History is difficult because people never state their assumptions or describe the framework in which their lives are led. To the extent that you do not unthinkingly supply these from your own experience, you can only guess at them from what your actors said and did. There will be no more evidence for the most important lines in your picture than that they fit with the demonstrable detail. They are either obvious or wrong. Maitland's indestructible memorial is that the great outlines he drew of the history of the common law, for which so much material survives, have so long seemed obvious. New or unnoticed detail at last begins to obtrude: but you cannot usefully erase an outline, only propose what seems a better fit.

This book will be about a small part of his picture, but one in which our understanding of the law is peculiarly entwined with our understanding of contemporary life. It will try to reconstruct what may be called the feudal component in the framework of English society in the years around 1200, the earliest time at which we know enough of what people said and did to make out what did not need saying and what it was not thinkable to do.

The things said and done are nearly all taken from Glanvill and from the plea rolls surviving from the reigns of Richard and John; and the lawyer trespassing in historians' country knows that he compounds his offence by concentrating on the legal sources.

Glanvill's disciplinary jurisdiction was considered first partly to give substance to propositions hard to reckon with when stated in the abstract. For us, property rights have some absolute existence; and the jurisdiction protecting them is a secondary matter having no effect upon the substantive rules. The legal system may allocate a dispute concerning my house to this court or to that; but the same rules will be applied and the same results reached. On this basis we have assumed that the growth of royal jurisdiction over land was a process of transfer, analogous to the transfer of personal actions from local to royal courts. Whether the desire was that of royal officials or of litigants, what happened was that claims formerly made in lords' courts came to be made in the king's; and though they might there receive more sophisticated treatment, especially in the matter of proof, the same justice would be done and the same result reached. The new jurisdiction was set up alongside the old, its superiority important only for the political reason that lords could not stop it. The operating relationship was one of rivalry between parallel institutions making little direct contact with each other.

But if the original role of novel disseisin was that depicted in the preceding chapter, the original relationship was entirely direct: it was one of control. The assize was a response not to a failing seignorial order for which some alternative must be provided, but to an order which had been sovereign within its own sphere and was subject to sovereign abuse.

With some expansion in detail, this book consists of lectures given in Cambridge in 1972 at the invitation of the Managers of the Maitland Memorial Fund; and it is now published with the aid of a generous grant from the Fund. To the Managers, to Mr David Yale, and to those historians and lawyers who so bravely listened, I am deeply grateful. There were power cuts at the time, and the lecturer peered from a wavering patch of candle-light much as his lectures tried to make out what sort of world lies in the darkness behind our earliest legal records. These are lights that cannot come on again; and we may never be sure of the answers to many individual questions. I shall be content if it is agreed that the questions arise, and therefore that the world cannot have been quite as we have supposed.

Maitland's picture of the rise of the actions protecting freehold land has a clarity which will never be rivalled. In the beginning there were writs of right, settling as between the parties something we can only think of as the ‘ownership’ of the land. But these were troublesome, and imposed too great a burden on the demandant when his case was obvious. And so possessory protection was provided: first, novel disseisin and mort d'ancestor, and then, by an extension of the idea, the writs of entry. And since the possessory actions but not the proprietary were proper for royal courts, and since they were preferred, jurisdiction was drawn away from lords' courts into the king's.

It is a compelling picture which seems immediately to fit. Could this be because the society into which it fits is one juristically like ours? Like ours, and like that in which the Roman law grew up, it is a society of equal owners disputing about abstract rights of property. There are lords, of course, but what they have are equally just rights of property. Their dues are charged upon the land, but the land nonetheless belongs to the tenant. Even the right to jurisdiction is valuable for the profits of justice; and the lord has nothing else to lose if a case goes to another court. Against this unchanging background, the same for Henry II as it was to be for Edward I, we have supposed jurisdiction being painlessly transferred as possessory protection is extended.

Any study of early grants is subject to confusion. One cause is their diversity: the royal control which so quickly standardised litigation was slower to eliminate variations between customary arrangements, and a transaction unthinkable in Northamptonshire may have been commonplace in Norfolk. Another is the uneven survival of evidence. The grants most systematically preserved were those made by fine and those involving religious houses, and inferences may not apply to private grants between laymen. But the greatest difficulties are in our own minds. A modern deed of grant is the actual disposition; and if we remember livery of seisin at all, it is as a formality to be evaded. But charters were evidence, and the actual grant was made in a context not recorded, commonly, it seems, in a court. This links with the most intractable of our assumptions. We suppose a once-for-ever transfer of something like ownership; and whether or not the grantee can likewise pass that ownership on by his own voluntary act, we see it as passing on his death to his heir as by a modern rule of intestate succession. Conveyance, inheritance, litigation: for us these are distinct processes transferring or determining abstract rights. The ancient reality, preserved into later times only in the formalities of copyhold, saw all three as preliminaries to what mattered: the lord's acceptance of this tenant.

Inheritance becomes an automatic succession to what is clearly the ancestor's property. When the ancestor dies, the heir is at once entitled under abstract rules of law and enters without anyone's authority. Just as the lord has no control over alienation or, except for the anomalous power of distraining chattels, over the continuing tenure, so he has no control over inheritance. And the heir's assize of mort d'ancestor is seen as directed against the world at large, against the rival claimant or the mere wrongdoer who has got in first. Like novel disseisin it is a possessory protection, the first line of defence of an abstract property right.

In this long-lived scheme lordship itself is just a property right, a jus in re aliena; and its valuable components are the services, a regular income charged upon the tenant's land, and the bonus incidents which accrue when a tenant dies. If there is an adult heir, the lord is entitled to relief, a payment which early becomes fixed in amount. If there is an infant or an unmarried female heir the lord takes wardship, enjoying for his own benefit the lands held of himself; and he, or one of the lords if there is more than one, will be able to sell the marriage for an amount depending upon the total value of the heir's inheritance. And lastly, if the tenant dies without any heir, the land escheats to the lord and is at his free disposal.