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(3) In most places, the tenant always had a power to will.
(4) The lands descend to all the sons together, as anciently the most usual course of descent throughout England.
A Species of Socage Tenure. Yet gavelkind was only a species of 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.
Socage Tenure among the Saxons. Tenure in free socage partakes very strongly of the feudal nature. Feuds were not unknown among the Saxons, though they did not form part of their military policy. Socage tenure existed in much the same state before the conquest as afterwards. By success
By successive charters of enfranchisement granted to the tenants, the number and value of socage tenures became very great.
Socage and Chivalry Compared. The tokens of their feudal original appear, from a comparison of the incidents and consequences of socage tenure with those of tenure in chivalry:
1. How Land Held. 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 bis tenant.
2. Subject to Rent. Both were subject to the feudal return, rent or some service, based on an original grant from the lord to his tenant. In the military tenure or feud, this was from its nature uncertain; while in socage, which was a feud of an improper kind, it was certain, fixed and determinate, though perhaps nothing more than bare fealty.
3. Oath of Fealty. Both from their constitution were subject to the oath of fealty, which usually drew after it suit to the lord's court. And this oath, every lord, of whom tenements are held, should call on his tenants to take in his court baron; otherwise it may grow out of memory, whether the land be held of the lord or not, and so he may lose his seignory, and the profits which may accrue to him from escheats or like contingencies.
4. Aids. The tenure in socage was subject to aids for knighting the son and marrying the eldest daughter. These aids originally were mere benevolences, though afterwards claimed as a matter of right, but were all abolished under Charles II.
5. Reliefs. Relief is due upon socage tenure, as well as upon tenure in chivalry, but the manner of taking it differed. The relief in 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. 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 if the heir was under age, because the lord had no wardship over him.
6. Primer Seisin. Primer seisin was incident to the king's socage tenants, as well as to those by knight service. But tenancy in capite, as well as primer seisin, were abolished by the statute.
7. Wardships. Wardship is also incident to tenure in socage, but of a nature different from that incident to knight service. For if the inheritance descend to an infant under fourteen, the wardship does not 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 substitute for his infant tenant. But his nearest relative, to whom the inheritance cannot descend, shall be his guardian in socage, and have the custody of his land and body, until the ward arrive at the age of fourteen.
Guardian. At fourteen, this wardship in socage ceases, and the heir may then oust the guardian, and call him to account for the rents and profits, for at this age the law supposes him capable of choosing a guardian for himself. It is true that young heirs, being left at such tender age to choose their own guardians till twenty-one, might make an improvident choice. Therefore, when almost all the lands in the kingdom were turned into socage tenures, the statute of Charles Il enacted, that a father might by will appoint a guardian, till his child should attain the age of twenty-one. If no such appointment be made, the court of chancery will frequently interpose and name a guardian.
8. Marriage. In socage tenure, marriage was not any perquisite to the guardian, but rather the reverse. For if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage. The law in favor of infants is always jealous of guardians, and made them account in this case, not only for what they did, but also for what they might receive on the infant's behalf, lest by collusion the guardian should have received the value, and not accounted therefor. But the statute having destroyed all values of marriage, this doctrine has ceased with them. At fourteen years of age, the ward might have disposed of himself in marriage, without consent of his guardian, till the act preventing clandestine marriages. The doctrines of wardship and marriage in socage tenure, as thus shown, were opposed to those in knight service.
9. Fines for Alienation. These were probably due for lands holden of the king in capite by socage tenure, as well as in tenure by knight service, but now all fines by alienation are abolished.
10. Escheats. These are equally incident to tenures in socage as in knight-service, except in gavelkind lands, which are subject to no escheats for felony, though they are to escheats for want of heirs.
Merger of These Tenures. Under these two species of tenures, almost all the free lands of the kingdom were held until the restoration in 1660, when the former were abolished and sunk into the latter, so that the lands of both sorts are now held by one universal tenure of free and common socage. III. PURE VILLENAGE.
