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denoted stipendiary property, or a tract of land, held by gratuitous donation, on condition of performing certain stipulated services, chiefly of a military nature. These gifts were originally dependent on the will and pleasure of the grantor, but afterwards were extended to a term of one or inore years, subsequently to the life of the feudatory (a), and ultimately were made hereditary.
Such grants as were purely military were denominated proper feuds, and those in which the consideration moving to the grant, or the services reserved, were not strictly conformable to that character, were deemed improper feuds (b).
The fundamental maxim of feudal tenure is, that all lands were originally granted by the king, and are therefore holden immediately or mediately of the crown (c).
Until the middle of the seventeenth century, a considerable (and according to Sir William Blackstone (d) the greatest) part of the lands in England, were holden by knight-service(e), (a tenure implying personal military duty,) and principally of the king in capite.
(a) Feudatory or beneficiary es- feuds, in the early part of Chief tates, when granted at will only, Baron Gilbert's treatise on tenures, were called Munera, and when after- and also, the 4th chap. of the 2d vol. wards granted for life, they were of Sir William Blackstone's Comtermed Beneficia, which word is still mentaries. Et vide Harg. & Butl. retained amongst ecclesiastics, whose notes to Co. Lit. 64. a, 191. a. estates are called Benefices; and the (c) Ante, p. 688. n. (a.) The note term Feuda was first used when esa here referred to shows that our antates began to be granted in perpe- cestors were not originally beneficituity. Spelm. Posth. Treat. of Feuds, aries, but voluntarily submitted to 4, 6, 9. Wright's Ten. 19. Vide as this fiction of tenure. to the distinction between allodial (d) 2 vol. Com. 73. and beneficiary possessions, Roberts. (e) It should seem that knightHist. Emp. Charles 5th, p. 258. service was the implied tenure, if
(6) For a full illustration of this no particular services were reserved obsolete doctrine, the author would on a grant by the king, prior to the urge an attentive perusal of Sir 12. Car. 2. See Dalr. on Feud. Prop. Martin Wright's introduction to the law of tenures; and of the history of Escuage is sometimes confound
The tenure by knight-service was abolished by 12 Car. 2. c. 24 (a), and differed very little from a proper feud, being created by pure words of donation (b), transferred by livery or investiture, and perfected by homage or fealty. This tenure drew to it the advantages of relief, and primer seisin (c), wardship, livery (d), aid for knighting the lord's eldest son, and marrying his eldest daughter, and for ransoming the lord's person (e), and also escheat. The services were occasional,
ed with knight-service, [Co. Lit. first year's profits of every benefice, § 103,] but it merely describes the by way of first fruits. pecuniary assessment calculated by (d) Primer seisin was not paid, the amount of a knight's fee, to excuse
unless the heir was of age,
but if una personal attendance, for which such der the age of 21, being a male, or service was compounded, or perhaps 14, being a female, the lord was ina pecuniary aid reserved in some in- titled to the wardship, and was called stances, in lieu of personal service. guardian in chivalry, which gave him Wright's ten. 123. 2 Bl. Com. 75. the custody of the body and lands,
(a) The prerogative of compelling without account, during such minorthe heir to be knighted when of age, ity. And the lord by the 3 Ed. 1. or to pay a fine to the king, was abo- c. 22. could keep the female heir in lished by 16 Car. 1. c. 20. 2 Bl. ward until 16. The male, on attainCom. 69, 70.
ing 21, and the female 16, could sue (6) Wright's ten. 141. 2 Bl. Com.
out their livery to obtain the lands 63.
out of the guardian's hands, and for (c) Primer seisin seems to be little this half a year's profits of the land more than an additional relief, payable were paid. These advantages to the by those who held of the king in ca- lord excused the infant heir from pite. When a tenant in capite died livery, and in the case of tenants seised of a knight's fee, the king was in capite, from primer seisin. The intitled to receive of the heir, if of ascertainment of the profits arising age, a year's profits of the land, when
from these fruits of tenure, suggestin possession, and half a year's profitsed the antiquated proceeding of an if held in reversion, expectant on an inquisitio post mortem, charging the estate for life. Indeed the king was in- itinerant justices or justices in eyre, titled to enter and receive the profits to inquire by a jury of the county, until livery was sued, which being on the decease of any person of forgenerally sued within a year and a day tune,) the value of his estate, the teafter the death of the tenant, it was nure of it, and who, and of what age, usual to take the first fruits, or a his heir was.
