the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government. (f)

*Out of these three laws, Roger Hoveden (g) and Ranulphus Cestrensis [*66] (h) informs us, King Edward the Confessor extracted one uniform law, or digest of laws, to be observed thoughout the whole kingdom; though Hovenden, and the author of an old manuscript chronicle (i) assure us likewise that this work was projected and begun by his grandfather King Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs, as in Portugal, under King Edward, about the beginning of the fifteenth century. (k) In Spain under Alonzo X, who, about the year 1250, executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled Las Partidas. (1) And in Sweden, about the same era, when a universal body of common law was compiled out of the particular customs established by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England. (m)

Both these undertakings of King Edgar and Edward the Confessor seem 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 a half had suggested; for Alfred is generally styled 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 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 [*67] attacks of the civil law; which established in the twelfth century a new Roman empire over most of the states of 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 before mentioned.

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 (2) nothing being more difficult than to ascer(h) In Edw. Confessor. (i) In Seld. ad Eadmer, 6. (m) Ibid. xxxiii. 21, 58.

(g) In Hen. II.

(f) Hal. Hist. 55.
(k) Mod. Un. Hist. xxii 135. (1) Ibid, xx. 211.

(2) "Our English lawyers," observes Mr. Hallam, "prone to magnify the antiquity like the other merits of their system, are apt to carry up the date of the common law till, like the pedigree of an illustrious family, it loses itself in the obscurity of ancient times: Sir Matthew Hale not hesitating to say that its origin is as undiscoverable as that of the Nile!" It would be equally perplexing and unsatisfactory to the student, to parade before him the various speculations and controversies on this subject, which lie scattered over some twenty volumes now lying open around the writer of these pages. Suffice it to observe, that if the reader be moderately well acquainted with the early history of his country, proofs will accumulate upon him as he advances in the scientific study of his profession, of the very composite character of the common law. He will find indubitable evidence that some parts of it have been handed down to us from Saxon times; that a far greater portion has been derived from our Norman forefathers; that the Roman law bears a much greater proportion to the other ingredients of the common law than the jealous professors of the latter have been, even in recent times, willing to admit; and that some of its most disfigured portions bear the deep traces of that scholastic philosophy which, at so early a period and for so long a

tain the precise beginning and the first spring of an ancient and long established custom. Whence it is that in our law the goodness of a custom depends upon its 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 its 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 its 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. *1. As to general customs, or the common law, properly so called; this [*68] 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 and delivered;-that wills shall be construed 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 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. (3) *But here a very natural, and very material, ques[*69] tion arises: how are these customs and maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several

time, retarded the advance of knowledge of every kind. That our ancestors were, under the first princes of the Norman line, engaged in frequent struggles to maintain certain institutions known by the name of the Laws of Edward the Confessor, is indisputable, however doubtful may be the origin, form and character of these laws; which, in all probability were little else than a digest by Edward of the Mercien, West Saxon and Danish laws, then existing and in force in different parts of the kingdom. It may upon the whole be received as generally true, that our common law traces its origin to the early usages and customs of the aboriginal Britons, and was necessarily augmented, in different ages, by the admixture of some of the laws and usages of the Romans, the Picts, the Saxons, the Danes and the Normans, who spread themselves over the country: "Our laws," says Lord Bacon, "becoming as mixed as our language." Warren's Law Studies, 397.

(3) The common law includes those principles, usages and rules of action applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. 1 Kent, 468. The common law of the American States consists of the common law of England as modified by English statutes previous to the colonization of America, so far as it had been found adapted to our altered condition and circumstances. And those English statutes passed afterwards, at any time prior to the revolution, which were practically accepted and adopted in America,

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 knowledge 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 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 assistance. And therefore, even, so early as the conquest, we find the præteritorum memoria eventorum" reckoned up as one of the chief qualifications of those who were held to be "legibus patriæ optime instituti." (6) 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 clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new [*70] law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, (4) 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 (n) Cap. 8. (0) Seld. Review of Tith. c. 8.

became also a part of the American common law. See Van Ness v. Packard, 2 Pet. 144; Morgan v. King, 30 Barb. 9; May v. Wilson, 1 N. H. 58; Houghton v. Page, 2 N. H. 44; State v. Rollins, 8 N. H. 550; Commonwealth v. Knowlton, 2 Mass. 534; Commonwealth v. Hunt, 4 Met. 122; Lindsey v. Coats, 1 Ohio, 245; State v. Buchanan, 5 H. and J. 356; Pratt v. Eads, 1 Blackf. 81; Lyle v. Richards, 9 S. and R. 330; Simpson v. State, 5 Yerg. 356: Stout v. Keyes, 2 Doug. Mich. 184; Lorman v. Benson, 8 Mich. 18; Norris v. Harris, 15 Cal. 226; Pierson v. State, 12 Ala. 149.

