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Etymology of

this both in the *nature of its service, and the fruits and consequences appertaining thereto, was always by much the word socage. the most free and independent species of any. And therefore I cannot but assent to Mr. Somner's etymology of the word (h); 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 (i). 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 (5): for that in ancient 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 its original, it still retains the name of socage or plough-service (k). But this by no means agrees with what Littleton himself tells us (7), 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 (6), 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 (m). 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 Homage, ward, calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the

marriage, and relief, not demandable in tenure in socage.

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name of fraunke ferme (n) (7), tells us, that they are "lands "and tenements, whereof the nature of the fee is changed "by feoffment 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 *original, it is hard to account for the very great im- [ *81 ] munities 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 (8).

(n) C. 66.

(7) The present editor is indebted to a MS. put into his hands by the publisher, and which he is informed proceeded from the pen of a learned and noble lord, for the remark that Britton not only describes lands in socage tenure under the name of fraunk ferme, but seems also to think the name of sokemanry equally applicable to such lands; with this distinction only, that he considers sokemanries as tenures immediately of the crown, and fraunk ferme as a tenure of a mesne lord; but he expressly distinguishes sokemanries from ancient demesne. See post, p. 100, our author's observations on this head. The peer alluded to was Lord Redesdale, who, since the first publication of this note, is deceased.

(8) Mr. Christian, in his note upon this passage says, he 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 plough-share to this day. The following description of socage is

given by Bracton : dici poterit soca-
gium a socco, et inde tenentes sock-
manni, eo quod deputati sunt, ut vi-
detur, tantummodo ad culturam, et
quorum custodia et meritagia ad pro-
pinquiores parentes jure sanguinis per-
tinebant. (C. 35.) This is not only
adopted by Littleton and Lord Coke,
(Co. Litt. 86,) who says that socagium
est servitium soca, which is also the
interpretation given by Ducange,
(voc. Soc,) but Sir Henry Spelman,
whose authority is high in feudal an-
tiquities, testifies that feudum igno-
bile, plebeium, vulgare (Gall. fief
roturier,) nobili opponitur ; et proprie
dicimus, quod ignobilibus et rusticis
competit, nullo feudali privilegio orna-
tum, nos soccagium dicimus. Gloss.
voc. Feod. And soccagium he ex-
plains by Gall. roture, fief roturier.
Heretages en roture. (Ib. 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 homi-
nibus iii. marcas. (C. 12.) If we
consider the nature of socage tenure,
we shall see no reason why it should

Socage tenures

supposed to be

liberty.

Gavelkind, a species of socage

Taking this then to be the meaning of the word, it seems relics of Saxon probable that the socage tenures were the relics of Saxon liberty (9); 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 acknowledged to be a species of socage tenure (o); 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.

tenure.

Socage includes all modes of holding free

lands by certain and invariable rents and duties.

Grand serjeanty, and the ho

As therefore the grand criterion and distinguishing mark of this species of tenure are the having its 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. grand norary services serjeanty is not itself totally abolished (10), but only the slavish appendages belonging to it: for the honorary services, (such as carrying the king's sword or banner, officia

due thereon still reserved.

(0) Wright, 211.

have the pre-eminence of the appella-
tion of a privileged possession.

"It cannot be imagined that those
who never grasped a sword, nor
buckled on a coat of mail, should en-
joy privileges and distinctions denied
to the barons and milites, the com-
panions of their sovereign. The soke-
manni were indebted only to their
own meanness and insignificance for
their peculiar immunities. Hence,
when the age of chivalry was gone,
and nothing but its slavery remained,
by no uncommon vicissitude in the
affairs of men, the sokemanni derived
from their obscurity that indepen-
dence and liberty, which they have
transmitted to posterity, and which
we are now proud to inherit."-
[Wright (in his Law of Ten. 144,)
inclines to prefer that derivation of

socage which refers the tenure to services of the plough; and, upon the whole, it does appear to be the better founded conjecture.-ED.]

(9) This remark, it is presumed, was not intended to apply to villein socage, at all events. It would convey no very lofty idea of Saxon liberty, to illustrate its nature and extent by instances of those tenants who (as our author tells us in p. 99,) " continued, for a long time, pure and absolute villeins, dependent on the will of the lord." It is to the Normans, as our author seems reluctantly to admit in the course of this chapter, that the amelioration of the state of villenage, of every degree, pure or privileged, ought, in justice, to be ascribed. See post, p. 92.

(10) See ante, the note to p. 73.

-the holding of

by the annual

ting as his butler, carver, &c. 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 per son. Petit serjeanty, as defined by [ *82 ] Littleton (p), consists in holding lands of the king by the Petit serjeanty service of rendering to him annually some small implement lands of the king of war, as a bow, a sword, a lance, an arrow, or the like. render of some implement of This, he says (q), is but socage in effect: for it is no per- war. sonal 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 (11). And magna carta respected it in this light, when it enacted (r), that no wardship of the lands or body should be claimed by No wardship in the king in virtue of a tenure by petit serjeanty.

tenures by petit serjeanty.

is, where houses

ancient borough

lord, in common

tain and esta

Tenure in burgage is described by Glanvil (s), and is ex- Burgage tenure pressly said by Littleton (t), to be but tenure in socage: or lands in an and it is where the king or other person is lord of an ancient are held of some borough in which the tenements are held by a rent cer- socage, by a certain (u). It is indeed only a kind of town socage; as com- blished rent. mon 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 site of houses, in an ancient borough, are held of some lord in common socage, by a certain established rent (12).

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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 [ *83 ] been held by plough-service; since the 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 ancient burgage; the principal and most remarkable of Borough English which is that called Borough English (13); so named in

where the

tenure; then, it follows, all burgage
tenures at any rate are not to be re-
ferred to a Saxon origin. That they
savour of feudality is obvious; but
that certainly does not decide the
question; for, feudal customs were in
use among the Saxons, though the
system was not brought into full ope.
ration till after the Norman conquest.
(See ante, the note to p. 45.) Wright
(in his Law of Ten. 145) says,

66

though burgage and gavelkind have many qualities different from common socage, they fall under the notion of socage tenures, which, though they vary in point of service, succession, and the like, do nevertheless retain the nature of feuds; inasmuch as they are held of a lord or superior by fealty, and usually by some other certain service or acknowledgment; and inasmuch as they yield or pay relief, and may escheat." (See Vol. I. p. 74.) With respect to escheat, however, so far as concerns gavelkind lands, Wright

must be understood to mean, that they might escheat for treason; but they were never subject to escheat for felony; (see post, p. 84;) and as to the general relaxation of the law as to this matter, see ante, p. 72, note.

(13) Custom, if properly pleaded and proved, seems to be conclusive in all questions as to descent in borough English. In Chapman v. Chapman, (March, 54, pl. 82,) a custom respecting certain lands in borough English, that, if there were an estate in fee in those lands, they should descend to the younger son, according to the custom; but if the estate was in tail, they should descend to the heir at common law; was held to be good. The customary descent may, in particular places, be confined to estates in fee simple; (Reeve v. Malster, W. Jones, 363; and see Append. to Robins. on Gavelk. ;) but it may extend to fee tail, or any other inheritance. Lord Coke says, (1 Inst. 100 b,) "if

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