manor of antient demesne, in which the socage lands Fitz.N.B.11. are held by that tenure. 16. Where a manor of this kind is in the hands of a subject, it is in the power of the lord and tenant to destroy the tenure. Thus if the tenant is impleaded in any of the courts of Westminster, and 2 Leon. 192. the lord is a party to the suit, the lands become frank fee; because the privilege of antient demesne being established for the benefit of both the lord and tenant, they may, by their joint act, destroy it. 1 Roll. Ab. 324. 4 East, 290. 17. If the lord enfeoffs another of the tenancy, this makes the land frank fee; because the services are extinguished. So if the lord releases to the tenant all his right in the lands; or if he confirms to him, to hold by certain services at the common law. 18. Whenever the manor, of which the lands are 4 Inst. 270. 2 Leon. 191. held in antient demesne, is destroyed, that tenure is also destroyed. For there being no court left, the tenants must sue and be sued in the courts at Westminster. Gav. 3, 4. 19. The tenure in gavelkind, by which a great deal In Gavelkind. of the land in Kent is still held, is a species of socage; the name being derived from the Saxon word gavel, Robinson's which signifies rent, or a customary performance of husbandry works; from which the land subject to this kind of service was called gavelkind. Mr. Robinson concludes, from the etymology of this word, that gavelkind denotes the tenure of the land only, and that the partibility and other customary qualities of the lands thus held are extrinsic and accidental. these Te 20. All these tenures are evidently feudal, and Incidents to derived from the same origin as tenure by knight nures. service; for in both cases the lands are held of a superior lord, either the king, or some private person. This feudal dominium, or seignory as it is called, when ante, c. 2. §8. vested in the king, may, as in the case of knight ser vice, be either of his person, or as of some manor which formerly devolved to the crown by forfeiture or escheat; when vested in a private person, may either be in right of a manor, of which he is lord, or of his person, in which latter case it is called a seignory Fitz. N.B.3. in gross. But tenure of the person of a subject is now scarcely known; and where it no longer appears of whom lands are mediately holden in socage, they Booth, Real shall be presumed to be held immediately of the king, as the great and chief lord. Act. 135. ante, § 1. Lit. § 131.2. I Inst. 68. b. n. 5. ** 21. All lands held by any kind of socage tenure are subject to a feudal return, render, rent, or service, of some sort or other, to the lord of whom they are held; arising from a supposition of an original grant, from the ancestor of the lord, to that of the tenant. In the military tenure, or more proper feud, this was from its nature uncertain. In In socage, which was a feud of the improper kind, it was certain, fixed, and determinate; and so continues to this day. 22. Tenants in socage are still universally subject, over and above all other renders, to the oath of fealty, or mutual bond of obligation between the lord and tenant; which usually draws after it suit to the lord's court; and as all freehold lands are now held in socage, where no other service is reserved, fealty is due of course. 23. The tenure in socage was subject of common right to aids for knighting the lord's eldest son, and marrying his eldest daughter, which were fixed by the statute of Westm. 1. at twenty shillings for every twenty pounds a year so held. * A seignory in gross may be extinguished by a release, Lit. § 454. and may be extended on a statute, 1 Inst. 289. b. 24. Tenants in socage were always subject to relief; which however was certain, consisting of one year's rent. The statute 28 Edw. I. c. 1. declares that a free sokeman shall give no relief, but shall double his rent, after the death of his ancestor, according to that which he had used to pay his lord; and shall not be grieved above measure. 25. Primer seisin was incident to the king's socage tenants in capite, as well as to those who held by knight service. 26. Wardship is also incident to tenure in socage; but quite different from that which was incident to knight service. For where lands in socage descend to an infant under the age of fourteen, his nearest relation, to whom the inheritance cannot descend, shall be his guardian; but responsible to him for the profits. Marriage, or the valor maritagii, was not, in socage tenure, any perquisite or advantage to the guardian. 27. Fines for alienation were also due for estates in socage: lands held by this tenure always were, and still continue to be, subject to forfeiture for treason and felony; and also to escheat; except gavelkind lands, which are not subject to escheat for felony; though they are to escheat for want of heirs. Changes in Stat. I Inst. 93. b. n. 3. 28. The changes made by the stat. 12 Cha. II. c. 24. in the tenure in socage are chiefly these: 1. It takes away the aids for marrying the lord's eldest 12 Cha. 2. daughter, and knighting his eldest son. 2. It relieves socage in capite from the burthen of the king's primer seisin; and of fines to the king for alienation. 3. It extends the father's power of appointing guardians by deed or will, which by the 4 & 5 Phil. & Mary, was restricted to females; to children of both sexes. 1 Inst. 85. a. n. 1. 1 Inst. 108. b. n. 1. 29. In all other respects, the tenure in socage remains as it was before; for by the 5th section of that statute it is provided that it shall not take away any rents certain, heriots or suits of court, belonging or incident to any former tenure, or other services incident or belonging to tenure in socage, or the fealty and distresses incident thereunto; and that such relief shall be paid in respect to such rents, as was paid on the death of a tenant in socage. 30. Mr. Hargrave has observed, that reliefs for lands, of which the tenure is converted into common socage, are saved in some instances by this statute. For the clause which preserves rents certain, provides that such relief shall be paid in respect of such rents, as was paid on the death of a tenant in socage, from which it seemed that there could be no relief out of lands which the statute changed into socage, unless where a quit-rent was also payable. And the reason of thus expressing the act would appear, by considering that a year's rent was the relief for lands holden by common socage; consequently was never due out of lands which were not subject to a rent, unless by special custom or reservation. 31. The tenure by petit serjeanty is not named in the stat. 12 Cha. II. but still it has an operation on it; for it being necessarily a tenure in capite, though in effect only so in socage, livery and primer seisin were of course incident to it, on a descent; and these are expressly taken away from every species of tenure in capite. But in other respects petit serjeanty is the same as it was before. It continues in denomination, and still is, a dignified branch of the tenure in socage, from which it only differs in name, on account of its reference to war, Nature of Manors. 32. As most of those persons of whom lands are Origin and now held in socage, claim their feudal dominium or seignory in the character of lords of manors; and as all customary estates are held of particular manors, it will be necessary to inquire into the origin and nature of manors, and the rights of those by whom they are possessed. 33. Perkins, who wrote in the year 1532, gives the following account of the origin of manors: "And it is to know that the beginning of a manor Perk. § 670. was, when the king gave a thousand acres of land, or a greater or lesser part, unto one of his subjects and his heirs, to hold of him and his heirs, which tenure is knight service at the least, and the donee did perhaps build a mansion-house upon parcel of the same land; and of twenty acres, parcel of that which remained, or of a greater or lesser parcel, before the statute of Quia Emptores, &c. did enfeoff a stranger, to hold of him and his heirs as of the same mansionhouse, to plow ten acres of arable land, parcel of that which remained in his possession; and did enfeoff another of another parcel, &c. to carry his dung into the land, &c. and did enfeoff another of another parcel thereof, &c. to go with him to war against the Scots, &c. and so by continuance of time he made a manor *." 34. It appears from this passage that the two material causes of a manor are demesnes and services. The demesnes comprise all that part of the land re * It was holden by Meade and Windham, Justices of the Common Pleas, in 22 Eliz. that a parsonage may be a manor. As if, before the statute of Quia Emptores Terrarum, the parson, with the patron and ordinary, grant parcel of the glebe to divers persons, to hold of the parson by divers services; the same makes the parsonage a manor.. Godb. R.3. |