[penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.]

It is, however, held by the soundest ethical writers, that there is also an obligation in point of conscience to observe the laws. It is related of Socrates that he made a promise with himself to observe the laws of his country; and this is nothing more than what every man ought both to promise and perform; and he ought also to promise that he will exert all his power to compel others to obey them (i). It has been sometimes questioned, indeed, whether this principle is not to be understood with some restriction. "It holds," it has been said, "as to rights"and when the law has determined the field to belong to "Titius, it is matter of conscience no longer to withhold "or invade it. So also in regard to natural duties, and "such offences as are mala in se; here we are bound in "conscience, because we are bound by superior laws, "before those human laws were in being, to perform the 66 one and abstain from the other. But in relation to "those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohi"bita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance: here conscience "is no farther concerned than by directing a submission "to the penalty in case of our breach of those laws "(k]. The distinction however will perhaps hardly bear the test of a close inquiry. To form a true judgment on the subject, it is necessary to take into consideration that the true principle both of moral and of positive laws is in

66

(i) Note by Christian, to 1 Blackstone's Com. p. 59.

(k) 1 Bl. Com. 58.

effect the same, viz. utility, or the general welfare, and that the disobedience of either sort of precept must be presumed to involve in it some kind of mischievous consequence. Supposing the existence of a law of the merely positive class, which happens to be considered by the public at large as useless or even detrimental to society, yet a conscientious man will feel himself bound to observe it, if for no other reason, yet for this, that his taking the contrary course might encourage others to violate laws of a more beneficial character, and lessen the general reverence for the institutions of his country.

SECTION III.

OF THE LAWS OF ENGLAND.

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

When these parts of our law are called leges non scriptæ, it is not to 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 (a); and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoriâ et usu retinebant (b). 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 (b) Spelm. Gl. 362.

(a) Cæs. de B. G. lib. 6, c. 13.

[the times of highest antiquity. However, these parts of our law are therefore styled leges non scriptæ, 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. In like manner as Aulus Gellius defines the jus non scriptum to be that which is "tacito et illiterato hominum consensu et moribus expressum.”

Our antient lawyers, and particularly Fortescue (c), insist 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 case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless the Romans, the Picts, the Saxons, the Danes, and the Normans, 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, saith 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 early historians do positively assure us, that our body of laws is of this compounded nature. For they tell us, and their statement is adopted by Blackstone (e), that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile a Dom-boc or Liber Judicialis, digesting them into one uniform code (c) C. 17. (e) 1 Bl. Com. 64.

(d) See his proposals for a digest.

of laws for the general use of the whole kingdom: and this book is said by Blackstone to have been extant so late as the reign of king Edward the fourth, but to have been since lost; and it is thought by that commentator to have contained the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings (f).

It is farther the opinion of Blackstone that the irruption and establishment of the Danes in England, which followed soon 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 coarser alloy; so that about the beginning of the eleventh century, there were three principal systems of laws prevailing in different districts (g): 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 which Blackstone conceives therefore to have been very probably intermixed with the British or Druidical customs. 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, which he supposes to have been much the same with the laws of Alfred above mentioned; being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, which was principally maintained in the rest of the

(f) In the opinion of Mr. Hallam (Midd. Ages, vol. ii. p. 402, 7th ed.) there is no sufficient proof that Alfred" compiled a dom-boc, or general code for the government of his kingdom." Turner (in his Hist. Ang. Sax. vol. ii. p. 149, 6th ed.) considers the Doм-BOC as the same with the laws of Alfred, in the Leges Anglo-Sax. published by Wilkins. A document, called

"Alfred's Dooms," was printed by the Record Commissioners in 1840, but Sir F. Palgrave remarks (Rise, &c. of the British Commonwealth, c. 11,) that it is insufficient to support the assertions of Blackstone as to Alfred's achievements as a law compiler.

(g) For this Blackstone cites Sir M. Hale, Hist. C. L. c. 3.