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[*148] * custody of the body and lands of such heir, without any account of

the profits, till the age of twenty-one in males, and fourteen in females. For the law supposed the heir-male unable to perform knight-service till twentyone; but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The lord therefore had no wardship, if at the death of the ancestor the heir-male was of the full age of twentyone, or the heir-female of fourteen; yet, if she was then under fourteen, and the lord once had her in ward, he might keep her so till sixteen, by virtue of the statute of Westm. 1, 3 Edw. 1, c. 22, the two additional years being given by the legislature for no other reason but to benefit the lord (u), but upon the marriage of the ward, if above fourteen years, she was entitled to enter.

This wardship, so far as it related to land, though it was not nor could be part of the law of feuds, when they were arbitrary, temporary, or for life only; yet when they were hereditary, and did consequently often descend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feudal principles to have been unreasonable. For the wardship of the land, or custody of the feud, was retained by the lord, that he might, out of the profits thereof, provide a fit person to supply the infant's services, till he should be of age to perform them himself (x). And *if we consider the feud in its original import, as a stipend, fee, or [* 149] reward for actual service, it could not be thought hard that the lord should withhold the stipend, so long as the service was suspended. Though undoubtedly to our English ancestors, where such a stipendiary donation was a mere supposition or figment, inasmuch as the lands were not granted to them, but the system of tenure was forced upon them, it carried abundance of hardship; and accordingly it was relieved by the charter of Henry I. before mentioned, which took this custody from the lord, and ordained that the custody, both of the land and the children, should belong to the widow or next of kin. But this noble immunity did not continue many years.

The wardship of the body was a consequence of the wardship of the land; for he who enjoyed the infant's estate was the properest person to educate and maintain him in his infancy: and also, in a political view, the lord was most concerned to give his tenant a suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render (y).

When the male heir arrived to the age of twenty-one, or the heir-female to that of sixteen, they might sue out their livery or ousterlemain (z); that is, the delivery of their lands out of their guardian's hands. For this they were

entrusted to the next heir, and that of the person, as in socage tenures among us, to the nearest kindred of that blood which could not inherit. By a gross abuse of this custom in England, the right of guardianship in chivalry, or temporary possession of the lands, was assigned over to strangers. This was one of the most vexatious parts of our feudal tenures, and was never, perhaps, more sorely felt than in their last stage under the Tudor and Stuart families." Hall. Mid. Ages, vol. i. p. 179.

(u) İb.; see 2 Inst. 203-4.

(x) If an infant tenant by knight's service was created a knight, the king was no longer

entitled to the wardship of his person, nor to the value of his marriage. Sir John Radcliff's case, Plow. 267. And the reason there assigned is, that "when he is made a knight by the king, who is the chief captain of all chivalry, or by some other great captain assigned by the king for that purpose, he is thereby allowed and admitted to be able to perform knight's service; and then his body ought not to be in ward, because his imbe cility ceases, and cessant causâ, cessabit ef fectus."

(y) Co. Litt. 75 1.
(2) Co. Litt. 77.

Inquisitiones

obliged to pay a fine, namely, half a year's profits of the land; though this seems expressly contrary to magna carta (a). However, in consideration of their lands having been so long in ward, they were excused all reliefs, and the king's tenants also all primer seisins (b). In order to ascertain the profits that arose to the crown by these * fruits of tenure, and to grant the heir [*150] his livery, the itinerant justices, or justices in eyre, had it formerly in charge to make inquisition concerning them by a jury of the county (c), commonly called an inquisitio post mortem; which was instituted to post mortem. inquire (at the death of any man of fortune) the value of his estate, the tenure by which it was holden, and who, and of what age his heir was thereby to ascertain the relief and value of the primer seisin, or the wardship and livery accruing to the king thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance; it being one of the principal accusations against Empson and Dudley, the infamous tools of Henry VII., that by color of false inquisition, they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto (d). And afterwards, a court of wards Court of wards and liveries was erected (e) for conducting the same inquiries in a more solemn and legal manner (ƒ).

and liveries.

Knighthood.

When the heir thus came of full age, provided he held a knight's fee in capite under the crown, he was to receive the order of knighthood, and was compellable to take it upon him, or else pay a fine to the king. For, in those heroical times, no person was qualified for deeds of arms and chivalry who had not received this order, which was conferred with much preparation and solemnity. We may plainly discover the footsteps of a similar custom in what Tacitus relates of the Germans, who, in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance; which ceremony has been supposed to have been the origin of the feudal knighthood (g). This prerogative, of compelling the *tenants in knight-service to be knighted, or to pay a fine, was expressly recog[* 151] nized in parliament by the statute de militibus, 1 Edw. II., (h), and was exerted as an expedient for raising money by many of our sovereigns, particularly by Edw. VI. and queen Elizabeth; but it was ill-suited to the temper of the seventeenth century, and when Charles I. insisted upon exercising it, such discontent and murmurs were excited that he was compelled to abandon the claim. It was accordingly abolished by 16 Car. 1, c. 20.

