pensive 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 ir a nation that boasted of its freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I. consented (e), in consideration of a proper equivalent, to abolish them all though the plan proceeded not to effect; in like man- [*77] ner as he had formed a scheme, and begun to put it in execution, for removing the feodal grievance of heretable jurisdiction in Scotland, (ƒ) 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 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 thau the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages (baying 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 taken away. And that all fines for alienation, 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 (16). And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copy holds, 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.

(e) 4 Inst. 202.

(f) Dalrymp. of Feuds, 292.

(g) By another statute of the same year (20 Geo.

(16) Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the tite and body of the act, viz. of taking away tenures in capite; (Mad. Bar. 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

II. c. 50.) the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland.

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 be fore in your court of wards you will be sure to find it hereafter in the exchequer of your peo ple's hearts." Journ. Dom. Proc. 11 vol. 234

CHAPTER VI.

OF THE MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapen the oppressive or military part of the feodal constitution itself was happily done away, yet we are not to imagine that the constitution itsell 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 contemplating that ancient system; 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.

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 [79] 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 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 o 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 knight-service, where the render was precarious and uncertain. Thus Bracton (a); if a man holds by rent in money, without any escuage of serjeanty, “id tenementum dici potest socagrum :" 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 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 feally and certain corporal service, as plough 'ng the lord's land for three days; or, by fealty only without any other service: for all these are tenures in socage (ƒ).

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 tenure are called in Glanvil (g), and other subsequent authors, by the name of liberi sokemanni, or tenants in freesocage. Of this tenure we are first to speak; and this, both in the nature of its service, and the fruits and consequences apper- [*80] taining 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: 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 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 (2), 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 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 ser vice ascertained, and not left to the arbitrary calls of the lord, as the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke ferme (n), 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 "original, it is hard to account for the very great im- [*81] munities 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 the tenure in free socage, against the authority even of Littleton himself (1).

(g) 1. 3, c. 7.

(A) Gavelk. 139.

(1) In like manner Skene, in his exposition of the Scots' law, title socage, tell us, that it is any kind of holding of lands quhen ony man is infeft freely,'

(1) The following is Mr. Christian's intelgent note upon this subject :-"The learned Judge has done Mr. Somner the honour of adopting his derivation of socage, which Mr. Somner himself boasts of as a new discovery with no luttle pride and exultation, as appears rom the following sentence: Derivatio forte c nova et nostratibus adhuc inaudita, qui, à

(k) Litt. 119.
(2) 118.
(m) 98. 120.
(n) c. 66.

soe quatenus vel aratrum vel saltem vomerem signat, vocem derivare satagunt. Quam mair tamen, eorum veniâ 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

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

We may remember that by the statute 12 Car. II. grand serjeanty is not itself totally abolished, 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 grant serjeanty) for as the one is a personal service, so the other is a rent or render, both [*82] tending to some purpose relative to the king's per son. (Petit serjeanty, as defined by Littleton (p), consists in holding lands of

(0) Wright, 211.

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, ui 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 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 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. (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 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;

(p) 159.

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 system, and 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. The king or lord had the profits of the military tenant's estate, during his nonage, in order to retain a substitute with accoutrements, and in a state suitable to the condition of his tenant; at the same time he took care that the minor was in structed in the martial accomplishments of the age. But they disdained to superintend the education of the sokemanni; and as they had nothing to apprehend from their opposi tion, and could expect no accession of strength from their connexions, their marriages therefore were an object of indifference to them. Hence when the age of ch.ralry 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."

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 (q), is but socage in effect for it is no personal service, but a cel tain rent: and, we may add, it is clearly no predial service, or service o. 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 of parvum servitium regis, or petit serjeanty. And 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 (2).

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 ancient 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 ancient borough, are held of some lord in common socage, by a certain established rent.) And these seem to have withstood 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-service; since the tenants must have been citizens or burghers, the situ- [*83] ation frequently a walled town, the tenements 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 ancient burgage: the principal and most remarkable of which is that called Borough English (3), so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glan

(2) "The tenure of petit serjeanty is not named in 12 Cha. II. but the statute is not without its operation on this tenure. It being necessarily a tenure in capite, though in effect only so by socage, livery and primer seisin were of course incident to it on a descent, and these are expressly taken away by the statute from every species of tenure in capite, as well socage in capite as knight's service in capite. But we apprehend that in other respects petit serjeanty is the same as it was before, that it continues in denomination and still is a dignified branch of the tenure by socage, from which it only differs in name on account of its reference to war." Harg. and Butl. Co Litt

(t) 162.

(u) Litt. ◊ 162, 163.

108. b. n. 1. The tenure by which the grants to the duke of Marlborough and the duke of Wellington, for their great military services, are held, are of this kind, each rendering a small flag, or ensign annually, which is deposited in Windsor Castle.

(3) See Bac. Ab. and Com. Dig. tit. Bo rough English, Cru. Dig. I vol. 133. id. 3 vol 476. This custom prevailed in the manors of Ford, Cundover, Wem, and Loppington, in Staffordshire; Bishop Hampton, Hereford shire; Havenham, Sussex; Malden, Essex, Skidby, East Riding, Yorkshire; and some others.