The History of English Law before the Time of Edward I. Frederic William Maitland

in the word serviens, which will stand for servant, and will stand for light armed soldier, may have attracted within the sphere of serjeanty certain tenures which had about them no strong trace of what we have called “servantship.” Still originally the servientes of the army were so called because they were attendants on the milites, whose shields they carried, and whose esquires they were—for the esquire (scutifer, armiger) of those times was one who carried the shield or arms of his lord. Thus by one way or another we come back to the idea of “servantship” as the core of serjeanty.¹⁹⁷

Serjeanty in Domesday Book.Looking back towards the Norman Conquest we run no risk in seeing the predecessors of these tenants by serjeanty in the servientes of Domesday Book. Near the end of the survey of a county we sometimes meet with a special section devoted to Servientes Regis. Thus in [p.269] Wiltshire after the Terra Tainorum Regis comes the Terra Servientium Regis;¹⁹⁸ it is so in Dorsetshire;¹⁹⁹ in Devonshire and Leicestershire the Servientes Regis have a special section;²⁰⁰ in Oxfordshire we find Terra Ministrorum Regis,²⁰¹ and when elsewhere we meet with Famuli Regis²⁰² we may suppose that this is but another name for the Servientes and Ministri. We can tell something of their offices. Among the Wiltshire Servientes are three chamberlains (camerarii), a hoarder (granetarius) and a cross-bowman (arbalistarius); elsewhere are an archer, an usher, a goldsmith, a baker, a bedchamber man; near the end of the survey of Hampshire we find a treasurer, two chamberlains, a hunter, a marshal, a physician and a barber holding in chief of the king.²⁰³ In some cases it is possible to trace the estates of these persons until we find them definitely held by serjeanty. Again, there can be little risk in finding the ancestors in law of Bracton’s rodknightes²⁰⁴ and the Abbot of Ramsey’s ridemanni in the radchenistres and radmanni of Domesday Book. It is true that in the western counties these radchenistres are occasionally found in large groups; there may be even twenty of them on a manor;²⁰⁵ but in what was for Bracton the leading case on serjeanty the abbess of Barking asserted that she had full thirty tenants on one manor bound to ride about with her wherever she would.²⁰⁶ However, the makers of Domesday Book were not concerned to specify the terms on which the tenants, especially the tenants of mesne lords, held their lands; of serjeanties we read little just as we read little of knightly service. So soon, however, as any attempt is made to classify tenures, the serjeanties appear in a class by themselves. Glanvill, after defining the relief payable for knights’ fees and for socage tenements, adds that as to baronies nothing has been definitely settled, the amount of the relief being at the will and mercy of the king; the same, he says, is true of serjeanties.²⁰⁷ In 1198 [p.270] the distinction was enforced by the great fiscal measure of that year; from the general land tax the serianteriae were excepted, but they were to be valued and the servientes who held them were to be summoned to meet the king at Westminster to hear and do his bidding.²⁰⁸

Serjeanty and other tenures.Other distinctions appear in course of time. Even in Bracton’s day the amount of the relief for a serjeanty was not yet fixed; it was to be “reasonable” but no more than this could be said.²⁰⁹ In later days we find it fixed at one year’s value of the land; but how or when this definition was arrived at we do not know.²¹⁰ That the serjeant’s relief remains uncertain long after the reliefs of barons, knights and socagers are fixed is another fact which points to the peculiar nature of the relationship which had been involved in the tenure. It was not the mere relation between lord and tenant, or between lord and man, but was also the relation between master and servant, and, though a feoffment had been made to the tenant and his heirs, the law was slow to dictate the terms upon which the lord must receive the heir into his service. Again, we find that a tenement held by serjeanty is treated as inalienable and impartible. As regards alienation we shall be better able to speak hereafter, but will premise this much, that the king is rigorously enforcing the rule that his serjeants cannot without his leave alienate their land, even by way of subinfeudation, at a time when he is not, or is not systematically, enforcing the same rule against his other tenants. We have some proof that so late as John’s reign it was thought that a serjeanty could not be partitioned among co-heiresses; the eldest daughter would take the whole:²¹¹—this also is an intelligible rule if we have regard to the “serviential” character of the tenure; a serjeanty must not be “lacerated.”²¹² As to the wardship and marriage of tenants by serjeanty there was much dispute, and in course of time a line was drawn between what were called “grand” and what were called “petty” serjeanties. To this matter we must return; but [p.271] by means of the rules to which allusion has here been made, tenure by serjeanty was kept apart from tenure by knight’s service on the one hand and tenure by socage on the other, and even in the middle of the thirteenth century it still had an importance which is but faintly represented by the well-known sections of Littleton’s book.

§ 5. Socage

Socage.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:—to this result lawyers are gradually coming. Obviously therefore this term socage will cover a large field; it will 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. We may look at a few typical cases.

Types of socage.(a) The service which the tenant owes to his lord may be merely nominal: he has no rent to pay or has to give but a rose every year just by way of showing that the tenure exists. Such a case may be the effect of one of various causes. It may originate in what we should call a family settlement: a landowner sometimes provides for a daughter or a younger son by a gift of land to be held by a nominal service. Or again, the gift may be a reward to some dependant for past services, or a retaining fee for services to be rendered hereafter, which services however are not defined and are not legally exigible. Or again, there may well have been what in truth was a sale of the land: in return for a gross sum a landowner has created a nominal tenure. To have put the purchaser in the vendor’s place might have been difficult, perhaps impossible; so the purchaser is made tenant to the vendor at an insignificant rent.

      (b) Such cases gradually shade off into others in which a substantial rent has been reserved. We pass through the very numerous instances in which the lord is to receive yearly some small article of luxury, a sparrowhawk, a pair of gloves, a pair of gilt spurs, a pound of pepper or of incense or of wax, to other cases in which [p.272] the rent, if we cannot call it a “rack rent,” is “the best rent that can reasonably be gotten.” We thus enter the sphere of commerce, of rents fixed by supply and demand.

      Such tenures as these may be found in every zone of the territorial system. The tenant may be holding of the king in chief; the king has, as we should say, granted perpetual leases at substantial rents of some of his manors, the lessees being sometimes lay barons, sometimes religious houses.²¹³ Again, from the Conquest onward, to say nothing of an earlier time, very great men have not thought it beneath them to hold church lands at easy rents.²¹⁴ It is an accusation common in monastic annals that the abbots of the Norman time dissipated the lands of their houses by improvident grants to their foreign kinsmen or by taking fines instead of reserving adequate rents. In such cases these tenants in socage may have other tenants in socage below them, who will pay them heavier rents. Ultimately we come to the actual occupant of the soil, whose rent will in many cases represent the best offer that his landlord could obtain for the land. Occasionally he may be paying more for the land than can be got from the villeins of the same village.

      (c) Sometimes we find in charters of feoffment that the feoffee, besides paying rent, is to do or get done a certain amount of agricultural labour on his lord’s land, so