13 which was to

of his land, were it much or little. (s) Tenure by cornage, wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeanty. (t)

15

These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scutagium in Latin, or servitium scuti; scutum being then a well-known denomination for money: and, in like manner, it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. The first time this appears to have been taken was in the 5 Hen. II., on account of his expedition to Toulouse; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our ancient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops; and these assessments in the time of Hen. II., seem to have been made arbitrarily, and at the king's pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour; and king John was obliged to consent by his magna carta, that no scutage should be imposed without consent of parliament. (u) But this clause was omitted in his son Henry III.'s charter, where we only find (w) that scutages or escuage should be taken as they were used to be taken [75] in the time of Henry II.: that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. I. c. 5, 6., and many subsequent statutes, (x) it was again provided, that the king should take no aids or tasks but by the common assent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament; (y) such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus, Littleton (z) must be understood, when he tells us, that tenant by homage, fealty, and escuage, was tenant by knight-service: that is, that this tenure (being subservient to the military policy of the

s Litt. § 154.

u Nullum scutagium ponatur in regno nostro, nisi per
w cap. 37.
x See Book I. pag. 140.

t Ibid. § 156.
commune consilium regni nostri. cap. 12.
y Old Ten. tit. Escuage.
z § 103.

(13) A bill was brought in chancery, suggesting that an antique horn, with an old inscription, had immemorially gone with the plaintiff's estate, and was delivered to his ancestors to hold their lands by, and praying that it might be restored. The lord keeper was of opinion, that if the land was of the tenure of cornage, the heir was entitled to this monument of antiquity at law. 1 Vern. 273. 1 Inst. 107. a.

(14) See Bac. Ab. tit. Tenure, I. Com. Dig. Homage, E.

(15) But Littleton, Coke, and Bracton render it the service of the shield, i, e. of arms, being e compensation for actual service. Co. Litt. 68. b.

Sir M. Wright considers that escuage, though in some instances the compensation made to the lord for the omission of actual service, was also in many others a pecuniary aid or tribute originally reserved by particular lords instead of personal service, varying in amount according to the expenditure which the lord had to incur in his personal attendance upon the king in his wars. This explanation tends to elucidate the distinction between knight-service and escuage in the old authors. See Wright, 121. 134: Litt. s. 98. 120.

nation) was respected (a) as a tenure in chivalry. (b) But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure, instead of knight-services, would have then been of another kind, called socage, (c) of which we shall speak in the next chapter.

For the present I have only to observe, that by the degenerating of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king

and country, the whole of this system of tenures now tended to no[76] thing else but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to. which they were liable in defect of personal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted, or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and if under age, of the whole of his estate during infancy. And then, as sir Thomas Smith (d) very feelingly complains, "when he came to his own, after he was out of wardship, his "woods decayed, houses fallen down, stock wasted and gone, lands let forth "and ploughed to be barren," to reduce him still farther, he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him without paying an exorbitant fine for a licence of alienation.

A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of its freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some tem

porary grievances. Till at length the humanity of king James I. [77] consented, (e) in consideration of a proper equivalent, to abolish

them all; though the plan proceeded not to effect; in like manner as he had formed a scheme, and begun to put it into execution, for removing the feodal grievance of heritable jurisdictions in Scotland, (f) which has since been pursued and effected by the statute 20 Geo. II. c. 43. (g) King James's plan for exchanging our military tenures seems to have been near

d Commonw. 1. 3. c. 3.

b Pro feodo militari reputatur. Flet.
c Litt. § 97, 120.
f Dalrymp. of Feuds, 292.

e 4 Inst. 202.

By another statute of the same year (20 Geo. II. c. 50.) the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland

66

ly 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 marriage, by reason of any tenure of the king or others, be totally ta "ken away. And that all fines for alienation, tenures by homage, knight"service, and escuage, and also aids for marrying the daughter or knight"ing the son, and all tenures of the king in capite, be likewise taken away.' "And that all sorts of tenures, held of the king or others, be turned into "free and common socage; save only tenures in frankalmoign, copyholds, "and the honorary 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.

