its weight and authority: and of this nature are the rules and customs which in part constitute the common law, or lex non scripta, of this kingdom.(14) Customs are either: 1. General, which prevails throughout the whole kingdom; or, 2. Particular, which for the most part affect only the eral; or, 2. local. inhabitants of particular districts. Customs are 1. gen [*58] 1. general customs. I. As to general customs, by these, wherever applicable, *proceedings and determinations in the kings ordinary courts of justice are guided and directed; by these, for the most part, are settled-the course in which lands descend by inheritance; the manner of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies for civil injuries; the ingredients in some species of temporal offences; 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, the chancery (subdivided by statute into various tribunals), the king's bench, the common pleas, and the exchequer; - that the eldest son alone is heir to his ancestor; 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 not originally prescribed by any existing statute or ordinance, but dependent upon immemorial usage, that is, upon common law, for their support. Some have divided the common law into two principal grounds or founda (14) "The common law consists of those principles and maxims, usages and rules of action which observation and experience of the nature of man, the constitution of society and the affairs of life have commended to enlightened reason as best calculated for the government and security of persons and property. The principles are developed by judicial decisions, as necessities arise, from time to time, demanding the application of those principles to particular cases in the administration of justice. The authority of its rules does not depend upon positive legislative enactment, but upon the principles which they are designed to enforce, the nature of the subject to which they are to be applied, and their tendency to accomplish the ends of justice." GREENE, J., in People v. Randolph, 2 Park. 177; Morgan v. King, 30 Barb. 13; see 1 Wait's Pr. 1 to 4, § 1; id. 13, 14, §§ 9, 10. The decisions of the English courts have been freely used in examining and deciding cases in the American courts. And whether regarded as binding authorities or not, they have frequently been of great service in establishing rules of law in this country. In many of the States the English common law has been adopted by constitutional provision or legislative enactment, so far as it is adapted to our condition and system of government. To cite all the constitutional provisions or statutory enactments, or the decisions which adapt or recognize that common law, would be impracticable as well as useless. As the principles of the common law in the different States are nearly the same in their general character, each State will intend that its common law and that of any of the other States is the same. Abel v. Douglass, 4 Denio, 305; Throop v. Iatch, 3 Abb. 23, 27, 28; Seymour v. Sturgess, 26 N. Y. (12 Smith) 134, 139; Bradley v. Mutual Benefit Life Insurance Co., 3 Lans. 341, 344; Waldron v. Ritchings, 9 Abb. N. S. 359, 364; 3 Daly, 288, 292. No such intendment is made as to statutes, and in the absence of proof that there is a statutory rule, it will be intended that the common law prevails. Ib.; Ellis v. Maxson, 19 Mich. 186; S. C., 1 Am. Rep. 81. Statutes of another State must be proved, like any other facts, by the party alleging their existence. Cole v. Stone, Hill & Denio, 360; White v. Knapp, 47 Barb. 549, 554; Holmes v. Broughton, 10 Wend. 75; Lincoln v. Battelle, 6 Wend. 475; Monroe v. Douglass, 5 N. Y. (1 Seld.) 447; Uhler v. Semple, 20 N. J. Eq. (5 C. E. Gr.) 288. tions: 1. Established customs; such as the rule of primogeniture: and 2. Established rules and maxims; as, "the king can do no wrong," "no man is bound to accuse himself," and the like. But I take these to be one and the same thing. For the authority of such 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 showing that it has been always the custom to observe it. in our public [*59] But here a very natural and very material question arises: how are these customs or maxims to be known, and by whom is their validity to be determust be settled mined? The answer is, by the judges in the several courts by judicial decisions. of justice. *They are the depositories of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by 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(m) mentions; and from being long personally accustomed to 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 and preserved judgment itself, and all the proceedings previous thereto, are regrecords istered and preserved under the name of "records," in public repositories(n); and to them frequent recourse is had, when any critical question arises in the determination of which former precedents may give light or assistance. 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(o). 