Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
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 held; 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 feudal principles and no other; being fruits of, and deduced from, the feudal policy.
Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and held of some superior or lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing held 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 held, 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 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 immediately 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 is supposed to make avail, or profit, of the land.1 In this manner are all the lands of the kingdom held, which are in the hands of subjects: for, according to Sir Edward Coke,2 in the law of England we have not properly allodium; which, we have seen,3 is the name by which the feudists abroad distinguish such estates of the subject, as are not held 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 feudal 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, or in chief; which was the most honorable species of tenure, but at the same time subjected the tenants to greater and more burdensome services, than inferior tenures did.4 This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.
I. There seem 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 certain or uncertain. Free services such as were not unbecoming the character of a soldier, or a free-man, to perform; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plow 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 pretense; as, to pay a stated annual rent, or to plow 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;5 of which the following is the outline or abstract.6 “Tenements are of two kinds, frank-tenement, 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,7 “of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other king of villenage is called villein-socage; and these villein-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-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, etc, 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.
I. The first, most universal, and esteemed the most honorable 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,8 which name is expressly given it by the mirrour.9 This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the genuine effect of the feudal 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 value of which, not only in the reign of Edward II,10 but also of Henry II,11 and therefore probably at its original in the reign of the conqueror, was stated at 20£ per annum and a certain number of these knight’s fees were requisite to make up a barony. And he who held this proportion of land to the wars for forty days in every year, if called upon: 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.12 And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feudal system.
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;13 was transferred by investiture or delivering corporal possession of the land, usually called livery of seizin; 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 seizin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavor to explain, and show to be of feudal original.
I. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress;14 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 feudal attachment and fidelity; insomuch that the neglect of doing it, whenever it was in the vassal’s power, was, by the strict rigor of the feudal law, an absolute forfeiture of his estate.15 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:16 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 defense of the nation. Thirdly, to marry the lord’s eldest daughter, by giving 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 encumbrances. 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 held) and the marriage of is female descendants.17 And one cannot but observe, in this particular, the great resemblance which the lord and vassal of the feudal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defense and protection. 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.18
BUT besides these ancient feudal 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, 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 Magna Carta19ordained, that no aids be taken by the king without consent of parliament, nor in any wise 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; when the statute called confirmatio chartarum [confirming charter] 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 uncertain. King John’s charter indeed ordered, that all aids taken by inferior lords should be reasonable;20 and that the aids taken by the king of his tenants in capite should be settled by parliament.21 But they were never completely ascertained and adjusted till the statute Westm. 1.3 Edw. 1. c. 36. which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part 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 kin’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 feudal 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; of that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir22The English ill brooked this consequence of their new adopted policy; and therefore William the conqueror by his laws23 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 100 s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feudal laws; thereby in effect obliging every heir to new-purchase or redeem his land:24 but his brother Henry 1 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.25 But afterwards, when, by an ordinance in 27 Hen. II. Called the assize of arms, it was provided that every man’s armor should descend to his heir, for defense 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 so 100 s. for every knight’s fee; as we find it ever after established.26 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 seizin was a feudal burden, only incident to the king’s tenants in capite [in chief], 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 seized of a knight’s fee, to receive of the heir (provided he were of full age) one whole year’s profits of the lands, if they were in immediate possession; and half a year’s profits, if the lands were in reversion expectant on an estate for life.27 This seems to be little more than an additional relief: but grounded upon this feudal reason; that, by the ancient law of feuds, immediately upon a death of a vassal the superior was in titled to enter and take seizin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: and, for the time the lord so held it, he was entitled to take the profits; and unless the heir claimed within a year and day, it was by the strict law a forfeiture.28 This practice however seems not to have long obtained in England, if ever, with regard to tenures under inferior lords; but, as to the king’s tenures in capite, this prima seizina [primer seisin] was expressly declared, under Henry III and Edward II, to belong to the king by prerogative, in contradistinction to other lords.29 And the king was entitled to enter and receive the whole profits of the land, till livery was sued; which suit being commonly within a year and day next after the death of the tenant, therefore the king used to take at an average the first fruits, that is to say, one year’s profits of the land.30 And this afterwards gave a handle to the popes, who claimed to be feudal lords of the church, to claim in like manner from every clergyman in England the first year’s profits of his benefice, by way of primitiae, or first fruits.
