Test Bank for Lehninger Principles of Biochemistry 7th Edition Nelson Cox 1464126119 9781464126116 Download full test bank at: https://testbankpack.com/p/test-bank-for-lehninger-principles-of-biochemistry7th-edition-nelson-cox-1464126119-9781464126116/ Download full solution manual at: https://testbankpack.com/p/solution-manual-for-lehninger-principles-ofbiochemistry-7th-edition-nelson-cox-1464126119-9781464126116/
1. Which interactions are NOT considered to be “weak” in proteins? A) hydrogen bonds B) hydrophobic interactions C) ionic bonds D) peptide bonds E) van der Waals forces 2. The MOST important contribution to the stability of a protein's conformation appears to be the: A) entropy increase from the decrease in ordered water molecules forming a solvent shell around it. B) maximum entropy increase from ionic interactions between the ionized amino acids in a protein. C) sum of free energies of formation of many weak interactions among the hundreds of amino acids in a protein. D) sum of free energies of formation of many weak interactions between its polar amino acids and surrounding water. E) stabilizing effect of hydrogen bonding between the carbonyl group of one peptide bond and the amino group of another.
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3. In an aqueous solution, protein conformation is determined by two major factors. One is the formation of the maximum number of hydrogen bonds. The other is the: A) formation of the maximum number of hydrophilic interactions. B) maximization of ionic interactions. C) minimization of entropy by the formation of a water solvent shell around the protein. D) placement of hydrophobic amino acid residues within the interior of the protein. E) placement of polar amino acid residues around the exterior of the protein. 4. Which statement is NOT an appropriate description for van der Waals interactions? A) They involve dipole-dipole interactions. B) Their strength depends on the distance between the two interacting atoms. C) They are highly specific. D) An individual van der Waals interaction does not contribute significantly to the stability of a protein. E) They can involve hydrophobic amino acids. 5. Which statement about intrinsically disordered proteins is TRUE? A) They contain small hydrophobic cores. B) They represent misfolded conformations of cellular proteins. C) They have no stable three-dimensional structure and therefore have no cellular function. D) They are responsible for proteostasis. E) They can interact with multiple protein-binding partners and are central to protein interaction networks. 6. Pauling and Corey's studies of the peptide bond showed that: A) at pH 7, many different peptide bond conformations are equally probable. B) peptide bonds are essentially planar, with no rotation about the C—N axis. C) peptide bonds in proteins are unusual, and unlike those in small model compounds. D) peptide bond structure is extraordinarily complex. E) primary structure of all proteins is similar, although the secondary and tertiary structure may differ greatly.
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7. In the diagram below, the plane drawn behind the peptide bond indicates the:
A) absence of rotation around the C—N bond because of its partial double-bond character. B) plane of rotation around the C—N bond. C) region of steric hindrance determined by the large C=O group. D) region of the peptide bond that contributes to a Ramachandran plot. E) theoretical space between –180 and +180 degrees that can be occupied by the and angles in the peptide bond. 8. Which backbone arrangement BEST represents that of two peptide bonds? A) C—N—C—C—C—N—C—C B) C—N—C—C—N—C C) C—N—C—C—C—N D) C—C—N—C—C—N E) C—C—C—N—C—C—C 9. Which pairs of bonds within a peptide backbone show free rotation around both bonds? A) C—C and N—C B) C=O and N—C C) C=O and N—C D) N—C and C—C E) N—C and N—C 10. Roughly how many amino acids are there in one turn of an helix? A) 1 B) 2.8 C) 3.6 D) 4.2 E) 10
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11. In the helix, the hydrogen bonds: A) are roughly parallel to the axis of the helix. B) are roughly perpendicular to the axis of the helix. C) occur mainly between electronegative atoms of the R groups. D) occur only between some of the amino acids of the helix. E) occur only near the amino and carboxyl termini of the helix. 12. In an helix, the R groups on the amino acid residues: A) alternate between the outside and the inside of the helix. B) are found on the outside of the helix spiral. C) cause only right-handed helices to form. D) generate the hydrogen bonds that form the helix. E) stack within the interior of the helix. 13. Thr and/or Leu residues tend to disrupt an helix when they occur next to each other in a protein because: A) an amino acids like Thr is highly hydrophobic. B) covalent interactions may occur between the Thr side chains. C) electrostatic repulsion occurs between the Thr side chains. D) steric hindrance occurs between the bulky Thr side chains. E) the R group of Thr can form a hydrogen bond. 14. A D-amino acid would interrupt an helix made of L-amino acids. Another naturally occurring hindrance to the formation of an helix is the presence of: A) a negatively charged Arg residue. B) a nonpolar residue near the carboxyl terminus. C) a positively charged Lys residue. D) a Pro residue. E) two Ala residues side by side. 15. An helix would be destabilized most by: A) an electric dipole spanning several peptide bonds throughout the helix. B) interactions between neighboring Asp and Arg residues. C) interactions between two adjacent hydrophobic Val residues. D) the presence of an Arg residue near the carboxyl terminus of the helix. E) the presence of two Lys residues near the amino terminus of the helix.
