knight's service. But where the sum which the tenant shall pay for es- Escua

shall

cuage is uncertain, scil. where it may be that the sum that the tenant be exstain! pay for escuage to his lord may be at one time more and at another time less, according as it is assessed, &c., such tenure is tenure by knight's service.

Also, if a man holdeth his land to pay a certain rent to his lord for castle-guard, this tenure is tenure in socage. But where the tenant ought by himself or by another to do castle-guard, such tenure is tenure by knight's service.

Also, in such tenures in socage, if the tenant have issue and die, his

issue being within the age of fourteen years, then the next friend (ledshif

prochein amy) of that heir, to whom the inheritance cannot descend (a que le heritage ne poet descender), shall have the wardship of the land and of the heir until the age of fourteen years, and such guardian is called guardian in socage. For if the land descend to the heir of the part of the father, then the mother, or other next cousin of the part of the mother, shall have the wardship. And if land descend to the heir of the part of the mother, then the father, or next friend of the part of the father, shall have the wardship of such lands or tenements. And when the heir cometh to the age of fourteen years complete, he may enter and oust the guardian in socage, and occupy the land himself if he will. And such guardian in socage shall not take any issues or profits of such lands or tenements to his own use, but only to the use and profit of the heir; and of this he shall render an account to the heir when it pleaseth the heir, after he accomplisheth the age of fourteen years. But such guardian upon his account shall have allowance of all his reasonable costs and expenses in all things, &c. And if such guardian marry the heir within age of fourteen years, he shall account to the heir or his executors of the value of the marriage, although that he took nothing for the value of the marriage; for it shall be accounted his own folly that he would marry him without taking the value of the marriage, unless that he marrieth him to such a marriage that is as much worth in value as the marriage of the heir.

Also, the lord of whom the land is holden in socage, after the decease of his tenant, shall have relief in this manner. If the tenant holdeth by fealty and certain rent to pay yearly, &c., if the terms of payment be to pay at two terms of the year, or at four terms in the year, the lord shall have of the heir his tenant as much as the rent amounts unto, which he payeth yearly. As if the tenant holds of his lord by fealty, and ten shillings rent payable at certain terms of the year, then the heir shall pay to the lord ten shillings for relief, beside the ten shillings which he payeth for the rent.

And in this case, after the death of the tenant, such relief is due to the lord presently, of what age soever the heir be; because such lord cannot have the wardship of the body nor of the land of the heir. And the lord in such case ought not to attend for the payment of his relief, according to the terms and days of payment of the rent; but he is to

Relief

have his relief presently, and therefore he may forthwith distrain after the death of his tenant for relief.

In the same manner it is, where the tenant holdeth of his lord by fealty and a pound of pepper or cummin, and the tenant dieth, the lord shall have for relief a pound of cummin or a pound of pepper, besides the common rent. In the same manner it is, where the tenant holdeth to pay yearly a number of capons or hens, or a pair of gloves, or certain bushels of corn, or such like.

But in some case the lord ought to stay to distrain for his relief until a certain time. As if the tenant holds of his lord by a rose, or by a bushel of roses, to pay at the feast of St. John the Baptist, if such tenant dieth in winter, then the lord cannot distrain for his relief until the time that roses by the course of the year may have their growth, &c. And so of the like.

Co. LIT. 77 a. He that holdeth of the king by socage in chief, and mrpusindieth, his heir of full age, the king shall have livery and primer seisin only of the lands so holden, and not of the lands holden of others. But if the heir of such a tenant in socage in chief be within the age of fourteen at the death of his ancestor, he shall neither sue livery, nor pay primer seisin, either then or any time after; and the reason thereof is, for that the custody of his body and lands in that case belong to the prochein amy, as guardian in socage. Neither shall the king have primer seisin of lands holden in burgage (as some have said), for that it is no tenure in capite.

LIT. §§ 130-132, 159-165, 265. Also, if any will ask why a man may hold of his lord by fealty only for all manner of services, insomuch as when the tenant shall do his fealty, he shall swear to his lord that he will do to his lord all manner of services due, and when he hath done fealty, in this case no other service is due. To this it may be said, that where a tenant holds his land of his lord, it behooveth that he ought to do some service to his lord. For if the tenant nor his heirs ought to do no manner of service to his lord nor his heirs, then by long continuance of time it would grow out of memory, whether the land were holden of the lord or of his heirs, or not, and then will men more often and more readily say, that the land is not holden of the lord, nor of his heirs, than otherwise; and hereupon the lord shall lose his escheat of the land, or perchance some other forfeiture or profit which he might have of the land. So it is reason, that the lord and his heirs have some service done unto them, to prove and testify that the land is holden of them.

And for that fealty is incident to all manner of tenures, but to the tenure in frankalmoign (as shall be said in the tenure of frankalmoign), and for that the lord would not at the beginning of the tenure have any other service but fealty, it is reason, that a man may hold of his lord by fealty only; and when he hath done his fealty, he hath done all his services.

Also, if a man letteth to another lands or tenements for term of life,

without naming any rent to be reserved to the lessor, yet he shall do fealty to the lessor, because he holdeth of him. Also if a lease be made to a man for term of years, it is said that the lessee shall do fealty to the lessor, because he holdeth of him. And this is well proved by the words of the writ of waste, when the lessor hath cause to bring a writ of waste against him; which writ shall say, that the lessee holds his tenements of the lessor for term of years. So the writ proves a tenure between them. But he which is tenant at will according to the course of the common law, shall not do fealty, because he hath not any sure estate. But otherwise it is of tenant at will according to the custom of the manor; for that he is bound to do fealty to his lord for two causes. The one is by reason of the custom; and the other is, for that he taketh his estate in such form to do his lord fealty.

