rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. And, on the other hand, the liberty of confidering all cases in an equitable light must not be indulged too far, left thereby we destroy all law, and leave the decifion of every question entirely in the breast of the judge. And law, without equity, tho' hard and disagreeable, is much more defirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confufion; 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.

T

HE 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 fcripta, the unwritten, or common law; and the lex fcripta, the written, or statute law.

THE lex non fcripta, 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 jurifdictions..

WHEN I call these parts of our law leges non fcriptae, 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 igno-rance of letters which formerly overspread the whole western: world, all laws were intirely traditional, for this plain reason, that 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 fola memoria et ufu retinebant. 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

Cacf. de b. G. lib. 6. c. 13.

b Spelm. Gl. 362.

off

of reports and judicial decifions, and in the treatises of learned fages of the profession, preserved and handed down to us from the times of highest antiquity. However I therefore stile these parts of our law leges non fcriptae, because their original inftitution and authority are not set down in writing, as acts of parliainent are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their univerfal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non fcriptum to be that, which is "tacite “ et illiterato hominum confenfu et moribus expreffum.”

Our antient lawyers, and particularly Fortescue", infist 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 cafe as to some ; 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 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, faith lord Bacon d, are mixed as our language : and as our language is so much the richer, the laws are the more complete.

AND indeed our antiquarians and first historians do all pofitively afssure 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 fo various, that he found it expedient to compile his dome-book or liber judicialis, for the general use of the whole kingdom. This

d See his proposals for a digest.

book is faid to have been extant so late as the reign of king Edward the fourth, but is now unfortunately loft. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, 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 praebeant judices, “ perinde ac in judiciali libro (Saxonice, dom-bec) fcriptum habetur; "nec quicquam formident quin jus commune (Saxonice, polcrihte) “ audacter libereque dicant.”

But the irruption and establishment of the Danes in England which followed foon 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 coarfer 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 antient Britons; and therefore very probably intermixed with the British or Druidical cuftoms. 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 fame with the laws of Alfred abovementioned, being the municipal law of the far most 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 speaks it's original and compofition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the feat of that piratical people. As for the very northern provinces, they were at that time under a diftinct government f.

P

C. I.

Hal. Hift. 55.

I

OUT

Out of these three laws, Roger Hoveden and Ranulphus Ceftrenfish inform us, king Edward the confeffor 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 fame nature has been conftantly found expedient, and therefore put in practice by other great nations, 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 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 fame aera, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and intitled the land's lagh, being analogous to the common law of England ".

Вотн 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 such additions and improvements as the experience of a century and an half had suggested. For Alfred is generally stiled by the same historians the legum Anglicanarum conditor, as Edward the confefsfor is the reftitutor. These however are the laws which our histories so often mention under the name of the laws of Edward the confeffor; which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which fubsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domeftic discontents. These are the laws, that