invaded the realm, which are free services: or to do whatever the lord should command; which is a base or villein service. 66 count of tenures From the various combinations of these services have Bracton's acarisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author ancient or modern (e); of which the following is the outline or abstract (f). "Tenements are of two kinds, frank-tenement and villenage. “And, of frank-tenements, some are held freely in consider"ation of homage and knight-service; others in free-socage, "with the service of fealty only." And again (g), "of villenages some are pure, and others privileged. He that holds. "in pure villenage shall do whatsoever is commanded him, " and always be bound to an uncertain service. The other "kind of villenage is called villein-socage; and these vil"lein-socmen do villein services, but such as are certain "and determined." Of which the sense seems to be as follows first, where the service was free but uncertain, as Tenure by military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight- [ 62 ] service. Secondly, where the service was not only free, but Free socage. also certain, as by fealty only, by rent (4) and fealty, &c. that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was Absolute villebase in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced (e) 1. 4, tr. 1, c. 28. (f) Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum. s. 1. (g) Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praecep tum fuerit, et semper tenebitur ad in- knight-service. nage. # (4) Vol. III. p. 230. nage, or villein to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenaPrivileged ville- gium privilegiatum; or it might be still called socage (from the certainty of its services), but degraded by their baseness into the inferior title of villanum socagium, villeinsocage. socage. 1. The first species of tenure service. Quantity and value of land necessary to constitute it. I. The first, most universal, and esteemed the most howas by knight- nourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law-French, chivalry, or service de chivaler, answering to the fief d'haubert of the Normans (h), which name is expressly given it by the Mirrour (i). This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, feodum militare; the measure of which in 3 Edw. I. was estimated at twelve plough-lands (k), and its value (though it varied with the times (l)) in the reigns of Edward I. and Edward II. (m) was stated at 201. per anпит. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon (n): which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in [63] proportion (o). And there is reason to "apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system (5). Duties it imposed on the tenant. (4) Spelm. Gloss. 219. (i) C. 2, s. 27. (k) Pasch. 3 Edw. I.; Co. Litt. 69. (m) Stat. Westm. 1, c. 36; Stat. de milit. 1 Edw. II.; Co. Litt. 69. (n) See writs for this purpose in Memorand. Scacch. 36, prefixed to Maynard's Year-book Edw. II. (0) Litt. s. 95. (5) Our author (in pp. 48; 50) has assured us that the feudal polity was not imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, upon the principle of self-security. Then, if the system was not imposed, but freely adopted upon principles of self-interest, it seems not very consistent to say, that the regular con of grant. This tenure of knight-service had all the marks of a strict Nature and form and regular feud: it was granted by words of pure donation, dedi et concessi (p); was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as Consequences inseparably incident to the tenure in chivalry, viz. aids, re- species of telief, primer seisin, wardship, marriage, fines for alienation, and escheat (6): all which I shall endeavour to explain, and to show to be of feodal original. incident to this nure. lences granted by lord lord's person; 1. Aids were originally mere benevolences granted by the 1. Aids, benerotenant to his lord, in times of difficulty and distress (q); but the tenant to the in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three first, to ransom the lord's person, if taken prisoner; To ransom the a necessary consequence of the feodal attachment and fidelity insomuch that the neglect of doing it, whenever it was in the vassal's power, was by the strict rigour of the feodal law an absolute forfeiture of his estate (r). Secondly, to To make his make the lord's eldest son a knight; a matter that was for- knight: (p) Co. Litt. 9. (9) Auxilia fiunt de gratia et non de jure,―cum dependeant ex gratia tenentium, et non ad voluntatem domi- eldest son a sequences of that system were fraudulently superinduced. One of the parties to a contract may not have foreseen all its regular consequences; but though by the result he may find out that he has not made so good a bargain as he expected, still, if he was a free agent in the transaction, (and Blackstone contends the introduction of feudality was voluntary on the part of all the conqueror's subjects,) the miscalculator may lament his want of foresight, but will hardly be entitled to complain of having been defrauded. (6) If the king had granted lands without reserving any particular service or tenure, or if he even declared by express words that his patentee should hold the lands granted absque aliquo inde reddendo; yet the law or established policy of the kingdom would have created a tenure, and the Several of the burthens and conse- To marry his merly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms (s): the intention of it being to breed up the eldest son and heir apparent (7) of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest eldest daughter. daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender; few lords [64] being able to save much out of their income for this purpose; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances. From bearing their proportion to these aids no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden,) and the marriage of his female descendants (t). And one cannot but observe in this particular the great resemblance which the lord and vassal of the feodal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised by the client, viz. to marry the patron's daughter; to pay his debts; and to redeem his person from captivity (u). To which even the monasteries contributed. Besides these, the lords exacted other aids; But besides these ancient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's (s) 2 Inst. 233. (t) Philips's Life of Pole, I. 223. (7) If a man had issue two sons, and the eldest died without issue, the father, if surviving, was entitled to aid for the second son, for the statute (Westminst. 1st, c. 36) speaks not of the first-born son. But if aid had been received for the eldest son, it would not be due again for the second; for one aid only was due to one and conferrent; in aeris alieni dissolutionem gratuitam pecuniam erogarent; et ab hostibus in bello captos redimerent. Paul. Manutius de Senatu Romano, c. 1. the same lord to make his eldest son a knight. And if the lord had issue two sons, and the eldest son had issue a daughter and died, the lord was not entitled to aid to make his second son a knight, the second son not being heir apparent to his father's fee. (2nd Instit. 233.) tions were re na charta. debts, (probably in imitation of the Romans,) and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were, from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, But these exacKing John's magna charta (v) ordained that no aids be stricted by magtaken by the king without consent of parliament, nor in anywise by inferior lords, save only the three ancient ones above mentioned. But this provision was omitted in Henry III.'s charter, and the same oppressions were continued till the 25 Edw. I., when the statute called confirmatio chartarum And by 25 Edw. was enacted; which in this respect revived King John's charter, by ordaining that none but the ancient aids should. be taken. But though the species of aids was thus restrained, yet the quantity of each aid remained arbitrary and uncer*tain. King John's charter indeed ordered, that all aids [ * 65 ] taken by inferior lords should be reasonable (w); and that the aids taken by the king of his tenants in capite should I. ascertained by 1. be settled by parliament (x). But they were never com- And completely pletely ascertained and adjusted till the statute Westm. 1, the stat. Westm. 3 Edw. I. c. 36, which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter: and the same And 25 Edw. was done with regard to the king's tenants in capite, by stat. 25 Edw. III. c. 11. The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was therefore never ascertained. III. c. 11. ing up the estate at the death of the last tenant. 2. Relief, relevium, was before mentioned as incident to 2. Reliefs.— Fines payable to every feodal tenure, by way of fine or composition with the the lord on taklord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first, they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit. the heir (y). The English ill brooked this consequence of |