As to the reason and spirit. Hence equityhas arisen. severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. 5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius.f There was a law, that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation. From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius," the correction of that, wherein the law (by rea"son of it's universality) is deficient." For since in laws. [62] all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases, which, according to Grotius, "lex "non exacte definit, sed arbitrio boni viri permittit.” Equity thus depending, essentially, upon the particular circumstances of each individual case, there can, in the general sense of the word, (although this must not be understood as applicable to equity, as adminstered in our equity courts; for de aequitate, §. 3 f l. 1. c. 11. here, as Blackstone himself says, the system is "a laboured, "connected system, governed by established rules, and bound "down by precedents from which they do not depart, although "the reason of some of them may perhaps be liable to objection,") be no established 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 considering all cases in an equitable light must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; 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. 3 Comm. c. 27. p. 432. SECTION THE THIRD. OF THE LAWS OF ENGLAND. Lex non scripta or common law. 1. General customs. Civil law. [63] pal law is Municipal Lex scripta or statnte law. Canon law. THE municipal law of England, or the rule of civil conThe munici. duct prescribed to the inhabitants of this kingdom, may divided into with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten or common law; and the lex law, and les scripta, the written or statute law. lex non scripta, or common scripta, or statute law. lex non scripta or common 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 I call these parts of our law leges non scriptæ, 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 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 their laws as well as well as the Gallic druids committed all a Caes. de b. G. lib. 6. c. 13. is contained. leges sola memoria et usu retinebant. But, with us at In what it 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 [64] of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However I therefore style these parts of our law 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." the common Our ancient lawyers, and particularly Fortescue, insist Antiquity of with abundance of warmth, that these customs are as old as law. 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 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, 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 antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred Alfred's the local customs of the several provinces of the kingdom dome-book. were grown so various, that he found it expedient to compile b Spelm. Gl. 362. © c. 17. See his proposals of a digest. his dome-book, or liber judicialis, for the general use of the [65] whole kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, 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. f “Omnibus qui reipublicæ præ"sunt etiam atque etiam mando, ut omnibus æquos se præ"beant judices, perinde ac in judiciali libro (Saxonice, "bom-bec) scriptum habetur: nec quicquam formident quin jus commune (Saxonice, folcpıhte) audacter libereque "dicant." In the 11th century three sys tems prevailed. Lage, 66 But the eruption 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. 1. The MercenLage, or Mercian laws, which were observed in many of 1. Mercen- the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore 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. These were probably 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, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. 2. West Saxon Lage, 3. DaneLage. Mr. Hallam, however, calls it a loose report of late writers that Alfred compiled any general code for the government of his kingdom. Midd, ages. ch. viii, p. 1. See also Turner's Hist. of Angl. Sax, b. v. ch. 6, f c. 1. |