The law of the sea legal beadles say that when case law fails then one must turn to the colonial “Old Authorities”; Sir William Blackstone is considered an old authority on the Laws of England; he states in Commentaries on the Laws of England Volume I (of 4 volumes):
ON THE STUDY OF THE LAW; page 36
His attention should be engaged, like that of the readers in Fortescue’s inns of chancery “in tracing out the originals, and, as it were, the elements of the law.”
For if, as Justinian has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence.
These originals should be traced to their fountains, as well as our distance will admit to the customs of the Britons and Germans, as recorded by Ceasar and Tacitus ; to the codes of the northern nations on the continent, and more especially to those of our own Saxon princes ; to the rules of the Roman law either left here in the days of Papinian, or imported by Vacarius and his followers ; but, above all, to that inexhaustible reservoir of [ 6 ] legal antiquities and learning, the feodal law, or, as Spelman has entitled it, the law of nations in our western orb.
These primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries ; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities ; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom.
If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature and the law of God. Neither could any other law possibly exist ; for a law always supposes some superior who is to make it ; and in a state of nature we are all equal, without any other superior but him who is the Author of our being. But man was formed for society ; and, as is demonstrated by the writers on this subject , is neither capable of living alone, nor indeed has the courage to do it.
Sir William Blackstone states:
“However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called ” the law of nations:” which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any ; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities : in the construction also of which compacts, we have no other rule to resort to, but the law of nature ; being the only one to which all the communities are equally subject : and, therefore, the civil law very justly observes, that quod naturalis ratio inter omnes homines constituity vacatur Jus gentium.”
– Commentaries on the Laws of England Volume I; On The Nature of Laws in General; page 44
QUOD NATURALIS RATIO INTER OMNES HOMINES CONSTITUIT, VOCATUR JUS GENTIUM. That which natural reason has established among all men is called the “law of nations.” 1 Bl.Comm. 43; Dig. 1, 1, 9; Inst. 1, 2, 1.
However, I therefore style these parts of our own leges non scriptae, because their original institution and authority are not set down in writings as acta of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.