4. THESE payments were only due if the heir was of full age; but if he was under the age of twenty one, being a male, or fourteen, being a female,31 the lord was entitled to the wardship of the heir, and was called the guardian in chivalry. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty one in males, and sixteen in females. For the law supposed the heir-male unable to perform knight-service till twenty one; but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The lord therefore had no wardship, if at the death of the ancestor the heir-male was of the full age of twenty one, or the heir-female of fourteen: yet, if she was then under fourteen, and the lord once had her in ward, he might keep her so till sixteen, by virtue of the statute of Westm. 1. 3Edw.1.c.22. the two additional years being given by the legislature for no other reason but merely to benefit the lord.32
THIS wardship, of far as it related to land, though it was not nor could be part of the low of feuds, so long as they were arbitrary, temporary, or for life only; yet, when they became hereditary, and did consequently often descend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feudal principles to have been unreasonable. For the wardship of the land, or custody of the feud, was retained by the lord, that he might out of the profits thereof provide a fit person to supply the infants’s services, till he should be of age to perform them himself. And, if we consider a feud in its original import, as a stipend, fee, or reward for actual service, it could not be thought hard that the lord should withhold the stipend, to long as the service suspended. Though undoubtedly to our English ancestors, where such stipendiary donation was mere supposition or figment, it carried abundance of hardship; and accordingly it was relieved by the charter of Henry I before-mentioned, which took this custody from the lord, and ordained that the custody, both of the land and the children, should belong to the widow or next of kin. But this noble immunity din not continue many years.
THE wardship of the body was a consequence of the wardship of the land; for he who enjoyed the infant’s estate was the properest person to educate and maintain him in his infancy: and also, in a political view, the lord was most concerned to give his tenant a suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render.
WHEN the male heir arrived to the age of twenty one, or the heir-female to that of sixteen, they might sue out their livery or ousterlemain;33 that is, the delivery of their lands out their guardian’s hands. For this they were obliged to pay a fine, namely, half a year’s profits of the land; though this seems expressly contrary to Magna Carta.34 However, in consideration of their lands having been so long in ward, they were excused all reliefs, and the king’s tenants also all primer seizins.35 In order to ascertain the profits that arose to the crown by these fruits of tenure, and to grant the heir his livery, the itinerant justices, or justices in eyre, had it formerly in charge to make inquisition concerning them by a jury of the county,36 commonly called an inquisitio post mortem [inquisition after death]; which was instituted to inquire (at the death of any man of fortune) the value of his estate, the tenure by which it was held, and who, and of what age, his heir was; thereby to ascertain the relief and value of the primer seizin, or the wardship and livery accruing to the king thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance; it being one of the principal accusations against Empson and Dudley, the wicked engines of Henry VII, that by color of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto.37 And, afterwards, a court of wards and liveries was erected,38 for conducting the same inquiries in a more solemn and legal manner.
When the heir thus came of full age, provided he held a knight’s fee, he was to receive the order of knighthood, and was compellable to take it upon him, or else pay a fine to the king. For, in those heroical times, no person was qualified for deeds of arms and chivalry who had not received this order, which was conferred with much preparation and solemnity. We may plainly discover the footsteps of a similar custom in what Tacitus relates of the Germans, who in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance; which ceremony, as was formerly hinted,39 is supposed to have been the original of the feudal knighthood.40 This prerogative, of compelling the vassals to be knighted, or to pay a fine, was expressly recognized in parliament, by the statute de militibus [of soldiers], I Edw. II; was exerted as an expedient of raising money by many of our best princes, particularly by Edward VI and queen Elizabeth: but yet was the occasion of heavy murmurs when exerted by Charles I: among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch, and the legal exertion, of prerogative. However, among the other concessions made by that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted flower of his crown, and it was accordingly abolished by statute 16 Car.I.c.20.
