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Three particu- laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
ral customs, or
*I. As to general customs, or the common law, properly 1. As to gene- so called; this is that law, by which proceedings and dethe common terminations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property: the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences; with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the Chancery, the King's Bench, the Common Pleas, and the Exchequer ;-that the eldest son alone is heir to his ancestor; that property may be acquired and transferred by writing;—that a deed is of no validity unless sealed and delivered ;-that wills shall be construed more favourably, and deeds more strictly ;-that money lent upon bond is recoverable by action of debt:-that breaking the public peace is an offence, and punishable by fine and imprisonment ;-all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.
Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims; as, "that the king can do no wrong, that no man shall be bound to accuse himself," and the like. But I take these to be one and the same thing. For the authority of these maxims rests
entirely upon general reception and usage: and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it.
ed decisions are
*But here a very natural, and very material, question [*69 ] arises how are these customs or maxims to be known, Proved by the judges. and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study; from the "viginti annorum lucubrationes," which Fortescue (n) mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and Whose recordmost authoritative evidence, that can be given, of the the principal existence of such a custom as shall form a part of the evidence of common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the "præteritorum memoria eventorum" reckoned up as one of the chief qualifications of those, who were held to be "legibus patriæ optime instituti (o).” For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the
An established rule to abide by former precedents.
to reason an ex
breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and Where contrary expound the old one. Yet this rule admits of exception, ception to the Where the former determination is most evidently contrary to reason (8); *much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust (9), it is declared, not that such a sentence was bad law, but
(8) And what is this reason? Is it so fixed in its principles, so physically true, that, like the oak leaf, it shall be the same to-day as it was five thousand years ago? Reason, with reference to the law, is not always the best or safest interpreter; for those, who give the law, will too often give the reason. Expediency that a law should continue, or that a law should originate, or that it should cease, seems more consonant with social wants. The wisdom of such expediency, to be deduced from the evidence of facts. I meddle not with divine law; it has various interpreters, where its letter chances to be obscure; where plainest, it is often incompatible with social life; and, if it be not always understood, it is often little regarded in many of its chiefest, uncontroverted, and fundamental points. One of the divine laws most violated, is that which ordains the observance of the Sabbath; an ordinance which comprizes, in a most eminent degree, the highest reason and goodness, mercy and loving kindness, a timely rest and repose from
all labour, whether human or animal. The Jew should, in this respect at least, be to us an example.
(9) But it cannot be dissembled, that both in our law, and in all other laws, there are decisions drawn from established principles and maxims, which are good law, though such decisions may be both manifestly absurd and unjust. But notwithstanding this, they must be religiously adhered to by the judges in all courts, who are not to assume the characters of legislators. It is their province jus dicere, and not jus dare. Lord Coke, in his enthusiastic fondness for the common law, goes farther than the learned commentator; he lays down, that argumentum ab inconvenienti plurimum valet in lege, because nihil quod est inconveniens est licitum. Mr. Hargrave's note upon this is well conceived and expressed: Arguments from inconvenience certainly deserve the greatest attention, and where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if the rule of law is clear and explicit, it is in vain to insist upon in
that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded (p). And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniencies that have followed the innovation (10).
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust (11): for though their reason be not obvious at first view, yet we owe such a deference to former times as not to sup
(p) Herein agreeing with the civil law, Ff. 1. 3. 20, 21. “Non omnium, que a majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum, quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur." "For all
those established maxims of law de-
conveniencies; nor can it be true that nothing, which is inconvenient, is law. ful, for that supposes in those who make laws a perfection, which the most exalted human wisdom is incapable of attaining, and would be an invincible argument against ever changing the law." Harg. Co. Litt. 66.-CH.
(10) Expediency best developes legal principle, as well as it best helps
to expound the law itself, because ex-
(11) Precedents and rules must be
pose that they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any [*71] modern judge without a breach of his oath and *the law. For herein there is nothing repugnant to natural justice (12); though the artificial reason of it, drawn from the feodal law, may not be quite obvious to every body (13.) And therefore, though a modern judge, on account of a
which makes an innocent act criminal,
who dies a minor or intestate, that this estate should go to the lord of the manor, or to the king, rather than to the younger son. When such a case happens in the family of a nobleman, or a man of great property, this law will then appear so absurd and unreasonable, that it will not be suffered to remain long afterwards to disgrace our books. See vol. ii. p. 231.—Cн.*
(13) The more advanced student may consult Mr. Humphrey's "Observations on the Actual State of the English Laws of Real Property, with the Outline of a Code;" a production indicative of mental vigour enough to have enabled its author to rid himself of some of the cumbrous harness in which he must long have travelled the road of his practice. It is not a work of a bigot, of an enthusiast, or of one inexperienced or unin.
classes of the people alike, should yet depend, for its amelioration, upon the question, How far do the interests of the more opulent require such alteration to be made?