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 feodal principles to have been unreasonable. For the wardship of the land, or custody of the feud, was retained by the lord, (8) that he might out of the profits thereof pro*68] vide a fit person to supply the infant's services, till he should be of age to perform them himself. (9) 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 profit 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; (10) which was instituted to inquire (at the death of any man of fortune) the value of his estate, *69] the tenure by which it was *holden, and who and of what age his (m) Co. Litt. 77. (n) Hoveden, sub Ric. I.

(k) Co. Litt. 77.

(1) 9 Hen. III. c. 3.

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 laud. 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 his 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.-COLERIDGE.

(8) The lord was compelled to give no account of the rents and profits of the estate, hence the "wardship" became a means of enriching the lord and of oppressing and impoverishing his ward. I vol. Washburn's Real Prop. 5 ed. p. 51.

(9) If an heir, being in ward, was created a knight, his person thereby became out of ward, the sovereign of chivalry having adjudged him able to do knight's service; but he was not freed of the value of his marriage, which was previously vested in his lord. The case was different with respect to a party who, though under age when he was made a knight, was not then in ward: for instance, if an heir-apparent was made a knight, within age, during the life of his ancestor, upon the death of that ancestor neither his person nor lands would be in ward; for, the title of wardship not having accrued, such a case did not come within the provision of the third chapter of Magna Charta. 2 Inst. 11, 12. Sir Drew Drury's case, 6 Rep. 74, 75.-CHITTY.

(10) [An inquisition after death.]

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 color 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 feodal knighthood. () This prerogative, of compelling the king's vassals to be knighted, or to pay a fine, was expressly recognized in parliament by the statute de militibus,(11) 1 Ed. 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 [*70 arms, he agreed to divest himself of this undoubted power 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 matrimony,) which in its feodal 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, to their guardian;(s) that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance; (t) and, if the infants married themselves without the guardian's consent, they forfeited double the value, duplicem valorem maritagii. (u) (12) 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

(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 reipublicæ. De Mor. Germ. cap. 13. ["In that council either some one of the

princes, or the father, or relation adorns the youth with a spear and buckler-this is the toga among them, the first honor of youth; before this ceremony he was merely a member of his family-now he becomes a member of the republic."]

(8) Litt. § 110.

(t) Stat. Mert. c. 6. Co. Litt. 82.
(u) Litt. 110.

(11) [Of soldiers.] 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 stat. de milit. 2 Inst. 593. Nor is the 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 i. p. 404.-CHRISTIAN.

(12) That is, after a suitable match had been tendered by the lord; but female heirs were not subject to the duplex valor maritagii. Co. Litt. 82, b.—CHRISTIAN.

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 feodal 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. *71] 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 relations were omitted in the charter of Henry III.; wherein(a) the clause stands merely thus, "hæredes maritentur absque disparagatione:"(13) 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 Glanville(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 fæmina, 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, 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. (14)

(w) Bract. l. 2, c. 37, 2 6.

(x) Gr. Coust. 95.

(y) Cap. 6, edit. Oxon.

(2) Cap. 3, ibid.

(a) Cap. 6.

(b) The words maritare and maritagium seem x vi

termini to denote the providing of a husband. [From the strict sense of the word.]

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

(d) L. 2, c. 38, 21. [Whether male or female.] (e) Wright, 97.

(f) 20 Hen. III. c. 6.

(13) ["Heirs should be married without disparagement."]

(14) 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 Unfranville, 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.-CHRISTIAN.

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 feodal connection; 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 feodal obligation was considered as reciprocal, the [*72 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; (15) 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)(16) 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 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) (17)

(15) Washburn on Real Prop., vol. i. 5 ed. p. 51. Greenleaf's Cruise on Real Prop., c. 2. II. 1. note p. 26.

CHITTY.

(16) Our author has the high authority of lord Coke in support of his opinion that the right of the tenants of common persons to aliene their lands without a license was recognized by magna carta. I Inst. 43, a. 2 Inst. 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, 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 Eng. 171. Wright's Law of Ten. 158. Sullivan's Lect. 385.— (17) Jackson v. Shute, 18 Johns. (N. V.) 185 (1820). This is not quite correctly stated. The chapter of magna carta was made in restraint of a practice which tenants had got into of aliening a part or whole of their fees to hold of themselves; and it enacts that for the future no man shall aliene more of his land than that of the residue of the services due to the lord for the whole fee may be sufficiently answered. The construction of this was (see Sir M. Wright, p. 157) that the part allowed to be aliened was to be holden of the alienor and not of the lord: indeed, upon feudal principles, the services of the feoffee naturally resulted to his feoffor; the tenure was of him, and there were good feudal reasons for not violating those principles: so long as the part aliened was held of the alienor, no new tenant was obtruded on the lord; and as the lord's seignory was originally reserved over the whole land, he might still distrein over the whole, or in any part, though aliened, for the whole undivided services. While the feudal system was more strictly regarded with reference to its proper objects, these advantages counterbalanced the disadvantages in respect of pecuniary fruits, which flowed from the practice of subinfeudation, but which in their turn, as the system grew more lax, prevailed, and gave occasion to the statute of quia emptores. The policy of this statute was contrary to that of the chapter of magna carta above cited: it was found (see post, p. 91) that the process of alienation with the tenure reserved to the alienor very sensibly dimin ished the value of the lord's escheat, marriage, and wardship; because they operated

7. The last consequence of tenure in chivalry was escheat; (18) 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, (19) whereby *73] every inheritable quality was entirely blotted out and abolished. In such cases the lands 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, showed 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)

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's

(1) Co. Litt. 13.

(m) Feud. 1. 2, t. 86.

(n) 2 Inst. 192.

beneficially to him only on the portion of land reserved, and not on that granted out while the alienor derived all these fruits as they arose from the portion so granted out. It was then thought by the lords better to submit to the inconvenience of new tenants, being obtruded on them without their consent, which was grown to be imaginary only, than, for the sake of retaining a nominal tenant, to lose the substantial fruits of the tenure. It was now too late to restrain alienation entirely; and therefore the only course which remained was that adopted,-to permit it in whole or in part, with a reservation only of the tenure to the next immediate lord (2 Inst. 501) by the same services and customs by which it had been before held by the alienor.

With respect to the question of forfeiture, it is curious that lord Coke should be cited apparently in support of the opinion that alienation by the tenants in capite without license involved a forfeiture; for at 2 Inst. 66, stating both opinions, he declares his own to be in the negative; and, as Sir M. Wright thinks, (p. 154,) erroneously. This gives me occasion to say 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 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.

Under the statute 1 Eliz. c. 12, the fines in both cases were to be paid by the alienee. -COLERIDGE. Williams on Real Prop. 6 ed. p. 125.

(18) Williams on Real Prop. p. 125 (6 ed.).

(19) 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.-CHITTY. In England attainder or corruption of blood, forfeiture, and escheat are abolished by 33 and 34 Vict. c. 23; it is provided, however, in the act "that nothing in this act shall affect the law of forfeiture consequent upon outlawry.' 3 Chitty's Eng. stats. p. 127. In the United States the Constitution. provides that attainder of treason can work corruption of blood or forfeiture only during the life of the person attainted. Const. art. 3, 8 3.