granted a part of the land to B., B. was said to hold of A., and A. of the king; or, in other words, B. held his lands immediately of A., but mediately of the Tenant paravail. king. The king therefore was styled lord paramount; A. was both tenant and lord, or was a mesne lord: and B. was called tenant paravail, or the lowest tenant; being he who was supposed to make avail or profit of the land (b). In this manner all the lands of the kingdom have since the complete introduction of the feudal system been held when in the hands of subjects. We have no allodial lands (c). All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were Tenants in capite. called his tenants in capite, or in chief (d); which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior This distinction ran through all the different sorts of tenure, of which we now proceed to give an account. tenures did. Four species of lay tenures. Free services. Base services. Certain services There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in *respect of [*140] their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform; as, to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as, to do military service in person, or pay an assessment in lieu of it when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service. From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the 17th century; and three of which subsist to this day. Of these Bracton (who and the differ- 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). Uncertain services. Their names ent services incident to each. in themselves. Madox, History of the Exchequer, c. 10; Craig de Feudis, l. 1, c. 9. (b) 2 Inst. 296. (c) Co. Litt. 1. (d) A distinction was taken between tenure in capite ut de coroná, which meant a tenure of the king of lands which were always held directly from the crown, and tenure ut de honore, as of an honor or manor where the land, having originally been held of a subject, came to be held of the crown, by reason of some escheat or forfeiture of the mesne (f) Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur li bere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum. S. 1. * * * "Tenements are of two kinds, frank-tenement and villenage. And, of franktenements, some are held freely in consideration 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, whether free or servile, do whatsoever is commanded him, and [ *141 ] always be bound to an uncertain service. The other kind of villenage is called villein-socage, held under the king (h) since the Norman conquest, and, though a villenage, is of a privileged sort. Being tenants of the king they cannot be removed from their lands so long as they are willing and able to perform the due services. Still they 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 military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent 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 base 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 to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium 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, but the tenants held directly under the king. [*142] I. The first, most universal, and esteemed the most* honourable species of tenure, was that by knight-service (i), called in Latin servitium militare; and in law-French chivalry, or service de chivaler, answering to the fief d'haubert of the Normans (k), which name is expressly given it by the Mirrour (7). This differed in very few points, as we shall presently see, from a pure and proper feud, being en I. Knight service. * (g) Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio sive liber sive servus faciet de villenagio quicquid ei praeceptum fuerit, et semper tenebitur ad incerta. * * Est etiam aliud genus villenagii quod tenetur de domino rege à conquestu Anglia, quod dicitur Socagium villanum, et quod est villenagium, sed tamen privilegiatum. Habent itaque tenentes de dominicis Domini Regis tale privilegium, quod à glebá amoveri non debent, quamdiu velint et possint facere debitum servitium; et hujusmodi villani sokmanni propriè dicuntur gleba ascripticii. Villani autem faciunt servitia, sed certa et determinata nec compelli poterunt contra voluntatem suam ad tenenda hujusmodi tene menta, et ideo dicuntur liberi." (h) See post, as to the tenure of Ancient Demesne. (i) Knight-service, having regard to etymology, is a tautologous expression. Among the Anglo-Saxons the vassals of the king were called Thegns or Thanes, that is to say servants, from Thegnian (in modern German Dienen) to serve; and they rendered Thanes by the Latin word ministri. So, the knight (4) C. 2, s. 27. Sir M. Wright cites from Loyseau, Traité des Seigneuries, 156, 157, the following rational explanation of the fief d'haubert:-"Les seigneurs des baronnies se sont appelez Hauts Barons, ou Hauts Bers, car il est bien certain que ber et baron est mesme chose. Et Haut Ber et Baron sont confondus comme synonimes, et de là sans doute originairement a estre dit le fief de Hautbert. Mais pour ce que le Haut Ber ou seigneur de fief de hautbert estoit tenu servir le roy en guerre avec armes pleins, et consequemment avec l'arme du corps, qui estoit lors la cotte de mailles, de là est venu que cest arme a esté apellez Hauber, ou Haubergeon, dont à succession de temps est advenu que le fief de hauber a esté pris pour toute espèce de fief, dont le seigneur est tenu ser vir le roy avec le hauber ou haubergeon.' Wright, 143. tirely military, and the genuine effect of the feudal establishment in England. To make a tenure by knight-service, a determinate quantity of land was neces which was called a knight's fee, feudum militare; the measure of which in 3 Edw. 1. was estimated at twelve plough-lands (m), and its value (though it varied with the times (n)) in the reigns of Edward I. and Edward II. (o) was stated at 207. per annum (p). And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the [*143] wars for forty days in every year, if called upon (q): 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 proportion (r). 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 feudal system. This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi (s), and was the tenure which by operation of law was created when the king made a grant without expressly reserving any particular service (t); it was conferred by investiture or delivering corporal possession of the land, usually called livery of seisin, the ceremony being perfect by homage and fealty (u). It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which we will endeavour to explain. They will be seen to have a feudal origin. Seven incidents to knightservice. 