HALE favours the explanation, that rules, now treated as common law, were acts of parliament, though not now found of record.-Hale's Hist. C. L. 66. WILMOT, C. J., said: "The common law is nothing else but statutes worn out by time."-Collins v Blantern, 2 Wils. 348. See 2 Hall. Mid. Ages, 339.

such part of the community only as come within a limited

area.

By a further generalisation it is assumed that there were also customs which were so adapted to the wants of society as to become of universal acceptation, and binding on all the public without any exception. These general customs were said to constitute what is otherwise called the common law. Such an explanation, however, seems not to advance our knowledge in the least, for what we want to know is how those rules, whether called customs or common law, or by any other name, became such, and at what epoch or by what transitions, and under what influence.

1

The account given of the origin of the common law has seldom been satisfactory, and yet there must be the same difficulty felt as to the origin of the laws of all civilised communities. The obscurity of the origin seems sometimes to be even a matter of pride, for another branch of the theory relating to the common law is, that not only was it in existence before all statutes now known, but no time can be named when it was not in full vigour, and when it did not regulate all human affairs; and though the precise tenets of the common law are now chiefly searched for in the old decisions of courts or ancient treatises, our authors all assume that those decisions did not create, but that they merely expound, the common law as rules which antecedently existed, and are a kind of secondary evidence of what the law was, but do not constitute the law itself.

The convenience of this theory lies in this, that if two or more ancient decisions or treatises do not agree, this variance is set down merely to the imperfect exposition or apprehension of the courts, but does not conclusively show any imperfection or great defect in the original law. For the common law is assumed to have been a perfect code, or nearly so, furnishing a remedy for nearly every wrong; and if that remedy cannot now be sufficiently traced and appreciated, it is said to be the fault of the medium through

1 BENTHAM indignantly observes: "The common law was made by nobody: not made by king, lords and commons, nor by any one else: the words of it are not to be found anywhere: in short, it has no existence it is a mere fiction: and to speak of it having any existence is to give currency to an imposture."-4 Benth. Works, 504.

which the knowledge was conveyed to us. It is at all events assumed to be a code nearly exhaustive of every remedy which law can supply, and free from defects of at least any importance, according to the notions and habits of the age in which it flourished.1 And Blackstone, carried away by this view, remarks, "It is one of the characteristic marks of English liberty that our common law depends upon custom: which carries this internal evidence of freedom along with it, that it was probably introduced by the voluntary consent of the people."2 That passage, it has been justly remarked, involves this error, that it implies that customary law was the source of English liberty, whereas the customary or common law involved and recognised the serfdom of the lower classes. during the middle ages and down to the age of Elizabeth, and there was little of real liberty in that arrangement of classes. The real origin of the common law, as an acute writer has remarked, has been too much extolled, and we must look to no higher or more authoritative origin than the decisions of such judges and courts as expounded the law, or what corresponded to law, at a time antecedent to all known statutes. Nor can it be said with truth, that, because general custom may be assumed to have been accepted with the consent of the people governed by it, it is on that account more favourable to liberty. For the liberty of most nations has been effected by the legislature altering the custom, and often in the proportion to which

4

1 While the unwritten law in this country is found in the decisions of the judges, who are, as BLACKSTONE says, the living oracles, its discovery seems in other countries to have been left to more precarious resources. We are told that in parts of the Continent the unwritten law was in disputed cases proved by witnesses, till the customs were consolidated into written statements or statutes.Canciani, Leg. Barb. b. 5, p. 13; Giannone, Hist. Naples, b. 21; Dupin, Hist. of Fr. Law.

The Roman law is said to have also recognised inveterate custom as equivalent to law, or as a mode of originating law equal to a statute.-Dig. 1, 3, 32. And the great jurists who devoted themselves to the study of the law also added more or less to the code of rules, by publishing their opinions, which became insensibly adopted from time to time by all the public as well as by the legislature. The responsa prudentium, unlike the opinions of eminent counsel in this country, were used by the Roman courts as part of their materials. . 2 1 Bl. Com. 74. 32 Aust. Jur. 559. 4 2 Aust. Jur. 560.