5. But, before they came of age, there was still another piece of authority, which the guardian was at liberty to exercise over his infant wards: I mean the right of marriage (maritagium, contradistinguished from matriin marriage of monium), which in its feudal sense signifies the power, which the lord or guardian in chivalry had, of disposing of his infant ward

5. Lords' rights wards.

(a) 9 Hen. 3, c. 3.

(b) Co. Litt. 77.

(c) Hoveden, sub. Ric. I. (d) 4 Inst. 198.

(e) Stat. 32 Hen. 8, c. 46.

(f) The Court of Wards was created by the stat. 32 Hen. 8, c. 46, and in the following year the jurisdiction of liveries was added. 33 Hen. 8, c. 22.

(g) In ipso concilio vel principum aliquis, vel pater, vel propinquus, scuto frameãque juVOL. I.-65

venem ornant. Haec apud illos toga, hic pri mus juventae honos: ante hoc domus pars videntur; mox reipublicae." De Mor. Germ. c.

13.

(h) This so-called statute appears to have been a mere writ entered on the roll. 2 Inst. 593. As to the exercise of the prerogative, see the commissions issued by Edw. 6 and queen Elizabeth; in 15 Rym. Foed. 124 and 493, and 16 Car. 1, c. 20; 2 Rushw. 70.

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in matrimony. For, while the infant was in ward, the guardian had the power
of tendering him or her a suitable match, without disparagement or inequality
which if the infants refused, they forfeited the value of the marriage, valorem
maritagii, to their guardian (i); that is, so much as a jury would assess, or any
one would bona fide give to the guardian for such an alliance (k): and, if a
male infant to whom a suitable marriage was tendered refused it and afterwards
married without the guardian's consent, he forfeited double the value, duplicem
valorem maritagii (1). This seems to have been one of the greatest hardships
of our ancient tenures. There were indeed substantial reasons why the lord
should have the *restraint and control of the ward's marriage, especially
[*152]
of his female ward; because of their tender years, and the danger of
such female ward's intermarrying with the lord's enemy (m); but no tolerable
pretence could be assigned why the lord should have the sale or value of the
marriage. And as this claim was by no means coextensive with the establish-
ment of the feudal system (n), it cannot be held as of strictly feudal origin; the
most probable account of it seeming to be this: by the custom of France the
lord's consent was necessary to the marriage of his female wards (0). This was
introduced into England, together with the rest of the Norman doctrine of
feuds and it is likely that the lords usually took money for such their consent,
since, in the often-cited charter of Henry I., he engages for the future to take
nothing for his consent; which also he promises in general to give, provided
such female ward were not married to his enemy. But this, among other bene-
ficial parts of that charter, being disregarded, and guardians still continuing to
dispose of their wards in a very arbitrary unequal manner, it was provided by
king John's great charter, that heirs should be married without disparagement,
the next of kin having previous notice of the contract (p); or, as it was
expressed in the first draught of that charter, ita maritentur ne disparagentur,
et per concilium propinquorum de consanguinitate sua (q). But these provisions
in behalf of the relations were omitted in the charter of Henry III.: wherein (r)
the clause stands merely thus, "hæredes maritentur absque disparagatione : "
meaning certainly, by hæredes, heirs-female, as there are no traces before this to
be found of the lord's claiming the marriage (s) of heirs male; and as Glanvil (t)

[*153] expressly confines it to heirs *female. But the king and his great
lords thenceforward took a handle (from the ambiguity of this expres-
sion) to claim them both, sive sit masculus sive fœmina, as Bracton more than
once expresses it (u): and also, as nothing but disparagement was restrained by
magna carta, they thought themselves at liberty to make all other advantages
that they could (x). And afterwards this right of selling the ward in mar-
riage, or else receiving the price or value of it, was expressly declared by the
statute of Merton (y); which is the first direct mention of it that occurs in our
own or any other law (z).

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6. Fines for alienation.

Attornment.

[*154]

This de

6. Another attendant or consequence of tenure by *knight-service was that of fines due to the lord for every alienation, whenever the tenant had occasion to make over his land to another. pended on the nature and spirit of the feudal connexion; it not being reasonable nor allowed, as we have before seen, that a feudatory should transfer his lord's gift to another, and substitute a new tenant to do the service in his own stead, without the consent of the lord: and, as the feudal obligation was considered as reciprocal, the lord also could not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away; that upon the tenants continued longer. For, when everything came in process of time to be bought and sold, the lords would not grant a licence to their tenant, to aliene, without a fine being paid; apprehending that, if it was reasonable for the heir to pay a fine or relief on the renovation of his paternal estate, it was much more reasonable that a stranger should make the same acknowledgment on his admission to a newly-purchased feud. With us in England, these fines seem only to have been exacted from the king's tenants in capite, who were never able to aliene without a licence: but as to common persons, they were at liberty, by the statute of quia emptores (a) (if not earlier), to aliene the whole of their estate, to be holden of the same lord as they themselves held it of before. But the king's tenants in capite, not being included under the general words of this statute, could not aliene without a licence: for if they did, it was in ancient strictness an absolute forfeiture of the land (b). But this severity was mitigated by the statute 1 Edw. 3, c. 12, which ordained, that, in *such case, the lands should not be forfeited, but a reasonable fine be

