certain service in lieu of all other services; so that they be not services of chivalry, or knight-service. And therefore afterwards (d) he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch, (e) a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage: as to hold by fealty and 20s. rent; or, by homage, fealty and 20s, rent: or, by homage and fealty without rent or, by fealty and certain corporal service, as ploughing the lord's land for three days; or by fealty only without any other service: for all these are tenures in socage. (f) But socage, as was hinted in the last chapter, is of two sorts: free socage, where the services, are not only certain, but honourable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil, (g) and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak; and this, both in the *nature of its service, and the fruits and [*80] consequences appertaining thereto, was always by much the most free and independent species of any. And therefore I cannot but assent to Mr. Somner's etymology of the word; (h) who derives it from the Saxon appellation soc, which signifies liberty or privilege, and being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure.(¿) This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word, denoting (as they tell us) a plough for that in ancient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of its original, it still retains the name of socage or plough service. (k) But this by no means agrees with what Littleton himself tells us, (7) that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original (as escuage, which, while it remained uncertain, was equivalent to knight-service), the instant they were reduced to a certainty changed both their name and nature, and were called socage. (m) It was the certainty therefore that denominated it a socage tenure; and nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke ferme, (n) tells us, that they are "lands and tenements whereof the nature of the fee is changed by feoffment out of chivalvy for certain yearly services, and in respect whereof neither homage, ward, marriage, nor relief can be demanded." Which leads us also to another observation, that if socage tenures were of such base and servile *original, it is hard to account for the very great immunities [*81] which the tenants of them always enjoyed; so highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I and Charles II, a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service to fraunke ferme or tenure by socage. We may, therefore, I think, fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself.

Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty: retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but, at the same time, more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent called gavelkind, which is generally acknowledged to be a species of socage tenure; (0) the preservation whereof inviolate from the

(d) 118. (e) L. 147. In like manner Skene, in his holding of lands quhen ony man is (k) Litt. 119. (7) 118.

(f) Litt. 117, 118, 119.

(g) L. 3, c. 7.

(h) Gavelk. 138. exposition of the Scots' law, title socage, tell us, that it is "any kind of infeft freely." &c.

(m) 98. 120.

(n) C. 66.

(0) Wright, 211.

And

innovations of the Norman conqueror is a fact universally known. those who thus preserved their liberties were said to hold in free and common socage.

As therefore the grand criterion and distinguishing mark of this species of tenure are the having its renders or services ascertained, it will include under it all other methods of holding free lands by certain and invariable rents and duties and, in particular, petit serjeanty, tenure in burgage, and gavelkind.

We may remember that, by the statute 12 Car. II, grand serjeanty is not itself totally abolished, but only the slavish appendages belonging to it: for the honorary services (such as carrying the king's sword or banner, officiating as his butler, carver, &c., at the coronation) are still reserved. Now petit sergeanty bears a great resemblance to grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's *person. Petit serjeanty, as defined by Littleton, (p) consists in [*82 ] holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says, (q) is but socage in effect: for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plough, but in all respects liberum et commune socagium: only being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit serjeanty. And magna carta respected it in this light, when it enacted, (r) that no wardship of the lands or body should be claimed by the king in virtue of a tenure by petit serjeanty. (1)

Tenure in burgage is described by Glanvil, (s) and is expressly said by Littleton, (t) to be but tenure in socage and it is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain. (u) It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually distinguished from other towns by the right of sending members to parliament, and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands which were formerly the site of houses, in an ancient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy; which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in socage, and yet could not possibly ever have been held by plough-service; since the *tenants must have been citizens or burghers, [*83] the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plough, or was able to use one, if he had it. The free socage therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting many of these tenements so held in ancient (r) Cap. 27. (8) Lib. 7, cap. 3.

(p) 159.

(q) § 160.

(t) § 162.

(u) Litt. § 162, 163.

(1) [The tenure of petit serjeanty is not named in 12 Car. II, but the statute is not without its operation on this tenure. It being necessarily a tenure in capite, though in effect only so by socage, livery and primer seisin were of course incident to it on a descent, and these are expressly taken away by the statute from every species of tenure in capite, as well socage in capite as knight's service in capite. But we apprehend that in other respects petit serjeanty is the same as it was before, that it continues in denomination and still is a dignified branch of the tenure by socage, from which it only differs in name on account of its reference to war. Harg. and Butl. Co. Litt. 108, b. n. 1. The tenure by which the grants to the duke of Marlborough and the duke of Wellington, for their great military services, are held, are of this kind, each rendering a small flag, or ensign annually, which is deposited in Windsor castle.]

