House. Apparell. The Fashion of their House in the Night. Library. Their. Usage in Time of Pestilence. Ancient Orders and Ceremonies." Fines, 241-Orders for Government, 242-Buildings, 243-Church, 259- Inns of Chancery belonging to the Temples. In is of Cha cery belonging to Lincoln's Inn. A HISTORY, &c. CHAP. I. OF THE ANTIQUITY OF THE COMMON LAW OF ENGLAND. THAT collection of unwritten maxims and customs which is called the common law of England, however compounded, or from whatever fountains derived, has, no doubt, observes a certain great author, subsisted immemorially in this kingdom; being, in fact, as ancient as the differences betwixt man and man: hence the old lawyers, with much warmth, contend that these customs are as remote as the primitive Britons, and continued down through the several mutations of government and inhabitants to the sent time, unchanged and unadulterated; being, says Plowden', no other than and tried reason, or the absolute perfection of reason, according to Coke; who adds2, "the ground thereof is beyond the memory or register of any beginning; and these," says he, "were they which the Norman Conqueror at his coronation did swear to observe; being then by him said to be bonæ et approbatæ antiquæ regni leges," pure 'Plowd. Comm. in his case of mines, fo. 316. pre the good and approved ancient laws of the kingdom3. Lord chancellor Ellesmere still more emphatically asserts that the common laws of England are grounded upon the law of God, and extend themselves to the original law of nature, and are not originally leges scriptæ, written laws. Agrecable to this is what 3 In his Pref. to the eighth book of his Reports. 4 Ibid. fol. 32, 33. 5 " When I call these parts of our laws leges non scripta," says the eloquent Blackstone, "I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed, that in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic druids committed all their laws as well as learning to memory; and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant. But with us at present the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judi 'cial decisions, and in the treatises of learned sages of the profession; preserved and handed down to us from the times of highest antiquity. However, I therefore style parts of our law leges non scripta, because their original institution and authority are not set down in writing as acts of parliament are, but they receive their binding power and the force of laws by long and immemorial usage, and by their universal reception throughout the kingdom; in the like manner as Aulus Gellius defines the jus non scriptum to be that which is tacito et ⚫illiterato bominum consensu et moribus expressum.' "This unwritten or common law is properly distinguishable into three kinds: first, general customs, which are the universal rule of the whole kingdom, and form the common law in its stricter and more usual signification: secondly, particular customs, which for the most part affect only the inhabitants of particular districts: thirdly, certain particular laws, which by custom are adopted and used by some particular courts of petty, general, and extensive jurisdiction. 5 a venerable author, Bracton, advances, that England, alone of all other nations, is governed by unwritten laws. And this circumstance by no means extenuates their authority nor the esteem due to them: "it not being incongruous," says Fleta", "to call our English constitutions, laws, though they be not committed to writing; forasmuch as the law itself is, that what the king appointeth hath "Of these general customs, or the common law, properly so called, is that law by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. These customs or maxims are known, and their validity determined by the judges in the several courts, who 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. Their knowledge of that law is derived from experience and study, from the 'viginti annorum lucubrationes,' which Fortescue mentions, and from being long personally accustomed to the judicial decisions of their predecessors; which decisions are carefully registered and preserved under the name of records, in public repositories set apart for that particular purpose; and are handed out to public view in the nume rous volumes of reports which furnish the lawyer's library. These reports are extant in a regular series from the reign of king Edward II. inclusive; and from his time to that of Henry VIII. were published annually by authority, under the denomination of year-books, and since that time have been continued by many private and cotemporary hands, forming, with the valuable comments of the old lawyers, whose works contain a rich mine of common law learning collected and heaped together from these sources, the common law. And thus much for the first ground and chief corner-stone of the laws of England, which is in general immemorial custom or common law from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law." "Bracton, lib. i. chap. 1. Fleta, in Commentarii Juris Anglicani Proœmio. |