Chapter VII: Front Matter (7)

Another effect of this homage was _warranty_, which is the obligation on the lord to defend his tenant in the lands holden of him; or, if he cannot, to give him a recompence of equal value in other lands, our law went no farther; but the feudal law, if the warrantor had no lands to give in exchange, obliged him to pay the value in money. _Warranty_ is derived from the word _war_, because, in those real actions, the trial was of old by combat. This obligation, indeed, subsided, as I have already hinted, long before the introduction of hereditary estates; but when these hereditary estates became common, and all the military tenures were of this sort, and estates for lives and years were only, or for the most part, socage, these last had no warranty annexed to them by law, but only by special agreement; and the warranty I am now speaking of was confined to inheritances, and of those only to such as were held by homage _auncestrel_, that is, where the tenant and his ancestors had, from time immemorial, done homage to the lord and his ancestors. Here, on account of the continued connection between the blood of both families, the law obliged the lord and his heirs to warrant the lands to the tenant and his heirs[175].

The manner of taking advantage of this obligation of the lords by voucher, which still remains in our law, (the other method by disuse being antiquated) was shortly thus: When the tenant in possession is impleaded for the lands by a stranger, who claims them as his inheritance, he, the tenant appears, defends his right, and _vouches_, that is, calls in his lord to warrant the lands to him. If the lord appears gratis, and enters into the warranty, as he ought, if he is bound to warranty, the tenant hath no more to do in the defence of the suit. It is the lord’s business. Against him the stranger declares, and prosecutes the suit. He defends, and it is found against him, either by legal trial, or default, for want of appearing; and the judgment the court gives is, that the demandant or stranger shall recover the lands demanded against the tenant, and that the tenant shall recover lands of equal value from the lord, or voucher, as he is termed, because he is _vocatus_, or called in to take upon himself the defence. If the lord, who is to warrant, doth not appear, he is summoned till he does; or if he appears, and will not enter gratis into the warranty, the tenant is to shew how the person he calls in is bound to warrant; which must be either by homage auncestrel, or by his, or his ancestors express covenant, as I shall hereafter shew; and until this was determined, the suit of the demandant was suspended; because as yet it was uncertain who was obliged to defend the lands. So we see in the judgment of this kind, there were in fact two judgments, one against the tenant, who was to give up the lands, another against the lord, who was to give lands equal in value. But there might be three, or more judgments, as there might be two or more vouchers. As if there be in respect to land, A, B, and C. A, lord paramont or superior, B _mesne_, that is, tenant to A, and to lord C; and C tenant _paravaile_, that is, the actual possessor of the land. Here, if D, a, stranger, brings his action against C, the tenant, who vouches his lord B the mesne, who enters into warranty, and vouches A the lord paramont, who enters into warranty, and fails, D recovers the lands from C, C recovers in value from B, and B recovers in value from A, and so on, if there be more vouchers.

Warranties, as I hinted before, are of two kinds, _warranties in law_ or by homage auncestrel, or by words in the deed, which the law construes to import warranty (which stood upon a feudal footing), and _warranties in deed_, that depend on a special covenant. These last were substituted in the place of the former. For as by every alienation, either of the lord or tenant, the mutual connection between the two bloods was extinguished, and warranty by homage auncestrel consequently gone (insomuch that now, by frequent alienations, there is no such thing left) the tenant would not attorn to his lord’s grant when the lord aliened, nor a new tenant accept of a grant from an old tenant of his tenancy, without an express warranty, binding in the first case the new lord and his heirs; in the latter the old one and his heirs. Afterwards the making of these warranties was extended to persons between whom there was no feudal connection; as if a man aliened lands to hold of his lord. Here the grantee held of the lord of the grantor, not of the grantor; and therefore, as he had nothing to bind the lord to warranty, would insist on an express warranty from the grantor and his heirs[176].

One species of these warranties, namely, that which is called _collateral warranties_, was made use of, and it was the first invention that was made use of, to elude the statute of Edward the First, _De donis_, which gave birth to, or rather restored to life that antient kind of feudal estate, which we call _Fee tail_. But it must be owned this intention was both against the words and intention of that law. A judge in his grandson’s, Edward the Third’s, reign, says, they were wise men that made this statute, and that the king that passed it was the wisest king that ever was in England, and both assertions must be allowed. The nobles who made it were wise men in their generations. For, by making effectual these gifts in tail, they secured their estates in their families, free from any forfeitures, arising from their own misconduct; which before their estates were liable to. But at the same time it was a destructive law for the nation. It put the great lords of England, who were before too powerful, in a condition, by this security of the inheritance’s descending to the heirs, to beard and awe the crown, and it likewise discouraged industry and commerce, which then began to rear their heads in England. Perhaps the wisdom of the sagest of the kings of England, as he is universally called, may by some be doubted in this, that he consented to this act; but he was a sage king, and did wisely in consenting to it. The barons had been so oppressed in his father’s reign, and their estates so often confiscated, that a mutual jealousy subsisted at that time between them and the crown. They had been restored, because the crown was otherwise in danger. They were jealous likewise of Edward himself, for one or two of his actions: In short, his barons were too powerful to be refused this law, however contrary to the interest of the crown and the lower people, and there was more to be said in its favour, it being entirely agreeable to the feudal principles, that he who received an estate to him and the heirs of his body, should not have it in his power to contravene, by any act of his, the gift of the donor. He complied therefore with a good grace; but his wisdom, if it was seen in his complying, was farther seen, and in a stronger light, in the construction his judges and their successors made of this act, that collateral warranty, without an equivalent, should be a bar. However, this was but a feeble defence against the mischiefs of entails, which every day happened, to the weakening of the public estates, and collateral warranties, were not on every occasion so easy to be got[177].

