stoms are contained in the records of the several
courts of justice, in books of reports and judicial decisions, and in
the treatises of learned sages of the profession, preserved and handed
down to us from the times of highest antiquity. However I therefore
stile these parts of our law _leges non scriptae_, 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_."

[Footnote a: _Caes. de b. G._ _lib._ 6. _c._ 13.]

[Footnote b: Spelm. Gl. 362.]

OUR antient lawyers, and particularly Fortescue[c], insist with
abundance of warmth, that these customs are as old as 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.

[Footnote c: _c._ 17.]

[Footnote d: See his proposals for a digest.]

AND indeed our antiquarians and first 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 the local customs of the
several provinces of the kingdom were grown so various, that he found
it expedient to compile his _dome-book_ or _liber judicialis_, for the
general use of the 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 suppos