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But it may be turned into freehold by a mere conveyance of the freehold to the copyholder by the lord, or by a release to him of the seignorial rights; and such transmutation is called enfranchisement. Or on the other hand, the copyholder may convey to the lord, and this will be an extinguishment of the copyhold. (1 Stephen's New Com. 229, n. ƒ.)

How closely connected all these terms are-tenure, estate, title and how easily they pass into one another, is shown by the fact that the statute which did most to destroy feudalism had no reference to tenure at all, but was intended to affect estates, and operated most directly upon titles. This was stat. Quia Emptores, 18 Edw. I. which regulated the sale of hereditaments, changed the transfers from feudal to allodial in their nature, broke up subinfeudation, and prevented the formation of new fees and therefore of manors. Every sale since that time has been the transfer of an old fee, not the creation of a new one. This began the process that ended with the stat. 12 Car. II. ch. 24, or rather with the reforms of the commonwealth, preserved by that statute, in the abolition of all strictly feudal tenures.

(19) In imitation of the Danish heriots, page 65.

The relation of the heriot to the relief has been one of the chief battle-fields on which the fight of different theories of the early law has been waged. The date of the origin of the heriot has been material only as bearing upon this; and most of those who have studied the subject do not doubt their identity, or at least that it was upon the plan of the heriots that the Norman conquerer fashioned his plan of relief, as Blackstone (Cf. 2 Com. 423) says. The main distinction recognized between them is that the heriot is the act of the leaving, relief of the incoming tenant or heir. (Kemble, Saxons in England, i. 178.) This is exactly the difference we should expect to find, if heriot were the rule before the

notion of hereditary estates was thought of, and relief took its place when the succession of the heir came to be considered a right. Indeed it would become ipso facto the new form if the rights of the deceased were regarded as instantly passing to the heir, from whom anything left by the ancestor must be demanded.

Kemble supposes that the heriot began in the comitatus-therefore among freemen-and was extended to the unfree tenants by imitation. I know no authority for this. It is certain that in the tenth century the lord took the unfreeman's chattels at his death without exception. (See Rect. Sing. Pers. in Thorpe's Ancient Laws, vol. 1, pp. 431-445.) If the "best beast," or "best chattel" was all that he got in the eleventh under Canute, we might rather infer that this was an amelioration of the former custom than a new hardship inflicted on the helpless class. The notion of a hereditary estate in land was not yet formed; but when it was introduced after the Conquest, it would be natural to impose some condition analogous to that of the tenants who remained in possession of their land, because ascripti gleba, which might well be the relief. The fixing of the amount, as a year's rent or something of the kind, would be the next step in the natural order of the development of individual rights and their increased certainty.


(20) Provided he held a knight's fee, page 69.

All our American editors limit this by adding “in capite under the crown," and to the same effect prefix king's " "to the word "vassals" below on same page. This reading will be found in the notes at the foot of the page, as indicated by the figure 9, referring thither, signifying that they were first added in the ninth or posthumous edition.

Although the subject is of no present interest it illustrates the reasons which induced the editor to reject the

additions thus made from the text, and follow that of the eighth edition, the last which was certainly Blackstone's own work. There is reason to believe that some of these changes Dr. Burn, the editor of the ninth edition, made without any authority from Blackstone's papers, and entirely on his own. By reference to book 1, page 404, the reader will see that the same change was made there in the same way, after Blackstone had left the passage unaltered through the eight editions printed in his lifetime.

The chief ground for thinking that this limitation to the king's tenants was a discovery made by Dr. Burn, and not by the author of the Commentaries, is the fact that there is no evidence for its truth in the original authorities. See Coke on the stat. de militibus, 2 Inst. 593, and the commissions of Edw. VI. and Q. Elizabeth in 15 Rymer's Foedera, 124, 493; with the stat. 16 Car. I. c. 20, and 2 Rushw. Coll. 70; cited by Mr. Christian, who first pointed out the inaccuracy of this addition to the text in his note to this passage, saying, "I do not find that this prerogative was confined to the king's tenants," though apparently without suspecting the authorship.

It is a little hard that Blackstone should thus be made responsible for the errors of his posthumous editor, and at the same time accused of learning from the same posthumous editor all that he knew on such subjects.



Although, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in it's room since by the statute 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced to one general species of tenure, then well known and subsisting, called free and common socage. And this, being sprung from the same feodal original as the rest, demonstrates the necessity of fully contemplating that antient system; since it is that alone to which we can recur to explain any seeming or real difficulties, that may arise in our present mode of tenure.

The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance The second species of tenure, or free-socage, consisted also of free and honourable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the [79] statute of Charles the second) almost every other species of tenure. And to this we are next to proceed.*

II. Socage, in it's most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our *Cited, 18 Johns. 185.

antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton;a if a man holds by a rent in money, without any escuage or serjeanty, "id tenementum dici potest socagium:" but if you add thereto any royal service, or escuage to any, the smallest, amount, "illud dici poterit feodum militare." So too the author of Fleta; b 66 ex donationibus, servitia militaria vel magnæ serjantiæ non continentibus, oritur nobis quoddam nomen generale, quod est socagium." Littleton also defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services; so that they be not services of chivalry, or knight-service. And therefore afterwards he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch, a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage; as to hold by fealty and 20 s. rent; or, by homage, fealty, and 20 s. rent; or, by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord's land for three days; or by fealty only without any other service for all these are tenures in socage.'

But socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain, but honourable: and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil, and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak; and this, both in the nature [80] of it's service, and the fruits and consequences, appertaining thereto, was always by much the most free and inde

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