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MILITARY TENURES AND THEIR INCIDENTS.
Magna CARTA, C. 2. If any of our earls or barons, or any other which hold of us in chief by knight's service, die, and at the time of his death his heir be of full age, and oweth to us relief, be shall have his inheritance by the old relief; that is to say, the heir or beirs of an earl, for a whole earldom, by one hundred pound; the heir or heirs of a baron, for a whole barony, by one bundred marks; the heir or heirs of a knight for one whole knight's fee, one hundred shillings at the most; and he that bath less shall give less, according to the old custom of the fees.
c. 3. But if the heir of any such be within age, his lord shall not have the ward of him, nor of his land, before that he hath taken of him homage; and after that such an heir bath been in ward, wben be is come to full age, that is to say, to the age of one and twenty years, he shall have his inheritance without relief and without fine; so that if such an heir, being within age, be made knight, yet nevertheless his land shall remain in the keeping of his lord unto the term aforesaid.
Heirs shall be married without disparagement. c. 15 (Charter of King John). We will not give leave to any one, for the future, to take an aid of his own freemen, except for redeeming his own body, and for making his eldest son a knight, and for marrying once his eldest daughter; and not that unless it be a reasonable aid.
C. 39 (Charter of 1217). No freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongeth to the fee.
St. 20 Hen. III. ST. OF MERTON (1235), c. 6. Of heirs that be led away, and withholden, or married by their parents, or by other, with force, against our peace, thus it is provided ; That whatsoever layman be convict thereof that he bath so withholden any child, led away, or married; he shall yield to the loser the value of the marriage ; and for the offence his body shall be taken and imprisoned until he hath recompensed the loser, if the child be married ; and further until he hath satisfied the king for the trespass; and this must be done of an heir being within the age of fourteen years. And touching an heir being fourteen years old or above, unto his full age, if he marry without licence of his lord to defraud him of the marriage, and his lord offer him reasonable and convenient marriage, without disparagement, then his lord shall hold his land beyond the term of his age, that is to say, of one and twenty years, so long that he may receive the double value of the marriage, after the estimation of lawful men, or after as it hath been offered him for the said marriage before, without fraud or collusion, and after as it may be proved in the King's Court. And as touching lords which marry those that they have in ward to villains, or other, as burgesses, where they be disparaged, if any such an heir be within the age of fourteen years, and of such age that he cannot consent to marriage, then if his friends complain of the same lord, the lord shall lose the wardship unto the age of the heir, and all the profit that thereof shall be taken shall be converted to the use of the heir being within age, after the disposition and provision of his friends, for the shame done to bim ; but if he be fourteen years and above, so that he may consent, and do consent to such marriage, no pain shall follow.
c. 7. If an heir, of what age soever he be, will not marry at the request of his lord, he shall not be compelled thereunto; but when he cometh to full age, he shall give to his lord and pay him as much as any would have given him for the marriage, before the receipt of his land, and that whether he will marry himself, or not; for the marriage of him that is within age of mere right pertaineth to the lord of the fee.
St. 52 HEN. III. ST. OF MARLEBRIDGE (1267), c. 16. heir after the death of his ancestor be within age, and his lord have the ward of his lands and tenements, if the lord will not render unto the heir his land (when he cometh to his full age) without plea, the heir shall recover his land by assise of mortdauncestor, with the damages that he hath sustained by such withholding, since the time that he was of full age. And if an heir at the time of his ancestor's death be of full age, and he is heir apparent, and known for heir, and be found in the inheritance, the chief lord shall not put him out, nor take, nor remove any thing there, but shall take only simple seisin therefore for the recognition of his seigniory, that he may be known for lord. And if the chief lord do put such an heir out of the possession maliciously, whereby he is driven to purchase a writ of mortdauncestor, or of cousenage, then he shall recover bis damages as in assise of novel disseisin. Touching heirs, which hold of our lord the king in chief, this order shall be observed, that our lord the king shall have the first seisin of their lands, like as he was wont to have before time: neither shall the heir, nor any other, intrude into the same inheritance, before he hath received it out of the king's hands, as the same inheritance was wont to be taken out of his hands and his ancestors in times past. And this must be understood of lands and fees, the which were accustomed to be in the king's hands by reason of knight's service, or sergeanty, or right of patronage.
St. 3 EDW. I. St. OF WESTM. I. (1275) c. 22. Of heirs married within age, without the consent of their guardians, afore that they be past the age of fourteen years, it shall be done according as it is contained in the statute of Merton. And of them that shall be married without the consent of their guardians, after they be past the age of fourteen years, the guardian shall have the double value of their marriage, after the tenour of the same act. Moreover, such as have withdrawn their marriage, shall pay the full value thereof unto their guardian for the trespass, and nevertheless the king shall have like amends, according to the same act, of him that hath so withdrawn. And of heirs females, after they have accomplished the age of fourteen years, and the lord (to whom the inarriage belongeth) will not marry them, but for covetise of the land will keep them unmarried ; it is provided that the lord shall not have nor keep, by reason of marriage, the lands of such heirs females, more than two years after the term of the said fourteen years. And if the lord within the said two years do not marry them, then shall they have an action to recover their inheritance quit, without giving anything for their wardship or their marriage. And if they of malice, or by evil counsel, will not be married by their chief lords (where they shall not be disparaged) then their lords may hold their land and inheritance until they have accomplished the age of an heir male, that is, to wit, of one and twenty years, and further, until they have taken the value of the marriage.
i See Lit. 88 107-109.
Iv., c. 36. For as much as before this time, reasonable aid to make one's son knight, or marry his daughter was never put in certain, nor how much should be taken, nor at what time, whereby some levied unreasonable aid, and more often than seemed necessary, whereby the people were sore grieved: it is provided that from henceforth of an whole knight's fee there be taken but 20s. And of 20 pound land holden in socage 208., and of more, more, and of less, less ; after the rate. And that none shall levy such aid to make his son knight, until his son be fifteen years of age; nor to marry his daughter until she be of the age of seven years.
