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the same nature) a species of grand serjeanty (0) if held of the king, and of knight-service if held of any other.

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 Escuage. respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfation to the lords in lieu of it, and the tenure to which it was incident was called scutagium in Latin, or servitium scuti: and in our Norman French, escuage.

A tenant by escuage could, instead of himself personally serving in war, send a substitute, or pay a compensation for the non-performance of the military service (p). When this kind of tenure became common, it would seem that sometimes grants were made with the reservation to the lord of a tribute of this kind, varying according to the expenditure which the lord had to incur in his own personal service to the king (q). In process of time the claim for escuage was levied by royal authority at so much for a knight's fee, the amount however being uncertain, like knight-service.

The first time this appears to have been taken was in the 5 Hen. II., on account of his expedition to Toulouse: *but it soon came to be so [*158] universal, that personal attendance fell quite into disuse. Hence we find in our ancient histories, that, from this period, when our kings went to war, they levied escuages or scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops; and these assessments, in the time of Hen. II., seem to have been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour; and king John was obliged to consent by his magna carta, that no scutage should be imposed without consent of parliament (r). But this clause was omitted in his son Henry III.'s charter, where we only find (8) that scutages or escuage should be taken as they were used to be taken in the time of Henry II.: that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. 1, c. 5 & 6, and many subsequent statutes (1), it was again provided, that the king should take no aids or tasks but by the common assent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament (u); such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

Since, therefore, escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton (x) must be understood, when he tells us, that

(0) Ib. s. 156. The well-known case of the Pusey Horn, where a bill in Chancery was brought for its recovery (Pusey v. Pusey, 1 Vern. 273), was an instance where land had been held by the Pusey family by "a horn anciently given to their ancestors by Canute, the Danish King." Camd. Brit. Berks. p. 203, ed. 1607. The inscription on the horn was as follows:

"King Knowd gave Wyllyam Pewse This horne to hold by the londe."

-Archæolog. iii. 13.

(p) Litt. s. 96.

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tenant by homage, fealty, and escuage, was tenant by knight-service: that is, that this tenure (being subservient to the military policy of the nation) was respected (y) as a tenure in chivalry (z). But as the actual service was *uncertain, and depended upon emergencies, so it was necessary that [*159] this pecuniary compensation should be equally uncertain, and depend

on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure, instead of knight-service, would have then been of another kind, called socage (a), of which we shall speak in the next chapter.

Corruption of

For the present we may observe, that by the degeneration of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feudal constitution were military tenures destroyed, and nothing but the hardships remained. Instead of by escuage. forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. In the meantime the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable in defect of personal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emolumen ts arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as sir Thomas Smith (b) very feelingly *complains, "when he came to his own, after [*160] he was out of wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren," to reduce him still farther, he was yet to pay half a year's profits as a fine for suing out his livery; 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 untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation.

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. Till at length king James I. consented (c), in consideration of a proper equivalent, to abolish them all; though the plan proceeded not to

(y) Wright, 122.

(a) Litt. s. 97, 98, 120. Escuage certain is (2) Pro feodo militari reputatur. Flet. 1. 2, according to Littleton included in socage. c. 14, s. 7.

(b) Commonw. 1. 3, c. 5.
(c) 4 Inst. 202.

effect; in like manner as he had formed a scheme, and began to put it in execution for removing the feudal grievance of heritable jurisdictions in Scotland (d), which has since been pursued and effected by the statute 20 Geo. 2, c. 43 (e). King James's plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; with this difference only, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent was to have been settled and inseparably annexed to the crown and assured to the inferior lords, payable out of every *knight's fee within their respective [*161] seignories. An expedient seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions (f). For at length the military tenures, with all their Military tenures heavy appendages (having during the Commonwealth been disdestroyed. continued), were destroyed at one blow by the statute 12 Car. 2, 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 (g). And that all fines for alienations, 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, copyholds, and the honorary services (other than wardship, marriage, and *charges incident to knight-service) of grand serjeanty (h). A statute, which was a greater acquisition to the civil

(d) Dalrymp. of Feuds, 292.

(e) By another statute of the same year (20 Geo. 2, c. 50), the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland.

(f) By 12 Car. 2, c. 24, the compensation given to the crown consisted of excise duties on beer, wine, &c. Somewhat later, (in the reign of William and Mary) the practice was adopted of granting a land tax. This long continued to be imposed for periods of one year only. In 1798, under Mr. Pitt's administration, it was made perpetual; provision at the same time being made for its redemption by landowners, (see 38 Geo. 3, c. 60). The act now in force as to land tax and its redemption is 42 Geo. 3, c. 116, amended by several acts, the principal of which are: 53 Geo. 3, c. 123; 4 & 5 Will. 4, c. 60; 5 & 6 Vict., c. 37. (g) Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the title and body of the act, viz., of taking away tenures in capite (Mad. Bar. Ang. 238; Co Litt. 108, n. 5); for tenure in capite signifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of military or socage tenure. The same incorrect language was held by the Speaker of the House of Commons in his pedantic address to the throne upon presenting this bill:-" Royal sir, your tenures in capite are not only turned into a tenure in socage (though that alone will for ever give your Majesty a just right and title to the labour of our ploughs, and the sweat of our brows); but they are likewise turned into a

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tenure in corde. What your Majesty had before in your court of wards, you will be sure to find it hereafter in the exchequer of your people's hearts." Journ. Dom. Proc. 11

vol. 234.

