by consent of their Guardâans shall marry within the age of twelve b Lit. l. 2. c. 4. and here both Sexes have the same Laâ that after marriage so had under age by designation of the Guardian They are no morâ obliged to his arbitrement the bond of Matrâmony being dissolved by death c Brac. l. 2. c. 37. n. 6. Lit. l. 2. c. 4. And thââ by an inequality of marrying them thâ Guardian shall loose his ward and shall liable to satisfie the freinds of the ward so disparaged for so great a damage d Brit. c. 67. Lit. l. 2. c. 4. Instit Jur. com 24. 9. Heretofore when an Heir female was at âge and held of divers Lords in Fee it was sufficient for her in marrying to require the âssent of the next capitall Lord to whom her Ancestors had done legiance e Eract d. l. 2. c. 37. n. 6. but at this day she that is of age is not obliged to ask the conâent of her Lord to marry f Brook tit Guard 7. 10. If the Heir of Tenant in Chivalry not being of that age at which by the Law he may consent to marry shall marry in his Fathers life time his Father being dead the Lord of the Fee shall have a Writ of Ravishment because it is in the power of the Heir to repudiate his wife when he shall come to that full age g F. B. 143. m. and a woman who holdeth of the King in this manner being thus married is at her own election when she shall come to age whether she will adhere to the former marriage or accept of such a Husband as the King shall tender h 17 E. 2. Stat 1. c. 5. 11. Those Widdows also which are termed the Kings Widdowes do make Oath not to enter marriage again without the Kings consent And if they do otherwise the King may by distress seise himself of those lands and renements which they have in Dower untill they or their Husbands shall pay such Fines as the King at pleasure shall impose i Slan Pâer c. 4. Glan l. 7. c. 12. Flet. l. 7. c. 23. F. B. 263 174. 17 E. 2. 1. Magna charta also doth affirm that common persons may exercise the same power over their Widdows k c. 7. And there is this reason given least the Kings Tenants should enter marriage with his capitall enemies l Fl. l. 1. c. 13 12. Whosoever shall steal or draw away anothers ward although he restore the ward afterwards unmarried or satisfie for the marriage shall for such trespass suffer imprisonment for two years And if he doth not restore the said ward but marries him or her and is not able to satisfie for the same he shal abiure the Realm or be imprisoned during life m Flet. l. 1. c. 13. 13. If any person above the age of fourteen shall draw away an unmarried woman under sixteen without consent of Parents or at least those who had the Gard of her he shall suffer two years imprisonment without Bail or at least be fined for his said offence according to discretion of the Star chamber n This power is now in the Chancery But if he shall defile her being so stolne away or any way contract marriage with her against the consent of her Parents or Guardians he shall be imprisoned for five years or much according to the discretion of the said Court. And if such woman being above twelve and under sixteen shall by her own consent marry with such ravisher she shall forfeit all and singuler those Lands Tenements and Hereditaments which at the time of such consent given she had either in possession Reversion or Remainder o 4 5 Phi. Mar. c. 8. Cook l. 3. Nut. Case f. 39. 14. Villaines are not to marry without consent of their Patrons p Lit. l. 2. c. 11. Also if a freeman shall take away ones native in marriage without the consent of her Lord although the Lord cannot take her from him yet he may have his action for the Ravishment of her q Idem ibid. 15. Women that marry noble men shall have the appellation and priviledges of noble persons for that dignity they derive from their husbands untill they shall again marry with common persons q Idem ibid. for by marrying they make themselves the same flesh with their Husbands r 20 H. 6. c. 6 but if it shal be demanded whether a woman more noble marrying with a man lesse noble or a common person may free her Chaplaines for non-residency according to the Statute in that case provided we 21 H. 8. c. 13. cannot answer without distinguishing For second marriages will not prejudice those which shee had during widdowhood But she cannot impart the same priviledge to them which she shall have after the second marrying because her nobility is extinct t Cook l. 4. Actons Case f. 117. Notwithstanding that it seems to be otherwise with those which are born noble and derive not their nobility from marriage u Id. ibid. for that such who draw their nobility from their Ancestors are more esteemed and honored with us then they which take it onely from their Husbands 16. If any come together against the leviticall Law we neither understand them man and Wife nor do we allow of their contracts marriage or Dower Their Issue gaining no other esteem then to be termed naturall w 32 H. 8. c. 38. Those only are said to be divorced by our Lawyers whose Marriages are nul'd for that there may be a seperation a mensa thoro and yet the Matrimonial bond remain unbroken x Term. Jur. verl Divorce 17. Those which are unlawfully begotten cannot possibly be made ligitimate But they are often made capable of Preisthood or exercising sacred functions by dispensation y Bract. l. A spurious Issue may by silence and patience be rendred legitimate as in case a Wife shall conceive by another man besides her Husband notwithstanding that it be apparent yet if the husband entertain such Issue in his Family and bring it up and call it as his Child he makes it his owne lawful Son and Heir which is equally true if he do not so call it expresly if he do not remove it and renounce it nor is it materiall whether the Husband be ignorant or knowing of it or whether he doubt for it shall be reputed his lawfull Heir because born of his Wife so long as it may be presumed that her Husband begot it And this may be said also of a supposed Issue for that often a common opinion passeth for a truth z Bract. d. l. 2. c. 27. n. 4 5. 18. There are with us two consequences and effects of Marriage The first that all moveable Goods which by us are tearmed personall Chattells which the Wife brings with her do presently passe into the husbands Patrimony without any distinction being thereby
seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son âo a Father or Mother or any other Ancestor ân a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a âransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
