Imágenes de páginas


Defined. This was the most honorable species of tenure. In Latin, it was termed servitium militare, and in law-French, chivalry or service de chivaler. This differed in very few points from a pure feud, being entirely military. A determinate quantity of land was necessary, called a knight's fee, feodum militare. He who held by knight service was bound to attend his lord to the wars for forty days in every year, if called on, which attendance was his reditus or return, his rent or service for the land. If he held only half a knight's fee, twenty days service was all that could be required of him, and so in proportion.

Livery of Seisin. The tenure of knight's service was granted by words of pure donation, dedi et concessi, was transferred by investiture, or delivering corporal possession of the land, usually called livery of seisin, and was perfected by homage and fealty.

Incidents to Knight Service. It drew after it seven consequences, as inseparably incident thereto: Aids, Relief, Primer Seisin, Wardships, Marriage of Ward, Fines for Alienation, Escheat.

1. Aids. These were originally mere benevolences granted by the tenant to the lord, in times of difficulty and distress, but afterwards they came to be considered as a right, and not a matter of discretion. These aids were three in number:

(1) To ransom the lord's person, if taken prisoner. Neglect in this particular, when it was within the vassal's power, was an absolute forfeiture of his estate.

(2) To make the lord's eldest son a knight, which was formerly attended with great ceremony and expense. This aid could not be demanded, until he was fifteen years of age, or capable of bearing arms.

(3) To give the lord's eldest daughter a suitable marriage portion, for daughters' portions were in those days extremely slender, inasmuch as few lords could save much out of their incomes, nor could they acquire money, being wholly conversant with arms, nor were they able to encumber their estates, by the nature of their tenures. Even the monasteries contributed to the knighting of their founder's male heir, and the marriage of his female descendants. The lord and vassal of the feudal law bore a resemblance in this respect to the patron and client of the Roman republic, as three aids were raised by the client: to marry his patron's daughter, to pay his debts, and to redeem his

person from captivity.

Additional Aids Demanded. Beside these ancient feudal aids, the tyranny of lords by degrees exacted more, as aids to pay the lord's debts, in imitation of the Romans; and aids to enable him to pay reliefs to his superior lord, from which last, the king's tenants in capite were of course exempted. To check this abuse, the magna carta ordained, that no aids be taken by the king without consent of parliament, nor by inferior lords, except the three ancient ones above mentioned. But this provision was omitted in the charter of Henry III, and not re-enacted until the reign of Edward I, which fixed the aids of inferior lords at twenty shillings, the estimated twentieth part of every knight's fee, for making the eldest son a knight or marrying the eldest daughter.

2. Relief. This was incident to every feudal tenure, by way of fine or composition with the lord, for taking up the estate at the death of the last tenant. Feuds were life estates when reliefs were first required, but they continued; even after feuds became hereditary. They were deemed the greatest grievances of tenure, especially at first, when they were at the will of the lord, so that if he demanded an exorbitant relief, it was practically to disinherit the heir. William I directed that the relief should be a certain number of arms and habiliments of war, but under Henry II, a composition of 100 shillings for every knight's fee was fixed, and the relief was only payable, if the heir at the death of his ancestor had reached the age of twenty-one.

3. Primer Seisin. The burden was only incident to the king's tenants in capite, and not to those who held of inferior lords. It was a right the king had, when his tenant in capite died seised of a knight's fee, to receive of his heir, if of age, one entire year's profits of the lands, if in immediate possession, or half a year's profits, if the lands were in reversion, expectant on an estate for life. But by the ancient law of feuds, immediately upon a vassal's death, the superior was entitled to take possession of the land, as protection against intruders, till the heir appeared to claim it and receive investiture, during which interval the lord was entitled to the profits, and unless the heir claimed within a year and a day, it was by strict law a forfeiture. For a time the popes, as feudal lords of the church, claimed in like manner from the English clergy the first year's profits of each benefice, by way of first-fruits.

4. Wardships. If the heir was under the age of twentyone, he was not liable for the above contribution, but the lord, as guardian in chivalry, was entitled to the wardship of such male heir, and also of the female, if she were under fourteen. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty-one in males and sixteen in females. For the law supposed the heir-male unable to perform knight service under twenty-one, but the female was deemed capable of marriage at the age of fourteen, and the lord once having her in ward might retain her as such, until she arrived at sixteen.

