Public Domain granted out by way of Feud-Subinfeudation. 282 whom he claimed to be his subjects, enabled him, without any violation of the principles of the ancient constitution, to seize a very large, perhaps the fairest, portion of the territory of England, as having escheated, or become forfeited to him as the head of the State, and now the owner, not administrator only, of the public domains. By this means, the existing remains of allodial title were almost wholly extinguished; and as William never granted out the dominium directum (a), *that description of title to land, as regards subjects, wholly disap[*283] peared. In granting out large portions of what he so seized, to be held by possessory title as feuds, William did but follow the course which, latterly at least, had been uniformly pursued by his Anglo-Saxon predecessors: the burdens which he imposed, the chief of which was military service to himself as lord, were those which had before been expressly reserved, or tactily implied, in every grant from the Anglo-Saxon sovereigns. Afterwards William secured by an oath a similar obligation from every possessor of land; a necessary precaution on the part of a conqueror, whose title was liable to be disputed. "Homage," or the act of one man becoming the "man" of another, was now confined to the holders of land; personal clientela was put an end to; a measure of policy which, perhaps, was necessary to prevent secret combinations. The homage of the holder of land was a security to the sovereign, the homager was known, and it ascended by regular gradations to the king as the ultimate lord; and the homage of the inferior vassal was made to bend to the allegiance due to the king. Still the ancient notion of mutual personal compact appears in the doctrine of Attornment. The incidents of Clientela (I am using, as it will be remembered, the Conqueror's own expression) were now defined and assimilated more nearly to the system which prevailed on the Continent of Europe, and which had there grown up precisely as it had in England; though the power which fortune and his own address had thrown into William's hands enabled him to bind his vassals to him by much stricter ties than those which connected the feudal vassals in the Continental States with their sovereign (b). The Norman lords, following the example of their sovereign, parceled out their ample domains to their dependents; who, again, had their own dependents, of various degrees, to provide for in like manner. Thus, without recapitulating the minor details, the tenure of land by feudatories and subfeudatories, or in other words, THE FEUDAL SYSTEM, became universal throughout England, as had already happened throughout the greatest part of the Continent of Europe (c).-Looking back to the events which followed the Norman Conquest, one is surprised that (a) It will be remembered that in the grants of public domain during the Empire the Dominium directum was always reserved to the Emperor, or the State, which was represented by the Emperor. (b) After the time of Charlemagne, the Imperial principle seems to have sensibly declined in France, Guizot, Cours d'Hist. VOL. I.-20 iv. 325. (c) The latest of the modern writers on this subject seem agreed that the Feudal System sprung up at the commencement of the ninth century, (about three hundred years after the irruption of the barbarians), and was perfected in the tenth and eleventh centuries. 283 [*284] man. Revolution in the Judicial Tribunals-Livery of Seisin. even the energy and determination which are "the "heir-looms of the Saxon race," should have preserved the name of English In the reign of the Conqueror, independent of ecclesiastical matters being withdrawn from the lay tribunals (a), that revolution in the constitution of the King's Court took place, which, perhaps, more than anything else, prepared the way for the establishment of the Common Law of England. A great officer was appointed, whose peculiar duty it was to superintend the administration of justice in the King's Court, and to be the expounder of the law (b). Besides which, special justices were sent by the king, from time to time, according to his pleasure, into the counties, with similar powers. In the succeeding reigns, the number of the justices of the King's Court was increased-the judicial business of the King's Court was separated from the legislative-and from various concurrent causes the King's Court (which in, or previously to the reign of John, was separated into two great courts, called the Court of Common Pleas and Court of King's Bench) (c), from having been the court of primary resort for the nobles only, became the ordinary tribunal for the administration of justice in all questions arising between subjects. Hence the law administered in the King's Court necessarily became the general, or common law of the land. The decisions of the justices in this court, who in all civil cases were the only expounders of the law, were recorded, and their recorded decisions formed the rudiments of a settled and uniform system of jurisprudence. The jurisdiction of the County and Hundred Courts, and Manor Courts, formerly the ordinary tribunals for the decision of civil controversies, soon became confined to cases of comparatively trifling moment (d).