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(or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon; (n) which attendance was his reditus or return, his rent or service for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion. (0) And there is reason to *apprehend that this service was the whole that our ancestors meant to subject themselves to; the other fruits [*63] and consequences of this tenure being fraudulently superinduced, as the regular (though unforseen) appendages of the feudal system.

This tenure of knight-service had all the marks of a strict and regular feud; it was granted by words of pure donation, dedi et concessi; (p) was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz: aid, relief, primer seisin, wardship, marriage, fines for alienation, and escheat all which I shall endeavour to explain, and to show to be of feudal original. (3)

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress; (q) but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three; first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feudal attachment and fidelity: insomuch that the neglect of doing it, whenever it was in the vassal's power, was by the strict rigour of the feudal law an absolute forfeiture of his estate. (r) Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms: (8) the intention of it being to breed up the eldest son and heir apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender, few lords being able to save much out of their income for this purpose; nor could they acquire money by other means, [*64]

being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances. (4) From bearing their proportion to these aids, no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden), and the marriage of his female descendants. (t) And one cannot but observe in this particular the great resemblance which the lord and vassal of the feudal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised by (n) See writs for this purpose in Memorand. Scacch. 36, prefixed to Maynard's yearbook, Edw. II. (0) Litt. § 95. (p) Co. Litt. 9.

(q) Auxilia, fiunt de gratia et non de jure,- -cum dependeant ex gratia tenentium, et non ad voluntatem dominorum. Bracton, T. 2, tr. 1, c. 16. § 8. (r) Feud. 1. 2, t. 24.

(8) 2 Inst. 233.

(t) Phillip's Life of Pole, I, 223.

principal thing considered in all ancient agriculture; wood, meadow and pasture were appendages, furnishing the estovers and botes of the tenant of the arable land. Mr. Seldon contends that a knight's fee did not consist of land of a fixed extent or value, but was as much as the king was pleased to grant upon condition of having the service of one knight. Tit. of Hon. b. 2, c. 5, 88. 17 and 26.

(3) [Sir John Dalrymple, in an Essay on Feudal Property, p. 24, says, that "in England, before the 12 of Car. II, if the king had granted lands without reserving any particular serrices or tenure, the law creating a tenure for him would have made the grantee hold by knight's service."

Wright also says, that "military tenure was created by pure words of donation." Wright's Ten. 141.]

(4) [By the statute West. 1, c. 36, the aid for the marriage portion of the lord's eldest daughter could not be demanded till she was seven years of age, and if he died, leaving her unmarried, she might by the same statute recover the amount so received by him from his executors.]

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the client; viz.: to marry the patron's daughter; to pay his debts and to redeem his person from captivity. (u)

But besides these ancient feudal aids, the tyranny of lords by degrees exacted more and more: as, aids to pay the lord's debts (probably in imitation of the Romans), and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were, from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, King John's magna charta (v) ordained that no aids be taken by the king without consent of parliament, nor in anywise by inferior lords, save only the three ancient ones above mentioned. But this provision was omitted in Henry III's charter, and the same oppressions were continued till the 25 Edward I, when the statute called confirmatio chartarum was enacted; which in this respect revived King John's charter, by ordaining that none but the ancient aids should be taken. But though the species of aids was

[*65] thus *restrained, yet the quantity of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable; (w) and that the aids taken by the king of his tenants in capite should be settled by parliament. (x) But they were never completely ascertained and adjusted till the statute Westm. 1, 3 Edw. I, c. 36, which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter: and the same was done with regard to the king's tenants in capite by statute 25 Edw. III, c. 11. The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was therefore never ascertained.

2. Relief, relevium, was before mentioned as incident to every feudal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first, they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief it was in effect to disinherit the heir. (y) The English ill brooked this consequence of their new-adopted policy; and therefore William the Conqueror, by his law, (2) ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively: and if the latter had no arms, they should pay 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feudal laws; thereby in effect obliging every heir to new-purchase or redeem his land: (a) but his brother Henry I, by the charter before mentioned, restored his father's [*66] law; *and ordained, that the relief to be paid should be according to the law so established, and not an arbitrary redemption. (b) But afterwards, when, by an ordinance in 27 Hen. II, called the assize 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 acknowledgments in arms according to the laws of the conqueror, the composition was universally accepted of 1008. for every knight's fee; as we find it ever after established. (c) 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 feudal 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

(u) Erat autem hæc inter utrosque officiorum vicissitudo-ut clientes ad collocandas senatorum filias de suo conferrent; in æris alieni dissolutionem gratuitam pecuniam erogarent; et ab hostibus in bello captos redimerent. Paul Manutius de senatu Romano. c. 1. (v) Cap. 12, 15, (w) Ibid. 15. (x) Ibid. 14. (y) Wright, 99. (a) 2 Roll. Abr. 514. (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.

