Chapter XII: ARRINGTON. A vill of 4 hides (6)

Let us for a moment remember that the wording of a modern English conveyance might easily delude a layman or a foreigner. An impecunious earl, we will say, sells his ancient family estate. We look at the deed whereby this sale is perfected. The Earl of _A._ grants unto _B. C._ and his heirs all the land delineated on a certain map and described in a certain schedule. That in substance is all that the deed tells us. We look at the map; we see a tract of many thousand acres, which, besides a grand mansion, has farm-houses, cottages, perhaps, entire villages upon it. The schedule tells us the names of the fields and of the farm-houses. Like enough no word will hint that any one lives in the houses and cottages, or that any one, save the seller, has any right of any kind in any part of this wide territory. But what is the truth? Perhaps a hundred different men, farmers and cottagers, have rights of different kinds in various portions of the tract. Some have leases, some have 'agreements for leases,' some hold for terms of years, some hold from year to year, some hold at will. The rights of these tenants stand, as it were, between the purchaser and the land that he has bought. He has bought the benefit, and the burden also, of a large mass of contracts. But of these things his conveyance says nothing[878]. And so again, in the brief charters of the thirteenth century a feoffor will say no more than that he has given _manerium meum de Westona_, as though the manor of Weston were some simple physical object like a black horse, and yet under analysis this _manerium_ turns out to be a complex tangle of rights in which many men, free and villein, are concerned.

[Conveyance of superiority in early times.]

But it will be said that all this is the result of 'feudalism.' It implies just that dismemberment of the _dominium_ which is one of feudalism's main characteristics. Undoubtedly in the twelfth century the free tenant in fee simple who holds land 'in demesne' can have, must have, a lord above him, who also holds and is seised of that land and who will speak of the land as his. But we are now in the age before feudalism, in the seventh and eighth centuries. Are we to believe that the free owner of Kemble's 'ethel, hid, or alod' might have above him, perhaps always had above him, not merely a lord (for a personal relation of patronage between lord and man is not to the point), but a landlord: one who would speak of that 'ethel, hid or alod' as _terra iuris mei_: one who to save his soul would give that land to a church and tell the bishop or abbot to do whatever he pleased with it? If we believe this, shall we not be believing that so far as English history can be carried there is no age before 'feudalism'?

We will glance for a moment at two transactions which took place near the end of the seventh century. Bede tells how Æthelwealh king of the South Saxons was persuaded to become a Christian by Wulfhere king of the Mercians. The Mercian received the South Saxon as his godson and by way of christening-gift gave him two provinces, namely the Isle of Wight and the territory of the Meanwari in Wessex, perhaps the hundreds of Meon in Hampshire[879]. Then the same Bede tells us that the same Æthelwealh gave to Bishop Wilfrid a land of eighty-seven families, to wit, the promontory of Selsey: he gave it with its fields and its men, among whom were two hundred and fifty male and female slaves[880]. A modern reader will perhaps see here two very different transactions. In the one case he sees 'the cession of a province' by one king to another, and possibly he thinks how Queen Victoria ceded Heligoland to her imperial grandson:--the act is an act of public law, a transfer of sovereignty. In the other case he sees a private act, the gift of an estate for pious uses. But Bede and his translator saw little, if any, difference between the two gifts: in each case Bede says 'donavit'; the translator in the one case says 'forgeaf,' in the other 'geaf and sealde.' Now it will hardly be supposed that the Isle of Wight had no inhabitants who were not the slaves or the _coloni_ of the king, and, that being so, we are not bound to suppose that there were no free landowners in the promontory of Selsey. May it not be that what Æthelwealh had to give and gave to Wilfrid was what in our eyes would be far rather political power than private property?

[What had the king to give?]

But over the free land of free landowners what rights had the king which he could cede to another king or to a prelate, saying withal that the subject of his gift was land? He had, as we think, rights of two kinds that were thus alienable; we may call them fiscal rights and justiciary rights, though such terms must be somewhat too precise when applied to the vague thought of the seventh and eighth centuries. Of justiciary rights we shall speak below. As to the rights that we call fiscal, we find that the king is entitled to something that he calls _tributum_, _vectigal_, to something that he calls _pastus_, _victus_, the king's _feorm_; also there is military service to be done, and the king, when making a gift, may have a word to say about this.

[The king's alienable rights.]