5. But, before they came of age, there was still another piece of authority, which the guardian was at liberty to exercise over his infant wards; I mean the right of marriage, (maritagium, as contradistinguished from matrimonium) which in its feudal sense signifies the power, which the lord or guardian in chivalry had of disposing of his infant ward in matrimony. For, while the infant was in ward, the guardian had the power of tendering him or her a suitable match, without disparagement, or inequality: which if the infants refused, they forfeited the value of the marriage, valorem maritagii, to their guardian;41 that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance:42 and, if the infants married themselves without the guardian’s consent, they forfeited double the value, duplicem valorem maritagii.43 This seems to have been of the greatest hardships of our ancient tenures. There are indeed substantial reasons why the lord should have the restraint and control of the ward’s marriage, especially of his female ward; because of their tender years, and the danger of such female ward’s intermarrying with the lord’s enemy.44 But no tolerable pretense could be assigned why the lord should have the sale, or value, of the marriage. Nor indeed is this claim of strictly feudal original; the most probable account of it seeming to be this: that by the custom of Normandy the lord’s consent was necessary to the marriage of his female- wards;45 which was introduced into England, together with the rest of the Norman doctrine of feuds: and it is likely that the lords usually took money for such their consent, since in the often- cited charter of Henry the first, he engages for the future to take nothing for his consent; which also he promises in general to give, provided such female ward were not married to his enemy. But this, among other beneficial parts of that charter, being disregarded, and guardians still continuing to dispose of their wards in a very arbitrary unequal manner, it was provided by king John’s great charter, that heirs should be married without disparagement, the next of kin having previous notice of the contract;46 or, as it was expressed in the first draft of that charter, ita maritentur ne disparagentur, et per consilum propinquorum de consanguinitate sua.47 But these clauses in behalf of the relations were omitted in the charter of Henry III; wherein48 the clauses stands merely thus, “haeredes maritentur absque disparagatione” [“heirs should marry without disparagement”]; meaning certainly, haeredes, heirs female, as there are no traces before this to be found of the lord’s claiming the marriage of heirs male; and as Glanvil49expressly confines it to heirs female. But the king and his great lords thenceforward took a handle from the ambiguity of this expression to claim them both, sive sit masculus sive soemina [whether they be male or female], as Bracton more than once expresses it;50 and also, as nothing but disparagement was restrained by Magna Carta, they thought themselves at liberty to make all other advantages that they could.1 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;52 which is the first direct mention of it that I have met with, in our own or in any other law.
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 connection; it not being reasonable nor 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 feudal obligation was considered as reciprocal, the lord also could not alienate his seigniory 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 tenants 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,53 and the statute of quia emptores,54 (if not earlier) to aliene the whole of their estate, to be held of he 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 lands;55 though some have imagined otherwise. But this severity was mitigated by the statute I 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 perfumed to aliene without a license, a full year’s value should be paid.56
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; whereby every inheritable quality was entirely blotted out and abolished. In such cases the land escheated, or fell back, to the lord of the fee; that is, the tenure was determined by breach of the original condition, expressed or implied in the feudal donation. In the one case, there 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, showed 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 condition that he should not be 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.57
THESE were the principal qualities, fruits, and consequences of the tenure by knight-service: a tenure, by which the greatest part of the lands in this kingdom were held, and that principally of the king in capite, till the middle of he last century; and which was created, as Sir Edward Coke expressly testifies,58 for a military purpose; viz. for defense of he 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 knight-service proper; which was to attend the king in his wars. There were also some other species of knight-service; of called, though improperly, because the service or render was of a free and honorable 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 sergeanty, per magnum servitium, whereby the tenant was bound, instead of serving the king generally in wars, to do some special honorary service to the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation.59 It was in most other respects like knight-service;60 only he was not bound to pay aid,61 or escuage;62 and, when tenant by knight-service paid five pounds for a relief on every knight’s fee, tenant by grand sergeanty paid one year’s value of his land, were it much or little.63 Tenure by cornage, 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 sergeanty.64
THESE services, both of chivalry and grand sergeanty, 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 king of tenure was called scutagium [scutage] in Latin, or servitium scuti [service money]; scutum being then a well-known denomination of money: and, in like manner it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. 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 Henry 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 clamor, and king John was obliged to consent, by his Magna Carta, that no scutage should be imposed without consent of parliament.65 But this clause was omitted in his son Henry III’s charter; where we only find,66 that scutages or escuage should be taken as they were used to be taken tin the time of Henry II; that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw.I.c.5&6;. and many subsequent statutes67 it was enacted, that the king should take no aids or tasks but by the common assent of the realm. Hence it is held in our old books, that escuage or scutage could not be levied but by consent of parliament;68 such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.
SINCE therefore escuage differed from knight-service in nothing, but as compensation differs from actual service, knight service is frequently confounded with it. And thus Littleton69 must be understood, when he tell 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 respected70 as a tenure in chivalry.71 But as the actual service was uncertain, and depended upon emergences, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of he legislature suited to those emergences. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less that a mere pecuniary rent; and the tenure, instead of knight service, would have then been of another kind, called socage,72 of which we shall speak in the next chapter.
FOR the present, I have only to observe, that by the degenerating of knight-service, 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 honor, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else, but wretched means of 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 burdens, 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 they 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 seizin; and, if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith73 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 plowed to be barren,” to make amend 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 honor of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that poor privilege allowed him, without paying an exorbitant fine for a license of alienation.
