breach of his oath and the law. For herein there is nothing repugnant to natural juſtice; though the reaſon 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 wiſh it had been otherwiſe ſettled; 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 ſeiſe any lands that were purchaſed by his younger brother, no ſubſequent judges would ſcruple to declare that ſuch prior determination was unjuſt, 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 ſame thing; ſince it ſometimes 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 juſtice are the evidence of what is common law:” in the ſame manner as, in the civil law, what the emperor had once determined was to ſerve for a guide for the future[1].
The deciſions therefore of courts are held in the higheſt regard, and are not only preſerved as authentic records in the treaſuries 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 hiſtories of the ſeveral caſes, with a ſhort ſummary of the proceedings, which are preſerved at large in the record; the arguments on both ſides; and the reaſons the court gave for it’s judgment; taken down in ſhort notes by perſons preſent at the determination. And theſe ſerve as indexes to, and alſo to explain, the records; which always, in matters of conſequence and nicety, the judges direct to be ſearched. The reports are extant in a regular ſeries from the reign of king Edward the ſecond incluſive; and from his time to that of Henry
- ↑ “Si imperialis majeſtas cauſam cognitionaliter examinaverit, et partibus cominus conſtitutis ſententiam dixerit, omnes omnino judices, qui ſub noſtro imperio ſunt, ſciant hanc eſſe legem, non ſolum illi cauſae pro qua producia eſt, ſed et in omnibus ſimilibus.” C. 1. 14. 12.