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16. The major reason that antiparallel -stranded protein structures are more stable than parallel -stranded structures is that the latter: A) are in a slightly less extended configuration than antiparallel strands. B) do not have as many disulfide crosslinks between adjacent strands. C) do not stack in sheets as well as antiparallel strands. D) have fewer lateral hydrogen bonds than antiparallel strands. E) have weaker hydrogen bonds laterally between adjacent strands. 17. Amino acid residues commonly found in the middle of turn are: A) Ala and Gly. B) hydrophobic. C) Pro and Gly. D) those with ionized R-groups. E) two Cys. 18. A sequence of amino acids in a certain protein is found to be -Ser-Gly-Pro-Gly-. The sequence is most probably part of a(n): A) antiparallel sheet. B) parallel sheet. C) helix. D) sheet. E) turn. 19. The three-dimensional conformation of a protein may be strongly influenced by amino acid residues that are very far apart in sequence. This relationship is in contrast to secondary structure, where the amino acid residues are: A) always side by side. B) generally near each other in sequence. C) invariably restricted to about 7 of the 20 standard amino acids. D) often on different polypeptide strands. E) usually near the polypeptide chain's amino terminus or carboxyl terminus.
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freehold is distrainable, as doors, windows, furnaces, &c. for these being affixed thereto, are part of the freehold, and cannot be separated thence without damage. Therefore, a smith’s anvil, though not actually fixed, or a millstone removed in order to be picked, are not subject to distress; for the one is, in law, still part of the shop, as the other is of the mill. Hence, likewise, money is not distrainable, unless it be in a bag; because, otherwise, it cannot be known, so as to return it in the same plight. For the same reason, by the old law, corn in sheaves, or in stacks, or in a barn, or hay in cocks, or in a loft, could not, for fear of damage in removing. That however hath been since altered by statute, but corn or hay on a cart could be distrained by the old law; for they being, in such a case, found in a situation fit for removal, might be transported from place to place without any probable danger of damage, or diminution. Secondly, The instruments of a man’s livelihood, as the tools of a tradesman, the books of a scholar, the plough-cattle of a ploughman, &c. cannot be distrained where any other distress is to be found; and this for the particular safety and benefit of individuals. But this holds not in the case of damage feasant; for there the identical thing that did the trespass, and that only, must answer for it. Thirdly, Things sent to public places of trade are privileged, for the public benefit of the realm, as cattle in a market, corn sent to a mill, cloth in a taylor’s shop, yarn in a weaver’s house. For it would put a total stop to commerce if these were answerable for the rents of such places. Fourthly, What is in the custody of law is not distrainable, for it would be an absurdity that a man should have a right by law, to take things out of the custody of the law itself, such as goods already distrained, or goods taken in execution, or seized by process at the suit of the king. Fifthly, Things in manual possession of another, are, for the time, privileged, as an ax in a man’s hand, or the horse I ride on. But for damage feasant, as I said before, every thing is distrainable; for the thing itself which did the damage, is the pledge of the satisfaction, and the only one. Next let us see how and where they may be taken. The distress, then, should not be excessive, as an ox should not be taken for twelve pence, where other sufficient distress might be had, or two sheep where one was sufficient; but for damage feasant, though ever so little, the whole may be taken; and likewise for homage, fealty, or the wages of members in parliament. As the interest of the whole community is concerned in
these, no distress can be excessive. No distress can be taken in the king’s highway, for it is privileged for the public use of the nation. Neither can any distress be taken by night, unless for damage feasant; for as no tender of rent, or other duty, can be made, or acceptance enforced but in the day-time, perhaps the tenant may, in such case, be provided, and ready to tender his duties the succeeding morning, and thereby save his chattels. Lastly, by the common law, no man could distrain out of his fee, unless when coming to distrain he had the view of them, and they were driven off to prevent him. But this hath been altered by statute, and now a landlord may follow his tenant’s cattle, if conveyed by his lessee off the land, and distrain them within twenty days. As to the manner of demeaning or managing the distress, it is the duty of the distrainor to carry them to a pound, that they may be in the custody of the law. Pounds