but the gulf between them has been widened and deepened both by feudalism and by the evolution of the ecclesiastical jurisdiction. We shall be better able to explore this gulf when, having spoken of lands, we turn to speak of chattels; but even at the outset we shall do well to observe, that if in the thirteenth century the chasm is already as wide as it will ever be, its depth has yet to be increased by the operation of legal theory. The facts to which the lawyers of a later day will point when they use the word "hereditaments" and when they contrast "real" with "personal property are. already in existence, though some of them are new; but these terms are not yet in use. Still more important is it to observe that Glanvill and Bracton-at the suggestion, it may be, of foreign jurisprudence-can pass from movables to immovables and then back to movables with an ease which their successors may envy. Bracton discourses at length about the ownership of things (rerum), and though now and again he has to distinguish between res mobiles and res immobiles, and though when he speaks of a res without any qualifying adjective, he is thinking chiefly of land, still he finds a great deal to say about things and the ownership of things which is to hold good whatever be the nature of the things in question. The tenant in fee who holds land in demesne, is, like the owner of a chattel, dominus rei; he is proprietarius; he has dominium et proprietatem rei. That the law of England knows no ownership of land, or will concede such ownership only to the king, is a dogma that has never entered the head of Glanvill or of Bracton.

But we ought to hesitate long before we condemn Bracton and those founders of the common law whose spokesman he was, for calling the tenant in demesne an owner and proprietor of an immovable thing. Only three courses were open to them: (1) To deny that any land in England is owned; (2) to ascribe the ownership of the whole country to the king; (3) to hold that an owner is none the less an owner because he and his land owe services to the king or to

some other lord. We can hardly doubt that they were right in choosing the third path; the second plunges into obvious falsehood; the first leads to a barren paradox. . . As a matter of fact, the services that the tenant in fee owed for his land were seldom very onerous; often they were nominal; often, as in the case of military service, scutage and suit of court, they fell within what we should regard as the limits of public law. Again, it could hardly be said that the tenant's rights were conditioned by the performance of these services, for the lord, unless he kept up an efficient court of his own, could not recover possession of the land though the services were in arrear. The tenant, again, might use or abuse or waste the land as pleased him best. If the lord entered on the land, unless it were to distrain-and distress was a risky process he was trespassing on another man's soil; if he ejected the tenant "without a judgment," he was guilty of a disseisin. As against all third persons it was the tenant in desmesne who represented the land; if a stranger trespassed on it or filched part of it away, he wronged the tenant, not the lord. And then the king's court had been securing to the tenant a wide liberty of alienation-for an owner must be able to alienate what he owns. The feudal casualties might indeed press heavily upon the tenant, but they need not be regarded as restrictions on ownership. An infant land-owner must be in ward to some one, and to some one who as a matter of course will be entitled to make a profit of the wardship; but if a boy's ownership of his land would not be impaired by his being in ward to an uncle, why should it be impaired by his being in ward to his lord? If the tenant commits felony, his lands will escheat to his lord; but his chattels also will be forfeited, and it may well be that this same lord (since he enjoys the franchise known as catalla fclonum) will take them. It is very possible that Bracton saw the Roman land-owner of the classical age holding his land "of " the emperor by homage and service; it was common knowledge that the modern Roman emperor was surrounded by feudatories; but at any rate there was no

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

DIGBY, HIST. REAL PROP., Ch. I., sec. 1, § 2. Bookland 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