But "consuetudo, contra rationem introducta, potius usurpatio, quam consuetudo, appellari debet." When custom is adopted without reason, it ought rather to be called usurpation than custom.
"Quia, in consuetudinibus, non diuturnitas temporis, sed soliditas rationis, est consideranda." Because in judging of customs, strength of reason is to be considered, and not length of time. The reason which supports them ought to be regarded, and not the length of time, during which they have prevailed.
Two incidents are indispensable to validity of custom or usage:
1st. A reasonable commencement (for all customs or prescriptions which are against reason, are void.) 2d Inst. p. 140.
2d. Continuance without interruption.
"Malus usus abolendus est." Evil customs ought to be abolished. Littleton, 2 Inst. c. 2, p. 141. On which Sir Edward Coke remarks, that "every use (or custom) is evil, which is against reason—because, as above, "in consutuedinibus, non diuturnitas temporis, sed soliditas rationis, est consideranda."
"Debile fundamentum, fallit opus." Noyes' Maxims, p. 5. Where the foundation is weak, the structure falls.
"Quod ab initio non valet, in tractu temporis, non convalescit." Noyes' Maxims, p. 4. What is invalid from the beginning, cannot be made valid by length of time.
"Derivata potestas, non potest esse major primitiva." Derived power, cannot be superior to the power from which it is derived. Noyes' Maxims, p. 3.
Before any contract can be valid, the civil law requires three conditions as indispensable:
1st. That the parties contracting should have a legal capacity.
2d. They must be willing to contract—because "In ea, quæ ex duorum pluriumve consensu agitur, omnium voluntas spectitur." In those things which relate to the consent of two or more, the will of every one is regarded. And again, "In conventionibus, contrahentium voluntatem, potius quam verba, spectare placuit." Digest, xliv. vii. 31, and l. xvi. 219. In every agreement, the will rather than the words of the contracting parties is to be regarded.
3d. The parties must have liberty—for "Nil consensui tam contrarium est, quam vis atque metus; quem comprobare, contra bonos mores est." Nothing is so discordant with consent, as force and fear—it is a crime against the good of society, to approve of them." Digest. 1. xvii. 116 Yet "vani timoris, justa excusatio, non est;" unreasonable fear, is not a sufficient excuse; 1. xvii. 184; but, "Vis est, majoris rei impetus, quod
