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 heir-looms.

1. HERIOTS, which were slightly touched upon in a former chapter, 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 c. 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. (1)

a

Pag.97.

2 Saund. 166.

b Co. Cop. § 24.

(1) By custom, a heriot may be due upon alienation, as well as on the deccase of the tenant. 1 Scriven. 431.

THE first establishment, if not introduction, of compulsory heriots into England, was by the Danes: and we find in the laws of king Canute 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, 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.

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 ori ginally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowledgment 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 one hand confirmed the tenant's interests in exclusion of the [424] lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. An heriot may

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. 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 mortuary to church along with the corpse when it came to be buried; and thence " it is sometimes called a corse-present: a term which bespeaks it to have been once a voluntary dona[426] tion. 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 facerit, dominum suum de me"liori 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: " quibusdam "locis habet ecclesia melius averium de consuetudine; vel se"cundum, vel tertium melius; in quibusdam nihil: et ideo con"sideranda est consuetudo loci w." This custom still varies in different places, not only as to 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 recompence given to the bishop, by the stat. 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 its room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature: though sir Edward Coke' apprehends, that this is a duty due upon death and not a mortuary: a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by sir Edward Coke, is entitled to six things: the bishop's best horse or palfrey, with his furniture; his cloak, or gown, and tippet; his cup [427] and cover; his bason and ewer; his gold ring; and, lastly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter.2

THIS variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds or expensive litigations on the other; it was thought proper by statute 21 Hen. VIII. c.6. to reduce them to some kind of certainty. For this purpose it is enacted, that all mortuaries or corse-presents to parsons of any parish, shall be taken in the following manner; unless where by custom less or none at all is due: viz. for every person who does not leave goods to the value of ten marks, nothing: for every person who leaves goods to the value of ten marks and under thirty pounds, 3s. 4d.; if above thirty pounds and under forty pounds, 6s. 8d.; if above forty pounds, of what value soever they may be, 10s. and no more. And no mortuary shall throughout the kingdom be paid for the death of any femecovert; nor for any child; nor for any one of full age, that is not a housekeeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day.

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. 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 mortuary to church along with the corpse when it came to be buried; and thence" it is sometimes called a corse-present: a term which bespeaks it to have been once a voluntary dona[426] tion. 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 facerit, dominum suum de me"liori 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: " quibusdam "locis habet ecclesia melius averium de consuetudine; vel se"cundum, vel tertium melius; in quibusdam nihil: et ideo con"sideranda est consuetudo loci w." This custom still varies in different places, not only as to 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 recompence given to the bishop, by the stat. 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