[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.)