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CHAPTER V.: OF THE ANCIENT ENGLISH TENURES - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE ANCIENT ENGLISH TENURES
In this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments, might have been holden, as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.
Almost all the real property of this kingdom is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king,1 and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A., and he granted a portion of the land to B., now B. was said to hold *[*60of A., and A. of the king; or, in other words, B. held his lands immediately of A., but mediately of the king. The king therefore was styled lord paramount; A. was both tenant and lord, or was a mesne lord: and B. was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land.(a) In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to Sir Edward Coke,(b) in the law of England we have not properly allodium; which, we have seen,(c) is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.
All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did.(d) This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.
I. There seems to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the nature of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform; *[*61as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were only fit for peasants or persons of a servile rank; as to plough the lord’s land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.
From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account, of any author ancient or modern;(e) of which the following is the outline or abstract.(f) “Tenements are of two kinds, frank-tenement and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only.” And again,(g) “of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined.” Of which the sense seems to be as follows: first, where the service was free but uncertain, as military service with homage, that tenure was called the tenure in **62]chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c., that tenure was called liberum socagium, or free-socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage, (from the certainty of its services,) but degraded by their baseness into the inferior title of villanum socagium, villein-socage.
I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law-French, chivalry, or service de chivaler, answering to the fief d’haubert of the Normans,(h) which name is expressly given it by the Mirrour.(i) This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight’s fee, feodum militare; the measure of which in 3 Edw. I. was estimated at twelve plough-lands,(k) and its value (though it varied with the times)(l) in the reigns of Edward I. and Edward II.(m) was stated at 20l. per annum.2 And he who held this proportion of land (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.(o) And there is reason to *[*63apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal 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., aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and to show to be of feodal 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 feodal 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 feodal 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:(s) 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 *[*64their income for this purpose; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this or any other encumbrances.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 feodal 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 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 feodal 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 any wise 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 thus restrain**65]ed, 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 feodal 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(z)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 feodal 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 law, **66]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 100s. 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 feodal 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 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 feodal 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 for feiture.(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 *[*67whole profits of the land, till livery was sued; which suit being commonly made within a year and day next after the death of the tenant, in pursuance of the strict feodal 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 feodal 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 feodal principles to have been unreasonable. For the wardship of the land, or custody of the feud, was retained by the lord, that he might out of the profits thereof provide a fit person **68]to supply 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.(l) 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; which was instituted to inquire (at the death of any man of fortune) the value of his estate, the tenure by which it was **69]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.(o) 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.(r) This prerogative, of compelling the king’s vassals7 to be knighted, or to pay a fine, was expressly recognised 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 *[*70that unhappy prince, before the fatal recourse to 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)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 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 not *[*71married 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:” 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 fœmina, 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.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 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 feo**72]dal 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
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 **73]and abolished. In such cases the lands escheated, or fell back to the lord of the fee;(l) 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 service proper, which was to attend the king in his wars. There were also some other species of knight’s 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’s service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty,13per 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.(o) It was in most other respects like knight-service;(p) only he was not bound to pay aid,(q) or escuage,(r) **74]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.(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 Henry 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, *[*75or 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. c. 5, 6, and many subsequent statutes,(x) it was again provided that the king should take no aids or tasks but by the common assent 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.(b) 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.
For the present I have only to observe, that by the degenerating of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of **76]tenures now tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time, the families of all our nobility and gentry groaned under the intolerable burthens which (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable in defect of personal attendance, which, however, were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted, or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith(d) very feelingly complains, “when he came to his own, after he was out of wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren,” to reduce him still further, he was yet to pay half a year’s profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value if he married another woman. Add to this the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when, by these deductions, his fortune was so shattered and ruined that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a license of alienation.
A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of its freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I. consented,(e) in consideration of a proper equivalent, to abolish them all; though the plan **77]proceeded not to effect; in like manner as he had formed a scheme, and begun to put it in execution, for removing the feodal grievance of heritable jurisdiction in Scotland,(f) which has since been pursued and effected by the statute Geo. II. c. 43.(g) King James’s plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued: only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent was to have been 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 afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, (having during the usurpation been discontinued,) were destroyed at one blow by the statute 12 Car. II. c. 24, which enacts, “that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away.17 And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyhold, and the honorary services (without the slavish part) of grand serjeanty.” A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself; since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of king Charles extirpated the whole, and demolished both root and branches.
