Page:Harvard Law Review Volume 12.djvu/250

230 230 HARVARD LAW REVIEW. century more was to pass before it stood out as the supreme institution of English government. Feudalism, whatever we may think of its other effects, was the first moving cause of this inestimable blessing. The King was not only ruler in peace and commander in war, but the greatest of over-lords ; and the principle that a lord owed justice to the men who held their lands of him was already well established on the Continent. In the thirteenth century lawyers had become subtle enough to distinguish the King's public jurisdiction over his sub- jects from his private jurisdiction as lord over the smaller folk on his estates ; manors of " ancient demesne " were recognized as being under a peculiar law, which, though royal, was of a private nature. But this refinement had not yet been worked out in the Conqueror's age. Then the King's lordship was vastly increased by the wholesale confiscation which followed the Conquest. It seemed only right and natural, even without the aid of any tech- nical doctrine of forfeiture, that the King should take the lands of those who stood out against him. Much of the old book-land which had been free from any tie of over-lordship, though answer- able for the greater public burdens, thus fell into the King's hand. When it was given out again to the King's followers, it was given on terms of feudal tenure ; not so much on any deliberate ground of policy, as because a King of the English who had been and still was Duke of Normandy could hardly think of giving it in any other way. The practical result was great and speedy. For who- ever held immediately of the King was entitled to look to the King for justice. The churches which held estates — one should rather say districts in some cases — under royal land-books of vari- ous dates continued to hold them without any substantial change. But the idea of tenure was in fashion, and it was easy to construct a bond of lordship and service out of the undefined expectations of spiritual benefits which the pious founders or donors had em- bodied in their verbose preambles. As the man of war must fight for his lord, so the man of religion must pray for him and for the souls of his ancestors, though neither the amount nor the value of his service could be measured by any temporal standard. So the saints themselves (for men still personified a church or foundation by the name of its patron saint) became, in such sort as they might, the King's men; and "frank almoin," libera eleemosyna, appears in our classical law-books as a regular species of tenure, though all the ordinary incidents of tenure, including the oath of