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[of full age; but in socage they were due even though the heir was under age, because the lord has no wardship over him (c). The statute of Charles the second 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 (d).]

6. Primer seisin [was incident to the king's socage tenants in capite, as well as to those by knight-service (e). But primer seisins are, among the other feudal burthens, entirely abolished by the statute of Charles the second.]

7. The tenant in socage enjoyed the same right of aliening his lands as the tenant by knight-service (ƒ).

8. Fines for alienation were, apparently, 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 Coke's comment on them (g), speak generally of all tenants in capite, without making any distinction; but now all fines for alienation of lands holden in capite are demolished by the statute of Charles the second.

9. Escheat and forfeiture are equally incident to tenure in socage, as they were to tenure by knight-service. But by the effect of late statutes, which we shall have occasion to notice more particularly hereafter, the effect of the law of escheat for felony is now in every description of tenure materially mitigated (h).

Such was the tenure in free socage; being that under which the bulk of real property is holden at the present

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day; and which is now better known by its modern denomination of freehold (i). But this tenure, which we have hitherto discussed only in its proper and ordinary shape, also comprised some particular varieties, viz. petit serjeanty, tenure in burgage, and gavelkind.

We may remember that grand serjeanty was a variety of the tenure in chivalry, involving honorary services to the king's person, such as carrying his sword or banner; and that these services are still reserved by the statute 12 Car. II. c. 24, though the tenure, in other respects, is converted into free socage (j). [Now petit serjeanty bears a great resemblance to grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person (k). Petit serjeanty, as defined by Littleton (1), consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like.] The services being free and certain, it is in all respects free socage (m); though [being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit serjeanty. And Magna Charta respected it in this light, when it enacted (n), that no wardship of the lands or body should be claimed by the king, in virtue of a tenure by petit serjeanty.

Tenure in burgage is described by Glanvil (o), and is expressly said by Littleton (p), to be but tenure in socage:

(i) It may be worth while to remark, that the term freehold was formerly inadequate to express the particular kind of tenure; as it was indifferently applicable both to knight-service and to free socage, and accordingly we find from Lord Coke that it was only used to express that the holding was not base; (Co. Litt. 94 a ;) but, as by the abolition of knight-service free socage

has become the only free lay tenure,
freehold is now taken as equivalent
with free socage.

(j) Vide sup. pp. 205, 209.
(k) Co. Litt. 107 a, 108 b.
(1) S. 159.

(m) Wright's Tenures, 160.
(n) Cap. 27.

(0) Lib. 7, c. 3.
(p) S. 162.

[and it is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain (9). It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature.] Many of these tenements so held in antient burgage are subject to a great variety of customs: [the principal and most remarkable of which is that called Borough-English, so named in contradistinction (as it were) to the Norman customs, and which is taken notice of by Glanvil (r), and by Littleton (s); viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father (t). For which Littleton (u) gives this reason; because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors (x) have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right of concubinage with his tenant's wife on her wedding night; and that therefore the tenement descended not to the eldest, but the youngest son; who was more certainly the offspring of the tenant. But it is not known that ever this custom prevailed in England, though it certainly did in Scotland (under the name of mercheta or marcheta), till abolished by Malcolm the third (y). And perhaps a more

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[rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to Father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. The youngest son, therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one became his heir (z). So possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. Other special customs there are, in different burgage tenures: as that in some the wife shall be endowed of all her husband's tenements (a), and not of the third part only, as at the common law; and that in others, a man might dispose of his tenements by will (b), which in general was not permitted after the conquest, till the reign of Henry the eighth; though in the Saxon times it was allowable (c).]

Gavelkind (d) occurs as of common right in the county of Kent, almost the whole of which is subject to this tenure. It is universally known that the Kentish men obtained concessions from the Conqueror, by the effect of which they were permitted to retain their antient liberties. [And as it is principally here that we meet with the custom of gavelkind, though it was and is to be found in

(z) "Pater cunctos filios adultos a se pellebat, præter unum, quem hæredem sui juris relinquebat.”—Walsing. Upodigm. Neust. c. 1.

(a) Litt. s. 166.

(b) S. 167.

(c) Wright's Tenures, 172.

(d) As to gavelkind, see YearBook, 36 Hen. 6, 20; st. 17 Edw. 2, st. 1, c. 16; 32 Hen. 8, c. 29; Co. Litt. 140 a.

[some other parts of the kingdom (e), we may fairly conclude that this was a part of those liberties; agreeably to Mr. Selden's opinion, that gavelkind, before the Norman conquest, was the general custom of the realm (f). The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen (g). 2. The estate does not escheat in case of an attainder for felony; their maxim being "the father to the bough, the son to the plough (h)." 3. In most places the tenant had a power of devising lands by will, before the statute] authorizing the devise of lands (i), generally, [was made (k). 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together (); which was indeed antiently the most usual course of descent all over England (m), though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of socage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in its nature certain (n). Wherefore by a charter of King John (0), Hubert, Archbishop of Canterbury, was authorized to exchange the gavelkind tenures

(e) Stat. 32 Hen. 8, c. 29; Kitch. of Courts, 200; Co. Litt. 140 a. This custom prevails over almost the whole of the county of Kent, and in a qualified manner over copyhold lands in various parts of the kingdom.-Third Real Property Report, p. 8.

(f) "In toto regno, ante ducis adventum, frequens et usitata fuit; postea cæteris adempta, sed privatis quorundam locorum consuetudinibus alibi postea regerminans, Cantianis solum integra et inviolata remansit."-Analect. 1. 2, c. 7.

(g) Lamb. Peramb. 614.
(h) Ibid. 634.

(i) That is, the Statute of Wills, (32 Hen. 8,) by which the power of devising lands in general was regulated, prior to the modern statute of 7 Will. 4 & 1 Vict. c. 26.

(k) F. N. B. 198; Launder v. Brooks, Cro. Car. 561.

(1) Litt. s. 210.

(m) Glanvil, 1. 7, c. 3; Hale, C. L. c. 11.

(n) Wright's Tenures, 211.
(0) Spelm. Cod. Vet. Leg. 355.

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