[145]. Littleton (sect. 169) tells us that: Consuetudo ex certa causa rationabili usitata privat communen legem. And to this Coke (113 a) adds by way of commentary the canonical maxim: Consuetudo praescripta et legitima vincit legem. In Goodwin v. Robarts, L. R. 10 Ex. at p. 357, it is said: “We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail if contrary to positive law, including in the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself.” See also to the same effect Edie v. East India Company, 2 Burr. 1216.
[146]. Pothier on Obligations, sect. 95.
[147]. Encyklopädie, sect. 20.
[148]. Pandektenrecht, I. sect. 15.
[149]. Austin, p. 538. An able and forcible defence of the Austinian position will be found in Professor W. J. Brown’s Austinian Theory of Law, Excursus D.—“Customary Law in Modern England.”
[150]. Co. Litt. 113 b.
[151]. The importance of reported decisions has, however, been increasing in both France and Germany for some time, and Continental law shows a distinct tendency to follow the example of English in this matter.
[152]. Hale’s History of the Common Law, p. 89 (ed. of 1820).
[153]. Hale’s History of the Common Law, p. 88.
[154]. In re Hallett, 13 Ch. D. at p. 710.