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changes in the laws, the magistrate may and ought to presume the consent of the people in respect to the alteration, upon the same reasonable grounds that he must necessarily have presumed it, in respect to the construction of laws.
Here we find the explanation of that equitable power which the English courts of common law are said to have in respect to some particular subjects, and which is not an arbitrary power, adopted at discretion by the common law, or arising from any transformation in its nature effected by those particular subjects, with respect to which it is said to possess it, but only the direct exercise, by the court of common law, of that constitutional discretion by which it accommodates itself in the application of its primary maxims to the policy of the particular transactions to which they come for the first time to be applied. This is called an equitable(a) power, because, for the reasons before assigned, the courts of common law have sometimes felt themselves precluded from using it, except through the agency of the equity courts; a piece of legal etiquette of the same sort as that which makes it proper for a German potentate to marry a lady with his left hand whom he may not with his right. This equitable power society demands somewhere. In England they happened to have a court of equity, which was transformed by the social necessity into an instrument of reform with respect to some subjects, which otherwise the common law would have effected by the contrivance of some other fiction, as they used to do in ancient times, before the court of equity was a regular law court. The cases where they are said to have had an equitable power, then, will be found to be those in which they felt themselves at liberty to exercise this power themselves. Thus a court of law is said to be a court of equity as to mercantile affairs. The amount of it is, that they do not apply the same rules to property, when subject to the ever-varying vicissitudes of commerce, as they would when they were merely regulating its immediate passage from the producer to the consumer, or from one consumer to another. The reason is obvious. In one case the use and ownership of the thing is the final object of the negotiation, and in the other the possession is merely secondary to some other object. In the latter case, therefore, the precision of the transaction becomes less possible, and as a principle of
(a) Tooke v. Hollingsworth, 5 T. R. 229. and 2 H. Bl. 501.
action secondary to those rules which are intended to give facility to its transmission. The courts of common law, therefore, will not allow property subject of commerce, to be bound up and settered by any technical rules of ownership, but adopt such equitable rules with respect to it, as will make it most easily convertible to the purposes of trade. The principle is the same as that which leads them to adopt different rules of law, with respect to different subjects, and might have enabled them to have effected other changes of the same sort in the laws, for which they were indebted to the courts of equity.(a) To take, for instance, a case relating to real property, the laws of which the common law courts have ever considered the most sacred, and been most reluctant to meddle with. The custom of mortgages is immemorial in the common law; but so long as the rules relating to it were regulated according to the technical rules of real property by the common law, it answered its purpose (which was in a degree commercial,) very ill, until the courts of equity, adopting, as the courts of common law ought to have done, the policy of the conveyance, (the object of which was not the benefits of ownership and tenure of the land, but on the one side the obtaining of money and on the other security for repayment,) and disregarding all the technical analogies by which the common lawyers attempted to confuse the subject, dropt the rules which it had wisely or unwisely thought it expedient to adopt to secure the object first mentioned, and adopted others by which the purposes of the transaction could be best promoted. When, therefore, a court of common law gives out that in certain particulars it will go as great lengths as a court of equity, it merely does that upon principle and directly, which it has in some cases been obliged to do in an indirect manner. It is merely carrying into effect with respect to one subject and at one time, openly and avowedly, those principles which at another time and under different circumstances, were advanced under the cover of legal fictions, and pushed forward by the help of the courts of equity.
(a) The authority of custom is put upon precisely the same ground with that of the rules of other courts which are adopted by the common law with respect to any particular subjects, by Lord C. J. Hobart, in Wynch, 24. “The custom of merchants,' said he, 'is part of the common law of this kingdom, of which the judges ought to take notice; and if any doubt arise to them about their custom, they may send for the merchants to know the custom, as they may send to the civilians to know their law.'
7. This account of the origin and constitution of the common law, explains to us the true nature and force of the several species of customs, and their place and relation to the rest of the system. These customs have been divided into, 1. The general and ancient customs of the realm. 2. Particular local customs. 3. Mercantile customs. 4. Usages so common as to be presumptive parts of a contract in particular instances.(a) 'But, if we are correct in our views, all these various customs are the same in their obligation and authority, each within its own sphere, and only differ in their age, in being in different stages of their progress, and in extent and comprehension. We are not aware that we have in this country any of those which in England are called local customs, which are, strictly, accidental variations from the customs which prevail in the rest of the realm, not having their foundation in any general and necessary cause. They were of course contrary to the policy of the common law; rather a weed which grew up in the rank vigor of custom, wlich interferes with and destroys the symmetry of the rest, than a branch of it, as some of the other customs have been very justly called. They have therefore been discouraged and oppressed by a system of wholesome restrictions, which have nearly had the effect of weeding them out, but which are entirely inapplicable to the other classes of customs and usages which prevail in this country.
