the rules of descent, the different methods of acquiring property, the various forms required for rendering contracts valid; in all which points it differs from the civil law. Thus, by the common law, lands descend to the eldest son, to the exclusion of all his brothers and sisters; whereas, by the civil law, they are equally divided between all the children: by the common law, property is transferred by writing; but by the civil law, tradition, or actual delivery, is moreover necessary, &c.

The source from which the decisions of the common law are drawn, is what is called præteritorum memoria eventorum, and is found in the collection of judgments that have been passed from time immemorial, and which, as well as the proceedings relative to them, are carefully pre served under the title of Records. In order that the principles established by this series of judgments may be known, extracts of them are, from time to time, published under the name of Reports; and these reports reach, by a regular series, so far back as the reign of Edward the second, inclusively.

Besides this collection, which is pretty voluminous, there are also some ancient authors of great authority among lawyers; such as Glanvil, who wrote under the reign of Henry the second; Bracton, who wrote under Henry the third; Fleta, and Lyttelton. Among more modern authors, is sir Edward Coke, lord chief justice of the king's bench under James the first, who has written four books of Institutes, and is at present the oracle of the common law.

The common law moreover comprehends some particular customs, which are fragments of the ancient Saxon laws, escaped from the disaster of the conquest; such as that called gavelkind, in the county of Kent, by which lands are divided equally between the sons; and that called borough English, by which, in some particular districts, lands descend to the youngest son.

The civil law, in the few instances where it is admitted, is likewise comprehended under the underwritten law, because it is of force only so far as it has been authorised by immemorial custom. Some of its principles are followed in the ecclesiastical courts, in the courts of admiralty, and in the courts of the two universities; but it is there nothing more than lex sub lege graviori; and these

different courts must conform to acts of parliament, and to the sense given to them by the courts of common law; being moreover subjected to the controul of the latter.

Lastly, the written law is the collection of the various acts of parliament, the originals of which are carefully preserved, especially since the reign of Edward the third. Without entering into the distinctions made by lawyers with respect to them, such as public and private acts, declaratory acts, or such as are made to extend or restrain the common law, it will be sufficient to observe, that being the result of the united wills of the three constituent parts of the legislature, they, in all cases, supersede both the common law and all former statutes, and the judges must take cognizance of them, and decide in conformity to them, even though they had not been alleged by the parties.

The different courts for the administration of justice, in England, are,

I. The court of common pleas. It formerly made a part of the aula regis; but as this latter court was bound by its institution always to follow the person of the king, and private individuals experienced great difficulties in ob taining relief from a court that was ambulatory, and always in motion, it was made one of the articles of the great charter, that the court of common pleas should thenceforwards be held in a fixed place; and since that time it has been seated at Westminster. It is composed of a lord chief justice, with three other judges; and ap peals from its judgments, usually called writs of errour, are brought before the court of king's bench.

f

II. The court of exchequer. It was originally established to determine those causes in which the king, or his servants, or accomptants were concerned, and has gradually become open to all persons. The confining the power of this court to the above class of persons, is therefore now a mere fiction; only a man must, for form's sake, set forth in his declaration that he is debtor to the king, whether he be so or no. The court of exchequer is com

e Unless they be private acts.

f Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.-Magna Charta, cap. 11.

G

posed of the chief baron of the exchequer, and three other judges.

III. The court of king's bench forms that part of the aula regis which continued to subsist after the dismembering of the common pleas. This court enjoys the most extensive authority of all other courts: it has the superintendance over all corporations, and keeps the various jurisdictions in the kingdom within their respective bounds. It takes cognizance, according to the end of its original institution, of all criminal causes, and even of many causes merely civil. It is composed of the lord chief justice of the court of king's bench, and three other judges. Writs of errour against the judgments passed in that court in civil matters, are brought before the court of the exchequer chamber, or, in most cases, before the house of peers.

