fubjects, called the custom of merchants or lex mercatoria : which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it '; being allowed, for the benefit of trade, to be of the utmoft validity in all commercial transactions: for it is a maxim of law, that "cuilibet in fua arte credendum eft (8)." THE rules relating to particular customs regard either the proof of their existence; their legality when proved; or their ufual method of allowance. And first we will confider the rules of proof. [76] As to gavelkind, and borough-english, the law takes particular notice of them, and there is no occafion to prove that (8) The lex mercatoria, or the custom of merchants, like the lex et confuetudo parliamenti, describes only a great divifion of the law of England. The laws relating to bills of exchange, infurance, and all mercantile contracts, are as much the general law of the land, as the laws relating to marriage or murder. But the expreffion has very unfortunately led merchants to fuppofe, that all their crude and new-fangled fashions and devices immediately become the law of the land: a notion which, perhaps, has been too much encouraged by our courts. Merchants ought to take their law from the courts, and not the courts from merchants: and when the law is found inconvenient for the purposes of extended commerce, application ought to be made to parliament for redress. Merchants ought to be confidered in no higher degree their own legiflators or judges upon fubjects of commerce, than farmers or Sportsmen in queftions upon leafes or the game laws. For the pofition of lord Coke ought never to be forgotten: "That the "common law hath no controler in any part of it, but the high "court of parliament; and if it be not abrogated or altered by "parliament, it remains ftill, as Littleton faith." (Co. Litt. 11.5.) This is agreeable to the opinion of Mr. juftice Fofter, who maintains, that "the custom of merchants is the general law of "the kingdom, and therefore ought not to be left to a jury after it has been fettled by judicial determinations," z Bur. 1226. fuch fuch customs actually exist, but only that the lands in quef tion are fubject thereto. All other private customs must be particularly pleaded, and as well the existence of fuch customs must be fhewn, as that the thing in dispute is within the cultom alleged. The trial in both cafes (both to fhew the exiftence of the custom, as, "that in the manor of Dale lands "fhall defcend only to the heirs maie, and never to the "heirs female ;" and alfo to fhew "that the lands in queftion "are within that manor") is by a jury of twelve men, and not by the judges; except the fame particular custom has been before tried, determined, and recorded in the fame court. THE Cuftoms of London differ from all others in point of trial: for, if the existence of the custom be brought in queftion, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth (9) of their recorder'; unless it be fuch 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. WHEN a custom is actually proved to exift, the next inquiry is into the legality of it; for, if it is not a good cuftom, it ought to be no longer ufed; " Malus ufus abolendus ef" is (9) Sir James Burrow has reported the mode by which the recorder certifies the custom with fuch a degree of accuracy, as to specify which of his four gowns he fhall wear upon the occafion. (1 Bur. 248.) When a cuftom has been once certified by the recorder, the judges will take notice of it, and will not fuffer it to be certified a fecond time. (Doug. 365.) Lord Mansfield nonfuited the plaintiff in an action brought against the defendant on the cuftom of London, for calling the plaintiff a whore, the plaintiff not being able to prove the cuftom of inflicting a corporal punishment, by carting women of that defcription But in the city court such an action is maintained, because they take notice of their own customs without proof. Ib. an an established maxim of the law. To make a particular custom good, the following are necessary requifites. I. THAT it have been used fo long, that the memory of man runneth not to the contrary. So that, if any one can fhew the beginning of it (10), it is no good cuftom. For which reafon no custom can prevail against an exprefs act of parlia [77]ment (11); fince the ftatute itself is a proof of a time when fuch a cuítom did not exist i. 2. Ir must have been continued. Any interruption would cause a temporary ceafing: 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 poffeffion 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 becomes more difficult to prove: but if the right be any how difcontinued for a day, the custom is quite at an end. 3. Ir must have been peaceable, and acquiefced in; not fubject to contention and difpute. For as cuftoms owe their (10) If any one can fhew the beginning of it within legal memory, that is, within any time fince the first year of the reign of Richard the first, it is no good custom. (11) Therefore a custom that every pound of butter fold 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, fhould contain 16 cunces. (3 T. R. 271.) But there could be no doubt, I conceive, but it would be a good cuftom to fell lumps of butter containing 18 ounces; for if it is lawful to fell a pound, it must be so to fell a pound and any aliquot part of one. The inconvenience and deception arife, from calling that a pound in one place which is not a pound in another. original original to common confent, their being immemorially dif puted, either at law or otherwife, is a proof that fuch confent was wanting. 4. CUSTOMS must be reasonable'; or, rather taken negatively, they must not be unreasonable. Which is not always, as fir Edward Coke fays ", to be underflood of every unlearned man's reafon, but of artificial and legal reafon, warranted by authority of law. Upon which account a cuftom may be good, though the particular reafon of it cannot be affigned; for it fufficeth, if no good legal reafon can be affigned against it. Thus a cuftom in a parish, that no man fhall put his beafts into the common till the third of October, would be good; and yet it would be hard to fhew the reafon why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle fhall be put in till the lord of the manor has first put in his, is unreafonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lofe all their profits". 5. CUSTOMS ought to be certain. A cuftom, that lands [ 78 ] fhall defcend to the moft worthy of the owner's blood, is yoid; for how fhall this worth be determined? but a custom to defcend to the next male of the blood, exclufive of females, is certain, and therefore good. A cuftom to pay two pence an acre in lieu of tithes, is good; but to pay fometimes two pence and fometimes three pence, as the occupier of the land pleases, is bad for it's uncertainty. Yet a cuftom, to pay a year's improved value for a fine on a copyhold eftate, 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 eft, quod certum reddi poteft (12). (12) A cuftom, that poor houfekeepers fhall carry away rotten wood in a chafe is bad, being too vague and uncertain. 2 T.R. 758. 6. CUSTOMS, 6. CUSTOMS, though established by confent, must be (when established) compulfory; and not left to the option of every man, whether he will use them or no. Therefore a cuftom, that all the inhabitants fhall 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 abfurd, and indeed no custom at all. 7. LASTLY, customs must be confiftent 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 confent: which to fay of contradictory customs is abfurd. Therefore, if one man prefcribes that by cuftom he has a right to have windows looking into another's garden; the other cannot claim a right by cuftom to ftop up or obftruct thofe 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 conftrued strictly (13). Thus, by the cuftom of gavelkind, an infant of fifteen years [79] may by one fpecies of conveyance (called a deed of feoffment) convey away his lands in fee fimple, or for ever. Yet this (13) This rule is founded upon the confideration, that a variety of customs in different places upon the fame fubject is a general inconvenience; the courts therefore will not admit fuch customs but upon the cleareft proof. So where there is a cuftom that lands fhall defcend to the eldest fifter, the courts will not extend this custom to the eldeft niece, or to any other eldest female relation, but upon the fame authority by which the custom between fifters is fupported. 1 T. R. 466. |