LAW. 



633 



parts of the kingdom ; and likewise those particular 

 taws that are by custom observed only in certain courts 

 and jurisdictions. 



When we call these parts of the law leges non scripts, 

 we would not be understood aa if all those laws were 

 at present merely oral, or communicated from former 

 age* to the present solely by word of mouth, but because 

 tht-ir original institution and authority are not set 

 down in writing as acts of parliament are, but receive 

 their binding power, and the force of laws, by long 

 and immemorial usage, and by their universal recep- 

 tion throughout the kingdom. 



3. This unwritten, or common law, is properly dis- 

 thiguishable into three kinds : First, General customs, 

 which are the universal rule of the whole kingdom of 

 Bng 1 '"*! and form the common law in its stricter and 

 more usual signification. Second, Particular customs, 

 which for the most part affect only the inhabitants of 

 particulardistricts. jTAirc/.Certainnarticularlaws, which 

 by custom are adopted and used by some particular 

 court* of pretty general and extensive jurisdiction. 



4 First, A* to general customs, or the common law 

 properly so called, this is that law by which proceed- 

 ings and determinations in the king's ordinary courts 

 rf justice are guided and directed. This for the most 

 part settles the course in which lands descend by in- 

 heritance ; the manner and form of acquiring and trans- 

 ferring property; the solemnities and obligation of con- 

 tracts ; the rules of expounding wills, deeds, and act* 

 of parliament ; the respective remedies of civil injuries; 

 the several specie* of temporal offences, with the man- 

 ner and degree of punishment ; and an infinite num- 

 ber of minuter particulars, which diffuse themselves as 

 extensively a* the ordinary distribution of common jus- 

 tice require*. Thus, for example, that there shall be 

 four superior court* of record, the Chancery, the King's 

 Bench, the Common Plea*, and the Exchequer ; that 

 the eldest fan alone is heir to his ancestor; that pro- 

 perty may be acquired and transferred by writing ; that 

 a deed is of no validity unless sealed and delivered ; 

 that wills shall be construed more favourably, and 

 deeds more strictly ; that money lent upon bond is re- 

 coverable by action of debt ; that breaking the public 

 peace is an offence, and punUhable by fine and im- 

 prisonment. 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. 



t. Pm - 5. Sfcaul, The second branch of the unwritten laws 

 of England are particular custom* or laws which af- 

 fect only the inhabitant* of particular districts. 



c particular customs, or some of then:, are with- 

 out doubt the remain* of that multitude of local cus- 

 toms before mentioned, out of which the common law, 

 aa it now stands, waa collected, at first by King Al- 

 fred, and afterwards by King Edgar, and Edward the 

 Confessor: each district mutually sacrificing some of 

 its own special usage*, in order that the whole king- 

 dom might enjoy the benefit of one uniform and uni- 

 vcnal system of laws. But for reasons that have been 

 now long forgotten, particular counties, cities, towns, 

 manor*, and lordships, were very early indulged with 

 the privilege of abiding by their own custom-, in con- 

 tradistinction to the rest of the nation at large ; which 

 ege is confirmed to them by several acts of par- 

 liament. 



, is the custom of gavel-kind in Kent, and 

 some other parts of the kingdom, (though perhaps it 

 was also general tall the Norman conquest,) which or. 



VOL. II L FA.BT II. 



dains, 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 attaint- 

 ed and hanged, yet the heir shall succeed to his es- 

 tate, without any escheat to the lord. Such is the cus- 

 tom that prevails in divers ancient boronghs, and there- 

 fore 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 en. 

 dowed of one-third part only. Such also are the spe- 

 cial 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 said 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 shewn, depends entirely upon immemorial and 

 established usage. Such, lastly, are many particular cus- 

 toms 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 par- 

 liament. 



7. 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 ingrafted 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 tua arte credendum esl." 



8. Third, The third branch of the leges non scripts, or 

 unwritten law, are those peculiar laws which by cus- 

 tom are adopted and used only in certain courts and ju- 

 risdictions. And by these we understand the civil and 

 canon laws. See CiYiYand Canon law. 



9. Let us next proceed to the leges script (e, the writ- 

 ten laws of the kingdom ; which are statutes, acts, or 

 edicts, made by the king's majesty, by and with the 

 advice and consent of the lord's spiritual and temporal 

 and commons in parliament assembled. The oldest of 

 these now extant, and printed in our statute books, is 

 the famous magna ctiarla, as confirmed in parliament 9 

 Hen. HI. though doubtless there were many acts be- 

 fore that time, the records of which are now lost, and 

 the determinations of them perhaps at present current- 

 ly received for the maxims of the common law. 



10. Statutes are either general or special, public or 

 private. A general or public act is an universal rule 

 that regards the whole community; and of this the 

 courts of law are bound to take notice judicially and ex 

 (tfficio, without the statute being particularly pleaded, 

 or formally set forth by the party who claims an ad- 

 vantage under it. Special or private acts are rather ex- 

 ceptions than rules, being those which only operate 

 upon |>articular persons, and private concerns : such as 

 the Romans entitled st-natus-dccreta, in contradistinc- 

 tion to the senutus-consulta, which regarded the whole 

 community ; and of these (which are not promulgated 

 with the same notoriety as the former) the judges are 

 not bound to take notice, unless they be formally shewn 

 and pleaded. 



11. Statutes also are either declaratory of the com- 

 mon law, or remedial of some detects in it. Decla- 

 ratory, where the old custom of the kingdom is almost 



4 L 



Law 

 of England. 



boroush- 

 English, 

 &c. 



Custom of 

 merchants, 

 or lex mer- 



calvrin. 



3d, Pccu 

 liar laws 

 used by 

 certain 

 courts. 



Written 

 law, 



consists of 

 statutes, 



which ore 

 either pub- 

 lic or pri- 

 vate; 



declaratory 

 or remedial. 



