« السابقةمتابعة »
is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain". It is indeed only a kind of town focage ; as common focage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly feen, is usually distinguished from other towns by the right of sending members to parliament; and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage therefore, or burgage tenure, is where houses, or lands which were formerly the scite of houses, in an antient borough, are held of some lord in common locage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their infignisicancy, which made it not worth while to compel them to an alteration of tenure ; as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure
in chivalry was. And here also we have again an instance, [ 83 ] where a tenure is confe Nedly in focage, and yet could not
possibly ever have been held by plough-service; since the te-
$ 165. W ubi fupra.
y § 211.
tender age, is not so capable as the reft of his brethren to help himself. Other authors a have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right of concubinage with his tenant's wife on her weddingnight ; and that therefore the tenement descended not to the eldeft, but the youngest son ; who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in. Scotland, (under the name of mercheta or marcheta) till abolished by Malcolm III a. And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle ; and go to seek a new habitation. The youngest son therefore, who conti. nues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the fons but one to migrate from the father, which one be- r ga came his heir.. So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. Other special customs there are in different burgage tenures ; as that, in some, the wife shall be endowed of all her husband's tenements, and not of the third part only, as at the common law: and that, in others, a man might dispose of his tenements by willd, which, in general, was not permitted after the conquest till the reign of Henry the eighth; though in the Saxon times it was allowable. A pregnant proof that these liber. ties of locage tenure were fragments of Saxon liberty. 23 Mod. Pref.
relinquebar.(Wallingb. U podigm. Neustro a Seld, tit. of hon. 2. 1. 47. Reg. c. 1.) Mag. l. 4. C. 31.
Litt. § 166. b Pater cunétos filios adultos a se pelle d § 167. bet, praeter unum quem kaereacm fui juris & Wright. 1720 ; VOL. II.
The nature of the tenure in gavelkind affords us'a ftill stronger argument. It is universally known what struggles the Kentish men made to preserve their antient liberties, and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind, (though it was and is to be found in some other parts of the kingdom) we may fairly conclude that this was a part: of those liberties ; agreeably to Mr. Selden's opinion, that ga. velkind before the Norman conquest was the general custom of the realm 8. The distinguishing properties of this tenure, are various : some of the principal are these ; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen h. 2. The estate does not efcheat in case of an attainder and execution for felony; their maxim being, “ the “ father to the bough, the son to the plough i.” 3. In most places he had a power of deviling lands by will, before the statute for that purpose was made k. 4. The lands de. scend, not to the eldest, youngest, or any one fon only, but to
all the sons together!; which was indeed antiently the most [ 85 ) usual course of descent all over England in, though in parti
cular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a focage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in it's nature certain". Wherefore, by a charter of king John', Hubert archbishop of Canterbury was authorised to exchange the gavelkind tenures holden of the fee of Canterbury into tenures by knight's-service; and by statute 31 Hen. VIII. c. 3. for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for
Lamb. Peramb. 614. i Lamb. 634 k F. N. B. 198. Cro. Car. 565.
of Stat. 32 Hen. VIII. c. 29. Kitch. of courts, 200.
8 In foto regno, ante ducis adrentur, frequens et ufitata fuit : poftca caeteris adempia, fed pricuaris quorundum locorum conjwadinibus alibi pofta regermirans : Cartianis forum integra et inviciata rio mansit. ( Analist, h. 2. 6.7.)
Lit. $ 210.
od, vel. leg. 355.
the future like other lands which were never holden by firvice of Jocage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive should be conferred upon mere ploughmen and peasants : from all which I think it sufficiently clear, that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers:
Having thus distributed and distinguished the several species of tenure in free focage, I proceed next to thew that this also partakes very strongly of the feodal nature. Which may probably arise from it's antient Saxon original ; since (as was before observed P) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary confequences as among the Normans. It seems therefore reasonable to imagine, that focage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I do not apprehend the number of socage tenures soon after the conquest to have been very confia derable, nor their value by any means large; till by successive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton 9, their number and [ 867 value began to fwell so far, as to make a distinct, and justly envied, part of our English system of tenures.
However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of focage tenure with those of tenure in chia valry; remarking their agreement or difference as we go along.
1. In the first place, then, both were held of superior lords ; one of the king, either immediately, or as lord paramount, . ? pag. 48.
9 c. 66. HE
and (in the latter case) of a subject or mesne lord between the king and the tenant.
2. Both were subject to the feodal return, render, rent, or service of some sort or other, which arose from a fupposition 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 so continues to this day.
3. Both were, from their constitution, universally 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 reason given by Littleton”, that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not; and so he may lose his feignory, and the profit which may accrue to him by escheats and other contingencies'.
4. The tenure in focage was subject, of common right,
to aids for knighting the son and marrying the eldest daugh137 J teru: which were fixed by the statute Westm. 1. c. 36. at
20 s. for every 20 l. per annum so 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 statute 12 Car. II.
5. Relief is due upon focage tenure, as well as upon tea nure in chivalry: but the manner of taking it is very different. The relief on a knight's fee was 5 l. or one quarter of the supposed value of the land; but a focage relief is one • Litt. 117. 131. . reddatur juso
reddatur jus domini et vetuftate temporis : $130.
obfcuretur. (Corvin. jus feod. l. 2. 6.7.) 1 Ec maxime praeftandum eft, ne dubium Co. Litt. 91.