[upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts (p).

And thus much for the first ground and chief corner stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law; it only then adopting it, when the written law was deficient, though the reasons alleged in the Digest (q) will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law; "for since (says Julianus) the written law binds us for no "other reason but because it is approved by the judgment "of the people, therefore those laws which the people have "approved without writing ought also to bind every body. "For where is the difference, whether the people declare "their assent to a law by suffrage, or by a uniform course "of acting accordingly?"]

With us, indeed, it would seem that the statute law and the common law both flowed originally from the same fountain (r). A great portion at least of the latter must be referred to some positive enactment of the supreme power in the country, though not now to be found of record.

II. [The second branch of the unwritten laws of Eng

(p) These are cited as 2, 3 or 4 Inst. without any author's name; an honorary distinction, which, as we before observed, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2

Ventris, 4 Leonard, 1 Siderfin, and the like.

(q) Ff. 1, 3, 32.

(r) Per Wilmot, C. J., Collins v. Blantern, 2 Wils. 351; Hale's Hist. C. L. c. 4.

[land are particular customs, or laws, which affect only the inhabitants of particular districts (s):] and these it is usual to designate by the word customs taken per se; which sufficiently distinguishes them from the general customs of which we spoke before.

These particular customs, or some of them, are probably the remains of a multitude of local customs, prevailing, some in one part and some in another, over the whole of England, while it was broken into distinct dominions, and out of which, after it became a single kingdom, one common law was collected and made applicable to the realm at large; each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of the same uniform and universal system of laws; but, for reasons now long forgotten, particular counties, cities, towns, manors, and lordships, were indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large, which privilege is confirmed to them by several acts of parliament (t).

[Such is the custom of gavelkind in Kent, and some other parts of the kingdom (u), (though perhaps it was also general until the Norman conquest,) which ordains, among other things, that not the eldest son only of the father succeeds to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estates, without any escheat to the lord. Such is the custom that prevails in divers antient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs that a widow shall be entitled, for her dower, to all her husband's lands; whereas, at the common law, she shall be endowed of one third part only. Such also are

(s) Co. Litt. 110b; vide sup. p. 47. (t) Mag. Cart. 9 Hen. 3, c. 9; 1 Edw. 3, st. 2, c. 9; 14 Edw. 3, st. 1,

c. 1; 2 Hen. 4, c. 1.

(u) Co. Litt. 140 a.

[the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors. 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; though the customs of London are also confirmed by act of parliament (x).]

To this head has sometimes been referred (y) that branch of the law which comprises certain rules relative to bills of exchange, partnership, and other mercantile matters, and which is generally denominated the custom of merchants. As its character, however, is not local, nor its obligation confined to a particular district, it cannot with propriety be considered as a custom in the technical sense to which we now refer (z). It is, in truth, only a part of the general law of England (a); and it is distinguished by a separate name, only because it applies, to the particular subjects in question, principles different from those which the common law ordinarily recognizes, and because these principles were engrafted into our municipal system by gradual adoption from the lex mercatoria (b), or general body of European usages in matters relative to commerce.

Upon the same principle we must exclude from the technical idea of a custom the mere usages of particular trades, when not restrained to some particular limit in point of place, as opposed to the realm at large. If there be any such usage of immemorial observance, and authen

(r) See the City of London's case, 8 Rep. 126; The King v. Bagshaw, Cro. Car. 347; see also Pulling on the Laws and Customs of London, p. 2.

(y) 1 Bl. Com. 75.

(2) Co. Litt. 115 b.

(a) Per Holt, C. J., Hussey v. Jacob, Ld. Raym. 88: per Forster, J., Edie v. East India Company, 2

Burr. 1226; 1 Bl. Rep. 299, S. C.; 2 Inst. 58; Stone v. Rawlinson, Willes, 561. See also Benson v. Chapman, 8 C. B. (N. S.) 967, in notis.

(b) The lex mercatoria, or law merchant, is mentioned in some of our earlier statutes. (See 27 Edw. 3, st. 2, c. 8, 19, 20.)

Yet as matters of

ticated by judicial decision, it will form, according to our definitions, part of the general law of England; if there be any sanctioned by act of parliament, it will constitute part of the statute law; but for the rest, the want of any peculiar locality determines them to be no customs, and they are consequently no rules of law at all. fact they often fall under the notice of our courts of justice, and are very necessary to be considered; for as the prevalence of any certain course of dealing among men leads to the presumption that in particular instances they intend to conform to it, the existence of such usages as these may often bear materially or even conclusively upon the question, whether an implied contract to a given effect was entered into between certain parties, and also upon the question in what sense their express contract in certain cases was designed to be understood.

The rules relating to particular customs regard either the proof of their existence, or their allowance as good and legal, when proved. And first we will consider the rules of proof.

As to the modes of descent in gavelkind, and boroughEnglish, the law takes particular notice of them (c); and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other customs must be particularly pleaded (d); and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged. [The trial in both cases (both to show the existence of the custom, as, "that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female;" and also to show "that the lands in 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 court (e).

(c) Co. Litt. 175; 36 Hen. 6, 20; 21; see stat. 17 Edw. 2, st. 1, c. 16.

(d) Litt. s. 265.
(e) Dr. and St. 1, 10.

[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 a certificate from the lord mayor and aldermen by the mouth of their recorder (ƒ); unless it be such a custom as the corporation is itself interested in-as a right of taking toll -for then the law permits them not to certify on their own behalf (g).

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).]

As to the validity of a custom, the following rules are established: 1. [It must have been used so long, that the memory of man runneth not to the contrary.] Upon this subject, however, it is material to recollect what has been before laid down, that the time of memory as regards the validity of a custom, or (as it is sometimes expressed) the time of legal memory, has received a peculiar technical limitation, and refers to so remote a date as the commencement of the reign of king Richard the first (i). So that if an usage can be shown to have first commenced at any time since that era, it is void as a custom; though in the absence of such proof its observance for a long time, and as far back as the evidence reaches, will amount to presumptive proof of its having prevailed during the whole period of legal memory (k). It is important also to remark on the other hand, that this principle, by which a custom is required to be immemorial, is materially qualified in many cases by a modern statute, 2 & 3 Will. IV. e. 71; which, as to customary and prescriptive claims of rights to be exercised over the land of other persons,

(f) See Appleton v. Sloughton, Cro. Car. 516; see Plummer v. Bentham, 1 Burr. 248; Blacquiere v. Hawkins, Dougl. 378; Crosby v. Hetherington, 4 Man. & Gr. 933; Westoby v. Day, 2 Ell. & Bl. 605.

(g) Day v. Savadge, Hob. 85. (h) Litt. § 212; 4 Inst. 274. (i) Co. Litt. 115 a; et vide sup. p. 46.

54.

(k) Rex v Jolliffe, 2 Barn. & Cres.