« EdellinenJatka »
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; that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance: and, if the infants married themselves without the guardian's consent, they forfeited double the value, duplicem valorem maritagii." This seems to have been one of the greatest hardships of our antient tenures. There are indeed substantial reasons why the lord should have the restraint and controll of the ward's marriage, especially of his female ward; because of their tender years, and the danger of such female ward's intermarrying with the lord's enemy." But no tolerable pretence could be assigned why the lord should have the sale, or value of the marriage. Nor indeed is this claim of strictly feodal original; the most probable account of it seeming to be this: that by the custom of Normandy the lord's consent was necessary to the marriage of his female wards; which 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 the first, 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 beneficial 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
s Litt. 110.
t Stat. Mert. c. 6. Co. Litt. 82. u Litt. 2 110.
Bract. 1. 2. c. 37. § 6. x Gr. Cust. 95.
the contract; or, as it was expressed in the first draught of that charter, ita maritentur ne disparagentur, et per consilium propinquorum de consanguinitate sua.z But these provisions 2 in behalf of the relations were omitted in the charter of Henry III.; wherein 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 of heirs male; and as Glanvil expressly confines it to heirs female. But the king and his great lords thenceforward took a handle from the ambiguity of this expression to claim them both, sive sit masculus sive fœmina, as Bracton more than once expresses it; and also, as nothing but disparagement was restrained by magna carta, they thought themselves at liberty to make all other advantages that they could. And afterwards this right, of selling the ward in marriage or else receiving the price or value of it, was expressly declared by the statute of Merton; which is the first direct mention of it that I have met with, in our own or any other law.*
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. This depended on the nature of the feodal 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 y cap. 6. edit. Oxon.
Z cap. 3. ibid.
a cap. 6.
b 5 The words maritare and maritagium seem ex vi termini to denote the providing of an husband.5
c l. 9. c. 9. & 12. & l. 9. c. 4.
d 1. 2. c. 38. 1.
e Wright. 97.
f 20 Hen. III. c. 6.
2 Previously, "clauses."
*Cited, 2 N. H. 277; 9 Am. Dec. 69, to the point that the marriage act of 26 Geo. II. c. 33, was never in force in this country.
a new tenant to do the service in his own stead, without the consent of the lord: and, as the  feodal 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 acknowlegment 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 magna carta, and the statute of quia emptoresh (if nor 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 these statutes, could not aliene without a licence: for if they did, it was in antient strictness an absolute forfeiture of the land; i though some have imagined otherwise. But this severity was mitigated by the statute 1 Edw. III. 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 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.**
g cap. 32.
h 18 Edw. I. c. 1.
i 2 Inst. 66.
k Ibid. 67.
*Cited, 7 Cranch, 619; 18 Johns. 185; 9 Am. Dec. 198.
7. The last consequence of tenure in chivalry was escheat; which 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: 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. In such cases the land escheated, or fell back, to the lord of the fee; that is, the tenure was determined by breach of the original condition, expressed or implied in the feodal 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, shewed that he was no longer to be trusted as a vasal, 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.m*
These were the principal qualities, fruits, and consequences of the tenure by knight-service: a tenure, by which the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century; and which was created, as sir Edward Coke expressly testifies," 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
1 Co. Litt. 13.
m Feud. 1. 2. t. 86.
4 Inst. 192.
*Cited, 2 Swan, 48.
render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knightservice 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, 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. It was in most other respects like knight-service; P only he was not bound to pay aid, or escuage;  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.s Tenure by cornage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeanty.t
These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scutagium in Latin, or servitium scuti; scutum being then a well-known denomination for money: and in like manner it was called, in our Norman French, escuage; being indeed a pecuniary instead of a military, service.
o Litt. 153.
q 2 Inst. 233.
r Litt. 158.
s Ibid. 154.
t Ibid. 156.
8 Previously, "of."