A translation of Glanville

by Ranulf de Glanville

FOOTNOTES

[1] Co. 8. Rep. pref.

[2] Madox’s Exch. 439.

[3] Ibid. 203.

[4] Ibid. 253.

[5] Hume’s Hist.

[6] Mad. Exch. 297.

[7] Ibid. 87.

[8] Hoveden, p. 600.

[9] Mad. Exch. 662.

[10] Hoveden, p. 600. n. 40.

[11] Mad. Exch. 24.

[12] Mad. Exch. 35.

[13] Ibid. 225.

[14] Leg. Anglo-Sax. p. 339.

[15] Hoveden, p. 622, 623. Note 10.

[16] Spelm. Gloss. ad voc. Justitia; and Plowden, 368. b.

[17] Hist. Hen. II.

[18] Selden. opera omnia. 1669.

[19] See 1. Reeves’s Hist. Eng. Law. 223.

[20] Robertson’s Charles 5. Vol. 1. p. 296.

[21] Vide Infra [p. 162]. [Note 2].

[22] Madox’s Exch. 123. and Note.

[23] Reeves’s Hist. Eng. Law. 1. 213.

[24] 4 Inst. 345.

[25] Reeves’s Hist. Eng. Law 225.

[26] Hist. Charles 5. Vol. 1. p. 296.

[27] Plowd. 357.

[28] The introductory part of this [Preface] is in imitation of that of Justinian’s Institutes, and seems strangely to have taken the fancy of the law writers of the age, since Glanville is more or less followed by the Regiam Majestatem, Bracton and Fleta.

[29] “On these last words,” says Lord Littleton, “I would observe, that, as in those days there was no distinct Court of Equity, the Judges of the King’s Court had probably a power of mitigating in some cases the rigour of the Law.” (Hist. of Life Hen. 2. Vol. 3. p. 315. Oct. Ed.) A strong instance in point the Reader will find in L. 7. c. 1. or the present Translation p. 149.

[30] This principle, the very basis of despotism occurs in the Roman code. (Justin. Instit. L. 1. t. 2. s. 6.) It may very justly be questioned, whether it is not here cited ironically. At all events, the passage of our text can scarcely warrant the conclusion the celebrated M. Houard has drawn from it. But the Reader shall have his own words—Le Texte de notre Auteur prouve qu’après la conquête, les Anglois reçurent, de Guillaume le Bâtard, les mêmes Maximes que nous avions jusques-là suivies, a l’égard du Droit exclusif, que nos Rois avoient toujours exercé, de faire les Loix. (Traités sur les coutumes Anglo-Normandes par M. Houard. 1. 378.)

[31] “Now, as out of the old Fields must come the new corn, so our old Books do excellently expound and express this matter, as the Law is holden at this day; and, therefore, Glanville saith, Placitorum aliud est criminale, aliud Civile, where Placitum criminale is Placitum coronæ, and Placitum civile, Placitum commune, named in this Statute.” (Magna Carta.) (Vide 2 Inst. 21.)

[32] LL. Æthelbyrti, c. 1. 2. 3. 4. 5. &c. (Al. MS.)

[33] “The Committers of these Crimes,” says the Regiam Majestatem, “may be punished not only for any fact or deed, but also for the intent and purpose.” (Reg. Maj. L. 1. c. 1.)

[34] Crimen falsi, an expression borrowed from the Civil Law. (Vide Justin. Inst. 4. 18. 7. &c.) Our author explains its import, L. 14. c. 7.

[35] Cap. 2. Hengham Magna, c. 2. p. 7. LL. Canuti R. secul. c. 61. et Somneri Gloss. in voce emenda. (Al. MS.)

The Law of Canute alluded to, is in these words: Irruptio in domum et incendium et furtum manifestum et cædes publica et domini proditio juxta leges humanas sunt inexpiabilia. (Vide LL. Anglo-Saxon. Ed. Wilkins, p. 143.)

[36] Among the Laws of Canute, are some inflicting the punishment of loss of members. (LL. Canuti, c. 15. 33. &c.)

From hence it has been inferred, that Canute first introduced this species of punishment into England.

However that may be, the Conqueror’s Law forms too remarkable a feature in his Legislation to be passed over in silence. It forbids the punishments of death and hanging for any crime, but orders, that the eyes of the offenders should be plucked out, or their feet or hands &c. amputated, ita quod truncus vivus remaneat in signum proditionis et nequitiæ suæ!! (LL. Gul. Conq. p. 218. Ed. Wilkins.)

[37] “Theft and manslaughter,” says the Regiam Majestatem, “belong to the Sheriff when any certain accuser appears: not so when those crimes are taken up by dittay.” (c. 1. L. 1.) “The Sheriff in the Tourn (for that is to be intended) held plea of Theft,” says Lord Coke. But this part of his jurisdiction was taken away by 17. c. Mag. Cart. (Vide 2 Inst. 30-1.)

[38] Medletis, or, as in Harl. Cotton. and Bodl. MSS. melletis. From Bracton it is to be collected, that some instances of this offence fell under the Jurisdiction of Lords of Franchise, and on their default, reverted to the Sheriff; whilst other instances fell under cognizance of the crown, a distinction confirmed by the Reg. Majestatem (vide Bracton 154. B. Reg. Maj. L. 1. c. 2.) The term is said to be derived from the French mesler. (Vide 3 Inst. 66. Spelm. Gloss. and Cowell’s Interpreter.)

[39] The Reg. Maj. makes this allegation a ground of the Sheriff’s Jurisdiction (L. 1. c. 3.) “In this distinction, between the Sheriff’s Jurisdiction and that of the King, we see the reason of the allegation in modern Indictments and Writs, “vi et armis,” “of the king’s crown and dignity,” “the king’s peace,” and “the peace,” this last expression being sufficient, after the peace of the Sheriff had ceased to be distinguished as a separate Jurisdiction.” (Vide Reeves’s Hist. Eng. Law. 1. 113.)

[40] Our author explains this term, B. 9. c. 11.

[41] Recognitiones. Upon the words facere recognitionem, Sir Edward Coke thus comments.—“Cognitio is knowledge or knowledgement, or opinion, and Recognition is a serious acknowledgement, or opinion upon such matters of fact as they shall have in charge, and thereupon the Jurors are called Recognitores Assisæ,” (Vide Co. Litt. 158. b.) Our author treats largely on Recognitions in the [12th Book], to which we refer the reader.

[42] We learn from Bracton, that the Sheriff was in the habit of exercising Jurisdiction over many Pleas which did not belong to him ex officio; but, in such cases, he acted by the King’s precept, not as Sheriff, but as Justiciarius Regis, (Bracton 154. b.) The distinction is important, and seems not unknown to the Grand Custumary of Normandy. (Vide c. 2.)

[43] Breve, a Writ. When causes became so frequent that the king was unable to attend to them, says Craig, he remitted them to the Judge, by means of Instruments containing a brief summary of the chief points. Hence the name Breve. (Craig Jus Feud. L. 2. Dieg. 17, s. 24.) So early as Henry the first we find, that contemptus Brevium was an offence, subjecting the person guilty of it to be amerced to the king. (LL. Hen. 1. c. 14.)

[44] Clamat. Vide Spelm. Gloss. ad voc. Craig Jus Feud. L. 2. Dieg. 17. s. 25. and L. 3. Dieg. 5. s. 2.

[45] Vide Fitz. Nat. Brev. p. 5. Ed. 1687. As this is the first writ we meet with, it may not be improper to observe, that, in rendering the writs, the Translator has for obvious reasons endeavoured to adhere to the technical phraseology generally used in that species of process.

[46] Essonium, an Excuse. Sir Edward Coke derives the term from the French verb essonier or exonier. He tells us, it is all one with what the civilians call excusatio. Sir Henry Spelman mentions the same derivation, and adds, ex, privativum, soing, cura. The Greek word ἐξὸμνυσθαι has been proposed as another derivation, implying an excuse by means of an oath. The term occurs so early as the Assizes of Jerusalem, (c. 58.) So limited is the doctrine of Essoins in the present day, that it will here suffice to observe, there were five principal kinds in the reign of Henry the second; I say principal, because there were necessarily many others of less importance. These, as enumerated by Sir Edward Coke, were; 1. de servitio Regis. 2. In terram sanctam. 3. Ultra mare. 4. De malo lecti. 5. De malo veniendi; the two last being the same as those ex infirmitate de reseantisâ and ex infirmitate veniendi, so frequently mentioned by our author, in the present book. Essoins are said to have been derived to us from the Normans. (Vide Assises of Jerusalem, c. 58. le Grand Custum. de Norm. sparsim. Bracton 336. b. et seq. Fleta L. 6. c. 7. Mirror, 117. et seq. 2 Inst. 125. Spelm. Cowell. Les termes de la ley, &c. &c.)

[47] In affirmance of this period of time, see Articuli super chartas, c. 15. and Lord Coke’s comment. (2 Inst. 567.) The Norman code required the same period to render a summons lawful, Grand Custum. de Norm. c. 49. See also Bracton 334. a. and Fleta L. 6. c. 6. s. 11. 12.

[48] It seems from the Regiam Majestatem, that if the summons were made by one summoner, in the presence of lawful and sufficient witnesses, it was good. These witnesses were to verify the summons, before the defendant could be compelled to answer. (Reg. Maj. L. 1. c. 6.)

[49] Seisina “is borrowed of the French seisine, ‘possessio,’ and so it signifieth in our common Law.” (Cowell ad voc.) Craig concludes, that as we had the term, so we had the doctrine from the French. (Craig Jus Feud. L. 2. Dieg. 7. s. 1.) Sir Edward Coke and Sir Henry Spelman coincided with Cowell and Craig in the derivation. (Co. Litt. 17. a. Spelm. Gloss. ad voc.) The term, it seems, was used, both by the canonists and civilians. (Cowell ubi supra: vide also Index ad Anglo-Sax. LL. verb. saisiare and references there.)

[50] Vide Bracton 367. a.

[51] Vide F.N.B. 36. 37. Ed. 1687.

[52] Duodecimâ manu. The author of the commentaries renders this expression eleven, besides the principal, an interpretation which is more or less confirmed by the following authorities: Co. Litt. 295. a. 2. Inst. 44, and the Diversity of Courts, p. 324. On the other hand, Les Termes de la Ley, in describing the ceremony as applied to the very object of the text, expressly says, that the principal should be accompanied by twelve. (Ibid. ad voc. ley.)

Bracton, when treating of the subject, employs the same expression, and observes, that the land was not to be replevied, before the tenant had waged his law, nor, if he failed in waging it; and he lays it down, that the Tenant could not wage his Law by means of an Attorney constituted for that purpose, but must do it personally. (Bracton 366. a. 410. a.) As to the origin of waging Law, the reader may consult Cowell ad voc. Law and les Termes de la ley ubi supra and Bl. comm. 3. 341. &c.

Before we quit this chapter, it may not be amiss to observe, that Sir Edward Coke refers to it to show, that previous to Magna Carta, he that would make his Law in any Court of Record, must bring with him fideles Testes. (Co. Litt. 168. b.)

[53] Bracton tells us, that it was not necessary that the compurgators should be of the same rank as their Principal: it was sufficient if they were trust-worthy, and of good characters. (Bracton 410. a.)

[54] Mr. Reeves observes, that the waging of Law is not mentioned by Glanville, as a mode of proof for the defendant in civil suits. That judicious writer must be understood, as speaking of that proof, which constituted the defence to the Action.

[55] Vide Mirror, c. 4. s. 7. Bracton 366. a. b. 368. a. b.

[56] Reseantisâ, from the French reseant, or resiant, or when anglicised, resiance, a term which Dr. Johnson explains in his dictionary, as meaning a residence, though, as he remarks, it is now only used in Law. In this, its simple sense, our author has used it, in a subsequent part of his work. (L. 12. c. 7.) Yet it assumes a different meaning, as used by the old English and Scotch Lawyers to denote an Essoin, when it indicated, as Skene expresses it, “a long and old sickness, or a resident, heavy infirmity and sore sickness.” (Regiam Majestatem, L. 1. c. 8.) An observation in the margin of our author informs us, that this Essoin was synonymous with that de malo lecti; in other words, this Essoin was resorted to on account of such a severe indisposition as necessarily confined a man to his house or bed.

[57] Or de via Curiæ, as it is termed in the Norman code. This Essoin was cast, when the party on his way to Court had fallen suddenly sick, and was thereby prevented attending. (Le grand Custum. de Norm. c. 39.)

[58] “Or on another,” according to the Cotton. Bodl. and Dr. Milles’s MSS.

[59] “Fourth,” according to Dr. Milles’s MS. and so it undoubtedly ought to be, as the context evinces.

[60] Vide Infra, [L. 11]. [c. 5].

[61] It should seem, from Bracton and Fleta, that such persons only as were inferior in dignity to Barons, were required to prove the truth of their Essoins by their own oaths. (Bracton 351. b. Fleta L. 6. c. 10. s. 15.) By the 19th c. of Marlbridge, even these persons were relieved from the obligation. (2 Inst. 136.)

[62] Vide Madox’s Excheq. c. 3. s. 3.

[63] The severity of this Law was mitigated by 9 Ed. 3. c. 2. whereby none were to lose their land, by reason of non-plevin. A note to this effect is inserted in the margin of our Author; but the reference to the chapter is erroneous.

[64] “And by two Essoiners,” according to Cotton. and Dr. Milles’s MSS.

[65] Skene explains a languor by “a vehement sickness of body, or of mind.” (Reg. Maj. L. 1. c. 8.)

[66] The text is Homines. The Translator submits that it should be milites, a reading warranted by the latter part of this very writ; and authorised by the concurring testimony of Bracton, Fleta, Grand Custum. of Norm. &c. See also [chapter 28. of the present Book]—where, a similar object being in view, four Knights are directed to be sent.

[67] The Tenant, according to Dr. Milles’s MS.

[68] According to the Bodleian MS. it would stand, he (the Tenant) cannot recover, &c.

[69] “There is,” says the Regiam Majestatem, “another kind of Excuse or Essoin which is necessary, that is, when any one is essoined because he is beyond the water of Forth or of Spey; and, if this Essoin is found lawful, forty days shall be granted to him who is excused.” (Vide Reg. Maj. L. 1. c. 8.) The inconveniences resulting from the abuse of the Essoin in our text were remedied by West. 1. cap. 44. Vide Sir Edward Coke’s Comment. 2 Inst. 251.

[70] And, as this was founded upon a political obligation, it did not extend to excuse the Defendant, if in the service of any other person. (Bracton 336. b.)

[71] Servientes. This term was received in many different senses. Sometimes it meant, persons holding military rank—Sometimes, Vassals or Tenants only—Sometimes, Esquires. It is, in this latter sense, that Lord Littleton and Dr. Brady seem inclined to think it was more generally used (Litt. Hist. Hen. 2. Vol. 3. p. 87.) Mr. Selden, however, has, in his Treatise on Titles of Honor, proved, that there were some very material distinctions between the terms, and that they were far from being synonymous. Dr. Sullivan, when he meets with the word in a Law of the conqueror, explains it as meaning “the lower soldiers, not knighted, who had not yet got lands, but were quartered on the Abbies.” (Lectures on Laws of England, p. 266.) Sir John Skene interprets, what I presume is the same Term, as meaning domestic servants. (Reg. Maj. L. 1. c. 8.) This is, I apprehend, the true meaning of the text, notwithstanding that Servientes, when connected with the terms domini Regis, sometimes meant a particular description of officers, residing in every County, and possessed of an authority, perhaps, not altogether unlike that of Sheriffs or Coroners, after whom, they are enumerated by Bracton. (L. 3. Tr. 2. c. 32.)

[72] Respectus, pro mora, dilatione vel continuatione temporis. In this sense, the term frequently occurs in our old law books. (Vide Reg. Maj. L. 4. c. 20. and Spelm. Gloss. ad voc.) There is in the Register a writ respectu computi vicecomitis habendo, for the respiting a Sheriff’s accounts. There was also respectus Homagii, delaying of Homage. (See Cowell ad voc.)

[73] Terminum. “In the Civil Law,” says Spelman, “it signifieth a day set to the Defendant, and in that sense doth Bracton, Glanville, and some others sometimes use it.” (Reliquiæ Spelmannianæ p. 71.)

[74] The Regiam Majestatem lays down the doctrine of Essoins, nearly word for word with Glanville: but adds one species of Essoin not taken notice of by our author—the being absent at a public fair. (L. 1. c. 8.)

[75] It should rather seem that in Bracton’s time the Summoners only would be amerced. (Bracton 336. a.)

[76] Because, says Bracton, the County Court has for this purpose a Record (Bracton 336. a.) The force of Bracton’s remark will be seen in the sequel.

[77] Tam in civili negotio, quam criminali. (Bracton 336. a.)

[78] There is in the original a marginal reference to the 44th, for the 45th, chap. of West. the 1st.

[79] “Rectatus,” ad rectum vocatus. (Spelm. Glossar. ad voc.) Rectum not unfrequently meant an accusation.

[80] Misericordia, a fine arbitrarily imposed upon offenders, and so called, says Spelman, quod lenissima imponitur misericordia, heavy fines being contradistinguished by the significant term, redemptiones. (Gloss. ad voc. see also Co. Litt. 126. b. and Madox’s Excheq. c. 14.) In our progress through Glanville, we meet with the misericordia—misericordia domini—misericordia vicecomitis, and misericordia domini regis—Vide Infra. [L. 9]. [c. 11]. et not.