Now it must at once be confessed that the charters of this early period seldom suggest any such confusion between political power and ownership as that which we postulate. Still from time to time hints are given to us that should not be ignored. Thus a Kentish king shortly after the middle of the eighth century gave to the church of Rochester twenty ploughlands, not only 'with the fields, woods, meadows, pastures, marshes and waters thereto pertaining,' but also 'with the _tributum_ which was paid thence to the king[881].' Such a phrase would hardly be appropriate if the king were giving land of which he was the absolute owner, land cultivated for him by his slaves.

[Military service as a burden on land.]

A little more light is thrown on the matter by the first rude specimens of a clause that is to become common in after times, the clause of immunity. Already in the seventh century Wulfhere of Mercia, having made a gift of five manses, adds: 'Let this land remain free to all who have it, from all earthly hardships, known or unknown, except fastness and bridge and the common host[882].' So in 732 a king of Kent says: 'And no royal due shall be found in it henceforth, saving such as is common to all church lands in this Kent[883].' Æthelbald of Mercia says: 'By my royal power I decree that it be free for ever from all tribute of secular payments, labours and burdens, so that the said land may render service to none but Almighty God and the church[884].' Yet more instructive, if we may rely upon it, is the foundation charter of Evesham Abbey. Æthelweard has given twelve manses: he then says, 'I decree that for the future this land be free from all public tribute, purveyance, royal works, military service (_ab omni publico vectigali, a victu, ab expeditione, ab opere regio_) so that all things in that place which are valuable and useful may serve the church of St. Mary, that is to say, the brethren serving [God] there; save this, that if in the island belonging to the said land there shall chance to be an unusual supply of mast, the king may have pasture for fattening one herd of pigs, but beyond this no pasture shall be set out for any prince or potentate[885].' Now in the first place, these charters speak as though military service is due from land:--I (says the king) declare this land to be free from the 'fyrd,' from the _expeditio_--or--I declare that it is free from all earthly burdens, except military service and the duty of repairing bridge and burh. We are not saying that there is already military tenure, but we do say that already the 'fyrd' is conceived as a burden on land, in so much that the phrase 'This land is--or is not--to be free of military service' has a meaning. But after all, land never fights: men fight. Of what men then is the king speaking when he says that the land is, or is not, free from the _expeditio_? Not of the donees themselves, for they are bishops and monks and serve in no army but God's. Not of the slaves who are on the land, for they are not 'fyrd-worthy.' He is speaking of free men who live on the land; he is declaring that when he has, if so modern a term be suffered, 'attorned' them to the church, they will still have to serve in warfare, or he is declaring that they will be free even from this duty to the state in order that the land may be the more absolutely at the service of God and His stewards.

[The king's _feorm_.]

Then military service, along with the duty of repairing bridges and fastnesses, belongs to a genus of dues, of which unfortunately we get but a vague description. There are _vectigalia publica_, _opera regia_, _onera saecularia_, there is _tributum_, there is _victus_. How much of the information that we get about these matters from later days we may carry back with us to the earliest period it is difficult to say. Apparently the king, the under-king, even the ealdorman, has a certain right of living at the expense of his subjects, of making a progress through the villages and quartering himself, his courtiers, his huntsmen, his dogs and horses upon the folk of the townships, of exacting a 'one night's farm' from this village, a 'two nights' farm' from that. The men who have to bear these exactions may well be free men and free landowners; still over them the king has certain rights and rights that he can give away. According to our interpretation of the charters, it is often enough such rights as these that the king is giving when he says that he is giving _terram iuris mei_. He declares, it will be observed, that the land is to be free from _vectigalia_ and _opera_ to which it has heretofore been subject. But does he mean by this to benefit the occupiers of the soil? No, he has no care whatever to relieve them. Bent on saving his soul, his care is that the land shall be wholly devoted to the service of God. As we understand the matter, whatever _vectigalia_ and _opera_ the king has hitherto exacted from these men the church will now exact. The king has conveyed what he had to convey, a superiority over free landowners.

[Nature of the _feorm_.]

