themselves at liberty to make all other advantages that they could, (e) And afterwards this right, of selling the ward in marriage, or else receiving the price or value of it, was expressly declared by the statute of Merton; (f) which is the first direct mention of it that I have met with, in our own or any other law. (9) 6. Another attendant or consequence of tenure by knight-service was that of fines due to the lord for every alienation, whenever the tenant had occasion to make over his land to another. This depended on the nature of the feudal connexion; it not being reasonable or allowed, as we have before seen, that a feudatory should transfer his lord's gift to another, and substitute a new tenant to do the service in his own stead, without the consent of the lord: and, as the [*72] *feudal obligation was considered as reciprocal, the lord also could not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away; that upon the tenants continued longer. For when every thing came in process of time to be bought and sold, the lords would not grant a license to their tenant to aliene, without a fine being paid; apprehending that, if it was reasonable for the heir to pay a fine or relief on the renovation of his paternal estate, it was much more reasonable that a stranger should make the same acknowledgment on his admission to a newly purchased feud. With us in England, these fines seem only to have been exacted from the king's tenants in capite, who were never able to aliene without a license: but as to common persons, they were at liberty by magna carta, (g) (10) and the statute of quia emptores (h) (if not earlier), to aliene the whole of their estate, to be holden of the same lord as they themselves held it of before. But the king's tenants in capite not being included under the general words of these statutes, could not aliene without a license; for if they did, it was in ancient strictness an absolute forfeiture of the land; (i) though some have imagined otherwise. But this severity was mitigated by the statute 1 Edw. III, c. 12, which ordained, that in such case the lands should not be forfeited, but a reasonable fine be paid to the king. Upon which statute it was settled, that one-third of the yearly value should be paid for a license of alienation; but if the tenant presumed to aliene without a license, a full year's value should be paid. (k) (11)

(e) Wright, 97.

(ƒ) 20 Hen. III, c. 6.
(i) 2 Inst. 66.

(g) Cap. 32.
(k) Ibid. 67.

(h) 18 Edw. I, c. 1.

(9) [What fruitful sources of revenue these wardships and marriages of the tenants, who held lands by knight's service, were to the crown, will appear from the two following instances, collected among others by Lord Lyttleton, Hist. Hen. II, 2 vol. 296: "John, earl of Lincoln, gave Henry the Third 3000 marks to have the marriage of Richard de Clare, for the benefit of Matilda, his eldest daughter; and Simon de Montford gave the same king 10,000 marks to have the custody of the lands and heir of Gilbert de Unfranville, with the heir's marriage, a sum equivalent to a hundred thousand pounds at present." In this case the estate must have been large, the minor young, and the alliance honorable. For, as Mr. Hargrave informs us, who has well described this species of guardianship, "the guardian in chivalry was not accountable for the profits made of the infant's lands during the wardship, but received them for his own private emolument, subject only to the bare maintenance of the infant. And this guardianship, being deemed more an interest for the profit of the guardian than a trust for the benefit of the ward, was salable and transferable, like the ordinary subjects of property, to the best bidder; and if not disposed of, was transmissible to the lord's personal representatives. Thus, the custody of the infant's person, as well as the care of his estate, might devolve upon the most perfect stranger to the infant; one prompted by every pecuniary motive to abuse the delicate and important trust of education, without any ties of blood or regard to counteract the temptations of interest, or any sufficient authority to restrain him from yielding to their influence." Co. Litt. 88, n. 11. One cannot read this without astonishment that such should continue to be the condition of the country till the year 1660, which, from the extermination of these feudal oppressions, ought to be regarded as a memorable era in the history of our law and liberty.]

(10) [The construction of magna charta. from which this consequence is deduced, is not very obvious, and has not always been approved of. See Sulliv. Lect. p. 385.]

(11) Justice Coleridge very properly remarks that it is of the utmost importance, in discussing any point relating to the feudal system, to determine the time which is spoken of; thus, according to feudal principles, and while those principles were strictly maintained, alienation without license must have involved forfeiture; for the tenant of course could not have compelled the

7. The last consequence of tenure in chivalry was escheat; which is the determination of the tenure, or dissolution of the mutual bond between the lord and tenant from the extinction of the blood of the latter by either natural or civil means if he died without heirs of his blood, or if his blood was corrupted and stained by commission of treason or felony; (12) whereby every inheritable quality was entirely blotted out and abolished. In such cases the lands escheated, or fell back to the lord of the fee; (7) that is, the tenure was [*73] determined by breach of the original condition expressed or implied in the feudal donation. In the one case, there were no heirs subsisting of the blood of the first feudatory or purchaser, to which heirs alone the grant of the feud extended; in the other, the tenant, by perpetrating an atrocious crime, shewed that he was no longer to be trusted as a vassal, having forgotten his duty as a subject; and therefore forfeited his feud, which he held under the implied conditition that he should not be a traitor or a felon. The consequence of which in both cases was, that the gift, being determined, resulted back to the lord who gave it. (m)

These were the principal qualities, fruits, and consequences of tenure by knight-service: a tenure, by which the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century; and which was created, as Sir Edward Coke expressly testifies, (n) for a military purpose, viz.: for defence of the realm by the king's own principal subjects, which was judged to be much better than to trust to hirelings or foreigners. The description here given is that of a knight-service proper; which was to attend the king in his wars. There were also some other species of knight-service; so called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty, (13) per magnum servitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person; (14) as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer, at his coronation. (0) It was in most other respects like knight-service; (p) only he was not bound to pay aid, (q) or escuage; (r) *and, when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeanty paid one year's

[*74]

(1) Co. Litt. 13. (p) Ibid. § 158.

