3. This unwritten, or common law, is properly distin guishable into three kinds. First, General custoMs, which are the universal rule of the whole kingdom of England, and form the common law in its stricter and more usual signification. Second, Particular customs, which for the most part affect only the inhabitants of particular districts. Third, Certain particular laws, which by custom are adopt ed and used by sonic particular courts of pretty general and extensive jurisdiction.
4. First, As to general customs, or the common law pre perly so called, this is that law by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This for the most part settles the course in which lands descend by inheritance ; the manner and form of acquiring and transferring property ; the solemnities and obligation of contracts ; the rules of expounding- wills, deeds, and acts of parliament ; the re spective remedies of civil injuries ; the several species of temporal offences, with the manner and degree of punish ment ; and an infinite number of minutcr particulars, which diffuse themselves as extensively as the ordinary distribu tion of common justice requires. Thus, for example, that there shall be four superior courts of record, the Chancery, the King's Bench, the Common Pleas, and the Exchequer ; that the eldest son alone is heir to his ancest or ; that property may be acquired and transferred by writ ing ; that a deed is of no validity unless sealed and deliver ed ; that wills shall be construed more favourably, and deeds more strictly ; that money lent upon bond is recov erable by action of debt ; that breaking the public peace is an and punishable by fine and imprisonment.
All these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemo rial usage, that is, upon common law, for their support.
5. Second, The second branch of the unwritten laws of England arc particular customs or laws which affect only the inhabitants of particular districts.
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 Edgar, and Edward the Conlessor : each district mu tually sacrificing sonic of its own special usages, in order that the whole kingdom might enjoy the benefit of one uni form and universal system of laws. But for that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in con tradistinction to the rest of the nation at large ; which privilege is confirmed to them by several acts of parlia ment.
G. Such is the custom of gavel kind in Kent, and some other parts of the kingdom, (though perhaps it was also general till the Norman conquest,) which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike ; and that though the ancestor be attaintcd and hanged, yet the heir shall succeed to his estate, without any escheat to the lord. Such is the custom that prevails in divers ancient bo roughs, and therefore called borough-English, that the youngest son shall inherit the estate in preference to all his elder brothers. Such is the custom in other boroughs, that a widow shall be entitled for her dower to all her hus band's lands ; whereas, at the common law, she shall be endowed of one-third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customa ry tenants that hold of the said manors. Such likewise is the custom of holding divers inferior courts, with power of trying causes in cities and trading towns ; the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage. Such, lastly, are many particular customs within the cit.y of Lon don, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage, though the customs of London are also confirmed by act of parliament.
7. To this head may most properly be referred a par ticular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mcrcatoria ; which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it, being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions ; for it is a maxim of law, that "cuilibet in sua arte credendum est." 8. Third, The third branch of the leges non scrz1/2ta, or unwritten law, are those peculiar laws, which by custom are adopted and used only in certain courts and jurisdictions. And by these we understand the civil and canon laws. See civil and Canon law.