TENURE. 



565 



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, 

 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, 

 bad 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 ad- 

 ditional years being given by the legislature for no 

 other reason but merely to benefit the lord. The 

 wardship of the body was a consequence of the 

 wardship of the land ; for he who enjoyed the in- 

 fant's estate was the most proper person to educate 

 and maintain him in bis infancy ; and also, in a 

 political view, the lord was most concerned to give 

 his tenant a 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 ; 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 profits of the land; though this seems ex- 

 pressly contrary to Magna Charta. 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. When the heir 

 thus came of full age, provided he held a knight's 

 fee in capita 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 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. This prerogative, of compelling the 

 king's vassals to be knighted, or to pay a fine, was 

 exerted as an expedient for raising money by many 

 English princes, particularly by Edward VI. and 

 queen Elizabeth. It was 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 ; the 

 right of marriage (maritagium, as contradistinguished 

 from matrimonium), which, in its feudal sense, signi- 

 fies 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 mar- 

 riage (valorem mar it ay ii) to their guardian ; that is, 

 so much as a jury would assess, or any one would 

 bond 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 the ancient 

 tenures. 



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 occa- 

 sion to make over his land to another. This de- 

 pended on the nature of the feudal connection ; it 

 not being reasonable nor allowed, as we have before 

 seen, that a feudatory should transfer his lord's gifts 

 to another, and substitute a new tenant to do the 

 service in his own stead, without the consent of 

 the lord ; and, as the feudal obligation was consid- 

 ered as reciprocal, the lord also could not alienate 

 his seigniory 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. In England, 

 these fines seem only to have been exacted from the 

 king's tenants in capite, who were never able to 

 alienate without a license. The statute 1 Edw. 

 III., c. 12, ordained that one third of the yearly 

 value should be paid for a license of alienation ; but 

 if the tenant presumed to alienate without a license, 

 a full year's value should be paid. 



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 cor- 

 rupted and stained by commission of treason or fel- 

 ony, whereby every inheritable quality was entirely 

 blotted out and abolished. 



These were the principal qualities, fruits and con- 

 sequences of the tenure by knight-service. The 

 description here given is that of knight-service pro- 

 per; which was to attend the king in his wars 

 There were, also, some other species of knight-ser- 

 vice. Such was the tenure by grand serjeanty per 

 magnum servitium, whereby the tenant was bound, 

 instead of serving the king generally in his wars, to 

 do some special honorary service to the king in per- 

 son : as to carry his banner, his sword, or the like ; 

 or to be his butler, champion, or other officer, at 

 his coronation. These services, both of chivalry 

 and grand serjeanty, were all personal and uncer- 

 tain as to their quantity or duration. But the 

 personal attendance in knight-service growing trou- 

 blesome 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 scutayium in Latin, or servitium scuti ; scutum 

 being then a well known denomination for money ; 

 and, in like manner, it was called in Norman French 

 escuage ; being indeed a pecuniary, instead of a mi- 

 litary service. The first time this appears to bave 

 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. From this period, when the 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 assess- 

 ments, 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 Charta, that 

 no scutage should be imposed without consent of 

 parliament. But this clause was omitted in his son 

 Henry III.'s charter; where we only find, that 