A SLAVERY so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of her freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I consented74 for a proper equivalent to abolish them all; though the plan then proceeded not to effect: in like manner as he had formed a scheme, and began to put it in execution, for removing the feudal grievance of heretable jurisdictions in Scotland,75 which has since been pursued and effected by the statute 20 Geo. II. c. 43.76 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 feefarm rent should be settled and inseparably annexed to the crown, and assured to the inferior lords, payable out of every knight’s within their respective signories. 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, 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 seizins, 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, knights-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of he 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 sergeanty.” 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 vigor; but the statute of king Charles extirpated the whole, and demolished both root
1. 2 Inst. 296.
2. 1 Inst. L.
3. pag. 47.
4. In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, etc, which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hist. xlii. 61.
5. l. 4. tr. 1. c. 28.
6. Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libere socagio cum fidelitate tantum. [Tenements are of two kinds, frank-tenement, 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.] §. I.
7. Villenagiorum aliud purum, alium privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii di itur villanum socagium; et hujusmodi villein socmanni villana faciunt servitia, sed certa et determinata. [Of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other king of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined.] §. 5.
8. Spelm. Gloss. 219.
9. c. 2. §. 27.
10. Stat. de milit. 1. Edw. II. Co. Litt. 69.
11. Glanvil. l.9. c. 4.
12. Litt. § 95.
13. Co. Litt. 9.
14. Auxilia fiunt de gratia et non de jure -cum dependeant ex gratia tenentium et non ad voluntatem dominorum. [Aids arise from favour not from right – since they depend on the good will of the tenant, not on the will of the Lord.] Bracton. l. 2. tr. I.
15. Feud. l. 2. t. 24.
16. 2 Inst. 233.
17. Philips’s life of Pole. I. 223.
18. 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. [But there was this reciprocity of service between themthat the clients should give a sum of money for marrying the daughters of their lords, pay their debts, and ransom them when taken captive in war.] Paul. Manutius de senatu Romano. C. i.
19. cap. 12. 15.
20. cap. 15.
21. 1bid. 14.
22. Wright. 99.
23. C. 22, 23, 24.
24. 2 Roll. Abr. 514.
25. “Haeres non redimet terram suam sicut faciebat tempore fratris mei, sed legitima et justa relevatione relevabo eam.” [“An heir shall not redeem his land as he used to do in the time of my brother, but I will release it for a just and lawful relief.”] (Text. Ressens. Cap.34.)
26. Glanv. 1. 9. c. 4. Litte. §. 112.
27. Co. Litt.77.
28. Send. 1. 2. 1. 24.
29. State. Marlbr. C. 16. 17 Edw.11. c.3.
30. Staundf. Prerog.12.
32. Litt. §.103.
33. Co. Litt.77.
34. Co.Litte. 77.
35. 9 Hen.III. c. 3.
36. Hoveden. Sub Ric. I.
37. 4 Inst. 198.
38. Stat. 32 Hen. VIII. C.46.
39. Vol. I. Pag.392.
40. “In ipso consilio vel principum aliquis, vel pater, vel propinquus, scuto, frameaque juvenem ornant. Haec apud illos toga, hic primus juventae honos: ante hoc domus pars videntur; mox reipublicae.” [“In that council one of the princes, or the father, or relation, adorns the youth with a spear and buckler: this is the toga among them, the first honor of youth: before this ceremony, he was merely a member of his family, now, he becomes a member of the republic.”] Germ. Cap.13.
41. Litt. §. 110.
42. Stat. Mert. C. 6. Co. Litt. 82.
43. Litt. §. 110.
44. Bract. 1.2. c. 37. §.6.
45. Gr.Cuft. 55.
47. cap. 3. ibid.
49. 1.2.c.38. § 1.
50. Wright. 97.
51. 20 Hen.III.c.6
52. cap. 32.
53. 18 Edw. I. c. I
54. 2 Inst. 66
55. Ibid. 67.
56. Co. Litt.13.
58. 4 Inst.192.
59. Litt. § 153.
60. Ibid. § 158.
61. 2 Inst.233.
62. Litt. § 158.
63. Litt. § 154.
64. Ibid. § 156.
65. “Nullum scutagium ponatur in regno nostro, nisi per commune consilium regni nostri.” [“Let no scutage be imposed but by the common council of our kingdom.’] Cap.12.
66. cap.37. See Vol.I.pag.136.
67. Old Ten. Tit. Escuage.
68. §. 103.
70. Pro feodo militari reputatur. [In respect of feudal military policy.] Flet.1.2.
71. .14. § 7.
72. Litt. § 97.120.
73. Commonw.1. 3. c. 5.
74. 4 Inst. 202.
75. Dalrymp of feuds.292.
76. By another statute of the same year (20 Gec II.c.50.) the tenure of wardholding (equivalent to the knight-service of England) is for ever abolished in Scotland.