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The rules relating to particular customs regard either the proof of their exist ence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.
*As to gavelkind, and borough-English, the law takes particular notice of them, (c) and there is no occasion to piove that such customs actually
[*76 exist, but only that the lands in question are subject thereto. All other privato customs must be particularly pleaded,(d) and as well the existence of such cus. toms must be shown, as that the thing in dispute is within the custom alleged. The trial in both cases (both to show 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 show “that 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 of their re
(e) Dr. and St. 1, 10.
(0) Co. Litt. 175.
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-angled 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 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 questions upon leases or the game laws. For the position of Lord Coke ought never to be forgotten:-“That the common law has no controller in any part of it, but the high court of parliament; and if it be not abrogated or altered by parliament, it remains still, as Littleton saith." (Co. Litt. 115.) This is agreeable 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.—CHRISTIAN.
That large branch of law which relates to the transactions of commerce is now a parı of the municipal law of the country, whether it be found in statutes or codes, or adopted by general reasoning and the authority of the opinions of jurists and civilians. It is taken notice of judicially by the courts, and is not decided by the jury, as a mere custom would be. Mercantile usage is often appealed to in order to explain doubtful words in a contract, but never to contradict or vary any settled rule or principle of law. The sources of the mercantile law are, mainly, the Roman law, the various codes of modern European nations, and the writings of general jurists; but it is not to be denied that these questions were originally treated in England as matters of custom, and were referred to the decision of a jury of merchants. After one point of such custom was ascer tained by the verdict of a jury, it was not considered proper to submit the same ques. tion to another jury, but it was thereafter judicially inoticed and applied by the court. “Before the time of Lord Mansfield,” says Mr. J. Buller, “we find that, in courts of law, all the evidence in mercantile cases was thrown together: they were left generally to a jury, and they produced no established principle. From that time, we all know, the great study has been to find out some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard those principles stated, reasoned! upon, enlarged, and explained, till we have been lost in admiration of the strength and stretch of the human understanding. And I should be very sorry to find myself under a necessity of differing from any case, which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.” (2 T. R. 73.) * The law merchant,” said Lord Denman, "forms a branch of the law of England; an those customs which have been universally and notoriously prevalent amongst merchants, and have been found by experience to be of public use, have been adopted as a part of it, upon a principle of convenience, and for the benefit of trade and commerce; and, when so adopted, it is unnecessary to plead and prove them. They are binding on all without proof. Accordingly, we find that usages affecting bills of exchange and bills of lading are taken notice of jurlicially.” 6 Man. & Gr. 665.-SHARSWOOD.
corder ;(f) 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.(9)
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:16 So that, if any one can show the beginning of it, it is no good custom. For which reason no custom can prevail against an express act of *77]
*parliament, since the statute itself is a proof of a time when such a
custom did not exist.(* 2. It must have been continued. Any interruption would cause s 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) 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 account 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 show 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.() A custom to pay two
(1) Cro. Car. 516.
Co, Litt. 114.
Litt. & 212.
16 It seems that a custom beginning within any time after the first year of the reign of king Richard I. is bad.-CHITTY.
17 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 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:--CHRISTIAN. 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 provell 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.-Cutty.
pence an arre in lieu of tithes, is good; but to pay sometimes two-pen:e, 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.18
6. Customs, though established by consent, must be (when established) comulsory; 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 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:19 Thus, by the custom of gavelkind, an infant of fifteen years *may, by one species of conveyance,
[*79 (called a deed of feoffment,) convey away his lands in fee-simple, or forever. Yet this custom does not empower him to use any other conveyance, or even to lease them for seven years; for the custom must be strictly pursued.(9) 20 And, moreover, all special customs 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.91 (P) 9 Rep. 58
() Co. Litt. 15. (9) Co. Cop. 2 33.
16 A custom that poor housekeepers 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 can not 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. Bl. 393. 1 Ld. Raym. 407. 1 Saund. 341, n. 3; 346, n. 3.-CHRISTIAN.
19 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 to the eldest niece, or to any other eldest female relation, but upon the same authority by which the custom between sisters is supported. 1T. R. 466.-CHRISTIAN.
