quotations from older authors, is the fame learned judge we have just mentioned, fir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extenfive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method. The fecond volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the feveral fpecies of courts'. AND thus much for the firft ground and chief corner stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice: which decifions are preferved among our public records, explained in our reports, and digested for general ufe in the authoritative writings of the venerable fages of the law, THE Roman law, as practifed in the times of it's liberty, paid alfo a great regard to cuftom; but not fo much as our law it only then adopting it, when the written law was deficient. Though the reafons alleged in the digeft" will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "For fince, fays Julianus, the written law binds us for no other reafon but because it is approved by the judgment of "the people, therefore those laws which the people have ap"proved without writing ought alfo to bind every body. For "where is the difference, whether the people declare their It is ufually cited either by the name of Co. Litt. or as i Inft. These are cited as 2, 3, or 4 Inft. without any author's name. An honoJary diftinction, which, we obferved, is paid to the works of no other writer; the generality of reports and other tracts "affent "affent to a law by fuffrage, or by a uniform course of act"ing accordingly?" Thus did they reafon while Rome had fome remains of her freedom: but, when the imperial tyranny came to be fully eftablished, the civil laws fpeak a very different language. " Quod principi placuit legis habet vigorem, 66 cum populus ei et in eum omne fuum imperium et poteftatem con"ferat," fays Ulpian ". " Imperator folus et conditor et inter pres legis exiftimatur," fays the code: and again, "facri"legii inftar eft refcripto principis obviari." And indeed it is one of the characteristic marks of English liberty, that our common law depends upon cuftom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary confent of the people. II. THE fecond branch of the unwritten laws of England are particular cuftoms, or laws which affect only the inhabitants of particular districts. THESE particular customs, or fome of them, are without doubt the remains of that multitude of local customs beforementioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confeffor: each district mutually facrificing fome of it's own fpecial ufages, in order that the whole kingdom might enjoy the benefit of one uniform and univerfal fyftem of laws. But, for reafons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by feveral acts of parliament 2. SUCH is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was also general till the Norman conqueft) which ordains, among other things, Ff. 1.4.1. * C. 1. 14. 12. Y C. 1.23.5. 2 Mag. Chart. 9 Hen. III. c. 9. 1 Edw. III. t. 2. c. 9.-14 Edw. III. ft. 1. c. 1.-and 2 Hen. IV. c. I. that that not the eldeft fon only of the father fhall fucceed to his inheritance, but all the fons alike: and that, though the ancestor be attainted and hanged, yet the heir fhall fucceed to his eftate, without any escheat to the lord.-Such is the cuftom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest fon fhall inherit the estate, in preference to all his elder brothers.-Such is the custom in other boroughs that a widow fhall 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 alfo are the fpecial and particular cuftoms of manors, of which every one has more or less, and which bind all the copyhold and cuftomary tenants that hold of the faid manors. Such likewife is the custom of holding divers inferior courts, with power of trying caufes, in cities and trading towns; the right of holding which, when no royal grant can be fhewn, depends entirely upon immemorial and established ufage.-Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, 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 alfo confirmed by act of parliamenta, To this head may most properly be referred a particular fyftem of customs ufed only among one fet of the king's fubjects, called the custom of merchants or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial tranfactions: for it is a maxim of law, that "cuilibet in fua arte credendum eft." THE rules relating to particular customs regard either the proof of their existence; their legality when proved; or their ufual method of allowance. And first we will confider the rules of proof. 8 Rep. 126. Cro. Car. 347. b Winch. 24. As As to gavelkind, and borough-english, the law takes particular notice of them, and there is no occafion to prove that fuch customs actually exift, but only that the lands in question are fubject thereto. All other private cuftoms must be particularly pleaded, and as well the exiftence of fuch customs must be shewn, as that the thing in difpute is within the cuftom alleged. The trial in both cafes (both to fhew the exiftence of the custom, as, "that in the manor of Dale lands "fhall defcend only to the heirs male, and never to the heirs female;" and alfo to fhew "that the lands in question "are within that manor") is by a jury of twelve men, and not by the judges; except the fame particular custom has been before tried, determined, and recorded in the fame court". THE Customs of London differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and alderman by the mouth of their (a) recorder, unless it be fuch a cuftom as the corporation is itself interefted in, as a right of taking toll, &c. for then the law permits them not to certify on their own behalf 8, WHEN a custom is actually proved to exift, the next inquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used. "Malus ufus abolendus eft" is an established maxim of the law". To make a particular cuftom good, the following are neceffary requifites. 1. THAT it have been used fo long, that the memory of man runneth not to the contrary. So that, if any one can fhew the beginning of it, it is no good cuftom. For which e Co. Litt. 175. Litt. §. 265. e Dr. & St. 1. 10. f Cro. Car. 516. g Hob. 85. Litt. §. 212. 4 Inft. 274. (a) [If any custom has been already certified by the recorder, the judges will take notice thereof in future, and therefore they will not fuffer it to be certified over again. Blaqueire and others, affignees of Sampfon and another, against Hawkins, affignce of Wooldridge, a bankrupt. Douglas, 363.1 reafon reason no custom can prevail against an exprefs act of parliament; fince the ftatute itself is a proof of a time when fuch a custom did not exist j. 2. Ir must have been continued. Any interruption would caufe a temporary ceafing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the poffeffion only, for ten or twenty years, will not destroy the cuftom. As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end. 3. IT must have been peaceable, and acquiefced in; not fubject to contention and difputek. For as customs owe their original to common confent, their being immemorially difputed, either at law or otherwife, is a proof that fuch confent was wanting. 4. CUSTOMS must be reafonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as fir Edward Coke fays", to be understood of every unlearned man's reafon, but of artificial and legal reafon, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be affigned; for it fufficeth, if no good legal reafon can be affigned against it. Thus a custom in a parish, that no man fhall put his beasts into the common till the third of October, would be good; and yet it would be hard to fhew the reafon why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle fhall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lofe all their profits". |