At length, in Edward the Fourth’s reign, under pretence of warranties, and those entirely fictitious, a method was found out, under the form of legal proceedings, to defeat estates tail, and all remainders thereon, and that in the manner following: A, who was tenant in tail, was impleaded by collusion, by a person who pretended to claim title to the lands antecedent to the estate tail, and who was, in fact, the man to whom A, by his private agreement, was to alienate it, in destruction of the estate tail. A appears, and takes defence, but vouches to warranty B, a man who has not a foot of land, nor is likely to have any: B very readily enters into the warranty; and when the day comes, that he should defend the suit, makes default; in consequence whereof, the court gives judgment, that the demandant should recover the lands against A, and A’s lands of equal value against B the vouchee, who hath none; and yet this was judged a good bar to the entail, upon the possibility that B might purchase lands equivalent, and so A, and the other persons entitled in tail, might receive satisfaction. And that is what, under the name of a common recovery, is grown to be one of the common assurances of the realm; and though, for about seventy years, the justice and conscientiousness of it was disputed, yet being constantly asserted as law by the judges, and taken notice and approved of by acts of parliament, it is the now most effectual bar to an estate tail. To speak candidly about these recoveries, as to their application to this purpose, they were notorious breaches of the statute _De donis_, under the colour of legal proceedings. Yet what could be done? the law could not be repealed; for all members of parliament had their estates entailed. It could only be eluded, and both for the king and all who had not estates tail, it was necessary it should[178].

Another consequence of estates becoming hereditary, and, in respect of military tenures, a fruit of seignory, is _wardship_, or guardianship. For it must now frequently happen, by the death of ancestors, that estates would descend to heirs incapable to do the service, to manage their affairs, or to educate themselves. It was necessary, therefore, that the law should make provision both for the doing the services, and the benefit of the heir, until he arrived at a proper age. And the law proceeded in a different manner, as the lands were holden either by knights service or socage; tenure, in the first case, having in view principally the defence of the realm; in the second, the benefit of the heir. With respect to military tenures, the time of age was twenty-one years compleat; at which time the law presumed the heir was qualified, both by skill and strength of body, to perform the part of a soldier. At this age, therefore, he was out of the ward. If his ancestor died before he had attained that age, his lord had by law the guardianship both of his lands and person till then, and took the profits of the lands to himself for his own use, being only obliged to educate and maintain the heir in a condition suitable to his rank and station. The reason of this was, that it was a principle in the feudal law, as the profits and the military duties were equivalents for each other, that he who was obliged to the duty should enjoy the profits, which, in the first instance, was the lord, he being obliged to answer the king, or other superior lord, for all the military duties comprised in his seignory.

He had the guardianship, likewise, of the heir’s person; first, that, because of the bond under which he lay to the tenant and his heirs, the law had entire confidence in the care he would take of the minor; secondly, because the lord was certainly well qualified to instruct him in the art of war; and thirdly, his own interest obliged him to do this carefully, that his vassal might be enabled to perform to him the future services. But this, as to the person, is to be understood, if the minor’s father was not living. For if he was, he was guardian by nature, and intitled to the custody of the person, as in the case put by Littleton, where there is a grandfather by the mother’s side, tenant, by knight service, father, and mother, and son; and the mother dies, leaving the grandfather, and then the grandfather dies, and his land descends to the son of his daughter, then a minor, the minor’s father still alive; here the guardianship shall be divided. The grandfather’s lord shall have the ward of the lands, and the father shall have the ward of the person of his minor son. So it is if a lord gives land in fee by military service to the son of A, by which son’s dying without issue the lands descend to his brother, a minor. Here A, the father, shall have the custody of the body, and the lord, of the lands. There was another case, likewise, wherein the guardianship, I cannot say was divided, but where the wardship of the person was extinct. Antiently, although twenty-one years was the regular time, yet, if the minor was knighted by the king, and thereby adjudged capable of service in person, the guardianship ceased. For here, the legal presumption of unfitness was refused by a positive act of the king to the contrary. But the lords obtained an act of parliament, that, notwithstanding such knighthood in minority by the king, the lords should retain the lands of the minor so knighted, till he was twenty-one years of age; and so, after this act, the wardship of the lands continued, though that of the person, who was by the king’s act declared _sui juris_, was gone[179].

