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.
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.
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.
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.
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.
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.
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]
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]
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]
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.
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.
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.
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]
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.
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.
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.
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.
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——
“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.”
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]
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.
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.
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.
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.
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.
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]
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.
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]
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]
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.
For this purpose, the following Writ shall Issue:——
“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.”
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.
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.
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.
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]
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.
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]
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.