[1 ] William the First and other feudal sovereigns, though they made large and numerous grants of lands, always reserved a rent, or certain annual payments, (commonly very trifling,) which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the dominium directum in themselves. Madox, Hist. Exch. c. 10. Craig de Feud. 1. 1, c. 9.—Chitty.
[(a) ] 1 Inst. 296.
[(b) ] 1 Inst. 1.
[(c) ] Page 47.
[(d) ] In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, &c., which hold directly from the emperor, are called the immediate states of the empire,—all other landholders being denominated mediate ones. Mod. Un. Hist. xliii. 61.
[(e) ]L. 4, tr. 1, c. 28.
[(f) ]Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum. 1.
[(g) ]Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei præceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium; et hujusmodi villani socmanni—villana faciunt servitia, sed certa, et determinata. 5.
[(h) ] Spelm. Gloss. 219.
[(i) ] C. 2, 27.
[(k) ]Pusch. 3 Edw. I. Co. Litt. 60.
[(l) ] 2 Inst. 596.
[(m) ] Stat. Westm. 1, c. 36. Stat. de milit. 1 Edw. II. Co. Litt. 69.
[2 ] Mr. Selden 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 the condition of having the service of one knight. Tit. of Hon. p. 2, c. 5, s. 17 and 26. This is most probable: besides, it cannot be supposed that the same quantity of land was everywhere of the same value.—Christian.
Upon the questions of the extent and value of a knight’s fee there are many opinions, and it seems hardly possible in the present day to arrive at any certainty. With regard to the value it varied undoubtedly; but it can hardly be said to have varied “with the times,” if the writs as cited by lord Coke (2 Inst. 596) can be depended upon. The fluctuation in them is so uncertain and extraordinary that it cannot be accounted for by any change in the times. With regard to the extent, we can have no hesitation in assenting to the doctrine that it varied with the goodness of the land: at the same time the measure might be the same, as twelve plough-lands of rich soil would contain a less space than the same number in a lighter and less productive soil. There might, therefore, be always the same number of plough-lands, though the number of acres might vary; nor is it at all inconsistent with this that there might be appendant to the plough-lands wood, meadow, and pasture; for the arable land was the 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.—Coleridge.
[(n) ] See writs for this purpose in Memorand. Scacch. 36, prefixed to Maynard’s Year-book, Edw. II.
[(o) ] Litt. 95.
[(p) ] Co. Litt. 9.
[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 services 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.—Christian.
[(q) ]Auxilia fiunt de gratia, et non de jure,—cum dependeant ex gratia tenentium, et non ad voluntatem dominorum. Bracton, l. 2, tr. 1, c. 16, 8.
[(r) ]Feud. l. 2, t. 24.
[(s) ] 2 Inst. 233.
[4 ] By the statute Westm. 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.—Chitty.
[(t) ] Phillip’s Life of Pole, i. 223.
[(u) ]Erat autem hæc inter utrosque officiorum vicissitudo—uc clientes ad collocandas senatorum filias de suo conferrent; [Editor: Illegible character] æris alieni dissolutionem gratuitam pecuniam erogarent; [Editor: Illegible character] ab hostibus in bello captos redimerent. Paul Man[Editor: Illegible character]ius de Senatu Romano, c. 1.
[(v) ] Cap. 12, 13.
[(w) ] Ibid. 15.
[(x) ] Ibid. 14.
[(y) ] Wright, 99.
[(z) ] C. 22, 23, 24.
[(a) ] 2 Roll. Abr. 514.
[(b) ] “Hæres non redimet terram suam sicut faciebat tem pore fratris mei, sed legitima et justa relevatione relevabe eam.” Text. Roffens. cap. 34.
[(c) ] Glanv. l. 9, c. 4. Litt. 112.
[(d) ] Co. Litt.
[(e) ]Feud. l. 2, t. 24.
[(f) ] Stat. Marlb. c. 16. 17 Edw. II. c. 3.
[(g) ] Staundf. Prerog. 12.
[(h) ] Litt. 103.
[(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 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 of the lands which, as guardian, he must have answered. For example, the widow of the last tenant could not bring her writ of lower 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 heir-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 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.
