365 
L A 
a generous indignation, and extort the hafty wifli of ex¬ 
changing our elaborate jurifprudence for the Ample and 
fummary decrees of a Turkifh cadi. Our calmer reflec¬ 
tion will fuggefl, that fuch forms and delays are neceflary 
to guard the perfon and property of the citizen ; that the 
difcretion of the judge is the firfl engine of tyranny, and 
that the laws of a free people fliould forefee and deter¬ 
mine every queftion that may probably arife in the exer- 
cife of power and the tranfa&ions of induftry. And ac¬ 
cordingly the provifions of the Juftinian code have been 
adopted, generally or partially, by every European nation. 
The work was completed in about four years j the Infti- 
tutes are divided into four parts, fomething fimilar to the 
arrangement of Blackftone’s Commentaries ; and the whole 
may about equal in quantity the four volumes of that ex¬ 
cellent work. 
Such is the fum of the civil laws contained in the writ¬ 
ten codes, or fragments of codes, of the more ancient or 
extended nations of the world, which have reached our 
time. In tracing thofe laws, we are neceflarily accompa¬ 
nied by the hiltory of the countries to which they relate ; 
and we cannot help contemplating the different fates of 
empires, and of their ordinances; the fuperiority of cuf- 
tom over power, and of reafon or of religious tenet over 
political rule. Of the empire and its nations originally 
fubjefted to the word of Brahma, no record is remaining. 
Perfia, Greece, and Rome, have l'ucceflively fallen. The 
laft claims and infignia of feudal Rome have been abdi¬ 
cated, and its vaflals acquitted of their homage and fer- 
vices, in our times; the different fettlers from the north 
are melted down in the new empire of France ; China is 
tottering in all the decrepitude of age and wear of inter¬ 
nal difeafe ; and the waning crefcent of Mahometan power 
is finking into night. Yet fome of the laws or inftitu- 
tions of Solon, of the decemvirs, Brahma, and even of 
Zoroafter, have fubfifted, after the power that enaffed or 
reared them has given way. The Jewifli code has proved 
the molt perfect, as might be expe&ed from the wifdom 
of its author. Formed for a people about to take poffef- 
fion of a country, it has the Angularity of not being 
founded upon any precife cuftoms exifiing among thole 
for whom it was framed, but of having formed their man¬ 
ners by its ordinances. Needing no alteration from times 
or circumftances, it was equally adapted to the poverty of 
a new fettlement, and to the glory and magnificence of 
the reign of Solomon. Unerring in its principles, its wife 
and equitable provifions, and the Decalogue dictated by 
the eternal truth, have formed the balls of every Chriftian 
code. Its ceremonial too, in part, and in fome cafes alfo 
its civil ordinances, yet form the law of a venerable rem¬ 
nant which the Omnipotent, in fpite of every effort of 
Pagan, Mahometan, and an-Chriltian, perfecution, has 
prelerved for the manifeftation of his decrees. In the 
Twelve Tables, as well as in the early hiltory of republi¬ 
can Rome, may be traced the few but fteady rules of a 
virtuous people ; and the fragments that have been col¬ 
lected are evidence of a folid and reflecting legiflation. 
Reafoning front the few we pofiefs, judging alfo from the 
exclamation of Tully, how great is our regret at the lofs 
of the remainder. The regal and decemviral enactments, 
as we have juft feen, formed the bafis of the labours of 
Juftinian, but he did not always confine himfelf to their 
principles; and, under a loaded fyftem, we would hold 
up to all the world the example of Juftinian, who effected 
by his wifdom, without danger to the ftate, a revifal and 
correction of its laws; but upon our own country we 
would more particularly prefs it. We are not deficient in 
high profeflional characters animated with the'fpirit and 
induftry of Ulpian, of Cains, and of Tribonian, polfef- 
fed of all the acquirements and advantages to be derived 
from the improved ftate of fcience and literature ; and we 
look forward with confidence to a period of more temper 
and difcernment, when our own jurifprudence way derive 
its wanted amendment from their fplendid and united 
^bdlties. 