And of that there shall be made mention in the king's writ, formed on the same, when any will demand it. And if it happen that the father, after he hath levied such aid of his tenants, die before he hath married his daughter, the executors of the father shall be bound to the daughter, for so much as the father received for the aid. And if the father's goods be not sufficient, his heir shall be charged there with unto the daughter.
1 Edw. III. St. 2 (1326), c. 12. Whereas divers people of the realm complain themselves to be grieved, because that lands and tenements which be holden of the king in chief, and aliened without license, have been seized heretofore into the king's lands, and holden as forfeit; the king shall not hold them as forfeit in such case, but will and grant from henceforth, of such lands and tenements so aliened, there shall be reasonable fine taken in the Chancery, by due process."
1 “The tenant originally could not alien his fee without the license of the lord, for granting which a fine or payment was charged. The statute Quia emptores enabled 25 Edw. III. ST. OF PURVEYORS (1351). Reasonable aid to make the king's eldest son kuight, and to marry his eldest daughter, shall be demanded and levied after the form of the statute thereof made and not in other manner ; that is to say, of every fee holden of the king, without mean, twenty shillings and no more, and of every twenty pound of land holden of the king without mean in socage, twenty shillings and no more.
Lit. $S 85, 90-93, 95, 97. Homage is the most honorable service, and most humble service of reverence that a franktenant may do to his lord. For when the tenant shall make homage to his lord he shall be ungirt and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: I become your man (Jeo deveigne vostre home) from this day forward of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear to you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our sovereign lord the king; and then the lord so sitting shall kiss him.
Note, none shall do homage but such as have an estate in fee simple, or fee tail, in his own right, or in the right of another, for it is a maxim in law, that he which hath an estate but for term of life, shall neither do homage or take homage. For if a woman hath lands or tenements in fee simple, or in fee tail, which she holdeth of her lord by homage, and taketh husband, and have issue, then the husband in the life of the wife shall do homage, because he hath title to have the tenements by the curtesy of England if he surviveth his wife, and also he holdeth in right of his wife. But if the wife dies before homage done by the husband in the life of his wife, and the husband holdeth himself in as tenant by the curtesy, then he shall not do homage to his lord, because he then bath an estate but for term of life.
More shall be said of homage in the tenure of homage åncestral.
Fealty is the same that fidelitas is in Latin. And when a freeholder doth fealty to his lord, he shall hold his right hand upon a book, and shall say thus: Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall hear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do, at the terms assigned, so help me God and his saints; and he shall kiss the book. But he shall not kneel when he maketh his fealty, nor shall make such humble reverence as is aforesaid in homage.
And there is great diversity between the doing of fealty and of homage: for homage cannot be done to any but to the lord himself; but the steward of the lord's court, or bailiff, may take fealty for the lord.
tenants to alien without license; but this statute did not extend to the tenants in capite of the Crown. The claim of the Crown was afterwards settled by statute at a reasonable fine, which was adjudged to be one third of the yearly value for license, and one year's value upon alienation without license. 18 Edw. I. r. 1; 1 Edw. III. c. 12; 34 Edw. III. c. 15; Co. Lit. 43 a, b; 2 Inst. 67.” – Leake, Dig. Land Law, 28.
Also, tenant for term of life shall do fealty, and yet he shall not do homage. And divers other diversities there be between homage and fealty.
Escuage is called in Latin scutagium, that is, service of the shield; and that tenant which holdeth his land by escuage, holdeth by knight's service. And also it is commonly said, that some hold by the service of one knight's fee, and some by the half of a knight's fee. And it is said that when the king makes a voyage royal into Scotland to subdue the Scots, then he which holdeth by the service of one knight's fee ought to be with the king forty days, well and conveniently arrayed for the war. And he which holdeth his land by the moiety of a knight's fee ought to be with the king twenty days; and he which holdeth his land by the fourth part of a knight's fee ought to be with the king ten days; and so he that hath more, more, and he that hath less, less.
And after such a voyage royal into Scotland, it is commonly said, that by authority of parliament the escuage shall be assessed and put in certain ; scil., a certain sum of money, how much every one, which holdeth by a whole knight's fee, who was neither by himself, nor by any other, with the king, shall pay to his lord of whom he holds his land by escuage.
As put the case that it was ordained by the authority of the parliament, that every one which holdeth by a whole knight's fee, who was not with the king, shall pay to his lord forty shillings; then he which holdeth by the moiety of a knight's fee shall pay to his lord but twenty shillings; and he which holdeth by the fourth part of a knight's fee shall pay but ten shillings; and he which hath more, more, and which less, less.
Co. Lit. 72 b. No escuage was assessed by parliament since the reign of Edward II., and in the eighth year of his reign escuage was assessed.
LIT. $$ 98, 100, 103, 110–112. And some hold by the custom, that if
escuage be assessed by authority of parliament at any sum of money, that they shall pay but the moiety of that sum, and some but the fourth part of that sum. But because the escuage that they should pay is uncertain, for that it is not certain how the parliament will assess the escuage, they hold by knight's service But otherwise it is of escuage certain, of which shall be spoken in the tenure of socage.
And it is to be understood that when escuage is so assessed by authority of parliament, every lord, of whom the land is holden by escuage, shall have the escuage so assessed by parliament; because it is intended by the law that at the beginning such tenements were given by the lords to the tenants to hold by such services, to defend their lords as well as the king, and to put in quiet their lords and the king from the Scots aforesaid.
Tenure by homage, fealty, and escuage is to hold by knight's service