England and Normandy to this day are remarkable for nothing as much as their inveterate love of law business. It may be a tribute to their intellectual capacity that they have the most innate relish for the intricacies which to uninitiated minds seem the tortures of the region of nightmare. The stability from this conservative love of the past, and of its dicta as sacred, it is to be feared ready writers are not thankful enough for. Precedent is the cue-word to get at the secret of the whole time-enlaced system. Our courts of exchequer, king's bench, and so on with variety of titles, though to the weaker consideration they seem each as self-creative and self-existent at least as the sun, can be traced back, step by step, till we are in the presence of William the Conqueror and his dapifer in one room, who have swallowed up in their own powerful persons wigs, gowns, general paraphernalia, and the very judges themselves that are so awful to the popular eye. Justice, civil or criminal, was administered more simply and readily by the king or his vicar from his own bench or in his own counting-room, but on the very same principles as still hold. Lord chancellor downwards to barrister and attorney, are fair copies of what division of duties a sovereign had to do in simpler times, when a king's court did not mean merely a thing of exuberant feathers, low dresses, tight uniform, and futile ceremonial business, but the place where action was strongest, wisest, and of the kind we still associate with the word, where now no royal foot enters except on idle curiosity. This simple watching of the actual development of regal surroundings into universal legal rule through the country by substitutes, is fruitful of clear seeing also in respect to the chief interest about which law is engaged. Let land now be bound by ten times as many green or old withes as Samson was, there is a way of cutting through the knots, at least for the understanding. It is more than probable that violent actual dealing with tenures might be as dangerous to the body politic as unscientific surgery would be among the veins of the strongest human being. To see the inmost anatomy of the land system, in most countries, is the study of long lives; and in this country the extended, varied, and on the whole extra-ordinarily prosperous history of the nation makes the quest almost a hopeless one. In the earlier reigns there is perhaps most light to be found, the further process being mostly evolutionary.
Here it will he sufficient to draw such general lines of indication as may keep minds awake to the drift of what is meant by possessions in land. The feudal system, which essentially is that which exists, because legal action works still in its grooves, had three chief forms of tenure, not including the absolute possession of the sovereign or rather of the crown. The highest way of holding for a subject was called in capite, because none stood between the head of the state and him; all duties connected with the land being finally settled between them, with no interference except by free choice. That for long these duties were chiefly military, as the supplying and supporting so many soldiers for certain periods correspondent to the size of the feed or property, does not, as has been supposed, give special military colour to the principle of land tenures. In every sense the system is equally applicable to the civil duties of peace. As matter of fact, surely the dullest will see that the greater portion of the eight centuries since 1066 were devoted, not to the necessities of wars, but to the common course of national existence. Sweeping reforms are ignorant ones, as a rule; for the very things they are apt to abolish have to be set up again, and nearly always in a maimed and less healthy state.
At first the earls, who were not merely ornamental lord-lieutenants of counties, actually did justiciary business, now relegated to paid sheriffs; and it was to them the tenure in capite was given. The inevitable growth of claimants for office and title gradually usurped upon the privileged earls. Barons, who grew from various accidents of state, and particularly of royal service, became suitors. At one period, their importance in comparison with earls was calculated, somewhat arbitrarily of necessity, at the numbers 13.5 to 20. If this were right, it could have only been by miracle, and for but a moment. The growth of society in any of its ranks will not wait for the pedants. Barons became holders in capite; they secured rulerships of counties; if the ability were there, they could take the cakes from the very teeth of the fiercest earl that ever concussed a county into his own brave image. So afterwards with the knights, who were a still more difficult because more numerous section to keep out of the privileged fields. Sheriffships and coronerships opened ultimately even to the untitled, the new check discovered being merely the now well-worn one of money qualification. Land in capite grew as common as the commoners themselves, and the word “esquire” was invented to keep off the last degree of bareness.
The second form of tenure belongs almost by necessity to all periods of national growth. Under-tenantship, though its honourableness varies considerably, on the whole keeps a middle position of steady dignity. It swings between all but absolute proprietorship and the tenure of a farmer by lease. For the necessities of war or peace it was responsible to the earls as they in like manner were to the sovereign. There is nothing particular to be said of a state of life which cannot but be with much the same conditions while man's nature is as it is.
The varieties of freemen, socmen, villains, belong rather to folk-lore than state arrangements by law. It may be otherwise with the system of bondsmen, which was long so prominent a feature of English society. The troubles which it caused of wild rebellions and wide destruction of life, even in the select ranks, may have been necessary lessons to slothful statesmen. But the question has become for us merely an antiquarianism, having nothing to do with our actual conduct of life. The seething masses of slaves, however, which were always at the bottom of early English political difficulties, must never be forgotten as an actual element at work. To be food for the sword under leadership of ambitious nobles was their commonest experience; but their use thus, as a terrible instrument when organised, was only one of many ways in which they affected the life and morality of their fellows of other degrees.
The most distinctive of all the forms of tenure was that by serjeanty. Particular bravery in the field, favour at court, royal visit, and generally royal will and pleasure, gave in capite holding, and other serjeanty special privileges besides, to men of title or of none, to old men or to young; and for mere system-mongers this made a chaos of what they foolishly dub the feudal system, thinking they have got something real by calling names thus very loudly at the facts, which, being living things, are always metamorphosing for new necessities and requirements. No wise politician nails his colours to such a mast. Changes ? Yes, and welcome, if in the actual spirit of the facts; not otherwise. The royal ladies would seem also to have had privilege of conferring serjeanty. In law there came to be a whole department of business from this institution, though survival of the all but extinct legal title “Serjeant” is the most that is current of the much-desired system of tenure. There was something too poetic and free about it, and perhaps this is the right reason of its decline. To have an estate for the service of holding a towel before even the most dignified lady on state or religious occasion, savoured too much of Spanish chivalry and donism for our rational, and really more sentimental, because more sincere, natures. Anything that tends to being maudlin, cannot boast always, with impunity, in the slow but surely demolishing English presence. It needs precedents for everything; but it has faith in the honesty of the fathers, that they have somewhere met and dealt with just such unreal phenomena. Serjeanty, or romantic service, grand and petit, need not be depreciated; it was the natural appendage to the spirit of chivalry, which also did its valuable work, and then metamorphosed as speedily as it could into other form of fact.
Only the imbeciles hunt after the ghosts, which cannot but walk, after the life has found a new body. For a time the cannon's report must reverberate, but the work has been done long before the echoes are over. Appropriations, alienations, mortgagings, conveyancings, processes of kinds as numerous as men's wits are quick to make varieties when acuteness and suppleness are at market and high price, fill the limbo of legal history to overflowing. For present use, the main lines on which land has been and still is possessed, are quite enough. To show that the most intricate transactions are soluble by this historical method would be possible. If fair guidance bo given to make the labyrinth not wholly a maze the object is attained.