BESIDES these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde, with some others of ancient date; whose treatises are cited as authority, and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and

do not entirely depend on the strength of their quota[73] tions from older authors, is the same learned judge we

have just mentioned, sir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such 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 ancient reports and year books, but greatly defective in methods. The second 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 decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested

volumes were determined; viz. queen Elizabeth, king James, and king Charles the first; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.

s It is usually cited either by the name of fd. Litt. or as 1 Inst.

t These are cited as 2, 3, or 4 Inst. without any author's name. An honorary distmetion, which, we observed, 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 Siderfin, and the like.

for general use in the authoritative writings of the venerable of the law.

sages

:

THE Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest" will fully justify our practice, in making it of equal authority with, when it is not contradicted by the written law. "For since, 66. says Julianus, the written law binds us for no other reason "but because it is approved by the judgment of the people, "therefore those laws which the people have approved "without writing ought also to bind every body. For "where is the difference, whether the people declare [74] "their assent to a law by suffrage, or by a uniform

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course of acting accordingly?" Thus did they reason while Rome had some remains of her freedom; but when the imperial tyranny came to be fully established, the civil laws speak a very different language. "Quod principi pla"cuit (6) legis habet vigorem, cum populus ei et in eum omne "suum imperium et potestatem conferat," says Ulpian.

(6) This is the first sentence of the definition of a constitution in the beginning of the Institutes. It ought to be cited at length, that it may receive the execration it deserves. It is no wonder from this specimen, that the civil law should have experienced such protection and patronage from all the despotic governments of Europe, and such opposition and detestation from the sturdy English barons.

CONSTITUTIO.

Sed et quod principi placuit, legis habet vigorem: quum lege regia, que de ejus imperio lata est, populus ei, et in eum omne imperium suum et potestatem concedat. Quodcunque ergo imperator per epistolam constituit; vel cognoscens decrevit, vel edicto præcepit, legem esse constat; hæc sunt, quæ constitutiones appellantur. Planè ex his quædam sunt personales, quæ nec ad exemplum trahuntur, quoniam non hoc princeps vult, nam quod alicui ob meritum indulsit, vel si quam pœnam irrogavit, vel si cui sine ex-emplo subvenit, personam non transgreditur. Aliæ autem, quum generales sint, omnes procul dubio tenent. Inst. 1, 2. 6.

« Imperator solus et conditor et interpres legis existimatur," says the code. And again, "sacrilegii instar est rescripto "principis obviari y." And indeed it 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 consent of the people (7).

II. THE second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts.

(7) Lord chief justice Wilmot has said, that "the statute law is the "will of the legislature in writing; the common law is nothing else "but statutes worn out by time. All our law began by consent of the “legislature, and whether it is now law by usage or writing is the "same thing. (2 Wils. 348.) And statute law and common law both "originally flowed from the same fountain.” (Ib. 350.) And to the same effect lord Hale declares, "that many of those things that we "now take for common law, were undoubtedly acts of parliament, "though now not to be found of record." (Hist. Com. Law, 66.) Though this is the probable origin of the greatest 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, sine scripto jus venit, quod usus approbavit, nam diuturni mores consensu utentium comprobati legem imitantur. (Inst. 1, 2. 9.) Of this nature in this country is the law of the road, viz. that horses and carriages should respectively keep the left side of the road, and consequently in meeting should pass each other on the whip hand. This law has not been enacted by statute, and is so modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience discovered the necessity of it, and the judges have so far confirmed it, as to declare frequently at nisi prius, that he who disregards this salutary rule is answerable in damages for all the consequences. The action, in which this rule is applied, viz. for negligently driving a carriage, by which any one is injured, is as ancient as the common law; but the uniform determination of the judges, that the non-observance of this rule is negligence, is of modern date:

THESE particular customs, or some of them, are without doubt the remains of that multitude of local customs beforementioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and 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 contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament.

SUCH is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was also general till the Norman conquest) which ordains, among other things, that not the eldest son only of the father shall [75] succeed to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord. Such is the custom that prevails in divers ancient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, 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 shall be endowed of one third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors. Such likewise 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 shewn, depends entirely upon immemorial and established usage. Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans,

z Mag. Cart. 9 Hen. III. c. 9.

1 Edw. III. st. 2. c. 9. 14 Edw. III. st.

1. c. 1. and 2 Hen. IV. c. 1,

and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage ; though the customs of London are also confirmed by act of parliament a.

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, 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 transactions: for it is a maxim of law, that " cuilibet in "sua arte credendum est (8).”

THE rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.

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As to gavelkind, and borough-english, the law takes particular notice of them, and there is no occasion to

a 8 Rep. 126. Cro. Car. 347.

b Winch. 24.

e Co. Litt. 175.

(8) The lex mercatoria, or the custom of merchants, like the lex et consuetudo parliamenti, describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land, as the laws relating to marriage or murder. But the expression has frequently led merchants to suppose, that all their new fashions and devices immediately become the law of the land: a notion which, perhaps, has been too much encouraged by the courts. Merchants ought to take their law from the courts, and not the courts from merchants and when the law is found inconvenient for the purposes of extended commerce, application ought to be made to parliament for redress. This is agreeable to the opinion of Mr. justice Foster, who maintains, that "the custom of merchants is the general law of the "kingdom, and therefore ought not to be left to a jury after it has "been settled by judicial determinations." 2 Bur. 1226.