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 [*60 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 land. (a) 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, (c) 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 burthensome services, than inferior tenures did. (d) This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. There seems 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 nature 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 [*61 serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were only fit 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, 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 a 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 modern; (e) 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,(g) "of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called

(a) 1 Inst. 296.

(b) 1 Inst. 1.

(c) Page 47.

(d) In the Germanic constitution, the electors, 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. xliii. 61.

(e) L. 4, tr. 1, c. 28.

(f) Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et ser vitio militari; aliud in libero socagiò cum fidelitate tantum. 2 1.

(9) Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei præceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium; et hujusmodi villani 80cmanni-villana faciunt servitia, sed certa, et determinata. 5.

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 *62] homage, 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, etc., that tenure was called liberum socagium, or free-socage. These were the only free holdings or tenements; the others were villenous or servile, 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. (2)

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 Normans, (h) which name is expressly given it by the Mirrour. (2) This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general 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, (k) and its value (though it varied with the times)() in the reigns of Edward I. and Edward II. (m) was stated at 20l. per annum. (3) 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; (n) 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 to attend twenty days, and so in proportion. (o) And there *63] is reason to *apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences

(2) Greenleaf's Cruise on Real Prop. vol. 1, c. ii. p. 27, 5. Washburn on Real Prop. vol. I, p. 53 (5 ed.)

(3) 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 and 26. This is most probable: besides, it cannot be supposed that the same quantity of land was everywhere of the same value. -CHRISTIAN.

Upon the questions of the extent and value of a knight's fee there are many opinions, and it seems hardly possible in the present day to arrive at any certainty. With regard to the value it varied undoubtedly; but it can hardly be said to have varied "with the times," if the writs as cited by lord Coke (2 Inst. 596) can be depended upon. The fluctuation in them is so uncertain and extraordinary that it cannot be accounted for by any change in the times. With regard to the extent, we can have no hesitation in assenting to the doctrine that it varied with the goodness of the land: at the same time the measure might be the same, as twelve plough-lands of rich soil would contain a less space than the same number in a lighter and less productive soil. There might, therefore, be always the same number of plough-lands, though the number of acres might vary; nor is it at all inconsistent with this that there might be appendant to the plough-lands wood, meadow, and pasture; for the arable land was the principal thing considered in all ancient agricul ture; wood, meadow, and pasture were appendages, furnishing the estovers and botes of the tenant of the arable land.-COLERIDGE.

of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system.

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi;(p) was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz., aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat: all which I shall endeavor to explain, and to show to be of feodal original. (4)

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress; (g) but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three; first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feodal attachment and fidelity: insomuch that the neglect of doing it, whenever it was in the vassal's power, was by the strict rigor of the feodal law an absolute forfeiture of his estate. (r) Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms:(s) the intention of it being to breed up the eldest son and heir-apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender, few lords being able to save much out of their income for this purpose; nor could [*64 they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands. with this or any other encumbrances. (5) From bearing their proportion to these aids, no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir, (of whom their lands were holden,) and the marriage of his female descendants. (t) And one cannot but observe in this particular the great resemblance which the lord and vassal of the feodal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised by the client; viz. to marry the patron's daughter; to pay his debts; and to redeem his person from captivity.(u)

But besides these ancient feodal aids, the tyranny of lords by degrees

(p) Co. Litt. 9.

(9) Auxilia fiunt de gratia, et non de jure,-cum dependeant ex gratia tenentium, et non ad voluntatem dominorum. Bracton, l. 2, tr. 1, c. 16, 28. [Aids arise from favor, not from right, since they depend on the good will of the tenant, not on the will of the lord.]

(r) Feud. l. 2, t. 24.

(s) 2 Inst. 233.

(t) Phillip's Life of Pole, i. 223.

(u) Erat autem hæc inter utrosque officiorum vicissitudo-ut clientes ad collocandas senatorum filias de suo conferrent; in æris alieni dissolutionem gratuitam pecuniam erogarent; et ab hostibus in bello captos redimerent. Paul Manutius de Senatu Romano, c. 1. [But there was this reciprocity of service between themthat the clients should give a sum of money for marrying the daughters of their lords, pay their debts, and ransom them when taken captive in war.]

(4) Bowyer's Com. Con. Law Eng. 214. Sir John Dalrymple, in an Essay on Feudal Property, p. 24, says that "in England, before the 12 of Car. II., if the king had granted lands without reserving any particular services or tenure, the law creating a tenure for him would have made the grantee hold by knight's service."

Wright also says that "military tenure was created by pure words of donation."Wright's Ten. 141.-CHRISTIAN.

