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 to supply the infant's services, till he should be of age to perform them himself (3). And, if we consider the [68] 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 suśpended. 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 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 at the age of twenty-one, or the heir female to that of sixteen, they might sue out their

(3) If an infant tenant by knight's service was created a knight, the king was no longer entitled to the wardship of his person, nor to the value of his marriage. Sir John Radcliff's case, Plow, 267. And the reason there assigned is, that "when he is made a knight by the king, "who is the chief captain of all chivalry, or by some other great cap. "tain assigned by the king for that purpose, he is thereby allowed and "admitted to be able to perform knight's service; and then his body "ought not to be in ward, because his imbecility ceases, and cessante "causâ, cessabit effectus."

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 expressly contrary to magna carta1. 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. In order to ascertain the profits 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", 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 holden, and who, and of what age his heir was; [69] 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 color of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereuntoo. 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;

k Co. Lit. 77.

19 Hen. III. c. 3.

m Co. Litt. 77.
n Hoveden. sub Ric. I.

o 4 Inst. 198.

p Stat. 32 Hen. VIII. c. 46.

which ceremony, as was formerly hinted, is supposed to have been the original of the feodal knighthood. This prerogative, of compelling the king's vassals (4) 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 that unhappy prince, before the fatal recourse to arms, he agreed to [70] divest himself of this undoubted flower 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 matrimonium,) 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 guardians; that is, so much as a jury would assess, or any one would bona fide give to the guardian for

q Vol. I. pag. 404.

r" In ipso concilio vel principum aliquis, vel pater, vel propinquus, scuto frameaque 'juvenem ornant. Haec apud illos toga, hic

"primus juventae honos: ante hoc domus pars " videntur; mox reipublicae." De mor. Germ. cap. 13.

s Litt. sec. 110.

(4) 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. Foed. 124, and 493. See 16 Car. I. c. 20. 2 Rushw. 70; and vol. i. p. 404.

such an alliancet: and, if the infants married themselves without the guardian's consent, they forfeited double the value, duplicem valorem maritagii" (5). 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": 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 contracty; 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: whereina the clause stands merely thus, “haeredes mari

t Stat. Mert. c. 6. Co. Litt. 82.

u Litt. sec. 110.

w Bract. 1. 2. c. 37. sec. 6.

x Gr. Cust. 95.

y cap. 6. edit. Oxon.

Z cap. 3. ibid.
a cap. 6.

(5) 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, U.

"tentur 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 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 f; which is the first direct mention of it that I have met with, in our own or any other law (6).

b The words maritare and maritagium seem ex vi termini to denote the providing of an husband.

e 1. 9. c. 9. and 12. and 1. 9. c. 4.

d l. 2. c. 38. sec. 1.
e Wright, 97.

f 20 Hen. III. c. 6.

(6) 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 honorable. 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 land 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 saleable and transferrable, like the ordinary subjects of property, "to the best bidder; and if not disposed of, was transmissible to the "lords's personal representatives. Thus the custody of the infant's