every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. (8)

(8) See Vol. iii. ch. 27.

63

SECTION THE THIRD.

OF THE LAWS OF ENGLAND.

THE municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.

THE lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions. (1)

WHEN I call those parts of our law leges non scriptae, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely 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 reason, 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; and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant b. But with us, at present, the Spelm. Gl. 362.

a Caes. de B. G. lib. 6. c. 13.

(1) In the Greek and Roman law, there was this distinction of written and unwritten law, constat autem jus nostrum, quo utimur, aut scripto, aut sine scripto, ut apud Græcos, των νομων οἱ μεν ἐγγραφοι οἱ δὲ ἀγραφοι. Sine scripto jus venit quod usus approbavit; nam diuturni mores, consensu utentium comprobati, legem imitantur, Inst.1.2. 3. & 9.

monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of [64] reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scriptae, because their original institution and authority are not set 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 scriptum to be that which is "tacito et illiterato hominum consensu et moribus "expressum."

OUR antient lawyers, and particularly Fortescue c, insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless, 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 customs with those that were before established: thereby in all probability improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, saith Lord Bacon ", are mixed as our language: and as our language is so much. the richer, the laws are the more complete.

AND, indeed, our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his dome-book, or liber judicialis, for the general use of the whole

kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, but is now unfortunately Lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. (2) Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred e. "Omnibus qui reipublicae praesunt etiam atque etiam "mando, ut omnibus aequos se praebeant judices, perinde ac in “judiciali libro (Saxonice, dom boc) scriptum habetur; nec quicquam formident quin jus commune, (Saxonice, folcɲihte) "audacter libereque dicant."

66

BUT the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse; or at least to be mixed and debased with other laws of a coarser alloy. So that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts. 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs.-2. The West-Saxon-Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks its original and

e c. 1.

(2) Mr. Turner is of opinion that the laws of Alfred, which are found in Wilkins' collection are the dome-book here mentioned; if they be so, they certainly do not form a code answering to our expectation of a selection and arrangement of the local customs of the several provinces for general use. Mr. Hallam observes truly, that they are neither numerous nor particularly interesting; and he calls it a loose report of late writers, that Alfred compiled any general code for the government of his kingdom. Hist. of Anglo-Sax. b. v. ch. 6. Midd. Ages. ch.viii. p. 1.

and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government.

i

Out of these three laws, Roger Hoveden g and Ranulphus Cestrensis inform us, king Edward the Confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manuscript chronicle assure us likewise, that this work was projected and begun by his grandfather king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces governed by peculiar customs. As in Portugal, under king Edward, about the beginning of the fifteenth century: in Spain, under Alonzo X., who, about the year 1 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 partidas': and in Sweden, about the same æra ; when a universal body of common law was compiled out of the particular customs established by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England TM.

BOTH these undertakings of king Edgar and Edward the Confessor, seem to have been no more than a new edition, or fresh promulgation of Alfred's code or dome-book, with such additions and improvements as the experience of a century and a half had suggested. For Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the Confessor is the restitutor. These, however, are the laws which our historians so often mention under the name of the laws of Edward the Confessor; which our ancestors struggled so hardly to maintain under the first princes of the