The foundations, therefore, upon which the Common Law, as contradiftinguished from the Statute Law, are erected, may be divided into, 1. The Law of God. 2. The Law of Reafon. 3. The General Custom of the Realm. §. 1. The Law of God. and Nations THE LAWS OF GOD are the efficient caufes of Burlamaqui's the Law of Nature; the principles of which, as al- Law of Nature ready obferved, God has fufficiently notified to man, 1. vol. fo as to enable him by the light of natural reason to deduce from thence his feveral duties. This law, therefore, which includes in it the precepts both of natural and revealed religion, being known to all mankind, and ftamped as it were upon our very hearts, has the fame force, and is equally binding in every part of the globe; for as all human inftitutions are founded on the Laws of God, so no human laws ought to be suffered to contradict them. The doctrines of this law are difcoverable by that moral instinct which inhabits the breafts of all mankind, and prompts them, by a natural bent and inclination, to approve of certain things as good and Burlamaqui. commendable, and to condemn others as bad and blameable, independent of reflection: to this fenfe the faculty of reafon is added, to enable us to illuftrate, to prove, to extend, and to apply what our moral inftinct has before given us to understand. There are, however, a great number of indiffe- 1. Bl. Com. rent points upon which both the divine law and the 43. natural leave a man at his own liberty; but which are found neceffary, for the benefit of fociety, to be restrained within certain limits: and herein it is that human laws have their greatest force and efficacy; for with regard to fuch points as are not indifferent, human laws are only declaratory of, and act act in fubordination to, the former. To inftance in the case of murder: This is exprefsly forbidden by the divine, and demonftrably by the natural law; and from these prohibitions arifes the true unlawfulnefs of the crime. Thofe human laws that annex a punishment to it, do not at all increase its moral guilt, or fuperadd any fresh obligation in foro confcientia to abftain from its perpetration. Nay, if any human law fhould allow or enjoin us to commit it, we are bound to tranfgrefs that human law, or elfe we must offend both the natural and the divine. But with regard to matters that are in themfelves indifferent, and are not commanded or forbidden by those fuperior laws; fuch, for inftance, as the exporting of wool to foreign countries; here the inferior legiflator has fcope and opportunity to interpofe, and to make that action unlawful which before was not fo. Co Lit. 97. b. 1. Bl.Com.76. §. 2. The Law of Reafon. THE LAW OF REASON, with refpect to the natural duties of man, is of the fame import with the Law of God; but confidered as a foundation of the Laws of England with refpect to civil obligations, it is to be understood scientifically for although it is faid that reafon is the body, life, and perfection of law, and that nihil quod eft contra rationem eft licitum ; yet it is to be understood of an artificial perfection of reafon, gotten by long ftudy, obfervation, and experience, and not of every man's natural reafon; for nemo nafcitur artifex. This legal reafon, fays Sir Edward Coke, hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to fuch perfection, that the old rule may be juftly verified of it, Neminem oportet effe fapientiorem legibus: No man out of his own private reafon ought to be wifer than the law, which is the perfection of reafon. The law, therefore, prefumes that thofe precedents and rules which have been from time to time eftablifhed blished by the Courts of Juftice, were founded in the perfection of reafon, unlefs indeed they manifeftly appear to be abfurd and unjuft; for although the reafon upon which they were made may not be obvious at first view, yet fuch a deference is paid to former times, as to fuppofe that they did not act without good confideration. §. 3. General Cuftoms of the Realm. 