and so in duty tied to him that if she shall be conscious of any fact committed by her husband she shall not be punished for concealing it b Glan l. 11. c. 3. Bract l. 1. c. 6. n. 2. l. 2 c. 15. l. 5. tr 5. c. 17. n. 2. But she is obliged to hinder as much as in her lieth c Flet. l. 1. c. 38. and according to our ancient Authors if stolne goods be found under her lock and key she shall be esteemed equally guilty with her husband And so also if the things stolne be found in her hands d Flet. ibid. but at this day the Law is so much altered as it seems that if the Wife commit Thest by the instigation of her Husband she shall not be guilty of Felony e Fitz. tit Crowne 99. Brook ib. 108. 1. And in the same Bond is that woman obliged which shal marry a Villain For if a woman who is a Coheir marry a Villain she cannot claim her Partition before her time i. e. before the death of her Husband f Brac. l. 5. tr 5. c. 25. n. 2. Fl. l. 4. c. 12. n. 1. In a word whensoever the Husband during Coverture shall dispose of the Lands of his Wife except only where a Fine is levied she superviving may after his death dissolve such Contracts as done at such a time when as she being under Coverture was so tied by the Law that she could not contradict him g Plo. 265. 32 H. S. c. 2â nay according to some of our Ancients a Wife is so far obliged to obey her Husband that if the Husband shall sell her Joynture against her will she shall not recover her Dower against the Vendees after his decease h Glan l. 2. c. 4. for that she ought to rest silent and obey her Husband patiently who disposed in that manner of her Dower as to maintain her life But this Law is long time out of date i Lit. l. 1. c. 4. 2. Contracts of Matrimony may be entred into at the age of seven years k Pract. l. 1. c. 36. nu 3. Instit c. 24. Dyer 143. n. 56. but they are not to intermarry untill a fit age viz. the man at fourteen and the woman at twelve years old l Brac. ib. Instit ib. and not in any degree of consanguinity or affinity which is forbidden by the Leviticall Law m 32 H. 8. c. 8. and by our Law if a woman entermarry at nine years of age and survive her Husband she shall have her Dower because at that age she is defined to be capable of it n Lit. l. 1. c. 5 And this is equally a rule both for Villains and those that are free for Villains may enter marriage lawfully o In this it followes the Common Law but they are punishable if they do without license of their Lord. p Lit. l. 2. c. 11. 3. The consent of Parents is not so essentially necessary with us that for default therein a matrimoniall Contract made between them that are free being De praesenti should be nulled for in this we follow the Pontificall Law q Ca. cum apud 23. ext des onsa matrim and this some affirm true in the Civill Law also r Cujacius in Julii Pauli receptas sententias l. 2. c. 19. quem etiam vid. l. observat 3 c. 5. However Tribonianus in that long and wearisome worke of his indigesling the Law hath happened to omit it for here the words of Paulus are expressed For those who are under the power of Fathers they ought not by Law to contract Matrimony without their consent but being once contracted it cannot possibly be dissolved For that the regard which is had to the publick good is to be preferred to private Convenienty s l. z. recept-semen c. 19. de nuptiis 4. And yet Marriages are not so absolutely âee with us for they which hold in Fee of the King in Capite that is in right of his Crown âr of any Honour or Mannor of his or of a âommon personally Knights Service if at the âay of the Ancestors death the party be withââ age and unmarried he cannot without peâalty refuse a Wife tendred unto him by the âord of the Fee For in such case he shall ãâã unto him the value of the marriage If ãâã be that the Lord doe tender unto him âhilest he is within age a wife who is fit for âim without disparity or as our law expresseth ãâã Disparagment t Brit. c. 66. 2 c H. 3. c. 7. F. B. f. 141 174 Glan l. 7. c. 12. Lit. l. 2. c. 4. Flet. l. 1. c. 13. yet if the Lord shal tender one some are of opinion that he may notâithstanding claim the value of the Heir when ãâã comes to age u Dyer f 255 260. But here it is to be diâinguished whether the ward refuse the Wife ândred to him by his Guardian and remain ânmarried till he comes of age or whither âfter such refusall he shall yet marry another ãâã in the first case he shall only be compelled ãâã pay the value of the marriage simply but ãâã the later he shall pay it double w F. B. 141. Lit. l. 2. c. 4. Stat. Merc. c. 6. West 1. c. 12. 5. And this is true also of womenwho are unâer the age of 14. at the death of their Anceâors and unmarried for they also are bound ther to marry or pray the value to their uardian if within two years after fourteen be compleated he shall tender them a fitting husband x Westm 1. c. 12. Brit. c. 67. Brac. l. 2. c. 37. n. 6. Flet. l. 1. c. 13. but where the Guardian makes no tender the Law is the same as in the case of men 6. Now disparagement is where the Guardian shal tender to his ward a woman wanting a Foot or a hand one that is maimed imperfect or deformed or that hath an infectioâs or contagious disease One that is old and paâ hope of Issue y Lit. l. 2. c. 4 or in case the Guardian shal tender a Villain Burger or one that is meanly discended to her that is Noble z Flet. l. 1. c. 13. 7. If there be many Lords of whom the Fee is holden the King if he be one shalâ have the wardship of the Heir But if the be all common persons he shall be preferreâ to whom the Ancestors did first Homage for the marriage will not admit partitiââ But if this cannot appear he shall be preferred who first enfeoffed the Ancestors anâ if this cannot be proved then that Lord whâ shall gain the possession first of the ward a Flet. l. 1. c. 13. 8. If the Lord of the Fee shall marry ãâã ward made within the age of fourteen year the ward so soone as he shall come to that age may discent and leave her which is also trââ in Females who
of Patronage in reâpect of the Fee which we possess and these ãâã tearmed the Lords of the Fee a Prat âi lexicon verb. Patronus And theââ are very few Infants that succed to good Estates who escape their Wardship and Câstody For as there is none with us except ãâã Crown who are seised of their Estates anâ Tenements in a freer or larger Title thââ Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ by Knights Service now those things whicâ are proper to this Service are Gard Maââage and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâcestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâtill he come to perfect age For before thââ age he is not adjudged capable of those warâick accomplishments requisite for a Knight ând due to his Lord by reason of his Teâure notwithstanding that it falls out someâimes that age being dispensed with some are elected into the order of Knighthood before âhey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from âhis reason that since he who holds by Knights Service is obliged