CHAP. XVI.
As a Bastard can have no Heir, unless it be one of his own Body, a question arises respecting a Bastard. If any one has given Land to him, reserving a service or any other thing, and has received his Homage for it, so that the Bastard has died in the Seisin of such Land, without leaving any Heir of his own Body, who is entitled by law to succeed to him, as his Lord cannot for the reasons before stated?[276] But when any one dies intestate, all his chattels are understood to belong to his Lord; and, if he has more Lords than one, each of them shall recover such Chattels, as may be found within his Fee. But all the Effects of a Usurer (whether he make a Will or not) belong to the King.[277] But it is not the Custom for any one, whilst living, to be appealed or convicted of the crime of Usury—but, among other Regal Inquisitions, it is usually inquired[278] and proved, who have died in this Offence,[279] and that by the oaths of twelve lawful Men of the Vicinage. Which being proved in Court, all the Moveables and Chattels which belonged to the deceased Usurer shall be seised to the King’s use, without any regard to the person in whose hands they may be found. His Heir is for the same reason deprived of the Inheritance according to the Law of the Realm, the Inheritance itself reverting to the Lord. It should, however, be observed, that if any one has, during a certain period of his life, been guilty of this Crime, and be publicly accused[280] of it in the Community where he lived, if he desisted from his error before his death, and was penitent, neither he, nor his property, shall after his death be liable to the penalties of Usury. It ought, therefore, to be evident, that a Man has died a Usurer, in order that he may be so adjudged after his death, and his Effects disposed of as those of a Usurer.
CHAP. XVII.
The Ultimate Heir of any person is his Lord.[281] When, therefore, a Man dies without leaving any certain Heir, such, for example, as a Son, or Daughter, or without any such Heir of whom there can exist no doubt,[282] but that he is the nearer and right Heir, the Lords of the Fee may, and indeed, usually do, take the Vacant Inheritances into their hands, and retain them as Escheats,[283] whoever such Lord may be, whether the King, or any other person. But, if any one appear and assert himself to be the right Heir, if by the indulgence of his Lord, or by the King’s precept, he can effect it, he shall prosecute his claim; and thus he may establish his right, if he has any such; but, in the mean time, the Land in question shall remain in the hands of the Lord of the Fee: because, whenever a Lord entertains a doubt concerning the Heir of his Tenant, whether he be the right Heir or not, he may retain the Land until the fact be lawfully proved to him.[284] The same rule is laid down, in a former part of this Treatise, where a doubt arises with respect to the full age or Minority of the Heir. There is, however, this difference, that in the one case, the Inheritance itself is in the mean time to be considered as the Lord’s Escheat: but in the other case, it is not considered to be the Lord’s—nothing, indeed, but the Custody. But if no one should appear to claim the Inheritance in question as Heir, then it shall absolutely revert to the Lord as an Escheat; so that he may dispose of it at his pleasure as his own property. Besides, if a Female Heir, in the Custody of her Lord, be guilty of Incontinence, her Inheritance shall escheat to her Lord, on account of her crime. And if any person be convicted of Felony, or confess his Guilt in Court, deprived by the Law of the Realm of his Inheritance, his Land shall remain to the Lord, as an Escheat.[285] It is to be observed, that if any one hold of the King in Capite, then, as well his Land, as all his Moveables and Chattels, in whose-ever possession they may be found, shall be seised to the King’s use, and the Heir shall be for ever debarred from recovering them. But if an outlaw,[286] or one convicted of Felony, hold of any other person than the King, then also all his Moveables shall belong to the King; his Lands also shall remain in the King’s hands during one year, which period being expired, such Land shall revert to the right Lord, in other words, to him to whose Fee it belongs, the Houses, however, being thrown down, and the Trees extirpated.[287] And, generally speaking, whenever a person has done or said any thing in Court for which he has been, by a Judgment of the Court, disinherited, his Inheritance is accustomed to return as an Escheat to the Lord of the Fee of whom it is held. But a forfeiture, committed by the Son and Heir of any one, shall not disinherit the Father, nor the Brother, nor, indeed, any other person but himself. It should also be added, that when a Man has been condemned of Theft, all his Moveables and Chattels generally devolve on the Sheriff of the County; but his Land, if he has any, shall immediately revert to the Lord of the Fee, without awaiting the year.[288] When any one has been outlawed by the Law of the Land, and has afterwards, by the indulgence of the Prince, been restored to the Peace, he cannot on that account recover his Inheritance, supposing that he or his Heirs possess such, as against his Lord (unless by the mercy and indulgence of the Lord himself.) The King, indeed, is accustomed to remit the pains of Forfeiture and Outlawry, yet cannot he, under colour of this prerogative, infringe upon the rights of others.
CHAP. XVIII.
Of Marriage-hood—the one kind is free, the other, liable to the performance of services.[289] Marriage-hood is called free, when any freeman gives a certain part of his Land with a Woman in Marriage to another, so that such Land be exempt from every kind of service, and acquitted on the part of him and his Heirs, as against the Chief Lord. The Land in question shall enjoy this immunity, even to the third Heir;[290] nor, during the interval, are the Heirs bound to do any Homage for it; but, after the third Heir,[291] the Land again becomes subject to its original services, and Homage shall be received for it, and, if it be part of a Military Fee, the Tenant shall perform the service of the Fee, with reference to the quantity of the Land. But sometimes Land is given in Marriage-hood, saving and reserving the services due to the Chief[292] Lord; and then indeed, the Husband of the Woman and his Heirs must perform the services, with the Exception of Homage, even to the third Heir.[293]
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.