» There does not appear to be any authority for this; but, on the contrary, Sir Edward Coke, in the same section, says that a custom is not to be confined to literal interpretation; for, if there be a custom within a manor that copyhold lands may be granted in fee-simple, by the same custom they may be granted in tail for life, for years, or any other extent whatever, because cui licet quod majus non debet quod minus est non licere. STEWART.
a in some of the States, as in Pennsylvania, for instance-general customs and usage on certain subjects prevailed to such an extent as to produce a distinctive common law. In very few of the States, however, do any mere local customs exist such as are treated of by the commentator in this section. They, however, are to be carefully distinguished from usages of trade or business. These are everywhere allowed their just influence and operation. A usage of trade and business clearly proved to exist, to be ancient, notorious, reasonable, and consistent with law, is permitted to explain the meaning of ambiguons words in written contracts, and to control the mode and extent of their rights where the parties have been silent. But it is never admitted against the expressed agreement of the parties, ror in violation of any statute or well-established rule of law. Perhaps
III. The third branch of them are those peculiar laws, which by custom are adopted and used only ir. certain peculiar courts and jurisdictions. And by tŁese 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 scriptæ, 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, recognise any foreign power as superior or equal to it in this kingdom, or as having the right to give *80]
law to any, the meanest, of its subjects. But all the *strength that either
the papal or imperial laws have obtained in 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 scriptæ, 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 scriptæ, 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, recognising 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 comprised 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.
The Roman law (founded first upon the regal constitutions of their ancient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the prætor, and the responsa pru
dentum, or opinions of learned lawyers, and *lastly upon the imperial de
crees, or constitutions of successive emperors) had grown to so great a bulk, or, as Livy expresses it,(u) “ tam immensus aliarum super alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Justinian.(v) This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled A.D. 438, being a methodical collection of all the imperial constitutions then in force which Theodosian code was the only book of civil law received as authentic in
(u) 1. 3, c. 34.
(v) Taylor's Elements of Civil Law, 17. in some cases the courts have gone further than is here indicated; but the current of judicial decisions of late years has been to restrain and limit the abowance and influence of special usages. -SHARsWOOD
($) Hist. C. L. C. 2.
the western part of Europe till many centuries after; and to this it is probable that the Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms : for Justinian commanded only in the eastern remains of the empire; and it was under his auspices that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.
This consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books; containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, in twelve books; the lapse of a whole century having rendered the former code of Theodosius imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian; which, however, fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi, in Italy; which accident, concurring with the policy of the Roman ecclesiastics,(w) suddenly gave new vogue and authority to the civil law, introduced it into several nå. tions, and *occasioned that mighty inundation of voluminous comments,
[*82 with which this system of law, more than any other, is now loaded.
The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see; all which lay in the same disorder and confusion as the Roman civil law, till, about the year 1151, one Gratian, an Italian monk, animated by the discovery of Justinian's pandects, reduced the ecclesiastical constitutions also into some method, in three books, which he entitled Concordia Discordantium Canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX., were published in much the same method, under the auspices of that pope, about the year 1230, in five books, entitled Decretalia Gregorii Noni. A sixth book was added by Boniface VIII. about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement V., were in like manner authenticated in 1317, by his successor John XXII., who also published twenty constitutions of his own, called the Extravagantes Joannis, all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes, in five books, called Extravagantes Communes: and all these together, Gratian's decree, Gregory's decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.
Besides these pontifical collections, which, during the times of popery, weru received as authentic in this island, as well as in other parts of Christendom, there is also a kind of natural canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church *and kingdom. The legatine constitutions were ecclesiastical laws, enacted in
[*83 national synods held under the cardinals Otho and Othobon, legates from pope Gregory IX. and pope Clement IV. in the reign of king Henry III., about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Stephen Langton, in the reign of Henry III., to Henry Chichele, in the reign of Henry V.; and adopted also by the province of York(x) in the reign of Henry VÍ. At the dawn of the Reformation, in the reign of king Henry VIII., it was enacted in parliament(y) that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and syno
(20) See & 1, page 18.
(Statute 25 Hen. VIII. c. 19, revived and confirmed by 1 Eliz. c. 1.