according to the âgreement at the first investing of the Estate âo follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in âeats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 âor no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir ãâã the Mothers side the Father living shalâ have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession ãâã the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ Law and Guardian in Tail Guardian iâ Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiââ of an Infant p Flet. l. 1. c. 11. â When there is an Heir male or female âho hath many capitall Lords they cannot ãâã have the custody of the Heir and thereââre one must be preferred before the rest ând that is he who first infeoffed the Tenant ãâã Knights Service the rest shall only be âârmitted the custody of the Lands which ââe holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in ââpite by Knights Service whether he hath ââher Lords or not the King shall be preferââd before the rest to the custody of the âeir and that notwithstanding Priority or âosteriority of infeoffing For that the King âath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the ââstody of his Guardian as by marrying or âontracting Matrimony with his consent ââall not return again into the custody And ââat notwithstanding he be under fourteen âears of age or afterwards that he shall marây before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâcites who hold by Knights Service They âhall be all under the custody of the capitall âord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ For if an Inheritance fall to such an Infaââ who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant ãâã holds in Socage shall have the Custody ãâã the Body and Lands of the Heire before aââ kindred either of the Fathers side or Mothââ side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ imposed upon the male children theiâ Parents being dead and upon the Childreâ of Patrons our Ancestors seem wholly ãâã have neglected Concerning the first Weâ have nothing determined save that which we mentioned before of the legall Guardianship
not absolutely acquired by Livery of Seisin but as it were now this Seisure In Dominico c. Is twofold Direct or meerly for use Direct which is also tearmed absolute is that which comprehends both Property and use The other consists solely in the benefit and use of a thing i Bract. l. 4. tr 1. c. 27. n. 6. tr 4. c. 4. Fl. l. 1. c. 12. 2. The English have a full Dominion and Power of things corporeal and moveable but not of immoveable if we except the supream power and right of the Crown for the Subjâct hath not an absolute freehold in their Lands and Tenements but a Fee only and that fee doth not comprise so absolute a power appears not only by those Authors who write of Fees k Anto. Con. in Feodorum Comment c. 2. Matthae us ââesenbecius in tr de feodis c. 1. but even by Littleton himself when he saies that such a one was seised of such an Estate in his Demesne as of Fee by which words he affirms the highest and fullest title to be exprest And these words as of Fee do abate somewhat of an absolute power and argue a Tenure from a superiour but that these words are sometimes referred to the Kings Demesne l In 27 H. 8 16. is either from the ignorance of speaking and applying or else that distinction is maintained by which some will have a double acceptation of the word Fee viz. One by which a man holds an immoveable thing by any Title to him and his Heires The other by which one holds from another by Rent or Service or both m Flet. l. 5. c. 5. whereas Fee in the second acceptation is never without the Oath of Fealty n Termes of the Law V. Fealty Fulb. Paral. c. Seigniority f. 19. b. which the King never gave to any one as having an absolute Power o Fort. c. 9. Bract. l. 1. c. 8. Brit. in Praemi 3. Fee which is in latine Feodum and by some Feodum comes from the German Fief which signifieth an Inheritance held of another p Hottoman b. disput c. 11. and is by those that write of Fees defined to be an immoveable thing given to another in such a manner that the Property continues in the Power of the Donor but the benefit and use is to the Donee and his Heires Males or Females for ever So long as the Donee and his heires doe faithfully their Services to the Lord q Anto. Continus in Com. sup feod c. 3. so that Fidelity or Fealty is the foundation of Fee and nothing else Yet it often hapneth that it is not bestowed Gratis but for some small consideration of Money in the name of Rent or for Services r Duar. in Com. sup feod c. 12. Smyth Com. l. 3. c. 8. but we understand by Fee all which we hold to us and our Heiââ s Bract. l. 4. tr 3. c. 9. n. 6. Lit. l. 1. c. 1. 4. Fee as it is taken for an Inheritance held of another is held either of the King or a Subiect or that we may use our owâ Phrase a common person Fees that are held of the King are double either in right of his Crown which we call Tenure in Capite or of some Honour or Mannor appertaining to the Crown But a Subiect although he may have others who hold of him in Fee from whom he may exact Fealty yet himself is either mediately or immediately Feodary to the King for all the Land of this Kingdome which is not held of others by Services is held of the King and belongs to him either as ancient Demesne escheats or perquisites 5. Fee is divided into many Species either from the Effect or from some cause efficient or formall but we shall only discourse breifly here of those which we meet with most frequently in our Books 6. Fee therefore is either Leige or nonleige some Feodists t Duar. ib. will have it to come from the Italian word Liga which signifies a Band or League and that because it ties and obliges the Vasâal For Leige is properly where any one swears Fealty to his Lord non-Liege is when with the exception of another The first is due only to the King the later to common persons u 10 R. 2. 11. c. 1. 34. 35. c. 3. Lit. l. 2. c. 1. 7. Again Fee is either Royall or noâ Royall Royall is the greater for that it hath somewhat of Royalty in it as from whence any one is instituted from the King âeing absolute without acknowledging a suâeriour Of this sort are those which had a âignity or Honour conjoyned with the powââ of their Priviledges and are by us stiled ââerties or Prerogatives Royall as where ââe King grants by his Charter to any Subââct the view of a Franck Pledge the Pleas ãâã Impranding the amendment of the faults ãâã Assise the adjudging of Robbers as infangââeife and outâang theife Soc Sac Tol Theam âo punish by the Gallows or other punishâents which the execution of Judgement ââall require Goods of Felons and which ââpertain to the Peace and consequently to ââe Crown w Bract. l. 2. c. 5. n. 7. c. 24. l. 3. tr 2. c. 35. Wrecks of the Sea Whales âuâgeons Free warren Fayre x Bract l. 4. tt 1. c. 46. and those ââher things which fall within the Kings âerogative But of these Fees there are ââth us certain degrees since some have a ââeater number some a lesser granted unto ââem The first the Principallity of Wales claims ãâã right y Polid. Vir. in ed. 1. f. 343. lin 28. which from the time of Edward ââe first did belong to the Kings eldest Son ând the second is claimed by the foure Paââtinates or Counties Palatine Lancaster âârham Chester and Ely z 5 Elix c. 23. 