As to gavelkind, and borough-english, the law takes particular notice of them, and there is no occafion to prove that fuch cuftoms actually exift, but only that the lands in question are fubject thereto. All other private customs must be particularly pleaded", and as well the exiflence of fuch cuftom:s must be fhewn, as that the thing in difpute is within the custom alleged. The trial in both cafes (both to fhew the existence of the cuftom, as, "that in the manor of Dale lands fhall defcend only "to the heirs male, and never to the heirs female;" and alfo to fhew" that the lands in question are within that manor) is by a jury of twelve men, and not by the judges; except the fame particular cuftom 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 exiftence of the cuftom be brought in queftion, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorderf; 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 exist, the next enquiry is into the legality of it; for, if it is not a good cuftom, it ought to be no longer ufed. "Malus ufus abolendus eft" is an established maxim of the law. To make a particular cuftom good, the following are neceffary requifites.

1. THAT it have been ufed fo long, that the memory of man runneth not to the contrary. So that, if any one can fhew the beginning of it, it is no good cuftom. For which reason no cuftom can prevail againft an exprefs act of parliament; fince the

r Co. Litt. 175.

Litt. $. 265.

Dr & St. 1. 56.

f Cro. Car. 516.

g Hob. 85.

h Litt. §. 212. 4 Inft. 274.

the ftatute itself is a proof of a time when such a custom did not exift'.

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 cuftom 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 deftroy the custom. As if the inhabitants of a parish have a cuftomary right of watering their cattle at a certain pool, the cuftom 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 discontinued for a day, the cuftom is quite at an end.

3. It must have been peaceable, and acquiefced in; not fubject to contention and difpute*. For as cuftoms owe their original tocommon confent, their being immemorially difputed, either at law or otherwise, is a proof that fuch confent was wanting.

4. CUSTOMS must be reasonable'; or rather, taken negatively, they muft not be unreasonable. Which is not always, as fir Edward Coke fays", to be understood of every unlearned man's reason, but of artificial and legal reafon, 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 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 reason why that day in particular is fixed upon, rather than the day before or after. But a cuftom, that no cattle shall be put in till the lord of the manor has firft put in his, is unreasonable, 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 fhall defcend to the moft worthy of the owner's blood, is void; for how fhall this worth be determined? but a cuftom 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 pleafes, 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 certem eft, quod certum reddi poteft.

6. CUSTOMS, though established by consent, must be (when eftablished) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants fhall be rated towards 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 cuftom at all.

7. LASTLY, cuftoms must be confiftent with cach other: one cuftom cannot be fet up in oppofition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual confent: which to fay of contradictoy customs is abfurd. Therefore if one man prescribes that by cuftom he has a right to have windows looking into another's garden; the other cannot claim a right by cuftom to stop up or obftruct those windows: for thefe two contradictory cuftoms cannot both be good, nor both ftand together. He ought rather to deny the exiftence of the former custom '.

NEXT, as to the allowance of fpecial cuftoms. Customs, in derogation of the common law, must be construed strictly. Thus, by the cuftom of gavelkind, an infant of fifteen years may by one fpecies

fpecies of conveyance (called a deed of feoffment) convey away his lands in fee fimple, or for ever. Yet this custom does not impower him to use any other conveyance, or even to lcafe them for seven years: for the cuftom must be ftrictly purfued. 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 fons inherit equally; yet, upon the king's demise, his eldest fon fhall fucceed to those lands alone'. And thus much for the fecond part of the leges non fcriptae, or those particular customs which affect particular persons or districts only.

III. THE third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurifdictions. And by these I understand the civil and canon laws.

Ir may seem a little improper at firft view to rank these laws under the head of leges non fcriptae, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their inftitutions; their councils, decrces, 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 fir Matthew Hale', because it is most 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 intrinsic 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 authentic by Gregory. These confiderations give them no authority here: for the legislature 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 meancft, of it's fubjects.

fubjects. But all the ftrength 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 ufage and cuftom in fome particular cafes, and fome particular courts; and then they form a branch of the leges non fcriptae, or cuftomary law: or elfe, because they are in fome other cafes introduced by confent 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 25 Hen. VIII. c. 21. addrefled to the king's royal majefty." This your grace's "realm, recognizing no fuperior under God but only your grace, "hath been and is free from fubjection to any man's laws, but only to fuch as have been devised, made, and ordained within "this realm 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 obfervance of the fame: not as "to the obfervance of the laws of any foreign prince, potentate, "or prelate; but as to the customed and antient laws of this realm, originally established as laws of the fame, by the faid suffer"ance, confents, and cuftom; and none otherwife."

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By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the institutes, the code, and the digeft of the emperor Justinian, 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 fhort and general account.

THE Roman law (founded firft upon the regal conftitutions of their antient 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 praetor, and the refponfa prudentum or opinions of learned lawyers, and laftly upon the imperial decrees, or conftitutions