The courts of one state will presume the common law of a sister state to be the same as their own: Abell v. Douglass, 4 Denio, 303; High's Case, 2 Doug. Mich. 515; but not its statute law. Kermott v. Ayer, 11 Mich. 181.

Of the United States, as a nation, there is no common law. "The federal government is composed of sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption." McLean, J., in Wheaton v. Peters, 8 Pet. 658. And see United States v. Hudson, 7 Cranch, 32; United States v. Coolidge, 1 Wheat. 415; United States v. Worral, 2 Dall. 384.

(4) But it cannot be dissembled, that both in our law, and in all other laws, there are decisions drawn from established principles and maxims, which are good law, though such decisions may be both manifestly absurd and unjust. But notwithstanding this, they must be religiously adhered to by the judges in all courts, who are not to assume the characters of legislators. 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, because nihil quod est inconveniens est licitum. Mr. Hargrave's note upon this is well conceived and expressed: Arguments from inconvenience certainly deserve the greatest attention, and where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if the rule of law is clear and explicit, it is in vain to insist upon inconveniences; nor can it be true that nothing, which is inconvenient, is lawful, for that supposes in those who make laws a perfection, which the most exalted human wisdom is incapable of attaining, and would be an invincible argument against ever changing the law." Harg. Co. Litt. 66.]

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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 ancient 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: (5) 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 *the law. For herein there is nothing [*71] repugnant to natural justice; (6) though the artificial reason of it, drawn from the feudal 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 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 seize 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 as a guide for the future. (9)

(p) Herein agreeing with the civil law, Ff. 1. 3. 20. 21. "Non omnium, quæ a majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum, quæ constituuntur, inquiri non oportet: alioquin multa ex his. quæ certa sunt, subvertuntur."

(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 causæ pro qua producta est, sed et in omnibus similibus.” C. 1. 14. 12.

(5) "When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, unless for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law." 1 Kent. 475. See Nelson v. Allen, 1 Yerg. 376; Emerson v. Atwater, 7 Mich. 12; Sparrow v. Kingman, 1 N. Y. 260; Palmer v. Lawrence, 5 N. Y. 389; Boon v. Bowers, 30 Miss. 246. A judgment, rendered by a court is authority, notwithstanding it was one given of necessity, under the law, on an equal division of the court. Regina v. Millis, 13 M. and W. 361; Durant v. Essex Co., 7 Wal. 107.

A precedent flatly unreasonable and unjust may be followed if it has been for a long period acquiesced in, or if it has become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by overruling it. In such a case it will be proper to leave the correction of the error to the legislature, which can so shape its action as to make it prospective only, and thus prevent the injurious consequences that must follow from judicially declaring the previous decision unfounded. Emerson v. Atwater, 7 Mich. 12; Pratt v. Brown, 3 Wis. 609; Day v. Munson, 14 Ohio N. S. 488; Taylor v. French, 19 Vt. 49; Bellows v. Parsons, 13 N. H. 256; Hannel v. Smith, 15 Ohio, 134; Sparrow v. Kingman, 1 N. Y. 260; Ram on Legal Judgment, ch. 14.

(6) [But it is certainly repugnant to natural reason, where a father leaves two sons by two different mothers, and dies intestate, and a large estate descends to his eldest son, who dies a minor or intestate, that this estate should go to the lord of the manor, or to the king, rather than to the younger son. When such a case happens in the family of a nobleman, or a man of great property, this law will then appear so absurd and unreasonable, that it will not be suffered to remain long afterwards to disgrace our books. See book ii. p. 231.]

It has since been repealed by Stat. 3 and 4 William IV., c. 106, § 9.

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 its 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 expense of the crown, [*72] 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 (r) 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 contemporary 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 ancient 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. (s)

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, (7) with some others of ancient 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 [*73] 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 ancient reports and year books, but greatly defective in method. (t) 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. (u)

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

(r) Pat. 15 Jac. I. p. 18. 17 Rym. 26.

(8) His reports, for instance, are styled kar' εžoxηv, 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 names of those princes, in whose reigns the cases reported in his three volumes were determined; viz.: Queen Elizabeth, King James, and King 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. (t) It is usually cited either by the name of Co. Litt. or as 1 Inst.

(u) These are cited as 2, 3, or 4 Inst. without any author's name. An honorary distinction, which, we observed, 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.

(7) Crabbe's and Reeves's Histories of the English Law give some account of the works of these several authors.