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which bind all the copyhold and customary tenants that hold of the said manors.

5. 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 shown, depends entirely upon immemorial and established usage.

6. 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. The customs of London are, however, confirmed by Act of Parliament.

To this head may be referred a particular system of customs which comprises certain rules relative to bills of exchange and other mercantile matters, and which is generally denominated the custom of merchants-Lex Mercatoria, and allowed for the benefit of trade. It forms a portion of the general law of England, and is composed of European usages in matters relative to

commerce.

What are the Rules with regard to "Particular" Customs? Proof of their existence; their legality when proved; the legal construction to be put upon them.

To make a particular custom good, the following are necessary requisites:

1. The custom must have been used so long that the memory of man runneth not to the contrary. Legal memory dates from the first year of the reign of Richard I.; but stat. 2 & 3, Wm. IV., c. 71, and subsequent statutes materially qualify this rule, and in a large class of cases shorten the legal time of prescription to twenty years, making undisturbed usage for that period a bar or title in itself, unless enjoyed in virtue of an agreement between the parties.

2. A custom, in order to be valid, must have been continued. Any interruption of the right would cause a temporary ceasing; the revival gives it a new beginning, which, if within time of memory, the custom will be void. This must be understood only with regard to an interruption of the right; for an interruption of the possession for ten or twelve years will not destroy the custom.

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3. It must have been peaceable and acquiesced in, not subject to contention and dispute.

4. A custom must be reasonable; it being sufficient that no good reason can be assigned against it.

5. A custom must be certain, for a custom admits of no caprice or fancy.

6. A custom must be compulsory, not left to the option of every man whether he will use it or not.

7. Customs must be consistent with each other; for one custom cannot be set up in opposition to another.

How are Customs Construed?

Customs in derogation of the common law must be construed strictly, but not necessarily confined to literal interpretation. Thus, by the 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 life; yet this custom does not empower the use of any other conveyance, for the custom must be strictly pursued; but if there is a custom in a manor that a man may convey his copyhold in feesimple, it will also enable him to convey for life, or any other estate, for the less is implied in the greater.

No custom, however, can prevail against an express Act of Parliament.

Besides local customs, there are in different parts of the country certain usages which, unless expressly excluded by agreement, regulate the contract. For instance, the reciprocal rights of incoming and outgoing tenants; usages of trade which exist in certain places; but they cannot in strictness be considered as forming part of our customary law.*

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Explain the Laws which, by "Custom," are adopted and used only in certain peculiar Courts and Jurisdictions.

These are the Civil and Canon Laws.

* The validity of these customs and usages is determined by the Judges in the several courts of justice, who are bound by oath to decide according to the law of the land, viz., the judicial decisions of their predecessor..

The Civil Law is generally understood to be the civil or municipal law of the Roman Empire, as comprised in the Institutes, the Code, and the Digest of the Emperor Justinian, and the Novel Constitutions of himself and some of his successors; but all the force that either the Imperial or Papal laws have attained in this realm, is because they have been admitted and received by immemorial usage and custom in some particular cases and some particular courts, where they form a branch of the leges non scriptæ; or else, in some other cases, introduced by consent of Parliament, and then they owe their validity to the leges scriptæ, or statute law.

The Canon Law is a body of Roman ecclesiastical law relative to matters over which that Church either has, or pretends to have, the proper jurisdiction. It 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. Besides these pontifical collections, there is also a kind of national law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this Church.

There are three species of courts in which the civil or canon laws are permitted, under different restrictions, to be used.*

The Courts of Common Law have the superintendency over these courts, to keep them within their respective jurisdiction, 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.

The common law has also reserved to itself the exposition of all such Acts of Parliament as concern either the extent of these courts or the matters depending before them.

An appeal lies from all these courts to certain superior courts hereafter discussed, and to the Sovereign in the last resort.

*See "Ecclesiastical Courts," p. 216.

CHAPTER IV.

STATUTE LAW.

Let us next proceed to the Leges Scriptæ, the written laws of the kingdom.

Explain the Written or Statute Laws, and state briefly the different kinds of Statutes, and the general rules with regard to their construction.

The written laws of the kingdom are Statutes, Acts, or Edicts, made by the Sovereign, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled. The oldest of these, now extant and printed in our Statute-book, is the famous Magna Charta, as confirmed in Parliament in the ninth year of Henry III.

Statutes are either public or private. A public Act is a universal rule that regards the whole community. Private Acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns.

Statutes are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case Parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever has been. Remedial statutes are those which are made to supply such defects and abridge such superfluities in the common law as arise from the general imperfection of all human laws; or from change of time and circumstances, or the mistakes and unadvised determinations of unlearned or even learned judges, or from any other cause whatsoever.

There is also a subdivision of these Acts of Parliament into enlarging and restraining Acts, and this is done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax. A repealing Act revokes and cancels a former statutory law.

Parliament is presumed to legislate prospectively, not retrospectively; and statutes are therefore to be construed as prospective, unless they are expressly made applicable to transactions past or pending.

An Act of Parliament begins to operate when it receives the Royal assent, unless some other time is fixed by the Act itself.

What are the Rules for the Construction of Acts of Parliament?

1. To consider how the law stood at the time of passing the Act; what the mischief was for which the law did not provide ; what remedy the Parliament provided to cure the mischief.

2. A statute which treats of things or persons of an inferior rank cannot, by general words, be extended to those of a superior degree.

3. Penal statutes must be construed strictly, but not too literally.

4. Statutes against frauds are to be liberally and beneficially expounded; this difference to be remembered, that where the statute inflicts a penalty or fine, it is then to be taken strictly; but where the statute acts upon the offence, as by setting aside a fraudulent transaction, here it is to be construed liberally.

5. One part of a statute must be construed by another, so that the whole may be valid rather than perish: ut res magis valeat quam pereat.

6. A saving totally repugnant to the body of the Act is void. 7. Where the common law and a statute differ, the common law gives place to the statute, and an old statute gives place to a

new one.

8. Where an Act repealing in whole or in part any former statute is itself repealed, such last repeal shall not revive the act or provisions before repealed, unless words be added for that purpose.

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