A Translation of Glanville | Project Gutenberg

[178] Feodum. This word, which has frequently occurred in our progress through Glanville, has given the name to a system. The reader has no doubt perused Mr. Justice Blackstone’s account of it, (2 Comm. 44.) and the luminous Annotation which Mr. Butler has subjoined to Co. Litt. (Note to 199. a.) It may not be amiss briefly to mention the leading divisions of Feuds, as the Reader in the course of these pages will find some of these divisions mentioned, and others alluded to. 1. In proprium et Improprium. 2. In francum et non francum. 3. In masculinum et femininum. 4. In reale et personale. 5. In laicum et ecclesiasticum. 6. In antiquum et novum. 7. In nobile et ignobile. 8. In ligium et non ligium. 9. In simplex et conditionatum. 10. In divisibile et Indivisibile. (Craig de Jur. Feud. sparsim.)

[179] Namely, says Dr. Milles’s MS. Hugh Bardolph.

[180] For, as the Regiam Majestatem adds, “the king’s writ is of no force, unless the warrantor be summoned.” (L. 2. c. 16.) The Bodleian, Harleian, and Cottonian MSS. add, that the woman is not bound to answer, without her warrantor.

[181] The Dower being assigned, says Bracton, it shall, in every sense of the word, be enjoyed freely; and the wife shall not be compelled to contribute any portion of it, towards discharging the Debts of her Husband, which entirely devolve upon the Heir. The Heir shall warrant and defend the Dower, and perform the judicial services that may be due in respect of it, to the County, the Hundred, or the Lord’s Court; whilst the widow, exempt from every other care, devotes her attention solely to the management of her domestic affairs, and to the education of her children.—She shall, however, have her own court. (fo. 98. a.) So effectually were the convenience, the interest, the dignity, of the widow attended to when Bracton wrote!!

[182] An Assignment of Dower carries with it an obligation of warranty under the modern French code. (Code Napoleon, 1547. 1564.)

[183] Vide F.N.B. 329.

[184] Vide Bracton 97. a. where the doctrines of the text are corroborated, and the additional improvements laid down.

[185] Yet, from the form of the writ, book 12. c. 20. as given by our author, we may collect, that the Land assigned to the Widow, as her Dower, was to have a messuage upon it, unless, as the Writ says, land had been, in the first place, specifically nominated, on which there was no messuage. This inference is corroborated by Bracton. (97. b.) It was certainly a qualification of the severity of the Rule, which would turn the Widow out of that House she might possibly long have occupied with her Husband as its mistress. The Widow had further advantages under the 7th chap. of Mag. Car. These different regulations in favor of the Widow, tended to restore the common Law as it stood in the Reign of Canute. Ubi Maritus habitavit absque lite et absque controversia, habitent uxor et infans ubique absque lite. (LL. Canuti, 70. Ed. Wilkins.)

[186] “The great Third,” says Skene, “shall not be computed, in the division of a second third.” (Reg. Maj. L. 2. c. 16.)

[187] “Qualified Clerk, in life and literature.” (Reg. Maj. L. 2. c. 16.)

[188] “Seeing,” adds Skene, “a College never dies.” (Reg. Maj. L. 2. c. 16.)

[189] “If the Husband gave the Church to any Religious House, after his decease his Heir shall deliver the church to the Wife, so that during all the days of her life she may have the right of Presentation thereof.” (Reg. Majest. L. 2. c. 16.)

[190] From a Law of Edmund, which is in every sense of the word a most singular specimen of legislation, the translator makes the following extract:—Si eam (the wife) ex terra illa ducere velit in alterius Thani regionem, tunc sponsio ipsius sit quam Amici paciscantur, ut Maritus ejus nullam illi injuriam inferat, et si illa delictum commiserit, ut possint esse propinquiores emendationi, si illa non habeat unde compenset. (LL. Edm. Ed. Wilkins.) This was certainly a more polite mode of proceeding than Canute allowed. Under his Law, the wife, if guilty of the offence in the lifetime of her Husband, became infamous, forfeited every thing she possessed to her Husband, and lost both her nose and ears. (LL. Canuti—Ibid.)

[191] Parentelam, (vide Spelm. Gloss. ad voc. parentes.) “Parentage and sibness of blude (within degrees defended and forbidden,”) (Reg. Majest. L. 2. c. 16.)

Divorce, generally, is a bar to Dower under the Norman code. (Le Grand Custum. de Norm. c. 102.)

[192] Upon this Rule of Law, Lord Littleton observes, “as the Canonical prohibitions extended so far, that divorces frequently happened, after a cohabitation of many years in a state of wedlock supposed lawful, there was much humanity and equity in this Law,” especially as his Lordship had just observed “such a separation supposed a nullity in the marriage, and the children must in strictness have been bastardised by it,” had it not thus have been tempered and relaxed. (3 Litt. Hist. Hen. 2. p. 126.)

A similar Law forms part of the Modern French code, though clearly the result of different principles—“Dissolution of marriage by Divorce, allowed at Law, shall not deprive the children born of the marriage of any of the advantages which were assured to them by the Laws, or by the marriage contracts of their Father and Mother.” (Code Napoleon, s. 304.)

[193] According to the Norman Code, if the Husband, at the time of the marriage, had no Fee, but his father or Grandfather had been present and consented to the marriage, the wife might be endowed out of the Land of the Father or Grandfather, provided there were no other Heirs: if, however, such Father or Grandfather had other Heirs, then, she was to be endowed out of the portion descending to her Husband. But, if the Father or Grandfather did not consent to the marriage, she was entitled to no Dower out of their Lands. (Le Grand Cust. de Normand. c. 102.)

[194] This is put as a question in the printed text, although the Cottonian and Dr. Milles’s MSS. assert it absolutely, that the wife cannot claim any more in Dower than that of which she has been so endowed. That the printed text is correct seems probable: for we can scarcely suppose the doctrine in question was settled when that contained in the next following passage was unsettled.

[195] The Regiam Majestatem lays it down, that the Father of the Husband shall be compelled to warrant the same to her. (L. 2. c. 16.) Vide Co. Litt. 35. a.

[196] Vide F.N.B. 331.

[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.)

[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.)

[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.)

[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.)

[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.)

[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.)

[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.)

[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.

[205] Vide Sullivan’s Lectures on the Laws of England, p. 149.

[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.)

[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.)

[208] Vide Craig de Jure Feud. p. 349. 354. 368. and also Somner on Gavelkynd.

[209] Primo patris feudum primogenitus filius habeat: Emptiones vero vel deinceps acquisitiones suas det cui magis valit. (LL. Hen. 1. cap. 70.)

[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.)

[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.)

[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.

[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.)

[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.)

[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.)

[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.)

[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.)

[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.)

[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.)

[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.

[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.

[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.)

[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.)

[224] Vide Spelm. Reliq. in libello inscript. Feuds and Tenures by Knight’s Service c. 27. p. 43. and 44. (Al. MS.)

[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.

[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.

[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.)

[228] See Lord Hale’s Comment on this passage, supra note 2. p. 126.

[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).

[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.

[231] Nor yet remit nor diminish the right of the Heir, but only “during their (the wives) lifetime.” (Reg. Maj. L. 2. c. 29.)

[232] Vide D. Craig. Librum de Successions Anglicè versa p. 375. (Al. MS.)

[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.)

[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.

[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.)

[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.)

[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.

[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.

[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.)

[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.)

[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.)