The term of twenty-one years, which I have mentioned was confined, as may appear by what I said concerning it, to heirs minor, that were males; but with respect to heirs female, minors, as almost all of our fiefs soon after the conquest were feminine feuds, as the lawyers on the continent call them, that is, descendable to females in the next degree, if males in that degree failed, the limitation of minority was different. In these fiefs it was impossible the woman herself should do personal service: She was, therefore, allowed a substitute; but in time of minority, as she could not appoint a proper one, the lord who was bound to perform the service to his superior, had the lands in the same manner as in case of an heir male. However, there was no reason that the minority of a woman in wardship should continue so long as that of a man, namely, to twenty-one years; for as the law of God declared that man and wife should be one flesh; so the canon law, and ours in consequence, have decreed, that, in law, the man and wife are one person, and that the husband in all respects is bound to perform the obligations she lies under. Hence, in case of a female heir, the term of the lord’s guardianship was, by the common law, limited to fourteen years; by which time it was presumed she might have a husband capable, and obliged to do the duty for her. But this age of fourteen years was, in a particular case, extended, by act of parliament, to two years farther. However, as the reason of that depends on the lord’s right to the marriage of the heiress, it will be better to defer speaking thereof, until we come to that head.

It remains to be mentioned, what was the nature of this interest the lord had in the estate of this minor tenant, by virtue of the feudal institutions, and so contrary to the general and the original tenure of them. For, simply, the lord had only the propriety, and in consequence the right of reversion or escheat, with the render of the services; whilst the tenant had the possession and the profits. But, in this case, all these seem to be blended, particularly the right of original propriety and possession, so essentially to be distinguished in the feudal system. For the lord has not only his propriety in right of his seignory, but also the absolute possession, and permanency, or taking of the profits, and the minor heir apparently nothing. However, the law, in this case, did justice, and created in the lord a temporary interest, an estate for years, namely, for the number of years till the majority was compleated, contrary to all the other feudal maxims. For the fee and inheritance of the estate remained in the minor, though he had neither possession or profits. This interest of the lord could not be called, at least with strict propriety, a tenancy for years, because, in this case, the lord possesses the tenant’s lands, not the tenant. The lords had therefore no tenure, but an estate for years, created by the law; and that it was originally considered as an estate for years, or a chattle interest in lands, appears from two things. First, that in the early times, when alienations were scarce allowed, it was assignable over to another, without any licence or form. Secondly, that instead of going to the heir, in case of the lord’s death, during the minority of the ward, it went to the lord’s executors, as other estates for years did[180].

As the lord was bound to his vassal and his heirs by the homage done to him, it certainly followed, that it was not lawful for him to do, during the wardship, any actual waste (that is, any permanent damage) to the estate of his minor ward, or to suffer any to be done by others. He was also obliged to repair and keep in condition, out of the profits of the estate, the houses and improvements thereon; yet so great was the misbehaviour of the English lords, soon after the conquest, that many severe and restrictive laws were, from time to time, made in favour of the minor wards[181].

In my next I shall treat of guardians in socage, reserving the article of marriage, though it appertained to military service, to a place by itself; as it was of a distinct nature, and went on its own particular ground in a great measure.

LECTURE XIII.

_Wardship in Socage—The nature and history of the incident of
marriage._

Having, in the last lecture, given some account of wardship and guardianship in chivalry, it will be necessary to mention what provision the law made, now lands were become hereditary, for the benefit of a minor, when lands, held in socage, descended to him. In the former case, where war was the consideration, whose times and exigences were uncertain, the law was obliged, on account of the public safety, to consider the interest of the lord, who was to answer the duties to the state, in the first place, and the interest of the minor only in a secondary light. But in socage lands, which the lord had parted with for certain fixed stipulated services, to be paid at particular times, the lord had no claim to any more than them. Neither did the public interest demand a military person for the guardian of one who was not to be bred a soldier. A near relation, therefore, was the properest person to take the wardship.

