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tion in the discharge of their public duties as subjects of the British crown. How important is it, then, that we should all know something concerning the principles of that constitution in the administration of which we are all so much concerned How necessary is it for every man, who wishes to exercise his privileges as a British subject with a safe conscience, to be acquainted with the constitution, for the welfare and good administration of which he, to the extent of his power and influence, is responsible ! The British constitution is not to be found in any written code or charter. It does not consist in a few general principles, under the guidance of which a man may safely decide on the expediency of measures canvassed on the hustings, or proposed in parliament; but in a highly complicated and artificial system, interwoven with the national jurisprudence, combining the advantages of monarchy, aristocracy, and democracy, and guarding against the inconveniences to which the simple rule of each of those powers is naturally liable. Such a form of civil polity must evidently be studied, by those who partake of its privileges, with some considerable degree of detail, without which they cannot accurately understand what it in fact is, on what authority its different institutions and maxims are established, and on what reasons they are grounded, so as to perceive the bearing of any proposed measure or line of policy upon the benefits which we derive therefrom, or upon the inconveniences or defects of our municipal laws, which may from time to time require amendment. The object of this treatise is to initiate the reader into the general frame and principles, as well as the more important details, of our constitution ; excluding all speculative theories, however important and valuable, and adhering to the rules and opinions laid down by undoubted and recognised authority. He will thus be enabled to pursue his inquiries, if he thinks proper, by being furnished with a clue to the chief depositories of constitutional learning on each portion of our public law.
We have already observed, that the British constitution is not to be found in any separate code or charter, like that of France and several other continental nations. It is a part of what is emphatically called by the general appellation of the law of the land, which is the birthright of the subject. It was not enacted nor established at any one time, but has grown up with the body of the common and statute-law of the kingdom, whereof it is the most noble and important part.
A definite and accurate notion cannot, therefore, be formed respecting the constitution, without some preliminary inquiry into the nature and origin of our municipal law, and of the different parts into which it is divided. How, indeed, can any one have a clear notion of the civil polity of the kingdom, without knowing what the law of the land is, whereby that polity is constructed and the empire is governed?
We will, therefore, proceed, previous to entering on the examination of the constitutional law of England, to take a cursory view of the nature and divisions of the English law.
The well-known definition of municipal law, or the law by which each country is separately governed, is, that I "it is a rule of civil conduct prescribed by the supreme power in a state." The law of England, understood in this general sense, as the rule to which all persons within its jurisdiction must conform, and which is prescribed to them, either directly or by implication, by the supreme authority of the state, is divisible into two parts,— Common Law, and Equity. In this chapter we will treat of Common Law, and in the next of Equity. The Common Law, as contradistinguished from Equity, is divided into two parts, unwritten law, or common law strictly so called, and written law, or statute-law. The former derives its force from custom, and the latter from . enactment by parliament. Customary law, which forms a part of almost every system of jurisprudence, has been held by high authority to derive its force from the tacit assent of the legislative power. Thus, as the Roman people had the power of making law, the Roman jurisconsult Salvius Julianus, in asserting the authority of custom, says, “What difference in effect is there, whether the people declare their assent by acts or by their votes in the forum ?” It would be unreasonable that the force of law should be refused to customs established by the tacit assent of the whole community, and the acquiescence of that power which, being able to make and abrogate laws, might, by a public expression of its dissent, have prevented the custom from becoming established. Thus it appears that the authority of customary law proceeds from the same source as that of statute-law, or acts of the legislature, that is to say, the will of the supreme power of the state.” It is the difference of the mode of enacting statute-law, and that of establishing customary law, which has given rise to the denominations of written law and unwritten law.” This distinction does not mean that customary law may not be written, but that it is not enacted in a written form. It is
* L. 32. Pandect. tit. de Legibus, &c. Quid interest suffragio populus voluntatem suam declaret, an rebus ipsis et factis 2
* Reeves, Hist. of Com. L. vol. i. p. 2; and Blackst. Com. introd.
* Winnius ad Inst. lib. i. t. i. § 3. 10.
established by usage before it is recorded in writing, whereas statute-law is enacted in a written form.
The exact origin of the common law of England, so called in contradistinction to the statute-law, is involved in much obscurity and doubt. The Britons, Romans, Saxons, Danes, and Normans, in turn governed this country by their laws; and the common law is held to be derived in part from each of them. But the more ancient portions of the system have become obsolete and forgotten; and the feudal laws introduced by the Normans are the chief sources of the old common law, so far as it has come down to us.1
The division of the country into tithings, hundreds, and counties, the original municipal constitution of ancient towns, the office of sheriff, and trial by jury, are of Saxon origin.
But the three last of these important heads of law underwent most important changes under the Norman government; and to the Normans we owe the chief features of our constitution, as well as the fundamental principles of our laws respecting landed property.
The Saxon kings, especially Alfred, Edgar, and Edward the Confessor, either enacted laws or compiled those of their predecessors; and the text of those laws having been lost, or their direct authority superseded, portions of them became incorporated in the common or customary law.
To these materials or sources of the common law we must add the law of reason p for the ancient judges and sages of the law interpreted and applied the immemorial
1 Hallam, Mid. Ages, c . viii. part ii. Hale, Hist, of Com. Law, c. iv. per tot.
2 Dr. and Student, dial. i. c. v. Millar ». Taylor, 4. Burrow customs of the kingdom to new cases as they arose, and extended their principles by the use of reason.
It is, however, held, that though certain maxims1 of the law are probably derived from no other authority than the light of reason, yet the reason of the law is not like common reason, but is to be acquired by study of the grounds and principles of the law.
This unwritten or common law is of three species, namely—I. General customs, or the common customs of the realm,2 which extend over the whole kingdom, and form the common law more strictly so called.—II. Particular customs, which affect only certain places, towns, or districts.—And, III. Certain particular laws, which are allowed by the common law to regulate certain matters, and are administered by special courts of a subordinate and confined jurisdiction.
The general customary law, or common law, is that by which the administration of justice is regulated in the queen's ordinary courts. By this law, also, are defined and governed the general form of the constitution, the attributions and authority of the ancient magistrates, the ancient prerogative of the crown, and the administration of criminal law.3 Thus it is by the common law that the Parliament is composed of the King, the Lords, and the Commons; that the king can do no wrong; that there are four superior courts of record, namely, the Chancery, the Queen's Bench, the Common Pleas, and the Exchequer; that the courts of the coroner, and the courts leet and courts baron, are constituted, and the kingdom divided into counties, hundreds, tithings, and parishes.
» Co. Litt. 92 a. 78 b.
2 Sir John Davis, pref. to Reports.
3 Hale, Hist, of Com. L. c. ii. p. 2i.