I' VIM MS. 



CUSTOMS M'TIKS. 



3.: > 



instead of a third of their husband's land*. A more striking instance 

 U tbt of the custom in many cities and town* to bold courU for 

 trial of cause* without royal grant. The particular custom* of manor* 

 I to descent, tc., are al*o of thii kind, and bind the copyhold 

 and ciutonury tenant*. The existence of every *uch local custom, 

 with the exception* abore noticed, a* well a* it* application in 

 each particular case, muat be alleged in the pleadings, and proved, 

 like any other fact, before a jury: sometimes they are open to 

 evidence without being pleaded. Under no circumstances could thaw 

 questions be entertained by an ecclesiastical court, nor now by the 

 Court of Probate, without the consent of the party impugning the 



Such customs of London a* do not concern the property of the 

 corporate body itoelf are proved by a peculiar mode, that of a cer- 

 tificate to the superior courts of law from the lord mayor and 

 aldermen, conveyed by the mouth of their recorder in a solemn 

 ceremonial ; without this certificate these courts will nut tike judicial 

 notice of them. 



A particular custom to bo valid must have been used " from time 

 whereof the memory of man runneth not to the contrary." This U 

 " prescription," or " title by prescription ; " and more accurately de- 

 scribes what is commonly called " time immemorial," which meant*, 

 says Littleton, " that no living witness hath heard any proof or had 

 any knowledge to the contrary," and as Lord Coke adds, " that there 

 is no proof by record or writing or otherwise to the contrary." It has 

 been doubted whether a prescription (in its proper sense) and a custom 

 can coexist. There is some curious learning on this point collected in 

 the arguments and judgment in Blewitt r. Tregoning, 3 Ad. and Ellis. 

 It was held that a custom in a particular market that every pound of 

 butter sold in it should weigh 18 oz. was bad, being directly contrary 

 to a statute of Charles II., which enacted that ever}' pound avoirdupois 

 throughout the kingdom should weigh 16 oz. only. The right to a 

 particular custom must have been continued within time of memory 

 peaceably and without lawful interruption, and will not be lost by 

 mere disuse for ten or twenty years ; though in such case to establish it 

 by proof becomes more difficult. But it cannot stand against on ex- 

 press act of parliament to the contrary, for that itself proves a time 

 when the right to such a custom could not exist. It must also be so 

 far reasonable, according to the standard warranted by authority of 

 law that, though no particular origin can now be assigned for it, or 

 though the state of things in which it is known to have arisen has 

 been altered, no good legal reason can be given against its continuance. 

 If it may have had a legal and reasonable origin, it shall be presumed 

 that it actually had it ; and its varying from the general law forms no 

 objection, for that is the very essence of a particular custom : but if it 

 be so contrary to any known rule or principle of law, or to the good of 

 the public, or of a multitude of persons, that it cannot be presumed to 

 have had a reasonable commencement in voluntary agreement for some 

 beneficial object, as for securing possessions, promoting trade, or sup- 

 pressing fraud, it will be void. Thus no length of usage would render 

 good a custom of the secretary of state's office to issue warrants in 

 general terms against the authors, printers, and publishers of a libel, 

 without naming them ; that course being contrary to clear and well- 

 settled principles of law, which will not suffer a mere officer to decide 

 on the individuals to be imprisoned. Again, a custom in an inferior 

 court to try causes by six jurors was held bad, as contrary to the 

 common law, though saved in Wales in some instances by a statute of 

 Henry VIII., confirming such custom where it then existed. But long 

 usage and acquiescence in one uniform payment, or in exempting 

 persons particularly situated from contributing to it, are cogent evi- 

 dence that it is reasonable ; for as Lord Mansfield once said, it cannot 

 be presumed that during a long period of years one half the parties 

 were knaves in wrongfully receiving that to which they were not 

 entitled, and the other fools for submitting to an unjust demand. It 

 belongs to the judges of the courts to decide on what is reasonable 

 when brought judicially before them. 



Where a custom is harmless in itself, and affords recreation to a 

 number of persons, though to the temporary inconvenience of an indi- 

 vidual, it will be upheld and referred to a legal origin. Thus a custom 

 for the inhabitants of a parish to play at cricket, or dance on private 

 property in the parish, was held good, as the lord might have annexed 

 this condition to his original grant of the land. A custom must also 

 be certain as to the description of parties benefited, and compulsory, 

 without its depending on the caprice of any third person whether it 

 can be acted on or not. It must also be consistent ; for repugnancy to 

 any other local custom would be plainly contrary to that origin in 

 common consent on which alone it stands ; and lastly, it must be strictly 

 pursued, being derogatory of the common law. 



Local custom varies from prescription in this : the former is alleged 

 in legal forms as existing not in any person certain, but within a certain 

 named district, without showing any legal cause or consideration for 

 it ; whereas prescription must have a presumed legal origin, and is 

 either a personal right, always claimed in the name of a person certain 

 and his ancestors, or those whose estate he has, or by a body politic 

 and their predecessors, or else is in a gut estate; namely, a right 

 attached to the ownership of a particular estate, and only exercisable 

 by those who are seised of it. All customs of cities, towns, and 

 boroughs, by which jwrsoiu not freemen were prevented from keeping 



shop* or using trade* or handicraft* within them, were abolished by 

 5*6 Will IV., c. 76, s. 14. [PRESCRHTIOM.] 



