[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.)