« AnteriorContinuar »
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 (I).
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
it shall be for the life of the grantee; Car. & Pay. 522; ante, pt. 1, p. 116. Cook v. Younger, Cro. Car. 16.
A grant to two for a term of years is (k) p. 111. good, for the appointment determines with (1) p. 116. the lives of the grantees, and will not go (m) Ante, pt. 1, ch. 8. to the executors or administrators; ante, (n) Ten. p. 6. And Sir W. Blackpt. 1, p. 115.
stone [2 Com. p. 45] observes, that And Note-A bishop may grant the “ the constitution of feuds had its origin stewardship of a manor for life, notwith- from the military policy of the norstanding the stat. 1 Eliz. c. 19, if usually thern or Cellic nations, the Goths, the so granted before that statute; Sir John Huns, the Franks, the Vandals, and the Trelawney v. Bishop of Winchester, 1 Lombards, who all migrating from the Burr. 219. And see Young v. Stoell, Cro. same officina gentium, as Crag very justly Car. 279; W. Jones, 310; Young v. Fow- entitles it, poured themselves in vast quanler, Cro. Car. 555; S. C. Mar. 38; Ridley tities into all the regions of Europe at the v. Pownell, 2 Lev. 136.
declension of the Roman empire.” A bishop grants the stewardship of a (0) Ante, p. 579, n. (f). manor for life, and says not for whose life,
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 (9).
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 (), (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,
referred to shows that our ancestors were when granted at will only, were called not originally beneficiaries, but voluntarily Munera, and when afterwards granted for submitted to this fiction of tenure. life, they were termed Beneficia, which (s) 2 Com. 73. word is still retained amongst ecclesiastics, (1) It should seem that knight-service whose estates are called Benefices; and was the implied tenure, if no particular the term Feuda was first used when es- services were reserved on a grant by the tates began to be granted in perpetuity; king, prior to the 12 Car. 2. See Dalr. on Spelm. Posth. Treat. of Feuds, 4, 6, 9; Feud. Prop. p. 24. Wright's Ten. 19. Vide as to the distinc- Escuage is sometimes confounded with tion between allodial and beneficiury pos- knight-service (Co. Lit. § 103], but it sessions, Roberts. Hist. Emp. Charles V., merely describes the pecuniary assessment,
calculated by the amount of a knight's (9) For a full illustration of this obso- fee, to excuse a personal attendance for lete doctrine, the author would urge an which such service was compounded, or attentive perusal of Sir Martin Wright's perhaps a pecuniary aid reserved in some introduction to the law of tenures, and of instances in lieu of personal service ; the history of feuds in the early part of Wright's Ten. 123; 2 Bl. Com. 75. Chief Baron Gilbert's treatise on tenures, (u) The prerogative of compelling the and also the 4th chap. of the 2nd vol. of heir to be knighted when of age, or to pay Sir William Blackstone's Commentaries. a fine to the king, was abolished by 16 Car. Et vide Harg. & Butl. notes to Co. Lit. 1, c. 20; 2 Bl. Com. 69, 70. 64 a, 191 a.
(.xWright's Ten. 141; 2 Bl. Com. 63. (1) Ante, p. 579, n. (f). The note here
fected by homage or fealty. This tenure drew to it the advantages of relief, and primer seisin (y), wardship, livery (2), 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 (6).
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 inquire by a jury of the county (on the than an additional relief, payable by those decease of any person of fortune) the value who held of the king in capite. When a of his estate, the tenure of it, and who, tenant in capite died seised of a knight's and of what age, his heir was; 2 Bl. Com. fee, the king was entitled to receive of the 68. heir, if of age, a year's profits of the land, (a) But the genuine feudal aid appears when in possession, and half a year's pro- to have been purely military, and not a fits if held in reversion, expectant on an contribution to the private necessities of estate for life. Indeed the king was en- the lord ; Wright's Ten. 41. See further titled to enter and receive the profits until as to aids, post, p. 612, n. (k); Wright's livery was sued, which being generally Ten. p. 40, &c. 105,
Hallam's Europe, sued within a year and a day after the 415. death of the tenant, it was usual to take (6) Wright's Ten. 140, 141 ; 2 B1. Com. the first fruits, or a year's profits of the 62. The proper knight-service was to atland. This gave rise to the claim by the tend the king in his wars; but there were Popes of the first year's profits of every other species of knight-service of an ho. benefice by way of first fruits.
