Imágenes de páginas
PDF
EPUB

first part of the present work (k), where the author has suggested that an infant, being of years of discretion, may preside in a court baron; and that the stewardship of a court baron may be granted in reversion (1).

SECTION II.

Of the Services due from Freehold Tenants.

We have fully discussed the nature of the services due to the lord of the manor in respect of copyhold land, and partially also the nature of those due in respect of land of freehold tenure (m). It may, however, be proper to take a brief view of the obligations imposed on the tenant by the original grants under which socage lands are held derivatively at this period. And although it is very far from our intention to enter upon a minute consideration of the nature and origin of the feudal polity, or doctrine of tenure, yet a few preliminary observations on the contrasted properties of ancient and modern English tenure may not be deemed unacceptable or inapplicable to the immediate subject of our inquiries.

The feudal constitution (described by Sir Martin Wright (n) to be a military policy of the northern conquering nations), which by degrees established itself over the western world to the exclusion of the Roman laws, seems not to have been universally adopted in this country till about the middle of the reign of William the Conqueror (o).

Previous to its introduction into England, the possessions of land were allodial, a word signifying positive unqualified right, the owner

616; S. C. 5 Dow. & Ry. 526; S. C. 1 Car. & Pay. 522; ante, pt. 1, p. 116.

A grant to two for a term of years is good, for the appointment determines with the lives of the grantees, and will not go to the executors or administrators; ante, pt. 1, p. 115.

And Note-A bishop may grant the stewardship of a manor for life, notwithstanding the stat. 1 Eliz. c. 19, if usually so granted before that statute; Sir John Trelawney v. Bishop of Winchester, 1 Burr. 219. And see Young v. Stoell, Cro. Car. 279; W. Jones, 310; Young v. Fowler, Cro. Car. 555; S. C. Mar. 38; Ridley v. Pownell, 2 Lev. 136.

A bishop grants the stewardship of a manor for life, and says not for whose life, VOL. II.

it shall be for the life of the grantee;
Cook v. Younger, Cro. Car. 16.
(k) p. 111.
() p. 116.

(m) Ante, pt. 1, ch. 8.

(n) Ten. p. 6. And Sir W. Blackstone [2 Com. p. 45] observes, that "the constitution of feuds had its origin from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it, poured themselves in vast quantities into all the regions of Europe at the declension of the Roman empire."

(0) Ante, p. 579, n. (ƒ).

E

having the complete and absolute property, and not holding of any particular lord; whereas a feud, fief or fee denoted stipendiary property, or a tract of land held by gratuitous donation on condition of performing certain stipulated services, chiefly of a military nature. These gifts were originally dependent on the will and pleasure of the grantor, but afterwards were extended to a term of one or more years, subsequently to the life of the feudatory (p), and ultimately were made hereditary.

Such grants as were purely military were denominated proper feuds, and those in which the consideration moving to the grant, or the services reserved, were not strictly conformable to that character, were deemed improper feuds (q).

The fundamental maxim of feudal tenure is, that all lands were originally granted by the king, and are therefore holden immediately or mediately of the crown (r).

Until the middle of the seventeenth century, a considerable (and according to Sir William Blackstone (s) the greatest) part of the lands in England was held by knight-service (t), (a tenure implying personal military duty,) and principally of the king in capite.

The tenure by knight-service was abolished by 12 Car. 2, c. 24 (u), and differed very little from a proper feud, being created by pure words of donation (x), transferred by livery or investiture, and per

(p) Feudatory or beneficiary estates, when granted at will only, were called Munera, and when afterwards granted for life, they were termed Beneficia, which word is still retained amongst ecclesiastics, whose estates are called Benefices; and the term Feuda was first used when estates began to be granted in perpetuity; Spelm. Posth. Treat. of Feuds, 4, 6, 9; Wright's Ten. 19. Vide as to the distinction between allodial and beneficiary possessions, Roberts. Hist. Emp. Charles V., p. 258.

(4) For a full illustration of this obsolete doctrine, the author would urge an attentive perusal of Sir Martin Wright's introduction to the law of tenures, and of the history of feuds in the early part of Chief Baron Gilbert's treatise on tenures, and also the 4th chap. of the 2nd vol. of Sir William Blackstone's Commentaries. Et vide Harg. & Butl. notes to Co. Lit. 64 a, 191 a.

(r) Ante, p. 579, n. (f). The note here

referred to shows that our ancestors were
not originally beneficiaries, but voluntarily
submitted to this fiction of tenure.
(s) 2 Com. 73.

(t) It should seem that knight-service was the implied tenure, if no particular services were reserved on a grant by the king, prior to the 12 Car. 2. See Dalr. ou Feud. Prop. p. 24.

Escuage is sometimes confounded with knight-service [Co. Lit. § 103], but it merely describes the pecuniary assessment, calculated by the amount of a knight's fee, to excuse a personal attendance for which such service was compounded, or perhaps a pecuniary aid reserved in some instances in lieu of personal service ; Wright's Ten. 123; 2 Bl. Com. 75.

