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APPENDIS B.
89
(2) ss to the character of proof by thich the custom should be properly considered to hare been established.
Of course, custom is almays really as important as positire lut itself. It is altays enumerated as a sanctified source of lar; c.g., the Institution of Vanu, II, 6, give the approved usages of the people as a sonrce of Lars, and in I, 108, the same anthor says that "Immemorial usage is transcendent Lat."
In an old English book, Doctor and Student, i 4, it is said that the Lair of England is grounded on diverse particular custom. In his Institutes, I ii 9, Justininn says: "Diuturni mores consensu utentium comprobati legem imitantur," Ancient customs, when approred by consent of those who follor them, are like statutes (Moyle's translation). In England itself, the Common Lar or the custom of the realm has no less a force than statute lar itself. In a rord, it is common knorrledge that custom is an universal suurce of law and the most ancient of all sach sources.
The first of the points raised by me a bore is phrased by Dr. Holland in his Jurisprudence, as follows:
"At that moment does & castom become Lar?” Dr. Holland's answer to the question is at Tariance with the riets of Austin ; but it is the most acceptable and reasonable answer.
"The state, through its delegates, the Judges, undoubtedls grants recognition as larr to such customs as come up to a certain standard of general reception and usefulness. To these the Courts gire operation, not merely prospectively from the date of such recognition, but also retrospectively.".
Thus it is not necessary for a custom to be subjected to judicial decision and confirmation. It can hare on existence even in the eye of Latr without haring come before a Court at all. Its ralidity and binding force are independent of any interpretation or consideration by the judiciary.