are of two kinds, overt, or covert; the one for living cattle, the other for other goods that might take damage by the weather. The reason why living cattle should regularly be put into a pound overt, is, that, as they are but a pledge, from which, in itself, the taker is to receive no benefit; and as the proprietor, therefore, must be at the sole expence of feeding them, he should have the freest access to them for that purpose; and, in such case, if they perish, the loss is his; but if they be put into a covert pound, there, because the owner cannot have access, the taker is to feed them, and answer for them at his peril. In antient times, the lords used to drive the distresses into foreign counties, whereby the tenants knew not where to resort to feed their beasts. This was forbidden by Marlebridge, cap. 4. However, that act received this construction, that if a manor lay in two counties, and its pound in one of them, the lord might distrain in the other county, and impound them in his manor pound; because the tenant, by attending the manor court, was presumed to know every thing transacted in the manor. But now, by later acts, no distress of cattle shall be impounded out of the hundred, or barony where taken, except in a pound overt, in the same county, within three miles of the place; nor shall distresses be divided, and impounded in several places. Dead chattels must be impounded likewise within three miles, and that in a pound covert, otherwise the taker is answerable for them, if damaged or stolen. As to the remedy for taking an unjust distress, the tenant might, if there was nothing due, rescue them before they were put in pound, and justify it; but when once impounded, they were in the custody of the law, and must be delivered by law. Or if there was any thing due, he might,
before they were impounded, make a tender of satisfaction; which, though the caption was just, rendered the detention unlawful; and therefore if the beasts, after such tender, were put in pound, and died there, the taker was answerable. When the goods were once impounded, the remedy was by replevin, which is a judicial writ out of Chancery, directed to the sheriff, who is Judge in this case, complaining of the unjust taking and detention, and commanding the sheriff to deliver them back to the owner, upon security given to make out the injustice of the taking or detention, or else to return the goods and chattels. But this method of replevin, by writ out of Chancery, was very inconvenient to the remote parts of the kingdom; as the owner might be put to extraordinary expence and trouble, in maintaining his cattle for a long time. Hence it was provided, by the statute of Marlebridge, cap. 21. Quod si Averia alicujus capiantur, & injuste detineantur, vicecomes post querimoniam sibi factam, ea sine impedimento vel contradictione ejus qui dicta Averia ceperit, deliberare possit[155]. This impowered the sheriff to make replevins without writ, upon the plaint of the plaintiff in replevin; and this he could do out of his county court, because, as that was held only from month to month, were it otherwise, the delay might be as great as in the case of a writ of replevin; but then the sheriff, in order to lay the foundation of the suit, must enter the plaint the next county court, that it may appear on the rolls thereof. The sheriff’s duty then was, in the first place, to take sufficient security ad prosequendum, that is, that the plaintiff should make out, in due course of law, the justice of his writ or plaint, that is, that the cattle or goods were either taken, or detained unjustly. He was also to take security de retorno habendo, that is, in case he failed, that he would return the same distress, that it might be delivered to the taker; and this is by the statute of West. 2.; and he generally, likewise, took security to indemnify himself from any action that might be brought against him. And then it was his duty immediately to deliver the distress to the plaintiff in replevin. Then it lies on the taker or defendant in replevin to avow, that is, to set forth the reasons of his caption, to which the plaintiff replies; and so the justice of the cause comes into question, to be legally determined. Thus much is sufficient, at the present, to shew the remedy the lord hath for
his services, by virtue of his seignory, and how his tenant is to defend himself if unjustly distressed[156]. I might here treat of another fruit of the lord’s seignory, which is the right of escheat, or the lands falling back to the lord, either for the delictum of the tenant, or the failure of blood; but as, to understand this last properly, we must know who are inheritable, it will be more proper to defer it till after we have treated of inheritances.
LECTURE XI. The manner in which estates for life came to be enlarged into descendible estates—The nature of Reliefs—Feudal oppressions—The admission of allodial lands into the feudal policy—The extension of the feudal system in France.
