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king generally in the wars, to do some special honorary service to the king in person, as to carry his banner or sword, or to be his butler or other officer at his coronation.
Tenure by cornage was to wind a horn, when the Scotch or other enemies entered ths land, in order to warn the king's subjects. These services of chivalry and grand serjeanty were all personal, and uncertain as to their quality or duration.
Compounding for Knight-Service. Escuage. But the personal attendance in knight-service growing troublesome in many respects, the tenant found means of compounding for it, by sending another in his stead, and in process of time making a pecuniary satisfaction to the lord in lieu of it. This satisfaction at last came to be levied by assessments, at so much for every knight's fee; hence this kind of tenure was called in Latin scutagium, scutum being a denomination for money, or escuaye in Norman French, being a pecuniary instead of a military service. This first took place in the reign of Henry II, and became universal. In this reign, these assessments were made arbitrarily and at the king's pleasure. King John was compelled to agree, that no scutage should be imposed without consent of parliament. If the escuage had been a settled, invariable sum, payable at certain times, it would have been but a mere pecuniary rent, and the tenure, instead of knight service, would have been socage.
Result of Escuage. By the degeneration of personal military duty into escuage or pecuniary assessments, all the advantages of the feudal constitution were destroyed, and nothing but the hardships remained.
Burdens of the Feudal System. Instead of forming a national militia composed of gentlemen, bound by their interests, honor and oaths to defend their king and country, the system of tenures became merely a means of raising money to pay mercenaries. Meanwhile the families of our nobility and gentry groaned under burdens imposed on them by the subtlety of the Norman lawyers. For beside the scutages, to which they were liable in defect of personal attendance, they might be called upon for aids by the king or lord paramount, when his eldest son was to be knighted, or his eldest daughter to be married. The heir, if of full age, on the death of his ancestor, was plundered of his first emoluments by way of relief or primer seisin, and if under age, of his entire estate during his infancy. He was then to pay half a year's profits, as a fine for suing out his livery, and 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 expensive honor of knighthood, and when with fortune shattered he was obliged to sell what was left of his patrimony, he was compelled to pay an exorbitant fine for the license of alienation.
Abolishment of Tenures. Some temporary grievances were assuaged by successive acts of parliament, till at length James I, for an equivalent, consented to abolish them all, which was not carried into practical execution, until the reign of Charles II, when at length the military tenures, with their heavy appendages, were destroyed at one blow. By statute, all sorts of tenures, held of the king or others, were turned into free and common socage, save only tenures in frankalmoign, copyhold and the honorary services of grand serjeantry. This statute was a greater acquisition to the civil property of the kingdom than magna carta itself, since that only pruned the luxuriances that grew out of military tenures, but the statute of king Charles extirpated both root and branches.
CHAPTER VI.-MODERN ENGLISH TENURES.
Reduction of Tenures. Although in the reign of Charles II, the oppressive or military part of the feudal constitution itself was happily annulled, yet no new constitution was introduced, since by the statute certain tenures above stated were reserved, while the other tenures were reduced to one general species of tenure, called free and common socage. This being sprung from the same feudal original as the rest, necessitates the contemplation of the ancient system. The military tenure, or knight service, consisted of services deemed free and honorable, but uncertain as to time. The second species of tenure or free socage consisted of similar free services, but such as were reduced to an absolute certainfy. And this tenure now exists, having absorbeil the other tenures.
Defined. In its general signification, socage denotes a tenure by any certain and determinate service. It differs thus from knight service or chivalry, where the render was precarious and uncertain. It is defined to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services, so that they be not services of chivalry or knight service; hence whatsoever is not tenure in chivalry is tenure in socage. The service must be certain, as to hold by fealty and a fixed rent, or by homage, fealty and a fixed rent, or by homage and fealty without rent, or by fealty and certain corporal services, as by ploughing the lord's land for a certain time, or by fealty alone, without other service, for all these are tenures in socage.
Division. Socage is of two sorts: free socage, where the services are not only certain but honorable, and villein socage, where the services, though certain, are of a baser nature.
Derivation of Name. Tenants in free socage held by the former tenure, and were termed liberi sokemanni. The Saxon word soc signifies liberty or privilege, and socage, in Latin socagium, is a free or privileged tenure. Some lawyers derive the term from soca, an old Latin word, meaning a plough, as that in ancient times the socage tenure consisted in nothing else but services in husbandry, which the tenant was bound to perform for his lord. In process of time, this service was changed into an annual rent, by consent of all parties. Hence they retained the name, socage or plough service. Littleton however tells us, that to hold by fealty only, without paying any rent, is tenure in socage, for here is plainly no commutation for plough service.