2 Bl. Com. 68. year's profits of the land. This gave (e) But the genuine feudal aid aprise to the claim by the Popes of the pears to have been purely military,
but with us restrained, as in Normandy, to forty days, and not altogether uncertain, as in proper feuds (a).
The residue of the lands in England were divided into the three tenures subsisting at the present day, viz. 1. free socage (6), (which, with the lands held by knight-service, were alike denominated frank tenements): 2. pure villenage: and 3. privileged villenage, or villein socage (c). The properties and diversities of the two latter are fully treated of in the first and second parts of the present work (d), and I propose now to offer some few observations on the nature of socage tenure, and the services incident to it.
Socage is a term as old as domesday-book : it first occurs in Glanvil (e), and, according to the opinion of our best lawyers, is a tenure per servitium socæ, but by Somner (f) thought to be derived from the Saxon word Soc, importing a privilege, and dgium importing service (g"). and not a contribution to the private to render to the king a warlike necessities of the lord. Wright's weapon, are not mentioned in that ten. 41. See further as to aids, post, statute, but petit serjeanty still exp. 731. n. (b). Wright's ten. p. 40, ists, and is considered to be a digni&c. 105, &c.
fied branch of socage tenure. Co. Lit. (a) Wright's ten. 140, 141, 2 Bl. 108 b. n. 1. Com. 62. The proper knight-service (6) Or free tenure in common sowas to attend the king in his wars ; cage. but there were other species of (c) These are the only lay tenures knight-service of an honourable na- now subsisting, but it is to be reture, as grand serjeanty. Some ser- membered that the tenure of frankvices of grand serjeanty are purely almoign (or free alms), was also remilitary, as to bear the king's banner served by the stat. of Car. 2, and or his lance, in time of war; and which is of a spiritual nature, being others are honorary only, and in time the tenure by which religious houses of peace, as to perform certain offices held their lands, and by which many at the king's coronation; and in some ecclesiastical and eleemosynary foundcases these services may be executed ations hold lands at this day. 2 Bl. by deputy. Co. Lit. § 153, 155–7. Com. 101. The honorary services of grand ser- (d) Ch. 2. and ch. 18. jeanty were, as well as the tenure by (€) Somner's treat. of Gav. 143. copy of court roll, reserved by the (f) Ib. 133, 14). And see 2 Bl. stat. of 12 Car. 2.
Com. 80, 81. The services of petit serjeanty, as (s) 1 Inst. 86. a. And see Mr.
Socage tenure is at least agreed to have been originally a conventional service of a certain and determinate, and not of a military nature (a); in some respects, however, it resembles tenure by knight-service or chivalry, socage land being held of a superior lord by fealty, and subject to relief and escheat, and also (previous to the statute of Charles 2nd) to aids (6), marriage and wardship, (though of a different nature from those incident to knight-service,) and to fines for alienation, when held of the king in capite (c).
Christian's note on this derivation, or seisin to the lord paramount. 2 Bl. Com. 81, citing Bract. Spelman, Wright's ten. 107, cites Madox. &c., against Mr. Somner's, and Sir Hist. of the Excheq. 428. Glanv. lib. William Blackstone's opinions.
