fore given a name compounded out of both, and calls it villanum socagium.

Antient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the confessor, or William the conqueror; and so appear to have been by the great survey in the exchequer called domesday-book." The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies," continued for a long time pure and absolute villeins, dependent on the will of the lord: and those who have succeeded them in their tenures now differ from common ccpyholders in only a few points." Others were in great measure enfranchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain; as, to plough the king's land for so many days, to supply his court with such a quantity of provisions, and the like; all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them; as, to try the right of their property in a peculiar court of their own, called a court of antient demesne, by a peculiar process denominated a writ of right close: not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries, and the like."

[100] These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for, though their services were of a base m F. N. B. 14. 16.

n c. 66.

o F. N. B. 228.

p 4 Inst. 269.

q F. N. B. 11.

r Ibid. 14.

9 Ninth edition reads, "or other stated services."

9 Ninth edition reads "notwithstanding."

66

and villenous original, yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially for that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord's will, or to hold them against their own: et idco, says Bracton, dicuntur liberi." Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes to be "lands and tenements, which are not held by knightservice, nor by grand serjeanty, nor by petit, but by simple services, being as it were lands enfranchised by the king or his predecessors from their antient demesne." And the same name is also given them in Fleta." Hence Fitzherbert observes, that no lands are antient demesne, but lands holden in socage: that is, not in free and common socage, but in this amphibious, subordinate class, of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same original for want of distinguishing, with Bracton, between free-socage or socage of frank-tenure, and villein-socage or socage of antient demesne.

W

Lands holden by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before-mentioned, as also they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton and remaining to this day; viz. that they cannot be conveyed from man to man by the general common law conveyances of feoffment, and the

s Gilb. hist. of exch. 16 & 30.

t c. 66.

u l. 1. c. 8,

w N. B. 13,

8 Previously, "in this." 4 Previously, "held."

rest; but must pass by surrender to the lord or his steward, in the manner of common copyholds: [101] yet with this difference, that, in the surrender of these lands in antient demesne, it is not used to say "to hold at the will of the lord" in their copies, but only “to hold according to the custom of the manor."

Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon aera to the 12 Car. II. all lay tenures are now in effect reduced to two species; free tenure in common socage, and base tenure by copy of court roll.

I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoign.

V. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors forever. The service which they were bound to render for these lands was not certainly defined but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty (which is incident to all other services but this 2) because this divine service was of a higher and more exalted nature. This is the tenure, by which almost all the antient monasteries and religious houses held their lands; and by which the parochial clergy,

x Kitchin on Courts. 194.

y Litt. 133.

z Ibid. 131.

a Ibid. 135.

4 Previously, "these surrenders of lands in antient demesne of frank-tenure."

and very many ecclesiastical and eleemosynary foundations, hold them at this day; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines [102] of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions: just as the Druids, among the antient Britons, had omnium rerum immunitatem. And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it. Wherein it materially differs from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitor. All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I. none but the king can give lands to be holden by this tenure.s So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II. and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.*

b Bracton. l. 4. tr. 1. c. 28. 1.

c Seld. Jan. 1. 42.

d Cæsar de bell. Gall. l. 6. c. 13. ⚫e Litt. 136.

f Ibid. 137. g Ibid. 140.

*Cited, 9 N. Y. 334.

NOTES OF THE AMERICAN EDITOR TO CHAPTER VI.

(21) Our common lawyers in general derive it from soca, denoting, as they tell us, a plough, page 80.

Professor Christian has well defended the common derivation thus: "The learned judge has done Mr. Somner the honor of adopting his derivation of socage, which Mr. Somner himself boasts of as a new discovery with no little pride and exultation, as appears from the following sentence: Derivatio forte hæc nova et nostratibus adhuc inaudita, qui, à soc quatenus vel aratrum vel saltem vomerem signat, vocem derivare satagunt. Quam male tamen, eorum venid fusius a me jam monitum in tractatu de gavelkind, cap. 4. Somn. Gloss. Soca. But, notwithstanding this unheard-of derivation has found an able defender in the learned commentator, the editor 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 thẹ north of England, is the common name for a ploughshare to this day. The following description of socage is given by Bracton: Dici poterit socagium à socco, et inde tenentes sockmanni, eo quod deputati sunt, ut videtur, tantummodo ad culturam, et quorum custodia et maritagia ad propinquiores parentes jure sanguinis pertinebant. (Lib. 2, c. 35, fol. 77 b.) 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 antiquities, testifies that feudum ignobile, plebeium, vulgare, Gall. fief roturier nobili opponitur, et propriè dicimus, quod ignobilibus et rusticis competit, nullo feudali privilegio ornatum, nos soccagium dicimus. (Gloss. voc. Feod.) And soccagium he explains by Gall. roture, fief roturier. Heritages en roture. (Gloss. voc. Soc.)

"In a law of Edward the Confessor, the sokeman and villein are classed together: Manbote de villano et soke