But in fixing who that person should be, the feudal and the Roman civil law proceeded on different principles; the latter fixed upon the nearest relation that was inheritable to the estate, but the former entirely excluded all relations that might inherit. Thus, if the land descended on the side of the father, all relations of the father were incapable, and the mother, or the next of kin of her blood, was the guardian. And this is a difference wherein the English lawyers greatly triumph over the civilians. For to give the care of a minor to one who might be his heir, is, they say, _quasi agnum lupo committere ad devorandum_. But this very reason strongly proves the general wickedness and barbarity of the people, who were obliged to establish this rule at that time. Both laws were equally wise, because adapted each to the circumstances of the nations that made them. The Romans, who were a polished civilized people, among whom murders were infrequent, were not afraid to trust the person of the minor to the care of one who might be his heir; and such an one they preferred on account of the preservation of the estate, which they presumed would be taken best care of by him to whom it might descend. The northern nations, on the contrary, who were barbarians, and murderers, were obliged to sacrifice the consideration of preserving the estate, to the personal safety of the infant, and therefore committed both to one who could have no interest in the succession.

The guardian in socage differed from guardian in chivalry in this, that he was but in the nature of a bailiff, or trustee, for the minor, to whom, at the expiration of his guardianship, he was obliged to account, upon an allowance of all his reasonable costs and charges. Another difference was, as to the _term_ of the guardianship. For this guardianship expired at the ward’s full age of fourteen; at which time, if he pleased, he might enter and occupy the lands himself, or choose another guardian; for as at that age he had discretion enough to consent to marriage, so did the law suppose he had sufficient perhaps to manage his own affairs, at least to choose the properest person for that purpose[182].

But put the case, Suppose that the minor doth not enter, or choose another guardian, but that the old one continues to receive the profits, what remedy shall the minor have for those received after his age of fourteen? Certain it is, he cannot bring an action of account against him as guardian; for guardianship is expired; and yet the infant’s discretion cannot be presumed so great, as to be perfectly acquainted with all his legal rights, and therefore his negligence shall not be imputed to him. The law in this case remedieth him by a reasonable fiction, and supposeth, though the fact hath not been so, that the minor had appointed him to receive the profits of the estate, and therefore gives an action of accounts against him, not as guardian, but as bailiff or receiver.

But suppose the next of kin neglects the guardianship, and any other person of his own head enters, and takes the profits, what remedy shall the minor have? In this case the law will not suppose him that enters to be a wrong doer, an _abator_, as the law would call him, if the heir was of full age; but will rather presume his act proceeded from humanity and kindness, to supply the neglect of the proper guardian; and therefore, though he is not appointed guardian, either by the act of law or otherwise, he shall be considered as such, and the heir, after fourteen, shall have an action of account against him, and charge him as guardian. So strictly was the guardian in socage accountable to his ward for the profits, that, if he married him within the age of fourteen, he was not only accountable for the money he received in consideration thereof (as it was the practice in those days to sell the marriage of wards) but if he received none, he was accountable out of his own fortune for what he might have received on that account, unless the match itself was equally, or more beneficial.

The next consequence of fiefs becoming hereditary, and which followed from the wardship, is the _marriage_ of the ward by military service, which belonged to his lord, and was one of his beneficial fruits of tenure; and although this part of our law is now antiquated by the abolishing of knight-service, it is necessary, for the understanding our books, to have at least a general notion of it.

This right rose originally, on the continent, from fiefs becoming descendible to female heirs, and was grounded upon the same principle as the rule which forbad vassals to alien without their lords consent. As every feudal kingdom, at this time, consisted of a number of principalities, under their respective lords, who were often at war with each other, the tenant could not alien without his lord, lest he might introduce an enemy into the feudal society. The like danger was there if a female heiress was permitted to marry at her own pleasure, or could be disposed of by her relations without the lord’s consent. And at first, it seems, that this rule was general to a woman heiress during her whole life; but if so it was, it soon abated, and was confined to the marriage of females in wardship, and to the first marriage only. The law of Normandy says, if a woman be in wardship, when she shall be of an age to marry, she ought to marry by the counsel and licence of her lord, and by the counsel and assent of her relations and friends, according to what the nobleness of her lineage and the value of her fief shall require. So that antiently the lord had not the absolute disposal of her, nor had he any thing to say to the marriage of males; for though he should marry an enemy, the fief was not thereby put into subjection to her, but she into the subjection of the vassal. And this rule, that the lord’s consent should be had, was not intended for him to make an advantage of, but was a mere political institution, for the safety of the community. Such was the law introduced into England at the conquest. However, it was but natural to expect that avaricious lords would take advantage of their negative voice, to extort money for licence, and by that, and their influence over their vassals, to arrogate the sole power to themselves. That William Ruffus acted thus, we may well learn from the remedial laws of his brother and successor Henry the First; _Si quis baronum, vel hominum meorum, filiam suam nuptum tradere voluerit, sive sororem, sive neptem, sive cognatam, mecum inde loquatur; sed neque ego aliquid de suo pro hac licentia accipiam, neque ei defendam quin eam det, excepto si eam jungere velit inimico meo_. Another is, _Si mortuo barone, vel alio homine meo, filio hæres remanserit, illam dabo consilio baronum meorum_[183].

