(upon the authority of Roger Hoveden (h) and Ranulphus Cestrensis) (i) that king Edward the Confessor extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom; though the work had also been projected and begun by his grandfather king Edgar. And he remarks in confirmation of this statement, that 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 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) However, in his opinion, these undertakings of king Edgar and Edward the Confessor were probably no more than a new edition, or fresh promulgation, of Alfred's code or Domebook, with such additions and improvements as the experience of a century and a half had suggested; for Alfred, as he remarks, is generally styled by the same historians the legum Anglicanarum conditor, as Edward the Confessor is the restitutor. But whatever may be thought of these points of legal history or tradition, there can be no doubt that under the first princes of the Norman line, our ancestors were engaged in a frequent struggle to maintain certain institutions known by the appellation of the laws of Edward the Confessor, and which would seem to have been a body of laws or customs observed (though not first established) in (h) In Hen. II. (i) In Edw. Confessor. (k) Mod. Un. Hist. xxii. 135. (1) Mod. Un. Hist. xx. 211. the reign of that monarch; (n) and it is certain that the Norman princes made frequent engagements to restore and maintain these laws as the most popular act they could do when pressed by foreign emergencies or domestic discontents. Nor can it reasonably be questioned that these, or some other remains of the law established in this country before the Conquest, gave rise (in part at least) to that collection of maxims and customs which is now known by the name of the common law, (o) 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. To assign however to the common law no other original than this, would be to take an imperfect and erroneous view of the subject. Our system of tenures was chiefly constructed, if not first founded, by the Norman conqueror; (p) our judicial forms and pleadings while they have nothing in common with the Anglo-Saxon style, are in striking conformity with the Norman (q), and it has been remarked with great truth that the general language of our jurisprudence and its terms of art are exclusively of French extraction (r). We cannot hesitate therefore to recognize in the ancient law of Normandy another parent of the common law, and one from which it has inherited some of its most remarkable features (s). (n) The laws so called, contained in Lambard and Wilkins, are considered as spurious. Vide Hallam's Mid. Ages, vol. ii. p. 444, 7th edit. (0) That much of our law is of this origin, is maintained not only by Hale and Blackstone, but by a recent writer of great research, vide Turner's Hist. of Eng. vol. i. p. 134, 2d ed. And the learned historian of the Middle Ages, though inclined, in general, to ascribe our present common law to a date not much antecedent to the publication of Glanville, (temp. Hen.2.), yet admits some features of it to have been distinguishable in Saxon times. Hallam's Mid. Ages, vol. ii. p. 466, 468, 7th edit. (p) 2 Bl. Com. 48; Henry Hist. of Eng. vol. vi. p. 10, 18; Reeves' Hist. Eng. Law, vol. i. p. 28, 3d edit.; Hallam, ubi sup. p. 408. (4) Some information on this subject may be found in Stephen on Pleading, 4th ed. Notes 2, 11, 13, 45, 47. (r) Omnia vocabula quæ vocabula artis dicuntur, quibusque hodie in foro Angli utuntur, Gallica sunt ; nihilque cum Saxonica lingua habent affine; Crag. Jus Feud, lib. i. d. 7. (s) The similarity of the English and But though these are 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(t): nothing being more difficult than to ascertain the precise beginning and 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, a phrase which refers however (it is to be observed) to a fixed era, and means that the custom must appear (for any thing that can be proved to the contrary) to have been in use before the commencement of the reign of Richard the First (u). [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 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 Norman laws is strongly illustrated by a comparison of the Grand Coustumier of Normandy (compiled as late as Ric. 1. and probably later), with our Glanville, who wrote in the reign of Hen. 2. This subject is discussed by Hale in Hist. C. L. c. 6, who, jealous for the originality of the English law, argues from the posteriority in date of the Grand Coustumier, that in most of the particulars where the conformity is to be traced, the merit of the first introduction presumably belongs to Eng land, though he admits the reasonableness of assigning it in others to Normandy. It does not however seem very material in which of the two countries they were first established. They have at all events no resemblance to the Anglo-Saxon institutions, and are evidently due to lawyers of the Norman school. (t) Hale, Hist. C. L. c. 3. (u) Vide preamble to stat. 2 & 3 W. 4, c. 71; Co. Lit. 115 a; Jenkins 2. Harvey, 5 Tyrw. 326. [so called; this is that law, by which proceedings and determinations in the 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; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires (v). 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 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;-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 these appear 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 (v) Hale's Hist. C. L. c. 2. [answer is, by the judges in the several 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. The knowledge of that law is derived from experience and study; from the "viginti annorum lucubrationes," which Fortescue (w) 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; (x) 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, (y)”] while at the same time it has been uniformly considered to be the duty of those who administer the law, to conform to the precedents thus established. For the scale of justice is not intended to waver with every new judge's opinion, (which would be productive of intolerable inconvenience,) but when in any case the law has been 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; (w) Cap. 8. (x) By stat. 1 & 2 Vict. c. 94, the public records of the kingdom are now in general placed under the superin tendence of the Master of the Rolls for the time being, and a public Record Office is to be established. (y) Seld. Review of Tith. c. 8. |