The first time this appears to have been taken was in the 5 Hen. II. on account of his expedition to Toulouse ; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our antient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expences, and to hire troops: and these assessments, in the time of Henry II., seem to have been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour; and king John was obliged to consent, by his magna carta, that no scutage should be imposed without consent of parliament." But this clause was omitted in his son Henry III.'s charter; where we only find, that scutages [75] or escuage should be taken as they were used to be taken in the time of Henry II.: that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. I. c. 5 & 6. and many subsequent statutes it was enacted, that the king should take no aids or tasks but by the common assent of the realm. Hence it is held in our old books, that escuage or scutage could not be levied but by consent of parliament; y such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

W

Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton must be understood, when he u Nullum scutagium ponatur in regno nostro, nisi per commune consilium regni nostri. cap. 12.

w cap. 37.

x See vol. I. pag. 140.

y Old Ten. tit. Escuage.

Z 103.

9 Ninth edition reads, "again provided."

9 Ninth edition reads, "was."

tells us, that tenant by homage, fealty, and escuage, was tenant by knight-service: that is, that this tenure (being subsurvient to the military policy of the nation) was respected a as a tenure in chivalry. But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent: and the tenure instead of knight-service would have been of another kind, called socage, of which we shall speak in the next chapter.

For the present I have only to observe, that by the degenerating of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of [76] tenures now tended to nothing else, but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable 4 in defect of personal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted or his a Wright. 122.

b Pro feodo militari reputatur. Flet. l. 2. c. 14. & 7.
c Litt. 97. 120.

4 Previously, "which they were liable to."

eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as sir Thomas Smith & very feelingly complains, "when he came to his own, after he was out of wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren," to make amends9 he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation.

A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of 8it's freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I. consented "for" a proper equivalent to abolish them all; though the plan then9 [77] proceeded not to effect; in like manner as he had fórmed a scheme, and began to put it in execution, for removing the feodal grievance of heritable jurisdictions in Scotland, which has since been pursued and d Commonw. 1. 3. c. 5.

e 4 Inst. 202.

f Dalrymp. of feuds. 292.

LAW

9 Ninth edition reads, "reduce him still farther."

8 Previously, "her."

9 Ninth edition reads, "in consideration of."

9 Ninth edition omits.

effected by the statute 20 Geo. II. c. 43.8 King James's plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent should be settled and inseparably annexed to the crown, and assured to the inferior lords, payable out of every knight's fee within their respective seignories. An expedient, seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, were destroyed at one blow by the statute 12 Car. II. c. 24. which enacts, "that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knights-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeanty." A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of king Charles extirpated the whole, and demolished both root and branches.*

g By another statute of the same year (20 Geo. II. c. 50.) the tenure of wardholding (equivalent to the knight-service of England) is forever abolished in Scotland.

9 Ninth edition reads, "was to have been."

9 Ninth edition inserts, "(having during the usurpation been discontinued)."

*Cited, 7 Cranch, 619; 18 Johns. 186.

NOTES OF THE AMERICAN EDITOR TO CHAPTER V.

(18) The thing holden is therefore styled a tenement,. the possessors tenants, and the manner of their possession, a tenure, page 59.

Tenure in its first technical sense meant feudal ten. ure; the vassal "held" of his lord: he did not own the land. "Allodial tenure" was never heard of, until in modern times the term was introduced, to denote the "alod" or "odal right" of the pre-feudal time. At first there is but one kind, freehold. The unfreeman did not "hold" the land: he and his land were held together. Gradually as the church gave practical effect to its doctrine of the brotherhood of man, and as feudalism proved that subordination and freedom could exist together, the relation of the unfreeman to his land was conceived of as "servile" or "base 99 tenure, out of which grew the later copyhold tenure. This shows its nature as a true variety of holding, capable of assum-ing all the forms of estate without changing its character as a tenure.

Leasehold tenure, on the other hand, is not a tenure at all in the feudal sense, because the lessee has no "hold" or tenure of the land: no seisin, as the law of England expressed it. But he was necessarily a freeman, and therefore could not be reckoned among the serfs. The easiest escape from the difficulty was to say that he held by a different kind of tenure, and was a freeman, but had not a freehold. Therefore there is no variety of estates in leasehold, answering to those of freehold, or even of copyhold. It is a single form of estate, less than freehold, but always held by a freeman. That it is not a tenure in the feudal sense is shown by its survival to the present day, when it is in constant use, although feudal tenures have long been obsolete.

Copyhold depending on immemorial custom cannot now be created, nor can freehold be changed into it.. 2 BLACKST. - 12.