Vo;,, XII. No. 836, 
w. 
III. Of the LAW of ENGLAND. 
The municipal law of England, or the rule of civil 
conduCt prefcribed to the inhabitants of that kingdom, 
may with fuflicient propriety be divided into two kinds : 
lex non feripta., the unwritten or common law ; and lex 
Jcripta, the written or ftatute lawn 
The lex non feripta , or unwritten law, includes not only 
general cuftoms, or the common law properly fo called ; 
but alfo the particular cuftoms of certain parts of the 
kingdom, and likevvife thofe particular laws that are by 
cuftom obferved only in certain courts and jurildiCtions. 
In calling thefe parts of the law leges non Jcripta;, we 
would not be underltood as if all thofe laws were at pre- 
fent merely oral, or communicated from the former ages 
to the prefent folely by word of mouth. It is true, in¬ 
deed, that, in the profound ignorance of letters which 
formerly overfpread the whole weftern world, all laws 
were entirely traditional; for this plain reafon, that the 
nations among which they prevailed had but little idea of 
writing. Thus the Britilli as well as the Gallic druids 
committed all their laws, as well as all their learning, to 
memory; and it is faid of the primitive Saxons here, as 
well as their brethren on the continent, that legesfela me- 
moria et vfu relinebant. But, with us at prefent, the mo¬ 
numents and evidences of our legal cuftoms are contained 
in the records of the feveral courts of juftice, in books of 
reports and judicial decifions, and in the treatifes of learned 
fages of the profeffion, preferved and handed down to us 
from times of the higheft antiquity. We therefore ftyle 
thefe parts of our law leges non Jcriptce, becaufe their origi¬ 
nal inftitution and authority are not let down in writing, 
as afts of parliament are; but they receive their binding 
power, and the force of laws, by long and immemorial 
ufage, and by their univerfal reception throughout the 
kingdom ; in like manner as Aulus Gellius defines the 
jus non feriptum to be that which is tacito et illiterato homi- 
num conjenfu et moribus exprejfum. 
Our ancient lawyers, and particularly Fortefcue, infift 
with abundance of warmth, that thefe cuftoms are as old 
as the primitive Britons, and continued down, through 
the feveral mutations of government and inhabitants, to 
the prefent time, unchanged and unadulterated. This 
may be the cafe as to fome. But in general, as Mr. Sel- 
den in his notes obferves, this affertion muff: be under- 
ftood with many grains of allowance; and ought only to 
fignify, as the truth feems to be, that there never was any 
formal exchange of one fyftem of laws for another; though 
doubtlefs, by the intermixture of adventitious nations, 
the Romans, the Pidts, the Saxons, the Danes, and the 
Normans, they muft have infenfibly introduced and in¬ 
corporated many of their own cultoms with thofe that 
were before eftablilhed ; thereby, in all probability, im¬ 
proving the texture and wifdom of the whole, by the ac¬ 
cumulated wifdom of divers particular countries. 
Mr. Spence, on the other hand, (Efl'ay on the Origin of 
the Englilh Laws,) would derive almolt the whole of our 
conftitution from the Romans ; he is at leaft of opinion, 
“ that much more of what is called Englifti is truly Ro¬ 
man than is generally admitted, and that any thing which 
may call the attention of the profelfors of the Englilh law 
to the Juftinian colleftions muft be ufeful.” Prcf. iii. 
Mr. Spence proceeds to make out his cafe in the follow¬ 
ing terms: 
“ Of the ftate of Britain prior to the arrival of Casfar 
we have little information, but that little is all perhaps 
that it were ufeful to know. There were two fpecies of 
authority recognized among the Britons, the military 
and the facerdotal. Military authority had formerly been 
enjoyed by kings ; but, the form of government having 
been changed, the general was cholen, in cafe of necefli- 
ty, by the voice of the people. The prielts, or druids, 
were in a manner fecluded from the reft of the inhabi¬ 
tants, they having the foie power of eledfing the members 
of their body. In their brealts alone were depofited the 
few maxims to which experience had given the force of 
5 A laws. 
