[ *67 ] one uniform law, in the celebrated code intitled Las Partidas (1). And in Sweden, about the same æra, 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 (2), 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 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 (3); while the free constitution of England, perhaps () Mod. Un. Hist. xx. 211. (2) Palgrave says, "the authentic code of the legislature does not support these assertions. The laws of Alfred abound in valuable regulations of criminal jurisprudence, but they are entirely silent with respect to those institutions which, according to later historians, are to be ascribed to his sound policy and wisdom."-Rise and Progress of English Commonwealth, p. 46. (3) Justinian, in the first book of his Institutes, (tit. 2, par. 6), thus proclaims his despotic authority: "quod principi placuit legis habet vigorem, quum lege regia, quæ de ejus imperio lata est, populus ei et in eum omne imperium suum et potestatem concedat." And the following passage, to the same effect, appears in the first book of the Codex; "lege antiquá, quæ Regia nuncupatur, omne (m) Ibid. xxxiii. 21, 58. jus omnisque potestas populi Romani in imperatoriam translata sunt potestatem." (See post, p. 74). If this surrender and transfer of their power were voluntary acts on the part of the Roman people, they must have been done in the exercise of a wretched choice between an alternative of evils, and as a refuge against a still more intolerable state of anarchy. It is not to be supposed, that, after this terrific power was lodged in the ruler of the state, all, or the greater part of the laws which had been enacted whilst Rome was under popular government, were abrogated. Much, very much, even of the last imperial collection of laws, consists of such as were made during the five centuries throughout which a republican form of government prevailed. Justinian himself, in 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 legibus soluti simus, tamen legibus vivimus;" yet, these very declarations, that it is worthy the majesty of a prince to submit himself to the laws, and, though absolved from them, to live by their rule; are substantial assertions that their despotic authority had no limits but such as they might themselves think fit to impose. And the last semblance even of concurrent legislative authority was expressly taken away from the senate by Leo, called (it does not satisfactorily appear why) the "Philosopher." The 78th of the Novellæ Constitutiones of this emperor had no other object than to annul (as its title plainly announced) this power of the senate, which the "Philosopher" said ought to be considered useless, quo senatoriam administrationem imperatoria majestas sibi vindicavit." the Proemium to his Institutes, justly calls the fifty books of the Digest, a collection in which "omne jus antiquum collectum est:" and of the Institutes he says, in them" breviter expositum est, et quod antea obtinebat, et quod postea desuetudine inumbratum, imperiali remedio illuminatum est." Still, the rescripts, edicts, and decrees which the emperors exercised the power of issuing, upon their own sole and absolute authority, if they did not taint the whole mass of the later Roman jurisprudence, made the rights of every Roman subject insecure. It is true that a concurrent power of legislation was admitted to reside in the Senate: in the first book of the Digest, tit. 3, sect. 9, we are told that, "non ambigitur senatum jus facere posse:" and the Theodosian Code, 1. 2, declares that, "contra jus, rescripta non valent;" yet, it is quite certain, that, after the establishment of the empire, the senate had, in fact, no power but what they held by sufferance of the emperors: in theory, indeed, the senate may have long continued to be (in the words of a learned writer) “the great oracle of the state, and the visible representation of the majesty of the commonwealth." this oracle could be silenced, this visible representation of majesty could be obscured, whenever the reigning emperor thought fit to impose such silence and obscurity. Good princes might say, as Theodosius and Valentinian did, in the terms of the Codex, tit. 1, sec. 14, par. 4, "digna vox est majestate regnantis, legibus alligatum se principem profiteri, adeo de auctoritate juris nostra pendet auctoritas. Et revera magis imperio est, submittere legibus principatum." (See post, p. 233). And such Emperors as Severus and Antonius might declare, as is laid down in the Institutes, tit. 2, s. 17, par. 8, "licet But, 66 ex Admitting, therefore, as fully as the admirers of the civil law can desire, that, generally speaking, private and personal rights are well protected by the provisions of that law; and that the occasional edicts in violations of those rights were, for the most part, only of application to the particular cases, and injuries to the particular individuals who were the objects of such edicts; still, a suspicion must naturally arise, even without examination, (and examination will abundantly confirm it), that, in a code promulgated to a state under the government of absolute rulers, not a few general laws are to be found, the systematic tendency of which is towards arbitrary power. No Englishman, therefore, can desire, and luckily no one need apprehend, the substitution of the civil law, in subversion of our own municipal code. It would be mere bigoted prejudice, however, to deny that the body of the civil law contains the quintessence of the reason and experience of many ages, though 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. its purer parts are alloyed by the admixture of baser matter. Of the admirable skill with which the system of civil law has been digested; of its accommodation to the general uses of society, and of the sound principles of philosophy and policy with which it abounds; as well as of its inferiority, in some points, to our own legal administration; no one has given a more impartial opinion, and no one was ever qualified to give a more accurate one, than that great constitutional lawyer, Sir Matthew Hale, who, as is recorded in his Life by Bishop Burnet, "set him. self to the study of the Roman law; and, though he liked the way of judicature in England, by juries, much better than that of the civil law, where so much was trusted to the judge, yet he often said, that the true grounds and reasons of law were so well delivered in the Digest, that a man could never understand law as a science, so well as by seeking it there; and therefore he lamented much that it was so little studied in England." The use of the civil law thus recommended, in order to attain a sound, scientific knowledge of the rational grounds upon which all laws ought to be established, if conducted with reflection and candour, will assuredly not lead to indifference for our own legal and political institutions. That these, like all other works of man, are imperfect, no sane and honest person will deny: that if they were at the present moment perfect, as applicable to the existing state of society, they would, in process of time, require alterations, is equally indisputable; but it is confidently believed there is a principle of vitality in our constitution which will secure the timely adoption of those alterations, whenever they are imperiously called for. (See post, note to p. 163). Temperate men have been wont to rest content with the conviction, well expressed by the historian of the "legal polity of the Roman state," that, "although positive laws with reference to some extreme cases do not, and could not with decency, appear in our statute books; still, cases of extraordinary abuse of power, which cannot be presumed or foreseen, much less provided against by the common rules of civil policy, will always find an occasional remedy from the dictates of self-preservation." (See post, pp. 244, 251). If this confidence was well grounded when Dr. Bever wrote, is it less authorized by reason at present? Encroachments upon liberty, either by the crown or the aristocracy, can hardly now be apprehended; if the abuse of power is, unhappily, to be exhibited at all, it must be by the people, for it is in their hands and the present writer believes them to possess a fund of good sense and honesty, which will prevent the conversion of what ought to be a general blessing, into a general curse. (See ante, notes to pp. 51, 52). Some turbulent spirits there are, no doubt, who, whether actuated by weakness or by profligacy, would be ready to throw the state into confusion; but it is firmly trusted the immense majority of the people deprecates any such convulsion; and is aware that it would be likely to lead, not to a higher degree of rational freedom, but, through anarchy, to a military despotism. (See post, note to p. 127). : a valid custom. 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 (4): nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and longestablished custom. Whence it is that in our law the good- What constitutes ness 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 (5). 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. *I. 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 (4) What Lord Hale says is undoubtedly true, that "the original of the common law is as undiscoverable as the head of the Nile." Hist. Com. (5) See post, p. 76, n. 21. Unwritten, or includes common law, 1. General cus toms. [ *68 ] [ 69 ] General customs, how evidenced. 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. *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 determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the law; 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 assistAnd 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 (n) Cap. 8. ance. |