must conform to, and be directed by it, whatever appearance the outward form of the government may be. The legislature may at any time alter that form, and put the execution of the laws into whatever hands it pleases; and all the other powers of the state must obey the legislature, or else the constitution is at an end.

In a democracy, public virtue is more likely to be found than in either of the other forms of government. In aristocracies there is more wisdom, but less honesty than in a republic, and less strength than in a monarchy. A monarchy is the most powerful of any; for the legislative and executive powers are united in the hand of the prince, subject to the imminent danger of his employing that strength to improvident or oppressive purposes.

These three species of government have, all of them, their several perfections and imperfections, Democracies are usually the best calculated to direct the end of the law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution.

The British constitution is supposed to combine the advantages of each. For the executive power being lodged in a single person, has all the advantages of monarchy: and the legislature is intrusted to three distinct powers, entirely independent of each other; first, the crown; secondly, the lords spiritual and temporal, persons selected for their piety, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, chosen by the people from among themselves, which is a kind of democracy. This aggregate body composes the parliament, wherein is lodged the sovereignty of the constitution; that is to say, the right to prescribe the rule of civil action.

From what has been advanced, it is sufficiently evident; that "municipal law is a rule of civil conduct prescribed by the supreme power in a state." It is also a rule, "commanding what "is right, and prohibiting what is wrong."

Now, when once the boundaries of right and wrong are ascertained by law, it follows of course that it is the business of the law to enforce these rights, and to restrain or redress those wrongs. How, then, does the law ascertain the boundaries of right and wrong; and what are the methods which it takes to command the one and prohibit the other?

Every law may be said to consist of several parts: one declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are defined: another, directory; whereby the subject is enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial; whereby a method is pointed out to recover a man's rights, or redress his wrongs: to which may be added a fourth, usually termed the sanction, or vindicatory branch, of the law; whereby it is signified what penalty shall be incurred by such as commit any wrong.

The declaratory part of the municipal law, depends upon the will of the legislator. Natural rights, such as life and liberty, need not human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by law to be inviolable. On the other hand, no legislature has power to abridge or destroy them, unless the owner shall commit some act that amounts to a forfeiture. Neither do natural duties, such as the maintenance of children and the like, receive any sanction from being declared to be duties by law. The case is the same as to crimes that are forbidden by the law of nature and styled mala in se, such as murder; which contract no additional turpitude from being declared unlawful by any legislature. But with regard to things in themselves indifferent, the case is different as these become right or wrong, according as the legislator sees proper, for promoting the welfare of the community. Thus at common law the goods of the wife upon marriage become the property of the husband; and by statute all monopolies are a public offence: yet that right and this offence have no foundation in nature. And so, as to injuries or crimes, the legislature must decide in what cases the seizing of another's cattle shall amount to a trespass or a theft; and where it shall be justifiable, as when a landlord takes them as a distress for rent.

The directory part of a law stands upon the same footing. Thus the law that says, "thou shalt not steal," implies a declaration that stealing is a crime.

The remedial part of the law is a necessary consequence of it; for in vain would rights be declared if there were no method of asserting them, when withheld or invaded. When, for instance, the declaratory part of the law says, "the field which belonged "to Titius's father, is vested by his death in Titius;" and the

directory part "forbids any one to enter on another's property," if Gaius, after this, presumes to take possession of the land, the remedial part of the law interposes, and makes Gaius restore the possession to Titius, and also pay him damages for the invasion. With regard to the sanction of laws, human legislators have generally chosen to make it vindicatory rather than remuneratory, to consist rather in punishments than in rewards. The law seldom, if ever, proposes any privilege or gift to such as obey it; but constantly comes armed with a penalty denounced against transgressors.

Having now gone through the definition of municipal law, I proceed to consider the origin and nature of the laws of England.

SECTION II.

OF THE LAWS OF ENGLAND.

THE municipal law of England may 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 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 former ages to the present by word of mouth. All laws were originally traditional, because the nations among which they prevailed had no idea of writing. But the evidences of our legal customs are now contained in the records of our courts, in books of reports, and in the treatises of the sages of the profession, handed down to us from early times. These parts of our law are 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.

Our ancient lawyers insist that these customs are as old as the primitive Britons. This assertion must be understood only to signify that there never was any formal exchange of one system of laws for another: for unquestionably the Romans, the Saxons, the Danes, and the Normans, who successively occupied parts of England, must have insensibly introduced and incorporated many of their own customs with those that were before established. And our early historians all assure us, that our body of laws is of this compounded nature. They tell us, that in the time of Alfred the local customs of the kingdom were compiled for general use in his dome-book, or liber judicialis; but the establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code to fall into disuse; or at least to be mixed with other laws. So that about the beginning of the eleventh century, there were three principal systems of laws prevailing in different districts. 1. The MercenLage, observed in the midland counties, and those bordering on Wales. 2. The West-Saxen-Lage, which obtained in the south and west of the island, from Kent to Devonshire. 3. The Dane-Lage, or Danish law, the very name of which speaks its origin and composition.

Out of these, Edward the Confessor extracted one uniform law or digest of laws; which seems to have been no more than a new edition of Alfred's dome-book, with such improvements as experience had suggested. These are the laws which our historians mention as the laws of Edward the Confessor; which our ancestors struggled so hardly to maintain under the first Norman princes; and which subsequent kings so frequently promised to restore. They are the laws which gave rise to that collection of maxims and customs, known as the common law, the jus commune or folk-right; in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like.

This unwritten law is distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted by particular courts.

1. As to general custom, or the common law, properly so called; this is that law by which proceedings in the ordinary courts of justice are directed. For example, that the eldest son alone is heir to his ancestor;-that a deed is of no validity until delivered ;-that wills shall be construed favourably, deeds strictly; that breaking the public peace is an offence punishable by fine and imprisonment;-all these doctrines are not set down in any written ordinance, but depend upon immemorial usage, that is, upon common law, for their support.

But here a very natural question arises: how are these customs to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound to decide according to the law of the land. Their decisions are carefully preserved in records, to which when any question arises reference may be made. For it is an established rule to abide by former precedents, where the same points come again into litigation; as well to keep the scale of justice even and steady; as also because the law in that case being solemnly determined, what before was uncertain is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary. The decisions, therefore, of our courts are held in the highest regard, and are not only preserved in the several courts, but are handed out to public view in the numerous volumes of Reports which furnish the lawyer's library.

II. The second branch of the unwritten laws of England are particular customs or laws which affect only the inhabitants of particular districts.

These particular customs, or some of them, are without doubt the remains of that multitude of local customs out of which the common law, as it now stands, was collected at first by the Saxon kings. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large; which privilege is confirmed to them by several acts of parliament.

Such is the custom of gavelkind in Kent and some other parts