A brief DISCOURSE, declaring and approving the necessary and inviolable Maintenance of the laudable Customs of London: Namely, of that one whereby a reasonable Partition of the Goods of Husbands among their Wives and Children is provided: With an Answer to such Objections and pretenced Reasons, as are, by Persons unadvised or evil Perswaded, used against the same.

Written by some learned Lawyer unknown, about the Year M D LXXX.

Juris civilis de Consuitudine Axiomata sive Maximæ.

Consuetudo vim habet rei Judicatæ.
Consuetudo est optima legum interpres.
Conventio & consuetudo vincunt legem.
Consuetudo firmata est ubi simili aliquando contradicto, Judicio quid est obtentum seu Judicatum.
Cœpta usucapio vel præscriptio per defunctum, continuatur per hæredem, cum in omne jus defuncti succedat hæres.
Profunda requie humano generi prospexit usucapio. Barto.
Usucapio est quies periculi solitudinisque litium. Cicero.

WE find it necessary in all Commonwealths, for Subjects to live under the Direction of Laws, Constitutions or Customs, publickly known and received, and not to depend only upon the Commandment and Pleasure of the Governour, be the same never so just or sincere in Life and Conversation. For that the Law once enacted and established, extendeth his Execution towards all Men alike without Favour or Affection: Whereas, if the Word of a Prince were a Law, the same being a mortal Man, must needs be possessed with those Passions and Inclinations of Favour or Disfavour that other Men be; and sometimes decline from the constant and unremoveable Level of Indifferency, to respect the Man besides the Matter, if not to regard the Person more than the Cause. Wherefore it was well agreed by the wisest Philosophers and greatest Politicks, that a dumb Laws Direction is to be preferred before the sole Disposition of any living Prince, both for the Cause afore touched, and for other Reasons which I will here omit. But to descend to the Particularities of my Intention, and to treat of the Validity and inviolable Observation of some laudable (I might term them sacred) Customs, being the principal Joints, and very Sinews of all good Corporations and Fellowships, and being also the Maintainers of a sacred Unity and natural Amity between the Husband and his Wife, the Parents and their Children, which (as Aristotle the wise Philosopher termeth it) is the Beginning of a City. For what is a City but a manifold and joint Society consisting of many Housholds, and living under the same Laws, Freedoms, and Franchises? So I must needs confess them to be the Procurers and Causes of sundry good Effects to the general Estate of the City wherein they be observed: As for the other Side, they may breed sundry Incoveniencies in such a City where the same are violated and broken with Allowance and Impunity. I will therefore shortly shew the Nature of a Custom, and the Difference which it holdeth from a publick Law. And next I will declare how necessary the same are to manage the Government, and to entertain the Properity and Traffique of this City; and namely, that one good Custom which I intend to speak of. Lastly, I will endeavour to answer those pretended Reasons, and colourable Objections made against the precise Maintenance and Defence thereof.

First then, I suppose that a Custom which justly deserveth that Name, is of no less reverend Regard and Authority, than a written Law, passed and allowed in Parliament: Which notwithstanding, I do grant, that there are certain Differences between a Law and a Custom; for the Custom taketh its Force by Degrees of Time, and Consent of a certain People, or the better Part thereof; but a Law springeth up in an Instant, and receiveth Life from him that is of sovereign Authority to command. A Custom enlargeth itself by plausible Entertainment, and acceptable Circumstances of Time and Occasion, with general Liking and Allowance; whereas a Law is commanded and published by Power, and received with dutiful Constraint, and that often against the Good Will of them that are bound by it; for which Cause St. Chrysostome not improperly compared the Custom to a King, and the Law to a Tyrant. Moreover, the Custom doth neither promise a Reward for Observation, nor inflict a Punishment for Violation thereof: Whereas, the Law always importeth either a Consideration of Gain, or a Terror of Punishment or Damage, if the same be not a Law of Enlargement, or Permission that disannulleth the Prohibitions of a former Law. Finally, * a Custom is applied to the Commodity of some one Province, Circuit, or City, and grounded upon a special Reason of Conveniency or Commodity, for those Persons or Place where it is observed: Whereas the Law hath a general Reason, extended to the whole Nation bound by the same, without private Consideration of the due Importances of any peculiar

A Custom, what.

*See 34 H. 8. B. Custom, 59. A Man may not prescribe or plead a Custom per totam Angliam, for that is Common Law and no Custom otherwise, if the Custom had been pleaded to be in such a City or County as Gavelkind, Gloc. Fee, and such like.