I. As to general cuftoms, 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 diffufe themfelves as extensively as the ordinary diftribution of common justice 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 son alone is heir to his anceflor; 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 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 thefe are doctrines that are not fet down in any written statute or ordinance, but depend merely upon immemorial usage, 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. Eftablished rules and maxims; as, "that the king can "do no wrong, that no man fhall be bound to accuse him"felf," 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 ufage: and the only method 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, 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 feveral courts of juftice. They are the depofitaries of the laws; the living oracles, who must 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 study; from the "viginti annorum 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 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 itself, and all the proceedings previous thereto, are carefully registered and preferved, under the name of records, in public repofitories fet apart for that particular purpose; and to them frequent recourfe is had, when any critical question arifes, in the determination of which former precedents may give light or assistance. 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 inftitutio." For it is an established rule to abide by former precedents, where the fame 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 opinion; as also 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 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 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 reafon;

А сар. 8.

E 3

• Seld. review of Tith. c. 8.

much

much more if it be clearly contrary to the divine law. But even in fuch cafes the fubfequent 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 decision is manifeftly abfurd or unjuft, it is declared, not that fuch a fentence 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 encomiums on the reafon 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 reafon 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. And it hath been an antient obfervation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or difcerned, hath been wantonly broken in upon by ftatutes or new refolutions, the wifdom 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 unjust: 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 fhall never fucceed as heir to the eftate of his half brother, but it fhall rather escheat to the king, or other fuperior lord. Now this is a pofitive law, fixed 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

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 "Subvertuntur." reddi poteft. Et ideo rationes eorum,

the law. For herein there is nothing repugnant to natural juftice; though the artificial reafon 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 other wife 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 feife any lands that were purchafed by his younger brother, no fubfequent judges would fcruple to declare that fuch 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 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 deci"fions of courts of juftice 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.

THE decifions therefore of courts are held in the highest regard, and are not only preferved as authentic records in the treafuries of the feveral courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. Thefe reports are hiftories of the feveral cafes, with a fhort 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 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 handsome stipend for this purpose, yet that wife inftitution was foon neglected; and, from the reign of Henry the eighth to the prefent time, this tafk has been executed by many private and contemporary hands; who fometimes through hafte and inaccuracy, fometimes through miftake and want of fkill, 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 published by lord chief justice Coke; a man of infinite learning in his profeffion, though not a little infected with the pedantry and quaintnefs of the times he lived in, which appear ftrongly in all his works. However his writings are so highly esteemed, that they are generally cited without the author's names.

BESIDES thefe reporters, there are alfo 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 treatifes are cited as authority, and are evidence that cafes have formerly happened, in which fuch and fuch points were determined, which are now become settled and first principles. One of the last of thefe methodical writers in point of time, whofe works are of any intrinfic authority in the courts of justice, and do not entirely depend on the strength of their

Pat. 15 Jac. I. p. 18. 17 Rym. 26. • His reports, for instance, are stiled, κατ' εξοχήν, the reports; and in quoting them we ufually fay, 1 or 2 Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of judge Croke are alfe cited in a peculiar manner, by the name of thofe princes, in whofe reigns

the cafes reported in his three volumes were determined; viz. queen Elizabeth, king James, and king Charles the firft; as well as by the number of each volume. For fometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.

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