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 [*69] 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. (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) (m) Co. Litt. 77. (n) Hoveden, sub. Ric. I.

(k) Co. Litt. 77. (7) 9 Hen. III, c. 3.

(0) 4 Inst. 198. (p) Stat. 32 Hen. VIII. c. 46. (q) Book I, p. 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 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 charter, being disregarded, and guardians still continuing to dispose of [*71] 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.

sua.(z)

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

(u) Litt. § 110. (z) Cap. 3, ibid.

(w) Bract. l. 2, c. 37, § 6. (x) Gr. Coust. 95. (a) Cap. 6. (b) The words maritare and maritagium seem ex vi termini to denote the providing of an husband. (c) L. 9, c. 9 & 12, & l. 9, c. 4.

(d) L. 2, c. 38, § 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. Food. 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

themselves at liberty to make all other advantages that they could, (e) And afterwards this right, of selling the ward in marriage, or else receiving the price or value of it, was expressly declared 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. (9)

6. Another attendant or consequence of tenure by knight-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 feudal connexion; 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 [*72] *feudal 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 license to their tenant 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 estate, it was much more reasonable that a stranger should make the same acknowledgment on his admission 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 license: but as to common persons, they were at liberty by magna carta, (g) (10) 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 license; for if they did, it was in ancient strictness an absolute forfeiture of the land; (i) 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 license of alienation; but if the tenant presumed to aliene without a license, a full year's value should be paid. (k) (11)

(e) Wright, 97.

(f) 20 Hen. III, c. 6.
(i) 2 Inst. 66.

(g) Cap. 32. (h) 18 Edw. I, c. 1.
(k) Ibid. 67.

(9) [What fruitful sources of revenue these wardships and marriages of the tenants, who held lands by knight's service, were to the crown, will appear from the two following instances, collected among others by Lord Lyttleton, Hist. Hen. II, 2 vol. 296: "John, earl of Lincoln, gave Henry the Third 3000 marks to have the marriage of Richard de Clare, for the benefit of Matilda, his eldest daughter; and Simon de Montford gave the same king 10,000 marks to have the custody of the lands and heir of Gilbert de Ünfranville, with the heir's marriage, a sum equivalent to a hundred thousand pounds at present." In this case the estate must have been large, the minor young, and the alliance honorable. For, as Mr. Hargrave informs us, who has well described this species of guardianship, "the guardian in chivalry was not accountable for the profits made of the infant's lands during the wardship, but received them for his own private emolument, subject only to the bare maintenance of the infant. And this guardianship, being deemed more an interest for the profit of the guardian than a trust for the benefit of the ward, was salable and transferable, 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 devolve upon 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, or any sufficient authority to restrain him from yielding to their influence." Co. Litt. 88, n. 11. One cannot read this without astonishment that such should continue to be the condition of the country till the year 1660, which, from the extermination of these feudal oppressions, ought to be regarded as a memorable era in the history of our law and liberty.]

(10) [The construction of magna charta, from which this consequence is deduced, is not very obvious, and has not always been approved of. See Sulliv. Lect. p. 385.]

(11) Justice Coleridge very properly remarks that it is of the utmost importance, in discussing any point relating to the feudal system, to determine the time which is spoken of; thus, according to feudal principles, and while those principles were strictly maintained, alienation without license must have involved forfeiture; for the tenant of course could not have compelled the

7. The last consequence of tenure in chivalry was escheat; 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 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; (12) whereby every inheritable quality was entirely blotted out *and abolished. In such cases the lands escheated, or fell back to the lord of the fee; (7) that is, the tenure was [*73] determined by breach of the original condition expressed or implied in the feudal 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 conditition 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)

These were the principal qualities, fruits, and consequences of 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 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. The description here given is that of a knight-service 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-service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty, (13) per magnum servitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person; (14) as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer, at his coronation. (0) It was in most other respects like knight-service; (p) only he was not bound to pay aid, (q) or escuage; (r) *and, when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeanty paid one year's [*74]

(1) Co. Litt. 13. (p) Ibid. 158.

(m) Feud. 1. 2, t. 86,
(q) 2 Inst. 233.

(n) 4 Inst. 192.

(r) Litt. 158.

