is the reftitutor. These however are the laws which our hiftories fo often mention under the name of the laws of Edward the Confeffor; which our ancestors ftruggled fo hardly to maintain, under the first princes of the Norman line; and which fubfequent princes fo frequently promifed to keep and reftore, as the most popular act they could do, when preffed by foreign emergencies or domeftick difcontents. These are the laws, that fo vigorously withstood the repeated attacks of the civil law; which established in the twelfth century a new Roman empire over most of the states of the continent: States that have loft, and perhaps upon that account, their political liberties; while the free conftitution of England, perhaps upon the fame account, has been rather improved than debafed. Thefe, in fhort, are the laws which gave rife and original to that collection of maxims and customs, which is now known by the name of the common law. A name either given to it, in contradiftinction to other laws, as the ftatute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune or folk right, mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws before mentioned.

But though this is the most likely foundation of this collection of maxims and cuftoms, yet the maxims and cuftoms, fo collected, are of higher antiquity than memory or hiftory can reach : Nothing being more difficult than to afcertain the precife beginning and firft fpring of an ancient and long established cuftom. Whence it is, that in our law, the goodness of a custom depends upon its having been used time out of mind; or, in the folemnity of our legal phrafe, time whereof the memory of men runneth not to the contrary. This it is that gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non fcripta, of this kingdom.

This unwritten or common law is properly diftinguishable into three kinds : 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more ufual fignifi

cation

cation. 2. Particular cuftoms; which, for the moft part, affect only the inhabitants of particular districts. 3. Certain particular laws, which by custom are adopted and ufed by fome particular courts, of pretty general and extenfive jurifdiction.

I. As to general customs, or the common law, properly fo called; this is that law, by which proceedings and determinations in the king's ordinary courts of juftice are guided and directed. This, for the most part, fettles the courfe in which lands defcend by inheritance ; the manner and form of acquiring and transferring property; the folemnities and obligation of contracts; the rules of expounding wills, deeds and acts of parliament; the respective remedies of civil injuries; the feveral species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extenfively as the ordinary diftribution of common juftice requires. Thus, for example, that there fhall be four fuperior courts of record, the Chancery, the King's Bench, the Common Pleas, and the Exchequer ;-that the eldest fon alone is heir to his ancestor-that property may be acquired and transferred by writing-that a deed is of no validity unless fealed and delivered ;-that wills fhall be conftrued more favourably, and deeds more ftrictly that money lent upon bond is recoverable by action of debt;—that breaking the publick peace is an offence, and punishable by fine and imprisonment ;-all thefe are doctrines that are not fet down in any written ftatute or ordinance, but depend merely upon immemorial ufage, that is, upon common law, for their fupport.

Some have divided the common law into two principal grounds or foundations: 1. Eftablished cuftoms; fuch as that, where there are three brothers, the eldest brother shall be heir to the fecond, in exclufion of the youngest: And, 2. Established rules and maxims; as, "that the king can do no wrong, that no man fhall be "bound to accuse himself," and the like. But I take these to be one and the fame thing. For the authority of these maxims refts entirely upon general reception and usage; and the only method of proving, that this

OF

or that maxim is a rule of the common law, is by fhewing that it hath been always the custom to obferve it.

But here a very natural, and very material question arifes: How are thefe cuftoms or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the feveral courts of justice. They are the depofitories of the laws; the living oracles, who muft decide in all cafes of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and ftudy; from the "viginti annorum lucu"brationes," which Fortescue " mentions; and from being long perfonally accuftomed to the judicial decifions of their predeceffors. And indeed thefe judicial decifions are the principal and most authoritative evidence, that can be given, of the existence of fuch a custom as fhall form a part of the common law. The judgment itfelf, and all the proceedings previous thereto, are carefully registered and preferved, under the name of records, in publick repofitories fet apart for that particular purpofe; and to them frequent recourfe is had, when any critical queftion arifes, in the determination of which former precedents may give light or affiftance. And therefore, even fo early as the conqueft, we find the "praeteritorum memoria eventorum" reckoned up as one of the chief qualifications of those who were held to be "legibus patriae optime inflitutio." For it is an established rule to abide by former precedents, where the fame points come again in litigation; as well to keep the fcale of justice even and fteady, and not liable to waver with every new judge's opinion; as alfo, because the law in that cafe being folemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any fubfequent judge to alter or vary from, according to his private fentiments: He being fworn to determine, not according to his own private judgment, but according to the known laws and customs of

n Cap. 8.

o Seld. Review of Tith. c. 8.

of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in fuch cases the fubfequent judges do not pretend to make a new law, but to vindicate the old one from mifreprefentation. For if it be found that the former decifion is manifeftly abfurd or unjust, it is declared, not that fuch a sentence was bad law, but 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 juftice fo copious in their en◄ comiums on the reason of the common law; that they tell us, that the law is the perfection of realon; that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reafon of every rule in the law can at this distance of time be always precifely affigned; but it is fufficient that there be nothing in the rule flatly contradictory to reason, and then the law will prefume 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 reafon perhaps could not be remembered or discerned, hath been wantonly broken in upon by ftatutes or new resolutions, the wildom of the rule hath in the end appeared from the inconveniences that have followed the innovation.

The doctrine of the law then is this: That precedents and rules must be followed, unless flatly abfurd or unjuft: For though their reafon be not obvious at first view, yet we owe fuch a deference to former times, as not to fuppose that they acted wholly without confideration. To illuftrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood fhall never fucceed as heir to the estate of his half brother, but it shall rather efcheat to the king, or other fuperior lord. Now this is a pofitive law, fixed

and

«Non

p Herein agreeing with the civil law, Ff.1. 3. 20. 21. " omnium, quae a majoribus noftris conftituta funt, ratio reddi poteft. "Et ideo rationes eorum, quae conftituuntur, inquiri non oportet: alioquin multa ex bis, quae certa funt, fubvertuntur,”

and established by custom, which custom is evidenced by judicial decifions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice; though the artificial reason of it, drawn from the foedal law, may not be quite obvious to every body. And therefore, though a modern judge, on account of a fuppofed hardship upon the half brother, might wish it had been otherwife fettled, yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and feize any lands that were purchased by his younger brother, no fubfequent judges would fcruple to declare that fuch prior determination was unjuft, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always convertible terms, or one and the fame thing; fince it fometimes may happen, that the judge may mistake the law. Upon the whole, however, we may take it as a general rule," that the decifions of courts of justice are "the evidence of what is common law :" In the fame manner as, in the civil law, what the Emperor had once determined, was to ferve for a guide for the future 9.

The decifions therefore of courts are held in the higheft regard, and are not only preferved as authentick records in the treafuries of the feveral courts, but are handed out to publick view in the numerous volumes of reports which furnish the lawyer's library. These reports are hiftories of the several cases, with a short fummary of the proceedings which are preferved at large in the record, the arguments on both fides, and the reafons the court gave for its judgment, taken down in fhort notes by perfons prefent at the determination. And these serve as indexes to, and alfo to explain, the records; which always, in matters of confequence and nicety, the judges direct to be fearched. The reports are extant in a regular feries from the reign of king Edward

"Si imperialis majeftas caufam cognitionaliter examinaverit, et partibus cominus conftitutis fententiam dixerit, omnes omnino judices, "qui fub noftro imperio funt, fciant banc effe legem, non folum illi cauJae pro qua producta eft, fed et in omnibus fimilibus." C. 1. 14, 12.