(h) "The tenure by grand serjeanty still continues, though it is so regulated by the 12th of Chas. 2 as to be made in effect free and common socage, except so far as regards the merely honorary part of grand serjeanty; for the first part of the statute, which destroys the incidents to tenures by knight's service, of which grand serjeanty was the highest species, is expressed with a generality sufficient to reach grand serjeanty; but then a proviso follows by which the honorary services of this tenure are expressly saved. It is observable, that the proviso for this purpose is penned with an inaccuracy which leads to a very mistaken idea of the incidents to grand serjeanty. The honorary services are preserved with a cautious exception of several burthensome properties, such as marriage, wardship, and voyages royal; to which are added escuage, and the aids pur faire fitz chivaler et file marier, though these latter were certainly quite foreign to grand serjeanty. From this undistinguishing mode of expression, and from the confusion and redundancy so conspicuous in most parts of the statute, we are inclined to infer that those who attribute the framing of it to Lord Chief Justice Hale, found themselves on a loose report very injurious to the memory of that shining ornament of his profession." Gilb. Eq. R. 176. Harg. Co. Litt. 108 a.

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property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of King Charles extirpated the whole, and demolished both root and branches.

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of socage, &c., Car. 2, c. 14.

*CHAPTER VI.

MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feudal constitution was abolished, yet we are not to imagine that the constitution itself was utterly laid aside, Ancient tenures and a new one introduced in its room: for by the statute 12 Car. reserved by 12 2, the tenures of socage and frankalmoign, the honorary services of grand serjeanty (a), and the tenure by copy of court roll, were preserved; and all other tenures were not so much destroyed as reduced to one general species, then well known and subsisting, called free and common socage. And this, since it sprang from the same feudal origin as the rest, suffices to indicate the necessity of considering that ancient system; for it is that alone to which we can recur, to explain any seeming or real difficulties that may arise in our present mode of tenure. (229)

The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, or free-socage, consisted also of free and honourable services; but such as were reduced to an absolute certainty. To this tenure, which not only *exists at this day, but has in a manner absorbed and swallowed up [* 164] (since the statute of Charles II.) almost every other species of tenure, we are next to proceed.

Socage tenure.

Socage, in its most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our ancient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton (b); if a man holds by a rent in money, without any escuage or serjeanty, "id tenementum dici potest socagium:" but if you add thereto any royal service, or escuage, to any the smallest amount, "illud dici poterit feodum militare." So too the author of Fleta (c); "ex donationibus, servitia militaria vel magnae serjantiae non continentibus, oritur nobis quoddam nomen generale, quod est socagium." Littleton also (d) defines it to be, where the tenant holds

(a) The tenure of grand serjeanty was destroyed by the statute along with the other tenures in chivalry (of which this was one; ante, p. 156). It was the honorary services only which were reserved.

(b) L. 2, c. 19, s. 9.
(c) L. 3, c. 16, s. 9.
(d) Sect. 117.

(229) For a discussion of the doctrine of socage tenures see 3 Kent's Com. 509 to 514 and notes; Story's Const. U. S., §§ 172, 173, 174.

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. And therefore afterwards (e) he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner it is defined by Finch (ƒ), as a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage; as to hold by fealty and 20s. rent; or, by homage, fealty, and 20s. rent; or by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord's land for three days; or, by fealty only without any other service: for all these are tenures in socage (g).

Free and villein socage.

Free socage.

*

But socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain but honourable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil (h), [*165] and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak; and this both in the nature of its service, and the enjoyment of its privileges was always by much the most free and independent species of any. The word socage (i) has been derived from the Saxon appellation soc, which signifies a franchise or jurisdiction, and being joined to a usual termination, is called socage, in Latin, socagium; signifying thereby a free and privileged tenure. This etymology seems to be much more just than that of our common lawyers in general (k), who derive it from soca, an old Latin word, denoting (as they tell us) a plough: for that in ancient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of its origin, it still retains the name of socage or ploughservice (1). But this by no means agrees with what Littleton himself tells us (m), that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service.

The possession of freedom and the right of attending the feudal territorial courts as suitors and judges were the most marked and valued distinctions of the sokemanni, who certainly were considered in ancient times with great respect (n). Britton describes lands in socage tenure, * under the name of franke [* 166] ferme, as being "lands and tenements 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 claimed" (0). This, though not as we see accurate, inasmuch as these claims might be made, though in a different manner to that in military tenures, yet expresses with some truth the freedom of socmen from many of the oppressive qualities of these demands.

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