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twenty-four hours' possession, in respect to booty on land. The same rule was formerly considered applicable to captures at sea; but the more modern usage of maritime nations requires, as already stated, the formal sentence of condemnation, in order to preclude the right of the original owner to restitution on payment of salvage.

A treaty of peace binds the contracting parties from the time of its signature. It binds the subjects of the belligerent nations from the time it is notified to them.

1 Wheaton, p. 884.

343

CHAPTER V.

ENGLISH MUNICIPAL LAW.—THE PUBLIC SUBSTANTIVE

BRANCH.

THOUGH it is my duty in this work to confine myself strictly to the Public branch of English Municipal Law, and to the substantive portion of that branch, I have constructed three Tables, numbers V., VI., and VII., to illustrate this Chapter, in order that the reader may the more readily be able accurately to determine the relation of the public to the private, and of the substantive to the adjective, law of our land. Concerning Tables V. and VI., I shall have but little to say in this Chapter, and must leave the reader to interpret them for himself with the aid of what has been said in the Chapter on General Jurisprudence.

The Laws of England prevail in their entirety in the Kingdom of England, and the Principality of Wales alone. The civil division of England is into counties, subdivided into rapes, lathes, or trithings, which are again divided into hundreds or wapentakes and finally into towns, vills, or tithings. The terri. tory of England is divided ecclesiastically into provinces, dioceses, archdeaconries, rural deaneries, and parishes.

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—the lex non scripta, the unwritten (or common) law; and the lex scripta, the written (or statute) law.

The Sources of English Municipal Law are twocustom and legislation. Those laws that had their origin in custom, or in statute anterior to the reign of Richard I., i.e., before July 6, 1189, constitute what is termed the Common Law of England. The residue of our law, styled the Statute Law, or the lex scripta, had its origin in Statutes or Acts of Parliament subsequent to that date.

Lex Scripta (Statute Law) and Lex non Scripta (Common Law) distinguished.—The Laws of England, says Sir Matthew Hale, may be divided into two kinds, viz., the lex scripta, and the lex non scripta. The lex scripta, or written law, not unfrequently termed Statute Law, consists of Acts of Parliament, which in their original formation were reduced into writing, and are still preserved in their original form, and in the same style and words wherein they were first made. The lex non scripta, or unwritten law, includes not only general customs, or the Common Law properly so called, but even those more particular laws and customs applicable to certain courts and persons. And when I call those parts of our laws leges non scripta, I do not mean as if those laws were only oral, or communicated from the former ages to the later merely by word; for all those laws have their

i Steph. Com. vol. i. p. 41. 2 History of the Common Law of England, p. 1 et seq. 3 See post, “Time within Memory,” statutes before, p. 347.

several monuments in writing, whereby they are transferred from one age to another, and without which they would soon lose all kind of certainty : for as the civil and canon laws have their responsa prudentum consilia et decisiones, i.e., their canons, decrees, and decretal determinations, extant in writing ; so those laws of England which are not comprised under the title of Acts of Parliament, are for the most part extant in records of pleas, proceedings, and judgments; in books of reports, and judicial decisions; in tractates of learned men's arguments and opinions, preserved from ancient times, and still extant in writing.

'But I therefore style those parts of the laws leges non scripte, because their authoritative and original institutions are not set down in writing in that manner or with that authority that Acts of Parliament are; but they are grown into use, and have acquired their binding power and the force of laws BY A LONG AND IMMEMORIAL USAGE, and by the strength of custom and reception in this Kingdom.'1 Ex non scripto jus venit quod usus comprobavit. Nam diuturni mores consensu utentium comprobati legem imitantur.?

Sir Matthew Hale divides the leges non scriptæ into -1, " The Common Law," as it is taken in its proper and usual acceptation ; 2, Those particular laws, applicable to particular subjects, matters, or courts. The former, he says, directs the course of descents of lands; and the kinds, the natures, and the extents and qualifications of estates therein; also, the manner, forms, ceremonies, and solemnities of transferring estates from one to another; the rules of settling, acquiring, and transferring of properties; the forms, solemnities, and obligation of contracts; the rules and directions for the exposition of wills, deeds, and acts of parliament; the process, proceedings, judgments, and executions of the King's ordinary Courts of Justice; the limits, bounds, and extents of courts, and their jurisdictions; the several kinds of temporal offences and punishments at Common Law, and the manner of the application of the several kinds of punishments, and infinite more particulars, which extend themselves as large as the many exigencies in the distribution of the King's ordinary justice requires. Since Sir Matthew Hale’s time, however, much that was then regulated by the Common Law is now controlled by Statute. The Common Law cannot be authoritatively altered, except by Act of Parliament.

1 Hale, p. 21.

2 Just. Inst. 1, 2. 9.

Statute Law (Lex Scripta).—We have no authentic records of any Acts of Parliament before 9 Hen. III.,3

1 Hale, p. 22. · The “Common Law” has been variously styled the lex terre, as in Magna Charta, cap. 29; lex Angliæ, as in the Statute of Merton, cap. 9 ; lex et consuetudo regni, as in commissions of Oyer and Terminer, and in the Statutes of 18 Edw. I. cap. , and De Quo Warranto; but most frequently it is called the Common Law, or the Common Law of England, as in the Statute of Articuli super Chartas, cap. 15, in the Statute 25 Edw. III., cap. 5, &c. (Hale, p. 52.) The term Common Law is said by some to have been employed to distinguish that body of laws so designated from—1, the Statute law; 2, particular customary laws; and 3, from the civil, canon, and military law, which are, in some particular cases and courts, admitted as the rule of their proceedings. (For Sir Matthew Hale's account of the origin of the expression Common Law, see Hale, pp. 53 and 54.)

3 The former part of the history which goes under the name of Matthew Paris, to the year 1235, which gives an account of the Magna Charta and Charta de Foresta, is supposed to have been written by Roger Wendover; but it is generally referred to as the work of Matthew Paris, who died A.D. 1259. For a concise view and

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