« PreviousContinue »
I. As to gencral customs, or the common law, properly so 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, settles the course in which lands descend 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 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 geeds 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 ftatute 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 him. “ self,” and the like. But I take these to be one and the fame 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 thewing that it hath been always the custom to observe it.
But here a very natural, and very material, question arises: 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 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. Their knowlege of that law is derived from experience and study; from the “ viginti an« norum lucubrationes," which Fortescuementions; and from being long personally accustomed to the judicial decifions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the 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 asliftance. And therefore, even so early as the conquest, we find the "praeteritorum memoria eventorum” reckoned up as one of the chief qualifications of those, who were held to be “legibus “patriae optime inftitutio.” 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 opinie on; as also because the law in that cafe being solemnly 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 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 expound the old one. Yet this rule admits of exception, where The former determination is most evidently contrary to reason;
& cap. 8.
o Seld. review of Tith. c. 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, it is declared, not that such 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 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 al. ways 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. And it hath been an antient 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 inconveniences that have followed the innovation.
The doctrine of the law then is this : that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not 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. 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
P Herein agreeing with the civil law, " quae conftituuntur, inquiri non oportet : Ff. 1. 3. 20,21.“ Non omnium, quae a " alioquin multa ex bis, quae certa funt, " majoribus noftris conftituta funt, ratio "fubvertuntur," * reddi poret. E: ideo rationes corum,
the law. For herein there is nothing repugnant to natural justice; 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 hardfhip upon the half brother, might with it had been otherwise 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 seise any lands that were pura chased by his younger brother, no subsequent judges would fcruple 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 deci“fions 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 serve for a guide for the future4.
The decisions therefore of courts are held in the highest regard, and are 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 fummary of the proceedings which are preserved at large in the record, the arguments on both sides, and the reafons the court gave for it's judgment; taken down in short notes by perfons present at the determination. And these serve as indexes to, and also to explain, the records; which always, in matters of confequence 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
q" Si imperialis majeftas caufam coge u perio funt, fciant banc elle legem, non " nitialiter examinaverit, a partibus " folum illi saufae pro qua produkta eft, " cominus conftitutis sententiam dixerit, " sed et in omnibus linzalibus." C. 1.14. * canes omnino judices, qui fub noftro im- 122 E 4:
were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year booksa 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' with a handsome ftipend 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 fometimes through haste and inaccuracy, sometimes 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 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'.
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, with fome 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 any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their
i Pat. 15. Jac. I. p. 18. 17 Rym. 26. the cases reported in his three volumes
s His reports, for instance, are stiled, were determined; viz. queen Elizabeth, xar'sgoxov, tbe reports; and in quoting king James, and king Charles the first; them we usually fay, 1 or 2 Rep. not as well as by the number of each volume. 1 or 2 Coke's Rep, as in citing other For sometimes we call them 1, 2, and authors. The reports of judge Croke are 3 Cro. but more commonly Cro. Eliz. also cited in a peculiar manner, by the Cro. Jac. and Cro. Car. name of those princes, in whose reigns