CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES.

In this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements and hereditaments might have been holden; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.*

Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon and holden of some superior3 lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. [See note 18, page 133.] Thus fall the land in the kingdom is supposed to be holden, mediately or iminediately, of the king; who is stiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold [60] of A, and A of the king; or in other words, B held his lands immediately of A, but mediately of 3 Prior editions insert here, "or."

* Cited, 2 Duval, 222.

1

the king. The king therefore was stiled lord paramount; A was both tenant and lord, or was a mesne lord; and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit, of the land.a* In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for according to sir Edward Coke, in the law of England we have not properly allodium; which, we have seen is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.‡

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did. This distinction ran through all the different sorts of tenure; of which I now proceed to give an account.

I. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; a 2 Inst. 296.

b 1 Inst. 1.

c pag. 47.

d In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, etc., which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hist. xlii.

61.

5 First, second, and third editions read "is." Fourth edition omits.

Quoted, 6 N. Y. 498; 57 Am. Dec. 479.

+ Cited, 6 Conn. 500, to show that lands in that state are allodial.

in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were1 such as were not unbecoming the character of a soldier, or a freeman to perform; as to serve [61] under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies: as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author antient or modern ;* of which the following is the outline or abstract.! "Tenements are of two kinds, frank-tenement, and villenage. And, of franktenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only." And again,s" of villenages

e l. 4. tr. 1. c. 28.

e

f Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum, § 1.

g Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei præceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium; et hujusmodi villani socmanni villana faciunt servitia, sed certa et determinata, i 5.

some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in [62] chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, etc., that tenure was called liberum socagium, or free-socage. These were the only free holdings or tenements; the others were villenous or servile: as, thirdly, where the service was base in it's nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in it's nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage (from the certainty of it's services) but degraded by their baseness into the inferior title of villanum socagium, villein-socage.*

I. The first, most universal, and esteemed and most honourable species of tenure, was that by knight-service, called in Latin servitium militare, and in lawFrench chivalry, or service de chivaler, answering to the fief d' haubert of the Normans, which name is expressly given it by the mirrour. This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the genuine effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, h Spelm. Gloss. 219. i c. 2. § 27.

* Cited, 2 Duval, 222,

feodum militare; the value of which, not only in the reign of Edward II, but also of Henry II, and therefore probably at it's original in the reign of the conqueror, was stated at 20l. per annum; and a certain number of these knight's fees were requisite to make up a barony. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon: which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion." And there is reason to [63] apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system.

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi: was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and shew to be of foedal original.

k 9Stat. de milit. 1 Edw. II. Co. Litt. 69.

m

9 Ninth edition inserts, "Stat. Westm. I. c. 36."

1 Glanvil. l. 9. c. 4.

5 See writs for this purpose in Memorand. Scacch. 36 prefixed to Maynard's yearbook. Edw. II.5

n Litt. ? 95.

o Co. Litt. 9.

9 Ninth edition reads, "measure of which in 3 Edw. I. was estimated at twelve ploughland,k and its value (though it varied with the times,1 in the reigns of Edward I. and Edward II.m was stated at 20l. per annum." [k Pasch. 3 Edw. I. Co. Litt. 69. 12 Inst. 596.]