It is permissible to doubt whether modern historians have fully realized the extent of the rights which the king had over the land of free landowners. In the middle of Ine's laws, which follow each other in no rational order, we suddenly come upon an isolated text, which says this: 'For 10 hides "to foster" 10 vessels of honey, 300 loaves, 12 ambers of Welsh ale, 30 of clear [ale], 2 old [i.e. full grown] oxen or 10 wethers, 10 geese, 20 hens, 10 cheeses, an amber full of butter, 5 salmon, 20 poundsweight of fodder and a hundred eels[886].' The context throws no light upon the sentence; but in truth no sentence in Ine's laws has a context. What is its meaning? We can not but think that this _foster_ is the king's _victus_[887]. Once a year from every ten hides he is entitled to this _feorm_. Perhaps it is a 'one night's _feorm_'; for it may be enough to support a king of the seventh century and a modest retinue during twenty-four hours. Still it will be no trifling burden upon the land, even if we suppose the hide to have 120 arable acres or thereabouts. Suppose that the king transfers his right over a single hide to some bishop or abbot, the donee will be entitled to receive from that hide a rent which can not be called insignificant. We dare not argue that this law is a general law for the whole of Wessex. It may refer only to some newly settled and allotted districts. There are other hints in these laws of Ine of some large land-settlement, an allotment of land among great men who have become bound to bring under cultivation a district theretofore waste[888]. But it is difficult to dissociate the _foster_ of these laws from the _victus_ of the charters, and, quite apart from this disputable passage, we have plenty of proof that the king's _victus_ was an incumbrance which pressed heavily upon the lands of free landowners[889]. If in England the duty of feeding the king as he journeys through the country developed into a regular tax or rent this would not stand alone. That duty plays a considerable part in the Scandinavian law-books, and in the Denmark of the thirteenth century we may find arrangements which are very like that set forth in Ine's law. Every hundred (_herad_), taken as a whole, has to contribute something towards the king's support. Often it is a round sum of money; but often it will consist of provisions necessary to maintain the king's household during a night or two or three nights (_servicium unius noctis, servicium duarum noctium_). Then the 'service of two nights' is accurately defined. It consists of, among other things, 26 salted pigs, 14 live pigs, 16 salted oxen, 16 salted sheep, 360 fowls, 180 geese, 360 cheeses, corn, malt, fodder, butter, herrings, stock-fish, pepper and salt. This revenue stands apart from the revenue derived from the crown lands; it is regarded as a tax rather than a rent; but it is to this extent rooted in the soil, that the amount due from each hundred (_herad_) is fixed[890]. There is a great deal to make us think that at a quite early time in England such arrangements as this had been made. If we look at the charters we find that the king is always giving away manses in fives and tens, fifteens and twenties. This symmetry, this prevalence of a decimal system, we take to be artificial; already the manse, or hide, is a fiscal unit, a fraction of a district which has to supply the king with food or with money in lieu of food[891].

[Tribute and rent.]

Whatever be the origin of the king's _feorm_--and if we find it in the voluntary gifts which yet barbarous Germans make to their kings, we may none the less have to admit that it has been touched by the influence of the Roman _tributum_--it becomes either a rent or a tax. We may call it the one, or we may call it the other, for so long as the recipient of it is the king, the law of the seventh and eighth centuries will hardly be able to tell which it is[892]. The king begins to give it away: in the hands of his donees, in the hands of the churches, it becomes a rent. This is not all, however, that the king has to give, or that the king does give, when he says that he is giving land. That he may be giving away the profits of justice, that he may be giving jurisdiction itself, we shall argue hereafter. But probably he has even in early days yet other things to give, and at any rate in course of time he discovers that such is the case. He can give the right to take toll, he can give market rights[893]. It is by no means impossible that he has forest rights, some general claim to place uncultivated land under his ban, if he would hunt therein, and some general claim to the nobler kinds of fish[894]. Then again, in the eleventh century we find men owing services to the king which he still receives rather as king than as landlord, and the sporadic distribution of these services seems to show that they are not of modern origin. Such are, for example, the 'inwards' and the 'averages' which are done by the free men of Cambridgeshire[895]. We are told in a general way that the thegn owes fyrdfare, burh-bót and brycg-bót, but that from many lands--the lands comprised within no privilege, no franchise--'a greater land-right arises at the king's ban'; for there is the king's deer-hedge to be made, there are warships to be provided, there are sea-ward and head-ward[896]. Every increase in the needs of the state, in the power of the state, gives the king new rights in the land, consolidates his seignory over the land. If a fleet be formed to resist the Danes, the king has something to dispose of, a new immunity for sale. If a geld be levied to buy off the Danes, the king can sell a freedom from this tax, or he can tell the monks of St. Edmundsbury that they may levy the tax from their men and keep it for their own use[897]. This, we argue, is not a new abuse, a phenomenon which first appears in the evil feudal time when men began to confuse _imperium_ with _dominium_, kingship with landlordship, office with property, tax with rent. On the contrary, we must begin with confusion. In some of the very earliest land-books that have come down to us what the king really gives, when he says that he is giving land, is far rather his kingly superiority over land and landowners than anything that we dare call ownership[898].

