unfathomable chasm between the English tenancy in fee and that dominium of which the Institutes speak.

Bookland

DIGBY, HIST. REAL PROP., Ch. I., sec. 1, § 2. and Folkland.-From very early times it was common to make grants of land to religious bodies or to individuals. The grants were effected by the king as the chief of the community, with the consent of the great men, who in conjunction with the great ecclesiastics, after the introduction of Christianity, formed the Witenagemot, or Assembly of the Wise. The grant was made by means of a "book or charter. Land thus granted was said to be "booked" to the grantee, and was called bocland or bookland. Thus bookland comes to mean land held under a written instrument by private persons or churches, who or whose predecessors are, or at least are supposed to have been, grantees of the community. The practice seems, after the introduction of Christianity, to have prevailed chiefly in favor of religious houses, and in this way the great ecclesiastical corporations acquired their property. Frequent gifts were also made to individuals, chiefly the king's thegns or ministri.

In process of time the conception of bookland seems to be coextensive with that of alodial land. The term "alodial" originally had no necessary reference to the mode in which the ownership of land had been conferred; it simply meant land held in absolute ownership, not in dependence upon any other body or person in whom the proprietary rights were supposed to reside, or to whom the possessor of the land was bound to render service. It would thus properly apply to the land which in the original settlement had been allotted to individuals, while bookland was primarily applicable to land the title to which rested on a formal grant. Before long, however, the words appear to have been used synonymously to express land held in absolute ownership, the subject of free disposition inter vivos or by will..

As a general rule, when such a grant was made to an

individual, it is expressed in the charter itself that he is to hold the land free from all burdens, that he is to be under no obligation to render anything in the shape of money payment or services of any kind to the grantor of the land, with the exception of the threefold service, the trinoda necessitas, to which all lands were subject. This consisted of the duty of rendering military service (expeditio), and of repairing bridges and fortresses (pontis arcisve constructio). These were duties imposed on all landholders, distinct from the feudal services of later times, but tending more and more to become duties attaching to the possession of the land owed to and capable of being enforced by the king or the great man of the district.

ID., Ch. I., sec. II. The principal agents by which alodial owners of land were turned into feudal tenants were probably conquest and need of protection. 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 characteristic of feudalism-military tenure of lands; known in our law by the name of tenure in knightservice, or in chivalry.

CHAPTER II.

FEUDAL TENURE.

(a) In General.

Co. LIT., I, a. "Tenant," in Latin tenens, is derived of the verbe teneo, and hath in the law five significations. 2. It signifieth the tenure or the service whereby the lands and tenements be holden; . . and he is called a tenant [or holder] because he holdeth of some superior lord by some service. And therefore the king in this sense cannot be said to be a tenant, because he hath no superior but God Almighty.

ID., 191, a. Sir Henry Spelman, after Cujas, defines a fief to be, "A right which the vassal hath in land, or some immoveable thing of his lord's, to use the same, and take the profits thereof, hereditarily, rendering unto his lord such feudal duties and services as belong to military tenure; the mere propriety of the soil always remaining to the lord." This definition appears accurate and comprehensive and an analysis of it may point out those peculiar and characteristick marks which distinguish the feudal law from every other law. Ist. Where the soil, and the right to the profits of the soil, meet in the same person, he may be said to have an absolute and unmixed estate in his land. This absolute and unmixed estate, the subject of every kingdom not governed by the feudal polity, so far as respects the relation between sovereign and subject, appears to possess. But, by the feudal law, with respect to the relation between the sovereign and the subject, the right to the soil, and the right to

the profits of the soil, were separate; the tenant being invested with the latter, the sovereign continuing to be intitled to the former. This right to the profits was of the most extensive nature; it gave the tenant, except for the purpose of alienation, the complete power or dominion over the land during the term of his tenure. This right

in the vassal to the use and profits of the land, while the direct dominion of the land remained in the lord, was, with respect to the relation between the sovereign and the subject, a new and original point of connexion, and one of those marks which distinguish the feudal from every other law.

2. Another of these marks is, that immoveable or real property only was admitted to be held in feudality, or, in other words, to be the substance of a fief. Wherever the conquerors we speak of established themselves they seized whatever they desired of the property of the conquered, and the general allotted it to the superior officers of the army, and these again divided it, in smaller parcels, among the inferior officers. The moveable, as well as the immoveable property of the conquered was seized and divided by the conquerors; but moveable property, from its fluctuating and perishable nature, was ill calculated to serve, either as the sign or the subject of a permanent connection. This was particularly the case in those days when it had in no point of view acquired, or was considered susceptible of, those artificial modifications or other durable qualities, in the intendment of law, which it now possesses. Land, therefore, or immoveable property, alone, became the subject of feudal ten

ure.

But at the first establishment of fiefs, land or immoveable property, in the narrowest sense of that word, was the subject of a fief. That this species of property, to the utter exclusion of every species of moveables, should be a point of connexion between the sovereign and the subject, is another distinctive mark of feudality. To this it is owing, that while in this country, and in every other country whose. jurisprudence is of a feudal extraction, the difference be

tween real and personal, or immoveable and moveable property, is so strongly marked, and the legal qualities and incidents of the two species of property are, in so many important consequences, utterly dissimilar, the distinction between them in the civil law, except in the term of prescription, is seldom discoverable.

3. The remaining point of difference between the feudal polity and the polity of other states is, the nature of the relation between the chief and the vassals. This is particularly distinguishable by six circumstances: Istly, The relation. between them was purely of a military nature; 2dly, Behind the sovereign and his immediate feudatories there followed a numerous train of arrere vassals, or sub-feudatories, between whom and the first or immediate feudatory there subsisted a relation nearly similar to that between him and the first or chief lord; 3rdly, This relation was territorial, and was not considered to arise from the general allegiance due from a subject to a sovereign, but from an implied obligation supposed to be annexed to the tenure of the fee; 4thly, The right of administering justice was an appendage of this military relation, and originally commensurate to it in its territorial extent; 5thly, The lord was not allowed to alien the fee without his tenant's consent, nor the tenant without the consent of his lord; and 6thly, Though in point of dignity, of rank, and of honor, the lord, according to the ideas of those times, enjoyed a splendid pre-eminence over his vassals, his power over them was, comparatively speaking, extremely small. Thus, therefore, the supposed preservation of the dominium directum, or real ownership, to the lord, after he had parted with the beneficial ownership, or dominium utile, to the tenant; the exclusion of moveable property from serving either as the sign or the subject of the relation between the sovereign and the feudatory; and the military nature of this relation, including in it the other circumstances before noticed, should be considered as three principal points which distinguish the law of feuds from every other law.-Butler's note, 77, II.