OF LAWFUL HEIRS, AND BASTARDS, MALE OR FEMALE, OF FULL AGE
OR MINORS; AND OF THE CUSTODY AND PRIVILEGE OF MINORS; AND
CONCERNING ULTIMATE HEIRS, WHO ARE THE LORDS WHEN THE FEE
FALLS INTO THEIR HANDS; AND OF THE HEIRS OF INTESTATES; AND
OF USURERS, AND THEIR HEIRS; AND OF MARRIAGE-HOOD AND OTHER
THE DONATIONS OF ANCESTORS; AND OF THEIR TESTAMENTS AND
DEBTS, ALL WHICH THEIR HEIRS ARE BOUND TO WARRANT.
CHAP. I.
The term Dower is received in a different acceptation in the Roman
Code, according to which, that portion which is given to a Man with a
Woman is, properly speaking, termed Dower; but this corresponds with
what is usually called, Marriage-hood.[197] Every freeman possessed
of Land may give a certain part of it with his Daughter, or with any
other Woman, in Marriage-hood, whether he has any Heir, or not; or
whether his Heir, supposing he has one, consent to such a disposition,
or not—nay, though the Heir expressly dissent from, and forbid it.
Every one may also give a certain part of his freehold Estate[198]
to any person he chuses, in remuneration of his services, or to a
religious Establishment in Free-Alms;[199] that, if seisin follow up
the Donation, the Land shall perpetually remain to the person to whom
it is given and his Heirs, if the terms of the Gift go to that extent.
But, if such a Donation should not be followed up by seisin, nothing
can, after the death of the Donor, be claimed with effect in virtue of
it, contrary to the will of the Heir; because such a disposition is
usually interpreted by the Law of the Realm, rather as a naked promise,
than a real promise or donation. Though it is thus, generally speaking,
lawful for a man, in his lifetime, freely to dispose of the reasonable
part[200] of his Land, in such manner as he may feel inclined, yet the
same permission is not allowed to any one on his death-bed; because
the distribution of the Inheritance would, probably, be then highly
imprudent,[201] were such an indulgence conceded to men, who, in the
glow of a sudden impulse, not unfrequently lose both their memory and
reason.
[Footnote 197: _Maritagium._ This Term is explained by our Author more
fully in the 18th chapter of the present Book. Lord Coke translates
the word, _marriage_: but, to avoid a confusion of ideas, I have
rendered it, _marriage-hood_. The term _maritagium_ appears to have
been employed by our ancient writers in three senses. 1. To designate
marriage, in the modern sense of the Term. 2. To import Land given
with a Woman in marriage; such _maritagium_ being either _liberum_, or
_servitio obnoxium_, as we shall presently see. 3. To mean the right
which a Lord had of disposing of his ward in marriage. (Bracton 21. a.
Spelm. Gloss. ad voc. 2 Bl. Comm. 69. Co. Litt. 21. b. 76. a. and Mag.
Car. c. 7.)]
[Footnote 198: The Assises of Jerusalem permitted a Fief to be
dismembered, if it consisted of more Knight’s Fees than one, but not
otherwise. (c. 265.)]
[Footnote 199: _Poterit etiam Donatio in liberam eleemosinam, sicut,
ecclesiis, cathedralibus, conventualibus, parochialibus, viris
religiosis._ (Vide Bracton 27. b.) “Originally when Lands were given to
the church, they were burdened with military service; this service the
Bishop or Abbot performed in some ages by himself, and in others by a
delegate: but, when the necessity for it became less, people, in giving
Lands to the church, exacted no other return than Prayers and such
religious Exercises.” (Dalrymple’s Essay on Feuds, p. 30.)]
[Footnote 200: It does not appear from Glanville what was considered as
this _reasonable part_. In speaking of the Constitutions of the ancient
kings, the Mirror tells us, that “none might alien but the fourth part
of his Inheritance, without the consent of his Heirs.” (c. 1. s. 3.)
Whether this removes the difficulty, is for the Reader to decide. The
32nd chapter of Mag. Car. intended to provide a remedy for the abuse
of the indulgence stated in the text—which was again affected by the
Statute of _quia Emptores_. The modern French code restrains a gift
to the moiety of a man’s property, if he leaves one child—to a third
of it, if he leaves two—and to a fourth if he leaves three children.
Nor does it seem that a man is free from restraint, though he have no
child, provided he has Relatives, either Ascendants or Descendants.
But, in default of all these, the restraint ceases, and a man may
dispose of the whole of his property. (Code Napoleon, s. 913. 914.
915.)]
[Footnote 201: “And some have questioned,” says Justice Blackstone,
“whether this restraint, which we may trace even from the ancient
Germans, was not founded upon truer principles of policy, than the
power of wantonly disinheriting the Heir by will, and transferring the
Estate, through the dotage or caprice of the Ancestor, from those of
his blood to utter strangers. For this, it is alleged, maintained the
balance of property, and prevented one man growing too big or powerful
for his neighbours.” (2 Bl. Comm. 373.)]
Hence, it is to be presumed, that if a Man laboring under a mortal
disease, should then for the first time set about making a disposition
of his Land, a thing never thought of by him in the hour of health,
that the act is rather the result of the Mind’s Insanity than of its
deliberation. But yet a Gift of this description, if made to any one
by the last Will, shall be valid, if done with the consent of the Heir,
and confirmed by his acquiescence in it. When a Man gives part of his
Land in Marriage-hood, or in any other manner, his Land consists either
of that which is inheritable only, or of that which he has purchased
only, or of both descriptions. If he possess inheritable Land only,
he may, as we have already observed, give a certain portion of it to
any stranger at his pleasure.[202] But if he has many sons born in
Wedlock,[203] he cannot, correctly speaking, without the consent of his
Heir, give any part of his Inheritance to a younger son; because, if
this were permitted, it would then frequently happen that the Eldest
son would be disinherited, owing to the greater affection which Parents
often feel towards their younger children.
[Footnote 202: A liberty that he was not indulged in by the Laws of
Alfred, unless under particular circumstances: (LL. Alfred, c. 37.)
nor by the Laws of Henry the 1st was this indulgence conceded a Man.
_Si Bockland habeat, quam ei parentes dederint, non mittat eam extra
cognationem suam._ (LL. Hen. 1. cap. 70.)]
[Footnote 203: _Filios mulieratos._ “When a Man has a Bastard Son, and
afterwards marries the Mother, and by her has a legitimate Son, such
latter Son, in the language of the Law, is called a _mulier_, or, as
Glanville expresses it in his Latin, _filius mulieratus_.” (2 Bl. Comm.
247.) With this interpretation _Skene_ agrees. (Reg. Maj. L. 2. c. 19.)]
But, it may be asked, whether a man, having a Son and Heir, can give
any part of his Inheritance to his illegitimate son? If he can, it
follows, that the condition of the illegitimate son would, in this
respect, be preferable to that of the younger son born in Wedlock;
and yet the Law is so.[204] But, if the person, desirous of making a
donation of part of his Lands, possess only such as he has purchased,
he may then make such Gift; provided it does not extend to the whole
of his purchased Lands, because he cannot disinherit his Son and
Heir.[205] Yet, if he has not any Heir, male or female, of his own
Body, he may, indeed, consult his own inclination in making an absolute
gift, either of part or of the whole of his purchased Lands.[206] And,
if the person to whom the gift be made obtain Seisin of it, during
the life of the Donor, it is not in the power of any more remote[207]
Heir to invalidate such Gift. Thus may a man give, in his lifetime,
the whole of his purchased Land; but he cannot make any one his Heir
to it, neither a College, nor any particular individual, it being an
Established Rule of Law, that God alone, and not Man, can make an
Heir.[208] If, however, a Man possess both inheritable and purchased
Lands, it is then unquestionably true, that he may absolutely give any
part or the whole of the latter to such person as he pleases;[209] and
of his inheritance he may notwithstanding dispose, according to what
we have already observed, provided such disposition be a reasonable
one. It should be observed, that, if a Man, having Lands in free
socage,[210] has many sons, who are all in equal proportions to be
admitted to the Inheritance, then, it is unquestionably true, that
their Father cannot give a greater part of his inheritable Land or of
his purchased, if he possess no inheritable, to any one of the sons,
than the reasonable part which would fall to such son of the whole
paternal Inheritance.[211] But the Father can in his lifetime give to
either of his Sons such a part only of his inheritable free socage
Land, as such son would be intitled to upon the death of his father by
the Rule of succession. Yet, by reason of the liberality which Parents
are in the habit of exercising towards their sons, or even towards
other persons, questions of Law frequently arise concerning donations
of this description. Let us suppose, that a Knight or a freeman, having
four, or a greater number of sons, all born in Wedlock of one Mother,
should, with the consent of the Heir previously obtained, (in order to
prevent disputes) give to one of his sons—let us say, to the second
and his Heirs, a certain reasonable part of his Inheritance—Let us
suppose, that the son, to whom the Gift has been made, received Seisin,
and, during his Life, took the profits and proceeds, and that he died
in such Seisin, leaving not only his Father, but all his Brothers yet
living.
[Footnote 204: The Regiam Majestatem lays it down, that a man _cannot_
give any part of his Inheritance to his illegitimate Son. (L. 2. c.
19.) The Grand Norman Custumary also expressly denies the validity of a
gift, sale, delivery, or pledge, by a Father, to his illegitimate Son
of any part of the former’s hereditary Estate, adding that it might be
impeached within a year and a day after the Father’s decease. (Le Grand
Custum. de Norm. c. 36.) We must recollect that both these celebrated
works were _posterior_ to Glanville—the Law, therefore, had, in the
point now before us, undergone some alteration in the intervening
period.]
[Footnote 205: Vide Sullivan’s Lectures on the Laws of England, p. 149.]
[Footnote 206: It is observed by a justly celebrated writer that,
in the old restraints upon alienation, which we find in the Laws of
England and Scotland, no distinction is made, whether the fief was held
by a military or socage tenure; and that, in the same old Laws, the
restraint upon alienation is almost absolute, where the Tenant is in
by descent, but very loose when he is in by purchase; and the writer
in question concludes that, the _Interest of the Heir_ created the
difference. (Vide Dalrymple on Feuds p. 80.) The writer just mentioned
furnishes an excellent comment upon this part of our Author. (c. 3. s.
1.)]
