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. () 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.

(j) Co. Litt. 114.

Nothing relating to these particular customs is more noticeable in the judicial decisions than the strong repugnance of the courts to sustaining them, when they go to vary the common law obligations of parties, or to subject them to liabilities which depend on the customs alone. This is not to be wondered at when we reflect how often the very existence of the usage depends upon conflicting testimony, so that the court, when a verdict is found sustaining it, cannot feel entire confidence that the parties contracted in reference to the usage, nor that the court is not enforcing as the law of the contract some practice supposed to have been assented to, but of which one of the parties may never have heard. The following cases will illustrate the truth of our statement: Rogers v. Mechanics Ins. Co., 1 Story, 608; Schooner Reeside, 2 Sumn. 569; Dickinson v. Gay, 7 Allen, 37; Stoever v. Whitman's Lessee, 6 Binn. 416; Caldwell v. Dawson, 4 Met. Ky. 121; Howev. Mutual Safety Ins. Co., 2 Sandf. 130. Coxe v. Heisley, 19 Penn. St. 245; Bissell v. Ryan, 23 Ill. 566.

Mr. Broome says, following Blackstone and the earlier writers, that if one can show its commencement it is no good custom. However true this may be as regards the local customs which establish rights in favor of parties irrespective of contracts, it is clear that it can have no application to the usages which go to interpret the contracts the parties have made. In respect to these it is only necessary that they shall have existed a sufficient length of time without interruption, contention or dispute, to raise a presumption that contracts must have been made in reference to them. Smith v. Wright, 1 Caines, 43; Bartow v. McKelway, 2 N. J. 165. The usages of a new business may soon become fixed and understood, if but few persons are engaged in it who uniformly transact it in a particular way. See Nobell v. Kennaway, Doug. 510; Dorchester and Milton Bank v. New England Bank, 1 Cush. 188.

That the usage must be certain, see Blewett v. Tregoning, 3 A. and E. 555; Padwick v. Knight, 7 Exch. 854; Strong v. Grand Trunk Railway Co., 15 Mich. 221; Wallace v. Morgan, 23 Ind. 408; Wilson v. Willes, 6 East, 121.

The question of the reasonableness of a usage is a question of law for the court: Bowen v. Stoddard, 10 Met. 381; Bourke v. James, 4 Mich. 338; and "the court will not enforce it, or give it the sanction of law, unless it be reasonable and convenient, and adapted not only to increase facilities in trade, but to the promoting of just dealing in the intercourse between parties." Per Hubbard, J., in Macy v. Whaling Ins. Co., 9 Met. 363. A custom that the master of a stranded vessel may sell without necessity is unreasonable and void. Bryant v. Commercial Ins. Co., 6 Pick. 131. So is one that makes the owners of vessels responsible as acceptors on bills drawn by the master, and which have been negotiated on the assumption that the funds were needed for supplies aud repairs. Bowen v. Stoddard, 10 Met. 381. So is one that seamen's advance wages due under shipping articles, shall be paid to the shipping agent, to be paid by him to the boarding house keeper bringing the seamen. Metcalf v. Weld, 14 Gray, 210. And see Sweeting v. Pearce, 7 C. B., N. S., 449; Miller v. Pendleton, 8 Gray, 547; Holmes v. Johnson, 42 Penn. St. 159, So is a custom for the inhabitants of a town to take a profit in alieno solo. Grimstead v. Marlowe, 4 T. R. 717; Perley v. Langley, 7 N. H. 233; Nudd v. Hobbs, 17 N. H. 527. So is any usage that is opposed to the general law of the state on the subject to which it refers; as, for instance, if it give usurious interest on contracts: Green v. Tyler, 39 Penn. St. 361; Dunham v. Dey, 13 Johns. 40; Dunham v. Gould, 16 Johns. 377; Bank of Utica v. Wager, 2 Cow. 712; Pratt v. Adams, 7 Paige, 615; Delaplaine v. Crenshaw, 15 Gratt. 457; or would defeat the purpose of the state inspection laws. Tremble v. Crowell, 17 Mich. 493. And in any case where the statute has defined a word in reference to its use in contracts, usage cannot be allowed to give it a different meaning. Many v. Beekman Iron Co., 9 Paige, 188.

The most serious question pertaining to usages is, whether they are admissible in any case when they oppose or alter a general principle or rule of law, and upon a fixed state of facts would make the legal rights or liabilities of the parties other than they are by the common law. We think we are justified by the authorities in answering this question in the negative. "Nothing," says Ch. J. Gibson, "should be more pertinaciously resisted than those attempts to transfer the functions of the judge to the witnesses' stand, by evidence of customs in derogation of the general law, that would involve the responsibilities of the parties in rules whose existence, perhaps, they had no reason to suspect before they came to be applied to their rights." Bolton v. Coulter, 1 Watts. 360: and see Coxe v. Heisley, 19 Penn. St. 247; Weth

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 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 must 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. (0) 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. 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 towards 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.

(k) Ibid.

(1) Litt. § 212.

(m) 1 Inst. 62.

(n) Co. Copyh. § 33.