(u) The prerogative of compelling the heir to be knighted when of age, or to pay a fine to the king, was abolished by 16 Car. 1, c. 20; 2 Bl. Com. 69, 70.

(x) Wright's Ten. 141; 2 Bl. Com. 63.

fected by homage or fealty. This tenure drew to it the advantages of relief, and primer seisin (y), wardship, livery (z), aid for knighting the lord's eldest son, and marrying his eldest daughter, and for ransoming the lord's person (a), and also escheat. The services were occasional, but with us restrained, as in Normandy, to forty days, and not altogether uncertain, as in proper feuds (b).

The residue of the lands in England was divided into the three tenures subsisting at the present day, viz.: 1. free socage (c), (which, with the lands held by knight-service, were alike denominated frank tenements:) 2. pure villenage: and 3. privileged villenage, or villein socage (d). The properties and diversities of the two latter are fully

(y) Primer seisin seems to be little more than an additional relief, payable by those who held of the king in capite. When a tenant in capite died seised of a knight's fee, the king was entitled to receive of the heir, if of age, a year's profits of the land, when in possession, and half a year's profits if held in reversion, expectant on an estate for life. Indeed the king was entitled to enter and receive the profits until livery was sued, which being generally sued within a year and a day after the death of the tenant, it was usual to take the first fruits, or a year's profits of the land. This gave rise to the claim by the Popes of the first year's profits of every benefice by way of first fruits.

(z) Primer seisin was not paid unless the heir was of age, but if under the age of 21, being a male, or 14, being a female, the lord was entitled to the wardship, and was called guardian in chivalry, which gave him the custody of the body and lands, without account, during such minority. And the lord, by the 3 Ed. 1, c. 22, could keep the female heir in ward until 16. The male, on attaining 21, and the female 16, could sue out their livery to obtain the lands out of the guardian's hands, and for this half a year's profits of the land were paid. These advantages to the lord excused the infant heir from livery, and in the case of tenants in capite, from primer seisin. The ascertainment of the profits arising from these fruits of tenure suggested the antiquated proceeding of an inquisitio post mortem, charging the intinerant justices or justices in eyre to

inquire by a jury of the county (on the decease of any person of fortune) the value of his estate, the tenure of it, and who, and of what age, his heir was; 2 Bl. Com.

68.

(a) But the genuine feudal aid appears to have been purely military, and not a contribution to the private necessities of the lord; Wright's Ten. 41. See further as to aids, post, p. 612, n. (k); Wright's Ten. p. 40, &c. 105, &c.; Hallam's Europe, 415.

(b) Wright's Ten. 140, 141; 2 Bl. Com. 62. The proper knight-service was to attend the king in his wars; but there were other species of knight-service of an honorable nature, as grand serjeanty. Some services of grand serjeanty are purely military, as to bear the king's banner or his lance in time of war; and others are honorary only, and in time of peace, as to perform certain offices at the king's coronation; and in some cases these services may be executed by deputy; Co. Lit. s. 153, 155, 157. The honorary services of grand serjeanty were, as well as the tenure by copy of court roll, reserved by the stat. of 12 Car. 2.

The services of petit serjeanty, as to render to the king a war-like weapon, are not mentioned in that statute, but petit serjeanty still exists, and is considered to be a dignified branch of socage tenure; Co. Lit 108 b, n. 1.

(c) Or free tenure in common socage. (d) These are the only lay tenures now subsisting, but it is to be remembered that the tenure of frank-almoign (or free alms)

treated of in the first and second parts of the present work (e), and the author proposes now to offer some few observations on the nature of socage tenure, and the services incident to it.

Socage is a term as old as Doomsday-Book: it first occurs in Glanvil (ƒ), and, according to the opinion of our best lawyers, is a tenure per servitium soca, but by Somner (g) thought to be derived from the Saxon word Soc, importing a privilege, and Agium, importing service (h).

Socage tenure is at least agreed to have been originally a conventional service of a certain and determinate, and not of a military nature (i); in some respects, however, it resembles tenure by knight-service or chivalry, socage land being held of a superior lord by fealty, and subject to relief and escheat, and also (previous to the statute of Charles II.) to aids (k), marriage and wardship, (though of a different is to all the sons equally.

was also reserved by the stat. of Car. 2,
and which is of a spiritual nature, being
the tenure by which religious houses held
their lands, and by which many ecclesias-
tical and eleemosynary foundations hold
lands at this day; 2 Bl. Com. 101.
(e) Ch. 2, and ch. 19.

(f) Somner's Treat. of Gav. 143.
(g) Ib. 133, 141. And see 2 Bl. Com.
80, 81.

(h) 1 Inst. 86 a. And see Mr. Christian's note on this derivation, 2 Bl. Com. 81, citing Bract. Spelman, &c., against Mr. Somner's and Sir William Blackstone's opinions.

