to have been no more than a new edition, or fresh promulgation, of
Alfred's code or dome-book, with such additions and improvements as
the experience of a century and an half had suggested. For Alfred is
generally stiled by the same historians the _legum Anglicanarum
conditor_, as Edward the confessor is the _restitutor_. These however
are the laws which our histories so often mention under the name of
the laws of Edward the confessor; which our ancestors struggled so
hardly to maintain, under the first princes of the Norman line; and
which subsequent princes so frequently promised to keep and to
restore, as the most popular act they could do, when pressed by
foreign emergencies or domestic discontents. These are the laws, that
so vigorously withstood the repeated attacks of the civil law; which
established in the twelfth century a new Roman empire over most of the
states on the continent: states that have lost, and perhaps upon that
account, their political liberties; while the free constitution of
England, perhaps upon the same account, has been rather improved than
debased. These, in short, are the laws which gave rise and original to
that collection of maxims and customs, which is now known by the name
of the common law. A name either given to it, in contradistinction to
other laws, as the statute 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 several provincial customs and particular laws
beforementioned.
BUT though this is the most likely foundation of this collection of
maxims and customs, yet the maxims and customs, so collected, are of
higher antiquity than memory or history can reach: nothing being more
difficult than to ascertain the precise beginning and first spring of
an antient and long established custom. 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 solemnity of our legal phrase, time whereof the
memory of man runneth not to the contrary. This it is that gives it
it's weight and authority; and of this nature are the maxims and
customs which compose the common law, or _lex non scripta_, of this
kingdom.
THIS unwritten, or common, law is properly distinguishable into three
kinds: 1. General customs; which are the universal rule of the whole
kingdom, and form the common law, in it's stricter and more usual
signification. 2. Particular customs; which for the most part affect
only the inhabitants of particular districts. 3. Certain particular
laws; which by custom are adopted and used by some particular courts,
of pretty general and extensive jurisdiction.
I. AS to general 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
solemnities 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;--that wills shall be construed more favorably, 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 these are doctrines that are not set down
in any written statute 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
himself," and the like. But I take these to be one and the same 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 shewing 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 depositary 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 annorum
lucubrationes_," which Fortescue[n] mentions; and from being long
personally accustomed to the judicial decisions 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 publick 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 assistance. 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 instituti_[o]." 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 opinion; as
also because the law in that case 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; much more
if it be 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 always 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[p]. 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 broke 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.
[Footnote n: _cap._ 8.]
[Footnote o: Seld. review of Tith. c. 8.]
[Footnote p: Herein agreeing with the civil law, _Ff._ 1. 3. 20, 21.
"_Non omnium, quae a majoribus nostris constituta sunt, ratio reddi
potest. Et ideo rationes eorum quae constituuntur, inquiri non
oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"]
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 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 (i.e. where they have only
one parent the same, and the other different) 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 the law. For herein there is
nothing repugnant to natural justice; though the reason of it, drawn
from the feodal law, may not be quite obvious to every body. And
therefore, on account of a supposed hardship upon the half brother, a
modern judge 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 seise 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[q].
[Footnote q: "_Si imperialis majestas causam cognitionaliter
examinaverit, et partibus cominus constitutis sententiam dixerit,
omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse
legem, non solum illi causae pro qua producta est, sed et in omnibus
similibus._" _C._ 1. 14. 12.]
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 summary of the
proceedings, which are preserved at large in the record; the arguments
on both sides; and the reasons the court gave for their 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 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 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 cotemporary 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[r].
[Footnote r: His reports, for instance, are stiled, [Greek: kat'
exochen], _the reports_; and in quoting them we usually say, 1 or 2
Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of
judge Croke are also cited in a peculiar manner, by the name of those
princes, in whose reigns the cases reported in his three volumes were
determined; viz. Qu. Elizabeth, K. James, and K. 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.]
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, Littleton and Fitzherbert,
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 any intrinsic authority in the courts of
justice, and do not entirely depend on the strength of their
quotations from older authors, is the 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[s]. 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[t].
[Footnote s: It is usually cited either by the name of Co. Litt. or as
1 Inst.]
[Footnote t: These are cited as 2, 3, or 4 Inst. without any author's
name. An honorary distinction, which, we observed, was 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.]
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 it's liberty, paid also a
great regard to custom; but not so much as our law: it only then
adopting it, when the written law is deficient. Though the reasons
alleged in the digest[u] 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 hath approved without writing
ought also to bind every body. For where is the difference, whether
the people declare their 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 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
obviare_[y]." And indeed it is one of the characteristic marks of
English liberty, that our common law depends upon custom; which
carries this internal evidence of freedom along with it, that it
probably was introduced by the voluntary consent of the people.
[Footnote u: _Ff._ 1. 3. 32.]
