and, when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand ferjeanty paid one year's value of his land, were it much or little. Tenure by cornage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king's fubjects, was (like other fervices of the fame nature) a fpecies of grand ferjeanty'.

THESE fervices, both of chivalry and grand ferjeanty, were all perfonal, and uncertain as to their quantity or duration. But, the perfonal attendance in knight-fervice growing troublefome and inconvenient in many refpects, the tenants found means of compounding for it; by firft fending others in their stead, and in procefs of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary fatisfaction at last came to be levied by affeffments, at fo much for every knight's fee; and therefore this kind of tenure was called fcutagium in Latin, or fervitium feuti; fcutum being then a well-known denomination for money: and, in like manner, it was called, in our Norman French, efeuage; being indeed a pecuniary, inftead of a military, fervice. The first time this appears to have been taken was in the 5 Hen. II, on account of his expedition to Toulouse; but it foon came to be fo univerfal, that perfonal attendance fell quite into difufe. Hence we find in our antient hiftories, that, from this period, when our kings went to war, they levied fcutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenfes, and to hire troops: and these affeffments, in the time of Henry II, feem to have been made arbitrarily and at the king's pleasure, Which prerogative being greatly abused by his fucceffors, it became matter of national clamour; and king John was obliged to confent, by his magna carta, that no fcutage should be impofed without confent of parliament ". But this claufe was omitted in his fon Henry III's charter; where we only find ", that fcutages

• Ibid. §. 154.

Ibid. §. 156.

Nullum fcutagium ponatur in regno,

noftro, nifi per commune confilium regni

noftri. cap. 12.

w cap. 37.

or

or efcuage should be taken as they were used to be taken in the time of Henry II: that is, in a reasonable and moderate manner. Yet afterwards by ftatute 25 Edw. I. c, 5 & 6. and many subsequent statutes * it was again provided, that the king should take no aids or tasks but by the common assent of the realm: hence it was held in our old books, that efcuage or fcutage could not be levied but by confent of parliament; fuch fcutages being indeed the groundwork of all fucceeding fubfidies, and the land-tax of later times.

SINCE therefore efcuage differed from knight-fervice in nothing, but as a compenfation differs from actual fervice, knight-service is frequently confounded with it. And thus Littleton must be understood, when he tells us, that tenant by homage, fealty, and efcuage, was tenant by knight-fervice: that is, that this tenure (being fubfervient to the military policy of the nation) was refpected as a tenure in chivalry b. But as the actual fervice was uncertain, and depended upon emergences, fo it was neceflary that this pecuniary compenfation fhould be equally uncertain, and depend on the affeffments of the legislature fuited to thofe emergenFor had the efcuage been a fettled invariable fum payable at certain times, it had been neither more nor less than a mere pecuniary rent: and the tenure, instead of knight-fervice, would have then been of another kind, called focage, of which we shall speak in the next chapter.

ces.

For the prefent I have only to obferve, that by the degenerating of knight-fervice, or perfonal military duty, into efcuage, or pecuniary affeffments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia compofed of barons, knights, and gentlemen, bound by their intereft, their honour, and their oaths, to defend their king and country, the whole of this fyftem of

* See Vol. I. pag. 140. y Old Ten. tit. Efcuage. 2 §.103.

a Wright. 122.

b Pro feodo militari reputatur. Flet.

1. 2. c. 14. §. 7.

Litt. §. 97. 120.

tenures

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 ransom of his own perfon. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising 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 wasted 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 refufed fuch 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 thefe 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 exorbitant fine for a licence of alienation.

d

A SLAVERY fo complicated, and fo extenfive as this, called aloud for a remedy in a nation that boafted 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.

though

€ 4 Inft. 202.

4

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 loss which the crown and other lords would sustain, an annual feefarm rent was to have been settled and infeparably annexed to the crown, and assured to the inferior lords, payable out of every knight's fee within their refpective feignories. An expedient, seemingly 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 oufter❝lemains, values and forfeitures of marriages, by reason of (6 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 likewife 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, 66 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 constitution 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, demonftrates the neceflity 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 most free and honourable services, but which in their nature were unavoidably uncertain in refpect 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 abforbed and fwallowed up (fince the statute