[Footnote 207: _Hæres remotior._ _Hæres remotior_ has a peculiar
signification in our Author. Except a Son and Daughter, who were
_Hæredes proximi_, every Heir was _hæres remotior_. See cap. 3. of this
Book. No Heir, says the Reg. Maj. being of farther degree than the son
or daughter, may impugn that gift any manner of ways. (L. 2. c. 20.)]
[Footnote 208: Vide Craig de Jure Feud. p. 349. 354. 368. and also
Somner on Gavelkynd.]
[Footnote 209: _Primo patris feudum primogenitus filius habeat:
Emptiones vero vel deinceps acquisitiones suas det cui magis valit._
(LL. Hen. 1. cap. 70.)]
[Footnote 210: _Socagium. Dici poterit socagium a Socco._ (Bracton
L. 2. c. 35.) _Hinc est quod Sokemanni hodie dicuntur esse a succo
etiam derivantur._ (Fleta L. 1. c. 8.) _Socagium idem est quod
servitium socæ, et soca idem est quod caruca s. a soke_ or _a plough_.
(Littleton’s Tenures Sect. 119.) This derivation Lord Coke approves
of (Co. Litt. 86. a.) See also Cowell ad voc. Mr. Somner, however,
disapproves of it, as too confined. He would derive it from the Saxon
_Soc_, which signifies liberty or privilege, and _agium_ to denote the
_agenda_ or Services (Somn. Gavelk. 133. See also Bl. Com. and Mr.
Christian’s note 2. 81.) “It seems,” says Mr. Hargrave, “that both
derivations have their share of probability, which is as much as can be
expected on a subject so very uncertain.” Mr. Somner tells us, that the
term socage has first occurred to him in Glanville, but never as yet in
any Elder record. (Gavelk. p. 143.)]
[Footnote 211: The Norman Code lays down the same rule generally,
and observes, that after the Father’s Death, any such Gift should be
brought into the general stock and divided amongst all the Heirs; in
other words, should be put into Hotch-pot. (Le Grand Cust. de Norm.
chap. 36.)]
Very obscure, indeed, is the Law, and considerable the debate and
contention among the most skilful of that Profession, when this point
occurs or may occur in the King’s Court, in order to ascertain, who
ought by law to succeed to the Inheritance. The Father contends, that
he ought to retain to himself the Seisin of his departed son, and thus
desires, that the Land which had emanated from his Bounty should again
return to him. Upon this question being agitated in Court, the Eldest
son will answer to the Father, in the act of claiming the Land, that
the latter ought not to be heard upon the subject, as it is a general
principle of the Law of the Realm, that no one can be at once Lord and
Heir of the same Tenement.[212] But, by force of the same principle,
the third son attempts to repel the Eldest son, from the inheritance in
question.
[Footnote 212: An able writer accounts for this principle by informing
us, that the whole feudal system was built on the distinct rights of
superior and vassal, and the blending these two characters, without a
necessity arising from the feudal relations themselves, in one person,
appeared to be blending of contrary qualities together. (Dalrymple’s
Essay on feuds, p. 177.) Mr. Reeves observes, “that in the times of
Glanville and Bracton the reservation of services might be made either
to the Feoffor, or to the Lord of whom the Feoffor held; they seem more
commonly to have been made in the former manner: thus, every such new
feoffment in fee, made a new tenure, and of course created a new manor:
and so the Law continued till the statute _quia Emptores_ 18. Ed. 1.
required feoffments in fee to be made, with reservation of the Services
to the chief Lord.” (1 Hist. Eng. Law. 106.) See also Hale’s Hist. Com.
Law. 158.]
For, since the Eldest son is the Heir to the whole Inheritance, he
cannot be at once Lord of it and Heir; especially, if the father of
the Eldest son happen to be dead, such son would be Lord of the whole
Inheritance. But, then, by the Law of the Realm, the Land cannot
remain to him, for the reason we have mentioned. If, therefore, he
cannot retain it absolutely, how can he claim it by the rule of
succession? By a parity of reasoning it seems, that the third son shall
exclude all the others.
A similar doubt arises, when any one has conceded and given a certain
portion of his Land to his younger Brother, and his Heirs. Let us
suppose, that the latter dies, without leaving any Heir of his own
body, and the former seizes into his own hands the Land of his deceased
Brother, as being vacant and within his Fee, against whom his own two
sons pray an Assise, concerning the death of their Uncle. Upon the
suit proceeding, the Eldest son may plead against his Father, and the
youngest son against his Elder Brother, in the manner before mentioned.
But it is evident, that the Father cannot by any means, consistently
with the Law of the Realm, retain the Land in question, as he cannot at
once be Lord and Heir. Nor, indeed, does the Law admit of Land so given
again reverting to the Donor, when Homage has followed the Gift,[213]
if the person to whom the Gift is made has any Heir, of his own body,
or even more remote. Besides, Land which is thus given, like certain
other Inheritances, naturally descends to the Heirs by the rule of
succession, but never naturally ascends.[214] Thus the Plea, between
the Father and the Eldest son, shall cease—but it shall proceed,
between the Eldest son and the youngest, in the manner we have already
described.
[Footnote 213: Vide Reg. Majest. L. 2. c. 22. “But at this day,”
observes Lord Hale, “the law is altered, and so it has been, for aught
I can find, ever since 13 Ed. 1.” (Hale’s Hist. Com. Law, 229.)]
[Footnote 214: _Descendit itaque Jus quasi ponderosum quid cadens
deorsum._ (Bracton 62. b.) “This Rule,” observes Sir Wm. Blackstone,
“so far as it is _affirmative_, and relates to lineal descents, is
almost universally adopted by all nations;” “but the _negative_ branch,
or total exclusion of Parents and all lineal Ancestors from succeeding
to the Inheritance of their offspring, is peculiar to our own Laws, and
such as have been derived from the same original.” (2 Com. 209.)
The Reader will recal to mind the material qualification of this Rule,
which, though it precludes the Father from taking as Heir to his Son,
by an _immediate_ descent, permits him to take as Heir to his own
Brother, who was Heir to the Son, by _collateral_ descent. (Hale’s
Hist. Com. Law. 216. 336. 2 P. Wms. 613. Mr. Christian’s note to 2
Bl. Com. 212.) This appears to coincide with the Rule as qualified by
Bracton; for, having laid it down, that an Inheritance never ascends
the same way it descends, he proceeds, _a latere tamen ascendit alicui
propter defectum heredum inferius provenientium_. (Bracton 62. b.
See also Grand Norm. Custum. c. 25.) A different Rule, from that in
the text, is laid down in the Laws of Henry the first. _Si quis sine
liberis decesserit, pater aut mater ejus in hereditatem succedant, &c._
(LL. Hen. 1. c. 70.)]
But, when this last case has occurred in the King’s Court, it has
sometimes been ordered by the Court, acting upon equitable principles,
that the Land so given should remain to the Eldest son, especially if
he has not any other Fee in possession, until the paternal Inheritance
fall to him. Because, in the mean time, as he is not the Lord of the
paternal Inheritance, the Rule, that no one can at once be Heir and
Lord, does not stand in his way. But since by the Rule of succession,
he must become Lord of that part of the Inheritance, it may be asked,
whether he is not to be considered as Heir of the part in question,
when he is Heir of the whole Inheritance? To this we answer, that it
is as yet uncertain and in contingency, whether the Eldest son will be
the Heir or not. If, indeed, his Father should die before him, then it
is no longer doubtful, because he is his Heir. Should it so happen, he
ceases to be the Owner of the Land he formerly acquired by succeeding
to his Uncle; and, then, such Land shall descend to the younger son,
as the right Heir. If, however, the Eldest son should die before his
Father, it is, then, equally clear, that he will not be the future
Heir of his Father; and, therefore, those two accidents of Law, the
Hereditary Right and Dominion[215] never concur in his person. It
should be remarked, that Bishops and Abbots cannot, without the consent
and confirmation of the King, make an absolute disposition of any part
of their Demesnes, their Baronies being held in Frankalmoigne of the
Gift of the King and his Ancestors.[216]
[Footnote 215: _Dominium._ The Civilians, from whom this term seems
to have been borrowed, divided _dominium_ into the _directum_ and the
_utile_; the first being, where a person had the propriety, without
the profit,—the latter being, where a person had the profit, without
the propriety. (Wood’s Inst. Civil Law. L. 2. c. 1.) This division,
however, was opposed by _Cujacius_ and some others. (Craig Jus Feud. L.
1. Dieg. 9.)]
[Footnote 216: The Rule laid down in the text received a partial
confirmation from the Stat. of Westm. the 2. c. 41. I say partial, on
the authority of Lord Coke, who lays it down, that Bishops are not
comprehended in that Act. (2 Inst. 457.) “William the Conqueror thought
proper to change the spiritual tenure of frankalmoigne or free-alms,
under which the Bishops held their Lands during the Saxon Government,
into the feudal or Norman Tenure by Barony, which subjected their
Estates to all civil charges and assessments, from which they were
before exempt.” (2 Bl. Com. 156.)]
CHAP. II.
But Heirs are bound, so far at least as the Donations of their
Ancestors are reasonable, to warrant them, and the things comprised in
them, to the persons to whom they are made, and to their Heirs.[217]
[Footnote 217: “For where _dedi_,” says Lord Coke, “is accompanied
with a perdurable tenure of the feoffor and his Heirs, there _dedi_
importeth a perdurable warranty for the Feoffor and his Heirs to the
feoffee and his Heirs; and herewith agreeth Glanville:” (referring to
the text) (2 Inst. 275.)]
CHAP. III.
Of Heirs, some are nearest,[218] others more remote. A Man’s nearest
Heirs are those of his Body, as a Son, or a Daughter.[219] Upon
the failure of these, the more remote Heirs are called, namely,
the Grandson, or Granddaughter descending in a right line from the
Son or Daughter, _in infinitum_. Then the Brother and Sister, and
those descending from them in a transverse line. After these, the
Uncle,[220] as well on the part of the Father, as of the Mother, and in
like manner the Aunt, and their Descendants.[221]
[Footnote 218: _Plura_, says Fleta, _heredem reddunt hereditati
propinquiorem; utpote sexus, linea, hereditas partibilis, pluralitas
fœminarum, modus donationis et sanguinis._ (L. 6. c. 1. s. 12.)]
