[125]. Dernburg, Pandekten, I. sect. 27. 3.
[126]. Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad consuetudinem necessarium esse, ut eo animo et intentione servetur, ut jus in posterum fiat.
[127]. Blackstone, I. 76. Co. Litt. 113 a.
[128]. Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris. sed etiam tacito consensu omnium per desuetudinem abrogentur. D. 1. 3. 32. 1. Considerable doubt, however, exists as to the true relation between custom and statute in Roman law, owing to a passage in the Code (C. 8. 53. 2.) which, if read literally, conflicts with the doctrine expressed in the Digest, and declares custom to be destitute of legal effect if contrary to statute law. The ingenuity of German jurists has suggested numerous solutions of the apparent inconsistency, but with no convincing result. See Savigny’s System, vol. i. Appendix II. Vangerow, Pandekten, I. sect. 16. Dernburg, Pandekten, I. sect. 28.
[129]. System, sect. 18.
[130]. Vol. i. sect. 18.
[131]. For the similar doctrine of Scottish law, see Erskine’s Institutes, I. 19.
[132]. It is to be noticed that the term custom is often used to mean particular custom exclusively. Custom (meaning local usage having legal validity) is opposed to law (meaning the common law of the land). When we find in the books any proposition laid down as to the legal efficacy or requirements of custom, it must be carefully ascertained from the context whether the term does or does not extend to general customs.
[133]. Both in English and foreign law, however, the time of memory was extended by the allowance of tradition within defined limits. A witness might testify not only to that which he had himself seen, but to that which he had been told by others who spoke of their own knowledge. D. 22. 3. 28. Bracton f. 373 a. 318 b. By French law time of memory was held to extend for one hundred years. Pothier, De la Prescription, sects. 278–288.
[134]. The statute of Westminster I. c. 39, imposed a limitation upon actions for the recovery of land. It provided that no such action should lie, unless the claimant or his predecessor in title had had possession of the land claimed at some time subsequent to the accession of Richard I. The previous common law rule of limitation for such actions was no other than the rule as to time immemorial. At common law the claimant had to prove his title and his seisin by the testimony of living men; therefore he or his predecessors must have been in possession within time of human memory. The enactment in question was accordingly construed as laying down a statutory definition of the term time of memory, and this supposed statutory definition was accepted by the courts as valid in all departments of the law in which the idea of time immemorial was relevant. See Blackstone, II. 31; Littleton, sect. 170.