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].