which according to Grotius, "lex non exacte definit, sed arbitrio boni viri permittit." (22) Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established *rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to [*62] a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. (23) SECTION III. OF THE LAWS OF ENGLAND. The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: The lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly 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. When I call these parts of our law leges non scriptæ, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic Druids committed all their laws as well as learning to memory; (a) and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant (b). But with us at present, the monuments and evidences of our legal customs are (22) [I cannot forbear observing, (said Lord Tenderden), that I think there is always danger in giving effect to what is called "the equity of a statute;" and that it is much safer and better to rely on and abide by the plain words; although the legislature might possibly have provided for other cases had their attention been directed to them. 6 B. and C. 475. And in a recent case in which this rule was much discussed, Mr. Justice Coleridge said, "It is, in my opinion, so important for the court, in construing modern statutes, to act upon the principle of giving full effect to their language, and of declining to mould that language in order to meet either an alleged convenience or an alleged equity, upon doubtful evidence of intention, that nothing will induce me to withdraw a case from the operation of a section which is within its words, but clear and unambiguous evidence that so to do is to fulfill the general intent of the statute; and also to adhere to its literal interpretation, is to decide inconsistently with other overruling provisions of the same statute." 6 A. and E. 7.] (23) [The only equity, according to this description, which exists in our government, either resides in the king, who can prevent the summum jus from becoming summa injuria, by an absolute or a conditional pardon, or in juries, who determine whether any, or to what extent, damages shall be rendered. But equity, as here explained, is by no means applicable to the court of chancery; for the learned judge has elsewhere truly said, that "the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection." Book iii. 432.] 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 [*64] the profession, preserved and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scriptæ, because their original institution and authority are not set down in writing as acts of parliament are, but they receive their binding power and the force of laws by long and immemorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is "tacito et illiterato hominum consensu et moribus expressum." Our ancient lawyers, and particularly Fortescue, (c) insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, saith Lord Bacon, (d) are mixed as our language; and, as our language is so much the richer, the laws are the more complete. And indeed our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his Dome-Book, or Liber Judicialis, for the general use of the whole kingdom. *This book [*65] is said to have been extant so late as the reign of King Edward the Fourth, but is now unfortunately lost.(1) It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of King Edward the elder, the son of Alfred.(e)" Omnibus qui republicæ præsunt etiam atque etiam mando, ut omnibus æquos se præbeant judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habetur: nec quicquam formident quin jus commune (Saxonice, rolcnihce) audacter libereque dicant." But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy; so that, about the beginning of the eleventh century, there were three principal systems of laws prevailing in different districts: 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britains; and therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of (c) C. 17. (d) See his proposals for a digest. (e) C. 1. (1) [It is a loose report of late writers that Alfred compiled a dom-boc, or general code for the government of his kingdom. Hallam's Mid. Ag. 2,402.] 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 (g) In Hen. II. Hal. Hist. 55. (h) In Edw. Confessor. (i) In Seld. ad Eadmer, 6. (m) Ibid. xxxiii. 21, 58. (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. [*68] *1. 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 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 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.] VOL I.-6 41 |