Hence the only substantial and permanent distinction, as it appears to us, between the customs which are included in the above classification, is that by which they may be classified into, 1. Those which regulate the unessential and incidental parts or terms of the transactions to which they belong, but which, on account of the fluctuating circumstances upon which they depend, never come to be so universal or so long continued, as to pass into law by force of custom, and to be established as such by the court; but always remain as evidence: (6) 2. Those which regulate the whole form and nature and all the essential terms of the transactions, and constitute distinct branches of the common law system. The distinction between the two is analogous to that between the essential and
(a) Starkie Ev. title, Custom.
(b) Doctor and Student, Dial. i. c. 7. * And it shall be determined by the justices whether there be any such general custom or not, and not by twelve men.' And c. 8 is made the same observation respecting the maxims of the common law.
incidental terms of contracts,(a) and indeed is founded upon it, and arises from the circumstance that in all conditions of society, the correspondence and similarity of men's plans, which give a definite form to the outline of its several transactions, cease beyond a certain point, and leave the rest open to the ever-varying and minute differences in the situations and enterprises of individuals.
The first of the above classes is that which is called usages, and may be that of a certain association of men, of certain cities, or of certain mercantile houses, or of certain individuals. (5 Pick. 15.) *Its legal force is precisely the same with that of all other customs, namely, as evidence, and it only differs in the mode of its application, or rather of communication, which is through unofficial witnesses, instead of under the sanction of judicial testimony; and because the court, for the reason above given, cannot, upon reasonable rules of evidence, undertake to make it a matter of that judicial knowledge which is essential to customary law.
The other class of customs are, what may be called, the branches of the common law, such as the nominate contracts, the law of mortgages, of uses and trusts, of insurance, of agency, of partnership, of bills of exchange, and of other mercantile customs. All these are the laws regulating distinct and permanent social operations. When these customs are perfected by judicial elaboration, there is no philosophical difference between them, other than in their relating to social functions more or less essential in every stage of society, and in their having had an earlier or later origin. And the only difference between the authority of such customs before they have thus been judicially adopted and after, is to be found in this fact, that in one case they have the judicial sanction, and in the other case they have only the right. It is the same difference which there between the right of demandant before he takes out his 'præcipe,' and after he has obtained his "facias habere possessionem. For since there are certain transactions, natural and necessary in every condition of society, and since, as society advances, these transactions become infinitely extended and diversified, not only internally, but by a connection externally, with various countries and in various manners, and for various purposes, and since the interaction
(a) Pothier on Contr. p. i. c. I. art. 1. 3.
of all these, affect not only the operation of ihe rest, but the preceding customs of the community; the laws which regulate all these transactions into which the affairs of the society branch out, ought to be co-extensive with them, and must arise. out of, and be accommodated to them, by the same process and in the same manner, with those which have preceded them. In the first place such new emergencies, require new modes of action in their beginnings; and when they become subjects of judicial consideration, the combination of probabilities by which they would arrive at the intention of the parties with respect to a different species of transaction, or one relating to a different subject, could not be applicable except in the way of analogy to these new cases. Moreover that part of previous customs which had its origin as the constructive intention of individuals, and whose constitutional commission does not extend beyond their appropriateness to make their actual arrangements most effectual in the attainment of their object, becomes inapplicable, under those circumstances, and to those new trapsactions which we have mentioned above. It follows that the magistrate must proceed anew in the adjustment of the rights and relations of the parties, adopting their arrangements as the basis to which the rest of the custom is to be adapted, and from which it is to be developed, upon the same principles upon which his predecessors have acted in preceding cases, and after a due consideration of his own powers and the rights. of the parties.
Those customs, therefore, called by distinction customs, and which are said to become or be branches of the common law, are only the extensions, or the first nuclei or elementary parts of constitutional and necessary extensions, of the common law, to adapt itself to similar extensions in the operations of society. They become parts of the common law, not by the permissive adoption of judicial discretion, but by a forcible self-ingraftment, and from their possessing the same nature, and the same inherent right, independently of judicial confirmation, with the whole body of the common law. When, therefore, it is said that the common law gives to customs the force and efficacy of their obligation, it is only true in the sense that there are certain principles arising from the constitution of the common, and all other customary codes of law, by the force of which a custom introduces itself, under the sanction of a court, into the system, and acquires the force of law within its sphere. VOL. IV.NO. VII.