was uncertain, upon emergen Since, therefore, escuage differed from knight-service in which render nothing, but as a compensation differs from actual service, and dependent knight-service is frequently confounded with it. And thus cies. Littleton (2) must be understood, when he tells us, that tenant by homage, fealty, and escuage, was tenant by knightservice: that is, that this tenure (being subservient to the military policy of the nation) was respected (a) as a tenure in chivalry (6). But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure, instead of knight-service, would have then been of another kind, called socage (c), of which we shall speak in the next chapter. the degenerating into escuage; cident thereto. For the present I have only to observe, that by the de- Consequences of generating of knight-service, or personal military duty, into of knight-service escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of *tenures now tended to nothing else but a wretched [76 ] means of raising money to pay an army of occasional mercenaries. In the mean time the families of all our nobility and burthens inand gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable in defect of personal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from Occasional and partial redress of these grievances, and their the 12 Car. II. c. 24. his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith (d) very feelingly complains, "when he came to his own, after he was out of wardship, "his woods decayed, houses fallen down, stock wasted and "gone, lands let forth and ploughed to be barren," to reduce him still farther, he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a license of alienation. A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of its freedom. final removal by Palliatives were from time to time applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of King James I. consented (e), in consideration of a proper equivalent, to abolish them all; [ *77] though the plan *proceeded not to effect; in like manner as he had formed a scheme, and begun to put it in execution, for removing the feodal grievance of heritable jurisdictions in Scotland (f), which has since been pursued and effected by the statute 20 Geo. II. c. 43 (g). King James's plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent was to have been settled and inseparably annexed to the crown and assured to the inferior lords, payable out of every knight's fee within their respective seignories. An expedient seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military (d) Commonw. 1. 3, c. 5. (e) 4 Inst. 202. (f) Dalrymp. of Feuds, 292. (g) By another statute of the same year (20 Geo. II. c. 50,) the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland, tenures, with all their heavy appendages (having during the usurpation been discontinued) were destroyed at one blow by the statute 12 Car. II. c. 24, which enacts, "that the "court of wards and liveries, and all wardships, liveries, "primer seisins, and ousterlemains, values and forfeitures "of marriages, by reason of any tenure of the king or others, "be totally taken away. And that all fines for alienations, "tenures by homage, knight-service, and escuage, and also "aids for marrying the daughter or knighting the son, and "all tenures of the king in capite, be likewise taken "away (28). And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeanty." A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of King Charles extirpated the whole, and demolished both root and branches. 66 66 (28) It would be ludicrous to undervalue this statute because it appears to have been ill drawn ; though Mr. Hargrave, (in his note to Co. Litt. 108 b,) says, they who attribute the framing of it to Chief Justice Hale, act very injuriously to the memory of that shining ornament of his profession. The grand object of the act, no doubt, was to discharge lands held in capite of the oppressive incidents of that tenure; not to declare that no 78 CHAPTER VI. OF THE MODERN ENGLISH TENURES. socage and the honorary serjeanty, and tenure by copy of court-roll reserved. The tenures of ALTHOUGH, by the means that were mentioned in the prefrankalmoign, ceding chapter, the oppressive or military part of the feodal services of grand 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 its 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 ancient system (1); 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. In military tenure, the services were free but uncertain: in free-socage, certain. The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, and honourable, 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 statute of Charles the second) almost every other species of tenure. And to this we are next to proceed. (1) See ante, pp. 44-58, and the notes thereto. 66 general significa by some certain service: II. Socage, in its most general and extensive significa- II. Socage, in its tion, seems to denote a tenure by any certain and deter- tion, is a tenure minate service. And in this sense it is by our ancient and determinate writers constantly put in opposition to chivalry, or knightservice, where the render was precarious and uncertain. Thus Bracton (a) (2); 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); "ex donationibus, servitia militaria vel magnae serjantiae non conti"nentibus, oritur nobis quoddam nomen generale, quod est soca'gium." Littleton also(c) 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 (d) he tells us, that whatsoever is not tenure in chivalry is tenure in socage; in like manner as it is defined by Finch (e), 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 20s. rent; or, by homage, fealty (3), and 20s. 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 (f). But socage, as was hinted in the last chapter, is of two and is of two sorts: free-socage, where the services are not only certain, socage, where but honourable; and villein-socage, where the services certain and though certain, are of a baser nature. Such as hold by the villein-socage, former tenure are called in Glanvil (g), and other subse- certain, they are quent authors, by the name of liberi sokemanni (4), or tenants in free-socage. Of this tenure we are first to speak; and (a) L. 2, c. 16, s. 9. (b) L. 3, c. 14, s. 9. (c) S. 117. (d) S. 118. (2) See ante, pp. 74, 75, and the notes thereto. (3) See Vol. III. p. 230. (4) Our author, towards the close of this chapter, (p. 100,) cites the authority of both Bracton and Brit : (e) L. 147. (f) Litt. s. 117, 118, 119. ton, to shew that tenants in ancient kinds-free the services are honourable where, though of a baser nature. |