The feudal lands having been changed by degrees from tenancies for years into permanent grants for life, partly by the necessities, and partly by the favour of the lords, the matter did not stop here; but, to the advantage of the vassals, their rights were continually gaining ground, and insensibly extending themselves, to a durable continuance in the same family. To this, undoubtedly, the number of allodial estates, which were estates of inheritance in the hands of the Romans, greatly contributed. For it is not to be imagined that it could be an agreeable spectacle to the conquerors, when once they were settled, and secured in the possession of the country, to behold their posterity in a more precarious situation, with regard to property, than the vanquished were. It is true, as by their constitution the lord was obliged to provide every gentleman, that is, every one of their nation, unless he proved unworthy, with a benefice, there was no danger of their issue not being supplied, in some degree or other. But this did not satisfy them[157]. Their roving manner of life being antiquated, and the practice of removing them from place to place every year being superseded by gifts for life, the possessors, by habitude, became fond of their dwellings, and no longer contented with bare necessaries, studied to render their situation commodious and agreeable. They built houses of strength and convenience, and by their socage, tenants and villains planted and improved their lands. And now it began to be thought severe, that the benefit of their improvements, and the fruit of their and their dependants toil and labour, should go to strangers, or even to the lord himself. For before this time it had began, and was now grown into a common practice, for the lords, when they gave an estate for life, not to content themselves merely with future service, but to exact, at the time of their investiture, an honorary fine from the tenant; and this, being but moderate, was generally complied with, in order to gain a permanent estate. The interest of the state, which was concerned in the improvement of particulars, required also a preference of the defendants of those that made them. It is no wonder, therefore, that it grew to be a maxim, and
universal opinion among these people, that the not continuing the son in the possession of his deceased father, though it was in the lord’s power to remove him, was a great hardship, and an unworthy act in the lord[158]. With these general sentiments, the lords, for their own interest, were obliged to comply, and especially the kings; who, by the frequent divisions of the monarchy in France, had competitors to guard against; and were, therefore, enforced to attach their vassals to them in the strongest manner, by complying with their inclinations. The sons, therefore, or one of them, generally succeeded; not in virtue of any inherent right, but by a new gift, through the favour of the lord. For, upon the death of his vassal, the estate being expired, the lord took possession, and, upon receiving a fine, made a new grant, by investiture, as of a new estate, to such an one of the sons as he chose; or he divided it among them at his pleasure. These fines for continuing the fiefs in the same family were called relevia or reliefs, from the Latin word relevare, which signified a second lightening, or removing the hand of the lord, who had seized the benefice upon its vacancy, by the death of the former possessor. Hence the son had no right to continue his father’s possession. He was obliged to petition for a new investiture, and to tender his relief, and himself ready to take the oath of fealty. These reliefs were originally paid in arms, being the most valuable property these military people had, and afterwards were converted into money. The quantum was originally at the lord’s will; but his own interest, from the motives already hinted, commonly prevented him from being exorbitant. This preference to a succession being at first a matter of favour, not of right, some vassals, by degrees, obtained of their lord, in their investitures, an absolute right of succession to their sons; which bound the lord and his heir; and that in these two different manners. It was either by a grant to the vassal, and one or more of his sons by name; and then those omitted were excluded; or to him and his sons generally; and then, by the feudal law abroad, they were all admitted to enjoy in equal portions, in imitation of the Roman law, which admits all the children in that manner. But the words of the grant were not extended, by a favourable construction, to take in grandsons by the name of sons, for the following reason. When a grant was made to a man and one or more of his sons by name, the sons were originally, at the time of the investiture, capable, or supposed capable, by the lord’s admission, of doing the services of the feud; and their ability and merit was in the contemplation of the grantor, and part of the consideration of the grant; and where it was given to a
man and his sons generally, the law presumed the same thing, the same capacity in them, the same intention in the grantor. But in the case of grandfather and grandson, the law could not presume so, it being contrary to the ordinary course of nature, that both should, at the time of investiture, be capable of doing the services in person; and therefore the grandsons, unless specially provided for, were excluded[159]. Thus a right of succession for one step was gained by the express provision of the parties, in particular cases. But as the lord, where he continued the succession out of favour, entered into the lands, and parted not with them without payment of his relief by the son, it was reasonable in this case, where he positively bound himself, that these advantages should be reserved to him. Therefore the heir could not enter, but was obliged to petition his lord humiliter and devotè, and to offer his fealty and relief; and the interest of the lord and of the state requiring the place of the deceased vassal to be speedily filled up, a year’s and a day’s time was allowed for this application; within which space, if the