[81] Custum. Sir Edward Coke, in his Commentary on the Statute of Gloucester, observes, that “before that Statute at the common Law, no man recovered any costs of suit, either in Plea real, personal, or mixt:” and again, “this Statute was the first that gave costs,” (2 Inst. 288.) In support of this position, he cites the present chapter of our author. It is extremely difficult to discover, how this chapter corroborates Lord Coke’s position. Our author merely recites the opposite and floating opinions of others, and drops the subject, without giving any thing like an opinion of his own. Lord Coke’s doctrine may be correct; but, assuredly, Glanville cannot be cited as one of the authorities, on which that doctrine is built.

[82] Upon the word Appeal, as designating a criminal proceeding, it will suffice to refer those readers not connected with the profession to 4 Black. Comm. p. 312. et seq.

[83] “After the verification of his Essoins,” says the Regiam Majestatem, “he shall have fifteen days for vising and seeing of the Ground or Land,” (Reg. Maj. L. 1. c. 9.)

[84] Visineto—“It should be vicineto. Vicinetum is derived of this word vicinus, and signifieth neighbourhood, or a place near at hand, or a neighbour place. And the reason, wherefore, the Jury must be of the neighbourhood is for that vicinus facta vicini presumitur scire,” (Co. Litt. 158. b.)

[85] “After three lawful Essoins,” says the Reg. Majestatem, “when the parties are passed from the Court to the sight of the Land, the Pursuer shall beware that he give distinctly the sight of the same, conformably to the metes contained in the King’s writ. For if he gives the sight thereof otherwise than is contained in the King’s writ of Right, the writ may be cancelled as null, and of no avail in the Law.” (Reg. Maj. L. 1. c. 9.)

[86] It will not suffice, says Bracton, simply to say, “I demand such Land, as my right,” unless the Demandant make out his right, and shew how, and by what means, it has descended to him. Neither will it suffice to allege, that the Ancestor was seised in his Demesne as of his free Tenement only, or in his Demesne as of Fee only, including, as it does, the freehold and whole possessory right, unless it be added, that he was so seised by right, which comprises the right of Propriety. Nor, again, will these two rights of possession and of propriety, or the droit droit, suffice, unless the Ancestor held the Land in question in his Demesne; for if he held it in service, it will not answer the purpose. Neither will it suffice, that the Ancestor was seised as of Fee, and in right, and in his Demesne, unless it be subjoined that he took the Esplees; because a momentary seisin is not sufficient, without a taking of the Esplees, to found a Suit touching the right of Propriety. Though all these requisites concur, it was still necessary to add the time of the king. (Bracton 372. b. 373. a.)

[87] Bladis signifieth, says Lord Coke, corn or grain whilst it groweth. (2 Inst. 81.)

[88] The judicial combat appears to have been the most ancient mode of terminating controversies known to the northern nations in their original settlements. For Velleius Paterculus, (L. 2. c. 118) apprises us, that all those questions, which were decided among the Romans by legal trial, were terminated among the Germans by arms. It was introduced into most, if not all, of those European nations, whom the Gothic tribes subdued. In unison with their passion for arms, it was consecrated by their superstition. Countenanced by their Princes, and sanctioned not unfrequently by the Clergy, it long kept its ground. (Montesq. Spirit of Laws.) One of the earliest restrictions of the practice, which is said to occur in history, was that imposed by our Henry the First, but this merely prohibited the Trial by combat, in questions concerning property of small value. (Brussel usage des Fiefs, vol. ii. p. 962.) Louis the Seventh, of France, followed this example, and promulgated a similar law. This was imitated by St. Louis; but his regulations extended only to his own demesnes, (Hist. du France par le Père Daniel tom. 5. 259.) It was reserved for the steady and masterly hand of our Henry the Second, to give the death blow to the Trial by combat, by the introduction of the Grand Assise—a remedy which, if my memory does not grossly deceive me, is said by Roger Hoveden, to have been invented by Glanville.

[89] The champion was relieved from the necessity of taking an oath, that he had seen or heard the fact, and that his ancestor desired him to deraign it, by the 41. c. West. 1. Until this alteration of the Law took place “it seldom happened,” says the act, “but that the champion of the Defendant (it should be Demandant, a translation the original French requires) is forsworn.” (2 Inst. 246.)

[90] It is thus, according to Skene’s translation of the Regiam Majestatem—“I sick ane man sayes and proponis against N. that my Father, my guidshir, or my Brother, or Sister, or some other of my Parentage or kindred, was in the possession of sic ane Land by the space of certain zieres and dayes; quhilk lyes in sic ane Towne, be certain meths and marches, betwixt the Lands perteining to sic ane man: quhilk Land I clame to perteine to me heritablie, halden of our Soveraine Lord the King, or of sic ane other Lord. Payand to him zierlie therefore sameikill and to others sameikill. Quhilk lands, with the pertinents, perteins to me heritablie, be discent, or succession, be the death of sic ane other of my blude and consanguinitie, as my awin proper right. The quhilks Lands, with the pertinents, the said N. be force and unjuslie halds fra me, against the Law of the Land; to my great shame and skeath of ten pounds money, mair or lesse. The quhilk gif the said N. denyes. I aske an assise of the indwellers of sic ane Towne or place; and referres my claim to God, and ane gude assise of neighbours. Provyding that, na suspect persons passe upon the said assise. And, mairover, that it sall be lesome to me to say, mair gif need beis.” (L. 1. c. 10.)

[91] “The Trial by Champion in a Writ of Right hath been anciently allowed by the common Law, and the Tenant in a Writ of Right hath election, either to put himself upon the Grand Assise, or upon the Trial by combat, by his Champion with the Champion of the Demandant; which was instituted upon this reason, that in respect the Tenant had lost his Evidences, or that the same were burnt or imbezeled, or that his witnesses were dead, the Law permitted him to try it by combat between his Champion and the Champion of the Demandant, hoping that God would give victory to him that right had; and, of whose party the victory fell out, for him was judgment finally given, for seldom death ensued hereupon (for their weapons were but batounes) victory only sufficed.”

Sir Edward Coke then gives the form of the champions oath; and adds, “the champions are not bound to fight but until the stars appear; and if the Tenant can defend himself until the stars appear, the Tenant shall prevail.” (2 Inst. 246.)

[92] Assisa is derived, by Cowell, from the French asseoir, to sit. The term has a variety of significations. We shall briefly mention some of the chief.—1. It signifieth a Writ, thus assisa of novel disseisin of Juris Utrum, &c. 2. It signified a Jury. 3. It meant a statute or law, thus assisa panis et cervisiæ—assisa de Clarendon, &c. 4. It is used for the court, place, or time, where writs of assise were taken. 5. It meant a certain number. 6. It imported a tax, or tribute. 7. It was used for a fine. (Vide Spelm. Gloss. Anglo-Sax. LL. Ed. Wilkins, p. 328.)

[93] Campionis. “Campio dicitur a campo, because the combat was strucken on the field, and, therefore is called camp-fight, and he must be liber homo.” (2 Inst. 246.) In this derivation Spelman concurs. The reader may consult the latter if desirous of seeing what he terms formula campi seu duelli. (Gloss.)—Also the Mirror, c. 3. s. 24. 25. Bracton, the Assises of Jerusalem, Grand Custumary of Normandy, &c.

[94] Vide Gul. 1. Instituta Saxonice in textu Roffensi, item Somneri Gloss. ad LL. Hen. in voce Bellum. (Al. MS.)

[95] Vide Mirror, c. 4. s. 11.

[96] The Cottonian, Bodleian, and Dr. Milles’s MSS. concur in omitting lawful, yet, that the true reading is as it stands in the Harleian MS. and in the Text, is more than probable, since the son of the Demandant’s champion was to be legitimate, and there can be no reason suggested, why the same rule should not prevail, with respect to the Tenant’s champion. The Rule itself most probably resulted from the warlike spirit of the age, and the desire to keep up the dignity of a species of trial, in which noble-men frequently personally engaged.

[97] From the Norman Code we learn, that the conquered Champion was incompetent as a witness, as a champion, as a juror, &c. (Le Grand Custum. de Norm. sparsim) which indeed coincides with the text of Glanville, in point of substance.

[98] Qui bellum vadiaverit et per judicium defecerit, 60 Sol. emendet (LL. Hen. 1, c. 59 Ed. Wilkins.) The Mirror says 40s. and the Cottonian MS. of Glanville 9s. whilst the sum fixed by the Norman code was 40s. and one penny. (Vide Mirror, c. 3. s. 23. Grand Custumary of Normandy c. 127.)

[99] Recreantisæ. “Now the ancient law was, that the victory should be proclaimed, that he that was vanquished should acknowledge his fault in the audience of the people, or pronounce the horrible word of cravent, in the name of recreantise &c. and presently judgment was to be given, and the recreant should amittere legem &c.” (2 Inst. 247) “And the vanquished is to acknowledge his offence, in the hearing of the people, or speak the horrible word of cravent, in the name of cowardice, or his left foot to be disarmed and uncovered, in sign of Cowardice.” (Mirror, 162 Ed. 1768.) “If he become recreant, that is a crying coward, or craven, he shall for his perjury lose liberam legem. Craven is derived from the Greek word κραυην, a vociferatione: others nearer home of crying and craving forgiveness. And recreantisa is devised of the French recreance, or giving back or cowardice; and sometimes it is called creantia, per antiphrasen, because he that useth it is not faithful but breaketh his oath.” (3 Inst. 221.)

[100] Dominus autem pro quo Duellum subierat amittet penitus quicquid per illud intendebat obtinere. Nec aliquid ulterius ipse vel Heredes sui in querelâ contentionis de cetero poterunt reclamare. (Le Grand Custum. de Normand. c. 127.)

[101] In taking leave of the trial by Duel, the Reader will recall to mind Judge Blackstone’s observation—that, though this species of Trial is much disused, it is still in force, if the parties chuse to abide by it. (3 Comm. 337.)

[102] Coram Justiciis in Banco sedentibus is the much controverted passage of the Text. Mr. Reeves conceives it to mean, before the Justices in open court, observing, that this phrase has been quoted by some persons to shew, that in the time of Glanville, there were Justices de banco, in the modern sense of those words, a construction, he proceeds to remark, which this passage will certainly not warrant. (Hist. Eng. Law, 1. 125. in note.) On the same side with Mr. Reeves we find Mr. Madox, who is, undoubtedly, a very respectable authority, did he not indicate rather too strong an inclination to interpret the passage, in favor of his own hypothesis. (Madox’s Excheq. c. 19.) Lord Hale follows on the same side. “Neither,” says he, “do I find any distinct mention of the court of common Pleas in the time of this king,”—speaking of Henry the second. (Hist. Com. Law, p. 142.) This, it must be confessed, is but negative authority; for though it may possibly be contended, that his Lordship viewed the doctrine of the Text in the same light as Mr. Madox and Mr. Reeves view it, yet, it is more probable, that he had forgotten it, or he otherwise would have noticed, if merely to refute, it. As a strong supporter of a contrary doctrine, we find Lord Coke. (2. Inst. 22. See also pref. to 8 Rep. and Co. Litt. 71. b. and Mr. Hargrave’s note.) The reasons adduced by Mr. Reeves and those who concur with him, appear by no means conclusive; and I think it would be far from difficult to give a complete answer to them, from considering the style and manner of expression peculiar to our author. But as this is purely a speculative point, at least in the present day, I am not anxious to balance it in pulvere scholastico, as Mr. Madox professes to do it, but follow the high authority of Lord Coke, without pretending to assert, that even his opinion may not here be liable to question, so very doubtful is any conclusion which we may come to upon the subject!!

[103] Vide Bracton 130. s. 19, 20.—Fleta 43. s. 4. and Britton c. 5. s. 7. and Infra, [L. 7]. [c. 17]. &c.

[104] But the Cottonian and Dr. Milles’s MSS. concur in stating it to be, to the Vicinage. That the printed text of Glanville is correct, seems unquestionable, as he mentions a reference to the Vicinage, after that to the kindred had failed. All this is clear: but according to the MS. alluded to, a reference must be made to the Vicinage, after the Vicinage, which is assuredly absurd. To this may be added, that the printed text corresponds with another part of Glanville, where an object, not altogether dissimilar, is in view. Vide L. 5. c. 4.

[105] Mr. Reeves thinks the term magna in the present passage an interpolation, because the Cottonian, Bodleian, and Harleian MSS. omit the word. It is with reluctance I differ from a writer, to whom the profession is under such very considerable obligations—but I submit, 1st, That the word magna had occurred in the preceding chapter, and all these MSS. had concurred in admitting it. 2ndly, That the connection of the subject shews the Assise spoken of in the two places, to be one and the same proceeding. 3rdly, That in numberless other passages our author characterises this Assise by the term magna, and most, if not all, of the MSS. admit it in such passages. 4thly, That the Regiam Majestatem, the Mirror, the Diversity of Courts, Bracton, Fleta, Lord Coke, Judge Blackstone, Cowell, Spelman, Madox, and many others, always speak of this proceeding under the term Grand Assise; and lastly, that as the word assisa had a variety of meanings, it seems no less consistent with clearness of expression, than compatible with the dignity of a proceeding, intended in its object to effect so remarkable a revolution in our judicial polity, as the abolishing of the Duel, to attach some honorable term of distinction to it.

[106] Status integritati tam salubriter. Our Author alludes to the consequences that befel the conquered champion: he lost his life, or his law &c. But, in losing his law, his condition or state in society, as a civil character, was affected, being no longer capable of waging the Duel for another &c. The Assise, says he, is so regardful of the lives of men—of their condition, as civil Beings, that it exposes neither the one nor the other to any danger.

The whole chapter is sufficiently crabbed and quaint: indeed, the most difficult parts of the whole work are those in which the author has aimed at being elegant.

This observation applies with particular force to our Author’s [Preface].

[107] See Note page 40.

[108] Sextarii. Vide Spelm. Gloss. ad vocem.

[109] Stikis. A stike seems to be 25, sic dicta quod trajecto vimine, (quod stic dicimus) connectebantur. (Spelm. Gloss. ad voc. stica.)

[110] Vide F.N.B. 9.

[111] A Constitution, an Institution, an Assise, were promiscuously employed to designate a Statute or Law.

[112] “All the persons suspect to either of the party,” says the Regiam Majestatem, “shall be repelled.” (Vide Reg. Majestatem, L. 1. c. 10.) See also Bracton 185. a.

[113] “The absence of either of the Parties shall not stay the Assise to proceed, seeing they did consent that the matter should pass to the knowledge of an Assise.” (Regiam Majestatem, L. 1. c. 12.)

[114] Concerning this mode of supplying the Jurors, termed in our old Law Books afforciament, the Reader may consult the Mirror, c. 4. s. 24.—Bracton L. 4. c. 19.—Britton p. 136.—Fleta 4. c. 9. s. 9. and Mr. Kelham’s Translation of Britton’s Pleas of the Crown. Note 22. p. 35.

[115] The Reader will remark the singular coincidence, in many respects, between the two proceedings, the Duel and the Grand Assise. This was no doubt intentional, and indicated a wise and political tenderness towards the prejudices of the age, still strongly inclining towards the trial by Battle.

[116] “Because,” says the Regiam Majestatem, “the fruits extant and dependant upon the ground are part of the Land and ground.” (L. 1. c. 12.)

[117] It may be here noticed, that the present chapter is one of the authorities to which Lord Coke appeals, in support of his position, that an attaint lay at common Law, both in Pleas real and personal. (2 Inst. 129, 236.)

[118] In commenting upon the Statute de finibus levatis, 27. Ed. 1. Mr. Barrington observes, “the Statute consists of four chapters, and the first states, the great perjury which prevailed among Jurors at this time, which offence in a witness was not now punishable by any Act of Parliament; it may be perhaps thought a reflection on the common Law to assert, that this crime was totally disregarded, but yet we do not hear of any such prosecution, except the attaint of a Jury be considered as such.” (Observ. on Anc. Stat. 176.) It will not, I trust, be considered as a want of respect for the high authority in question, to observe, that the general position intended to be supported, seems to be refuted by the latter part of the passage, if, as I conceive, the Juror was, in those times, of necessity a witness: it was part of his qualification that he was a witness, the two characters being then blended. This is, I submit, evident from the [17th chapter of the present book]. A separation of character seems to have been the gradual effect of posterior times. Nor is this all. The punishment of a Juror, when guilty of perjury, appears from the present chapter of Glanville to have been imposed by an Act of Parliament. If this Act, like most, if not all, of those mentioned in the following pages, be not now extant, it is assuredly no small part of the merit of Glanville, that he has preserved the substance of those public Records, of which no other trace can be found.

[119] Our author seems to allude to the punishment inflicted on the conquered Champion—such Champion’s cowardice being esteemed a species of perjury, as Lord Coke informs us, with which the perjury of the Jurors in the assise was commensurate. The same principle pervades the Norman Code—Omnes autem illi, qui perjurio vel læsione fidei sunt infames, ab hoc etiam sunt repellendi; et omnes illi qui in bello succubuerunt. (Le Grand Custum. de Normand. c. 62.)

[120] This R. should be N.

[121] Commodatam, locatam, &c. The Reader will recognise these Terms as borrowed from the Roman Law.

In the [tenth Book], our author resumes the discussion of them.

[122] Warrantum. Sir Henry Spelman is inclined to derive this Term from the Saxon Primitive War, arma, telum, defensio, &c. Dr. Sullivan tells us, it was derived from War, because, in real Actions, the Trial was of old by Combat. Dr. Cowell, however, prefers deriving warrantia from the French garantie or garant. The Doctor notices the stipulatio of the Civilians, but, as he observes, “this reacheth not so far as our warranty.” The term, it seems, is of great antiquity, and is said not to have been unknown to the Longobardi in their original settlements. (Spelm. Gloss. ad voc. and Cowell’s Interpreter, ad voc. and Sullivan’s Lectures, 119.) It does not fall within the scope of these notes, to bring the Law down to the present day.—The translator would otherwise have availed himself largely of Bracton’s 5th book. Fleta L. 5. c. 4. Britton 197, &c. Co. Litt. 364. b. et seq. and Mr. Butler’s admirable annotations.