1. Aids. * 1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress (2); but 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: a necessary consequence of the feudal 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 feudal law an absolute forfeiture of his [*144] estate (y). Secondly, to make the lord's eldest son a knight; a matter that was formerly 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 (z): the intention of it being to breed up the eldest son and heir apparent of the seignory to deeds of arms and chivalry, for the better defence. of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender; few lords being able to save much out of their income for this purpose; nor could they acquire money by other means, being entirely devoted to matters of (m) Pasch. 3 Edw. 1, Co. Litt. 69. (n) 2 Inst. 596. (0) Stat. Westm. 1, c. 36; Stat. de Milit. 1 Edw. 2; Co. Litt. 69. (p) Mr. Selden contends, that a knight's fee did not consist of land of a fixed extent or value, but was as much as the king was pleased to grant, upon the condition of having the service of one knight. Tit. of Hon. p. 2. c. 5, ss. 17 and 26. (q) See writs for this purpose in Memorand. Scacch. 36, prefixed to Maynard's Year-book, Edw. II. arms, nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances (a). 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 (b). Amount of aids. But besides these ancient feudal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts, and aids to enable him to pay aids or reliefs to his superior lord (c); 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, king* John's magna carta (d) ordained that no aids [*145] be taken 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 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 uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable (e); and that the aids taken by the king of his tenants in capite should be settled by parliament (ƒ). But they were never completely ascertained and adjusted till the statute Westm. 1, 3 Edw. 1, 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 was done with regard to the king's tenants in capite, by stat. 25 Edw. 3, stat. 5, 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. 2. Reliefs. 2. Relief, relevium, was before mentioned as incident to every feudal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. Reliefs, whether arising simply out of the rapacity of powerful lords or from some less manifestly unjust source, were looked upon 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 (g). The English ill brooked this [*146] consequence of their new-adopted policy; and therefore William the Conqueror by his laws (h) ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively; and if the latter had no arms, they should pay (a) By the Stat. Westm. 1, c. 36, the aid for the marriage portion of the lord's eldest daughter could not be demanded till she was seven years of age, and if he died, leaving her unmarried, she might recover amount so received by him from his executors. Amount of relief. (b) Philips's Life of Pole, i. 223. the (c) See Du Cange, voc Auxilium, where several aids existing in France (and proba bly more or less in England prior to Magna Charta), are mentioned. The aid to pay reliefs was the most usual in England, till it was abolished. (d) Cap. 12, 15. 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feudal laws: thereby in effect obliging every heir to new purchase or redeem his land (i): but his brother Henry I., by the charter before mentioned, restored his father's law; and ordained, that the relief to be paid should be according to the law so established, and not an arbitrary redemption (k). But afterwards, when, by an ordinance in 27 Hen. II., called the assize of arms, it was provided that every man's armour should descend to his heir, for defence of the realm; and it thereby became impracticable to pay these acknowledgments in arms according to the laws of the conqueror, the composition was universally accepted of 100s. for every knight's fee; as we find it ever after established (1). But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one-and-twenty years (m). 3. Primer seisin. 3. Primer seisin was a feudal burthen, only incident to the king's tenants in capite ut de coronā, and not to those who held of inferior or mesne lords, or even in capite when ut de honore (n). It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits of the lands, if they were in *immediate possession: and [*147] half a year's profits, if the lands were in reversion expectant on an estate for life (o). This seems to be little more than an additional relief, but grounded upon this feudal reason; that, by the ancient law of feuds, immediately upon a death of a vassal the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: during which interval the lord was entitled to take the profits; and, unless the heir claimed within a year and day, it was by the strict law a forfeiture (p). This practice, however, seems not to have long obtained in England, if ever, with regard to tenure under inferior lords; but, as to the king's tenures in capite, the prima seisina was expressly declared, under Henry III. and Edward II., to belong to the king by prerogative, in contradistinction to other lords (9). The king was entitled to enter and receive the whole profits of the land, till livery was sued; which suit being commonly made within a year and day next after the death of the tenant, in pursuance of the strict feudal rule, therefore the king used to take as an average the first fruits, that is to say, one year's profits of the land (r). And this afterwards gave a handle to the popes, who claimed to be feudal lords of the church, to claim in like manner from every clergyman in England the first year's profits of his benefice, by way of primitiae, or first fruits. 4. These payments were only due if the heir was of full age; but if he was under the age of twenty-one, being a male, or fourteen, being a female (s), the lord was entitled to the wardship of the heir, and was called the guardian in chivalry (t). This wardship consisted in having the 4. Wardship. (m) As to socage relief, see Harg. Co. Litt. lowing one of marriage, did not obtain ex 93 a. cept in Normandy and England, and, perhaps, in some parts of Germany. By "the law of France, the custody of the land wa |