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Again; common law ordains that the eldest son shall inherit land; that murder shall be punished with death; that actions may be brought in certain cases; and that a writing requires sealing and delivery to make it a deed.
Some of these portions of the common law do not require to be looked for in any book or record, for they exist as part of the established order of things; but other heads of law must be discovered, and their validity determined, by those to whom belongs the administration of the laws. The question then arises, where is the common law to be found? There exists no written body of common law, such as the Coutumes, or compilations of customary law, which were drawn up at different times in France. The common law of England is supposed to be in the bosom of the judges of the several courts of justice. They are, by the constitution of the kingdom, held to be the depositaries and oracles of the law of the land, according to which they are bound by oath to decide all controversies that come before them.1
The judges do not, however, decide according to their own notions of the law; they are bound to follow and conform themselves to the rules established by the decisions of their predecessors, which are to be found in the records of the courts, and in the reports, or accounts of judicial decisions and proceedings drawn up by persons learned in the law. Of these reports the most ancient are the Year-books,2 - which are said to have been so named because they were annually published from the notes of certain salaried servants of the crown, called prothonotaries. They began in the reign of Edward II., and continued to be published until that of Henry VIII. Blackstone expresses his
1 Hale, Hist . of Com. Law, c. ii. p. 22, 23, c. iv. p. 67, 68.
2 Reeves, Hist, of English Law, p. 357; and see 3 Rep. preface.
regret that this custom, which was temporarily revived by James I., has not been continued. From the time when the year-books ceased to the present, the task of reporting the proceedings and decisions of the courts has been left to private hands. However, some of the reports of the highest authority were drawn up under the present system. Such are those of Lord Chief Justice Coke, which are called The Reports, on account of their high reputation; and those of Croke, a judge who lived in Queen Elizabeth's and James I.'s reign, i
Besides the reporters, there are certain authors whose works have very great weight with the courts of justice. Such are Glanvil, Bracton, Britton, Fleta, Hengham, Littleton, Statham, Brooke, Fitzherbert, and Saundeforde, with others. These writers, as Blackstone says, 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.
Sir Edward Coke is one of the last of these writers whose works are of intrinsic authority. He wrote four volumes of Institutes, the first of which is a commentary on a treatise on tenures composed by Littleton, a judge of the Court of Common Pleas in the reign of Edward IV. This commentary contains a mass of information on a great variety of heads of common law, besides the feudal learning respecting the subject of Judge Littleton's treatise. It is written with no regular method or classification, except so far as it follows Littleton's text. The other three books of Institutes are a comment on some of the older acts of parliament, a treatise on pleas of the crown or criminal law, and an account of the several species of courts.
The degree of weight attached to the writings of these legal sages in our courts is perfectly different from the authority given by the celebrated Constitution of the Em« perors Theodosius and Valentinian to the works of Papinian, Paulus, Ulpian, and Modestinus.1 The English commentators have not authority of law. They are followed only so far as they agree with the principles laid down in judicial determinations and the provisions of acts of parliament; but where a question is doubtful, or the real sources of law are deficient, the opinion of some of them is frequently decisive.2
We come now to consider the second species of unwritten law, namely, particular customs which affect only certain places, towns, or districts. Such is the custom of
- I gavelkind in Kent, and some other parts of the kingdom, whereby land descends not to the eldest son alone, but to all the sons alike. Such is the custom of borough English, which prevails in some ancient boroughs, by which
/ the youngest son inherits land in preference to his elder brothers. Of the same nature are the customs of manors, which are binding on the copyhold and customary tenants that hold of those manors; the immemorial usages of cities and towns; and especially the customs of the city of London respecting trade, apprentices, widows, orphans, and other matters.3
1 Pothier, Pand. pref. c. iv. Savigny, Hist, du D. Rom. c. i. - Coke, in the preface to his first Institute (p. 37), relates a curious instance of the weight given to the opinion of Littleton. The question arose in James I.'s reign, whether the release to one trespasser should be available or no to his companion. "Sir Henry Hobart, that honourable judge and great sage of the law, and those reverend and learned judges, Warburton, Winch, and Nichols, his companions, gave judgment according to the opinion of Littleton, and openly said, that they owed so great reverence to Littleton, as they would not have his case disputed or questioned." Coke does not inform us how far the defeated litigant was satisfied with the reason given by the judges.