[123] Escambium, a term used in Domesday. Sir Edward Coke, in speaking of a warranty, observes, that it is a covenant real, annexed to Lands, whereby a man and his heirs are bound to warrant the same “and to yield other Lands and Tenements (which in old books is called in Excambio) to the value of those that shall be evicted by a former title.” (See Co. Litt. 365. a. and 51 b.) It should seem from Bracton, that if the warrantor had not sufficient property to make a full restitution, he was to do so as far as his property extended, and the Tenant was to wait, until better times, for the deficiency. If the Warrantor had no property, he was not, from that circumstance, to be entirely absolved from making restitution, whilst there was any probability of his inheriting property from that person, on account of whom he was called to warrant.

On the other hand, he was not bound to warrant the deed of his ancestor, at the expense of any purchase made by himself.—Nor was the recompense to be estimated, beyond the value of the property at the time it was originally warranted.—Nor was one of many warrantors, required to bear the burthen solely, the others being obliged to contribute, (Bracton 394. b. 395. a. See also le Grand Custum. de Norm. c. 50.)

[124] “At the day assigned to the warrantor for appearance, he may essoin himself, or not essoin himself.

“If he neither appears, nor sends an Essoin, the power and benefit of the Law shall be denied to him which is granted to others: for it is an unseemly thing and an iniquity (that he being summoned, appears not by himself nor by another.)” (Reg. Maj. L. 1, c. 21.)

[125] Having laid down the same doctrine, the Regiam Majestatem adds, “it is so to be understood of all other things debateable, whereof the Warrantor is not called in lawful time.” (L. 1. c. 32.)

[126] Knowledge, according to the Harl. and Bodl. MSS.

[127] Attachiabitur. Attachiare is said to be derived from the French attacher. It differed from arrestere in many respects. An Arrest, say the old Books, proceeds out of the inferior courts by precept; an attachment, out of the superior courts by precept, or writ. (Lamb. Eiren. L. 1. c. 16.) An Arrest lies only against the body of a Man; an Attachment, sometimes against the goods only. Thus Kitch. (fol. 279. b.) says, a man may attach a cow; and, in another case, that a man may be attached by a hundred sheep; and it is sometimes awarded against the body and goods together. An Attachment is said to differ from a capias, because the former is more general and extends to the taking of the goods, a capias extending to the body only. An Attachment is laid down as differing from a Distress, inasmuch as it is a Process enumerated to issue, previous to a distress. Thus far our old law Books, (vide Termes de la ley ad voc. attach. Cowell’s Interpreter and Spelman’s Glossary.)

[128] Advocationibus. “Advocatio,” says Sir Wm. Blackstone, “signifies in Clientelam recipere, the taking into protection, and therefore is synonymous with Patronage, Patronatus.” (2 Comm. 21.) With this concurs Lord Coke—“Advocatio signifying an advowing, or taking into protection, is as much as jus patronatûs.” Again “In Britton Cap. 92. The Patron is called avow, and the Patrons advocati, for that they be either founders or maintainers, or Benefactors of the church, either by building, donation, or increasing of it, in which respect they were also called patroni, and the advowson jus patronatûs.” His Lordship cites Bracton L. 4. fol. 240. Fleta L. 5. c. 14. (see Co. Litt. 17. b. and 119. b. Cowell ad voc. and Spelm. Gloss. ad voc.)

[129] Personam, a Parson. (Vide Co. Litt. 300. a. b. Bl. Comm. 1. 383.) Cowell derives the word from the French personne.

[130] L. 13. C. 18. et seq.

[131] That is, according to the Cottonian and Dr. Milles’s MSS. the person who has deforced the advowson of the church.

[132] The Advowson, Bodl. and Cotton. MSS.

[133] During the 15 days, Cotton, and Dr. Milles’s MSS.

[134] “Replegiare is compounded of re and plegiare, as much as to say, to redeliver upon pledges or Sureties.” (Co. Litt. 145. b.).

[135] Mr. Madox informs us, when speaking of the King’s Debtor, “If he was a Clergyman, and had no lay Fee, whereby he might be distrained, writs were wont to issue to the Bishop of the Diocese, commanding him to distrain such Debtor, by his Ecclesiastical Benefices. Many of these writs had in them a clause importing, that if the Bishop failed to make due Execution, the King would cause the Debt to be levied on the Bishop’s Barony.” (Madox’s Excheq. c. 23.)

[136] He should not lose his church, according to the Regiam Majestatem, (L. 3. c. 33.)

[137] The unsuccessful party.

[138] The Harl., Bodl. and Cotton. MSS. concur in introducing not into this passage.

[139] Vide F.N.B. 89.

[140] Villenagium. “Villein is from the French word Villaine, and that, à villâ, quia villæ adscriptus est.”—“Villenagium, (as in like cases hath been said where the termination is in age) is the service of a Bondman. And yet, a freeman may do the service of him that is bond.” (Co. Litt. 116. a. See also Cowell ad voc. and Mirror, c. 2. s. 28.)

[141] Nativum. In the [6th chapter of the present Book] our Author explains the sense in which he uses the term—nativi à primâ nativitate suâ. “In Glanville,” says Lord Littleton, “the nativi are comprehended under the Term Villenagium, which is used by that Author synonymously with Servitude, and in opposition to freedom, as a state, not a tenure.” (3 Hist. Hen. 2. 189.) Upon the Term nativus, Sir Edward Coke observes, “in the common Law he is called nativus, quia pro majore parte natus est servus.” (Co. Litt. sed vide Craig L. 1. Dieg. 4. s. 6.)

[142] In this the Mirror, (c. 2. s. 28.) concurs.

[143] Vide F.N.B. 171, 172.

[144] Proclamat, according to the Bodl. MS., which I follow, proclamo, appello, provoco, &c. (Spelm. Gloss. ad voc.)

[145] “Yet,” says the Mirror, “if the Defendant can shew a free stock of his Ancestors, either in the conception, or in the birth, the Defendant hath always been accounted for a freeman, although his Father, Mother, Brother, and Cousins, and all his Parentage, acknowledge themselves to be the Plaintiff’s Villeins, and do testify the Defendant to be a Villein.” (Mirror, c. 3. s. 23.)

We must suppose that this was an improvement posterior to the time of Glanville, since though some part of the Mirror was probably written before the conquest, the other part was written subsequently to the Reign of Henry the 2nd. Few ancient law books would perhaps stand higher than the Mirror, could we clearly ascertain what was original, what was superadded. At present, one part of the work is often a direct refutation of another part.

[146] “It shall be tried by an Assise,” says the Reg. Majestatem, (L. 2. c. 11.)

[147] “Acknowledge him to be related to them, whilst those produced by the other party should”—Added by Cotton., Bodl. and Dr. Milles’s MSS.

[148] “Or to disprove it.” Bodl. and Dr. Milles’s MSS. The Regiam Majestatem is yet more unrestrained—“But, it is to be noted, that single combat shall not have place in any plea, to prove or disprove the liberty or Estate of any man.” (L. 2. c. 11.)

[149] The Mirror enumerates many other modes by which a Villein was enfranchised, besides those stated by Glanville, which appear rather to be put for examples, than as comprising all the instances of emancipation; and the Mirror confirms most, if not all, of the Examples in the text. (c. 2. s. 28.) The Regiam Majestatem informs us, that Holy Orders enfranchised, if taken with the consent of the Lord. The Villein was also enfranchised, if the Lord seduced his wife, for the Law permitted the Villein to receive no other amends. The Villein was likewise emancipated, if the Lord drew blood of him, or, if the Lord refused to bail him, either in a civil or criminal action in which he was afterwards cleared by Trial. (Regiam Majestatem, L. 2. c. 12.) The act of enfranchisement, when not arising by implication of Law, of which description many of the instances appear to be, was, in ancient times and before writing was common, accompanied by much publicity and ceremony. Qui servum suum liberum facit in Ecclesiâ, vel Mercato, vel Comitatu, vel Hundredo, coram testibus et palam faciat, et liberas ei vias et portas conscribit apertas, et lanceam et gladium vel quæ liberorum arma in manibus ei ponat. (Anglo-Sax. LL. Ed. Wilkins.) When writing became common, the method was, by the Lord’s Deed expressly enfranchising the Villein. Upon the subject of Villenage, Fortescue’s words are no less remarkable for the truth and beauty of the sentiment they express, than singular, when it is considered that they were addressed to a Prince. Ab homine et pro vitio introducta est servitus: sed Libertas à Deo hominis est insita naturæ. Quare ipsi ab homine sublata semper redire gliscit, ut facit omne quod libertate naturali privatur. (de laudibus legum Angliæ, c. 42.)

[150] “Except he received his liberty and was made free with the Licence, good-will, and special command of the King.” (Reg. Maj. L. 2. c. 12.) Lord Littleton ascribes the rule in the text, to a jealousy of judicial proceedings. (3 Hist. Hen. 2. p. 192.) It more probably originated from the chivalric pride of the times. As the great Lords often personally engaged in the combat, their own importance was increased by keeping up the dignity of this mode of Trial.

[151] Bracton L. 1. fol. 6. b. 7. a. But even this period would not operate as a bar to the Lord, if within the year clameum suum qualitercunque apposuerit.—“If he remained quietly” are the words of the Regiam Majestatem, during a year and a day in a privileged Town he became free—but out of a privileged town seven years was the period—but this latter prescription held not good against the King. (L. 2. c. 12.)

[152] Villa privilegiata. Item, says a Law of the Conqueror, si servi permanserint sine calumniâ per annum et diem in civitatibus nostris vel in burgis in muro vallatis, vel in castris nostris, à die illâ liberi efficiuntur, et liberi à jugo servitutis suæ sint in perpetuum. (LL. Gul. Conq. 66. Ed. Wilkins, p. 229.) “By privileged Town is meant a Town that had Franchises by prescription or charter—and this communication of liberty from thence to a Villein residing among them so short a time, shews the high regard to the Law of such corporations, and likewise a desire to favor enfranchisement, as much as the settled rules of property would admit.” (3 Hist. Hen. 2. p. 191. Litt.) This part of our Author’s text is considerably elucidated by Fleta, L. 4. c. 11. s. 11. and Co. Litt. 137. b.

[153] Gyldam, from the Saxon geldan and gildan. Gildare occurs in Domesday frequently pro solvere, reddere. (Vide Spelman Gloss.)

[154] “Those are Villeins who are begot of Villeins and Niefs in servitude, whether born in matrimony or out of matrimony; those also are Villeins who are begotten of Villeins and born of free-women in matrimony, and those are Villeins who are begotten of a freeman and a Nief and born out of matrimony.” (Mirror, c. 2. s. 28. See also Bracton fols. 4. 5. and Fleta L. 1. c. 3.)

[155] From the extreme brevity and quaintness of the original, it is a matter of some doubt, what the true meaning of the passage is. Lord Littleton gives the passage thus. “We are told by Glanville, that in his time, if a freeman married a woman born in Villenage and who actually lived in that state, he lost thereby the benefit of the Law (that is all the legal rights of a freeman,) and was considered as a Villein by birth, during the lifetime of his wife, on account of her Villenage.” This, however, is at best but a loose paraphrase of Glanville. His Lordship was aware of it, and to confirm his representation of what is said, as he terms it, so indistinctly by Glanville, he refers to Bracton, fol. 5. Mr. Reeves makes this severe penalty upon the Husband to arise, not from the wife living in a state of Villenage, but her holding property in Villenage. The fact is, the text expresses neither Lord Littleton’s Explanation, nor that given by Mr. Reeves. I do not flatter myself to have succeeded better. In Britton’s time, the wife was enfranchised during the coverture. (78. b.) Vide Co. Litt. 123. a. and 137. b. and Mr. Hargrave’s notes thereon.

[156] “This,” exclaims Lord Littleton, “was absolutely putting children upon the same foot as cattle, or other stock on a farm, without the regard that is due to the inherent freedom and dignity of human nature.” (3 Hist. Hen. 2. p. 191.)

[157] On the subject of the present Book in general, see Bracton fol. 92 et seq. and Fleta L. 5. c. 23. et seq.

[158] Dos, dower. “Dos is derived,” says Sir Edward Coke, “ex donatione, et est quasi donarium.” (Co. Litt. 30. b.) Cowell and Spelman, however, both deduce it from the French douaire. (Cowell and Spelman’s Gloss. ad voc.) The real objects of Dower are sustenance for the wife, and nurture and education for the children. (Fleta L. 5. Cap. 23.) The Romans were not in the habit of endowing their wives. When, therefore, Tacitus met with this peculiarity among the Germans, he was struck with it. Dotem non Uxor marito sed uxori maritus affert. (Tacit. de mor. German. 18.) Though Dower was unknown to the Romans, it seems to have been in use amongst the ancient Hebrews, (Gen. 34. 12. Exodus 22. 16. et al.) Nor was it unknown to the Grecians, if we may judge from that part of the Odyssey where Vulcan reclaims the Dower he had given to his frail wife. It seems to have been known to the ancient Gauls, (Cæsar, de bello Gallico L. 6. c. 18.) And to the Cantabri, (Strabo L. 3.) Craig, however, doubts whether there was any such thing as dower amongst the ancient Northern Nations. (Jus Feud. L. 2. Dieg. 14.) The Goths did not allow Dower to exceed a tenth. (Wisegoth. L. 3. t. 1. l. 4.)

The Assises of Jerusalem gave a half, (c. 187.)—the same portion as the Laws of the Ancient Duchy of Burgundy—(Chass. consuet. ducat. Burg. rub. 4. s. 6. col. 580.) The Saxons (LL. tit. 8.) præter dotem quam in nuptiis adepta est, allowed the half of what the Husband and Wife subsequently acquired. A Law of Edmund gave the half. (LL. Edm.) The Longobardi allowed Dower to extend to the fourth part. (L. 2. tit. 4.) The English, the Scotch, and the Normans, following in this respect the Sicilians and Neapolitans, have allowed Dower to extend to a third. (Vide LL. Hen. 1. 70. Ed. Wilkins.—Le Grand Custum. de Norm. c. 102.—the Regiam Majm. L. 2. c. 16.)

[159] Tempore desponsationis. Affiance and Marriage seem to be perfectly distinct things in the Civil and Canon Laws. (Vide Lyndw. Provinc. 271.) but our law books, it is said, use the terms promiscuously, as being synonymous. (See Co. Litt. 34. a. and Mr. Hargrave’s note.)

[160] Or at the Door of the Monastery, say the Mirror and Lord Coke. (Mirror. c. 1. s. 3. Co. Litt. 34. a.) The reason for requiring the endowment to be made at the door of these places was to give publicity to the transaction. (Bracton 92. a. Fleta L. 5. c. 23.)

[161] Tempore matrimonii is the expression of the Grand Norman Custumary, (c. 102.) and of the Regiam Majestatem (L. 2. c. 16.) and die quo eam desponsavit is the language of Bracton (92. a.) and Fleta (L. 5. c. 24.) notwithstanding that the 7th chapter of Magna Carta enlarged the widow’s claim to a third part of all such lands as the Husband is seised of in vita sua or, as it has been translated, during the coverture; and thus it has stood ever since, though not without having been materially encroached upon, by the comparatively modern doctrine of Trusts.

[162] For this purpose our Author gives us the form of a Writ, [Chapter 18th of the present Book].

[163] “Lest, by such liberal endowments, the Lord should be defrauded of his wardships and other feudal profits.” (2 Bl. Com. 133. See also Grand Cust. de Norm. c. 18.) It is a remarkable peculiarity of Legislation, that the same Law is frequently the result of principles the most different—thus, the modern French code tells us, that it will not allow the Dowry to be augmented during the marriage. (Code Napoleon s. 1543.)

[164] Questus, more properly, says Spelman, quæstus from quæro, purchased Lands, contradistinguished to Lands acquired by inheritance. (Vide Spelm. Gloss. ad voc. and Co. Litt. 18. a.) Purchased Lands were designated under the feudal Law by the feudum novum. (Craig Jus feud. L. 1. Dieg. 10. s. 13.)

[165] It is curious to observe the fluctuations of Law. Though Glanville in the text expressly lays it down, that a Woman may be endowed of chattels, or money, which, indeed, could have been the only mode of endowing in the still more distant ages of Antiquity, yet this was denied to be law in the Reign of Henry the fourth, (7. H. 4. 13. b.) The Doctrine of the Courts of Equity in the present day, in admitting equitable bars, seems, in point of substance, to revive the law as laid down by Glanville. The doctrine of the text is confirmed by the Regiam Majestatem, and Fleta: but the latter informs us, that Dowers, of the kind now under discussion, were only so far to be recovered, as the chattels of the deceased extended. (L. 5. c. 23.) Hence probably they fell into disuse.

[166] “Si enim mulier, quando ducta fuerit in uxorem, concessit et consensit se dotari del mobili vel de terra specificata, illud ei debet post decessum mariti sui sufficere, quod in contractu matrimonii concessit se pro dote recipere et consensit.” (Le Grand Custum. de Normand. c. 102.) “Because she was first content therewith,” is the reason the Reg. Maj. gives why she should afterwards be confined strictly to the original designation. (L. 2. c. 16.)