A Division of Tenures. Villenage is another grand division of tenure, as distinguished from liberum tenementum, or frank tenure. It is subdivided into pure and privileged villenage. From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court roll, at the will of the lord, in order to obtain a clear idea of which, it is requisite to show the nature of manors.
Manors. These are as ancient as the Saxon constitution, just as was the case with feuds. They differed in some immaterial circumstances from those that now exist. A manor, erium, a manendo, because the usual residence of the owner, was a district of ground held by lords, who kept in their own hands as much land, as was necessary for the use of their families, which were called demesne lands, being occupied by the lord, or dominus manerii, and his servants.
Tenemental Lands. The other, or tenemental lands, they distributed among their tenants, which lands from the different
modes of tenure, were distinguished by the names of book-land and folk-land.
Book-land. Book-land or charter-land was held by deed, under certain rents and free services, and in effect differed nothing from the free socage lands, and from hence have arisen most of the freehold tenants, who have particular manors, and owe suit and service for the same.
Folk-land, Folk-land was held by no written assurance, but distributed among the common folk, at the pleasure of the lord, and resumed at his discretion, being land held in villenage.
Waste Lands. The residue of the manor, being uncultivated, was termed the lord's waste, and served for public roads, and for common of pasture to the lord and his tenants.
Court-baron. Manors were formerly called baronies, as they are still lordships, and each lord or baron could hold a domestic court, called the court-baron, for redressing nuisances and misolemeanors within the manor, and for settling disputes of property among the tenants. Two tenants at least were necessary for a jury, in default of which number, the manor was lost.
Results of Subinfeudation, In early times, the king's greater barons, who held a large extent of territory under the crown, granted out smaller manors to inferior persons, to be holden of themselves. The superior lord is called the lord paramount over such manors, and his seignory is frequently called an honor and not a manor. The inferior lords granted to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum. The superior lords, by this process of subinfendation, lost all their feudal profits of wardships, marriages and escheats, which fell into the hands of these middle or mesne lords, who were the immediate superiors of the terre-tenants, who occupied the land.
Quia Emptores Statute. This occasioned a provision in the amended charter of Henry III, that no man should either give or sell his land, without reserving sufficient to answer the demand of his lord, and by statute of quia emptores of Edward I, that in all feoffments or sales of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. Also by later statute, no tenant in capite since the accession of Edward I, and no tenant of a common lord since the statute of quia emptores, could create any new tenants to hold of himself.
Folk-land. With regard to the folk-land or estates held in villenage, this was a species of tenure, neither strictly feudal, Norman nor Saxon, but compounded of them all. Under the Saxon government, the holders were people in a condition of servitude, employed in servile occupations, and belonging like caitle to the lord of the soil. They held the folk-land, from which they were removable at the lord's pleasure. On the arrival of the Normans, it was probable they admitted these wretched persons to the oath of fealty, thus raising them to an estate superior to slavery, but inferior to every other condition.
Origin of Word “Villenage.” This they called villenage, and the tenants villeins, either from the word vilis, or else as Coke asserts from a villa, because they lived chiefly in villages, and were employed in rustic works of a sordid kind, resembling the Spartan helots, to whom alone the culture of the lands was consigned; their ruggeil masters, like our northern ancestors, esteeming war the only honorable employment.
Baseness of Villenage. These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land, or villeins in gross, or at large, that is annexed to the person of the lord, and transferable by deed from one person to another. They could not leave their lord without his permission, but if they ran away or were purloined, could be recovered by action, like beasts or chattels. They held indeed some small portions of land by way of taining themselves, but it was at the mere will of the lord, who might dispossess them at his option. They held it upon villein services of the meanest kind, which services were not only base, but uncertain as to time and quantity. Their condition was like that of the boors in Denmark or the traals in Sweden, and apparently were monuments of Danish tyranny.
Property of a Villein. A villein could acquire no property in lands or goods, but if he purchased either, the lord might seize them to his own use, unless the villein had previously disposed of them.
Marriage of a Villein. In many places a fine was payable to the lord, if the villein presumed to marry his daughter to any one, without leave of the lord, and by the common law,