and deviations were made from the old fundamental rules of tenure and succession; which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda propria et impropria, proper and improper feuds ; under the former of which divisions were comprehended such, and such only of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other description: such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honorable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine, and proper feudt.

BUT as soon as the feodal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters.

CHAPTER THE FIFTH.

OF THE ANCIENT ENGLISH TENURES.

IN this chapter we shall take a short view of the ancient

tenures of our English estates, or the manner in which lands, tenements, and hereditaments, might have been holden; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of and deduced from, the feodal policy.

ALMOST all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holden of some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king: and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now 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 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 landa. In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for according to sir Edward Coke b, in the law of England we have not properly allodium, which, we have seen, is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.

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 called his tenants in capite, or in chief; which was the most honorable species of tenure, but at the same time subjected the tenants to greater and more burdensome services, than inferior tenures didd. This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. 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 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 [61] 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,

a 2 Inst. 296.

b 1 Inst. 1.

e pag. 47.

d In the Germanic constitution, the elec tors, the bishops, the secular princes, the

imperial cities, etc. which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones, Mod. Un. Hist. xlii. 61.

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 an 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 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 moderne; 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 consideration of homage and knight"service; others in free-socage with the service of fealty "only." And again 8, "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 villein-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 military service with homage, [62] 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:

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. sec. 1. g Villenagiorum aliud purum, aliud privile

giatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fuerit, et semper tene» bitur ad incerta. Aliud genus villenagii dici tur villanum socagium; et hujusmodi villani socmanni-villana faciunt servitia, sed certa et determinata. sec. 5.

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, villein-socage.

I. THE first, most universal, and esteemed the most honorable 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 Norman's ", which name is expressly given it by the Mirrouri. This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the genuine 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 ploughlands, and its value (though it varied with the times 1) in the reigns of Edward I. and Edward II m, was stated at 201. per annum (1). 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 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

h Spelm. Gloss, 219.

i c. 2. sec. 27. *

k Pasch. 3 Edw. I. Co. Litt. 69.

12 Inst. 596.

m Stat. Westm. 1. c. 36. Stat. de milit. 1

n

Edw. II. Co. Litt. 69.

n See writs for this purpose in Memorand. Scacch. 36. prefixed to Maynard's yearbook. Edw. II.

(1) 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. s. 17 & 26. This is more probable; besides, it cannot be supposed, that the same quantity of land was every where of the same