[167] Mulier is the expression which our Author generally uses, to designate the Wife: but, as Lord Coke informs us, this Term was anciently taken for a wife. (2. Inst. 434.)

[168] For which Rule Bracton gives two reasons: 1st. Because the woman has no freehold in her Dower, previously to its being assigned. 2ly. Because she cannot gainsay her Husband. (Bracton 95. b.)

[169] I have followed all the MSS. and the Edition of Glanville published in 1604, in admitting not into the text. I submit, that this Reading is sanctioned not merely by the previous part of this present chapter, but also by the [13th chapter of the present Book]. Yet the Regiam Majestatem makes the validity of such a sale to depend upon the wife’s consent—but, if she made no opposition to it, it seems to have been tantamount to a positive consent. (L. 2. c. 15. 16.) From considering the [13th Chapter of the present Book], one thing seems clear—that in case the Husband disposed of his Wife’s dower, the Heir was bound to render an equivalent to the Purchaser, if the Land was recovered from him, or to the Wife, if it was not so. As to the Heir, therefore, it was immaterial; and so it perhaps might be considered with respect to the Wife and the Purchaser, in case the Heir, as Heir, were solvent; but if otherwise, it was highly material to ascertain, whose right, that of the Wife or that of the Purchaser, was paramount. Bracton is more explicit than our Author; and from him we collect, that a distinction should be made, whether the Dower was originally named, or not. In the former case, the woman could pursue the identical Dower, and wrest it from the hands even of a Purchaser. In the latter she was obliged to resort to the Heir for an Equivalent. In the first case, from the moment the dower was named, the woman acquired a certain jus et dominium as Bracton expresses it, in the property, which accompanied it into whatever hands it afterwards went, and gave her the right of following and reclaiming it. But, if the endowment were general, and no particular land specified, the Wife did not acquire any immediate right, on account of the uncertainty; it being questionable, what identical allotment would fall to her share, until the assignment took place. (Bracton 300. b.)

[170] It seems, that the Widow took possession of the property in the same state in which it existed at the death of her Husband, whether in cultivation, or otherwise, with the fruits, returns, and all other things appertaining to it. (Bracton 98. a. Fleta L. 5. c. 24. s. 2.)

[171] Namely, the Heir of her Husband. (Vide Reg. Maj. L. 2. c. 16.)

[172] Vide F.N.B. 18.

[173] Among the Constitutions of the Ancient kings, the Mirror informs us, “it was ordained, that after a Plaint of wrong be sued, that no other have Jurisdiction in the same place, before the first Plaint be determined: and from thence came this clause in a Writ of Right, Et nisi feceris vicecomes faciat.” (Mirror c. 1. s. 3.)

[174] V. Infra [L. 12]. [c. 7].

[175] “The Feme, who is Demandant, may remove the same by a Tolt into the County; and also may remove the same out of the County into the Common Pleas by a Pone, &c. without shewing any cause in the Writ, as the Demandant shall do in a Writ of Right Patent.” (F.N.B. 15.)

[176] It is thus as literally set down in the Translation of the Regiam Majestatem.—“I claim sic Land, as are part and pertinents of that Land named by my umquhill Husband for my Dourie, quherewith he indowed me at the kirk dore, the samine day when he married me, wherein he was vest and saised at the time he indowed me therewith.” (L. 2. c. 16.)

[177] He may, according to the Regiam Majestatem, be distrained, or attached by Pledges. (L. 2. c. 16.)

[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.)

[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.

[243] Vide F.N.B. 270.

[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.)

[245] Hereon generally, see Bracton 86. b.

[246] Vide Statute of Marlebridge, chap. 16. and Lord Coke’s Comment thereon. (2 Inst. 133.)

[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.

[248] Vide Craig Jus feud. L. 2. D. 17. s. 17. and L. 2. D. 20. s. 17.—Bracton 86. b.

[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.)

[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.

[251] The doctrine of the text is corroborated by the Reg. Maj. L. 2. c. 42. “Every Guardian,” says the Mirror, “is answerable for three things. 1. That he maintain the Infant sufficiently. 2. That he maintain his rights and Inheritance, without waste. 3. That he answer and give satisfaction of the Trespasses done by the Infant.” (Mirror c. 5. s. 1. See also Bracton 87. a. and le Grand Cust. de Norm. c. 33.)

[252] The Translator renders the passage as restored by the Harl., Cotton. and Dr. Milles’s MSS.

[253] Appeletur de Felonia. “Appellum,” says Sir Edward Coke, “signifies an accusation, and, therefore, to appeal a man is as much as to accuse him.” The word appellum is derived of appeller to call: because, appellans vocat reum in judicium, he calleth the Defendant to judgment. (Co. Litt. 287. b. See also 391. a. and Cowell ad voc.) Appeals were known to the Normans. (Grand Custum. c. 68.)

[254] This, though a part of the common Law, had been so frequently violated, that it was felt necessary to make it part of the Great Charter. (2 Inst. 14.)

[255] Bracton L. 1. c. 8. (Al. MS.)

[256] Bracton fo. 5. b.

[257] Or socage, says Bracton, fo. 87. a. See Co. Litt. 77. a.

[258] Vide 2. Inst. 12. 13. With respect to the Practice, alluded to in the text, Lord Littleton observes, that undoubtedly inferior Lords did the same. It likewise, adds his Lordship, appears by the Great Rolls, that the wardships of the crown were sold by King Henry the second, and mention is made of that practice, without any blame, in the charters of King John and Henry the third. (Hist. Hen. 2. Vol. 3. 109.) The above citation from Lord Coke confirms the doctrine of the noble Historian.

[259] If, says a Law of Ina, the Husband and Wife have any children, and the Husband dies, the mother shall retain and nourish her Child. Six shillings shall be given her to enable her to do it; a Cow, in summer, and an Ox, in winter. (LL. Inæ c. 38.)

[260] Nullus Heredipeta sui propinqui, vel extranei periculosæ sane custodiæ committatur. (LL. Hen. 1. c. 70.) Lord Chancellor Macclesfield condemned this Rule, as not grounded upon reason, but as prevailing in barbarous times, before the Nation was civilized.—(2 P. Wms. 262.) On the other hand, Fortescue, (c. 44.) Lord Coke, (Co. Litt. 88. b.) Judge Blackstone, (1 Comm. 461.) Mr. Hargrave, (note to above), and Mr. Christian (ubi supra) approve of this Rule of our Law, so opposite to that prevailing in the Roman Code. Nor has the Great Feudist Craig withheld the testimony of his approbation to it.—(Craig Jus feud. L. 2. D. 20. s. 6.) Dr. Sullivan, however, approves both of our Rule and the civil law Rule, conceiving each adapted to the peculiar state of the people—the one, a barbarous—the other, a civilized people,—(Lect. on Laws of England p. 127.) but this of course is applicable to the origin rather than the continuance of the Rules.

It was in conformity to the rule laid down in the text, that the Eldest Sister was excluded from having the custody of her Younger Sisters. (Bracton fo. 78. a. Fleta L. 3. c. 16. s. 71.)

[261] We are informed by the Regiam Maj. that they were of full age at fourteen complete. (L. 2. c. 48.) At which time, they might, it was supposed, have Husbands, capable of performing the services due for their Fiefs. See Bracton 86. b.

[262] “By Land in this passage, he means, Land that was held by military service.” (3 Litt. Hist. Hen. 2. 103.) If we may judge from a law of Canute, (LL. Canuti 72.) the marriage of Wards was unknown in his time.—Vide Spelm. Reliq. p. 29.

[263] “This,” observes Lord Littleton, “appears to extend equally to all kinds of fiefs for which Homage was done, as to those that were held by Knight’s Service.” (3. Hist. Hen. 2. 104. Vide also Craig Jus feud. L. 2. Dieg. 21. s. 8. Bracton 88. a.)

[264] Henry the 1st expressly promises, in his Charter, that he will take nothing for his consent, nor will he withhold it, unless it be proposed to unite the female to his enemy. (Anglo-Sax. LL. Ed. Wilkins p. 233.) He promises, also, on the death of his Barons, to marry their Daughters with the advice of the other Barons, and that he will not compel widows to marry again; and he enjoins his Barons, to act in a similar manner towards their Tenants. These regulations were but ill observed. From the text, it is perfectly clear, that the right of marriage extended to females only; but Lords subsequently enlarged their claim, and exercised it also over Male Heirs. This is supposed to have grown up in Henry the 3d’s time from a forced construction of those words of Mag. Car. Heredes maritentur sine disparagatione. (Sullivan’s Lectures, p. 130.)

[265] The Heir of her Husband, who must, therefore, have frequently been not only her own Son, but an Infant. This may be considered as one of the absurdities of the Feudal system.

[266] Under the Assises of Jerusalem, the Widow, generally speaking, was not to be compelled to marry again; but if she did, she was to ask the consent of her Lord. (c. 187.) See also the Mirror c. 1. s. 3. and Bracton 88. a.

[267] De corporibus suis forisfecerunt. Forisfacio is, according to Spelman, derived from the French forfaire. (Gloss. ad voc.)

In a proper signification, therefore, and as indicating forfeiture, it rather describes the punishment than the offence. The transition is by no means difficult; and, in its application to the crime, it assumes a new meaning, by a gradation in language not unfrequent. The term frequently occurs in the translations of the Saxon and Norman Laws. (Vide LL. Ed. Conf. c. 32. 10. 36. 12. and Gul. 1. c. 1. Hen. 1. c. 23. Vide also Craig L. 3. D. 3. s. 2. Co. Litt. 58. a. and 2 Inst. 227.) Lord Littleton observes, “this was a severe punishment for the frailty of a single woman, and without example in other Laws: but it undoubtedly arose, not so much from a rigorous sense of the heinousness of the fault, as from the notion of an advantage due to the Lord from the marriage of his ward, which he probably might be deprived of by her being dishonored.” (3 Hist. Hen. 2. p. 119.)

[268] Vide Mag. Car. Cap. 7, and Lord Coke’s comment thereon. (2 Inst. 16.) See also Robinson on Gavelk. 160 and Bracton 313. a.

[269] Lord Littleton thinks, the reason for exempting Widows from the penalty was, that they, not being under the custody of their Lords, their incontinence was no breach of the Duty and reverence due from a Vassal. (3. Hist. Hen. 2. p. 119.) The Mirror coincides with the text. (c. 1. s. 3.) The custom of Gavelkynd is less liberal to the frailty of the widow. (Robins. on Gavelkynd 195.)

[270] Putagium; quasi, says Spelman, puttam agere a Gall. putte, Ital. putta, meretrix. Petrarch. PUTTA SFACCIATA. (Spelm. Gloss. ad voc.)

[271] For the Common Law, says the Mirror, only taketh him to be a Son, whom the marriage proveth to be so. (Mirror p. 70. See also Bracton 63. a. b.)

[272] The Norman Code enumerates four Impediments to Succession.—Bastardy, profession of Religion, forfeiture, and incurable Leprosy. (Le Grand Custum. de Norm. 27.) Bastardy seems to have been a legal objection to a witness under the Assises of Jerusalem. (56.)

[273] A different Law prevailed amongst the ancient Welch people, as Lord Hale deduces, from considering the Statutum Walliæ 12. Ed. 1. and, he thinks, that the Ancient British admitted Bastards to inherit. (1. Hist. Com. Law 219.)

[274] “In the time of Pope Alexander the 3rd, (A.D. 1160—Anno 6. Hen. 2.) this Constitution was made, that children born before solemnization of Matrimony where Matrimony followed, should be as legitimate to inherit unto their ancestors, as those that were born after Matrimony.” (2 Inst. 96.) To this Constitution our Author alludes. The doctrine of the Norman Code is in conformity with the Canon of Alexander. (Grand Custum. c. 27.) The modern French Code allows, under certain restrictions, of the subsequent legitimation of children—even of deceased children, who have left issue. (Code Napoleon s. 331. 332.)

[275] “This decision of Glanville,” observes Lord Littleton, “is very remarkable: as it shews the entire independence of the Law of England on the Canon and Civil Laws in his time.” (3 Litt. Hist. Hen. 2. p. 125.) When this doctrine was, in a subsequent period of our History, attempted to be overturned, it gave rise to the celebrated answer of the Barons recorded in our Statute Book.—Et omnes Comites et Barones unâ voce responderunt, quod nolunt leges Angliæ mutare, quæ hucusque usitatæ sunt et approbatæ. (Stat. of Merton. c. 9. See also 2 Inst. 96.) The Rule, thus memorably defended, has descended untouched to the present day.

[276] “It is answered,” says the Regiam Majestatem, “that no Man may succeed to him, but only the King by the reason aforesaid.” (L. 2. c. 52.) But Bracton resolves the question by informing us, that in such a case, the Land would escheat to the Lord; nor, would the circumstance of Homage having been received, alter the case, quia homagium evanescit heredibus deficientibus ubique; (Bracton 20. b.) a doctrine which has been strangely misinterpreted, and that by a highly respectable writer, who considers the position laid down by Glanville, that the Lord was precluded by receiving Homage of his claim to the Escheat, as not to be relied upon; because, in the very next Reign, the Lord was ultimus heres to a Bastard. In support of this conjecture, the Author in question appeals to Bracton. (Ubi supra.) See Dalrymple on Feuds p. 64. Bracton wrote the Law of the times as it stood when he composed his treatise, which was not in the very next Reign, but towards the latter end of the Reign of Henry the third, the better part of a century later than when Glanville wrote. Had the fact, however, been as assumed, the conclusion drawn from it would by no means be warranted: since, to argue from what is Law at one period in order to refute what was so at another anterior period is the purest sophistry.

[277] The Ancient Romans punished Usury with more severity, than they did Theft. (Cato de re Rusticâ Proem.) The Norman code imposes a forfeiture of all the offender’s property, provided he had been guilty of Usury, within a year and a day before his death. (Grand Custum. de Norm. c. 20.)

By a Law of Edward the Confessor, Usurers were banished the kingdom, and a person convicted of the crime forfeited all his substance, and was to be treated as an outlaw. If the Reader feel any desire to penetrate into the motives that dictated this Law, these are the concluding words of it. Hoc autem asserebat ipse Rex se audiisse in Curia Regis Francorum, dum ibidem moraretur, quod Usura radix omnium vitiorum esset. (LL. Ed. Conf. c. 37.) The doctrine, as laid down by the Mirror, is, that the goods and Chattels of Usurers should remain, as Escheats to the Lords of the Fee. (Mirror c. 1. s. 3.) The Reader will find some curious disquisitions on the subject of Usury in the Ancient Dialog. de Scaccario. (L. 2. s. 10.)

[278] Our Author alludes to the Inquisitions made under the Justices Itinerant, an institution generally ascribed to Henry the 2nd, and, as generally, imagined to have been first ordained in the Great Council at Northampton in the 22nd year of the Reign of that Monarch. Lord Coke, however, ascribes to them a much earlier origin; and from the Records in the Exchequer, it should seem, that there had been Justices Itinerant to hear and determine Civil and Criminal causes, so early as the 18th of Henry the first. Lord Littleton thinks, the first appointment of Justices Itinerant was made by Henry the first, in imitation of a similar Institution in France established by Louis le Gros. Justices Itinerant ad communia placita were continued until the 10th of Edw. the 3rd, when they seem to have given way to Justices of Assise, Nisi prius, Oyer and terminer, and Gaol delivery. (Vide Madox’s Excheq. 96. Litt. Hist. Hen. 2. Vol. 4. 271. Hale’s Hist. Com. Law 140. 168—2 Inst. 497.)

[279] The Mirror confines the punishment to those attainted of Usury after their decease, “but not, if they be attainted thereof in their lifetime, for then they lose but only their moveables; because, by penance and repentance, they may amend and have Heirs.” (Mirror c. 4. s. 12. See also Fleta L. 1. c. 20. s. 28. and Dial. de Scacc. L. 2. s. 10.)

[280] Vide [Book 14]. [Note 2].

[281] Sir Wm. Blackstone, when speaking of the Law of Escheat, informs us, that it is adopted in almost every country, to prevent the robust title of occupancy from again taking place. (2 Bl. Comm. 10.) See Fleta L. 6. c. 1. s. 11. “By common custom and use only,” says Skene, commenting on the Regiam Majestatem, “the King is the last Heir.” (L. 2. c. 55.)

[282] The Translator follows the Reading sanctioned by all the MSS.

[283] See Co. Litt. 13. a. b.

[284] See Bracton 71. b.

[285] How similar the Norman Code was in this respect, the Reader will perceive, on turning to Le Grand Cust. de Norm. c. 24.

[286] Utlagatus, the outlaw, or, in the expressive term of a far distant day, the frendlesman, or, as we should now write it, the friendless man. (Bracton 128. b. See Dial. de scacc. L. 2. s. 10.)

[287] “The reason of this,” says Lord Littleton, “was a supposition, that the Lord, of whom the felon held, was in some degree culpable, for want of a proper care in the choice of his Tenant.” (2 Hist. Hen. 2. p. 118.) It is difficult to feel the force of this reasoning, from the moment fiefs ceased to be given for the life of the feudatory—for what choice, it may be asked, was left to the Lord, when fiefs were hereditary, as they clearly appear to have been when Glanville wrote, and for some time previously. Lord Coke ascribes the rule to another source, laying it down, that originally the King was to have no benefit from the attainder, but was to commit destruction to the property of the offender in detestation of the crime, ut pœna ad paucos, metus ad omnes perveniat. (2 Inst. 36.) But this is as far from being satisfactory, as the reason given by Lord Littleton. Because, as the property had ceased to belong to the offender, any waste committed on it redounded in the first place to the injury of the Lord, and through him to the public, who were both, laying all technical fictions aside, innocent. The punishment to the Tenant was the forfeiture, and not the waste subsequently committed. This cruel policy, or rather impolicy, was abrogated by the 22nd Chapter of Magna Carta. The Reader will consult Lord Coke’s comment on that Chapter, and then judge for himself, whether the year and a day came in lieu of the waste. That they were co-existent seems strongly corroborated by the Custumal of Kent—“The King shall have the year and the waste.” (Robinson on Gavelk. 284. See also Ibid c. 4.) The Mirror is here, as in many other instances, at variance with itself. But Britton appears to consider them as co-existent. (c. 18. s. 6.) and so does the Regiam Majestatem. (L. 2. c. 55.)

