BOROUGH-ENGLISH is a peculiar custom by which lands and tenements held in ancient burgage descend to the youngest son instead of to the eldest, wherever such custom obtains. It still exists in many cities and ancient bo roughs, and in the adjoining districts. The land is held in socage, hut descends to the youngest son in exclusion of all the other children. In some places this peculiar rule of descent is confined to the case of children ; in others the custom extends to brothers and other male col lateral relations. The same custom also governs the descent of copyhold land in various manors.
The custom is alluded to by Glanville and by Littleton, of whom the latter thus explains it :—" Also for the greater part such boroughes have divers customer and usages, which be not had in other towns. For some boroughes have such a customs, that if a man have issue many sonnes and dyeth, the youngest son shall inherit all the tenements which were his father's within the same borough, as heire unto his father by force of the custome ; the which is called Borough-English" (s. 165).
The origin of this custom is referred to the time of the Anglo-Saxons ; and it does not appear to have been known by its present name until some time after the Conquest; for the Normans, having no experience of any such custom in their own country, distinguished it as " the custom of the Saxon towns." In the reign of Edward III. the term borough English was used in contrast with the Norman law : thus it was said that in Nottingham there were two tenures " burgh-Engloyes" and " burgh-Fraun coyes," the usages of which tenures are such that all the tenements whereof the ancestor dies seised in "burgh-Engloyes" ought to descend to the youngest son, and all the tenements in " burgh-Fratin coyes" to the eldest son, as at common law. (1 Edward III. 12 a.) Primogeniture was the rule of descent in England at common law ; but in the case of socage lands all the sons inherited equally until long after the Conquest, wherever it appeared that such lands had, by custom, been anciently divisible. But this general rule of descent was often governed by peculiar customs, and in some places the eldest son succeeded his father by special custom, while in others (viz. those subject to borough-English) the youngest son alone inherited. (Glan ville, lib. vii. c. 3, and notes by Beanies.) custome" (of borough-English), says Littleton, "also stands with some certain reason, because that the younger sou (if he lacke father and mother), bto, cause of his younger age, may least of all his brethren helpe himself" (§ 211). When the state of society in the ancient English boroughs is considered, the rea son assigned by Littleton will appear sufficient. The inhabitants supported themselves by trade ; their property con sisted chiefly of moveables ; and their real estate was ordinarily confined to the houses in which they carried on their business, with, perhaps, a little land at tached. Such persons were rarely able to offer an independence to their children, but were satisfied to leave each son, as he grew up, to provide for himself by his own industry. To endow a son with a portion of his goods, and send him forth to seek his own fortunes, was all that a burgess thought necessary ; and so con stant was this practice, that the law con sidered the son of a burgess to be of age "so soon as he knew how to count money truly, to measure cloths, and to carry on other business of his father's of the like nature" (Glanv. lib. 7, s. 9; Bracton, lib. 2, s. 37). In this condition of life, the youngest son would have the least chance of being provided for at his father's death, and it was, therefore, a rational custom to make provision for him out of the real estate. But as it might happen that the youngest son had been provided for, like his brothers, before the father's death, by the custom of most boroughs the father had a power of de. wising his tenements by will. Such a power was unknown to the common law ; for without the consent of his heir no man could leave any portion of his inhe ritance to a younger son. " because," says
Glanville, "if this were permitted, it would frequently happen that the elder son would be disinherited, owing to the greater affection which parents often feel towards their younger children." And the freedom of testamentary devise, en joyed under the custom of borough English, to the prejudice of heirs, was not fully conceded by the laws of Eng land until the latter part of the seven teenth century. (12 Car. II. c. 24.) The origin of the custom of borough English has, in later times (3 Modern Reports, Preface) been referred to an other cause, instead of that assigned by Littleton. It has been said that by the custom of certain manors the lord had a right to lie with the bride of his tenant holding in villenage, on the first night of her marriage; and that, for this reason, the youngest son was preferred to the eldest, as being more certainly the true son of the tenant But this supposition is, on many grounds, less satisfactory than the other. Admitting the alleged right of the lord, it would have been a reason, perhaps, for passing over the eldest son, but why should the second and other sons have been also superseded in favour of their youngest brother? The legiti macy of the eldest son alone could have been doubted, and upon this hypothesis, either the second son would have been his father's heir, or all the sons except the eldest would have shared the inherit ance. But the existence of this barbarous usage in England is altogether denied by many (1 Stephen, Comm. 199; 3 Rep. Real Prop. Commrs. p. 8) ; and even if the customary fine payable to the lord in certain manors (especially in the north of England) on the marriage of the son or daughter of his villein, be ad mitted to have been a composition of the lord's right of concubinage (see Du Cange, tit. " Marcheta ;" Co. Lit. 117 b, 140 a; Bract lib. 2, § 26), it does not appear that such fines are more prevalent in those places where the custom of bo rough-English obtains, than in other parts of the country where there are different rules of descent. (Robinson On Gavelkind, p. 387.) But whatever may have been the origin of the custom, it is no longer to be sup ported by any arguments in its favour. If land is to be inherited by one son alone, the eldest is undoubtedly the fittest heir ; he grows up the first, and in case of his father's death succeeds at once to his estate, fulfils the duties of a landowner, and stands in loco parentis to his father's younger children, while the succession of the youngest son would always be liable to a long minority, during which the rest of the family would derive little benefit from the estate. It is also an unquestionable objection to the custom that each son in succession may conceive himself to be the heir. until he is depril ed of his inheritance by the birth of another brother.
In addition to these general objections to the custom, there are legal difficulties connected with its peculiarity of descent. In making out titles,. for instance, it is much more difficult to prove that there was no younger son than that there was no elder son ; and obscure questions must arise concerning the boundaries of the land subject to the custom, and respecting the limits of the custom itself in each particular place where it prevails. For these reasons the Commissioners of Real Property, in 1832, recommended the uni versal abolition of the custom (3rd Rep. p. 8), which, however, is still recognised by the law as an ancient rule of descent wherever it can be shown to prevail. (Glanville, lib. 7, c. 3 ; Co. Litt. § 165 ; 1st Inst. 110 b; Robinson On Gavelkind, Appendix ; 7 Bacon's Abridgment, 560, tit " Descent ;" Cowell's Law Dia. tit. " Borow-English ;" Du Cange, Glossarium, tit." Marcheta ;" Regiam Magistatem, lib. 4, cap. 31; 2 Black. Comm. 83 ; 1 Ste phen, Comm. 198 ; 3 Cruise, Digest, 388 ; 3 & 4 Will. IV. c. 106; 3rd Report of Real Property Commissioners.)