BOOK II. THE first establishment, if not introduction, of compulfory heriots into England, was by the Danes: and we find in the laws of king Canute the feveral beregeates or heriots fpecified, which were then exacted by the king on the death of divers of his fubjects, according to their refpective dignities; from the highest eorle down to the most inferior thegne or landholder. Thefe, for the most part, confifted in arms, horses, and habiliments of war; which the word itfelf, according to Sir Henry Spelman, fignifies. These were delivered up to the fovereign on the death of the vasal, who could no longer use them, to be put into other hands for the fervice 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 precife relief to be taken of every tenant in chivalry, and, contrary to the feodal custom and the ufage of his own duchy of Normandy, required arms and implements of war to be paid instead of money %.

THE Danish compulfive heriots, being thus transmuted into reliefs, underwent the fame feveral viciffitudes as the feodal tenures, and in focage estates do frequently remain to this day in the fhape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preferve that name, feeming rather to be of Saxon parentage, and at first to have been merely discretionary ‘. Thefe are now for the most part confined to copyhold tenures, and are due by cuftom only, which is the life of all eftates by copy; and perhaps are the only inftance 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 cuftom, 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 alfo appertain to free land, that is held by fervice and fuit of court; in which case it is most commonly a copyhold enfranchised, whereupon the heriot is ftill due by cuftom. Bracton fpeaks of heriots as frequently due on the death of both species of tenants: "eft quidem alia praeftatio quae nomi"natur heriettum; ubi tenens, liber vel fervus, in morte fua "dominum fuum, de quo tenuerit, refpicit de meliori averio fuc, "vel de fecundo meliori, fecundum diverfam locorum confuetudiAnd this he adds, " magis fit de gratia quam de jure;" in which Fleta and Britton agree: thereby plainly intimating the original of this cuftom 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.

"nem."

THIS heriot is fometimes the beft live beaft, or averium, which the tenant dies poffeffed 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 perfonal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord ", becomes vefted 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, elfe it cannot be due; and therefore on the death of a feme-covert no heriot can be taken; for fhe can have no ownership in things perfonal". In fome places there is a customary compofition in money, as ten or twenty fhillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indifputably antient cuftom; but a new compofition of this fort will not bind the representatives of either party; for that amounts to the creation of a new cuftom, which is now impoffible.

2. MORTUARIES are a fort of ecclefiaftical heriots, being a customary gift claimed by and due to the minister in very many parishes on the death of his parishioners. They seem originally to have been, like lay heriots, only a voluntary bequeft to the church; being intended, as Lyndewode informs us from a conftitution of archbishop Langham, as a kind of expiation and amends to the clergy for the perfonal tithes, and other ecclefiaftical 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 beft chattel was referved to the church as a mortuary: "fi decedens plura habuerit animalia, optimo cui de jure "fuerit debitum refervato, ecclefiae fuae fine dolo, fraude, few "contradictione qualibet, pro recompenfatione fubtractionis deci"marum perfonalium, necnon et oblationum, fecundum melius ani "mal refervetur, poft obitum, pro falute animae fuae." And therefore in the laws of king Canute this mortuary is called foul-fcot (raphyceae) or fymbolum animae. And, in pursuance of the fame principle, by the laws of Venice, where no perfonal 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 alfo, by a fimilar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confeffion, was formerly deprived of christian burial: or, if he died inteftate, the relations of the deceafed, jointly with the bifhop, 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'.

IT was antiently ufual in this kingdom to bring the mortuary to church along with the corpfe when it came to be buried; and thence" it is fometimes called a corse present : a term which befpeaks it to have been once a voluntary dona426] tion. However in Bracton's time, fo early as Henry III. we

find it rivetted into an establifhed cuftom: infomuch that the bequests of heriots and mortuaries were held to be neceffary ingredients in every teftament of chattels. "Imprimis autem "debet quilibet, qui teftamentum fecerit, dominum fuum de me"liori re quam habuerit recognofcere; et poftea ecclefiam de alia "meliori:" the lord must have the best good left him as an heriot; and the church the fecond beft as a mortuary. But yet this custom was different in different places: " in qui"bufdam locis habet ecclefia melius animal de confuctudine ; in qui"bufdam fecundum, vel tertium melius; et in quibufdam nihil: "et ideo confideranda eft confuetudo loci." This cuftom still varies in different places, not only as the mortuary to be paid, but the perfon to whom it is payable. In Wales a mortuary or corfe-prefent was due upon the death of every clergyman to the bishop of the diocese; till abolished, upon a recompenfe given to the bishop, by the ftatute 12 Ann. ft. 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, faddle, and fpurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best fignet or ring *. But by statute 28 Geo. II. c. 6. this mortuary is directed to cease, and the act has fettled upon the bishop an equivalent in it's room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature: though fir Edward Coke apprehends, that this is a duty due upon death and not a mortuary: a distinction which feems to be without a differFor not only the king's ecclefiaftical character, as fupreme ordinary, but also the species of the goods claimed, which bear fo near a refemblance to thofe in the archdeaconry of Chefter, which was an acknowleged mortuary, puts the matter out of difpute. The king, according to the record vouched by fir Edward Coke, is entitled to fix things; the bishop's beft horfe or palfrey, with his furniture: his cloak, or gown, and tippet: his cup, and cover: his bason and ewer: [ 427 ]

ence.

w Bracton. 1. 2. c. 26. Flet. l. 2. c. 578 * Cro. Car. 237.

Kk3

Y 2 Inft. 491.

his

his gold ring: and laftly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter.

THIS variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one fide, and frauds or expenfive litigations on the other; it was thought proper by ftatute 21 Hen. VIII. c. 6. to reduce them to fome kind of certainty. For this purpose it is enacted, that all mortu aries, or corse-presents to parsons of any parish, shall be taken in the following manner; unless where by cuftom 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. 8 d. if above forty pounds, of what value foever they may be, 10s. and no more. And no mortuary fhall 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 ftatute stands the law of mortuaries to this day.

3. HEIR-LOOMS are fuch goods and perfonal chattels, as, contrary to the nature of chattels, fhall go by fpecial custom to the heir along with the inheritance, and not to the execu tor of the last proprietor. The termination, loom, is of Saxon original; in which language it fignifies a limb or member; fo that an heir-loom is nothing elfe, but a limb or member of the inheritance. They are generally fuch things as cannot be taken away without damaging or difmembering the freehold: otherwife the general rule is, that no chattel interest whatsoever shall go to the heir, notwithstanding it be exprefsly limited to a man and his heirs, but shall vest in the executor (1). But deer in a real authorized park, fishes in a Spelm. Glof. 277. Co. Litt. 388.

2 pag. 413.

(1) Or if any chattel be given to a man and the heirs of his body, he takes the entire and abfolute intereft in it. There have

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