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But we fear lest those who have not well considered the force of vncient custom as necessarily making law, may be misled by the ideas of partial adoption into the bosom of the law, and of stretching forth arms with fondness, to assert and inaintain those children of adoption, from motives of consonancy to legal reason, &c. We think, the common law kinows no choice of any kind, and has no power of adoption. To us it seems that the courts of law which expound it, take things as they are, according to common reason, and decide upon the contracts of men, considering then as influenced by ancient custom, because, where the contrary is not expressed, the contracts of all men are made with a view to well known ancient customs, which are tacitly implied in those contracts, and which give meaning to the very words in which they are expressed. Quem penes arbitrium jus est et norma loquendi. Considered upon this principle, which we believe to be the only true one, the negotiability of a bill of exchange by indorsemeut, stands upon the same foundation as the incapacity of being assigned, or being negotiable by transferring a right of action, as well as a right of interest, which is attributed to other choses in action, Each alike rests upon ancient usage, and there is no departure from principle in either case.* He who gives a bond to pay money to another, or his certain attorney, his heirs, executors, administrators, and assigns, knows that by ancient custom, the assignment of it does not pass the right of bringing an action, in the name of the assignee, but that it must be brought in the name of the obligee, or his legal representative, and that whenever he is sued upon it,
• It is the opinion of Blackstone, that all the common law depends upon custom, and he thinks it a pecular mark of British liberty. Judge Wilmot once said, that the common law was made up of the relics of ancient statutes now lost; and Lord Halc thought that part of it, at least, was so. The latter opinion seems the best as a medium, but we should settle rather nearer to Blackstone than to Judge Wilmot, for a little acquaintance with the early writers, will evince that much of it is laid down in the very words of the Romun law, and, therefore, evidently not introduced by legislative enactment, but gradually deduced by the decisions of the courts, from reason, convenience, and the general opinion of all mankind concerning right and wrong. Judge Foster, in Edie v. The East India Com: pany, 2 Burr, 1226. says the custom of merchants is a part of the common law of the lund; and adds that a sufficient distinction is not made between general customs, which are a part of the common law, and particular customs which are not so ; but are in truth exceptions.
he can set off any thing which is due to him from the obligee. He therefore manages his affairs accordingly, and deals with the obligee, in future transactions, with a view to this right of set-off. The acceptor of a bill of exchange payable to order, knows that he is liable to be sued by the assignee, called the indorsce, and is not entitled to the like set-off
. The ancient usage in each case constitutes the difference, and explains the meaning of the terms“ payable, to order," and "payable to his certain attorney and assigns;' between which graromarians and lexicographers would be at a loss to make any essential distinction. Courts of justice know this, and would not do justice if they did not regard it. We conceive, therefore, that if a bill of lading be assignable to any certain extent, in a similar manner, it is so for the same reason, namely, because it has been so immeinorially used by all those who have been concerned in the making and transferring of bills of lading, and the statute Jaw contains no enactment to the contrary. If we are not mistaken, the custoin of merchants is the law of merchants,* and the law of the land in mercantile transactions, becanse that custom is presuined to be had in view by all parties in the course of their contracts, and the universality and antiquity of an usage may well warrant courts of justice in considering it as an implied terin with both by the contracting parties. Mere frequency of practice, in late tiines, is not sufficient evidence for this purpose; and it is at best questionable whether even the universality of a practice is or ought to be so, if it is not at the same time of ancient origin. The consonancy to legal reason, which we cannot distinguish from common reason, is, we presume, not a necessary part of the law of inerchants, because we may be assured, that in maiters of contract, nothing will be universal and perpetual which is wholly absurd and inconvenient; and if its conve
We think the term “custom of merckants,” which is used in pleading, is preferable to “ law of merchants," because the latter iinplies, in some degree, the existence of two systems of law, one for the merchants, and another for other men; which is not the case. The law, as it seems 10 us, requires tout all men sivuld perforin their contracts and engagem ints with each other; and in the case of mercantile transactions, the custom of merchant's settles what are the terms of those contracts. In like mariner ele general custom of farmers, and the custom of carrers and wharfingers, is binding in law upon them in their respective transactions.
VOL. III, No. 20. [BB]
nience or propriety is not altogether obvious, yet the universality of error has of itself the force of law.*
After the opinion we have already given of the work, we need scarcely say that these observations do not detract from our sense of its general merit. We have, indeed some apology to inake for seeming to question the correctness of Mr. Abbott's opinions, where, it is probable, there is no difference between us, except in terms; but though our ideas of the force of custom in law may not be novel to him, they may be useful to young students, by affording one instance, among many, that common reason and common law bave an intimate connexion ; and we are desirous, at all times, to impress upon our younger readers most strongly our conviction that law is never so well studied, nor so much admired, as when its maxims, its principles, its distinctions, and even its anomalies, are traced to their source, and found to subsist essentially in the nature of things : it is then no longer an artificial system of arbitrary rules imposed by blind authority, but a philosophical science of practical ethics, founded in the immutability of truth and reason.
ARTICLE XI.-REPORTS of Cases of CONTROVERTED ELEC
TIONS, in the second Parliament of the United Kingdom, begun and holden the 31st of August, 1802. By ROBERT HENRY PECKWELL, of Lincoln's Inn, Esq. Barrister at Law.--BUT
TERWORTH, Flect-street, 1804. MR. PECKWELL gives the following account of bis
reasons for the publication of this part of his Reports, and of the plan which he has pursued in preparing it for the press.