[Mixture of ownership and superiority.]

Not that this is always the case. Very possible is it that from the first the king had villages which were peopled mainly by his theows and læts, and intertribal warfare may have increased their number. But the charters, for all their apparent precision, will not enable us to distinguish between these cases and others in which the villages are full of free landowners and their slaves. The charters are not engendered by the English facts; they are foreign, ecclesiastical, Roman. By such documents, to our thinking, the king gives what he has to give. In one case it may be a full ownership of a village or of some scattered steads; in another it may be a superiority, which when analyzed will turn out to be a right of exacting supplies of provender from the men of the village; in a third, and perhaps a common case, the same village will contain the _mansi serviles_ of the king's slaves and the _mansi ingenuiles_ of free landowners. He no more thinks of distinguishing by the words of his charter his governmental power over free men and their land from his ownership of his slaves and the land that they are tilling, than his successor of the eleventh or twelfth century will think of making similar distinctions when he bestows a 'manor' or an 'honour.'

[The king's superiority.]

We have been suggesting and shall continue to suggest that at a very early time, a time beyond which our land-books will not carry us, the king is beginning to discover that the whole land which he rules is in a certain and a profitable sense his land. He can give it away; he can barter it in exchange for spiritual benefits, and this he can do without wronging the free landholders who are in possession of that land, for what he really gives is the dues (it is too early to say the 'service') that they have owed to him and will henceforth owe to his donee. Let us remember that his successors will undoubtedly be able to do this. In a certain sense, Henry II., for example, will have all England to give away. If we were to put an extreme case, we might have to reckon with possible rebellions; but every single hide of England Henry can give without wronging any one. Suppose that _C_ has been holding a tract as the king's tenant in chief by service worth £5 a year, Henry can make a grant of that land to _B_, and by this grant _C_ will not be wronged. Henceforth _C_ will hold of _B_, and _B_ of the king. Suppose that, on the occasion of this grant, services worth £2 a year are reserved, then the king has it in his power to grant the land yet once more: to grant it, let us say, to the Abbot of _A_, who is to hold in frankalmoin; _C_ will not be wronged, _B_ will not be wronged. What the king has done with one hide he can do with every hide in England; piece by piece he can give all England away. We have been suggesting and shall continue to suggest that at a very early time, even in the first days of English Christianity, the king is beginning to discover that he has some such power as that which his successors will exercise. This barbarous chieftain learns that his political sway over the folk involves a proprietary and alienable element of which he can make profit. It involves a right to _feorm_ and a right to _wites_. The beef and the cheese and the Welsh ale that he might have levied from a district he invests, if we may so speak, in what he is being taught to regard as the safest and most profitable of all securities. He obtains not only remission of his sins, but also the friendship and aid of bishops and clergy. And so large stretches of land are 'booked' to the churches. It is to be feared that if the England of the sixth century had been visited by modern Englishmen, the Saxon chieftains would have been awakened to a consciousness of their 'booking' powers by offers of gin and rifles.

[Book-land and church right.]

In its original form and when put to its original purpose the land-book is no mere deed of gift; it is a dedication. Under the sanction of a solemn anathema, a tract of land is devoted to the service of God. A very full power of disposing of it is given to the bishop or the abbot, who is God's servant. As yet the law has none of those subtle ideas which in after ages will enable it to treat him as 'a corporation sole' or as 'a trustee,' nor can the folk-law meddle much with the affairs of God. The bishop or abbot must be able to leave the land to whom he pleases, to institute an heir. Thus 'book-land' stands, as it were, outside the realm of the folk-law. In all probability the folk-law of this early period knows no such thing as testamentary power. Testamentary power can only be created by the words of a book, by an anathema. But laymen are not slow to see that they can make use of this new institution for purposes of their own, which are not always very pious purposes. By a pretext that he is going to construct a minster, a man will obtain a book garnished with the crosses of bishops. One day calling himself an abbot and the next day calling himself a king's thegn, a layman among ecclesiastics, an ecclesiastic among laymen, he will shirk all duties that are owed to state and church. Already Bede complains of this in a wise and famous letter. He advocates a resumption of these inconsiderate and misplaced gifts, and reproves the prelates for subscribing the books[899]. His letter may have done good; but laymen still obtained books which authorized them to hold land 'by church right.' Thus Offa of Mercia gave to an under-king lands at Sedgebarrow 'in such wise that he might have them during his life, and in exercise of full power might leave them to be possessed by church right[900].' Thereupon the _subregulus_, as a modern English lawyer might say, executed this power of appointment in favour of the church of Worcester. The same Offa gave land to his thegn Dudda so that by church right he might enjoy it during his life and leave it on his death to whom he would[901].

