(Then follow the boundaries.)

Scripta est haec cartula his testibus consentientibus quorum inferius notantur nomina.

(Then follow the names. - Codex Diplomaticus, ii. p. 399, No. dix.)

CHARTER OF CNUT. A. D. 1033.

PREGNANTE imperpetuum Deo et Domino nostro Jhesu Christo, cum cujus imperio hic labentis saeculi prosperitas in adversis successibus sedulo permixta et conturbata cernitur, et omnia uisibilia et desiderabilia ornamenta hujus mundi ab ipsis amatoribus cotidie transeunt, ideo beati quique ac sapientes cum his fugitivis saeculi divitiis aeterna et jugiter permansura gaudia caelestis patriae magnopere adipisci properant, iccirco ego Cnut rex Anglorum caeterarumque gentium in circuitu persistentium gubernator et rector, quandam mei proprii juris portionem 1, VII terrae mansas, illo in loco ubi jamdudum solicolae illius regionis nomen imposuerunt Hortun, meo fideli ministro quem noti atque affines Boui appellare solent confirmo haereditatem, quatinus ille bene perfruatur ac perpetualiter possideat, quamdiu Deus per suam mirabilem misericordiam uitam illi et uitalem spiritum concedere uoluerit, deinde namque sibi succedenti cuicumque libuerit cleromoni jure haereditario derelinquat, ceu supradiximus, in aeternam haereditatem. Maneat igitur hoc nostrum consanguinitate paternae generationis, sexuque virili, perpetualiter consistat adscripta.' Rus etiam hoc modo donatum est, ut suum (? semen) masculum possideat et non femininum: et post obitum prosapiae illius, data sit tam villa quam universa terra, quae in sua potestate est, ad religiosam ecclesiam, quae nuncupatur Eofeshâm.' The case in the text of a grant for life with a further interest to one or two other persons for life, with ultimate reversion to the grantor, is by no means uncommon, especially in leases of church lands. An early Anglo-Saxon council had indeed prohibited such grants of a longer term than the life of the grantee, but this, which had probably never been well observed, had fallen into utter desuetude in the tenth century.'-Kemble, Cod. Dipl. i. p. xxxiv. The absence of technical language which prevailed to so great an extent after the Conquest is very remarkable in these grants of limited interests.

1 See above, p. 19.

2 It should be observed that even in this more elaborate form of charter there is no technical form of words used to express the nature of the estate which the grantee is to take or the manner in which it is to be held.

immobile donum aeterna libertate jocundum cum universis quae rite ad eundem locum pertinere dinoscuntur, tam in magnis quam in modicis rebus, in campis, pascuis, pratis, siluis, riuulis, aquarumque cursibus, excepto quod communi labore quod omnibus liquide patet, uidelicet expeditione, pontis constructione, arcisve munitione. Si autem tempore contigerit aliquo quempiam hominum aliquem antiquiorem librum contra istius libri libertatem producere pro nichilo computetur. Si quis autem tetri daemonis instinctu hoc nostrum decretum infringere uoluerit, sit ipse a sanctae Dei aecclesiae consortio separatus, et infernalibus aeternaliter flammis cum Juda Christi proditore cruciandus, nisi hic prius digna satisfactione poenituerit quod contra nostrum deliquit decretum. Acta vero est praesens pargameni scedula anno dominicae incarnationis millesimo XXXIII, indictione uero prima 2. Istis terminis supradicta terra circumgirata est.

(The boundaries follow in Anglo-Saxon.)

Ista cartula illorum testium testimonio est corroborata quorum hic uocabula litteris uidentur caraxata. Ego Cnut gubernator sceptri huius insulae hanc nostri decreti breuiunculam almae crucis notamine muniens roboraui. Ego Æðelnoð Dorouernensis archiepiscopus consensi et subscripsi. Ego Elfric archiepiscopus corroboraui. Ego Brihtwold episcopus confirmaui. Ego Elfwine episcopus, etc.-(Codex Diplomaticus, vi. p. 180. No. mcccxviii.)

§ 2. A Feoffment in Fee of the time of Henry II.

A comparison of the following document with the AngloSaxon grants above given will illustrate the main features of the change which took place in the law of land after the Conquest. It should be especially observed that the charter purports only to be evidence of a grant which had already taken place. The grant of the freehold is effected by actual delivery of the possession, the words written or spoken point out the nature and extent of the interest taken. Then follow

1 See above, p. 13.

2 As to the indictions or cycles of fifteen years, see Kemble, Cod. Dipl. i. lxxvii.

the words sibi et haeredibus suis, which have now a technical signification, and denote that the interest to be taken by the grantee is a fee1, or an estate of inheritance; in other words, an estate descendible to the heirs of the grantee so long as any are in existence, as opposed to an estate given to last only during the grantee's own life. Then follow the words which form the great characteristic of grants of land for the period extending from the reign of Henry II to the eighteenth year of Edward I, tenendum de me et haeredibus meis.' There is no longer the conception that property in land is absolute, the property is divided between the tenant in actual possession and his lord, or if there be more than one superior lord, between the tenant, the mesne lord, and the king, each 'holding of' the other. If any subordinate interest, say for instance that of the tenant in possession, is eliminated, the whole of such interest at once devolves upon his immediate superior. So if the heirs of the tenant fail, the land ́escheats' to the immediately superior lord. Thus in consequence of this relation between tenant and lord, the tenant's interest is regarded as something less than the whole property as an estate of greater or less extent in point of duration, for instance as lasting only for his life, or till all his legitimate heirs have failed. Henceforth therefore the law speaks of estates, and not of property or ownership in land. The notion of tenure also involves the notion of correlative rights and duties existing between the lord and his tenant, of which the service reserved in the grant is the principal. The service mentioned in the following grant is that which is regularly due for a single knight's fee 2. The latter part of the charter follows the character of the forms in use before the Conquest.

1 Fee has now two senses: (1) it means land holden of a lord, as opposed to land owned alodially=fief; (2) an estate of inheritance, as opposed to an estate for life-feodum as opposed to liberum tenementum, also used in a secondary sense for an estate for life. Feodum or fee usually bears the second of the above senses.

2 See more on this point, below, Chap. III. § 11.

FEOFFMENT IN FEE.

RICARDUS de Luci omnibus hominibus suis atque amicis Francis et Anglis tam praesentibus quam futuris totius Angliae salutem. Sciatis me dedisse et concessisse Radulfo Britono Terram Chiggewillae cum omnibus pertinentibus eidem terrae sibi et haeredibus suis1 ad tenendum de me et de haeredibus meis in feodo et haereditate per servicium unius militis 2. Quare volo et firmiter praecipio quod idem Radulfus et haeredes sui terram illam teneant in bene et in pace et libere et quiete et honorifice, in bosco et plano in pratis et pasturis in aquis in viis et semitis et in omnibus aliis rebus quae terrae illi pertinent. Testibus, etc.—(Madox, Formulare Anglicanum, No. cclxxxviii.)

1 For the effect of these words see below, Chap. III. § 15.

That is, the service of a single knight or fully-armed horseman to serve at his own expense for forty days in the year (Stubbs, Const. Hist. i. p. 432). This is the usual form for expressing that the lands are to be held by actual military service. The minimum of land constituting a knight's fee seems by this time to have been fixed at the area which was worth twenty pounds annual value. See Stubbs, Const. Hist. i. p. 264. For an account of the probable history of the gradual introduction of knights' fees, see Stubbs, ib. p. 262, and above, pp. 36, 40.

CHAPTER II.

STATE OF THE LAW RELATING TO LAND IN THE REIGN OF HENRY II.

IN the preceding chapter an attempt has been made to trace

the working of the various elements of which the common law relating to land is composed. It has been seen that the convergence of distinct streams of customary law, aided by the process of conquest and settlement of the land and the growth of political organisation under a powerful ruler, had resulted in the establishment of a general body of law prevailing throughout the country, with some variations in particular localities.

This body of law may properly be called customary law. It rests for the most part not on any distinct enactment of a legislator or body of legislators, nor does it appeal for its authority to recorded judicial decisions. At the same time it fixes the rights and duties of the inhabitants of the country, it is recognised and enforced by the authority of the assemblies and tribunals. In this early stage of legal history law and custom cannot be distinguished. That a practice is customary is all the justification which would be required if its legality were called in question'. In a maturer state of society the distinction between law and custom comes to be clearly marked, though the unhappy phraseology of our legal text-books has tended to obscure the matter by identifying custom with the common law2.

1 See Maine's Village Communities, p. 68.

2 See Blackstone, i. p. 68. On the distinction between custom and law, and the inaccuracy involved in speaking of custom as a source of law, see Austin's Jurisprudence (Campbell's edition), pp. 553-560. Mr. Austin's analysis should however be taken with the qualification suggested by Sir H. Maine (Village Communities, pp. 66–68), that it is applicable only to a mature system of jurisprudence, and not to law in its earlier stages.