Customary law

“ COMMON LAW.—The common law had its roots in the customary law of the Germanic peoples of western Europe, and was developed by the English courts from the thirteenth to the nineteenth centuries. Like the Roman law, it has spread all over the world wherever English-speaking peoples have settled, and founded colonies. ”

“ The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one. ”

“ 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. ”

“ According to the maxims of English jurisprudence, the common law consists of general customs so long established that "the memory of man runneth not to the contrary." In other words, long custom makes law. In new countries, the change of circumstances creates new customs, and, in time, new law, without the aid of legislation. Had the American colonists observed a more sparing economy in the treatment of their woods, a new code of customary forest-law would have sprung up and acquired the force of a statute. ”

“ Customary Law consisteth of certain laudable customs used in some private country, intended first to begin upon good and reasonable considerations, as gavelkind, which is all the male children equally to inherit, and continued to this day in Kent, where it is only to my knowledge retained, and nowhere else in England. ”

“ There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. ”

“ This sketch would, of course, have to be modified in many ways if we attempted to treat the unofficial fragments of customary law in the same way as the paragraphs of royal codes, and even more so if we were able to tabulate the indirect evidence as to legal rules. ”

“ 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. ”

“ The so-called Law of Nations is nothing else than a body of customary and conventional rules regulating the conduct of the individual States with each other. Just as out of tribal communities which were in no way connected with each other arose the State, so the Family of Nations arose out of the different States which were in no way connected with each other. ”

“ 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. ”

“ As a custom becomes general—so general as to be termed the common custom among a given people—it is usually enacted as law. And even where such legislative sanction is wanting, a general custom takes on the force of law and operates as law, as is the case with the great body of the common law of England. Thus, a custom, which in the beginning all are free to adopt or to reject as they may see fit, eventually acquires the force of a rule to which all are obliged to conform, whether from strict legal necessity or merely by force of public opinion. ”

“ 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. ”

“ Custom, merely as such, has no legal authority at all; it is legally effective only because and in so far as it is the expression of an underlying principle of right approved by those who use it. When it is based on no such ethical conviction or opinio necessitatis—when those who use it hold themselves free to depart from it if they will—it is of no legal significance. The only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members. ”

“ 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. ”

“ The importance of custom as a source of law continuously diminishes as the legal system grows. As an instrument of the development of English law in particular, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent, and partly because of the very stringent limitations imposed upon its law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ Established customs; such as that where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims; as, “that the king can do no wrong, that no man shall be bound to accuse himself,” and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it. ”

“ 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. ”

“ No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right. ”

“ 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. ”

“ 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" ”

“ 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 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. ”

“ 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. ”

“ For as the remove of the old laws and customs are by the people's consent, which is proved by their frequent petitioning and requests of such a thing: so the enacting of new laws must be by the people's consent and knowledge likewise. ”

“ Decided cases of the highest authority, affirm that doctrine, and it must, doubtless, be deemed correct in most or all jurisdictions where the rules of the common law prevail, as understood in the parent country. ”

“ 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. ”

“ These particular customs, or some of them, are without doubt the remains of that multitude of local customs before-mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of it’s own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. ”

“ 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 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. ”

“ Nor must we think the Common Customs (which are the Principles of the Common Law, and are but few) to be such, or so many, as are able to give special Rules to determine every particular Cause. Diversity of Cases are infinite, and impossible to be regulated by any Law; and therefore we find, even in the Divine Laws which are delivered by Moses, there be only certain Principal Laws, which did not determine, but only direct the High-priest or Magistrate, whose Judgment in special Cases did determine, what the General Law intended. ”

“ Since laws can be made only for perfect societies, customs have not the force of law, unless they are practised by a perfect society, or by a majority of its members who are representative. Hence, a custom observed by a family or by a minority of the voters in a body that has its own jurisprudence has not the status of law ”

“ And sometimes, where the thing itself has it’s rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. ”

“ Permit me then to enquire, whether the people of any district, county or town, in their local meetings, are competent to judge of this general good? A law, which is, in its operation general, must be founded on the best general information: The people themselves have no right to consent to a law, without this general information: They have no right to consent to a law, on a view of a local interest ”