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Customary Law

usage, particular, laws, common and customs

CUSTOMARY LAW is that law which has for its basis—usage, and therefore may be abrogated by usage. It derives its whole au thority from the silent assent of those who are affected by it. A usage cannot be sustained in opposition to well-established principles of law. To sustain a usage under such circum stances would be extremely pernicious in its consequences, and would render vague and un certain all the rules of law. A mere custom or usage is therefore without force in opposi tion to a positive law. Thus a usage for factors to pledge the goods of their principals is void, being against a general rule of law. So the usage for a master of a vessel to sell the cargo without necessity when the vessel is stranded; so of a custom, different from the law in a cer tain place, to re-enter for a forfeiture incurred by the non-payment of rent. And it is held that the custom and understanding of the mer chants in a particular trade cannot be admitted to prove that the barter or exchange of a prom issory note, endorsed without recourse, for cot ton or any other species of merchandise, carries with it no implied warranty of the past or fu ture solvency of the maker of the note. So where a transaction is within the statute against usury, the usage of trade as to such transaction cannot be received in evidence to show that it is not usurious. Known and settled usages, however, are respected by courts and juries, unless such usages are against the laws or policy of the country. Usage is evidence of the construction given to the law, and when it is established and uniform it regulates the acts and duties of those who act within its limits. Usage is a matter of fact, and not of opinion. A usage of trade must therefore be proved by instances, and cannot be supported by evidence of opinion merely. It is proved by witnesses

testifying of its existence and uniformity from their personal knowledge obtained by observa tion. Customary or Common law was intro duced into the United States based on English common law, which in its most comprehensive sense embraces general customs pervading the whole realm, particular customs prevailing only in certain places and particular laws which by degrees have been incorporated into the com mon law to a certain extent. In its more ordi nary acceptation, however, the common law includes only general customs and particular laws, and not customs of particular places. In this manner in England Christianity was early recognized as a part of the customary or common law of the land, when a lord chief justice ruled that Christianity is parcel of the laws of England" and to cast obloquy upon its precepts is to speak in subversion of the law. Such restriction, however, was not intended to consider as reprehensible honest, sincere and conscientious disputes between learned men upon particular controverted points incident to its doctrines. In the United States an inter mediate ground is maintained; the one best supported by both reason and authority is that acts conducive to the subversion of the Chris tian faith or which are calculated to bring into contempt or ridicule its tenets and symbols, and contumelious attacks upon its laws and institutions, are temporal offenses; not because Christianity is a part of the law, but for the reason that such acts tend to a breach of the law and so jeopardize the public welfare. See Cusrosts.