[Book-land and testament.]

We must wait for a later age before we shall find the kings freely booking lands to their thegns without any allusion to ecclesiastical purposes. Indeed it may be said that the Anglo-Saxon land-book never ceases to be an ecclesiastical instrument. True that in the tenth century the kings are booking lands to their thegns with great liberality; true also that there is no longer any pretence that the land so booked will go to endow a church; but let us observe these books and let us not ignore the recitals that they contain. Why does the king make these grants? He says that it is because he hopes for an eternal reward in the everlasting mansions. This has perhaps become an empty phrase: but it has a history. Also it is needed in order to make the deed a logical whole. Let us observe the sequence of the clauses:--'Whereas the fashion of this world passeth away but the joys of heaven are eternal; therefore I give land to my thegn so that he may enjoy it during his life and leave it on his death to whomsoever he pleases, and if any one shall come against this charter may he perish for ever; I have confirmed this gift with the sign of Christ's holy cross[902].' Some piety in the harangue (_arenga_) is necessary in order to lead up to the anathema and the cross; it justifies the intervention of the bishops, who also will make crosses and thereby will be denouncing the church's ban against any one who violates the charter. And who, we may ask, is likely to violate the charter? The donee's kinsfolk may be tempted to do this if the donee makes use of that testamentary power which has been granted to him (as, for instance, by leaving the land to a church) more especially because it may be very doubtful whether in impeaching such a testament they will not have the folk-law on their side. Such in brief outline is--so we think--the history of book-land. It is land (or rather in many cases a superiority) held by royal privilege[903] under the sanction of the anathema.

FOOTNOTES:

[858] Heming's Cartulary was published by Hearne. It has been said
that some of the documents in this collection which Kemble
accepted as genuine commit the fault of supposing that the
old episcopal minster was dedicated to St. Mary, whereas it
was dedicated to St. Peter. See Robertson, Historical Essays,
195. However, where Heming's work can be tested it generally
gains credit.

[859] D. B. i. 173 b; K. 131 (i. 158); B. i. 311.

[860] D. B. i. 127; K. 230 (i. 297); B. i. 558.

[861] Hist. Eccl. iv. 13 (ed. Plummer, i. 232).

[862] See the spurious charter of Cædwalla, K. 992 (v. 32) which
purports to show where the 87 manses lay. According to it, the
gift comprised some places which lay well outside the
promontory of Selsey. But more of this hereafter.

[863] Napier and Stevenson, Crawford Charters, p. 43. Some of the
best work that has been done towards connecting Domesday Book
with the A.-S. land-books will be found in a paper on the
Pre-Domesday Hide of Gloucestershire: Transactions of Bristol
and Gloucestershire Arch. Soc. vol. xviii., by Mr C. S.
Taylor.

[864] K. 12 (i. 16); B. i. 69; H. & S. 129; Plummer, Bede, ii. 247.
The charter itself is open to grave suspicion.

[865] C. S. Taylor, The Pre-Domesday Hide of Gloucestershire.

[866] E. p. 4; B. M. Facsim. iv. 1.

[867] K. 83 (i. 100): 'in possessionem aecclesiasticae rationis et
regulae ... in ius monasticae rationis.' K. 90 (i. 108): 'in
possessionem iuris ecclesiastici.' K. 101 (i. 122): 'ut sit
aecclesiastici iuris potestate subdita in perpetuum.'

[868] K. 54 (i. 60) is a gift to an abbess, for compare K. 36 (i.
41). We here leave out of account the early lease for lives
granted by Bp. Wilfrid, K. 91 (i. 109), an important document,
but one which must be mentioned in another context.

[869] An accusative absolute.

