authorized to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight's service; and by statute 31 Hen. VIII. c. 3, for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now, the immunities which the tenants in gavelkind enjoyed were such as we cannot conceive should be conferred upon mere ploughmen and peasants; from all which I think it sufficiently clear that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.

Having thus distributed and distinguished the several species of tenure in free socage, I proceed next to show that this also partakes very strongly of the feodal nature. Which may probably arise from its ancient Saxon original; since (as was before observed)(p) 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 consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the con quest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favor and affection to their particular owners, and partly from their own insignificancy; since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large; till by successive *charters [*86 of enfranchisement granted to the tenants, which are particularly mentioned by Britton, (q) their number and value began to swell so far, as to make a distinct, and justly envied, part of our English tenures.

However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along.

1. In the first place, then, both were held of superior lords; one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and his tenant. (14)

2. Both were subject to the feodal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain, in socage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty,) and so continues to this day.

3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant. (r) Which oath of fealty usually draws after it suit to the lord's court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his courtbaron; if it be only for the reason given by Littleton, (s) that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies. (t)

(p) Page 48.

(9) C. 66.

(r) Litt. 38 117, 131.

(8) Litt. § 130.

(t) Eo maxime præstandum est, ne dubium reddatur

jus domini et vetustate temporis obscuretur. Corvin, jus feod. 1. 2, 1.7. [It is chiefly to be taken, lest the right of the lord be rendered doubtful and obscured by length of time.]

(14) Washburn on Real Prop. 5 ed. vol. I, p. 54. Jackson v. Shute, 18 Johnson, 186 N. Y. 1820.

4. The tenure in socage was subject, of common right, to aids for *87] knighting the son and marrying the eldest daughter, (u) which were fixed by the statute of Westm. 1, c. 36 at 20s. for every 20l. per annum so held, as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12 Car. II.(15)

5. Relief is due upon socage tenure, as well as upon tenure in chivalry; but the manner of taking it is very different. The relief on a knight's fee was 57., or one quarter of the supposed value of the land; but a socage relief is one year's rent or render, payable by the tenant to the lord, be the same either great or small, (16)(w) and therefore Bracton(x) will not allow this to be properly a relief, but quædam præstatio loco relevii in recognitionem domini.(17) So too the statute 28 Edw. I. c. I declares that a free sokeman shall give no relief, but shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved about measure. Reliefs in knight-service were only payable if the heir at the death of his ancestor was of full age: but in socage they were due even though the heir was under age, because the lord has no wardship over him. (y) The statute of Charles II. reserves the reliefs incident to socage tenures; and therefore, wherever lands in fee-simple are holden by a rent, relief is still due of common right upon the death of a tenant. (z)

6. Primer seisin was incident to the king's socage tenants in capite, as well as to those by knight-service. (a) But tenancy in capite as well as primer seisins are, among the other feodal burthens, entirely abolished by the statute.

7. Wardship is also incident to tenure in socage; but of a nature very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor ever did,

belong to the lord of the fee; because in this tenure, no military or *88] *other personal service being required, there was no occasion for the

lord to take the profits in order to provide a proper substitute for his infant tenant; but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one to whom the inheritance by no possibility can descend, (18) as was fully

(u) Co. Litt. 91.

(w) Litt. § 126.

(x) L. 2, c. 37, § 8.

(y) Litt. § 127.
(z) 3 Lev. 145.
(a) Co. Litt. 77.

(15) Fowler's Hist. Law Real Prop. p. 32. I Pingrey on Real Prop. p. 35. (16) See Williams on Real Prop. p. 122 (6 ed.). (17) [A certain præstation (sum of money) instead of a relief, as an acknowledgment of the lord.]

(18) In re Bull. 45 Barb. (N. Y.) 340 (1865). Schouler's Dom. Rel. p. 403 (3 ed. 1882). Mr. Hargrave, in his 5th note to Co. Litt. 88, b., intimates that this rule should be confined to possibility of immediate descent. If this be not so, supposing an infant were entitled to lands and his father living, the father might be deprived of the guardianship; for the infant's heir might be a person to whom the father might be heir.

