The law of land-holding
The actaof kings from Frankish times and the stabilimentaand statutes
of the thirteenth century ordered the state of the realm first of all in
terms of property-holding. It long remained a basic tenet that the
absolute power of kings to rule was balanced by the sanctity of private
property, so that taxation required consent, and rulers like Richard II of
England who were seen to interfere arbitrarily with their subjects’
property courted disaster. Yet the making of laws to protect property
rights inevitably converted the strength of family and lord-vassal rela-
tionships into the authority of the state over individual proprietors. As
in the early years of classical Rome, so in the lands settled by the
Germanic peoples, men learnt that the essential characteristics of
ownership (dominium) were on the one hand inheritability and on the
other the power of the current holder to dispose of the property free
from family obligations.^53
The ‘power to alienate land’, wrote Maitland, ‘is one that has
descended from above. From all time the king has been the great land-
giver. The model gift of land has been a governmental act; and who is
to define what may or may not be done by a royal land-book, which, if
it is a deed of gift, is also a privilegiumsanctioned by all the powers of
church and state?’^54 From an early date kings granted lands iure
proprietatis to privileged individuals which gave them the right to
alienate them out of family ownership and also to determine how they
should descend to future generations. A formulary of Louis the Pious’s
reign has the style for an ‘imperial gift’ to two Saxon fideles: the
emperor transfers lands across the Elbe ‘from our right’ to the ‘heredi-
tary right’ of the donees, with ‘free and secure power’ to clear them of
the Slav occupants and do with them what they wished.^55 A little later
King Aethelwulf of Wessex even sought the consent of his bishops and
chief men to the ‘booking’ of lands at South Hams in Devon ‘to himself
into his own inheritance’, so as to be able ‘to leave [it] eternally to any-
one whatever as it may be pleasing to him’.^56
Kings had a particular obligation to protect the property rights of
their subjects, above all of churches. Thus, the Emperor Frederick I took
The law of land-holding 201(^53) E. Levy, West Roman Vulgar Law(Philadelphia, 1951), 64–72.
(^54) Pollock and Maitland, History of English Law [HEL], ii. 12.
(^55) Capitularia Regum Francorum, i. 153. 8 (cases de proprietate aut libertateare ordered to
be heard only in the presence of imperial missior counts), ii. 240; Formulae, 288–9, and cf.
54, 137, 147–8, 150, 208, 271; Recueil des Actes de Charles le Chauve, i. 17, 20, 26, 28, ii.
22, 243 etc., iii. 334–5, 372; Lotharii I et Lotharii II Diplomata, 53. 40 , 74. 4 , 105. 19 ,
117.11,17, 128. 32 , 173. 26 , 178. 20 , 205. 30 , 212. 9 , 253. 6 , 279. 8 , 405. 29 etc.
(^56) EHD i, ed. Whitelock, 481–3, 499, 531, 538; Susan Reynolds, Fiefs and Vassals(Oxford
UP, 1994), 59—73.