Notwithstanding these laws, the mischief still gained ground, and the lords extended their encroachments, until they not only got the absolute disposal of female, but of male heirs also. When this happened, is hard to determine precisely. That it was after Glanville, who wrote in Henry the Second’s time, and before Bracton, who wrote in Henry the Third’s, is plain: Mr Wright’s conjecture seems probable, that it grew up in Henry the Third’s time, when the barons were very powerful, from a strained construction of Magna Charta, which says, _Hæredes maritentur absque disparagatione_; where the general word _hæredes_ should have been construed to extend only to such heirs as by the former law were marriageable by their lords, namely, female ones; but both king and lords, taking advantage of the generality of the expression, claimed and usurped that of the son’s also[184].

However, it is rather to be presumed that this incroachment began earlier; since in the statute of Merton, the twentieth of Henry the Third, we find these words: _Quia maritagium ejus qui infra ætatem est_ (speaking of a male) _mero jure pertinet ad dominum feudi_. From whence I rather gather the practice was earlier than Magna Charta, which was not above thirty years before, and confirmed by its interpretation. But if, in this respect, the vassals were encroached on by their lords, in another, they met with a mitigation in their favour. For the consent during the father’s life, went into disuse, and every man was allowed to marry his son or daughter at his pleasure; and this with very good reason. For as the prohibition was for fear of introducing an enemy, of this there was no danger where the marriage was by the father, a vassal, bound by homage and fealty to do nothing to the prejudice of his lord. Thus was right of consent to marriage, introduced first for political reasons, turned into a beneficial perquisite, and fruit of tenure, for the advantage of the lord; and notwithstanding all the laws made to regulate it, as constantly abused; so that the evils thence arising were not among the least causes for abolishing military tenures[185].

The penalty for marrying without consent was originally, as all breaches of fealty were, absolute forfeiture. But the rigour of the feudal law subsiding, lighter penalties were introduced. By the sixth chapter of Merton remedy is given to the lord, whose ward, under fourteen, has been taken away by any layman (and a later act extends it to the clergy) and married, by an action against the _raptor_ or _ravisher_, as he is called, for the value of the marriage, besides imprisonment and a fine to the king. If the ward himself, after the age of consent, or fourteen, should, to defraud his lord, marry himself, he, as guilty of a breach of fealty, is more grievously punished than a stranger. For this act provides, that the lord, in that case, shall retain the lands after the full age of twenty-one, for so long a time as, out of the profits, he might receive double the value of the marriage[186].

The next, the seventh chapter, is in favour of the ward, and an inforcement of that chapter of Magna Charta which forbids disparagements without inflicting any penalty. It enacts, that if the minor under fourteen is married by his Lord to his disparagement, upon the plaint of his relations, the lord shall lose the wardship; and the profits of the lands, till full age, shall be received by the relations so complaining, and laid out for the benefit of the heir. But if the marriage was after fourteen, the age of consent, it was no forfeiture, on the maxim, _Volenti non fit injuria_. This act goes farther in favour of the minor; for it gives him a liberty of refusing any match the lord should offer him. But to prevent the lord’s entirely losing the benefit of the marriage by the refractoriness of the ward, it enacts, in this case, that if he refuses a convenable marriage, the lord shall hold the lands after twenty-one to his own use, until such time as his late ward shall pay him the single value thereof.

The twenty-second chapter of Westminster the first confirms and repeats the sixth of Merton, and farther obviates a fraudulent practice of the guardians of female heirs. I observed that their wardship by law ceased at the age of fourteen, by which time they might have husbands capable of the service: but some lords, _for covetousness of the lands_, as the act expresses it, would not offer any match at all to their female wards, under the pretence of their being incapable of the services, in order to hold on the lands for an unlimited time. This act so far alters the old law, that if the heiress arrives unmarried at the age of fourteen, the lord should hold two years longer, that he may have time to look out for a proper match to tender her, within which time, if he neglects it, he loses all right to her marriage. On the other hand, if the heiress will refuse a suitable offer, the lord is impowered to retain the lands until twenty-one, and so much longer, until he has received out of the profits satisfaction for the value.

The ravishment of wards from their lords continuing, notwithstanding the statute of Merton, the thirty-fifth of Westminster the second gave the writ called _Of ravishment of ward_, and assigned a more speedy and beneficial method of proceeding, and added to the punishments by the former act of Merton inflicted on offenders[187].

