"No

from this general and almost universal system. traces," says he, "of the primitive feuds appear visible among the Saxons; and they seem to have been the only nation of Germany that did not plant them in their conquests." " His conjecture, therefore, is, that the Saxons had adopted this improvement from the Britons. He represents the whole Saxon system, in consequence of this adoption, as informed with one strong principle of subordination, which diffused its influence through every part, and formed a scale of dependence from the sovereign to the villain. Thus, one continued chain of subordination was carried regularly from the villain to the monarch; the higher link of the whole being fastened to the foot of the throne, and keeping the whole machine of national power steadily dependent from it.

Others inform us, and apparently on better grounds, that in the early ages of society, estates in land were free; that they were held in propriety, and not by tenure; that they were hereditary as well as free; that such were the real estates of the Greeks, of the Romans, and particularly of the Saxons; that, among the latter, they were alienable likewise at the pleasure of the owner, and devisable by will. The Saxons were absolutely masters of their land; and were not obliged to transmit it to the blood which the donor intended to favour. It was still, however, considered as the property of a citizen; and, therefore, subjected its owner to the general obligation of taking arms in defence of his country.

The differences between. estates in land under the Saxon government, and those which were held under

that of the conqueror, will be plain and striking by a short enumeration and contrast. Before the conquest, lands were the absolute proprieties of the owners; they could be devised and transferred at pleasure. No wardship or marriage was due or exacted. In all these things, an alteration was made on the introduction of the feudal tenures. Lands could not be alienated without the consent of the superiour: they could not be devised by will. The heir had no right to enter into the inheritance of his ancestor, until he had paid a relief, and had been admitted by his lord. As to landed estates, therefore, the law introduced by the conqueror might well be denominated a new, a Norman law.

At common law, too, all inheritances were estates in fee simple; of different kinds indeed, qualified and conditional, as well as absolute.t

"When all estates were fee simple," says my Lord Coke, "then were purchasers sure of their purchases, farmers of their leases, creditors of their debts: and for these, and other like causes, by the wisdom of the common law, all estates of inheritance were fee simple: and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, daily experience teacheth us." "

"Out of all the books and reports of the common law," says the same very experienced judge, "I have observed, that though sometimes by acts of parliament, and sometimes by invention and contrivance of men, some points of the ancient common law have been divert

ed from its proper channel; yet, in the revolutions of time, it has been, with much publick satisfaction, and to avoid many great inconveniences, been restored to its proper and ancient course. For example, the wisdom of the common law was, that all estates of inheritance should be fee simple, so that one man might safely alien, demise, and contract to and with another. But the statute of Westminster the second created an estate tail, and made a perpetuity by act of parliament, restraining tenant in tail from aliening or demising, but only for his own life. This, in process of time, introduced such trouble and mischief, that, after two hundred years, necessity discovered a method, by law, for a tenant in tail to alien.

"In like manner, by the ancient common law, freeholds could not pass from one to another but by matter of record, or solemn livery of seisin. Against this, however, uses were invented, and grew common and almost universal, in destruction of the ancient common law in that point. But, in time, the numerous inconveniences of this being found by experience, the statute of 27. H. VIII. c. 10. was made to restore the ancient common law, in this particular, as expressly appears by the preamble of the statute itself. Of the same truth, an infinity of other examples might be produced; but these shall, at present, suffice."v

We have mentioned the common law, as a law which is unwritten. When we assign to it this character, we mean not that it is merely oral, and transinitted from age to age merely by tradition. It has its monuments in

v 3. Rep. Pref. 18.

writing; and its written monuments are accurate and authentick. But though, in many cases, its evidence rests, yet, in all cases, its authority rests not, on those written monuments. Its authority rests on reception, approbation, custom, long and established. The same principles, which establish it, change, enlarge, improve, and repeal it. These operations, however, are, for the most part, gradual and imperceptible, partial and successive in a long tract of time.

It is the characteristick of a system of common law, that it be accommodated to the circumstances, the exigencies, and the conveniencies of the people, by whom it is appointed. Now, as these circumstances, and exigencies, and conveniencies insensibly change; a proportioned change, in time and in degree, must take place in the accommodated system. But though the system suffer these partial and successive alterations, yet it continues materially and substantially the same. The ship of the Argonauts became not another vessel, though almost every part of her materials had been altered during the course of her voyage.

Again; we are taught both by observation and by experience, that the farther laws reach from their original institutions, the more extensive and the more numerous they become. In the first association of a community, their prospect is not enlarged, their wants are comparatively few but as the society increases, their views expand, and their wishes multiply: what is the consequence? New laws and provisions, suited to the growing multitude of successive exigencies, must be made. The system, of course, becomes larger and more complex.

The same principle of accommodation in a system of common law, will adjust its improvement to every grade and species of improvement made by the people, in consequence of practice, commerce, observation, study, and refinement. As the science of legislation is the most noble, so it is the most slow and difficult of sciences. The jurisprudence of a state, willing to avail itself of experience, receives additional improvement from every new situation, to which it arrives; and, in this manner, attains, in the progress of time, higher and higher degrees of perfection, resulting from the accumulated wisdom of ages. The illustrious legislators, who have illuminated the political world, such as Solon, Numa, Lycurgus, collected the customs which they found already adopted, and disposed them regularly, with the necessary amendments and illustrations.

The same principle of accommodation, which we have already traced in so many directions, may be traced in still one direction more. It silently and gradually introduces; it silently and gradually withdraws its customary laws. Disuse may be justly considered as the repeal of custom. Laws, which are long unobserved in practice, become laws, which are antiquated in theory. "On strong grounds this rule is received, that laws may be abrogated, not only by the express declaration of the legislature, but, through desuetude, by the tacit consent of all." A law ought not, indeed, to be presumed obsolete upon slight pretences; but, on the other hand, a total disuse, for a long period of time, may be justly considered as a sufficient reason for not carrying into effect a disrespected and neglected ordinance.

W

w D. L. 1. t. 3. 1. 32. p. 1.