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CHAPTER XXVIII.: OF TITLE BY CUSTOM. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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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,1 which were slightly touched upon in a former chapter,(a) 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 there fore amount to little more than a mere rent:(b) 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.
**423]The first establishment, if not introduction, of compulsory heriots into England, was by the Danes: and we find in the laws of king Canute(d) the several heregeates or heriots specified which were then exacted by the king on the death of divers of his subjects, according to their respective dignities; from the highest eorle down to the most inferior thegne or land holder. These, for the most part, consisted in arms, horses, and habiliments of war; which the word itself, according to Sir Henry Spelman,(e) signifies. These were delivered up to the sovereign on the death of the vassal, 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 relief, as was formerly observed;(f) when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feodal custom and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money.(g)
The Danish compulsive heriots, being thus transmuted into reliefs, underwent the same several vicissitudes as the feodal tenures, and in socage estates do frequently remain to this day in the shape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary.(h) These are now for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy, of the tenant: perhaps in acknowledgment of his having been raised a degree above villeinage, when all his goods and chattels were quite at the mercy of the lord; and **424]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 heroit is still due by custom. Bracton(i) speaks of heriots as frequently due on the death of both species of tenants:—“est quidem alia præstatio quæ nominatur heriettum; ubi tenens, liber vel servus, in morte sua, dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam locorum consuetudinem.” And this, he adds, “magis fit de gratia quam de jure;” in which Fleta(k) and Britton(l) 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 William the Conqueror,) sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a personal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord,(m) becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant must be the owner of it, else it cannot be due; and therefore, on the death of a feme-covert, no heriot can be taken; for she can have no ownership in things personal.(n) In some places there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputably antient custom; but a new composition of this sort will not bind the representatives of either party; for that amounts to the creation of a new custom, which is now impossible.(o)2
*[*4252. Mortuaries are a sort of ecclesiastical 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 bequest to the church; being intended, as Lyndewode informs us from a constitution of archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their lifetime might have neglected or forgotten to pay. For this purpose, after(p) the lord’s heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary: “si decedens plura habuerit animalia, optimo cui de jure fuerit debitum reservato, ecclesiæ suæ sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animæ suæ.”(q) And therefore in the laws of king Canute(r) this mortuary is called soul-scot () or symbolum animæ. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandise, jewels, and other movables.(s) So also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of Christian burial: or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church in case he had made a will. But the parliament, in 1409, redressed this grievance.(t)
It was antiently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried; and thence(u) it is sometimes called a corse-present: a *[*426term 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.”(w) This custom still varies in different places, not only as the mortuary to be paid, but the person to whom it is payable. In Wales the 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 Anne, 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.(x) 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(y) 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 **427]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.(z)
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 feme-covert; 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.
3. Heir-looms3 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;(a) so that an heir-loom 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.(b)4 But deer in a real *[*428authorized park, fishes in a pond, doves in a dove-house, &c., 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.(c) For this reason also I apprehend it is, that the antient jewels of the crown are held to be heir-looms;(d) for they are necessary to maintain the state, and support the dignity, of the sovereign for the time-being. Charters likewise,5 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 heir-looms, and shall not go to the executor.(e) By special custom also, in some places, carriages, utensils, and other household implements, may be heir-looms;(f) 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 ædibus non facile revellitur,”(g) is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like.(h) A very similar notion to which prevails in the duchy of Brabant; where they rank certain things movable among those of the immovable kind, calling them by a very particular appellation, prædia 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 ædibus, aliisque prædiis, comparentur; quod solidiora mobilia ipsis ædibus ex destinatione patrisfamilias cohærere videantur, et pro parte ipsarum ædium æstimentur.”(i)
Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone in a church, or the coat-armour of his ancestor there *[*429hung up, with the pennons and other ensigns of honour, 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.(k) Pews6 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.(l) But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has 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;(m) for the property thereof remains in the executor, or whoever was at the charge of the funeral.7
But to return to heir-looms; these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void,(n) even by a tenant in fee-simple.8 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.9
[1 ] As to heriot-service and custom in general, see Com. Dig. Copyhold, K. 18. Bac. Abr. Heriot. Watkins on Copyhold. 2 Saunders, index, Heriot. A heriot may be due to the lord upon alienation by his tenant, by custom. Com. Dig. tit. Copyhold, K. 18. 1 Scriven, 431. It is only payable on death of legal tenant. 1 Vern. 441.
