CHAPTER VII.

LIBERTY OF PROPERTY.

UBLICA privatis secernere was, as Horace suggests, one of

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the earliest concerns of Legislatures. It is to be investigated whether the balance between rights of the Crown and of the Subject in property was adjusted with more policy in the reign of Charles II., than before or since? Whether, in the preservation of such rights in property as the Subject has, the Constitution, in the reign of Charles II., had degenerated from the tenor and spirit of the famous twenty-ninth Chapter of Magna Charta, whereby, after providing for personal liberty in the terms, "Nullus liber homo capiatur vel imprisonetur," the Subject's property is thus protected, "Aut disseisetur de libero tenemento suo, vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, aut exulet, aut aliquo modo destruatur." It is proposed to consider the subject under the following heads: I. Feudal Tenures, and, herein, of (a) Wardship and like burdens. (b) Corruption of blood, Escheat, and Forfeiture, in cases of treason and felony. (c) Miscellaneous incidents of feudal tenures. II. Purveyance. III. Statutory Penalties. IV. Crown Rights in Property.

I. Feudal Tenures.

It has been usual to attribute to the Era of the reign of Charles II., the liberation of the estates of the Subject from the oppressive appendages of military tenures. In this respect the

Act of Charles II., for the abolition of military tenures, has been considered by Blackstone more beneficial to freedom of property than Magna Charta, inasmuch as it extirpated what was only pruned at Runningmede. It will be convenient to treat, under the head of feudal tenures, on the subject of forfeitures for treason and felony, from their intimate connection with escheats, though derived from pre-feudal times.

(a) Wardship.

Wardship was the most vexatious of feudal burdens attaching to lands held by the tenure of Knight's Service. The merit of emancipating the landowners of England from this incumbrance is primarily due, not to the Parliament of Charles II., but to the Commonwealth. An Ordinance for abolishing the Court of Wards and Liveries was passed by the Lords and Commons on the 24th of February, 1645, and this Ordinance was further established and confirmed in a subsequent Parliament, well known by the name of Barebones's Parliament, in 1656. Accordingly Inquisitions post mortem, taken on the decease of the military tenants of the Crown, are extant, in the Tower and other public offices, which date from the reign of Henry III., but none are to be found after the year 1645.1

The plagiary Act of Charles II. (12 Charles II. c. 24) was passed by the Convention Parliament in the year 1660, very shortly after the Restoration. The Title of the Act is, "An Act to take away the Court of Wards and Liveries and tenures in Capite, and by Knight's Service, and Purveyance, and for

1 See Grimaldi's Origines Genealogica for the history and repositories of these inquisitions. Commissions to Kings-at-Arms for heraldic visitations continued to be issued till the 2nd of James II. See Ibid., and Diary of Dugdale.

2 Socage in capite, as well as Knight's Service, is abolished by the Act, but this, as observed by Madox and Hargrave, is a loose mode of expression for the oppressive services of tenures in capite; since most lands are, in theory, supposed to be held immediately (in capite) of the King. Shakespere, who abounds in legal jokes, makes Jack Cade exclaim, when he orders Lord Say to be beheaded, "All men shall hold of me in capite,"

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settling a revenue upon his Majesty in lieu thereof." The Act recites that “since the interruption of the Court of Wards which hath been from the 24th day of February, 1645, many persons have by will and otherwise made disposal of their lands held by Knight's Service, whereupon divers questions might possibly arise unless some seasonable remedy be taken to prevent the same. The Statute abolishes tenure by Knight's Service and its incidents, and also purveyance and pre-emption, and then proceeds to confer on his Majesty, his heirs and successors, full and ample recompence and satisfaction," which is done by means of an hereditary excise duty', for collecting which stringent provisions are enacted.

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It may be thought that the abolition of military tenures was less the result of legislative policy, than one necessitated by the circumstances of the times. Independently of the inextricable confusion adverted to in the Act into which titles to land would have been thrown by a nullification of conveyances during a period of the previous fifteen years from 1645 to 1660, it may be doubted whether the onerous obligations of military tenures could have been effectually enforced at the juncture of a restoration to a throne. An income from them could have been derived only by an exercise of a prerogative more odious in its character, and more precarious in its fruits than a stipulated revenue paid by the unfailing consumers of beer and liquors.

