follow the example of Lord Eldon, in the case of the Attorney General vs. Backhouse, before cited, ordering these defendants to pay to the complainants, the annual accruing rent, instead of the person to whom they contracted to pay it, if, upon the final hearing of the cause against Kidd's executors, the Court should be of opinion, the complainants were entitled to it.

The complainants having asked leave to reply to the pleas and answer if the Court should be of opinion that the matter contained in them was a defence to the relief sought, and the Court being satisfied that the complainants are not entitled to relief against the defendants, upon the pleadings they will be permitted, under the circumstances, to file such replications as they may be advised.'

ART. II.-CUSTOM TO DEVISE LANDS-HOW AND WHY LIMITED.

LITTLETON, Writing of those ancient towns in England which were called boroughs, says that, for the most part, such boroughs have divers customs which other towns have not. Of these customs he enumerates the following-that the youngest son shall inherit the father's tenements within the borough; that the wife shall have for her dower all her husband's tenements; that a man may devise his lands and tenements in fee simple within the borough, to a stranger, to his wife, or to his executors, with a power to sell.'

From Lord Coke we learn that by the words other towns to which such customs do not belong, are meant upland towns. His words are, -'In an upland town, that is, neither city nor borough, a custom to devise lands cannot be alleged. Neither in an upland town can there be a custom of borough-English orgavelkind; but these are customs which may be in cities and boroughs.'"

Here is a remarkable distinction drawn between boroughs and upland towns, but no reason is assigned for the diversity. When? by what means? and for what reason, was this distinction made? are questions, which not to ask, would argue in

the student the want of a most useful curiosity. It was to ensure these reasonable inquiries, or some of them, that Mr. Hargrave added to these passages the following explanatory note.

"The doctrine about the restriction of customs to places of a particular denomination will appear more satisfactory by considering the reason of having some restraint, and the nature of that which Lord Coke points out as the established one. The policy of some restraint is founded on the uncertainty and confusion which would ensue from an infinite diversity of customs, if every place, however small and inconsiderable, should be allowed to set up special customs in direct opposition to the general customs of the realm. On this principle the privilege of having special customs derogating from the common law is, in general, denied to inferior places, such as upland towns, not being either cities or boroughs, and hamlets; though it is allowed to large or more important districts, such as counties, manors, hundreds, honors, cities, and boroughs.'

Perhaps it may be deemed unreasonably fastidious not to be content with this explanation. To many, and it may be to most readers, the pursuit of this inquiry may seem to be barren of valuable results-or at least, that the instruction to be gained by it will not repay the toil of the investigation. But the true reason of this diversity, it is believed, is closely connected with the rise and progress of the very liberties which it was the object of so many political struggles of our ancestors in England, and of our fathers in this country, to secure. And even apart from its connexion with our own institutions, what more interesting spectacle can be presented to the contemplative mind, than to behold, as at a single glance, how, when the liberties of a people are seemingly totally subverted, a single free institution, however insignificant, not wholly eradicated, will take root in the soil, and at last overshadow even the conquerors themselves? History does not afford us a more edifying lesson than this, — that all a conqueror's pains for the destruction of liberty, are vain, if he put not out every vestige of it, nor leave an exemplar for invitation. For if the system abolished was more free than that which is made to assume its place, any relic of the former exhibited to the popular view, proves contagious, and is sure to infect the destroyer himself.'

1 It became,' says Hallam, the favorite cry to demand the laws of Edward the Confessor; and the Normans themselves, as they grew dissatisfied

The burthen of Mr. Hargrave's explanation is, that the customs in question and their restriction to places of a particular denomination, were allowed, denied, and established, under the influence of a deliberate policy. But who was it whom this policy led to allow, deny, and establish? Mr. Hargrave does not so much as intimate. But let us see whether the policy which he ascribes to some mysterious agent, would have guided an intelligent lawgiver to allow, deny, and establish in the manner he supposes. He says the privilege of having customs in derogation of the common law is confined to large places to prevent the 'uncertainty and confusion which would ensue from an infinite diversity of customs, if every place, however small and inconsiderable, should be allowed to set up special customs in direct opposition to the general customs of the realm.' But Littleton and Coke are speaking of certain customs of descent, dower, and devise. 'In an upland town, that is, neither city nor borough, a custom to devise lands cannot be alleged.' Therefore the question is not, as Mr. Hargrave assumes, why a diversity of customs is prohibited, but why the same custom may not prevail in the village A as well as in the city B?

