A translation of Glanville

by Ranulf de Glanville

[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.)