(i) Burgage and gavelkind are included in socage tenure. Sir Martin Wright [Ten. 145] says, "All our English fees or holdings, whether they be frank or emphiteuticary, burgage or gavelkind, (though burgage and gavelkind have many qualities different from common socage,) do now fall under the notion of socage tenures, which, though they vary in point of service, succession, and the like, as improper feuds, do nevertheless retain the nature of feuds, inasmuch as they are held of some lord or superior by fealty, and usually by some other certain service or acknowledgment; and inasmuch as they yield or pay relief, and may escheat" And see Co. Lit. s. 162. The student is reminded that the descent in burgage-tenure is sometimes (by force of the custom called Borough English) to the youngest son, and in gavelkind tenure

And he is referred on the subject of descent of copyhold lands enfranchised under the act of 4 & 5 Vict. c. 35, to a note of the author, ante, pt. 1, n. (b), p. 26.

(k) The aid de relief was taken by inferior lords, being a sum to enable them to pay their fines for relief or seisin to the lord paramount; Wright's Ten. 107, cites Madox, Hist. of the Excheq. 428; Glanv. lib. 9, cap. 8. And inferior lords frequently took aids to enable them not only to pay their fines to the king, but even their debts. All, however, except the above three ancient aids, were abolished as to inferior lords by King John's Charter, c. 12, 15, which also ordained that no aids should be taken by the king without consent of parliament. This provision was omitted in Henry the Third's Charter, and the old aids re-exacted, until, by stat. 25 Ed 1, c. 5, 6, the clause in the charter of King John was revived. Aids were completely arbitrary until King John's Charter, and were not fully ascertained until the stat. West. 1, 3 Ed. 1, c. 36, which fixed the aid of a knight's fee at 20s., and of socage lands, of the value of 201. a year, at 20s. This only extended to inferior lords, but the same provisions were made as to the king's tenants in capite by 25 Ed. 3, c. 11. The aid for ransoming the lord's person was, as a thing of course, still left uncertain; Wright's Ten. 108 et seq.; 2 BI. Com. 63 et seq.

nature from those incident to knight-service,) and to fines for alienation, when held of the king in capite (1).

But since the abolition act of 12 Car. II., the only services incidental to lands of socage or freehold tenure are those of which the author will now treat; premising that, upon thus briefly introducing to the reader's consideration the subject of ancient and modern English tenure, it may not be thought irrelevant to notice that the more general opinion is, that freehold lands were devisable before the Conquest, but at that period, or soon after, the power of disposition ceased as a consequence of feudal tenure, except as to certain socage lands by the custom of some cities and boroughs (m).

FEALTY. (And herein of the ancient tribute of homage.)-From the earliest period of the feudal system, the service of fealty was incidental to and inseparable from every tenure, with the exception of tenure in frank-almoign (n), and such as hold at will or by sufferance (o), so much so that if lands were granted without the reservation of fealty, the tenure was deemed to be allodial (p), but nevertheless the oath of fealty might always be dispensed with.

When feuds became hereditary, besides an oath of fealty, the parent (as Mr. Justice Blackstone has observed) of our oath of allegiance (q), the tenant (or vassal), after the ceremony of corporal investiture, a form imitated in our modern feoffments of land, usually did homage to his lord, which differed from the former in this respect, namely, that the fealty was a profession of fidelity, and the homage an acknowledgment of tenure (r). Homage was taken in the following manner, viz., the tenant being ungirt and uncovered, and kneeling before the lord, holding his hands close together between the hands of his lord, spoke thus :-" I become your man from this day

(1) 2 Bl. Com. 89.

(m) And it is observable that upon a distinction raised after the stat. of quia emptores, between the land and the use or profits of the land, and the invention of feoffments to uses, the use or profits could be disposed of by will even before the stat. 27 Hen. 8, c. 10.

Socage lands and two-thirds of lands held by knight-service were made devisable by 32 & 34 Hen. 8, and the latter being converted into socage tenure in the 12 Car. 2, all lands became devisable, copyholds excepted; vide 32 Hen. 8, c. 1; 34 & 35 Hen. 8, c. 5; 12 Car. 2, c. 25; 29 Car. 2, c. 3; Co. Lit. 111 b, n. 1, 4; ante, pt. 1, p. 88; vide also Co. Lit. 111

b, n. 1, 4; Wright's Ten. 172 et seq.

(n) 9 Co. 123, in Anth. Lowe's case; Co. Lit. s. 131; Wright's Ten. 35, 139. Vide also a learned comment on the oath of fealty, Sulliv. Feud. L. lect. 6, p. 68.

(0) Co. Lit. 67 b, n. 2; ib. 68 b, n. 5. (p) Ante, p. 609.

(q) And see Sulliv. Feud. L. p. 283. (r) Homage of every kind, as far as it relates to tenures, is now wholly at an end; 12 Car. 2, c. 24; Co. Lit. 105 a, n. 1. See a general observation on the reason for discharging tenures from homage, and on the advantages arising from it whilst it remained, both to the lord and tenant, particularly to the latter where the homage was auncestrel, ib. 67 b, n. 1.

« AnteriorContinuar »