corder ;(ƒ) unless it be such a custom as the corporation is itself intereste-! as a right of taking toll, &c.; for then the law permits them not to certa", their own behalf.(g)

When a custom is actually proved to exist, the next inquiry is into the 71⁄2 --* of it; for, if it is not a good custom, it ought to be no longer used. "Maa abolendus est” is an established maxim of the law.(h) To make a particular c tom good, the following are necessary requisites.

1. That it have been used so long, that the memory of man runneth not t the contrary. So that, if any one can show the beginning of it, it is no custom. For which reason no custom can prevail against an express act *parliament," since the statute itself is a proof of a time when ► custom did not exist.(7)

*77]

2. It must have been continued. Any interruption would cause a tenps ram ceasing: the revival gives it a new beginning, which will be within the memory, and thereupon the custom will be void. But this must be unders with regard to an interruption of the right; for an interruption of the p only, for ten or twenty years, will not destroy the custom.(3) As if the is habitants of a parish have a customary right of watering their cattle at a cer tain 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 discont for a day, the custom is quite at an end.

3. It must have been peaceable, and acquiesced in; not subject to conten" and dispute.(k) For as customs owe their original to common consent, ti « being immemorially disputed, either at law or otherwise, is a proof that sa-i consent was wanting.

4. Customs must be reasonable ;(1) or rather, taken negatively, they must r be unreasonable. Which is not always, as Sir Edward Coke says, me to be understood of every unlearned man's reason, but of artificial and legal ream p warranted by authority of law. Upon which account a custom may be good though the particular reason of it cannot be assigned; for it sutheeth, if ngood legal reason can be assigned against it. Thus a custom in a parish, tat no man shall put his beasts into the common till the third of October, would bu good; and yet it would be hard to show the reason why that day in part."ar is fixed upon, rather than the day before or after. But a custom, that no catta shall be put in till the lord of the manor has first put in his, is unreasonat le, attherefore bad: for peradventure the lord will never put in his, and then the tenants will lose all their profits.(n)

*5. Customs ought to be certain. A custom, that lands shall deserted to *78] the most worthy of the owner's blood, is void; for how shall this worr? be determined? but a custom to descend to the next male of the Hood, ex clusive of females, is certain, and therefore good.o). A custom to pay two

It seems that a custom beginning within any time after the first year of the re gn king Richard I. is bad.—Chitty,

"Therefore, a custom that every pound of butter sold in a certain market shin, a weigh eighteen ounces is bad, because it is directly contrary to 13 and 14 Car II e which directs that every pound, throughout the kingdom, should contain sixteem ounces, 13 T. R. 271.) But there could be no doubt, I conceive, but it would be a god custom to sell lumps of butter containing eighteen ounces • for, if it is lawful to ser, a pound, it must be so to sell a pound and any aliquot part of one. The inconv® TV • *• • and deception arise from calling that a pound in one place which is not a pound in other.-CHRISTIAN. Therefore where a contract is made to sell specified goodsky por tates of weight or measure, this must mean afatsh weight or measure. As, if a planet! ́tes lares for breach of contract, in not delivering "four hundred bushels of oats," "and it is 1 the agreement was for four hundred bushels in ame portocar mean re che thin chester bushel, which is the statute measure, this is a fatal variance and the plaintiff wowed be non-uited. See 4 T. R. 314. 6 T. R. 338, 4 Taunton, 102, 11 East, 19. — HITTY.

་ ་་་་

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.18

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." Thus, by the custom of [*79 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 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.(g) 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."

(P) 9 Rep. 58.

(9) Co. Cop. % 33.

(7) Co. Litt. 15.

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 cannot 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 kad. 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.

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. 1 T. 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.

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 ambiguous 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 2 adopted and used only in certain peculiar courts and jurisdictions. And by tie I understand the civil and canon laws.(8)

