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which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people (12).

II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts. These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, 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 confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons 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 several acts of parliament (z).

Such is the custom of gavelkind in Kent, and some other parts of the kingdom (though perhaps it was also general till the Norman conquest), which ordains, among other things, *that not the eldest son [*75] only of the father shall succeed to his inheritance, but all the sons

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alike and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.—Such is the custom that prevails in divers antient 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; (z) Mag. Cart. 9 Hen. III. c. 9.-1 Edw. III. st. 2. c. 9.-14 Edw. III. st. 1. c. 1.—and 2 Hen. IV. c. 1.

(12) Lord Chief-Justice Wilmot has said that "the statute law is the will of the legislature in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. (2 Wils. 348.) And statute law, and common law, both originally flowed from the same fountain." (Ib. 350.) And to the same effect Lord Hale declares, "that many of those things that we now take for common law, were undoubtedly acts of parliament, though now not to be found of record." (Hist. Com. Law, 66.) Though this is the probable origin of the greatest part of the common law, yet much of it certainly has been introduced

It has been frequently adjudged, that a driver upon the wrong side of the road, met by another who will of course be upon his own right side, is not upon that account to be inJared with impunity. Which the proper side is, is conventional between those who frequent the public roads or streets; but it is not yet noted as a custom to guide or direct a decision in our courts of law against him who has not observed it. 1 R. S. 695, requires the driver of a carriage to turn to the right when meeting another carriage; so also 1 R. S. 683, steam-boats meeting must pass to the right. The owner of a vessel navigating a river, having it in his power to avoid a collision with another vessel, yet neglecting to exercise that power, is liable for the damages sus

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by usage, even of modern date, which general
convenience has adopted. As in the civil law,
sine scripto jus venit, quod usus approbavit, nam
diuturni mores consensu utentium comprobati le-
gem imitantur. (Inst. 1, 2. 9.)
Of this na-
ture in this country is the law of the road, viz.
that horses and carriages should pass each
other on the whip hand. This law has not
been enacted by statute, and is so modern,
that perhaps this is the first time that it has
been noticed in a book of law. But general
convenience discovered the necessity of it,
and our judges have so far confirmed it, as to
declare frequently at nisi prius, that he who
disregards this salutary rule is answerable in
damages for all the consequences.-CH.

tained by the other vessel, though that vessel has the wind. It was so adjudged against the owners of a steam-boat in 2 Wendell, 452, the steam-boat being more manageable than a sloop with a light favourable wind. The same principles must apply to carriages. Judge Best, L.C.J. C.P. in Rougemont v. Smith, tried at London Sittings after Trinity Term, 6 G. IV. observed, "That admitting a party's mare to be ridden on the wrong side of the road, as it is called, she was not therefore to be run against and killed." The question may always be sensibly put, "Was there roadroom enough for both parties to pass? if there were, through whose incautious riding or driving was the injury done?"

whereas, at the common law, she shall be endowed of one third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors.-Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns, the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage.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 also confirmed by act of parliament (a).

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, 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 (b); 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 (13)."

The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.

[*76]

*As to gavelkind, and borough-English, the law takes particular notice of them (c), and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded (d), and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. The trial in both cases (both to shew the existence of the custom, as, "that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female ;" and also to shew "that

(a) 8 Rep. 126. Cro. Car. 347. (b) Winch. 24.

(13) The ler mercatoria, or the custom of merchants, like the lex et consuetudo parliamenti, describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land, as the laws relating to marriage or murder. But the expression has very unfortunately led merchants to suppose, that all their crude and new-fangled fashions and devices immediately become the law of the land: a notion which, perhaps, has been too much encouraged by our courts. Merchants ought to take their law from the courts, and not the courts from merchants: and when the law is found inconvenient for the purposes of extended commerce, application ought to be

*The right of lien in a particular trade; as, for instance, a packer; ex parte Deeze, 1 Atkins, 228, could never have been part of the common law; and yet, as a usage found in the particular trade, our courts have sanctioned it. Thus a banker, for the general amount of a balance due to him from a customer, has a lien upon his cheques and bills paid in the course of business, 15 East, 428; so of a

(c) Co. Litt. 175.
(d) Litt. 265.

made to parliament for redress. Merchants
ought to be considered in no higher degree
their own legislators or judges upon subjects of
commerce, than farmers or sportsmen in ques-
tions upon leases or the game laws. For the
position of Lord Coke ought never to be for-
gotten: "That the common law had no con-
troller in any part of it, but the high court of
parliament; and if it be not abrogated or al-
tered by parliament, it remains still, as Little-
ton saith."
(Co. Litt. 115.) This is agreea-
ble to the opinion of Mr. Justice Foster, who
maintains, that "the custom of merchants is
the general law of the kingdom, and therefore
ought not to be left to a jury after it has been
settled by judicial determinations." 2 Bur.
1226.-CH.*

wharfinger on goods actually on his wharf, Naylor v. Mangles, 4 Esp. R. 109, recognized as authority by Lord Eldon, and C. J. C. P. Shears, Hartley, 3 Esp. Id. 81. Lien, both general and particular, has been well treated by Mr. Whitaker. And see 6 East, 519; 7 Id. 224; 9 Id. 428, and 3 M. c. S. 167, also mentioned above.

the lands in question are within that manor") is by a jury of twelve men, and not by the judges; except the same particular custom has been before tried, determined, and recorded in the same court (e).

