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 Unwritten Laws.

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

OF THE LAWS OF ENGLAND.

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those particular laws that are by custom observed only in certain courts and jurisdictions.

When I call these 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. But, with us, at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of 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.

Here follows a discussion of the origin of English Common Law. It is of mixed origin, coming from the Briton, the Roman, the Pict, the Saxon, the Dane and the Norman. It is therefore of compound nature. The first compilation of these customs was doubtless the Dome Book, compiled under the direction of King Alfred: It is little more than a collection of punishments for offenses. Said to be still in existence. After the invasion of the Danes it fell into disuse, and in the eleventh century there were three principal systems of laws, prevailing in different districts. Laws. 2. The West Saxon Laws. 3. The Danish Laws. Out of these I. The Mercian King Edward the Confessor extracted one uniform system which was merely a revised edition of Alfred's code.

But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind, or in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

Kinds of Unwritten Law.

This unwritten, or common law, is properly distinguishable into three kinds: I. General customs; which are the universal rule of the whole kingdom, and form the common law, in its

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stricter and more usual signification. 2. Particular customs; which, for the most part, affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

General Customs.

I. As to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations. in the king's ordinary courts of justice are guided and directed. This for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offenses, with the manner and degree of punishment, and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires.

How are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositories of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. And, indeed, these judicial decisions are the principal and most authoritative evidence that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had when any critical question arises in the determination of which former precedents may give light or assistance. For it is an established rule to abide by former precedents. where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which is not in the breast of any subsequent judge to alter or vary from according to his private sentiments; he being sworn to determine not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination. is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent

judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.

Rule as to Precedents.

The doctrine of the law then is this: that the precedents and rules must be followed; unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration.

The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short summary of the proceedings which are preserved at large in the record; the arguments on both sides, and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain the records, which always, in matters of consequence and nicety, the judges direct to be searched.

The author proceeds to say that the reports are extant in a regular series from the reign of King Edward the Second inclusive. They were up to Henry VIII. published yearly and are known as year books. Some of the most valuable of the reports are those published by Lord Chief Justice Coke. Attention is called to other authors in whose publications are to be found the evidences of early decisions, as Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, Staundeforde and Coke. These treatises are cited as authority and are evidence that cases have formerly happened, in which such and such points were determined. Reference is also made to the great regard for custom shown in the Roman Law.

Particular Customs.

II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts.

These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by King Alfred, and afterwards by King Edgar and Edward the Confessor; each district mutually sacrificing some of its own. special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular counties, cities,

towns, manors and lordships, were very early indulged with the privilege of abiding by their own customs, in contradiction to the rest of the nation at large; which privilege is confirmed to them by several acts of parliament.

Such is the custom of gavelkind in Kent, and some other parts of the kingdom (though perhaps it was also general till the Norman conquest), which ordains among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike; and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate without any escheat to the lord. Such is the custom that prevails in divers ancient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs, that a widow shall be entitled, for her dower, to all her husband's lands; whereas, at the common law she shall be endowed of one-third part only. Such are many particular customs, within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land and are good only by special usage; though the customs of London. are also confirmed by act of parliament.

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects called the custom of merchants, or lex mercatoria; which, however different from the general rules of the common law, is yet engrafted into it, and made part of it; being allowed for the benefit. of trade, to be of the utmost validity in all commercial transactions. Rules Relating to Particular Customs.

The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof. Proof of Customs.

As to gavelkind, and borough-English, the law takes particular notice of them, and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded, and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged.

When a custom is actually proved to exist, the next inquiry is into the legality of it; for if it is not a good custom, it ought to be no longer used. "Malus usus abolendus est" is an established maxim of the law.

Requisites to Legality of a Particular Custom.

To make a particular custom good, the following are necessary requisites: