trinoda necessitas, is now said to be held by the tenure called libera eleemosyna (free alms or frankalmoign1). It is however still regarded as free from all temporal dues, and the religious corporation is only bound to spiritual service. The services. due to the king, which if rendered to one of less exalted rank would have been considered degrading to a freeman, were still in the time of Domesday rendered by the taini regis', but were no doubt becoming connected with the holding of land, and passing into the exalted tenure of magnum servitium, or grand serjeanty3. Hence it was that lands held by this tenure can only be held of the king. But most important of all is tenure per militiam, in chivalry or by knight-service. Here again the evidence afforded by Domesday seems to show that this species of tenure had not yet definitely taken its place in the legal classification of rights of property, but was gradually becoming recognised. No doubt military tenure first prevailed between the king and his immediate tenants-those who had actually received new grants of land, or their old lands regranted to them. By the Anglo-Saxon law the public duty was imposed on such tenants of rendering military service for the defence of the country. Continental feudal notions

1 See Ellis, General Introduction to Domesday, i. p. 258. The word is however used in Domesday in a more general sense, and is sometimes applied to the case of restoration of lands to a layman which had been held by his father or himself. See Freeman, Norman Conq., v. pp. 31, 804-806. 2 Ellis, General Introduction to Domesday, i. p. 45.

3 This name does not appear in Domesday. No doubt at that time the accurate distinction between different species of tenure had not arisen. Probably these distinctions were not accurately drawn till the great impulse given to the development of the Common Law by the action of the tribunals organised by Henry the Second.

We find however in two passages the expression (i. 10 b, and i. 32) 'servitium unius militis' applied to a new tenure; this became the regular technical term for the military service due for a knight's fee. 'T.R.E. (tempore regis Edwardi) valebat XL sol. et post L sol. modo IIII lib. et servitium unius militis.' (Ellis, General Introduction, i. 262.) Tenants holding of the king are sometimes spoken of as 'barones regis.' According to Sir H. Ellis, i. p. 58, ‘miles' has not acquired the technical sense of 'knight.'

would transform this public duty into the obligation of rendering military service to the king as lord of the tenants' land. But his position as king as well as lord was never wholly lost sight of. If a mesne lord, that is a lord who was himself a tenant of the king or of some superior lord, made a grant of land to be held of himself by military services, though the land was of course held of the mesne lord, the military service, as has been seen, was regarded as due not to the immediate lord but to the king1. There is much that is obscure in the history of the growth of military tenure. There are some recorded instances soon after the Conquest of exemptions from the general obligation of military service being obtained in favour of some lands in consideration of other lands being bound by an obligation to furnish a certain number of milites. It seems probable that the general extension of the practice of exempting some lands from military service and burdening others led to the distinction between military and non-military tenure which exists in its complete form by the beginning of the reign of Henry II.

Besides the duty of military service which constituted the essential characteristic of tenure in chivalry, various incidental rights and duties came to be attached to the relation of lord and tenant per militiam, some of which became the most important attributes of that relation 3. The first in order of time was that of relief, or the dues which the heir of the tenant was bound to render to his lord on being admitted tenant and rendering homage. This was confounded with the custom of rendering heriots on the death of the man or vassal which prevailed before the Conquest. The origin however of the

1 See Bracton, fol. 35, given in Chap. III. § 11.

2 See Stubbs, Const. Hist. i. 264.

3 Mr. Freeman attributes the development and organisation of the system of feudal burdens to the 'malignant genius' of Randolf Flambard, minister of William Rufus. Norman Conq., v. 377, etc.

See the Laws of Cnut (71, 72) as to the amount of heriots due upon the death of an eorl, a king's thegn, etc.; Stubbs, Select Charters, p. 73. From this law was borrowed the provision of William I as to reliefs :-' De

practice of rendering heriots and of paying reliefs was different. The heriot probably originated in the practice of returning to the princeps the horse or the armour with which he had furnished the comes1: it was of purely Teutonic origin2. The relief originated with the practice of regarding lands as benefices to be held of the grantor. The admission of the heir as tenant in his ancestor's place was by the feudal theory a favour to be bought with a price, but which could not, if the proper steps were taken, be withheld by the lord. It was thus entirely a result of the conception of tenure3.

The aid for marrying the eldest daughter of the lord is recorded as having been taken for the daughter of Henry I on her marriage with the Emperor. It appears however to have been levied as a tax on all land, not exclusively from the tenants in chivalry. These auxilia or aids were apparently not at first strictly defined, limits were probably imposed on them by customs which were observed or exceeded according to the rapacity or power of the lord. Finally, they were restricted to a reasonable aid for ransoming the lord if he were taken captive, for making the eldest son a knight, and for marrying once the eldest daughter".

relief a cunte ki al rei afert-viii cheuals enfrenez e enscelez (les iiii) e iiii haubercs e iiii haumes e iiii escuz e iiii lances e iiii espees. Les autres ii chaceurs et ii palefreis a freins et a cheuestres.' (Thorpe's Ancient Laws and Institutes, p. 474.) Similar provisions follow as to the relief to be paid by barons, vavassors, and villeins. It is probably from the existence of this law of Cnut's that the idea has arisen that heriots are exclusively of Danish origin.