IV. The court of the exchequer chamber. When this court is formed by the four barons, or judges of the exchequer, together with the chancellor and treasurer of the same, it sits as a court of equity: a kind of institution on which a few words will be mentioned hereafter. When it is formed by the twelve judges, to whom sometimes the lord chancellor is joined, its office is to deliberate, when properly referred and applied to, and give an opinion on important and difficult cases, before judgments are passed in those courts where the causes are depending.

CHAP. X.

OF THE LAW IN REGARD TO CIVIL MATTERS, THAT IS OBSERVED IN ENGLAND.

CONCERNING the manner in which justice is administered in civil matters in England, and the kind of law that obtains in that respect, the following observations may be made.

In the first place, it is to be observed, that the beginning of a civil process in England, and the first step usu. ally taken in bringing an action, is the seizing by public

authority the person against whom that action is brought, This is done with a view to secure such person's appearance before a judge, or at least make him give sureties for that purpose. In most of the countries of Europe, where the forms introduced in the Roman civil law, in the reigns of the latter emperors, have been imitated, a different method has been adopted to procure a man's appearance before a court of justice. The usual practice is to have the person sued summoned to appear before the court, by a public officer belonging to it, a week before-hand: if no regard is paid to such summons twice repeated, the plaintiff, or his attorney, is admitted to make before the court a formal reading of his demand, which is then granted him, and he may proceed to execution.a

In this mode of proceeding, it is taken for granted, that a person who declines to appear before a judge, to answer the demand of another, after being properly summoned, acknowledges the justice of such demand; and this supposition is very just and rational. However, the abovementioned practice of securing before-hand the body of a person sued, though not so mild in its execution as that just now described, nor even more effectual, appears more obvious, and is more readily adopted, in those times when courts of law begin to be formed in a nation, and rules of distributive justice to be established; and it is followed in England as a continuation of the methods that were adopted when the English laws were as yet in their infancy.

In the times we mention, when laws begin to be formed in a country, the administration of justice between individuals is commonly lodged in the same hands which are intrusted with the public and military authority in the state. Judges invested with a power of this kind, like to carry on their operations with a high hand: they consider the refusal of a man to appear before them, not as being barely an expedient to avoid doing that which is just, but as a contempt of their authority: they of course look upon

A person against whom a judgment of this kind has been passed, which they call in France un jugement par défaut, may easily obtain relief: but as he now in his turn becomes in a manher the plaintiff, his deserting the cause, in this second stage of it, would leave him without remedy.

themselves as being bound to vindicate it; and a writ of capias is speedily issued to apprehend the refractory de fendant. A preliminary writ, or order, of this kind, be comes in time to be used of course, and as the first regular step of a law-suit; and thus it is, that in the English courts of law, if I am rightly informed, a writ of capias is either issued before the original writ itself, (which contains the summons of the plaintiff, and a formal delineation of his case) or is joined to such writ, by means of an ac etiam capias, and is served along with it. It may be remembered that, in England, the aula regis, over which the king himself presided, was originally the commou court of justice for the whole kingdom, in civil as well as criminal matters, and continued so till the court of common-pleas was in time separated from it.

In Rome, where the distribution of civil justice was at first lodged in the hands of the kings, and afterwards of the consuls, the method of seizing the person of a man against whom a demand of any kind was preferred, previously to any judgment being passed against him, was likewise adopted, and continued to be followed after the institution of the prætor's court, to whom the civil branch of the power of the consuls was afterwards delegated; and it lasted till very late times; that is, till the times when those capital alterations were made in the Roman civil law, during the reigns of the latter emperors, which gave it the form it now has in those codes or collections of which we are in possession.

A very singular degree of violence even took place in Rome, in the method used to secure the person of those against whom a legal demand was preferred. In England the way to seize upon the person of a man under such circumstances, is by means of an officer supplied with a writ or order for that purpose, supposed to be directed to him, or to the sheriff his employer, from the king himself. But in Rome, every one became a kind of public officer in his own cause, to assert the prætor's dignity; and, without any ostensible legal licence or badge of public authority, had a right to seize by force the person of his opponent, wherever he met him. The practice was, that the plaintiff, actor, first summoned the person sued, reum, with a loud voice, to follow him before the