JUDGE-MADE LAW tween his time (A.D. 527-565) and the adop tion of the Twelve Tables (B.C. 450). The outcome was the famous code of Justinian, the Pandects, and Institutes,, which, with the later constitutions of Justinian, known as Novels, constitute the Corpus Juris Civilis Romani. And so while it may be said that the most famous and widely extended jurisprudence known to the world begins, as it ends, with a code, the fact must not for one moment be lost sight of that what gave importance to the first code and made the last possible, was the creative work per formed by the jurisconsults and magistrates who, during the ten centuries intervening between the two, built up a scientific sys tem of judge-made law whose influence upon the history of mankind has been second only to that of Christianity itself. The Roman Empire is dead and gone, but Roman law has survived it; its rule is eternal. JUDGE-MADE LAW IN ENGLAND When we pass from Rome to England we there find a repetition of the old story of a code of customary law, which had crystal lized into a written form, being expanded and adapted to the ever-increasing wants of a progressive society, through the results of at least six centuries of judge-made law. In the happy phrase of Taine, the Teutonic founders of the Old-English Commonwealth, "created in Britain a Germany outside of Germany." The English kin transferred to Britain that rough, yet vigorous system of political, judicial, and military organization which everywhere prevailed among the Teutonic tribes of the fatherland. Wherever a dis trict of country was won from the native race, the conquerors encamped upon the soil; and then, after dividing the land upon the basis of that peculiar system that rested at once on military and tribal divisions, they organized self-governing communities, which became nurseries of English custom ary law. Just as the English language is
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the outcome of the fusion of the dialects spoken in those local communities, so Eng lish customary law, as a distinct and entire code, is the outcome of the fusion of the customary or popular law developed therein. The primitive system of law which thus matured in the provincial courts of the English people, like all archaic law, took on an iron rigorism of form which rendered it unelastic. -Its entire inadequacy to the wants of a progressive society never be came apparent, however, until the Norman conquest drew England into the march of the continental nations. The most impor tant single outcome of that event was the centralization of justice through the estab lishment of a great court at Westminster, by whose agency a new system of royal law, which found its source in the person of the king, was brought in to remedy the de fects of the old, unelastic system of custom-ary law prevailing in the provincial courts of the people. As soon as the new judicial system put into operation by the Normans, was in working order, "decisions of tribu nals," as Digby has expressed it, "came to constitute in the strictest sense of the term a source or cause of law. Judge-made or judiciary law, henceforth gradually displaces customary law." The English common law judges, in the exercise of perfectly legiti mate or normal functions, thus undertook to enlarge the unelastic and inadequate primitive code by engrafting upon it new principles, either formulated by themselves or borrowed freely from the current com pendia of the Roman and Canon law. Mr. Dicey has said very lately that, '.'As all law yers are aware, a large part, and as many would add, the best part of the law of Eng land is judge-made law — that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by act of Par liament, and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of judicial legislation. The amount of