1 See the passage in Tacitus given above, p. 20, note 3; 'exigunt enim principis sui liberalitate illum bellatorem equum, illam cruentam victricemque frameam.'

2 See Kemble's Saxons in England, i. p. 178.

3 See further as to reliefs, below, ch. II. § 4 (1).

* Anno igitur sequenti data est filia regis imperatori, ut breviter dicam, sicut decuit; Rex itaque cepit de unaquaque hida Angliae tres solidos.'Henr. Huntingd., Hist. lib. vii; Stubbs, Select Charters, p. 95.

5 See Magna Carta (John), cc. 12 and 15; below, ch. II. § 4 (1), and III. § 5; Blackstone, ii. p. 64; and the Statute' Confirmatio Cartarum,' 25 Edw. I.

The incidents of the greatest importance are those of wardship and marriage. These became rights of the greatest value to the lord, and most burdensome to the tenant. They are frequently spoken of as if they constituted the essence of tenure. Pure feudalism had but a short life in England. These incidents of tenure, the only justification of which was to be found in their aiding towards tho completeness of the military tie between lord and tenant, soon lost every rational. basis. It appears from the charter of Henry I, that the widow or some other near relation was to be allowed by their lord to be the guardian of the children1. It will be seen that by the time of Glanvill the lord had acquired the right of assuming the guardianship of the person of the minor and of his lands, restoring them to him on his coming of age without accounting for the mesne profits 2. Further, the heir on coming of age was obliged to purchase the delivery of the lands (called livery or ousterlemain) by payment of a fine of half a year's profits of the land.

Some traces of the right of the lord to consent to the marriage of the daughter or sister of a tenant appear in the time of Domesday 3. In the time of Henry I, the lord simply has the right to prevent the daughter of his tenant being given in marriage to his enemy *. The absolute right of the lord to the

1 'Si vero uxor cum liberis remanserit, dotem quidem et maritationem habebit, dum corpus suum legitime servaverit, et eam non dabo nisi secundum velle suum. Et terrae et liberorum custos erit sive uxor sive alius propinquorum qui justius esse debeat. Et praecipio quod barones mei similiter se contineant erga filios et filias vel uxores hominum suorum.'-Charter of Henry I, c. 4; Stubbs, Select Charters, p. 97. 2 See below, Chap. II. § 3 (2).

3 See Freeman, Norman Conq., v. 374, and compare the following entry: 'Hanc terram tenuit Sirof de episcopo tempore Regis Edwardi, quo mortuo dedit episcopus filiam ejus cum hac terra cuidam suo militi, qui et matrem pasceret, et episcopo inde serviret.' i. fol. 173; and see below, Chap. II. § 4 (4); Chap. III. § 3.

4 Si quis baronum vel aliorum hominum meorum filiam suam nuptura tradere voluerit sive sororem sive neptim sive cognatam, mecum inde loquatur; sed neque ego aliquid de suo pro hac licentia accipiam, neque defendam ei quin eam det, excepto si eam vellet jungere inimico meo.

disposal of the daughter of his tenant in marriage is recognised by Glanvill in the strongest terms, but it was not till the reign of Henry III that, by an iniquitous construction of a clause in Magna Carta, the lords extended their claim to the marriage of the sons of the tenant as well. The practice had by this time lost any shadow of justification on feudal grounds; originating simply with the grasping and illegal avarice of the great lords, it passed into a firmly established right of property.

One of the most valuable of the lord's rights was that of escheat, or the right of having the lands of the tenant on failure of his heirs. This right arises directly from the relation of lord and tenant. The tenant is conceived as having only an estate in the lands—an interest which though it may be capable of descending to heirs, in infinitum, was something short of absolute ownership. The lord has a possibility of the lands reverting to him, which the tenant cannot defeat.

Such are the main characteristics of the relation of lord and tenant in chivalry. It does not appear that in early times there was any difference, except in the leading feature of military service, between the rights of the king and of any mesne lord. The law as to aids, reliefs, marriage, and wardship was the same in both cases 1.

§ 3. Development of the Manorial System.

It has been seen that before the Conquest large districts of land were held by persons or corporations, the dwellers upon

Et si mortuo barone sive alio homine meo filia haeres remanserit, illam dabo consilio baronum meorum cum terra sua. Et si mortuo viro uxor ejus remanserit et sine liberis fuerit, dotem suam et maritationem habebit, et eam non dabo marito nisi secundum velle suum.'-Charter of Liberties of Henry I, c. 3; Stubbs, Select Charters, p. 97. By the Ordonnances of St. Lewis (ch. 63, Isambert, ii. p. 433) it appears that the right of the lord to a veto on marriage only existed in the case of the daughter of a tenant after the death of the father.

1 It appears that in later times special rights were claimed by the king, which were not claimable by mesne lords. Of these the principal were primer seisins and fines on alienation. Blackstone, ii. 66, 71.