The guardianship of a father, by the English law, (which, in this instance, is founded on the law of nature,) continues, with respect to his son and heir-apparent, till that son attain the age of twenty-one years; but it so continues with respect to the custody of the body only. The King v. Thorp, Comyns, 28, S. C. Carth. 386. According to the strict language of our law, an heir-apparent alone can be the subject of guardianship by nature. Ratcliffe's case, 3 Rep. 38. But this technical construction must not lead us to conclude that parents have not any right to the custody of their other children; for our law gives the custody of them to their parents till the age of fourteen by the guardianship of nurture. S. Č. And the statute of 12 Charles II. c. 24 empowers a father, though himself under twenty-one, by deed or will attested by two witnesses, to appoint guardians to all his children under twenty-one, and unmarried at his decease, or born after; such guardianship to last till the children attain the age of twenty-one, or for any less time, and the appointment to be effectual against all claiming as guardians in socage or otherwise,

explained, together with the reasons for it, in the former book of these commentaries. (b) At fourteen this wardship in socage ceases; and the heir may oust the guardian and call him to account for the rents and profits;(c) for at this age the law supposes him capable of choosing a guardian for himself. (19) It was in this particular of wardship, as also in that of marriage, and in the certainty of the render of service, that the socage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it,-that young heirs, being left at so tender an age to choose their own guardians till twenty-one, might make an improvident choice. Therefore, when almost all the lands in the kingdom were turned into socage tenures, the same statute, 12 Car. II. c. 24, enacted that it should be in the power of any father, by will, to appoint a guardian till his child should attain the age of twenty-one. (20) And if no such appointment be made, the court of chancery will frequently interpose, and name a guardian, to prevent an infant heir from improvidently exposing himself to ruin.

8. Marriage, or the valor maritagii, (21) was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage. (d) For the law in favor of infants is always jealous of guardians, and therefore in this case it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; *lest by some collusion the guardian should have received [*89 the value and not brought it to account; but the statute having destroyed all values of marriages, this doctrine of course hath ceased with them. At fourteen years of age the ward might have disposed of himself in marriage, without any consent of his guardian, till the late act for preventing clandestine marriages. These doctrines of wardship and marriage in socage tenure were so diametrically opposite to those in knight-service, and so entirely agree with those parts of king Edward's laws that were restored by Henry the (b) Book i. page 461. (d) Litt. 123.

(c) Litt. 123. Co. Litt. 89.

the testamentary guardian having the custody not only of the children's persons, but of their estate, both real and personal.

Thus it seems a father may, by will, delegate to any stranger whom he chooses to select a much more extensive power than the letter of the law gives to himself whilst he lives; for the guardianship of nurture, as we have just seen, expires at the same time as guardianship in socage does,-namely, when the infant attains the age of fourteen.

There is no sort of doubt that the court of chancery, representing the king as parens patriæ, has a jurisdiction now perfectly established to control the right of a father to the possession of his child whenever the welfare of the child imperatively requires so strong a measure. In the words of lord Eldon, "The court has interposed in many instances of this sort; but the application is one of the most serious and important nature. The interposition of the court stands upon principles which it ought not to put into operation without keeping in view all the feelings of a parent's heart and all the principles of the common law with respect to a parent's rights." Wellesley v. The Duke of Beaufort, 1 Russ. 19; and see Lyons v. Cleakin, Jacob's Rep. 262. Shelley v. Westbrooke, ibid. 266. De Manneville v. De Manneville, 10 Ves. 61. Whitfield v. Hales, 12 Ves. 492. In the reports of the cases cited, most of the other instances in which the jurisdiction in question has been exercised are adverted to; and whoever examines them will find that the power has been wielded by considerate hands.

The control of the court of chancery over the property of infants who are made its wards is of course absolute; and many statutes (the marriage acts and others) in effect recognize the chancellor as the constitutional depositary of that part of the king's prerogative or paternal duty (whichever it may most properly be called) which consists of the guardianship of his infant subjects.-CHITTY.

(19) Williams on Real Prop. 2 ed. p. 123.

(20) State v. Reuff, 29 W. Va. 759 (1887). (21) [The value of the marriage.]

First's charter, as might alone convince us that socage was of a higher original than the Norman conquest.

Fines for alienation were, I apprehend, due for lands holden of the king in capite by socage tenure, as well as in case of tenure by knight-service: for the statutes that relate to this point, and Sir Edward's Coke's comment on them, (e) speak generally of all tenants in capite, without making any distinction: but now all fines for alienation are demolished by the statute of Charles the Second.

10. Escheats are equally incident to tenure in socage, as they were to tenure by knight-service; except only in gavelkind lands, which are (as is before mentioned) subject to no escheats for felony, though they are to escheats for want of heirs. (ƒ)

Thus much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter; so that the lands of both sorts are now holden by one universal tenure, of free and common socage.

The other grand division of tenure, mentioned by Bracton, as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank tenure. And this (we may remember) he subdivided into two classes, pure and privileged villenage, from whence have arisen two other species of our modern tenures.

*90] *III. From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court-roll at the will of the lord: in order to obtain a clear idea of which, it will be previously necessary to take a short view of the original and nature of manors.

