There were also

service proper, which was to attend the king in his wars. some other species of knight's service, so 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's service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty,(20) per magnum servitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person; (21) as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer, at his coronation. (0) It was in most other respects like knightservice; (p) only he was not bound to pay aid, (7) or escuage, (r) *and, [*74 when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeanty paid one year's value of his land, were it much or little. (s) Tenure by cornage, (22) 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 serjeanty. (t)

These services, both of chivalry and grand serjeanty, 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 kind of tenure was called scutagium in Latin, or servitium scuti;(23) scutum being then a

(20) Mr. Hargrave (note I to Co. Litt. 108, a.) observes that the tenure by grand serjeanty still continues, though it is so regulated by the 12th of Car. II. c. 24 as to be made in effect free and common socage, except so far as regards the merely honorary parts of grand serjeanty. These are preserved, with a cautious exception, not only of those burthensome properties which really were previously incident to that species of tenure, but also of some to which it never was subject; the drawer of the act not appearing to have recollected the distinctions, as to this matter, between knight's service and grand serjeanty, which our author points out.-CHITTY.

Co.

(21) Perhaps, more correctly, "to do some special honorary service in person to the king;" the general rule being that it was to be done personally by the tenant, if able, though there are many instances in which it was not to be done to the king in person. This may explain why he who held by grand serjeanty paid no escuage. The devout attachment to the lord's person, which was so much fostered by the feudal system, is in none of its minor consequences more conspicuous than in the nature of the personal services which the haughtiest barons were proud to render to their lord paramount. To be the king's butler or carver, are familiar instances. Mr. Madox mentions one more singular, -of a tenure in grand serjeanty by the service of holding the king's head in the ship which carried him in his passage between Dover and Whitsand. Baronia, 3, c. 5.—Coleridge. (22) "A tenure by cornage of a common person was knight's service; of the king, grand serjeanty. The royal dignity made a difference of the tenure in this case." Litt. 107, a. So the dignity of the person of the king gave the name of petit serjeanty to services which, if rendered to a common person, would have been called plain socage, the incidents being, in fact, only such as belonged to socage. Co. Litt. 108, b.; and see, post, our author's observation to a similar effect, in p. 82.-CHITTY. (23) "Service money." See Williams on Real Prop. p. 122 (6 ed.). But Littleton, Coke, and Bracton render it the service of the shield,—i. e., being a compensation for actual service. Co. Litt. 68, b.-CHRISTIAN. Sir M. Wright considers that escuage, though in some instances the compensation made to the lord for the omission of actual service, was also in many others a pecuniary aid or tribute originally reserved by particular lords instead of personal service, varying in amount according to the expenditure which the lord had to incur in his personal attendance upon the king in his wars. This explanation tends to elute the distinction between knight-service and escuage in the old authors. See Wright, 121, 134. Litt. s. 98, 120.-CHITTY.

of arms,

well-known denomination for 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. (u) But this clause was omitted in his son Henry III.'s charter, where we *75] only find (w) that scutages, *or escuage, should be taken as they were used to be taken in 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 statutes, (x) it was again provided that the king should take no aids or tasks but by the common assent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament; (y) 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 a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton (z) must be understood, when he tells 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 respected (a) as a tenure in chivalry. (b)(24) But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure, instead of knightservice, would have then been of another kind, called socage, (c) of which we shall speak in the next chapter.

For the present I have only to observe, that by the degenerating of knightservice, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal 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, *76] the whole of this system of *tenures now tended to nothing else but a

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 burthens 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 to which they were liable in defect of personal attendance, which, however, 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 seisin; and if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith(d) 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 ploughed to be barren," to reduce him still further, 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 perhaps he was obliged to sell his patrimony, he had not even 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 its 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. consented, (e) in consideration of a proper equivalent, to abolish them all; though the plan *proceeded not to effect; in like manner as he had formed a [*77 scheme, and begun to put it in execution, for removing the feodal grievance of heritable jurisdiction in Scotland, (ƒ) which has since been pursued and effected by the statute Geo. II. c. 43.(g) 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 fee-farm rent was to have been settled and inseparably annexed to the crown and assured to the inferior lords, payable out of every knight's fee within their respective seignories. 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, (having during the usurpation been discontinued,) 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 seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away.(25) And that all sorts of tenures, held of

(d) Commonw. 1. 3, c. 3.

(e) 4 Inst. 202.

(f) Dalrymp. of Feuds, 292.

(g) By another statute of the same year, (20 Geo.

II. c. 50,) the tenure of ward-holding (equivalent to the knight-service of England), is forever abolished in Scotland.

(25) Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the title and body of the act, viz., of taking away tenures in capite, (Mad. Bar. Ang. 238. Co. Litt. 108, n. 5;) for tenure in capite signifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of military or socage tenure. The same incorrect language was held by the speaker of the house of commons in his pedantic address to the throne upon presenting this bill:-"Royal sir, your tenures in capite are not only turned into a tenure in socage, (though that alone will forever give your majesty a just right and title to the labor of our ploughs and the sweat of our brows,) but they are likewise turned into a tenure in corde. What your majesty had before in your court of wards you will be sure to find it hereafter in the exchequer of your people's hearts." Jour. Dom. Proc. 11 vol. 234.-CHRISTIAN.

the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyhold, and the honorary services (without the slavish part) of grand serjeanty." 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 and branches.(26)

CHAPTER VI.