burgage: the principal and most remarkable of which is that called Borough English, (2) so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil, (w) and by Littleton; (x) viz.: that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton (y) gives this reason; because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors (2) have indeed given a much stranger reason for this custom, as if the lord of the fee had anciently a right of concubinage with his tenant's wife on her wedding night; and that therefore the tenement descended not to the eldest, but the youngest son, who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland (under the name of mercheta or marcheta), till abolished by Malcolm III. (a) And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastorial life, migrate from their father with a certain allotment of cattle; and go to seek a new habitation. The youngest son, therefore, who continues latest with his father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one *became his heir. (b) So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and [*84] German ancestors, which Cæsar and Tacitus describe. Other special customs there are in different buigage tenures; as that, in some, the wife shall be endowed of all her husband's tenements, (c) and not of the third part, only, as at the common law: and that, in others, a man might dispose of his tenements by will, (d) which, in general, was not permitted after the conquest till the reign of Henry the Eighth; though in the Saxon times it was allowable. (e) A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty. (3)

(w) Ubi supra.

(x) § 165.

(y) § 211.

(z) 3 Mod. Pref.

(a) Seld. tit. of hon. 2. 1, 47. Reg. Mag. l. 4, c. 31.

(b) Pater cunctos filios adultos a se pellebat, præter unum quem hæredem sui juris relinquebat. (Walsingh. Upodigm. Neustr. c. 1.) (c) Litt. § 166.

d) § 167.

(e) Wright, 172.

(2) [This custom prevailed in the manors of Ford, Cundover, Wem, and Loppington, in Staffordshire; Bishop Hampton, Herefordshire; Havenham, Sussex; Malden, Essex; Skidby, East Riding, Yorkshire; and some others.

In some places the custom is confined to the children of the deceased proprietor; in others, in default of children, the youngest brother or other collateral male relation is preferred. But the former custom is the most usual. In some places the youngest female relations, lineal and collateral, inherit on failure of heirs male.]

(3) [Custom, if properly pleaded and proved, seems to be conclusive in all questions as to descent in borough English. In Chapman v. Chapman, March, 54, pl. 82, a custom respecting certain lands in borough English, that, if there were an estate in fee in those lands, they should descend to the younger son, according to the custom; but if the estate was in tail, they should descend to the heir at common law; was held to be good. The customary descent may, in particular places, be confined to estates in fee simple. Reeve v. Malster, W. Jones, 363; and see Append. to Robbins. on Gavelk. But it may extend to fee tail, or any other inheritance. Lord Coke says: 1 Inst. 110, b; "if lands of the nature of borough English be letten to a man and his heirs during the life of J.S, and the lessee dieth, the youngest son shall enjoy it." And, in the same place, he tells us, "the customary descent may in particular places, extend to collaterals;" but then it must be specially pleaded; for, the custom is in most places confined to cases of lineal descent: Bayley v. Stevens, Cro. Jac. 198; Reve v. Barrow, Cro. Car. 410; and where lands would at common law descend to the issue of the eldest son, jure repræsentationis, they will, by the custom of borough English, descend upon the issue of the youngest. Clements v. Scudamore, 2 Lord Raym. 1024; S. C., 1 P. Wms. 63; and 1 Salk. 243. The course of descent of lands held in gavelkind, or in borough English, cannot be altered by any limitation of the parties; for customs which go with the land, and direct the course of inheritance, can be altered only by parliament. Co. Litt. 27, a; Jenkins Cent. page 220; S. P., Dyer, 179, b.; Roe v. Aistrop, 2 W. Blacks. 1229; 2 Hale's Hist. of Com. L. 103.

The nature of the tenure in gavelkind affords us a still stronger argument. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. (4) And as it is principally here that we meet with the custom of gavelkind (though it was and is to be found in some other parts of the kingdom, (f) we may fairly conclude that this was a part of those liberties; agreeably to Mr. Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realm. (g) The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen. (h) 2. The estate does not escheat in case of an attainder and execution for felony; their maxim being "the father to the bough, the son to the plough." (i) 3. In most places he had a power of devising lands by will, before the statute for that purpose was made. (k) 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together; () which was indeed anciently the most usual *course of descent all over Eng[*85] land, (m) though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a socage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in its nature certain. (n) Wherefore by a charter of King John, (0) Hubert, archbishop of Canterbury was authorized to exchange the gavelkind tenures holden of the see of Canterbury, into tenures by knight's service; and by statute 31 Hen. VIII, c. 3, for disgaveling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive should be conferred upon mere ploughmen and peasants; from all which I think it sufficiently clear that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.

