CUSTOM, a very comprehensive term, denoting the manners, ceremonies, and fa shions of a people, which, having turned into a habit, and passed into use, obtains the force of laws ; in which sense it im plies such usages as, though voluntary at first, are yet, by practice, become ne cessary.
Custom is hence, both by lawyers and civilians, defined lex non scripta, a law, or right, not written, established by long usage, and the consent of our an cestors : in which sense it stands op posed to the lex scripta, or the written law.
As no law can bind people without their consent, so, wherever that is had, and a certain rule used as a law, such rule gives it the force of a law ; and if it be univer sal, then it is common law ; but if restrain ed to this or that particular place, it is custom.
Custom had its beginning, and received the sanction of the law, thus ; when a reasonable act, once done, was found to be beneficial to the people, and they had frequent recourse to it; and by re petitions thereof, it became a custom, which being continued ultra tritavum, time out of mind, without any interruption, it obtained the power of a law, and binds the places, persons, and things, concern ed therein.
All customs ought to have a reasona ble commencement, be certain, not am biguous, have uninterrupted continuance, and not be against the King's preroga tive : these are incidents inseparable : yet a custom is not unreasonable for be ing injurious to ,private persons and in terest, so as it tends to the general ad vantage of the people : but if any custom be contrary to the public good, or if it in jures a multitude, and benefits only some certain persons, such a custom is repug nant to the laws of reason, and conse quently void. Custom must always be
alleged in many persons ; and so it may be claimed by copyholders, or the inhabi tants of a place, as within such a county, hundred, city, borough, manor, parish, &c. but regularly they shall not allege a custom against a statute : nor may custom be pleaded against custom ; though acts of parliament do not always take away the force of customs. The general cus toms used throughout England, being the common law, are to be determined by the judges, who can over-rule a custom that is against natural reason, &c. ; but particular customs are determinable by jury. See PRESCRIPTION.