Page images

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 6 lands shall descend only to the heirs male, and never to “ the heirs female ;" and also to shew “ that the lands in 6 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 courte.

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 (9) of their recorderf; 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 behalfs.

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

[blocks in formation]

(9) Sir James Burrow has reported the mode by which the recorder certifies the custom with such a degree of accuracy, as to specify which of his four gowns he shall wear upon the occasion. (1 Bur. 248.) When a custom has been once certified by the recorder, the judges will take notice of it, and will not suffer it to be certified a second time. (Doug. 365.) Lord Mansfield nonsuited the plaintiff in an action brought against the defendant on the custom of London, for calling the plaintiff a whore, the plaintiff not being able to prove the custom of inflicting a corporal punishment, by carting women of that description. But in the city court such an action is maintained, because they take notice of their own customs without proof. Ib.

an established maxim of the lawh. 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. So that, if any one can shew the beginning of it (10), it is no good custom. For which rea

son no custom can prevail against an express act of [77] parliament (11); since the statute itself is a proof of

a time when such a custom did not exist j. 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 cus: tomi. 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 disputes. For as customs owe their

h Litt. sec. 212. 4 Inst. 274.
j Co. Litt. 113

i Co. Litt. 114.
k Ibid.

(10) If any one can shew the beginning of it within legal memory, that is, within any time since the first year of the reign of Richard the first, it is not a good custom

(11) Therefore a custom that every pound of butter sold in a certain market should weigh 18 ounces is bad, because it is directly contrary to 13 & 14 Car. II. c. 26, which directs, that every pound, throughout the kingdom, shall contain 16 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 18 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.

original to common consent, their being immemorially dis. puted, either at law or otherwise, is a proof that such consent was wanting

4. Customs must be reasonablel; or, rather taken nega. tively, 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 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".

5. Customs ought to be certain. A custom, that [78] 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 goodo. · 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 (12).

I Litt. sec. 212.
m 1 Inst, 62.

n Co. Copyh. sec. 33.
0 1 Roll. Abr. 565.

(12) A custom, that poor housekeepers shall carry away rotten wood in a chase is bad, being too vague and uncertain, 2 T. R. 758.

VOL. I. : 12

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

(13). Thus, by the custom of gavelkind, an infant of [79] fifteen years may by one species of conveyance (call

ed a deed of feoffment) convey away his lands in fee simple, or for ever. 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 pursued9. And more.

[blocks in formation]

(13) This rule is founded upon the consideration, that a variety of customs in different places upon the same subject is a general incon. venience; 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 nicce, or to any other eldest female relation, but upon the same authority by which the custom between sisters is supported. 1 T. R. 466.

over, 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 aloner. And thus much for the second part of the leges non scriptae, 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.

It may seem a little improper at first view to rank these laws under the head of leges non scriptae, 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 Hales, 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 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

r Co. Litt. 15.

8 Hist. C. L.. C.2.

« PreviousContinue »