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an arbitrary redemption. But afterwards, when by an ordinance in 27 Hen. II. called the assise of arms, it was provided that every man's armour should descend to his heir, for defence of the realm: and it thereby became impracticable to pay these acknowlegments in arms, according to the laws of the conqueror, the composition was universally accepted of 100 8. for every knight's fee; as we find it ever after established. But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one and twenty years.*

3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits of the lands, if they were in immediate possession; and half a year's profits, if the lands were in reversion expectant on an estate for life. This seems to be little more than an additional relief: but grounded upon this feodal reason; that, by the antient law of feuds, immediately upon a death of a vasal the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it and receive investiture: 9and for the time the lord so held it, he was entitled to take the profits; and unless the heir claimed within a year and day, it was by the strict law a forfeiture. This practice however seems not to have long obtained in England, if ever,

b"Hæres non redimet terram suam sicut faciebat tempore fratris mei, sed legitima et justa relevatione relevabit eam." (Text. Roffens. cap. 34.)

c Glanv. 1. 9. c. 4. Litt. 112.

d Co. Litt. 77.

e Feud. 1. 2. t. 24.

9 Ninth edition reads, "during which interval the lord." *Cited, 34 Ala. 386.

with regard to tenure under inferior lords; but, as to the king's tenures in capite, this prima seisina was expressly declared, under Henry III. and Edward II., to belong to the king by prerogative, in contradistinction to other lords. And the king was entitled to enter and receive the [67] whole profits of the land, till livery was sued; whicn suit being commonly 9 within a year and day next after the death of the tenant, therefore the king used to take at an average the first fruits, that is to say, one year's profits of the land.s And this afterwards gave a handle to the popes, who claimed to be feodal lords of the church, to claim in like manner from every clergyman in England the first year's profits of his benefice, by way of primitiæ, or first fruits.

4. These payments were only due if the heir was of full age; but if he was under the age of twenty-one, being a male, or fourteen, being a female,h the lord was entitled to the wardship of the heir, and was called the guardian in chivalry. 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 knightservice till twenty-one; 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 twenty-one, or the heir-female of fourteen: yet, if she was then under f Stat. Marlbr. c. 16. 17 Edw. II. c. 3.

g Staundf. Prerog. 12,

h Litt. 103.

8 Previously, "tenures."

9 Ninth edition reads, "the."

9 Ninth edition reads, "The."

9 Ninth edition inserts here, "made."

9 Ninth edition inserts, "in pursuance of the strict feodal rule."


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. I. c. 22. the two additional years being given by the legislature for no other reason but merely to benefit the lord.1

This wardship, so far as it related to land, though it was not nor could be part of the law of feuds, so long as they were arbitrary, temporary, or for life only; yet, when they became 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 feodal 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 [68] to supply the infant's services, till he should be of age to perform them himself. And, if we consider the feud in it's original import, as a stipend, fee, or 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, 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. 1 Ibid.

2 BLACKST. -11

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; that is, the delivery of their lands out of their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profits of the land; though this seems expressly contrary to magna carta.1 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. In order to ascertain the profits that arose to the crown by these fruits of tenure, and to grant the heir 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," commonly called an inquisitio post mortem; which was instituted to inquire (at the death of any man of fortune) the value of his estate, the tenure by which it was [69] 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 wicked engines of Henry VII., that by colour of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto. And, afterwards, a court of wards and liveries was erected,P for conducting the same inquiries in a moro solemn and legal manner. When the heir thus came of full age, provided he held a knight's fee' [see note 20, page 135], he was to receive k Co. Litt. 77.

19 Hen. III. c. 3.

m Co. Litt. 77.

n Hovoden. sub Ric. I.

o 4 Inst. 198.

p Stat. 32 Hen. VIII. c. 46.

9 Ninth edition inserts, "in capite under the crown."

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 arins, presented them in a full assembly with a shield and lance; which ceremony as was formerly hinted, is supposed to have been the original of the feodal knighthood. This prerogative, of compelling the vasals to be knighted, or to pay a fine, was expressly recognized in parliament, by the statute de militibus, 1 Edw. II.; was exerted as an expedient for raising money by many of our best princes, particularly by Edward VI. and queen Elizabeth; but yet was the occasion of heavy murmurs when exerted by Charles I.: among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch, and the legal exertion, of prerogative. However, among the other concessions made by [70] that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted flower of the crown, and it was accordingly abolished by statute 16 Car. I. 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, as contradistinguished from matrimonium) which in it's feodal sense signifies the power, which the lord or guardian in chivalry had of disposing of his infant ward in matrimony. For, q Vol. 1. pag. 404.

r "In ipso concilio vel principum aliquis, vel pater, vel propinquus, scuto frameaque juvenem ornant. Hæc apud illos toga, hic primus Juventæ honos: ante hoc domus pars videntur; mox reipublicæ." De mor. Germ. cap. 13.

9 Ninth edition inserts, "king's.'

8 Previously, "of."

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