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 absequent judge to alter or vary from, according to his private sentiments; he being sworn to determine, not according to his own private judg-. ment, 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 subsequent judges *do not pretend to make [*60] a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is 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 is not the established custom of the realm, as has been erroneously determined. And hence 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. (m) Cap. 8. (n) See 1 & 2 Vic. c. 94," for keeping safely the public records." (0) Seld. Review of Tithes, c. 8. will presume it to be well founded (p). And it has been an ancient observation, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, has been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule has 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 in general be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former judges as not to suppose that they acted wholly without consideration (g). (15) To illustrate this doctrine by an example. It was determined, centuries ago, that any material alteration of a bond made in it even by a stranger, without the knowledge of the obligee, nullifies the instrument (r). Now this is a positive law, fixed and established by custom, which *custom is evidenced by [*61] judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath. And herein there is nothing repugnant to natural justice; though the reason of it may not be quite obvious to everybody. Nevertheless, it would not be in the power of a modern judge, on account of a supposed hardship upon the innocent obligee, to alter the rule which has been stated. And if any court were now to determine, that under the circumstances mentioned the bond was nevertheless valid, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law. The law, indeed, and the opinion of the judge, are not always convertible terms, or one and the same thing; since sometimes the judge may mistake the law. As a general rule, however, 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 (s). (p) Herein agreeing with the civil law, "Non omnium, quæ à majoribus constituta sunt, ratio reddi potest." "Et ideo rationes eorum quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur." Dig. 1, 8, 20, 21. (q) Generally as to the authority of de cided cases, see Ram's Science of Legal Judgment, chap. 3. (r) Pigot's case, 11 Rep. 26. b.: Whelpdale's case, 5 Id. 119 a. (8) Si imperalis majestas causam cogni tionaliter examinaverit, et partibus, cominus constitutis, sententiam dixerit, omnes omnino (15) When the courts have once settled a rule or principle of law, every person is justified in relying upon it as a rule which not only may, but must, be observed in the transaction of business, and in settling the rights of property and of persons. It is only by enforcing this doctrine that there can be any certainty or safety in the dealings between men, or in the transfer or transmission of property. And it is now a settled rule that the courts will follow and enforce a rule which has been deliberately settled, and especially if it has long been acted upon. Oakley v. Aspinwall, 13 N. Y. (3 Kern.) 500; Emerson v. Atwater, 7 Mich. 12, 23; Reichert v. McClure, 23 Ill. 516; Bennett v. Bennett, 34 Ala. 53, 56; Fisher v. Horicon Iron Co., 10 Wis. 351; Nelson v. Allen, 1 Yerg. 376; Boon v. Rowers, 30 Miss. 246. See Ram on Legal Judgments, 235 to 242, Townsend's ed. Where the judgment is pronounced by an equally divided court, or because a statute requires an affirmance if a specified number of judges do not agree, such judgment is as conclusive upon the litigant parties as any other judgment; but it is of no force as a precedent. Morse v. Goold, 11 N. Y. (1 Kern.) 281, 285; Bridge v. Johnson, 5 Wend. 342; People v. Mayor, etc., of N. Y., 25 id. 252; Etting v. Bank of U. S., 11 Wheat. 59, 78; Durant v. Essex Co., 7 Wall. 107, 113. But, however well settled this general rule may be, it is a familiar fact that the courts occasionally overrule their previous decisions, and the number of overruled cases is quite large. Not only are precedents to be followed, but in resolving a new point the argument from analogy may be resorted to. Thus Lord Bacon, speaking of cases omitted in law, says (t), that "the narrow compass of man's wisdom cannot comprehend all cases which time hath found out," and therefore cases omitted and new do often present themselves, but every new case does not require a new law; if so, the legislative power would have to be continually exercised. But though it differs from former cases in circumstances, yet it may fall under a general rule, or be proceeded upon by parity of reasoning, ubi est eadem ratio-ibi idem est jus (u). Yet, although the argument from *analogy may be made use of, apparent resemblances should be closely [ *62] scanned, for sometimes before a searching scrutiny they disappear (x). But how is a new case to be decided, when there is neither authority to guide, nor analogy which can be relied upon? (16) This must be done by calling in aid common sense, that discretion (y), which a mind imbued with judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causæ pro quá producta est, sed et in omnibus similibus. C. 1, 14, 12. (t) Advancement of Learning. (u) Cited per Sir R. Atkins, 6 St. Tr. 1087-8. (r) An instance exemplifying what is said supra occurs in Entick v. Carrington, 19 St. Tr. 1029, where it was held that a warrant issued by a Secretary of State to search for and seize the papers of one accused of having published a seditious libel, is illegal. It is well known that a justice of the peace may grant a warrant to search for stolen goods, upon information that a theft has been committed, and that the goods are concealed in a certain place; and when such a warrant is granted, the constable or officer executing it may break open doors and boxes to search for the goods stolen. In Entick v. Carrington it was argued—and apparently with much confidence-for the defendants, that a Secretary of State must possess at least an equal degree of power, for protection of the commonwealth, to issue his warrant to search for and seize seditious papers, as a magistrate possesses in regard to stolen goods. And Lord Camden admitted that the former case did bear a resemblance to the