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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 license of alienation.
A slavery yo 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 temporary grievances. King James I. consented, in consideration of a proper equivalent, to abolish them all; receiving by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent, which was to have been settled and inseparably annexed to the crown and assured to the inferior lords, and be payable out of every knight's fee within their respective seignories. An expedient much better than the hereditary exercise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, were, by the statute 12 Car. II. c. 24, destroyed at one blow; the Court of Wards and Liveries which was charged with ascertaining by inquisitio post mortem the value and tenure of estates and age of the wards, so as to fix the relief and primer seisins due to the crown, was abolished; values and forfeitures of marriages and fines for alienations were taken away, and all sorts of tenures, with some exceptions, turned into free and common socage; not, it is true, at the expense of the crown and inferior lords, but, as it was proposed then and since turned out, exclusively at the expense of the people of England
OF THE MODERN ENGLISH TESUBES.
Grand serjeanty-Petit serjeanty-BurgageGavelkind-- Incidents of socage
-Pore villenage-Manory-Book-land and folk-land - Copyhold— Tenancy in ancient demesne-Frankalmoign.
Aurhough the oppressive part of the feudal constitution was happily done away by the statute 12 Car. IL c. 24, the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court-roll, were reserved ; all tenures, indeed, except frankalmoign, grand serjeanty, and copyhold, were reduced to one species of tenure, then well known and subsisting, called free and common socage.
Socage, in its most general signification, seems to denote a tenure by any certain and determinate service; being in this sense put in opposition to knight-service, where the render was precarious and uncertain. These tenures are generally considered to be relics of Saxon liberty ; retained by such persons as had neither forfeited their estates to the crown, nor been obliged to exchange their tenure for the more honourable, but, at the same time, more burdensome tenure of knight-service. As, therefore, the distinguishing mark of socage is the having its renders or services ascertained, it will include all other methods of holding free lands by certain and invariable rents and duties : and, in particular, petit serjeanty, tenure in burgage, and gavelkind.
Grand serjeanty, we may remember, is not abolished by the statute of Charles II., but only its slavish appendages. Petit serjeanty bears a great resemblance to it; for as the former is a personal service, so the other is a rent or render, both tending to some purpose relative to the person of the sovereign. Thus, the Dukes of Marlborough and Wellington hold the estates granted to their ancestors for their public services, by the tenure of petit serjeanty, and by the annual render of a small flag.
Tenure in burgage is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain, and is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature.
Tenure in gavelkind is principally met with in Kent, and its properties are various. But the principal is, that the estate does not escheat in case of an attainder for felony; the maxim being, “the father to the bough, the son to the plough;" and that the lands descend, not to the eldest, youngest, or any one son only, but to all the sons together.
These being the several species of socage, I proceed to show this tenure also partakes strongly of a feudal nature; from a short comparison of its incidents with those of knight-service, that
1. Both were held of superior lords. 2. Both were subject to the feudal return, rent, or service of some sort or other, which arose from the supposition of an original grant from the lord to the tenant. 3. Both were, from their constitution, subject to the oath of fealty, or mutual bond of obligation between the lord and tenant. 4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daughter. 5. Relief was due upon socage tenure, as well as upon tenure in chivalry: socage relief being one year's rent, be the same either great or small: and due even though the heir was under age, because the lord had no wardship over him. And as the statute of Charles II., it may be added, reserves the reliefs incident to socage tenures, wherever lands in fee-simple are holden by a rent, relief is still due of common right upon the death of a tenant. 6. Primer seisin was incident to the king's socage tenants, but was, as we have seen, entirely abolished by the statute. 7. Wardship is also incident to tenure in socage; but of a nature different from that incident to knight-service. For if the inheritance descends to an infant under fourteen, the wardship of him does not, nor ever did, belong to the lord of the fee; but his nearest relation shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen, at which age this wardship ceases; and the heir may call his guardian to account, for at this age the law supposes him capable of choosing a guardian for himself. It was in this particular of wardship, as also in that of marriage, that socage had so much the advantage of military tenure. But there was this disadvantage attending it: that young heirs, being left to choose their own guardians, might make an improvident choice. And, therefore, when almost all the lands in the kingdom were turned into socage tenures, the statute 12 Car. II. c. 24, enacted, that it should be in the power of any father by will to appoint a guardian, till his child should attain the age of twenty-one. And, if no such appointment be made, the Court of Chancery will name a guardian, to prevent an infant heir from improvidently exposing himself to ruin. 8. Marriage, or the valor maritagii, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage. These doctrines of wardship and marriage in socage were so diametrically opposite to those in knight-service, and so entirely agree with those parts of King Edward's laws, that were restored by Henry I.'s charter, as might alone convince us that socage was of a higher origin than the Norman Conquest. 9. Fines for alienation were, I apprehend, due for lands holden of the king in capite by socage tenure, as well as in case of tenure by knight-service. 10. Escheats are equally incident to tenure in socage, as they were to tenure by knight-service.
