of the kingdom, which ordains that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike. Such is the custom that prevails in divers ancient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs that a widow shall be entitled, for her dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only. Such also are the special and particular customs of manors, which bind all the copyhold and customary tenants that hold of the same manors. Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament.

To this head may most properly be referred a particular system, called the custom of merchants, or lex mercatoria: which however different from the general rules of the common law, is yet engrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that "cuilibet in sua arte credendum est."

III. The third branch of the leges non scriptæ are those peculiar laws used only in certain peculiar courts and jurisdictions; by which I understand the civil and canon laws.

It may seem improper to rank these under the head of leges non scripta, seeing they are set forth by authority in the Pandect, the Code, the decrees of councils, and the decretals of popes. But it is plain, that it is not on account of their being written laws that either the canon or civil law, have any obligation within this kindom: neither does their efficacy depend upon their own intrinsic authority; which is the case of our acts of parliament. They bind not the subjects of England, because their materials were digested by Justinian, or declared authentic by Gregory. These considerations give them no authority here: all the strength that either the papal or imperial laws have obtained in this realm is only because they have been received by immemorial usage in some particular cases; and then they form a branch of the leges non scriptæ, or

customary laws. If they are in some other cases introduced by consent of parliament, they owe their validity to the lex scripta or statute law.

By the civil law is generally understood the municipal law of the Roman Empire, as comprised in the institutes, the digest, and the code of Justinian, and the novella, or new constitutions of himself and some of his successors. These form the Corpus Juris Civilis. The canon law is a body of Roman ecclesiastical law, compiled from the opinions of the Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see. These form the Corpus Juris Canonici, or body of the Roman canon law.

Besides these collections, there is also a national canon law, composed of legatine and provincial constitutions, adapted only to the exigencies of the church of England. These legatine constitutions were enacted in national synods, held under Otho and Othobon, legates from Gregory IX. and Clement IV. in the reign of Henry III. The provincial constitutions are the decrees of synods, held under divers archbishops of Canterbury, from Langton to Chichele; and adopted by the province of York in the reign of Henry VI. At the Reformation, it was enacted that a review should be had of the canon law; and, till such review should be made, all canons, ordinances, and synodals provincial, being then already made, were to be used and executed. As no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.

There are three species of courts, in which the civil and canon laws are used. 1. The ecclesiastical courts. 2. The military courts, now entirely obsolete. 3. The courts of the University of Oxford. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom. For,

1. The High Court of Justice has the superintendence over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, and to restrain and prohibit such excess.

2. The common law reserves to itself the exposition of all such

acts of parliament as concern either the extent of these courts or the matters depending before them. And,

3. An appeal lies from all of them to the crown, in the last resort; their jurisdiction being in theory derived from the Crown of England, and not from any foreign potentate, or intrinsic authority of their own.

And, from these three strong marks and ensigns of superiority, it appears beyond a doubt, that the civil and canon laws are only subordinate, leges sub graviori lege, and inferior branches of the unwritten laws of England.

The leges scriptæ, the written laws of the kingdom, are statutes, made by the sovereign, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous Magna Charta; as confirmed in parliament 9 Henry III.: though doubtless there were many acts before that time, the records of which are now lost. And these statutes are spoken of as general or special, public or private. A general or public act is a universal rule, that regards the whole community. Special or private acts operate upon particular persons, and private concerns, and are hence called local and personal. Statutes also are said to be either declaratory or remedial. Declaratory, where the old law is fallen into disuse, and parliament has thought proper to declare what the common law is and ever has been. Thus the Statute of Treasons does not make any new treason; but only specifies those offences which before were treason at the common law. Remedial statutes are made to supply defects in the common law itself, either by enlarging the law where it was too narrow, or restraining it where it was too lax. Hence another division of remedial acts into enlarging and restraining statutes. To instance again in the case of treason. Clipping the coin was not sufficiently guarded against by the common law: therefore it was at one time thought expedient to make it high treason, so that this was an enlarging statute. At common law spiritual corporations might lease out their estates for any term of years, till prevented by a statute of Queen Elizabeth: this was therefore a restraining statute.

These are the several grounds of the laws of England: over

and above which, equity is also frequently called in to assist, to moderate, and to explain them; from which has arisen the phrase that a particular interpretation is said to be within the equity of a statute. This doctrine is not to be confounded with the system of Jurisprudence which has grown up under the fostering care of our Chancellors, and has now been incorporated with the common law, and which in contradistinction therefrom has hitherto been known as equity. What equity is will be shown hereafter. It took its rise from the necessity of creating a method of detecting latent frauds and concealments, which the process of the common law was formerly not adapted to reach; to enforce the execution of matters of trust and confidence which are considered binding in conscience, though not cognizable in courts of law; and to give a more specific relief, and one more adapted to the circumstances of the case, than could until recently be obtained by the generality of the rules of the common law.

THE LAWS OF ENGLAND.

THE RIGHTS OF PERSONS.

CHAPTER I.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

THE objects of the laws of England are so very numerous and extensive, that in order to consider them with any tolerable perspicuity, it will be necessary to distribute them methodically under proper and distinct heads.

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; it follows, that the principal objects of the law are RIGHTS and WRONGS. I shall follow this very simple division; and consider firstly, the rights that are commanded, and, secondly, the wrongs that are forbidden by the laws of England.

Rights are firstly, those which are annexed to the person, and are then called jura personarum, or the rights of persons; or secondly, such as man may acquire over external objects, and are thence styled jura rerum, or the rights of things. Wrongs also are divisible into, firstly, private wrongs, which concern individuals merely, and are called civil injuries; and secondly, public wrongs, which affect the whole community, and are called crimes and misdemeanors.

The present commentaries will therefore consist of the four following parts:-1. The rights of persons; with the means whereby such rights may be either acquired or lost. 2. The rights of things; with the means also of acquiring and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by