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special reservation at the time of the grant. These call for a brief consideration.

"Homage" and "fealty" seem to have had to do chiefly with the personal relation between the lord and the tenant, and were in effect oaths of allegiance at the beginning of the tenancy. Homage was the more solemn in character, and was restricted chiefly to tenancy by knight service and tenancy directly of the king. Fealty was incident to every tenancy, whether free or unfree, except what we shall hereafter know as "tenancy at will.” 16

If, upon the death of a tenant in chivalry, his heir was under age, the lord then had what were known as the rights of "wardship" and "marriage." By the right of wardship, the lord became entitled to the custody of the land and body of the heir till he or she became of full age, the lord not being bound to account for the profits of the land, and being burdened only with the maintenance of the heir. The right of marriage grew out of the right of wardship, and consisted of the right of the lord to dispose of the ward in marriage. In case of the ward's refusal of the marriage proposed to him or her by the lord, there was forfeited to the lord the value of the marriage, as it was called, this value being what any one would have paid the guardian for the alliance; and in case the ward married without the lord's assent while under age, the forfeit was of twice the value of the marriage, by force of the statute of Merton (20 Hen. III., A. D. 1235). These rights of wardship and marriage were regarded as vendible commodities, involving no relation of trust, were frequent subjects of investment, and were "chattels real," which passed to the executor on the owner's death."

17

16 Litt. 85, 91; 2 Bl. Comm. 53; Digby, Hist. Real Prop. 76; 1 Pollock & Maitland, Hist. Eng. Law, 277 et seq.

17 Litt. §§ 103, 110, 2 Bl. Comm. 67-70; 1 Pollock & Maitland, Hist. Eng. Law, 299 et seq.

"Aids" were contributions which could be exacted by the lord of his tenant, whether by knight service or in socage, for the purpose of giving a portion to the lord's daughter on her marriage, of paying the expense of the knighting of his eldest son, or of ransoming the lord if taken prisoner.18

"Escheat" was the name given to the determination of the tenure either by the death of the tenant without leaving any heir, or by the corruption of his blood consequent upon his commission of treason or felony, whereupon, there being no longer any tenant to enjoy the land, the lord became entitled thereto free from the burden of the tenure, the land being said, in such case, to "escheat" to the lord.1o

11. Descent of the feud.

Upon the death of the tenant, his rights passed to his heir or heirs, provided the tenant had an estate of inheritance, as it was called, that is, an estate which, by the terms of the grant, would pass to his heirs. This descent of lands was absolutely fixed by law, and the tenant had usually no power, by the making of a will, to defeat the rights of the heir, though this was allowed by custom in some parts of the kingdom.20 The heir was, except when there was a custom to the contrary, as in the case of gavelkind tenure, the eldest son of the deceased tenant; while, if there were daughters only, all the daughters were joint heirs.21

The right of the tenant's heir, if of full age, to take pos

18 Co. Litt. 76a, 91a; 2 Bl. Comm. 64; 1 Pollock & Maitland, Hist Eng. Law, 330.

19 Co. Litt. 13a; 2 Bl. Comm. 72; 1 Pollock & Maitland, Hist. Eng. Law, 332.

20 Litt. 88 1-9, 167; Co. Litt. 111b, and Hargrave's note; 1 Leake, 66; 1 Pollock & Maitland, Hist. Eng. Law, 288; Digby, Hist. Real Prop. 94.

21 See post, § 425.

session of the land in place of his father, was subject, however, to a claim on the part of his lord for what was known as a “relief,” this being a pecuniary payment, which varied in amount according to the species of tenure, the decrees of the crown, and sometimes the will of the lord himself. Somewhat similar to this right to relief was that of "primer seisin," being the right of the king to take possession of land held of him on the death of his immediate tenant, and to take the profits for a certain period, generally a year.22