[Footnote w: _Ff._ 1. 4. 1.]
[Footnote x: _C._ 1. 14. 12.]
[Footnote y: _C._ 1. 23. 5.]
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 it's 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].
[Footnote z: Mag. Cart. c. 9.--1 Edw. III. st. 2. c. 9.--14 Edw. III.
st. 1. c. 1.--and 2 Hen. IV. c. 1.]
SUCH is the custom of gavelkind in Kent 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 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 intitled, for her dower, to all her
husband's lands; 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-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; which are all contrary to the general law of
the land, and are good only by special custom, though those of London
are also confirmed by act of parliament[a].
[Footnote a: 8 Rep. 126. Cro. Car. 347.]
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 common law, is allowed for the benefit of trade, to be of the
utmost validity in all commercial transactions; the maxim of law
being, that "_cuilibet in sua arte credendum est_."
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.
AS to gavelkind, and borough-english, the law takes particular notice
of them[b], 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[c],
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 the lands in question are within
that manor) is by a jury of twelve men, and not by the judges, except
the same particular custom has been before tried, determined, and
recorded in the same court[d].
[Footnote b: Co. Litt. 175 _b._]
[Footnote c: Litt. Sec. 265.]
[Footnote d: Dr and St. 1. 10.]
THE customs of London differ from all others in point of trial: for,
if the existence of the custom be brought in question, it shall not be
tried by a jury, but by certificate from the lord mayor and aldermen
by the mouth of their recorder[e]; unless it be such a custom as the
corporation is itself interested in, as a right of taking toll, &c,
for then the law permits them not to certify on their own behalf[f].
[Footnote e: Cro. Car. 516.]
[Footnote f: Hob. 85.]
WHEN a custom is actually proved to exist, the next enquiry is into
the legality of it; for if it is not a good custom it ought to be no
longer used. "_Malus usus abolendus est_" is an established maxim of
the law[g]. To make a particular custom good, the following are
necessary requisites.
[Footnote g: Litt. Sec. 212. 4 Inst. 274.]
1. THAT it have been used so long, that the memory of man runneth not
to the contrary. So that if any one can shew the beginning of it, it
is no good custom. For which reason no custom can prevail against an
express act of parliament; since the statute itself is a proof of a
time when such a custom did not exist[h].
[Footnote h: Co. Litt. 113 _b._]
2. IT must have been _continued_. Any interruption would cause a
temporary ceasing: the revival gives it a new beginning, which will be
within time of memory, and thereupon the custom will be void. But this
must be understood with regard to an interruption of the _right_; for
an interruption of the _possession_ only, for ten or twenty years,
will not destroy the custom[i]. As if I have a right of way by custom
over another's field, the custom is not destroyed, though I do not
pass over it for ten years; it only becomes more difficult to prove:
but if the _right_ be any how discontinued for a day, the custom is
quite at an end.
[Footnote i: Co. Litt. 114 _b._]
3. IT must have been _peaceable_, and acquiesced in; not subject to
contention and dispute[k]. For as customs owe their original to common
consent, their being immemorially disputed either at law or otherwise
is a proof that such consent was wanting.
[Footnote k: Co. Litt. 114.]
4. CUSTOMS must be _reasonable_[l]; or rather, taken negatively, they
must not be unreasonable. Which is not always, as sir Edward Coke
says[m], to be understood of every unlearned man's reason, but of
artificial and legal reason, warranted by authority of law. Upon which
account a custom may be good, though the particular reason of it
cannot be assigned; for it sufficeth, if no good legal reason can be
assigned against it. Thus a custom in a parish, that no man shall put
his beasts into the common till the third of october, would be good;
and yet it would be hard to shew the reason why that day in particular
is fixed upon, rather than the day before or after. But a custom that
no cattle shall be put in till the lord of the manor has first put in
his, is unreasonable, and therefore bad: for peradventure the lord
will never put in his; and then the tenants will lose all their
profits[n].
[Footnote l: Litt. Sec. 212.]
[Footnote m: 1 Inst. 62.]
[Footnote n: Co. Copyh. Sec. 33.]
5. CUSTOMS ought to be _certain_. A custom, that lands shall descend
to the most worthy of the owner's blood, is void; for how shall this
worth be determined? But a custom to descend to the next male of the
blood, exclusive of females, is certain, and therefore good[o]. A
custom, to pay two pence an acre in lieu of tythes, is good; but to
pay sometimes two pence and sometimes three pence, as the occupier of
the land pleases, is bad for it's uncertainty. Yet a custom, to pay a
year's improved value for a fine on a copyhold estate, is good: though
the value is a thing uncertain. For the value may at any time be
ascertained; and the maxim of law is, _id certum est, quod certum
reddi potest_.
[Footnote o: 1 Roll. Abr. 565.]