heir did not apply, unless prevented by inevitable necessity, he forfeited his right of succession, and the lord was at liberty to dispose of it to a stranger. Reliefs, however, being, in their original creation, arbitrary, it should seem to be in the power of the lord, where the quantity was not specified in the tenor of the investiture, to defeat his own grant, by demanding, under that name, more than the value of the land, or otherwise grievously to distress his tenant. This, in England particularly, occasioned many struggles. It appears from the laws of William the Conqueror, that, in those times, the reliefs were fixed according to the different ranks of the persons, and paid in horses and armour, in imitation of heriots in the Saxon times; but his avaricious and tyrannical son William Rufus laid claim to, and exacted arbitrary reliefs, to the great discontent of all, and to the impoverishment of many of his subjects[160]. This was redressed in Henry the First’s charter, where the first chapter says, Si quis baronum, comitum, sive aliorum qui de me tenent mortuus fuerit, heres suus non redimet terram suam sicut faciebat tempore fratris mei, sed legitima, & certa relevatione relevabit eam, similiter & homines baronum meorum, legitima, & certa relevatione relevabunt terras suas de dominis suis[161]. Henry the First, however, was a man little inclined to keep any engagements with his people that he could free himself from; and therefore reliefs went on in an arbitrary way, for the most part, under him, though not in so oppressive and extorting a manner as his brother William had used. For in his grandson Henry the Second’s reign, in
whose time the feudal payments became generally converted into money, we find, from Glanville, that the relief of a knight’s fee, indeed, was reduced to a certainty, but that of a noble fee was not. Dicitur autem rationabile relevium alicujus, juxta consuetudinem regni, de feodo unius militis, centum solidos;—de baroniis vero nihil certum statutum est, quia juxta voluntatem & misericordiam domini regis solent baroniæ capitales de releviis suis domino regi satisfacere[162]. It seems a little odd, that the lower military people had got such an advantage above the great and powerful lords; but this may be accounted for from the number of the knights, who made the strength of the kingdom, and were not to be disobliged; and also from the precarious situation many of the great lords were in, who had been attached to the cause of Stephen. However, the wisdom and moderation of this great prince was such, that we find no complaints on this head, during his reign, or that of his son Richard; but when John ascended the throne, a prince who hated, and was hated by his nobles, the old oppressions were renewed, and aggravated to such a degree, that the remedying thereof is the first article of temporal concern in Magna Charta[163]. There it is provided, Si quis comitum, vel baronum nostrorum, sive aliorum tenentium de nobis in capite per servitium militare, mortuus fuerit, & cum decesserit, heres ejus plenæ ætatis fuerit & relevium nobis debeat, habeat hereditamentum suum per antiquum relevium; scilicet, heres, vel heredes comitis de comitatu integro per centum libras, heres vel heredes baronis de baronia integra per centum marcas; heres vel heredes militis de feodo militis integra per centum solidos ad plus: Et qui minus habuerit minus det, secundum antiquam consuetudinem feodorum[164]. And now were all reliefs reduced to a certain sum of money, namely, the fourth part of what was then reckoned the value of the inheritance; for a knight’s fee was then reckoned at twenty pounds, a barony at four hundred marks, and an earldom at four hundred pounds per annum. And by the gradual sinking of the value of money, and the rising of lands, these payments continuing the same, came in a few centuries to be not the twentieth part of the value. We see by the words per antiquum relevium, & secundum antiquam consuetudinem feodorum, how careful the lords were to have this certainty of relief acknowledged as their antient right, and not to accept it as a concession from the crown. When the military lords began, in imitation of the estates they themselves had, to grant inheritances to their socage tenants, they likewise exacted, in the nature of a relief, from every new possessor a
year’s value; or, in other words, the rent of the first year was doubled. For a year’s value was what was, in France, at the beginning, paid for military tenures, by the name of rachat, or repurchase, answering to our relief, until at length they were reduced to a certainty in money; and, consequently, from the same causes as in England, though remaining nominally the same, they sunk to be very inconsiderable[165]. Estates of succession, as I observed, arose first from private grants, and that for one generation only; but they were continually extending to further lengths, and encreasing in number; insomuch that, fiefs falling vacant much seldomer than before, the king had it not in his power to gratify his deserving soldiers so frequently as he should, and the crown was consequently enfeebled. This then started the notion of such grants being good only during the life of the king or lord who made them, and not binding on his successors. Upon this plan, Brunechild, in her regency, during the minority of her infant son, attempted to revoke them, and actually did revoke several; which at length raised that flame, and caused that revolution, in which her son and herself miserably perished. What shews the violent indignation her venturing on this step occasioned, was the horrid manner of her death, that of being torn asunder by four wild horses. Clothair the Second, who succeeded, was wise enough by law to confirm these estates; and then, namely about the year 613, the former doubt was removed, and all these estates of inheritance confirmed to continue against the successor, according to the terms of the original investiture. New grants were continually made, and for more generations than had been formerly practised. But yet this rule of descent was not general; but all grants, unless heirs were specially named, were but for life; as it is in our law, in which a feofment to a man for ever, is but an estate for life for want of words of inheritance[166]. What greatly contributed to the extending these grants to indefinite generations, was the inclination that now seized the Romans and Gauls who held allodial lands to be admitted into the feudal policy, by becoming vassals to the king. They had long lain under very humiliating distinctions. They were no members of the state. The loss of their lives, and other injuries, were compensated only by half the satisfaction to a Frank. For neglect, or contumacy, when called into the king’s courts, they were reputed guilty, and forfeited their estates; whereas a Frank was only imprisoned to oblige him to answer. When accused of the lightest crimes, they were put to the ordeal; whereas the Franks were only subjected thereto in case of murder. And many other were the
