Page:The New International Encyclopædia 1st ed. v. 05.djvu/796

* CUSTOMARY LAW. 688 CUSTOMS DUTIES. ready to be transformed, and in process of being transformed, into positive law. This body of cus- toms constitules tlie entire legal system of primi- tive society, and the development and recogni- tion of new customs and the modification of old customs are its principal, if not its onlj', means of expansion and change. Indeed, the primitive codes — as the ilosaic law of the Jews, the laws attributed to L3'curgus among the Greeks, the Twelve Tables of Eome, and the more recent barbaric codes (leges barbaroriim) of the early Middle Ages — represent little more than a state- ment, in precise and definite form, of the body of custom which had already gained the force •of law in the community-. It is only when a <-ommunity has reached the stage of political consciousness that it undertakes deliberately, by legislation or judicial methods, to eft'ect changes in its laws; and even then custom, though rela- tively diminishing in importance, continues to be an important source of new law. Customary law, then, is the foundation and basis of all existing legal systems. Of many, if not most, of those systems it constitutes by far the greater portion of the body of rules of which they are composed, and in all of them it forms an important increment of their growth. Even where the political and legal consciousness of a community has reached the stage of sweeping legal reform — as in the Kastern Empire under Justinian and in France under Napoleon Bona- parte — the resultant code of laws, however com- prehensive, nuist be based upon, and must con- sist mainly of, the rules of the customary law which it is intended to supersede, and its most radical departures from that law are most swiftly corrected by the judicial organs of the community. Undoubtedly the most complete and W'idespread transformation which the customary law of mankind has ever undergone was the gen- eral reception throughout Europe of the civil- law system of Rome. (For the history of this process, see Civil Law.) Only the common-law system of England, upon which that of the Unit- ed States is based, was able to withstand that influence; and this is still, for the most part, consciously and avowedly a body of customary law. (See Code; Common Law.) Under the influence of the spirit of nationality, which has so powerfully affected the nations of Europe during the last quarter of the nineteenth ecn- turj', there has recently developed a strong senti- ment in favor of the revival of the local cus- tomary law, as against the more general law of foreign origin. This is particularly noticeable in the recent revision of the German codes. Consult: Maino. Ancient Law ( llthed., London, 1SS7, or any other edition), and Lecliircs on the Early History of Institutions (0th ed., London, 1893); Lee, Uistorieal Jurisprudence (New York, 1900) ; rjackstorie, Commentaries on the Laws of England (book i. 63-84) ; Bryce, Studies in Bistory and Jurisprudence (New York. 1901 ) ; Holmes, The Common Laic (Boston, 1881) ; Pol- lock and Jlaitland, History of English Law (2d ed., Cambridge, Eng., 1899). CUSTOM HOUSE. The office in a port of entry (seaport or lake port) where masters of ships are bound to enter and clear their vessels according to the statutes governing the subject, and where importers of merchandise must pay customs duties. Tn the United States the custom liouse of each port is under the direction of a Collector of the Port, appointed by the President with the advice and consent of the Senate. He is responsible for its proper conduct, subject only to the direction of the Secretary of the Treasury, and it is his duty to carry out the United States statutes and tariff laws governing and restricting the importation of foreign goods. See Customs Duties. CUSTOM OF THE COUNTRY, The. The title of a play by Fletcher and ilassinger (about 1028), in part taken from Cervantes. A play by -Mrs. Centlivre, with the same title, was pro- duced in 171. J. CUSTOMS DUTIES. Ta.xes levied upon mer- chandise which passes a frontier; generally upon goods imported. Such taxes are of very early origin, and in the long conflict between the Eng- lish King and the Conunons over the right of taxation it was claimed that these taxes were ancient customs over which Parliament had no jurisdiction. Hence the name which has since clung to this class of taxes. It appears that in their origin such taxes were largely in ,the nature of payments for privileges of trading at certain places and for use of the facilities of ports and markets, but that they soon passed beyond the stage of fees into that of imposts. The name customs duties was applied indiffer- ently to the taxes levied at ports of entrj' or at ports of passage or upon goods brought into a city from surrounding parts of the same coimtry. Such internal customs have almost disappeared in modern countries, though remnants of them are found in the 'octroi' of Paris and other Con- tinental cities. Transit taxes, such as those levied upon the navigation of the Rhine, have also disappeared. Such restrictions upon the freedom of commercial intercourse would no more be tolerated in modern times than the tributes once paid to the Barbary pirates. Taxes upon exports have become infrequent. They are no longer an element of consequence in the fiscal system of modern States, though a few remnants of them can be found. In South America such taxes are more common. Chile derives consideralile revenue from its nitrate exports, and Brazil from its coffee exports. Quite striking, as a return to older forms of taxation supposed to be laid aside, was the imposition in 1901 of a tax of one shilling per ton upon all coal exported from Great Britain. Customs duties are, therefore, generally syn- on^nnous with duties upon imports. Such duties may have no other object than to raise revenue. The most conspicuous case of such a purely fiscal tax is when the imported article is taxed to ex- act!}' the same extent as the home product, such a tax aiming to equalize the conditions of com- petition for the foreign and the home producer. Another distinctly fiscal tax is one imposed upon an article not produced in the home counti-y, as the English duty upon tea. Taxes which weigh more heavily upon the foreign article than the home product, or which are levied upon imports where the same article is not taxed at home, may be purely fiscal in intent or may be designed as a protection for home industries. It is not the magnitude of the taxation which decides this point, but the effect upon the economic order. It is well understood that any taxation Avhatever influences consumption and iiroduetion. but this influence may be deliberately planned or in-