But notwithstanding all these regulations concerning marriages, and the other many acts made to prevent misbehaviour of lords to the lands of their wards, the source of the evil remained in the wardship itself; and the evils constantly followed, insomuch that for hundreds of years, it was one of the heaviest grievances the subject suffered. Many were the wastes done to estates; many the heirs married contrary to their inclinations, and frequently unsuitably. The grievances fell heaviest on the wards of the crown. There were always a set of needy or greedy courtiers ready, if they had favour enough to beg, or otherwise to buy at an under rate, the wardships of minor tenants, of which they were sure to make the most advantage; marrying the most opulent heirs to their own children, or relations, or extorting extravagant sums for their consent. A remarkable instance of this happened so lately as Charles the First’s time, in the case of the earl, afterwards first duke of Ormond. A long suit had subsisted between the lady Preston, grand-daughter and heiress at law of Thomas earl of Ormond, and her cousin, the heir male of the family, for that part of the estate her grandfather had entailed to go with the title. At length the relations on both sides thought the best expedient to end this intricate dispute, was by uniting the young relations, who likewise had conceived a strong affection for each other; yet, although the king approved highly thereof, did the earl of Warwick, who was grantee of the young lady’s wardship, extort ten thousand pounds before he would consent to a marriage on every account so desirable.

King Henry the Eighth, finding how grievously the subject was oppressed, and how much the crown was defrauded, erected, by act of parliament, a court called the _Court of Wards_, to take proper care of minors, and to answer in a moderate manner for the profits to the king. This for some time was a considerable alleviation of the load; but in the weak reign of James the First, who was governed by his favourites Somerset and Buckingham, this court was converted into an engine for raising their families, by providing their numerous and indigent relations with the greatest heiresses, to the great discontent of the antient nobility, who saw the most opulent fortunes suddenly raised by private gentlemen, dignified by titles for the purpose. And great were the extortions likewise for the licenses that were granted to some to marry at their pleasure. The only advantage the public reaped at this time from this right of disposal in marriage was, and it must be allowed to be a considerable one, the opportunity it gave the crown of breeding the heirs of many families in the reformed religion; and in justice, it must be owned, this was not neglected.

In the eighteenth year of this last reign, it was moved in parliament to purchase off these heavy burthens of ward and marriage, by settling an handsome yearly revenue in lieu thereof on the crown. But the attempt did not succeed at that time, probably owing to the courtiers opposition to it, from their own interested views. In Charles the First’s reign, this court was one of the great objects of complaint. At length, on the restoration, the king consented to turn all the military tenures, except grand serjeanty, into socage, in consideration of an hereditary revenue settled on him, and so all the fruits thereof ceased, and the feudal system, which had for ages, from time to time, undermined the constitution, fell to the ground, though very many of the rules of our law, founded on its principles, still retain their force[188]. In this kingdom the equivalent given for this abolition was the tax of hearth-money, in which, it must be owned, the king, and those who had been his military tenants, were a little too sharp for the rest of the people; for by the improvements of the kingdom, that revenue is every day increasing to the crown, and almost the whole burthen is thrown on the lower class, who before felt none of the oppression, or weight of wardship and marriage.

LECTURE XIV.

_The rules of descent in the old feudal law in regard to the
sons of the last possessor—Representation and collateral
succession—Feminine feuds._

It is now time to see how inheritances descended by the feudal law, where, in the original grant, there were no particular directions to guide the descent; for in such case the maxim of the feudal law holds, _Tenor investituræ est inspiciendus_; or, as the common law expresses it, _Conventio vincit legem_. The first rule then was, that descendants of the first acquirer, and none others, were admitted. The reason was, that his personal ability to do the duties of the fief was the motive of the grant, together with the obligation his fealty laid him under to educate his offspring to the lord’s obedience, and to qualify him for his service in war. It was observed, therefore, it should go to the first purchaser’s collateral relations, whom he had no power to bind by his acts, and over whose education he had no influence. I mean where it was not particularly otherwise expressed; for then the collaterals succeeded, as the merit of their blood was part of the consideration; not so properly in the right of heirs, as by way of remainder, under the lord’s original grant[189].

The next thing to be enquired is, since the descendants alone inherited, whether all, or which only of them inherited. And here the females and their descendants, unless they were specially named, were totally excluded, not merely for their personal incapacity, but lest they should carry the fief to strangers, or enemies; and therefore, where they were admitted, they were obliged to marry with the consent of the lord. The third rule is, that, unless it was otherwise stipulated, all the sons succeeded equally to the father. This was the antient feudal law, and the law of England in the Saxon times, the relicks of which remain in the gavel kind of Kent, and remained in the last century in many, if they do not still in some of the principalities of the empire. In France, during the first, and a good part of the second race, we see the kingdom divided among the sons. There are not wanting instances of the same among the English Saxons; and the Spaniards continued the practice now and then even in later ages. But the frequent wars, occasioned by these partitions, at length abolished them, and made kingdoms to be considered as indivisible inheritances. In imitation of the sovereignty, the same alteration was introduced into the great seignories, which made, at this time the principal strength of the kingdom, and which, now the crown was become indivisible, would, if liable to partition, become so inconsiderable in power, as to be at the mercy of the king[190].

