breach of his oath and the law. For herein there is nothing repugnant to natural justice; though the artificial reafon of it, drawn from the feodal law, may not be quite obvious to every body. And therefore, on account of a supposed hardship upon the half brother, a modern judge might wifh it had been otherwife fettled; yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and feife any lands that were purchased by his younger brother, no fubfcquent judges would fcruple to declare that fuch prior determination was unjuft, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge are not always convertible terms, or one and the fame thing; fince it fometimes may happen that the judge may mistake the law. Upon the whole however, we may take it as a general rule, “that the "decisions of courts of juftice are the evidence of what is com"mon law" in the fame manner as, in the civil law, what the emperor had once determined was to ferve for a guide for the future".

THE decifions therefore of courts are held in the highest regard, and are not only preferved as authentic records in the treafuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are hiftorics of the feveral cafes, with a short fummary of the proceedings, which are preserved at large in the record; the arguments on both fides; and the reasons the court gave for it's judgment; taken down in fhort notes by perfons prefent at the determination. And these ferve 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 ferics from the reign of king Edward the fecond inclufive; and from his time to that of Henry the

"Si imperialis majeftas caufam cognitiona- " qui fub noftro imperio funt, feiant hane Je liter examinaverit, et partibus cominus confti- " legem, non folum illi caufae pro qua produɛa *atis fententiam dixerit, omnes omnino judices,

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cft, fed et in omnibus fi»nilibus." C. 1. 14. 12.

the eighth were taken by the prothonotaries, or chief scribes of the court, at the expence 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 first 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 talk has been executed by many private and cotemporary hands; who fometimes through hafte and inaccuracy, fometimes through miftake and want of fkill, have published very crude and imperfect (perhaps contradictory) accounts of one and the fame deterinination. Some of the moft valuable of the antient reports are thofe 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 firongly in all his works. However his writings are fo highly cfteemed, 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 of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with fome others of antient date, whose treatifes are cited as authority; and are evidence that cafes have formerly happened in which fuch and fuch points were determined, which are now become fettled and firft pr...ciples. One of the laft of thefe methodical writers in point of time, whofe 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,

r His reports, for influnce, pre filed, Ket Exochen, the revert; and in quoting the we maally fay, 1 or 2 Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reForts of judge Cloke are alfo cited in a peculiar manner, by the name of those princes, in whole reigns the cafes reported in h

three volumes were determined; viz. green Elizabeth, King James, and king Charles the trit, as well as by the number of cach volume. For fometimes we call them 1, 2, and Cro. but more commonly Cro. Eliz. C. Jac. and Co. C..

authors, is the fame learned judge we have juft mentioned, fir Edward Coke; who hath written four volumes of inftitutes, as he is pleased to call them, though they have little of the inftitutional method to warrant fuch a title. The firft 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 acis of parliament, without any fyftematical order; the third a more methodical treatife of the pleas of the crown; and the fourth an account of the feveral fpecies of courts'.

AND thus much for the firft ground and chief corner stone of the laws of England, which is general immemorial cuftom, or common law, from time to time declared in the decifions of the courts of juftice; which decifions are preferved among our public records, explained in our reports, and digested for general use 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 cuftom; but not fo much as our 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 ap"proved by the judgment of the people, therefore thofe laws "which the people have approved without writing ought alfo to "bind every body. For where is the difference, whether the "people declare their aflent to a law by fuffrage, or by a uniform "courfe

K

s It is ufually cited either by the name of Co. Litt. or as i Infl.

t These are cited as 2, 3, or 4 Init. with out any author's name. An honorary dittination, 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 a Ventris, 4 Leonard, Siderfin, and the like.

u Ff. 1. 3. 34.

"courfe of ading 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 fpeak a very different language. Quod principi placuit legis habet vigorem, "cum populus ci et in eum omne juum imperium et poteftatem confe"rat," fays Ulpian". Imperator folus et conditor et interpres legis exiftimatur," fays the code. And again, facrilegii in tar eft refcripto principis obviare."

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And indeed it is one of the characteristic marks of English liberty, that our common law depends upon cuftom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary confent of the people.

II. THE fecond branch of the unwritten laws of England are particular customs, 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 cuftoms before-mentioned, 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 diftrict mutually facrificing fome of it's own fpecial ufages, in order that the whole kingdom might enjoy the benefit of one uniform and univerfal fyftem of laws. But, for reafons that have been now long forgotten, particular counties, cities, towns, manors, and lordfhips, were very early indulged with the privilege of abiding by their own customs, in contradifinction to the rest of the nation at large: which privilege is confirmed to them by feveral acts of parliament2.

Sic is the cuftom of gavelkind in Kent and fome other parts of the kingdom (though perhaps it was alfo general till the Norman conquca) which ordains, among other things, that not

the eldest fon only of the father fhall fucceed to his 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 custom 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 cuftom in other boroughs that a widow fhall be entitled, for her dower, to all her hufband's lands; whereas at the common law fhe fhall be endowed of one third part only. -Such alfo are the fpecial and particular cuítoms of manors, of which every one has more or lefs, and which bind all the copyhold-tenants that hold of the faid manors.-Such likewife is the cuftom of holding divers inferior courts, with power of trying caufes, in cities and trading towns; the right of holding which, when no royal grant can be fhewn, depends entirely upon immemorial and cftablifhed ufage.-Such, laftly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by fpecial ufage; though the cuftoms of London are alfo confirmed by act of parliament'.

To this head may moft properly be referred a particular fyftem of customs ufed only among one fet of the king's fubjects, called the custom of merchants or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial tranfactions: for it is a maxim of law, that "cuilibet in fua arte "credendum eft."

THE rules relating to particular cuftoms regard either the proof of their exiflence; their legality when proved; or their ufual method of allowance. And firft we will confider the rules

of proof.

A s

K

aS Rep. 126. Cro. Car

b Winch. 24.