obvious at first view, yet we owe such a deference to former times as not to suppose 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.2 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 modern judge without a breach of his oath and [*71] *the law. For herein there is nothing repugnant to natural jus tice (8); though the artificial reason of it, drawn from the feodal law, may not be quite obvious to every body (9). And therefore, though a modern judge, on account of a supposed hardship.upon the half brother, might wish it had been otherwise settled, 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 seize any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, 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 same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole, however, we may take it as a general rule, "that the decisions of courts of justice are the evidence of what is common law :" in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future (9). The decisions therefore of courts are held in the highest regard, and are (q) "Si imperialis majestas causam cognitionaliter examinaverit, et partibus, cominus constitutis sententiam dixerit, omnes omnino judices, qui sub exercise it also; and it is no overstrained conjecture to say, that fluctuating and conflicting adjudications would be the consequence, producing much more mischief than can ensue from the enforcement of any precedent or rule of law, however absurd or unjust, till the legislature provides the proper remedy. If an act of parliament had been brought in at the close of a session, and passed on the last day, which made an innocent act criminal, or even a capital crime; and if no day was fixed for the commencement of its operation, it had the same efficacy as if it had been passed on the first day of the session, and all who, during a long session, had been doing an act, which at the time was legal and inoffensive, were liable to suffer the punishment prescribed by the statute. (4 Inst. 25. 4 Term Rep. 660.) This was both flatly absurd and unjust but it was the clear law of England, and could only be abrogated by the united authority of the king, lords, and commons, in parliament assembled; who by the 33 Geo. III. c. 13. enacted, that when the operation of an act of parliament is not directed to commence from any time specified within it, the clerk of the parliaments shall endorse upon it the day upon which it receives the royal assent, and that day shall be the date of its commence - ment. So it being a rule of law, that a person born nostro imperio sunt, sciant hanc esse legem, non solum illi causa pro qua producta est, sed et in omnibus similibus." C. 1. 14. 12. in England owes a natural allegiance, from which he cannot release himself, it was held, that a person born in England, of French parents, but removed out of England immediately after his birth, and educated in France, was guilty of treason in joining the French in war against England. Foster, Cr. L. 59. See note 6, p. 46. (8) But it is certainly repugnant to natural reason, where a father leaves two sons by two different mothers, and dies intestate, and a large estate descends to his eldest son, 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 book ii. p. 231.-CH. (9) 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 great mental vigour. He states the evil with perspicuity; whether it be fundamental, or whether it be one merely of inconvenient anomaly; and, with equal clearness, and, to many, with irresistible reason on his side, suggests the antidote. (2) See Hov. n. (2) at the end of the Vol. B. I. not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of King Edward the Second inclusive; and, from his time to that of Henry the Eighth, were taken by the [*72] prothonotaries, or chief scribes of the court, at the expence of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day for, though King James the First, at the instance of Lord Bacon, appointed two reporters (r) with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of Henry the Eighth to the present time this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valuable of the antient reports are those published by Lord Chief-Justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed, that they are generally cited without the author's name (s). Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde (10), with some others of antient date; whose treatises are cited as authority, and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of (10) The works of these authors are distinguished by the following titles:-"Glanvil's Treatise of the Laws and Customs of England," written in the time of Hen. II. edit. 1780;" Bracton's Treatise of the Laws and Customs of England," written in the reign of Hen. III. edit. 1569; "Britton, corrected by Wingate," edit. 1640; "Fleta, or a Commentary upon the English law," written by an anonymous author (a prisoner in the Fleet), in the time of Edw. I. with a small Treatise, called "Fet Assavoir" annexed, and Mr. Selden's "Dissertation," edit. 1685; "Hengham, (Chief Justice of the King's those princes, in whose reigns the cases reported in his three volumes were determined; viz. Queen Elizabeth, King James, and King Charles the First; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car. Bench in the time of Edw. L) Summa Magna and Parva, treating of Essoigns and Defaults in Writs of Right, Writs of Assize and Dower, &c." which is printed with Fortesque de Laudibus legum Angliæ," edit. 1775; "Littleton's Tenures," various edit. "Statham's Abridgment, containing the Cases down to the End of Hen. VI." only one edit. without date; "Brooke's Grand Abridgment of the Law," 1573; Fitzherbert's Grand Abridgment of the Law," 1565;" Staundforde's Pleas of the Crown," to which is added, an Exposition of the King's Prerogative," 1607. any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the [73] *same learned judge we have just mentioned, Sir Edward Coke ; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward the Fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method (t). The second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts (u). And thus much for the first ground and chief corner stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law. : The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest () will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "For, since (says Julianus,) the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people declare their + [*74] *assent to a law by suffrage, or by a uniform course of acting accordingly?" Thus did they reason while Rome had some remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. "Quod principi placuit (11) legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat," says Ulpian (w). Imperator solus et conditor et interpres legis existimatur," says the code (x). And again, "sacrilegii instar est rescripto principis obviari (y)." And indeed it is one of the characteristic marks of English liberty, that our common law depends upon custom; being quoted in the name of the compiler, as 2 Ven- est, populus ei, et in eum omne imperium suum Alia which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people (12). II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts. These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by King Alfred, and afterwards by King Edgar and Edward the confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament (z). Such is the custom of gavelkind in3Kent, and some other parts of the kingdom (though perhaps it was also general till the Norman conquest), which ordains, among other things, *that not the eldest son [75] only of the father shall succeed to his inheritance, but all the sons alike and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.