The struggle will largely be, in the future as it has been in the past, between the corporations with their influence and power, supported by the learning and skill of the ablest lawyers, and the private citizen, who is unable to oppose to his adversary equal power, learning or skill.

If the courts will steadily adhere to the few fundamental principles of this doctrine and will apply them without regard to questions of expediency, but solely with reference to their spirit and scope, keeping in view at all times the necessity for certainty and uniformity, the doctrine on this subject will be as satisfactory to the litigants and the bar as is the law on most of the subjects with which we deal.

LANDLORD AND TENANT.

BY JAMES Z. MOORE, JUDGE OF THE SUPERIOR COURT, SPOKANE COUNTY.

In his primitive condition, man contended with the forces of nature; and thus contending, developed that strength and ingenuity which made him master.

Man was not long in asserting that he was lord of creation, nor was he hesitant or scrupulous about the means of maintaining that assertion.

The wild fruits, roots, berries and vegetables; the fish, fowl and beast, all were subject to his maintenance, and the land as producing and maintaining these, became a thing of value and necessity. Having at first no fixed local habitation, he followed readily the laws of his existence; living here in summer, there in winter; stopping here for fish, going there for game, and following the sun's ray's as they germinated and ripened the fruits of the earth for his subsistence.

We have no historical data as to how or when he discovered that cultivation assisted the earth in the production of the things he needed.

But, at an early period he did discover it, and thereafter he also discovered that successful cultivation was wholly inconsistent with a roving or nomadic life.

This was the tribal stage of primitive man's long march of progression, subjugation and development.

It is indifferent to our purpose how the original man went into his social relations or formed governments; whether he was a frightened creature in a forest, starting at every sound and rushing from every shadow, who took up with others as frightened as himself and thus came to develop the principle of association and mutual protection; or whether he was originally a predatory animal of a nature so savage that he did not even spare his own species from the ferocity of his appetites and his passions.

It is evident he did form the social compact, and that from that point in the race's progression we may begin our consideration of that master animal man, and his claim upon and occupancy of land.

In the tribal stage, land was held by the tribe, not the individual, and such occupancy as he had he got by allotment, subject to a new distribution at the will of the tribe or its chief. Thus the ancient Germans caused a new distribution of lands to be made each year, to prevent local attachments and to keep their people in better condition for war, considering that a local habitation and attachment was the very reverse of a good war footing, and as tending to destroy the genius of the people for a roving and martial existence, so essential to continuance of their life as a nation.

But, as wars ceased and population increased, as wealth developed and gave man leasure, and as knowledge followed these conditions, it became evident that the comforts of life were to be secured by permanence of residence, and that the fruits of the earth were to be increased by cultivation, which implied improvement and the expenditure of skill and labor; man's habitation thereupon became fixed and his separate or individual claim to land was acknowledged and became one of the conditions of his social life.

This condition must have prevailed generally in Europe after the conquering arms of Rome had brought the earth into subjugation and must have continued until that mighty power had been sapped through sedition and violence, injustice and disorder; when luxury had softened Roman brawn and her soft desires had supplanted Roman valor, when that downfall and disgrace which has dwarfed all similar tragedies in the history of nations, came upon this now thoroughly debauched and effeminate people.

Then it was the hordes of mankind from without, whose frames were hardened by the exertions of the chase and the battle, whose ferocity resembled that of the beast that knows no fear, whose necessities knew no law, and who shivering from the northern blasts were entranced with the softness of a southern clime. And looking from the sterility of their own fields to the fertility of those of this stranger, and from the contemplation of their own wants to the opulence of his surroundings, began those incursions which brought to an end the ancient civilization of Rome and built upon its ruins a fabric which for so long dominated mankind.

From these ruins of Roman institutions and the necessities of the conquering barbarian we have evolved, developed and fixed that system of land tenure, known as the feudal system, which prevailed all over continental Europe and which the Normans afterwards in its perfected state carried into England, which yet fills so large a space in her polity and her laws, which England gave to us and which has had so important an influence on our own jurisprudence.

FEUDAL SYSTEM.

To our subject this system of land tenure is important as being the first to develop the relation of landlord and tenant, or that system under which one holds land of another by agreement, in the language of the old law, to be "Feall and Loiall" and render service for the advantage thus secured.

Before this system, all lands in Europe were held by allodial tenure, which stands in direct conflict with feudal tenure.

It was an essential quality of feudal tenure that a tenant held of a lord, and that the tenant and the lord had each his separate rights and interests in the land and over the land, that is, their separate estates. At the first, alienation by the tenant was forbidden, and was always attended with difficulty. On the contrary, the allodial tenure unites the rights of the lord and those of the tenant in and to the land in one person, the owner, so that one who held by allodial tenure had free and unincumbered possession with absolute right to dispose of the land at his own pleasure, without control of or responsibility to any one.

The feudal system grew up out of the necessities the conquering barbarians had for defense as well as for government, and was the great frame of the Gothic scheme of conquest and for securing and maintaining conquered territory. It was the means by which the bold Norman raised that army which won for him England, and the means by which he held at bay Cedric the Saxon until Cedric had yielded his dream of freedom and independence and the restoration of the Saxon regal line, the Saxon language and the Saxon law.

He held England by this grasp of conquest until the Norman had mixed with the Saxon blood and the Norman tongue was familiar to the Saxon ear, and Norman and Saxon law was alike ad

ministered to the blended people, and until the glories of Norman rule had driven out of the Saxon mind the memory of Edward the Confessor.

It took centuries to develop the system, and it was in its best condition when William invaded England in 1066. He added vastly to its efficiency by requiring homage to be done directly to him by all sub-tenants. And the oath of fealty to be direct to him as the lord paramount, while on the continent this homage or this fealty was rendered to the immediate lord from whom the tenant held; thereby sweeping the barons from between the sovereign and the vassals, and thus strengthening the central power, and thus also removing the opportunity for the strong men of his following to establish a power dangerous to his own, which caused so much confusion and bloodshed and inefficiency of government on the continent.

Much as I should delight to dwell on this period in the evolution of our law and of our race, and give some rein to fancy, and recall the many sweet stories that Sir Walter has told of the Black Prince, and him of the Lion Heart, of the Black Forest and the Bloody Moor, of Rowena and Rebecca, and Ivanhoe and stern old Cedric the Saxon.

And while imagination alone can revivify the past, yet I am reminded that this gift has not heretofore been reckoned among the most useful for the profession.

Its high and irregular flight is clogged by the leaden rules of the law, and its fires are chilled by the cold logic of reported cases. I desire here only to add that under the feudal system the king held the land as lord paramount, and that he gave it to his chief men who did homage and returned men and military service for the grant, and these in turn granted the land to others under them, upon like conditions. That the highest and most honorable tenure by which land was held was military service, that in return for this service the lord not only granted the use of the land but protection to his tenant. That it was not always convenient or desirable for the vassal to follow his lord to the wars, so he was relieved of this duty, in consideration of which the vassal furnished a substitute or furnished arms or provisions, and as society advanced and there came to be a market for the products of the land, these he sold and