(m) Feud. 1. 2, t. 86.
(q) 2 Inst. 233.

(n) 4 İnst. 192.

(r) Litt. § 158.

(o) Litt. 153.

lord to receive the homage and fealty of a new tenant, and by his own act he had renounced his own holding. But it is obvious that there was always a struggle in the advancing spirit of the age to loosen the bonds of feudal tenure; and it may not be possible to fix the period at which the practice of alienation became too strong for the law, and, being first winked at, was finally legalized.

(12) The doctrine of corruption of blood was peculiar to England. In the United States attainder of treason can work corruption of blood or forfeiture only during the life of the person attainted. Const. art. 3, § 3. And since the statute 3 and 4 Wm. IV, c. 106, enlarging 54 Geo. III, c. 145, attainder in England for any crime cannot extend to the disinheriting of heirs except during the life of the offender.

(13) [Mr. Hargrave (note 1 to Co. Litt. 108 a) observes, that the tenure by grand serjeanty still continues, though it is so regulated by the 12th of Car. II, c. 24, as to be made in effect free and common socage, except so far as regards the merely honorary parts of grand serjeanty.]

(14) [Perhaps, more correctly, "to do some special honorary service in person to the king," the general rule being that it was to be done by the tenant in person, if able, though there are many instances in which it was not to be done to the king in person. This may explain why he who held in grand serjeanty paid no escuage. The devout attachment to the lord's person, which was so much fostered by the feudal sytem, is in none of its minor consequences more conspicuous than in the nature of the personal services which the haughtiest barons were proud to render to their lord paramount. To be the king's butler or carver are familiar instances. Mr. Madox mentions one more singular, of a tenure in grand serjeanty by the service of holding the king's head in the ship which carried him in his passage between Dover and Whitsand. Baronia, 3, c. 5.]

value of his land, were it much or little. (s) Tenure by cornage, (15) which was to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeanty. (t)

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 respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scutagium in Latin, or servitium scuti; scutum being then a well-known denomination for money and, in like manner, it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. (16) 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 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 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 he imposed without consent of parliament. (u) But this clause was omitted in [*75] son Henry III's charter, where we only find (w) 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. I, cc. 5, 6, and many subsequent statutes, (x) it was again provided, that the king should take no aids or tasks but by the common consent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament; (y) such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

his

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 (2) 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 (a) as a tenure in chivalry. (b) 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, (c) of which we shall speak in the next chapter.

(u) Nullum scutagium ponatur in regno nostro, nisi per commune consilium regni nostri. Cap. 12.
(w) Cap. 37. (x) See book I, page 140,
(y) Old Ten, tit. Escuage.
(a) Wright, 122. (b) Pro feodo militari reputatur. Flet. 1. 2. c. 14, § 7.

(2) 103, (c) Litt. 97, 120.

(15) [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." Camnd. Brit. Berks. p. 203, ed. 1607. The inscription on the horn was as follows: "Kyng Knowd gave Wyllyam Powse, this horne to hold by thy londe."]

(16) [But Littleton, Coke and Bracton render it the service of the shield, i. e. of arms, being a compensation for actual service. Co. Litt. 68, b.

Sir M. Wright considers that escuage, though in some instances the compensation made to the lord for the omission of actual service, was also in many others a pecuniary aid or tribute originally reserved by particular lords instead of personal service, varying in amount according to the expenditure which the lord had to incur in his personal attendance upon the king in his wars. This explanation tends to elucidate the distinction between knight-service and escuage in the old authors. See Wright, 121, 134; Litt. s. 98, 120.]

For the present I have only to observe, that by the degenerating of knightservice, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feudal constitution were 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 else but a wretched means of [*76] raising money to pay an army of occasional mercenaries. In the mean time 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 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 Smith (d) 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 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 license of alienation. (17)

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 griev ances. Till at length the humanity of King James I consented, (e) in consideration of a proper equivalent, to abolish them all; though the plan *proceeded not to effect; in like manner as he had formed a scheme, and begun to [*77] put it into execution, for removing the feudal grievance of heritable jurisdiction in Scotland, (f) which has since been pursued and effected by the statute 20 Geo. II, c. 43. (g) King James's plan for exchanging our military tenures 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 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 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 marriage, by reason of any tenure of the king or others, be totally taken away. 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

(e) 4 Inst. 202. (f) Dalrymp. of Feuds, 292.

(d) Commonw. l. 3. c. 3. (9) By another statute of the same year (20 Geo. II, c. 50,) the tenure of wardholding (equivalent to the knight-service of England) is forever abolished in Scotland,

(17) [The license was to be paid by the alienee; that is, he was liable for it; but of course it formed part of the purchase-money of the land. ]

VOL. I.-48

377

away. (18) 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 grant 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.

CHAPTER VI.

OF THE MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feudal constitution itself 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 honourary 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.

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 swal[*79] lowed up (since the statute of Charles the Second) almost every other species of tenure. And to this we are next to proceed.

II. 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; (a) if a man holds by 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; (b) "ex donationibus, servitia militaria vel magnæ serjantiæ non continentibus, oritur nobis quoddam nomen generale, quod est socagium." Littleton also (c) defines it to be, where the tenant holds his tenement of the lord by any

The

(18) [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. 106, 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. 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 forever give your majesty a just right and title to the labor of our plows, and the sweat of our brows), but they are likewise turned into a 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.]