Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

VOLUME 3, CHAPTER 28
Of Title by Custom

A FOURTH method of acquiring property in things personal, or chattels, is by custom: whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless, should I attempt to enumerate all the several kinds of special customs, which may entitle a man to a chattel interest in different parts of the kingdom: I shall therefore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz. heriots, mortuaries, and heirlooms.

1. HERIOTS, which were slightly touched upon in a former chapter,1 are usually divided into two sorts, herio-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:2 the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom.3 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.

THE first establishment, if not introduction, of compulsory heriots into England, was by the Danes: and we find in the laws of king Canute4 the several heregeates or heriots specified, which were then exacted by the king on the death of diverse 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,5 signifies. These were delivered up to the sovereign of the death of the vassal, who could no longer use them, to be put into other hands for the service and defense of the country. And upon the plan of this Danish establishment did William the conqueror fashion his law of reliefs, as was formerly observed;6 when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to be feudal custom and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money.7

THE Danish compulsive heriots, being thus transmuted into reliefs, underwent the same several vicissitudes as the feudal 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.8 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 favored the lord. For this payment was originally 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 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 case it is most commonly a copyhold enfranchised, whereupon the heriot is still due of custom. Bracton9 speaks of heriots as frequently due on the death of both species of tenants: “est quidem alia praestatio quae nominatur heriettum; ubi tenens, liber vet servus, in morte sua, dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam locorum consuetudinem.” And this, he adds, “magis fit de gratia quam de jure“; in which Fleta10and Britton11 agree: thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in the lord.

THIS heriot is sometimes the best live beast, or averium, which the tenant dies possessed of, (which is particularly denominated the villein’s relief in the 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,12 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.13 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 ancient 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.14

2. MORTUARIES are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very may parishes on the death of his parishioners. They seem originally to have been, like lay heriots, only a voluntary bequest to the church; being intended, as Lyndewode informs us from a constitution of archbishop Langham, as king 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, after15 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, ecclesiae suae, sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animae suae.”16 And therefore in the laws of king Canute17 this mortuary is called soul-scot (raplrceat) or symbolum animae. 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 merchandise, jewels, and other moveables.18 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 the grievance.19

IT was anciently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried; and thence20 it is sometimes called a corse-present: a term, which bespeaks it to have been once a voluntary donation. However in Bracton’s time, so early as Henry III, we find it riveted into an established custom: insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. “Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliori“: the lord must have the best good left him as an heriot; and the church the second best as a mortuary. But yet this custom was different in different places: “in quibusdam locis habet ecclesia melius animal de consuetudine: in quibusdam secundum, vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci.”21 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 recompense given to the bishop, by the statute 12 Ann. St. 2. c. 6. And in the archdeaconry of Chester a custom also prevailed, that the bishop, who is also archdeacon, should have at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring.22 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 Coke23 apprehends, that this is a duty due upon death and not a mortuary: a distinction which seems to be without 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, and cover: his basin, and ewer: his gold ring: and, lastly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter.24

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 king 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, 10 s. and no more. And no mortuary shall throughout the kingdom be paid for the death of any feme-covert; nor 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.

3. HEIRLOOMS are such goods and personal chattels, as, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon original; in which language it signifies a limb or member;25 so that an heirloom is nothing else, but a limb or member of the inheritance. They are generally such things as cannot be taken away without damaging or dismembering the freehold; otherwise the general rule, is that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor.26 But deer in a real authorized park, fishes in a pond, doves in a dove-house, etc, though in themselves personal chattels, yet they are so annexed to and so necessary to the well-being of the inheritance, that they shall accompany the land wherever it vests, by either descent or purchase.27 For this reason also I apprehend it is, that the ancient jewels of the crown are held to be heirlooms:28 for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise, and deeds, court-rolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heirlooms, and shall not go to the executor.29 By special custom also, in some places, carriages, utensils, and other household implements may be heirlooms;30 but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, “quod ab aedibus non facile revellitur,”31 is become a member of the inheritance, and shall thereupon pass to the heir; as marble
chimney-pieces, pumps, old fixed or dormant tables, benches, and the like.32 A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable king, calling them, by a very peculiar appellation, praedia volantia, or volatile estates: such as beds, tables, and other heavy implements of furniture, which (as an author of their own observes) “dignitatem istam nacta sunt, ut villis, sylvis, et aedibus, aliisque praediis, comparentur; quod solidiora mobilia ipsis aedibus ex destinatione patrisfamilias cohaerere videantur, et pro parte ipsarum aedium testimentur.”33

OTHER personal chattels there are, which also descend to the heir in the nature of heirlooms, as a monument or tombstone in a church, or the coat-armor there hung up, with the pennons and other ensigns of honor, suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir.34 Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir.35 But though the heir has a property in the monuments and escutcheons of his ancestors, yet he had none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it: and, if any one in taking up a dead body steals the shroud or other apparel, it will be felony;36 for the property thereof remains in the executor, or whoever was at the charge of the funeral.

BUT to return to heirlooms: these, though they be mere chattels, yet cannot be devised away form the heir by will; but such a devise is void,37 even by a tenant in fee-simple. For, though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since as the inheritance was his own, he might mangle or dismember it as he pleased; yet, they being at his death instantly vested in the heir, the devise (which is subsequent, and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended.


Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    pag. 97.
     2.    2 Saund. 166.
     3.    Co. Cop, § 24.
     4.    c. 69.
     5.    of feuds. c. 18.
     6.    pag. 65.
     7.    LL. Guil. Conqu. C. 22, 23, 24.
     8.    Lambard. Peramb. of Kent. 492.
     9.    l. 2. c. 36. § 9.
   10.    l. 3. c. 18.
   11.    c. 69.
   12.    Hob. 60.
   13.    Keilw. 84. 4 Leon. 239.
   14.    Co. Cop. § 31.
   15.    Co. Litt. 185.
   16.    Provinc. l. 1. tit. 3.
   17.    c. 13.
   18.    Panormitan. ad Decretal. l. 3. t. 20. c. 32.
   19.    Sp. L. b. 28. c. 41.
   20.    Selden. hist, of tithes. c. 10.
   21.    Bracton. l. 2. c. 26. Flet. l. 2. c. 57.
   22.    Cro. Car. 237.
   23.    2 Inst. 491.
   24.    pag. 413.
   25.    Spelm. Gloss. 277.
   26.    Co. Litt. 388.
   27.    Co Litt. 8.
   28.    Ibid. 18.
   29.    Bro. Abr. tit. chatteles. 18.
   30.    Co. Litt. 18. 185.
   31.    Spelm. Gloss. 277.
   32.    12 Mod. 520.
   33.    Stockmans de jure devolutionis. c. 3. § 16.
   34.    12 Rep. 105. Co. Litt. 18.
   35.    3 Inst. 202. 12 Rep. 105.
   36.    3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515.
   37.    Co. Litt. 185.