Sivut kuvina

pendent species of any. And therefore I cannot but assent to Mr. Somner's etymology of the word: who derives it from the Saxon appellation, soc, which signifies liberty or privilege, and, being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure. This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word denoting (as they tell us) a plough [see note 21, page 166]: for that in antient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of it's original, it still retains the name of socage or plough-service.k But this by no means agrees with what Littleton himself tells us,1 that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original (as escuage itself, which while it remained uncertain, was equivalent to knight-service), the instant they were reduced to a certainty changed both their name and nature, and were called socage. It was the certainty therefore that denominated it a socage tenure; and nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes socage tenure under the name of fraunke ferme," tells us, that they are "lands and

[blocks in formation]

i In like manner Skene in his exposition of the Scots' law, title socage, tells us that it is "ane kind of holding of lands, quhen ony man is infeft freely," etc.

[blocks in formation]

tenements, whereof the nature of the fee is changed by fcoffment out of chivalry for certain yearly services, and in respect whereof neither homage, ward, marriage, nor relief can be demanded." Which leads us also to another observation, that if socage tenures were of such base and servile [81] original, it is hard to account for the very great immunities which the tenants of them always enjoyed; so highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I. and Charles II., a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service to fraunke ferme or tenure by socage. We may therefore, I think, fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free-socage, against the authority even of Littleton himself.

Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty; retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but at the same time more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowleged to be a species of socage tenure; the preservation whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and common socage.*

As therefore the grand criterion and distinguishing mark of these species of tenure are the having it's renders or services ascertained, it will include under it all other methods of holding free lands by certain and invariable rents and duties: and, in particular, petit serjeanty, tenure in burgage, and gavelkind.

We may remember, that by the statute 12 Car. II. o Wright. 211. *Cited, 35 Miss. 22.

grand serjeanty is not itself totally abolished, but only the slavish appendages belonging to it; for the honorary services (such as carrying the king's sword or banner, officiating as his butler, carver, etc. at the coronation) are still reserved. Now petit serjeanty bears a great resemblance to grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. [82] Petit serjeanty, as defined by Littleton, consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says,q is but socage in effect; for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plough, but in all respects liberum et commune socagium; only being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit serjeanty. And magna carta respects it in this light, when it enacts,r that no wardship of the lands or body shall be claimed by the king in virtue of a tenure by petit serjeanty.

Tenure in burgage is described by Glanvil, and is expressly said by Littleton, to be but tenure in socage: and it is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain." It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually distinguished from other towns by the right of sending members to parliament; and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage therefore, or burgage tenure, is where houses, or lands which were formerly the scite

g â 160.
r cap. 27.


s lib. 7. cap. 3.

t? 162.

u Litt. 162, 163.

of houses, in an antient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy, which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in socage, and yet could not possibly ever have been held by plough-service; since the [83] tenants must have been citizens or burghers, the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plough, or was able to use one, if he had it. The free-socage therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting many of these tenements so held in antient burgage: the principal and most remarkable of which is that called Borough- English [see note 22, page 168], so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil," and by Littleton; viz. that the youngest son and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littletony gives this reason; because the younger son by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors have indeed given a much stranger reason for this custom, as

[blocks in formation]

if the lord of the fee had antiently a right to break the seventh commandment9 with his tenant's wife on her wedding-night; and that therefore the tenement descended not to the eldest, but the youngest, son; who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland (under the name of mercheta or marcheta), till abolished by Malcolm III. And perhaps a more rational account than either may be stretched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle; and go to seek a new habitation. The youngest son therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one became [84] his heir. So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. Other special customs there are in different burgage tenure; as that, in some, the wife shall be endowed of all her husband's tenements, and not of the third part only, as at the common law: and that, in others, a man might dispose of his tenements by will, which, in general, was not permitted after the conquest till the reign of Henry the eighth; though in

a Seld. tit. of hon. 2. 1. 47. Reg. Mag. l. 4. c. 31.

b Pater cunctos filios adultos a se pellebat, præter unum quem hæredem sui juris relinquebat. (Walsingh. Upodigm. Neustr. c. 1.)

[blocks in formation]
« EdellinenJatka »