norable nature, as grand serjeanty. Some (2) Primer seisin was not paid unless services of grand serjeanty are purely mithe heir was of age, but if under the age litary, as to bear the king's banner or his of 21, being a male, or 14, being a female, lance in time of war; and others are hothe lord was entitled to the wardship, and norary only, and in time of peace, as to was called guardian in chivalry, which perform certain offices at the king's corogave him the custody of the body and nation; and in some cases these services lands, without account, during such mi- may be executed by deputy; Co. Lit. s. 153, nority. And the lord, by the 3 Ed. 1, c. 155, 157. The honorary services of grand 22, could keep the female heir in ward serjeanty were, as well as the tenure by until 16. The male, on attaining 21, and copy of court roll, reserved by the stat. of the female 16, could sue out their livery 12 Car. 2. to obtain the lands out of the guardian's The services of petit serjeunty, as to hands, and for this half a year's profits of render to the king a war-like weapon, are the land were paid. These advantages to not mentioned in that statute, but petit the lord excused the infant heir from serjeanty still exists, and is considered to be livery, and in the case of tenants in capite, a dignified branch of socage tenure; Co. from primer seisin. The ascertainment of Lit 108 b, . 1. the profits arising from these fruits of te- (c) Or free tenure in common socage. nure suggested the antiquated proceeding (d) These are the only lay tenures now of an inquisitio post mortem, charging the subsisting, but it is to be remembered that intinerant justices or justices in eyre to 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 (f), 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 was also reserved by the stat. of Car. 2, is to all the sons equally. and which is of a spiritual nature, being And he is referred on the subject of dethe tenure by which religious houses held scent of copyhold lands enfranchised under their lands, and by which many ecclesias- the act of 4 & 5 Vict. c. 35, to a note of tical and eleemosynary foundations hold the author, ante, pt. 1, n. (b), p. 26. lands at this day; 2 Bl. Com. 101.
(k) The aid de relief was taken by in(e) Ch. 2, and ch. 19.
ferior lords, be
a sum to enable them to (1) Somner's Treat. of Gav. 143. pay their fines for relief or seisin to the
(8) Ib. 133, 141. And see 2 Bl. Com. lord paramount; Wright's Ten. 107, cites 80, 81.
Madox, Hist. of the Excheq. 428; Glanv. (h) 1 Inst. 86 a. And see Mr. Chris- lib. 9, cap. 8. And inferior lords fretian's note on this derivation, 2 Bl. Com. quently took aids to enable them not only 81, citing Bract. Spelman, &c., against to pay their fines to the king, but even Mr. Somner's and Sir William Blackstone's their debts. All, however, except the opinions.
above three ancient aids, were abolished (i) Burgage and gavelkind are included
as to inferior lords by King John's Charter, in socage tenure. Sir Martin Wright (Ten. c. 12, 15, which also ordained that no aids 145] says,
“ All our English fees or hold- should be taken by the king without conings, whether they be frank or emphiteuti- sent of parliament. This provision was cary, burgage or gavelkind, (though bur
omitted in Henry the Third's Charter, and gage and gavelkind have many qualities the old aids re-exacted, until, by stat. 25 different from common socage,) do now Ed 1, c. 5, 6, the clause in the charter of fall under the notion of socage tenures, King John was revived. Aids were comwhich, though they vary in point of ser- pletely arbitrary until King John's Charter, vice, succession, and the like, as improper and were not fully ascertained until the feuds, do nevertheless retain the nature of stat. West. 1, 3 Ed. 1, c. 36, which fixed feuds, inasmuch as they are held of some lord the aid of a knight's fee at 20s., and of soor superior by fealty, and usually by some cage lands, of the value of 207. a year, at 20s. other certain service or acknowledgment; This only extended to inferior lords, but and inasmuch as they yield or pay relief, the same provisions were made as to the and may escheat” And see Co. Lit. s. 162. king's tenants in capite by 25 Ed. 3, c. 11.
The student is reminded that the descent The aid for ransoming the lord's person in burgage-tenure is sometimes (hy force was, as a thing of course, still left uncerof the custom called Borough English) to tain ; Wright's Ten. 108 et seq. ; 2 Bl. the youngest son, and in gavelkind tenure
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.
b, n. 1, 4; Wright's Ten. 172 et seq. (m) And it is observable that upon a (n) 9 Co. 123, in Anth. Lowe's case; distinction raised after the stat. of quia Co. Lit. s. 131; Wright's Ten. 35, 139. emptores, between the land and the use or Vide also a learned comment on the oath profits of the land, and the invention of of fealty, Sulliv. Feud. L. lect. 6, p. 68. feoffments to uses, the use or profits could (0) Co. Lit. 67 b, . 2; ib. 68 b, u. 5. be disposed of by will even before the stat. (p) Ante, P.
609. 27 Hen. 8, c. 10.
(9) And see Sulliv. Feud. L. p. 283. Socage lands and two-thirds of lands (r) Homage of every kind, as far as it held by knight-service were made devis- relates to tenures, is now wholly at an end; able by 32 & 34 Hen. 8, and the latter 12 Car. 2, c. 24; Co. Lit. 105 a, n. 1. See being converted into socage tenure in the a general observation on the reason for 12 Car. 2, all lands became devisable, discharging tenures from homage, and on copyholds excepted; vide 32 Hen. 8, c. 1; the advantages arising from it whilst it 34 & 35 Hen. 8, c. 5; 12 Car. 2, c. 25; remained, both to the lord and tenant, 29 Car. 2, c. 3; Co. Lit. 111 b, n. 1, 4; particularly to the latter where the homage ante, pt. 1, p. 88; vide also Lit. 111 was auncestrel, ib. 67 b, n. 1.