[instructed and 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 private rights, or to redress his private wrongs. To which may be added a fourth, namely, that part of the law which contains the sanction or provision for enforcing the observance of the law.

With regard to the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator; and has very little force or operation with regard to actions which (according to the law of nature) are essentially either right or wrong. With regard to things in themselves indifferent, these become either right or wrong, according as the municipal legislator deems proper for promoting the welfare of society, and the purposes of civil life.

The directory part of municipal law stands much upon the same footing as the declaratory part; and, in fact, the directory includes for the most part the declaratory, the declaration being usually collected from the direction. For example, the law that says "thou shalt not steal," implies a declaration that stealing is a crime.

The remedial part of a law is so necessary a consequence of the former two, that laws must be vague and imperfect without it. For in vain would rights be declared, and directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.

With regard to the sanction of laws, it is observed, that human legislators have for the most part chosen to make sanctions rather vindicatory than remuneratory, or to consist rather in punishments, than in rewards, the dread of evil being a much more forcible principle of human actions than the prospect of good ().

(1) Locke, Human Understanding, b. 2, ch. 21.

[Legislators and their laws are said to compel and oblige. Not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law. For, 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.]

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, namely, 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. But, when we call these parts of our law "unwritten," it is not to be understood that the whole of it is at present merely oral. For although, in the profound ignorance of letters which formerly overspread the whole western world, all its laws were at one time entirely traditional, still with us, at present, the monuments and evidences of our legal customs are contained in the records of the several courts, in the books of reports and judicial decisions, and in the treatises of learned sages of the law, preserved and handed down to us from the remotest antiquity. And these parts of our law are styled leges non scriptæ, because their original institution and authority were not set down in writing, as Acts of Parliament are; but they receive the force of law, by long and immemorial usage, and by their universal reception throughout the kingdom.

Our antient lawyers, and particularly Fortescue (m), insist with abundance of warmth, that these customs are as old as the primitive Britons, and that they have continued down to the present time, unchanged and

S.C.-VOL. I.

(m) Cap. 17.

[unadulterated. And this may be the case as to some. But the assertion (as observed by Selden) must be understood with many grains of allowance, and is merely intended to signify that there never was any formal exchange of one system of laws for another. For, doubtless, the Romans, the Picts, the Saxons, the Danes, and the Normans, insensibly introduced and incorporated many of their own customs with those that were before established, altering thereby the texture of the whole.

Indeed, our antiquarians and first historians do positively assure us, that our body of laws is of this compounded nature. For they tell us 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, for the general use of the whole kingdom.] And, although this assertion, in its literal meaning, can no longer be accepted, yet the fragments of the early English custumals which still survive (n), among them being several attributed to the reign of Alfred, are sufficient to substantiate the general truth of the view, that the old English customary law was derived from very various

sources.

[Under the first princes of the Norman line, our ancestors were engaged in a frequent struggle to maintain certain institutions known by the appellation of the "Laws of Edward the Confessor;" and, inasmuch as the formal document, which for long passed by that name, has been decisively shewn to be spurious, it seems probable that the phrase simply stood for those antient English customs to which we have just referred, and with which, as representing the national aspirations of the conquered English, the name of the last legitimate

(n) The standard edition is that by F. Liebermann (Gesetze der Angelachsen. Niemeyer (Hille)), now in

progress. Older editions are those of Thorpe and Schmid.

[English monarch was naturally connected. The Norman princes made frequent engagements to restore and maintain these laws, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. And it is not unreasonable to believe that these, or some other remains of the law established in this country before the Conquest, gave rise (in part at least) to that collection of maxims and customs which is now known by the name of the common law, a name either given to it in contradistinction to other laws, -as the statute law, the civil law, the law merchant, and the like or more probably, as the law common to all the realm.]

common law no other take an imperfect and

To assign, however, to the original than this, would be to erroneous view of the subject. For our system of tenures was chiefly constructed, if not first founded, by the Norman conqueror and his followers; our antient judicial forms and pleadings have little in common with the Anglo-Saxon style, and are in striking conformity with the Norman; moreover, the general language of the law, and the terms of art familarly used therein, are exclusively of French extraction (o). So that we are bound to recognise in the antient law of Normandy another parent of the common law, and one from which it has inherited some of its most remarkable features (p).

[But, though these are the most likely foundations of the collection of maxims and customs which constitute

(0) "Omnia vocabula, quæ vocabula artis dicuntur, quibusque hodie in foro Angli utuntur, Gallica sunt, nihilque cum Saxonica lingua habent affine."-Craig, Jus Feud. lib. 1. s. 7, § 2.

(p) The similarity of the English and Norman laws is strongly illustrated by a comparison of the Grand Coustumier of Normandy (compiled

as late as Ric. I. and probably later), with our Glanville, who wrote in the reign of Hen. II. This subject is discussed by Hale in Hist. C. L. ch. 6Hale, jealous for the originality of the English law, argues from the posteriority in date of the Grand Coustumier, that, in most of the particulars where the conformity is to be traced, the merit of the first