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

a man of mark, an abbot, a baron, who will have many tenants under him and will never put his hand to the plough.²¹⁵ These cases are of importance because they seem to be the channel by which the term socage gradually spreads itself.

      (d) Finally, within a manor there often are tenants bound to pay divers dues in money and in kind and bound to do or get done a fixed quantity of agricultural service for their lords. Their tenure is often regarded as very old; often they have no charters which [p.273] express its terms.²¹⁶ Hereafter we shall see that it is not always easy to mark the exact line which separates them from the tenants in villeinage among whom they live and along with whom they labour for the lord’s profit. Some of them are known as free sokemen (sokemanni, sochemanni); but this name is not very common except on “the ancient demesne” of the crown. Of their position we must speak hereafter, for it can only be discussed in connexion with the unfree tenures.

Gradual extension of the term socage.Now to all appearance the term socage, a term not found in Normandy, has been extending itself upwards; a name appropriate to a class of cultivating peasants has begun to include the baron or prelate who holds land at a rent but is not burdened with military service. Of such a man it would seem natural to say that he holds at a rent (tenet ad censum), and for a century and more after the Norman Conquest it is rare to call his tenure socage. He is sometimes said to have feodum censuale;Fee farm. far more commonly he is said to hold “in fee farm.” This term has difficulties of its own, for it appears in many different guises; a feoffee is to hold in feofirma, in feufirmam, in fedfirmam,²¹⁷ in feudo firmam, in feudo firma, ²¹⁸ ad firmam feodalem,²¹⁹ but most commonly, in feodi firma. The Old English language had both of the words of which this term is compounded, both feoh (property) and feorm (rent);²²⁰ but so had the language of France, and in Norman documents the term may be found in various shapes, firmam fedium, feudifirmam.²²¹ But, whatever may be the precise history of the phrase, to hold in fee farm means to hold heritably, perpetually, [p.274] at a rent; the fee, the inheritance, is let to farm. This term long struggles to maintain its place by the side of socage; the victory of the latter is not perfect even in Bracton’s day; the complete merger of fee farm in socage is perhaps due to a statute of Edward I., though the way towards this end had long been prepared.²²²

Meaning of “socage.”As to the word socage, a discussion of it would open a series of difficult problems about the administration of justice in the days before the Conquest. These have been discussed elsewhere.²²³ We must here notice two points. Bracton believed—erroneously no doubt, but erroneous etymology is a force in the history of the law—that socage had to do with soc, the French word for a plough-share;²²⁴ tenants in socage therefore are essentially agriculturists, and the duty of ploughing the lord’s demesne is the central feature of socage. In the second place, if we turn to the true derivation, we come to much the same result; socage is at starting the tenure of those sokemen of whom we read in Domesday Book; socage is an abstract term which describes their condition. Gradually it has been extended and therefore attenuated until it is capable of expressing none but negative characteristics:—socage is a tenure which is not spiritual, not military, not serviential. No similar extension has been given to the word sokeman; in the thirteenth century many persons hold in socage who would be insulted were they called sokemen; for the sokemen are a humble, though it may be a well-to-do class.²²⁵

Socage in contrast to military tenure.That they have been a numerous class we may gather as from other evidence so from this, that socage becomes the one great standing contrast to military tenure, and, as the oppressive incidents of [p.275] military tenure are developed, every man who would free his holding from the burdens of wardship and marriage is anxious to prove that he holds in socage. To gain this end he is full willing to sink somewhat of dignity; he will gladly hold by the peasant’s tenure when the most distinctive marks of that tenure are immunities— no scutage, no wardship, no marriage.²²⁶

Socage as the residuary tenure.Thus free socage, when that term has attained its full compass, appears as the great residuary tenure, if we may so speak; it is nonmilitary, non-serviential, non-elemosinary. If, however, we go back to the first half of the twelfth century, we begin to doubt whether we can strictly insist on the most characteristic of these negative attributes. The army is but gradually taking its new shape; the sokemen of the Abbot of Peterborough serve along with the knights.²²⁷ In Edward I.’s day the tradition among the Oxfordshire jurors was that the ancestors of many of the Bishop of Lincoln’s socage tenants were free sokemen or “quasi sokemen” who served the king in the war for forty days at their own cost with purpoints, lances and iron caps.²²⁸ It is not in the past that we must look for clear definitions.

Burgage.Tenure in burgage, if we examine but one specimen of it, may seem to differ in no essential from free socage.²²⁹ The service due from the tenant to his lord is very generally a mere money rent, though there may be a little ploughing or the like to be done. But if we thus isolate a single tenant from his fellows, the spirit of burgage escapes us. The tenant is, at least normally, a burgess, a member of a privileged community, which already aspires to become a municipal corporation. This is not the place in which to discuss the history of the boroughs, still we ought just to notice that tenure has been an important element in it. From a remote time there have been in the greater and older boroughs men who paid rents for their houses but did no other service. Their tenure becomes distinctive of the boroughs, and when in later days a manor is to become a borough, the abolition of labour services and the introduction of burgage tenure is one main feature of the process.²³⁰

[p.276]Burgage and borough customs. Regarded merely as a tenure, the chief characteristic of burgage is its subjection to local custom. Other free tenures, socage for example, may be affected by local custom, but what is exceptional in their case is normal in the case of burgage. The lord has made over to the men of the borough his court and the profits of his court; very frequently a royal charter has conceded that actions for burgage tenements shall not be tried except in the court of the borough; thus local custom has room within which it can grow and is not liable to be set aside in favour of common law. It is chiefly within the domain of private law, it is about such matters as inheritance and dower, that the borough customs have their say. The point that most concerns us here is their tendency to treat the burgage tenement as an article of commerce; it is likened to a chattel; not only can it be disposed of by will, but “it can be sold like a chattel.”

One man may hold by many tenures.A man might hold of many different lords by many different tenures. This no one would deny; but some of the classical expositions of “the feudal system” and “the manorial system” are apt to make the texture of medieval society look simpler than really it was, and we think it part of our duty to insist that the facts which the lawyers of the thirteenth century had to bring within their theories were complicated. Therefore let us fix our eyes on one man. Sir Robert de Aguilon, and see what he held on the day of his death in 1286. He held lands at Greatham in Hampshire of the king at a rent of 18 s.; he held lands at Hoo in Kent of the Abbot of Reading at a money rent; he held lands at Crofton in Buckinghamshire of William de [p.277] Say by some service that the jurors did not know; he held a manor in Norfolk of the Bishop of Norwich by the service of a sixth part of a knight’s fee and by castle-guard; he held a manor in Sussex of the Earl of Warenne by the service of one knight; he held a manor in Hertfordshire of the king in chief by the serjeanty of finding a foot-soldier for