66 wardships, liveries, primer seisins, and ousterlemains, "values and forfeitures of marriages, 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

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knighting the son, and all tenures of the king in capite, be "likewise taken away. And that all sorts of tenures, held "of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, 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 vigour; but the statute of king Charles extirpated the whole, and demolished both root and branches.

CHAPTER THE SIXTH.

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 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 serjeanty, and the tenure by copy of court roll, were reserved; nay, all tenures in general, except frankalmoign, grand serjeanty (1), 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 antient 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.

THE military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, or free socage, consisted also of free and honourable

(1) Grand serjeanty, I imagine, ought not to be excepted; for the statute only saves its honorary services, and unless the tenure itself be turned into common socage, those who hold by it can still only devise two-thirds of their lands, &c. so held. See post, 375.

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 manner absorbed and swallowed up (since the statute of Charles the second) almost every other species of [79] tenure. And to this we are next to proceed.

II. SOCAGE, in it's most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton a; if a man holds by rent in money, without any escuage or serjeanty, "id tenementum dici potest socagium;" but if you add thereto any royal service, or escuage, to any, the smallest, amount, "illud dici poterit feodum militare." So too the author of Fleta ; "ex donationibus, servitia militaria vel magnae serjantiae non continentibus, oritur nobis quoddam nomen generale, quod est socagium." Littleton also 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 he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch, 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.

BUT socage, as was hinted in the last chapter, is of two sorts free-socage, where the services are not only certain, but honourable: and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure, are called in Glanvil, 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 [80] nature of it's service, 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"; who derives it from the Saxon appellation soc, which signifies liberty or privilege and, being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure. This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word, denoting (as they tell us) a plough: for that in ancient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that in process of time this service was changed into an annual rent by consent of all parties, and that, in memory of it's original, it still retains the name of socage or ploughservicek. 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 socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original, (as escuage, which, while it remained uncertain, was equivalent to knight-service,) the instant they were reduced to a certainty, changed both their name and nature, and were called socage ". It was the certainty therefore that denominated it a socage tenure; and nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke ferme ", tells us, that they are "lands and tene"ments, whereof the nature of the fee is changed by feoff"ment out of chivalry for certain yearly services, and in "respect whereof neither homage, ward, marriage, nor relief "can be demanded." Which leads us also to another observation, that if socage tenures were of such base and servile original, it is hard to account for the very great immunities

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which the tenants of them always enjoyed; so highly superior 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 utmost importance and value to the tenants, to reduce the tenure by knight-service, to fraunke ferme or tenure by We may therefore, I think, fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself. (2)

socage.

TAKING this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty; retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but, at the same time, more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowledged to be a species of socage tenure; the preservation whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and common socage.

• Wright, 211.

(2) Sir Martin Wright holds to the etymology of Littleton; 1st, because if socage be understood in the sense of servitium socæ, our division of tenures into knight-service and socage will answer directly to the Norman division into fiefs de Haubert, and fiefs de Roturiere, husbandman's or ploughman's fee; and, 2dly, because in this sense both tenants are simply denominated from the name or nature of the services anciently reserved upon them, p. 143. In the words of Mr. Hargrave, both derivations have their share of probability, which is as much as can be expected in a subject so very uncertain. Co. Litt. 86. a. n. (1).

The author a little favourably mistates Mr. Somner's etymology when he speaks of soc being "joined to a usual termination," for Mr. Somner makes agium a word signifying the agenda or things to be done; according to a common error of etymologists in that and former periods, who thought it necessary to find some distinct independent meaning for every syllable of a word; instead of considering that the terminations of derivative words are the modes only by which different languages, according to different analogies, express the different points of view under which the primitive and substantive idea is to be regarded.