The inconveniencies attending the lower military tenancies which still continuing divisible, were crumbled into very small portions, and, of course, must have fallen into indigent hands, were such, that these also, for the most part, became descendible to a sole heir. But this, however, was not effected but by degrees; for in the reign of Henry the First, though a single knight’s fee was not divisible, yet when a man died seized of more than one, they were distributed among his sons as far as they went; but in his grandson’s reign the general law was settled in favour of a single heir, in the same manner as it has stood ever since[191].

But it remains to be enquired which of the sons, in case of an indivisible inheritance, should be this sole heir. In the antient and unsettled times, the law made no particular provision; but, as the lord was the head of the military society, and bound to protect it, it was left to his option to fix upon the properest person to do the duties: and an instance of the exertion of this power we have in England so late as the reign of Henry the Second, who gave the entire military lands of Geoffry de Mandeville to his son by a second ventre, to the exclusion of the eldest by a former wife, for this reason, _eo quod melior esset miles_. A trace of this still remains in the case of a peerage, descendible to heirs general, that is, male or female, falling to daughters. Here the fief being indivisible, the king may appoint the peerage to which he pleases, and until he doth so, it is not indeed extinguished, but lieth dormant, being what is called _in abeyance_, or the custody of the law. But at length this uncertainty was removed, and the eldest son being generally the best qualified, and consequently almost always chosen, obtained the right, by degrees, in exclusion of his brethren, or the choice of the lord[192].

But it will be inquired with respect to kingdoms, who had no superior to make the choice, how was it to be determined after they became indivisible, which of the sons was to succeed, seeing the absolute right of primogeniture was not yet established in the opinions of men. I answer, the usual practice was for the king himself, before his death, to appoint the successor; generally with the consent and approbation of his states, and sometimes merely by his own act, which was almost universally allowed, and obeyed by the people. But if no such disposition had been made, the states assembled, and chose the person themselves; and these appointments generally falling on the eldest son, paved the way for lineal hereditary succession, though the case was not always so.

In France, Hugh Capet, to go no higher, in order to prevent competition, caused his son Robert to be crowned, and sworn allegiance to in his lifetime; but Robert neglecting the same precaution, Henry his younger son was chosen in preference of the elder, who was obliged to content himself with the dutchy of Burgundy. And if Henry was an usurper, so were all the succeeding kings of France for three hundred years, till that family of Burgundy failed. Henry followed his grandfather Capet’s example, and so did his successors for about an hundred years, and then, the notion of the lineal succession of the eldest son being fully established, the custom of crowning the son in the father’s life, was laid aside, as unnecessary.

In England the practice was antiently the same. William the Conqueror, though he set up a claim under Edward the Confessor’s will, yet as that never appeared, a formal election by which he was chosen, extorted indeed by dread of his power, but apparently free, was his title. When pressed to declare a successor, he only signified his wish that William might succeed, but declared he would leave the people of England as free as he had found them. William accordingly was elected in prejudice of his elder brother Robert, and upon his death, occasioned by an accident, Robert was again excluded, and Henry the First, the third brother, chosen. Henry was willing to have the course of descent secured in his offspring; and for this purpose proceeded in the method that had been so successful in France, namely, by causing his son Henry to be crowned, and sworn to. But this latter dying childless in the lifetime of his father, king Henry caused his daughter Maud to be acknowledged successor, and the oath of eventual allegiance to her to be taken by his people. However, this project did not succeed. No nation of Europe had yet seen a crown on the head of a female; and Spain was the only country that had ever had a king who claimed in a female right. The majority, therefore, upon Henry’s death, looked upon their oath as inconsistent with the nature of monarchy, and void, and in consequence chose Stephen, who was the son of Maud’s aunt, and grandson of the Conqueror, whose whole male issue was now spent. There was, however, a large party in the kingdom who paid a greater veneration to the obligation of their oath, and adhered to Maud. Hence was this reign a continued scene of civil war, until all sides, being wearied out, by mutual consent, ratified by the states of the kingdom, Stephen was allowed king for life, and Maud’s personal pretensions, as a woman, being set aside, her son, Henry the Second, was declared, and sworn to, as eventual successor[193].

Henry the Second followed the example of his grandfather, and had his eldest son Henry crowned; but that ungrateful prince conspiring and rebelling against him at his death, which likewise happened in the lifetime of his father, the old king fearing the like consequences, refused to crown his next son Richard; who conscious of his own ungrateful conduct, and suspecting that this refusal proceeded from partiality to John, the youngest and favourite son, stirred up those commotions and rebellions which broke his father’s heart. Richard was the next heir, and did succeed, but not merely in the right of next heir; for he assumed no title but that of duke of Normandy, until he was elected and crowned. The title of John was notoriously by election, and his son Henry the Third was the first who was introduced to his subjects by the words, _Behold your king_, or words equivalent. Those few who adhered to his father, immediately swore to him; but the majority, who were disaffected, did not submit but upon terms, the restoration of the charters.