Tenure by petit serjeanty is, where a man holds his land of our sovereign lord the king to yield to him yearly a bow, or a sword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or a pair of gilt spurs, or an arrow, or divers arrows, or to yield such other small things belonging to war.

And such service is but socage in effect; because that such tenant by his tenure ought not to go, nor do anything, in his proper person, touching the war, but to render and pay yearly certain things to the king, as a man ought to pay a rent.

And note, that a man cannot hold by grand serjeanty, nor by petit serjeanty, but of the king, &c.

Tenure in burgage is where an ancient borough is, of which the king is lord, and they that have tenements within the borough hold of the king their tenements; that every tenant for his tenement ought to pay to the king a certain rent by year, &c. And such tenure is but tenure in socage. And the same manner is, where another lord, spiritual or temporal, is lord of such a borough, and the tenants of the tenements in such a borough hold of their lord to pay each of them yearly an annual rent.

And it is called tenure in burgage, for that the tenements within the borough be holden of the lord of the borough by certain rent, &c. And it is to wit that the ancient towns called boroughs be the most ancient towns that be within England; for the towns that now be cities or counties, in old time were boroughs, and called boroughs; for of such old towns called boroughs come the burgesses of the parliament to the parliament, when the king hath summoned his parliament.

Also, for the greater part such boroughs have divers customs and usages which be not had in other towns. For some boroughs have such a custom that if a man have issue many sons and dieth, the youngest son shall inherit all the tenements which were his father's within the same borough, as heir unto his father by force of the custom; the which is called borough English.

Parceners by the custom are, where a man seised in fee simple or in fee tail of lands or tenements which are of the tenure called gavelkind within the county of Kent, and hath issue divers sons and die, such

lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lieth in this case as between females. But it behooveth in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales, &c.

2 BL. COм. 84. 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), 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. The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to alien his estate by feoffment at the age of fifteen. 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." 3. In most places he had a power of devising lands by will, before the statute for that purpose was made. 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, though in particular places particular customs prevailed. These, among other properties, distinguished 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.1

1 ANCIENT DEMESNE. "There is great confusion in the law books respecting this tenure. All agree that it exists in those manors, and in those only, which belonged to the Crown in the reign of Edward the Confessor and William the Conqueror, and in Doomsday Book are denominated Terræ Regis. But the copyholders of these manors are sometimes considered tenants in Ancient Demesne, and land held in ancient demesne is said to pass by surrender and admittance. This appears to be inaccurate. It is only the freeholders of the manor who are truly tenants in ancient demesne, and land held in ancient demesne passes by common law conveyances without the instrumentality of the lord. The copyholders in an ancient demesne manor, like other copyholders, are merely to be considered as occupying a part of the lord's demesne, and do not hold of the manor. They form the Customary Court. The Court of Ancient Demesne, which is analogous to the Court Baron, is constituted by those who hold in socage of the lord of the manor. . . . The tenants in ancient demesne, properly so called, were made subject to certain restraints and entitled to certain immunities, which produce serious inconveniences at the present day. They were forbidden to bring or to defend any real action touching their tenements, except in the lord's court; and they were exempted from serving on juries elsewhere, and from paying toll in any part of England."-Third Report of Commissioners on the Law of Real Property, 12, 13.

SECTION V.

FRANKAL MOIGN.

LIT. §§ 133, 135, 137, 139, 140, 141. Tenant in frankalmoign is, where an abbot, or prior, or another man of religion, or of holy church, holdeth of his lord in frankalmoign; that is to say, in Latin, in liberam eleemosinam, that is, in free alms. And such tenure began first in old time. When a man in old time was seised of certain lands or tenements in his demesne as of fee, and of the same land infeoffed an abbot and his covent, or prior and his covent, to have and to hold to them and their successors in pure and perpetual alms, or in frankalmoign; (or by such words to hold of the grantor, or of the lessor, and his heirs in free alms :) in such case the tenements were holden in frankalmoign.

And they, which hold in frankalmoign, are bound of right before God to make orisons, prayers, masses, and other divine services, for the souls of their grantor or feoffor, and for the souls of their heirs which are dead, and for the prosperity and good life and good health of their heirs which are alive. And therefore they shall do no fealty to their lord; because that this divine service is better for them before God, than any doing of fealty; and also because that these words (frankalmoign) exclude the lord to have any earthly or temporal service, but to have only divine and spiritual service to be done for him, &c.

But if an abbot, or prior, holds of his lord by a certain divine service, in certain to be done, as to sing a mass every Friday in the week, for the souls, ut supra, or every year at such a day to sing a placebo et dirige, &c., or to find a chaplain to sing a mass, &c., or to distribute in alms to an hundred poor men an hundred pence at such a day; in this case, if such divine service be not done, the lord may distrain, &c., because the divine service is put in certain by their tenure, which the abbot or prior ought to do. And in this case the lord shall have fealty, &c., as it seemeth. And such tenure shall not be said to be tenure in frankalmoign, but is called tenure by divine service. For in tenure in frankalmoign no mention is made of any manner of service; for none can hold in frankalmoign, if there be expressed any manner of certain service that he ought to do, &c.

And if an abbot holdeth of his lord in frankalmoign, and the abbot and covent under their common seal alien the same tenements to a secular man in fee simple, in this case the secular man shall do fealty to the lord; because he cannot hold of his lord in frankalmoign. For if the lord should not have fealty of him, he should have no manner of service, which should be inconvenient, where he is lord, and the tenements be holden of him.