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of the unwritten law are transferred to the written; and frequently the repeal of statutes, or even new provisions, have the effect of doing away with written rules, and leaving certain subjects to be governed by the unwritten law. In their main features, the two members of this division correspond very nearly to common law and statute. The chief importance of the terms is in relation to the question of interpretation.

A written law is one of which there is an authoritative text, conclusive and final in all discussion as to what the law is. This text is usually in the form of a printed statute or written rule, but it might also be oral, provided the exact form of words, which proceeded from the legislator, could be exactly preserved and enforced. The unwritten law, on the other hand, may have been reduced to writing or to print an indefinite number of times, provided that this has not been authoritatively done by the legislature, or anybody expressly authorized to enact a new law. The maxims and doctrines of the common law remain a part of the unwritten law for want of any such enactment.

The only recent author of note who has denied this is Sir Henry Maine, who says (Ancient Law, p. 13), that the common law as formulated by judicial decisions becomes written law. "At no stage of this process has it any characteristic which distinguishes it from written law. It is written case-law, and only different from code-law because it is written in a different way." The truer view is thus expressed by Sir Matthew Hale: "I therefore stile those parts of the laws leges non scriptæ, because their authoritative and original institutions are not set down in writing in that manner or with that authority that acts of parliament are. (Hist. Com. Law, ch. 2, p. 21. See, also, Lieber's Hermeneutics, ed. 1880, n. N, p. 323.) The effect produced by the difference of form has been more fully discussed by Mr. Bishop than by any other writer. The matter originally incorporated

in his work upon Statutory Crimes has been published apart as "Commentaries on the Written Laws and their Interpretation," by J. P. Bishop, Boston, 1882. (See note 32, p. 230.)

(27) He [Alfred], found it expedient to compile his dome-book or liber judicialis for the general use of the whole kingdom, page 65.

It is possible that the references to this dome-book (found only in late writers), mean that collection of the laws of Alfred which is still extant among the vernacular Anglo-Saxon laws, and also in the later Latin translation of Brompton. This has many provisions "fixing the penalties for misdemeanors and the forms of judicial proceedings": but it is only one of a number of similar codes or collections; and there is no reason to suppose that it is especially meant in the passage of his son's law quoted on the next page. Hardly any of these codes seem to have had the force of statutes modifying the common law in our present sense of the term. They deal almost entirely with adjective law, though mixed with many prohibitions of criminal acts and even moral maxims. That of Alfred is distinguished from the rest by its introduction, which contains long extracts from the Old and New Testaments, and exhortations to virtue. This was not peculiar to the English law of the time. The same traits are found in the capitularies of the French kings and emperors; and it is worth noticing that the selection from the Pentateuch made by Alfred is evidently a copy of that contained in the capitularies of Ludovicus Pius, the son of Charlemagne, who reigned about sixty years before him. These codes appear to have been promulgated by the king with the advice of his witan for the guidance of judges and sheriffs in holding the popular courts. Mr. Hallam has compared them with our modern rules of court, which supplement the law without directly changing it; there is at least a very strong analogy between the two.

The earliest code now extant-and there is reason to think the earliest ever reduced to writing for an AngloSaxon people-is that of Ethelbert of Kent, the first king of the Heptarchy to embrace Christianity. That it was suggested and executed by the Roman missionaries who had become prelates of his kingdom, is proved not only by the direct testimony of the venerable Bede but by the contents of the code itself. It begins with a provision ordering eleven-fold restitution for wrongs against the property of the church, and nine-fold for those of a bishop. A large part of its articles determine the amount of fines to be imposed for various offenses; and especially those against the person and the home. Like all the rest it is in the vernacular-a fact which distinguishes these English laws from the leges barbarorum of the continent, which otherwise are of the same general character. It is one of many proofs showing that the English clergy had from the beginning a distinct national character, and were less intimately connected with the church of Rome and the great European corporation of which it was the head, than the clergy of the continent.

In the later codes a distinction is made between secular and ecclesiastical provisions. There is also a considerable body of ecclesiastical institutes and penitentials issued by the arch-bishops, especially Theodore and Egbert. These last are evidently intended to guide the clergy in the exercise of their spiritual jurisdiction, which was then of almost equal importance with the temporal in its bearings upon the relations of private life. But the ecclesiastical parts of the codes are addressed to the same authorities with the secular. The folk-moots of the shire and hundred dealt with cases of both kinds. These are found in the same collections with the secular codes, while the ecclesiastical institutes are gathered in the second volume of the edition hereafter referred to.

The laws of Ethelbert of Kent are followed by two other brief codes of the same kingdom, that of Hlothar and Eadric, and that of Wihtraed. Next in order of time are the codes of Ine of Wessex, republished by Alfred, and that of Alfred himself. A code of Offa's of Mercia, is mentioned several times, but has not come down to us. Alfred's, though expressly promulgated for Wessex, is usually considered the first which influenced the law of the whole kingdom. The exact date of its enactment is not known; but it probably was in the latter part of his reign.

Even more important and instructive are the laws of Edward the Elder, his son, in which we see for the first time clear traces of the constitution and customs which lasted through the remainder of the Anglo-Saxon period, and were developed, but not substantially changed by the codes which follow. These are the laws of Æthelstan, of Edmund, of his son Edgar, and his son Ethelred the Second or the Unready (an epithet now fixed by usage, though probably the "Improvident" would express more accurately the Anglo-Saxon term.) Cnut, the Dane, has left two codes, ecclesiastical and secular, of great interest, and showing a remarkable talent for legislation. His laws are perhaps the earliest in which we can see a well-defined purpose to amend the substantive law of the kingdom and thus exert that beneficial influence upon the people which, according to the church, was the main purpose of human legislation. Still, a large part of these codes is only a repetition of Ethelred's and those of his other predecessors from Ine down. This is also true of the laws of William the Conqueror. Although these are written in French or Latin, they follow for the most part the lines marked out by earlier codes, and show none of that disposition to innovate or to do away with Saxon customs which later writers with a mistaken patriotism have charged upon the Conqueror.

With these laws of William the series closes, although the collection contains a number of other documents some of later date, others professing to be of AngloSaxon origin, but none of them authentic. The most important of these are the laws of Edward the Confessor, and those of Henry the First, both in Latin. The former compilation professes to be a statement of the common law in use during the reign of the king whose name it bears, as approved and confirmed by the Conqueror. It is unquestionably a forgery of later date, perhaps about the reign of Henry the Second, and contains many fictions which have clouded for centuries the knowledge of Anglo-Saxon law. Chief among these is its statement of the law of frank-pledge, as to which, see book 4, page 252, and the note to that page. The laws of Henry the First probably get that title from two charters of that king, the authentic-ity of which is unquestioned, prefixed to them. The work itself is a private compilation, and largely a repetition of the codes already mentioned, with more or less modification, sometimes showing that the writer did not fully understand the provisions which he copied. It has also a number of quotations from the continental laws (leges barbarorum), the first of that kind appearing in England with the exception of what Alfred borrowed from the capitularies, and a single reference to the leges Thuringiorum in the laws of Cnut. The writer also attempts something like a brief treatise upon the principles of jurisdiction and of procedure, but in a very vague and confused style, rendered more so doubtless by the imperfection of our present text. The book, however, is interesting, and deserves more careful study than it has received. Probably, as Mr. Hallam has suggested, it was the work of a clerical writer who was also a causidicus or practitioner in the temporal courts, intended as a guide to the law and practice of the popular courts or folk-moots (including

1 BLACKST.-18.

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