From that day the lineal succession has been established, and the crown is vested in the successor upon the death of his ancestor, and the maxim prevailed of the king’s never dying; whereas before, the crown was in abeyance, till coronation, and the date of the king’s reign was taken, not as now, from the death of the former monarch, but from the day that the succeeding one was crowned. Henceforth coronation became a mere ceremony, though the form of an election is still continued in it. I have been more particular in this detail, in tracing the origin of the hereditary descent of the crown, to shew how false in fact, as well as in reason, the notion is of its being founded either on divine right, or on any law of man coeval with the monarchy[194].

Having laid down the rules of descent in the old feudal law, in regard to the sons of the last possessor, it will be proper next to mention how far it admitted representation, or collateral succession; for at first both were excluded. If a man had two sons, one of which died before him, leaving a son, the grandson could not succeed to his grandfather, but the uncle was sole heir. This was grounded partly on the presumption that the uncle was of more mature age, and better qualified to do the service; but this could not be the only reason, for the rule was general, and held where the grandson was of full age and capacity. We must have recourse, therefore, to a farther cause, which was also the same that, in those old times, prevented collateral descents; for if a man had two sons, by the old law, the estate was divided between them. If one of these died without issue, the brother did not succeed to the share of the deceased, but it reverted, as an escheat, to the lord. The reason of both these was, that he that claims by descent, must claim through the last possessor, and derive his right from him; and that right arose from the supposition of his being educated in the fealty of the lord, that is, by the last possessor who had sworn fealty. Therefore the grandson, being educated under the _patria potestas_ of his father, who, dying before the grandfather, had never taken the oath of fealty, was excluded the succession, as not trained up by a real tenant; but the uncle was admitted to claim from the grandfather, the tenant under whom he was bred[195].

This rule was of some advantage to the feudal system at that time, as it frequently prevented the too great crumbling of fiefs, when almost all of them were divisible. For the same reason a brother could not succeed to a brother, even in a paternal fief, because he was not educated by the last possessor that had done fealty: and though this seems very unreasonable, as he had been bred in the fealty of the lord, namely by the father, yet this rule continued for ages, being greatly for the advantage of the king and the great lords, in regard to their escheats; as every failure of a lineal descent occasioned them to happen. Neither was it thought severe in those early ages by the tenants. As all benefices were originally for life, it was a great advantage to have them made descendible even under these strict limitations[196].

At length the necessity of Charlemagne’s grandsons, who had parted the empire, and were in eternal broils, extorted from them, in France, a grant of the grandson’s succeeding in his father’s share, by way of representation, in imitation of the civil law, and also of brothers succeeding to brothers in a paternal fief, but not in a new one. And about an hundred and fifty years the like necessity of the emperor Conrad, who was embroiled with the Pope, procured the same law for Germany and Italy[197].

The extension of the right of collateral succession beyond brothers grew up by degrees, not from any positive law. It was first extended to uncles and cousin-germans, provided it was a fief descended from the grandfather; afterwards to any the next cousin, to the seventh degree, descended from the first purchaser; and at last to any, however remote, who could prove their descent from the first purchaser. This was the rule in ancient inheritances; but with respect to new ones, lately acquired, there grew up a practice of granting them _as ancient_ ones; _feudum novum, ut antiquum, datum_. Here the fief, though really new, was, by means of this grant, supposed to proceed from some indefinitely remote ancestor, at any distance; and therefore any one, who could prove himself descended from a common ancestor of the last possessor, was admissible, and he that was nearest by the rules of succession was preferred. In this case, therefore, the old rule of requiring a proof, that the person claiming as heir was a descendant of the body of any ancestor of the last possessor, would be absurd, as defeating the tenure of investiture. Any ancestor _pro re nata_ might be supposed the first purchaser, to support the intention of the donor, in his directing it to be considered as an ancient fief, although in fact modern. So in this case, if the fief was masculine, any male relation, descended from male blood entirely, was inheritable, even up to Adam, I mean, if he could prove his descent; but females, and their descendants were excluded[198].

If it was descendible to females, either by the particular terms of the grant, or by the general law of the country, then, as it was supposed to descend from any lineal ancestor _pro re nata_, that ancestor might be a female, and the descendants of females, and they themselves might be admissible. The rule then was, to establish in this case of a fictitious descent, the same regulations as in the case of a real one. But here the root from whence the right of descent was to spring, was inverted; for as there was no real ancestor, an original purchaser, the person last seized, that is possessed of the fee, was the person to be considered. As in the old and common case of inheritances descending, the reckoning was downwards from the first acquirer; in case of collaterals, when they were admitted, you begin to reckon lineally upwards, and at every step enquire for collaterals descended from that lineal ancestor you are upon at the time[199].