Lord Coke has with his usual industry, collected the authorities in favor of his position. Dr. Sullivan may be added to them. (Lectures p. 348.)

[288] The Reader will recollect, that when Glanville wrote, Theft was not an offence against the King’s crown. Chap. 2. L. 1.

[289] Vide [Note 1]. [c. 1. of this Book].—Bracton 21. a. b. and Fleta L. 3. c. 11.

[290] In enumerating these degrees, say Bracton and Fleta, Donatarius primum faciat gradum, heres ejus secundum gradum &c. (Bracton fo. 22. b. Fleta L. 3. c. 11. s. 1.)

[291] Nor, during the interval, are the Heirs bound to do any Homage for it, but, after the third Heir,—omitted by the Harl. and Bodl. MSS.

[292] All the MSS. concur in omitting the word chief.

[293] “And the third Heir shall make Homage, therefore, Ward and Relief, and all his Heirs after him.” (Regiam Majest. L. 2. c. 57.)

[294] “And another fealty, by making of an oath and faith, shall be given and made by the Woman and her Heirs, in the same form and words as Homage should be made.” (Reg. Maj. L. 2. c. 57.)

[295] What our Author treats of, as a consequence of a Man’s receiving lands in marriage-hood, has received considerable extension in succeeding times, and has become known by the Title of the Curtesy of England. But, as Lord Coke observes, it was known to the Scotch and Irish, and, he might have added, to the Normans. Craig cites a passage to shew that it was not unknown to the Roman Code, and Sir Wm. Blackstone quotes an authority to prove that it was in use amongst the ancient Almains or Germans. Like Dower, it is not a provision arising from the compact of the parties, but emanating from the liberality of the Law. As to the evidence of the existence of the offspring, the Regiam Majestatem expressly coincides with our Author, (L. 2. c. 58.) and in this, is followed by Bracton, Fleta, and Britton. Lord Coke, however, asserts, that if born alive, it is sufficient, though not heard to cry, which, indeed, is consistent with reason—for the crying of the child is merely evidence of life—which may as well be furnished by a thousand other circumstances. It is not improbable, that as an adherence to the strict Letter of the ancient Law, as laid down by Glanville, had been found extremely inconvenient, it had, therefore, been silently abrogated, previous to the time of Lord Coke. (See Craig L. 2. D. 22. s. 40. Le Grand Custum. de Norm. c. 120. 2 Bl. Comm. 125. and Co. Litt. 29. b.)

[296] He forfeited it under the Norman Code by a subsequent marriage, with another woman. (Le Grand Custum. de Norm. c. 121.)

[297] All the MSS. concur in introducing not into the text.

[298] In communem scripturam, a chirograph. (Madox’s Exch. c. 19.)

[299] Justiciis domini regis in Banco residentibus—Vide ante page 41. Note 2.

[300] This and a similar passage, in the following chapter, afford strong data, from whence to ascertain the year, when the present work was written. Admitted as it is, on all hands, that it was composed in the Reign of Henry the Second, and it being a strong presumption from the passages in question, that it could not have been written antecedent to the 33d year of such Reign, it merely remains for us to chuse between the 33d, 34th, and 35th years; for on the latter year the Reign terminated. If we follow Sir Henry Spelman’s plan, and divide the intermediate period, we should infer that the present work was written in the 34th year of Henry the Second, in other words, in 1187. Dr. Robertson, though without alleging any reason, says, it was composed about the year 1181. (Hist. Charles. V. vol. 1. p. 296.) Blair’s chronology uses precisely the same assertion.

[301] It seems by no means to be agreed of what quantity an Oxland consisted. (Co. Litt. 69. a. and Mr. Hargrave’s note.)

[302] Toftis. A Toft is said to be the scite where a House formerly stood; and is a word much used in Fines. (Vide Spelm. Gloss. and Cowell’s Interp. ad voc.)

[303] And inrolled omitted by the Bodln. and Dr. Milles’s MSS.

[304] G. Bishop of Ely, I. Bishop of Norwich, and Ranulph de Glanville, &c. Justices in Eyre, in the year 1179, 25 Hen. 2. &c. according to Bodl. MS.

[305] Vide Infra, [L. 9]. [c. 11]. where our author explains the import of the Term.

[306] Frusseto, or, as Lord Coke writes it, frasseto, signifies a wood or ground that is woody. (Co. Litt. 4. b.)

[307] Croftis. A croft is said to be synonymous with what farmers call a close. The term is used by Ingulphus, and derived from the Saxon croft or cruft.

[308] Turbariis. This word is of Saxon origin, and seems to have been used in two senses; first, for the right of taking turf; secondly, for the ground from which the turf itself was taken or dug. (Spelm. Gloss.) The reader will no doubt admire ecclesiastical ingenuity, when he understands, that turbary was comprised under the term lignum, and Tithe consequently claimed in respect of it. (Lyndw. Provinc. p. 100. Annot. ad turvarum.)

[309] Forinseca—So termed, Bracton tells us, quia fit et capitur foris, sive extra servitium quod fit domino capitali. (Bracton fo. 36. a.) This part of the text is rather obscure; and, though I have taken some pains to get at the sense of all the terms Glanville makes use of in this Concord, I cannot flatter myself I have perfectly succeeded.

[310] Faldas. Falda is frequently used, as Spelman informs us, pro libertate faldagii—faldagium being a privilege, which Lords anciently, not unfrequently, reserved to themselves, of setting up folds for sheep in any fields within their manors, the better to feed their flocks, and this, not merely with their own but their Tenants’ sheep, although, in the latter case, the privilege was more usually called secta faldæ.

It should rather seem, that the Tenants sometimes enjoyed such a privilege as against their Lords. Falda i.e. homines villæ debent ponere oves suas in faldam Domini, are the words of an ancient MS. relating to the Monastery of St. Edmund. When the term forinsecas is attached to faldas, a difficulty occurs, which perhaps may be got over by recurring to the doctrine of subinfeudation, so common when Glanville wrote. The privilege in question might have been within the boundaries of the ancient or original manor, whilst it might have been external or without the circuit of a less manor, forming merely a part of the original manor and created in a course of posterior subinfeudation.—This is submitted merely as a conjecture.

[311] Precarias. “Vide Somn. Tract. de Gavelkynd in voc. Benerth, p. 18.” (Al. MS.) “Benerth,” says Lord Coke, “signifieth the service of the plough and cart.” Co. Litt. 86. a. Precariæ are said to be day-works, which the Tenants of some manors are bound, by reason of their tenures, to do for their Lords in Harvest-time; and they are in some places called bind-days for bidden-days, since, as it has been remarked, bidden est precari. This custom is said to be plainly set forth in the Great Book of the Customs of the Monastery of Battel tit. Appelderham fo. 60. an extract from which the reader will find in Spelm. Gloss. ad voc. precariæ. Somner, indeed, considers it a species of Tillage service, performed precario. (Ubi Supra.)

[312] Consuetudines, meaning, perhaps, customary renders, or payments, as Rents. It is well known, that a period of our History has existed, when most of the Rents of the kingdom were paid in this manner.

[313] A similar description occurs in the Reg. Maj. (L. 1. c. 27.) and in Bracton. (L. 2. tr. 5. c. 28.) Lord Coke quotes the latter, as well as the passage in the text, as correct. “This,” observes Mr. Hargrave, “though a just description of fines, according to their original and still apparent import, yet gives a very inadequate idea of them in their modern application. In Glanville’s time, they were really amicable compositions of actual Suits. But for several centuries past fines have been only so in name.” (Co. Litt. 121. a. and note 1.) “For the antiquity of Fines,” says Lord Coke, “it is certain, they were frequent before the Conquest.” (2 Inst. 511.)

[314] V. LL. Gul. 1. Norman. cap. 28. (Al. MS.) The Law alluded to is in these words. Qui placitat in Curia cujuscunque Curia sit, excepto ubi persona Regis est et quis eum sistat super eo quod dixerit, rem quam nolit confiteri, si non potest disrationari per intelligentes homines qui interfuerunt placito et videntes quod non dixerit, recuperit juxta verbum suum. (LL. Anglo-Sax. Ed. Wilkins, p. 224.)

[315] Recordationem Curiæ Regis nulli negare licet alias licebit per intelligibiles homines Placiti. (LL. Hen. 1. c. 31. See also LL. Hen. 1. c. 49 and Co. Litt. 117. b.)

[316] “By the Duel,” omitted by Harl., Bodl. and Dr. Milles’s MSS. although from the context, it must be understood.

[317] The liberty of falsifying a Judgment was allowed by the Assises of Jerusalem. But the person, availing himself of this dangerous privilege, seems to have been obliged to fight all the persons composing the Court, not merely the Judges, but the Suitors, one after the other. Under these circumstances, the privilege would, probably, not often be claimed. (Assis. de Jerusalem, c. 111.)

[318] See Mirror, c. 3. s. 23. A Judge, who had given a false Judgment, is heavily fined to the King by the Laws of Edgar, unless he dared confirm upon his oath, that he knew not how to pass a better sentence. (LL. Edg. c. 3.) By the Laws of the Conqueror, such Judge lost his were, unless he could excuse himself by the same means. (LL. Gul. Conq. c. 15.) By the Laws of Alfred, he was, after having made satisfaction to those he had injured, to forfeit the remainder of his goods to the King, &c. &c. (Mirror, c. 4. s. 18.)

[319] Terminum—Vide ante, p. 22. not. 2.

[320] The Record—Bodl. and Dr. Milles’s MSS.

[321] Baro—hoc est robur beli, says Bracton. The term was formerly used in a variety of senses.—I shall mention some of them—a Man, a hired Soldier, an Officer, a Tenant, a lesser Tenant in chief, a greater Tenant in chief, a Noble, an Ecclesiastical Dignitary, a greater Vassal of an Earl or Prelate, a Knight, a Husband, an Eldest Son, a Burgess, a Citizen, a Robber, &c. (Vide Spelm. Gloss. ad voc. Cowell’s Interp. Craig Jus feud. L. 1. Dieg. 12. s. 15. 16. 2 Inst. 5.—Madox’s Excheq. c. 5. s. 1. Index to Anglo-Sax. LL. Ed. Wilkins, voc. Baro—and authorities referred to by such authors.)

[322] Suit, instead of Court, according to Harl. and Bodl. MSS.

[323] Lords, at first, had but a domestic Jurisdiction, in order to compel their Tenants’ Services, and to maintain peace and order amongst them. Afterwards, in imitation of the Sovereign’s Court, Lords caused Records to be made before their own officers of the transactions which had taken place in their Courts. But, as these Records derived their chief or rather only strength, from the parties voluntarily submitting to them, the authority of the Lords was gradually weakened; and, as murmurs began to increase against the decisions of their Courts, a reference to the King’s Court became the only resort of the Lords. (Traités sur les Coutumes Anglo-Normandes par M. Houard, p. 507. Tom. 1.)

[324] Homage, the result of the Feudal System, was unknown to the Romans; and Spelman thinks, it was unknown to the Anglo-Saxons. (Reliq. p. 34.) However that may be, William the Conqueror is stated to have received it from the Nobles, immediately after the Battle of Hastings. (M. Paris.) It is generally derived from the word homo, which, as well as our synonymous term man, Spelman asserts, to have been used for many ages by the German and Western Nations, for a servant or vassal. (Spelm. ubi supra—sed vide Co. Litt. 64. b.) Homage is divided into liege and feudal: the former was due to the King, the latter to the Lord, of whom the Tenant held his Fee. “The reason of Homage,” says Spelman, “was to preserve the memory of the tenure, and of the duty of the Tenant, by making every new Tenant at his entry to recognise the Interest of his Lord, lest that the feud, being now hereditary, and new Heirs continually succeeding to it, they might by little and little forget their duty and subtracting their services deny at last the tenure itself.” (Spelm. Reliq. 34.) On Homage in general see Bracton 78. b. et seq. Fleta l. 3. c. 16. Littleton’s Tenures and Lord Coke’s Comment. Craig, Spelman, Sullivan, Assises de Jerusalem c. 205. &c. &c. &c.

[325] Relief—quia hereditas, quæ jacens fuit per antecessoris decessum, relevatur in manus heredum et propter factam relevationem facienda erit ab herede quædam præstatio, quæ dicitur relevium. (Vide Bracton 84. et Fleta l. 3. c. 17. s. 1.) Among the Laws of Edward the Confessor, there is a singular one, respecting the Relief of a Tenant who fell in battle. (LL. Edw. Conf. c. 35.) It must, however, be observed that Spelman questions that Law, and strongly contends, that Reliefs were not in use among the Saxons. (Reliq. p. 31.) The Reader will find that point controverted in the preface to Wilkins’s Anglo-Sax. LL. p. 9. The Reader, if desirous of extending his enquiries on Reliefs in general, may consult Bracton 84. et seq. Fleta L. 3. c. 17. Co. Litt. 76. a. 83. a. Black. Com. Sullivan, Craig, Spelman &c. &c. &c.

[326] “Glanville,” observes Lord Coke, “saith, that Women shall not do Homage: but Littleton saith, that a Woman shall do Homage, but she shall not say, Jeo devigne votre feme, but Jeo face à vous homage; and so is Glanville to be understood, that she shall not do complete Homage.” (Co. Litt. 65. b.) Having cited this passage, a noble Historian observes “But I should rather think, that in Glanville’s time single women did none, and that the alteration in the form, which is mentioned by Littleton, was an expedient found afterwards to obviate the objection of an indecency in their Homage: as it was also in the case of Ecclesiastics.” (3 Litt. Hist. Hen. 2. p. 339.) Skene gives a reason for the rule as laid down by Glanville: because Homage especially concerns service in war, (de verb. sign. ad voc. homagium.) He also remarks, that consecrated Bishops did no homage. The reason, says Cowell, may be all one. (Interpreter) But Craig (Jus Feud. 1. 11. 10.) and the Regiam Majestatem (L. 2. c. 60.) expressly coincide with our Author. Indeed, if any doubt could possibly exist, concerning the unconditional meaning of the passage in the text, it would be silenced by the latter part of the present chapter. Having made use of the expression liber homo, our author pointedly adds, masculus, as if solicitous to prevent any possible misconception, especially that very misconception Lord Coke seems to have fallen into, which is likewise refuted by a custom mentioned by Lord Littleton. “From the obligation laid on the Husband to do Homage for the wife, it naturally followed, that the Barony of a wife, as well as every other Fief requiring Homage, was in effect made over to the Husband; and, therefore, in those days many Barons came to Parliament in right of their wives, and by virtue of their marriage, were accounted Peers of the Realm. It has been observed, in this History, that the same notion extended to Dukedoms and Principalities in many parts of the Continent.” (Litt. Hen. 2. p. 339.)

[327] We have observed, that homage was divided into, liege and feudal: it was also divided into, liege and not liege, which division corresponds with the other. Liege is borrowed from the French, as Thaumas informs us. (Cout. de Beauvoisis p. 255.) and seems to have meant a service that was personal and inevitable. (Traités Sur Les Cout. Anglo-Norm. par Houard. p. 511. Tom. 1.)

[328] In performing Homage, the Tenant was to name and specify the particular Tenement, on account of which he did Homage, in order that the Lord might not be imposed upon. (Britton 174. Mirror c. 3. s. 36.)

[329] “In the year 1152, the Emperor Frederic Barbarossa made a Statute, that in every oath of fealty taken to any of his subjects, there should be a reserve of the faith due to him and his successors; which immediately was adopted by several other nations, where the feudal Law was in use, with regard to their sovereigns, and, the omission of that reserve was punished in England by a judicial determination under Edward the first.” (3 Litt. Hen. 3. p. 111.) This reserve was also required by the Book of Feuds L. 2. t. 55. Regiam Maj. L. 2. and Grand Cust. Norm.

[330] Vide Mirror c. 4. s. 10. and 11, and Le Grand Cust. de Norm. c. 14.

[331] As the Tenant could not injure his Lord, neither could the Lord injure his Tenant. If the violation of this obligation was punished on the Tenant’s part, by the loss of his Tenement, the Lord, when the Aggressor, lost his Dominion. (Fleta L. 3. c. 16.)

[332] Parium. Vide 2 Inst. 42. Spelm. Gloss. ad voc.—Pares enim sunt cum unus aliis non subditur Hommagio, Dominatione, vel Antenatione. Hommagio ut Homo subditur Domino suo cui fecit Hommagium Dominatione, ut Homo subditur uxoris domino et ejus primogenito filio: et omnes postnati ratione antenationis. (Grand Custum. de Norm. c. 126.)

[333] This differed from the Norman code, which, in a tone of haughty despotism, released the Lord from the necessity of adducing any testimony. Vox enim sola Domini Curiæ in iis quæ ad ipsum pertinent sufficit ad accusationem subditorum. (Grand Cust. c. 126.) Perhaps a worse principle never disgraced an Eastern code.

[334] That is, the King’s Court.

