Place or People. Therefore it is well said, and put in ure by the common Lawyer, Quod consuetudo ex rationabili causa profecta privat communem legem, That a Custom grounded upon reasonable and honest Consideration, abridgeth or altereth the Judgment of the Common Law. So that in Customs the Estate or Condition of the People are to be respected, and such Customs as are consonant to Reason, and most appliable to the Estate and Quality of such People, are to be allowed. For Example: The Custom of Boroughenglish, yet in Force in sundry Places of England, whereby the younger Son is to inherit his Father's Land, hath taken Strength by this Reason, That the Father may (if he be not careless and secure to do his Children Good) train up his elder Sons in some good Trade or Occupation, by which they may be able to get their own Living: Whereas the youngest, by the Impotency and Tenderness of his Years, may be, perchance, unapt and unable for such Instruction; and so the Custom commendable, that provideth for the Relief of the Young and Impotent. Also by an old Custom of this Land, in sundry Boroughs and Towns, Lands were devisable by Will, though the Laws of England pronounced such Devises to be void; and the Reason was, for that Inhabitants of Boroughs or Cities, whose Traffique and Trade resteth much upon mutual Trust and Credit, are oftentimes indebted at the Time of their Death. Wherefore it was thought meet, that they might devise their Land for the due Satisfaction of their Creditors; which to do, they were enabled by the Custom. In Kent and other Places of this Land, the Custom of Gavelkinde is maintained, which importeth an equal Division of the Inheritance to be made among all the Brethren: A Custom partly grounded upon a natural Consideration; for that all the Sons hold the like Obligation of Nature and Desert with their Parents, in the which they have an equal Interest: And also suffered to take Place in Kent, and other Places of this Land, in those Days most inclinable to Rebellion; to the Intent to enfeeble their Forces, and to bring their great Houses and Families to Impuissance and Decay, thereby to disable and discourage them from such unlawful and violent Attempts.


But see now the Statute of 32 H. 8. c. 2, & 34. H. 8. c. 5. of Explanation.

And to come nearer to the Matter, this famous and renowned City of London hath many laudable and ancient Customes; which, though they derogate and differ much from the Rules of the Common Law, yet have they been not only approved by inviolable Experience of sundry Ages, but also have been of old ratified and confirmed by sundry Acts of Parliament, and Charters of Princes, and namely by the Statute of Magna Charta, by these Words following, Quod civitas London habeat omnes libertates suas antiquas & consuetudines quas habere consuevit: Which is, That the City of London have all their ancient Liberties and Customs which they have used to have. The Words following for other Cities, &c. be, Quod habeant omnes libertates & liberas consuetudines suas: Which signifieth, That they shall still retain their Liberties and free Customs: That is to say, their Feedoms and Immunities, as to be discharged of Toll, Pontage, and such like: Whereas the City of London hath Provision made by that Statute, for all Usages and Customs whatsoever. Verily, as the City of London beareth Odds and Prerogative over other Cities in England, being the Metropolis, or Mother City thereof; so are the Inhabitants of it no less necessary than profitable Members of the Commonwealth, in transporting our Commodities into other Lands, and enriching us with the Benefits and Fruits of other Countries. The City of Rome, and Citizens of the same, had that Prerogative, as in other Things, so also in their Executions for Causes capital, that they should not be crucified, being a Death of great Torment and Infamy, but only beheaded. The Benefit of which Custom St. Paul claimed and obtained in the Time of Nero, pretending that he was a Citizen of Rome. The said Citizens also by the Dignity and Reputation of their City, were not, for any Transgression or Offence, to be fettered, whipped, or scourged; which Privilege likewise the said St. Paul took hold of, who being oppressed by the calumnious Accusations and Outcries of the Jews, was by Commandment of Claudius Lysias, the Captain, to be examined by Torture of Whips, what was the Cause of that general Murmur and Exclamation of the People against him: Yet St. Paul, by alledging that he was a Freeman of Rome, not only delivered himself from the Injury and Rage of the People, but also made the Captain much afraid of Question or Punishment, for the Indignity offered unto him. So great was the Majesty of that City, and so reverend the Reputation of all such as were accounted Members thereof. Athenæus termed Rome in those Days very fitly, Epitome totius orbis, An Abridgment of the whole World, for the continual Concourse and Resort of all Nations thither. We may derive thence an Argument for our Purpose, that London being worthy that Title, Epitome totius Angliæ, in Respect of the necessary Repair and frequent Assembly of all Estates therein, whether it be for Justice by the Laws of this Land, which are here administred, or by Trade of Merchandise, which is here so great, that it may be termed totius occidentis Emporium: And chiefly, because of the favourable and often sojourn of our most royal and gracious Sovereign, whose Majesty's Chamber this is, as it always hath been of her most noble Progenitors: The same is no less worthy of sundry Preheminences, which by Custom and Charter it enjoyeth above other Cities of this Land.

Customes of London.

Magna Charta, cap. 9.

Acts 22.

We find in our Law Books, that the Scholars of Oxford claimed a Privilege by Custom, to have Preferment of any House or Lodging, that was to be let in the City of Oxford; and the same was allowed in the Common Place in Westminster, where Justice Finchden, a Man of great Reckoning at that Time, said, That it is Reason, that they which are principal Instruments of good in the Commonwealth, should have beneficial Customs for the Maintenance of their Societies: The like Reason, saith he, serveth for the Merchants of the Staple in Westminster; and also for the Justices of Assises, or Justices in Eyre, to have the like Prerogative. Also, it is no unfit to remember, that the Barons of the Land have divers Prerogatives above other Subjects, that is, they shall not be sworn when they pass upon their Peers; and if they bring an Appeal, the Defendant shall not wage Battaile against them; and they are exempted out of all Returns in Juries, and shall not be sworn in Leets; and all in Respect of their Dignity, and for the necessary Use of them in Government of the Commonwealth. So that Persons of neeful Employment in the Estate, have always been favoured in all their honest Customes or Prescriptions, and especially the Citizens of London, and the rather, for the great Presumption and Opinion conceived of their Experience; who being trained by hard Education, in great Use of Service and Affairs; and also by their Travel and Traffique beyond the Seas, by continual Negociation with other Nations, must needs, by all reasonable Likelihood, procure to themselves great Judgment and Sufficiency, to manage a politick Regiment in their City, according unto that Verse of the Poet Homer, in the Beginning

43 Ed. 3. fo. 17. Vide Brook, Prescr. 8.

Barons Prerogatives.