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 antient reports and year books, but greatly defective in method[1]. 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[2].
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 for general uſe in the authoritative writings of the venerable ſages of the law.
The Roman law, as practiſed in the times of it’s 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[3] will fully juſtify our practice, in making it of equal authority with, when it is not contradicted by, the written law. “For ſince, 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 their aſſent to a law by ſuffrage, or by a uniform
- ↑ It is usually cited either by the name of Co. Litt. or as 1 Inſt.
- ↑ These are cited as 2, 3, or 4 Inſt. without any author’s name. An honorary diſtinction, 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.
- ↑ Ff. 1. 3. 32.
