Passing therefore from this unsearchable Inquiry, I shall descend to that which gives the Authority, viz. The formal Constituents, as I may call them, of the Common Law, and they seem to be principally, if not only, those three, viz. 1st. The Common Usage, or Custom, and Practice of this Kingdom, in such Parts thereof as lie in Usage or Custom. 2dly. The Authority of Parliament, introducing such Laws; and, 3dly. The Judicial Decisions of Courts of Justice, consonant to one another in the Series and Successions of Time.
1. As to the first of these, Usage and Custom generally receiv'd, do Obtinere vim Legis, and is that which gives Power sometimes to the Canon Law, as in the Ecclesiastical Courts;sometimes to the Civil Law, as in the Admiralty Courts; and again, controuls both, when they cross other Customs that are generally receiv'd in the Kingdom. This is that which directs Discents, has settled some ancient Ceremonies and Solemnities in Conveyances, Wills and Deeds, and in many more Particulars. And if it be enquired, What is the Evidence of this Custom, or wherein it consists, or is to be found? I answer, It is not simply an unwritten Custom, not barely Orally deriv'd down from one Age to another; but it is a Custom that is derived down in Writing, and transmitted from Age to Age, especially since the Beginning of Edw. I to whose Wisdom the Laws of England owe almost as much as the Laws of Rome to Justinian.
2. Acts of Parliament. And here it must not be wonder'd at, that I make Acts of Parliament one of the Authoritative Constituents of the Common Law, tho' I had before contradistinguished the one from the other; for we are to know, that although the Original or Authentick Transcripts of Acts of Parliament are not before the Time of Hen. 3 and many that were in his Time are perish'd and lost; yet certainly such there were, and many of those Things that we now take for Common Law, were undoubtedly Acts of Parliament, tho' now not to be found of Record. And if in the next Age, the Statutes made in the Time of Hen. 3 and Edw. I were lost, yet even those would pass for Parts of the Common Law, and indeed, by long Usage and the many Resolutions grounded upon them, and by their great Antiquity, they seem even already to be incorporated with the very Common Law; and that this is so, may appear, tho' not by Records, for we have none so ancient, yet by an authentical and unquestionable History, wherein a Man may, without Much Difficulty, find, That many of those Capitala Legum that are now used and taken for Common Law, were things enacted in Parliaments or Great Councils under William I and his Predecessors, Kings of England, as may be made appear hereafter. But yet, those Constitutions and Laws being made before Time of Memory, do now obtain, and are taken as Part of the Common Law and immemorial Customs of the Kingdom; and so they ought now to be esteem'd tho' in their first Original they were Acts of Parliament.
3. Judicial Decisions. It is true, the Decisions of Courts of Justice, tho' by Virtue of the Laws of this Realm they do bind, as a Law between the Parties thereto, as to the particular Case in Question, 'till revers'd by Error or Attaint, yet they do not make a Law properly so called, (for that only the King and Parliament can do); yet they have a great Weight and Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is, especially when such Decisions hold a Consonancy and Congruity with Resolutions and Decisions of former Times; and tho' such Decisions are less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.
1st. Because the Persons who pronounce those Decisions, are Men chosen by the King for that Employment, as being of greater Learning, Knowledge, and Experience in the Laws than others.
2dly. Because they are upon their Oaths to judge according to the Laws of the Kingdom. 3dly. Because they have the best Helps to inform their Judgments. 4thly. Because they do Sedere Pro Tribunali, and their Judgments are strengthen'd and upheld by the Laws of this Kingdom, till they are by the same Law revers'd or avoided.
Now Judicial Decisions, as far as they refer to the Laws of this Kingdom, are for the Matter of them of Three Kinds:
First, They are either such as have their reasons singly in the Laws and Customs of this Kingdom, as, Who shall succeed as Heir to the Ancestor, what is the Ceremony requisite for passing a Freehold, what Estate, and how much shall the Wife have for her Dower? And many such Matters wherein the ancient and express Laws of the Kingdom give an express Decision, and the Judge seems only the instrument to pronounce it; and in these Things, the Law or custom of the Realm is the only Rule and Measure to judge by, and in reference to those Matters, the Decisions of Courts are the Conservatories and Evidences of those Laws.
Secondly, Or they are such Decisions, as by Way of Deduction and Illation upon those Laws are framed or deduced; as for the Purpose, Whether of an Estate thus or thus limited, the Wife shall be endowed? Whether if thus or thus limited, the Heir may be barr'd? And infinite more of the like complicated Questions.
And herein the Rule of Decision is, First, the Common Law and Custom of the Realm, which is the great Substratum that is to be maintain'd; and then Authorities or Decisions of former Times in the same or the like Cases, and then the Reason of the Thing itself.
Thirdly, Or they are such as seem to have no other Guide but the common Reason of the Thing, unless the same Point has been formally decided, as in the Exposition of the Intention of Clauses in Deeds, Wills, Covenants, &c. where the very Sense of the Words, and their Positions and Relations, give a rational Account of the Meaning of the Parties, and in such Cases the Judge does much better herein, than what a bare grave Grammarian or Logician, or other prudent Men could do; for in many Cases there have been former Resolutions, either in Point or agreeing in Reason or Analogy with the Case in Question; or perhaps also, the Clause to be expounded is mingled with some Terms or Clauses that require the Knowledge of the Law to help out with the Construction or Exposition: Both which do often happen in the same Case, and therefore it requires the Knowledge of the Law to render and expound such Clauses and Sentences; and doubtless a good Common Lawyer is the best Expositor of such Clauses, &c.
Vide Plowden, 122, to 130, 140, &c.
