century, to find what odd sections and shreds of them have been superseded or are not applicable; but that they may be passed by, except in cases, where the common manuals and digests may point them out as subjects of consideration. And if there is danger of any obsolete unknown law, not mentioned in them, springing up from the mists of antiquity, the better way would seem to be to provide against it by a legislative act, abrogating such laws, when not supported by actual adoption in our jurisprudence or by other authority.

Accordingly, as far as the English law is concerned, the principal labor in the work in hand is to produce in a distinct form so much of the unwritten part of it, as is also part of the common law of Massachusetts. And the inquiry necessarily arises, what constitutes the common law of England. Sir William Blackstone says,' that the unwritten law of England "includes not only general customs or the common law so called, but also the particular customs of certain parts of the kingdom, and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions." And he proceeds: "The monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from times of the highest antiquity. These maxims and customs are of higher antiquity than memory or history can reach." And he cites sir Mathew Hale's remark, "that the original of the common law, is as undiscoverable as the head of the Nile." As to the evidence by which this law is to be shown and identified, he says, "the only

3

method of proving that this or that maxim is a rule of the

1 Commentaries, vol. i. p. 63, 67.

"History of Common Law, 55.

3 1 Com. 67.

common law is by showing that it hath always been the custom to observe it." But this doctrine, taken literally, would evidently be quite impracticable; and he accordingly proceeds to explain it and says, "A material question 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. They are the depositaries of the law, the living oracles, who must decide all cases of doubt, and who are bound by their oath to decide according to the law of the land."

The result of this view of the common law is, that the decision by a competent tribunal is proof that the point decided has been a part of the common law, from an antiquity "higher than memory or history can reach." And this is the reason of another doctrine laid down by the same author,' namely: "It is an established rule to abide by former precedents, where the same points come again in litigation." Yet he adds, "this rule admits of an exception, where the former determination is most evidently contrary to reason, much more if it be clearly contrary to the divine law. But yet, 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 be 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 was not the established custom of the realm, as has been erroneously determined." He however adds, that nothing once established as law should be overruled, unless it be "flatly contradictory to reason." But Mr. Christian, the learned and able commentator upon Blackstone, says,' that precedents, when once clearly established, must be followed, though they are "flatly contradictory to reason,"

1 1 Com. vol. i. p. 69.

3 Blk. Com. vol. i. p. 70, note.

2 Commentaries, vol. i. p. 70.

1

and gives an example which fully bears him out. For as jurisprudence rests upon precedent merely, the court cannot overrule one precedent established by competent authority, except upon the ground of another precedent of a still higher authority. Accordingly, a distinguished writer of our own country says, "that a solemn decision upon a point of law becomes an authority, and the judges are bound to follow that decision, unless it can be shown that the law was misunderstood or misapplied." And that it may be sometimes misunderstood or misapplied, he illustrates by the fact, that about one thousand cases in the English and American books have been overruled, doubted, or limited in their application; and it is apprehended, that the number very much exceeds this estimate.'

Such are the foundations of the unwritten law, and such the principles of decision, from which it evidently appears, that in its nature and essential character it resists change. It is indeed one of its excellences that it does so, for if facility of change were admitted, there would cease to be any law of this description, and discretion and caprice would be substituted in its place. This shows the importance and necessity of occasional legislative interference, since the affairs of the world are subject to change,—and, unless the laws can be modified accordingly, they become inconvenient and burthensome:-and this is, to say the least, not less true, in regard to crimes and punishments, than in regard to any other subjects of jurisprudence.

So true is this, that even the common law, notwithstanding the rigid and permanent character with which it should seem to be invested, by its very constitution and fundamental principles, is yet acknowledged to have yielded, in some degree, to the imperious exigencies of society. Thus,

1 Kent's Com. vol. i. p. 477.

2 See also Report of the Commissioners on the practicability and expediency of codifying the common law, 1836.

sir William Blackstone says, "Traditional laws being accommodated to the exigencies of the times, suffer by degrees insensible variations in practice, so that though upon comparison, we plainly discern the alteration of the law from what it was five hundred years ago, yet it is impossible to define the precise period, in which that alteration accrued any more than we can discern the changes of the bed of a river, which varies its shores by continual decreases and alluvions."

This language is not literally consistent with that above quoted from the same distinguished author. But the expressions there used were undoubtedly too strong, for the history of jurisprudence shows, what no one indeed would think of doubting, that some customs and doctrines, which may have been very convenient, reasonable, and expedient five centuries ago, being adapted to the state of things at that time, have, in consequence of the changes that have taken place in the mean time, become, in reference to the present condition of society, "flatly contradictory to reason," and "manifestly absurd." In such cases, if a rule of law, the reasons and grounds of which have thus become obsolete, is so definitively and authoritatively settled by precedent, that the courts are absolutely bound by it, (as in the case mentioned by Mr. Christian, of the rule of the common law, that every legislative act becomes obligatory from the first day of the session, unless it expressly provides otherwise, and is thus in effect an ex post facto law), then the only remedy is by legislative interference.

The commissioners would not be understood as speaking in disparagement of the common law, which is fraught with sound maxims and principles, and is in general, particularly characterized by its jealous vindication of personal liberty. But all systems of law and civil policy and social institu

1 Commentaries, vol. iv. P. 409.

tions, however excellent, have their untoward biases and tendencies, and the common law is not exempt from these; and they ought to be understood, since an examination of the principles and characteristic operation of a system is the first step in making a fair exposition of the system itself, as well as in pointing out its errors and perfections.

The fundamental principles and binding authority of the common law are generally accepted as laid down by the authors above cited, and so they are understood by the commissioners to have been stated by the former commission, in 1836, in their report to the legislature on the subject of the practicability and expediency of codifying the common law. It ought to be mentioned, however, that a different view has been entertained by some on this subject. A respectable writer on the history of the common law' lays down the doctrine, that it consists of a collection of customs and maxims, which derive their binding power and the force of laws from long and immemorial usage, coupled with the express or tacit consent of the legislature." Others express the same doctrine in a different form, by saying that these customs and maxims derive their force, as laws, solely from the express consent of the legislature, that is, from acts of parliament, the records of some of which remain on the statute book, while those of the others, dating from an early antiquity, have been lost. This theory has the recommendation, that it refers the common law to the proper source of law, namely, the legislative or law-making power. But it is open to the objection, that, as far as the supposed tacit consent of the legislature, or instead of it the unknown lost records of antiquity are concerned, it seems to be a mere fiction. In reference to some particular rules, there may be some evidence more or less satisfactory, that they did originate in the code of king Alfred or of Edward the confes

1 Crabb's Hist. Com. Law, p. 1.