[Footnote 219: Yet, Bracton reckons a daughter a more remote Heir when
a Son was living. (Bracton 64. b.) It is clear, that author uses the
term _comparatively_, and so the Grand Norm. Cust. uses it, (sparsim.)]
[Footnote 220: _Avunculus._ Our Author is guilty of an inaccuracy in
using this term, which means, an Uncle on the Mother’s side, _patruus_
being the Uncle on the Father’s side.]
[Footnote 221: _V. Somneri Tractat. de Gavelkynd. pag. 42, et Bracton
L. 2. c. 34. fol. 76. a. Fletam Lib. 5. c. 9. s. 15._ (Al. MS.) On the
Rules of descent as they existed amongst the _Jews_, the _Grecians_,
the _Romans_, the _Lombardi_, the _Normans_, the ancient _British_,
the _Saxons_, _&c._ I refer the Reader to Lord Hale’s admirable though
unfinished Tract, the History of the Comm. Law, chapter 11th. On the
Rules of descent, as existing in _this Country_ when _Bracton_ wrote,
which Lord Hale informs us, stood settled in all points as they are at
this day, except in some few matters soon after settled, the Reader may
turn to the 2nd Book c. 30. 31. of Bracton.]
When, therefore, a Man possessed of an Inheritance dies, leaving one
Son only his Heir, it is unquestionably true, that such son shall
succeed entirely to his Father. If, however, he leaves more sons, then,
a distinction must be made, whether the deceased was a Knight, or one
holding by Military Tenure, or whether he was a Free Sockman.[222]
Because, if he were a Knight, or holding by Military Tenure, then,
according to the Law of the English Realm, his Eldest son shall
succeed to the whole Inheritance, so that none of his Brothers can
by right claim any part of it.[223] But, if the Parent were a free
Sockman,[224] then, indeed, the Inheritance shall be equally divided
amongst all the sons, however numerous, provided such Socage Land has
been anciently divisible,[225] reserving, however, to the Eldest son
as a mark of respect to his seniority,[226] the Capital Messuage, upon
his making a Compensation to the others equal to the value.[227] If,
however, the Estate was not anciently divisible, then, the Eldest son
shall, according to some customs, take the whole Inheritance, whilst,
according to other Customs, the younger son shall succeed as Heir.[228]
In like manner, should any person leave one Daughter only, his Heir,
then what we have laid down with respect to a son shall unquestionably
prevail. If, however, he leave more Daughters, then, the Inheritance
shall, without distinction, be divided between them, whether their
Father was a Knight or a Sockman, reserving to the Eldest Daughter, the
Capital Messuage, under the conditions before mentioned. But it should
be observed, if either of the Brothers or Sisters, amongst whom the
Inheritance is divided, should die, without leaving any Heir of his
or her Body, then the portion of the person so dying shall be divided
amongst the survivors. But the Husband of the Eldest Daughter shall
do Homage[229] to the Chief Lord for the whole Fee. But the Younger
Daughters, or their Husbands, are bound to perform to the Chief Lord
the services due for their Land, by the hand of the Eldest Daughter, or
her Husband. Yet the Husbands of the Younger Daughters are not bound
to perform any Homage, or even Fealty, to the Husband of the Eldest
Daughter, in her lifetime.
[Footnote 222: The Norman Code divides Inheritances into impartible and
partible—the former appearing to answer to our military tenure, the
latter to our socage tenure. (Grand Custum. c. 24.)]
[Footnote 223: “The Normans, introducing their Feuds, settled the whole
Inheritance of them upon the Eldest son, which the ancient feudal Law
did not (as we before have noted) till feuds were grown perpetual.
The reason, as I take it, that begat this alteration was, for that
while the feud did descend in Gavelkynd to the sons and nephews of the
feudatory, the services were suspended, till the Lord had chosen which
of the sons he would have for his Tenant, and then it was uncertain,
whether the party chosen would accept of the feud or not, for sometimes
there might be reasons to refuse it.” (Spelm. Reliq. p. 43. See also 3
Litt. Hist. Hen. p. 122. and Robinson on Gavelkynd. 22.)]
[Footnote 224: _Vide Spelm. Reliq. in libello inscript. Feuds and
Tenures by Knight’s Service c. 27. p. 43. and 44._ (Al. MS.)]
[Footnote 225: Socage Lands are asserted to have remained partible
long after the Conquest, and, as we have no account of the precise
period when the alteration was made in the descent of these Lands from
all the Sons equally to the Eldest Son only, it is probable, as Mr.
Robinson suggests, that the alteration was not effected at once nor by
any written Law, but crept in insensibly and by degrees, in imitation
of the Descents of Knight’s Service, and from the pride of the Socage
Tenant, emulous that his Eldest Son should equal in state and splendor
the military Tenant. “But this alteration began to appear more plainly
in the time of Henry the 2nd. for, according to _Glanville_, who wrote
in that Reign, in order to entitle the Sons to take equally, it was
not only necessary that the Land should be holden in free socage,
but further _quod antiquitus divisum_”—and, having cited the present
and following passages of our author, Mr. Robinson proceeds “So that
according to this account, it is difficult to say, what was then the
common Law with regard to descents of socage Lands, or whether every
person entitling himself to them by Inheritance, was not obliged to
set out the special custom of the place. The same author, indeed, in
other parts of his Book, speaks of the partibility of these Lands
more generally, and in such manner as may induce a belief, that it
remained the common Law at that time: _Plurium item hæredum conjunctio
mulierum scil. in feodo militari vel masculorum vel fœminarum in libero
socagio._ (L. 13. c. 11.) And, in another very remarkable passage,
wherein he shews, that the Law so greatly respected this equal division
among the Sons, as not to permit the Father even in his lifetime to
prefer a favorite child to any of the rest, by advancing him beyond
his proportionable part”—referring to the first chapter of the present
Book. (Robinson on Gavelkynd 24. 25.) The two latter positions referred
to by Mr. Robinson, as laid down by Glanville, may be accounted for by
supposing, that our author speaks with reference to Land “_antiquitus
divisa_.” “Although,” says Lord Hale, commenting upon a passage in our
author’s text, “Custom directed the Descent variously, either to the
Eldest or Youngest, or to all the Sons, yet, it seems, that at this
time, _Commune Jus_, or Common right spoke for the Eldest Son to be
Heir, no custom intervening to the contrary.” (Hist. Com. Law 226.)
To conclude, the right of primogeniture every day making a greater
progress had, as Mr. Robinson observes, in the Reign of King John
fairly got the upper hand of the partible descent, the presumption
then being that even Socage Lands (unless in Kent) were descendible
to the Eldest Son only, unless the contrary were proved. (26.) Upon
the doctrine of the text and the subject of this note, see the authors
referred to; also Bracton 76. a. Fleta L. 5. c. 9. s. 15. Mirror c. 1.
s. 3. and Co. Litt. 14. a.]
[Footnote 226: _Æsneciæ_—Gall. _aisnè_, quasi _ains ne_. The transition
is easy from the person of the Elder to his privilege or the right of
Seniority. (Spelm. Gloss. ad voc.) The term occurs in the Statute of
Marlbridge, Fleta, Bracton, Norman Custumary &c. Among the customs of
Beauvoisis, we find a Law similar to that in our text. (c. 14.) But
_Thaumas_ observes, that this privilege attached to seniority did not
regularly prevail unless _Sur les Heritages nobiles_ (397.) It was
clearly not so restrained with us.]
[Footnote 227: _Primum Patris feodum primogenitus filius habet._ (LL.
Hen. 1. c. 70.) From this Lord Hale collects, that though the whole
land did not descend to the Eldest Son, yet it began to look that way.
(Hist. Com. Law, 224.) Mr. Somner, however, interprets the _primum
feodum_ to be only the Capital Messuage, according to _Glanville_,
in the passage now before us, or what is called in the Grand Norman
Custum. _le chief de Heritage_ (Anglo-Sax. LL. Ed. Wilkins p. 266.)]
[Footnote 228: See Lord Hale’s Comment on this passage, supra note 2.
p. 126.]
[Footnote 229: Our author professedly resumes the subject of Homage in
the 9th Book. We shall, therefore, in this place merely notice that
Craig makes the military feud to consist in three things—_Homagium_,
_fidelitas_, and _scutagium_. The chief distinctions between the two
former _as stated by that author_, are, 1st, The manner of performing
Homage was much more humble and impressive, than that of performing
Fealty. 2nd, Homage was due for a military Fee alone; a Rule that if
it ever prevailed was relaxed by the English Law. 3rd, Homage could
only be received by the Lord personally, fealty might be received by
a Bailiff. 4th, Those who held by Homage were bound to sell or pledge
every thing for their Lord; but the tenant by simple fealty had no such
heavy obligation imposed upon him. (Craig Jus Feud. L. 1. D. 11. 10).]
Nor are their Heirs in the first and second degrees; but those in
the third descent from the Younger Daughters are bound by the Law of
the Realm, to do Homage for their Tenement to the Heir of the Eldest
Daughter, and to pay a reasonable Relief.[230] In addition it should
be known, that Husbands cannot give any part of the Inheritance of
their Wives, without the consent of their Heirs, nor can they remit
any part of the right of the Heirs, unless in her lifetime.[231] If,
however, a Man leaves a son and Heir, and has besides one Daughter
or more, the son succeeds entirely to the Inheritance—from whence it
follows, that if a Man should have married many Wives,[232] and by each
of them have had one or more Daughters, and at length an only son by
the last of them, the son alone shall obtain the Inheritance of the
Father; because, it is a general Rule, that a Female can never share
an Inheritance with a Male, unless perhaps a special Exception to
this exist in some particular City, grounded upon a Custom which has
long prevailed there. But, if a man should marry different Women, and
by each of them should have one Daughter, or more, all the Daughters
are equally entitled to the Inheritance of the Father, in the same
manner as if they were all sprung from the same Mother.[233] But when
a Man dies without leaving any Son, or Daughter, his Heir, if he has
any Grand Children, then, undoubtedly, they shall succeed to him, in
the same manner as we have above mentioned, his Son or Daughter would
have succeeded, and under similar distinctions. For the Descendants
in the right line, are always to be preferred to those who are in the
tranverse line. But when any one dies, leaving a younger son, and a
Grandson, the Child of his Eldest son, great doubt exists, as to which
of the two the Law prefers in the succession to the other, whether the
Son or the Grandson. Some think, the Younger Son has more right to the
Inheritance than such Grandson, for this reason—that the Eldest Son did
not survive his Father, and was not in existence when the Inheritance
fell, but the Younger Son did out-live both his Brother and his Father,
and it is, therefore, right, as they contend, that he should succeed
to his Father. But others incline to think, that the Grandson ought of
right to be preferred to his Uncle.
