363 L A 
our legal phrafe, time whereof the memory of man runneth 
not to the contrary. And what lord Hale fays, in his Hif- 
tory of the Common Law, p. 55, is undoubtedly true, 
that “ the original of the common law is as undifcovera- 
ble as the head of the Nile.” This it is that gives it 
weight and authority; and of this nature are the maxims 
and culioms which compofe the common law, or lex non 
Jcripta, of this kingdom. 
This (unwritten or) Common Law is properly diftin- 
guilhable in three kinds : 1. General cultoms; which are 
the univerfal rule of the whole kingdom, and form the 
common law in its ftritler and more ufual fignification. 
2. Particular cultoms ; which for the moll part affeft 
only the inhabitants of particular diltrifts. 3. Certain 
particular laws ; which by cultom are adopted and ufed 
by fome particular courts, of pretty general and extenfive 
jurifdidtion. 
I. As to general cufloms, or the common law properly fo 
called ; this is that law, by which proceedings and deter¬ 
minations in the king’s ordinary courts of jultice are guid¬ 
ed and directed. This, for the moll: part, fettles the courfe 
in which lands defcend by inheritance; the manner and 
form of acquiring and transferring property; the folem- 
nities and obligation of contracts; the rules of expound¬ 
ing wills, deeds, and afls of parliament; the refpe£tive re¬ 
medies of civil injuries ; the leveral fpecies of temporal 
offences, with the manner and degree of punilhment, and 
an infinite number of minuter particulars, which diffufe 
theml'elves as extenfively as the ordinary diftribution of 
common jultice requires. Thus, for example, that there 
lhall be four fuperior courts of record, the Chancery, the 
King’s Bench, the Common Pleas, and the Exchequer; 
that the eldell fon alone is heir to his anceltor ; that pro¬ 
perty may be acquired and transferred by writing; that a 
deed is of no validity unlefs lealed and delivered ; that 
wills (hall be conlh ued more favourably, and deeds mqre 
ftriclly; that money lent upon bond is recoverable by 
action of debt; that breaking the public peace is an of¬ 
fence, and punilhable by fine and imprifonment: all thefe 
are doctrines that are not let dowm in any written ffatute 
or ordinance ; but depend merely upon immemorial ufage, 
that is, upon common law, for their fupport. 
Some have divided the common law into two principal 
grounds or foundations : 1. Eltablilhed cuftoms ; fuch as 
that, where there are three brothers, the eldeft brother 
fliall be heir to the fecond, in excluiion of the youngeft; 
and, a. Effablilhed rules and maxims ; as, “ that the king 
can do no wrong, that no man lhall be bound to accufe 
himfelf,” and the like. But thefe feem to be one and the 
fame thing. For the authority of thefe maxims refts en¬ 
tirely upon general reception and ufage 5 and the only 
method of proving that this or that maxim is a rule of the 
common law, is by fhowing that it hath been always the 
cuffom to obferve it. 
But here a very natural,, and very material, queffion 
arifes: How are thefe cuftoms or maxims to be known, 
and by whom is their validity to be determined ? The 
anfwer is, By the judges in the feveral courts of jultice. 
They are the depositaries of the law's; the living oracles 
who muff decide in all cafes 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 Itudy ; from the viginti annorum lucubratiunes, which 
Fortefcue mentions; and from being long perfonally ac- 
cuffomed to the judicial decifions of their predeceffors. 
And indeed thefe judicial decifions are the principal and 
moll authoritative evidence, that can be given, of the ex¬ 
igence of fuch a cuffom as (hall form a part of the com¬ 
mon law. The judgment itfelf, and all the proceedings 
previous thereto, are carefully regiltered, and preferved, 
under the name of records, in public repolitories fet apart 
for that particular purpofe; and to them frequent recourfe 
is had, when any critical queffion arifes, in the determi¬ 
nation of which former precedents may give light or af- 
lillance. And therefore, even fo early as the conqueff, we 
.find the pratentorum memoria evenlorum reckoned up as one 
w, 
cf the chief qualifications of thofe who were held to be 
legibuS' patriot optime injlituti. For it is an effablilhed rule, 
to abide by former precedents, where the fame points 
come again in litigation, as well to keep the fcale of juf- 
tice even and Heady, and not liable to waver with every 
new judge’s opinion ; as alfo becaufe the law in that cale 
being folemnly declared and determined, what before was 
uncertain, and perhaps indifferent, is now become a per¬ 
manent rule, which is not in the breaff of any fubfequent 
judge to alter or vary from according to his private fen- 
timents : he being fworn to determine, not according to 
his own private judgment, but 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 de¬ 
termination is moll evidently contrary to reafon ; much 
more if it be contrary to the divine law. But even in 
fuch cafes the fubfequent judges do not pretend to make 
a .nevr law, but to vindicate the old one from mifrepre- 
fentation. For, if it be found that the former decifion is 
manifeftly abfurd or unjuft, it is declared, not that fuch a 
fentence was bad law, but that it was not law ; that is, 
that it is not the effablilhed cuffom of the realm, as has 
been erroneoully determined. And hence it is that our 
lawyers are with jultice fo copious in their encomiums on 
the reafon of the common law ; that they tell us, that the 
law is the pcrfedlion of reafon, that it always intends to con¬ 
form 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 con¬ 
tradictory to reafon, and then the law will prefume it to 
be well founded. And it hath been an ancient obferva- 
tion in the laws of England, that whenever a Handing 
rule of law', of which the reafon perhaps could not be re¬ 
membered or difeerned, hath been wantonly broke in 
upon by tlatutes or new refolutions, the wifdom 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 muff be followed, unlefs flatly abfurd or unjuft ; 
for, though their reafon be not obvious at firlt view, yet 
we owe fuch a deference to former times as not to fuppofe 
they acted wholly without confideration. To illullrate 
this doCtrine by examples. It has been determined, time 
out of mind, that a brother of the half-blood lhall never 
fucceed as heir to the eftate of his half-brother, but.-it 
fhall rather efeheat to the king, or other fuperior lord. 
Now this is a pofitive law, fixed and eftablifhed by cuf- 
tom; which cuffom is proved 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 jultice; 
though the artificial reafon of it, drawn from the feodal 
law, may not be quite obvious to every body. And there¬ 
fore, on account of a fuppofed hardfhip upon the half- 
brother, a modern judge might wifti it had been other- 
wife fettled ; yet it is not in his power to alter it; and, 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 fubfe¬ 
quent judges would fcruple to declare that fuch prior de¬ 
termination was unjuft, was unreafonable, and therefore 
was not law. So that the law, and the opinion of the 
judge, are not always convertible terms, or one and the 
fame thing ; fmee itfometimes may happen that the judge 
may miftake the law. Upon the whole, however, we may 
take it as a general rule, “ That the decifions of courts of 
jultice are the evidence of what is common law ;” in the 
fame manner as, in the civil law, what the emperor had 
once determined w’as to ferve as a guide lor the future. 
The decifions therefore of courts are held in the higheft 
regard ; and are not only prelerved as authentic records 
in the treafuries of the feveral courts, but are handed out 
to public view in the numerous volumes of reports which 
furnilh the lawyers’ library. Thefe reports are hiltories 
3 0 *' 
