Out of these, Edward the Confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; which seems to have been no more than a new edition, or fresh promulgation of Alfred's dome-book, with such additions and improvements as the experience of a century and a half had suggested. These however are the laws which our historians so often mention as the laws of Edward the Confessor; which our ancestors struggled so hardly to maintain under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. They are the laws which gave rise to that collection of maxims and customs which is now known as the common law; a name either given to it, in contradistinction to other laws, as the statute 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 folk-right.

This unwritten or common law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter 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 by particular courts.

I. As to general customs, or the common law, properly so called; this is that law by which proceedings in the ordinary courts of justice are directed. For example, that the eldest son alone is heir to his ancestor ;-that property may be acquired and transferred by writing;-that a deed is of no validity unless sealed and delivered ;that wills shall be construed favourably, and deeds strictly;-that money lent upon bond is recoverable by action of debt;-that breaking the public peace is an offence, and punishable by fine and imprisonment; all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.

But here a very natural question arises: 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 depositaries 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. These judicial decisions are the 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 preserved, under the name of records, in public repositories set apart for that particular purpose; and to them 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; as also because the law in that case being solemnly determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it 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.

The decisions, therefore, of courts are held in the highest regard, and are not only preserved as authentic records in the several courts, but are handed out to public view in the numerous volumes of Reports which furnish the lawyer's library. Of these, a regular series, from the reign of Edward II. to that of Henry VIII., were taken by the prothonotaries of the court, and published annually, whence they are known as the Year-Books. But the most valuable are those published by Lord Chief Justice Coke, whose other writings, indeed, the Institutes, as he is pleased to call them, are so highly esteemed, that they are generally cited without the author's name.

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 out of which the common law, as it now stands, was collected at first by the Saxon kings. 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 contradistinction 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, 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 also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the same manors. Such likewise is the custom of holding divers inferior courts, with power of trying causes in cities and trading towns; the right of holding which, when no royal grant can be shown, depends entirely upon immemorial and established usage. Such, lastly, 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 queen'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 a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that "cuilibet in sua arte credendum est."

III. The third branch of the leges non scriptæ are those peculiar laws which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.

It may seem a little improper at first view to rank these laws under the head of leges non scriptæ, or unwritten laws, seeing they are set forth by authority in the Pandects, the Code, and the Institutes, in the decrees of councils and the decretals of popes. But I do this, because it is most plain, that it is not on account of their being written laws that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: all the strength that either the papal or imperial laws have obtained in this realm is only because they have been received by immemorial usage in some particular cases; and then they form a branch of the leges non scriptæ, or customary laws. If they are in some other cases introduced by consent of parliament, they owe their validity to the lex scripta, or statute law.

By the civil law is generally understood the municipal law of the Roman Empire, as comprised in the institutes, the digest, and the

code of the Emperor Justinian, and the novella, or new constitutions of himself and some of his successors. These form the body of Roman law, or Corpus Juris Civilis. The canon law is body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over, compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see. All these together form the Corpus Juris Canonici, or body of the Roman canon law.

Besides these pontifical collections, there is also a kind of national canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were enacted in national synods, held under Otho and Othobon, legates from Gregory IX. and Clement IV. in the reign of Henry III. The provincial constitutions are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Langton in the reign of Henry III. to Chichele in the reign of Henry V.; and adopted by the province of York in the reign of Henry VI. At the dawn of the Reformation, it was enacted in parliament that a review should be had of the canon law; and, till such review should be made, all canons, ordinances, and synodals provincial, being then already made, were to be used and executed. As no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.

There are four species of courts, in which the civil and canon laws are used. 1. The courts of the archbishops and bishops, and their officers, usually called, courts christian, or the ecclesiastical courts. 2. The military courts, which are now entirely disused. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom. For,

1. The courts of common law have the superintendence over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, and to restrain and prohibit such excess.

2. The common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts, or the matters depending before them. And,

3. An appeal lies from all of them to the crown, in the last resort; the jurisdiction exercised by them being in theory derived from the Crown of England, and not from any foreign potentate, or intrinsic authority of their own.

And, from these three strong marks and ensigns of superiority, it

appears beyond a doubt, that the civil and canon laws are only subordinate, leges sub graviori lege, and by no means a distinct independent species of laws, but only inferior branches of the unwritten laws of England.

The leges scripta, the written laws of the kingdom, are statutes, acts, or edicts, made by the sovereign, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous Magna Charta, as confirmed in parliament 9 Henry III.: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law. And these statutes are either general or special, public or private. A general or public act is a universal rule, that regards the whole community: and of this the courts of law are bound to take notice judicially and ex officio. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns: and of these the judges are not bound to take notice, unless they be formally shown and pleaded.*

Statutes also are said to be either declaratory or remedial. Declaratory, where the old custom of the kingdom is fallen into disuse, or become disputable; in which case parliament has sometimes thought proper to declare what the common law is and ever has been. Thus the statute of Treasons does not make any new species of treason; but only, for the benefit of the subject, declares those several kinds of offences which before were treason at the common law. Remedial statutes are those which are made to supply defects in the common law itself, either by enlarging the law where it was to narrow, or by restraining it where it was too lax. Hence another division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the coin was an offence not sufficiently guarded against by the common law: therefore it was at one time thought expedient to make it high treason, so that this was an enlarging statute. At common law spiritual corporations might lease out their estates for any term of years, till prevented by a statute of Queen Elizabeth: this was therefore a restraining statute.

These are the several grounds of the laws of England: over and

* The stat. 13 Eliz. c. 10, to prevent spiritual persons from making leases for longer terms than twenty-one years, or three lives, is a public act, being a rule prescribed to the whole body of spiritual persons in the nation. An act to enable the Bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors, and is therefore a private act.