cafes, with a fhort fummary of the proceedings, which are preferved at large in the record; the arguments on both fides and the reafons the court gave for it's judgment; taken down in fhort notes by perfons prefent at the determination. And these serve as indexes to, and alfo to explain, the records; which always, in matters of confequence and nicety, the judges direct to be fearched. The reports are extant in a regular feries from the reign of king Edward the fecond inclufive; and from his time to that of Henry the eighth were taken by the prothonotaries, or chief fcribes of [72 1 the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though king James the firft at the inftance of lord Bacon appointed two reporters with a handfome ftipend for this purpose, yet that wife inftitution was foon neglected, and from the reign of Henry the eighth to the prefent time this taik has been executed by many private and contemporary hands; who fometimes through haste and inaccuracy, fometimes through mistake and want of fkill, have published very crude and imperfect (perhaps contradictory) accounts of one and the fame determination. Some of the most valuable of the antient reports are those published by lord chief justice Coke; a man of infinite learning in his profeffion, though not a little infected with the pedantry and quaintnefs of the times he lived in, which appear ftrongly in all his works. However his writings are fo highly esteemed, that they are generally cited without the author's name'. BESIDES thefe reporters, there are alfo other authors, to whom great veneration and refpect is paid by the ftudents Pat. 15 Jac. I. p. 18. 17Rym. 26. • His reports, for inftance, are ftiled, xar' sžoynu, the reports; and in quoting them we ufually fay, 1 or 2 Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of judge Croke are alfo cited in a peculiar manner, by the name of thofe princes, in whofe reigns the cafes reported in his three volumes of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde, with fome others of antient date; whofe treatises are cited as authority, and are evidence that cafes have formerly happened in which fuch and such points were determined, which are now become fettled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinfic authority in the courts of juftice, and do not entirely depend on the ftrength of their quotations from older authors, is the [73] fame learned judge we have just mentioned, fir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the inftitutional method to warrant fuch a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in methods. The fecond volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts'. AND thus much for the first ground and chief corner stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decifions of the courts of justice; which decifions are preferved among our public records, explained in our reports, and digested for general ufe in the authoritative writings of the venerable fages of the law. THE Roman law, as practifed in the times of it's liberty, paid also a great regard to custom; but not fo much as our It is ufually cited either by the name of Co. Litt. or as i Inft. These are cited as 2, 3, or 4 Inft. without any author's name. An hono. tary diftinction, which, we obferved, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1 Sidersin, and the like. law: law it only then adopting it, when the written law was deficient. Though the reafons alleged in the digeft" will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "For fince, fays Julianus, the written law binds us for no "other reafon but because it is approved by the judgment of "the people, therefore thofe laws which the people have ap"proved without writing ought also to bind every body. For "where is the difference, whether the people declare their "affent to a law by fuffrage, or by a uniform courfe of act- [74] "ing accordingly?" Thus did they reafon while Rome had fome remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language." Quod principi placuit (6) legis habet vigorem, "cum populus ei et in eum omne fuum imperium et poteftatem con"ferat," fays Ulpian ". " Imperator folus et conditor et inter"pres legis exiftimatur," says the code *. And again, “ facri"legii inflar eft refcripto principis obviari." And indeed it (6) This is the first sentence of the definition of a conftitution in the beginning of the Inftitutes. It ought to be cited at length, that it may receive the execration it deferves. It is no wonder from this fpecimen, that the civil law fhould have experienced fuch protection and patronage from all the defpotic governments of Europe, and fuch oppofition and deteftation from the sturdy English barons. CONSTITUTIO. Sed et quod principi placuit, legis habet vigorem: quum lege regia, qua de ejus imperio lata eft, populus ei, et in eum omne imperium fuum et poteftatem concedat. Quodcunque ergo imperator per epiftolam conftituit; vel cognofcens decrevit, vel edicto præcepit, legem effe conftat; hæc funt, quæ conftitutiones appellantur. Planè ex his quædam funt perfonales, quæ nec ad exemplum trahuntur, quoniam non hoc princeps vult, nam quod alicui ob meritum indulfit, vel fi quam pœnam irrogavit, vel fi cui fine exemplo fubvenit, perfonam non tranfgreditur. Alia autem, quum generales fint, omnes procul dubio tenent. Inft. 1, 2. 6. is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary confent of the people (7). II. THE fecond branch of the unwritten laws of England are particular cuftoms, or laws which affect only the inhabitants of particular diftricts. THESE particular cuftoms, or fome of them, are without doubt the remains of that multitude of local customs beforementioned, out of which the common law, as it now ftands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confeffor: each district mutually facrificing fome of it's own fpecial ufages, in order that the whole kingdom might enjoy the benefit of one uniform and “ (7) Lord chief justice Wilmot has faid, that the statute law "is the will of the legislature in writing; the common law is no"thing else but ftatutes worn out by time. All our law began by " content of the legislature, and whether it is now law by ufage or writing is the fame thing. (2 Wilf. 348.) And ftatute law, "and common law both originally flowed from the fame foun"tain." (lb. 350.) And to the fame effect lord Hale declares, that many of thofe things that we now take for common law, "were undoubtedly acts of parliament, though now not to be "found of record." (Hift. Com. Law, 66.) Though this is the probable origin of the greatcft part of the common law, yet much of it certainly has been introduced by usage, even of modern date, which general convenience has adopted. As in the civil law, fine fcripto jus venit, quod ufus approbavit, nam diuturni mores confenfu utentium comprobati legem imitantur. (Inft. 1, 2. 9.) Of this nature in this country is the law of the road, viz. that horfes and carriages fhould pafs each other on the whip hand. This law has not been enacted by ftatute, and is fo modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience difcovered the neceffity of it, and our judges have fo far confirmed it, as to declare frequently at nifi prius, that he who difregards this falutary rule is anfwerable in damages for all the confequences. univerfal universal system of laws. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradiftinction to the rest of the nation at large: which privilege is confirmed to them by feveral acts of parliament 2. SUCH is the custom of gavelkind in Kent and fome other parts of the kingdom (though perhaps it was also general till the Norman conqueft) which ordains, among other things, that not the eldest fon only of the father shall fucceed to his [75] inheritance, but all the fons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his eftate, without any efcheat to the lord.-Such is the cuftom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest fon fhall inherit the eftate, in preference to all his elder brothers.-Such is the custom in other boroughs that a widow shall be entitled, for her dower, to all her husband's lands; whereas at the common law she fhall be endowed of one third part only.Such alfo are the special and particular cuftoms of manors, of which every one has more or lefs, and which bind all the copyhold and customary tenants that hold of the faid manors.-Such likewife is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns, the right of holding which, when no royal grant can be fhewn, depends entirely upon immemorial and established ufage.-Such, laftly, are many particular cuftoms within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All thefe are contrary to the general law of the land, and are good only by fpecial ufage; though the customs of London are also confirmed by act of parliamenta. To this head may moft properly be referred a particular system of customs used only among one set of the king's z Mag. Cart. 9 Hen. III. c. 9.1 Edw. III. ft. 2. c. 9.-14 Edw. III. ft. 1. c. 1.-and 2 Hen. IV. c. I. G 4 fubjects, |