17 THE establishment of Law in England is of very high antiquity, but the government of the kingdom Com. Law, Hale's Hiftory having experienced many viciffitudes from either ch. 2. the conquests or acceffion of foreign nations anterior to the coming in of William the Firft, during which the original Britons were mingled and incorporated with Romans, Picts, Saxons, Danes, and Normans, it becomes impoffible to trace the first introductions of thofe general cuftoms which now conftitute, in a ftrict fenfe, the Common Law of the realm. It is indeed infifted, with great admiration of the excellency of these customs, that during the time those feveral nations prevailed, the ancient customs of the Bacon's Elerealm remained unaltered; but the probability is, as See alfo Lord Bacon has expreffed it, that our Laws are as Reeves's Hifmixed as our language, compounded of British, tory of English Roman, Saxon, Danish, and Norman cuftoms; and as our language is fo much the richer, fo the Laws are the more compleat. ments, p. 32. ? Law, vol. 1. P. 3. Upon the acceffion of William the Firft, the Laws commonly known by the name of Edward the Con-felor's Laws were the general and ftanding Laws, of this kingdom, being compofed of the Danish, the Mercian, and the Weft Saxon cuftoms which then prevailed (a). By this code of Common Law, and (a) See Lamb. the feveral alterations which have been fince made in it, 119.where this manual, as Lord Hale calls it, is 1. The proceedings and determinations in the printed. King's ordinary courts of juftice, are guided and directed. 18 GENERAL CUSTOMS OF THE REALM. 2. It fettles, for the most part, the course in which land fhall defcend by inheritance. 3. It ordains the manner and form of acquiring and transferring property. 4. It fixes the rules of expounding deeds, wills, and acts of parliament. 5. It affigns the respective remedies of civil injuries; and 6. The feveral fpecies of temporal offences, with the manner and degree of punishment. It alfo includes an infinite number of minuter particulars, which diffuse themselves as extenfively as the ordinary diftribution of common juftice requires. Thus, for example, 7. That there shall be four fuperior courts of record, viz. the Chancery, the King's Bench, the Common Pleas, and the Exchequer. 8. That the eldeft fon alone is heir to his ancestor. 9. That property may be acquired and transferred by writing. 10. That a deed is of no validity unless fealed and delivered. 11. That wills fhall be conftrued more favourably and deeds more ftrictly." 12. That money lent upon bond is recoverable by action of debt. 13. That breaking the public peace is an offence; and punishable by fine and imprisonment. All these are doctrines that are not fet down in any written ftatute or ordinance, but depend merely upon immemorial ufage; that is, upon the General Cuftom, or the Common Law of the Realm, for their fupport. §. 4. The Local Cuftoms of certain Diftricts. Another branch of the unwritten Laws of England are Particular Cuftoms, or Laws which affect only the inhabitants of particular diftricts; fuch as, FIRST2 FIRST, The Custom of Gavelkind in Kent, and Gavelkind. fome other parts of the kingdom; which ordains, among other things, which will be particularly men- . tioned in confidering Gavelkind as an eftate," that not the eldest fon only of the father fhall fucceed "to his inheritance, but all the fons alike." Moft of the Cuftoms of this kingdom, variant from the Common Law, are founded on fome particular points of convenience peculiar to the few places whercin they obtain: but the Custom of Gavelkind lays claim to a more noble original, being derived from the univerfal law of the whole world; for anciently all the children being equally near in blood, and entitled to the fame affection and fupport from their parents, partook alike of the poffeffions defcending from them, till the more refined policy of later ages chofe to raise distinctions where nature made none. Co. Lit. 110. 2. Lev. 138. SECONDLY, The Cuftom of Borough English, which Borough En. prevails in certain ancient boroughs; by virtue of glish. which the youngest fon fhall inherit his father as to Lit. 165. the lands of which he is feifed in fee fimple or fee Noy, 106. tail, in preference to all his elder brothers. It is called Borough English, becaufe, as fome hold, it 3: Keb. 475. firft prevailed in England; and the reason of it feems to be, that in thefe boroughs people chiefly maintained and supported themfelves by trade and industry; and the elder children being provided for out of their father's goods, and introduced into his trade in his life-time, were able to fubfift of themfelves without any land provifion; and therefore the lands defcended to the youngest fon, he being in moft danger of being left deftitute (a). The law takes particular notice of the Cuftoms both of Gavelkind and Borough English; and therefore there is no occafion to prove that fuch Customs actually exift, but only that the lands in queftion are subject (a) See the Preface to 3, Modern Reports, page, where it is faid, that this cuftom originated from the privilege which THE LORD claimed during the feudal C 2 times of fleeping the first night thereto; |