Manors are in substance as ancient as the Saxon constitution, though perhaps different a little in some immaterial circumstances from those that exist at this day; (g) just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo, (22) because the usual residence of the owner, seems to have been a district of ground held by lords or great personages; who kept in their own hands so much land as was necessary for the use of their families, which were called terræ dominicales, or demesne lands, being occupied by the lord, or dominus manerii,(23) and his servants. The other, or tenemental, lands they distributed among their tenants; which, from the different modes of tenure, were distinguished by two different names. First, book-land, or charter-land, which was held by deed under certain rents and free services, and in effect differed nothing from the free-socage lands; (h) and from hence have arisen most of the freehold tenants who hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which was held by no assurance in writing, but distributed among the common folk or people at the pleasure of the lord, and resumed at his discretion; being indeed land held in villenage, which we shall presently describe more at large. The

(e) 1 Inst. 73. 2 Inst. 65, 66, 67. (f) Wright, 210.

(22) [From remaining.]

(g) Co. Cop. 2 2 and 10.
(h) Co. Cop. ( 3.

(23) [The lord of the manor.] See Boyd v. Dowie, 65 Barb. (N. Y.) 244 (1872). Williams on Real Prop. p. 119 (6 ed.).

Mr. Watkins, (1 Treat. of Copyh. 7,) following lord Coke, (Copyh. p. 52,) prefers that derivation of the word manor" which brings it from the Norman French word mesner, to guide, as most agreeing with the nature of a manor, all the tenants of which were under the guidance of the lord thereof. Lord Coke held this etymology most probable, because (he says) a manor signifies the jurisdiction and royalty incorporate, rather than the land or scite. Whatever the derivation of the word may be, it is certain that the jurisdiction was, as our author himself informs us, at least as essential to the constitution of a manor (or lordship, or barony) as a mansion-house ever was.—CHITTY.

residue of the manor, being uncultivated, was termed the lord's waste, and served for public roads, and for common or pasture to the lord and his tenants. Manors were formerly called baronies, as they are still lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemesnors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number *of [*91 suitors should so fail as not to leave sufficient to make a jury or homage, that is, two tenants at least, the manor itself is lost. (24)

In the early times of our legal constitution, the king's greater barons, who had a large extent of territory held under the crown, granted out frequently smaller manors to inferior persons to be holden of themselves; which do therefore now continue to be held under a superior lord, who is called, in such cases, the lord paramount over all these manors; and his seignory is frequently termed an honor, not a manor, especially if it hath belonged to an ancient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum: (25) till the superior lords observed, that by this method of subinfeudation they lost all their feodal profits of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land: and also that the mesne lords themselves were so impoverished thereby, that they were disabled from performing their services to their own superiors. This occasioned, first, that provision in the thirtysecond chapter of magna carta, 9 Hen. III., (which is not to be found in the first charter granted by that prince, nor in the great charter of king John,)(i) that no man should either give or sell his land, without reserving sufficient to answer the demand of his lord; and afterwards the statute of Westm. 3, or quia emptores, (26) 18 Edw. I. c. 1, which directs that, upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. But these provisions not extending to the king's own tenants in capite, the like law concerning them is declared by the statutes of prerogativa regis, 17 Edw. II. c. 6, and of 34 Edw. III. c. 15, by which last all subinfeudations, previous to the reign of king *Edward I., were confirmed, [*92 but all subsequent to that period were left open to the king's prerogative. And from hence it is clear, that all manors existing at this day, must have existed as early as king Edward the First; (27) for it is essential to a (i) See the Oxford editions of the charters.

(24) They must be two freeholders, holding of the manor subject to escheat. 3 T. R. 447. Bro. Abr. tit. Cause a remover, plec. pl. 35. A manor by reputation, but which has ceased to be a legal manor, by defect of suitors to the court, may yet retain some of its privileges, as a preserve for game, and the lord may still appoint a gamekeeper. 10 East, 259. Watkins on Copyhold, 3 ed. 21, 22.—CHITTY.

(25) [Without limit.]

(26) [Because purchasers.] People v. Livingstone, 8 Barb. (N. Y.) 282, 1850. Greenhood's Pub. Pol. in Law of Cont., p. 609. The statute has two aspects, one in so far as it enables the tenant to alienate; the other in so far as it disables him from creating de novo a tenure in fee simple to be held of himself. The statute did not enable the tenants in capite to alienate as against the crown; and in this sense it may be said that the statute did not extend to the tenants in capite, though it would be more strictly correct to say, that the statute did not extend to the crown. Challis Law of Real Prop. p. 20 (2 ed. 1892). The manorial tenures which were granted in the colony of New York could not have existed if the statute of quia emptores had extended to that province. Depeyster v. Michael, 2 Seld. (N. Y.) 499 (1852). See Fowler's Hist. Law of Real Prop. p. 36.

(27) The inference may, perhaps, be too hasty, that all manors have existed as early as king Edward the first. Charters have been granted by the crown, and confirmed by par