This much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the Restoration in 1660, when the former was abolished and sunk into the latter : so that lands of both sorts are now holden by the one universal tenure of free and common socage,
The other grand division of tenure, is that of villein socage, or villenage, which is either pure or privileged villenage: from whence have arisen two other species of our modern tenures.
From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court-roll at the will of the lord : in order to obtain a clear idea of which it will be previously necessary to take a short view of the origin of manors, which are in substance as ancient as the Saxon constitution.
A manor, manerium, a manendo, because the usual residence of the owner, seems to have been a district of ground, held by great personages, who kept in their own hands so much land as was necessary for the use of their families, hence called terree dominicales, or demesne lands; the other, or tenemental, lands being distributed among their tenants. The latter was either book-land or charterland, being held by deed for certain rents and free-services, from which have arisen most of the freehold tenants who hold of particular manors, and owe suit and service to the same; or folk-land, which was held by no assurance in writing, but distributed among the common folk at the pleasure of the lord, and resumed at his discretion. The residue of the manor being uncultivated was termed the lord's waste, and served for public roads, and for common of pasture to the lord and his tenants.
In early times the king's great barons granted out smaller manors to inferior persons to be holden of themselves: which still continue to be held under a superior lord, whose seignory is frequently termed an honour. In imitation whereof these inferior lords carved out to others still more minute estates, to be held of themselves, and were so proceeding downwards in infinitum, till the superior lords observed, that by this subinfeudation they lost all their feudal profits. This occasioned, first, a provision in Magna Charta, that no man should either give or sell his land, without reserving sufficient to answer the demands of his lord ; and, afterwards, the statute Quia Emptores, 18 Edw. I. c. 1, which directs, that, upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. And hence it is clear, that all manors existing at this day must have existed as early as Edward I.
Now, with regard to the folk-land, this was a species of tenure neither strictly feudal, Norman, or Saxon; but mixed and compounded of them all : and which also, on account of the heriots that - usually attend it, may seem to have something Danish in its composition. Under the Saxon government there were a sort of people in a condition of downright servitude, belonging to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable, that they, who were strangers to any other than a feudal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition. This they called villenage, and the tenants villeins, probably a villa, because they lived chiefly in villages, which they could not leave without the lord's permission. If they ran away, or were purloined from him, they might be recovered by action, like beasts or other chattels. They held, indeed, small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased. They might, however, be enfranchised by manumission, which was either express or implied: express, as where a man granted to the villein a deed of manumission: implied, as where a man bound himself in a bond to his villein, or gave him an estate, or brought an action against him, for this was dealing with his villein on the footing of a freeman. So that by these and other means, villeins, in process of time, gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good, in others better than their lords. For many lords having permitted their villeins and children to enjoy their possessions without interruption, the common law, of which custom is the life, now gave them a title to prescribe against their lords ; and, on performance of the same services, to hold their lands in spite of any determination of the lord's will. For though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are evidenced by the rolls of the courts-baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to show for their estates but these customs, and adinissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court-roll, and their tenure itself a copyhold, the villein services due to the lord having been long commuted for a small pecuniary quit-rent..