(5) By the statute Westm. 1, c. 36, the aid for the marriage portion of the lord's eldest daughter could not be demanded till she was seven years of age; and if he died, leaving her unmarried, she might by the same statute recover the amount so received by him from his executors.-CHITTY.

exacted more and more: as, aids to pay the lord's debts, (probably in imitation of the Romans,) and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were, from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, king John's magna charta(v) ordained that no aids be taken by the king without consent of parliament, nor in any wise by inferior lords, save only the three ancient ones above mentioned. But this provision was omitted in Henry III.'s charter, and the same oppressions were continued till the 25 Edward I., when the statute called confirmatio chartarum was enacted; which in this respect revived king

John's charter, by ordaining that none but the ancient aids should be *65] taken. But though the species of aids was thus restrained, yet the quantity of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable; (w) and that the aids taken by the king of his tenants in capite should be settled by parliament. (x) But they were never completely ascertained and adjusted till the statute Westm. 1, 3 Edw. I. c. 36, which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter: and the same was done with regard to the king's tenants in capite by statute 25 Edw. III. c. 11. The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was therefore never ascertained.

2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure; (6) especially when, at the first, they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir.(y) The English ill brooked this consequence of their new-adopted policy; and therefore William the Conqueror by his law(z) ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively; and if the latter had no arms, they should pay 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws: thereby in effect obliging every heir to new-purchase

or redeem his land:(a) but his brother Henry I., by the charter before *66] mentioned, restored his father's law, and ordained that the relief to

be paid should be according to the law so established, and not an arbitrary redemption. (b) But afterwards, when, by an ordinance in 27 Hen. II., called the assize of arms, it was provided that every man's armor should descend to his heir, for defence of the realm, and it thereby became impracticable to pay these acknowledgments in arms according to the laws of the conqueror, the composition was universally accepted of 100s. for every

(v) Cap. 12. 15.

(w) Ibid. 15.

(x) Ibid. 14.

(y) Wright, 99.

(z) C. 22, 23, 24.

(a) 2 Roll. Abr. 514.

(b) "Hæres non redimet terram suam sicut faciebat tempore fratris mei, sed legitima et justa releratione relevaba eam.' Text. Roffens, cap. 34. ["An heir shall not redeem his land as he used to do in the time of my brother, but I will release it for a just and lawful relief."]

(6) Profit from reliefs depended upon whether the title of the heir was acquired by descent or by purchase. The former conferred the power to demand reliefs, while the latter did not. Probably to foster the aristocracy, the titles were usually considered to be derived from descent. Mason v. Pates, Excr., 34 Ala. 386, 1859.

knight's fee, as we find it ever after established. (c) But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one-and-twenty years.

3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits of the lands, if they were in immediate possession; and half a year's profits if the lands were in reversion expectant on an estate for life. (d) This seems to be little more than an additional relief, but grounded upon this feodal reason; that by the ancient law of feuds, immediately upon the death of a vassal, the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: during which interval the lord was entitled to take the profits; and, unless the heir claimed within a year and a day, it was by the strict law a forfeiture. (e) This practice, however, seems not to have long obtained in England, if ever, with regard to tenure under inferior lords; but as to the king's tenures in capite, the prima seisina was expressly declared, under Henry III. and Edward II., to belong to the king by prerogative, in contradistinction to other lords. (f) The king was entitled to enter and receive the *whole profits of the land, till livery was [*67 sued; which suit being commonly made within a year and day next after the death of the tenant, in pursuance of the strict feodal rule, therefore the king used to take as an average the first-fruits, that is to say, one year's profits, of the land.(g) And this afterwards gave a handle to the popes, who claimed to be feodal lords of the church, to claim in like manner, from every clergyman in England, the first year's profits of his benefice, by way of primitia, or first-fruits.

4. These payments were only due if the heir was of full age; but if he was under the age of twenty-one, being a male, or fourteen, being a female, (h) the lord was entitled to the wardship of the heir, and was called the guardian in chivalry. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twentyone in males, and sixteen in females. For the law supposed the heir-male unable to perform knight-service till twenty-one; but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The lord therefore had no wardship, if at the death of the ancestor the heir-male was of the full age of twenty-one, or the heir-female of fourteen; yet, if she was then under fourteen, and the lord once had her in ward, he might keep her so till sixteen, by virtue of the statute of Westm. 1, 3 Edw. I. c. 22, the two additional years being given by the legislature for no other reason but merely to benefit the lord. (i)(7)

(c) Glanv. l. 9, c. 4. Litt. 3 112.

(d) Co. Litt.

(e) Feud. l. 2, t. 24.

(g) Staundf. Prerog. 12.
(h) Litt. 2 103.
(i) Litt. 103.

(f) Stat. Marlb. c. 16. 17 Edw. II. c. 3.

(7) According to lord Coke, (2 Inst. 204,) it is not quite correct to say that the lord might keep her in ward for two additional years: he had the land by the statute, but the guardianship was at an end. The distinction was not merely a verbal one; for, being no longer guardian, he was not liable to the actions in respect of the lands which, as guardian, he must have answered. For example, the widow of the last tenant could not bring her writ of dower against him. On the other hand, he had not all the established rights of a guardian against the heir; and therefore, if he tendered her a marriage during the two years and she contracted a marriage elsewhere, there lay no forfeiture of the value of the marriage against her.

It is necessary, also, to make another qualification of the text; for the statute did not apply if the heir-female was married, though under fourteen, the two years being given