OUT of these three laws, Roger Hoveden and Ranulphus Ceftrenfis inform us, king Edward the confeffor extracted one uniform law or digeft of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manufcript chronicle affure us likewise, that this work was projected and begun by his grandfather king Edgar. And indeed a general digeft of the same nature has been conftantly found expedient, and therefore put in practice by other great nations, which were formed from an affemblage of little provinces, governed by peculiar cuftoms. As in Portugal, under king Edward, about the beginning of the fifteenth century k. In Spain, under Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas. And in Sweden, about the fame æra; when a univerfal body of common law was compiled out of the particular cuftoms eftablished by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England",

BOTH these undertakings, of king Edgar and Edward the confeffor, feem to have been no more than a new edition, or fresh promulgation, of Alfred's code or dome book, with fuch additions and improvements as the experience of a century and a half had fuggefted. For Alfred is generally ftiled by the fame hiftorians the legum Anglicanarum conditor, as Edward the confefior is the reflitutor. These however are the laws which our hiftories so often mention under the name of the laws of Edward the confeffor; which our ancestors ftruggled fo hardly to maintain, under the firft princes of the Norman line; and which fubfequent princes fo frequently promifed to keep and restore, as the most popular act they could do, when preffed by foreign emergencies or domeftic difcontents. Thefe are the laws, that fo vigorously with

% in Hen. II.

hin Edw. Confeffor.

i in Seld. ad Eadmer. 6.

k Mod. Un. Hift. xxii. 135.

1 Ibid. xx. 21I.

m Ibid. xxxii. 21. 58.

food

flood 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: ftates that have loft, and perhaps upon that accouut, their political liberties; while the free conftitution of England, perhaps upon the fame account, has been rather improved than debafed. These, in fhort, are the laws which gave rife and original to that collection of maxims and cuftoms, 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 folcright mentioned by king Edward the elder, after the abolition of the feveral provincial customs and particular laws beforementioned.

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 (1); nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established cuftom. Whence it is that in our law the goodness of a custom depends upon it's having been used time out of mind; or, in the folemnity of our legal phrafe, time whereof the memory of man runneth not to the contrary (2). This it is that gives it it's weight and authority: and of this nature are the maxims and customs which compofe the common law, or lex non fcripta, of this kingdom.

THIS unwritten, or common, law is properly diftinguishable into three kinds: 1. General cuftoms; which are the univerfal rule of the whole kingdom, and form the common law, in it's stricter and more ufual fignification. 2. Parti

(1) What lord Hale fays is undoubtedly true, that "the ori "ginal of the common law is as undiscoverable as the head of the "Nile." Hift. Com. Law, 55.

(2) See note 10, p. 76.

cular

cular customs: which for the most part affect only the inha bitants of particular diftricts. 3. Certain particular laws; which by custom are adopted and ufed by fome particular courts, of pretty general and extenfive jurifdiction.

[68] 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 justice are guided and directed. This, for the most part, fettles the course 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 refpective remedies of civil injuries; the feveral fpecies 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 eldeft fon alone is heir to his anceftor;-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 public peace is an offence, and punishable by fine and imprisonment;--all these are doctrines that are not fet down in any written statute 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 accufe him. "felf," and the like. But I take thefe to be one and the fame thing. For the authority of thefe maxims refts entirely upon general reception and ufage: and the only method

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of

of proving, that this 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, queftion arifes: [ 69 ] how are these customs 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 depofit. aries 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 knowlege of that law is derived from experience and ftudy; from the "viginti an"norum lucubrationes," which Fortefcue ", mentions; and from being long perfonally accustomed to the judicial decifions of their predeceffors. And indeed thefe judicial decifions are the principal and moft authoritative evidence, that can be given, of the existence of fuch a cuftom as fhall form a part of the common law. The judgment itfelf, and all the proceedings previous thereto, are carefully registered and pre ferved, under the name of records, in public repofitories fet apart for that particular purpose; and to them frequent recourfe is had, when any critical queftion arifes, in the deter mination of which former precedents may give light or afliftance. And therefore, even fo early as the conqueft, we find the "praeteritorum memoria eventorum" reckoned up as one of the chief qualifications of thofe, who were held to be "legibus "patriae optime inflituti ." For it is an eftablifhed rule to abide by former precedents, where the fame points come again in litigation as well to keep the fcale of juftice even and fteady, and not liable to waver with every new judge's opinion; as alfo becaufe 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 breaft 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

a cap. 3.

Seld. review of Tith. c. 8.

according

according to the known laws and cuftoms 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 moft evidently contrary to reason; [70] 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 mifrepresentation. For if it be found that the former decifion is manifeftly abfurd or unjust (3), it is declared, not that such a fentence was bad law, but that it was not law; that is, that it is not the established cuftom of the realm, as has been erroneously determined. And hence it is that our lawyers are with juftice fo 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 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 reafon, and then the.

(3) But it cannot be diffembled that both in our law, and in all other laws, there are decifions drawn from established principles and maxims, which are good law, though fuch decifions may be both manifeftly abfurd and unjuft. But notwithstanding this, they must be religiously adhered to by the judges in all courts, who are not to affume the characters of legiflators. It is their province jus dicere, and not jus dare. Lord Coke, in his enthufiaftic fondnefs for the common law, goes farther than the learned Commentator; he lays down, that argumentum ab inconvenienti plurimum valet in lege, becaufe nihil quod eft inconveniens eft licitum. Mr. Hargrave's note upon this is well conceived and expressed: " Arguments from "inconvenience certainly deferve the greatest attention, and "where the weight of other reasoning is nearly on an equipoife,

ought to turn the fcale. But if the rule of law is clear and ex"plicit, it is in vain to infist upon inconveniencies; nor can it be "true that nothing, which is inconvenient, is lawful, for that "fuppofes 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.