16

CHAP. VI.

OF THE MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution itself 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 honorary services of grand serjeanty, and the tenure by copy of court roll, were reserved; nay, all tenures in general, 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 contem plating that ancient system; since it is that alone to which we can recur,

(16) Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the title and body of the act, viz. of taking away tenures in capite; (Mad. Bár. Ang. 238. Co. Litt. 108. n. 5.) for tenure in capite signifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of military or socage tenure. The same incorrect language was held by the speaker of the house of commons in his pedantic address to the throne upon presenting this bill. "Royal sir, your tenures in capite are not only turned into a tenure in socage (though that alone will for ever give your majesty a just right and title to the labour of our ploughs, and the sweat of our brows), but they are likewise turned into a tenure in corde. What your majesty had before in your court of wards you will be sure to find it hereafter in the exchequer of your people's hearts." Journ. Dom. Proc. 11 vol. 234. Christian

to explain any seeming or real difficulties, that may arise in our present mode

of tenure.

The military tenure, or that by knight-service, consisted of 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 honourable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the statute of Charles the Se[79] cond) 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 service. And in this sense it is by our ancient writers constantly put in opposition to chivalry, or knightservice, where the render was precarious and uncertain. Thus Bracton; (a) if a man holds by rent in money, without any escuage or serjeanty, "id te"nementum 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 "militaria 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 knightservice. 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. (f)

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 villeinsocage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil, (g) and other subsequent

authors, by the name of liberi sokemanni, or tenants in free-socage. [80] Of this tenure we are first to speak; and this, both in the nature of

And

its service, and the fruits and consequences appertaining thereto, was always by much the most free and independent species of any. 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. () 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 for that in ancient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as

f Litt. § 117, 118, 119.

C

c $117. gl. S. c. 7.

d § 118.

e L. 147.
h Gavelk. 133.

i In like manner Skene, in his exposition of the Scots' law, title socage, tells us, that it is any kind of holding of lands quhen ony man is infeft freely,' &c.

(1) See in general, Bac. Ab. Tenure, Q. Com. Dig. Homage, H. and Guardian, B. 1. 1 Cruise Dig. 11.

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 tell us, (1) that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original (as escuage, which, while it remained uncertain, was equivalent to knight-service), the instant they wer 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, Wherefore also Britton, who describes lands as the tenures of chivalry. in socage tenure under the name of fraunke ferme, (n) tells us, that they "lands and tenements, whereof the nature of the fee is changed by "feoffment out of chivalry for certain yearly services, and in respect where"of neither homage, ward, marriage, nor relief can be demanded." Which leads us also to another observation, that if socage tenures [81] were of such base and servile 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 We may therefore, I think, fairly conclude in ferme or tenure by socage. favour of Somner's etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself. 2

are

1 $118.

n c. 66.

(2) The following is Mr. Christian's intelligent note upon this subject:-"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 venia 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 the north of England, is the common name for a plough-share to this day. The following description of sockage 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 (C. 35.) 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. Heretages en roture. (lb. 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 pre-eminence of the appellation of a privileged possession.

The services of military tenure were not left, as suggested by the learned judge in the preceding page, to the arbitrary calls of the lord: for, though it was uncertain when the king would go to war, yet the tenant was certain that he could only be compelled to serve forty days in the year; the service therefore was as certain in its extent as that of socage; and the sokeman likewise could not know beforehand when he would be called upon to plough the land, or to perform other servile offices, for the lord. The milites are every where distinguished from the sokemanni, and the wisdom of the feudal polity appears in no view more strongly than in this; viz. that whilst it secured a powerful army of warriors, it was not improvident of the culture of the lands, and the domestic concerns of the country. But honour was the invigorating principle of that sy