17 Ed. 4. c. 1. 27 H. 8. c. 25. And these have those Fees which we calââd Honors which the King besides the Jurisââctions contingent to Courts Barons hath ââanted some though not all these Royallââes out of his Munificence a 31 H. 8. c. 5. 33. c. 37 38. 37. c. 18. 8. Thirdly Fee is either noble or Ignoble ââoble is that which hath any Dignity annext to it or which enobles the Possessoâ or concludes him to be noble And of the sort with us are those which we cal Mannââ whose Lords have some Jurisdictions thouââ not Royal over those which hold of their ãâã b Perk. 670. Fulb. par Seig. f. 18. Kitch f. 4 Ignoble is that which depends of such Mannor and is granted to Countrymen ãâã their Heires for some base Service this ãâã commonly called Free-hold 9. Fourthly Fee is either new or anââent * Homage Auncestrell new is there where any one is first all invested by the cheife Lord of the ãâã and that either by the Curtesy of the Loââ or for Money paid to the former
and anciently he that broke faith with his Lord did forthwith forfeit his Estate q Bract. l. 5. tr 3. c. 6. n. 3. 14. Fealty is double one is generall confirmed by the Oath of every Subiect to the sepremacy The other speciall due unto the Lord of the Fâe r Le grand constumier de Normand B. Fle. l. 3. c. 16. the first is constantly exacted at Sheriffs Courts and view of frank-Pledge or Court Leets from all which in the verge or precinct of the County or Leet who are twelve years old otherwise they have no warrant to continue in their Estates s Brac. l. 3. tr 2. c 1. n 1. yet our Ancestors more ancient used not to impose this Oath upon any under fourteen or fifteen t id ib. Flet. l. 1. c. 27. years of age the form of which Bracton thus explaines They shall swear that they will not receive or entertain persons out-lawed Murderers Robbers or Burglaries Nor that they will consent or connive at them or their Receivers and that if they shall know any such they will attaââ them and that if they shall hear any Hââ and Cry they shall immediately follow with their Family and Servants u Brac. cod Flet. cod and Brittââ more briefely w c. 12. when he saith that they shall swear to bear saith unto the King and that they shall neither be Felons themselves nor consent to felonies 15 The form of fealty speciall is double One which is proper to freemen the other to Villaines When a freeman swears fealty to his Lord he laies his right hand upon the Book and saith as followeth Know you this my Lord N. that J. M. shall be faithfull and true unto you and faith to you shall bear for the Lands which I hold of you at the times assigned So help me God and all Saints x Lit. l. 2. c. 2. When a Villaine swears fealty hee shall holde his right hand a little higher then the Booke so that he touch it not and shall say Know you this my Lord N. that J. M. shall from this day forward be true and faithfull to you and faith to you shall beare for the Land which I hold of you in Villainage and I shall be justified by you in body and goods so help me God and all Saints y 14. E. 1. c. 2. Spec. Inst l. 3. 16. Custody or Guard is a reall service proper to a Knights fee by which the Lord hath the guard and care of the fee and that to his owne use without giving any account during the minority of the Infant his Tenant As also the Education and Guard of the Body of the Heir Now every one is with us an Infant till 21. yeares of age if a Male for our Law presumes that Knights service cannot be duely performed till that age z Fortesc c. 44. But we have spoken enough of this already Only this we shall adde That the Lord may if he please alien this his title of Guardianship as wel as any other thing which he hath whence it is that there is a double Guardian namely one of Right as the Lord of the fee The other in Fait which is he to whom the Lord hath aliened the Guard of the Heir and Lands or of the Heir only a Inst com c. 24. 17. Releife is a reall service or Patrimoniall though some call it aptly a fruit or beneficiall profit of a service b Coo. l. 3. case Penantes fo 66. a. due both to Knights service c Brac. l. 2. c. 4. Lit. l. 2. c. 4. Brit. c. 66. fol. 165. a. Flet. l. 3 c. 17. and Socage By which the Feodary Tenant by Knights service whether male or female being at full age at the death of the Ancestor viz. the male 27. the female 14. years of age is obliged to pay a certain summe of money Tenant in Socage paying so much for Releife as he payes d Lit. l. 2. c. 5. 19. H. 7. c. 15. Bro. Tenures 76 Flet. l. 3. c. 17. yearly by way of Rent to his Lord. At what age soever hee be at the death of his Ancestor that without delay e Dr. Stu. l. 1 c. 7. Flet. l. 1. c. 9. so that the first year he payeth his Rent double one by way of Releif the other part by way of Rent f Flet. l. 3. c. 17. For the Lord may immediately distrain that is take whatever he finds upon the Estate by way of pledy untill he shall be satisfied for his Releife g Littl. l. 2. c. 5. So if one hold by fealty and a pound of Pepper the Heir shall pay the first yeare two pounds of Pepper And the Law is the same where the Tenant payes for his Rent yearly a certain number of Capons or Hens or a pair of Gloves or so many bushels of Corn or the like But if in regard of the season the Tenant cannot pay Releife presently then the Lord ought to expect untill a convenient time As in case hee be bound to pay a Rose or a bushell of Roses at the Feast of St John Baptist Here if he dye in Winter the Heir ought not to be distreyned by the Lord untill the season come that Roses may be had h Littl. ib. This the Feodists define to be a Present or Gratuity which the new Vassall bestows upon his Lord for admission upon the death of another Or for any other cause which shall occasion the Estate to come unto him in regard it is now taken up by a new one i Hotoman verb. feodalis ver Relevium 18. And it is to be observed that the Heirs of Earls or Barons ar others that hold of the King in Capite that is in right of his Crown by Knights service If they are at full age at the death of their Ancestors shall pay their accustomed Releife Viz. an Earle 100. pounds a Baron an Hundred Marks The Heir of a Knight for one Knights Fee 100. shillings And if there be any who hold ây a double Knights fee 200. shillings and âo according to the rate k Mag. Ch. c. 2. Instit com c. 24. Flet. l. 3. c. 17. which is also ârue in the cases of other Lords of Fees l Brac. l. 2. c. 36. Brit. c. 69. 19. The Ancients derived this word Reâeife a Relevando because the Inheritance which lay still by the death of the Ancestor was raised up into the hands of the Heir And for this raising up there should be a cerâain fine or acknowledgment paid by the Heir and this they termed Releif m Brac. ib. Brit. ib. 20. Marriage is a reall service belonging âo a Knights fee by which the Lord of the âee hath a power of bestowing his Feodary in Marriage according to his pleasure or at least of claiming the value of the Marriage âf so be that he be under age at the day of the death of his
