Sivut kuvina

some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in [62] chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, etc., that tenure was called liberum socagium, or free-socage. These were the only free holdings or tenements; the others were villenous or servile: as, thirdly, where the service was base in it's nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in it's nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage (from the certainty of it's services) but degraded by their baseness into the inferior title of villanum socagium, villein-socage.*

I. The first, most universal, and esteemed and most honourable species of tenure, was that by knight-service, called in Latin servitium militare, and in lawFrench chivalry, or service de chivaler, answering to the fief d' haubert of the Normans, which name is expressly given it by the mirrour. This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the genuine effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, h Spelm. Gloss. 219. i c. 2. § 27.

[blocks in formation]

feodum militare; the value of which, not only in the reign of Edward II, but also of Henry II,1 and therefore probably at it's original in the reign of the conqueror, was stated at 207. per annum; and a certain number of these knight's fees were requisite to make up a barony.9 And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon :m which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion." And there is reason to [63] apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system.

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi: was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and shew to be of foedal original.

k 9Stat. de milit. 1 Edw. II. Co. Litt. 69.


9 Ninth edition inserts, "Stat. Westm. I. c. 36."

1 Glanvil. l. 9. c. 4.

5 See writs for this purpose in Memorand. Scacch. 36 prefixed to Maynard's yearbook. Edw. II.5

n Litt. ? 95.

o Co. Litt. 9.

9 Ninth edition reads, "measure of which in 3 Edw. I. was estimated at twelve ploughland,k and its value (though it varied with the times,1 in the reigns of Edward I. and Edward II.m was stated at 20l. per annum." [k Pasch. 3 Edw. I. Co. Litt. 69. 12 Inst. 596.7

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress; but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three: first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feodal attachment and fidelity: insomuch that the neglect of doing it, whenever it was in the vasal's power, was by the strict rigour of the feodal law, an absolute forfeiture of his estate. Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expence. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms: the intention of it being to breed up the eldest son and heir apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughter's portions were in those days extremely slender; few lords being able to save much out of [64] their income for this purpose; nor could they acquire money by other means, being wholly conversant in matters of arms: nor by the nature of their tenure, could they charge their lands with this, or any other incumbrances. From bearing their proportion to these aids no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden) and the marriage of his female descendants,s And one cannot but observe, in this particular, the great resemblance which the lord and vasal of the

p Auxilia funt de gratia et non de jure, - cum dependeant ex gratia tenentium et non ad voluntatem dominorum. Bracton. l. 2. tr. 1. c. 16. ? 8.

[merged small][ocr errors][merged small][merged small]

feodal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. With9 regard to the matter of aids, there were three which were usually raised by the client; viz. to marry the patron's daughter; to pay his debts; and to redeem his person from captivity.t

But besides these antient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts (probably in imitation of the Romans), and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were, from the nature of their tenure, excused, as they held immediately of the king who had no superior. To prevent this abuse, king John's magna carta" ordained, that no aids be taken by the king without consent of parliament, nor in any wise by inferior lords, save only the three antient ones above-mentioned. But this provision was omitted in Henry III.'s charter and the same oppressions were continued till the 25 Edw. I.; when the statute called confirmatio chartarum was enacted; which in this respect revived king John's charter, by ordaining that none but the antient aids should be taken. But though the species of aids was thus restrained, yet the quantity [65] of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable; and that the aids taken by the king of his tenants in capite should be settled by parliament. But they were never completely ascertained and adjusted till the statute Westm.

t Erat autem hæc inter utrosque officiorum vicissitudo — ut clientes ad collocandas senatorum filias de suo conferrent; in æris alieni dissolutionem gratuitam pecuniam erogarent; et ab hostibus in bello captos redimerent. Paul. Manutius de senatu Romano. c. 1.

[blocks in formation]

1. Edw. I. c. 36. which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter; and the same was done with regard to the king's tenants in capite by statute 25 Edw. III. c. 11. The other aid, for ransom of the lord's person, being not in it's nature capable of any certainty, was therefore never ascertained.

2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But, though reliefs had their original while feuds were only lifeestates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir. The English ill brooked this consequence of their new adopted policy; and therefore William the conqueror by his laws ascertained the relief, by directing (in imitation of the Danish heriots) [see note 19, page 134] that a certain quantity of arms, and habiliments of war should be paid by the earls, barons, and vavasours respectively; and, if the latter had no arms, they should pay 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws: thereby in effect obliging every heir to new-purchase or redeem his land: but his brother Henry I., by the charter before-mentioned, restored his father's law [66] and ordained that the relief to be paid should be according to the law so established, and not y Wright. 99.

z c. 22, 23, 24.

a 2 Roll. Abr. 514.

9 Ninth edition inserts, "of the annual value."

« EdellinenJatka »