(z) C. 22, 23, 24,

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. (d) This seems to be little more than an additional relief, but grounded upon this feudal reason; that by the ancient law of feuds, immediately upon the death of a vassal, 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: during which interval the lord was entitled to take the profits; and, unless the heir claimed within a year and a day, it was by the strict law a forfeiture. (e) This practice however seems not to have long obtained in England, if ever, with regard to tenure under inferior lords; but as to the king's tenures in capite, the prima 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 [*67] year and a day next after the death of the tenant, in, pursuance of the strict feudal 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 feudal 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 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) (5)

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 feudal principles to have been unreasonable. For the wardship of the land, or custody of the feud, was retained by the lord,

(d) Co. Litt. 77.
(e) Feud. 1. 2, t. 21.
(g) Staundf. Prerog. 12. (h) Litt. 103.

(f) Stat. Marlb. c. 16. 17 Edw. II, c. 3.
(i) Litt. § 103.

(5) [According to Lord Coke, 2 Inst. 204, it is not quite correct to say that the lord might keep her in ward for the two additional years; he had the land by the statute, but the guardianship was at an end. The distinction was not merely a verbal one, for being no longer guardian, he was not liable to the actions in respect to the land which as guardian he must have answered; for example, the widow of the last tenant could not bring her writ of dower against him; on the other hand, he had not all the established rights of a guardian against the heir, and therefore, if he tendered her a marriage during the two years, and she contracted a marriage elsewhere, there lay no forfeiture of the value of the marriage against her.

It is necessary also to make another qualification of the text, for the statute did not apply if the female was married, though under fourteen, the two years being given to the lord ostensibly not so much for his benefit as that during that time he might find his ward a proper husband; and therefore if he married her within the two years, he immediately lost the land. 2 Inst. 203. On the other hand, the capability of marriage at fourteen, and the performance of the service by the husband, were not the sole reasons for limiting her wardship to that age; because by law she might marry at twelve; and if she had so done, and her husband were able to perform the service, still the lord would have the wardship of the land till her age of fourteen. Co. Litt. 79.]

that he might out of the profits thereof provide a fit person to supply [*68] the infant's services, till he should be of age to perform them himself. (6) 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. 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 suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render.

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 profit 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 [*69] 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. Á 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. (0) And afterwards, a court of wards and liveries was erected, (p) for conducting the same inquiries in a more solemn and legal manner.

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 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 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 feudal knighthood. (r) This prerogative, of compelling the king's vassals (7)

(k) Co. Litt. 77.

(0) 4 Inst. 198.

(r)

(7) 9 Hen. III, c. 3. (m) Co. Litt. 77. (n) Hoveden, sub. Ric. I.
(p) Stat. 32 Hen. VIII. c. 46. (g) Book I, p. 404.

"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 republicæ." De Mor. Germ. cap. 13.

(6) [If an infant tenant by knight service was created a knight, the king was no longer entitled to the wardship of his person, nor to the value of his marriage. Sir John Radcliffe's Case, Plow. 267. And the reason there assigned is, that "when he is made a knight by the king, who is the chief captain of all chivalry, or by some other great captain assigned by the king for that purpose, he is thereby allowed and admitted to be able to perform knight's service; and then his body ought not to be in ward, because his imbecility ceases, and cessant causa, cessabit effectus."]

(7) I do not find that this prerogative was confined to the king's tenants: Lord Coke does not make that distinction in his commentary on the statute de milit, 2 Inst, 593. Nor is the

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 that unhappy prince, before the fatal recourse to arms, he agreed to divest [*70] 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 its fedual 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, without disparagement or inequality; which if the infants refused, they forfeited the value of the marriage, valorem maritagii; (s) that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance; (f) and, if the infants married themselves without the guardian's consent, they forfeited double the value, duplicem valorem maritagii. (u) (8) This seems to have been one of the greatest hardships of our ancient 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 feudal 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; (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 [*71] 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 disparagenter, et per consilium propinquorum de consanguinitate sua. (z) But these provisions in behalf of the relations 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

(8) Litt. § 110.

(t) Stat. Mert. c. 6. Co. Litt. 82.
(y) Cap. 6. edit. Oxon.

(w) Bract. l. 2, c. 37, § 6. (a) Cap. 6. providing of an husband.

(u) Litt. § 110. (x) Gr. Coust. 95. (z) Cap. 3, ibid. (b) The words maritare and maritagium seem ex vi terminí to denote the (c) L. 9, c. 9 & 12, & l. 9, c. 4. (d) L. 2, c. 38, è 1.

power of the commissioners limited to the king's tenants in the commissions issued by Edw. VI, and Queen Elizabeth, which see in 15 Rym. Fœd. 124 and 493; see 16 Car. I, c. 20; 2 Rushw. 70; and book 1, p. 404. CHRISTIAN.]

(8) [That is, after a suitable match had been tendered by the lord. and refusal, and no marriage elsewhere, the lord had the single value. subject to the duplex valor maritagii. Co. Litt. 82, b.]

In the case of a tender

Female heirs were not

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