vailed before the Conquest of entire freedom of alienation both inter vivos and by will, at all events of bookland, except so far as this right is limited by the claims of the family. The history of the right of alienation inter vivos will be traced later: the right of alienation by will ceases altogether with the introduction of Norman law, except in some particular localities and boroughs, and is not revived till a new class of proprietary rights arises, which supersedes, in great measure, the old law.

(3) Upon the death of the landowner, his land, as a rule, descended to all the sons equally, as contrasted with the rule of primogeniture, which was of Norman introduction. The history of the law on this point will be noticed in reference to a passage in Glanvill1.

SECTION II.

EFFECTS OF THE NORMAN CONQUEST.

Such are the main outlines of the customary law of land prevailing among the Anglo-Saxons. It was of home-growth, and but little influenced by the legal ideas which had developed on the Continent since the decline of the Roman Empire. No doubt, in its framework and language, an Anglo-Saxon charter resembled those in use elsewhere; but this arises not so much from the identity of legal conceptions as from the fact that these instruments were everywhere drawn up by the clergy, who shared in the common training, ideas, and phraseology of the Universal Church 2.

We have seen that the early Teutonic customs had by the time of the Conquest developed into what may be called, for want of a better name, a kind of feudalism. There were, at all events, two of the principal elements of feudalism-the relation

1 Below, Chap. II. § 6.

2 See Sir F. Palgrave's Rise and Progress of the English Commonwealth, ii. p. cciv.

of king and thegn, of lord and man, and the development of great territorial lordships, of which by far the most numerous were those enjoyed by the king. We cannot doubt that these two elements of feudalism were becoming blended; that the thegn was gradually passing into the tenant in capite', the man of the lord of a district into his tenant. But these names, together with the whole apparatus of modern legal terminology, had not yet arisen.

Another type of feudalism had by the time of the Conquest been developed on the Continent. On the Continent the primitive Teutonic customs had been affected, not only, as in England, by the natural consequences of conquest and settlement of fresh lands, but by the fact that the inhabitants of the lands thus conquered were living in a state of culture and civilisation far superior to that of their conquerors. Hence it was that the barbarian tribes which overran Italy, Gaul, and Spain adopted the religion and laws of the conquered nations, modified to some extent by old barbarian usages. For the present purpose it is only important to notice the effect of this medley of barbarian usage and Roman law 2 upon the attributes of property in land.

A practice had arisen in the Empire of quartering soldiers upon frontier lands upon condition of their rendering service when called upon in the defence of the frontiers. Probably the conception of the tenure under which such soldiers held their lands was borrowed to some extent from the attributes of the interest in lands called emphyteusis. Though the emphyteuta (the person having the right) had an indefinite power of enjoyment and alienation, emphyteusis was nevertheless regarded as a jus in re aliena, as a right distinct in kind from the dominium or property in the land, which was considered to be re

1 A tenant-in-chief, that is, a tenant holding immediately of the king. 2 See Maine's Ancient Law, p. 364, and for an elaborate account of the causes which led to feudal tenure, Palgrave's Rise and Progress of the English Commonwealth, i. p. 495, etc., and ii. p. cciv.

tained by the dominus; notwithstanding the extensive character of the rights of the emphyteuta. The latter rights were enjoyed upon conditions created at their origin, the payment of a rent (pensio, canon) being the most usual. If the condition was broken the full beneficial right reverted to the dominus, and the emphyteusis ceased.

The barbarian settlers upon Roman territory seem to have been brought under the influence of these legal ideas, and a curious blending of them with the old Teutonic customs becomes apparent. Whether we regard the Teutonic conquests on the Continent, according to the older theory, to have been accomplished by principes each with their separate comitatus, or, according to the view of the latest authorities, to have been 'the work of the nations moving in entire order ',' as subjects of a king, the appropriation and re-allotment of conquered lands by the chief or king becomes the prominent feature of the new societies. Amongst the gifts which the chief or king makes to his followers or subjects, gifts of land become the most important. They receive the special name of beneficia. As in the case of emphyteusis, the subject of the gift is not regarded as the absolute property of the beneficiary. His enjoyment is conditional on his performing certain services; and these probably derive their character partly from the Teutonic notion of his relation to his princeps, partly from the Roman obligation of defensive service. The oath by which the comes became bound to the princeps passes into the act of doing homage to the lord and swearing fealty to him in return for the grant of lands. The land is held upon condition of rendering military service. If the condition is broken the land is forfeited to the donor. Thus arises the conception that from the gift new rights and duties flow, a tenure or relation of lord and tenant is created thereby.

