and (in the latter cafe) of a subject or mefne lord between the king and the tenant. 2. BOTH were fubject to the feodal return, render, rent, or fervice of fome fort or other, which arofe from a fuppofition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from it's nature uncertain; in focage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty) and fo continues to this day. 3. BOTH were, from their conftitution, univerfally subject. (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant'. Which oath of fealty usually draws after it suit to the lord's court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron; if it be only for the reafon given by Littleton, that if it be neglected, it will by long continuance of time grow out of memory (as doubtlefs it frequently hath done) whether the land be holden of the lord or not; and fo he may lose his feignory, and the profit which may accrue to him by efcheats and other contingencies'. 4. THE tenure in focage was fubject, of common right, to aids for knighting the fon and marrying the eldest daugh[ 87 ] ter": which were fixed by the ftatute Weftm. 1. c. 36. at 20 s. for every 20 l. per annum fo held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the ftatute 12 Car. II. 5. RELIEF is due upon focage tenure, as well as upon tenure in chivalry: but the manner of taking it is very different. The relief on a knight's fee was 5 1. or one quarter of the fuppofed value of the land; but a focage relief is one year's rent or render, payable by the tenant to the lord, be the fame either great or fmall: and therefore Bracton* will not allow this to be properly a relief, but quaedam praeftatio loco relevii in recognitionem domini. So too the statute 28 Edw. I. c. 1. declares, that a free sokeman shall give no relief, but shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved above measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age: but in focage they were due even though the heir was under age, because the lord has no wardship over him . The ftatute of Charles II referves the reliefs incident to focage tenures; and therefore, wherever lands in fee simple are holden by a rent, relief is still due of common right upon the death of a tenant 2. 6. PRIMER seifin was incident to the king's focage tenants in capite, as well as to those by knight-fervice. But tenancy in capite as well as primer feifins are, among the other feodal burthens, entirely abolished by the ftatute, 7. WARDSHIP is also incident to tenure in focage; but of a nature very different from that incident to knight-fervice. For if the inheritance defcend to an infant under fourteen, the wardship of him does not, nor ever did, belong to the lord of the fee; because, in this tenure, no military or other personal service being required, there was no occafion for the lord to take the profits, in order to provide a proper fubftitute for his infant tenant: but his nearest relation (to whom the inheritance cannot defcend) fhall be his guardian in focage, and have the cuftody of his land and body till he arrives at the age of fourteen. The guardian muft be such a one, to whom the inheritance by no poffibility can defcend; as was fully explained, together with the reafons for it, in the former book of these commentaries. At fourteen this wardfhip in focage ceases; and the heir may out the guardian, [ 88 ] a Co. Litt. 77. H 3 and and call him to account for the rents and profits: for at this age the law supposes him capable of chusing a guardian for himself. It was in this particular, of wardship, as alfo in that of marriage, and in the certainty of the render or service, that the focage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it: that young heirs, being left at fo tender an age to chufe their own guardians till twenty-one, might make an improvident choice. There fore, when almost all the lands in the kingdom were turned into focage tenures, the fame statute 12 Car. II. c. 24. enacted, that it should be in the power of any father by will to appoint a guardian, till his child fhould attain the age of twenty-one (2). And, if no fuch appointment be made, the court of chancery will frequently interpofe, and name a guardian, to prevent an infant heir from improvidently expofing himself to ruin. 8. MARRIAGE, or the valor maritagii, was not in focage tenure any perquifite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage. For, the law, in favour of infants, is always jealous of guardians, and therefore in this cafe it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; [89] left by fome collufion the guardian fhould have received the value, and not brought it to account: but, the statute having deftroyed all values of marriages, this doctrine of course hath ceased with them. At fourteen years of age the ward might have difpofed of himself in marriage, without any consent of his guardian, till the late act for preventing clandestine marriages. These doctrines of wardship and marriage in focage d Litt. § 123. c Litt. 123, Co. Litt. 89. (2) See 1 Vol. 463. tenure tenure were fo diametrically oppofite to thofe in knight-fervice, and fo entirely agree with thofe parts of king Edward's laws, that were restored by Henry the firft's charter, as might alone convince us that focage was of a higher original than the Norman conqueft. 9. FINES for alienation were, I apprehend, due for lands holden of the king in capite by focage tenure, as well as in cafe of tenure by knight-fervice: for the statutes that relate to this point, and fir Edward Coke's comment on them, fpeak generally of all tenants in capite, without making any diftinction but now all fines for alienation are demolished by the ftatute of Charles the fecond. 10. ESCHEATS are equally incident to tenure in focage, as they were to tenure by knight-fervice; except only in gavelkind lands, which are (as is before mentioned) subject to no efcheats for felony, though they are to efcheats for want of heirs. THUS much for the two grand fpecies of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished. and funk into the latter: so that lands of both forts are now holden by the one univerfal tenure of free and common socage. THE other grand division of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradiftinguished from liberum tenementum, or frank tenure. And this (we may remember) he subdivides into two classes, pure and privileged villenage: from whence have arifen two other fpecies of our modern tenures. III. FROM the tenure of pure villenage have sprung our prefent copyhold tenures, or tenure by copy of court roll at the will of the lord: in order to obtain a clear idea of which, it will be previously neceffary to take a fhort view of the original and nature of manors. C Inft. 43. 2 Inft. 65, 66, 67. f Wright. 210. MANORS [90] : MANORS are in fubftance as antient as the Saxon conftitution, though perhaps differing a little, in fome immaterial circumftances, from those that exift at this day: just as we obferved of feuds, that they were partly known to our anceftors, even before the Norman conqueft. A manor, manerium, a manendo, because the usual refidence of the owner, feems to have been a diftrict of ground, held by lords or great perfonages; who kept in their own hands fo much land as was neceffary for the use of their families, which were called terrae dominicales or demefne lands; being occupied by the lord, or dominus manerii, and his fervants. The other, or tenemental, lands they diftributed among their tenants: which from the different modes of tenure were distinguished by two different names. Firft, bock-land, or charter-land, which was held by deed under certain rents and free-fervices, and in effect differed nothing from free focage lands and from hence have arisen most of the freehold tenants who hold of particular manors, and owe fuit and service to the fame. The other species was called folk-land, which was held by no affurance in writing, but distributed among the common folk or people at the pleasure of the lord, and refumed at his difcretion; being indeed land held in villenage, which we fhall presently defcribe more at large. The refidue of the manor being uncultivated, was termed the lord's wafte, and ferved for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they ftill are lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, for redreffing misdemefnors and nusances within the manor, and for settling difputes of property among the tenants. This court is an infeparable ingredient of every manor; and if the number [91] of fuitors should so fail as not to leave fufficient to make a jury or homage, that is, two tenants at the least, the manor itself is loft. In the early times of our legal constitution, the king's greater barons, who had a large extent of territory held una Co. Cop. §3. B Co, Cop, §2. & 10. der |