law will prefume it to be well founded P. And it hath been an antient observation in the laws of England, that whenever a standing rule of law, of which the reafon perhaps could not be remembered or difcerned, hath been wantonly brokeh in upon by ftatutes or new refolutions, the wisdom of the rule hath in the end appeared from the inconveniencies that have followed the innovation. THE doctrine of the law then is this: that precedents and rules must be followed, unless flatly abfurd or unjust (4): for though their reafon be not obvious at first view, yet we owe fuch a deference to former times as not to fuppofe 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 shall 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 established by cuftom, which cuftom is evidenced P Herein agreeing with the civil law," quae conftituuntur, inquiri non oportet s Ff. 1. 3. 20, 21. “ Non omnium, quae a "alioquin multa ex his, quae certa funt, majoribus noftris conftituta funt, ratio fubvertuntur." "reddi poteft. Et ideo rationes eorum, (4) Precedents and rules must be followed even when they are flatly abfurd and unjuft, if they are agreeable to antient principles. If an act of parliament had been brought in at the close of a feffion, and paffed on the laft 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 fame efficacy as if it had been paffed on the first day of the feffion, and all, who, during a long feffion, had been doing an act, which at the time was legal and inoffenfive, were liable to fuffer the punishment prefcribed by the ftatute. (4 Inft. 25. 4 Term Rep. 660.) This was both flatly abfurd and unjuft; 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. 3. 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 fhall endorfe upon it the day upon which it receives the royal affent, and that day shall be the date of it's commencement. Many other fimilar inftances might be adduced. VOL. I. G by by judicial decifions; 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 justice (5); though the artificial reason of it, drawn from the feodal law, may not be quite obvious to every body. And therefore, though a modern judge, on account of a supposed hardship upon the half brother, might wish it had been otherwife 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 feize any lands that were purchafed by his younger brother, no subsequent judges would fcruple to declare that fuch prior determination was unjust, was unreafonable, and therefore was not larv. So that the lar, and the opinion of the judge, are not always convertible terms, or one and the fame thing; fince 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 deci"fions of courts of justice are the evidence of what is com<< mon 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 4. THE decifions therefore of courts are held in the highest regard, and are not only preferved as authentic records in the q" Si imperialis majestas causam ceg"nitionaliter examinaverit, et partibus, " cominus conftitutis fententiam dixerit, omnes omnino judices, qui fub noftro im "perio funt, fiant banc effe legem, non folum illi caufae pro qua produéta eft, " 12. fed et in omnibus fimilibus." C. 1. 14. (5) But it is certainly repugnant to natural reafon, where a father leaves two fons by two different mothers, and dies inteftate, and a large estate defcends to his eldeft fon, who dies a minor or inteftate, that this eftate fhould go to the lord of the manor or to the king, rather than to the younger fon. When fuch a case happens in the family of a nobleman, or a man of great landed property, this law will then probably appear fo abfurd and unreasonable, that it will not be fuffered to remain long afterwards a reproach to our fyftem of jurifprudence. See vol. ii. p. 231. treasuries treafuries of the feveral courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are hiftories of the feveral 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 it's judgment; taken down in fhort notes by perfons prefent at the determination. And these ferve 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 the second inclufive; and from his time to that of Henry the eighth were taken by the prothonotaries, or chief fcribes of the [72] court, at the expenfe of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wifhed that this beneficial custom had, under proper regulations, been continued to this day: for, though king James the firft at the inftance of lord Bacon appointed two reporters with a handfome ftipend for this purpose, yet that wife inftitution was foon neglected, and from the reign of Henry the eighth to the prefent time this talk has been executed by many private and contemporary hands; who sometimes through hafte and inaccuracy, fometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the fame determination. Some of the most valuable of the antient reports are thofe publifhed by lord chief justice Coke; a man of infinite learning in his profeffion, though not a little infected with the pedantry and quaintness of the times he lived in, which appear ftrongly in all his works. However his writings are fo highly esteemed, that they are generally cited without the author's name '. 3 Pat. 15 Jac. 1. p. 18. 17 Rym. 26. • His reports, for instance, are filed, War" 1Ęs, the reports; and in quoting them we ufually fay, 1 or 2 Rep. not 1 or 2 Coke's Rep. as in citing other G 2 BESIDES BESIDES thefe reporters, there are alfo other authors, to whom great veneration and refpect is paid by the ftudents of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde, with fome others of antient date; whofe treatises are cited as authority, and are evidence that cafes have formerly happened in which fuch and fuch points were determined, which are now become fettled and first principles. One of the last of these methodical writers in point of time, whofe works are of any intrinfic authority in the courts of juftice, and do not entirely depend on the ftrength of their quotations from older authors, is the fame learned judge we have just mentioned, 'fir Edward Coke; who hath written four volumes of inftitutés, as he is pleafed to call them, though they have little of the inftitu[73]tional method to warrant such a title. The first volume is a very extenfive 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 methods: The fecond volume is a comment upon many old acts of parliament, without any fyftematical order; the third a more methodical treatife of the pleas of the crown; and the fourth an account of the feveral fpecies of courts'. AND thus much for the firft ground and chief corner ftone 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 juftice; which decifions are preferved among our public records, explained in our reports, and digested the cafes reported in his three volumes s It is ufually cited either by the name t These are cited as 2, 3, or 4 Inft. without any author's name. An honorary distinction, which, we obferved, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like. for general use in the authoritative writings of the venerable fages of the law. THE Roman law, as practifed in the times of its liberty, paid alfo a great regard to custom; but not fo much as our law it only then adopting it, when the written law was deficient. Though the reasons alleged in the digeft" will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law.. "For fince, fays Julianus, the written law binds us for no "other reafon but because it is approved by the judgment of "the people, therefore thofe laws which the people have ap"proved without writing ought alfo to bind every body. For "where is the difference, whether the people declare their [74] "affent to a law by fuffrage, or by a unitorm course of act❝ing accordingly.?" Thus did they reafon while Rome had fome remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws fpeak a very different language. "Quod principi placuit(6)legis habet vigorem, cum populus ei et in eum omne fuum imperium et poteftatem con u Ff. 1. 3. 32. (6) This is the first sentence of the definition of a conftitution in the beginning of the Inftitutes. It ought to be cited at length, that it may receive the execration it deferves. It is no wonder from this fpecimen, that the civil law fhould have experienced fuch protection and patronage from all the defpotic governments. of Europe, and fuch oppofition and deteftation from the turdy English barons. CONSTITUTIO. Sed et quod principi placuit, legis habet vigorem: quum lege regia, que de ejus imperio lata eft, populus ei, et in eum omne imperium fuum et poteftatem concedat. Quodcunque ergo imperator per epiftolam conflituit; vel cognofcens decrevit, vel edicto præcepit, legem effe conftat; bac funt, quæ conftitutiones appellantur. Planè ex his quædam funt perfonales, quæ nec ad exemplum trahuntur, quoniam non hoc princeps vult, nam quod alicui ob meritum indulfit, vel fi quam panam irrogavit, vel fi cui fine exemplo fubvenit, perfonam non tranfgreditur. Alia autem, quum generales fint, omnes procul dubio tenent. Inft. 1, 2. 6. |