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SECTION THE

THIRD.

OF THE LAWS OF ENGLAND.

THE

HE municipal law of England, or the rule of civil conduct prefcribed to the inhabitants of this kingdom, may with fufficient propriety be divided into two kinds: the lex non fcripta, the unwritten, or common law; and the lex fcripta, the written, or ftatute law.

THE lex non fcripta, or unwritten law, includes not only general cuftoms, or the common law properly fo called; but alfo the particular cuftoms of certain parts of the kingdom; and likewife thofe particular laws, that are by custom obferved only in certain courts and jurifdictions.

WHEN I call these parts of our law leges non fcriptae, I would not be understood as if all thofe laws were at prefent merely oral, or communicated from the former ages to the prefent folely by word of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional, for this plain reafon, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic druids committed all their laws as well as learning to memory 2; and it is faid of the primitive Saxons, here, as well as their brethren on the continent, that leges fola memoria et ufu retinebant. But, with us at prefent, the monuments and evidences of our legal customs are contained in the records of the feveral courts of justice, in books of a Caef. de b. G. lib. 6. ç. 13. b Spelm. Gl. 362.

reports

reports and judicial decifions, and in the treatises of learned fages of the profeffion, preferved and handed down to us from the times of higheft antiquity. However I therefore file these parts of our law leges non fcriptae, because their , original institution and authority are not fet down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non fcriptum to be that, which is "tacito et illiterato hominum con"fenfu et moribus expreffum."

OUR antient lawyers, and particularly Fortefcue ©, insist with abundance of warmth, that these customs are as old as the primitive Britons, and continued down, through the feveral mutations of government and inhabitants, to the prefent time, unchanged and unadulterated. This may be the cafe as to fome: but in general, as Mr. Selden in his notes obferves, this affertion must be understood with many grains of allowance; and ought only to fignify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtlefs by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own cuftoms with those that were before established: thereby in all probability improving the texture and wifdom of the whole, by the accumulated wifdom of divers particular countries. Our laws, faith lord Bacon, are mixed as our language: and as our language is fo much the richer, the laws are the more complete.

AND indeed our antiquaries and early hiftorians do all pofitively affure us, that our body of laws is of this compounded nature. For they tell us that in the time of Alfred the local cuftoms of the feveral provinces of the kingdom were grown fo various, that he found it expedient to compile his domebook, or liber judicialis, for the general use of the whole king-. See his propofals for a digest.

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dom.

dom. This book is faid to have been extant fo late as the reign of king Edward the fourth, but is now unfortunately loft. It contained, we may probably fuppofe, the principal maxims of the common law, the penalties for mifdemefnors, and the forms of judicial proceedings. Thus much may at leaft be collected from that injunction to obferve it, which we find in the laws of king Edward the elder, the fon of Alfred. "Omnibus qui reipublicae praefunt etiam atque etiam «mando, ut omnibus aequos fe praebeant judices, perinde ac in "judiciali libro (Saxonice, dom-bec) fcriptum habetur: nec " quicquam formident quin jus commune (Saxonice, folcnihte) "audacter libereque dicant."

BUT the irruption and establishment of the Danes in England, which followed foon after, introduced new customs, and caufed this code of Alfred in many provinces to fall into difufe or at least to be mixed and deb..fed with other laws of a coarfer alloy. So that about the beginning of the eleventh century there were three principal systems of laws prevailing in different diftricts. 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and thofe bordering on the principality of Wales, the retreat of the antient Britons; and therefore very probably intermixed with the British or Druidical cuftoms. 2. The West-SaxonLage, or laws of the weft Saxons, which obtained in the counties to the fouth and weft of the island, from Kent to Devonshire. These were probably much the fame with the laws of Alfred above-mentioned, being the municipal law of the far most confiderable part of his dominions, and particularly including Berkshire, the feat of his peculiar refidence. 3. The Dane-Lage, or Danish law, the very name of which speaks it's original and compofition. This was principally maintained in the reft of the midland counties, and alfo on the eastern coaft, the part moft expofed to the vifits of that piratical people. As for the very northern provinces, they were at that time under a diftinct government f.

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OUT of these three laws, Roger Hoveden and Ranulphus Ceftrenfish inform us, king Edward the confeffor extracted one uniform law or digeft of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manuscript chronicle1 affure us likewise, that this work was projected and begun by his grandfather king Edgar. And indeed a general digeft of the fame nature has been conftantly found expedient, and therefore put in practice by other great nations, which were formed from an affemblage of little provinces, governed by peculiar cuftoms. As in Portugal, under king Edward, about the beginning of the fifteenth century *. In Spain under Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas1. And in Sweden, about the fame æra; when a univerfal body of common law was compiled out of the particular cuftoms eftablished by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England ".

BOTH these undertakings, of king Edgar and Edward the confeffor, seem to have been no more than a new edition, or - fresh promulgation, of Alfred's code or dome-book, with fuch additions and improvements as the experience of a century and an half had fuggested. For Alfred is generally ftiled by the fame hiftorians the legum Anglicanarum conditor, as Edward the confeffor is the reftitutor. Thefe however are the laws which our histories so often mention under the name of the laws of Edward the confeffor; which our ancestors ftruggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes fo frequently promised to keep and restore, as the most popular act they could do, when preffed by foreign emergencies or domeftic difcontents. These are the laws, that fo vigorously with

g in Hen. II.

in Edw. Confeffor.

i in Seld, ad Eadmer. 6.

k Mod. Un. Hift. xxii. 135.

1 Ibid. xx. 211.

m Ibid. xxxiii, 21. 58.

3

ftood

ftood the repeated attacks of the civil law; which established in the twelfth century a new Roman empire over most of the states of the continent: ftates that have loft, and perhaps upon that account, their political liberties; while the free conftitution of England, perhaps upon the fame account, has been rather improved than debafed. Thefe, in fhort, are the laws which gave rife and original to that collection of maxims and customs, which is now known by the name of the common law. A name either given to it, in contradiftinction to other laws, as the ftatute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune or folcright mentioned by king Edward the elder, after the abolition of the feveral provincial customs and particular laws beforementioned.

BUT though this is the moft likely foundation of this collection of maxims and cuftoms, yet the maxims and cuftoms, fo collected, are of higher antiquity than memory or history can reach (1): nothing being more difficult than to afcertain the precife beginning and first spring of an antient and long established cuftom. Whence it is that in our law the goodness of a custom depends upon it's having been used time out of mind; or, in the folemnity of our legal phrase, time whereof the memory of man runneth not to the contrary (2). This it is that gives it it's weight and authority and of this nature are the maxims and customs which compose the common law, or lex non feripta, of this kingdom.

THIS unwritten, or common, law is properly diftinguishable into three kinds; 1. General customs; which are the univerfal rule of the whole kingdom, and form the common law, in it's ftricter and more ufual fignification. 2. Parti

(1) What Lord Hale fays is undoubtedly true, that "the original of the common law is as undifcoverable as the head of "the Nile." Hift. Com. Law, 55.

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(2) See note 10, p. 76.

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