Military Tenures and their incidents were a grievance, which could only have been upheld by immemorial and uninterrupted usage. The Commonwealth, however challengable its foundation, conferred a lasting benefit on the Country by having broken the chain of this and numerous other impolitic usages, the revival of which became impracticable, after the nation had tasted

1 Liquors and beer were the principal articles of excise in the reign of Charles II.; but tea was an exciseable article during that reign, the duty not being levied on the imported commodity, but on the liquor bought in the shops. Tea is mentioned in the Excise Act of 12th Car. II. c. 23, and, as a rarity, by Pepys. Waller has a poem entitled, "Of Tea, commended by her Majesty."

the fruits of their suspension. Restrictions on the power of alienation, licensed plunder of the estates of minors, tendered marriages of Wards for the pecuniary profit of their feudal lords, with a variety of other exactions, such as liveries, primer seisins, aids, reliefs, ousterlemains, needed only to be intermitted for fifteen years, to ensure their extinction with or without the Legislature. After the seasonable though nipping frost of the Commonwealth, our law books could never again admit of illustrations such as one which Lord Bacon furnishes in his legal Maxims: "If I covenant with my Ward that I will tender unto him no other marriage than the gentlewoman whose picture I delivered unto him, and that picture hath about it ætatis suæ anno 16, and the gentlewoman is seventeen years old; yet, nevertheless, if it can be proved that the picture was made for that gentlewoman, I may, notwithstanding the mistaking, tender her well enough." Neither, after the Parliament of Barebones, was it probable that any future Sir Thomas Smith, in a "Commonwealth of England," should write, and write in vain, that "Many men do esteem Wardship by Knight's Service contrary to nature, that a freeman and gentleman should be bought and sold like a horse or an ox, and so change guardians at first, second, or third hand, as masters and lords. The King having so many Wards, must needs give or sell them, and the grantee or buyer has no natural care of the infant, but only of their own gain; thus, they will not suffer a Ward to take any great pains either in study or any other hardness, lest he should be sick and die, before he hath married the buyer's daughter, sister, or cousin, for whose sake he bought him, and then all the money which he paid for him would be lost. The Guardian doth but seek to make the most of his Ward as of an ox or other beast." Among other evil consequences of the system, Sir T. Smith states, that "Wards are married very young and before they be wise, and, many times, do not greatly love their wives."

The Court of Wards was of such odious memory, that when a Bill was introduced in the reign of Charles II., in favour of the College of Heralds, to restrain, as Dugdale writes, their "old enemies, the painter stainers," who, he says, had no right to paint coats of arms, it was got rid of, as he relates, although twice moved, owing to a clamour, that it was a stepping-stone to revive the Court of Wards.

With regard to the extent of the operation of the Statute of Charles II. in emancipating the lands of the subject, and the justice of the mode of compensation to the King which was adopted; it is to be observed that the emancipation reached only to lands held by the tenure of Knight's Service. It appears from Littleton's Tenures and Coke's Commentary upon them, that a considerable part of the lands of England were held under other tenures, especially Socage, which was supposed to have been the tenure of lands originally appropriated to agricultural purposes, and not the sustentation of Knights and Esquires. The passing of the Act of Charles II. was, probably, much facilitated in consequence of the landed aristocracy who held estates by the tenure of Knight's Service transferring their feudal burdens to the shoulders of the general body of consumers of exciseable articles. Prynne, in a debate on the Bill, said that its operation was to "make every householder a tenant in capite."

(b) Corruption of Blood, Escheat, and Forfeiture in cases
of treason and felony.

With regard to Corruption of Blood;—an important exception is admitted by Blackstone to the blessings of the Statute of Charles II., in abolishing the doctrine and consequences of the military tenures, viz. in leaving to posterity the corruption of inheritable blood upon attainder of treason or felony. Hale writes, in the reign of Charles II., subsequently to the Statute under consideration, "If the Son of a person attaint purchase land, and die without issue, it shall not descend to his uncle,