Sivut kuvina

marriage, and

relief, not de

nure in socage.

for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original, (as escuage (5), 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 calls of the lord, Homage, ward, as in the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke mandable in te- ferme (n) (6), 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 [ *81] *original, it is hard to account for the very great immunities 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 (m) Sect. 98, 120.


(n) C. 66.

(5) See ante, notes (21), (22), (23), the name of sokemanry equally applito the last chapter.

(6) The present editor is indebted to a MS. put into his hands by the publisher, and which he is informed proceeded from the pen of a learned and noble lord now living, for the remark, that Britton not only describes lands in socage tenure under the name of fraunk ferme, but seems also to think

cable to such lands; with this distinction only, that he considers sokemanries as tenures immediately of the crown, and fraunk ferme as a tenure of a mesne lord; but he expressly distinguishes sokemanries from antient de

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the tenure in free socage, against the authority even of Littleton himselft.

Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty (7); retained by such persons as had neither forfeited

Socage tenures supposed to be liberty.

relics of Saxon

(7) This remark, it is presumed, was not intended to apply to villein socage, at all events. It would convey no very lofty idea of Saxon liberty, to illustrate its nature and extent by instances

of those tenants who (as our author tells us in p. 99,)" continued, for a long time, pure and absolute villeins, dependent on the will of the lord." It is to the Normans, as our author seems

† Mr. Christian, in his note upon this passage says, he is "obliged to prefer the old derivation for the following reasons:-Our most antient writers derive it from soca or soccus, a plough; and sock, in some parts of the north of England, is the common name for a plough-share to this day. The following description of socage is given by Bracton: dici poterit socagium a socco, et inde tenentes sockmanni, eo quod deputati sunt, ut videtur, tantummodo ad culturam, et quorum custodia et meritagia ad propinquiores parentes jure sanguinis pertinebant. (C. 35). This is not only adopted by Littleton and Lord Coke, (Co. Litt. 86), who says that socagium est servitium socæ, 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 proprie 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. Heretages en roture. (Ib. voc. Soc).

"In a law of Edward the Confessor,


the sokeman and villein are classed together; Manbote de villano et sokeman xii. oras, de liberis autem hominibus iii. marcas. (C. 12). If we consider the nature of socage tenure, we shall see no reason why it should have the preeminence of the appellation of a privileged possession.

"It cannot be imagined that those who never grasped a sword, nor buckled on a coat of mail, should enjoy privileges and distinctions denied to the barons and milites, the companions of their sovereign. The sokemanni were indebted only to their own meanness and insignificance for their peculiar immunities. Hence, when the age of chivalry was gone, and nothing but its slavery remained, by no uncommon vicissitude in the affairs of men, the sokemanni derived from their obscurity that independence and liberty, which they have transmitted to posterity, and which we are now proud to inherit."-[Wright (in his Law of Ten. 144), inclines to prefer that derivation of socage which refers the tenure to services of the plough; and, upon the whole, it does appear to be the better founded conjecture.-ED.]


Gavelkind, a


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 peculiarly remarkable in the tenure which prevails species of socage 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. 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.

Socage includes all modes of holding free lands by certain

and invariable

rents and duties.

Grand serjean

ty, and the ho

norary services

due thereon still


[ *82 ]

Petit serjeanty

-the holding of

lands of the

king by the an

nual render of

some implement of war.

We may remember that by the statute 12 Car. II. grand serjeanty is not itself totally abolished (8), but only the slavish appendages belonging to it: for the honorary services (such as carrying the king's sword or banner, officiating 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 person. Petit serjeanty, as defined by Littleton (p), consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says (7), is but socage in effect: for it is no personal 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 (0) Wright, 211. (p) S. 159. (q) S. 160.

reluctantly to admit in the course of
this chapter, that the amelioration of
the state of villenage, of every degree,

pure or privileged, ought, in justice, tọ be ascribed.

(8) See ante, note (19) to chapter 5.


of parvum servitium regis, or petit serjeanty (9).
magna carta respected it in this light, when it enacted (r),
that no wardship of the lands or body should be claimed by
the king in virtue of a tenure by petit serjeanty.

Tenure in burgage is described by Glanvil (s), and is expressly said by Littleton (t), to be but tenure in socage: and it is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain (u). It is indeed only a kind of town socage; as common 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 scite of houses, in an antient borough, are held of some lord in common socage, by a certain established rent (10). And these seem to have with(r) Cap. 27. (s) Lib. 7, cap. 3.

(9) See ante, note (20) to chapter 5. (10) The MS. mentioned, arte, in note (6), cites the following passage from Spelman's Remains, p. 190. "The portions of lands in Snitesham, Sharborne, and Stainhowe, given to Edwin of Sharnborne, by William Pincerna and William Warren, in lieu of his antient estate in those places, were given him to be held, the two first per certa servitia, and the last per servitium 40d. per annum." If this grant by two Normans was (as seems intended to be intimated, though it is not quite clear), the creation of a burgage tenure; then, it follows, all burgage tenures at any rate are not to be referred to a Saxon origin. That they savour of feudality is obvious; but that certainly does not decide the question; for, feudal customs were in use among

(t) S. 162. (u) Litt. s. 162, 163.

the Saxons, though the system was not
brought into full operation till after the
Norman conquest. (See ante, notes
(2) and (4) to chapter 4). Wright
(in his Law of Ten. 145) says, "though
burgage and gavelkind have many
qualities different from common socage,
they fall under the notion of socage te-
nures, which, though they vary in
point of service, succession, and the
like, do nevertheless retain the nature
of feuds; inasmuch as they are held of
a lord or superior by fealty, and usually
by some other certain service or ac-
knowledgment; and inasmuch as they
yield or pay relief, and may escheat."
With respect to escheat, however, as
far as concerns gavelkind lands, Wright
must be understood to mean, that they
might escheat for treason; but they
were never subject to escheat for felony;

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stood 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 been held by plough[*83] service; since the tenants 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 antient burgage; the Borough Eng- principal and most remarkable of which is that called Borough English (11); so named in contradistinction as it

lish where the

(see post, p. 84); and as to the general
relaxation of the law as to this matter,
see ante, note (16) to chapter 5.

(11) Custom, if properly pleaded
and proved, seems to be conclusive in
all questions as to descent in borough
English. In Chapman v. Chapman,
(March, 54, pl. 82), a custom respect-
ing certain lands in borough English,
that, if there were an estate in fee in
those lands, they should descend to the
younger son, according to the custom;
but if the estate was in tail, they should
descend to the heir at common law;
was held to be good. The customary
descent may, in particular places, be
confined to estates in fee simple.
(Reeve v. Malster, W. Jones, 363; and
see Append. to Robins. on Gavelk.);
but it may extend to fee tail, or any

other inheritance. Lord Coke says, (1 Inst. 110 b), "if lands of the nature of borough English be letten to a man and his heirs during the life of J. S., and the lessee dieth, the youngest son shall enjoy it." And, in the same place, he tells us "the customary descent may, in particular places, extend to collaterals;" but then it must be specially pleaded; for, the custom is in most places confined to cases of lineal descent; (Bayley v. Stevens, Cro. Jac. 198. Reve v. Barrow, Cro. Car. 410): and where lands would at common law descend to the issue of the eldest son jure repræsentationis, they will, by the custom of borough English, descend upon the issue of the youngest. (Clements v. Scudamore, 2 Lord Raym. 1024; S. C. 1 P. Wms. 63; and 1 Salk.

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