“ It has been thought expedient to publish this first part as soon as it could conveniently be prepared, for two reasons: first, in order that in the trial of the later petitions, some advantage may be derived from the arguments and determinations now reported; and secondly, that the author, on a future occasion, may be able to avail hiinself of the judgment of the profession, and adopt such improvements as shall be suggested in consequence of the present publication.
“ It has been studiously endeavoured to select for the materials of this work such things only as relate to question of parliamentary Jaw, and properly belong to a professional book. No more of the facts of each case have been given, than are necessary. to make the arguments understood; and the arguments themselves have been collected and coinpressed into one speech only on each side: it is • Communis error
also proper to add, that although the substance of them has been strictly preserved, the language in which they are drawn up, is entirely that of the reporter ; the manner in which causes are necessarily conducted before committees, rendering it impossible to a there, in any degree, either to the language or to the arrangement of the speeches of the counsel.
“ An introduction will be furnished hereafter, to be prefixed to the first voluine, containing an account of the proceedings in the House of Commons in matters relating to elections, as well in the present parliament, as in former parliaments since the passing of ilr. Grenville's act; such as the presenting of petitions, the discharging or enlarging of recognizances, the formation of select coinmittees, the distinction of parties, and other subjects of the like nature.
“ It remains only for the author to express his warmest acknowledgments for the assistance which he has received from the members of the House, and of the committees, and from the professional gentlemen employed in these causes. A fitter place will be found, than in the advertisement to this small part of his work, to express his gratitude for more important advantages which have been afforded to him from other sources: but he cannot omit the earliest opportunity of acknowledging his obligations for the very able and active exertions of several of his friends, who have contributed much of their time and labour to complete the series of these reports. To demonstrate the value of this assistance, it is suficient to mention, that in the month of February, 1803, no less than seven committees were sitting at one time. For the case of Tewksbury in 1797, he is indebted to Mr. John Dowdeswell, of Lincoln's Inn, who very kindly furnished hiin with a copy of the evidence in that case, and of the speeches of the counsel, taken in short-hand.”
We have only to observe that since the public are deprived of the assistance of Lord Glenberrie as a reporter, the task of recording the proceedings of the coinmittees of the House of Cominons on contested elections, could scarcely have fallen into better hands; and, coining after one of such acknowledged excellence, it is no sinall praise to say that he is worthy to be bis successor. We have not ourselves been present during the entire hearing of any one of these cases, but we have heard them weil s;ukea o: bv others whio have far better opportunities of deterinining witil certainty ; and judging from internați evidence and wnit we have qurselves seen of the author's ability as a reporter on other occasions, we can have no doubt but that they are taithful and well digested abstracts of arguments ut tiie wunsilo. buth sides, as well as of the history of the different boroughs and the stii ene of the cases, diirested ot' cirose in naterial circumstances with which, by the over-cautious anx 2y of the parties they are sometimes incuinbered.
which he acknowledges to have received from others, is both honourable to himself and his friends, and we may add that it is an aid which no one deserves better, because we believe no one is more ready to afford it to others. The Ace count of the Proceedings of the House of Commons in matters relating to elections, which, we présame, is a practical work, we have no doubt will be acceptable to the profession from the earnest that the author has given in this work of his ability for the execution of it.
The part already published contains eleven cases, viz.
1. The Burghs of Dumfermling, &c.-2. The Borough of Shaftestury.-3. The College and University of Dublin.-4. Thi Borough of Great Grimsby.-5. The Town, &c. of Nottinghum.-6. The Borough of Barnstuple.—7. The City, &c.
Coventry:-->. The Borough of Bridgewater.-9. The Burghs of Inverness, &c.-10. The Borough of LiskeardNoti ( 4.) The Borough of Tewkesbury, 1797.-11. The County of Hereford.
We shall extract that of the town of Nottingham as a speciinen of the author's manner.
“ The petition of D. P. Coke, Esq.. set forth, that in pursuance of a writ directed to the sheriffs of the town and county of the tex.nl of Nutungham. for an election of two men,bers to serve in parliament for that place; the proclamation for such election was regularly made, and the day, hour, and place for such election were thereliy fised to commence at the Exchange Hall, on Tuesday the 6th day of July, i 502, at nine o'clock in the morning ; that the election accordingly commenced at the day, and hour, and place which bas been so nxed; when Sir John Borlase Warren, and the petitioner, were the only candidates nominated in the presence of the electors eben and there assembled; and that no poll was demanded, nos was any other candidate proposed for near an hour after the different forms had been gone through preparatory to the said election; whereby, as the petitioner conceived, the petitioner, and the said Sir J. B. Warren, were duly elected the members to serve in parliament for the said town and county of the town of Nottingham; and that it was the duty of John Allen, who was one of the sheriffs of the said town and county of the town of Noutingham, and who presided at the election, to have returned the said Sir John Borlase Warren and the petitioner as duly elected; but, in violation of such duty, and for the express purpose of giving time to procure a third candidate, so that the free and unbiassed choice of a great majority of the electors of Nottingham might be disappointed by means of tumut, riot, intis
ation, and lence, the said John Allen did, of his own av
• Yotes, 93.