like the slaves of a plantation, and according to the assizes of Jerusalem, the matron of sixty years might refuse a husband without incurring the penalties of a contempt." The abuses of the feudal connexion took place equally in other parts of Europe, but the spirit of rapacity met with a more steady and determined resistance, by the English of the Saxon blood, than by any other people. This resistance produced the memorable national compact of Magna Charta, which corrected the feudal policy, and checked many grievances of the feudal tenures; and the intelligence and intrepidity of the House of Commons, subsequent to the era of the great charter, enabled the nation to struggle with better success than any other people against the enormous oppression of the system. A feoffiment in fee, did not originally pass an estate in the sense we now use it. It was only an estate to be enjoyed as a benefice, without the power of alienation, in prejudice of the heir or the lord; and the heir took it as an usufructuary interest, and in default of heirs the tenure became extinct, and the land reverted to the lord. The heir took by purchase, and independent of the ancestor, who could not alien, nor could the lord alien the seignory without the consent of the tenant. This restraint on alienation was a violent and unnatural state of things, and contrary to the nature and value of property, and the inherent and universal love of independence. It arose partly from favour to the heir, and partly from favour to the lord, and the genius of the feudal system was originally so strong in favour of restraint upon alienation, that by a general ordinance mentioned in the Book of Fiefs, the hand of him who knowingly wrote a deed of alienation, was directed to be struck off. The first step taken to mitigate the severe restriction upon a Sullivan's Lectures, lec. 13. Harg. n. 65 to lib. 2. Co. Litt. Q. Review, No. 77, p. 59. b Lib. 2, tit. 55. alienation of the feudal estate, was the power of alienation by the tenant with leave of the lord, and this tended to leave the heir dependent upon the ancestor. The right of alienation was first applied to the lands acquired by the tenant by purchase; and Glanville says," that in his time, it was, generally speaking, lawful for a person to alien a reasonable part of his land by inheritance, or purchase, and if he had no heirs of his body, he might alien the whole of his purchased lands. If, however, he had a son and heir, he could not disinherit him, and alien the whole even of his purchased lands. The restraint was almost absolute when the tenant was in by descent, and quite relaxed when he was in by purchase; and there was no distinction on this subject, whether the fief was held by a military or socage tenure. The free alienation of land commenced with burgage tenures, and was dictated by the genius of commerce. The next variation in favour of the tenant was the right to alien without the lord's license, when the grant was to him and his heirs and assigns, and the general right of alienation seems to have been greatly increased, and extensively established, in the age of Bracton. The tenant gained successively the power of alienation, if the grant was only to him and his heirs; and the power to charge, or encumber the land. The lord's right was still further affected by acts of Parliament, and judicial determinations, for the fee was made subject by elegit to the tenant's debts, and also by process under the statutes merchant and staple. It was further, and as early as the reign of Edw. III., made subject to the dower of the wife. Subinfeudation was also an indirect mode of transferring the fief, a B. 7, ch. 1. b Dalrymple's Essay on Feudal Property, ch. 3, sec. 1. c Bracton, b. 2, c. 5, sec. 4 and 7; ch. 6, fo. 18, b.; ch. 27, sec. 1. d West. II. 13 Edw. I. ch. 18; also 13 Edw. I. De Mercatoribus, and 27 Edw. III. e Bro. tit. Dower, pl. 64. and resorted to as an artifice to elude the feudal restraint upon alienation; and by the time the statute of Quia Emptores, 18 Edw. I. was enacted, prohibiting subinfeudations to all but the king's vassals, this feudal restraint had essentially vanished, and the policy of that statute was to recall the stability and perpetuity of landed estates." Successive improvements in the character of the estate, and the condition of the tenant, greatly relieved the nation from some of the prominent evils of the feudal investiture. But the odious badges of the tenure still existed; and Lord Bacon, in his speech at a conference before the Lords, on behalf of the Commons, in the reign of James I., strongly recommended, by way of composition with the crown, the abolition of wards and tenures, as having become troublesome and useless. At length, upon the restoration of Charles II., a Sir Thomas Clarke, the Master of the Rolls, in Burgess v. Wheate, 1 Eden's Rep. 191, has given a short, but clear view, of the progress of the feudal estate in its recovery from the feudal restraint of nonalienation. See also Mr. Butler's note 77 to lib. 3. Co. Litt. V. No. 6, 7, 8, 