[870] Eadric's deed is K. 27 (i. 30). See also Hlothar's charter K.
16 (i. 20) and Snaebraed's, K. 52 (i. 59); B.M. Facs. i.
plates 1, 3. With these should be compared the forms in
Rozière, Formules, i. 208-255. On pp. 235, 253 will be found
instances, one from the very ancient Angevin collection,
another from Marculf, in which the breaker of the charter is
threatened, not only with a money penalty, but also with
excommunication and damnation.

[871] K. Nos. 12, 16, 32, 36, 48, 52, 56, 67, etc.

[872] K. 131 (i. 158).

[873] K. 1.

[874] K. Nos. 27, 35, 77, 79, 999, 1006, 1007.

[875] K. 35 (i. 39); E. 13; B. M. Facs. i. 2.

[876] K. 52 (i. 59); E. 16; B. M. Facs. i. 3.

[877] E. 4; B. M. Facs. iv. 1.

[878] Davidson, Precedents in Conveyancing, i. 88 (ed. 1874): 'In
conveying estates, it is not usual to refer to the leases
affecting the same, unless the leases are for a long term, of
years, or beneficial, or otherwise not of the ordinary type.'

[879] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 230). In the O. E.
version the words are: 'Ond se cyning ... him to godsuna
onfeng and to tacne ðære sibbe him twa mægþe forgeaf, ðæt is
Wiht ealond and Meanwara mægþe on West Seaxna ðeode.'

[880] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 232).

[881] K. 114 (i. 139); E. 49: 'et cum omni tributo quod regibus inde
dabatur.' So by a deed of A.D. 762, K. 109 (i. 133), B. i.
272, a thegn states that king Æthelbert gave him a _villa_
'cum tributo illius possidendam' and then proceeds to give
this _villa_ to a church 'cum tributo illius.'

[882] E. 4; B. M. Facs. iv. 1: 'et semper liber permaneat omnibus
habentibus ab omnibus duris secularibus, notis et ignotis,
praeter arcem et pontem ac vulgare militiam.'

[883] K. 77 (i. 92); E. 24; B. M. Facs. i. 6: 'Et ius regium in ea
deinceps nullum repperiatur omnino, excepto dumtaxat tale
quale generale est in universis ecclesiasticis terris quae in
hac Cantia esse noscuntur.'

[884] K. 90 (i. 108); E. 40: 'Et ut ab omni tributo vectigalium
operum onerumque saecularium sit libera in perpetuum, pro
mercede aeternae retributionis, regali potestate decernens
statuo; tantum ut deo omnipotenti ex eodem agello
aecclesiasticae servitutis famulatum impendat.'

[885] K. 56 (i. 64); H. & S. iii. 278; B. i. 171. The charter is of
fairly good repute, but nothing that comes from Evesham is
beyond suspicion. It is almost impossible to translate these
early books without making their language too definite. How,
for instance shall we render 'nulli, neque principi, neque
praefecto, neque tiranno alicui pascui constituantur'?

[886] Ine, 70, § 1.

[887] Thorpe, Gloss, s. v. _Foster_, thinks that this law has to do
with the fostering of a child. Schmid is inclined to hold that
it speaks of a rent payable to a landlord.

[888] Ine, 64-6: 'He who has 20 hides must show 12 hides of
cultivated land if he wishes to go away. He who has 10 hides
shall show 6 hides of cultivated land. He who has 3 hides let
him show one and a half.' The persons with whom these laws
deal are certainly not _ascripti glebae_; they are very great
men. Then we must read c. 63: 'If a gesithcundman go away,
then may he have his reeve with him and his smith and his
child's fosterer'; and then c. 68: 'If a gesithcundman be
driven off, let him be driven from the dwelling (botle), not
from the set land (naes þaere setene).' The king's gesiths
have been taking up large grants of waste land and putting
under-tenants on the soil. These great folk must not fling up
their holdings until they have brought the land into
cultivation. If they do abandon their land, they may take away
with them only three of their dependants. If they are evicted
by some adverse claimant this is not to harm their
under-tenants; they are to be driven from the _botl_, that is
from the chief house, but not from the land that they have set
out to husbandmen. These last are to enjoy a secure title. We
must leave to linguists the question whether we have rightly
understood the difficult _seten_; but these chapters, together
with c. 67, which deals with the relations between these lords
and their husbandmen, seem to point to some great scheme for
colonizing a newly-conquered district.

[889] Kemble, Saxons, i. 294-8; ii. 58.

[890] Karl Lehmann, Abhandlungen zur Germanischen Rechtsgeschichte,
1888; Liber Census Daniae, ed. O. Nielsen, 1879.

