under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other descriptions; such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual licence; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new created feuds did in all respects follow the nature of an original, genuine, and proper feud. (t)

But as soon as the feodal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effects it has produced on the landed property of England will appear in the following chapters. 8

CHAP. V.

OF THE ANCIENT ENGLISH TENURES.

In this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments, might have been holden, as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.

Almost all the real property of this kingdom is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became

t Feud. 2. t. 7.

(8) See a note by Mr. Butler upon the subject of feuds, among his a notations upon Coke Lyttleton. Co. Litt. 191. a. n.

(1) See in general, Cruise Dig. 1 vol. 8. 11. and index, tit. Tenure, and Com. Dig. and Bac. Ab. tit. Tenure.

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also lords with respect to those inferior persons, as they were still tenants with respect to the king: and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold of A, and A of the king; or, in other words, B held his lands immedi[60]ately of A, but mediately of the king. The king therefore was styled

lord paramount; A was both tenant and lord, or was a mesne lord: and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land. (a) In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to sir Edward Coke, (b) in the law of England we have not properly allolium; which, we have seen, (c) is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature. All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, 3 or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did. (d) This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. There seems to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either cerain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman

to perform; as to serve under his lord in the wars, to pay a sum of [61] money, and the like. Base services were such as were only fit for

peasants or persons of a 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 upon unknown contingencies; as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account, of any author ancient or modern (e) of which the following

bi Inst. 1.

a 1 Inst. 296. c page 47. d In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, &c. which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un Hist xliii 61. el. 4. tr. 1. c. 28.

(2) William the First and other feudal sovereigns, though they made large and numerous grants of lands, always reserved a rent, or certain annual payments (commonly very trifling), which were collected by the sheriffs of the counties in which the lands lay, to shew that they still retained the dominium directum in themselves. (Madox Hist. Ech. c. 10. Craig de Feud. 1. 1c. 9.)

(3) See Bac. Ab. tit. Tenure, E. Com. Dig." Homage," "Tenure."

is the outline or abstract. (ƒ) "Tenements are of two kinds, frank-tene"ment and villenage. And, of frank-tenements, some are held freely in "consideration of homage and knight-service; others in free socage with "the service of fealty only." And again, (g)" of villenages some are "pure, and others privileged. He that holds in pure villenage shall do "whatever is commanded him, and always be bound to an uncertain ser"vice. The other kind of villenage is called villein-socage; and these vil"lein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free but uncertain, as military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-62] service. Secondly, where the service was not only free, but also certuin, as by fealty only, by rent fealty, &c. that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous 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 pure 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.

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I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law French, chivalry, or service de chivaler, answering to the fief d'haubert of the Normans, (h which name is expressly given it by the Mirrour. (1) This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, feodum-militare; the measure of which in 3 Edw. I. was estimated at twelve ploughlands, (k) and its value (though it varied with the times) () in the reigns of Edward I. and Edward II. () was stated at 201. per annum. And he who held this proportion of land (or a whole fee) by knightservice, was bound to attend his lord to the wars for forty days in every year, if called upon; (n) which attendance was his reditus or return, his rent or service for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion. (o) And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits [63] and consequences of this tenure being fraudulently superinduced, as the regular (though unforseen) appendages of the feodal system.

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Tenementorum aliud liberum, aliud villenagrum. Item, liberorum aliud tenetur libere pro homagio et servitio militari, aliud in libero socagio cum fidelitate tantum. §1.

g Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur vilanum socagium ; et kujusmodi villani socmanni-villana faciunt servitia, sed certa, et determinata. § 5.

h Spelm. Gloss, 219.

k Pasch. 3 Edw. I. Co. Litt. 69.

i c. 2. § 27.

1 2 Inst. 596. m Stat. Westm. 1. c. 36. Stat, de milit. 1 Edw. II. Co. Litt. 69.

n See writs for this purpose in Memorand. Scacch. 36. prefixed to Maynard's year-book, Edw. IL

o Litt. § 95.

(4) See Bac. Ab. tit. Tenure, H. Com Dig. Homage, G.