[Footnote 230: Among the customs of Beauvoisis, there is a Law very
similar from which Thaumas asserts we borrowed our rule. (c. 47.) The
doctrine of the text is confirmed by Henry the 2nd’s Charter to the
Irish, which the Reader will find among Thaumas’s notes to the customs
of Beauvoisis p. 396.]
[Footnote 231: Nor yet remit nor diminish the right of the Heir, but
only “during their (the wives) lifetime.” (Reg. Maj. L. 2. c. 29.)]
[Footnote 232: Vide D. Craig. Librum de Successions Anglicè versa p.
375. (Al. MS.)]
[Footnote 233: “This is to be understood,” says the Regiam Majestatem,
“of the Father’s Heritage, descending from him to them. For, if the
Heritage descend and come of the Mother’s side, each daughter shall
succeed to the Heritage of her own Mother.” (L. 2. c. 31.)]
For since the Grandson descended from the Eldest Son and is the Heir
of his Body, he would have succeeded to all his Father’s rights had
he still lived, and he ought therefore to succeed. In which opinion I
concur, if his Father was not portioned off[234] by the Grandfather.
[Footnote 234: _Forisfamiliatus_ is _aliquem foris familiam ponere_,
says Spelman, (Gloss. ad voc.)—a similar explanation to that of the
Regiam Majestatem. (L. 2. c. 33.)—Vide also 2 Bl. Com. 219.]
For a Son may, in the lifetime of his Father, be portioned off by
him, if the father assigns a certain part of his Land to the Son,
and deliver him Seisin in his lifetime, at the request and with the
unrestrained consent of the Son, in such manner, that the latter be
fully satisfied with such part. In such case, the Heirs of the Son’s
Body, cannot claim, as against their Uncle, or any other person, any
greater portion of the residue of the Grandfather’s Inheritance, than
the part of their Father, although the Father himself might, if he had
survived the Grandfather. Besides, if the Eldest Son, after having in
his Father’s lifetime done Homage to the Chief Lord for his paternal
Inheritance, should die before his Father, there is no question but
that his Son shall be preferred to the Uncle. Upon this subject,
however, a contest may arise, between the Grandson and the Chief Lord,
if the latter refuse the Homage of the Grandson; or between the Chief
Lord and the Uncle, if the Chief Lord has warranted the Homage of the
Grandson. In both these cases, there is no reasonable objection to
prevent the matter coming to the Duel, unless the Homage can be proved;
for then, indeed, (as the Law now obtains between the Uncle and the
Grandson) _Melior est conditio possidentis_.[235]
[Footnote 235: “If it cannot be proved, that the Homage was made
between the Nephew and the Father’s Brother, he shall be preferred who
is in possession. For the condition of the possessor is best.” (Reg.
Maj. L. 2. c. 33.)]
CHAP. IV.
Upon a failure of Descendants in the right line,[236] then the Brother
or Brothers succeed; or, if no Brothers can be found, the Sisters are
to be called; and, these being dead, their children are to be called.
After these, the Uncles are to be called, and their children; and,
lastly, recourse must be had to the Aunts, or their children; the
distinction above-mentioned being always observed and kept in view,
between the sons of a Knight, and of a Sockman, and in like manner,
between their Grandchildren. The distinction between Males and Females
is likewise to be observed.
[Footnote 236: _Si quis_, says a Law of Henry the first, _sine liberis
decesserit, Pater aut Mater ejus in hereditatem succedant, vel frater,
vel soror, si pater et mater desint_. (LL. Hen. 1. c. 70. Ed. Wilkins.)
_Patri_, says the Norman Code, _succedit filius primogenitus: et matri
similiter. Et si prior patre decesserit ejus filius, et ejus heres
propinquior in eadem directa linea successionis hanc successionem
obtinebit. Si vero nullus de linea primogeniti remanserit, filius
post primum primogenitus, ut ejusdem lineæ propinquior decesserit,
successionem hereditariam retinebit. Et similiter intelligendum est
in aliis lineis postnatorum. Si vero omnes lineæ eorum decesserint,
ad fratrem primogenitum redit successio feodalis, vel ad ejus lineæ
propinquiorem. Si autem fratres defuerint, ex eorum linea redit ad
patrem ex quo lineæ processerint._ (Le Grand Cust. de Norm. c. 25.) I
conclude this note with the modern French Canon—“The Law regulates the
order of succession among lawful Heirs: for want of them, the property
passes to the natural children, after that to the surviving Husband or
Wife; and, for want of these, then, to the state.” (Code Napoleon, s.
720.)]
CHAP. V.
Heirs are also bound to observe the Testaments of their Fathers, and of
their other Ancestors. Of such, I mean, to whom they are Heirs; and to
discharge their Debts. For every Freeman, not involved in Debt beyond
his circumstances, may on his death-bed make a reasonable division[237]
of his Effects, under this form, as prescribed by the custom of certain
places. In the first place, he should remember his Lord, by the Gift
of the best and chief thing he possesses: then the[238] Church, and
afterwards other persons at his pleasure. But, whatever the Custom of
different places inculcate with reference to this point, yet, according
to the Law of the Realm, no man is bound to leave any thing by Will to
any person in particular, unless it be his inclination; for every Man’s
last Will is said to be free, according to the spirit of these Laws, as
well as others.
[Footnote 237: _Divisam_, derived, according to Spelman, from the
French term _diviser_, to partition or divide. (Spelm. Gloss.) It is
sometimes used for a boundary of Land—_metæ et rationabiles divisæ quæ
ponuntur in terminis et finibus agrorum ad distinguendam prædia_, says
Fleta, L. 4. c. 2. s. 17. In this latter sense our author uses it.
Infra, L. 9. c. 13. 14. &c.]
[Footnote 238: _His_, according to the Harl., Bodl. and Cotton. MSS.,
designating, probably, his parish church, and not leaving him at
liberty to chuse, what church he pleased.]
A woman, indeed, when at her own disposal, may make a Testament; but,
if married, she cannot, without the Authority of her Husband, make
any Will of the Effects of her Husband.[239] Yet it would be a mark
of affection and highly creditable to the Husband, if he concede a
reasonable portion of his Effects to his Wife; in other words, a third
part, which, indeed, she would be entitled to, should she out-live him,
as will be more fully seen hereafter. Husbands indeed, much to their
honor, frequently grant to their Wives this indulgence.
[Footnote 239: The modern French Code permits the wife to make _a
will_, even without the authority of her Husband. (Code Napoleon, s.
226.)
At the same time she is restrained from making _a gift_, without his
consent, or the sanction of the Law. (Ibid. s. 905.)]
When, therefore, any one being indisposed wishes to make his Will, if
he be not involved in Debt, all his moveables should be divided into
three equal parts; of which one belongs to his Heir,[240] another to
his Wife, and the third is reserved to himself.[241] Of this third, he
has the free power of disposing. But, if he dies without leaving any
Wife, the half is reserved to him.[242] But of his Inheritance, he
cannot by his last Will make any disposition, as before observed.
[Footnote 240: “To his children” generally, according to the Reg. Maj.
c. 36. With respect, however, to the text of Glanville, Mr. Selden
collects, from the Laws of Henry the first and the Assise of Clarendon,
that the _Heirs_ inherited Chattels as well as Lands, as late as the
time of Henry the second, and that the Law was changed about the time
of King John, by some Act of Parliament not now to be found. (Selden’s
Tit. of Honor, part 2. c. 5. s. 21.)]
[Footnote 241: The text receives considerable confirmation from the
customs of Gavelkynd, highly probable as it is, that those customs are
the valuable relics of the old common Law. “Let the goods of gavelkynd
Persons,” says the _Custumal of Kent_, “be parted into three parts,
after the funerals and the debts paid, if there be lawful Issue in
life. So that the dead have one part, and his lawful sons and daughters
another part, and the wife the third part: and, if there be no lawful
issue in life, let the dead have the one half, and the wife alive the
other half.” (vide Robins. on Gavelkynd, 287.) Lord Hale recognises
the doctrine in the text, which, he tells us, was conformable to
the ancient Law of England and the custom of the North to this day.
(Hist. Com. Law. 192. 225.) It is likewise confirmed by the Regiam
Majestatem, (L. 2. c. 37) and in substance by Bracton, and Fleta.—Yet,
notwithstanding all this, Lord Coke, in his Commentary on Magna Carta,
roundly asserts, that the doctrine laid down in the text, never was the
Common Law; (2 Inst. 32) and, in support of this position, he cites a
passage from Bracton.
To that passage, I have turned. Bracton there confirms the text of
Glanville, and tells us, that the Law is so, unless in some cities and
boroughs.—This leads him to mention the custom of London, and some
floating opinions about its extent. He is of opinion, that the will
of a citizen of London ought to be free, and unrestrained by any such
limitation, as was imposed upon wills by the common Law. But Lord Coke
has hastily assumed, that what Bracton spoke _of the custom of London
only_, related to the kingdom at large. As this assumption fails, the
deduction that flowed from it fails also. Sir William Blackstone, I
find, has mentioned and refuted Lord Coke’s mistake. (2 Comm. 492) as
has Mr. Somner in his Treatise on Gavelkynd, p. 96. To these authors,
the reader may refer, as also to Reeves’s Hist. Eng. Law. 2. 334. 335.
and F.N.B. 270. In concluding this note, I shall mention, the course of
distribution of an Intestate’s Effects under the Laws of Canute, and
the conqueror. Under the _former_, the Lord took the Heriot, and the
remainder was distributed between the wife, children, and relatives,
_cuilibet pro dignitate quæ ad cum pertinet_. (LL. Canuti, 68.) Under
the _latter_, the children divided the Inheritance equally between
them. (LL. Gul. Conq. 36.)]
[Footnote 242: Bracton and Fleta perfectly concur with our author,
except that they use the word _children_ instead of Heir, adding, that
if the deceased had no children, then, the one half was at his own
disposal, the other belongs to the wife; and, if he had neither wife
nor child, the whole was at his own disposal. (Bracton 60. b. Fleta L.
