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Custom must be of time immemorial — why.
Useful — or at least not manifestly mischievous equally profitable to both parties, not onerous to one without equivalent Because time immemorial carries it beyond
the area of a regular Legislature. It
carries it up to that period, when if not
as once in Israel, every man, at least every
little district did that which was right in
it's own eyes; or at least in the eyes of
some man who in the person character of a Lord's Steward
lorded it over that little district
Custom when recognized for such carries with
it an obligation — obligation carries with it
a penalty. The annexing a penalty to a species of acts
to do the act in the doing of which the custom consists left free before is an act of the Legislature
It is the essence of the Legislatorial
function. It is what it always does, it is
all that it does, more than what <add>bare custom may do</add> and it is what it does alone.
A parson then is inducted to a Living — he
takes his Tithes in kind, and has occupies his Glebe.
The Tenants of the Manor come unto him
& say. It is the coupling season for our
Cattle, provide us with a Bull. "Why?"
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Your predecessor always used to keep one
for us, and so did his predecessor: it is the Custom.
It may be so says the Minister, but you
must be excuse me, it is not worth my
while. I have agreed with my neighbour
Fairfield — I shall have his he will lend me his; you must
provide yourselves elsewhere. The Tenants
complain to the Lord's Steward, they make
presentment of this neglect. The parson is
warned, he still refuses. The Steward sets a
fine on him — he refuses to pay the fine.
The Steward seizes his goods till he shall
pay it. He applies for redress to one of the King's
Courts at Westminster. By this means
it is made to depend upon the court into
which the question is brought whether the
custom shall be binding. Now it is that
a penalty is first established for the breach
of it.
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Of common with respect to Contracts,
i:e: in the interpreting of contracts.
Of Common Law with respect to Crimes
Of Common Law with respect to Rights
of Office. Prerogative
Custom has more force as a nation is more
barbarous. Instance from Sr James
Porter's Observations on the Turks: an
alms given periodically for a while to a
Beggar is taken for an Annuity.
The force of Law is to
Expectation has the greater force, as the
force of Law [+] [+] which establishes the difference between gratuitous & impulsive donations. which should controul it
is less recognized.
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Those who are within reach of knowing of it,
from each one to himself the notion of a
Law to this effect.When it appears the Parsons of a
Parish have in succession have for a
certain time been used to keep a Bull
to serve the Cows of their Parishioners, they
[shall be] are bound from thence forward to keep
one for that purpose willing or unwilling.
The Law is a general Proposition derived
from the particular Decision by abstraction:
i:e: by abstraction of the several circumstances
of time, place & person.
INTROD. Law Statute )( Common )( Customary. [BR][ ]
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Identifier: | JB/070/007/001 "JB/" can not be assigned to a declared number type with value 70.
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070 |
of laws in general |
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007 |
introd. law statute & common & customary |
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jeremy bentham |
[[watermarks::[gr with crown motif] [lion with vryheyt motif]]] |
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