were such as were fit only for peasants, and persons of servile rank; as to plough the lord's land, to make his 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 pretence; as to pay a stated annual rent, or to plough such a field for three days. The uncertain depended on unknown contingencies; as to do military service in person, or pay an assessment in lieu of it, when called upon, which are free services, or to do whatever the lord should command; which is a base or villein service. 6. From the various combinations of these services arose the four kinds of lay tenure which subsisted in England till the middle of the seventeenth century; and three of which subsist to this day. First, where the service was free but uncertain, as military service; that tenure was called chivalry, servitium militare, or knight service. Secondly, where the service was not only free, but also certain; as by fealty only, by rent and fealty, &c. That tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villeinous 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 purè 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, 7. Although, in the first instance, all the lands Tenure in in England were held immediately of the king, yet Capite. in consequence of the right of subinfeudation which, prevailed in those times, the king's chief tenants granted a considerable part of their estates to inferior persons, to hold of themselves; by which mesne or middle tenures were created; from whence. arose several distinctions, as to the manner in which lands were held. 8. Estates might be held of the king, or of a private individual, in two ways; either as of his person, or as of an honor or manor of which he was seised; and every holding of the person was, strictly speaking, a tenure in capite; but still that ex- 1 Inst.108. a. 12 Rep. 136. pression was always confined to a tenure of the king, in right of his crown and dignity; or, as it was formerly expressed, ut de corona, or ut de persona ; for wherever the holding was of the person of a Fitz. N. B. 3. subject, it was called a tenure in gross. 9. Tenure in capite was in general so inseparable from a holding of the person of the king, that if lands were granted by the king, without reserving any tenure, or absque aliquo inde reddendo, Lowe's Case, 9 Rep. 122. or the like; there the lands, by operation of law, should be held of the king in capite; because that tenure was the most advantageous to the crown. 10. Where an honor or barony, originally created by the king, returned to the crown, by forfeiture or escheat, the persons who held their lands of such honor or barony became tenants to the crown, and were said to hold of the king, ut de honore de A., &c. This distinction of tenure was extremely important to those who held of such honors or baronies; for by an article of the magna charta of 2 Inst. 64. King Henry III. c. 31., it is declared that persons Fitz, N. Dyer, 44. holding of honors escheated, and in the king's hands, shall pay no more relief, nor perform more services, to the king, than they should to the baron, if it were in his hands. 11. Where lands were held of the king, as of an honor, castle, or manor escheated to the crown, 1 Inst. 108. a. the tenure was therefore not in capite. And where St. 1 Edw. 6. lands were granted by the king, to hold of him as of his manor of A., this was not a tenure in capite. c. 4. Estwick's Case, 12. Thus where lands were granted by King 12 Rep. 135. Philip and Queen Mary; tenendum de nobis ut de manerio nostro de Greenwich in capite; it was resolved that the lands were held of the king, as of the honor, and not in capite. The reason was, that tenure of the king in capite was as much as to say tenure in gross, or of the person of the king. And though it appeared from antient records that formerly all tenures in gross, or of the person of a subject, were called tenures in capite, yet, of late time, dicitur de rege solummodo terras teneri in capite. Case of Statute of tores. 13. King James I., by a commission under the great seal, authorized certain commissioners to grant the manor of Dale to A. and his heirs. The commissioners granted the lands to A. and his heirs, to hold by knight service, as of his majesty's castle of Dublin. It was resolved by a majority of the judges in Ireland that this was not a tenure in capite. 14. In the case of private individuals, any person might formerly, by a grant of lands, have created a tenure of his person, or of any honor or manor whereof he was seised. If no tenure was 2 Inst. 501. reserved, the feoffee would have held of the feoffor, by the same services by which he held over. This 1 Inst. 98. b. doctrine, having been found to be attended with several inconveniences, was altered in the reign of Edward I. by the statute Quia emptores terrarum, 18 Ed. 1. c.1. which directs that upon all sales or feoffments of lands, 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. These pro visions not extending to the king's own tenants in capite, the like law concerning them is declared by the statutes of Prerogativa Regis, and 34 Ed. III. 17 Ed.2. c.6. c. 15., by which last all subinfeudations previous to the reign of Edward I. were confirmed; but all subsequent to that period were. left open to the Vide Tit. 32. king's prerogative. c. 1. St. 17 Ed. 2. 15. Every tenant was bound to do homage to Homage. his lord, for which purpose he was to kneel down Lit. § 85. before him and say "I become your man from this day forward of life and limb, and of earthly worship; and unto you shall be true and faithful, and bear you faith for the tenements that I claim to hold of you; saving the faith that I owe unto our sovereign lord the king." And the lord, being seated, kissed him. 16. Homage must have been done in person, not by attorney; the performance of it, where it was due, materially concerned both the lord and the tenant, in point of interest and advantage. To the lord it was of consequence, because, till he had received 1 Inst. 66. b. homage of the heir, he was not entitled to the wardship of his person or estate. To the tenant the * The idea of this law was probably taken from the ordonnance of Philip Augustus, which has been mentioned in the preceding chapter, § 61. 67. b. n. l. 2 Inst. 10. Fealty. 1 Inst. 68. a. Wright, 55. n. Tenure by homage was equally important; for antiently every kind of homage, when received, bound the lord to acquittal and warranty; that is, to keep the tenant free from distress, entry, or other molestation for services due to the lord paramount; and to defend his title to the land against all strangers. 17. Another duty to which every person who held lands was subject, was fealty; which is thus described by Littleton, § 91.-" And when a freeholder doth fealty, he shall hold his right hand upon a book, and shall say thus: Know you this, my lord, that I shall be faithful and true unto you, and faith to you shall bear, for the lands which I claim to hold of you; and that I shall lawfully do to you the customs and services which I ought to do, at the time assigned; so help me God and his saints;' and he shall kiss the book." 18. Fealty and homage were perfectly distinct from each other; for though fealty was an incident to homage, and ought always to have accompanied it, yet fealty might be by itself; being something done when homage would have been improper. So that homage was inseparable from fealty; but fealty was not so from homage. 19. The first and most honourable kind of tenure was by knight service, servitium militare. To make a tenure of this kind, a determinate quantity of land was necessary, which was called a knight's fee, 1 Inst. 69. a. feodum militare, the measure of which is by some Mad. Exch. 4° V. 1.321. antient writers estimated at 800 acres of land, and by others at 680. Lord Coke was of opinion that a knight's fee was to be esteemed according to the quality, and not the quantity of the land; and that £20 a year was the qualification of a knight: |