distinctions between the allodial and feudal tenants. No wonder then the former were very desirous of enrolling themselves among the conquerors, which when they had at length obtained, their liberty was effected, by their giving their allodial lands, or a part of them, to the king, and receiving them back, subject to the feudal rules. Now were they immediate vassals of the king, and, as such, became Franks to all intents and purposes. But these people were not so foolish, nor could it be expected from them, to part with absolute inheritances, and take back only an estate for life. They insisted upon grants for a perpetuity, at least for as long as the issue male of the person resigning lasted. When once these donations were become common, we may be assured the Franks were very ready to follow the example, and to take all advantages either of the favour, or the weakness of their kings; and to such a number did these inheritances increase, that, about the year 730, the kingdom was near being lost to the Saracens, for want of a sufficient number of beneficiary or life-estates, to encourage the soldiery[167]. At the time the kings of France were merely nominal, and the whole administration in the hands of the maires du palais, of whom the second, who had obtained this unlimited authority, Charles Martel, was so happy as to save the kingdom from those African invaders in a battle near Tours, wherein they were routed with a slaughter almost incredible. It remained to reward the victorious soldiers, who were at least as much animated to their exploits by his previous promises, as by their affection to the antient constitution of the state, which was now in truth destroyed, the kings of the royal race being mere phantoms, whose names he and his father had made use of at their pleasure. But this family had not acquired sufficient weight and authority to act as masters. The fund of lands, out of which benefices had been formerly given, was almost exhausted, and the major part of the lands that were not still allodial, was alienated either in perpetuity to the church, as atonements for the vices of the former kings, or what was near a perpetuity to the lords, for many descents. These last he could not despoil. They were too firmly established by custom and law; and he and all his predecessors had paved their way to greatness, by supporting these hereditary grants at the expence of the crown. Necessity therefore obliged him to make free with the lands of the church; for which, in their visions, they lodged him in a chamber, the very lowest in hell. Of these lands the greatest part he converted into benefices of the antient kind, for life only; and by means of the number of those new ones, added, to the old ones, that were in the
same state, some kind of a balance was formed; which for a time supported the government, and checked the growth of inheritances. But it is remarkable, that, of those church lands, several he gave as allodial ones. I will not pretend to say, that, in this distinction, he considered the antient nature of the lands of the church, some of which came from feudal, others from allodial proprietors. It seems rather probable, as the allodial estates were greatly decreased, by being turned into fiefs of inheritance, he was inclinable to form a kind of equality between the feudal tenants, the beneficiaries, and the allodians; that, by managing them, he might advance his family to the title, as well as power of royalty; which we find was soon afterwards accomplished by his son Pepin[168]. The policy of Pepin and his son Charlemagne corresponded with Charles Martel’s views. The former allowed the continuance of inheritances according to the original provision in the creation, but were much fonder of the beneficiary estates, and Charlemagne made several laws to prevent his beneficiaries from converting by any art their interests into inheritances. In his time, a great majority of estates were benefices; but this I presume is not to be understood of France particularly, where, from the detail before mentioned, it could scarce be, but of his whole empire. For in his acquisitions, and especially in Germany, where such a practice was agreeable to the antient customs of the natives, such a regulation was conformable to the sound policy of his father and grandfather; by which they endeavoured to restore the splendour of the old French monarchy, I mean with exception to the large gifts he gave to the church on the borders of the infidels, in atonement for his grandfather’s sacrilege, and in hopes of converting those barbarians, and thereby civilizing them, and making them good subjects. But the successors of Charlemagne had neither the power nor the understanding of their ancestors. No wonder then, that, under them, the general inclination of the subjects to change their benefices into fiefs gained ground. The division of the empire, and frequent wars between the brothers, weakened the royal authority, and strengthened their vassals; who, at the times of their kings distress, were rather to be entreated than commanded. In the time, therefore, of his grandsons, we find laws, that, conforming to the inclination of the vassals, did in time put an end to beneficiary estates, holden from the king; opened the gate to subinfeudations, and all its extensive consequences; and raised a new kind of polity never before seen in the world, the feudal one, such as it
