eurtesy, or in dower, he must plead the custom specially, GAVELKIND. and not in that general manner he may plead gavelkind; and the reason of the difference seems to be this, that gavelkind in Kent is the general law of the place, and no particular custom; and therefore when it is generally alleged, the court shall take notice of it as of a law that prevails in a considerable part of the kingdom; but as for the other customs, they are not an essential part of gavelkind, and so are not laid before a court upon a general pleading of gavelkind, but require a particular manner of pleading them, as all other private customs do which are derogatory to the laws of the kingdom, that the judges may be apprized of them, and where they obtain, and so give their decisions with regard to them'. CHAP. IV. OF AN ESTATE IN BOROUGH-ENGLISH. BETWEEN an estate in Borough-English and that in Gavelkind just treated of, there is so little difference, that it will be unnecessary to dwell upon it much at large, for per Holt," they differ but in respect of the quantity of the land which the heir is to take, and not in constructiona. Tenure in burgage is described by Glanvil, and is expressly said by Littleton, to be but tenure in soccage: and it is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain. It is indeed only a kind of town soccage; as 'Sid. 138; Cro. Car. 562; 2 Sid. 153; Brown v. Brooks, Lamb. 595; Raym. 761; 1 Lev. 79; Rob. Gav. 41; Bac. Ab. "Gavelkind" (B.) a Per Holt, 6 Mod. 121; 1 P. Wms. 63. · Lib. 7, cap. 3. Sec. 162; Wright Ten. BOROUGH. common soccage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually distinguished from other towns by the right of sending members to parliament; and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands which were formerly the site of houses, in an ancient borough, are held of some lord in common soccage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy, which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not, with any tolerable propriety, be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in soccage, and yet could not possibly ever have been held by plough-service; since the tenants must have been citizens or burghers, the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plough, or was able to use one, if he had it. The free soccage, therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting many of these tenements so held in ancient burgage; the principal and most remarkable of which is that called Borough- English, so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil, and by Littleton. Borough-English is a custom which prevails in certain ancient boroughs, by virtue of which the youngest son shall inherit his father, as to the lands of which he is seised in fee or fee-tail. The Sec. 165. e Ubi supra. ENGLISH. reason of this custom seems to be %, that in these boroughs BOROUGHpeople chiefly maintained and supported themselves by trade and industry; and the elder children being provided for out of their father's goods, and introduced into his trade in his life-time, were able to subsist of themselves without any land provision, and therefore the lands descended to the youngest son, he being in most danger of being left destitute. Some authors have indeed given a much stronger reason for this custom, as if the lord of the fee had anciently a right of concubinage with his tenant's wife on her wedding night; and that therefore the tenement descended not to the eldest, but the youngest son, who was more certainly the offspring of the tenant. This barbarous custom, however, Sir William Blackstone thinks' never prevailed in England, though it certainly did in Scotland, (under the name of mercheta or marcheta) till abolished by Malcolm III. And indeed this reason, if taken in its fullest sense, seems only sufficient to exclude the eldest son from the inheritance, and not the second or other sons. And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherd and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. The youngest son, therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one became Lit. s. 165; Noy, 106. h 3 Mod. Pref. iSee 2 Blac. Com. 83; sed vid. contra, Rob. Gavelk. App.; and see also 1 Whit. * Seld. tit. of hon. 2, c. 17; [BOOK II. PART II' BOROUGH. his heir'. So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. ENGLISH. Other special customs there are in different burgage tenures; as that, in some, the wife shall be endowed of all her husband's tenements, and not of the third part only, as at the common law : and that, in others, a man might dispose of his tenements by will", which, in general, was not permitted after the conquest till the reign of Henry the Eighth; though in the Saxon times it was allowable. A pregnant proof that these liberties of soccage tenure were fragments of Saxon liberty P. The general custom of Borough-English, is, as we have already intimated, that the youngest son shall inherit all the lands and tenements which his father had within the borough, &c. whether in fee-simple or fee-tail". And he shall have like remedies for lands entailed as the heir at common law. And shall likewise enjoy all lands of the same nature, in which his father had but an estate pur autre vie, descendible'. But this custom is strictly confined to the youngest son, or his lineal representative (if such son die in his father's life-time) and he shall take, though the lands were purchased after the death of such son*: but it may, by special custom, extend to the youngest brother". And of these general customs, the Courts will take notice, without their being specially set forth. But of other special kinds of Borough-English, of which many are mentioned in the books, the law takes no notice unless specially pleaded. If land in Borough-English be given to A. and his heirs, for the life of B, and A. dies in the life of A. leaving two sons, the youngest shall be the special occupant, because the heir that is representative of the father, as to land of that nature, must be the occupant, since the heir must take by descent, and not by purchase. By the custom of Borough-English, the widow shall have the whole of her husband's lands in dower, which is called her free-bench; and this is given to her the better to provide for the younger children, with the care of whom she is intrusted". For a condition broken, it is said that the heir at common law shall enter; because the condition is a thing of new creation, and collateral to the land; but when the eldest son enters, the youngest son shall enjoy the land; for by breach of the condition he is restored to the ancient estate. But a distinction must, it should seem, be taken between a condition in gross, and a condition incident to a reversion; for of the latter, the special heir shall take advantage, though not of the former. Thus, where a man made a lease of land, part of Borough-English and part of common law tenure, with condition to be void on the lessor, his heirs or assigns, giving notice; on the death of the lessor leaving two sons, the eldest of whom had assigned over his part to the youngest, it was a question, whether the youngest son could give the notice, or whether the condition was not gone by the severance of the reversion on the death of the father. z Co. Lit. 110, b; 2 Lev. 138; 3 Keb. 475, 486, 498. Resolved between Baxter and Dodswell, Vaugh. 201; 1 Salk. 244; 2 Vern. 226; Rob. Gav. 97. Co. Lit. 33, 111; F.N.B. 150; Cro. Eliz. 415; Mo. pl. 566. She shall have And Manwood and Monson, dower of rent, common in b Cro. Eliz. 204; Plow.28. BOROUGH ENGLISH. |