1 See summary of the authorities on this subject in Stubbs, Const. Hist. i. p. 251, note 2.

These beneficia in process of time receive the name of feuda1, which in its earliest acceptation means land which has been granted to be held of the donor, as opposed to alodial land.

It was a further step in the direction of feudalism to turn alodial holders of land into holders of these beneficia or feuda. The lot of the conquered is always hard, and doubtless the alodial holder of land was glad to retain the enjoyment of a portion of his property on such terms as the conqueror chose to impose. The usual conditions were that the old free proprietor should become the 'man' of the conqueror, and should be bound to military service. Moreover, in those troubled times it often became a necessity for the poor alodial holder to enter into the train of retainers of a powerful lord in order to obtain protection: hence the practice of 'commendation,' of becoming the man or vassal of the lord, receiving in return the protection without which the preservation of life and property was impossible. An element in this process was the surrendering of the alodial lands, to be received back under the condition of rendering military or other service.

Such is in outline the probable account of the origin of the great

1 The word feudum is not found earlier than the close of the ninth century. Stubbs, Const. Hist. i. p. 251, note 1. Its etymology has given rise to much controversy. Blackstone (ii. p. 45) thinks that it comes from two words in the Northern languages, fee, signifying conditional stipend or reward, and odh, proprietas.' Sir F. Palgrave believes it to be simply a colloquial abbreviation of emphyteusis (Rise of English Commonwealth, ii. p. ccvii). Diez however (Etymologisches Wörterbuch der Romanischen Sprachen), sub voce FIO, shows that feudum is a Latin recoinage of a word sprung from an old Teutonic root-Lombardian fiu, Old High German fehu (vieh), Gothic faihu, signifying cattle, or, generally, property; cattle being probably amongst the earliest subjects of property (see sub voce FEOH in Bosworth's Anglo-Saxon Dictionary, and compare pecus, pecunia). Hence feudum, the d being added for euphony, (compare feuum in Domesday). Hence fief, fee, feoffment, etc.; and see Littré, Dictionnaire de la Langue Française, sub voce FIEF. Sir H. Maine (Early History of Institutions, p. 157, etc.) describes the creation amongst the ancient Irish of a relation analogous to that of lord and vassal by the gift of stock by the chief, and its voluntary or forced acceptance by the tribesman.

characteristic of feudalism-military tenure of lands; known in our law by the name of tenure in knight-service, or in chivalry.

It was created by the tie of homage, the solemn act by which the tenant acknowledged his lord as him of whom he held his land, and to whom he was bound to render service; and from which, on the other hand, arose the duty on the part of the lord of protecting his tenant. The lord himself (where the lord was other than the highest) was in the same way the vassal or tenant of some other over-lord. But between the superior or chief lord and the tenant who held his lands of the vassal of the superior lord there was no immediate relation of service and protection or otherwise.

The system of military tenure of lands prevailed in Normandy before the Conquest of England, and it seems probable that the customary law of that country had elaborated with some minuteness and technicality the various rights and duties of lord and tenant by military service1. They were his tenants bound to render to him military service whom William summoned when the news of the death of Edward was brought to him. The fact that by the terms of their tenure they were not bound to service beyond the sea caused him some difficulty2. The rapid introduction in the century succeeding the Conquest of a strict definition of the mutual duties of lord and tenant, and of a highly technical legal phraseology, leads to the conclusion that these must have been to some extent imported at the Conquest; and that amongst the Normans must have been found, what the Anglo-Saxons certainly did not possess, a class, if not of trained lawyers, at all events of men habituated to abstract reflection on the prevailing customs, able to express them in legal phraseology, and to draw conclusions from the established principles of customary law.

From the mixture of Anglo-Saxon customary law with the Norman, the blending process beginning under the influence of the strong rule of the Conqueror, and forced on with rapid

1 See Stubbs, Const. Hist. i. p. 249.

1 See Palgrave's Normandy and England, vol. iii. p. 300.

D