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The first establishment, if not introduction, of compul- Heriots were

first established sory heriots into England, was by the Danes: and we find

by the Danes. in the laws of king Canute (d) 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 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 (e), 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 (g).

The Danish compulsive heriots being thus transmuted Reliefs. 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 (h). 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 (l); 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 (2); perhaps, in acknowledgment of his

(d) C. 69.
(e) Of feuds, c. 18.
(1) Pag. 65.

(8) LL. Guil. Conq. c. 22, 23, 24.
(1) Lambard. Peramb. of Kent, 492.

(1) Sce ante, pp. 95--98, with the notes thereto; and also p. 150.

(2) The accuracy of the passage in the text was distrusted in Garland v.

having been raised a degree above villenage, when all his goods and chattels were quite at the mercy of the lord; and

Jekyll, (2 Bingh. 292): the Chief Jus- permanency of their property; it is by tice of the court of Common Pleas said, the establishment of the customs refercopyhold tenures appear to have grown able to copyholds in courts of justice, out of a state of pure villenage,-(this that this permanent interest has placed is also Blackstone's conclusion; see the copyholders in the happy situation in pages referred to in the last note),—and which they are now found ;-the copythere is no doubt, that, in the early pe- holder, now, has a permanent interest riods of our history, the whole personal in his estate as long as he performs his property of the villein belonged to the services, and the lord has certain rights lord: it is said, indeed, in Bracton and and dues. The heriot was a species of in Fleta, that heriots are ex gratia: but tribute which the heir paid on the death it is difficult to conceive how the doc- of his ancestor; it was the heir alone trine of ex gratiâ could be applied to who rendered it; he gave but one tritimes of villenage; the villein could bute, one beast, which would probably give nothing which the lord might not be his best beast. It may be asked, if at any time take. It is probable— the property was separated into differthough this is mere conjecture, for the ent tenements, was the lord to wait till history of heriots is so obscure, that it the death of all the tenants for one is impossible to ascertain how they ori- heriot? No. Of necessity, the instant ginated,—it is probable that heriots the estate became separate, there were were originally nothing more than the separate heirs, and each heir paid his gift which, in a rude state of society, a tribute: this service being incapable of person in an inferior situation, on ap- severance, was necessarily multiplied proaching one of a superior station, while the estate was held in severalty, always offered. It has occurred to us, or the lord would have lost his right; that heriots were a species of tribute, but the moment a re-union of the which the tenant offered to the lord at whole estate took place, the necessity the time he approached him, in order ceased, and the lord was placed in the to secure his protection, and to pray of same situation as when the grant of the the lord to confer on him the interest estate was first made, that is, he was which had been determined by the de- only entitled to one heriot. A rule as cease of his former tenant. But, whatever to copyholds (confirmed by Mr. Justhe situation of copyholders might have tice Blackstone, and every one who has been in the early part of our history, cus- written upon the subject), is this, that tom has now confirmed their interests the claims of the lord are not to be as tenants, and this same custom has con- carried to such an extent as would firmed and established the rights of work the disherison of the copyholder; the lord. This alteration has been but if a multiplication of heriot-services brought about by no statute.

It is to and fees was to take place, it would, in lawyers in Westminster-Hall, that many cases, work a disherison of the slaves, for suc was the state men in estate; it would make the estate what pure villenage, are indebted for the the civilians call damnosa hæredilas.

custom, which has on the *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 of court; in which

Now, is that fit? We know that for- tates of each tenant in common, the merly copyholds were held with fines copyhold does not still remain an entire uncertain ; but the courts have said, tenement. In the case of heriot-ser"you shall not take what you please, vice, or heriot-custom, the law multiyou shall only be entitled to two plies the heriot in two cases; one, where years' purchase, because, if you take the tenement is actually divided, and just as much as will satisfy your cu- converted into two or more separate pidity, you may compel the heir to tenements; the other, where the tenesurrender the estate into your hands; ment is left entire, but different pertherefore, we will impose our restraint sons have distinct undivided estates upon you.” Upon the same principle, therein. But will the creation of a we must restrain the claim of heriots; tenancy in common have the effect of at all events, so that these, and the fines producing, even for a time, separate and fees, may not exceed the value of tenements? None of the tenants in the property. We are called on to say, common knows his own share in seve. whether, without any custom within ralty. The creation of a tenancy in the manor alleged either way, it is the common in freeholds, leaves the tene. necessary legal consequence, that when ment entire; and, a fortiori, it must do an estate has been divided and again so in copyholds. There is a plain disre-united, all the heriots are to be paid tinction between the alienation of an after the re-union of the several estates, entire part, and the creation of a tenthat were paid whilst it was divided: ancy in common: the authorities shew, we say there is no such law, no such that the former will split one tenement doctrine.

into several, the latter will not. WhatIn the case of Holloway v. Berkeley, ever may at any time have been the (6 Barn. & Cress. 9), the question as number of tenants in common of what to the multiplication of heriots was was originally one copyhold tenement, brought before the court of King's when all the interests are again vested Bench: and it was decided, that when in one person, he may consider himself a copyhold tenement, holden by heriot- as seised, not of so many undivided custom, becomes the property of several portions of the land, but, as the sole as tenants in common, the lord is en- proprietor of one entire estate and tenetitled to a heriot from each of them; ment. but if the several portions are re-united The court added, Garland v. Jekyll in one person, one heriot only is pay- was a case of the creation of a tenancy able. The Court said, the question, in in common, and upon the principle that substance, is, whether, upon a tenancy the creation of a tenancy in common in common, each share of the tenement leaves the tenement entire, we think constitutes a distinct tenement; or whe- that decision right. ther, notwithstanding the distinct es

case it is most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton (i) speaks of heriots as frequently due on the death of both species of tenants: est quidem alia præstatio quæ nominatur heriet

tum; 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 consuetuinem.” And this he adds, magis fit de gratia quam de jure;" in which Fleta (k) and Britton (1) 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. of the nature of This heriot is sometimes the best live beast, or averium, the heriot.

which the tenant dies possessed of (which is particularly denominated the villein's relief, in the twenty-ninth 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 (n). 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 (0).

*2. Mortuaries are a sort of ecclesiastical heriots, being [ *425 ] a customary gift claimed by and due to the minister in

very many parishes on the death of his parishioners. They

2. Mortuaries.

(i) L. 2, c. 36, s. 9.
(k) L. 3, c. 18.
(1) C. 69.

(m) Hob. 60.
(n) Keilw. 84. 4 Leon. 239.
(0) Co. Cop. s. 31.

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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 life-time might have neglected or forgotten to pay. For this purpose, after (p) 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 reserve

tur, post obitum, pro salute animæ suæ (9).And, therefore, in the laws of king Canute (r) this mortuary is called soul-scot (raplyceat) 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 moveables (s). 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).

It was antiently usual in this kingdom to bring the mor- Progress of the tuary to church along with the corpse when it came to be doctrine of morburied; and thence (u) it is sometimes called a corse-present; a *term which bespeaks it to have been once a volun- [ * 426 ] tary donation. However, in Bracton's time, so early as

a

tuaries.

(p) Co. Litt. 185.
(9) Provinc. I. 1, tit. 3.
(r) C. 13.
(s) Panormitan. ad Decretal. 1, 3,

t. 20, c. 32.

(1) Sp. L. b. 28, c. 41.
(u) Selden, Hist. of tithes, c. 10.

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