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4 Wardship.The right of the
lord to have the custody or ward
ship of the heir till twenty-one in males, and sixteen in females,
the heir male being under twenty-one, and the female under fourteen, at the death of the
seisina was expressly declared, under Henry III. and Edward II., to belong to the king by prerogative, in contradistinction to other lords (f). The king was entitled to enter and receive the whole profits of the land, till livery was sued; which suit being commonly made within a year and day next after the death of the tenant, in pursuance of the strict feodal rule, therefore the king used to take as an average the first fruits, that is to say, one year's profits of the land (g). 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 primitiae, 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 knight-service 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 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 (i) (7).
(f) Stat. Marlb. c. 16. 17 Edw. II. c. 3.
(h) Litt. § 103.
(7) Lord Coke (in his commentary on that section of Littleton, which our author cites as authority for the con
clusion he comes to in the text above,) says, "the statute giveth the two years to the lord only to enable him to tender
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 to supply the infant's services, till he should be of age to perform them himself (8). And if we consider the feud in its 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.
a convenable marriage to the heir within that time." And in his second Instit. (pp. 203, 204) he also observes, during those two years he holdeth not the land as guardian, for his guardianship ceases at his female ward's age of 14, and though the statute was in truth for the advantage of the lords, the mischief to heirs female was much greater before the act in question, against which wrong the statute provided remedy, and it was made for the restraint of the abuse."
(8) If an heir, being in ward, was created a knight, his person thereby became out of ward, the sovereign of chivalry having adjudged him able to
do knight's service: but he was not
The case was different with re-
Wardship of the body conse quent on the
The wardship of the body was a consequence of the wardship of the land; for he who enjoyed the infant's estate was wardship of the 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 suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render.
Livery of ousterlemaim.
Fine payable thereon.
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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 (k); 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 (m). In order to ascertain the profits that arose to the crown by these first 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 (n), 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 *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 (o). And afterwards, a court of wards and liveries was erected (p), for conducting the same inquiries in a more solemn and legal manner.
(k) Co Litt. 77.
(1) 9 Hen. III. c. 3.
(m) Co. Litt. 77.
(n) Hoveden. sub Ric. I.
(o) 4 Inst. 198.
(p) Stat. 32 Hen. VIII, c. 46.
On the heir's attaining twenty
one, he was
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 compellable to him, or else pay a fine to the king. For, in those heroical hood, or pay a times, no person was qualified for deeds of arms and chivalry fine to the king. 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, as was formerly hinted (q), is supposed to have been the original of the feodal knighthood (r). This prerogative, of compelling the king's vassals † to be knighted, or to pay a fine, was expressly recognized in par'iament by the statute (9) 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
(9) Vol. I. page 404.
(r)" In ipso concilio vel principum "aliquis, vel pater, vel propinquus, 66 scuto frameaque juvenem ornant.
(9) The instrument referred to evidently appears, from the very frame of it, not to have been an act of Parliament. Lord Coke (2nd Instit. 593) informs us, it was merely a writ which Edward II. caused to be entered of record. But, though it was merely a royal grant of further time to those who ought to be
"Haec apud illos toga, hic primus
knighted, not a parliamentary recogni-
This prerogative by the statute 1
+I do not find that this prerogative was confined to the king's tenants: Lord Coke does not make that distinction, nor is the power of the commis.
sioners limited to the king's tenants in
but was abolished by 16 Car. 1,
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5. Marriages. -The right of
the lord to dispose of his infant
ward in marriage.
exertion of prerogative. However, among the other concessions made by that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted (10) 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 its feodal sense signifies the power, which the lord or guardian in chivalry had, of disposing of his infant ward in matrimony. For, while the infant was in ward, the guardian had the power of tendering him or her a suitable match, withFine on refusal out disparagement or inequality: which if the infants refused, they forfeited the value of the marriage, valorem maritagii, to their guardian (s); that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance (t): and, if the infants married themselves without the guardian's consent, they forfeited double the value (11), duplicem valorem maritagii (u). This seems to have been one of the greatest hardships of our antient tenures. There were indeed substantial reasons why the lord should have the restraint and control 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 (w): 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
or on marriage without consent
of the lord.
(s) Litt. § 110.
(t) Stat. Mert. c. 6. Co. Litt. 82.
(u) Litt. § 110.
(w) Bract. 1. 2, c. 37, § 6.
(10) By assenting to the statute whereby Charles I. divested himself of this flower of the crown, he admitted that it was not undoubted. For, whoever will take the trouble of reading the act will find, that, both in its preamble and its enacting part, it speaks
of the claim as one founded upon a pretext, and of the proceedings whereby it was enforced as vexatious and unreasonable.
(11) This double ferfeiture did not extend to heirs female. (Co. Litt. 82 b).