assess, or any one would bona fide give to the guardian for such an alliance: 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. 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": 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; 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 [71] 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"; or, as it was expressed in the first draught of that charter, ita maritentur ne disparagentur, et per consilium propinquorum de consanguinitate sua". But these provisions in behalf of the relations were omitted in the charter of Henry III.: wherein the clause stands merely thus, "haeredes maritentur absque disparagatione:" meaning certainly, by haeredes, heirs female, as there are no traces before this to be found of the lord's claiming the marriage of heirs male; and as Glanvil expressly confines it to heirs female. But the king and his great lords thenceforward took a handle (from the ambiguity

66

of this expression) to claim them both, sive sit masculus sive foemina, as Bracton more than once expresses it: 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'; which is the first direct mention of it that I have met with, in our own or any other law. (10)

dl. 2. c. 38. § 1.

e Wright, 97.

f 20 Hen. III. c.6.

(10) Upon this subject once so important the law may, perhaps, be stated more correctly as follows: 1st. As to heirs male under fourteen: if such heir married without the consent of the lord, the common law gave him a remedy by action of trespass for damages against the abducer, and for the single value of the marriage against the heir, upon his coming of age. To these, the statute of Merton added a remedy against the abducer for the single value of the marriage, with fine to the king, and imprisonment till both fine and the value were paid. 2d. As to heirs female under fourteen: If they married without his consent, the guardian had, against them and their abducers, the same common-law remedies as have been just mentioned; but not those of the statute of Merton, which did not extend to females. If they married with his consent, of course he secured to himself the value of the marriage, and lost the lands. 3d. As to heirs male above fourteen: The guardian was, at all events, entitled to the single value of the marriage, whether the ward married, or he had tendered a suitable marriage or not. In case of a tender and refusal, and no marriage elsewhere, he had the single value; and in case of a tender (which necessary qualification the text omits) and refusal, and marriage elsewhere, he had the double value, which he secured by detaining the land beyond the age of twenty-one, and receiving the profits till he had made double the sum which a jury should assess as the fair single value, or which he could prove had been offered to him for the marriage. And into this predicament he might bring those who had been taken away and married under fourteen, within the age of consent, because they might, by disagreeing after fourteen, avoid their marriages; and therefore, they incurred the forfeiture by refusing so to do, and to contract a reasonable marriage tendered to them by him. 4th. As to females above fourteen: The statute of Merton not applying to them, their marriage against his will involved no forfeiture, but by st. Westm. 1. c. 23. the lord might, if they refused a reasonable marriage, hold the lands till their age of 21; and beyond that time till he had levied the value of the marriage.

Sec. 2. Inst. 90-92. ib. 202. 204., 5 Rep. 126., 6 Rep. 70., Co. Litt. 82. All the provisions mentioned in this note apply, it will be observed, to infant heirs left by their ancestors unmarried; but according to Glanville, and

the

6. ANOTHER attendant or consequence of tenure by knightservice 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 nor 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 lord also could [72] not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. (11) 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 licence 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 licence: but as to common persons, they were at liberty, by magna carta, and the statute of quia emtores, (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 licence: for if they did, it was in ancient strictness an absolute forfeiture of the land; though some have ima8 сар. 32.

h 18 Edw. I. c.1.

i 2 Inst. 66.

the charter of Henry the first, as applicable to the king's tenants, even the parents of daughters, who were to be his heirs, could not in his life time marry them without the licence of the lord. L. vii. c.12. and Bracton lays down the law to the same effect with regard to heiresses, who should come to their inheritance when of full age; in this case, though of course there was no wardship, they could not marry without the assent of their lords. L. ii. c.38. s. 1. Both these restrictions, however, seem to be quite independent of the value of the marriage, and to have been grounded on the reasonable feudal polity, that the Lord should be secure from the ward's intermarrying with his enemy.

(11) For attornment, see post, 290.

gined 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 licence of alienation; but if the tenant presumed to aliene without a licence, a full year's value should be paid *. (12)

k 2 Inst. 67.

(12) 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 the 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, 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 emtores. 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 those 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 licence, involved a forfeiture; for at 2 Inst. 66., stating both opinions, he declares his own to be in the negative: and as

sir

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; whereby every inheritable quality was entirely blotted out and abolished. In such cases the lands escheated, or fell back [73] to the lord of the fee'; 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, shewed that he was no longer to be trusted as a vasal, 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 ". (10)

THESE were the principal qualities, fruits, and consequences of the 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 ex

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 licence 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 E. 3. c. 12. the fines in both cases were to be paid by the alienee.

(10) See post, p. 245. 246., where the principle of escheats is simplified, and both kinds resolved into the defectus sanguinis.