Confusion and uncertainty must necessarily ensue from a diversity of rules. If every hamlet, village, town, and city, had usages of its own concerning, for example, the devise of lands situated in it, differing from those of every other place, there would be no common law upon the subject, and the courts would have to study as many codes as there might be towns, great and small, in the kingdom. This would be productive of infinite confusion and uncertainty. The law would be no science in such circumstances. There would be no leading principles, no dependences, no connexion of parts. The study of the law would consist in committing to memory a mass of contradictory rules.

So far from its being true that these consequences would follow from the same usage touching the same matter prevailing in a variety of places, it is certainly self-evident that exactly the reverse would follow.

Villages and hamlets are often appendages to large cities. Now if a custom of devising lands may be alleged of the city,

with the regal administration, fell into these English sentiments.' Hist. Mid. Ag. vol. 2, p. 38.

why not of its appendages? It is hard to conceive how a uniform rule of law in a city and the hamlets and villages constituting its suburbs, could create the confusion and uncertainty which arise out of a diversity of rules. Nor can it be conceived how the policy of avoiding confusion and uncertainty, could have been subserved by denying such uniformity. If we ask why the people living within the walls of a borough are allowed to devise their lands, while the same power is denied to the people living adjacent to the walls, but without them, and should receive for answer that this restraint was imposed upon the latter to prevent the uncertainty and confusion which would ensue from an infinite diversity of customs, we might bow to the authority of the respondent, but we could not but feel the want of correspondence between the cause and the effect.

At the common law, as it was established after the conquest, lands and tenements could not be transferred from one to another but by solemn livery of seizin, matter of record, or sufficient writing.' The exercise of a testamentary power by custom was in derogation of this common law. But large places were allowed to derogate from it, while this power was denied to small ones. And this allowance and denial were produced, it is said, by a desire to secure uniformity in law. But the greater the assemblage of men the stronger the reason for their conformity, in the eye of such a policy, because the greater the number of subjects claiming exemption from the general or common law of the kingdom, the more considerably is that law derogated from. And therefore it would have been more agreeable to such a policy to exempt small places rather than large ones from the general law; since by that means greater uniformity would have been secured, and much less land would have been liable to be transferred from man to man by devise.

But is there not an absurdity in representing particular customs to have been introduced by any settled policy. Permanent legislative bodies alone are capable of acting according to the dictates of a settled policy, shaping all their measures with a view to produce a system homogeneous and symmetrical in its parts? Hargrave's account of this rule and the reason of it,

would lead one to suppose that the legislature which enacted the general customs, had laid down, as a rule to itself, to allow their favorite usages, but to deny the same usages to places inferior to cities and boroughs; and this to prevent that uncertainty and confusion which would ensue from an infinite diversity of customs. To suppose customs to have been introduced by reason of any other policy than that fitness to the condition and disposition of the people who practise them, is to have no very clear idea of their nature. Yet when we hear a writer declaring that a particular class of people are allowed to have special customs, and another class of people are denied the liberty of having such customs, derogating from the common law; and that the restriction of the latter was established to secure uniformity in the law, his language naturally suggests the idea of a legislature giving the rule and its exceptions. But this is altogether at variance with the nature itself of customs.

'A custom is such a usage as hath obtained the force of law, and is in truth a binding law to such particular place, persons, or things as it concerns. Such custom cannot be established by the king's grant, nor by act of parliament, but it is jus non scriptum, and made by the people only of such place where the custom runs. For where the people find any act to be good and beneficial, and apt and agreeable to their nature and disposition, they use and practise it from time to time, and so by frequent iteration and repetition of the act, a custom is formed, and being used time out of mind, it obtains the force of law. That consent of the people which is expressed by several continual acts of the same kind, is a custom; and so, briefly, a custom is a reasonable act, reiterated, multiplied, and continued by the people, time out of mind. And this is the definition of custom which hath the virtue and force of law.'

1

Now why might not any reasonable act, such as the devise of lands, or the partition of them equally among the sons of the last holder, be reiterated, multiplied, and continued by the people of places inferior to cities and boroughs, as well as by the people of those places? By people outside, as well as inside of a wall? Such an act might, surely, be as good, beneficial, apt, and agreeable to the nature and disposition of the people of small, as of large

1 Davies' Rep. 87, Dub. ed. 1762.