e circumstances, which (had they been
foreseen) the legislator himself would have excepted. And these are
the cases, which, as Grotius expresses it, "_lex non exacte definit,
sed arbitrio boni viri permittit_."

[Footnote o: _de aequitate._]

EQUITY thus depending, essentially, upon the particular circumstances
of each individual case, there can be no established rules and fixed
precepts of equity laid down, without destroying it's very essence,
and reducing it to a positive law. And, on the other hand, the liberty
of considering all cases in an equitable light must not be indulged
too far, lest thereby we destroy all law, and leave the decision of
every question entirely in the breast of the judge. And law, without
equity, tho' hard and disagreeable, is much more desirable for the
public good, than equity without law; which would make every judge a
legislator, and introduce most infinite confusion; as there would then
be almost as many different rules of action laid down in our courts,
as there are differences of capacity and sentiment in the human mind.

SECTION THE THIRD.

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; 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; and likewise
those _particular laws_, that are by custom observed only in certain
courts and jurisdictions.

WHEN I call these parts of our law _leges non scriptae_, I would not
be understood as if all those laws were at present merely _oral_, or
communicated from the former ages to the present solely by word of
mouth. It is true indeed that, in the profound ignorance of letters
which formerly overspread the whole western world, all laws were
intirely traditional, for this plain reason, that the nations among
which they prevailed had but little idea of writing. Thus the British
as well as the Gallic druids committed all their laws as well as
learning to memory[a]; and it is said of the primitive Saxons here, as
well as their brethren on the continent, that _leges sola memoria et
usu retinebant_[b]. But with us at present the monuments and evidences
of our legal cu