OF THE MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution itself was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in its room: since by the statute 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeantry, and the tenure by copy of court-roll; were reserved; nay, all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced to one general species of tenure, then well known, and subsisting, called free and common socage. And this, being sprung from the same feodal original as the rest, demonstrates the necessity of fully contemplating that ancient system; since it is that alone to which we can recur, to explain any seeming or real difficulties, that may arise in our present mode of tenure. (1)

(26) Williams on Real Property, 6 ed. p. 123.

(1) The tenure prescribed in all the early colonial charters or patents of this country was free and common socage, being "according to the free tenure of lands in East Greenwich in the county of Kent, in England; and not in capite or by knight's service." See the great patent of New England, granted by king James in 1620; the charter of Massachusetts, in 1629; the prior charter of Virginia, in 1606; the charter of the Province of Maine, in 1639; the Rhode Island charter, in 1663; the Connecticut charter, in 1662; the Maryland charter, in 1632; the act of the General Assembly of the Colony of New York of 13th May, 1691; (Bradford's edit. of Colony Laws, printed 1719;) the charter of Pennsylvania, in 1681; the patent of 1662 of Carolina; the charter of Georgia, in 1732. These charters, or the substance of them, are to be seen in most of our early colonial documentary collections, annalists, and historians; and the substance of them is accurately condensed and stated in Story's Commentaries on the Constitution of the United States, vol. 1. Kent, vol. 3, 571, note. Washburn on Real Prop. vol. 1, p. 123 (5 ed.). In those States in which, by express legislative enactment, lands have not been declared allodial, while tenure exists it is only in theory. All lands are supposed to be held mediately or immediately, of the State, which has succeeded by the Revolution to the feudal position of paramount lord, before that period occupied by the crown. Escheat in most of the States is regulated by statute. In Cornell v. Lamb, 2 Cowen, 652, it was declared by Woodworth, J., that fealty was not in fact due on any tenure in the State of New York, and had become altogether fictitious. In Pennsylvania, it has been decided that the statute of quia emptores was never in force, and subinfeudation always lawful; and though there are some opinions that tenures fell with the Revolution, yet all agree that they existed before, and the better opinion appears to be that they still exist. The principles of the feudal system, in truth, underlie all the doctrines of the common law in regard to real estate, and wherever that law is recognized recourse must be had to feudal principles to understand and carry out the common law. The necessity of words of limitation in deeds, --the distinction between words of limitation and words of purchase, -the principle that the freehold shall never be in abeyance, that a remainder must vest during the continuance of a particular estate or eo instanti that it determines, that the heir cannot take as a purchaser an estate the freehold of which by the same deed is

The military tenure, or that by knight-service, consisted of what were reputed the most free and honorable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. second species of tenure, or free socage, consisted also of free and honorable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to *this day, but has in a [*79 manner absorbed and swallowed up (since the statute of Charles the Second) almost every other species of tenure. And to this we are next to proceed.

II. Socage, in its most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our ancient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. (2) Thus Bracton; (a) if a man holds by rent in money, without any escuage or serjeantry, "id tenementum dici potest socagium:"(3) but if you add thereto any royal service, or escuage, to any the smallest amount, "illud dici poterit feodum militare." (4) So too the author of Fleta; (b) "ex donationibus, servitia militaria vel magnæ serjantie non continentibus, oritur nobis quoddam nomen generale, quod est socagium."(5) Littleton also (c) defines it to be, where the tenant holds his tenement of the lord by any 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:(6) 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. (ƒ)

But socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain, but honorable; 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, [*80 and the fruits and 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

vested in the ancestor,—and many more rules and principles of very great practical importance, and meeting us at every turn in the American as well as the English law of real estate, are all referrible to a feudal origin. "The principles of the feudal system," said chief-justice Tilghman, are so interwoven with our jurisprudence that there is no removing them without destroying the whole texture." Lyle v. Richards, 9 S. & R. 333. "Though our property is allodial," said chief-justice Gibson, "yet feudal tenures may be said to exist among us in their consequences and the qualities which they originally imparted to estates; as, for instance, in precluding every limitation founded on an abeyance of the fee." McCall v. Neely, 3 Watts, 71. See Ingersoll v. Serjeant, 1 Whart. 337. Hubley v. Vanhorne, 7 S. & R. 188. Hileman v. Bonsbaugh, 1 Harris, 351.-SHARSWOOD.

(2) Pingrey on Real Prop. p. 35.

(3) ["That tenure may be called socage."]

(4) ["That shall be called military service."]

(5) ["The general name of socage arises from grants to which military service, or grand serjeanty is not incident."]

(6) Van Renseller v. Smith, 27 Barb. (N. Y.) 150 (1858).