party slain s 8. Things immoveable whether corporall or incorporall have divers Prescriptions The most usuall is that which is called the longest and is extended beyond the memory of man for whosoever will prescribe against another the maintaining of a Chaplain to celebrate Divine Service in any Church c new bo Ent Act. in Chaplein or the repairing of a Church d Eod tit in reparations or that being present at the Election of the Master of an Hospitall e Eod tit Quare im edit in Hospitall or an Annuity f Eod. tit Annuity in corp politique or the Cognisance of any Plea in his Court g eod serm de breif or any service in his fee h eod Replev in amerciament F. n b. fo 122 he muââ prove them to have been time out of mind or he doth nothing nor do we mean any other then this when we speak generally of Prescription i Dr. Stu l 1 c 8. 9. But there are Prescriptions of shortââ time as of 40 years in the way of Tithing k 2 3 E. 6. c. 13. five years for Lands and Tenements in case of a Fine acknowledged lawfully l Dr. Stu. l. 1 c. 25 l. 2 c 14 Lit. l. 3 c 7 Inst com c 27 Plow 357 Dier fo 72 n 3 of three years in Case of Lands and Tenements held gotten by forcbile Entry and held so long in quiet possession m 8 H 6 c 9 of a year and a day for a villain to assent his liberty against his Lord if he have continued so long in ancient Demesne or in any of the Kings Cities or Towns without being claimed oâ molested n Flet l 2 c 51 F n b fo 77 as also for the Confirmation oâ any Deed made by one who is in Prison unlesse he who made it do in the interim revoke it o Liâ l 3 c 7 Brac l 4 tr 1 c 2. n 7 Brit c 42 Plow f 357 and 372 new Terms ver non claim so also for the hindering the Entry of him who having omitted continuall claim in case of his being uniustly disseised of those Lands and Tenements if he shall endevor to recover them so coming by the right of Succession to the Heir of the Disseisor p Brit c 34 Perk grants 29 10. No prescription of time shal prejudice the Supream Power q Id c 34 Bra l 2 c 5 n 7 nor any Lord but that he may challenge the perquisite of his villain r Brac ib 11. Nor is there a Prescription in all things as for example not in those which are not subiect to commerce nor in those of which the Crown is properly sole Lord s Lit l 2 c 11 nor where the use is repugnant to reason and good manners t Id ib Brac tr nor in case where an alienation cannot be made without an instrument u Brac l 2 c 19 n 4 1 c 38 n 13 and it is agreed amongst some of what things a prescription cannot be and received generall with us that no prescription in Lands maketh a right w Dr. Stu. l. 1. c. 8. 12. Nor can a prescription be of those pertinencies whose principles have not a perpetuall and durable continuance x Dier fo 70. n. 40. or of those things whereof no one can tell what he or his Ancestors particulerly whose Estate he hath did possess y Id. fo 71. n. 42 And lastly a Prescription is of no validity against a Statute afterwards made z Id. of 373. n. 13. 13. It was much controverted among the Ancients how long after one might bring his Writ of Right after the title or Right to Lands or Tenements c. have laine dormant or his Assise or Writ of entry to gain a possession as it were lost by him to whom it appertained a Thaleat Digest br l. 10. c. 21. but this whole Controversy is composed by the prudence of Parliament which hath provided and fitted apt remedies for the difference in each case b 32. H. 8. c. 2. Coo. l. 4. Bevils Case fo 10. â Of Gifts TIT. VII THere are many waies of Acquisition by the civill Law viz. By way of Gift succession Testament and others as shall appear hereafter a Bract. l. 2. c. 4. Flet. l. 3. c. 2. but in regard that amongst all the other causes the most great known and famous is that of Donation or gift therefore it doth worthily challenge the first place for that by it there is a more great and frequent acquisition then any other b Brac. cod c. 5. n. 2. Brit. c. 34. 1. Donation is a certain institution which proceeding out of meer Courtesie and will without any coercive or compulsive Law or Right transfers a thing unto another And to give is to render a thing his that receivs it effectually otherwise that Donation or Giving were uselesse which could be revoked and made void c Bract. eod n. 2. Brit. ib. Flet. l. 3. 2. Our Authors do frequently call a Donation a Feoffment but the word Donation hath a greater latitude for that it doth not only comprehend a free alienation of immoveables but of some moveables also d Bract. l. 2. c. 26. yet in Lands these appellations are distinguished thus A Feoffment is of a Fee simple to the Donee or Feoffee and a Donation or Gift is of an Estate taile e Lit. l. 1. c. 6. 3. Donation in the largest signification is thus divided viz. That it is either amongst those who are still living or upon occasion of Death Of which we shall speak hereafter f Brac. l. 2 c. 5. Flet. l. 2. c. 57. Of gifts some are simple and pure as namely those which proceed no Law or right either civill or naturall inforcing no Reward Fear or Force interveneing from the meer free bounty of the Donor and where the Donor will not in any case that the thing given should revert to him g Brac. l. 2. c. 5. n. 3. and l. 2. c. 10. Flet. l. 3. c. 3. and c. 8 another is from a future Cause namely where any cause is interposed for which a thing shall or shall not be h Dier fo 33. n. 34. under which kinde fall gifts by reason of Marririage Dower i Glan l. 7. c. 1. and c. 18. Bract. l. 2. c. 7. Flet. l. 3. c. 9. or Death c. As if one gives any thing with such an intention that it shall be the Donees when a subsequent thing is performed And these kinde of Gifts are not properly Donations when they are conditionall k Bract. ib. Bri. c. 34. F. N. B. f. 205. h. Flet. l. 3. c. 11. but Donation is sometimes with relation to a cause past l Brit. c. 35. lit c. 5. fo 76 and sometime with relation both to past and future causes m Plowden fo 455 n Bract. l. 2. c. 5.