12. Alienation of the feud.

According to the weightiest modern authority, a tenant probably had the right, before the date of Magna Charta (A. D. 1217), freely to dispose of his land to others, provided such disposition did not seriously injure the interests of his lord, and such alienation of the land, while generally made by a grant to one to hold of him (subinfeudation), might also be made by a grant conditioned that the grantee should hold of the grantor's lord, the grantee being thus substituted in the grantor's place. Magna Charta provided, in the interest of the great landholders, that thenceforth "no free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee." Thereafter, until the passage of the statute Quia Emptores, considered below, it seems that, apart from the somewhat vague restraint imposed by the charter, the tenant might "alienate the whole or any part of the land by way of subinfeudation, and the whole, though perhaps not a part of it, by way of substitution," except in the case of tenants holding directly of the crown, who were allowed to alienate their holdings only with the consent of the king,

22 Litt. §§ 112, 126; Co. Litt. 76a; 2 Bl. Comm. 66; 1 Pollock & Maitland, Hist. Eng. Law, 288 et seq.

who accordingly derived a considerable revenue out of licenses to alienate and fines for alienations made without license.28

Statute of Quia Emptores.

The result of the right of alienation by a tenant was that, in case of subinfeudation, while the lord was still entitled to the rights incident to tenure, such as marriage, relief, wardship, and escheat, these rights might be seriously lessened in value. For instance, if a tenant by knight service granted the tenement to another to hold at a rent of a pound of pepper, on the death of the tenant by knight service, leaving an infant heir, the lord, instead of being entitled to enjoy the land itself till the heir came of age, was entitled merely to a pound of pepper annually during that time; and so, in case of an escheat, the lord, instead of obtaining the use of the land absolutely, would merely receive the rent paid by the subtenant. To remedy this state of things, the statute of Quia Emptores 24 was passed, whereby it was declared that every free man might sell his tenement or any part of it, but that the transferee should hold of the same lord and by the same services of whom and by which the transferrer held, the services being apportioned in case a part only of the land was sold. This statute was in the nature of a compromise, the great lords conceding to the tenants the full right of alienation, even to the point of substitution of several tenants for one, but succeeding in obtaining a prohibition of any future alienation by subinfeudation, with its disastrous effects upon the lord's rights to marriage, wardship, and escheat."

25

281 Pollock & Maitland, Hist. Eng. Law, 310. And see Digby, Hist. Real Prop. 156.

24 Stat. Westminster III. (18 Edw. I. c. 1; A. D. 1290).

25 1 Pollock & Maitland, Hist. Eng. Law, 318; Digby, Hist. Real

The statute did not apply to alienation by persons holding directly of the crown, and the liability of such persons to fines upon alienation without the license of the crown re mained as before. Furthermore, the statute applied only to the sale or alienation of the entire fee or estate in the land belonging to the grantor, and did not prevent the creation of a species of subtenure by the alienation of an estate less than that owned by the grantor; the residue, called the "reversion," being retained by him.26 Otherwise, however, the statute effectually checked all subinfeudation, and consequently all manors existing in England at the present day, or holdings in fee simple of a lord other than the crown, must date from a period anterior to the date of this statute.27

13. Abolition of military tenures.

For various reasons tenure in socage tended to grow at the expense of the other tenures,28 but the rights of wardships, marriage, and the other feudal burdens continued to press heavily on a large portion of the country, and finally, after abortive proposals to that end in the reign of James I., and the actual removal of the burdens during the time of the Commonwealth, it was provided by the statute 12 Car. II. c. 24 (A. D. 1660) that all the military tenures should be thereafter tenure in free and common socage, and all the burdens in favor of the lord, whether a mesne lord or the king, were by the same act taken away, with the exception of "rents certain" and one or two other minor

Prop. 233; Challis, Real Prop. 16. See Van Rensselaer v. Hays, 19 N. Y. 68, Finch's Cas. 81.

31 Leake, 19, 317; Challis, Real Prop. 18, 20.

#72 Bl. Comm. 92; Digby, Hist. Real Prop. 233; Williams, Real Prop. 119, 127. Occasionally, manors have been created since that date by special license from the crown. Challis, Real Prop. 19.

1 Pollock & Maitland, Hist. Eng. Law, 336.

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