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complete. But that era ended with the Civil War, although the development of new commonwealths, each with its law to make, kept stirring something of the spirit of that era down to the end of the last century. To-day all occasion for deceiving ourselves as to what these maxims are or how they arose has definitely passed. It is significant that American law teachers of to-day find no place for them in the case books" which have become the ordinary basis of instruction.

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The Local Ambit of a Custom

By H. E. SALT, M.A., LL.B.


"Consuetudo," says Sir Edward Coke,1 "is one of the maine triangles of the lawes of England; those lawes being divided into common law, statute law, and custome." If the proposition were put to him in such a form a student of trigonometry would probably find difficulty in solving the triangle. It has proved not less perplexing to generations of lawyers. Hitherto no formula of juridical sines and secants has been found which satisfactorily resolves the relationship between rights arising respectively by virtue of custom and under the general law of the realm.

The truth is that at various times and even concurrently numerous different contents have been ascribed to the legal term "custom." It will be convenient here to enumerate some of them without comment :

(1) Public international law and custom;

(2) The custom of the constitution;

(3) Certain administrative institutions and fiscal duties2;

(4) The private international custom of merchants now for the most part absorbed into the system of the common law;

(5) The practice of (a) a trade or (b) a locality as evidence in the light of which a contract3 or relation may be construed;

1 Co. Litt. 110 b.

2 Cf. the antiqua and nova custuma of 1303, Stubbs' Const. Hist., 4th ed., II. 164.

Hutton v. Warren, 1 M. and W., 466 at. 475; Smith on Master and Servant, 7th ed., p. 38.

4 E.g. between tenant for life and remainderman under a settlement, Dashwood v. Magniac [1891] 3 Ch. 306.

(6) A genuinely ancient body of custom which obtained over an area once politically or ethnologically distinct from the Kingdom at large. Such customs are coeval with the common law and have in part eluded its embrace. Examples of the survivals are to be found in Gavelkind, Borough English, and the Stannary customs in Cornwall.

(7) The common law itself1;

(8) "The doctrine under which undefined persons or a fluctuating class can, within a definite district, claim and establish certain rights in the nature of incorporeal hereditaments."2 If we dismiss the first three, the remaining senses of the term do not constitute water-tight compartments. Various groups among them have different features in common. For example, the requirement of immemoriality real or fictitious is shared by (6) and (8); and according to Blackstone, also by (7)3. Or again, they may all be put to the test of generality of application. The results will appear various and bewildering. Of some it may be predicated that the custom gives rise to a general right within a jurisdiction coincident with that of the King's Courts, e.g. a custom to treat certain instruments as negotiable. In respect of others the class of persons to whom it

1 Blackstone Comm., I. 67.

2 Carson on Prescription and Custom, p. 112.

3 Comm., I. 73. His contention cannot be supported to-day. It may be noticed in this connection that a confused analogy to immemorial particular custom probably underlay the contention that the modern custom of merchants, as opposed to the ancient law merchant, could not be judicially noticed and adopted into the Common Law as a source of new rights. Of course, neither of these was required to be immemorial in the technical sense. See Crouch v. Crédit Foncier, L.R.8 Q.B. 374; Goodwin v. Robarts, L.R. 10 Ex. 76, 337: 1 App. Ca. 476; London and County Banking Co. v. London and River Plate Bank, 20 Q.B.D. 232, at p. 241; Bechuanaland Exploration Co. v. London Trading Bank [1898] 2 Q.B. 658; Edelstein v. Schuler [1902] 2 K.B. 144. Compare Machin on Corporations, (Boston U.S., 1908), Sections 1734, 1735; White v. Vermont and Mass R.R. Co., 21 How. 575; Mercer County v. Hacket, 1 Wall 83, at p. 95 per Grier, J.

can apply is limited in point of occupation or of locality, e.g. a custom to take the way-going crop after expiry of lease,1 a custom to mine for tin on any waste land of another. While again the subject matter of some customs is restricted to one specific res, such as a particular close belonging to one of the parties, of others it may consist of any transaction of a particular kind or within a particular district.


In short there appears to be no single common denominator of them all. More especially, generality of application provides a criterion of no great value when we seek to draw a generic distinction between customary and common law rights. But suppose we isolate custom in the eighth sense laid down above -that is to say, the doctrine under which certain jura in re aliena may become vested in a fluctuating class of persons in a district-may not the test of generality help to demarcate common law from customary rights of this type? The problem may then be thus stated: how far if at all may a right arising by custom (in sense 8) be differentiated from a right arising at common law (sometimes known as custom in sense 7) by the fact that its ambit is restricted on the one hand in reference to the generality of persons who may claim thereunder, and on the other hand in reference to the locality in which the right obtains?

It is important to the appreciation of this problem to observe how it came about that the word "custom was, and sometimes still is, used as a synonym for the common law itself. It was, of course, the custom of the King's Court which became the paramount law of the land. An elaborate judicial custom is the

1 Wigglesworth v. Dallison, 1 Dougl. 201; I Sm. L.C., 12th ed., 603. 2 Rogers v. Brenton, 10 Q.B. N.S. 26.

3 Mercer v. Denne [1904] 2 Ch. 534; [1905] 2 Ch. 538.

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