A translation of Glanville

by Ranulf de Glanville

[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.)