paid to the king. Upon which statute it was settled, that one-third [*155] of the yearly value should be paid for a licence of alienation; but if the tenant presumed to aliene without a licence, a full year's value should be paid (c). 7. The last consequence of tenure in

instances collected among others by Lord Lyttleton, Hist. Hen. II. 2 vol. 296. "John Earl of Lincoln gave Henry the Third 3,000 marks to have the marriage of Richard de Clare, for the benefit of Matilda, his eldest daughter; and Simon de Mortford gave the same king 10,000 marks to have the custody of the lands and heir of Gilbert de Unfranville, with the heir's marriage, a sum equivalent to a hundred thousand pounds at pres ent." In this case the estate must have been large, the minor young, and the alliance honourable. For, as Mr. Hargrave informs us, who has well described this species of guardianship, "the guardian in chivalry was not accountable for the profits made of the infant's lands, during the wardship, but received them for his own private emolument, subject only to the bare maintenance of the infant. And this guardianship, being deemed more an interest for the profit of the guardian, than a trust for the benefit of the ward, was saleable and transferable, like the ordinary subjects of property, to the Lest bidder; and if not disposed of, was transmissible to the lord's personal representatives. Thus the custody of the infant's person, as well as the care of his estate, might devolve upon the

chivalry was escheat (d); which is the

most perfect stranger to the infant; one prompted by every pecuniary motive to abuse the delicate and important trust of education, without any ties of blood or regard to counteract the temptations of interest, or any sufficient authority to restrain him from yielding to their influence." Co. Litt. 88, n. 11. It seems astonishing that these "intolerable burthens," wardship and marriage, should have been allowed to remain in force here till the year 1660, when they were not admitted on the continent.

(a) 18 Edw. 1, c. 1. There has been some discussion whether the 32nd chapter of Magna Charta has not a like effect. Sir E. Coke (2 Inst. 65, 501) and Sir M. Wright (Ten.) thought it had. But the construction is open to much doubt. Dalr. Ess. 83; 1 Hall. Mid. Ages, 175.

(b) 2 Inst. 66; Hall. Mid. Ages, c. 3, Part I. (c) lb. 67. A relic of the same principle upon which fines on alienation were founded remains to the present day in the case of copy holds, as to which more will appear hereafter.

(d) Escheat, from echoir, to expire or run out, a word which also had the secondary meaning of, to happen, whence échet, an op

7. Escheat.

determination of the tenure, or dissolution of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means, if he died without heirs of his blood, or if his blood was corrupted and stained by commission of treason or felony, whereby every inheritable quality was entirely blotted out and abolished (e). In such cases the land escheated or fell back to the lord of the fee (ƒ); that is, the tenure was determined by breach of the original condition expressed or implied in the feudal donation. In the one case there were no heirs subsisting of the blood of the first feudatory or purchaser, to which heirs alone the grant of the feud extended; in the other, the tenant, by perpetrating an atrocious crime, showed that he was no longer to be trusted as a vassal, having forgotten his duty as a subject; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or a felon. The consequence of which in both cases was, that the gift being determined, resulted back to the lord who gave it (g).

Summary of inci

service.

*These were the principal qualities, fruits, and consequences of the [*156] tenure by knight-service: a tenure, by which the greatest part of the lands in this kingdom were holden, and that principally of the dents of tenure king in capite, till the middle of the seventeenth century; and by knight- which was created, as Sir Edward Coke expressly testifies (h), for a military purpose, viz. for defence of the realm by the king's own principal subjects, which was judged to be much better than to trust to hirelings or foreigners. The description here given is that of knight-service proper; which was to attend the king in his wars. There were also some other species of knight-service; so called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty, per magnum servitium, whereby the tenant was bound, Tenure by grand instead of serving the king generally in his wars, to do some special honorary service to the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer, at his coronation (i). It was in most other respects like knight-service (k); only he was not bound to pay aid (1), or escuage (m); and when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeanty paid one year's value of his land, were it much or little (n). Tenure by cornage, which existed in the marches of Scotland, was to wind a horn when the Scots or other enemies entered the [157] land, in order to warn the king's subjects, was (like *other services of

serjeanty.

By cornage.

portunity, a piece of luck. See Burgess v. Wheate, 1 Eden. 191. The effect of the statutes 54 Geo. 3, c. 145, and 3 & 4 Will. 4, c. 106, will be noticed in another place.

(e) Escheats on account of delinquencies, or, as it is in that case more usually called, forfeiture, were on the continent for various periods, according to circumstances, a year, for life, or for ever. The doctrine of corruption of blood was peculiar to England. (f) Co. Litt. 13.

(g) Feud. 1. 2, . 86.

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