importance. That power has been made the check or restraint upon the other departments of government, legislative and executive; so that it may be likened to the balance wheel of the entire machinery of government. There is no restraint upon judicial power, unless it exists in the restriction of the judges within the limits of existing law. Even under the best laws there must be a great amount of discretionary power left with them; and this is the more dangerous, because it acts directly upon the lives, liberties, and fortunes of individuals. It is the only department of our government in the exercise of which the worst features of irresponsible tyranny may still appear, unless every exercise of it must be supported at the bar of public opinion by actual existing law. If a judge may make law, his decisions become mere arbitrary commands. Blackstone has shown his profound sense of this truth in other passages, as when he accounts for the manifold and precise forms of redress at common law, adapted to the circumstances of the injury, by saying that every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breasts of the judges, whom the law appoints to administer the law, and not to prescribe the remedy." (Book 3, p. 266.) And again he accounts for the multiplicity of decisions in England by the principle that "it is essential to a free people that these determinations be published and adhered to; that their property may be as certain and fixed as the very constitution of the state; for though in many other countries everything is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make and new-model the law." (Book 3, p. 329.)

(31) Particular customs, or laws which affect only the inhabitants of particular districts, page 74.

The usages of particular trades, professions, or classes

of men, sometimes also called customs, must be carefully distinguished from the particular customs here treated. There is just enough resemblance between the two to produce error if this is not done. The two have been treated together in the latest works on the subject, both English (Browne on Usages and Customs, 1875), and American (Lawson on Usages and Customs, with illustrative cases, 1881), without giving sufficient prominence to the distinction. In not a few American cases also, the rules of particular customs here given have been applied to questions of usage without any hint that the two things are not the same. (Taylor v. Carpenter, 2 Wood. & M. 7; Rindskoff v. Barrett, 14 Iowa, 101; Strong v. G. T. R. R. Co. 15 Mich. 225; Pilmer v. State Bank, 16 Iowa, 321; Hurst v. North, 40 Pa. St. 241; Hopkins v. Grimes, 14 Iowa, 73.) These customs, as the definitions show, are always local, or as Lord Ellenborough expresses it, "a custom in the strict legal signification of the word, must be taken with reference to some defined limit or space, which is essential to every custom so called." (4 East, 159.) Usage, on the other hand, has no local limits; the usage of a particular place or neighborhood may be shown, but these limits have no legal significance; they merely mark the extent of the fact to be proved. Again, a particular custom is always an exception to the common law, or excludes it within its own limits. A usage must be consistent with the common law unless it is supported by some statute. Thirdly, a particular custom is the law of all persons within the assigned limits so far as they or their property may be affected by it: a usage affects only the persons or things among whom it is proved to exist. Fourthly, a particular custom is of the nature of law; it is indeed, as we shall show soon, the law of its own district a usage is a matter of fact, and the law of the case can only be applied to it as to other facts. When a usage becomes so general that the courts will notice its

existence without requiring it to be proved as a fact, it is not a particular custom, but a part of the common law. (Wilmot, J., in 2 Burr. 1228.) Of this B. gives a marked illustration in the present section in the case of the law merchant.

Mr. Browne has said, and Mr. Lawson quotes with approval: "That customs have developed themselves progressively, and that law has passed from the central unity into a scattered and careless variety of customs, so that every place has its particular law of custom." This is probably true when applied to business and trade usages, which have undoubtedly increased in number with the growing complexity of modern life, but it is clearly not true of local customs, the tendency of which is entirely in the other direction. B. has justly termed them the remains of a multitude of local customs which existed before the common law. The early books of that law show the immense variety of such customs; each county, almost each ville and manor having its own peculiar law upon many subjects now governed by a uniform common law. When Glanville wrote on the practice of the king's court, he gave as his reason for confining himself to that court, the confused multitude of customs which prevailed in the others, and he more than once repeats the same excuse-as with respect to larceny, de furtis, and other pleas before the sheriff, because they have to be treated and decided according to the diverse customs of different counties. (Prologue, and lib. 14, c. 8.) Staunford, in his Pleas of the Crown, frequently refers to the same local diversities. There can be no doubt that the whole history of the common law has been one of unification, and the reduction of local diversities to uniform rules.

Are there any particular customs in the United States? In the strict sense of the word, probably not. The diversities in the common law of the different states cannot be considered as such, since there is no common law

of the whole country with which they could be set in contrast. If, in any of our states, particular local customs have been recognized as exceptions to the common law, they have been so few and of such slight consequence as to have entirely escaped notice. We have in fact no time out of mind in which such local customs could originate, and no local divisions which could serve as bases for such particular customs. The subdivisions of our oldest states have very rarely any history which cannot be traced back to the formal action of the state or colonial legislature. If there were particular customs originating in such action they would not comply with the requirements of the customs described here, and usages not so particularly located would, as has been shown above, be of entirely different character. It is doubtful also how the existence of local customs could be proved in an American state, even if they could be supposed to exist there; certainly there are none of which a court could take judicial notice, as is done in England with reference to the customs of Kent and a few others. Such a custom would have to be proved in the first place as a fact. To do this, as has been well pointed out in 4 Mich. 338, you will call witnesses to prove what the usage is, and if there be any doubt on the point, it will be for the jury to determine what as a fact is the usage, and after the usage has been proved, it will be for the court to determine whether a custom is made out, i. e., whether the usage thus proved has the qualities of reasonableness, legality, etc., necessary to a custom. With this the jury has nothing to do. Upon what grounds could any American court say, as a matter of law, that a usage thus proved prevailed within the boundry lines of any particular township, county, or other subdivision of the state, in opposition to the common law prevailing on the other side of that boundary?

1 BLACKST.-20.

(32) It is not on account of their being written laws that either the canon or the civil law have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinsic authority, which is the case of our written laws, or acts of parliament, etc., page 79.

It may be doubted whether Blackstone in this long paragraph has improved upon the distinction laid down by Hale as a reason why the canon and civil law should be considered unwritten law in England. It is evident that if the distinguishing mark of the written law is an authoritative text, conclusive and final in all discussion as to what the law is, because their authoritative and original instructions are set down in writing by the law givers (see n. 26, p. 200, ante, and Hale's Hist. C. L. c. 2), that whenever this text loses its authority, so that the courts may apply it or not, as they think reasonable, or may apply one part of it and reject another, according to the circumstances, written law loses its peculiar character, and is undistinguishable from the unwritten. When the judge interprets a written rule, he cannot neglect any word or phrase of it in determining its meaning, nor can he give to any part preference over another part as having more authority or being more truly the law, except so far as the distinction may be made in the written words themselves. But neither the civil nor the canon law is so interpreted in any English court: the judge rejects large portions of them as entirely inapplicable, and those parts which are ap plicable are not binding on him in their terms. He may reject a word or phrase, or may give it effect in one sense and not in another, because the immemorial usage and custom which gives it its force has so ordained; in other words, he may treat these laws precisely as he does the written forms of the common law, in treatises or judicial opinions, taking from them whatever he believes truly to represent the law in force, and rejecting the remainder, though grammatically inseparable from it.