[891] Cnut's law (II. 62) about this matter seems to imply that in
consequence of the immunities lavishly bestowed by his
predecessors, the old 'king's _feorm_' was only leviable from
lands which were deemed to be the king's lands, but that
Cnut's reeves had been demanding that this _feorm_ should be
supplemented by other lands. The king of his grace forbids
them to do this. The old _feorm_ has been changed into a rent
of crown lands; a vague claim to 'purveyance' is abolished,
but will appear again after the Conquest.

[892] In the A.-S. Chron. ann. 991, 1007, 1011, the Danegeld appears
as a _gafol_; but this is the common word for a rent paid by a
tenant to his landlord.

[893] Kemble, Saxons ii. 73-6.

[894] Already in 749 Æthelbald of Mercia in a general privilege for
the churches (H. & S. iii. 386) says, 'Sed nec hoc
praetermittendum est, cum necessarium constat aecclesiis Dei,
quia Æthelbaldus Rex, pro expiatione delictorum suorum et
retributione mercedis aeternae, famulis Dei propriam
libertatem in fructibus silvarum agrorumque, sive in caeteris
utilitatibus fluminum vel raptura piscium, habere donavit.'

[895] See above, p. 55.

[896] Rectitudines c. 1 (Schmid, App. III.).

[897] See above, p. 169.

[898] Schröder, Die Franken und ihr Recht, Zeitsch. d. Savigny
Stiftung, iii. 62-82, has argued that, from the first times of
the Frankish settlement onwards, the king has a _Bodenregal_,
an _Obereigenthum_ over all land.

[899] Epistola ad Ecgbertum (ed. Plummer, i. 405).

[900] K. 131 (i. 158).

[901] K. 137 (i. 164); B. M. Facs. i. 10. A few words are illegible,
but the land is given 'in ius ecclesiasticae liberalitatis in
perpetuum possid[endam].'

[902] Æthelwulf makes a grant to a thegn, K. 269 (ii. 48), 'pro
expiatione piaculorum meorum et absolutione criminum meorum.'
In course of time the piety of the recitals becomes more and
more perfunctory. It becomes a philosophic reflection on the
transitoriness of earthly affairs and finally evaporates,
leaving behind some commonplace about the superiority of
written over unwritten testimony.

[903] Bede (ed. Plummer, i. 415): 'ipsas quoque litteras
privilegiorum suorum.'

§ 2. _Book-land and Folk-land._

[What is folk-land?]

With 'book-land' is contrasted 'folk-land.' Therefore of folk-land a few words must be said. What is folk-land? A few years ago the answer that historians gave to this question was this: It is the land of the folk, the land belonging to the folk. Dr Vinogradoff has argued that this is not the right answer[904]. His argument has convinced us; but, as it is still new, we will take leave to repeat it with some few additions of our own.

[Folk-land in the texts.]

The term 'folk-land' occurs but thrice in our texts. It occurs in one law and in two charters. The one law comes from Edward the Elder[905] and all that it tells us is that folk-land is the great contrast to book-land. Folk-land and book-land seem to cover the whole field of land tenure. Possibly this law tells us also that while a dispute about folk-land will, a dispute about book-land will not, come before the shiremoot:--but we hardly obtain even this information[906]. Then we have the two charters. Of these the earlier is a deed of Æthelbert of Kent dated in 858[907]. The king with the consent of his great men and of the prelates gives to his thegn Wulflaf five plough-lands at Washingwell (_aliquam partem terrae iuris mei_) in exchange for land at Marsham. He declares that the land at Washingwell is to be free from all burdens save the three usually excepted, the land at Marsham having enjoyed a similar immunity. The boundaries of Washingwell are then stated. On the west it is bounded by the king's folk-land (_cyninges folcland_) which Wighelm and Wulflaf have. So much for the deed itself. On its back there is an endorsement to the following effect: 'This is the land-book for Washingwell that Æthelbert the king granted to Wulflaf his thegn in exchange for an equal amount of other land at Marsham; the king granted and booked to Wulflaf five sullungs of land at Washingwell for the five sullungs at Marsham and the king made that land at Marsham his folk-land ("did it him to folk-land") when they had exchanged the lands, save the marshes and the salterns at Faversham and the woods that belong to the salterns.' Now this deed teaches us that there was land which was known as 'the king's folk-land,' and that it was in the occupation of two men called Wighelm and Wulflaf, the latter of whom may well have been the Wulflaf who made an exchange with the king. The endorsement tells us that when the king received the land at Marsham he made it his folk-land, 'he did it him to folk-land.'

