HISTORY OF COMMON LAW 339 



reduced to writing and officially promulgated by the government, 

 and it was not subject to extension by analogy through mere judicial 

 construction. 1 



If there was a point as to which custom had provided no rule, but 

 the Roman law did, the judges, from the time when the Corpus Juris 

 Civilis first appeared, could resort to it, but only because it was a high 

 form of written reason. 2 



After the adoption of the Code Napoleon they were given a freer 

 hand. In framing the decrees by which it was to be promulgated, the 

 Council of State considered this question at length. It was urged that, 

 no civil code could provide for every conjunction of circumstances 

 and that the ancient local laws should remain in force as to matters 

 not otherwise expressly regulated. 



No, replied M. Bigot-Preameneu. This would perpetuate the con- 

 fusion which we seek to end. We should have judgments of the Court 

 of Cassation affirming one rule, in a case coming from a province 

 formerly under the droit ecrit, and a contrary rule in a case coming 

 from a province formerly under the droit non ecrit. The Roman law 

 will always and everywhere have the authority of written reason, but 

 its use will be all the greater if we can resort to its equitable maxims 

 without being hampered by every subtlety and error which may have 

 attached itself to them. 



These views prevailed and the Council agreed that while an infrac- 

 tion of the previous law should not necessarily constitute a ground 

 of legal error, judges might, if they thought proper, take the prin- 

 ciples of that law as a guide in the determination of causes. 3 



The name common law (droit commuri) in France, it may be ob- 

 served, has a somewhat different signification from that which 

 attaches to it in most countries. It is used as importing the law, what- 

 ever may be its character, common to a whole people or a land, as 

 distinguished from a law of partial application, and also the law 

 recognized by all peoples in all lands the jus gentium of the 

 Romans. 4 



Austin, to maintain his theory that law is a mere act of force 

 proceeding from the sovereignty of the state, expressive of its will, 

 and to be obeyed because of its superior power, has found it necessary 

 to assert that custom, however ancient, never becomes law until the 

 judges, acting for the government, in the decision of some case, 

 have declared it to be such. 5 



As has been seen, there is some Roman authority for this position, 



1 Merlin, Repertoire de Jurisprudence, Autoritcs, n, Coutume, u. 



2 Merlin, Repertoire de Jurisprudence, Autorites, n, Coutume, in; Montesquieu, 

 De Vesprit des Lois, liv. xxviu, chap. xii. 



3 Merlin, Ripertoire de Jurisprudence, Raison ccrite. 



4 Merlin, R ' pertoire de Jurisprudence, Droit; Ortolan, Diplomatic de la Mer, 

 4th ed., 455, 456. 



5 Lectures on Jurisprudence, i, 104; n, 537, 558, 581. 



