7. This tenure can only be of the king, the dignity Id. 161. of whose person gives it the name of petit serjeanty. For where lands are held of a subject by services of this kind, the tenure is nothing more than plain socage. $162. 8. Tenure in burgage (says Littleton) is where In Burgage. an antient burrough is, of which the king is lord; and they that have tenements within the burrough hold of the king their tenements, that every tenant for his tenement ought to pay the king a certain rent, &c., and such tenure is but tenure in socage." 9. "It is the same where any subject is lord of Id. 163. such burrough, and the tenants hold of him, to pay, each of them, an annual rent.” 10. The qualities of this tenure vary according to Id. 165, 6, 7. the particular customs of every burrough, without prejudice to the feudal nature of it, in conformity to the maxim, consuetudo loci est observanda. Demesne. 11. All those estates which are called in Domes- In Antient' day terræ regis were manors belonging to the crown, 4 Inst. c. 58. being part of its antiquum dominicum, or antient demesne; a great portion of the lands comprised within those manors was in the hands of tenants, who held the same of the crown by a peculiar species of socage tenure, that has long been known by the appellation of antient demesne. This tenure can only subsist in manors of antient demesne. And where a question now arises whether Dyer, 250. b. a manor is of antient demesne, or not, it can only 2 Burr. 1046. be determined by a reference to Domesday. 12. The tenants in antient demesne, that is, the 4 Inst. 269. persons who held lands, parcel of these manors, in socage, did the service of cultivating the demesnes, or supplying provisions, for the sustenance of the king's household-services of the utmost necessity Idem. 4 Inst. 270. in those times, when our kings lived on the produce of their own lands. 13. To the end that these tenants might the better apply themselves to their labours, for the profit of the king, they had six privileges. 1. They could not be impleaded for their lands, &c. out of the manor. 2. They could not be impannelled to appear at Westminster, or elsewhere, upon any inquest or trial. 3. They were free and quiet from all manner of tolls, in fairs and markets, for all things concerning husbandry and sustenance. 4. And also of taxes and talliages by parliament, unless specially named. 5. And also of contribution to the expences of the knights of parliament. 6. If severally distrained for other services, they might all join in a writ of Monstraverunt. 14. These privileges only extended to the tenants Fitz.N.B. 13. in socage of manors of antient demesne; not to those who held other parts of such manors by knight service; for the service of the plough and husbandry was the cause of them. Although in course of time most of these manors were granted by the crown to subjects, yet the socage tenants preserved their antient privileges, and continued to be tenants in antient demesne, though the services were commuted for money rents. 1 Salk. 56. Bro. Ab. Ant. Dem. 32. 15. The tenure in antient demesne is confined to lands held in socage, of those manors which were formerly in the possession of the crown, by the service of cultivating the demesnes of such manors, or by a render of provisions. The manor itself, and such other parts of it as were held by knight service, were not considered as antient demesne, but as frank fee. It is therefore inaccurate to say that a manor is held in antient demesne; the proper expression being, a manor of antient demesne, in which the socage lands Fitz.N.B.11. are held by that tenure. 16. Where a manor of this kind is in the hands of a subject, it is in the power of the lord and tenant to destroy the tenure. Thus if the tenant is impleaded in any of the courts of Westminster, and 2 Leon. 192. the lord is a party to the suit, the lands become frank fee; because the privilege of antient demesne being established for the benefit of both the lord and tenant, they may, by their joint act, destroy it. Roll. Ab. 324. 4 East, 290. 17. If the lord enfeoffs another of the tenancy, this makes the land frank fee; because the services are extinguished. So if the lord releases to the tenant all his right in the lands; or if he confirms to him, to hold by certain services at the common law. 18. Whenever the manor, of which the lands are 4 Inst. 270. held in antient demesne, is destroyed, that tenure 2 Leon. 191. is also destroyed. For there being no court left, the tenants must sue and be sued in the courts at Westminster. socage; 19. The tenure in gavelkind, by which a great deal In Gavelkind. of the land in Kent is still held, is a species of the name being derived from the Saxon word gavel, Robinson's which signifies rent, or a customary performance of Gav. 3, 4. husbandry works; from which the land subject to this kind of service was called gavelkind. Mr. Robinson concludes, from the etymology of this word, that gavelkind denotes the tenure of the land only, and that the partibility and other customary qualities of the lands thus held are extrinsic and accidental. these Te nures. 20. All these tenures are evidently feudal, and Incidents to derived from the same origin as tenure by knight service; for in both cases the lands are held of a superior lord, either the king, or some private person. This feudal dominium, or seignory as it is called, when ante, c. 2. §8. vested in the king, may, as in the case of knight ser vice, be either of his person, or as of some manor which formerly devolved to the crown by forfeiture or escheat; when vested in a private person, may either be in right of a manor, of which he is lord, or of his person, in which latter case it is called a seignory gross. But tenure of the person of a subject is now scarcely known; and where it no longer appears of whom lands are mediately holden in socage, they Booth, Real shall be presumed to be held immediately of the king, as the great and chief lord. Fitz. N.B.3. in Act. 135. 21. All lands held by any kind of socage tenure are subject to a feudal return, render, rent, or service, of some sort or other, to the lord of whom they are held; arising from a supposition of an original grant, from the ancestor of the lord, to that of the tenant. In the military tenure, or more proper feud, this was from its nature uncertain. In socage, which was a feud of the improper kind, it was certain, fixed, and determinate; and so continues to this day. 22. Tenants in socage are still universally subject, over and above all other renders, to the oath of fealty, or mutual bond of obligation between the lord and tenant; which usually draws after it suit to the lord's court; and as all freehold lands are now held in socage, where no other service is reserved, fealty is due of course. 23. The tenure in socage was subject of common right to aids for knighting the lord's eldest son, and marrying his eldest daughter, which were fixed by the statute of Westm. 1. at twenty shillings for every twenty pounds a year so held. A scignory in gross may be extinguished by a release, Lit. § 454. and may be extended on a statute, 1 Inst. 289. b. 24. Tenants in socage were always subject to relief; which however was certain, consisting of one year's rent. The statute 28 Edw. I. c. 1. declares that a free sokeman shall give no relief, but shall double his rent, after the death of his ancestor, according to that which he had used to pay his lord; and shall not be grieved above measure. 25. Primer seisin was incident to the king's socage tenants in capite, as well as to those who held by knight service. 26. Wardship is also incident to tenure in socage; but quite different from that which was incident to knight service. For where lands in socage descend to an infant under the age of fourteen, his nearest relation, to whom the inheritance cannot descend, shall be his guardian; but responsible to him for the profits. Marriage, or the valor maritagii, was not, in socage tenure, any perquisite or advantage to the guardian. 27. Fines for alienation were also due for estates in socage: lands held by this tenure always were, and still continue to be, subject to forfeiture for treason and felony; and also to escheat; except gavelkind lands, which are not subject to escheat for felony; though they are to escheat for want of heirs. Changes in Stat. I Inst. 93. b. 28. The changes made by the stat. 12 Cha. II. c. 24. in the tenure in socage are chiefly these: 1. It takes away the aids for marrying the lord's eldest 12 Cha. 2. daughter, and knighting his eldest son. 2. It relieves n. 3. socage in capite from the burthen of the king's primer seisin; and of fines to the king for alienation. extends the father's power of appointing guardians by deed or will, which by the 4 & 5 Phil. & Mary, was restricted to females; to children of both sexes. 3. It |