As the smaller kingdoms become subject to or are merged in the greater, and the king becomes the king of the whole nation, the notion that the public or unoccupied land is the royal domain appears to be more strongly developed. The actual ownership of the public land and a sort of suzerainty over the rest of the land of the country comes to be vested in the king. He always speaks of the folkland by some such expression as terra juris mei, pars telluris meae. And throughout the country the claims of the king to certain dues, services, and proprietary rights, varying in different localities, is recognised1. What has been said of the king applies also, though in a less degree, to the great men of the nation, the king's thegns and the great ecclesiastical persons and bodies. Whether or not any districts were assigned to powerful individuals at the time of the original allotment of the territory, there can be no doubt that large districts soon became the property or domains of great men. This may have been due partly to conquest and colonisation by small detached bodies under a leader; or in particular communities leading men may in some cases have, acquired by gift or purchase such domains. But after the new communities had attained to complete organisation the principal mode of creating such properties was doubtless the grant of portions of the folkland by the process above described. Thus there arose a class of territorial magnates, partly the successors of the princes whose petty lordships or principalities came to be held in subordination to and dependence on the king of the 1 We hear frequently of royal rights of pasturage, of rights of free quarter for royal messengers, of having the royal huntsmen, horses, dogs, and hawks kept. (See Cod. Dipl. i. liv; Kemble's Saxons in England, i. 293.) Compare Cnut's law, lxx: 'I command all my reeves that they justly provide for me out of my own property, and maintain me therewith, and that no man need give me anything as farm aid (feorme-fultume), unless he himself be willing.' (Thorpe, Ancient Laws and Institutes, p. 413, ed. 1840.) It appears from this passage that the king had certain rights in the various villae which were looked after by reeves or bailiffs. whole country, partly bishops, churches, or great men who had acquired, by grant or otherwise, large tracts of land. These territorial magnates are supreme over the land, both occupied and unoccupied, within their districts. But they are also subordinate to the king of the nation; when therefore grants are made by such persons, it is worthy of observation that they are almost always expressed to be with the assent of the king. Thus the king is acknowledged as a sort of over-lord, whose consent is necessary to enable the inferior magnate to dispose of the folkland within his district 1. §3. Relation of Lord and Man. Such were the fundamental notions of proprietary rights over land which prevailed amongst our Teutonic forefathers. But there is another element in Teutonic custom, at first wholly unconnected with the holding or ownership of land, which came in process of time to form an important element in the complex structure called the law of real property. This is the relation of lord and man, which gradually developed into the relation of lord and tenant. The primitive form of this relation is found in the description of the mutual connexion of princeps and comes described by Tacitus. It was in its earliest form 1 See the grant of Oswald Bishop of Worcester, given below, p. 58. 2 See Stubbs, Const. Hist. i. p. 153, note. 3 Tacitus, De Situ, Moribus, et Populis Germaniae, cc. 14, 13: 'Insignis nobilitas, aut magna patrum merita, principis dignationem etiam adolescentulis adsignant: ceteris robustioribus ac jam pridem probatis adgregantur: nec rubor inter comites adspici. Gradus quinetiam et ipse comitatus habet, judicio ejus, quem sectantur: magnaque et comitum aemulatio, quibus primus apud principem suum locus; et principum, cui plurimi et acerrimi comites. Haec dignitas, hae vires, magno semper electorum juvenum globo circumdari, in pace decus, in bello praesidium. Nec solum in sua gente cuique, sed apud finitimas quoque civitates id nomen, ea gloria est, si numero ac virtute comitatus emineat: expetuntur enim legationibus, et muneribus ornantur, et ipsa plerumque fama bella profligant. Quum ventum in aciem, turpe principi, virtute vinci; turpe the association of a chief and his chosen band of followers in warfare. This was characterised by the most absolute devotion of the comes to the princeps. The chief was regarded as the fountain of honour and the giver of gifts to those who were bound by oath to follow him. In our own early records this relation of princeps and comes has developed into the relation of lord and man. It has become a tie of mutual service, responsibility, and protection in every relation of life, and is regarded as one of the principal bases of social order 1. So far was this idea carried, that the fact of rendering even menial service to a person of exalted rank was thought to reflect nobility on the person rendering it. But this relation is not at first necessarily connected with the holding of land; the relation is that of princeps and comes, of king and his thegns, of lord and man, not of lord and tenant. comitatui, virtutem principis non adaequare. Jam vero infame in omnem vitam ac probrosum, superstitem principi suo ex acie recessisse. Illum defendere, tueri, sua quoque fortia facta gloriae ejus adsignare, praecipuum sacramentum est. Principes pro victoria pugnant; comites pro principe. Si civitas in qua orti sunt, longa pace et otio torpeat; plerique nobilium adolescentium petunt ultro eas nationes, quae tum bellum aliquod gerunt; quia et ingrata genti quies, et facilius inter ancipitia clarescunt, magnumque comitatum non nisi vi belloque tueare: exigunt enim principis sui liberalitate illum bellatorem equum, illam cruentam victricemque frameam. Nam epulae et convictus, quamquam incompti, largi tamen adparatus, pro stipendio cedunt. Materia munificentiae per bella et raptus.' 