courſe of acting accordingly?” Thus did they reaſon while Rome had ſome remains of her freedom; but, when the imperial tyranny came to be fully eſtabliſhed, the civil laws ſpeak a very different language. “Quod principi placuit legis habet vigorem, cum populus ei et in eum omne ſuum imperium et poteſtatem conferat,” ſays Ulpian[1]. “Imperator ſolus et conditor et interpres legis exiſtimatur,” ſays the code[2]. And again, “ſacrilegii inſtar eſt reſcripto principis obviare[3].” And indeed it is one of the characteriſtic marks of Engliſh liberty, that our common law depends upon cuſtom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary conſent of the people.
II. The ſecond branch of the unwritten laws of England are particular cuſtoms, or laws which affect only the inhabitants of particular diſtricts.
These particular cuſtoms, or ſome of them, are without doubt the remains of that multitude of local cuſtoms before-mentioned, out of which the common law, as it now ſtands, was collected at firſt by king Alfred, and afterwards by king Edgar and Edward the confeſſor: each diſtrict mutually ſacrificing ſome of it’s own ſpecial uſages, in order that the whole kingdom might enjoy the benefit of one uniform and univerſal ſyſtem of laws. But, for reaſons that have been now long forgotten, particular counties, cities, towns, manors, and lordſhips, were very early indulged with the privilege of abiding by their own cuſtoms, in contradiſtinction to the reſt of the nation at large: which privilege is confirmed to them by ſeveral acts of parliament[4].
Such is the cuſtom of gavelkind in Kent and ſome other parts of the kingdom (though perhaps it was alſo general till the Norman conqueſt) which ordains, among other things, that not
- ↑ Ff. 1. 4. 1.
- ↑ C. 1. 14. 12.
- ↑ C. 1. 23. 5.
- ↑ Mag. Cart. c. 9.—1. Edw. III. ſt. 2. c. 9.—14 Edw. III. ſt. 1. c. 1.—and 2 Hen. IV. c. 1.
