immemorial. What is this but a right? the enjoyment of which, the landholders secure to the poor, by penalties on themselves.
Upon the whole, therefore, 1am of opinion, that judgment ought to be for the defendants. .
Hears, J.—This is a demurrer to a plea of the defendant’s, who justifies the trespass of his wife in the plaintiff's close, under a claim of gleaning.
On these pleadings the general question is, “ Whether the indigent and necessitous poor of a parish have a right to glean after the crop is carried away 1”
It is our province to take notice of all general customs. This is usually not attended with much difficulty, as the evidence of such customs is to be found in our books, and is matter of general practice. Although it is insisted on, that this custom of gleaning is coeval with the constitution, and derived from the most remote antiquity ; yet the first mention of it is in the Trials per Pais, a mere extrajudicial opinion of Lord Chief Justice Hale, “That by the custom of England the poor have aright to glean.” The next author who mentions it, is Lord Chief Baron Gilbert, who, in copying the above passage with a marginal reference, says, that the poor are ‘allowed to glean,” which implies a licence and permission, rather than a right. Mr. Justice Blackstone has received the same passage into his Commentaries, not as a clear and undeniable rule of law, but with expressions of distrust and doubt, and gives no opinion of his own. The whole weight then of legal authority to prove this custom rests on the dictum of Sir Matthew Hale.
It bas been argued in favour of this claim, that no corn is claimed but what is abandoned by the owner; as if the owner had cast it from him, and it became the property of the poor by [60] a sort of occupancy. By the law of England, no property can be lost by abandonment, for the owner may at any time resume the possession. Here there can be no abandonment, as the owner never parted with the possession.
Such a custom as will support the plea, must be universal, and every where the same, otherwise it is void for its uncertainty. If it exists only in particular counties or districts (such as the custom of being discharged from the payment of tithes of wood in some hundreds in the wilds of Kent and Sussex, or the custom of gavelkind), it is partial, and no part of the general customs of the realm. From the best inquiries I have been able to make, I find that this custom is not universal. In some counties it is exercised as a general right, in others, it prevails only in common fields, and not in inclosures, in others it is precarious, and at the will of the occupier. In the county where this action was brought, it never in practice extended to barley; nor is the time ascertained, In some counties the poor glean whilst the corn is on the ground ; here the usage is laid to be after the crop ia harvested,
The practice of gleaning was originally eleemosynary. But it is the wise policy of the law, not to construe acts of charity, though continued and rapeated for never 80 many years, in such a manner as to make them the foundation of legal obligation, If A. and his ancestors have from time immemorial repaired a bridge or a highway, there is no obligation on him to continue the repair, unless he is so bound by the tenure of lands, or the like.
Wherever there is a right, the law provides a remedy, if that right be obstructed. But suppose the owner of a field were to set fire to the stubble, or to flood it, and prevent the poor from gleaning, what remedy could they have? No action on the case has ever been brought for such an injury, and according to the reasoning on the Statute of Westminster 2d (13 Ed. 1, c. 24) no action on the case would lie.
Tithes are due of right, and by the general usage of the realm; but the parson had no remedy at common law till they were set out, therefore the consent of the occupier of the land was necessary to be obtained before the parson could take a single sheaf. The case of tithes is much stronger than that of gleaning, because the church was originally endowed by the [61] owners of lands, and the parson, in consideration of that endowment, undertook the cure of souls; so that there was a valuable consideration for the right of tithes, which is wanting with respect to gleaning. Yat the wisdom of our ancestors left it to the conscience of the occupier of the land, whether or not be would set out his tithes, though that conscience was to be corrected by the authority of the Spiritual Court.
I shall next consider what force this custom derives from being a Jewish institution. Every institution which is to be found in the law of Moses was not enforced by the Judge, many of them being left to the consciences of men with temporal blessings
