age or scutage could not be levied but by consent of parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times. was uncer pendent upon Since therefore escuage differed from knight-service in which render nothing, but as a compensation differs from actual service, tain, and deknight-service is frequently confounded with it. And emergencies. thus Littleton must be understood, when he tells us, that 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" as a tenure in chivalry. But as the actual service was uncertain, and depended upon emergencies, so it was necessary that 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, of which we shall speak in the next chapter. f quences of ating of vice into For the present I have only to observe, that by the Consedegenerating of knight-service, or personal military duty, the degenerinto escuage, or pecuniary assessments, all the advantages knight-ser(either promised or real) of the feudal constitution were escuage; destroyed, and nothing but the hardships remained. Instead of 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 [76] else but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time the and burthens families of all our nobility and gentry groaned under the thereto. 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 b Old Ten. tit. Escuage. e Sec. 103: d Wright, 122. e Pro feodo militari reputatur. Flet. 1. 2, c. 14, s. 7. f Litt. s. 97, 120. incident Occasional and partial redress of these griev ances, and their final re 12 Car. II. c. 24. 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 emoluments 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 Smiths very feelingly complains, "when he came to his own, after 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 further, 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 a wife as his lord and guardian had hartered 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 moval by the acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I. consented, in consideration of a proper equivalent, to abolish them all; though the plan proceeded not to effect; [77] in like manner as he had formed a scheme, and began to put it into execution, for removing the feudal grievance of heritable jurisdictions in Scotland, which has since been pursued and effected by the statute 20 Geo. II. c. 43.* King James's plan for exchanging our military tenures Commonw. 1. 3, c. 5. h 4 Inst. 202. i Dalrymp. of Feuds, 292. k By another statute of the same year, (20 Geo. II. c. 50,) the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland. seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual feefarm 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 seignories. An expedient, seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages (having during the usurpation been discontinued) were destroyed at one blow by the statute 12 Car. II. 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. And that all fines for alienations, tenures by homage, knight's-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 (without the slavish part) of grand serjeanty." A statute, which was a greater acquisition to the civil 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.' A still further alteration of the law of tenures has been proposed by the Real Property Commissioners in their Third Report, as will be noticed in the ensuing pages. But it is proper here to observe, that they consider that the honorary services of grand serjeanty should be preserved.m 1 Roger North, in his Life of Lord Guildford, observes, "It was somewhat unequal when the parliament took away the royal tenures in capite that the lesser tenures of the gentry (meaning copyholds) were exposed to as grievous abuses as the former." Vol. i. p. 36, see post, chap. 11. m Third Real Prop. Rep. p. 7. [ 78 ] ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feudal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in its room: since by the statute 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced to one general species of tenure, then well known and subsisting, called free and common socage. And this, being sprung from the same feudal original as the rest, demonstrates the necessity of fully contemplating that ancient system; since 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. 1. Knight service. 2. Socage. 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 liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the statute of Charles the Second) [79] almost every other species of tenure; and this tenure, further, it is not proposed to alter; and to this we are next to proceed. socage. II. Socage, in its most general and extensive significa- Definition of tion, 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; 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" ex donationibus, servitia militaria vel magnæ serjantiæ non continentibus, oritur nobis quoddam nomen generale, quod est socagium." Littleton alsod defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services; so that they may be not services of chivalry, or knight-service. And therefore afterwards he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch, 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-socage But socage, as was hinted in the last chapter, is of two of two sorts; sorts: free-socage, where the services are not only cer- and villeintain, but honourable: and villein-socage, where the services, though certain, are of a baser nature. Such as hold socage. |