9, 10, and 11; and see especially the able and learned history of the alienation of land, in Dalrymple's Essay on Feudal Property, ch. 3. b Lord Bacon's Works, vol. iii. 359. It appears, by the directions given by order of James I. to the Master of the Wards, that the king, while he sought to restrain the abuses, set a high value on his prerogative rights of wardship and marriage. There was a yearly inquisition directed to be taken by persons of credit, for each county, of the persons and lands in wardship, to be certified and returned into the exchequer; and though Lord Bacon declared that the policy, spirit, and utility of the military tenures was entirely gone, yet it appears that the people were grievously oppressed by "feudaries, and other inferior ministers of like nature, by colour of the king's tenures;" and the royal instructions were, that "the vexations of escheators and feudaries be repressed, which upon no substantial ground of record vex the country with inquisitions and other extortions; and that the Master of Wards take special care to receive private information from gentlemen of quality and conscience in every shire, touching these abuses." So late as the reign of Charles I., the Earl of Warwick, as grantee of tenure by knight service, with all its grievous incidents, was by statute abolished, and the tenure of land was, for the most part, turned into free and common socage, and every thing oppressive in that tenure was also abolished. The statute of 12 Charles II. essentially put an end to the feudal system in England, although some fictions, (and they are scarcely any thing more,) founded on the ancient feudal relation and dependence, are still retained in the socage tenures. (3.) Of the doctrine of tenure in these United States. Socage tenure denotes lands held by a fixed and determinate service, which is not military, nor in the power of the lord to vary at his pleasure. It was the certainty, and pacific nature of the service, duty, or render, which made this species of tenure such a safeguard against the wanton exactions of the feudal lords, and rendered it of such inestimable value in the view of the ancient English. It was deemed by them a point of the utmost importance, to change their tenures by knight service into tenure by socage. Socage tenures are, however, of feudal extraction, and retain some of the leading properties of feuds, as has been shown by Sir Martin Wright, in his learned treatise on tenures; and which work has been freely followed by Sir William Blackstone, in his perspicuous and elegant, and we may truly add, masterly disquisitions on the feudal law. Most of the feudal incidents and consequences of socage tenure, were expressly abolished in New York, by the act of 1787; and they were wholly and entirely annihilated by the New-York Revised Statutes, as has been already mentioned. They are also abolished by statute in Connecticut; and they have never existed, or they the wardship of an heiress, extorted £10,000 sterling for his consent to a marriage on every account desirable. Lord Bacon's Works, vol. iii. 364-368. Sullivan's Lectures on Feudal Law, lec. 13. a P. 141 to 144. b Supra, p. 378. have ceased to exist, in all essential respects, in every other state. The only feudal fictions and services which can be presumed to be retained in any part of the United States, consist of the feudal principle, that the lands are held of some superior or lord, to whom the obligation of fealty, and to pay a determinate rent, are due. The act of New-York, in 1787, provided, that the socage lands were not to be deemed discharged of "any rents certain, or other services incident, or belonging to tenure in common socage, due to the people of this state, or any mean lord, or other person, or the fealty or distresses incident thereunto." The Revised Statutes also provide, that "the abolition of tenures shall not take away or discharge any rents or services certain, which at any time heretofore, have been, or hereafter, may be, created or reserved." The lord paramount of all socage land was none other than the people of the state, and to them, and them only, the duty of fealty was to be rendered; and the quitrents which were due to the king on all colonial grants, and to which the people succeeded at the revolution, have been gradually diminished by commutation, under various acts of the legislature, and are now nearly, if not entirely extinguished. In our endeavours to discover the marks or incidents which with us discriminated socage tenure from allodial property, we are confined to the doctrine of fealty, and of holding of a superior lord. Fealty was regarded by the ancient law as the very essence and foundation of the feudal association. It could not on any account be dispensed with, remitted, or discharged, because it was the vinculum commune, the bond or cement of the whole feudal policy. Fealty was the same as fidelitas. It was an oath of fidelity to the lord, and, to use the words of Littleton, when a freeholder doth a N. Y. Revised Statutes, vol. i. 718, sec. 4. |