reigned about the year 1050 on the continent, and was introduced into England by William the Conqueror[169]. I speak of the times of Charles the Bald, who reigned about 860. One of his laws gave leave, and an unlimited one, to the allodians, to submit themselves and their estates, in the nature of fiefs, to others besides the kings. Nothing could contribute more to the weakening of the royal power, and the throwing of all the weight into the baron’s scale. Before they could be made Franks, only by becoming the immediate vassals of the king. This was equally for the public benefit of the state, the king, and the allodians. But when once the barrier was thrown down, in those times of confusion, the allodians were glad to gain the protection of the neighbouring lords, and, under colour thereof, detached themselves from their former subjection to the counts, who were the king’s officers over them. Another law, of equal consequence, was to entitle the fee of a beneficiary, who had only an estate for life, without any express agreement for a longer continuance, to go to the son. This was extorted by the circumstances of the times, and perhaps then was thought of little consequence, as it only continued them for one generation. But the temper and general inclination of the people were not to be controuled. Those grants that had been so long as two generations in a family, it was sometimes dangerous, always invidious not to continue; and thus the successors often obtained permanent estates, when nothing less was intended at the beginning. And this was easily obtained, as the use of letters was not common among these people, and their charters were, by frequent rebellions, liable to be destroyed. The last law I shall mention, is that declaring, that the sons of counts, who were the king’s officers over the allodianée, and were originally for years, after for life, should succeed to their father. This put the finishing stroke to the beneficiary estates. For though this, in appearance, was, as the former, but for one life, and conditionally; yet, from the prevailing principles, it was impossible they should not grow up into inheritances. And as all inheritances were growing feudal ones, and upon those conditions, and no others given, these counties become fiefs. The demesnes of the crown within them became the demesnes of the count, and all the allodiaries were now become his sub-vassals[170]. We are come to the dawn of a strictly feudal monarchy, and, to shew the gradation, I have, in this lecture, taken in a great compass of time.
But before I proceed further downwards, it will be proper to return a little back as to the order of time, and to speak of the consequences that attended the introduction of estates of inheritance. Of one of these, reliefs, I have already spoken in this lecture; but there are many others that must be taken notice of.
LECTURE XII. Consequences attending the introduction of estates of inheritance—The incident of homage— Differences in England and the Continent, with regard to the ceremonies of homage and fealty—The fine of alienation—Attornment—Warranties—Wardship in chivalry.
Having already, in my last lecture, taken notice of relief which sprung up immediately with estates of inheritance, and was their immediate consequence, it is proper now to proceed to the other fruits of this tenure, which grew up not so soon, but in after times: and the first to be considered, as undoubtedly the next to relief, if not coeval with it, is homage; which, Littleton says, is the most honourable service (that is with respect to the lord, and the most humble service, that is with respect to the tenant, that a freeholder can do to his lord) as upon the introduction of estates for life, the ceremony of fealty was introduced, so was it thought reasonable, when a further step was taken, that of continuing them to heirs, that a new ceremony should be invented, distinct from the former; which being performed publicly, in the presence of the pares curiæ, should, in those illiterate ages, create a notoriety, that the tenant had a more durable estate than a freehold. The manner of performing homage is thus distinctly described by Littleton. When the tenant shall make homage to his lord, he shall be ungirt, (that is, unarmed) 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 (from which word homo, homagium, and hominium are derived) from this day forward, of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear your faith, for the tenements that I claim to hold of you, saving the faith that I owe to our sovereign lord the king; and then the lord so sitting shall kiss him. These are the words of Littleton, and they are just in the case he puts of a tenant doing homage to an inferior lord, and who had no prior lord; but if he had a prior lord, or the homage was to be done to the king, there was a difference in the form; for if the tenant had a former lord, he also was to be excepted, that the new lord might have notice of the tenant’s prior obligation, and that it was not in his power to do absolute personal services at all times to him. And if the homage was done to the king, who acknowledged no superior, then the exception was entirely omitted;
