Note 295 — Book VII.

What our Author treats of, as a consequence of a Man’s receiving lands in marriage-hood, has received considerable extension in succeeding times, and has become known by the Title of the Curtesy of England. But, as Lord Coke observes, it was known to the Scotch and Irish, and, he might have added, to the Normans. Craig cites a passage to shew that it was not unknown to the Roman Code, and Sir Wm. Blackstone quotes an authority to prove that it was in use amongst the ancient Almains or Germans. Like Dower, it is not a provision arising from the compact of the parties, but emanating from the liberality of the Law. As to the evidence of the existence of the offspring, the Regiam Majestatem expressly coincides with our Author, (L. 2. c. 58.) and in this, is followed by Bracton, Fleta, and Britton. Lord Coke, however, asserts, that if born alive, it is sufficient, though not heard to cry, which, indeed, is consistent with reason—for the crying of the child is merely evidence of life—which may as well be furnished by a thousand other circumstances. It is not improbable, that as an adherence to the strict Letter of the ancient Law, as laid down by Glanville, had been found extremely inconvenient, it had, therefore, been silently abrogated, previous to the time of Lord Coke. (See Craig L. 2. D. 22. s. 40. Le Grand Custum. de Norm. c. 120. 2 Bl. Comm. 125. and Co. Litt. 29. b.)