Chapter X: Book VII (2)

[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.]