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A29443 A Briefe discourse declaring and approving the necessary and inviolable maintenance of the laudable customes 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 evill perswaded, used against the same. 1652 (1652) Wing B4579; ESTC R36620 17,189 31

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A BRIEFE DISCOURSE DECLARING And approving the necessary and inviolable maintenance of THE LAUDABLE CUSTOMES 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 evill perswaded used against the same LONDON Printed by JAMES FLESHER Printer to that Honourable City 1652. Juris civilis de consuetudine Axiomata sive Maximae Consuetudo vim habet rei Judicatae Consuetudo est optima legum interpres Conventio consuetudo vincunt legem Consuetudo firmata est ubi simili aliquando contradicto Iudicio quid est obtentum seu Iudicatum Coepta usucapio vel praescriptio per defunctum continuatur per haeredem cum in omne jus defuncti succedat haeres Profunda requie humano generi prospexit usucapio Barto Usucapio est quies periculi solicitudinisque litium Cicero A Briefe Discourse declaring and approving the necessary and inviolable maintenance of the laudable Customes of London WE finde it necessary in all common-wealths for subjects to live under the direction of Lawes constitutions or customes publickly known and received and not to depend onely upon the commandement and pleasure of the governour bee 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 mortall 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 levell of indifferency to respect the man besides the matter if not to regard the person more then the cause Wherefore it was well agreed by the wisest Philosophers and greatest Politicks that a dumb Lawes 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 validitie and inviolable observation of some laudable I might term them sacred customes being the principall joynts and very sinews of all good Corporations and Fellowships and being also the maintainers of a sacred unity and naturall 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 joynt society consisting of many housholds and living under the same Lawes Freedomes and Franchises so I must needs confess them to be the procurers and causes of sundry good effects to the generall estate of the City wherein they be observed as of the other side they may breed sundry inconveniences in such a City where the same are violated and broken with allowance and impunity I will therefore shortly shew the nature of a custome 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 prosperity and traffique of this City and namely that one good custome which I intend to speak of Lastly I will endevour to answer those pretensed reasons and colourable objections made against the precise maintenance and defence thereof First then I suppose that a custome which justly deserveth that name is of no less reverent regard and authority then a written Law passed and allowed in Parliament which notwithstanding I do grant that there are certain differences between a Law and a custome for the custome taketh his 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 soveraign authority to command A custome enlargeth it selfe by plausible entertainment and acceptable circumstances of time and occasion with generall liking and allowance whereas a Law is commanded and published by power and received by dutifull constraint and that often against the good will of them that are bound by it for which cause Chrysostome not improperly compared the Custome to a King and the Law to a Tyrant Moreover the custome doth neither promise a reward for observation nor inflict a punishment for violation thereof whereas the Law alwayes importeth either a consideration of gain or a terrour of punishment or damage if the same be not a Law of enlargement or permission that disanulleth the prohibitions of a former Law Finally a custome is applyed to the commodity of some one province circuit or City and grounded upon a speciall reason of conveniencie or commodity See 34 H. 8. B. custome 59. A man may not prescribe or plead a custome per totam Angliam for that is common Law and no custom otherwise if the custome had been pleaded to be in such a City or County as Gavelkind Gl●t Fee and such like Borough-english for those persons or place where it is observed whereas the Law hath a generall reason extended to the whole Nation bound by the same without private consideration of the due importances of any peculiar 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 custome grounded upon reasonable and honest consideration abridgeth or altereth the judgement of the common Law So that in customes the estate or condition of the people are to be respected and such customes as are consonant to reason and most appliable to the estate and quality of such people are to be allowed For example the custome of Boroughenglish yet in force in sundry places of England whereby the younger sonne is to inherite his fathers 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 yeers may be perchance unapt and unable for such instruction And so the Custome commendable that provideth for the reliefe of the young and impotent Also by an old custome of this Land in sundry Boroughs and Towns Lands were devisable by Will though the Lawes of England pronounced such devises to be void But see now the Stature of 32 H. 8. c. 2. and 34. H. 8. c. 5. of Explanation and the reason was for that inhabitants of Boroughs or Cities whose traffique and Trade resteth much upon mutuall trust and credite 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 creditours which to do they were enabled by the custome In Kent and other places of this land the custome of Gavelkinde is