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this both in the *nature of its service, and the fruits and

consequences appertaining thereto, was always by much Etymology of the word socage, the most free and independent species of any. And there

fore 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 (1), 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 marriage, and

also Britton, who describes lands in socage tenure under the

relief, not demandable in te. nure in socage.

(1) Gavelk. 138.

(i) In like manner Skene in his exposition of the Scots' Law, title socage, tells us, that it is “any kind " of holding of lands quhen ony man

“is infeft freely," &c.

(k) Litt. s. 119.
(2) S. 118.
(m) Sect. 98, 120.

(5) In a subsequent page of this all socage tenures arose from the same chapter, Blackstone suggests that, as original, for want of distinguishing belands holden as of ancient demesne tween socage of frank tenure and soare a species of socage tenure, plainly cage of ancient demesne. founded upon predial services, or ser- (6) See ante, the notes to pp. 74, vices of the plough ; this probably 75. may have given cause to imagine, that

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 given by Bracton : dici poterit socato a MS. put into his hands by the gium a socco, et inde tenentes sockpublisher, and which he is informed manni, eo quod deputati sunt, ut viproceeded from the pen of a learned detur, tantummodo ad culturam, et and noble lord, for the remark quorum custodia et meritagia ad prothat Britton not only describes lands pinquiores parentes jure sanguinis perin socage tenure under the name tinebant. (C. 35.) This is not only of fraunk ferme, but seems also adopted by Littleton and Lord Coke, to think the name of sokemanry (Co. Litt. 86,) who says that socagium equally applicable to such lands; with

; est servitium socæ, which is also the this distinction only, that he considers interpretation given by Ducange, sokemanries as tenures immediately (voc. Soc.) but Sir Henry Spelman, of the crown, and fraunk ferme as a whose authority is high in feudal antenure of a mesne lord ; but he ex- tiquities, testifies that feudum ignopressly distinguishes sokemanries from bile, plebeium, vulgare (Gall. fief ancient demesne. See post, p. 100, roturier,) nobili opponitur ; et proprie our author's observations on this head. dicimus, quod ignobilibus et rusticis The peer alluded to was Lord Redes- competit, nullo feudali privilegio ornadale, who, since the first publication tum, nos soccagium dicimus. Gloss. of this note, is deceased.

voc. Feod. And soccagium he ex(8) Mr. Christian, in his note upon plains by Gall. roture, fief roturier. this passage says, he is “ obliged to Heretages en roture. (Ib. voc. Soc.) prefer the old derivation for the fol. “In a law of Edward the Confessor, lowing reasons :-Our most ancient the sokeman and villein are classed writers derive it from soca or soccus, together; Manbote de villano et sokea plough ; and sock, in some parts of man xii. oras, de liberis autem homi. the north of England, is the common nibus iii. marcas. (C. 12.) If we name for a plough-share to this day. consider the nature of socage tenure, The following description of socage is we shall see no reason why it should

66

Gavelkind, a

Socage tenures Taking this then to be the meaning of the word, it seems supposed to be relics of Saxon probable that the socage tenures were the relics of Saxon liberty.

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 species of socage 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. Socage includes 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. Grand serjean- We may remember that by the statute 12 Car. II. grand ty, and the ho. 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

all modes of holding free lands by certain and invariable rents and duties.

due thereon still reserved.

(0) Wright, 211.

have the pre-eminence of the appella. socage which refers the tenure to tion of a privileged possession.

services of the plough; and, upon “ It cannot be imagined that those the whole, it does appear to be the who never grasped a sword, nor better founded conjecture.-Ed.] buckled on a coat of mail, should en- (9) This remark, it is presumed, joy privileges and distinctions denied was not intended to apply to villein to the barons and milites, the com- socage, at all events. It would conpanions of their sovereign. The soke. vey no very lofty idea of Saxon liberty, manni were indebted only to their to illustrate its nature and extent by own meanness and insignificance for instances of those tenants who (as our their peculiar immunities. Hence, author tells us in p. 99,) continued, when the age of chivalry was gone, for a long time, pure and absolute and nothing but its slavery remained, villeins, dependent on the will of the by no uncommon vicissitude in the lord.” It is to the Normans, as our affairs of men, the sokemanni derived author seems reluctantly to admit in from their obscurity that indepen. the course of this chapter, that the dence and liberty, which they have amelioration of the state of villenage, transmitted to posterity, and which of every degree, pure or privileged,

now proud to inherit.” ought, in justice, to be ascribed. See [Wright (in his Law of Ten. 144,) post, p. 92. inclines to prefer that derivation of (10) See ante, the note to p. 73.

we

are

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

-the holding of 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 (9), 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 pardum 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.

serjeanty. Tenure in burgage is described by Glanvil (s), and is ex- Burzage tenure pressly said by Littleton (t), to be but tenure in socage: or lands in an

ancient borough and it is where the king or other person is lord of an ancient are held of some

lord, in common borough in which the tenements are held by a rent cer- socage, by a cer

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).

is, where houses

tain

tain (u).

(P) S. 159.
(9) S. 160.
(r) Cap. 27.

(s) Lib. 7, cap. 3.
(t) S. 162,
(u) Litt. s. 162, 163.

(11) See ante, the note to p. 73. liam Warren, in lieu of his ancient

(12) The MS. mentioned, ante, in estate in those places, were given him the last note to p. 80, cites the fol. to be held, the two first per certa serlowing passage from Spelman's Re- vitia, and the last per servitium 40d. mains, p. 190 : “ The portions of per annum.If this grant by two lands in Snitesham, Sharborne, and Normans was (as seems intended to Stainhowe, given to Edwin of Sharn- be intimated, though it is not quite borne, by William Pincerna and Wil- clear,) the creation of a burgage

VOL. II.

L

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 te*nants 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

were

tenure ; then, it follows, all burgage must be understood to mean, that they tenures at any rate are not to be re- might escheat for treason ; but they ferred to a Saxon origin. That they never subject to escheat for savour of feudality is obvious; but felony ; (see post, p. 84 ;) and as to that certainly does not decide the the general relaxation of the law as question ; for, feudal customs were in to this matter, see ante, p. 72, note. use among the Saxons, though the (13) Custom, if properly pleaded system was not brought into full ope. and proved, seems to be conclusive in ration till after the Norman conquest. all questions as to descent in borough (See ante, the note to p. 45.) Wright English. In Chapman v. Chapman, (in his Law of Ten. 145) says, (March, 54, pl. 82,) a custom re“though burgage and gavelkind have specting certain lands in borough many qualities different from common English, that, if there were an estate socage, they fall under the notion of

in fee in those lands, they should desocage tenures, which, though they scend to the younger son, according vary in point of service, succession, to the custom ; but if the estate was and the like, do nevertheless retain in tail, they should descend to the heir the nature of feuds ; inasmuch as at common law; was held to be good. they are held of a lord or superior by The customary descent may, in parfealty, and usually by some other cer- ticular places, be confined to estates tain service or acknowledgment; and in fee simple ; (Reeve v. Malster, W. inasmuch as they yield or pay relief, Jones, 363 ; and see Append. to Roand may escheat.” (See Vol. I. p. 74.) bins. on Gavelk. ;) but it may extend With respect to escheat, however, so to fee tail, or any other inheritance. far as concerns gavelkind lands, Wright Lord Coke says, (1 Inst. 100 b,)“ if

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