Custom (law)

“ We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new. But no custom of any sort is of any validity as against statute law. The authority of legislation is in English law higher than that of custom. By no length of desuetude can a statute become invalid, and by no length of contrary usage can its provisions be modified in the smallest particular. The common law will yield to immemorial usage, but the enacted law stands for ever. ”

“ The law of custom was the law of our own forefathers until the infusion of new blood and new customs shook them out of the groove and set them to choosing between the old and the new, and then to making new laws to meet new needs. ”

“ Custom is to society what law is to the state. Each is the expression and realisation, to the measure of men’s insight 145and ability, of the principles of right and justice. The law embodies those principles as they commend themselves to the incorporate community in the exercise of its sovereign power. Custom embodies them as acknowledged and approved not by the power of the state, but by the public opinion of the society at large. ”

“ 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 discontinued for a day, the custom is quite at an end.
3. It must have been peaceable, and acquiesced in; not subject to contention and dispute [35] . For as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting. ”

“ Whence it is that in our law the goodness of a custom depends upon it’s having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it it’s weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.
This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in it’s stricter and more usual signification. ”

“ In order for the establishment of a customary constitutional law, first, the matter concerning the custom which has been formed should be a constitutionally significant and fundamental matter to the extent that it may not be regulated merely by statute, yet should instead necessarily be regulated by the constitution to have superiority over statute in its legal force. ”

“ Every country has a common law of usage and custom, both local and general, to which the people, especially those of a conquered or ceded one, cling with more tenacity than to their written laws, and all sovereigns respect them. ”

“ There is no such difference except in the case of what is properly called “judicial legislation”—wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. ”

“ The matters which are now in question are generally called customs rather than laws; and we have already made the reflection that, though they are not, properly speaking, laws, yet neither can they be neglected. For they fill up the interstices of law, and are the props and ligatures on which the strength of the whole building depends. Laws without customs never last; and we must not wonder if habit and custom sometimes lengthen out our laws. ”

“ Custom 157is law not because it has been recognised by the courts, but because it will be so recognised, in accordance with fixed rules of law, if the occasion arises. Its legal validity is not dependent on the accidents of litigation. A custom does not wait to put on the nature of law until it has been actually enforced by the courts, any more than an Act of Parliament or an agreement is destitute of legal efficacy until it has required and received judicial recognition. ”

“ If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as 'due process of law,' 'equal protection,' or 'commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions. ”

“ Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. ”

“ General custom is a general law, and forms the law of contracts, and this sometimes, though it be at variance with their terms. It controls even the principles of law. Thus the right to the waygoing crops, days of grace, and time of protest, are regulated by the usage of the place or bank, and affect even those who have no notice of the custom. The ancient, established, uniform, and known custom of persons engaged in any trade, makes a law for that trade, though it is not applicable to other trades. ”

“ Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ”

“ The fact that any rule has already the sanction of custom raises a presumption that it deserves to obtain the sanction of law also. Via trita via tuta. Speaking generally, it is well that the courts of justice, in seeking for those principles of right which it is their duty to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of principles for themselves by the light of nature. ”

“ Why was there a house of peers, in which noble lords formed a part of the legislature? Why were there commoners, who sat as representatives of the [Pg 314] people? Precisely because custom had ordered it so. Custom was the author of the law and the law-makers. Custom authorized the king, lords, and commons, to enact laws for the government of this realm. All property, all dignity, all offices existed, because they were sanctioned by prescriptive custom, or because custom gave a prescriptive right to create them.
Saturday.—The Privy Council resumed this morning, soon after ten o'clock. ”

“ The custom arose from a very old condition of things, under which certain classes of citizens, not being entitled to appear in the law-courts or in public business on their own behalf, put themselves under the protection of a person so entitled, who, in return for certain acts of support and deference, appeared as their advocate and champion. ”

“ This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to-wit, the words 'any law, statute, ordinance, regulation, or custom to the contrary not-withstanding,' which gave the declaratory section its point and effect, are omitted ”

“ Well, the legislators confounded in one code the two currents of custom, of which we have just been speaking, the maxims which represent principles of morality and social union wrought out as a result of life in common, and the mandates, which are meant to ensure eternal existence to inequality. Customs, absolutely essential to the very being of society, are, in the code, cleverly intermingled with usages imposed by the ruling caste, and both claim equal respect from the crowd. “Do not kill,” says the code, and hastens to add, “And pay tithes to the priest.” “Do not steal,” ”

“ Custom is regarded as the expression of the national will and conscience, and as such it confers immediately the authority of law upon all principles approved by it. The will of the state is simply a special form of the popular will, and these are of equal authority. ”

“ When, however, we are dealing with a people ruled by custom and not by law, the case is far different. The force of custom may and usually does in such cases far exceed the force of law in civilised communities. ”

“ Whatever is left to depend on [Pg 649] consuetudinary law, will derive its character from the feelings of the people, among whom the law has been formed and preserved. The one custom, in its growth and progress, is checked and qualified by others of an opposite and counteracting tendency. ”

“ Instead of recognizing in statute law merely the ratification of established custom resulting from the sum of human activities, they erroneously came to believe that human activities could be compelled to conform to statutes merely because these statutes were proclaimed to have the force of law, and irrespective of the fundamental laws of human nature and inexorable human limitations which underlay those activities. “Men do not make the laws. ”

“ The two are, in fact, only earlier and later developments of the same social fact, depending for their evolution upon the play of human qualities in the necessary relations of society.
The second great practical lesson which will be taught by comparative jurisprudence is, as I have said, the knowledge of the true relations of custom and law to legislation. Law is the statical, legislation the dynamical side of the same fact. The lawyer studies what is, the legislator what ought to be. The jurist is he who studies what has been, what is, and what ought to be. ”

“ Whilst in the course of ages the nucleus of social custom inscribed in law has been subjected to but slight and gradual modifications, the other portion has been largely developed in directions indicated by the interests of the dominant classes, and to the injury of the classes they oppress. ”

“ So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. ”

“ Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times—a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people" ”

“ It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. ”

“ What we do mean, as a little reflection will shew, is this—that the rules of an established society are part of the law of the land, and enforced as such; whilst the rules of a voluntary society are not part of the law of the land, and are not enforced as such. When the members, or any of the members, of a religious society have, as such, special rights and obligations, capacities or incapacities, created by the law of the land—when, in two words, they have a legal status—the society is established: they have none when it is not established. ”

“ And that, when its code speaks positively on the subject, it must be obeyed by all persons who are within reach of its sovereignty; when its customary unwritten or common law speaks directly on the subject, it is equally to be obeyed. ”

“ When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the state as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the state courts in reference to this law, and defining what is the law of the state as modified by the opinions of its own courts, by the statutes of the state, and the customs and habits of the people, that the trouble arises. ”

“ A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. ”

“ But if any, contrary to the tenor of our present law, have been, or shall in future be received as citizens, their reception shall lack all validity, and the persons received, of whatever condition, dignity or standing they may be, shall, in no case or matter whatever, in any way exercise or enjoy the rights and liberties of the cities into which they contrive to be received. Any rights, privileges, or observed customs, at whatever time obtained, to the contrary notwithstanding ”