much more if it be contrary to the divine law. But even in ſuch caſes the ſubſequent judges do not pretend to make a new law, but to vindicate the old one from miſrepreſentation. For if it be found that the former deciſion is manifestly abſurd or unjuſt, it is declared, not that ſuch a ſentence was bad law, but that it was not law; that is, that it is not the eſtabliſhed cuſtom of the realm, as has been erroneouſly determined. And hence it is that our lawyers are with juſtice ſo copious in their encomiums on the reaſon of the common law; that they tell us, that the law is the perfection of reaſon, that it always intends to conform thereto, and that what is not reaſon is not law. Not that the particular reaſon of every rule in the law can at this diſtance of time be always preciſely aſſigned; but it is ſufficient that there be nothing in the rule flatly contradictory to reaſon, and then the law will preſume it to be well founded[1]. And it hath been an antient obſervation in the laws of England, that whenever a ſtanding rule of law, of which the reaſon perhaps could not be remembered or diſcerned, hath been wantonly broke in upon by ſtatutes or new reſolutions, the wiſdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.
The doctrine of the law then is this: that precedents and rules muſt be followed, unleſs flatly abſurd or unjuſt: for though their reaſon be not obvious at firſt view, yet we owe ſuch a deference to former times as not to ſuppoſe they acted wholly without conſideration. To illuſtrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood ſhall never ſucceed as heir to the eſtate of his half brother, but it ſhall rather eſcheat to the king, or other ſuperior lord. Now this is a poſitive law, fixed and eſtabliſhed by cuſtom, which cuſtom is evidenced by judicial deciſions; and therefore can never be departed from by any modern judge without a
- ↑ Herein agreeing with the civil law, Ff. 1. 3. 20. 21. “Non ominum, quae a majeribus noſtris conſtituta ſunt, ratio reddi poteſt. Et ideo rationes eorum quae conſtitauntur, inquiri non oportet: alioquin multa ex his, quae certa ſunt, ſubvertuntur.”