(5) Mr. Selden contends, that a knight's fee did not consist of land of a fixed extent or value, but was as much as the king was pleased to grant upon the condition of having the service of one knight. Tit. of Hon. p. 2. c. 5. s. 17. and 26. This is most probable: besides, it canno be supposed, that the same quantity of land was every where of the same value. Christian

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi; (p) was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin: and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and to shew to be of feodal original. “

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress; (9) but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three; first, to ransom the lord's person, if taken prisoner ; a necessary consequence of the feodal attachment and fidelity: insomuch that the neglect of doing it, whenever it was in the vasal's power, was by the strict rigour of the feodal law an absolute forfeiture of his estate. (r) Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms (s) the intention of it being to breed up the eldest son and heir apparent of the seigniory, to deeds of arms and chivalry, for the better defence

of the nation. Thirdly, to marry the lord's eldest daughter, by giv[64]ing her a suitable portion: for daughters' portions were in those days

extremely slender, few lords being able to save much out of their income for this purpose; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances. " From bearing their proportion to these aids, no rank or profession was exempted and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden), and the marriage of his female descendants. (t) And one cannot but observe in this particular the great resemblance which the lord and vasal of the feodal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised by the client; viz. to marry the patron's daughter; to pay his debts; and to redeem his person from captivity. (u)

But besides these ancient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts (probably in imitation of the Romans), and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were,

p Co. Litt. 9.

9 Auxilia fiunt de gratia, et non de jure,-cum dependeant ex gratia tenentium, et non ad voluntatem dominorum. Bracton, 7, 2. tr. 1.0. 16. § 8. s 2 Inst. 233. t Phillip's Life of Pole. I. 223.

r Feud. 1. 2. t. 24. u Erat autem haec inter utrosque officiorum vicissitudo-ut clientes ad collocandas senatorum filias de suo conferrent; in aeris alieni dissolutionem gratuitam pecuniam erogarent; et ab hostibus in bello captos redimerent. Paul. Manutius de senatu Romano, c. 1.

(6) Sir John Dalrymple, in an Essay on Feudal Property, p. 24, says, that “in England, before the 12 of Car. II., if the king had granted lands without reserving any particular services or tenure, the law creating a tenure for him would have made the grantee hold by knight's service." Wright also says, that " military tenure was created by pure words of donation." Wright's Ten. 141.

(7) By the statute, West. 1. c. 36. the aid for the marriage-portion of the lord's eldest daugh. ter could not be demanded till she was seven years of age, and if he died, leaving her unmarried, she might by the same statute recover the amount so received by him from his executors.

from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, king John's magnu charta (v) ordained that no aids be taken by the king without consent of parliament, nor in anywise by inferior lords, save only the three ancient ones above mentioned. But this provision was omitted in Henry III.'s charter, and the same oppressions were continued till the 25 Edw. I., wher the statute called confirmatio chartarum was enacted; which in this respect revived king John's charter, by ordaining that none but the ancient aids should be taken. But though the species of aids was thus restrained, yet the quantity of each aid remained arbitrary and uncer- [65] tain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable; (w) and that the aids taken by the king of his tenants in capite should be settled by parliament. (x) But they were never completely ascertained and adjusted till the statute Westm. 1. 3 Edw. I. c. 36. which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter: and the same was done with regard to the king's tenants in capite by statute 25 Edw. III. c. 11. The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was therefore never ascertained.

2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first, they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir. (y) The English ill brooked this consequence of their new-adopted policy; and therefore William the Conqueror by his law (2) ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively; and if the latter had no arms, they should pay 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws: thereby in effect obliging every heir to new-purchase or redeem his land: (a) but his brother Henry I., by the charter before mentioned, restored his father's law; and ordained, that the relief to be paid should be according to the law so established, and not an arbitrary redemption. (b) But af- [66] terwards, when, by an ordinance in 27 Hen. II. called the assize of arms, it was provided that every man's armour should descend to his heir, for defence of the realm; and it thereby became impracticable to pay these acknowledgments in arms according to the laws of the conqueror, the composition was universally accepted of 100s. for every knight's fee; as we find it ever after established. (c) But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one-and-twenty years.

3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was &

right which the king had, when any of his tenants in capite died seised of e

▼cap. 12. 15.

z c. 22, 23, 24.

c Glanv. 1. 9. c. 4. Liit. § 112.

"Haeres non redimel terram suam sicut facicbat temporó fratris mei, sed legitima et justa revelatione vz levabo eam." (Text. Roffens. cap. 34.)

VOL. I.

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