L A W. 
the feveral cafes, with a (hort fummary of the proceed¬ 
ings, which are preferved at large in the record ; the ar¬ 
guments on both fides, and the reafons the court gave for 
its judgment: taken down in (hort notes by perlons pre¬ 
lent at the determination. And thefe ferve as indexes 
to, and alfo to explain, the records ; which always, in mat¬ 
ters of confequence and nicety, the judges direct to be 
fearched. The reports are extant in a regular feries from 
the reign of king Edward II. inclufive ; and from his 
time to that of Henry VIII. were taken by the prothono- 
taries, or chief (bribes of the court, at the expenfe of the 
crown, and published annually, whence they are known 
under the denomination of the Year-books. And it as 
much to be wifhed that this beneficial cuftom had, under 
proper regulations, been continued to this day; for, though 
king James I. at the inftance of lord Bacon, appointed 
two reporters, with a handfome (Upend, for this purpofe; 
yet that wife inffitution was foon negle&ed ; and, from the 
reign of Henry VIII. to the prefent time, this talk has 
been executed by many private and contemporary hands; 
who, fotnetimes through hafte and inaccuracy, fometimes 
through miftake and want of (kill, have publilhed very 
crude and imperfeft (perhaps contradictory) accounts of 
one and the fame determination. Some of the molt valu¬ 
able of the ancient reports are thofe publilhed by lord 
chief-juftice Coke; a man of infinite learning in his pro- 
feflion, 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 Co highly 
efteemed, that they are generally cited without the au¬ 
thor’s name. His Reports, for inftance, are ftyled, “The 
Reports;” and in quoting them we ufually fay, i or 2 
Rep. not 1 or 2 Coke's Ref), as in citing other authors. 
The reports of judge Croke are alfo cited in a peculiar man¬ 
ner, by the name of thole princes in whofe reigns the cafes 
reported in his three volumes were determined ; viz. queen 
Elizabeth, king James, king Charles I. as well as by the 
number of each volume. For fometimes we call them 1, 
2, and 3, Cro. but more commonly Cro. Eliz. Cro. Jac. or 
Cro. Car. Thefe remarks are neceflary for the better un- 
derftanding the references contained in the various law- 
articles in this Encyclopaedia. 
Befides thefe reporters, there are alfo other authors to 
whom great veneration and refpect are paid by the Un¬ 
dents of the common law. Such are Glanvil and Bratton, 
Britton and Fleta, Littleton and Fitzherbert, with fome 
others of ancient date, whofe treadles are cited as autho¬ 
rity ; and are evidence that cafes have formerly happened 
in which Inch and fuch points were determined, which 
are now become fettled and firft principles. One of the 
laft of thefe methodical writers in point of time, whole 
works are of any intr.infic authority in the courts of juf- 
tice, and do not entirely depend on the ttrength of their 
quotations from older authors, .is the lame learned judge 
we have juft mentioned, fir Edward Coke; who hath writ¬ 
ten four volumes of Inftirutes, as he is pleafed to call 
them, though they have little of the inftitutional method 
to warrant 1 'uch a title. The firft volume is a very exten- 
five comment upon an excellent little treatife of tenures, 
.compiled by judge Littleton in the reign of Edward IV. 
This comment is a rich mine of valuable common-law 
learning, collected and heaped together from the ancient re¬ 
ports and year-books, but greatly defective in method. It 
is ufually cited either by the name of Co. Lilt, or as 1 lnjl. 
The Fecund -volume is a comment upon many old atts of 
parliament, without ar.y fyftematical order 5 the third, a 
'more methodical treatile of the pleas of the crown ; and 
the fourth, an account of the leveral lpecies of courts. 
Thefe are cited as 2, 3, or 4, Inji. without any author’s 
name. An honorary diftinttion, which, as we oblerved,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 Ventns , 4 Leonard, 1 Siderfn, and the like. 
And thus much for the firft ground and chief corner- 
Jtone of the laws of England ; which is generally inune- 
Vol.XII. No. 836. 
(3% 
morial cuftom, or common law, from time to time declared 
in the decifions of the courts of ju(lice. 
The Roman law, as praftifed in the times of its liber¬ 
ty, paid alfo 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 Di- 
geft will fully juftify our prattice in making it of equal 
authority with, when it is not contradicted by, the writ¬ 
ten law. “ For, fince (fays Julianus) the written law 
binds us for no other reafon but becaufe it is approved 
bv the judgment of the people, therefore thofe laws which 
the people have approved without writing ought alio to 
bind every body. For where is the difference, whether 
the people declare their affent to a law by fuffrage, or by 
a uniform courle of afting accordingly?” Thus did they 
reafon while Rome had lome remains of her freedom ; but, 
when, the imperial tyranny came to be fully eftablifbed, 
the civil laws lpeak a very different language. Quod prin- 
cipi placuit legis habet vigorem, cum populus. n et in turn omne 
J'uum imperium et potejlatem confer at , fays Ulpian. Imperator 
folus et conditor et interpres legis exijlimatur , fays the Code. 
And again, Sacrilegii infer ejl refchpto prineipis obvian. 
And indeed it is one of the charatteriftic marks of Bri- 
tHh liberty, that the 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 Eng¬ 
land are particular cufoms, or laws which affett only the 
inhabitants of particular diftrifts. 
Thefe particular cuttoms, or fome of them, are without 
doubt the remains of that multitude of local cuftoms be¬ 
fore mentioned, out of which the common law, as it now 
ftands, was collected, at firft by king Alfred, and after¬ 
wards by king Edgar and by Edward the Confeffor; each 
diftritt mutually facrificing fome of its own fpecial ufages, 
in order that the whole kingdom might enjoy the benefit 
of one uniform and uuiverfal fyftem of laws. But, for 
reafons that have been now long forgotten, particular 
counties, cities, towns, manors, and lordlhips, were in¬ 
dulged with the privilege of abiding by their own cuf¬ 
toms, in contradiltinftion to the reft of the nation at 
large: which privilege is confirmed to them by feveral 
ads of parliament. 
Such is the cuftom of gavelkind in Kent and fome other 
parts of the kingdom, (though perhaps it was alfo gene¬ 
ral till the Norman conquelt;) which ordains, among 
other things, that not the eldelt fon only of the father 
(hall fucceed to his inheritance, but all the Tons alike; 
and that, though the anceftor be attainted and hanged, 
yet the heir (hall fucceed to his eftate, without any efeheat 
to the -lord. Such is the cuftom that prevails in divers 
ancient boroughs, and therefore called borough Eng/rfi, 
that the youngeft fon (hall inherit the eftate, in preference 
to all his elder brothers. Such is the cuftom in other bo¬ 
roughs, that a widow (hall be entitled, for her dower, to 
all her hiufband’s lands; whereas at the common law (he 
(hall be endowed of one-third part only. Such alfo are 
the fpecial and particular cuftoms of manors, of which, 
every one has more or lefs, and which bind all the copy- 
hold tenants that hold of the laid manors. Such likewil'e 
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 (hovvn, de¬ 
pends entirely upon immemorial and eftablifiied ufage. 
Such, laltly, are many particular cuftoms within the city 
of London, with regard to trade, apprentices, widows, or¬ 
phans, and a variety of other matters. All thefe are con¬ 
trary to the general law of the land, and are good only 
by fpecial ulage ; though the cuftoms of London are alio 
confirmed by att of parliament. 
To this head may molt properly be referred a particular 
fyftem of cuftoms ufed only among one fet of the king’s 
(abjects, called the cuftom of merchants, or lex mercato- 
na-. which, however different from the general rules of 
5 B ~ the 
