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3. If the heir were under age, the lord was entitled, Wardship. under the name of Wardship, to the custody of his body and lands, without any account of the profits. At the age of twenty-one in males, and sixteen in females, the wards were entitled to ousterlemain or 'sue out their livery'-that is, to require delivery of their lands out of their guardian's hands, on payment of half a year's profits in lieu of all reliefs and primer seisins.?
4. The lord also possessed the right of disposing of his Marriage. female wards in marriage. The rejection by the ward of a suitable match incurred the forfeiture of a sum of money equal to the value of the marriage—that is, as much as the suitor was willing to pay down to the lord as the price of the alliance. If the ward presumed to marry without the lord's consent, she forfeited double the market value of the marriage. This right, which applied not only to female wards, but to daughters who were the presumptive heirs of living vassals, was originally intended as security against the lord being obliged to receive the homage of a hostile or otherwise objectionable tenant;? but it was afterwards, without any feudal justification,
Primer seisin, that the Popes—who, in carrying out Hildebrand's ideas, claimed to be feudal lords of the lands of the church-subsequently exacted from every beneficed clergyman in England the first.fruits of his benefice.
1 Wardship and marriage, the most oppressive of feudal exactions, seem not to have been ordinary feudal incidents, but nearly peculiar to Normandy and England (Hallam, Midd. Ages, i. 178). From the charter of Henry I. (infra, p. 79), it would appear that, so far as they were sources of pecuniary advantage, ihey were not claimed even in England under William the Conqueror, but were among the novel exactions introduced by William Rufus. Though abolished by Henry I., they were soon re-introduced. The Assize of Northampton, c. 4. (A.D. 1176) expressly gave the wardship of lands to the lord The feudal lawyers justified the right of wardship on the grounds: as to the land, that the infant heir being incapable of rendering the military service, ought not to hold the fief; as to the person of the heir, that it was the interest of the lord to properly educate him for military service. Cf. Fortescue, De Laudibus Leg. Angl. p. 105. (Wardship and marriage undoubtedly prevailed also in Scotland under the Feudal Law. Cf. Sir George Mackenzie of Rosehaugh, Institutions of the Law of Scotland. Edinb. 1684. Part ii., Tit. v., where both are duly entered into under the 'Casualities due to the Superior.' See also Lectures on the Government, Constitution and Laws of Scotland, by Alexander Robertson, M.A. London. 1878. p. 89, citing Reg. Maj. II. c. 42.-Ed.]
• Ne de inimico suo, vel alio modo minus idonea persona, homagium de feodo suo cogatur recipere.-Glanvill, 1. vii. c. 12.
Fines on alienation.
extended to male wards, and used as a lucrative source of extortion both by the Crown and mesne lords.?
5. The right of devising land by will ceased (with a few local exceptions) at the Conquest, and for some time afterwards the freedom of alienation inter vivos, which had existed in Anglo-Saxon times, seems to have been limited by certain restrictions in favour of the heir.? Indirectly, however, alienation of portions of fiefs was effected through the medium of sub-infeudation, a process which by the time of Henry II., had been most extensively applied throughout the country. By this time also the ancestor appears to have acquired a limited right to defeat the expectation of his heir, Subsequently, by the Statute of Quia Emptores (18 Edw. I. c. 1) sub-infeudation was forbidden, and every freeman was allowed to aliene his land at pleasure (except by will), to be held not of the alienor, but of the lord of whom the alienor had immediately held. All tenants-in-chief, however, still required a licence from the King before they could aliene, for which a fine was, of course, demanded. By a statute of Edward II 1.5 the necessity for a licence was done away with, and tenants-in-chief were allowed to aliene at will, on payment of a reasonable fine to the king.
6. Lastly, there was the valuable right of Escheat, by which, on the determination of the tenant's estate,-either on failure of legal heirs (propter defectum sanguinis), or on conviction of the actual tenant of felony or treason (propter
Escheat and forfeiture.
1 Glanvill, 1. vii. c. 12 ; Stat. of Merton, 20 Hen. III. c. 6. Glanvill (temp. Hen. II.) expressly limits the lord's right of marriage to female wards. Bracton (temp. Hen. III.) extends it to both, sive sit masculus, sive fæmina.' The extension of the right to males was based on a strained and iniquitous construction of the word 'haeredes’ in Magna Charta (infra, ch. iv.). By the Statute of Merton the lord's right of selling the ward in marriage, or else receiving the value of it, is expressly declared.
2 In a fiel granted to a man and his heirs,the ancestor and his heirs took equally as a succession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom possessed or could lawfully dispose of the direct or absolute dominion of the property.'—Coke upon Littleton, 1914, n. (i.) vi. 5.
3 Report of Lords' Committee on the Dignity of a Peer, 1819, p. 107.
i Edw. III. c. 12.
delictum tenentis)—the fief reverted to the lord by whom or by whose ancestors it had been originally granted. Independently of escheat, the lands of a convicted felon were also liable to forfeiture to the Crown (which intercepted the escheat to the mesne lord)—in the case of treason, for ever ; in other felonies for a year and a day.?
