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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 (x); 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 the contract (y); 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 in behalf of the rela- Formerly contions were omitted in the charter of Henry III.: wherein (a) 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 (b) of heirs male; and as Glanvil (c) 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 (d): and also as nothing but disparagement was restrained by magna carta, they thought themselves at liberty to make all other advantages that they could (e). And afterwards this right, of selling the ward in marriage, Right recognizor else receiving the price or value of it, was expressly de

(x) Gr. Cust. 95.

(y) Cap. 6. edit. Oxon.

(z) Cap. 3. ibid.

(a) Cap. 6.

(b) The words maritare and marita

gium seem ex vi termini to denote the
providing of an husband.

(c) L. 9, c. 9 & 12. and 1. 9, c. 4.

(d) L. 2, c. 38, § 1.

(e) Wright, 97.

fined to females;

but afterwards

claimed also for


ed by the statute of Merton.

[blocks in formation]

clared by the statute of Merton (f); which is the first direct mention of it that I have met with, in our own or any other law (12).

(ƒ) 20 Hen. III. c. 6.

(12) The guardian in chivalry was not accountable for the profits made of the infant's land during the wardship, but received them for his own private emolument, subject only to the bare maintenance of the infant. No means appear to have been provided for enforcing the guardian, out of the profits of the estate in wardship, to support and educate the infant in a style and manner suitable to his rank and fortune. Guardianship in chivalry, being deemed more an interest, for the profit of the guardian, than a trust for the benefit of the ward, was saleable and transferrible, like the ordinary subjects of property, to the best 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 be devolved on 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, and unrestrained, by any sufficient authority, from yielding to their influence.

This explication of the nature of wardship in chivalry, general as it is, may well excite a strong idea of the horrid evils necessarily incident to it. On the first reflection, it is natural to wonder how such an oppression could have been endured for several centuries after the conquest; and even remain unreformed by any effectual checks to soften its rigour, till it was

wholly taken away at the restoration. Perhaps, however, on further consideration, the wonder may in some measure be diminished. Guardianship in chivalry only took place when the heir succeeded by descent: and various modes of preventing the descent were practised; first, either by enfeoffing the heir in the ancestor's life-time, or enfeoffing strangers, on such conditions as were sure to entitle the heir to enter, when he came of age, for breach of the conditions; and when these modes were declared (by the Stat. of Marlbridge) to be fraudulent, another, more fit to attain the same end, succeeded; for, uses and trusts being invented, and guardianship in chivalry being only of legal estates, feoffments to uses were made, and the heir taking only the use of the land on a descent, instead of becoming legal tenant, thus escaped being in wardship. This evasion was prevented, (by stat. 4 Hen. VII. c. 17); but, in the succeeding reign, the statute of wills gave the power of devising so as to deprive the lord of the wardship in two thirds of the land holden by knight's service; in which contracted state this odious species of guardianship was suffered to languish, till it was entirely abolished by the famous statute of Charles II.-as mentioned at the end of this chapter. (See Mr. Hargrave's 11th note to Co. Litt. 82 b).

If any Englishman of the present day is not duly sensible of his happiness in living under such a government as ours now is; the best cure for his

due to the lord on alienation by

the tenant.

6. Another attendant or consequence of tenure by knight- 6. Fines-Sums 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 (13); it not being reasonable or 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 feo*dal 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 every thing 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

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discontent will be a comparison of the actual liberty and security for rights, which we at present enjoy, with the condition of our ancestors. Like all other human institutions, our political ones are no doubt still susceptible of improvement, and without constant watchfulness their administration must, from the operation of selfish causes, have a natural tendency to degenerate into abuses; but whilst vigilance and spirit in the defence, or just enlargement, of our privileges, are praiseworthy; a warm and grateful attachment to those constitutional advantages we do enjoy, is a bounden duty. (See ante, the concluding paragraph of note (9) to chap. 4).

for a long time continued so, with
respect to tenants in capite. This
doctrine, however, though strictly con-
sonant with the nature of proper feuds,
was not rigidly adhered to when a
subject was the lord of the fee; and the
real, or supposed, inconveniences result-
ing from the deviation, were thought
worthy of correction by Magna Charta,
ch. 32. (Wright's Law of Ten. 157.
2nd Instit. 65). But, the statute com-
monly called Quia emptores, (Westm.
3, c. 1, 18 Edw. I.) materially varied
from the law of feuds, when (at the
same time that the practice of subinfeu-
dation was prohibited), a general li-
cence was given to the tenants of
common lords to sell all, or any part,
of their lands, to hold of the next im-
mediate lord, which, it seems, they
could not before have done without
the consent of the lord. (See the
next note, and the 6th and 19th chapters
of this volume, with the notes thereto).

(13) In the time of the Saxons, every landed proprietor had an unlimited power of alienation. But, upon the establishment, by the Normans, of the feudal law, all lands became unalienable by the tenants thereof, and

7. Escheats.-

The reversion of the fee to the

lord, on the ex

tinction or corruption of the blood of 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 newlypurchased 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 (g) (14), and the statute of quia emptores (h), (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 these statutes, could not aliene without a licence: for if they did, it was in antient strictness an absolute forfeiture of the land (); 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 (k).

7. The last consequence of tenure in chivalry was escheat (15); 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 (g) Cap. 32.

(h) 18 Edw. I. c. 1.

(14) Our author has the high authority of Lord Coke in support of his opinion that, the right of the tenants of common persons to alien their lands, without a licence, was recognized by Magna Charta. (1 Instit. 43 a. 2 Instit. 65. 501). This recognition, however, is not distinctly expressed in the charter, and the construction of Lord Coke and of Blackstone has been repudiated, as a forced one in itself,

(i) 2 Inst. 66.

(k) Ibid. 67.

and as being inconsistent with any reasonable interpretation of the statute of quia emptores. (Dalrymple's Hist. of Feud. prop. 80. Bacon's L. of Engl. 171. Wright's Law of Ten. 158. Sullivan's Lect. 385; and see the last note).

(15) This subject is treated of more at length by our author in the 15th chapter, which see, with the notes thereto.

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 (16); 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 (1); 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 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 (m) (17).

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created for a

These were the principal qualities, fruits, and consequen- Tenure by ces of tenure by knight-service: a tenure, by which the knight-service, greatest part of the lands in this kingdom were holden, and military purthat principally of the king in capite, till the middle of the pose. last century; and which was created, as Sir Edward Coke expressly testifies (n), 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 (18). The description here given is that (1) Co. Litt. 13. (m) Feud. 1. 2, t. 86.

(n) 4 Inst. 192.

(16) By the statute of 54 Geo. III. c. 145, it is enacted, that no attainder for felony, (after the passing of the act), except in cases of high treason, petit treason, or murder, shall extend to the disinheriting of any heir, or to the prejudice of the right or title of any other person than the offender, during his natural life only; and that it shall be lawful to the person to whom the

right or interest of or in any lands,
tenements, or hereditaments, after the
death of such offender, would have
appertained, if no such attainder had
been, to enter into the same.

(17) Bracton, therefore, (p. 23), pro-
perly calls an escheat, a species of re-

(18) If it be true, as our author asserts, that the greatest part of the

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