2. c. 57. s. 10.) Before we quit the present chapter, it may not be
amiss to observe, that Glanville has been thought grossly to contradict
himself in the course of it. But this has been inconsiderately imputed
to him by those, who have not attended to the context. He states, that
according to certain customs, which prevailed in particular places,
a man was bound to remember his Lord, and the Church, previously to
his making his will. But, says he, whatever those customs inculcate,
yet, according to the Law of the realm, no man is bound to leave
any thing _to any particular person_, unless it be his inclination,
for every man’s will is free, _over that part of his property which
the Law permits him to dispose of, namely, a third, or, eventually,
a half_—When our author laid it down, that a man’s will was to be
free, he did not mean to assert, that he was at liberty to dispose of
_all_ his property. Should it in the present day be laid down, that a
Testator’s will was free, and that he was not bound to give any thing
to any particular individual, would it be a fair inference, that a
man could devise his _entailed_ Lands? It we apply this to Glanville,
he is consistent, and will be understood to speak, with reference to
persons, what he has been considered to speak, with respect to things.
That the division of the property, mentioned in the text, did not long
survive the time of Glanville, is most probable. (See Somner on Gavelk.
p. 98.) Swinburne seems strangely to have blundered in thinking, that
our author took part of his text from Magna Carta, (Swinburne on
Wills, part 3. section 16.) The passing of which was an event clearly
_posterior_ in time to Glanville.]
CHAP. VI.
The Testament ought to be made in the presence of two or more lawful
Men, either clergy or lay, and such as can be proper witnesses of it.
The Executors of a Testament should be such persons, as the Testator
has chosen for that purpose, and to whom he has committed the charge.
But, if he should not nominate any person for this purpose, the
nearest of Kin and Relatives of the deceased may take upon them the
charge; and this, so effectually, that should they find the Heir or any
other person detaining the Effects of the deceased, they shall have the
King’s Writ directed to the Sheriff in these words——
CHAP. VII.
“The King to the Sheriff, Health.[243] I command you that, justly and
without delay, you cause to stand the reasonable division of _N._ as it
can be reasonably shewn that he made it, and that it ought to stand.
Witness, &c.”
[Footnote 243: Vide F.N.B. 270.]
CHAP. VIII.
When a party, summoned by authority of this Writ, alleges any thing
against the Testament itself; either that it was not reasonably made,
or that the thing claimed was not as asserted left by it, then,
the Plea ought to be heard and determined in the Court Christian;
because Pleas concerning Testaments ought to be agitated before the
Ecclesiastical Judge, and decided according to the course of Law, on
the Testimony of those who were present at the time of the making of
the Will. But if the person, who intends to make a will, should be
overburthened with Debts, he cannot (beyond the payment of his Debts)
make any disposition of his Effects, without the consent of his Heir.
Should it, however, happen, after payment of the Debts, that any thing
remains, then it is divided into three parts in the manner before
stated; and he may, as observed, make a Testament of a third part of
it. If, however, the Effects of the deceased are insufficient to pay
his Debts, then his Heir is bound to make up the deficiency out of his
own; I mean, if he is of Age.[244]
[Footnote 244: “If the goods of the defunct are not sufficient for
payment of his Debts, by the Law, his Heir should pay the same of his
own proper goods.” (Reg. Maj. L. 2. c. 39.) This Rule was soon altered.
_Quatenus_, says Bracton, _ad ipsum pervenerit, scilicet, de hereditate
defuncti et non ultra, nisi velit de gratia, et si nihil multo
fortius._ (See Bracton 61. a. Fleta L. 2. c. 57. s. 10.) _Notandum est,
quod nullus de antecessoris debito tenetur respondere ultra valorem
quod de ejus hereditate dignoscitur possidere._ (Le Grand Cust. de
Norm. c. 88.)]
CHAP. IX.[245]
[Footnote 245: Hereon generally, see Bracton 86. b.]
This leads us to observe, that some Heirs are evidently of Age, some as
clearly not of full age, but others of whom it may be doubtful, whether
they have attained their age or not. The first description of Heirs
may, immediately upon the deaths of their Ancestors, hold themselves in
possession of their Inheritance,[246] although their Lords may take the
Fee, together with the Heir, into their hands. This, however, ought
to be done with such moderation, as not to cause any Disseisin to the
Heirs, who may, indeed, should it be necessary, resist the violence of
their Lords, provided they are prepared to pay their Reliefs, and to
render to them such other services as are justly due. But, if it be
evident that the Heir is under age, and he hold by Military service, he
is considered to be in the Custody[247] of his Lord, until he attains
his full age.
[Footnote 246: Vide Statute of Marlebridge, chap. 16. and Lord Coke’s
Comment thereon. (2 Inst. 133.)]
[Footnote 247: Of the Custody and Marriage of the Minor, we may form
a general notion, when we understand, that they were considered as
chattels and moveables, which the Lord might dispose of _in extremis_.
See Fleta and Bracton, Sparsim.]
The full age of an Heir, if the son of a Knight, or of one holding by
Military service, is when he has completed his twenty-first Year.[248]
But, if the Heir be the Son of a Sockman, he is esteemed to be of full
age when he has completed his fifteenth Year.[249] If he is the son of
a Burgess, he is understood to have attained his full age,[250] when he
has discretion to count Money and measure Cloth, and in like manner to
manage his Father’s other concerns.
[Footnote 248: Vide Craig Jus feud. L. 2. D. 17. s. 17. and L. 2. D.
20. s. 17.—Bracton 86. b.]
[Footnote 249: Vide Craig Jus feud. L. 2. D. 17. s. 37.—LL. Hen. 1. c.
70.—Bracton 86. b. This, it seems, is still the age by the custom of
Gavelkynd. (Robins. on Gavelk. 185.)]
[Footnote 250: At fourteen, or when he can attend to his Parent’s
concerns, according to Reg. Maj. L. 2. c. 41. See Bracton 86. b.]
In so extensive a sense have Lords the Custody of the Sons and Heirs
of their Homagers and of their Fee, that they, for example, exercise
an absolute controul with respect to presenting to Churches in their
Custody, in marrying Females, (if they fall into wardship), and in
regulating other matters, in the same manner as if they were their
own. The Law, however, does not permit the Lords to make any absolute
disposition of the Inheritance. In the mean time, the Lord should
maintain the Heir in a manner suitable to his Dignity and the extent of
his Inheritance, and should discharge the Debts of the deceased, so far
as the Estate and the length of the Custody will admit.[251] Hence they
are bound by the Law to answer the Debts of the Ancestors.
[Footnote 251: The doctrine of the text is corroborated by the Reg.
Maj. L. 2. c. 42. “Every Guardian,” says the Mirror, “is answerable for
three things. 1. That he maintain the Infant sufficiently. 2. That he
maintain his rights and Inheritance, without waste. 3. That he answer
and give satisfaction of the Trespasses done by the Infant.” (Mirror c.
5. s. 1. See also Bracton 87. a. and le Grand Cust. de Norm. c. 33.)]
The Lords may also manage the concerns of the Heir, and commence
and prosecute all Suits for the recovery of his rights, provided no
exception be taken on account of the Minor’s Age.[252] But the Lord is
not bound to answer for the Heir, neither in a question of Right nor
of Disseisin, except in one instance—when one Minor has the Custody of
another, after the decease of his Father. Should the latter Minor, upon
his attaining his full age, be refused his Inheritance, he may have
an Assise and Recognition of the Death of his Ancestor; nor shall the
Recognition, in such case, cease, on Account of the Minority of the
Lord. But if a Minor be appealed of any Felony,[253] then he shall be
attached by safe and secure pledges. Yet, whilst he continues within
age, he shall not be compelled to answer, nor until he has attained his
full age. Those persons who have the Custody are bound to restore the
Inheritance to the Heirs in good condition,[254] and discharged from
Debts, in proportion to the duration of the Custody, and the extent of
the Inheritance. But if it be doubtful, whether the Heir be of full age
or a Minor, then, undoubtedly, the Lord shall have the Custody as well
of the Heir as of his Inheritance, until the full age of the Heir be
reasonably proved by the oaths of lawful men of the Vicinage.
[Footnote 252: The Translator renders the passage as restored by the
Harl., Cotton. and Dr. Milles’s MSS.]
[Footnote 253: _Appeletur de Felonia._ “_Appellum_,” says Sir Edward
Coke, “signifies an accusation, and, therefore, to appeal a man is as
much as to accuse him.” The word _appellum_ is derived of _appeller_
to call: because, _appellans vocat reum in judicium_, he calleth the
Defendant to judgment. (Co. Litt. 287. b. See also 391. a. and Cowell
ad voc.) Appeals were known to the Normans. (Grand Custum. c. 68.)]
[Footnote 254: This, though a part of the common Law, had been so
frequently violated, that it was felt necessary to make it part of the
Great Charter. (2 Inst. 14.)]
CHAP. X.
If those Heirs, liable to be in Custody, have more Lords than one, the
chief Lord, that is, the one to whom the Heir owes allegiance for his
first Fee, shall have the Custody. But this is not to deprive the Lords
of the other Fees of their Beliefs and rightful services; but the
Custody shall remain to them entire, under the form before mentioned.
Yet should it be observed, that when any one hold of the King _in
Capite_, the Custody of him belongs exclusively to the King, whether
the Heir has any other Lords or not; because the King[255] can have
no equal, much less a superior.[256] But yet, by reason of Burgage
Tenure,[257] the King is not preferred in the Custody to others. If the
King should commit the Custody to another,[258] then, a distinction
is to be made, whether it is unconditionally, and in such manner as
not to render the person to whom it was committed accountable to the
Exchequer, or whether it is under restrictions. If it is committed
to him in such unconditional manner, then he can present to vacant
Churches, and, generally, as far as consistent with Justice, manage the
concerns of the Heir, as if they were his own.
[Footnote 255: Bracton L. 1. c. 8. (Al. MS.)]
[Footnote 256: Bracton fo. 5. b.]
[Footnote 257: Or socage, says Bracton, fo. 87. a. See Co. Litt. 77. a.]
[Footnote 258: Vide 2. Inst. 12. 13. With respect to the Practice,
alluded to in the text, Lord Littleton observes, that undoubtedly
inferior Lords did the same. It likewise, adds his Lordship, appears
by the Great Rolls, that the wardships of the crown were sold by King
Henry the second, and mention is made of that practice, without any
blame, in the charters of King John and Henry the third. (Hist. Hen. 2.