[335] “Pope Paschal the 2nd,” observes Lord Littleton, “allowed the Bishops elect to do Homage, and take the oath of Fealty, before they were consecrated. This was confirmed by the Constitutions of Clarendon, of which a particular account will be given hereafter; and, from the words of Glanville, it appears, that about the end of Henry the 2nd’s reign Homage was accordingly done by Bishops elect, but he tells us, that after they were consecrated they took the oath of fealty. This was a material difference from what had been settled by the constitutions of Clarendon: and it is surprising, that we have no account of it in the History of the Times.” (Litt. Hen. 2. Vol. 3. 113.)

[336] Pro Domino is the expression of the text, which I have disregarded—but have preferred, what, I submit, must be the true reading, pro Dominio, for so Bracton has it in a passage corroborative of the doctrine of the text. (79. b.) And with this concurs the Regiam Majestatem: “Homage is not made to any man for his band of maintenance, but only to the King.” (L. 2. c. 65.)

[337] See Co. Litt. 67. a. The tenure of parage among the Normans, which seems to have possessed some features in common with that alluded to in the text, required fealty to be done by the Younger to the Elder branch at the sixth, and Homage at the seventh, descent. (Grand Custum. de Norm. c. 30.)

[338] He shall not pay any other Relief, says the Regiam Majestatem. (Vide L. 2. c. 67.)

[339] The mutuality of obligation created by Homage is inculcated, not merely by our own, but other writers. (Vide Assises de Jerusalem c. 99. Coutumes de Beauvoisis c. 58. Mirror c. 4. s. 11. Bracton 78. Fleta L. 3. c. 16. Britton fo. 170. a.) This has induced Lord Littleton (3 Hist. Hen. 2. 121.) and Mr. Watkins (Copyholds Vol. 1. p. 2.) to conclude, that the Feudal System was abhorrent from Tyranny, originated in freedom, and ceased to be free only when it was corrupted.

[340] The Text seems to allude to Homage auncestrel, and pointedly to inculcate an opposite doctrine. Yet, Lord Coke refers to this identical chapter of Glanville, in support of the doctrine of Homage Auncestrel!! (Co. Litt. 101. a.) The Reg. Maj. is rather more consistent with itself, but assists us not materially. “But it is otherwise to be understood of him who has Lands as free Heritage, for the which he is not obliged to make Homage: for, although he lose that Land, the over-Lord giver thereof is not obliged to warrant the same.” (L. 2. c. 67.)

[341] Similar is the doctrine of the Grand Norman Custumary c. 33.

[342] Si autem fœminæ in Custodia fuerint, cum ad annos nubiles pervenerint, per consilium et licentiam domini sui et consilium et consensum amicorum suorum et consanguineorum propinquorum prout generis nobilitas et feudorum valor requisierint debent maritari, et in contractu matrimonii debet iis feodum custodia liberari. (Grand Norm. Cust. c. 33.)

[343] Fleta enumerates the instances in which Reliefs were not to be paid. 1. None was payable for a Fief, acquired by any species of purchase. 2. Nor on a change of the Lord. 3. Nor was a Tenant for life only, to pay a Relief. 4. Nor any man who married a woman who had been in custody—but this differs from the Text. 5. Nor any one from whom his Lord had received a remuneration, on account of custody. 6. Nor any one who had once paid a relief for his Estate. (Fleta L. 3. c. 17. s. 5. et seq.)

[344] Reliefs were in many parts of Normandy certain and fixed: thus a Knight’s fee, or, as it is there termed, feudum loricæ was five pounds, a barony one hundred pounds, land twelve pence an acre, and woody ground 6d. (Grand Cust. c. 34.)

[345] Now, as a Knight’s fee was valued at £20, the sum mentioned in the text was a fourth of it.

[346] It appears to have been thus settled by a Law of the Conqueror. (LL. Gul. Conq. c. 40. Ed. Wilkins.) This, as Mr. Watkins observes, seems to have been no more than accounting to the Lord for the profits of that year, for which he might under certain circumstances, have retained the Lands. (Treat. on Copyh. 1. 231.)

[347] Dr. Sullivan accounts for the advantage which the Knights had obtained, when compared to the great Barons, in having their Reliefs reduced to a certainty, from the number of the Knights who made the strength of the Kingdom and were not to be disobliged; and also from the precarious situation many of the great Lords were in, who had been attached to the cause of Stephen. (Lectures p. 109.)

[348] Statutum. “From the word statutum,” says Dr. Sullivan, commenting upon the Text, “I take it for granted, this change of Reliefs into money was by Act of Parliament.” (Lectures p. 290.)

[349] This was remedied by Magna Carta cap. 2. The Reader may consult Lord Coke’s comment on the words antiquum relevium, where he endeavours to prove, the ancient Relief was certain. (2 Inst. 7. and 8.) Lord Coke, in support of his position, cites a MS. in the Library of Archbishop Parker, which seems almost word for word to coincide with the Laws of the Conqueror. (LL. Gul. Conq. c. 22. 23. 24.) This is the more remarkable, as his Lordship cites from a MS. merely, without describing the nature of it.

[350] Vide Co. Litt. 105. b. and Bracton 84. a.

[351] Vide Co. Litt. 101. a.

[352] Fleta tells us, that an examination ought to precede the Homage, in order to ascertain, whether the person offering himself, was the natural Son of the man to whom he made himself Heir, both with respect to the right of possession, and of propriety &c. &c. that the Lord might not inadvertently be deceived. (L. 3. c. 16. s. 23. 24.)

[353] The Reader will observe the expression, the King retains, whilst an inferior Lord seises or takes, the fee into his hands. In manum regis delapsa est is the expression of Dial. de Scacc. speaking of a fee held in chief, upon the death of its owner. (L. 2. c. 10.) But a passage in Mr. Madox’s Hist. of the Excheq. serves to throw still more light on the text. “Every Honor originally passed from the King, and, upon every change, by death, or otherwise, returned to the King again, and remained in his hand, until he commanded seisin of it to be delivered to his Homager, according to the custom of noble fiefs.” As the Law, by the magic of a fiction, cast the Inheritance on the King the moment his Tenant in Capite died, it was merely necessary for him to retain it—whilst the Law, not interfering on behalf of an inferior Lord, obliged him to seise the Land.

[354] “Aids were, at first, benevolencies of the Vassals, and were given during the great festivity, or the great necessity of the Lord upon three occasions—to wit—when his Son was knighted, when his Daughter was to be married, and when his person was to be ransomed: but what originally flowed from regard, Superiors soon changed into a matter of duty, and on a gratuity erected a right.” (Dalrymp. on feuds, p. 52.)—Speaking of aids, Mr. Madox informs us, that King William the First took 6s. of each Hyde through England—King Henry the First took 3s. for each Hyde, as aid pur fille marier. But he adds, that, for want of requisite notices, he could not speak distinctly of them. (Hist. Exch. c. 15. s. 1.) The Reader may also be referred to Traités sur les Coutumes Anglo-Norm. par M. Houard. 1. 265. 518.

[355] By the Norman Code it was fixed at half the Relief paid by the mesne to the Chief Lord. (Grand Cust. c. 35.)

[356] Contenementum, a word of frequent recurrence in the old Books and Statutes. “Mr. Selden in his table talk says, that the word contenementum signifies the same with countenance, as used by the country people, when intending to receive a person with hospitality, they say—I will see you with the best countenance. So that the meaning of Magna Carta (where this word occurs) is, a man shall not be so fined, but that he may be able to give his neighbour good entertainment.” (Barr. Anc. Stat. p. 12. See also 4 Bl. Comm. 378.)

[357] Aid and relief do not always appear to be used by the old Books, in different senses. Speaking of the aids, mentioned in the present passage of the text, the Norman Code says, Hujusmodi relevia in quibusdam feodis dimidio relevio equalia: et in quibusdam feodis decem solidos. Hence, the ancient custom was to be followed. (Le Grand Cust. de Norm. c. 35.) When Bracton wrote, these aids were considered as matter of grace, rather than of right, being, as he terms them, customs, not services, and personal to the Tenant, not prædial. (36. b.) Judge Blackstone notices the great resemblance, which, in the particular of aids, the Lord and Vassal of the Feudal Law bore to the patron and client of the Roman Law: the patron being entitled to three aids from his client, viz. to marry his Daughter, to pay his Debts, and to redeem his person from captivity. (2 Com. 63.) Generally, see Co. Litt. 76. a. and Mr. Hargrave’s note 1. 2 Inst. 231. 232, and Mirror, c. 1. s. 3.

[358] Homagers. Bodln. MS.

[359] Justiciare. Justiciatio, says the Norman Code, est coarctatio super aliquem facta, ut juri pareat. Having given this definition, it goes on to observe, that it ought not to precede, but follow the offence—that there were three things that authorised it—transgressio termini prefixi—contemptus justiciæ, and irrogatio Injuriæ. We learn from the same source, that this Justiciatio was by distraining the goods, or the Fee, or by taking the body. (Le Grand Custum. de Norm. c. 6.)

[360] F.N.B. 337.

[361] “By the general Assise or Assembly,” meaning the Parliament, according to Judge Blackstone. 1. 148.

[362] Purprestura vel Porprestura—“And because, it is properly, when there is a House builded or an Enclosure made of any part of the King’s Demesnes, or of an Highway, or of a common street, or public water, or such like public thing, it is derived of the French pourpris, which signifieth an enclosure.” (Co. Litt. 277. b.) The term purpresture seems to have been understood by our old Lawyers in three senses. 1st. as committed against the King, by a subject. 2d. as committed by a Tenant, against the Lord of whom he held his fee. 3d. as committed by one neighbour, against another. (Vide Craig Jus feud. L. 1. D. 16. c. 10. and L. 3. D. 5. s. 6. 7. Spelm. Gloss. ad voc. Cowell’s Interp. Manwood’s Forest Laws. p. 169. 176. Grand Norm. Cust. c. 10. &c. &c. and Traités sur les Coutumes Anglo-Norm. par Houard. 1. 387.)

[363] Occupatur. “Occupationes,” says Lord Coke, “are taken for usurpations upon the king, and, it is properly, when one usurpeth upon the king, by using of liberties and franchises which he ought not to have; and, as an unjust Entry upon the king into Lands or Tenements, is called an intrusion, so an unlawful using of franchises or liberties is said an Usurpation: but occupationes in a large sense are taken for purprestures, intrusions, and usurpations.” (2 Inst. 272.) The Reader may also consult Dialog. de Scacc. L. 2. s. 10.

[364] Bracton tells us, that it was, in his time, an Article of the Eyre to inquire, de purpresturis factis super dominum Regem, sive in ferru, sive in mari, sive in aqua dulci, sive infra libertatem, sive extra. (116.) See also 2 Inst. 272. 4 Chap. Stat. de Bigamis. Co. Litt. 293. b. 294. a.

[365] Patriæ. Vide Spelm. Gloss. ad voc. also 3 Bl. Com. 349. and 375. and Mr. Christian’s Note.

[366] Having already spoken of Amercements, we shall here merely remark that in the reigns of William the Conqueror and his Son Rufus, they were no less immoderate, than oppressive. Henry the First was compelled, by the peculiar difficulties of his situation, to make many concessions.—One of which was, that amercements should no longer be assessed, as they had been in his Father’s and Brother’s reigns, to the extent of the whole property of the offender, but should be proportionate to the crime—sicut retro a tempore patris mei et fratris mei in tempore aliorum antecessorum meorum. (LL. Hen. 1. c. 1.) If these words mean any thing, they imply, that Henry merely restored the Common Law, which his Father and Brother had violated. How ill this concession was observed, we may conjecture, from its having been felt necessary to make it part of the great charter. (See 2 Inst. 27.)

[367] V. Gul. Somn. Notas ad LL. 1. Cap. 1. p. 176. (Al. MS.)

[368] Infra Assisam—That is, says Skene, within the time within which his Action should be pursued, or else to be holden as prescribed. (Reg. Maj. L. 2. c. 74.)

[369] Infra Assisam—lawful time, says Skene, so that the Action of Novel Disseisin is not prescribed. (Reg. Maj. L. 2. c. 74.)

[370] Vide F.N.B. 285.

[371] Vide Ante p. 133. Note 1.

[372] The Terms mutui, venditionis, commodato, locato, deposito, are evidently borrowed from the Civil Law. But we are not from hence to conclude, as Bishop Nicholson hastily did, that Glanville apes, as he expresses it, the Roman Code. (Scotch Historical Library, 255.) This, of all faults, is the least imputable to the venerable Glanville.—On the term mutuum see [Note 1]. [p. 204]. Infra.

[373] Vide Justin. Instit. L. 3. tit. 15.

[374] L. 7. c. 16.

[375] The Norman Code divides Pledges into, simplices, and debiti retinentes. An example of the former kind is the following—Ego plegio A. quod reddat B. decem solidos. The effect of such a pledge was, that it ceased with the life of the person entering into it, and descended not upon his Heirs. Neither was there any difference, in this respect, if the pledge was given for the appearance of another in any suit. With respect to the latter kind of pledge, the Term was employed, when the person entering into it made himself answerable for the Debt, and thus stood in the twofold capacity of Debtor and pledge. The effect of this seems to have been, to release the original Debtor, and to render the Representatives of the person entering into it liable to answer it. (Le Grand Custum. de Norm. c. 60. 89. 90.)

[376] The same Rule is laid down in the Norman Code: but the subject is there treated far more diffusely. It seems, by that Code, to have been an obligation imposed upon the Homager, by his tenure, to become pledge for his Lord’s Debts to the extent of a year’s Rent—to become pledge for his person, if in prison—for his prosecuting a suit, or appearing to it, &c. &c. (Grand Custum. c. 60.)

[377] The Regiam Majestatem, on the contrary, lays it down, that he can recover, (L. 3. c. 1.)—a rule that is certainly more consistent with Justice. On the other hand, the Mirror coincides with the text. (c. 2. s. 24.)

[378] Mutuum—quia, ita a me tibi datur, ut ex meo tuum fiat. (Justin. Instit. L. 3. t. 15.) Vinnius terms this bella allusio, non vera vocis originatio. Dr. Wood observes, as to the Term itself, it hath no one particular name in the English language.

[379] With this explanation the Regiam Majestatem (L. 3. c. 2.) and the Grand Norman Custumary (c. 113.) literally coincide—though it differs from that given by Littleton, and followed by Coke, Craig, and Blackstone. (Co. Litt. 205. a. 2 Comm. Bl. 157. Craig Jus Feud. L. 2. D. 6. s. 27.) What is the more remarkable, Lord Coke expressly contrasts the mortuum vadium to the vivum vadium. Vivum autem dicitur vadium quia nonquam moritur ex aliquâ parte quod ex suis proventibus acquiratur. But assuredly, if the term mortgage is to be collected from its forcible contrast to these words, Glanville’s explanation is infinitely preferable to that given by Lord Coke.

[380] Existente termino. This is a palpably false reading—it should be, elapso termino, the term being expired, an expression familiar to Glanville. This suggestion is sanctioned by the Reg. Maj. “the day being bygone,” (L. 3. c. 3.)—by the expression of the text ad terminum in the sentence immediately preceding—by the words of the Writ in the next chapter, “a term which is past”—and, lastly, by a passage in the [Eighth Chapter of this Book], where our Author expressly lays it down, that, before the time fixed for payment, the Creditor cannot claim the Debt. Yet is the reading existente termino preserved in Mr. Houard’s Edition of Glanville, an Edition frequently, but not always, more correct than any of those printed in this Country.

[381] Sir Edward Coke, having been led by his subject to treat of conditions, refers to the present Chapter of our Author. From such plain and simple materials did the complicated doctrine of conditions draw its primary principles!! (Co. Litt. 201. b.)

[382] “In Glanville’s time,” says Sir Wm. Blackstone, “when the universal method of conveyance was by livery of seisin, or corporeal tradition of the Lands, no gage or pledge of Lands was good, unless possession was also delivered to the Creditor”—and, having referred to this part of our Author, he observes, “And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient Law.” (2 Bl. Com. 159.)

[383] This may be accounted for by recollecting that Usury itself, though viewed in a criminal light, was not expressly prohibited. (Ante L. 7. c. 16.) Nor was it punished, if the party amended: but, if he died in the crime, the act had then reached the point of criminality—the offence was complete, and the punishment followed. But, until that moment arrived, Usury, in strictness, was an act rather approaching to a crime, than actually amounting to it. The reasoning was founded upon principles no less artificial than false—the death of the party being purely accidental, and the crime itself being complete, without any reference to such accident, the very instant the party received the usurious remuneration. The doctrine of the Regiam Majestatem, in unison with this reasoning, and contrary to the text of Glanville, expressly forbids a Mortgage, because it was a species of Usury. (c. 5. L. 3.)

The Reader will meet with some curious disquisitions in the Dial. de Scacc. (L. 2. s. 10.) where he will find the doctrine of the text illustrated in the true spirit of the times.

[384] Vide LL. Gul. Norman. c. 28. (Al. MS.) The Law here alluded to, the Reader has already been put in possession of. See p. 170. note 1.

[385] Vide Constitutions of Clarendon. (Anglo-Sax. LL. Ed. Wilkins. 324.)

[386] The Text is not free from difficulty which evidently arises from an omission. I have ventured to introduce the words, “should he, however, deny it, the Creditor.” The Context countenances this conjecture.

[387] A similar Law is to be found amongst those ascribed to the Conqueror. (LL. Gul. Conq. c. 28.)