Reasons in Support of Wardships. This wardship, as far as relates to lands, though it could not be part of the law of feuds, so long as they were arbitrary, temporary or for life only, yet when they became hereditary and hence often descended to infants, who could perform no military service, seem upon feudal principles, not to have been unreasonable. The 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, until he could perform them himself. The feud being originally a stipend or reward for such service, the lord might properly withhold the stipend, so long as the service was suspended. Under Henry 1, for a few years this custody was taken from the lord, and given to the widow or next of kin.

Custody of the Minor. The wardship of the body was in consequence of the wardship of the land, for he, who enjoyed the infant's estate, was the best person to educate and maintain him during his infancy, and the lord was a suitable party to qualify him for those services, which he subsequently would be called upon to perform.

Inquisition and Livery. When the male heir reached twenty-one, or the heir-female sixteen, they might sue out their livery or ousterlemain, that is, the delivery of their lands out of their guardian's hands. For this, they were obliged to pay a fine of half a year's profit of the land, though magna carta prohibited this. However, they were excused all reliefs, and, if king's tenants, also all primer seisins. To ascertain the profit that arose to the crown by these first fruits of tenure, and to grant the heir his living, the justices formerly made inquisition before a jury, termed an inquisitio post mortem, to inquire into the facts and ascertain the value thereof. This proceeding at length became an intolerable grievance, as by color of false inquisitions, many persons were compelled to sue out livery from the crown, who were by no means tenants. Afterwards a court of wards and liveries was erected, for conducting the same inquiries in a more legal manner.

Order of Knighthood. When the heir became 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. In those heroic times, no one was qualified for deeds of arms and chivalry, who had not received this solemn order. The ancient Germans, says Tacitus, in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance, which ceremony probably was the original of the feudal knighthood.

When Abolished. This prerogative of compelling the king's vassals to be knighted, or to pay a fine, was recognized in parliament, and was resorted to as an expedient by English monarchs to raise money, particularly by Edward VI and queen Elizabeth, but the people murmured against it, when exerted by Charles I, who seemed unable to distinguish between the arbitrary stretch and the legal exertion of prerogative. It was abolished during his reign.

5. Control of Ward's Marriage. Before a ward became of age, there was another mark of authority the guardian could exercise. This was the right of marriage, which, in its feudal sense, signified the power the lord or guardian in chivalry had of disposing of his infant ward in matrimony. The guardian could tender the ward a suitable match, without disparagement or inequality; which if the infant refused, he or she forfeited the value of the marriage to their guardian, that is, so much as a jury would assess, or any one would bona fide give the guardian for such an alliance, and if the infant married without the guardian's consent, he or she forfeited double the value.

Selling the Ward in Marriage. This was one of the greatest hardships of our ancient tenures. There were good reasons, why the lord should have the restraint and control of the ward's marriage, especially of his female ward, because of her tender years, and of the danger of such female ward's intermarrying with the lord's enemy, but no reason why the lord should have the sale or value of the marriage. This custom was introduced into England with the rest of the Norman feuds. By the great charter, it was provided, that heirs should be married without disparagement, the next of kin having previous notice of the contract. But these provisions on behalf of the relations were omitted in the charter of Henry III. This right of selling the ward in marriage was expressly declared by the statute of Merton.

6. Fines for Alienation. Another incident of tenure by knight service was that of fines due to the lord for every alienation, whenever the tenant transferred land. This depended on the nature of the feudal connection, a feudatory not being allowed to transfer his lord's gift to another, and substitute a new tenant, without the consent of his lord, nor could the lord alienate his seignory without his tenant's consent, which consent was called an attornment. This restraint upon the lord soon wore away, while that upon the tenants continued longer. When everything in time came to be bought and sold, the lords would not grant a license to their tenants to aliene, without a fine being paid. These fines were only exacted from the king's tenants in capite. By statute of Edward III, one-third of the yearly value was to be paid in licenses of alienation.

7. Escheat. This is the 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. It occurs, where he died without heirs of his blood, or if his blood was corrupted by commission of treason or felony, which abolished every inheritable quality. In such cases the land escheated, or reverted to the lord of the fee.

Resumé of Knight-Service. These were the principal qualities, fruits and consequences of tenure by knight-service; a tenure by which most of the lands in the kingdom were held till the middle of the seventeenth century, created for a military purpose, viz., for defence of the realm, by the king's principal subjects.

Other Knight-Services. There were some other species of knight-service, improperly so called, as the tenure by grand serjeanty, whereby the tenant was bound, instead of serving the

« AnteriorContinuar »