These again are not easily divided from petty serjeanties, in which the menial services are still regarded as characteristic of the bond. In the lists of serjeanties drawn up in the reign of Edward I (published in the volumes of Feudal Aids and in the Testa de Nevill) we find mentions of cooks, falconers, foresters, etc. In German feudal custom the ministeriales correspond to the servientes of England and France, but there is a peculiar trait about their condition, namely, that they are distinctly unfree in origin. Some of the greatest warriors of German medieval history came from such unfree stock – Marquard of Anweiler, for instance, who received the March of Ancona as a fief from Emperor Frederick II, was a ministerialis, an unfree retainer of the Emperor. As homage creates a relation between man and man, it is not intrinsically bound up with landholding, and a good many of the personal followers and servants of medieval magnates must certainly have lived in the castles of their lords, receiving equipment and arms from them: they saw in the good cheer of the court and in occasional gifts a reward for their personal attendance.[1] But such personal relations tended naturally to strike root in land. If the retainer was at all useful and efficient he expected to be remunerated by a permanent source of income, and such an outfit could only take the shape of a grant of land. On the other hand, when a small landowner sought protection from a magnate, he had generally to throw his tenement into the balance and reassume it as a fief. Thus homage and investiture, although historically and institutionally distinct, grow, as it were, together, and form the normal foundation of feudal contract.
Besides the political colouring of this contract, it assumes a peculiar aspect from the point of view of land law. It gives rise to a significant distinction of two elements in the notion of ownership (dominium). Roman property (dominium) was characterised during the best period by uncompromising unity. A person having dominium over a thing, including an estate in land, had it alone and excluded everyone else. Medieval lawyers, on the other hand, came to deal with plots of land which had normally two owners, a superior and an inferior, one having the direct ownership (dominium directum, dominium eminens), the other having the useful ownership, the right to exploit the land (dominium utile). In England the splitting of the notion of dominium was avoided by opposing the tenure in domain to the tenure of service (tenere in dominio – in servicio, see, e.g., Notebook of Bracton, case 1436), but the necessity for reckoning with two kinds of right in respect of every holding contributed indirectly to weaken the notion of absolute property in land. Contentions as to
- ↑ Red Book of the Exchequer, 283: Hugh de Lacy's report as to his knights: "Ricardus Brito et ipsi qui post ipsum sunt nominati tenent de domino Hugone sine servitio aliquo quod eis statum est. Quidam de eis sunt mecum residentes et invenio eis necessaria. Et quidam sunt in domibus meis in Wallia et invenio eis necessaria."
