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rest; but must pass by surrender to the lord or his steward, in the manner of common copyholds: [101] yet with this difference, that, in the surrender of these lands in antient demesne, it is not used to say "to hold at the will of the lord" in their copies, but only "to hold according to the custom of the manor."

Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon aera to the 12 Car. II. all lay tenures are now in effect reduced to two species; free tenure in common socage, and base tenure by copy of court roll.

I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoign.

V. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors forever. The service which they were bound to render for these lands was not certainly defined but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty (which is incident to all other services but this 2) because this divine service was of a higher and more exalted nature. This is the tenure, by which almost all the antient monasteries and religious houses held their lands; and by which the parochial clergy,

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4 Previously, "these surrenders of lands in antient demesne of frank-tenure."

and very many ecclesiastical and eleemosynary foundations, hold them at this day; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines [102] of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions: just as the Druids, among the antient Britons, had omnium rerum immunitatem. And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it. Wherein it materially differs from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitor. All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I. none but the king can give lands to be holden by this tenure.g So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II. and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.*


b Bracton. l. 4. tr. 1. c. 28. ? 1.

c Seld. Jan. 1. 42.

d Cæsar de bell. Gall. l. 6. c. 13. e Litt. 136.

f Ibid. 137.

g Ibid. 140.

*Cited, 9 N. Y. 334.


(21) Our common lawyers in general derive it from soca, denoting, as they tell us, a plough, page 80.

Professor Christian has well defended the common derivation thus: "The learned judge has done Mr. Somner the honor of adopting his derivation of socage, which Mr. Somner himself boasts of as a new discovery with no little pride and exultation, as appears from the following sentence: Derivatio forte hæc nova et nostratibus adhuc inaudita, qui, à soc quatenus vel aratrum vel saltem vomerem signat, vocem derivare satagunt. Quam male tamen, eorum venid fusius a me jam monitum in tractatu de gavelkind, cap. 4. Somn. Gloss. Soca. But, notwithstanding this unheard-of derivation has found an able defender in the learned commentator, the editor is obliged to prefer the old derivation, for the following reasons. Our most ancient writers derive it from soca or soccus, a plough; and sock, in some parts of the north of England, is the common name for a ploughshare to this day. The following description of socage is given by Bracton: Dici poterit socagium à socco, et inde tenentes sockmanni, eo quod deputati sunt, ut videtur, tantummodo ad culturam, et quorum custodia et maritagia ad propinquiores parentes jure sanguinis pertinebant. (Lib. 2, c. 35, fol. 77 b.) This is not only adopted by Littleton and Lord Coke (Co. Litt. 86), who says that socagium est servitium socce, which is also the interpretation given by Ducange (voc. Soc.); but Sir Henry Spelman, whose authority is high in feudal antiquities, testifies that feudum ignobile, plebeium, vulgare, Gall. fief roturier nobili opponitur, et proprie dicimus, quod ignobilibus et rusticis competit, nullo feudali privilegio ornatum, nos soccagium dicimus. (Gloss. voc. Feod.) And soccagium he explains by Gall. roture, fief roturier. Heritages en roture. (Gloss. voc. Soc.)

"In a law of Edward the Confessor, the sokeman and villein are classed together: Manbote de villano et soke

man xii oras, de liberis autem hominibus iii marcas. (C. 12.) If we consider the nature of socage tenure, we shall see no reason why it should have the pre-eminence of the appellation of a privileged possession.

"The services of military tenure were not left, as suggested by the learned judge in the preceding page, to the arbitrary calls of the lord: for, though it was uncertain when the king would go to war, yet the tenant was certain that he could only be compelled to serve forty days in the year: the service, therefore, was as certain in its extent as that of socage; and the sokeman likewise could not know beforehand when he would be I called upon to plough the land, or to perform other servile offices, for the lord. The milites are everywhere distinguished from the sokemanni; and the wisdom of the feudal polity appears in no view more strongly than in this, viz., that, whilst it secured a powerful army of warriors, it was not improvident of the culture of the lands and the domestic concerns of the country. But honor was the invigorating principle of that system; and it cannot be imagined that those who never grasped a sword nor buckled on a coat of mail should enjoy privileges and distinctions denied to the barons and milites, the companions of their sovereign. The sokemanni were indebted only to their own meanness and insignificance for their peculiar immunities. The king or lord had the profits of the military tenant's estate during his nonage, in order to retain a substitute with accouterments and in a state suitable to the condition of his tenant: at the same time, he took care that the minor was instructed in the martial accomplishments of the age. But they disdained to superintend the education of the sokemanni; and, as they had nothing to apprehend from their opposition and could expect no accession of strength from their connections, their marriages therefore were an object of indifference to them."

To these reasons of Christian's it may be added that in defining socage as "a free or privileged tenure," Blackstone must have overlooked the fact that the term was used alike of free and villein socage, as he has stated a few lines previously. Indeed even free-socage was originally anything but a privileged tenure, except as compared with villenage.

(22) Borough-English, page 83.

"Various explanations, all more or less fantastic, of this singular custom, may be found in Blackstone. Blackstone himself seems, although he was not acquainted with all the facts, to have perceived its true nature. As the elder brothers grew up, they were initiated into the community. They thereby in the words of Tacitus (Germania, c. 13), ceased to be pars domus and became pars reipublicæ. In this capacity they acquired a right to an allotment of the public land. Thus the youngest remained with his father, and in his mund or hand. He was the person who was to carry on the paternal household, and he was the heir of the family. Of him it might be literally said: 'Son, thou art ever with me, and all that I have is thine.'" (W. E. Hearn, The Aryan Household, p. 83. To same effect, Robertson, Early Kings of Scotland, ii, 269, note; and more fully, Elton, Origins of English History, pp. 188, 189; Seebohm Eng. Vill. Com. pp. 352, 353.) One of the fantastic reasons to which Blackstone has given undue weight by even naming it, is that derived from a misconstruction of the ancient term mercheta. This was merely one of many terms designating the fine paid by a tenant for leave to give his daughter in marriage, a leave which involved some pecuniary loss to the lord, like that from any other departure of a serviceable tenant, and for which, on feudal principles, he was entitled to ask compensation, without the least suggestion of an immoral custom. Grupen

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