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Book II. changing our military tenures feems to have been nearly the fame as that which has been fince purfued; only with this difference, that, by way of compenfation for the lofs which the crown and other lords would fustain, an annual feefarm rent was to have been fettled and infeparably annexed to the crown, and affured to the inferior lords, payable out of every knight's fee within their refpective feignories. An expedient, feemingly much better than the hereditary excife, which was afterwards made the principal equivalent for these conceffions. For at length the military tenures, with all their heavy appendages (having during the ufurpation been difcontinued) were deftroyed at one blow by the ftatute 12 Car. II. c. 24. which enacts, "that the court of wards and liveries, "and all wardships, liveries, primer feifins, and ouster"lemains, values and forfeitures of marriages, by reafon of "any tenure of the king or others, be totally taken away. "And that all fines for alienations, tenures by homage,
knights-fervice, and efcuage, and also aids for marrying "the daughter or knighting the fon, and all tenures of the "king in capite, be likewife taken away (8). And that all "forts of tenures, held of the king or others, be turned into
(8) Both Mr. Madox and Mr. Hargrave have taken notice of this inaccuracy in the title and the body of the act, viz. of taking away tenures in cafite; (Mad. Bar. Ang. 238. Co. Litt. 108. n. 5.) for tenure in capite fignifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of military or focage tenure. The fame incorrect language was held by the speaker of the houfe of commons in his pedantic address to the throne upon prefenting this bill. "Royal fir, your tenures "in çapite are not only turned into a tenure in focage, (though that "alone will for ever give your majefty a just right and title to the "labour of our ploughs, and the fweat of our brows,) but they are "likewife turned into a tenure in corde. What your majefty had "before in your court of wards, you will be fure to find it here"after in the exchequer of your people's hearts." Journ. Dam. Proc. 11 vol. 234.
"free and common focage; fave only tenures in frankalmoign, "copyholds, and the honorary fervices (without the flavish "part) of grand ferjeanty." A ftatute, which was a greater acquifition to the civil property of this kingdom than even magna carta itself: fince that only pruned the luxuriances that had grown out of the military tenures, and thereby preferved them in vigour; but the ftatute of king Charles extirpated the whole, and demolished both root and branches.
CHAPTER THE SIXTH.
OF THE MODERN ENGLISH TENURES,
LTHOUGH, by the means that were mentioned in the preceding chapter, the oppreffive or military part of the feodal conftitution was happily done away, yet we are not to imagine that the conftitution itself was utterly laid afide, and a new one introduced in it's room: fince by the ftatute 12 Car. II. the tenures of focage and frankalmoign, the honorary services of grand ferjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand ferjcanty, and copyhold, were reduced to one general species of tenure, then well known and fubfifting, called free and common focage. And this, being sprung from the fame feodal original as the reft, demonftrates the neceflity of fully contemplating that antient system; fince it is that alone to which we can recur, to explain any feeming or real difficulties, that may arife in our prefent mode of tenure.
THE military tenure, or that by knight-service, confifted of what were reputed the most free and honourable fervices, but which in their nature were unavoidably uncertain in respect to the time of their performance. The fecond species of tenure, or free-focage, confifted alfo of free and honourable services; but such as were liquidated and reduced to an abfolute certainty. And this tenure not only fubfifts to this day, but has in a manner absorbed and swallowed up (fince the
ftatute of Charles the fecond) almoft every other fpecies of tenure. And to this we are next to proceed.
II. SOCAGE, in it's most general and extenfive fignifica tion, seems to denote a tenure by any certain and determinate fervice. And in this fenfe it is by our antient writers constantly put in opposition to chivalry, or knight-fervice, where the render was precarious and uncertain. Thus Bracton; if a man holds by a rent in money, without any efcuage or ferjeanty, "id tenementum dici poteft focagium:" but if you add thereto any royal fervice, or efcuage to any, the fmalleft, amount, "illud dici poterit feodum militare." So too the author of Fleta b; "ex donationibus, fervitia militaria vel magnae ferjantiae non continentibus, oritur nobis quoddam nomen gene"rale, quod eft focagium." Littleton alfo defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other fervices; so that they be not fervices of chivalry, or knight-fervice. And therefore afterwards he tells us, that whatfoever is not tenure in chivalry is tenure in focage: in like manner as it is defined by Finch, a tenure to be done out of war. The fervice must therefore be certain, in order to denominate it focage; as to hold by fealty and 20 s. rent; or, by homage, fealty, and 20 s. 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 fervice: for all thefe are tenures in focage'.
BUT focage, as was hinted in the laft chapter, is of two forts: free-focage, where the services are not only certain, but honourable: and villein-focage, where the fervices, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil, and other fubfequent authors, by the name of liberi fokemanni, or tenants in free-focage. Of this tenure we are first to speak; and this, both in the na
Book II. ture of it's fervice, and the fruits and confequences appertaining thereto, was always by much the most free and independent fpecies of any. And therefore I cannot but affent to Mr. Somner's etymology of the word: who derives it from the Saxon appellation foc, which fignifies liberty or privilege, and, being joined to a usual termination, is called focage, in Latin focagium; fignifying thereby a free or privileged tenure. This etymology feems to be much more just than that of our common lawyers in general, who derive it from foca an old Latin word denoting (as they tell us) a plough for that in antient time this focage tenure confisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, fow, or reap for him; but that in process of time, this fervice was changed into an annual rent by confent of all parties, and that, in memory of it's original, it ftill retains the name of a focage or plough-service. But this by no means agrees with what Littleton himself tells us, that to hold by fealty only, without paying any rent, is tenure in focage; for here is plainly no commutation for plough-fervice. Befides, even services, confeffedly of a military nature and original, (as efcuage, which, while it remained uncertain, was equivalent to knightfervice,) the inftant they were reduced to a certainty changed both their name and nature, and were called focage". It was the certainty therefore that denominated it a focage tenure; and nothing fure could be a greater liberty or privilege, than to have the fervice afcertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore alfo Britton, who defcribes lands in focage tenure under the name of fraunke ferme", tells us, that they are, "lands " and tenements, whereof the nature of the fee is changed " by feoffment out of chivalry for certain yearly fervices, and "in refpect whereof neither homage, ward, marriage, poṛ
A Gavelk. 138.
i In like manner Skene in his expoAtion of the Scots' law, title fo age, tells us, that it is ane kind of holding of • lands, quhen ony man is infeft freely,'
k Litt. § 119.
m Litt. 98. 120.
n c. 65.