CHAPTER III.

THE DEFEUDALIZATION OF TENURES.

I POLL. & MAIT., HIST. ENG. LAW, 336. We are now in a position to foresee that of the four great free tenures one is destined to grow at the expense of the rest. For a moment it might be thought that the trenchant statute of 1290, the Quia emptores terrarum, would stereotype the tenures forever. To some extent this is true in law, but only to some extent. Even after the statute a new tenure might sometimes be created. Every feoffment made by a tenant in frankalmoin in favor of a layman would create a tenure between the donee and the donor's lord which could not be frankalmoin, since the donee was a layman, and which was reckoned a tenure in socage; thus in a perfectly regular way socage would grow at the expense of frankalmoin. We have seen also that in the course of the thirteenth century many of the serjeanties were deliberately commuted for less archaic tenures, in some cases by the consent of both parties, still more often against the tenant's will; he had put himself into the wrong by alienating without the king's license, and the king exercised the right of "arrenting the serjeanty." But we will here speak of changes less definitely made. When once it was established that the little serjeanties gave the king no prerogative wardship, "petty serjeanty" came to be regarded as but "socage in effect." A similar cause gave rise to the doctrine that tenure of a mesne lord is never tenure by serjeanty; the rights of a mesne lord to the wardship and marriage of his tenant by serjeanty seem to have become doubtful, and to have finally disappeared, and by this time the term socage already covered so heterogeneous a mass of tenures that it could be easily stretched yet a little farther so as to include what

Bracton would certainly have called serjeanties. Again, there can be little doubt that a very large number of military tenures became tenures in socage, and this without any one observing the change. In Bracton's day the test of military tenure is the liability to scutage, and, as already said, the peasant or yeoman very often had to pay it; if he had not to pay it, this was because his lord had consented to bear the burden. In Edward I.'s day scutage was becoming, under his grandson it became, obsolete. There was nothing then in actual fact to mark off the services of the yeoman who was liable to pay scutage as well as to pay rent, from those of the yeoman who was free even in law from this never collected tax. The one was theoretically a military tenant, the other was not; in the one case the lord might have claimed wardship and marriage, in the other he could not; but then we have to observe that, if the tenant held at a full or even substantial rent, wardship and marriage would be unprofitable rights. The lord wanted rent-paying tenants; he did not want land thrown on his hands together with a troop of girls and boys with claims for food and clothing. Thus, scutage being extinct, wardships and marriages unprofitable, mere oblivion would do the rest; many a tenure which had once been, at least in name, a military tenure would become socage. Thus socage begins to swallow up the other tenures, and preparation is already made for the day when all, or practically all, tenants will hold by the once humble tenure of the sokemanni.

2 BL. COм., 75-77. 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 honor, and their oaths to defend their king and country, the whole of this system of tenures now tended to noth

ing 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 1 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 further, 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 honor 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 license 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 temporary grievances. Till at length the humanity of King James I. consented, in consideration of a proper equivalent, to abolish 'Commonw. 1. 3, c. 3.

them all; though the plan proceeded not to effect; in like manner as he had formed a scheme, and begun to put it in execution, for removing the feodal grievance of heritable jurisdiction in Scotland, which has since been pursued and effected by the statute Geo. II., ch. 43. 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 seigniories. An expedient seemingly much better than the hereditary excise, which was afterward 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. ch. 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. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyhold, 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 vigor; but the statute of King Charles extirpated the whole, and demolished both root and branches.

STAT. 12 CAR. II. (1660), c. 24. An act taking away the Court of Wards and Liveries and Tenures in Capite, and by

Knight-Service, and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof.

Whereas it hath been found by former experience that the Court of Wards and Liveries and tenures by knight-service either of the king or others, or by knight-service in capite, or socage in capite of the king, and the consequents upon the same, have been much more burthensome, grievous and prejudicial to the kingdom than they have been beneficial to the king. And whereas since the intermission of the said court, which hath been from the four and twentieth day of February, which was in the year of our Lord one thousand six hundred forty and five, many persons have by will and otherwise made disposal of their lands held by knight-service, whereupon divers questions might possibly arise unless some seasonable remedy be taken to prevent the same; Be it therefore enacted by the King our Sovereign Lord with the assent of the Lords and Commons in Parliament assembled, and by the authority of the same, and it is hereby enacted, That the Court of Wards and Liveries, and all wardships, liveries, primer seisins and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the King's Majesty, or of any other by knight-service, and all mean rates, and all other gifts, grants, and charges, incident or arising for or by reason of wardships, liveries, primer seisins, or ousterlemains be taken away and discharged, and are hereby enacted to be taken away and discharged, from the said twenty-fourth day of February, one thousand six hundred forty and five; any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding. And that all fines for alienations, seizures, and pardons for alienations, tenure by homage, and all charges incident or arising for or by reason of wardship, livery, primer seisin, or ousterlemain, or tenure by knight-service, escuage, and also aide pur file marrier, et pur faire fitz chivalier, and all other charges incident thereunto, be likewise taken away and discharged from the said twenty-fourth day of February, one thousand six hundred forty and five: any law, statute, cus