[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.)