« ForrigeFortsett »
be holden of the fame lord, as they themselves held it of before. But the king's tenants in capite, not being included under the general words of these ftatutes, could not aliene without a licence: for if they did, it was in antient ftrictness an abfolute forfeiture of the land; though fome have imagined otherwife. But this feverity was mitigated by the statute 1 Edw. III. c. 12. which ordained, that in fuch case the lands fhould not be forfeited, but a reasonable fine be paid to the king. Upon which statute it was fettled, that one third of the yearly value fhould be paid for a licence of alienation; but, if the tenant prefumed to aliene without a licence, a full year's value fhould be paid .
7. THE laft confequence of tenure in chivalry was efcheat; which is the determination of the tenure, or diffolution 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 ftained by commiffion of treafon or felony; whereby every inheritable quality was entirely blotted out and abolished. In fuch cafes the land efcheated, or fell back, to the lord of the fee'; that is, the tenure was determined by breach of the original condition, expreffed or implied in  the feodal donation. In the one cafe, there were no heirs fubfifting of the blood of the firft feudatory or purchaser, to which heirs alone the grant of the feud extended; in the other, the tenant, by perpetrating an atrocious crime, fhewed that he was no longer to be trufted as a vafal, having forgotten his duty as a fubject; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or a felon. The confequence of which in both cafes was, that the gift, being determined, refulted back to the lord who gave it ".
THESE were the principal qualities, fruits, and confequences of the tenure by knight-fervice: a tenure, by which
i 2 Inft. 66.
I Co. Litt. 13.
* Ibid. 67:
the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century (6); and which was created, as fir Edward Coke exprefslý teftifies", for a military purpofe; viz. for defence of the realm by the king's own principal fubjects, which was judged to be much better than to truft to hirelings or foreigners. The defcription here given is that of knightfervice proper; which was to attend the king in his wars. There were also fome other species of knight-fervice; fo called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-fervice proper, and because they were attended with similar fruits and confequences. Such was the tenure by grand ferjeanty per magnum fervitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do fome special honorary service to the king in perfon; as to carry his banner, his fword, or the like; or to be his butler, champion, or other officer, at his coronation. It was in moft other refpects like knightfervice; only he was not bound to pay aid, or efcuage'; and, when tenant by knight-service paid five pounds for a  relief on every knight's fee, tenant by grand ferjeanty paid one year's value of his land, were it much or little. 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 fubjects, was (like other services of the fame nature) a fpccies of grand ferjeanty '.
THESE fervices, both of chivalry and grand ferjeanty, were all perfonal, and uncertain as to their quantity or duration. But, the perfonal attendance in knight-fervice growing trou
(6) I do not know that we are any where told what proportion, in quantity, the military tenure bore to the focage tenure.
blefome and inconvenient in many refpects, the tenants found means of compounding for it; by first fending others in their stead, and in procefs of time making a pecuniary fatisfaction to the lords in lieu of it. This pecuniary fatisfaction at laft came to be levied by affeffments, at fo much for every knight's fee; and therefore this kind of tenure was called feutagium in Latin, or fervitium fcuti; fcutum being then a well-known denomination for money (7): and, in like manner, it was called, in our Norman French, efcuage; being indeed a pecuniary, instead of a military, fervice. The first time
appears to have been taken was in the 5 Hen. II, on account of his expedition to Touloufe; but it foon came to be fo univerfal, that perfonal attendance fell quite into difufe. Hence we find in our antient hiftories, that, from this period, when our kings went to war, they levied fcutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenfes, and to hire troops: and these affeffments, in the time of Henry II, feem to have been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his fucceffors it became matter of national clamour; and king John was obliged to confent, by his magna carta, that no fcutage hould be impofed without confent of parliament ". But this claufe was omitted in his fon Henry III's charter; where we only find ", that fcutages or efcuage, fhould be taken as they were ufed to be taken in the time of Henry II: that is, in a reasonable and moderate manner. Yet afterwards by ftatute 25 Edw. I. c. 5 & 6. [ 75 】 and many fubfequent ftatutes it was again provided, that the king fhould take no aids or tasks but by the common affent of the realm: hence it was held in our old books, that efcuage or fcutage could not be levied but by confent of parlia
■ Nullum feutagium ponatur in regno noftro, nifi per commune confilium regni noftri. сер. 12.
w cap. 37.
