holden, and who, and of what age, his heir was; thereby to ascertain the relief and value of the primer seifin, 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 accufations against Empson and Dudley, the wicked engines of Henry VII, that by colour of falfe inquifitions they compelled many perfons to fue 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 fame inquiries in a more folemn and legal

manner.

WHEN the heir thus came of full age, provided he held a knight's fee, he was to receive 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 perfon 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 fimilar custom in what Tacitus relates of the Germans, who in order to qualify their young men to-bear arms, prefented them in a full affembly with a fhield 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 ftatute de militibus, I Edw. II; was exerted as an expedient for raising money by many of our best princes, particularly by Edw. VI and queen Elizabeth; but yet was the occafion of heavy murmurs when exerted by Charles I: among whofe many misfortunes it was, that neither himself nor his people feemed able to distinguish between the arbitrary ftretch, and the legal exertion, of prerogative. However, among the other conceffions made by

BOOK II. that unhappy prince, before the fatal recourfe to arms, he agreed to diveft himself of this undoubted flower of the crown, and it was accordingly abolished by ftatute 16 Car. I. c. 20.

5. BUT, before they came of age, there was ftill another piece of authority, which the guardian was at liberty to exercise over his infant wards; I mean the right of marriage (maritagium, as contradiftinguished from matrimonium) which in it's feodal fenfe fignifies the power, which the lord or guardian in chivalry had of difpofing of his infant ward in matrimony. For, while the infant was in ward, the guardian had the power of tendering him or her a fuitable 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 affefs, or any one would bona fide give to the guardian for such an alliance: and, if the infants married themselves without the guardian's confent, they forfeited double the value, duplicem valorem maritagii". This feems to have been one of the greatest hardships of our antient tenures. There are indeed substantial reasons why the lord fhould 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 affigned why the lord fhould have the fale, or value of the marriage. Nor indeed is this claim of strictly feodal original; the most probable account of it feeming to be this: that by the cuftom of Normandy the lord's confent was neceffary to the marriage of his female wards; which was introduced into England, together with the reft of the Norman doctrine of feuds and it is likely that the lords usually took money for fuch their consent, fince in the often-cited charter of Henry the firft, he engages for the future to take nothing for his confent; which also he promises in general to give provided fuch female ward were not

s Litt. §. 110.

t Stat. Mert. c. 6. Co. Litt. 82. w Litt, §. 110.

w Bract. 1. 2. c. 37. §. 6. ̧* ̧

x Gr. Cuft. 95.

married

married to his enemy. But this, among other beneficial parts of that charter, being difregarded, and guardians ftill 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 difparagement, the next of kin having previous notice of the contract; or, as it was expressed in the first draught of that charter, ita maritentur ne difparagentur, et per confilium propinquorum de confanguinitate fua. But thefe provisions in behalf of the relations were omitted in the charter of Henry III; wherein the clause ftands merely thus "haeredes maritentur abfque disparagatione;" meaning certainly, by haeredes, 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 expreffion to claim them both, five fit masculus five foemina, as Bracton more than once expresses it; and alfo, as nothing but disparagement was reftrained by magna carta, they thought themfelves at liberty to make all other advantages that they could. And afterwards this right, of felling the ward in marriage or elfe receiving the price or value of it, was exprefsly declared by the statute of Merton ; which is the first direct mention of it that I have met with, in our own or in any other law.

C

6. ANOTHER attendant or confequence of tenure by knight-service was that of fines due to the lord for every alienation, whenever the tenant had occafion 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 feen, that a feudatory fhould tranfer his lord's gift to another, and substitute a new tenant to do the fervice in his own stead, without the consent of the lord: and, as the fee

BOOK II. dal obligation was confidered as reciprocal, the lord alfo could not alienate his feignory without the confent of his te nant, which consent of his was called an attornment. This restraint upon the lords foon wore away; that upon the tenants continued longer. For, when every thing came in procefs of time to be bought and fold, the lords would not grant a licence to their tenants 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 eftate, it was much more reasonable that a stranger fhould make the fame acknowlegement on his admiffion 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 perfons, they were at liberty, by magna carta 3, and the statute of quia emptores, (if not earlier) to aliene the whole of their estate, to be holden of the fame lord, as they themselves held it of before. But the king's tenants in capite, not being included under the general words of these ftatutes, could not aliene without a licence: for if they did, it was in antient strictness an abfolute forfeiture of the land1; though fome 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 prefumed to aliene without a licence, a full year's value should be paid *.

7. THE laft confequence of tenure in chivalry was escheat; which is the determination of the tenure, or diffolution 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 commiffion of treafon or felony; whereby every inheritable quality was entirely blotted out

& cap. 32.

18 Edw. I. c. I.

i

2 Inft. 66.

* Ibid. 67.

and

and abolifhed. In fuch cafes the land efcheated, or fell back, to the lord of the fee'; that is, the tenure was determined by breach of the original condition, expreffed or implied in the feodal donation. In the one cafe, there were no heirs fubfifting 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, fhewed that he was no longer to be trufted as a vasal, having forgotten his duty as a fubject; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or a felon. The confequence of which in both cafes was, that the gift, being determined, refulted back to the lord who gave it ".

THESE were the principal qualities, fruits, and confequences 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 fir Edward Coke expressly teftifies ", 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 truft to hirelings or foreigners. The defcription here given is that of knightfervice 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 render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-fervice proper, and because they were attended with fimilar fruits and confequences. Such was the tenure by grand ferjeanty, per magnum fervitium, whereby the tenant was bound, inftead of ferving the king generally in his wars, to do some special honorary service to the king in perfon; 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 moft other refpects like knightfervice; only he was not bound to pay aid, or efcuage';

1 Co. Litt. 13.

m Feud. 1. 2. t. 86,

4 Inft. 192. Litt. §. 153.

P Ibid. §. 158.

92 Inft.

233.

& Litt. §. 158r

and,