[to the crown, and assured to the inferior lords, payable out of every knight's fee within their respective seigniories: an expedient seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, (having during the Usurpation been discontinued,) were destroyed at one blow by the statute 12 Car. II. c. 24; which enacts, that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knight service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away (g). 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 Charta 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.] II. The second kind of tenure which we had to consider (h), and into 'which, by the statute just mentioned, all tenures by knight-service are now converted, is [Free Socage. Socage, in its most general and extensive signi (g) Mr. Hargrave holds this mention of tenures in capite to have been a mistake in the framers of the Act; (see Co. Litt. by Harg. 108, n. (5)). There may be some doubt, however, as to the sense in which the term is used, as there were two kinds of tenure in capite; vide sup. p. 190. It VOL. I. is at all events certain that the enactment was not intended to prohibit persons from holding immediately under the crown. Indeed, it is in this manner that land in fee is now most usually held. (h) Vide sup. p. 193. Р [fication, 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 knightservice, where the render was precarious and uncertain. Thus Bracton (i): 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 (k); “ex donationibus, servitia militaria vel magnæ serjantiæ non continentibus, oritur nobis quoddam nomen generale, quod est socagium." Littleton also (7) 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. 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 (m).] (i) L. 2, c. 16, s. 9. (k) L. 3, c. 14, s. 9. (1) S. 117. (m) Litt. ss. 117, 118, 119. As to the etymology of the term socage, it is derived by Littleton, Lord Coke, and others, from the French word soc, a ploughshare; its services being supposed to have consisted formerly of those of husbandry only, though changed in process of time to a pecuniary rent; (see Co. Litt. by Harg. 86 a, n. (1)); Wright's Ten. 144. On the other hand this term is considered by Somner and Blackstone as originating in the Saxon soc, which signified any franchise or privilege, (though more especially one of jurisdiction); socage being distinguished from other tenures by the great privilege of fixed and ascertained services; (see 2 Bl. Com. p. 80.) The opinion of Bracton, as one of the earliest authorities on the subject, would be entitled to great weight were it more decidedly expressed. "Dici poterit socagium a socco, et inde tenentes socmanni, eo quod deputati sunt, ut videtur, tantummodo ad culturam, et quorum custodia et maritagia ad propinquiores parentes jure sanguinis pertinebant."-Bract. c. 35. This leans, though somewhat doubtfully, towards the derivation from the plough; but in another part of his work he speaks of the tenure called socagium villanum in a way that rather tends to assign to socagium the But, as formerly shown on the authority of Bracton (n), [socage 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 (0), and other subsequent authors, by the name of liberi sokemanni, or tenants in free socage. Of this tenure we are now to speak; and this, both in the nature of its service, and the fruits and consequences appertaining thereto, was always by much the most free and independent species of any.] It was of a strongly feudal character indeed, being created by words of pure donation and livery of seisin, and invariably attended with the obligation of fealty at the least, (even where no other service was rendered,) and with all the incidents attaching to feuds in general. Yet it fell far short, upon the whole, of the severity of the tenure in chivalry; and this not only as being certain in its services, but also as being comparatively mild in some of its fruits and consequences. This will manifestly appear by the following enumeration of them. 1. The law of inheritance was the same in socage tenure as in tenure by knight-service (p). 2. Wardship [was also incident to tenure in socage; but of a nature very different from that incident to knightservice. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor ever did, be "Est meaning of privileged tenure. [long to the lord of the fee; because, in this tenure, no military or 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, not being one to whom the inheritance can descend (q), was to be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. At fourteen this wardship in socage ceases: and the heir may oust the guardian, and call him to account for the rents and profits (r): for at this age the law supposes him capable of choosing a guardian for himself. It was in this particular of wardship, as in also that of marriage, and in the certainty of the render or 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 (s). 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 (t). 3. "Marriage," or the valor maritagii, 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 (u). For the law made them account, not only for (q) See Co. Litt. by Harg. 88 b, n. (6). (r) Litt. s. 123; Co. Litt. 89 a. (s) See Co. Litt. by Harg. 88 b, n. (15). (t) Ibid. n. (16). As to the law of guardian and ward, vide post, bk. III. c. IV. (u) Litt. s. 123. [what they did, but also for what they might, receive on the infant's behalf; lest by some collusion the guardian should have received the value, and not brought it to account: but the statute of Charles 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 Act for preventing clandestine marriages (x).] 4. [The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daughter (y): 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. (≈).] 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 5l., 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 (a); and therefore Bracton (b) will not allow this to be properly a relief, but "quædam præstatio loco relievii in recognitionem do"mini." So too the statute 28 Edw. I. c. 1, 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 above measure. Reliefs in knight-service were only payable if the heir at the death of his ancestor was (r) 26 Geo. 2, c. 33. This act was repealed by 4 Geo. 4, c. 76, (one of the present marriage acts,) which substitutes new provisions to prevent clandestine marriages. (y) Co. Litt. 91 a. |