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and, when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeanty paid one year's value of his land, were it much or littles. Te. nure by cornage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeanty'.
These services, both of chivalry and grand serjeanty, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first fending others in their stead, and in process of time making a pecuniary fatisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called fcutagium in Latin, or servitium fcuti; fcutum being then a well-known denomination of money: and, in like manner it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. The first time this appears to have been taken was in the 5 Hen. II. on account of his expedition to Toulouse; but it soon came to be fo universal, that personal attendance fell quite into disuse. Hence we find in our antient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expences, and to hire' troops : and these affeffments, in the time of Henry II, seem to have been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour; and king John was obliged to consent, by his magna carta, that no scutage should be imposed without consent of parliament". But this clause was omitted in his son Henry III's charter; where we only find “, that fcutages
is Ibid. $. 154.
1 Ibid. §. 156.
nofiro, nifi per commune confilium regni
or escuage should be taken as they were used to be taken in the time of Henry II ; that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. I. c. 5 & 6. and many subsequent statutes * it was enacted, that the king should take no aids or tasks but by the common assent of the realm. Hence it is held in our old books, that escuage or scutage could not be levied but by consent of parliamenty; such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.
Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton ? must be understood, when he tells us, that tenant by homage, fealty, and escuage, was tenant by knight-fer. vice: that is, that this tenure (being subservient to the military policy of the nation) was respected a as a tenure in chivalryb. But as the actual service was uncertain, and depended upon emergences, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the affefsments of the legislature suited to those emergences. For had the escuage been a settled invariable fum, payable at certain times, it had been neither more nor less than a mere pecuniary rent; and the tenure instead of knight-service would have then been of another kind, called locage, of which we fhall speak in the next chapter.
For the present I have only to observe, that by the dege. nerating of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal conftitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of * See Vol. I. pag. 140.
o Pro feodo militari reputatur. Flet. y Old Ten, tit. Escuage,
1, 2; 6. 14. §. 7. I $. 103.
6 Litt. g. 97. 120. * Wright, 122.
tenures now tended to nothing else, but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which (in confequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the foutages to which they were liable in defect of personal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted, or his eldest daughter married ; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seifin; and, if under age, of the whole of his estate during infancy, And then, as fir Thomas Smith very feelingly complains, “ when he came to his own, after “ he was out of wardship, his woods decayed, houses fallen “ down, stock wasted and gone, lands let forth and plough“ ed to be barren,” to make amends he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely fplendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to fell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation,
A SLAVERY so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of her freedom, Palliatives were from time to time applied by succeflive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I consented e for a proper equivalent to abolish them all; though the plan then
a Commonw. 1, 3. c. 5.
• 4 Inf. 202.
proceeded not to effect; in like manner as he had formed a scheme, and began to put it in execution, for removing the feodal grievance of heretable jurisdictions in Scotland, which has since been pursued and effected by the statute 20 Geo. II. C. 436. King James's plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would suftain, an annual feefarm rent should be settled and inseparably annexed to the crown, and assured to the inferior lords, payable out of every knight's fee within their respective feignories. An expedient, seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concesions. For at length the military tenures, with all their heavy appendages, were destroyed at one blow by the statute 12 Car. II. c. 24. which enacts, “ that the court of wards and liveries, and all ward“ ships, liveries, primer seisins, and ousterlemains, values and “ forfeitures of marriages, by reason of any tenure of the “ king or others, be totally taken away. And that all fines “ for alienations, tenures by homage, knights-service, and “ escuage, and also aids for marrying the daughter or knight“ing the son, and all-tenures of the king in capite, be like“ wife taken away. And that all sorts of tenures, held of “.the king or others, be turned into free and common for “ cage; save only tenures in frankalmoign, copyholds, and “ the honorary services (without the slavish part) of grand so serjeanty.” A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta ita self: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of king Charles extirpated the whole, and demolished both root and branches.
f Dalrymp. of feuds. 292.
& By another statute of the same year (20 Geo, II, c. 50.) the tenure of ward.
bolding (equivalent to the knight-service of England) is for ever abolished in Scotland.
CHAPTER THE SIXTH.
OF THE MODERN ENGLISH TENURES.
ALTHOUGH, by the means that were mentioned n in the preceding chapter, the oppressive or military part of the feodal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in it's room; since by the statute 12 Car. II. the tenures of focage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court roll were reserved ; nay all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced to one general species of tenure, then well known and subsisting, called free and common focage. And this, being sprung from the same feodal original as the rest, demonstrates the necessity of fully contemplating that antient system ; since it is that alone to which 'we can recur, to explain any seeming or real difficulties, that may arise in our present mode of tenure.
The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, or free-focage, consisted also of free and honourable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the