The History of English Law before the Time of Edward I. Frederic William Maitland

place it draws our attention to but one element in a complex state of society and that element is not the most distinctive: it draws our attention only to the prevalence of dependent and derivative land [p.44] tenure.⁸ This however may well exist in an age which cannot be called feudal in any tolerable sense. What is characteristic of “the feudal period” is not the relationship between letter and hirer, or lender and borrower of land, but the relationship between lord and vassal, or rather it is the union of these two relationships. Were we free to invent new terms, we might find feudo-vassalism more serviceable than feudalism. But the difficulty is not one which could be solved by any merely verbal devices. The impossible task that has been set before the word feudalism is that of making a single idea represent a very large piece of the world’s history, represent the France, Italy, Germany, England, of every century from the eighth or ninth to the fourteenth or fifteenth. Shall we say that French feudalism reached its zenith under Louis d’Outre-Mer or under Saint Louis, that William of Normandy introduced feudalism into England or saved England from feudalism, that Bracton is the greatest of English feudists or that he never misses an opportunity of showing a strong anti-feudal bias? It would be possible to maintain all or any of these opinions, so vague is our use of the term in question. What would be the features of an ideally feudal state? What powers, for example, would the king have: in particular, what powers over the vassals of his vassals? Such a question has no answer, for the ideal does not remain the same from century to century, and in one and the same land at one and the same time different men have different ideals: the king has his opinion of what a king should be; his vassals have another opinion. The history of feudal law is the history of a series of changes which leave unchanged little that is of any real importance.

Feudalism in Normandy.This, if true of the whole, is true of every element of feudalism, and true in the first place of that element whence it takes its name. In England from almost, if not quite, the earliest moment of its appearance, the word feodum seems not merely to imply, but to denote, a heritable, though a dependent right. But if on the continent we trace back the use of this word, we find it becoming interchangeable [p.45] with beneficium, and if we go back further we find beneficium interchangeable with precarium. A tenancy at will has, we may say, become a tenancy in fee; but we cannot speak of a tenancy at will and a tenancy in fee in one breath.⁹ The Norman conquest of England occurs at a particular moment in the history of this process. It has already gone far; the words feum, feudum, feodum are fast supplanting beneficium; the feodum is hereditary; men now see little difference between the feodum and the alodus or alodium, the fullest ownership that there can be. And yet a trait of precariousness clings to the fee; it is easily forfeitable, and the lord’s rights in the land appear in the shape of reliefs and wardships. So also with vassalism. Time was when the vassus was an unfreeman, though that time has long since passed away, and some vassals of the king of the French are apt to behave as sovereign princes. So again with that most essential element of feudalism, jurisdiction in private hands, the lord’s court. Its growth, whether we have regard to England or to the continent, seems the obscurest of all problems, for the law is rapidly shifting and changing just at the time when it is leaving the fewest explicit memorials of its shifts and changes. And it is so preeminently with the political character of feudalism. Is the feudal tie the loose bond—hardly other than an alliance between two sovereigns—which binds the duke of the Normans to the king of the French? Does the duke conceive that it is but a similar tie that binds his viscounts and barons to him? Often enough such questions must be solved by the sword; there is no impartial tribunal for their solution. It is characteristic of the time that rights of sovereignty shade off into rights of property: the same terms and formulas cover them both: the line between them is drawn by force rather than by theory. This had been so in Normandy. Every moment at which the duke was weak had been marked by rebellions. Duke William had been stern and victorious and had reduced his vassals to submission; but so soon as he was dead there was another era of anarchy and private war. Indeed a first glance at the [p.46] Norman chronicles might induce us to say that the Normans had little law beyond “the good old rule, the simple plan.” But lawlessness is often a superficial phenomenon and whenever the duke was strong enough to keep the peace then law revived. We hear the same of England: times of “unlaw” alternate with times of law. At one moment prudent travellers journey in parties of twenty, at the next a girl may go from end to end of the realm and fear no harm. All depends upon the ruling man. To say then of the Norman law of William’s day that it was feudal, is to say little; but it would be difficult for us to say more without going beyond the direct and contemporary evidence or repeating what has elsewhere been admirably said of the history of feudalism in general. But a few traits may be noted.

Dependent land tenure.To the great generalization which governs the whole scheme of Domesday Book, the theory that every acre of land is immediately or mediately “held of” the sovereign lord, the Normans in their own country may not have arrived. But Domesday Book by itself would suffice to show that it was not far from their minds, and in the Norman charters we frequently discover the phenomena of dependent tenure. The rich man who wishes to endow a religious house endows it with land; but in many cases we see that he is not an absolute owner of the land that he gives, or at all events is not the only person interested in it. The land is held by tenants of divers classes, milites, vavassores, hospites, coloni, conditionarii, villani, rustici, and these tenants (that is to say, his rights over these tenants) he gives to the church.¹⁰ But further, if he has subordinates who have rights in the land, he has also superiors with rights in the land; he makes the gift with the consent of his lord; that lord’s confirmation is confirmed by the duke of the Normans, perhaps it is even confirmed once more by the duke or king of the French.¹¹ Of [p.47] the alodium we often read, and occasionally it is contrasted with the beneficium, the one still meaning full ownership, the other dependent, and in some degree precarious, tenure.¹² But the two are being fused together. Sometimes the alodium is held of a lord and the alodial owner does not dispose of it, without his lord’s consent; nay, the lord has rights over him and over it, and those rights can be conveyed to a third person.¹³ On the other hand, the beneficium has gone half-way to meet the alodium. The viscounts and barons of Normandy held beneficia, feoda, honores of the duke; in return they owed him military service, though the precise amount of the service may not have been fixed.¹⁴ We need not suppose that this had [p.48] been so from the first, from the day when, according to Norman tradition, Hrolf roped out the land and distributed it among his followers.¹⁵ Whatever may have been the terms upon which Hrolf received Normandy from Charles the Simple—and the Norman tale was that he received it as the most absolute alodium¹⁶—his successors were conceived as holding a fief of the kings of the French in return for homage and service; and so, whatever may have been the terms on which Hrolf’s followers acquired their lands, their successors were conceived as holding benefices or fiefs of the dukes of the Normans in return for homage and service. From the first the rights of the Norman nobles seem to have been hereditary. It may well be, however, that there was an element of precariousness in their tenure, an element which appears in later days in the shape of the duke’s right to reliefs and wardships, and certainly their hold on the land was not sufficiently secure to prevent him from habitually having splendid fiefs to give away to his kinsfolk.¹⁷ On the eve [p.49]of the conquest of England many of the great houses owed their greatness to some more or less legitimate relationship—legitimacy was a matter of degree—between them and the ducal family. Still the feoda were hereditary, and seemingly even women might inherit them. The alodium and the beneficium were meeting in the feodum. A new scheme of proprietary rights, of dependent proprietary rights, was being fashioned, and into that scheme every acre of a conquered kingdom might be brought.¹⁸

Seignorial justice.Some such scheme of dependent ownership is necessary if among the subjects of proprietary rights are to be reckoned justice and office. It can never be suffered that one who is not a sovereign prince should own a jurisdiction in the absolute sense