(0) Litt. 153.

lord to receive the homage and fealty of a new tenant, and by his own act he had renounced his own holding. But it is obvious that there was always a struggle in the advancing spirit of the age to loosen the bonds of feudal tenure; and it may not be possible to fix the period at which the practice of alienation became too strong for the law, and, being first winked at, was finally legalized.

(12) The doctrine of corruption of blood was peculiar to England. In the United States attainder of treason can work corruption of blood or forfeiture only during the life of the person attainted. Const. art. 3, § 3. And since the statute 3 and 4 Wm. IV, c. 106, enlarging 54 Geo. III, c. 145, attainder in England for any crime cannot extend to the disinheriting of heirs except during the life of the offender.

(13) [Mr. Hargrave (note 1 to Co. Litt. 108 a) observes, that the tenure by grand serjeanty still continues, though it is so regulated by the 12th of Car. II, c. 24, as to be made in effect free and common socage, except so far as regards the merely honorary parts of grand serjeanty.]

(14) [Perhaps, more correctly, "to do some special honorary service in person to the king," the general rule being that it was to be done by the tenant in person, if abse, though there are many instances in which it was not to be done to the king in person. This may explain why he who held in grand serjeanty paid no escuage. The devout attachment to the lord's person, which was so much fostered by the feudal sytem, is in none of its minor consequences more conspicuous than in the nature of the personal services which the haughtiest barons were proud to render to their lord paramount. To be the king's butler or carver are familiar instances. Mr. Madox mentions one more singular, of a tenure in grand serjeanty by the service of holding the king's head in the ship which carried him in his passage between Dover and Whitsand. Baronia, 3, c. 5.]

value of his land, were it much or little. (s) Tenure by cornage, (15) which was to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeanty. (t)

These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scutagium in Latin, or servitium scuti; scutum being then a well-known denomination for money: and, in like manner, it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. (16) The first time this appears to have been taken was in the 5 Hen. II, on account of his expedition to Toulouse; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our ancient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops; and these assessments in the time of Hen. II seem to have been made arbitrarily, and at the king's pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour; and King John was obliged to consent by his magna carta, that no scutage should be imposed without consent of parliament. (u) But this clause was omitted in his son Henry III's charter, where we only find (w) that scutages *or [*75] escuage should be taken as they were used to be taken in the time of Henry II: that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edw. I, cc. 5, 6, and many subsequent statutes, (x) it was again provided, that the king should take no aids or tasks but by the common consent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament; (y) such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton (z) must be understood, when he tells us, that tenant by homage, fealty, and escuage, was tenant by knight-service: that is, that this tenure (being subservient to the military policy of the nation) was respected (a) as a tenure in chivalry. (6) But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled, invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure, instead of knight-service, would have then been of another kind, called socage, (c) of which we shall speak in the next chapter.

(8) Ibid. § 154.

(t) Ibid. § 156.

(u) Nullum scutagium ponatur in regno nostro, nisi per commune consilium regni nostri. Cap. 12.
(w) Cap. 37. (x) See book I, page 140. (y) Old Ten. tit. Escuage.
(a) Wright, 122. (b) Pro feodo militari reputatur. Flet. l. 2, c. 14, § 7.

(z) § 103. (c) Litt. 97, 120.

(15) [The well-known case of the Pusey horn, where a bill in chancery was brought for its recovery, Pusey v. Pusey, 1 Vern. 273, was an instance where land had been held by the Pusey family by "a horn anciently given to their ancestors by Canute, the Danish king." Camd. Brit. Berks. p. 203, ed. 1607. The inscription on the horn was as follows: "Kyng Knowd gave Wyllyam Powse, this horne to hold by thy londe."]

(16) [But Littleton, Coke and Bracton render it the service of the shield, i. e. of arms, being a compensation for actual service. Co. Litt. 68, b.

Sir M. Wright considers that escuage, though in some instances the compensation made to the lord for the omission of actual service, was also in many others a pecuniary aid or tribute originally reserved by particular lords instead of personal service, varying in amount according to the expenditure which the lord had to incur in his personal attendance upon the king in his wars. This explanation tends to elucidate the distinction between knight-service and escuage in the old authors. See Wright, 121, 134; Litt. s. 98, 120.]