the breaft of the judge. And law, without equity, though hard and difagreeable, is much more defirable for the publick good, than equity without law: Which would make every judge a legiflator, and introduce most infinite confufion; as there would then be almoft as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. SECTION 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 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 customs, or the common law, properly fo called; but alfo the particular cuftoms of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurifdictions. It is 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 present folely by word of mouth. 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, becaufe 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 a; and it is faid of the primitive Sax a Caef. de B. G. lib. 6 c. 13. ons ons 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 cuftoms are contained in the records of the feveral courts of juftice, in books of reports and judicial decifions, and in the treatifes of learned fages of the profeffion, preferved and handed down to us from the times of highest antiquity. However, I therefore ftyle thefe parts of our law leges non fcriptae, because their original inftitution 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. ufage, and by their univerfal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non fcriptum to be that, which is "tacito et illiterato "hominum confenfu et moribus expreffum." Our ancient lawyers, and particularly Fortefcue, infift 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 present 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 feems to be, that there never was any formal exchange of one fyftem of laws for another: Though doubtlefs, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they muft, have infenfibly 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, faith Lord Bacond, are mixed as our language: And, as our language is fo much the richer, the laws are the more complete. b Spelm. Gl. 362. c C. 17. See his propofals for a Digeft. And And indeed our antiquaries and early historians 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 dome book, or liber judicialis, for the general use of the whole kingdom. This book is faid to have been extant fo late as the reign of King Edward IV. but is now unfortunately loft. It contained, we may probably suppose, the principal maxims of the common law, the penalties for mifdemefnors, and the forms of judicial proceedings. 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. "Omnibus qui reipublicae praefunt "etiam atque etiam mando, ut omnibus aequos fe prae"beant judices, perinde ac in judiciali libro (Saxonice, "dom bec) fcriptum habetur: Nec quicquam formident " quin jus commune (Saxonice, folcrihte) audacter libere66 que dicant." But the irruption and eftablishment 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 debased with other laws of a coarfer alloy. So that about the beginning of the eleventh century there were three principal fyftems of laws, prevailing in different diftricts. 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 Weft Saxon Lage, 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 moft 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 e C. 1. which speaks its original and compofition. This wasprincipally maintained in the reft of the midland counties, and alfo on the eastern coaft, the part most exposed to the vifits of that piratical people. As for the very northern provinces, they were at that time under a diftinct government f. Out of these three laws, Roger Hoveden g and Ranulphus Ceftrenfis h inform us, king Edward the Confeffor extracted one uniform law, or digest of laws, to be obferved throughout the whole kingdom; though Hoveden, and the author of an old manufcript chronicle i affure us likewife, 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 k: 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 Partidas 1: And in Sweden, about the fame era; 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 Eng-. land". 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 ftyled by the fame hiftorians the legum Anglicanarum conditor, as Edward the Confeffor f Hal. Hift. 55. h In Edw. Confessor. i In Seld. ad Eadmer. 6. k Mod. Un. Hift. xxii. 135• 1 Ibid. xx. 211. m Ibid. xxxiii. 21. 58.. is |