Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty; retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but, at the same time, more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowledged to be a species of socage tenure; (o) the preseration whereof inviolate from the innovations of the Norman conqueror is a Tact universally known. And those who thus preserved their liberties were said to hold in free and common socage. As therefore the grand criterion and distinguishing mark of this species of tenure are the having its renders or services ascertained, it will include under it all other methods of holding free lands by certain and invariable rents and duties and, in particular, petit serjeanty, tenure in burgage, and gavelkind. We may remember that by the statute 12 Car. II. grand serjeanty is not itself totally abolished, but only the slavish appendages belonging to it: for the honorary services (such as carrying the king's sword or banner, officiating as his butler, carver, &c. at the coronation) are still reserved. Now, petit serjeanty bears a great resemblance to grand serjeanty; for as [82] the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. Petit serjeanty, as defined by Littleton, (p) consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says, (q) is but socage in effect: for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plough, but in all respects liberum et commune socagium: only being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit serjeanty. And magna carta respected it in this light, when it enacted, that no wardship of the lands or body should be claimed by the king in virtue of a tenure by petit serjeanty. 3 Tenure in burgage is described by Glanvil, (s) and is expressly said by o Wright, 211. P $159. 9 § 160. * cap. 27. s lib. 7. cap. 3. tem, and it cannot be imagined that those who never grasped a sword, nor buckled on a coat of mail, should enjoy privileges and distinctions denied to the barons and milites, the companions of their sovereign. The sokemauni were indebted only to their own meanness and insignificance for their peculiar immunities. The king or lord had the profits of the military tenant's estate, during his nonage, in order to retain a substitute with accoutrements, and in a state suitable to the condition of his tenant; at the same time he took care that the minor was instructed in the martial accomplishments of the age. But they disdained to superintend the education of the sokemanni; and as they had nothing to apprehend from their opposition, and could expect no accession of strength from their connexions, their marriages therefore were an object of indifference to them. Hence when the age of chivalry was gone, and nothing but its slavery remained, by no uncommon vicissitude in the affairs of men, the sokemanni derived from their obscurity that independence and liberty, which they have transmitted to posterity, and which we are now proud to inherit." (5) "The tenure of petit serjeanty is not named in 12 Cha. II. but the statute is not without its operation on this tenure. It being necessarily a tenure in capite, though in effect only so by socage, livery and primer seisin were of course incident to it on a descent, and these are expressly taken away by the statute from every species of tenure in capite, as well socage in capite as knight's service in capite. But we apprehend that in other respects petit serjeanty is the same as it was before, that it continues in denomination and still is a dignified branch of the tenure by socage, from which it only differs in name on account of its reference to war." Harg and Butl. Co. Litt. 108. b. n. 1. The tenure by which the grants to the duke of Marlborough and the duke of Wellington, for their great military services, are held, are of this kind, each rentering a small flag or ensign annnally, which is deposited in Windsor Castle. Littleton, (t) to be but tenure in socage: and it is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain. (u) It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually distinguished from other towns by the right of sending members to parliament; and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands which were formerly the scite of houses, in an ancient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy, which made it not worth while to compel them to an alteration of tenure: as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, [83] where a tenure is confessedly in socage, and yet could not possibly ever have been held by plough-service; since the tenants must have been citizens or burghers, the situation frequently a walled town, the tenements a single house; so that none of the owners was probably master of a plough, or was able to use one, if he had it. The free socage therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs affecting many of these tenements so held in ancient burgage: the principal and most remarkable of which is that called Borough English, so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil, (w) and by Littleton; (x) viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton (y) gives this reason; because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors (z) have indeed given a much stranger reason for this custom, as if the lord of the fee had anciently a right of concubinage with his tenant's wife on her weddingnight; and that therefore the tenement descended not to the eldest, but the youngest son, who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland (under the name of mercheta or marcheta), till abolished by Malcolm III. (a) And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle: and go to seek a new habitation. The youngest son, therefore, who continues latest with his father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many 5 u Litt. § 162, 163. a Seld. tit of hon. 2. 1. 47. Reg. Mag. l. 4. c. 31. (4) Bac. Ab. Tenure, O. Com. Dig. Burrough, E. z 3 Mod. Pref. (5) See Bac. Ab. and Com. Dig. tit. Burrough English, Cru. Dig. 1 vol. 133. id. 3 vol. 476. This custom prevailed in the manors of Ford, Cundover, Wem, and Loppington, in Staffordshire; Bishop Hampton, Hereefordshire; Havenbam, Sussex; Malden, Essex; Skidby, East Riding, Yorkshire; and some others. [84] other northern nations, it was the custom for all the sons but one to migrate from the father, which one became his heir. (b) So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. Other special customs there are in different burgage tenures; as that, in some, the wife shall be endowed of all her husband's tenements, (c) and not of the third part only, as at the common law and that, in others, a man might dispose of his tenements by will, (d) which, in general, was not permitted after the conquest till the reign of Henry the Eighth; though in the Saxon times it was allowable. (e) A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty. The nature of the tenure in gavelkind affords us a still stronger argument. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. " And as it is principally here that we meet with the custom of gavelkind (though it was and is to be found in some other parts of the kingdom) (f), we may fairly conclude that this was a part of those liberties; agreeably to Mr Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realm. (g) The distinguishing properties of this tenure are various; some of the principal are these; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen. (h) 2. The estate does not escheat in case of an attainder and execution for felony; their maxim being "the father to the bough, the son to "the plough." (i) 3. In most places he had a power of devising lands by will, before the statute for that purpose was made. (k) 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together; ) which was indeed anciently the most usual course of descent all over England, (m) though in particular places particular [85] customs prevailed. These, among other properties, distinguished 9 b Pater cunctos filios adultos a se pellebat, praeter unum quem haeredem sui juris relinquebat. (Walsingh. Upodigm. Neustr. c. 1.) c Litt. § 166. d § 167. f Stat. 32 Hen. VIII. c. 29 Kitch. of courts, 200. e Wright, 172. g In toto regno, ante ducis adventum, frequens et usitata fuit: postea caeteris adempta, sed privatis quorundam locorum consuetudinibus alibi postea regerminans : Cantianis solum integra et inviolata remansit. (Analect. 1. c. 2.7.) h Lamb. Peramb. 614. i Lamb. 634. 1 Litt. §210. k F. N. B. 193. Cro. Car. 561. m Glanvil, l. 7. c. 3. (6) See in general, Robinson on Gavelkind; Bac. Ab. and Com. Dig. tit. Gavelkind; Cru. Dig. 1. 106. 132. 144. 2. 541. 3. 475. 499.; Fearne's Con. Rem. 154. ; Preston on Conveyancing, 1 vol. 287. 290. H. Chitty on Descents, index, tit. Gavelkind. (7) The best historians shew that the Kentish men owed what the learned commentator calls the preservation of their ancient liberties, not, as supposed by him, to their successful resistance of the invader, but to their policy in yielding a ready and apparently spontaneous submission to his authority. See authorities in Bac. Ab. Gavelkind, A. Chitty. (8) "But if tenant in gavelkind, being indicted for felony, absent himself and is outlawed, after proclamation made for him in the county (or if formerly he had taken sanctuary, and had abjured the realm), his heir shall reap no benefit by the custom, but the lands shall escheat to the lord; and the king shall have year day and waste in them, if holden of another, in like manner as the common law directs, as to lands which are not subject to the custom of gavelkind." Rob. Gav. Chitty. 