— Trial by jury, according to the modern form, now commenced. The next great event which has to be noticed, is the introduction of the study of the Roman law, in its complete state, which has been opened to all Europe in the reign of Stephen. After this time, the important doctrine, that no freehold estate could pass without livery of seisin (e), which, under the name of investiture, had before prevailed in some *parts of Europe, became part of the common law. By conse[*285] quence, as has been noticed under the proper title, the laws in regard to real property underwent some important changes. It became established as a rule, that all estates to take place at a future time, must be continuous; that is, must take effect in possession instantly, on the determination, by any means, of the preceding estate (ƒ). A substantive gift of a future estate, that is, unconnected with any previous estate, (a) Supra, p. 101. (d) Vide supra, p. 116. Sir Wm. Blackstone states, and the passage is passed over without comment in every edition including that of Mr Serjt. Stephen, (1845, p. 493,) that Edw. I. settled the boundaries of inferior courts in counties, hundreds, and manors, confining them to causes of no great mo ment, according to their primitive institution. This appears to me to be not merely unsupported by, but in direct contradiction to, all the monuments of Anglo-Saxon and AngloNorman history. (e) Glanville, lib. vii. c. 1. ed. Beames, p. 257; n. (1), sup. p. 119. (f) The maxim was, as regards estates to arise on the death of another, "le mort saisit le vif.” Livery of Seisin—its Consequences-Treatises on the Law. 285 though in reason no objection existed to such a gift, could no longer be made; nor could an estate once given be taken away, so as to be transferred to another, by means of any anticipatory provision or stipulation, however precise. We have observed, also, that after the period when the stores of the Roman law were opened, proceedings by action and by writ, with certain formal modes of procedure called Pleadings, were introduced, or at least were put forth in the writings of the sages of the law, as part of the Common Law of England. It followed, as a necessary consequence, that there was no right that the law could recognize, actively at least, unless there were an action by which it could be put in forcea circumstance that necessarily had a most important influence on civil rights themselves. The means that were taken in the time of Edward I., and afterwards, to extend the range of civil rights, which had been so greatly confined by the introduction of the system of proceeding by action, will be fresh in the recollection of the reader. We have seen that, so early as the reigns of Henry II. and III., a complete and comprehensive system was formed, which, having been perfected apparently in so short a time, if we were to look to it as a mere creation, would excite our astonishment. Systematic treatises (a), in which the principles of the common law were laid down and expounded, in a way that rendered them worthy of being referred to, as text books, by the greatest luminary of the law, Lord Coke, were compiled from recorded precedents, where such could be found; where this resource failed, by reference to the Corpus Juris itself-a circumstance that leads to the conclusion, that the Roman law, whether as it had been handed down by tradition, or as it was to be found in the Theodosian Code, and the treatises and books which had been from time to time in use amongst the clergy, had been for a long time before *largely resorted to by the justices of the King's Court, who, in the times [*286] we are contemplating, were almost universally of the Ecclesiastical order (b). The extent to which the principles and maxims of the Roman laws (a) "Glanville," says Dr. Irving, (who sets out the parallel passages of the prefaces to the Institutes and Glanville's Treatise,) has servilely copied Justinian, and the author of Fleta has servilely copied Glanville," Introd. to Civil Law, p. 93. (b) "Inasmuch as the law of all nations," says Lord C. J. Holt, "are doubtless raised out of the ruins of the Civil [Roman] Law, as all governments are sprung out of the Roman Empire, it must be owned that the principles of our law are borrowed from the Civil Law, and therefore governed by the same reason in many things," Lord C. J. Holt, 12 Mod. R. p. 482; and See Wood's Institute of the Civil Law, p. xi. ed. 1721, quoted in Dr. Irving's Introd. p. 95, to the same effect. The account which is given by Sir W. Blackstone in his Commentaries, vol. iv. p. 483-4, et seq. of the introduction of Norman subtleties into the English Law, has continued to be incorporated in all the editions of that excellent work, down to that of Mr. Serjt. Stephen, (published in the present year,) without the addition of any comment or authorities. Referring to what is said in a former page (p. 132) it is to be observed that, at the time when Glanville and Bracton wrote, the nation had again become English; I would besides remark, that, if any Norman laws and customs from which the Anglo-Norman Treatises could have been compiled had existed, surely some traces of them would have been discovered by the industrious inquiries of Mons. Houard, who has inserted Fleta (but without the preface), Glanville, and the Regiam Majestatem, in his collection of the Coutumes Anglo-Normandes. Bracton is discarded by him as being a Romanist. 286 Direct reference to Roman Law prohibited—Introduction of Uses. had been adopted in framing the then laws of England, is indicated by the remarkable fact, that the whole machinery of Common Law writs, by which alone the rights of property could be maintained or enforced, in the reign of Edward I., was committed to the discretion and the exclusive superintendence of persons who were Doctors of the Civil Law, and members of the clerical body, with an ecclesiastical dignitary, not a judge of either of the Common Law Courts, at their head (a). In the reign of Richard II., as will be particularly adverted to hereafter, all resort to the Roman law in the Common Law Courts ceased, just as it happened with the Visigoths, whose code was avowedly compiled, for the most part, from the Roman law. The judges were content with the treatises that had been written by their own countrymen (b), and the precedents which they