culliage and cornage and culagium and cuissage and ius primae noctis

Even though the law review article cited in the previous essay is deficient in explaining the origin of cornage, it connects the horn with the concept of the heirloom in an interesting way that should not be lost. The OED defines a heirloom as follows:

"A chattel that, under a will, settlement, or local custom, follows the devolution of real estate."

But this definition is anything but clear, because it confuses in its definition the concept of heritability and the notion of a will or devise. Let's clarify the concept and see how a horn, perhaps even a horn used to warn fellow Englishmen that the Scots were invading, was a "heirloom" rather than simply a personal chattel at common law. In medieval England property passed by inheritance, through the device called the entail. Thus, no will or devise was necessary to pass property. Chattels, in contrast, were movable property rather than real estate and ordinarily were not considered part of the inheritance. Therefore, they passed by devise. But, some chattels became so entwined with the inheritance that it was held that they should not be separated from it. As one 1862 case held: "heirlooms must mean something which, though not by its own nature heritable, is to have a heritable nature impressed upon it." Thus, the concept of the heirloom enabled the aristocracy to extend restraints on alienation from real property to chattels (Discussion in Alan Roth, "He Thought He Was Right (But Wasn't): Property Law in Anthony Trollope's The Eustace Diamonds, 44 StLR 879, 884 (1992)). In other words, heirlooms took on the character of real property.

How does this relate to horns? Well, the law review article just cited talks about how heirlooms would not simply consist of practical or useful items, but that the "key characteristic of an heirloom was its customary attachment to a real property inheritance." Thus things such as "title deeds and the chest or box in which they are usually kept, the patent creating a dignity, the garter and collar of a knight, an ancient horn where the tenure is by cornage, and the anicent jewels of the crown" qualify as heirlooms because they symbolically confer legitimacy on an inheritance and should be considered inseparable from it. But there is a fundamental contradiction in the nature of an heirloom, which Blackstone, in his characteristically blithe way, points out (2.28): "Heir-looms are such goods and personal chattles, as contrary to the nature of chattles, shall go by special custom to the heir along with the inheritance." Who says that Blackstone wants to give us a consistent history of the common law? He simply throws together lots of diverse facts under categories generally derived from Justinian.*

[*By the way, I just can't leave this little discussion of heirlooms without noting the variety of spellings of the term given in the dozen or so quotations in the OED, s.v. Here are a few. From 1424, it is rendered heyr lome. From 1472: heir lome. From 1513: heyerlomys. From 1526: heyr lome again. From 1569: earlome; Also from 1569: ayrlimes (here we also have reference to a "standinge bed" and a "trendell bed," which is the precursor to our "trundle bed"). From Coke in 1628: heirloomes. I, who regularly participate in spelling bees, am quite aware of how adventititious spelling is. I especially like to point this out after I have been eliminated from a competition for misspelling too many words...]

Culliage

I am not going to say much more about this supposed "right" than is generally available on the Internet, but I will focus on sorting out terms. First of all, Kacirk defines this term as "an ancient custom in Scotland which gave the lord a liberty of lying the first night with his vassal's bride." He then cross-references "maiden-rent," which he defines as "A [fee] paid by every tenant in the [English] manor of Builth at their marriage; it was anciently given to the lord for his omitting the custom of marcheta, whereby..he was to have the first night's lodging with his tenant's wife." Then, Kacirk quotes Blount's fanciful Law Dictionary (1670) uncritically and says, "The custom for the lord to lay the first night with the bride of his tenant was very common in Scotland, and in the north parts of England. But it was abrogated by Malcome III at the instance of the queen, and instead thereof a mark was paid to the lord by the bridgroom, from whence 'tis called marcheta mulieris."

Rather than adding my two cents to the discussion on whether this custom actually ever took place (the two seemingly definitive volumes holding that it never really was practiced are Karl Schmidt (1881), Ius primae noctis: Eine geschichtliche Untersuchung and Alain Boureau (1995), Le droit de cuissage: La fabrication d'un mythe. The latter was translated into English at the end of the 1990s under the title The Lord's First Night), I think it might be good just to list the terms that have been used to describe this so-called "tenure" or "payment." We have the following:

1. culliage
2. culagium
3. cullage
4. ius primae noctis
5. Droit de seigneur
6. Droit de cuissage
7. Maiden-rent
8. Marcheta
9. Marcheta mulieris

The OED has, as far as I can tell, none of these terms. Boureau gives some interesting suggestions on why the concept might have been invented or used (e.g., as a way of describing the moral bankruptcy of the ancien regime by Voltaire in 1762) but I think it was invented in the fertile male imagination, when villeins were toiling in the fields or workers were manning the machines in the factories. Just as the modern American male imagines himself a great athletic star, when the most he can do is raise a cup of Bud to his lips, so the medieval and early modern male probably imagined, with a certain amount of resentment, a situation where he might have been a "lord" and had "any woman he wanted." But myths and imagined dreams die hard--usually they multiply themselves first in words, pseudolearned as they might be, before crumbling completely. It seems that this myth is just about in the crumbling stage.

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