Croââ Nor will an Obligation to warranty hinder unlesse it were upon Exchange Or otherwise for the value in Fee or service Oâââleast unlesse they were granted for the Cââmodity and Honour of the King as the Bâronies of Bishops a Flet. l. 1. c. 8. 17. c. But this Right ãâã now almost wholly worne out either by the munificency of our Kings or by the ãâã much negligency of our Common-wealth And therefore King James did worthily study a wholsome remedy for so pernicious ãâã mischeife 1. Nor can a Husband so alienate the Inheritance or Joynture of his Wife but thaâ it may be recovered by her or her Heirs after his Decease b Glan l. 6. c 3. Brit. c. 34. F. N. B. fol. 193. d. 2. Those who hold of the King in Capitâ either by Knights service or Socage cannot without punishment alienate their Lands without license c Id. fo 175. A Bro. aliânat tenures 69. 32 H. 8. c. 1. Yet some are of opinion that such alienation is good for the Buyer or Feoffee against the Seller or Feoffor although the King cannot be prejudiced by it d Bro. Testaments 34. 3. An Infant e F. N. B. fo 192. g. Perk. 3. Grants 15. â9 Mad-man f F. N. B. fo 292. C. Monk g Perk. ib. 3. or Feme-covert h Id. ib. c. 11. Bro. Exec. 175. cannot alienate Nor can a villain those things which himself hath purchased i F. N. B. 202. l. if his Lord be possessed of them Or if they be not possessed in case hee be the Kings villain k Littl. l. 2. c. 12. 4. There is also an old Law lately revived by an Act of K. James which to the subversion of the Church was almost lost through neglect wherein Arch-Bishops and Bishops are prohibited to alienate the Fees of their Churches l 1 Jac. ses 1. c. 3. 5. Lastly those who otherwise may alienate in some cases cannot namely Lands or Tenements to a Body politick whether Ecclesiasticall or Seculer m 7. E. 1. 18. E. 3. c. 3. 15. R. 2. c. 5. F. N. B. fol. 221. Q. without obtaining the Kings license for alienating it in Mortmaine And on the other side Religious Colledges which were founded by the Kings of England are prohibited to alienate their Lands without the Kings License and permission n Westminst 2 c. 41. 6. And on the contrary it sometimes happens that he who is not Owner may alienate for a Creditor by contract may alienate a pawne or mortgage although the thing be not his As if it be agreed in the beginning that it shall be lawfull for the Creditor to sell the Pawne if the money be not paid So also may a Wife Apprentice or any other Servant which a Merchant appoints to sell Commodities in his Office or Shop o F. N. B. fol. 120. H. Bro. tit Contract 37. 40. or any other person who hath command from the Owner p New booke of Entries trespass in Agist 1. Ejectm firm 10. 7. And sometimes it falls out that he who hath a full power to alienate a thing cannot doe it but after a certain forme or manner for the King can neither purchase nor alienate without that special method of Entring which we call Record q Plow 553. By what person wee may make acquisition or gaine to our selves TIT. IX NOw we are to know by what persons wee may purchase or gaine to our selves And know that we may legally by our selves our Wives our Servants Male or Female by Sons or Daughters which are under our protection by Free-men who serve us provided their Deed be necessary and warrantable and approved a Brac. l. 1. c. 9. n. 3. l. 2 c. 11. n. 12 c. 18. n. 6. l. 3. tr 1. c. 2. n. 12. Brit c. 35. 38. Lit. l. 2. c. 11. Dr. Stu. l. 1. c. 8. l. 2. c. 18. And also by those Servants b Flet. l. 3. c. 13. c. 15. l. 4. c. 11. c. 12. who are not under our power as well as by those who are provided they be not under anothers yet so as we take no benefit by them before it be determined whose they are so also by a Common Servant and that as well by anothers as ones owne which we do bona fide possesse and by such a one of whom we have an use 1. And this may be done also by Procurators Tutors Keepers or Guardians who either bargain in our name or are in possession c Brac. l. 2. c. 18. n. 6. Flet. l. 3. c. 4. c. 15. And the same is to be understood of those who are naturally deafe and dumb d Id. ib. 2. The Sons and Daughters also of Villains which are under the power of their Lord without manumission If they make a purchase without the bounds of the villainage have no Heir but their Lord. If so be that he take possession of such Tenements either in the life of his Villain after his Death e Brac. l. 4. âr 3. c. 13. n. 1. Of ordaining last Wills and Testaments TIT. X. THe third kind of Donations which are by reason of Death are last Wills and Testaments a Brac. l. 2. c. 26. Flet. l. 2. c. 57. Now a Testament is the determination of our Will concerning that which one would have done after his decease b l. 1. de â Testament And it is double Viz. Proper or Improper That which is properly so called is that last Decree of a man in which hee names his Executor c Brc. Test 20. And hee is in the place of him whom the Romans called Haeres is as the Basis of the Testament d Swin par fo 1. Sect. 3. n 19. representing the state of the Testator That which is improperly called a Testament is any other lasâ wil whether a Codicel or Donation by occasion of Death or Letter e Valiâius in com sup Instit tit de Testam ord in pri n. 9 10 11. And either of these may be two-fold Viz. either written or Nuncupative f Perk. Testam 476. but Lands cannot be given by a Nuncupative will g 32. H. 8. c. 1. Coo. l. 3. Bakers case fo 31. Dier fol. 53. n. 13. fol. 72. n. 2. fol. 143. n. 54 55. 1. That rigorous way of Solemnity which the Romans used in making of Wills is long since abrogated by the Canon Law which counts two Witnesses before the Parish Priest sufficient to maintain or prove a Will h C. cum esses 10. extra testamentis Nor doth the Custome of England oblige so much as the Decretall for with us it is sufficient to pronounce a will before two Free-men whether Clergy or Lay i Brac. l. 1. c. 16. n. 2. Glan l. 7. c. 6. Dier fo 52. n. 13. Yet our Sages doe for very good reason perswade men