3 Blackst. Com. introd. p. 74.
These customs are of the nature of the common law, but differ from it, inasmuch as they want universality.1
Borough English and gavelkind have this peculiarity, that the law takes such particular notice of their nature, that when it is proved that certain land is subject thereto, the law recognises and applies them, so far at least as regards their essential and usual characteristics, in the same maimer as any portion of the general common law. Both these customs must, however, be alleged or pleaded; for the presumption is, that land is governed by the common law.»
All other customs must not only be pleaded, but their specific nature must be pleaded and proved.3
In both species of customs the trial is by a jury, who are the proper judges of the question of fact, whether the land is subject to the customs of gavelkind or borough English; or, in the case of other customs, whether the alleged custom exists, and also whether the matter in dispute is subject to it.4
The city of London, however, enjoys this privilege, that her customs do not require to be proved by evidence before a jury. They are certified to the court by the lord mayor and aldermen, by the mouth of the recorder,' excepting where the corporation are directly interested in the allowance of the alleged custom.
1 3 SaJkeld, 112. 1 Co. Litt. 175. n. 4.
3 Co. Litt . 175. 1 Salkeld, 243. Blackstone places the custom of merchants under the head of particular customs. This, however, is not strictly correct. Mr. Justice Foster held, that the custom of merchants is the general law of the kingdom. 2 Burr. 1226. See also Mr. Christian's note to Blackst . Com. vol . i. p. 75; and Lord Hale's Hist, of Com. Law, c. ii. p. 25.
4 Blackst. Com. introd. p. 76.
* Blackst. Com. ib. and book iii. § iii. p. 384. Blaquiere v. Hawkins, Dougl. 380.
A custom has no force, even if proved to exist in fact, unless it is legal; - and it is not legal unless it has the following requisites:— 1st, antiquity; 2dly, continuity; 3dly, peaceableness; 4thly, certainty; and, 5thly, consistency.
1st. A custom must have been used so long that the memory of man runneth not to the contrary. If it can be shewn to have begun within the time of legal memory* that is to say, since the first year of Richard I., it is no legal custom.1
2dly. It must be continued; for a temporary cessation necessarily imports a new beginning.
3dly. It must be peaceable; for customs owe their origin to common consent, which is incompatible with contention and disputed
4thly. Customs must be reasonable, or rather, as Blackstone says, taken negatively, they must not be unreasonable. But Coke says, that this must be understood not of every unlearned man's reason, but of artificial legal reason warranted by law.3 Thus a custom may be good,
1 Blackst. Com. introd. p. 76. Co. Litt. 113,115. Hale, Hist . of Com. Law, c. i. p. 2.
* Co. Litt . 113 b. It is requisite to remind the reader, that though prescription is analogous to custom in many particulars, it differs therefrom in this,—a prescription is personal, as Lord Coke says; that is to say, it is a means whereby a person acquires a right in his own name and in that of those whom he represents. A custom, on the other hand, is local, and is alleged of no person, but laid within some manor or other place. (See Blackst. Com. book ii c . 17; and Cruise, Dig. vol. in. p. 422.) Coke quotes the very words of the civil law on this subject, as indeed he does on many others, but without saying whence those words came. This practice, of not giving any reference when he uses the words of the civil law, has occasioned the opinion that Coke never used the civil law in his work. With respect to legal memory in the law of prescription, see Lord Tenterden's Act, 2 and 3 Wm. IV. c. 71.
3 Co. Litt. 62 a. Litt. sect. 80.