r ordinance, but depend merely upon immemorial
usage, that is, upon common law, for their support.

SOME have divided the common law into two principal grounds or
foundations: 1. established customs; such as that where there are
three brothers, the eldest brother shall be heir to the second, in
exclusion of the youngest: and 2. established rules and maxims; as,
"that the king can do no wrong, that no man shall be bound to accuse
himself," and the like. But I take these to be one and the same thing.
For the authority of these maxims rests entirely upon general
reception and usage; and the only method of proving, that this or that
maxim is a rule of the common law, is by shewing that it hath been
always the custom to observe it.

BUT here a very natural, and very material, question arises: how are
these customs or maxims to be known, and by whom is their validity to
be determined? The answer is, by the judges in the several courts of
justice. They are the depositary of the laws; the living oracles, who
must decide in all cases of doubt, and who are bound by an oath to
decide according to the law of the land. Their knowlege of that law is
derived from experience and study; from the "_viginti annorum
lucubrationes_," which Fortescue[n] mentions; and from being long
personally accustomed to the judicial decisions of their predecessors.
And indeed these judicial decisions are the principal and most
authoritative evidence, that can be given, of the existence of such a
custom as shall form a part of the common law. The judgment itself,
and all the proceedings previous thereto, are carefully registered and
preserved, under the name of _records_, in publick repositories set
apart for that particular purpose; and to them frequent recourse is
had, when any critical question arises, in the determination of which
former precedents may give light or assistance. And therefore, even so
early as the conquest, we find the "_praeteritorum memoria eventorum_"
reckoned up as one of the chief qualifications of those who were held
to be "_legibus patriae optime instituti_[o]." For it is an
established rule to abide by former precedents, where the same points
come again in litigation; as well to keep the scale of justice even
and steady, and not liable to waver with every new judge's opinion; as
also because the law in that case being solemnly declared and
determined, what before was uncertain, and perhaps indifferent, is now
become a permane