Customs of traders, or seamen, a* also of agriculture, mining, &c., 

 will be followed in the construction of contract*, unless they are . 

 sutent with their express term*, and, subject to that condition, they 

 are admissible even to annex incident* to them as to which they- are 

 silent. The " custom of the country " means the custom of all part* 

 of the country to which it can in iU nature be applied. Thus a custom 

 that land accruing imperceptibly to the sea-shore belongs to the 

 owner* of the shore, applies to all such part* of the realm as adjoin the 



a, tuiless limited in terms to a particular district. 



The immemoriality of a particular local custom may be sufficiently 

 proved by living witnesses attesting regular existence for twenty years, 

 unless contradicted by contrary proof. Upon this doctrine will be 

 found to depend a great variety of public as well as private right* to 

 ancient office*, estrays, treasure trove, wreck, nomination of juries, 

 Ac. ; as well as to tolls of markets, port duties, tithes, ancient rente, &c., 

 and to exemptions from those burdens. The numerical amount of 

 instances in which the privilege claimed can be proved to have . 

 must be considerable or not, according to the frequency or the rarity 

 with which they may be naturally expected to recur. Thus in .1 

 hold custom of surrendering in fee so as to bar an entail, a single 

 instance of user, though incapable of making a custom, is evi'li u> 

 sufficient to support it, if not unreasonable in itself. 



Reiterated facts of user make a custom of trade; but the mere 

 opinion of merchants is not sufficient for that purpose ; nor can 

 any course of action pursued under colour of a custom of mei 

 alter a general rule of common law when established by ju 

 decisions. 



A long continued usage for exempting particular persons from a 

 local burden, will, if necessary, be supported by presuming that it 

 originated in an act of parliament now lost, though no length of usage 

 will countervail the terms of a statute to the contrary. 



CUSTOMS-DUTIES consist for the most part of taxes levied upon 

 goods and produce brought for consumption from foreign countries ; 

 such duties are sometimes collected upon exports made to foreign 

 countries, and upon goods and produce passing from one port to another 

 of the same country. Of this nature were the duties on coals, slate, 

 and stone, carried coastwise from one port in the United Kingdom to 

 another, which duties were repealed in 1831. With the exception of .1 

 small-rated export duty upon coals, hare-skins, rabbit-skins, and sheep's 

 wool, and on ad valorem duty of one-half per cent, on the shipment to 

 foreign countries of some articles of British production, the wli.ile 

 customs-revenue of this kingdom is now derived from duties charged 

 upon the importation for consumption of foreign and colonial mer- 

 chandise. 



The earliest statute passed in this country, whereby the crown was 

 authorised to levy customs-duties, was the 3rd of Edward I. The mode 

 long employed in the collection of these duties was to affix a certain 

 rate or value upon each kind or article of merchandise, and to grant 

 what was called a auiaiiiy upon these rates. This subsidy was generally 

 one shilling of duty for every twenty shillings of value assigned in the 

 book of rates. The early Acts granting these duties speak of them as 

 subsidies of tonnage and poundage. The word tonnage was applied to 

 a specific duty charged on the importation of each tun of wine, and 

 the exportation of each tun of beer; and the word poundage was 

 applied to other articles valued as already explained. 



The first " book of rates agreed upon by the House of Commons," is 

 believed to be that compiled by a committee in 1642, during the reign 

 of Charles I., and published under the authority of the House by 

 Lawrence Blaiklock. The next book of rates of which we have any 

 record, was also published by order of the House of Commons, in 1660, 

 the year of the restoration of Charles IL In the fifteenth and twenty- 

 second years of the reign of that king, the principle of poundage was 

 altered as respected some articles, and upon those articles specific 

 duties were charged instead, though the system was still followed 

 with regard to the great- bulk of articles. But in the reigns of 

 William III. and Anne many additional specific rates were imposed, in 

 place of the valuation for the subsidy. This course of substitution 

 was continued from tune to tune, and some other innovations were 

 adopted 'by which the simplicity of the ancient plan was destroyed; 

 so that in a work of authority, published by Mr. Henry Saxby, 

 of the Custom-House, London, in 1757, we find as many as thirty- 

 nine principal branches of customs-duties, with subdivisions applying 

 to different kinds of goods, thereby introducing a degree of com- 

 plication into the subject which must have caused great embarrassment 

 to traders. 



The difficulties here mentioned were increased by the great number 

 of acts of parliament passed from year to year for altering the duties 

 or regulations of this branch of the revenue ; and the great bulk and 

 intricacy of the customs-laws had caused such inconvenience, that 

 about the year 1810 the lords of the Treasury employed Mr. Jickling 

 to prepare a digest of those laws. Five years were employed in com- 

 pleting this task, and some idea may be formed of the laborious nature 

 of the work, and of the necessity for its performance, from the fact 

 that the digest forms a large octavo volume of 1375 pages. The work 

 is intituled ' A Digest of the Laws of the Customs, comprising a Sum- 

 mary of the Statutes in force from the earliest period to the 53rd 



