Chapter IX: Book VII (1)

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.