HISTORY OF COMMON LAW 337 



terms, has never been changed and will never be changed except by 

 reason of some real emergency. 



But codes of private law must draw the elements of growth or of 

 decay from the life of the people whom they serve. It has been said 

 that the difference between the Roman and the modern idea of the 

 basis and fundamental nature of law is that between fixity and move- 

 ment, between the law as necessary, and the law as always subject 

 to revision. 1 No doubt the Romans did think it a social necessity that 

 there should be some form of institutional authority, the expressed 

 will of which was the final rule of social action. But it is difficult to 

 maintain that they accorded any special fixity to its expression. As 

 it came from the people it could be changed by the people. Long 

 usage if extending over " plurimos annos" added new laws, "velut 

 tacita civium conventio." 2 It gave, and it took away. Even legislat- 

 ive statutes were frankly declared to be subject to tacit abrogation 

 by sinking into desuetude. 3 



No attempt to transmute the common law of a people into code 

 form can be worthily made which fails to discriminate between what 

 of its provisions are in their nature permanent and general, and what 

 of them were the product of temporary and local circumstances. 

 Those of the latter kind may have been preserved in force through 

 centuries, and nevertheless they may be essentially unjust and of the 

 nature of class legislation in opposition to the public welfare. 



Customary law, therefore, cannot be reduced to a written form 

 which shall have the elements of perpetuity unless those who under- 

 take the task have the true interests of the people at heart. They 

 must be able so far to dissociate themselves from the influence of 

 present conditions as to look at things from a far standpoint. They 

 must be uncontrolled by motives of a selfish character, personal to 

 themselves. I do not speak of those who put results in words or are 

 the ones whose names may authenticate charters or codes. Magna 

 Charta was not the work of the king who gave it. It would not have 

 formed the enduring corner-stone of English and American liberty 

 had the barons who wrung it from him exacted only what benefited 

 themselves. 



Had France, before the days of 1789, made full codes for those of 

 her provinces which were subject to unwritten law, she would have 

 perpetuated so much that ought never to have existed, and shown so 

 plainly to all the burdens unfairly thrown upon a part, that the 

 Revolution would have come all too soon. 



The term commune jus was used at the close of the fourth century 

 of our era as if it were a familiar one to denote, apparently, rules and 



1 A. H. Lloyd, in Am.. Hist. Review, ix, 775. 



2 Dig. i, 3, De Legibus, Senatusque Consultis et Lonqa Consuetudine, 35. 



3 Ibid. 32, 1. Aulus Gellius, Noctes Atticae, xn, 13. 



