prefs act of Parliament; fince the ftatute itself is a proof of a time when such a custom did not existi. 2. It 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 cuftom will be void. But this mult be understood with regard to an interruption of the right; for an interruption of the poffeffion only, for ten or twenty years, will not deftroy the customi. As if the inhabitants of a parish have a cuftomary right of watering their cattle at a certain pool, the custom is not deftroyed, though they do not use it for ten years; it only becomes more difficult to prove: But if the right be any how discontinued for a day, the custom is quite at an end. 3. It must have been peaceable, and acquiefced in ; not fubject to contention and disputek. For, as customs owe their original to common confent, their being immemorially difputed, either at law or otherwife, is a proof that fuch confent was wanting. 4. Customs must be reafonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke fays", to be understood of every unlearned man's reafon, 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 affigned; for it fufficeth, if no good legal reafon can be affigned against it. Thus, a custom in a parish, that no man fhall put his beafts into the common till the 3d 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 firft put in his, is un reasonable, and therefore bad: For peradventure the lord will never put in his; and then the tenants will lofe all their profits". j Co. Litt. 113. i Ibid. 114. Ibid. 1 Litt. §. 212. m 1 Inft. 62. 5. Customs n Co. Copyh. §. 33. 5. Customs ought to be certain. A cuftom, that lands fhall defcend to the moft worthy of the owner's blood, is void; for how fhall 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 fometimes two pence and fometimes 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 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. 6. Cuftoms, 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 custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a cuftom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all. 7. Laftly, cuftoms must be confiftent with each other: One cuftom cannot be fet up in oppofition to another. For if both are really cuftoms, then both are of equal antiquity, and both established by mutual confent ; which to fay of contradictory customs is abfurd. 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 cuftom to top up or obftruct those windows: For these two contradictory cuftoms cannot both be good, nor both stand together. He ought rather to deny the existence of the former cuftom P. Next, as to the allowance of fpecial cuftoms. Cuftoms, in derogation of the common law, must be conftrued ftrictly. Thus, by the custom of gavelkind, an infant of fifteen years may, by one fpecies of convey • 1 Roll. Abr. 565. P 9 Rep. 58. ance ance (called a deed of feoffment) convey away his lands in fee fimple, or for ever. Yet this cuftom does not empower him to use any other conveyance, or even to leafe them for feven years: For the custom must be ftrictly pursued 9. And, moreover, all special customs muft fubmit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the fons inherit equally; yet, upon the king's demife, his eldest fon fhall fucceed to thofe lands alone. And thus much for the fecond part of the leges non fcriptae, or those particular customs which affect particular perfons, or diftricts only. III. The third branch of them are thofe peculiar laws, which by cuftom are adopted and ufed only in certain peculiar courts and jurifdictions. And by these I understand the civil and canon laws. It may feem a little improper at firft view to rank thefe law's under the head of leges non fcriptae, or unwritten laws, feeing they are fet forth by authority in their pandects, their codes, and their inftitutions; their councils, decrees, and decretals; and enforced by an immenfe number of expofitions, decifions, and treatifes of the learned in both branches of the law. But I do this, after the example of Sir Matthew Hale, because it is moft plain, that it is not on account 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 depend upon their own intrinfick authority; which is the cafe of our written laws, or acts of parliament. They bind not the fubjects of England, because their materials were collected from popes or emperors; were digefted by Juftinian, or declared to be authentick by Gregory. Thefe confiderations give them no authority here: For the legiflature of England doth not, nor ever did, recognize any foreign power, as fuperior or equal to it in this kingdom; or as having the right to give law to any, the meaneft, of its fubjects. q Co. Cop. §. 33. s Hift. C. L. c. 2. jects. But all the strength that either the papal or imperial laws have obtained 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 fome particular cafes, and fome particular courts; and then they form a branch of the leges non fcriptae, or customary laws: Or else, because they are in fome other cafes introduced by consent of parliament, and then they owe their validity to the leges fcriptae, or ftatute law. This is exprefsly declared in those remarkable words of the ftatute 25th Henry VIII. c. 21. addreffed to the king's royal majefty." This your "grace's realin, recognizing no fuperior under God, "but only your grace, hath been and is free from fub"jection to any man's laws, but only to fuch as have "been devised, made, and ordained within this realin for the wealth of the fame; or to fuch other as, by "fufferance of your grace and your progenitors, the people of this your realm have taken at their free "liberty, by their own confent, to be used among "them; and have bound themselves by long use and "cuftom to the obsevance of the fame: Not as to the "obfervance of the laws of any foreign prince, potentate, or prelate; but as to the cuftomed and ancient laws of this realm, originally established as laws of the fame, by the faid fufferance, confents, and cuf"tom; and none otherwise." By the civil law, abfolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprifed in the inftitutes, the code and the digeft of the emperor Juftinian, and the novel conftitutions of himself and fome of his fucceffors. Of which, as there will frequently be occafion to cite them, by way of illuftrating our own laws, it may not be amifs to give a short and general account. The Roman law (founded firft upon the regal conftitutions of their ancient kings, next upon the twelve tables of the decemviri, then upon the laws or ftatutes enacted by the fenate or people, the edicts of the tor, and the refponfa prudentum or opinions of learned lawyers, and laftly upon the imperial decrees, or confti prae tutions tutions of fucceffive emperors) had grown to fo great a bulk; or, as Livy expreffes it t, "tam immenfus aliarum fuper alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Juftinian ". This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodofius the younger, by whofe orders a code was compiled, A. D. 438, being a methodical collection of all the imperial conftitutions then in force: Which Theodofian code was the only book of civil law received as authentick in the western part of Europe, till many centuries after; and to this it is probable that the Franks and Goths might frequently pay fome regard, in framing legal conftitutions for their newly erected kingdoms. For Juftinian commanded only in the eastern remains of the empire; and it was under his aufpices that the prefent body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533. This confifts of, 1. The inftitutes; which contain the elements or first principles of the Roman law, in four books. 2. The digefts, or pandects, in fifty books; containing the opinions and writings of eminent lawyers, digefted in a fyftematical method. 3. A new code, or collection of imperial conftitutions, in twelve books; the lapfe of a whole century having rendered the former code, of Theodofius, imperfect. 4. The novels, or new conftitutions, pofterior in time to the other books, and amounting to a fupplement to the code; containing new decrees of fucceffive emperors, as new queftions happened to arise. These form the body of Roman law, or Corpus Juris Civilis, as published about the time of Juftinian; which, however, fell foon into neglect and oblivion, till about the year 1130, when a copy of the digefts was found at Amalfi in Italy: Which accident, concurring with the policy of the Roman ecclefiafticks, fuddenly gave new vogue and authority to t l. 3. c. 34. Taylor's elements of civil law. 17. w fee §. 1. pag. 18, the |