[76] ment; such scutages being indeed the groundwork of all fucceeding fubfidies, and the land-tax of later times. SINCE therefore efcuage differed from knight-service in nothing, but as a compenfation differs from actual service, knight-fervice is frequently confounded with it. And thus Littleton must be understood, when he tells us, that tenant by homage, fealty, and efcuage, was tenant by knight-fervice that is, that this tenure (being fubfervient to the military policy of the nation) was refpected as a tenure in chivalry. But as the actual fervice was uncertain, and depended upon emergences, fo it was neceflary that this pecuniary compenfation fhould be equally uncertain, and depend on the affeffments of the legislature fuited to thofe emergenFor had the efcuage been a fettled invariable fum payable at certain times, it had been neither more nor less than a mere pecuniary rent: and the tenure, instead of knight-fervice, would have then been of another kind, called focage, of which we shall speak in the next chapter, ces. FOR the prefent I have only to obferve, that by the dege nerating of knight-fervice, or perfonal military duty, into efcuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal conftitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia compofed of barons, knights, and gentlemen, bound by their intereft, their honour, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else, but a wretched means of raising money to pay an army of occafional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which (in confequence of the fiction adopted after the conqueft) were introduced and laid upon them by the fubtlety and fineffe of the Norman lawyers. For, befides the fcutages to which they were liable in defect of perfonal attendance, which however y Old Ten. tin Efcuage. 28103. a Wright. 122. b Pro fecdo militari reputatur. Fiet. 1. 2. c. 14. § 7. Litt. § 97. 120. were were affeffed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest fon was to be knighted or his eldest daughter married; not to forget the ranfom of his own perfon. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arifing from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his eftate during infancy. And then, as fir Thomas Smith very feelingly complains, "when he came to his own, after " he was out of wardship, his woods decayed, houses fallen "down, stock waited and gone, lands let forth and plough"ed to be barren," to reduce him ftill farther, he was yet to pay half a year's profits as a fine for fuing out his livery; and also the price or value of his marriage, if he refused fuch wife as his lord and guardian had bartered for, and impofed 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 fplendid. And when by thefe deductions his fortune was fo fhattered and ruined, that perhaps he was obliged to fell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation. A SLAVERY fo complicated, and fo extenfive as this, called aloud for a remedy in a nation that boafted of it's freedom. Palliatives were from time to time applied by fucceffive acts of parliament, which affuaged fome temporary grievances. Till at length the humanity of king James I confented, in confideration 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 began to put it in execution, for removing the feodal grievance of heritable jurifdictions in Scotland', which has fince been pursued and effected by the ftatute 20 Geo. II. c. 43 %. King James's plan for ex & Commonw. 1. 3. c. 5. € 4 Inst. 202. f Dalrymp. of feuds, 292. By another ftatute of the fame year G 4 (20 Geo. II. c. 50.) the tenure of ward- changing [ 77 3 1 changing our military tenures feems to have been nearly the fame as that which has been fince purfued; only with this difference, that, by way of compenfation for the lofs which the crown and other lords would sustain, an annual feefarm rent was to have been fettled and infeparably annexed to the crown, and affured to the inferior lords, payable out of every knight's fee within their respective feignories. An expedient, seemingly much better than the hereditary excife, which was afterwards made the principal equivalent for thefe coneeffions. For at length the military tenures, with all their heavy appendages (having during the ufurpation been difcontinued) were destroyed at one blow by the ftatute 12 Car. II. c. 24. which enacts," that the court of wards and liveries, " and all wardships, liveries, primer feifins, and ouster"lemains, 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, "knights-fervice, and efcuage, and also aids for marrying "the daughter or knighting the fon, and all tenures of the king in capite, be likewife taken away (8). And that all "forts of tenures, held of the king or others, be turned into (8) Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the title and the body of the act, viz. of taking away tenures in capite; (Mad. Bar. Ang. 238. Co. Litt. 108. n. 5.) for tenure in capite fignifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of military or focage tenure. The fame incorrect language was held by the ípeaker of the house of commons in his pedantic addrefs to the throne upon prefenting this bill. "Royal fir, your tenures "in capite are not only turned into a tenure in focage, (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 "likewife turned into a tenure in corde. What your majesty had "before in your court of wards, you will be fure to find it here"after in the exchequer of your people's hearts." Journ. Dom. Proc. 11 vol. 234. "free "free and common focage; fave only tenures in frankalmoign, copyholds, and the honorary services (without the flavish "part) of grand ferjeanty." A ftatute, which was a greater acquifition to the civil property of this kingdom than even magna carta itself: fince that only pruned the luxuriances that had grown out of the military tenures, and thereby preferved them in vigour; but the ftatute of king Charles extirpated the whole, and demolished both root and branches. CHAPTER THE SIXTH. OF THE MODERN ENGLISH TENURES. LTHOUGH, by the means that were mentioned in the preceding chapter, the oppreffive or military part of the feodal conftitution was happily done away, yet we are not to imagine that the conftitution itself was utterly laid afide, and a new one introduced in it's room: fince by the ftatute 12 Car. II. the tenures of focage and frankalmoign, the honorary fervices of grand ferjeanty, and the tenure by copy of court roll were referved; nay all tenures in general, except frankalmoign, grand ferjeanty, and copyhold, were reduced to one general species of tenure, then well known and fubfifting, called free and common focage. And this, being sprung from the fame feodal original as the reft, demonstrates the neceffity of fully contemplating that antient system; fince it is that alone to which we can recur, to explain any feeming or real difficulties, that may arise in our prefent mode of tenure. THE military tenure, or that by knight-service, confifted of what were reputed the most free and honourable fervices, but which in their nature were unavoidably uncertain in respect to the time of their performance. The fecond species of tenure, or free-focage, confifted alfo of free and honourable fervices; but fuch as were liquidated and reduced to an abfolute certainty. And this tenure not only fubfifts to this day, but has in a manner absorbed and swallowed up (fince the ftatute |