Vol. 3. 109.) The above citation from Lord Coke confirms the doctrine
of the noble Historian.]
CHAP. XI.
The Heirs of Sock-men upon the death of their Ancestors, shall be in
the Custody[259] of their nearest Kindred, with this distinction, that
if the Inheritance itself descended from the paternal side, the Custody
shall be conferred upon the kindred, the descendants on the maternal
side; but, if the Inheritance descend on the part of the Mother, then
the Custody belongs to the Kindred on the Father’s side. For the
custody of a person shall never by Law be committed to another, of whom
a suspicion can be entertained, that he either could or might wish to
claim any right in the Inheritance itself.[260]
[Footnote 259: If, says a Law of Ina, the Husband and Wife have any
children, and the Husband dies, the mother shall retain and nourish her
Child. Six shillings shall be given her to enable her to do it; a Cow,
in summer, and an Ox, in winter. (LL. Inæ c. 38.)]
[Footnote 260: _Nullus Heredipeta sui propinqui, vel extranei
periculosæ sane custodiæ committatur._ (LL. Hen. 1. c. 70.) Lord
Chancellor Macclesfield condemned this Rule, as not grounded upon
reason, but as prevailing in barbarous times, before the Nation was
civilized.—(2 P. Wms. 262.) On the other hand, Fortescue, (c. 44.) Lord
Coke, (Co. Litt. 88. b.) Judge Blackstone, (1 Comm. 461.) Mr. Hargrave,
(note to above), and Mr. Christian (ubi supra) approve of this Rule
of our Law, so opposite to that prevailing in the Roman Code. Nor has
the Great Feudist Craig withheld the testimony of his approbation
to it.—(Craig Jus feud. L. 2. D. 20. s. 6.) Dr. Sullivan, however,
approves both of our Rule and the civil law Rule, conceiving each
adapted to the peculiar state of the people—the one, a barbarous—the
other, a civilized people,—(Lect. on Laws of England p. 127.) but this
of course is applicable to the origin rather than the continuance of
the Rules.
It was in conformity to the rule laid down in the text, that the Eldest
Sister was excluded from having the custody of her Younger Sisters.
(Bracton fo. 78. a. Fleta L. 3. c. 16. s. 71.)]
CHAP. XII.
But if the Heirs are females, they shall remain in the Custody of their
Lords. If they are Minors, they shall continue in Custody until they
are of full age,[261] at which period the Lord is bound to find them
a Marriage, delivering to each of them her reasonable portion. But
if they were of full age, then also they shall remain in the Custody
of their Lord, until with his Advice and disposal they are married;
because without the disposal or assent of her Lord no female, the Heir
to Land,[262] can by the Law and Custom of the Realm be married.
[Footnote 261: We are informed by the Regiam Maj. that they were of
full age at fourteen complete. (L. 2. c. 48.) At which time, they
might, it was supposed, have Husbands, capable of performing the
services due for their Fiefs. See Bracton 86. b.]
[Footnote 262: “By _Land_ in this passage, he means, Land that was held
by military service.” (3 Litt. Hist. Hen. 2. 103.) If we may judge from
a law of _Canute_, (LL. Canuti 72.) the marriage of Wards was unknown
in his time.—Vide Spelm. Reliq. p. 29.]
Hence it is, that if a Man, having only a Daughter or Daughters, his
Heirs, should in his lifetime marry off one or more of them without
the assent of the Lord, he is justly, according to the Law and Custom
of the Realm, for ever deprived of his Inheritance; and that in such
manner, that he can never afterwards recover any part of it, unless
by the indulgence of the Lord. The reason is simply this—that as
the Husband of an Heiress is bound to do Homage to the Lord for her
Estate, the approbation and consent of the Lord is requisite for such
purpose; least he should be compelled to receive from his Enemy, or
from some other improper person, the Homage due in respect of his
Fee.[263] But if any one demands of his Lord a License to marry his
Daughter and Heir to another, the Lord is bound either to consent,
or to shew some just cause, why he refuses;[264] otherwise the woman
may, with the advice and approbation of her Father, be married, even
contrary to the Lord’s inclination. Upon this occasion it may be asked,
if a Woman, having Lands in Dower, may, without the consent of her
Warrantor,[265] follow her own inclination in marrying another; and,
if she do so, whether she shall on that account lose her whole Dower?
It does not appear that she ought for that reason to lose her Dower,
since her Husband, by the Law and Custom of the Realm, owes no Homage
to her Warrantor, but merely Fealty with an Oath, least if the Woman
herself should die before her Husband, the Homage should be entirely
lost, no Tenure being retained. Yet the Woman is bound to obtain the
consent of her Warrantor to her marriage, or she shall lose her
Dower,[266] unless, indeed, she holds other Land in Marriage-hood or
by Inheritance; for then it suffices, if she has obtained the consent
of the Chief Lord. This Rule obtains not on account of the Homage
but of the other Fealty, which the Husband is bound to perform to
the Lord as we have observed. But, if the Inheritance be within the
Fees of many different Lords, it is then sufficient, if the consent
of the Chief Lord be obtained to the Marriage of the female Heir. If
female Heirs, during such time as they are in Custody, are guilty
of incontinence,[267] and this be proved, then, those who have thus
erred shall be excluded from the Inheritance; and their portion shall
accrue to the others, who are free from the same stain. But if, in
this manner, all of them should err, then, the whole Inheritance shall
devolve upon the Lord, as an Escheat. Yet, if such female Heirs are
once lawfully married, and afterwards become widows, they shall not
again be under the Custody of their Lords; although they are, for
the reason formerly explained, bound to ask his consent to their
marriage.[268] Nor, in such case, shall they forfeit their Inheritance,
if guilty of incontinence.[269]
[Footnote 263: “This,” observes Lord Littleton, “appears to extend
equally to all kinds of fiefs for which Homage was done, as to those
that were held by Knight’s Service.” (3. Hist. Hen. 2. 104. Vide also
Craig Jus feud. L. 2. Dieg. 21. s. 8. Bracton 88. a.)]
[Footnote 264: Henry the 1st expressly promises, in his Charter, that
he will take nothing for his consent, nor will he withhold it, unless
it be proposed to unite the female to his enemy. (Anglo-Sax. LL. Ed.
Wilkins p. 233.) He promises, also, on the death of his Barons, to
marry their Daughters with the advice of the other Barons, and that he
will not compel widows to marry again; and he enjoins his Barons, to
act in a similar manner towards their Tenants. These regulations were
but ill observed. From the text, it is perfectly clear, that the right
of marriage extended to females only; but Lords subsequently enlarged
their claim, and exercised it also over Male Heirs. This is supposed
to have grown up in Henry the 3d’s time from a forced construction of
those words of Mag. Car. _Heredes maritentur sine disparagatione_.
(Sullivan’s Lectures, p. 130.)]
[Footnote 265: The Heir of her Husband, who must, therefore, have
frequently been not only her own Son, but an Infant. This may be
considered as one of the absurdities of the Feudal system.]
[Footnote 266: Under the Assises of Jerusalem, the Widow, generally
speaking, was not to be compelled to marry again; but if she did, she
was to ask the consent of her Lord. (c. 187.) See also the Mirror c. 1.
s. 3. and Bracton 88. a.]
[Footnote 267: _De corporibus suis forisfecerunt._ _Forisfacio_ is,
according to Spelman, derived from the French _forfaire_. (Gloss. ad
voc.)
In a proper signification, therefore, and as indicating _forfeiture_,
it rather describes the punishment than the offence. The transition
is by no means difficult; and, in its application to the crime, it
assumes a new meaning, by a gradation in language not unfrequent. The
term frequently occurs in the translations of the Saxon and Norman
Laws. (Vide LL. Ed. Conf. c. 32. 10. 36. 12. and Gul. 1. c. 1. Hen. 1.
c. 23. Vide also Craig L. 3. D. 3. s. 2. Co. Litt. 58. a. and 2 Inst.
227.) Lord Littleton observes, “this was a severe punishment for the
frailty of a single woman, and without example in other Laws: but it
undoubtedly arose, not so much from a rigorous sense of the heinousness
of the fault, as from the notion of an advantage due to the Lord from
the marriage of his ward, which he probably might be deprived of by her
being dishonored.” (3 Hist. Hen. 2. p. 119.)]
[Footnote 268: Vide Mag. Car. Cap. 7, and Lord Coke’s comment thereon.
(2 Inst. 16.) See also Robinson on Gavelk. 160 and Bracton 313. a.]
[Footnote 269: Lord Littleton thinks, the reason for exempting Widows
from the penalty was, that they, not being under the custody of their
Lords, their incontinence was no breach of the Duty and reverence due
from a Vassal. (3. Hist. Hen. 2. p. 119.) The Mirror coincides with
the text. (c. 1. s. 3.) The custom of Gavelkynd is less liberal to the
frailty of the widow. (Robins. on Gavelkynd 195.)]
But the assertion which is generally made, that incontinence[270] is no
forfeiture of the Inheritance, is to be understood of the crime of the
Mother; because, that Son is the lawful Heir, whom marriage proves to
be such.[271]
[Footnote 270: _Putagium_; quasi, says Spelman, _puttam agere_ a Gall.
_putte_, Ital. _putta_, meretrix. Petrarch. PUTTA SFACCIATA. (Spelm.
Gloss. ad voc.)]
[Footnote 271: For the Common Law, says the Mirror, only taketh him to
be a Son, whom the marriage proveth to be so. (Mirror p. 70. See also
Bracton 63. a. b.)]
CHAP. XIII.
Neither a Bastard,[272] nor any other person not born in lawful
wedlock, can be, in the legal sense of the term, an Heir.[273] But if
any one claims an Inheritance in the character of Heir, and the other
party object to him, that he cannot be Heir, because he was not born
in lawful wedlock, then, indeed, the Plea shall cease in the King’s
Court, and the Arch-Bishop or Bishop of the place shall be commanded,
to inquire concerning such marriage, and to make known his decision,
either to the King or his Justices.
[Footnote 272: The Norman Code enumerates four Impediments to
Succession.—Bastardy, profession of Religion, forfeiture, and incurable
Leprosy. (Le Grand Custum. de Norm. 27.) Bastardy seems to have been a
legal objection to a witness under the Assises of Jerusalem. (56.)]