upon their denyall then of any two honest men who are obliged to take true and faithfull Inventory of all the Goods and Chattels Moveables Immoveables which the Party deceased had at the time of his death and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented The one to be reserved to themselves the other to be delivered to the Ordinary But if the Testator had appointed any of his lands or Tenements to be sold the money or profits thence arising are not to be put into the Inventory c 21. H. 8. c. 5. Swinb part 6. Sect. 9. 2. But the Heirs are obliged to satisfie the Debts of their Ancestors which the Chattels will not suffice to doe d Glan Brac. ubi sup Yet if the whole Estate of the Testator would not suffice to pay Debts then the Kings Prerogative excepted there used in former times to be a defalcation every where e Brac. ib. 3. And even at this instant the Law is that Legacies are not to be paid before debts be satisfied for in such cases the Executor is bound to pay the Creditors out of his own Estate f Dr. Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488. yet is hee not tyed to pay every one that demands a Debt but those only against whom the Testator had he lived could not have waged his Law g Bro. ib. 79. 87. 127. 163. 172. Dr. Stu l. 2. c. 11. Plo. 181. Dyer fol. 23. n. 144 145 fol. 80. n. 53 54 55. 4. The ancient Law seems to be somewhat changed as to the priviledg of Creditors Yet even now it seems that the Executor may in the first place allow moderat Funeral charges and then satisfie Creditors according as the Law prescribes and of those the King is first by his Prerogative h Mag. Char. c. 18. Next him those to whom the Testator was obliged by Statute-Merchant or Recognisance In the third place those who have Judgments against the Testator i Swinb part 6. Sect. 16. Fourthly penall Obligations k Bro. ib. n. 88. 172. And of these those have priority whose dayes for payment are lapsed l Dyer fo 80. n. 54. and of those if there be many they who sue first But if they commence their suits together Or that dayes of payment be not yet come then it is in the power of the Executor to gratifie whom he pleaseth Next to penall Obligations follow simple Bills m Swinb ubi super as wee call them And lastly Contracts without writing against which the Testator could not wage his Law As Servants Sallaries and Rent of Lands or Houses whereof the Testator was Lessee for years or life and the like n Bro ib. n. 33. 87. 127. 163. But as for made Contracts Executors are not obliged to pay them o Id. ib. Yet according to the opinion of some these have their remedy in an Action upon the case upon a promise of the Testator p Termes v. Execut. 5. If a Creditor be made Executor hee may in the first place satisfie himselfe after which he is bound to pay the other Creditors out of the residue q Plow fol. 185. 6. If after Debts paid there remaines enough to satisfie Legacies every Legatee may of right claime his whole Legacy Otherwise only according to the proportion of the Estate and the quantity of all the Legacies Yet so that the Executor may first deduct charges bonafide expended and desperate Debts But under the notion of lex falcidia we have not any thing nor is there any thing in that nature required from the Office of a Judge But as to those Goods which are not devised they are convertible to the use of the Executor r Perk. 525. 7. Executors of Executors are obliged to the payment of the first Testators Debts unlesse his Goods appeare to be fully administred by their Testator s Dyer fo 174. n. 21 22. 25. Ed. 3. Stat. 5. c. 5. Of those Trustees which the Romanâ called Fidei Commissarii Haeredes ad sanatusconsultum trebellianum TIT. XXIII THese Inheritances are out of use with us yet those Trusts are something parallell to them by which wee are used to give our Lands to Strangers to the use of us and our Heirs or to private persons to the use and profit of a Body politick But those inventions of Uses being injurious to the Prince and to the Lord of the Mannor a Coo. l. 1. Shudleys case fol. 123. are by Acts of Parliament either wholly taken away or at least for the most part altered b 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10. Of things left Per fidei commissum TIT. XXIV OF those things which were by the Romans termed Fidei commissa excepting those which are appointed to the next Title we have no mention in our Law they being left wholly to the Civill Lawes definitions Of Codicills TIT. XXV THe terme Codicillus is seldome used with us wherefore in this we only follow that which we borrow from the Civill and Common Law unlesse it containe either a Fee or a Free-hold In which cases they are to be proved only before an Ecclesiasticall Judge and to receive their Interpretation according to the Lawes of the Land The End of the Second Booke THE Third Book of the Institutes of the Lawes of ENGLAND Of Inheritances which are conveighed from such as dye even Intestate TIT. I. THERE is also another way of gaining Dominion which is by Succession and which happens to all Heirs of such things whereof their Ancestors dyed seised in Fee or whereof they were at any time seised as of Fee by Right of Inheritance without having alienated them And this Discent ought to be to the next Heirs Males or Females in a direct or transverse line Wherefore Right like all heavy things falls downwards direââly or transversely nor doth it ever ascend ãâã same way by which by the death of the âncestor it discends yet doth it collaterally âscend sometimes for want of Heirs to whom ãâã may discend a Glan l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2. 1. A Right discends to the Heir whereââever born whether in the womb or beyond ãâã on this side the Sea and that whether within or without the Dominions of the King Provided his Parents be the Kings Leige People and that the Mother went over Sea with her Husbands leave nor can any man create to himself an Heir because God only makes them and because Haeres is not ab Haereditate but Haereditas ab Herede 2. Now Inheritance is a Succession to the whole right which the Ancestor deceased had in Fee upon what cause soever whether by Acquisition or Succession with Seisin or without and if by Seisin then at whatsoever he was
