This section is from the book "Popular Law Library Vol1 Introduction To The Study Of Law Legal History", by Albert H. Putney. Also see: Popular Law-Dictionary.
It is only as a system of land-ownership that feudalism needs to be considered in this chapter. The underlying theory of feudalism in this respect was that all land was owned by the King. The King grants land to his tenants-in-chief in return for military service, they in turn sub-infeudate others, and the progress goes on until at last the actual tillers of the soil are reached. The number of these sub-infeudations was theoretically unlimited; for illustration, in Edward the First's days, Roger of St. German held land at Paxton in Huntingdonshire of Robert of Bedford, who held of Richard of Ilchester, who held of Alan of Chartres, who held of Devorguil Balliol, who held of the King of Scotland, who held of the King of England.2
2 Rat. Hund. II, 673.
The holding of a vassal from a lord, under whatever conditions, was called a tenure. It is at once manifest that the way in which a great baron held of the King was a very different one, in every respect, from that in which a villein (or serf) held from his immediate lord. As a matter of fact, there existed in England a large variety of tenures, which will be briefly considered separately. All tenures involve the duties of homage and fealty by the vassal and of protection by the lord.
The most honorable of lay tenures was that by knight's service. It was by this tenure that most of the tenants-in-chief held of the King, and that the principal sub-vassals held of the tenants-in-chief. Under this tenure the land was granted in return for the services of a certain number of fully armed knights each year for a period of about forty days. For about a century after the Norman Conquest practice and theory mainly agreed, and the military tenures furnished the King his army; during the next succeeding century the holders by these tenures did the same thing indirectly by paying scrutage instead of furnishing the soldiers, and after this period they failed to furnish an army, either directly or indirectly. By this time all that remained of this tenure were its so-called incidents, which will be considered in the next section.
Tenure by serjeanty was one of the hardest tenures to explain on account of the great diversity of services upon which this tenure might be made to depend. Serjeanty is first divided into grand and petty serjeanty. Grand serjeanty is a tenure of dignity and includes such services "as to carry the banner of the King, or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his server at his coronation, or his carver, or his butler, or to be one of the chamberlains of the receipt of his Exchequer."3 Petty serjeanty covered a variety of menial services, not agricultural, and we also find petty serjeanties connected with warfare, such as the duty to furnish a foot-soldier or an archer for the army. The forests and hunting were the occasions of many tenures by serjeanty, and finally land might be held by this tenure on the service of furnishing certain military supplies.
"Any tenure that on the one hand is free, and on the other hand is not spiritual, nor military, nor 'serviential' is called tenure in free socage. Obviously, therefore, this term 'socage' will have to cover a large field; it will have to include various relationships between men, which, if we regard their social or economic, or even their purely legal aspects, seem very different from each other." 4 The highest form of socage is that where the vassal pays a fixed rent to the lord; the rent may be payable either in money or produce, and the amount of the rent may be either nominal or substantial. A lower form of socage is found in cases where the vassal. was bound to render or furnish services on his lord's land. In such cases of socage, however, the services required would be absolutely certain. Free socage is the only tenure that ever existed in America.
Closely allied to free socage was burgage tenure, with its special rule of inheritance by which property held under this tenure went, not to the oldest, but, to the youngest son of the holder.
Villein tenure was the great unfree tenure. A villein was a serf rather than a slave. He was annexed to the land, given a small allotment for his own support, and compelled to work the greater part of his time for the benefit of his lord. Villeinage was both a personal status and a tenure. A man personally free might hold by a villein tenure. His only advantage over his neighbor, who held by the same tenure and was also a villein by status, was that he was free to leave the land. But the average man who would take such a step in the days of feudalism would be compelled to choose between being starved or becoming an outlaw. The services required of a villein would seem in early times to have depended entirely upon the will of his lord, but later his rights became somewhat protected by what were known as the customs of the manor. Peculiar privileges were enjoyed by villeins upon the King's manors, and these privileges were continued even if the manor was granted away by the King.
3 Littleton, Section 153.
Sokemanry was a tenure on the dividing line between the free and the unfree. The exact character of this tenure is not clearly known and cannot be discussed in detail in this work.
In addition to the lay tenures already treated, there were certain religious tenures by which the church held the extensive lands granted to them. These tenures were known as frankalmoin and tenure by divine service; under the latter tenure the religious services to be rendered were definite, while under the former the lands were granted for the general good of the soul of the grantor.