[Footnote 273: A different Law prevailed amongst the ancient Welch
people, as Lord Hale deduces, from considering the _Statutum Walliæ_
12. Ed. 1. and, he thinks, that the Ancient British admitted Bastards
to inherit. (1. Hist. Com. Law 219.)]
For this purpose, the following Writ shall Issue:——
CHAP. XIV.
“The King to the Arch-Bishop, Health. _W._ appearing before me in my
Court has demanded against _R._ his Brother, the fourth part of one
Knight’s Fee, in such a Vill, as his right, and in which the said _R._
has no right, as _W._ says, because he is a Bastard born before the
Marriage of their Mother. And, since it does not belong to my Court to
inquire concerning Bastardy, I send them unto you commanding, that you
do in the Court Christian that which belongs to you. And when the Suit
is brought to its proper end before you, inform me by your Letter what
has been done before you concerning it. Witness, &c.”
CHAP. XV.
Upon this subject it has been made a question whether if any one was
begotten or born before his Father married the Mother, such Son is the
lawful Heir, if the Father afterwards married his Mother? Although,
indeed, the Canons and the Roman Laws consider such Son as the lawful
Heir,[274] yet, according to the Law and Custom of this Realm, he shall
in no measure be supported as Heir in his claim upon the Inheritance;
nor can he demand the Inheritance, by the Law of the Realm.[275] But
yet if a question should arise, whether such a Son was begotten or
born before marriage, or after, it should, as we have observed, be
discussed before the Ecclesiastical Judge; and of his decision he shall
inform the King, or his Justices. And thus, according to the Judgment
of the Court Christian concerning the marriage, namely, whether the
Demandant was born or begotten before marriage contracted, or after,
the King’s Court shall supply that which is necessary, in adjudging or
refusing the Inheritance respecting which the dispute is; so that by
its decision the Demandant shall either obtain such inheritance, or
lose his claim.
[Footnote 274: “In the time of Pope Alexander the 3rd, (A.D. 1160—Anno
6. Hen. 2.) this Constitution was made, that children born before
solemnization of Matrimony where Matrimony followed, should be as
legitimate to inherit unto their ancestors, as those that were born
after Matrimony.” (2 Inst. 96.) To this Constitution our Author
alludes. The doctrine of the Norman Code is in conformity with the
Canon of Alexander. (Grand Custum. c. 27.) The modern French Code
allows, under certain restrictions, of the subsequent legitimation of
children—even of deceased children, who have left issue. (Code Napoleon
s. 331. 332.)]
[Footnote 275: “This decision of Glanville,” observes Lord Littleton,
“is very remarkable: as it shews the entire independence of the Law
of England on the Canon and Civil Laws in his time.” (3 Litt. Hist.
Hen. 2. p. 125.) When this doctrine was, in a subsequent period of our
History, attempted to be overturned, it gave rise to the celebrated
answer of the Barons recorded in our Statute Book.—_Et omnes Comites
et Barones unâ voce responderunt, quod nolunt leges Angliæ mutare, quæ
hucusque usitatæ sunt et approbatæ._ (Stat. of Merton. c. 9. See also 2
Inst. 96.) The Rule, thus memorably defended, has descended untouched
to the present day.]
CHAP. XVI.
As a Bastard can have no Heir, unless it be one of his own Body, a
question arises respecting a Bastard. If any one has given Land to
him, reserving a service or any other thing, and has received his
Homage for it, so that the Bastard has died in the Seisin of such Land,
without leaving any Heir of his own Body, who is entitled by law to
succeed to him, as his Lord cannot for the reasons before stated?[276]
But when any one dies intestate, all his chattels are understood to
belong to his Lord; and, if he has more Lords than one, each of them
shall recover such Chattels, as may be found within his Fee. But all
the Effects of a Usurer (whether he make a Will or not) belong to the
King.[277] But it is not the Custom for any one, whilst living, to be
appealed or convicted of the crime of Usury—but, among other Regal
Inquisitions, it is usually inquired[278] and proved, who have died in
this Offence,[279] and that by the oaths of twelve lawful Men of the
Vicinage. Which being proved in Court, all the Moveables and Chattels
which belonged to the deceased Usurer shall be seised to the King’s
use, without any regard to the person in whose hands they may be found.
His Heir is for the same reason deprived of the Inheritance according
to the Law of the Realm, the Inheritance itself reverting to the
Lord. It should, however, be observed, that if any one has, during a
certain period of his life, been guilty of this Crime, and be publicly
accused[280] of it in the Community where he lived, if he desisted
from his error before his death, and was penitent, neither he, nor his
property, shall after his death be liable to the penalties of Usury.
It ought, therefore, to be evident, that a Man has died a Usurer,
in order that he may be so adjudged after his death, and his Effects
disposed of as those of a Usurer.
[Footnote 276: “It is answered,” says the Regiam Majestatem, “that no
Man may succeed to him, but only the King by the reason aforesaid.”
(L. 2. c. 52.) But Bracton resolves the question by informing us, that
in such a case, the Land would escheat to the Lord; nor, would the
circumstance of Homage having been received, alter the case, _quia
homagium evanescit heredibus deficientibus ubique_; (Bracton 20. b.)
a doctrine which has been strangely misinterpreted, and that by a
highly respectable writer, who considers the position laid down by
Glanville, that the Lord was precluded by receiving Homage of his claim
to the Escheat, as not to be relied upon; because, _in the very next
Reign_, the Lord was _ultimus heres_ to a Bastard. In support of this
conjecture, the Author in question appeals to Bracton. (Ubi supra.)
See Dalrymple on Feuds p. 64. Bracton wrote the Law of the times as it
stood when he composed his treatise, which was not _in the very next
Reign_, but towards the latter end of the Reign of Henry the third, the
better part of a century later than when Glanville wrote. Had the fact,
however, been as assumed, the conclusion drawn from it would by no
means be warranted: since, to argue from what is Law at one period in
order to refute what was so at another _anterior_ period is the purest
sophistry.]
[Footnote 277: The Ancient _Romans_ punished Usury with more severity,
than they did Theft. (Cato de re Rusticâ Proem.) The _Norman_ code
imposes a forfeiture of all the offender’s property, provided he had
been guilty of Usury, within a year and a day before his death. (Grand
Custum. de Norm. c. 20.)
By a Law of Edward the Confessor, Usurers were banished the kingdom,
and a person convicted of the crime forfeited all his substance,
and was to be treated as an outlaw. If the Reader feel any desire
to penetrate into the motives that dictated this Law, these are the
concluding words of it. _Hoc autem asserebat ipse Rex se audiisse in
Curia Regis Francorum, dum ibidem moraretur, quod Usura radix omnium
vitiorum esset._ (LL. Ed. Conf. c. 37.) The doctrine, as laid down by
the Mirror, is, that the goods and Chattels of Usurers should remain,
as Escheats to the Lords of the Fee. (Mirror c. 1. s. 3.) The Reader
will find some curious disquisitions on the subject of Usury in the
Ancient Dialog. de Scaccario. (L. 2. s. 10.)]
[Footnote 278: Our Author alludes to the Inquisitions made under the
_Justices Itinerant_, an institution generally ascribed to Henry the
2nd, and, as generally, imagined to have been first ordained in the
Great Council at Northampton in the 22nd year of the Reign of that
Monarch. Lord Coke, however, ascribes to them a much earlier origin;
and from the Records in the Exchequer, it should seem, that there
had been Justices Itinerant to hear and determine Civil and Criminal
causes, so early as the 18th of Henry the first. Lord Littleton thinks,
the first appointment of Justices Itinerant was made by Henry the
first, in imitation of a similar Institution in France established by
Louis le Gros. Justices Itinerant _ad communia placita_ were continued
until the 10th of Edw. the 3rd, when they seem to have given way to
Justices of Assise, Nisi prius, Oyer and terminer, and Gaol delivery.
(Vide Madox’s Excheq. 96. Litt. Hist. Hen. 2. Vol. 4. 271. Hale’s Hist.
Com. Law 140. 168—2 Inst. 497.)]
[Footnote 279: The Mirror confines the punishment to those attainted of
Usury after their decease, “but not, if they be attainted thereof in
their lifetime, for then they lose but only their moveables; because,
by penance and repentance, they may amend and have Heirs.” (Mirror c.
4. s. 12. See also Fleta L. 1. c. 20. s. 28. and Dial. de Scacc. L. 2.
s. 10.)]
[Footnote 280: Vide Book 14. Note 2.]
CHAP. XVII.
The Ultimate Heir of any person is his Lord.[281] When, therefore, a
Man dies without leaving any certain Heir, such, for example, as a
Son, or Daughter, or without any such Heir of whom there can exist
no doubt,[282] but that he is the nearer and right Heir, the Lords
of the Fee may, and indeed, usually do, take the Vacant Inheritances
into their hands, and retain them as Escheats,[283] whoever such
Lord may be, whether the King, or any other person. But, if any one
appear and assert himself to be the right Heir, if by the indulgence
of his Lord, or by the King’s precept, he can effect it, he shall
prosecute his claim; and thus he may establish his right, if he has
any such; but, in the mean time, the Land in question shall remain in
the hands of the Lord of the Fee: because, whenever a Lord entertains
a doubt concerning the Heir of his Tenant, whether he be the right
Heir or not, he may retain the Land until the fact be lawfully proved
to him.[284] The same rule is laid down, in a former part of this
Treatise, where a doubt arises with respect to the full age or Minority
of the Heir. There is, however, this difference, that in the one case,
the Inheritance itself is in the mean time to be considered as the
Lord’s Escheat: but in the other case, it is not considered to be the
Lord’s—nothing, indeed, but the Custody. But if no one should appear
to claim the Inheritance in question as Heir, then it shall absolutely
revert to the Lord as an Escheat; so that he may dispose of it at his
pleasure as his own property. Besides, if a Female Heir, in the Custody
of her Lord, be guilty of Incontinence, her Inheritance shall escheat
to her Lord, on account of her crime. And if any person be convicted
of Felony, or confess his Guilt in Court, deprived by the Law of the
Realm of his Inheritance, his Land shall remain to the Lord, as an
Escheat.[285] It is to be observed, that if any one hold of the King
_in Capite_, then, as well his Land, as all his Moveables and Chattels,
in whose-ever possession they may be found, shall be seised to the
King’s use, and the Heir shall be for ever debarred from recovering
them. But if an outlaw,[286] or one convicted of Felony, hold of any
other person than the King, then also all his Moveables shall belong
to the King; his Lands also shall remain in the King’s hands during
one year, which period being expired, such Land shall revert to the
right Lord, in other words, to him to whose Fee it belongs, the Houses,
however, being thrown down, and the Trees extirpated.[287] And,
generally speaking, whenever a person has done or said any thing in
Court for which he has been, by a Judgment of the Court, disinherited,
his Inheritance is accustomed to return as an Escheat to the Lord of
the Fee of whom it is held. But a forfeiture, committed by the Son and
Heir of any one, shall not disinherit the Father, nor the Brother, nor,
indeed, any other person but himself. It should also be added, that
when a Man has been condemned of Theft, all his Moveables and Chattels
generally devolve on the Sheriff of the County; but his Land, if he has
any, shall immediately revert to the Lord of the Fee, without awaiting
the year.[288] When any one has been outlawed by the Law of the Land,
and has afterwards, by the indulgence of the Prince, been restored to
the Peace, he cannot on that account recover his Inheritance, supposing
that he or his Heirs possess such, as against his Lord (unless by
the mercy and indulgence of the Lord himself.) The King, indeed, is
accustomed to remit the pains of Forfeiture and Outlawry, yet cannot
he, under colour of this prerogative, infringe upon the rights of
others.
