such as do not fall within the other descriptions; such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services; or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But where a difference was not expressed in the creation, such new created feuds did in all respects follow the nature of an original, genuine, and proper feud. From this one foundation, in different countries in Europe, very different superstructures have been raised; what effect it has produced on the landed property of England will appear in the following chapters.

Chapter V.

OF THE ANCIENT ENGLISH TENURES.

59-78.

In this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments might have been holden, as the same stood in force, till the middle of the last century.

Almost all the real property of this kingdom, is by the policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king, and thus partaking of a middle nature, were called mesne, or middle lords.

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief.

Species of Lay Tenures.

I. There seems to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the nature of the several services or renders, that were due to the lords from their tenants. The services in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as

were not unbecoming the character of a soldier or a freeman to perform; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were only fit for peasants or persons of a servile rank; as to plough the lord's land, to make hedges, to carry out his dung or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretense; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account, of any author ancient or modern; of which the following is the outline or abstract. "Tenements are of two kinds, frank tenement and villenage. And of frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only." And again, "of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free but uncertain, as military service with homage, that tenure was called the tenure in chivalrv, per servitium militare, or by knight service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, etc., that tenure was called liberum socagium, or free-socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage (from the certainty of its services), but degraded by their baseness into the inferior title of villanum socagium, villein-socage.

Knight-Service.

I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service. To make a ten

ure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, feodum militare. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon; which attendance was his reditus or return, his rent or service for the land he claimed to hold.

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation dedi et concessi. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz., aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavor to explain, and to show to be of feodal original.

Aids.

1. Aids were originally mere benevolences granted by the tenant to his lord in times of difficulty and distress; but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three; first, to ransom the lord's person, if taken prisoner; secondly, to make the lord's eldest son a knight; thirdly, to marry the lord's eldest daughter, by giving her a suitable portion.

Relief.

2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant.

Primer Seisin.

3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits of the lands if they were in immediate possession; and half a year's profits if the lands were in reversion expectant on an estate for life.

Wardship.

4. These payments were only due if the heir was of full age; but if he was under the age of twenty-one, being a male, or fourteen, being a female, the lord was entitled to the wardship of the heir, and was called the guardian in chivalry. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty-one in males, and sixteen in females.

The wardship of the body was a consequence of the wardship

of the land; for he who enjoyed the infant's estate was the properest person to educate and maintain him in his infancy.

When the male heir arrived to the age of twenty-one, or the heir-female that of sixteen, they might sue out their livery or ousterlemain; that is, the delivery of their lands out of their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profit of the land; though this seems expressly contrary to magna charta.

Marriage.

5. But, before they came of age, there was still another piece of authority, which the guardian was at liberty to exercise over his infant wards; I mean the right of marriage (maritagium, as contradistinguished from matrimonium), which in its feodal sense signifies the power which the lord or the guardian in chivalry had of disposing of his infant ward in matrimony. And, if the infants married themselves without the guardian's consent, they forfeited double the value of the marriage. This seems to have been one of the greatest hardships of our ancient tenures.

Fines.

6. Another attendant or consequence of tenure by knightservice was that of fines due to the lord for every alienation, whenever the tenant had occasion to make over his land to another. And as the feodal obligation was considered as reciprocal, the lord also could not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away; that upon the tenants continued longer.

Escheat.

7. The last consequence of tenure in chivalry was escheat; which is the determination of the tenure, or dissolution of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means; if he died without heirs of his blood, or if his blood was corrupted and stained by commission of treason or felony, whereby every inheritable quality was entirely blotted out and abolished. In such cases the lands escheated, or fell back to the lord of the fee.

These were the principal qualities, fruits, and consequences of tenure by knight-service; a tenure by which the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century.

Grand Serjeanty and Cornage.

There were also some other species of knight's service, so called. Such was the tenure by grand serjeanty, whereby the tenant was bound, instead of serving the king generally in his wars to do some special honorary service to the king in person; as to

carry his banner, his sword, or the like: or to be his butler, champion, or other officer, at his coronation. Tenure by cornage, which was to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects.

Escuage.

These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scutagium in Latin; scutum being then a well-known denomination for money: and, in like manner, it was called, in our Norman French, escuage.

Abolition of Military Tenures.

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. Til at length the humanity of King James I. consented, in consideration of a proper equivalent, to abolish them all; though the plan proceeded not to effect. At length the military tenures, with all their heavy append. ages, were destroyed at one blow by the statute 12 Car. II. c. 24, which enacts, "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 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 charta itself.

Chapter VI.

OF THE MODERN ENGLISH TENURES.

78-103.

By the statute 12 Car. II., the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure. by copy of court-roll, were reserved; nay, all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced