Statute of Quia emptores.
Queen is lady paramount.
Ancient incidents of tenure of estates in fee simple.
(d) 18 Edw. I. c. 1, ante, p. 61.
(e) Ante, pp. 2, 3.
(f) Co. Litt. 65 a, 93 a; Year Book, M. 24 Edw. III. 65 b, pl. 60.
The lord's demesne, etc.
(g) Bract, c. 19, fol. 48 b; Britton, c. 66.
(h) Attorney-General v. Par-song, 2 Cro. & Jerv. 279, 308.
(i) Perkins's Profitable Book, s. 670.
(j) In the recent case of Lord Dunraven v. Llewellyn, 15 Q. B. 791, the Court of Exchequer Chamber held that there was no general common law right of tenants of a manor to common on the waste. But, in the humble opinion of the author, the authorities cited by the Court tend to the opposite conclusion. The reasons for this opinion will be found in Appendix C.
(k) See Scriv. Cop. 1; Watk. Cop. 6, 7; 2 Black. Com. 90.
(l) 18Edw. I. c. 1.
(m) 1 Watk. Cop. 15; ante, p. 61.
Incidents of the tenure by knights' service.
(n) Post, chapters on Copyholds.
(o) Litt. s. 90.
(p) See a description of homage, Litt. ss. 85, 86, 87; 2 Bl. Com 53.
(q) Scriven on Copyholds, 738 et seq.
(r) 2 Black. Com. 63 et seq.; Scriven on Copyholds, 729.
At the present day, however, a much greater simplicity and uniformity will be found in the incidents of the tenure of an estate in fee simple, for there is now only one kind of tenure by which such an estate can be held; and that is the tenure of free and common socage (x). The tenure of free and common socage is of great antiquity; so much so, that the meaning of the term socage is the subject only of conjecture (y). Comparatively few of the lands in this country were in ancient times the subjects of this tenure : the lands in which estates in fee simple were thus held, appear to have been among those which escaped the grasp of the Conqueror, and remained in the possession of their ancient Saxon proprietors (z). The owners of fee simple estates, held by this tenure, were not villeins or slaves, but freemen (a); hence the term free socage. No military service was due, as the condition of the enjoyment of the estates. Homage to the lord, the invariable incident to the military tenures (b), was not often required (c); but the services, if any, were usually of an agricultural nature: a fixed rent was sometimes reserved; and in process of time the agricultural services appear to have been very generally commuted into such a rent. In all cases of annual rent, the relief paid by the heir, on the death of his ancestor, was fixed at one year's rent (d). Frequently no rent was due; but the owners were simply bound to take, when required, the oath of fealty to the lord of whom they held(e), to do suit at his court, if he had one, and to give him the customary aids for knighting his eldest son and marrying his eldest daughter (f). This tenure was accordingly more beneficial than the military tenures, by which fee simple estates, in most other lands in the kingdom, were held. True, the actual military service, in respect of lands, became gradually commuted for an escuage or money payment, assessed on the tenants by knights' service from time to time, first at the discretion of the crown, and afterwards by authority of parliament (g); and this commutation appears to have generally prevailed from' so early a period as the time of Henry II. But the great superiority of the socage tenure was still felt in its freedom from the burdens of wardship and marriage, and other exactions, imposed on the tenants of estates in fee held by the other tenures (h). The wardship and marriage of an infant tenant of an estate held in socage devolved on his nearest relation, (to whom the inheritance could not descend,) who was strictly accountable for the rents and profits (i). As the commerce and wealth of the country increased, and the middle classes began to feel their own power, the burdens of the other tenures became insupportable; and an opportunity was at last seized of throwing them off. Accordingly, at the restoration of King Charles II., an act of parliament was insisted on and obtained, by which all tenures by knights' service, and the fruits and consequences of tenures in capite (J), were taken away, and all tenures of estates of inheritance in the hands of private persons (except copyhold tenures) were turned into free and common socage; and the same were for ever discharged from homage, wardships, values and forfeitures of marriage, and other charges incident to tenure by knights' service, and from aids for marrying the lord's daughter and for making his son a knight (k).
Suit of court.
Free and common socage.
introduced into this country, and perhaps invented, by the Normans. 2 Hall. Midd. Ages, 415.
(s) As primer seisin, involuntary knighthood in certain cases and fines for alienation.
(t) Gilb. Ten. 431 et seq.; Scriven on Copyholds, 719 et seq.
(u) Litt. ss. 91,131,132; Scriv. Cop. 732.
(x) 2 Black. Com. 101.
(y) See Litt. s. 119; Wright's Tenures, 143; 2 Black. Com. 80; Co. Litt. 86 a, n. (1); 2 Hallam's Middle Ages, 481. The controversy lies between the Saxon word soc, which signifies a lilierty, privilege or franchise, especially one of jurisdiction, and the French word soc, which signifies a ploughshare. In favour of the former is urged the beneficial nature of the tenure, and also the circumstance that socagers were, as now, bound to attend the court baron of the lord, to whose soc or right of justice they belonged. In favour of the latter derivation is urged the nature of the employment, as well as the most usual condition of tenure of the lands of sockmen, who were principally engaged in agriculture. The former appears to be the more probable derivation. See Sir II. Ellis's Introduction to Domesday, vol. i. p. 69.