in certain districts will derogate from the course of descent by the common law, which will be intended to prevail, unless a custom is shown to the contrary.
In the case of Worlledge v. Manning (a)1, in this Court, it was well observed by my brother Walker (a very learned and accurate lawyer), that it was a singular task to be called upon to prove the general common law of the land; that depends on general knowledge, it bein universally exercised, or so understood. [54] Speaking for myself, I have always understood this custom to prevail in such parts of this country where I have been conversant, and never heard it doubted; and I cannot but impute the reason of so few passages in the books of our law recognising it, to the conviction of its being a right too well established and too notorious to be disputed.
The first passage which I shall mention is that in Trials per Pais (8th edition, p. 534). In trespass against one for gleaning on his ground, per Hale, Norfolk, Summer Assizes, 1668, "The law gives license to the poor to glean, &c. by the general custom of England; but the license must be pleaded specially, and cannot be given in evidence on, Not guilty."
This opinion is cited by Lord Chief Baron Gilbert, in his Law of Evidence (p. 250, 4th edit); and after allowing that it ought to be pleaded, he says "It had been a sufficient justification, for by the custom of England the poor are allowed to glean after the harvest; which custom seems to be built on a part of the Jewish law, that allowed the poor to glean, and made the harvest a general time of rejoicing."
Here the opinion of Hale is recognized by a learned Chief Baron, who affirms the right to be by the custom of England.
The next author who mentions it, is that eminent Judge, Mr. Justice Blackstone, a text writer, and with great deliberation: his words are (3 Comm. 212 and 213). "It hath been said, that by the common law and custom of England the poor are allowed to enter and glean upon another's ground, without being guilty of trespass." For this he refers to Gilbert, and Tri. per Pais, supra; and then adds "Which humane provision seems borrowed from "the Mosaical law;" and refers to Leviticus and Deuteronomy. This is in substance the same as is said by Gilbert.
I will read the texts in Leviticus.
Leviticus, c. xix., vv. 9, 10 "And when ye reap the harvest of your land, thou shalt not wholly reap the corners of thy field; neither shalt thou gather the gleanings of thy harvest; and thou shalt not glean thy vineyard, neither shalt thou gather every grape of thy vineyard; thou shalt leave them for the poor and stranger: I am the Lord your God."
In Leviticus, c. xxiii., v. 22, there is the same prohibition to gather the gleaning of the harvest, and conclusion, "Thou shalt [55] leave them unto the poor, and to the stranger: I am the Lord your God."
From what better fountain could it be drawn than the Holy Scriptures? It was evidently founded on charity, and fit to be received in every country. It might be liable to be abused; but that would be redressed by the law, and the party abusing become a trespasser ab initio, as in other cases of abuse of a legal right or license, the known case of coming into an inn or tavern, &c.
From Selden (a)2, it appears that the actual property was vested in the poor, unless
(a)1Worlledge against Manning, East. 26 Geo. 3, C.B.
Trespass for breaking and entering closes, &c. taking corn, &c.
Justification―That the said closes had been sown with wheat, barley, &c. That the crop was reaped, and after it was carried off the land, the defendant, being a poor, necessitous, and indigent person, entered, &c. to glean and gather the straw containing ears of corn remaining and being dispersed and scattered abroad in the said closes, &c. after the crop had been reaped and carried away, &c. bring the gleanings of the said crop, for the necessary support of him the said defendant, &c.
Demurrer, &c.
Judgement for the plaintiff.*
(a)2 De jure et naturali et gentium juxta discip. &c. Ebræ lib. 6, c. 6.
* [See Loft's Edition of Gilbert's Law of Evidence, p. 509. Where it is said that the Court gave judgement for the plaintiff in this case on general demurrer, because it was not averred in the plea that the defendant was an inhabitant at the time of the gleaning, of the parish where the lands gleaned were situate, and see Selby v. Robinson, 2 Tr. 758.]