* See Vol. I. pag. 140.
(7) But Lyttleton, Coke, and Bracton, render it the fervice of the fhield, i. e. of arms, being a compenfation for actual service. Co. Litt. 68. b.
ment; fuch fcutages being indeed the groundwork of all fucceeding fubfidies, and the land-tax of later times.
SINCE therefore efcuage differed from knight-fervice in nothing, but as a compenfation differs from actual fervice, knight-fervice is frequently confounded with it. And thus Littleton must be understood, when he tells us, that tenant by homage, fealty, and efcuage, was tenant by knight-fervice: that is, that this tenure (being fubfervient to the military policy of the nation) was refpected as a tenure in chivalry. But as the actual fervice was uncertain, and depended upon emergences, fo it was neceffary that this pecuniary compensation should be equally uncertain, and depend on the affeffments of the legiflature fuited to thofe emergenFor had the efcuage been a fettled invariable fum payable at certain times, it had been neither more nor less than a mere pecuniary rent: and the tenure, instead of knight-service, would have then been of another kind, called focage ©, of which we fhall speak in the next chapter.
FOR the prefent I have only to obferve, that by the degenerating of knight-fervice, or perfonal military duty, into efcuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal conftitution were destroyed, and nothing but the hardships remained. Inftead of forming a national militia compofed of barons, knights, and gentlemen, bound by their intereft, their honour, and their oaths, ⚫ to defend their king and country, the whole of this system of tenures now tended to nothing else, but a wretched means of raifing money to pay an army of occafional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which (in confequence of the fiction adopted after the conqueft) were introduced and laid upon them by the subtlety and fineffe of the Norman lawyers. For, befides the fcutages to which they were liable in defect of personal attendance, which however
y Old Ten. tit. Efcuage.
2 § 103.
a Wright. 122.
b Pro feodo militari reputatur. Flet. 1.2. c. 14. § 7.
Litt. § 97. 120.
were affeffed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest fon 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 arifing from his inheritance, by way of relief and primer seisfin; and, if under age, of the whole of his eftate during infancy. And then, as fir Thomas Smith very feelingly complains, "when he came to his own, after "he was out of wardship, his woods decayed, houfes fallen "down, stock wafted and gone, lands let forth and plough, "ed to be barren," to reduce him ftill farther, he was yet to pay half a year's profits as a fine for fuing out his livery; and alfo the price or value of his marriage, if he refufed fuch wife as his lord and guardian had bartered for, and impoïed upon him; or twice that value, if he married another woman, Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely fplendid. And when by these deductions his fortune was fo fhattered and ruined, that perhaps he was obliged to fell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation.
A SLAVERY fo complicated, and fo extenfive as this, called aloud for a remedy in a nation that boafted of it's freedom. Palliatives were from time to time applied by fucceffive acts of parliament, which affuaged fome temporary grievances. Till at length the humanity of king James I consented, in confideration of a proper equivalent, to abolish them all; though the plan proceeded not to effect; in like manner as he had formed a scheme, and began to put it in execution,· for removing the feodal grievance of heritable jurifdictions [ 77 } in Scotland', which has fince been pursued and effected by the ftatute 20 Geo. II. c. 43.
d Commonw. 1. 3. c. 5.
€ 4 Inst. 202.
f Dalrymp. of feuds, 292.
By another ftatute of the fame year
King James's plan for ex
(20 Geo. II. c. 50.) the tenure of ward-