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].