Having thus distributed and distinguished the several species of tenure in free socage, I proceed next to shew that this also partakes very strongly of the feudal nature. Which may probably arise from its ancient Saxon original; since (as) was before observed) (p) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest (ƒ) Stat. 32 Hen. VIII, c. 29. Kitch. of courts, 200.

(g) In toto regno, ante ducis adventum, frequens et usitata fuit: postea cæteris adempta, sed privatis quorundam locorum_consuetudinibus alibi postea regerminans; Cantianis solum integra et inviolata remansit. (Analect. l. 2. c. 7.)

(h) Lamb. Peramb. 614.

(m) Glanvil, l. 7, c. 3.

(i) Lamb 634. (n) Wright, 211.

(k) F. N. B. 193. Cro. Car 561.
(o) Spelm. cod. vet. leg. 355.

(2) Litt. § 210. (p) Page 48.

But there is a great difference between the descent of such land and the purchase thereof: for if upon such purchase a remainder be limited to the right heir of the purchaser, or of any other person, the heir at common law will take it, and not the customary heir. For, the remainder, being newly created, could not be considered within the old custom. Counden v. Clerk, Hob. 31. On the other hand, if a man seized in fee of lands in gavelkind, make a gift in tail, or a lease to a stranger for life, with remainder to his own right heirs, it seems all his sons will take; for the remainder limited to the right heirs of the donor is not a new purchase, but only a reversion, which will follow the customary course of descent. Co. Litt. 10 a; Chester v. Chester, 3 P. Wms. 63.

If the court of chancery is called upon to administer a will, creating an executory trust respecting lands held in borough English, or gavelkind, and the cestuis que trust are to take as purchasers, the lands will be directed to be conveyed not to heirs according to the custom, but to the heirs at common law. Roberts v. Dixwell, 1 Atk. 609; Starkey v. Starkey, 7 Bac. Ab. 179. And all gavelkind and borough English lands are now devisable; but, since the Statute of Frauds, 29 Car. II, c. 3, devise of these, as of other lands, must be in writing.]

(4) The modern historians, however, deny that the Kentish men made any such struggles for their liberties as are here supposed, and they quote ancient authorities in support of their position. See Hume, Lingard and Turner; also Taylor's History of Gavelkind. These authorities infer that it was the more ready submission of the Kentish people that secured them this favor, rather than their more determined resistance,

as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large; till by successive *charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton, (q) their number and value began to swell so far, [*86] as to make a distinct, and justly envied, part of our English system of tenures. However this may be, the tokens of their feudal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along. 1. In the first place, then, both were held of superior lords; one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and his tenant. (5)

2. Both were subject to the feudal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate (though perhaps nothing more than bare fealty), and so continues to this day.

3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant. (r) Which oath of fealty usually draws after it suit to the lord's court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron; if it be only for the reason given by Littleton, (s) that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies. (†) 4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest *daughter: (u) which were fixed by the statute of Westm. 1, c. 36, at 20s. for every 201. per annum so held; as [*87] in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as a matter of right; but were all abolished by the statute 12 Car. II.

5. Relief is due upon socage tenure, as well as upon tenure in chivalry: but the manner of taking it is very different. The relief on a knight's fee was 51. or one-quarter of the supposed value of the land; but a socage relief is one year's rent or render, payable by the tenant to the lord, be the same either great or small: (w) and therefore Bracton (x) will not allow this to be properly a relief, but quædam præstatio loco relevii in recognitionem domini. So too the statute 28 Edw. I, c. 1, declares, that a free sokeman shall give no relief, but shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved about measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age: but in socage they were due even though the heir was under age, because the lord has no wardship over him. (y) The statute of Charles II reserves the reliefs incident to socage tenures: and, therefore, wherever lands in fee-simple are holden by a rent, relief is still due of common right upon the death of a tenant. (z) (6)

(g) C. 66.

(r) Litt. 8 117, 131.

(m) Litt. 126.

(8) 130.

(1) Eo maxime præstandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur, (Corvin. jus feod. l. 2, t. 7.) (u) Co. Litt. 91. (x) L. 2, c. 37, § 8. (y) Litt. 127. (z) 3 Lev. 145.

(5) Justice Coleridge says, there is some mistake in introducing the word "one" into this sentence, because both might be held of the king in chief, and both of him as lord paramount. (6) [Where the tenure is by fealty only, of course there can of common right, be no relief, being a year's rent, it cannot be calculated if no rent be payable. Co. Litt. 93, a. But by