"relief can be demanded." Which leads us alfo to another obfervation, that if focage tenures were of fuch base and servile original, it is hard to account for the very great immunities which the tenants of them always enjoyed; fo highly fuperior 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 ut most 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 focage, against the authority even of Littleton himself(1).

(1) The learned Judge has done Mr. Somner the honour of adopting his derivation of focage, which Mr. Somner himself boasts of as a new discovery with no little pride and exultation, as appears from the following fentence: Derivatio forte hæc nova et noftratibus adhuc inaudita, qui, à foc quatenus vel aratrum vel faltem vomerem fignat, vocem derivare fatagunt. Quam male tamen, eorum veniâ, fufius a me jam monitum_in_traftatu de gavelkind, cap. 4. Somn. Gloff. Soca. But notwithstanding this unheard-of derivation has found an able defender in the learned Commentator, the editor is obliged to prefer the old derivation for the following reasons :- Our most ancient writers derive it from feca or foccus, a plough; and fock, in fome parts of the north of England, is the common name for a plough-fhare to this day. The following description of focage is given by Bracton; dici poterit focagium à focco, et inde tenentes fockmanni, eo quod deputati funt, ut videtur, tantummodo ad culturam, et quorum cuflodia et maritagia ad propinquiores parentes jure fanguinis pertinebant.'(C. 35.) This is not only adopted by Littleton and lord Çoke, (Co. Litt. 86.) who fay, that focagium eft fervitium foca, which is alfo the interpretation given by Ducange, (voc. Soc.) but fir Henry Spelman, whofe authority is high in feudal antiquities, teftifies, that feudum ignobile, plebeium vulgare Gall. fief roturier nobili opponitur, et propriè dicimus, quod ignobilibus et rufticis competit, nullo feudali privilegio ornatum, nos joccagium dicimus. Gloff. voc. Feed. And foccagium he explains by Gall. roturt, fief roturier. Heretages en roture. (Ib. voc. Scr.)

In a law of Edward the Confeffor, the fokeman and villain are claffed together: Manbote de villano et fokeman xii oras, de liberis autem hominibus iii marcas. (C. 12.) If we confider the nature of


is where the king or other person is lord of an antient bo rough, in which the tenements are held by a rent certain". It is indeed only a kind of town focage; as common focage, by which other lands are holden, is ufually of a rural nature. A borough, as we have formerly feen, is usually distinguished from other towns by the right of sending members to parlia ment; 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 fcite of houses, in an antient borough, are held of fome lord in common focage, by a certain established rent. And these feem to have withstood the fhock of the Norman encroachments principally on account of their infignificancy, 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. Befides, the owners of them, being chiefly artificers and perfons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure in chivalry was. And here alfo we have again an inftance, [83] where a tenure is confeffedly in focage, and yet could not

poffibly ever have been held by plough-fervice; fince the tenants must have been citizens or burghers, the fituation frequently a walled town, the tenement a single houfe; fo that none of the owners was probably mafter of a plough, or was able to ufe one, if he had it. The free focage therefore, in which these tenements are held, feems to be plainly a remnant of Saxon liberty; which may alfo account for the great variety of customs, affecting many of thefe tenements fo held in antient burgage: the principal and most remarkable of which is that called Borough English, so named in contradiftinction as it were to the Norman cuftoms, and which is taken notice of by Glanvil", and by Littleton *; viz. that the youngest fon, and not the eldeft, fucceeds to the burgage tenement on the death of his father. For which Littleton gives this reafon; because the younger fon, by reafon of his

Litt. § 162, 163.
ubi fupra.

x $165.


tender age, is not fo capable as the rest of his brethren to help himself. Other authors have indeed given a much stranger reafon for this cuftom, as if the lord of the fee had antiently a right of concubinage with his tenant's wife on her weddingnight; and that therefore the tenement descended not to the eldeft, but the youngest fon; 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. And perhaps a more rational account than either may be fetched (though at a fufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this cuftom of descent to the youngest fon also prevails. That nation is compofed totally of fhepherds and herdsmen; and the elder fons, as foon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle; and go to feek a new habitation. The youngest fon therefore, who continues latest with the father, is naturally the heir of his house, the reft being already provided for. And thus we find that, among many other northern nations, it was the custom for all the fons but one to migrate from the father, which one be- [ 84 ] came his heir. So that poffibly this cuftom, wherever it prevails, may be the remnant of that paftoral state of our British and German ancestors, which Cæfar and Tacitus describe. Other special customs there are in different burgage tenures; as that, in fome, the wife fhall be endowed of all her husband's tenements, and not of the third part only, as at the common law: and that, in others, a man might difpofe of his tenements by will, which, in general, was not permitted after the conqueft till the reign of Henry the eighth; though in the Saxon times it was allowable. A pregnant proof that these liberties of focage tenure were fragments of Saxon liberty.

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THE nature of the tenure in gavelkind affords us a stilk ftronger argument. It is univerfally known what struggles the Kentish men made to preserve their antient liberties, and with how much fuccess those struggles were attended. And as it is principally here that we meet with the cuftom of gavelkind, (though it was and is to be found in fome other parts of the kingdom) we may fairly conclude that this was a part of thofe liberties; agreeably to Mr. Selden's opinion, that gavelkind before the Norman conqueft was the general custom of the realm. The diftinguishing properties of this tenure, are various fome of the principal are thefe; 1.. The tenant is of age fufficient to aliene his eftate by feoffment at the age of fifteen 1. 2. The estate does not efcheat in case of an attainder and execution for felony; their maxim being, "the "father to the bough, the fon to the plough '." 3. In moft places he had a power of devifing lands by will, before the statute for that purpofe was made *. 4. The lands defcend, not to the eldeft, youngest, or any one fon only, but to

all the fons together; which was indeed antiently the most 85 ufual courfe of defcent all over England", though in particular places particular cuftoms prevailed. Thefe, among. other properties, diftinguished this tenure in a most remarkable manner and yet it is faid to be only a fpecies of a focage tenure, modified by the custom of the country; the lands. being holden by fuit of court and fealty, which is a fervice in it's nature certain". Wherefore, by a charter of king John, Hubert archbishop of Canterbury was authorised to exchangethe gavelkind tenures holden of the fee of Canterbury into tenures by knight's-fervice; and by ftatute 31 Hen. VIII. c. 3. for difgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be defcendible for

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the future like other lands which were never holden by fervice of Jocage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive fhould be conferred upon mere ploughmen and peafants: from all which I think it fufficiently clear, that tenures in free focage are in general of a nobler original than is affigned by Littleton, and after him by the bulk of our common lawyers.

HAVING thus diftributed and diftinguished the several species of tenure in free focage, I proceed next to fhew that this also partakes very strongly of the feodal nature. Which may probably arife from it's antient Saxon original; fince (as was before obferved ") 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 confequences as among the Normans. It seems therefore reasonable to imagine, that focage tenure exifted in much the fame state before the conqueft as after; that in Kent it was preserved with a high hand, as our hiftories inform us it was; and that the reft of the focage tenures difperfed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own infignificancy: fince I do not apprehend the number of focage tenures foon after the conqueft to have been very confiderable, nor their value by any means large; till by fucceffive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton, their number and [86] value began to fwell fo far, as to make a distinct, and justly envied, part of our English system of tenures.

HOWEVER this may be, the tokens of their feodal original will evidently appear from a fhort comparison of the incidents and confequences of focage tenure with thofe of tenure in chivalry; remarking their agreement or difference as we go along.

1. In the first place, then, both were held of fuperior lords; one of the king, either immediately, or as lord paramount,

➤ pag. 48.

H 2

9 c. 66.


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