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 finesse of the Norman lawyers. For, befides the fcutages to which they were liable in defect of perfonal attendance, which however 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 ranfom of his own perfon. The heir, on the death of his anceftor, if of full age, was plundered of the first emoluments arifing from his inheritance, by way of relief and primer feifin; 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, houses 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 refused such wife as his lord and guardian had bartered for, and impofed 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 ex orbitant fine for a licence of alienation. A SLAVERY fo complicated, and fo extenfive as this, called aloud for a remedy in a nation that boasted 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 confented, in confideration of a proper equivalent, to abolish them all; d Commonw. 1. 3. c. 5. e 4 Inft. 202. 4 though though the plan proceeded not to effect; in like manner as he had formed a fcheme, and began to put it in execution, for removing the feodal grievance of heritable jurisdictions in Scotland, which has fince been purfued and effected by the ftatute 20 Geo. II. c. 43. King James's plan for exchanging 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 compensation for the lofs which the crown and other lords would sustain, an annual feefarm rent was to have been settled 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 excise, 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 oufter"lemains, values and forfeitures of marriages, by reason of "any tenure of the king or others, be totally taken away. "And that all fines for alienations, tenures by homage, "knights-service, and efcuage, and also aids for marrying "the daughter or knighting the fon, and all tenures of the "king in capite, be likewise taken away. And that all forts "of tenures, held of the king or others, be turned into 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 preserved them in vigour; but the ftatute of king Charles extirpated the whole, and demolished both root and branches. f Dalrymp. of feude. 292. By another ftatute of the fame year (20 Geo. II. c. 50.) the tenure of ward bolding (equivalent to the knight-fervice of England) is for ever abolished in Scotland, CHAPTER THE SIXTH. OF THE MODERN ENGLISH TENURES. A 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 aside, and a new one introduced in it's room: fince by the ftatute 12 Car. II. the tenures of focage and frankalmoign, the honorary fervices of grand ferjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand ferjeanty, and copyhold, were reduced to one general fpecies of tenure, then well known and fubfifting, called free and common focage. And this, being sprung from the fame feodal original as the reft, demonstrates the neceffity of fully contemplating that antient fyftem; fince it is that alone to which we can recur, to explain any feeming or real difficulties, that may arise in our prefent mode of tenure. THE military tenure, or that by knight-service, confifted of what were reputed the moft free and honourable services, 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 fervices; but fuch 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 ftatute of Charles the fecond) almoft every other fpecies of And to this we are next to proceed. tenure. II. SOCAGE, in it's most general and extensive fignification, feems to denote a tenure by any certain and determinate fervice. And in this fenfe it is by our antient writers conftantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton 2; 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 escuage to any, the smallest, amount, "illud dici poterit feodem militare." So too the author of Fleta"; "ex donationibus, fervitia militaria vel magnae ferjantiae non continentibus, oritur nobis quoddam nomen gene"rale, quod eft fragium." Littleton alfo defines it to be, where the tenant holds his tenement of the lord by any certain fervice, in lieu of all other fervices; fo that they be not fervices of chivalry, or knight-service. And therefore afterwards he tells us, that whatsoever 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 its focage; 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 focage f. BUT focage, as was hinted in the last 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 8, and other subsequent 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 a 1. 2. c. 16. §. 9. e L. 147. f Litt. §. 117, 118, 119. ture 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 confifted 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 consent of all parties, and that, in memory of it's original, it still retains the name of a focage or plough-fervice. 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-service. Befides, even fervices, 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 focageTM. 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 services, and in refpect whereof neither homage, ward, marriage, nor "relief can be demanded." Which leads us also to another |