[Footnote 281: Sir Wm. Blackstone, when speaking of the Law of Escheat,
informs us, that it is adopted in almost every country, to prevent
the robust title of occupancy from again taking place. (2 Bl. Comm.
10.) See Fleta L. 6. c. 1. s. 11. “By common custom and use only,”
says Skene, commenting on the Regiam Majestatem, “the King is the last
Heir.” (L. 2. c. 55.)]
[Footnote 282: The Translator follows the Reading sanctioned by all the
MSS.]
[Footnote 283: See Co. Litt. 13. a. b.]
[Footnote 284: See Bracton 71. b.]
[Footnote 285: How similar the Norman Code was in this respect, the
Reader will perceive, on turning to _Le Grand Cust. de Norm._ c. 24.]
[Footnote 286: _Utlagatus_, the outlaw, or, in the expressive term of a
far distant day, the _frendlesman_, or, as we should now write it, the
_friendless man_. (Bracton 128. b. See Dial. de scacc. L. 2. s. 10.)]
[Footnote 287: “The reason of this,” says Lord Littleton, “was a
supposition, that the Lord, of whom the felon held, was in some degree
culpable, for want of a proper care in the choice of his Tenant.”
(2 Hist. Hen. 2. p. 118.) It is difficult to feel the force of this
reasoning, from the moment fiefs ceased to be given for the life of the
feudatory—for what _choice_, it may be asked, was left to the Lord,
when fiefs were hereditary, as they clearly appear to have been when
Glanville wrote, and for some time previously. Lord Coke ascribes the
rule to another source, laying it down, that originally the King was
to have no benefit from the attainder, but was to commit destruction
to the property of the offender in detestation of the crime, _ut pœna
ad paucos, metus ad omnes perveniat_. (2 Inst. 36.) But this is as
far from being satisfactory, as the reason given by Lord Littleton.
Because, as the property had ceased to belong to the offender, any
waste committed on it redounded in the first place to the injury of
the Lord, and through him to the public, who were both, laying all
technical fictions aside, innocent. The punishment to the Tenant was
the _forfeiture_, and not the waste subsequently committed. This cruel
policy, or rather impolicy, was abrogated by the 22nd Chapter of Magna
Carta. The Reader will consult Lord Coke’s comment on that Chapter,
and then judge for himself, whether the year and a day came in lieu of
the waste. That they were co-existent seems strongly corroborated by
the Custumal of Kent—“The King shall have the year _and_ the waste.”
(Robinson on Gavelk. 284. See also Ibid c. 4.) The Mirror is here, as
in many other instances, at variance with itself. But Britton appears
to consider them as co-existent. (c. 18. s. 6.) and so does the Regiam
Majestatem. (L. 2. c. 55.)
Lord Coke has with his usual industry, collected the authorities in
favor of his position. Dr. Sullivan may be added to them. (Lectures p.
348.)]
[Footnote 288: The Reader will recollect, that when Glanville wrote,
Theft was not an offence against the King’s crown. Chap. 2. L. 1.]
CHAP. XVIII.
Of Marriage-hood—the one kind is free, the other, liable to the
performance of services.[289] Marriage-hood is called free, when any
freeman gives a certain part of his Land with a Woman in Marriage to
another, so that such Land be exempt from every kind of service, and
acquitted on the part of him and his Heirs, as against the Chief Lord.
The Land in question shall enjoy this immunity, even to the third
Heir;[290] nor, during the interval, are the Heirs bound to do any
Homage for it; but, after the third Heir,[291] the Land again becomes
subject to its original services, and Homage shall be received for it,
and, if it be part of a Military Fee, the Tenant shall perform the
service of the Fee, with reference to the quantity of the Land. But
sometimes Land is given in Marriage-hood, saving and reserving the
services due to the Chief[292] Lord; and then indeed, the Husband of
the Woman and his Heirs must perform the services, with the Exception
of Homage, even to the third Heir.[293]
[Footnote 289: Vide Note 1. c. 1. of this Book.—Bracton 21. a. b. and
Fleta L. 3. c. 11.]
[Footnote 290: In enumerating these degrees, say Bracton and Fleta,
_Donatarius primum faciat gradum, heres ejus secundum gradum &c._
(Bracton fo. 22. b. Fleta L. 3. c. 11. s. 1.)]
[Footnote 291: _Nor, during the interval, are the Heirs bound to do any
Homage for it, but, after the third Heir_,—omitted by the Harl. and
Bodl. MSS.]
[Footnote 292: All the MSS. concur in omitting the word _chief_.]
[Footnote 293: “And the third Heir shall make Homage, therefore, Ward
and Relief, and all his Heirs after him.” (Regiam Majest. L. 2. c. 57.)]
But the third Heir shall do Homage for the first time, and all his
Heirs afterwards. But another Fealty,[294] with the interposition of a
solemn promise or oath, shall, in the intervening period, be performed
by the Women and their Heirs, almost in the same form and in the same
words in which Homage is commonly performed.
[Footnote 294: “And another fealty, by making of an oath and faith,
shall be given and made by the Woman and her Heirs, in the same form
and words as Homage should be made.” (Reg. Maj. L. 2. c. 57.)]
When, therefore, any one has received Lands with his Wife in
Marriage-hood, and has by her an Heir, Male or Female, heard to cry
within the four Walls, then, if the man survive his wife, whether the
Heir live or not, the Marriage-hood shall notwithstanding remain to the
Husband, during his life; but, after his death, it shall revert to the
original Donor, or his Heirs.[295] But if he never had an Heir from his
Wife, then, immediately after her death, the Marriage-hood shall revert
to the Donor or his Heirs.[296]
[Footnote 295: What our Author treats of, as a consequence of a Man’s
receiving lands in marriage-hood, has received considerable extension
in succeeding times, and has become known by the Title of the _Curtesy
of England_. But, as Lord Coke observes, it was known to the _Scotch_
and _Irish_, and, he might have added, to the _Normans_. Craig cites
a passage to shew that it was not unknown to the _Roman_ Code, and
Sir Wm. Blackstone quotes an authority to prove that it was in use
amongst the ancient _Almains_ or _Germans_. Like Dower, it is not a
provision arising from the compact of the parties, but emanating from
the liberality of the Law. As to the evidence of the existence of the
offspring, the Regiam Majestatem expressly coincides with our Author,
(L. 2. c. 58.) and in this, is followed by Bracton, Fleta, and Britton.
Lord Coke, however, asserts, that if born alive, it is sufficient,
though not heard to cry, which, indeed, is consistent with reason—for
the crying of the child is merely _evidence_ of life—which may as well
be furnished by a thousand other circumstances. It is not improbable,
that as an adherence to the strict Letter of the ancient Law, as laid
down by Glanville, had been found extremely inconvenient, it had,
therefore, been silently abrogated, previous to the time of Lord Coke.
(See Craig L. 2. D. 22. s. 40. Le Grand Custum. de Norm. c. 120. 2 Bl.
Comm. 125. and Co. Litt. 29. b.)]
[Footnote 296: He forfeited it under the Norman Code by a subsequent
marriage, with another woman. (Le Grand Custum. de Norm. c. 121.)]
And this is some reason why Homage is not usually received for Lands in
Marriage-hood.
For if Land were so given in Marriage-hood, or in any other way, that
Homage was received for it, then, it would never afterwards revert to
the Donor, or his Heirs, as we have explained. If, however, such Woman
take a second Husband, the same Rule prevails, as to the second, as we
have stated concerning the first, whether the first should have left
an Heir or not. But when any one sues for Land as the Marriage-hood of
his Wife, or when the Woman or her Heir does so, then, a distinction
must be made, whether the Land is demanded as against the Donor, or his
Heir, or against a stranger. If the Suit be against the Donor, or his
Heir, then, it is at the Election of the Demandant, whether he would
proceed in the Court Christian, or in the Secular Court.
For if the Demandant chuses to resort to such Tribunal, it belongs to
the Ecclesiastical Judge to hold pleas of Marriage-hood; a Jurisdiction
he acquires from the mutual Troth usually plighted, when any one
promises to marry a Woman, and she in her turn promises marriage to
him. Nor, indeed, is the Ecclesiastical Judge prohibited by the King’s
Court from holding such plea, although it concern a Lay-fee, if it be
clear that the demand relate to Marriage. But if the Suit be brought
against a Stranger, then, indeed, it shall be determined in the Lay
Court, and that, in the same manner and order in which Pleas concerning
other Lay Fees are generally conducted.
Yet, should it be observed, that the Suit ought not to be proceeded
in, without the Warrantor, as we formerly mentioned when treating of
Dower. The Suit, indeed, must be proceeded in, as far as respects the
Warrantor, in the same manner as a Plea in Dower. What we, therefore,
said on the former occasion with respect to this point, is applicable
to the present. It remains to add, that the third Heir, after he has
once done Homage, can[297] proceed in the suit without the authority of
the Warrantor.
[Footnote 297: All the MSS. concur in introducing _not_ into the text.]