[388] Commodatum. (Justin. Inst. 3. 15. 2.) A Commodatum differed from a mutuum, because the same person continued to be the owner, and because the same thing was to be returned, and not another of the same quantity or quality, as in a mutuum. (Dig. 13. 6. 8. and 9.) “They have different names in Latin, though not in English,” says Dr. Wood. (Civil Law. Inst.) To avoid the inconvenience and confusion of employing the same term for each, the Translator has called the one a loan, the other a borrowing. The distinction between a gratuitous loan for use, and a simple loan, occurs in the Code Napoleon, which is drawn, as, indeed, may be observed of no small portion of that work, from the Civil Law.

[389] Skene refers to Exodus c. 22. v. 14. 15.

[390] “By him who gave the Loan, and by his Witness,” says the Regiam Majestatem. (L. 3. c. 9.)

[391] “It is answered, he may not repeat it or seek it again, because any loan may not be repeated or called back again, until the use be perfected and fulfilled to the which it was lent.” (Reg. Maj. L. 3. c. 9.) But the modern French Code permits it to be recalled. (S. 1889.)

[392] Vide Bracton fo. 61. b. and Fleta L. 2. c. 58.

[393] Vide Justin. Inst. 3. 24. §. Custum. de Norm. c. 22. and Bracton 61. b. The two chief obligations of the Vendor, as laid down in the present and following chapters, are comprised in a section of the modern French Code—that of delivering, and that of warranting the thing which he sells. (Code Napoleon 1603.)

[394] Quia sine traditione non transferuntur rerum dominia. (Bracton 61. b.)

[395] Arrhæ. In the Civil Law the Arrha or Earnest was given, either simply as a symbol, or mark of the Contract, or, it was given, as Vinnius informs us, as a part of the price. In the former case the purchaser was not permitted to avoid the contract with the loss of his Earnest—in the latter, he was allowed to do so. The Vendor might recede with the loss of twice the value of it. (Dig. 18. 1. 35.—19. 1. 11. 6. Inst. 3. 24. pr.) With respect to the effect of Earnest, as our Law now stands, vide 2. Bl. Comm, 447.

[396] When there is neither writing, Earnest, nor delivery, the parties, says Bracton, may retract. (61. b.)

[397] Pactum enim legem vincit. (LL. Hen. 1. c. 49.) “Contracts legally made have the force of Law between those who have made them.” (Code Napoleon s. 1134.)

[398] If, says a Law of Ina, a person has purchased any thing, and, within thirty days, discover it to be defective, he may restore the thing to the hands of the Vendor, unless the latter will swear, that he knew of no defect in it at the time he sold it. (LL. Inæ. c. 56.)

[399] In Bracton’s time the Vendor forfeited double the Earnest—a rule according with that of the Roman code. (Bracton 62. a.)

[400] “Double the Earnest” was to be forfeited by him according to the Reg. Maj. (L. 3. c. 10.)

[401] Quia re vera qui rem emptori nondum tradidit adhuc ipse dominus erit. Hence—Si post emptionem ante traditionem fundo vendito aliquid per alluvionem vel alio modo accrevit quod commodum ad venditorem pertinebit. (Bracton 62. a.)

[402] Emptor, a palpably false reading, as the context proves: it should be venditor, the vendor. See Bracton 62. a.

[403] Vide Bracton 150. b. et seq.

[404] Vide Mirror c. 3. s. 13. Bracton 151. b. Fleta 55. s. 8. We find that Warrantors were sometimes collusively vouched.

Thus, Champions of acknowledged prowess were named, who, being hired for the purpose, readily entered into the Warranty. When such an instance of collusion took place, the Champion was, according to Bracton and Fleta, to lose a foot and a hand—but, in Britton’s time, the Champion and the person citing him were both liable to death.

[405] The Bodleian and Harleian MSS. say the fourth, omitting the mark of interrogation at the end, and leaving the sentence an absolute assertion; which most probably is the true reading, as it corresponds with the Regiam Majestatem. (L. 3. c. 13.)

[406] No Man, says a Law of the Confessor, shall purchase any thing without the City gate, but shall have the testimony of the Prefect of the City, or of some other respectable person, who can be confided in. (LL. Ed. Conf. 1.) A Law of his predecessor Æthelstan is nearly in the same words, except that it tacitly permits purchases without the City Gate, if they did not exceed twenty denarios. (LL. Æthelst. 12.) Some of the Laws of Edgar are admirably adapted to effect the same object, (LL. Sup. Eadg.) which appears to be constantly kept in view by the different Legislators, who preceded Henry the Second.

[407] Ex locato and ex conducto. “Locatio conductio,” says Dr. Wood, “is one word.” Locator is he that lets out to hire, conductor he that hires. (Justin. Inst. 3. 25. pr.)

[408] Si etiam vacuam invenerit et non obligatam. (Bracton 62. b.)

[409] Responsalis. From some expressions made use of by Bracton and Fleta, it has been conjectured, that an Attorney, an Essoiner, and a Responsalis, differed in some respects. (Bracton 212. b. and Fleta L. 6. c. 11. s. 6. 7.) Of this opinion Lord Coke seems to be. (Co. Litt. 128. a.) Yet, we must be cautious, in applying these distinctions to Glanville; for they may, after all, be the result of a much more recent period. Nor is the reading of Bracton, in the passage alluded to, perfectly free from suspicion.

[410] Sir Edward Coke ascribes this rule to “the policy of the Common Law, that suits might not increase and multiply.” (2 Inst. 249.) Whilst the Mirror lays it down generally, that it is an abuse to answer or appear by Attorney. (Mirror, c. 5. s. 1.)

[411] Mr. Madox, in treating of the Exchequer, informs us, that “in general, accomptants were obliged to come in person to render their accounts. If they made an Attorney to account for them, it was usual to have the King’s leave for it. Sometimes, the accomptant nominated his Attorney before the King: and thereupon the King by his Writ commanded the Treasurer and Barons to admit such person, as Attorney, accordingly. But sometimes, especially towards the latter part of the second period, the Accomptant’s Attorney was admitted by warrant or leave of the Treasurer, Chancellor of the Exchequer, or Barons, or one of them.” (Madox’s Excheq. c. 23. s. 5.) Supposing there was a certain uniformity of proceeding observed in the superior Courts, this extract may furnish us with an idea of the gradual deviations from the strict rule of our text.

[412] The Norman Code lays down a contrary doctrine, asserting that it was not lawful to constitute any Attorney in the absence of the party, unless in the presence of the Prince, whose testimony alone sufficed to make a Record. (Grand. Cust. c. 65.)

[413] Ballivum. It is the opinion of Sir Henry Spelman, that we received the term from the Normans. There is, indeed, frequent mention of such an officer in the Grand Custumary. (c. 4. &c.) But Lord Coke thinks, we received it from the Saxons. It occurs in a law of Edward the Confessor, if it be not an interpolation of a later age. (Ed. Conf. LL. c. 35.) It has been received in a variety of significations—As meaning a Judge, an Officer of the Crown, a Bailiff of a hundred, of a Liberty, and of a Borough, of a Manor and of an Estate. (Spelm. Gloss. ad voc.) Cowell, who deduces the word from the French, thinks our Sheriffs were formerly called Bailiffs, as their Counties are termed Bailiwicks. (Cowell ad voc.) See Fleta L. 2.

[414] Seneschallum—“Is,” says Cowell, “a French word, but borrowed from Germany, being, as Tilius saith, compounded of Schal, i.e. servus aut officialis, and gesnid, i.e. familia. We English it Steward.” (Cowell’s Interp. ad voc. Seneshall. See also Madox’s Excheq. c. 3. s. 6.) “It is derived,” says Lord Coke, “of Sein a house or place and schalc an officer or governor, &c.” (Vide Co. Litt. 61. a. for other derivations.) See Fleta L. 2.

[415] Yet, from the form of the writ which our Author gives us, L. 13. c. 13. it seems perfectly clear, that a Bailiff was allowed to hear a Recognition for his principal. The reason of the distinction, perhaps, might be found in the different nature of the functions—to perform the duty of an Attorney being an active, that of merely hearing a Recognition, of a passive nature—the one, requiring skill—the other, not.

[416] Here is another instance of confusion, arising from the inaccurate manner in which these letters are inserted!

[417] “The Essoin of the Procurator only shall have place, until the procuratory be revoked.” (Reg. Maj. L. 3. c. 16.) Mr. Reeves appears to have viewed the passage of the Text in a different light. (Vide Hist. Eng. Law. 1. 170.)

[418] Vide Mirror, c. 5. s. 5.—Ante 97. Not. 3. and M. Houard’s Traités sur les Coutumes Anglo-Norm. Tom. 1. 451. where he adopts the same reading, as I contend for, and observes that under the ancient Norman Custumary the wife could not reclaim her Dower.

[419] L. 1. c. 12.

[420] I have retained the original word, not merely because I know of no word answering to the complex idea of Skene, but that it is very questionable, whether Skene be correct. He thus interprets the word—“If they dwell in cells, separate from abbies or monasteries.” (Reg. Maj. L. 3. c. 18.) From other authorities, I should rather have inferred, that the cellarii were a species of monks, invested with the power of providing for their Brethren, and regulating the internal part of their monasteries. But this again is with difficulty to be reconciled to the terms, in which one of them is spoken of—secundus pater in monasterio, unless we concur with Spelman, who says, when speaking of the word, crevisse videtur in amplitudinem. (Vide Spelman. Gloss, ad voc.)

[421] The Regiam Majestatem, on the contrary, asserts, that they shall be received, without the Letter of their Abbot or Grand Prior. (L. 3. c. 18.)

[422] Of these Orders the Reader will find some mention in 2 Inst. 431.

[423] “It is answered,” says the Reg. Maj. “he may not do so, because all things are forbidden to a procurator, which are not expressly granted and committed to him.” (L. 3. c. 19.)

[424] Vide L. 6. c. 8.

[425] Vide F.N.B. 2.

[426] Arbelastarium from the French arbalestier. In the distribution of Estates by William the Conqueror, the Arbelastarii were reckoned among those noble and military chiefs, the Peers of the Realm. This appears from some passages in Domesday. (Spelman Gloss. ad voc.)

[427] The Regiam Majestatem and Bracton avail themselves of the same excuse, for declining to enlarge on the subject, though the latter observes, that in demanding a view—in vouching to warranty—in proposing exceptions and in waging the Duel, &c. such Courts followed the King’s Court—(329. b.)

[428] Reseantisam. Vide ante p. 10. Note 1.

[429] With this concur the Mirror, (c. 2. s. 28.) (Bracton 330. a.) and the Grand Custumary of Normandy, (c. 6. and 61.)

[430] Vide 2 Inst. 21.

[431] Vide F.N.B. 21.

[432] Cum totâ sequelâ suâ. Mr. Barrington having observed, that if Villeins were born within a certain District, they and their issue were the Bondmen of the Lord, proceeds thus,—“This explains what frequently occurs in ancient grants of Villeins, cum totâ sequelâ suâ, which, according to Sir James Ware, in his account of the Betaghii, (who were the Irish Villeins,) included not only Children but Nephews, p. 149. See also Madox’s Form. Angl. p. 416.” (Barr. Obs. on Anc. Stat. p. 306.)

[433] Vide F.N.B. 152.

[434] Aisiamenta—from the French aise, voluptas. (Spelm. Gloss. ad voc.)

[435] Bosco. This word sometimes means the wood merely—sometimes it includes the land on which the wood grows. (Co. Litt. 4. b.)

[436] Vide L. 9. c. 14. where a similar writ occurs.

[437] Vide 2 Inst. 311.

[438] Vide ante p. 133. Note 1.—As to the latter part of the present Writ, our author surpasses even himself in quaintness of expression.

[439] Ad Justicias. Justicia, a Justice, or Judge, or, as it has in subsequent times been written, Justiciarius. (Vide Selden op. Omn. 1669. Madox’s Exch. 24. &c.) Mr. Selden considers the use of this term by Glanville as a proof, that the work itself is of the age of Henry the 2nd, as we have already observed, in our introductory address to the Reader.

[440] Vide F.N.B. 90.

[441] This Writ stands also in need of a Transposition of the Capitals to render it intelligible.

[442] Namely, the services really due in respect of the Tenement.

[443] Vide Bracton 252. a. et seq.

[444] Vide F.N.B. 433.

[445] This, Lord Coke informs us, was the 20th of October 1154. (2 Inst. 94.) A limitation of between 30 and 40 years.

[446] Vide F.N.B. 434. In this Writ, says Fitzherbert, it sufficeth, if he were seised the day he went out of the Land and took the Sea, although it was not the day of his death. (Ubi supra.)

[447] “Before this Statute,” says Lord Coke, commenting on Mag. Carta, “the Writs of Assise, of Novel Disseisin and Mortdanc’ were returnable either coram rege, or into the Court of Common Pleas: and this appeareth by Glanville—coram me vel coram Justiciariis meis. But, since this Statute, these Writs are returnable, coram Justiciariis nostris ad Assisas cum in partes illas venerint.” (2 Inst. 24.)

[448] Vide Fitz. N.B. 434.

[449] Though the Writs inserted in the three foregoing Chapters appear to be framed with a view to the death of the Demandant’s Father, yet we are not from thence to infer, that the remedy, now under consideration, was confined in its application to the death of a Parent only, since the Ancestor in a Writ of mort d’auncestor was intended of the Father, Mother, Brother, Sister, Uncle, Aunt, Nephew, or Niece of the Demandant. But here it ended. (See Bracton 254. 261. and 2 Inst. 399.)

[450] “The reason why Assises were more expeditious than other remedies, arose from no Essoin being allowed in them”—says Mr. Barrington, (Observations on Ancient Statutes, p. 105.) which, from the text of Glanville, appears evidently to be an inaccuracy, as a general position.

[451] No one of full age was allowed by the Norman Code to prosecute a mort d’auncestor, unless he had purchased his writ within a year and a day after his Ancestor’s death had been publicly proclaimed. (Grand Cust. c. 99.)

[452] See Bracton 274. a. et seq.

[453] Bracton 270. b.

[454] Bracton 271. b.

[455] Bracton 271. b. and Ante L. 5. c. 5.

[456] Bracton 280. a. and Ante L. 7. c. 13.

[457] Bracton 272. b.—See ante p. 126. Note 2.

[458] Vide ante L. 2. c. 6.

[459] Vide ante L. 7. c. 1.

[460] Vide ante L. 7. c. 1.

[461] Bracton 272. b.

[462] We may conjecture, that this Law was corroborative of the particular Customs of certain Cities and Boroughs, under which the Citizens and Burgesses could make a Will of Lands.

Where such Customs prevailed, it was an idle thing to inquire whether the Ancestor died seised. It seems, London and Oxford enjoyed these Customs. (Bracton fo. 272.) Mr. Somner conceives, that the utility aimed at by the Law in question and the foundation of it was, the good of the Commonwealth, by the maintenance of traffic, which was much encouraged by the liberty of a free devise, though this is somewhat darkly pointed at, as he says, by Glanville in the present passage. (Somner on Gavelkynd, p. 97.)

[463] Vide L. 7. c. 9. &c.

[464] Vide F.N.B. 569. where twelve Jurors are mentioned.

[465] Impetitionem pro impetitiones. The term appears to be generally employed to designate a criminal proceeding; and, if we meet with it connected with the term waste—sine impetitione vasti, we must recollect, that waste under the feudal law was considered as a criminal offence. A much greater latitude was afterwards allowed in the application of the term. (Vide Spelm. Gloss. ad voc. impetitus and impetitio and Cowell ad voc. impeachment. &c.)

[466] Vide Bracton 237. b. et seq. It is not, perhaps, irrelative to observe, that Lord Coke refers to this and the two following chapters among other authorities to prove, that, at Common Law, if a stranger had presented his clerk and he had been admitted and instituted to a church, whereof any subject had been lawful Patron, the Patron had no other remedy to recover his advowson, but a writ of right of advowson, wherein the Incumbent was not to be removed. (Co. Litt. 344. a.)

[467] F.N.B. 68.

[468] “A worthy man, qualified in literature, life, and manners”—are the words of the Reg. Maj. L. 1. c. 2. Vide 1 Bl. Comm. 389.

[469] “And, in the mean time, let them view the Tenement”—added in Cotton. and Bodln. MSS.

[470] Sit laicum feodum. “A Juris Utrum did lie at the Common Law for a Parson against a Layman, and for a Layman against a Parson: but no Juris Utrum did lie for one Parson against another, before this Act, (Westmr. 2d.) because it was the Right of the Church and no Lay Fee. And the words of the writ at the Common Law were, an sit laicum feodum, &c.” (Vide 2 Inst. 407. and the authorities cited by Lord Coke.)

[471] The text is obscure, and contradictory: most probably, falsely transmitted to us.

This is answered in the affirmative by the Regiam Majestatem. L. 2. c. 35.

[472] As to the term novel, when the Action was brought before the Eyre, or Circuit, the Action or Disseisin was ancient, whilst, if the Disseisin were done since the last Eyre, then it was a novel Disseisin. Bracton treats largely upon the subject of novel Disseisin 160, et seq. See also 2 Inst. 24. The remedy of novel Disseisin is also treated of in the Assises of Jerusalem, with some peculiar provisions adapted to the singular circumstances in which the Holy Land was situated, (c. 63. et seq.) The respectable Translator of the Code Napoleon observes, that he has not met with the term novel disseisin before Magna Carta.—Amidst the attention of preparing his work for the press, he must have forgotten not only Glanville, but the Mirror.—Whatever doubt maybe entertained respecting the authority of the Mirror, yet Glanville indubitably proves, that the term was well known to our lawyers antecedent to the Great Charter. (See Mirror, c. 2. s. 25.)

[473] Meaning the Parliament, according to Judge Blackstone. (1. 147. 148.)

