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cular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and ufed by fome particular courts, of pretty general and extensive jurisdiction.

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 moft 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 ancefter; that property may be acquired and transferred by writing; that a deed is of no validity unless sealed and delivered;-that wills fhall be conftrued more favourably, and deeds more ftri&tly ;-that money lent upon bond is recoverable by action of debt;-that breaking the publick peace is an offence, and punishable by fine and imprisonment ;-all thefe are doctrines that are not fet down in any written ftatute or ordinance, but depend merely upon immemorial'usage, that is, upon common law, for their fupport.

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SOME have divided the common law into two principal grounds or foundations: 1. Eftablished customs; fuch as that, where there are three brothers, the eldest brother shall be heir to the fecond, in exclufion of the youngeft: and 2. Eftablished rules and maxims; as, "that the king can "do no wrong, that no man shall be bound to accuse him"felf," and the like. But I take thefe to be one and the fame thing. For the authority of these maxims refts 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 arifes: [69] how are these customs or maxims to be known, and by whom is their validity to be determined? The anfver is, by the judges in the feveral courts of justice. They are the depofitaries 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 study; 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 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 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 arises, in the determination of which former precedents may give light or affiftance. 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 fcale of juftice even and fteady, 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

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INTROD. 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 most evidently contrary to reafon; [7] 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 misreprefentation. 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 custom of the realm, as has been erroneoufly determined. And hence it is that our lawyers are with justice 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 reafon is not law. Not that the particular reafon of every rule in the law can at this diftance 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 eftablished principles and maxims, which are good law, though fuch decifions may be

th 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 enthusiastic fondness 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 expreffed: "Arguments from "inconvenience certainly deferve the greateft attention, and "where the weight of other reafoning is nearly on an equipoife, "ought to turn the fcale. But if the rule of law is clear and explicit, 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 wifdom is incapable of attaining, and would be "an invincible argument against ever changing the law." Harg. Co. Litt. 66.

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law will prefume it to be well founded P. And it hath been an antient obfervation 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 broken in upon by ftatutes or new refolutions, the wifdom 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 reason be not obvious at first view, yet we owe such 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 eftate of his half brother, but it shall rather escheat to the king, or other fuperior lord. Now this is a pofitive law, fixed and established by cuftom, which cuflom is evidenced by judicial decifions; 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 [71]

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(4) Precedents and rules must be followed even when they are flatly abfurd and unjuft, if they are agreeable to ancient principles. If an act of parliament is brought in at the close of a feffion, and paffed on the last day, which makes an innocent act criminal, or even a capital crime; and if no day is fixed for the commencement of its operation, it has the fame efficacy as if it had been paffed on the first day of the feffion, and all, who, during a long feffion, have been doing an act, which at the time was legal and inoffenfive, will be liable to fuffer the punishment prefcribed by the ftatute. (4 Inft. 25. 4 Term Rep. 660.) This is both flatly abfurd and unjust; but it is the clear law of England, and can only be abrogated by the united authority of the king, lords, and commons, in parliament affembled. Many other fimilar inftances might be adduced.

⚫ VOL. I.

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justice;

INTROD. juftice (5); 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 otherwife 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 feize 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 lar, 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 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 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 several

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(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 eldest 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 property, this law will then appear fo abfurd and unreasonable, that it will not be suffered to remain long afterwards to difgrace our books. See vol. ii. p. 231.

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