1005

[lands out of their guardian's hands (o). 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 (p). However, in consideration of their
lands having been so long in ward, they were excused allt
reliefs, and the king's tenants also all primer seisins (q). ewc
In order to ascertain the profits that arose to the Crown catie &
by these 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 country, commonly called an inquisito post
mortem (r); which inquisition was directed 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, so as thereby to ascertain the relief and
value of the primer seisin, or the wardship and livery
accruing to the king thereupon (s). And afterwards, a
court of wards and liveries was erected, for conducting the
same enquiries in a more solemn and legal manner (t).

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 person was
qualified for deeds of arms and chivalry who had not
received this order, which was conferred with much pre-
paration and solemnity. This prerogative, of compelling
the vassals to be knighted, or to pay a fine, was expressly
recognized in Parliament by the Statute de Militibus (u);
was exerted as an expedient for raising money by many of
our best princes, particularly by Edward the Sixth and
Queen Elizabeth; but yet was the occasion of many
murmurs when exerted by Charles the First. Eventually,

(0) Co. Litt. 77 a.

(p) 9 Hen. 3 (1225) c. 3.

(q) Co. Litt. 77 a.

(r) Articles of the Eyre, in Statutes of the Realm I. 233.

(s) 4 Inst. 198.

(t) St. 32 Hen. 8 (1541), c. 46; 33 Hen. 8 (1541) c. 22.

(u) 1 Edw. 2, st. 1 (attrib. to 1307).

[that unhappy prince agreed to divest himself of this prerogative, which was accordingly abolished in the year 1640, by the 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; namely, the right of marriage, or power of disposing of his infant ward in matrimony. For, while the infant was in ward, the guardian might tender him or her a suitable match, without disparagement or inequality (x); which if the infants refused, they forfeited the value of the marriage, valorem maritagii, to their guardian. And, if the infants. married themselves, without the guardian's consent, they forfeited double the value, duplicem valorem maritagii. This seems to have been one of the greatest hardships of our antient tenures, and to have had its origin in the consent which was required on the part of the lord to the marriage of his female wards, a custom which was founded in good sense (y). The exaction of a price for the consent was an abuse which crept in later; and the extension of the claim, from female to male wards, appears to have arisen from a strained construction of a clause in Magna Carta (z). However, the right of selling the ward in marriage, or else receiving the price or value of it, was expressly declared by the Statute of Merton (a).]

6. The ordinary tenant in chivalry, on arriving at the full age of twenty-one, had the power of alienating his land, or, at all events, part thereof. But this alienation was originally by way of sub-infeudation only (b); and it was not until the statute of Quia Emptores (18 Edw. I. (1290) st. 1) that the tenant acquired the full power of alienation inter viros. Under that statute the land aliened was to be held by the vendee of the same lord of

(x) Magna Carta (9 Hen. 3 (1225)), c. 6.

(y) Bract. L. 2, c. 37, s. 6, fo, 88. (z) 9 Hen. 3 (1225), c, 6,

(a) 20 Hen. 3 (1235) c. 7. (b) Wright, Tenures, p. 154; Co. Litt. 43 a.

whom the vendor himself had held it previously. But the tenant in chivalry had no power of aliening his land by will.

And the king's tenants in capite, not being included in the words of Quia Emptores, could not aliene without a licence; for if they did, it became a question whether the land was not absolutely forfeited (c). [But this severity was mitigated by the statute 1 Edward III. (1327) c. 12, which declared, that in such a 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 (d).

7. The last consequence of tenure in chivalry was escheat; which is the determination of the tenure, or dissolution of the mutual bond between lord and tenant, from the extinction of the blood of the latter, by either natural or civil means. For, if the tenant died without heirs of his blood, or if his blood was corrupted and stained by commission of treason or felony (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; that is, the tenure was determined by breach of the original condition, expressed or implied in the feudal donation. The consequence of which was, that the gift, being determined, resulted back to the lord who gave it.

These were the principal qualities, fruits, and consequences of the tenure by knight-service properly socalled; but there were also some other species of knightservice, improperly so-called. Such was the tenure by grand serjeanty, 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, as to carry his banner, his sword, or the (d) Ibid. 67.

(c) 2 Inst. 66.

[like; or to be his butler, champion, or other officer, at his coronation (f). It was in most other respects like knight-service (g); only the tenant was not bound to pay aid or escuage (h); 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 value of his land, were it much or little (i). Tenure by cornage, 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. No one could hold in grand serjeanty, but of the king only (k).

These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But, the personal attendance growing troublesome, the tenants found various means of evading or compounding it; first, by sending others in their stead, and afterwards by making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction came at last to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scutagium, or servitium scuti, scutum being then a wellknown denomination of money; and it was called, in our Norman-French, escuage, being indeed a pecuniary, instead of a military, service. The first time this appears to have been taken was in the fifth year of Henry the Second, on the occasion of his expedition to Toulouse; but it soon came to be so universal that personal attendance fell quite into disuse. Hence we find, that in our antient histories, 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 (1). And (f) Co. Litt. 105 b.

(g) Ibid. 108 a.

(h) 2 Inst. 233.

(i) Litt. s. 158. (k) Ibid. 156,

S.C.-VOL. I.

(7) It is said to have been levied only forty times. (See Pollock and Maitland, History of English Law I. 253.)

I

[these assessments, which appear at first to have been arbitrarily levied at the king's mere pleasure, were, after a long struggle, at last subjected to the control of Parliament, like all other taxes (m).]

So long as this elaborate scheme of tenure fulfilled its original object, viz., that of forming a national militia of barons, knights, and gentlemen, its inconveniences were tolerated, or perhaps not severely felt. But [by the degeneracy of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages of the feudal constitution were destroyed, and nothing but the hardships remained. The whole system now tended to nothing else, but a wretched means of raising money to pay an army of occasional mercenaries. In the meantime, the families of all our nobility and gentry groaned under the intolerable burdens which were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. A slavery so complicated and so extensive as this, called aloud for a remedy in a nation that boasted of her freedom. Palliations were from time to time applied by successive Acts of Parliament, till at length the humanity of King James the First consented, for a proper equivalent, to abolish them all. His plan seems to have been, that by way of compensation for the loss which the Crown and other lords would sustain, an annual fee farm rent should be settled and inseparably annexed to the Crown, and assured to the inferior lords, payable out of every knight's fee, within their respective seignories. An expedient seemingly much better than the hereditary excise, which was the equivalent eventually adopted by the 12 Car. II. (1660) c. 24, being the statute which abolished all the feudal burdens. By which statute it was enacted, "that the court of wards and liveries, and all wardships, liveries,

(m) Magna Carta of 1215 (ed. Stubbs), c. 12; 25 Edw. 1 (1297). (As a matter of fact, scutage is not

mentioned by name in the 25 Edw. 1.-E. J.)