It was decided in the case of Attree vs. Scutt, 6 East, Rep. 476, that if a copyhold (which, upon being divided into several tenancies, entitled the lord to a heriot for each) became reunited in one, the tenant would be bound to render to the lord the several heriots; but this decision was overruled in the case of Garland vs. Jekyll, 2 Bingh. Rep. 273, C. J. Best observing that the authority which appeared to govern the court in the former case (Fitz. Abr. tit. Heriot, pl. 1) ought to have no weight, because there is no such authority as that referred to by Fitzherbert, and no judges of the names given could be found to have existed at that time. His lordship further observes, “there is nothing in any book, or in any modern treatise, that goes the length of showing that when the estates are again united the several heriots continue to be paid. We are to say whether, without any custom being found, it is the necessary legal consequence that, when an estate has been divided and again reunited, all the heriots are to be paid after the reunion of the several estates that were paid whilst it was divided. We say there is no such law, no such doctrine.” 2 Bingh. Rep. 303. A custom for the homage to assess a compensation in lieu of heriot, to be paid by an incoming copyholder on surrender or alienation, is not good. If the lord set up a custom to have the best live or dead chattel as a heriot, quere if the tenant can modify that custom by pleading another, that the homage shall assess a compensation in lieu of the heriot. 1 B. & P. 282.—Chitty.
[(a) ] Page 97.
[(b) ] 2 Saund. 166.
[(c) ] Co. Cop. 24.
[(d) ] C. 69.
[(e) ] Of Feuds, c. 18.
[(f) ] Page 65.
[(g) ]LL. Gull. Conq. c. 22, 23, 24.
[(h) ] Lambard, Peramb. of Kent, 492.
[(i) ]L. 2, c. 36, 9.
[(k) ]L. 3, c. 18.
[(l) ] C. 69.
[(m) ] Hob. 60.
[(n) ] Keilw. 84. 4 Leon. 239.
[(o) ] Co. Cop. 31.
[2 ] And, indeed, heriots themselves will in course of time cease to be exigible, one of the Copyhold Enfranchisement Acts (15 & 16 Vict. c. 51, 27) having enabled either lord or tenant to compel the extinguishment of this ancient feudal burden.—Kerr.
[(p) ] Co. Litt. 185.
[(q) ]Provinc. l. 1, tit. 3.
[(r) ] C. 13.
[(s) ] Panormitan, ad Decretal. l. 3, t. 20, c. 32.
[(t) ] Sp. L. b. 28, c. 41.
[(u) ] Selden, Hist. of Tithes. c. 10.
[(w) ] Bracton, l. 2, c. 26. Flet. l. 2, c. 57.
[(x) ] Cro. Car. 237.
[(y) ] 2 Inst. 491.
[(z) ] Page 413.
[3 ] A court of equity will never fetter personal property by adjudging it to be held under a will as an heir-loom, upon presumption; more especially in the case of a testator who, when such was his intention, knew how to express it. A claim which in effect attempts to restrain alienation, and permanently to give to personalty the character of annexation to realty, can only be enforced on clear proof, not by doubts on the construction of a will. Saville vs. Lord Scarborough, 1 Swanst. 546. Boon vs. Cornforth, 2 Ves. Sen. 280. Wythe vs. Blackman, 1 Ves. Sen. 202. Still, where a testator has directed that certain personal chattels shall go as heir-looms, though the limitation may not have been made in such terms as the law, in a strict sense, requires for settling heir-looms, lord Hardwicke seems to have held that a court of equity should be disposed to give effect to the clear intent, as far as it can be made consistent with the rules of law. Gower vs. Grosvenor, Barnard, 56, 63, S. C. 5 Mad. 338, 349. Trafford vs. Trafford, 3 Atk. 349. And lord Eldon is reported to have said that heir-looms are a kind of property which, like all specific bequests, are rather favourites of the court of chancery. Clarke vs. The Earl of Ormonde, Jacob’s Rep. 115. However this may be, it is settled that the absolute interest in chattels so given vests in the first tenant in tail who comes in esse. Carr vs. Lord Errol, 14 Ves. 487. And lord Hardwicke himself admitted that, in the case of Gower vs. Grosvenor, he went to the utmost allowable extent of construction in favour of heir-looms. Duke of Bridgwater vs. Egerton, 2 Ves. Sen. 122. But, where a personal chattel has been well limited as an heir-loom, a bill in equity will hold for a specific delivery thereof to the party entitled to the possession. Earl of Macclesfield vs. Davis, 3 Ves. & Bea. 18. And clearly, where a testator gives specific articles, intending them to descend as heir-looms, it is the duty of his executors to see that such intention takes effect, as far as lies in their power. Creditors may, indeed, by adopting compulsory measures, drive the executors off that ground, for no testator can in any way exempt any part of his property from payment of his debts; but executors are bound to preserve, as far as the law will permit them, all articles which their testator intended to have treated as heir-looms. Clarke vs. The Earl of Ormonde, Jacob’s Rep. 112, 114.
It seems that the journals of the house of lords, which are delivered gratuitously to each peer, are heir-looms, descending with the title, and cannot be retained by a deceased peer’s personal representatives. Upton vs. Lord Ferrars, 5 Ves. 806.—Chitty.
