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had already shown the falsity of the interpretation put upon the term by prurient sciolists, in his treatise De Uxore Theotisca, Gottingen, 1748 (dedicated to George II. of England) ch. 1, pp. 1-35. See, also, ch. 5, on the Anglo-Saxon Bride. Many instances of the mercheta in its true form as a fine on the marriage of a female villein occur in Hazlett's Tenures, etc., Lond. 1874. The truth of this explanation of the origin of descent by Borough-English is clearly shown by the account given of a similar institution among the Frisians, who of all the continental tribes were, perhaps, the most nearly related to the AngloSaxon settlers of England. In the Edinburgh Review, volume 32, page 10, will be found a description by Sir Francis Palgrave of the customs of Norden and Bertum, two divisions of Friesland, where the youngest son inherits the father's theel or allotment of land. "But the elder sons are not left destitute. When they are old enough to keep house, a theel is assigned to each of them, be they ever so many, out or the common lands, to be held to them and their issue according to the customary tenure." (Quoted by Hearn, p. 226.)
Precisely the same custom is found in early Wales, "the youngest son retaining the original tyddyn or homestead, and others having tyddyns found for them on the family land." (Seebohm, p. 193, citing Ancient Laws of Wales, p. 741.) As to its geographical extent, see Elton and Seebohm, supra.
Since the foregoing note was written Mr. Maitland's most interesting publication of Bracton's Note Book has thrown new light on this and on many other questions of the early common law. The cases there made accessible to us in America, for the first time, must change many conclusions as to that law which seemed very reasonable previously. But they confirm the belief that Borough-English was a mark of villein tenure: not, perhaps, conclusive according to Mr. Maitland's
opinion, but at least very strong, as showing that land was not free enough to be inherited by the eldest son. (See pl. 1062, 1111, 1225, and other cases on same custom.)
(23) The tokens of their feudal origin will evidently appear, page 86.
I have avoided all discussion of merely historical statements for reasons already stated; but this question is of such fundamental importance that the student should not be left to accept Blackstone's conclusions without knowing the grounds on which modern thought differs from them.
Socage tenure, like all other forms of tenure, is of feudal origin (see note 18, ante, p. 133): but yet Blackstone's statement is misleading if it teaches that the relation between the farmers or tillers of the soil and their lords was formed on feudal models, and the example of other feudal states. In all the continental states the line between the feudal law and that of the commonalty, lehnrecht and landrecht, was so drawn as to exclude the tillers of the soil altogether, and confine the chivalry, the gentry, and their system, to those who were above all labor except that of military life. So far as feudalism is a system common to all European states, and distinct from primitive Germanic (or Roman) law, it is certain that these roturiers, ceorlas were excluded from it.
In England alone, by a remarkable exception, though not a solitary one, their lands came to be treated as fees, feuda, and subject to the same rules of law with those of the highest nobles. Instead of a lehnrecht for one class and landrecht for the other, such as we find in the Sachsenspiegel and other continental books, there was one law of real property for both classes. It is this more than aught else that has given to English law that permeating feudal character, which has been so often noticed by continental writers of late years, while com
paring it with their own systems, and at the same time it is this which has saved England from the immense gulf between the nobility and commons, that intensified all the evils of feudalism, and finally brought on the French Revolution of 1789. The restriction of the
peerage or "nobility as a rank to eldest sons; the union of knights of the shire and burgesses in the house of commons; even the persistent life and strength of the jury system can hardly be shown to have had more influence than this community of legal rights between the knight or baron and the yeoman or socman. In truth, no comparison or weighing of relative effects is of any value; all these phenomena are parts of a single movement, effects of a single cause.
But it would be misleading to think with Blackstone that this unity of military and socage tenures was a natural consequence of the feudal system. On the contrary it was a marked exception to the rule, and our history shows it. The new light thrown by recent research on the obscure period of the early Norman and Angevin reigns confirms the inferences from Glanvil and Bracton. In the earlier writer the line of demarcation between the knight and socman is plain. Primogeniture is the privilege of the former. Gavelkind is not mentioned because it is the rule as to socmen all over England where no local customs prevented.
In the latter, less than a century after, the socman and knight are not yet subject to the same rules of descent and of estate, as in Littleton, but they are so nearly alike that the gavelkind tenure of Kent remains a marked exception to the common law. We see that in the interval of -say two generations—the feudalism introduced by the Red King, and his brother and nephew, has been greatly modified, and compelled to admit the socman to share its privileges; that the line has been drawn not between the gentleman and the roturier, shutting out the farmer, but between the freeman and
the villein including the socmen in the privileged class; and that the franklin or socman has been admitted to feudal privileges, from which on the continent he was jealously excluded. The rule that all feuds which were paid for, or based on mercenary considerations, were improper was characteristic of continental systems, but never was fully accepted in England.
CHAPTER THE SEVENTH.
OF FREEHOLD ESTATES, OF INHERITANCE.
The next objects of our disquisitions are the nature and properties of estates. [See note 24, page 193.] * An estate in lands, tenements and hereditaments, signifies such interest as the tenant hath therein; † so that if a man grants all his estate in Dale to A and his heirs,2 everything that he can possibly grant shall pass thereby. It is called in Latin, status; it signifying the condition, or circumstance, in which the owner stands, with regard to his property. [See note 25, page 196.] And, to ascertain this with proper precision and accuracy, estates may be considered in a three-fold view: first, with regard to the quantity of interest which the tenant has in the tenement: secondly, with regard to the time at which that quantity of interest is to be enjoyed: and, thirdly, with regard to the number and connexions of the tenants.2
First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him or it is circumscribed within a certain number of years, months. or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives
a Co. Litt. 345.
2 Previously, "to another"; "and his heirs" in the errata.
- Quoted, 3 Peters, 131; 2 Cowen, 301; 5 Denio, 40; 12 N. Y. 527; 1 Munf. 544; 6 Har. & J. 208.
* Quoted, 3 Peters, 131; 41 N. Y. 93, 94; 2 Tenn. Ch. 610.
? Cited, 2 N. H. 151. Estate sometimes signifies the interest in the premises and sometimes the premises themselves. (2 Johns. 260; 3 Am Dec. 419.)