Sivut kuvina

by the statute 20 Geo. II. c. 43 (g). King James's plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent was to have been settled and inseparably annexed to the crown and assured to the inferior lords, payable out of every knight's fee within their respective seignories. An expedient seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages (having during the usurpation been discontinued) were destroyed at one blow by the statute 12 Car. II. c. 24, which enacts, "that the "court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures "of marriages, by reason of any tenure of the king or others, "be totally taken away. And that all fines for alienations, "tenures by homage, knight-service, and escuage, and also "aids for marrying the daughter or knighting the son, and "all tenures of the king in capite, be likewise taken "away (24). And that all sorts of tenures, held of the king "or others, be turned into free and common socage; save service of England) is for ever abolished in Scotland.

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(g) By another statute of the same year (20 Geo. II. c. 50), the tenure of wardholding (equivalent to the knight

(24) It would be ludicrous to undervalue this statute because it appears to have been ill drawn; though Mr. Hargrave, (in his note to Co. Litt. 108 b), says, they who attribute the framing of it to Chief Justice Hale, act very injuriously to the memory of that shining ornament of his profession. The grand object of the act, no doubt, was to discharge lands held in capite of the oppressive incidents of that tenure, not to declare

that no one should thenceforward hold in chief, or immediately from the crown. Before the statute, as well as since, many lands were held of the king by socage tenure, yet they were not, and are not, the less tenures in capite, (see our author's remark, post, in p. 89), which, in its genuine sense, means only that no intermediate lord was interposed between the tenant and the lord paramount. (Mad. Baron. Angl. 238, 239).

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only tenures in frankalmoign, copyholds, and the hono"rary services (without the slavish part) of grand serjeanty." A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of King Charles extirpated the whole, and demolished both root and branches,





The tenures of

socage and

frankalmoign, the honorary serjeanty, and

services of grand

tenure by copy of court-roll re

ALTHOUGH, by the means that were mentioned in the
ceding chapter, the oppressive or military part of the feodal
constitution was happily done away, yet we are not to
imagine that the constitution itself was utterly laid aside,
and a new one introduced in its room: since, by the statute
12 Car. II. the tenures of socage and frankalmoign, the served.
honorary services of grand serjeanty, and the tenure by
copy of court roll, were reserved; nay, all tenures in gene-
ral, except frankalmoign, grand serjeanty, and copyhold,
were reduced to one general species of tenure, then well
known and subsisting, called free and common socage. And
this, being sprung from the same feodal original as the rest,
demonstrates the necessity of fully contemplating that an-
tient system (1); since it is that alone to which we can recur,
to explain any seeming or real difficulties, that may arise in
our present mode of tenure.

nure, the services were free and honourable, but uncertain:

The military tenure, or that by knight-service, consisted In military teof what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, or free-socage, consisted also of free and honour- in free-socage, able services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to

(1) See chapter 4, and the notes thereto.


II. Socage, in its general signification, is a

certain and determinate ser


this day, but has in a manner absorbed and swallowed up (since the statute of Charles the second) almost every other species of tenure. And to this we are next to proceed.

II. Socage, in its most general and extensive signification, seems to denote a tenure by any certain and determinate tenure by some service. And in this sense it is by our antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton (a) (2); if a man holds by a rent in money, without any escuage or serjeanty, "id tenementum dici potest socagium:” but if you add thereto any royal service, or escuage, to any, the smallest, amount, " illud dici poterit feodum militare." So too the author of Fleta (b); ex donationibus, servitia mi"litaria vel magnae serjantiae non continentibus, oritur "nobis quoddam nomen generale, quod est socagium." Littleton also (c) defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services; so that they be not services of chivalry, or knight-service. And therefore afterwards (d) he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch (e), a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage; as to hold by fealty and 20s. rent; or, by homage, fealty, and 20s. rent; or, by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord's land for three days; or, by fealty only without any other service: for all these are tenures in socage (ƒ).

and is of two kinds-freesocage, where

the services are

certain and honourablevillein-socage, where, though certain, they are of a baser nature.

But socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain, but honourable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former te

(a) L. 2, c. 16, s. 9.
(b) L. 3, c. 14, s. 9.
(c) S. 117.

(d) S. 118.

(e) L. 147.

(f) Litt. s. 117, 118, 119.

(2) See ante, pp. 74, 75, and notes (21), (22), (23), thereto.

nure are called in Glanvil (g), and other subsequent authors, by the name of liberi sokemanni (3), or tenants in free-socage. Of this tenure we are first to speak; and this both in the *nature of its service, and the fruits and consequences appertaining thereto, was always by much 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 (4): for that in antient 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 (), that to hold by fealty only, without paying any rent, is tenure in socage;

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[ *80 ]

Etymology of

the word socage.

(3) Our author, towards the close of this chapter, (p. 100), cites the authority of both Bracton and Britton, to shew that tenants in antient demesne are an amphibious class, who are sometimes called liberi sokemanni, though they are only highly privileged villeins.

(4) In a subsequent page of this chapter, Blackstone suggests that, as

lands holden as of antient demesne are
a species of socage tenure, plainly found-
ed upon predial services, or services of
the plough; this probably may have
given cause to imagine, that all socage
tenures arose from the same original,
for want of distinguishing between so-
cage of frank tenure and socage of an-
tient demesne.

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