Besides the tenure by knight-service properly so called, Tenure by there was a species of tenancy in chief by Grand Serjeanty Serjeanty. (per magnum servitium), whereby the tenant was bound, instead of serving the King generally in his wars, to do some special service in his own proper person, as to carry the King's banner or lance, or to be his champion, butler, or other officer at his coronation. This was, in fact, merely a continuation of the system which, as we have seen, was early developed in England through the growth of the Thegnhood,3 and was of the same nature as the fiefs of office so general on the Continent.* Grants of land were also made by the King to his inferior Petit Ser
jeanty. followers and personal attendants, to be held by meaner services. Among the tenants-in-chief mentioned in Domesday occur the names of the king's foresters, huntsmen, falconers, farriers, cooks, and similar officers. Hence, probably, arose tenure by Petit Serjeanty, though later on we find that term restricted to tenure in capite by the service of rendering yearly some implement of war to the King It was, in fact, merely a dignified species of the tenure in Socage which has next to be noticed.
Tenure in Free Socage (which still subsists under the Tenure in modern denomination of Freehold, and may be regarded
Free Socage. as the representative of the primitive alodial ownership)
1 Wright, Tenures, 44, 120. See Magna Charta, c. 32, infra, ch. iv.
4 The Count of Anjou, under Louis VI., claimed the office of Great Seneschal of France ; that is, to carry dishes to the King's table on state days. – Hallam, Middle Ages, i. (180].
• Coke upon Littleton, ss. 159, 160. Per servitium reddendi nobis cultellos, vel sagittas, vel hujusmodi. Mag. Charta, c. 37, infra, ch. iv.
6 Socage, from soca=a franchise or jurisdiction. [A.-S. sốc, from saken. Stratmann, O. E. Dict.-ED.]
denotes, in its most general and extensive signification, a tenure by any certain and determinate service, as to pay a fixed money rent, or to plough the lord's land for a fixed number of days in the year. In this sense it is constantly opposed, by our ancient legal writers, to tenure by knightservice, where the service, though esteemed more honourable, was precarious and uncertain. Not being held by
) military service, socage tenure lacked one of the essential elements of a feud, but the spirit of feudalism was all-embracing and affected every tenure and every institution. Thus we find that tenure in socage, like that by knightservice, was created by words of pure donation accompanied by livery of seisin, and was liable to the obligation of fealty invariably, sometimes of homage ; and was in like manner subject, but in a modified form, to many of the incidents of tenure by knight-service. Though considered less honourable than the latter, socage was practically much more beneficial, especially in its freedom from the grievous burdens of feudal Wardship and Marriage.?
Besides petit serjeanty, socage tenure comprised two other particular species, burgage and gavelkind. Tenure in Burgage was a kind of town socage. a
It applied to tenements in any ancient borough, held by the burgesses, of the King or other lord, by fixed rents or services. At the Conquest the cities and boroughs were retained by the King as part of the demesne of the Crown, but a large number were subsequently granted out to his barons. This tenure, which still subsists, is subject to a variety of local customs, the most remarkable of which is
i Bracton, 1. 2, c. 16, s. 9. The author of Fleta says: Ex donationibus servitia militaria vel magnae serjantiae non continentibus, oritur nobis quoddam nomen generale quod est socagium.-L. 3, c. 14, s. 9.
2 The wardship and marriage of an infant tenant of a socage estate (up to the age of 14, when wardship ceased), devolved upon his nearest relation not being one to whom the inheritance could descend. Conversely to the rule in knight-service, the guardian in socage was strictly accountable for the rents and profits; and if he allowed his ward to marry under the age of 14, he was bound to account to the ward for the value of the marriage, even though nothing had been received for it, unless he had married him to advantage. Stephen, Commentaries, i. 312 (5th ed.).
3 Coke upon Litt. ss. 162, 163.
that of borough-English, by which the burgage tenement descends to the youngest instead of to the eldest son.
Gavelkind” is almost confined to the county of Kent, Gavelkind. whose inhabitants are said to have secured this and other privileges by special favour of the Conqueror. The lands are held by suit of court and fealty, a service in its nature certain.3 The tenant in Gavelkind retained many of the properties of alodial ownership : his lands were devisable by will; in case of intestacy, they descended to all his sons equally; they were not liable to escheat for felony, the maxim being 'the father to the bough, the son to the plough'; and they could be aliened by the tenant at the age of fifteen.
Below Free Socage was the tenure in Villeinage, by which Tenure in the agricultural labourers, both free and servile, held the
Villeinage. land which was to them in lieu of money wages. The terms of the tenancy varied with the local customs of different manors, but it was always more or less precarious. Bracton, writing under Henry III., describes two kinds of tenure in Villeinage, pure and privileged. Pure villeinage, he tells us, was the tenure by which the demesne of mesne lords was held by tenants who, whether free or slave, were bound to do whatever work was set them, and who knew not in the evening what was to be done in the morning.' They were occupiers of the land at the lord's will. Privileged villeinage, or villein socage, was the tenure by which tenants of the King's demesnes held their land, on condition of performing base services, but certain ; and who could not be removed from the land so long as they were willing and able to perform the service due. It was this kind of • privileged villeins,' or 'villein socmen,' who were properly termed 'glebae ascriptitii.' * Whilst availing himself of every advantage which his The Con
national 1 Littleton, s. 165; Third Real Property Report, p. 8.
rather than 2 Gavelkind, in A.-S. gafolcund, = 'rent-yielding' land, gafol = rent' or feudal. customarie paiment of woorkes.' Lambarde, Perambulation of Kent, [ed. 1826, p. 477) ; Kemble, Introd. to Codex Dipl. i. Ixi.
3 Wright, Tenures, 211. 4 Bracton, l. iv. c. 28. On the personal status of the villeins and the nature of the tenure by which they held their land, see infra ch. viii.