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 aldermen by the mouth (14) of their recorder (ƒ); unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c. for then the law permits them not to certify on their own behalf (g).

When a custom is actually proved to exist, 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 usus abolendus est" is an established maxim of the law (h). To make a particular custom good, the following are necessary requisites.

1. That it have been used so long, that the memory of man runneth not to the contrary (15). So that, if any one can shew the beginning of it, it is no good custom. For which reason no custom can prevail against an express act of parliament (16), since the statute itself is a proof [*77], of a time when such a custom did not exist (i).

2. It must have been continued. Any interruption would cause a temporary ceasing 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 possession only, for ten or twenty years, will not destroy the custom (j).ˆ 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 acquiesced in; not subject to contention and dispute (k). For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.

4. Customs must be reasonable (1); or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says (m), to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. Upon which ac

(e) Dr. and St. 1. 10.

(f) Cro. Car. 516.

(g) Hob. 85.

(A) Litt. 212. 4 Inst. 274.

(1) Co. Litt. 114.

(14) As to proof of the customs of London, see 1 Burr. 248.

(15) It seems that a custom beginning with in any time after the first year of the reign of King Richard the First, is bad.

(16) Therefore a custom that every pound of butter sold in a certain market should weigh eighteen ounces is bad, because it is directly contrary to 13 and 14 Car. II. c. 26, which directs, that every pound, throughout the kingdom, should contain sixteen ounces. (3 T. R. 271.) But there could be no doubt, I conceive, but it would be a good custom to sell lumps of butter containing eighteen ounces; for if it is lawful to sell a pound, it must be so to sell a VOL. I.

12

(j) Co. Litt. 114.
(k) Ibid.

(2) Litt. 212.
(m) 1 Inst. 62.

pound and any aliquot part of one. The inconvenience and deception arise from calling that a pound in one place which is not a pound in another.-CH. Therefore, where a contract is made to sell specified goods by quantities of weight or measure-this must mean statute weight or measure. As, if a plaintiff declares for breach of contract, in not delivering "four hundred bushels of oats," and it is proved the agreement was for four hundred bushels in some particular measure other than the Winchester bushel, which is the statute measure, this is a fatal variance, and the plaintiff would be nonsuited. See 4 T. R. 314. 6 T. R. 338. 4 Taunton, 102. 11 East, 300.

count a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall 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 lose all their profits (n).

[*78]

*5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good (o). A custom to pay two-pence an acre in lieu of tithes, is good; but to pay sometimes two-pence, and sometimes three-pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum reddi potest (17).

6. Customs, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.

7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom (p).

Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly (18). Thus, by the [*79] custom of gavelkind, an infant of fifteen years *may, by one species of conveyance, (called a deed of feoffment,) convey away his lands in fee simple, or for ever. Yet this custom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued (q). And, moreover, all special cus

(n) Co. Copyh. ◊ 33. (0) 1 Roll. Abr. 565.

(17) A custom, that poor house-keepers shall carry away rotten wood in a chase is bad, being too vague and uncertain. 2 T. R. 758.A right to glean in the harvest-field cannot be claimed at common law; neither have the poor of a parish legally settled such right within the parish, 1 H. Bl. 51, 52. So a custom for every inhabitant of an ancient messuage within a parish to take a profit a prendre in the land of an individual, is bad. But such a right may be enjoyed by prescription or grant. 4 Term Rep. 717, 718.-2 H. BI. 393.-1 Ld. Raym.

(p) 9 Rep. 58.

(g) Co. Cop. 33.

407.-I Saund. 341, n. 3; 346, n. 3.CH.

(18) This rule is founded upon the consideration, that a variety of customs in different places upon the same subject is a general inconvenience; the courts therefore will not admit such customs but upon the clearest proof. So where there is a custom that lands shall descend to the eldest sister, the courts will not extend this custom o the eldest niece, or to any other eldest male relation. 1 T. R. 466.

toms must submit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone (r). And thus much for the second part of the leges non scriptæ, or those particular customs which affect particular persons or districts only. III. The third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws (s).

It may seem a little improper at first view to rank these laws under the head of leges non scripte, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But I do this, after the example of Sir Matthew Hale (t), because it is most plain, that it is not on account of their being written laws that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here; for the legislature of England doth not, nor ever did, recognize any foreign power as superior or equal to it in this kingdom, or as having the right to give law to any, the meanest, of its subjects. But all the *strength that either the papal or imperial laws have obtained in [*80] this realm, or indeed in any other kingdom in Europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scripte, or customary laws; or else because they are in some other cases introduced by consent of parliament, and then they owe their validity to the leges scripte, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21, addressed to the king's royal majesty: "This your grace's realm, recognizing no superior under God but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm, for the wealth of the same; or to such other as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same; not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise."

By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the institute, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.

(r) Co. Litt. 15.

(s) Hist. C. L. c. 2.

(t) Hist. C. L. c. 2.

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