334 HISTORY OF COMMON LAW 



priests, everywhere its first possessors, to become the possession of 

 the community, that law can or need take written form. 



As the Northern tribes that destroyed the Roman Empire, when 

 they learned letters from those whom they conquered, set up their 

 codes by the side of the Theodosian and the Justinian, so with every 

 people a time comes when unwritten law takes written form. It is an 

 evil time if it comes too quickly. It is an evil change if it is pressed 

 too far. 



The force of law is the reverence of the people. Man is born to 

 reverence for his elders and for the elder time. He wastes his patri- 

 mony if he does not cherish with this sentiment the laws and institu- 

 tions which have come to him by descent. He may some day build 

 better. But nothing will be better which does not rest, in part, and in 

 no small part, on the old foundations. 



A common law is obeyed by the mass of the people instinctively 

 and unquestioningly. They may challenge the right of a monarch or 

 a legislative assembly to impose new rules upon them. They may 

 endeavor to elude their force, or even resist them. But as Maine 

 has observed, "the actual constraint which is required to secure 

 conformity with usage is inconceivably small." 1 We follow usage 

 in law, as we do in dress, without asking for any other reason than 

 the practice of our neighbors. 



This may be called mere prejudice, but popular prejudices are 

 often the best ally of justice. England has grown great and lasted 

 long because she trusts them so much. As Burke has put it in speak- 

 ing for his countrymen: "We cherish them because they are pre- 

 judices; and the longer they have lasted, and the more generally they 

 have prevailed, the more we cherish them. We are afraid to put 

 men to live and trade each on his own private stock of reason; because 

 we suspect that this stock in each man is small, and that the individ- 

 uals would do better to avail themselves of the general bank and 

 capital of nations and of ages." 2 



Japan has wisely bowed to this universal rule in modeling her con- 

 stitutional government. It had been the basis of the empire that it 

 should be governed by a line of emperors unbroken for ages eternal. 

 They made no such pretense, as the Romans did, that the people 

 were the ultimate source of authority, but had committed it all to 

 the emperor by some royal law. 8 They received their constitution 

 in 1889 as his free though irrevocable gift. Its essential character 

 was, by his will, expressed once for all to be immutable, but minor 

 modifications he could suggest from time to time to the Imperial 

 Diet. 4 



1 Early History of Institutions, 392. 



2 Reflections on the Revolution in France, Burke's Works, Bohn's ed. n, 359. 

 8 Dig. I, 4, De Constitutionibus Principium, 1. 



4 Constitution of Japan, arts, i, rv, v, vi, LXXHI. 



