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 recorder 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, (7)

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. 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; since [ 77 ] 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 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

english; the special descent of lands so held, however, in the one case to all the males equally, and in the other to the youngest son alone, is considered the essential custom, and it is of that only, that the position in the text is true. All the other peculiar customs, comprised under the general custom, must be specially pleaded. 1 Lev. p.80. Cro. Car. 562. 1 Siderf. 138. 2 Siderf. 153. 1 Salk. 243.

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becomes more difficult to prove: but if the right be
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. 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 reasonable1; or, rather, taken negatively, they must not be unreasonable. Which is not always, as sir Edward Coke says ", 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 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 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 it's 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 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 ".

(8)

NEXT, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. (9) Thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) [79] convey away his lands in fee simple, or for ever. 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. And, moreover, all special customs must

Yet this

(8) This instance illustrates the rule perfectly well, but the first part of it is not a custom properly taken, but a prescription. For the distinction, see vol.ii. p. 265.

(9) But though to be construed strictly, yet (says Lord Coke) they are not to be confined to literal interpretation; for if there be a custom within any manor that copyhold lands may be granted in feodo simplici, by the same custom they are grantable to one and the heirs of his body, for life, for years, or any estate whatsoever, because cui licet quod majus, non debet quod minus est non licere. So if there be a custom that copyhold lands may be granted for life, by the same custom they may be granted durante viduitate, but not e converso, because an estate during widowhood is less than an estate for life. Co. Copyholder. s. 33.

submit to the king's prerogative. (10) 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. 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 Hale", 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

(10) This sentence is so worded, that it might lead to the erroneous notion of the king's being able by his prerogative to controul the enjoyment of the special customs, to which any of his subjects may have a legal right. In the sense in which the position is true, it is equally true of the general customs or law of the land. It would have been better to treat this as part of a separate law, the jus coronæ, and as applicable to property in the crown; the sum of it is, that wherever either a general or a special custom of descents would operate so as to sever lands before held by the king, jure coronæ from the person of the new king, there that custom cannot prevail," for the crowne, and the lands, whereof the king is seised in jure corona, are concomitantia." Thus, if the king dies, leaving two sons by different wives, and the elder having succeeded, and having been seised of lands in fee, dies without issue, the younger will, with the crown, inherit these lands, though of the half-blood to the person last seised. So if the king dies, leaving two daughters, the eldest will, with the crown, take all the lands whereof he was seised in jure coronce alone, and not as coparcener with her sister. These are two instances where the general custom as regards subjects, will not prevail against the jus corona. See Co. Litt, 15.6.

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 [80] 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 scriptae, 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 scriptae, 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

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to the observance of the laws of any foreign prince, poten"tate, or prelate; but as to the customed and antient 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 institutes, 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