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Show 212 DESPOTISM erally recognized as a ju~t found~tion_ o_f all _Jaw." 11 A g reat part of the colllmon Ja\~ 1tsell, 111 a_ll Jts relation::; has little other foundation than th1s same cu:;ton;." "'!'hat villdnage which is said to be t he prototype of slavery, had no other origin than an~ic nt custom." And on the strength of these observatiOns, he held slavery to be legalized in Antigua by a usage not two hundred years old~ (since Antigua wa~ first •cttlcd in 1632,) and though the local statutes of ihc hiland, coinciding in this particular with the metropolitan authority, expressly denied any validity to a11y usage not conformable to the law of England! 'l'hese ideas, upon 'vhich Lord Stowell thus attempted to base the legality of negro slavery in the colonies, anti which would just as well have sustained it in England, though not unusual on both sides of the Atlantic, involve, however, a total ignorance or disregard of the perfectly well established doctrine of the E11glish courts as to the nature and origin of Ia\~. Ac~·ording to that doctrine, there are only two pos:>lblc sources of law; viz., 1st, enlightened reason, equity, natural justice; and 2dly, positive legiolat. ion. 'l1he character and force of law is never concPdcd to cu::itoms and usages unsustained by positive enactments, except so far as they appear to co:respond to the dictates of enlightened reason, equ>ty, and natural ju::;tice, and not to contradict any positive law. When the common lawyers first began t~ consider law in a systematic and scientific point ot view, they _found, indeed, the institutions of the state, a11d the proceedings, maxims, and mctho.di:! of .the court:$, to be principally based upon certain anc1ent u:mgc::;, a~ to the origin of which no record or mc~110· rial existed. But whatever the historical fact m>ght have been, (as to which we have no resource beyond probable conjecture,) the English courts of common Jaw never based the authority of these ancient usages, institutions, and maxims on custom, or the mere lapse of time during whil:h they had prevailed, nor on the incouvcnience of disturbing them. On the other IN Ai\Il~IUCA. 213 !Jan?, they constantly represented these usages and mshtutwns, 1ncludmg a111ong the test the prcrogat. iv~s <:>f .the lung, the authonty of parlmment, the JUfiS~ICtiOn of the courts, the pnv!lcges of the peer::., tl~e :1gh ts of tl_JC commons, and the servitude of the vJiletns, as bcmg founded, in the words of Lord Mansfield, on." positive law "- that is, on formal statu tes and prcc1se enactments, of which however from the lap~e of time and th~ dilapidatio1~ of records, no memonal any longer existed, except jn the general usage of the . realm and the memory of the courts. But thus to Jnvcs.t. a usage or institution with the character of "posttive Jaw," (which the courts held ~hen~sel~es b<;>un~ to. carry out without stopping to lllqrure mt~ 1ts JUSti~e, expediency, or reasonableness, of wh1ch the lcgJslature was admitted to be the sole a~thoritative judge,) that usage or institution must, l~ke the peerage, villeinage, or the rights of primo~ erutu re, be traceable back to a time beyond the period of legal memo~y, which period. was held by the courts to commence w1th the reign of Richard I., A. D. 1189, very few record< of au earlier dale being in existence. As to customs and usac:rcs of a more modern date, the origin of which c~uld be S~JOwn, lltey m~st depend exclusively for their sanehan .upon thc1r rcasonablene~~,-tbei1· conformity, t.hat Is, to .natur~l equity and justice, and to an enlightened v1cw of the public welfare; and it was still further necessary that they should not conflict with any rights already established by law, that is, that they should conform to the «cncral policy of the realm. o Undoubtedly the modern common law consh;ts to a ~~ca:. e:ten~ of 1.nodcrn cu~toms introduced by the biO\\~Ilo exigencies of society, aud confirmed and ~anctwned by the courts. Nobody ever did more uor ll~deed any thing ncar so much, as Lord l\Ian;ticld hl~n~?lf, thus to. amplify and enrich the common law, graltu~g upon 1t the best portio11s of the civil law and ot the commercial codes of modern Europe. But |
