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 on the continent: ſtates that have loſt, and perhaps upon that account, their political liberties; while the free conſtitution of England, perhaps 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 the name of the common laws. 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.
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: nothing being more difficult than to aſcertain the preciſe beginning and firſt ſpring of an antient and long eſtabliſhed cuſtom. Whence it is that in our law the goodneſs of a cuſtom depends upon it’s 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. This it is that gives it it’s 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 it’s 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.
