CHAP. XI.
The Heirs of Sock-men upon the death of their Ancestors, shall be in the Custody[259] of their nearest Kindred, with this distinction, that if the Inheritance itself descended from the paternal side, the Custody shall be conferred upon the kindred, the descendants on the maternal side; but, if the Inheritance descend on the part of the Mother, then the Custody belongs to the Kindred on the Father’s side. For the custody of a person shall never by Law be committed to another, of whom a suspicion can be entertained, that he either could or might wish to claim any right in the Inheritance itself.[260]
CHAP. XII.
But if the Heirs are females, they shall remain in the Custody of their Lords. If they are Minors, they shall continue in Custody until they are of full age,[261] at which period the Lord is bound to find them a Marriage, delivering to each of them her reasonable portion. But if they were of full age, then also they shall remain in the Custody of their Lord, until with his Advice and disposal they are married; because without the disposal or assent of her Lord no female, the Heir to Land,[262] can by the Law and Custom of the Realm be married.
Hence it is, that if a Man, having only a Daughter or Daughters, his Heirs, should in his lifetime marry off one or more of them without the assent of the Lord, he is justly, according to the Law and Custom of the Realm, for ever deprived of his Inheritance; and that in such manner, that he can never afterwards recover any part of it, unless by the indulgence of the Lord. The reason is simply this—that as the Husband of an Heiress is bound to do Homage to the Lord for her Estate, the approbation and consent of the Lord is requisite for such purpose; least he should be compelled to receive from his Enemy, or from some other improper person, the Homage due in respect of his Fee.[263] But if any one demands of his Lord a License to marry his Daughter and Heir to another, the Lord is bound either to consent, or to shew some just cause, why he refuses;[264] otherwise the woman may, with the advice and approbation of her Father, be married, even contrary to the Lord’s inclination. Upon this occasion it may be asked, if a Woman, having Lands in Dower, may, without the consent of her Warrantor,[265] follow her own inclination in marrying another; and, if she do so, whether she shall on that account lose her whole Dower? It does not appear that she ought for that reason to lose her Dower, since her Husband, by the Law and Custom of the Realm, owes no Homage to her Warrantor, but merely Fealty with an Oath, least if the Woman herself should die before her Husband, the Homage should be entirely lost, no Tenure being retained. Yet the Woman is bound to obtain the consent of her Warrantor to her marriage, or she shall lose her Dower,[266] unless, indeed, she holds other Land in Marriage-hood or by Inheritance; for then it suffices, if she has obtained the consent of the Chief Lord. This Rule obtains not on account of the Homage but of the other Fealty, which the Husband is bound to perform to the Lord as we have observed. But, if the Inheritance be within the Fees of many different Lords, it is then sufficient, if the consent of the Chief Lord be obtained to the Marriage of the female Heir. If female Heirs, during such time as they are in Custody, are guilty of incontinence,[267] and this be proved, then, those who have thus erred shall be excluded from the Inheritance; and their portion shall accrue to the others, who are free from the same stain. But if, in this manner, all of them should err, then, the whole Inheritance shall devolve upon the Lord, as an Escheat. Yet, if such female Heirs are once lawfully married, and afterwards become widows, they shall not again be under the Custody of their Lords; although they are, for the reason formerly explained, bound to ask his consent to their marriage.[268] Nor, in such case, shall they forfeit their Inheritance, if guilty of incontinence.[269]
But the assertion which is generally made, that incontinence[270] is no forfeiture of the Inheritance, is to be understood of the crime of the Mother; because, that Son is the lawful Heir, whom marriage proves to be such.[271]
CHAP. XIII.
Neither a Bastard,[272] nor any other person not born in lawful wedlock, can be, in the legal sense of the term, an Heir.[273] But if any one claims an Inheritance in the character of Heir, and the other party object to him, that he cannot be Heir, because he was not born in lawful wedlock, then, indeed, the Plea shall cease in the King’s Court, and the Arch-Bishop or Bishop of the place shall be commanded, to inquire concerning such marriage, and to make known his decision, either to the King or his Justices.