CHAPTER THE TWENTY-EIGHTH. OF TITLE BY CUSTOM. A fourth method of acquiring property in things personal, or chattels, is by custom: whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless, should I attempt to enumerate all the several kinds of special customs, which may entitle a man to a chattel interest in different parts of the kingdom: I shall therefore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz. heriots, mortuaries, and heirlooms. 1. Heriots, which were slightly touched upon in a former chapter,a are usually divided into two sorts, heriot-service, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent: the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. Of these therefore we are here principally to speak: and they are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land. [423] The first establishment, if not introduction, of compulsory heriots into England, was by the Danes: and we find in the laws of king Canuted the several heregeates or heriots specified, which were then exacted by the king on the death of divers of his subjects, according to their respective dignities; from the highest a pag. 97. b 2 Saund. 166. & c Co. cop. 24. eorle down to the most inferior thegne or landholder. These, for the most part, consisted in arms, horses, and habiliments of war; which the word itself, according to sir Henry Spelman, signifies. These were delivered up to the sovereign on the death of the vasal, who could no longer use them, to be put into other hands for the service and defence of the country. And upon the plan of this Danish establishment did William the conqueror fashion his law of reliefs, as was formerly observed; when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feodal custom and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money 8 The Danish compulsive heriots, being thus transmuted into reliefs, underwent the same several vicissitudes as the feodal tenures, and in socage estates do frequently remain to this day, in the shape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary. These are now for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowlegement of his having been raised a degree above villenage, when all his goods and chattels were quite at the mercy of the lord: and custom, which has on the [424] one hand confirmed the tenant's interest in exclusion of the lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. An heriot may also appertain to free land, that is held by service and suit e of feuds. c. 18. f pag. 65. g LL. Guil. Cong. c. 22, 23, 24. h Lambard. Peramb. of Kent. 492. of court; in which case it is most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bractoni speaks of heriots as frequently due on the death of both species of tenants: “est quidem alia præstatio quæ nominatur heriettum; ubi tenens, liber vel servus in morte sua dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam locorum consuetudinem." And this, he adds, "magis fit de gratia quam de jure;" in which Fletak and Britton1 agree: thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in the lord. This heriot is sometimes the best live beast, or averium, which the tenant dies possessed of (which is particularly denominated the villein's relief in the twentyninth law of king William the conqueror), sometimes the best inanimate good, under which a jewel or piece of plate may be included; but it is always a personal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord,m becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant must be the owner of it, else it cannot be due; and therefore on the death of a feme-covert no heriot can be taken; for she can have no ownership in things personal. In some places there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputably antient custom but a new composition of this sort will not bind the representatives of either party; for that amounts to the creation of a new custom, which is now impossible." 1 7. 2. c. 36. 9. k l. 3. c. 18. 1 c. 69. m Hob. 60. n Keilw. 84. 4 Leon. 239. [425] 2. Mortuaries are a sort of ecclesiastical heriots being a customary gift claimed by and due to the minister in very many parishes on the death of his parish、 ioners. They seem originally to have been, like lay heriots, only a voluntary bequest to the church; being intended, as Lyndewode informs us from a constitution of archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their lifetime might have neglected or forgotten to pay. For this purpose, after the lord's heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary: "si decedens plura habuerit animalia, optimo cui de jure fuerit debitum reservato, ecclesiæ suæ sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animæ suæ." And therefore in the laws of king Canuter this mortuary is called soulscot (raplrceat) or symbolum animæ. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandize, jewels, and other movables. So also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of christian burial: or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in case he had made a will. But the parliament, in 1409, redressed this grievance.t p Co. Litt. 185. q Provinc. l. 1. tit. 3. r c. 13. s Panormitan, ad Decretal 1. 3. t. 20. c. 32. t Sp. L. b. 28. c. 41. It was antiently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried; and thence " it is sometimes called a corse-present: a [426] term, which bespeaks it to have been once a voluntary donation. However in Bracton's time, so early as Henry III. we find it rivetted into an established custom: insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliori:" the lord must have the best good left him as an heriot; and the church the second best as a mortuary. But yet this custom was different in different places: "in quibusdam locis habet ecelesia melius animal de consuetudine; in quibusdam secundum, vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci." w This custom still varies in different places, not only as the mortuary to be paid, but the person to whom it is payable. In Wales a mortuary or corse-present was due upon the death of every clergyman to the bishop of the diocese; till abolished, upon a recompense given to the bishop, by the statute 12 Ann. st. 2. c. 6. And in the archdeaconry of Chester a custom also prevailed, that the bishop, who is also archdeacon, should have at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring. But by statute 28 Geo. II. c. 6. this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in it's room. The king's claim to many goods, on the death of all u Selden. Hist. of tithes. c. 10. w Bracton. l. 2. c. 26. Flet. l. 2. c. 57. x Cro. Car. 237. 8 Prior editions have here," to." |