(0) 1 Roll. Abr. 565.

erill v. Neilson, 20 Penn. St. 453. "Though usage," said Ch. J. Kent, "is often resorted to for explanation of commercial instruments, it never is, nor ought to be, received to contradict a settled rule of commercial law." Frith v. Baker, 2 Johns. 335. See further, Thompson v. Ashton, 14 Johns. 317; Woodruff v. Merchants' Bank, 25 Wend. 673; Otsego County Bank v. Warren, 18 Barb. 290; Hunton v. Locke, 5 Hill, 437; Bowen v. Newell, 8 N. Y. 190; Freeman v. Loder, 11 A. and E. 589; Homer v. Dorr, 10 Mass. 29; Eager v. Atlas Ins. Co. 14 Pick. 141; Perkins v. Franklin Bank, 21 Pick. 483; Strong v. Bliss, 6 Met. 393; Richardson v. Copeland, 6 Gray, 536; Brown v. Jackson, 2 Wash. C. C. 24; Steward v. Scudder, 4 Zab. 96; West v. Ball, 12 Ala. 347; Beckwith v. Farnum, 5 R. I. 221; Ripley v. Cooper, 47 Me. 370; Harper v. Pound, 10 Ind. 32; Barlow v. Lambert, 28 Ala. 710. Boardman v. Spooner, 13 Allen, 360. "The proper office of a custom or usage in business is to ascertain and explain the intent of the parties; and it cannot be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, nor against the established principles of law." Per Breese, J., in Bissell v. Ryan, 23 Ill. 570. A commercial usage is a long and uniform practice, applied to habits, modes, and courses of dealing. It relates to modes of action, and does not comprehend the mere adoption of certain peculiar doctrines or rules of law. It may operate to give effect to contracts different from that which the common law would have done, but the consequent variation of the legal rights of the parties is only the result of the mode of dealing. The adoption, however, of a mere doctrine as to the rights and obligations of the parties under a contract, which doctrine is contrary to the rule of the common law on the subject, as, for instance, that a warranty should be implied in a sale of chattels where the common law implied none: Coxe v. Heisley, 19 Penn. St. 243; Wetherill v. Neilson, 20 Penn. St. 448; Dickinson v. Gay, 7 Allen, 29; Tremble v. Crowell, 17 Mich. 493; or that a warranty should not exist where the common law implies one: Whitmore v. South Boston Iron Co., 2 Allen, 52; is beyond the province of a commercial usage. The distinction has been well said to be somewhat nice: per Chapman, J., in Dickinson v. Gay, 7 Allen, 37; and it certainly has not always been kept in view; but it is believed to be sound, and, if adhered to, will tend to uniformity in the law, and to protect parties against usages of uncertain character and doubtful propriety.

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. Thus, by the custom of gavelkind, an infant of fifteen years *may, by one species of conveyance, called a deed of [*79] feoffment,) convey away his lands in fee simple, or forever. 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 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.

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. (8)

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, 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 this [*80] 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 they owe their validity to the leges scripta, 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 comprised in the institutes, the code, and the (p) 9 Rep. 58. (q) Co. Cop. 33. (q) Co.

VOL. I. 7

(r) Co. Litt. 15. (8) Hist. C. L. c. 2.

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

40

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 [*81] responsa prudentum, or opinions of learned lawyers, *and lastly upon the imperial decrees, or constitutions of successive emperors,) had grown to so great a bulk, or, as Livy expresses it, (u) “tam immensus aliarum super alias ascervatarum 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 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 nations, and occasioned that mighty inundation of voluminous com[*82] ments, 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 (v) Taylor's Elements of Civil Law, 17.

(u) l. 3. c. 34.

(w) See ƒ 1, page 18.
50

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 pontificial collections, which, during the times of popery, were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national 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 VI. 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 synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.

As for the canons enacted by the clergy under James I in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity, (z) whatever regard the clergy may think proper to pay them. (11)

There are four species of courts in which the civil and canon laws are permitted, under different restrictions, to be used: 1. The courts of the archbishops and bishops, and their derivative officers, usually called in our law courts Christian, curia Christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom, corroborated in the latter instance by act of *parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall [*84] properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them. (a)

1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and, in case of contumacy, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal. (12)

(x) Burn's Eccl. Law, pref. viii. (y) Statute 25 Hen. VIII. c. 19, revived and confirmed by 1 Eliz. c. 1. (z) Stra. 1057. (a) Hale, Hist. c. 2.

(11) [Lord Hardwicke cites the opinion of Lord Holt, and declares it is not denied by any one, that it is very plain all the clergy are bound by the canons confirmed by the king only, but they must be confirmed by the parliament to bind the laity. 2 Atk. 605. Hence, if the archbishop of Canterbury grants a dispensation to hold two livings distant from each other more than thirty miles, no advantage can be taken of it by lapse or otherwise in the temporal courts, for the restriction to thirty miles was introduced by a canon made since the 25 Hen. VIII. 2 Bl. Rep. 968.]

(12) The ecclesiastical courts cannot be allowed conclusively to determine for themselves what matters fall within their jurisdiction. Rex v. Eyre, Stra. 1067. Parties in custody under their orders made without authority will be set at liberty by the common law courts: Jenkins ex parte, 1 B. and C. 655; Boraine's Case, 16 Ves. 346; and a prohibition will issue to the ecclesiastical courts when a want of jurisdiction appears on the face of the proceedings, or