nt rule, which it is not in the breast of any
subsequent judge to alter or vary from, according to his private
sentiments: he being sworn to determine, not according to his own
private judgment, but according to the known laws and customs of the
land; not delegated to pronounce a new law, but to maintain and
expound the old one. Yet this rule admits of exception, where the
former determination is most evidently contrary to reason; 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[p]. 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.

[Footnote n: _cap._ 8.]

[Footnote o: Seld. review of Tith. c. 8.]

[Footnote p: Herein agreeing with the civil law, _Ff._ 1. 3. 20, 21.
"_Non omnium, quae a majoribus nostris constituta sunt, ratio reddi
potest. Et ideo rationes eorum quae constituuntur, inquiri non
oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"]

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 (i.e. where