but if to a subject, it was so absolutely necessary that an omission of it was looked upon as an attempt against the royal dignity, and done in disherison of the crown. And accordingly we find, that Edward the First, in the sixth year of his reign, brought an action of ten thousand pounds damages, now at least in value thirty thousand pounds, against the bishop of Exeter, for taking homage of thirteen of his bishop’s vassals, without the exception of the king; and, in the end, judgment was given against the bishop[171]. Our antient authors tell us, that the lands for which the homage was done ought to be specified in the doing homage; and the reason given is, Ne in captione homagii contingat dominum, per negligentiam, decipi, vel per errorem. But it was better to say, that it was for the benefit both of lord and tenant, and for the information of the pares curiæ, who were to judge in case of any controversy between them. In England the two ceremonies of homage and fealty were kept distinct; the homage, as being for the most durable estate, was performed first, and afterwards the fealty; but, on the continent, at least in some countries, I find they were blended together, by the homage being done upon oath. Another difference between England and the continent was, that, in England, no homage was repeated to the lord’s heir, by a tenant who had himself performed it to the ancestor, but homage once from the tenant was sufficient for his life; whereas, in France, new homage by the same tenant was done on the death of the lord, as we may see plainly by many instances, in the case of the kings of England and France, for the lands the former held in the latter country. Homage was the symbol of a strict and indissoluble bond between the bloods of the lord and tenant, by which they, and the heirs of their blood, were mutually disabled from doing any thing to the prejudice of the other party. The tenant, therefore, could not alien, either by last will or by deed, in his life-time, without the previous consent of the lord. This maxim was established partly in favour of the blood of the first tenant, which was, in fact, often the consideration of the original grant, as when the lord gave lands in marriage with his daughter, or to a son or a brother, (and even where it was not in truth so, the law presumed the blood of the first tenant was in contemplation on the strength of this maxim, fortes creantur fortibus et bonis, and the probability that a gallant warrior would, by a proper education, qualify his son for the same profession) and partly also in favour of the lord, that he should not be obliged to receive, as his tenant,
a person that was inexpert in war; or that, if qualified, was, perhaps, an enemy to the lord, or that was previously vassal and bound to another lord who was an enemy. For in those troublesome times, the power of the crown of France, where these rules began, being greatly diminished, every lordship made a little kind of state in itself, frequently at open war; and when not so, at least in a state of suspicious peace with its neighbours; and from this state of things it happened, that the word feud has come in our common language, to signify a mortal quarrel, as being almost inseparable from the greater, or even lesser fiefs[172]. In those times, the lord, when things grew into a more settled state, took advantage of this maxim, that the tenant should not alien without licence, and the tenants readily acquiesced, under the subsistence of the rule, as it permitted them, in their turn, to exact a fine from their under tenants, or the alienees of such in all cases of subalienation; by which means this fine at length became an established fruit of tenure. In England, however, it ceased in the case of lords that were subjects from the time of the statute called Quia emptores terrarum, which gave every person a free liberty to sell his lands: but the king not being named in that statute, according to the well-known legal maxim, was not bound thereby; and of course was paid fines for alienation, or by subsequent statutes a commutation for such fines by his military tenants in capite, to the time of the Restoration, when these tenures were entirely abolished. On the other hand, the lord was not permitted to alien, even with the consent of his superior, without the consent also of his tenant, and that for a similar reason. For if he, the lord, might so do, he might subject his tenant to one who was the tenant’s mortal enemy, and perhaps for no other reason than for serving his former lord faithfully against the new one[173]. This last maxim once established, introduced the practice of tenants attorning to their lords grants of the seignory. Attornment is an act of notoriety, originally performed in the presence of the pares curiæ, signifying the tenant’s consent, and turning over from his former lord to the new one, and the putting him, the new one, in the seizin of his services. This, at first, was merely voluntary in the tenant; but when, in England, free alienations were allowed by the aforesaid act, it was not thought reasonable that it should be in the tenant’s power to defeat his lord’s grant, by refusing to attorn. He was therefore obliged, by an action called Quid juris clamat, to appear, and to shew forth what title he had in the said lands, and whether he had any sufficient cause why he should
not attorn to the grantee; and if he could not shew any, he was obliged by the judgment of the court to attorn[174]. Another effect of this homage was warranty, which is the obligation on the lord to defend his tenant in the lands holden of him; or, if he cannot, to give him a recompence of equal value in other lands, our law went no farther; but the feudal law, if the warrantor had no lands to give in exchange, obliged him to pay the value in money. Warranty is derived from the word war, because, in those real actions, the trial was of old by combat. This obligation, indeed, subsided, as I have already hinted, long before the introduction of hereditary estates; but when these hereditary estates became common, and all the military tenures were of this sort, and estates for lives and years were only, or for the most part, socage, these last had no warranty annexed to them by law, but only by special agreement; and the warranty I am now speaking of was confined to inheritances, and of those only to such as were held by homage auncestrel, that is, where the tenant and his ancestors had, from time immemorial, done homage to the lord and his ancestors. Here, on account of the continued connection between the blood of both families, the law obliged the lord and his heirs to warrant the lands to the tenant and his heirs[175]. The manner of taking advantage of this obligation of the lords by 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]. However, it is rather to be presumed that this incroachment began 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.