8. And inferior lords fre(a) Burgage and Gavelkind are in- quently took aids to enable them not cluded in socage tenure. Sir Martin only to pay their fines to the king, Wright (ten. 145] says “ All our but even their debts. All, however, English fees or holdings, whether except the above three ancient aids, they be Frank or Emphiteuticary, abolished as to inferior lords, by Burgage or Gavelkind, (though Bur- King John's Charter, c. 12, 15; gage and Gavelkind have many qua
which also ordained that no aids lities different from common socage,) should be taken by the king, without do now fall under the notion of so- consent of parliament. This provicage tenures, which, though they sion was omitted in Henry 3rd's vary in point of service, succession, charter, and the old aids re-exacted and the like, as improper feuds, do until, by stat. 25 Ed. 1. c. 5, 6, the nevertheless retain the nature of clause in the charter of King John feuds ; inasmuch as they are held of was revived. Aids were completely some lord or superior by fealty, and arbitrary until King John's charter, usually by some other certain service
and were not fully ascertained until or acknowledgment; and inasmuch the stat. West. 1. 3 Ed. 1. c. 36, as they yield or pay relief and may which fixed the aid of a knight's fee escheat." And see Co. Lit. § 162. at 20s., and of socage lands, to the
The student is reminded that the value of £20 a year, at 20s. This descent in burgage-tenure is some- only extended to inferior lords; but times (by force of the custom called the same provisions were made as to Borough English), to the youngest the king's tenants in capite, by 25 son, and in Gavelkind tenure is to Ed. 3. c. 11. The aid for ransoming all the sons equally.
the lord's person, was, as a thing of (6) The aid de relief was taken by course, still left uncertain. Wright's inferior lords, being a sum to enable ten. 108, et seq. 2 Bl. Com. 63, et seq. them to pay their fines for relief (c) 2 Bl. Com. 89.
But since the abolition act of 12 Car. 2d, the only services incidental to lands of socage or freehold tenure, are those of which I shall now treat; premising that, upon thus briefly introducing to the reader's consideration the subject of ancient and modern English tenure, it may not be thought irrelevant to notice, that the more general opinion is that freehold lands were devisable before the conquest, but at that period, or soon after, the power of disposition ceased as a consequence of feudal tenure, except as to certain socage lands by the custom of some cities and boroughs (a).
FEALTY.-(and herein of the ancient tribute of Homage.) From the earliest period of the feudal system the service of fealty was incidental to, and inseparable from, every tenure, with the exception of tenure in frank-almoign (6), and such as hold at will or by sufferance (c), so much so, that if lands were granted without the reservation of fealty, the tenure was deemed to be allodial (d), but nevertheless the oath of fealty might always be dispensed with.
When feuds became hereditary (e), besides an oath of fealty, (a) And it is observable that upon
Lit. 111 b. n. 1, 4. Ante, pt. 1. p. a distinction raised after the stat. of 107. Vide also Co. Lit. 111 b. n. 1, quia emptores, between the land and 4. Wright's Ten. 172, et seq. the use or profits of the land, and (b) 9 Co. 123, in Anth. Lowe's the invention of feoffments to uses, case. Co. Lit. g 131. Wright's ten. the use or profits could be disposed 35, 139. Vide also a learned comof by will even before the stat. 27 ment on the oath of fealty, Sulliv. Hen. 8. c. 10.
Feud. L. lect. 6.
68. Socage lands and two-thirds of
(c) Co. Lit. 67 b. n. (2). Ib. 68 b. lands held by knight's service, were n. (5). made devisable by 32 & 34 Hen. (d) Ante, p. 727. 8, and the latter being converted (e) Homage was performed only into socage tenure in the 12 Car. when the grant was of an estate of 2, all lands became devisable, copy- inheritance, that is, in fee-simple or holds excepted. Vide 32 Hen. 8. fee-tail. Co. Lit. $ 90; but fealty is c. 1. 34 & 35 Hen. 8. c. 5. 12 to be done by tenant for life (Co. Car. 2. c. 25. 29 Car. 2. c. 3. Co. Lit. § 93), or even for years, if he