229. (9) Gavelkind and borough English, being customs already acknowledged by law, need not be pleaded; it is sufficient to shew that the lands are affected and regulated by the same; but all other private customs must be pleaded. H. Chitty on Descents, 162. It is also proper to observe, that there cannot be any ancient descent with respect to tithes, because laymen were incapable of holding them before the dissolution of the monasteries. See Doe, dem. Lushington v. Bishop of Llandaff, 2 New. R. 491.: where a rectory in Kent, formerly belonging to one of the dissolved monasteries, having been granted by Hen. VIII. to a layman, to be holden in a fee by knightservice in capite, it was held that the lands were descendible according to the custom of gavelkind; but the tithes according to the common law. See also H. Chitty's Descents, 200. this tenure in a most remarkable manner and yet it is said to be only a species of a socage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in its nature certain. (n) Wherefore by a charter of king John, (0) Hubert archbishop of Canterbury was authorized to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight's service; and by statute 31 Hen. VIII. c. 3. for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. 10 Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive should be conferred upon mere ploughmen and peasants; from all which I think it sufficiently clear that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers. Having thus distributed and distinguished the several species of tenure in free socage, I proceed next to shew that this also partakes very strongly of the feodal nature. Which may probably arise from its ancient Saxon original; since (as was before observed) (p) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large; till by successive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton, (q) their number and value began to swell so far, as to [86] make a distinct, and justly envied, part of our English tenures. However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along. 1. In the first place, then, both were held of superior lords: one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and his tenant. 2. Both were subject to the feodal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate (though perhaps nothing more than bare fealty), and so continues to this day. 3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant. (r) Which oath of fealty usually draws after it suit to the lord's court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court n Wright, 211. q c. 66. o Spelm. cod. vet. leg. 355. P pag. 48. (10) The gavelkind lands of several other persons in Kent, have been made descendible according to the rules of the common law, by special statutes. Rob. Gaveik. 75. baron; if it be only for the reason given by Littleton, (s) that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies. (1) 4. The tenure in socage was subject, of common right, to aids for [87] knighting the son and marrying the eldest daughter: (u) which were fixed by the statute Westm. 1. c. 36. at 20s. for every 201. per annum so held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12 Car. II. 5. Relief is due upon socage tenure, as well as upon tenure in chivalry; but the manner of taking it is very different. The relief on a knight's fee was 51. or one quarter of the supposed value of the land but a socage relief is one year's rent or render, payable by the tenant to the lord, be the same either great or small: (w) and therefore Bracton (x) will not allow this to be properly a relief, but quaedam praestatio loco relevii in recognitionem domini. So too 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 hath used to pay his lord, and shall not be grieved about measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age: but in socage they were due even though the heir was under age, because the lord has no wardship over him. (y) The statute of Charles II. reserves the reliefs incident to socage tenures; and therefore, wherever lands in fee-simple are holden by a rent, relief is still due of common right upon the death of a tenant. (2)1 6. Primer seisin was incident to the king's socage tenants in capite, as well as to those by knight-service. (a) But tenancy in capite as well as primer seisins are, among the other feodal burthens, entirely abolished by the statute. 7. Wardship is also incident to tenure in socage; but of a nature very different from that incident to knight-service. For if the inheritance de scend to an infant under fourteen, the wardship of him does not, nor [88] ever did, belong to the lord of the fee; because in this tenure, no military or other personal service being required, there was no occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant; but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance by no possibility can descend; as was fully explained, together with the reasons for it, in the former book of these commentaries. (b) At fourteen this wardship in socage ceases; and the heir may oust the guardian and call him to account for the rents and profits: (c) 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, and in the certainty of the render or service, that the socage tenures $ § 130. tEo maxime praestandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur. (Corvin. jus feod, l. 2. 1. 7.) w Litt. § 126. z 3 Lev. 145. u Co Litt. 91. x l. 2. c. 37. § 8. a Co. Litt. 77. b Book I. pag. 461. y Litt. §127. e Litt. § 123. Co. Litt. 89. (11) See the distinction between socage relief payable by special custom, and such as arise from express reservation, explained in Co. Litt. 93. a. n. 2. |