1 'And we have ordained, respecting those lordless men of whom no law can be got, that the kindred be commanded that they domicile him to folk-right, and find him a lord in the folk-mote; and if they then will not or cannot produce him at the term, then be he thenceforth a "flyma," [runaway], and let him slay him for a thief who can come at him; and whoever after that shall harbour him, let him pay according to his "wer,” or by it clear himself.'-Laws of Æthelstan, Stubbs, Select Charters, p. 64; and see Freeman's Norman Conquest, vol. i. p. 96. 2 See the chapter in Kemble's Saxons in England, vol. i, on the Noble by Service.' The thegn grows out of the comes; he is a servant, but a servant ennobled by the dignity of him whose attendant he is. Freeman, i. p. 92. When however a territory was occupied by a conquering tribe, probably, as has been said above, the most fertile parts of the land would be appropriated by the chief and his followers. The principal share would fall to the chief, who, as the head of the community, would regulate the management and distribution of the whole. The lands occupied by the comites would not probably in any other sense have been considered to have been granted to them by the chief. No relation or duty, as between the chief and the comites, would arise from the fact of the grant of the lands. That relation already existed independently of the grant of the lands. No doubt the comites occupying the lands would be in a sense bound to military service, not in the first instance as landholders, but by reason of their personal relation to the chief. When the idea of a nation as an organised political community has been developed, it is probable that the obligation of military service for the defence of the community attaches in every case to the holding of land by the freeman. This seems to have been universal from the time of the earliest charters. There was no escape for the landholder from the trinoda necessitas. This, it must be observed, is different from tenure by knight service, though it must be taken into account amongst the causes which led to the growth of military tenures. In the records of the Anglo-Saxon period it seems that a gradual development can be traced, marking the stages in the progress of the relation of princeps and comes towards that of lord and tenant. At first we have the purely Teutonic institution of the comitatus. The king has around him comites or gesiths, who form his counsellors, his body-guard, and personal attendants. The existence of the folkland enables him from time to time to make grants of portions of territory to them. Gradually the gesith or companion ceases to be heard of, and the thegn or minister takes his place. It seems to be difficult at first to distinguish between the two. The duties of the thegn seem to be more distinctly warlike than those of the gesith, and the position of the thegn seems to have come more and more to imply possession of a large district of land. Thus in the relation of the thegn to the king we see the germs of the later relation of the king to the tenant in capite holding of him by military service 1. The relation of the king to the thegn is reproduced on a smaller scale by the relation between the great men and their dependants. A great thegn might have lesser thegns standing in a relation to him closely analogous to that in which he stood to the king 2. Thus from the earliest times there would exist in the various bodies of original settlers a princeps or lord, supposed to be sprung from a lineage higher than that of common humanity. In many cases there arose in this way a sort of hereditary chieftainship. Amongst his other functions, the chief, prince, or king is supreme over the land. He has himself the most extensive rights of enjoyment over it, and he has the power of granting similar rights to others. Thus he passes into the lord of the district-of the land itself, as well as of the men who dwell thereon. When his district or petty kingdom becomes merged in and subject to a larger kingdom, he in his turn becomes subordinate to the superior prince. There is not yet any formal surrender and regrant of the land; but the supremacy of the superior prince is acknowledged, as in other matters, so in making grants of portions of the district of which the inferior is lord. There is as yet no distinct conception of the relation of superior lord, mesne lord, and tenant; but there is a relation which by an easy transition may assume those feudal characteristics. The development of these lords of districts no doubt was brought about in other ways than that above indicated. The grants of enormous tracts of land by the king and his witan must frequently have comprised whole village communities, 1 Stubbs, Const. Hist. i. pp. 152-157. 2 Ib. |