It may seem a little improper at first view to rank these laws under the 1 of leges non scripte, or unwritten laws, seeing they are set forth by auth or ty their pandects, their codes, and their institutions; their councils, decrees, decretals; and enforced by an immense number of expositions, decisions. treatises of the learned in both branches of the law. But I do this, alter tie example of Sir Matthew Hale,(t) because it is most plain, that it is not on count 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, seper upon their own intrinsic authority, which is the case of our written laws, or act of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declarvă to be authentic by Gregory. These considerations give them no authority here for the legislature of England doth not, nor ever did, recognise any foreigza 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 *80] the papal or imperial laws have obtained in this realm, or indeed in ane other kingdom in Europe, is only because they have been admitted and receive i 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 law», or else because they are in some other cases introduced by consent of parament; and then they owe their validity to the leges scriptæ, or statute law I is expressly declared in those remarkable words of the statute 25 Hen. VHi c. 21, addressed to the king's royal majesty :-"This your grace's realm, recog nising no superior under God but only your grace, hath been and is free treta subjection to any man's laws, but only to such as have been devised, made, az i 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 rea, a have taken at their free liberty, by their own consent, to be used among then, and have bound themselves by long use and custom to the observance of tim same; not as to the observance of the laws of any foreign prince, potentate. prelate; but as to the customed and ancient laws of this realm, original y est... blished as laws of the same, by the said sufferance, consents, and custom, ari none otherwise."

By the civil law, absolutely taken, is generally understood the civil or nur cipal 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 thets, by way of illustrating our own laws, it may not be amiss to give a short a: 1 general account.

The Roman law (founded first upon the regal constitutions of the'r ancie↑ 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 prsdentum, or opinions of learned lawyers, and lastly upon the imperiai de*81] crees, or constitutions of successive emperors, had grown to so great bulk, or, as Livy expresses it,(u) “tam immensus aliarum super alias aceri itarus legum cumulus," that they were computed to be many camels' load by an au'l ́e who preceded Justinian (r) This was in part remedied by the colicctions et three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compued a a 43%, 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 im

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 allowance and influence of special usages,—SHLARSWOOD.

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 comments, with which this system of law, more than any other, is now loaded.

[*82

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, were 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 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 syno

(1) See 1, page 18.

(*) Burn's Eccl. Law, pref. viii.

(y) Statute 25 Hen. VIII. c. 19, revived and confirmed by 1 Eliz. c. 1.

dals 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 to such review has yet been perfected, upon this statute now depends the authoniy 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 upot, the pra ciples of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they don't bind the laity,(2)whatever regard the clergy may think proper to pay them" There are four species of courts in which the civil and canon laws are per mitted, under different restrictions, to be used: 1. The courts of the archiusiops and bishops, and their derivative officers, usually called in our law courts Cars tian, curia Christianitatis, or the ecclesiastical courts. 2. The military coura 3. The courts of admiralty. 4. The courts of the two universities." In a.. their reception in general, and the different degrees of that reception, are groat. Þei entirely upon custom, corroborated in the latter instance by act of "jar*84]liament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fail propery under that part of these commentaries which treats of the jurisdiction of coati It will suffice at present to remark a few particulars relative to them ail, wh.. a may serve to inculcate more strongly the doctrine laid down concerning the n. 1 I. 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 contumary, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.

2. The common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts, or the matters depening before them. And therefore, if these courts either refuse to allow these acte of parliament, or will expound them in any other sense than what the comt, law puts upon them, the king's courts at Westminster will grant prohibitiots to

restrain and control them.

3. An appeal lies from all these courts to the king, in the last resort; whå proves that the jurisdiction exercised in them is derived from the crown of Eg land, and not from any foreign potentate, or intrinsic authority of their ownAnd, from these three strong marks and ensigns of superiority, it appears be yond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege; and thai, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior brattes of the customary or unwritten laws of England, properly called the k12a ecclesiastical, the king's military, the king's maritime, or the king's academi a

laws.

*Let us next proceed to the leges scripter, the written laws of the k *5] dom, which are statutes, acts, or edicts, made by the king's majesty, and with the advice and consent of the lords spiritual and temporal, and corta in parliament assembled by The oldest of these now extant, and printed in statute books, is the famous magna charta, as confirmed in parliament 9 Hen III though doubtless there were many acts before that time, the records of which

#Lord Hardwicke cites the opinion of Lord Holt, and declares it is not denied by arr one, that it is very plain all the clergy are bound by the canons confirmed by the krá only, but they must be confirmed by the parliament to bind the laity, 2 Ak_96 Hence, if the archbishop of Canterbury grants a dispensation to hold two livings distar from each other more than thirty miles no advantage can be taken of it by lapse of otherwise in the temporal courts for the restriction to thirty miles was introduced by a canon made since the 25 Hen. VIII. 2 BI. Rep. 965,—ChrisTIAN,