latter, though he proceeded to distinguish between them by reasoning which seems to be incontrovertible. Accordingly the argument from analogy, or what Lord Coke calls the argumentum à simili, and which he says valet in lege (Co. Litt. 191), should be used with due caution. (y) "Discretion," said Lord Mansfield, in Wilkes's case, 4 Burr. 2539," when applied to a court of law, means sound discretion guided by law. It must be governed by rule, not by humour. It must not be arbitrary, vague, and fanciful, but legal and regular." (16) The expansive character of the common law adapts it to the circumstances of the particular case, and when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial decision, the courts must be governed by the general principles, applicable to cases most nearly analogous, but modified and adapted to the new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of those circumstances. And when a new practice or a new course of business arises, the rights and duties of parties are not without a law to govern them; for the general considerations of reason, justice, and policy, which underlie the particular rules of the common law, will still apply, when modified and adapted, by the same considerations, to the new circumstances. If these are such as to give rise to controversy and litigation, they soon, like previous cases, come to be settled by judicial exposition, and the principles thus settled soon come to have the effect of precise and practical rules. Norway Plains Co. v. Boston and Maine Railroad, 1 Gray, 263, 267, 268; Bell v. The State, 1 Swan. (Tenn.) 42. See, also, 1 Wait's Prac. 1 to 4, 13, 15. With the advancing state of society, new questions are constantly arising for decision, and the courts adapt the practice and course of proceedings to the existing condition of things, instead of adhering to forms and rules which were established under different circumstances; and they do not decline the enforcement of rights or the administration of justice, because there is no remedy according to the old forms or rules. Wallworth v. Holt, 4 Mylne & Craig, 635. The principle upon which the courts proceed is, that the common law does not mould the habits, the manners, and the transactions of mankind, to inflexible rules, but adapts itself to the business and the circumstances of the times, and keeps pace with the improvements of the age. Lyle v. Richards, 9 Serg. & Rawle, 322, 351. legal principles brings to bear in determining what is just: by calling in aid also considerations of expediency and public policy; and the argument ab inconvenienti, which Lord Coke, in commenting on Littleton (2), commends. For solving a difficulty, such as supposed, three practical suggestions may be offered. 1st. A case may be altogether new, or primæ impressionis, and yet may disclose a right vested in the complainant to avail himself of a remedy by action, by suit, or perhaps by motion to the Court. 2ndly. Nevertheless, if a [*63] case in specie, such as that *proposed, has never occurred before, an argument may be adduced to this effect, that where a thing has never been done it ought never to be done (a). Attention, therefore, should critically be given to such a case. 3rdly. The apparent hardship which might result from deciding on particular facts in the way indicated by law, ought not to be allowed to warp or unduly influence the opinion of the student who speculates, or of the counsel who advises, or of the judge who adjudicates on a case. Hard cases, it has been sometimes said, make bad law (b). The decisions of our superior courts are held in the highest regard, and are not only preserved as authentic records, but are handed out to public view in explained in our the numerous volumes of reports which furnish the lawyer's reported cases. library. These reports are histories of the several cases, with a short summary of the facts, the proceedings and pleadings in them, the arguments on both sides, and the reasons which the court gave for its judgment; taken down by persons present at the determination. The reports are extant in a regular series from the reign of king Edward II. inclusive; and from this time to that of Henry VIII. were taken by the prothonataries, or chief scribes of the court, at the expense of the Crown, and published annually, whence they are known under the denomination of the Year Books. And it is to be wished that this beneficial custom had, under proper regulations, been uninterruptedly continued to this day; but though king James I., at the instance of Lord Bacon, appointed two paid reporters(c) for the purpose of noting down the decisions of the law courts, yet that wise institution was soon neglected, and from the reign of Henry VIII. to the present time the task has been executed by private contemporary hands; who, through haste, mistake, or want of skill, have sometimes published crude and imperfect *(perhaps contradictory) [ *64] 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 in which he lived. However, his reports are so highly esteemed, that they are generally cited without the author's name(d). Recently under the auspices of a council composed of leading members of the bar, reporters have been appointed for each of the principal courts of law and equity, who will henceforth furnish authentic records of proceedings in them. Besides the reporters, there are certain writers to whom great veneration and respect are paid by students of the law. Such are Glanville and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, (2) Co. Litt. 66 a. (a) Per Willes, C. J., Willes' Rep. 471-2. (d) His reports, for instance, are styled 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. |