found, and which they enlarged so far as their powers extended; the legislature, to some extent, also affording its aid. From this time, the Common Law may be considered as having become really English; that is, founded on decisions in the English courts, and the writings of English judges and jurists, and on the enactments of the English legislature. We look in vain in the records of the Common Law, which was thus constructed, and which is the basis of the present law of the land, for any remains of the Anglo-Saxon laws embodied in their codes, which can with any certainty be denominated native, excepting perhaps the succession to personal property in case of intestacy. *From the reign of Edward III. (c) to that of Henry VIII., no [*287] material alteration in the Common Law took place; but in the mean time (temp Edward IV.), the celebrated Judge Littleton had published his Treatise on Tenures. In a constitutional point of view, the publication of Fortescue's celebrated works in the reign of Henry VI., may also be considered as an era in our legal history. In the reign of Henry VIII. a great and important innovation took place, by the introduction of Uses as part of the Common Law. This subject will be fully explained hereafter (d). It may be sufficient here to state, that through the medium of the Court of Chancery, persons had been permitted to convey their estates, in legal form, to trustees, with directions that some other person should be permitted to enjoy the profits, for years, for life, or more extended interests; that is, that some other person might have the use of the estate. These directions were enforced by the Court of Chancery, without any reference to the doctrines of tenure, those doctrines being wholly inapplicable to such an interest, which conferred no estate, but left the estate, subject to all the feudal incidents, in the trustee; and, for the same reason, this contrivance afforded the means of evading the oppressive burdens which were incident to tenure, and of exercising the power of disposing of the beneficial ownership of the estate by will. Thus the rights and powers incident to allodial dominion, were, in effect, restored, to a great (a) V. supra, 238. (b) I do not mean to represent that I have actually seen any direct reference to Bracton and the other treatises before referred to in the Year Books, or that I have looked through them for that purpose. (c) Indeed, Sir Wm. Blackstone says, from the reign of Edw. I. 4 Bla. Com. ed. Stephen, p. 495. (d) Stat. 27 Hen. VIII. c. 10, of Uses. Statute of Uses-Abolition of Military Tenures-Registration. 287 extent, by the Court of Chancery. In the reign of Henry VIII. these uses were converted into legal estates. Many important consequences followed. All that it is necessary here to state, is, that future substantive interests in land to any extent (within certain limits), might be created, which the statute converted into legal estates; and estates given by way of use, and turned into legal estates, might be made to cease on some given event, and other estates to spring up, all of which was contrary to the rules of the Ancient Common Law. By means of uses, also, a ready mode was afforded of conveying land by secret conveyances, thus depriving of its effect the great principle of public policy which had caused the introduction of the doctrine of Livery of Seisin. This principle had, indeed, long before, in a great measure, lost its efficacy (a); and after the Statute of Uses no serious attempt to restore it appears to have been made. In the same reign, the general power of devising all freehold lands was introduced, which will also be *the subject of particular notice hereafter; and the Bankrupt laws took their rise. [*288] The next great event (which took place in the reign of James I.) was the collection of the law, as it was to be found in the Year Books, or annual reports of the decisions in the King's Courts, and in the reports of cases which were published by individual lawyers, and in the Treatises above referred to, and in the Acts of Parliament that had been passed affecting the law, into one body, by Sir Edward Coke, in what is called his First Institute, which, in the main, is law at the present day. The next important event was the abolition of the doctrine and consequences of military tenures. This took place in the reign of Charles II.; from that time, though all lands have continued to be held, it is by the humble, but simple tenure of common socage. The passing of the Statute of Distribution (which was probably taken from the 118th Novel of Justinian) (b), and of the Statute of Frauds (which, in part, carried out Constantine's Edict, so far as it had not already been adopted), also mark this era. In the reigns of Queen Ann. and George II., various statutes were passed for the registration of deeds relating to real estate in the counties of Middlesex (c) and York (d); but the object of those Acts was only to protect subsequent purchasers (e), not to revive the notoriety of seisin; several attempts have lately been made to accomplish this by means of a law for a general registration of all instruments affecting real estate, but they have hitherto been successfully resisted. We may now pass to the reign of William IV., in which reign, and that of her present Majesty, as will have been collected from the foregoing pages, many important statutes have been passed affecting property, and the mode of procedure in the courts of Common Law (f). (a) See Hayes, Introd. p. 29. (b) Dr. Irving's Introd. to Civil L. p. 98. deavored to bring together all the Acts of the last and present reign in any way relating to Civil Jurisprudence, most of which have been adverted to in the preceding Chapters. Those which relate solely to the Court of Chancery and its jurisdiction, are |