[6 ] 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.
[(k) ] Co. Litt. 77.
[(l) ] 9 Hen. III. c. 3.
[(m) ] Co. Litt. 77.
[(n) ] Hoveden, sub Ric. I.
[(o) ] 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 rulentur; mox reipublicæ. De Mor. Germ. cap. 13.
[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 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.
[(s) ] Litt. 110.
[(t) ] Stat. Mert. c. 6. Co. Litt. 82.
[(u) ] Litt. 110.
[8 ] 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.
[(w) ] Bract. l. 2, c. 37, 6.
[(x) ] Gr. Coust. 95.
[(y) ] Cap. 6, edit. Oxon.
[(z) ] Cap. 3, ibid.
[(a) ] Cap. 6.
[(b) ] The words maritare and maritagium seem ex vi termini to denote the providing of a husband.
[(c) ]L. 9, c. 9 and 12, and l. 9, c. 4.
[(d) ]L. 2, c. 38, 1.
[(e) ] Wright, 97.
[(f) ] 2[Editor: Illegible character] Hen. III. c. 6.
[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 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 honourable. 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.
[(g) ] Cap. 32.
[10 ] 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 recognised by magna carta. 1 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.—Chitty.
[(h) ] 18 Edw. I. c. 1.
[(i) ] 2 Inst. 66.
[(k) ] Ibid. 67.
[11 ] 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 diminished the value of the lord’s escheat, marriage, and wardship; because they operated 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.
[12 ] 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.
[(l) ] Co. Litt. 13.
[(m) ]Feud. l. 2, t. 86.
[(n) ] 2 Inst. 192.
[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. These are preserved, with a cautious exception, not only of those burthensome properties which really were previously incident to that species of tenure, but also of some to which it never was subject; the drawer of the act not appearing to have recollected the distinctions, as to this matter, between knight’s service and grand serjeanty, which our author points out.—Chitty.
[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 personally by the tenant, if able, 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 by grand serjeanty paid no escuage. The devout attachment to the lord’s person, which was so much fostered by the feudal system, 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.—Coleridge.
[(o) ] Litt. 153.
[(p) ] Ibid. 158.
[(q) ] 2 Inst. 233.
[(r) ] Litt. 158.
[(s) ] Ibid. 154.
[15 ] “A tenure by cornage of a common person was knight’s service; of the king, grand serjeanty. The royal dignity made a difference of the tenure in this case.” Co. Litt. 107, a. So the dignity of the person of the king gave the name of petit serjeanty to services which, if rendered to a common person, would have been called plain socage, the incidents being, in fact, only such as belonged to socage. Co. Litt. 108, b.; and see, post, our author’s observation to a similar effect, in p. 82.—Chitty.
[(t) ] Litt. 156.
[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.—Christian.
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.—Chitty.
[(u) ]Nullum scutagium ponatur in regno nostro, nisi per commune consilium regni nostri. Cap. 12.
[(w) ] Cap. 37.
[(x) ] See book i. p. 140.
[(y) ] Old Ten. tit. Escuage.
[(z) ] 103.
[(a) ] Wright, 122.
[(b) ]Pro feodo militari reputatur. Flet. l. 2, c. 14, 7.
[(c) ] Litt. 97, 120.
[(d) ] Commonw. l. 3, c. 3.
[(e) ] 4 Inst. 202.
[(f) ] Dalrymp. of Feuds, 292.
[(g) ] By another statute of the same year, (20 Geo. II. c. 50,) the tenure of ward-holding (equivalent to the knight-service of England) is forever abolished in Scotland.
[17 ] Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the title and body of the act, viz., of taking away tenures in capite, (Mad. Bar. Ang. 238. Co. Litt. 108, n. 5;) for tenure in capite signifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of military or socage tenure. The same incorrect language was held by the speaker of the house of commons in his pedantic address to the throne upon presenting this bill:—“Royal sir, your tenures incapite are not only turned into a tenure in socage, (though that alone will forever give your majesty a just right and title to the labour of our ploughs and the sweat of our brows,) but they are likewise turned into a tenure in corde. What your majesty had before in your court of wards you will be sure to find it hereafter in the exchequer of your people’s hearts.” Jour. Dom. Proc. 11 vol. 234.—Christian.