[(a) ] Spelm. Gloss. 277.
[(b) ] Co. Litt. 388.
[4 ] Or if any chattel be given to a man and the heirs of his body, he takes the entire and absolute interest in it. There have been many fruitless attempts to make pictures, plate, books, and household furniture descend to the heir with a family mansion. Where they are left to be enjoyed as heir-looms by the persons who shall respectively be in possession of a certain house, or to descend as heir-looms as far as courts of law and equity will admit, the absolute interest of them, subject to the life-interests of those who have life-estates in the real property, will vest in that person who is entitled to the first estate-tail or estate of inheritance, and upon his death that interest will pass to his personal representative. 1 Bro. 274. 3 Bro. 101. 1 Swanst. 537.—Christian.
[(c) ] Ibid. 8.
[(d) ] Ibid. 18.
[5 ] In general, the right to the custody of title-deeds descends or passes with the estate to the existing present owner, whether tenant for life or in fee, and he may retain or recover the deed from any other person. 4 Term R. 229.—Chitty.
[(e) ] Bro. Abr. tit. chatteles, 18.
[(f) ] Co. Litt. 18, 185.
[(g) ] Spelm. Gloss. 277.
[(h) ] 12 Mod. 520.
[(i) ] Stockman’s de jure devolutionis, c. 3, 16.
[(k) ] 12 Rep. 105. Co. Litt. 18.
[6 ] The right to sit in a particular pew in a church arises either from prescription as appurtenant to a messuage, or from a faculty or grant from the ordinary, for he has the disposition of all pews which are not claimed by prescription. Gibs. Cod. 221. See generally, as to the right to pews, 1 Phill. E. C. 316.
In an action upon the case for a disturbance of the enjoyment of a pew, if the plaintiff claims it by prescription, he must state it in the declaration as appurtenant to a messuage in the parish. 5 B. & A. 356. This prescription may be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. 1 T. R. 428. But where a pew was claimed as appurtenant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held this modern commencement defeated the prescriptive claim. 5 T. R. 296. In an action against the ordinary the plaintiff must allege and prove repairs of the pew. 1 Wils. 326.—Christian.
But a possessory right to a pew is sufficient to sustain a suit in the ecclesiastical court against a mere disturber. 1 Phill. E. C. 316. See further the cases and precedents, 2 Chitty on Pl. 817. Com. Dig. Action on Case for Disturbance, A. 5. 2 Saund. 175, c., d.—Chitty.
The owner of a pew has a right to the exclusive use of it on all occasions when the church is open, whether for worship or any other purpose, can put a fastening on the door and maintain trespass against any person who enters against his will. Jackson vs. Rounseville, 5 Met. 127. Shaw vs. Beveridge, 3 Hill, 26. If the church be pulled down and rebuilt, the parish or corporation does not subject itself to any liability to the proprietors of pews in the old edifice. Fassett vs. Boylston, 19 Pick. 361. Kellogg vs. Dickinson, 18 Vermont, 266.—Sharswood.
[(l) ] 3 Inst. 202. 12 Rep. 105.
[(m) ] 3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515.
[7 ] It has been determined that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable offence as a misdemeanour; it being considered a practice contrary to common decency and shocking to the general sentiments and feelings of mankind. 2 T. R. 733. 2 Leach, 560, S. C.
Though a philosopher may be regardless of his own body after death, yet he must be destitute of the feelings of humanity if he could bear without concern that the body of a beloved wife, daughter, or sister had been exposed to public view and mangled by the dissector’s knife.
The principle is well described by Cicero:—de humatione unum tenendum est, contemnendam in nobis, non negligendam in nostris; ita tamen mortuorum corpora nihil sentire intelligamus. Quantum autem consuetudini famæque dandum sit, id curent vivi. Cic. 1 Tusc. n. 108.—Christian.
[(n) ] 1 Co. Litt. 185.
[8 ] That is, if the inheritance to which they are attached be allowed to descend to him; but if that be devised away, the heir-looms, I conceive, would go with it to the devisee.—Coleridge.
[9 ] Co. Litt. 185, 186. The law, as here laid down on the authority of lord Coke, is supported by many other authorities, though it has been questioned in Woodd. Vin. Lect. vol. 11, p. 389.
The term of heir-loom is often applied in practice to the case where certain chattels—for example, pictures, plate, or furniture—are directed by will or settlement to follow the limitations thereby made of some family mansion or estate. But the word is not here employed in its strict and proper sense, nor is the disposition itself beyond a certain point effectual; for the articles will in such case belong absolutely to the first person who, under the limitations, would take a vested estate of inheritance in them, supposing them to be real estate, and, if he dies intestate, will pass to his personal representative and not to his heirs. Gower vs. Grosvenor, Barnard Ch. Rep. 54. Co. Litt. by Hargrave, note 18, b. n. 7.—Stephen.