the Saxon times it was allowable. A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.

The nature of the tenure in gavelkind affords us a still stronger argument. It is universally known what struggles the Kentishmen made to preserve their antient liberties, and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind (though it was and is to be found in some other parts of the kingdom') we may fairly conclude that this was a part of those liberties; agreeably to Mr. Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realm. The distinguishing properties of this tenure are various: some of the principal are these; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen. 2. The estate does not escheat in case of an attainder and execution for felony; their maxim being, "the father to the bough, the son to the plough."i 3. In most places he had a power of devising lands by will, before the statute for that purpose was made. 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together; which was indeed antiently the most [85] usual course of descent all over England, though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a e Wright. 172.

m

f Stat. 32 Hen. VIII. c. 29. Kitch. of courts, 200.

g In toto regno, ante ducis adventum, frequens et usitata fuit: postea cæteris adempta, sed privatis quorundam locorum consuetudinibus alibi postea regerminans: Cantianis solum integra et inviolata remansit. (Analect. 1. 2. c. 7.)

species of a socage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in it's nature certain." Wherefore, by a charter of king John, Hubert archbishop of Canterbury was authorized to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight's-service; and by statute 31 Hen. VIII. c. 3. for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now the immunities. which the tenants in gavelkind enjoyed were such, as we cannot conceive should be conferred upon mere ploughmen and peasants: from all which I think it. sufficiently clear, that tenures in free-socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.*

Having thus distributed and distinguished the sev-. eral species of tenure in frce-socage, I procced next to shew that this also partakes very strongly of the feodal` nature. Which may probably arise from it's antient Saxon original; since (as was before observed 1) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state bcfore the conquest as after: that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the coneral fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, n Wright. 211. p pag. 48.

o Spelm. cod. vet. leg. 355.

2 BLACKST.-13.

*Cited, 14 Allen, 551; 16 Wend. 631.

nor their value by any means large: till by successive [86] charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton, their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures.

However this may be, the tokens of their feodal original will evidently appear [see note 23, page 170] from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along.

1. In the first place, then, both were held of superior lords; of the king as lord paramount, and sometimes9 of a subject or mesne lord between the king and the tenant.*

2. Both were subject to the feodal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate (though perhaps nothing more than bare fealty), and so continues to this day.

3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between tho lord and tenant. Which oath of fealty usually draws after it suit to the lord's court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron; if it be only for the reason given by Littleton,s that if it be neglected, it will by long continuance of

q c. 66.

r Litt. 117. 131.

s 130.

Ninth edition reads, "one of the king, either immediately, or as lord paramount, and (in the latter case).

*Cited, 18 Johns. 186.

time grow out of memory (as doubtless it frequently 9 has) whether the land be holden of the lord or not; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingences.t 4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daughter:" [87] which were fixed by the statuto Westm. 1. c. 36. at 20 s. for every 201. per annum so held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12 Car. II.

5. Relief is due upon socage tenure, as well as upon tenure in chivalry: but the manner of taking it is very different. The relief on a knight's fee was 51. or one quarter of the supposed value of the land; but a socage relief is one year's rent or render, payable by the tenant to the lord, be the same either great or small: and therefore Bracton will not allow this to be properly a relief, but quædam præstatio loco relevii in recognitionem domini. So too the statute 28 Edw. I. c. 1. declares, that a free sokeman shall give no relief, but shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved above measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age: but in socage they were due, even though the heir was under age, because the lord has no wardship over him. The statute of Charles II. reserves the reliefs incident to socage tenures; and therefore, wherever lands in fee

t Eo maxime præstandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur. (Corvin. jus feod. l. 2. t. 7.)

u Co. Litt. 91.

w Litt. 126.

x l. 2. c. 37. 8.

y Litt. 127.

9 Ninth edition reads, "hath done."

simple are holden by a rent, relief is still due of common right upon the death of a tenant.

6. Primer seisin was incident to the king's socage tenants in capite, as well as to those by knight-service." But tenancy in capite as well as primer seisins, are also, among the other feodal burthens, entirely abolished by the statute.

7. Wardship is also incident to tenure in socage; but of a nature very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor never did, belong to the lord of the fee; because, in this tenure no military or [88] other personal service being required, there was no occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant: but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance by no possibility can descend; as was fully explained, together with the reasons for it, in the former book of these commentaries. At fourteen this wardship in socage ceases; and the heir may oust the guardian, and call him to account for the rents and profits: for at this age the law supposes him capable of choosing a guardian for himself.* It was in this particular, of wardship, as also in that of marriage, and in the certainty of the render or service, that the socage tenures

z 3 Lev. 145.

a Co. Litt. 77.

b Vol. I. page 461.

c Litt. 123. Co. Litt. 89.

9 Ninth edition omits.

8 First, second, and third editions read, "shall not." Fourth, seventh, and ninth editions read, "ever" for never.

4 Previously, "is."

*Cited, 1 Grant Cas. 56.