Kitchin tit Escheat f. 110. Of the Tertullian Decree TIT. 3. WEE in the case of Fees follow the Rigour of the twelve Tables which will by no means suffer an ascending from Children to Parents a Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a Tertuilian or Claudius to perswade our Senate to the contrary Of the Orphitian Decree TIT. IV. CHildren with us doe equally succeed to Inheritances comming from the Fathers or Mothers side and that by the same rules and in the same degrees a Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius Of the Succession of Cozens by the Mothers side TIT. V. THe Romans called those particulerly Cognati which were allied by the female side a Ult. S. 1. â de gradibus affinitatis but there remaines nothing to be spoken of them the two former Titles being considered b viz. The first and second of this booke where we have shewn That these are never to succeed as Heires but for default of Heires on the Fathers side which is so to be understood that the most remote Cozens on the Fathers side discending in a direct line but not in a collaterall are to be preferred before the neerest on the Mothers side for the great great Grand-child of my ââneall Niece or of my Sister shall succeed ãâã before my Sons or Daughters Cozen-âerman c Bract. l. 2. c. 30. and 31. 1. This breifly I thought also to insert that ãâã default of Heirs in a right line discending ãâã in each collaterall line the Land shall âscheat to the Lord of the Fee d Glan l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143. Of the degrees of Consanguinity TIT. VI. HAving mentioned degrees it is requisite to take a view of the persons who are ân possibility of succession and who are preferred before others in succession from the first degree of the same line to the last a Bract. l. 2. c. 31. n. 2. 1. In the right line ascending are these Grand-Father great Grand-Father the great Grand-Fathers Father the great Grand-Fathers Grand-Father the great Grand-Fathers great Grand-Father and so ad infinitum b Id. ib. Flet. l. 6. c. 2. 2. In the right line discending Father and Mother are first which make the common root then Son and Daughter the Nephew and Neice and so Ad infinitum c Brac. and Flet. ib. 3. In the collaterall line ascending Brother or sister of Father or Mother make the second degree and so their Heirs Ad infinitum d Id. ib. 4. In the collaterall line discending are Brother and Sister and their Heires Ad infinitum e Id. ib. Of the Consanguinity of those who are servile TIT. VII THis Title is with the ancient Civilians reckoned as part of the former a Wesenb in the same Title noâ doth our Law determine any thing in the cases of such as are manumitted contrary to the rules of those who are born free there Marriages being a like lawfull Of the succession of such as are made free TIT. VIII PAtrons are not with us admitted to succeed those who are made free in case they dy without Issue wherefore if any one purchase a Fee after Manumission and dy without Heirs the Lord of the Fee shall claim it by Escheat and not he who gave the party deceased his freedome a F. N. B fol. 143. T. c. the same rules are also for the Chattells of such dying Intestate as for those who were born free Of the assignation of such as are made free TIT. IX THere is no difference with us between those who are manumitted and those who are born free save that they some time were Servants wherefore we have no use of this kinde of Assignation in our Common-weath Of the possession of Goods TIT. X. THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of service in Capite for he by his Prerogative hath the primer seisin of Lands a Stan. Prerog c. 3. and 13. F. N. B. fo 255. and. 256. c. nor can the Heires receive them but by his hands those who hold of other Lords by Knights service much more Tenant in Socage so soon as they come of age enter upon their Estates by right and in case their Lords hinder them may have their Action having satisfied the value of their marriage b 1. But for those goods which we call Chattells the Ecclesiasticall Judge who is in stead of the Ordinary give possession of them according to the Will or at least confirm the possession being taken to the Executors of the party deceased but if there be no Will then he grants Administration to the widow or next kinsman of the party deceased yet so that the goods shall be distributed according to his Judgement either amongst c 31 Ed. 3. c. 11. them or for pious uses d Linw. provin Of acquiring by Adrogation or Adoption TIT. XI THere is nothing hinders but that the English may adrogate or adopt and be adopted but in this Case the consent of both parties is solely essentiall for our Law determines nothing of this kind of acquisition unlesse that which naturally falls out between party and party in contracts Of him to whom Goods are granted for Liberty TIT. XII AS for those Servants who receive their Freedome from their Lords by Testament the cheif thing is the performance of the Will for it is not materiall whether the Executor will accept the Office For we have shewn before how ungratefull that old solemnity of the Romans in Case of Wills is to us Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree TIT. XIII WE have not this kind of acquisition amongst us yet have we something like unto it for the Fees and all other the Goods of Banckrupts who having consumed their fortunes withdraw themselves That their Creditors may not arrest them wheresoever they be found are divided towards the satisfaction of Creditors by such Honourable persons whom the Statutes in this Case mention a 34 H. 8. c. 4 13 Eliz. c. 7. but above all that most famous Act in King James his time doth most carefully provide in these Cases b 1 Jacob. Ses 1. c. 15. Of Obligations TIT. XIIII WE have before treated of persons and things and are now to speak of Actions a Brac. l. 3. tr 1. c. 1. now an Action comes from precedent Obligations as a Child from a Mother b Id. ib. n. 2. an Obligation is a legall Bond or tie whereby we are necessarily bound to the giving or doing of any thing c id ib. c. 2. n. All civill Obligations may be divided into two kinds Obligations by the Common Law and by