Socage, a Preferable Tenure. Even services, confessedly military, the instant they were reduced to a certainty, changed their name and nature, and were called socage. It was the certainty therefore that denominated it a socage tenure. It was not left to the arbitrary calls of the lord, as were the tenures of chivalry. Britton describes lands held in socage tenure, as those, whereof the nature of the fee is changed by feoffment out of chivalry for certain yearly services, and in respect whereof neither homage, ward, marriage nor relief can be demanded, Which leads us to inquire, that if socage tenures were of such base and servile original, as the derivation from the word plough or soca would indicate, it is hard to account for the great immunities the tenants of such tenures always enjoyed, so highly superior to those of tenants by chivalry. In the reigns of Edward I and of Charles II, it was deemed of great value to tenants, to reduce the tenure by knight service to tenure by socage.
Socage Tenures, the Relics of Liberty. It is probable that 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 honorable but more burthensome tenure of knight service. This is specially remarkable in the tenure called gavelkind, which prevails in Kent, a species of socage tenure, preserved from the Norman innovations. Those who thus preserved their liberties were sail to hold in free and common socage.
Other Methods of Holding Free Lands. As the distinguishing mark of this species of tenure is the having its renders or services ascertained, it will include all other methods of holding free lands by certain rents and duties, and in particular, petit serjeanty, tenure in burgage, and gavelkind.
etit Serjeanty. By statute of Charles II, grand serjeanty was not totally abolished, but only the slavish appendages attached to it, while the honorary services, as officiating at a coronation, are still retained. Petit serjeanty resembles it, for as grand serjeanty is a personal service, so the other is a rent or render, both tending to a purpose relating to the king's person. Petit serjeanty consists in holding lands of the king, by the service of rendering to him annually some small implement of war. This is but socage in effect, says Littleton, for it is no personal service, but a certain rent, liberum et commune socagium. Magna carta enacted, that no wardship of the lands or body should be claimed by the king, in virtue of a tenure by petit serjeanty.
Tenure in Burgage. This is where the king or a subject is lord of an ancient borough, in which the tenements are held by a rent certain. A borough is distinguished from other towns, by the right of sending members to parliament. Burgage tenure is where houses, or lands, which were formerly the site of houses, in an ancient borough, are held of some lord in common socage, by a certain established rent. They stood the shock of Norman encroachments, mainly on account of their insignificance, as a hundred of them together would hardly have aggregated a knight's fee. Besides the owners of them, being chiefly artificers,
and persons engaged in trade, could not with any propriety, hold a tenure in chivalry. Here also is an instance of a tenure in socage, and yet not held by plough service.
Borough English. The free socage, in which these tenements are held, is a remnant of Saxon liberty, which may explain 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," viz., that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. Littleton assigns as a reason for this, that the youngest son, by reason of his tender age, is not so capable as the rest to help himself. Other authors have assigned a most singular reason for this custom; that the lord of the fee had anciently a right of concubinage with liis tenant's wife on her wedding night, and hence it was more probable, that the youngest son was the offspring of the tenant., This custom did prevail in Scotland, but it is not known that it extended to England.
Custom of the Tartars. Among the Tartars, this custom of descent to the youngest son prevails. That nation is composed of shepherds and herdsmen, and the elder sons migrate from their father with a certain allotment of cattle, and seek a new habitation. The youngest son, remaining latest with his father, is naturally the heir of his house, the rest being already provided for. So also among many other northern nations. This custom may be the remnant of the pastoral state of our British and German ancestors, as described by Caesar and Tacitus.
Special Customs. Other special customs exist in different burgage tenures, as that in some, the wife shall be endowed in all her husband's tenements, and not of tlie third part only, as at the common law, and a man might dispose of his tenements by will, which was not allowed after the conquest, until the reign of Henry VIII, though in the Saxon times, it was allowable.
Gavelkind. The successful struggle of the men of Kent to retain a portion of their ancient liberties resulted in their maintaining the custom of gavelkind, the properties of which tenure are:
(1) The tenant is of age at fifteen, sufficient to aliene his estate by feoffment.
(2) The estate does not escheat in the case of attainder and execution for felony, the maxim being, “the father to the bough, the son to the plough.”