[474] The words inserted in this parenthesis have been thought to be an interpolation of a later date. (1. Reeves’ Hist. Eng. Law. 189.) Yet this suggestion may very reasonably be questioned—as the passage seems merely assertive of what must necessarily be the fact. It was a consequence of fixing the time of limitation to the coronation of the king, his Journey into Normandy, or any other event, that the time itself must be altering daily. (Vide 2 Inst. 94.)

[475] Vide F.N.B. 394.

[476] Sc. 1184. If the present Treatise was written in 1187, the remedy of novel disseisin stood limited to three years, which, of course, was every day lengthening until a new Æra was fixed.

[477] Affirmed by Statute of Merton, c. 37. (2 Inst. 235.)

[478] Vide Note 3. p. 225.

[479] Fossatum. This word occurs in Pliny. It seems to have been chiefly used by the old Lawyers in two senses—1. as denoting a camp, or intrenchment—2. as meaning a ditch, dyke, or moat. But it was not always confined to these significations—as the reader will perceive on turning to the Ancient Glossaries, particularly to that very valuable one given to the world by Spelman.

[480] Stagnum, Sir Edward Coke informs us, “doth consist of Water and Land, and, therefore, by the name of Stagnum, or a pool, the water and land shall pass also.” (Co. Litt. 5. a.)

[481] Vide F.N.B. 408. 409.

[482] Vide F.N.B. 407.

[483] See Bl. Com. 3. 220.

[484] Vide F.N.B. 399.

[485] But one Essoin, and one default allowed by the Norman Code! (Grand Custum. c. 94.)

[486] The Norman Code describes the whole proceeding at length. The names of the Jurors having been called over in open Court, the Parties are at liberty to take any Legal Exceptions to them. The Jurors are then individually sworn to speak the truth. After this, no person shall be allowed to hold any private communication with them, unless it be the Judge. The Judge shall in the next place solemnly charge them to return a true verdict, briefly stating to them the object for their consideration. The Jurors shall then consult upon their verdict, and, in the mean time, shall be strictly guarded, least they be corrupted. Having considered of their verdict, if they all agree, one of them shall deliver it into the Judge in open Court. (Le Grand Custum. de Norm. c. 96.)

[487] The Norman Code, acting, in this instance, upon a more pure and refined principle of legislation, allowed no Warrantor to be vouched to justify a novel Disseisin—Violentum enim est et nullo modo sustinendum, &c. (Grand Cust. de Norm. c. 94.)

[488] Appellans sive appellatus. These terms are generally used in a criminal sense. Their application in the present instance may be accounted for by reflecting, that a Disseisin, being in the eye of the law accompanied by force and a violation and disturbance of the peace, was to a certain degree a criminal offence.—See Mirror, c. 2. s. 23.

[489] “And, moreover, the Pursuer, who has proved the Ejectment may effectually desire, that command shall be given to the Sheriff to deliver to him so much of the moveable Goods pertaining to the Defender, or of the fruits of the Land which was arrested by the King’s precept, as extends to the sum of ten Marks.” (Regiam Majestatem, L. 3. c. 36.) The Reader must not start at the modern term Ejectment. It is only the language of Skene, the Translator.

[490] The same writ is to be found, L. 12. c. 18.

[491] In quitting this Book, which treats so largely of Assises, I shall make no apology to the Reader for extracting the following observations from Mr. Reeves’s highly valuable work. “It must be observed of these Assises (for so they are sometimes called by Glanville, but more commonly Recognitions) that they are not all of the same kind; that de morte antecessoris being evidently an original proceeding, independent of any other; the rest (not excepting that de ultimâ presentatione, and that utrum laicum feodum vel ecclesiasticum) being merely for the decision of facts which arose in some original action or proceeding. Thus the writs for summoning Recognitions of the latter kind were simple writs of Summons: they mentioned that a Plea was depending in Court by the king’s writ; and they were granted at the prayer of either party: so that they seemed to be resorted to, by the assent of parties for settling an incidental question, on which they put the dispute between them. On the other hand, the writ de morte antecessoris has all the appearance of an original commencement of a suit. It issued only upon condition the Demandant gave security to prosecute it, Si G. filius T. fecerit te securum de clamore suo prosequendo, tunc summone, and made no mention of a plea depending. Of the same kind was the writ de novâ desseisinâ.” (Reeves’s Hist. Eng. Law, 188.)

[492] When any one, says Bracton, speaking of the crime of læse majesty, knows another to be guilty, he is instantly to apprise the king, or one of his ministers. He should not abide in one place for two nights nor two days; but disregarding every other affair, however urgent, he should hasten to the king, scarcely daring to wait to look behind him. (Bracton 118. b. See also Fleta L. 1. c. 21. 22. and Mirror c. 8. s. 1.) In the latter Author, we find the following despotically comprehensive definition.—“Treason is every mischief which a man knowingly does or procures to be done to one he is in duty bound to be a friend to.”

[493] This is a most singular part of the Code of the age when Glanville lived. The obligation upon a man to defend himself, when another starts forward to accuse him, seems the necessary result of men living together in a state of society, and, as coeval with society itself, is strongly enforced by the municipal Laws of every Nation. This seems to have been the object of the punishment peine forte et dure. That singular institution shewed a strong, but rough, hand in the Legislature, more capable of directing its laws to a good and wise end, than nice or happy in selecting the means. The proceeding was naturally abolished as the Law became more refined—more humanized. As to the passage of our Author’s text now before us, it receives some light from Bracton—a suggestion, for which I am indebted to Mr. Reeves’s valuable work. Bracton speaks of an Indictment per famam patriæ, which, in all probability, was the same proceeding our Author alludes to. The foundation of that proceeding was a presumption entertained by good and grave men who deserved credit, and not the flying report of common conversation. (143. a.) But the subject receives additional elucidation from the Norman Code. In criminalibus tamen manifestis seu notoriis maliciis quos famâ publicâ seu fide dignorum testimonium nunciant culpabiles, non expectato Juris ordine debent arrestari et carceribus mancipari. (Grand Cust. c. 4. and 68.) In Mr. Kelham’s translation of Britton’s Pleas of the Crown, (page 18. Note 15.) the Reader will find the valuable record of an Indictment on suspicion. The Reader may also be referred to Bracton 143.—LL. Hen. 1. c. 45.—Mirror c. 2. s. 22. and Fleta L. 1. c. 21.

[494] “At the Common Law a man accused or indicted of High Treason, or of any felony whatsoever, was bailable, upon good security: for at the Common Law the Gaol was his pledge or security that could find none.” (2 Inst. 189.) This serves to elucidate the text, which is obscure from its brevity. A similar explanation is given in the progress of the present chapter, but is qualified, with the exception of the plea of Homicide.

[495] Per legem apparentem. Alluding to the passage now before us, Sir Henry Spelman observes, “I do not think it should be understood of the Duel, but the Ordeal.” This conjecture is countenanced by the 87th Chapter of the Grand Norman Custumary, however true it may be, that the lex apparens was, in the general sense of the expression, applied to the Duel. (Spelm. Gloss. ad voc. lex and his Reliq. p. 80.)

[496] Ex regiæ dispensationis beneficio, tam vitæ, quam membrorum suorum ejus pendet judicium is the original passage. I have availed myself of the Translation of the Regiam Majestatem. “And, if any man is condemned of that crime, his judgment and punishment of his life and limbs depend only upon the king’s benefit and good will, as in all other pleas of felony and sedition against the realm.” (L. 4. c. 1.)

[497] Fidei suæ religionis—“his faithful promise is sufficient,” says the Regiam Majestatem. (L. 4. c. 1.) In the opinion of the canonists the fidei interpositio was equally binding with an oath. (Lyndwood’s Provinc. 271.)

[498] Bracton gives the same reason. (118. b.)

[499] But this the Mirror terms an abuse. (c. 5.)

[500] See Bracton 119. a. Fleta L. 1. c. 21. s. 2.

[501] Seriatim de verbo ad verbum. (Fleta L. 1. c. 21. s. 2.) Sufficit si communiter se defenderit dum tamen de causa: (Ibid.) a greater strictness in pleading being required on the part of the accuser than the accused.

[502] So great, indeed, is the crime, says Bracton, that scarcely is it permitted to the Heirs that they should live. (118.) In speaking of Treason, Bracton warms with his subject; and the grave Lawyer starts into the animated Orator.

[503] A Husbandman, says Skene. (Reg. Maj.) I translate the word literally, and refer the Reader to the last passage of the present chapter. Vide Mirror c. 2. s. 28.

[504] Mahemium is said to be derived from the old French word, mehaigne. (Co. Litt. 126. a. 288. a. Cowell and Spelm. Gloss.)

[505] The trial by Ordeal, the favorite offspring of Superstition, has been by Fleury, Le Brun, and others, supposed to be derived from the Ancients, because Pliny (L. 8. c. 2.) mentions a family in Tuscany, upon whom the sacred fire, made in honor of Apollo, had no effect. But M. Houard, with much more appearance of reason, imagines, that it originated from the Miracles attributed by the Christians to their Saints. (Traités sur les coutumes Anglo-Normand. Tom. 1. p. 577.) However that may be, this mode of Trial existed here so early as the Reign of Ina; and William the first found it in use in this country, when he mounted the throne. His Normans, attached by early habit to the Trial by Duel, rejected a mode of decision, which appeared to them as a superstitious formality, though it was still suffered to be resorted to by old and maimed men, and by women. According to the Laws of Ina, the accused had the choice of the Trial by fire, or that by water. If he preferred the former, an Iron was prepared that weighed three pounds at the most. No person, except the Priest, whose duty it was to preside on the occasion, entered the Temple, after the fire destined to heat the Iron was kindled. The Iron being placed upon the fire, two men posted themselves on each side of the Iron, to determine upon the degree of heat it ought to possess. As soon as they were agreed upon this point, the same number of men were introduced ab utroque latere, and they also placed themselves at the two extremities of the Iron. All these witnesses passed the night fasting, &c.

At day-break, the Priest, after sprinkling them with the holy-water, and making them drink, presented them with the Book of the Evangelists to kiss, and then crossed them. The Mass then began. From that moment, the fire was no more increased: but the Iron was left on the embers, until the last Collect. That finished, the Iron was raised, and the most profound silence was observed, in praying the Deity to manifest the truth. At this instant, the accused took the Iron into his hand, and carried it to the distance of nine feet, juxta mensuram pedum ejus. The Trial being ended, the hand of the accused was bound up, and the bandage sealed; and, three days after, the hand was examined, to ascertain whether it was or not impure, which M. Houard, thus explains: ce qui doit, je crois, faire entendre que l’on n’étoit pas coupable, quand la main conservoit des marques de brûlure mais seulement lorsque la brûlure tomboit en supuration. (ubi supra.) But, if the accused elected the Trial by Water, then, the Water was placed in a Vessel, and heated to the highest degree. For inferior Crimes, the accused plunged his arm up to the wrist: for crimes of deeper dye, he plunged it up to the Elbow. In every other part of the ceremony, the two species of Trial by water and fire agreed. (LL. Inæ c. 77.) The Mirror coincides with the text of Glanville, (c. 3. s. 23.) and Lord Hale informs us, “that in all the time of King John the purgation per ignem et aquam, or the Trial by Ordeal, continued, as appears by frequent Entries upon the Rolls; but, it seems to have ended with this king, for I do not find it in use in any time after.” (Hist. Com. Law. 152.)

[506] Vide Bracton 119. b. Britton c. 17. s. 1. Dial. de Scacc. L. 2. s. 10. The modern French Code gives the treasure to the person who finds it, if the owner of the Estate: if not, half to him, and the other half to the owner of the Estate. (Code Napoleon.)

[507] Yet see LL. Hen. 1. c. 63. Ed. Wilkins.

[508] At the time of Bracton, a probable presumption of a man’s having possessed himself of treasure-trove, arising from his sudden dressing or living in a higher style than he had been accustomed to, was held a sufficient ground to commit the party to Gaol. (120. a.)

[509] Vide Fleta L. 1. c. 23. Bracton 120. b. 134. a.

[510] “The name of murder (as a crime) was anciently applied to the secret killing of another which the word moerda signifies in the Teutonic Language.” (4 Bl. Comm. 194.) In support of this position, the learned Judge cites the present passage of our author’s text. Other authorities may be added. Murtre, est quant home est tue de nuit ou de repos dehors ou dedans vill. (Assises de Jerusalem, c. 85.) Porro murdrum propriè dicatur, mors alicujus occulta cujus interfector ignoratur. (Dialog. de Scacc. L. 1. s. 10. See also Bracton 121. Fleta 34. s. 6. Britton c. 6. s. 1. and c. 23.—Regiam Majestatem L. 4. c. 5.)

[511] Clamor popularis is the expression, which, on the authority of Lord Coke, I have rendered Hue and Cry. Lord Coke informs us, it was known before the conquest. (2 Inst. 171. 172.) It does not appear to have been peculiar to this country, as a similar institution seems anciently to have existed in some parts of France. (Beaumanoir c. 67.)

[512] “This Statute is not now extant,” says Lord Coke. (2 Inst. 171.)

[513] De multro (murder) vel Homicidio propinquior in genere sequelam faciendi retinet potestatem: Si autem propinquior in non ætate fuerit vel ætatem transegerit, alius propinquior interesse poterit in sequela, vel alius de genere in quem consenserit omnis parentela. (Le Grand Custum. de Norm. c. 69. See also Britton c. 1. s. 11.)

[514] Vide Co. Litt. 25. a.

[515] “And yet not of all the wives, but of her only who lieth between his arms, which is as much as to say, in whose seisin he was murdered; for if he had many wives, and all were alive at the time of his murder, nevertheless she only is admitted to bring the appeal of all the rest, whom he last took to wife; and the reason thereof is, because it belongeth not to the Temporal Court to try who was his wife of right, and which, in fact, and the appeals of all others are to be suspended, pendant the same appeal brought” (Mirror c. 2. s. 7. See also Bracton 125. a. Fleta L. 1. c. 35. and 2 Inst. 316.)

[516] Lord Coke, in two instances, cites the present chapter of Glanville as one of the authorities on which he founds his assertion, that previously to the Great Charter a woman, as well as a man, might have had an appeal of the death of any of her Ancestors. (Co. Litt. 25. b. and 2 Inst. 68.) It is impossible to conceive how Glanville corroborates this bold position. He is a very strong authority for the contrary doctrine, and excludes expressly in this chapter and by relation in the [first chapter of the present Book], a woman’s right of appeal in every instance, except that of the death of her Husband, and that of a personal injury. Bracton also in the most decided language confines a woman’s right of appeal to these two instances. (fo. 125, and 148.) Great as Lord Coke is, his deductions and citations from the more ancient writers are not by any means implicitly to be relied upon. His name has thrown a lustre over many an error. Nothing would be more easy than to adduce innumerable instances in support of the truth of this assertion.

[517] For it was a good ground of defence, that the Plaintiff was not present at the time when the mortal blow was given. (Vide 2 Inst. 316.)

[518] “Burners are those,” says the Mirror, “who burn a City, Town, House, Men, Beasts, or other Chattels, feloniously in time of peace for hatred or revenge.” (Mirror c. 1. s. 8. See also Britton chap. 19.)

[519] Roberia, so called, says Lord Coke, because the goods are taken as it were de la robe, from the Robe, that is from the person. (Co. Litt. 288. a. and 3. Inst. 67.) Cowell deduces the term from the French robbe, vestis, and Spelman from raubas, meaning the same thing. The Saxons used their term reaferar in a similar sense, reaf signifying, vestis. For Travellers had in former times rarely any thing but their dress of which they could be robbed. (See Cowell and Spelm. Gloss.) Under the Laws of Ina the punishment of Robbery was to restore the thing purloined, and to pay a fine of 60 shillings. (LL. Inæ. c. 10.)

[520] For obvious reasons I have translated the present Chapter in a general manner.

[521] Vide Mirror c. 1. s. 12. and Bracton 147. a.

[522] Vide LL. Gul. Conq. c. 19. and 2. Inst. 180. 181.

[523] Visio autem virginis defloratæ per septem mulieres viduas vel maritatas fide dignas debet fieri, per quas, si necesse fuerit, de defloratione veritas recordetur. (Grand Custum. de Norm. c. 67. See also Britton c. 1. s. 30. &c.)

[524] See Britton c. 4. Bracton 119. b. and Fleta L. 1. c. 22.

[525] Of the king’s Charters, says Bracton, neither the Justices nor private Individuals can dispute, nor interpret them, if a doubt arise; but recourse must be had to the king himself; and if the Charters be defective, through rasure, or from a false seal being attached to them, it is better and safer to decide the matter in the king’s presence. (Bracton fo. 34. a.)

[526] Having already observed, that this part of the Sheriff’s Jurisdiction was taken away by Magna Carta, I shall conclude these [Notes] with extracting a passage from the Norman Code, from which we may collect most of the various branches of the Sheriff’s Jurisdiction and his duty, in the opinion of the Lawyers of Normandy. Officium autem Vicecomitis est placita tenere: vias antiquas et semitas et limites aperire: aquas vero transmotas ad cursum debitum reducere, et de malefactoribus et seditiosis mulieribus et arsionibus et deflorationibus virginum violentis et ceteris actibus criminosis diligenter et secretè inquirere. (Le Grand Custum. de Norm. c. 4.)

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Transcriber's Note: Obvious printer errors, as well as inconsistencies in the format of legal citations, have been corrected without note. Archaic English spellings have been retained as they appear in the original.

In the front matter of the original, the pagination jumps from xix at the end of the [Introduction] to vii at the beginning of "[The Translator to the Reader]." The front matter page numbers have been made consecutive in this e-book.