-Such is the custom that prevails in divers antient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs that a widow shall be entitled, for her dower, to all her husband's lands; (2) Mag. Cart. 9 Hen. III. c. 9.-1 Edw. III. st. 2. c. 9.-14 Edw. III. st. 1. c. 1.—and 2 Hen. IV. c. 1. (12) Lord Chief-Justice Wilinot has said that "the statute law is the will of the legislature in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. (2 Wils. 348.) And statute law, and common law, both originally flowed from the same fountain." (Ib. 350.) And to the same effect Lord Hale declares, "that many of those things that we now take for common law, were undoubtedly acts of parliament, though now not to be found of record." (Hist. Com. Law, 66.) Though this is the probable origin of the greatest part of the common law, yet much of it certainly has been introduced It has been frequently adjudged, that a driver upon the wrong side of the road, met by another who will of course be upon his own right side, is not upon that account to be injured with impunity. Which the proper side is, is conventional between those who frequent the public roads or streets; but it is not yet noted as a custom to guide or direct a decision in our courts of law against him who has not observed it. 1 R. S. 695, requires the driver of a carriage to turn to the right when meeting another carriage; so also 1 R. S. 683, steam-boats meeting must pass to the right. The owner of a vessel navigating a river, having it in his power to avoid a collision with another vessel, yet neglecting to exercise that power, is liable for the damages sus by usage, even of modern date, which general convenience has adopted. As in the civil law, sine scripto jus venit, quod usus approbavit, nam diuturni mores consensu utentium comprobati legem imitantur. (Inst. 1, 2. 9.) Of this nature in this country is the law of the road, viz. that horses and carriages should pass each other on the whip hand. This law has not been enacted by statute, and is so modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience discovered the necessity of it, and our judges have so far confirmed it, as to declare frequently at nisi prius, that he who disregards this salutary rule is answerable in damages for all the consequences.-CH. tained by the other vessel, though that vessel has the wind. It was so adjudged against the owners of a steam-boat in 2 Wendell, 452, the steam-boat being more manageable than a sloop with a light favourable wind. The same principles must apply to carriages. Judge Best, L.C.J. C.P. in Rougemont v. Smith, tried at London Sittings after Trinity Term, 6 G. IV. observed, "That admitting a party's mare to be ridden on the wrong side of the road, as it is called, she was not therefore to be run against and killed.” The question may always be sensibly put, "Was there roadroom enough for both parties to pass? if there were, through whose incautious riding or driving was the injury done?" (3) See Hov. n. (3) at the end of the Vol. B. I. whereas, at the common law, she shall be endowed of one third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors.-Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns, the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage.Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament (a). To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it (b); being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that "cuilibet in sua arte credendum est (13)." The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof. [*76] *As to gavelkind, and borough-English, the law takes particular notice of them (c), and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded (d), and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. The trial in both cases (both to shew the existence of the custom, as, "that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female ;" and also to shew "that (a) 8 Rep. 126. Cro. Car. 347. (b) Winch. 24. (13) The lex mercatoria, or the custom of merchants, like the lex et consuetudo parliamenti, describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land, as the laws relating to marriage or murder. But the expression has very unfortunately led merchants to suppose, that all their crude and new-fangled fashions and devices immediately become the law of the land: a notion which, perhaps, has been too much encouraged by our courts. Merchants ought to take their law from the courts, and not the courts from merchants: and when the law is found inconvenient for the purposes of extended commerce, application ought to be The right of lien in a particular trade; as, for instance, a packer; ex parte Deeze, 1 Atkins, 228, could never have been part of the common law; and yet, as a usage found in the particular trade, our courts have sanctioned it. Thus a banker, for the general amount of a balance due to him from a customer, has a lien upon his cheques and bills paid in the course of business, 15 East, 428; so of a (c) Co. Litt. 175. made to parliament for redress. Merchants ought to be considered in no higher degree their own legislators or judges upon subjects of commerce, than farmers or sportsmen in questions upon leases or the game laws. For the position of Lord Coke ought never to be forgotten: "That the common law had no controller in any part of it, but the high court of parliament; and if it be not abrogated or altered by parliament, it remains still, as Littleton saith." (Co. Litt. 115.) This is agreeable to the opinion of Mr. Justice Foster, who maintains, that the custom of merchants is the general law of the kingdom, and therefore ought not to be left to a jury after it has been settled by judicial determinations." 2 Bur. 1226.—CH.* wharfinger on goods actually on his wharf, Naylor v. Mangles, 4 Esp. R. 109, recog nized as authority by Lord Eldon, and C. J. C. P. Shears, Hartley, 3 Esp. Id. 81. Lien, both general and particular, has been well treated by Mr. Whitaker. And see 6 East, 519; 7 Id. 224; 9 Id. 428, and 3 M. c. S. 167, also mentioned above. |