[The will of Alfred the Ealdorman.]

The other charter is of greater value. It is the will of the Ealdorman Alfred and comes from some year late in the ninth century[908]. He desires in the first place to state who are the persons to whom he gives his inheritance and his book-land. He then gives somewhat more than 100 hides, including 6 at Lingfield and 10 at Horsley, to his wife for her life, 'with remainder,' as we should say, to their daughter. More than once he calls this daughter 'our common bairn,' thus drawing attention to the fact that she is not merely his daughter, but also his wife's daughter. This is of importance, for in a later clause we hear of a son. 'I give to my son Æthelwald three hides of book-land: two hides on Hwætedune [Waddon], and one at Gatatune [Gatton] and therewith 100 swine, and, if the king will grant him the folk-land with the book-land, then let him have and enjoy it: but if this may not be, then let her [my wife] grant to him whichever she will, either the land at Horsley or the land at Lingfield.' Such are the materials which must provide us with our knowledge of folk-land.

[Comment on Alfred's will.]

We must examine Alfred's will somewhat carefully. The testator has a wife, a son, a daughter. He leaves the bulk of his book-land to his wife for life with remainder to his daughter. For his son he makes a small provision (only three hides) out of his book-land, but he expresses a wish that the king will let that son have the folk-land, and, if this wish be not fulfilled, then that son is to have either ten or else six hides out of the book-land previously given to the wife and daughter. We see that, even if he gets these few hides, the son will obtain but a small part of a handsome fortune. 'If the king will grant him the folk-land'--this may suggest that a man's folk-land will not descend to his heir. But another, and, as it seems to us, a far more probable explanation is open. The son is 'my son,' the daughter is 'our common bairn.' May not the son be illegitimate, or may not his legitimacy be doubtful, for legitimacy is somewhat a matter of degree? The ealdorman may have contracted a dubious or a morganatic marriage. We can see that he does not feel called upon to do very much for this son of his. He expresses a hope that the king as supreme judge will hold the son to be legitimate, or sufficiently legitimate to inherit the folk-land, which he does not endeavour to bequeath.

[The king booking land to himself.]

The king like other persons can have both folk-land, and book-land. We have just heard of 'the king's folk-land': we turn to the important deed whereby King Æthelwulf booked land to himself[909]. Alms, it says, are the most perdurable of possessions; one ought to minister to the necessities of others and so make to oneself friends of the mammon of unrighteousness; therefore I King Æthelwulf with the consent and leave of my bishops and great men have booked to myself twenty manses so that I may enjoy them and leave them after my death to whomsoever I please in perpetuity: the land is to be free from all tribute and the like, save military service and the repair of bridges. Then the description of the land thus booked is preceded by the statement: 'These are the lands which his wise men (_senatores_) conceded to Æthelwulf.' Now the full meaning of this famous instrument we can not yet discuss. To put it briefly, our explanation will be that over his book-land the king will have powers which he will not have over his folk-land; in particular he will have that testamentary power which will enable him to become friendly with the mammon of unrighteousness and secure those eternal mansions that he desires. But we have introduced this charter here because, though it says no word of folk-land, it forms an important part of the case of those who contend that folk-land is land belonging to the people[910].

[The consent of the witan.]

Another weighty argument is derived from the fact that there are but very few charters of the kings which do not in some formula or another profess that many illustrious persons have consented to or have witnessed the making of the deed. We have no desire to detract from the significance of this fact, still we ought to examine our documents with care. Such words as a charter has about 'consent' may occur in two different contexts. They may occur in close connexion with the words of gift, 'the operative words,' as our conveyancers say, or they may occur in the eschatocol, the clause which deals with the execution and attestation of the instrument. If we come across two deeds, one of which tells us how 'I king Æthelwulf with the consent and leave of my bishops and great men give land to a church or a thegn,' while the other says nothing of consent until it tells us how 'This charter was written on such a day _his testibus consentientibus_,' we must not at once treat them as saying the same thing in two different ways.

[Consent and witness in the land-books.]

For this purpose we may divide our charters into three periods. The first begins with the few genuine charters of the seventh century and ends in the reign of Egbert, the second endures until the reign of Edward the Elder, the third until the Norman Conquest. It will be well understood that we draw no hard line; each period has its penumbra; but the years 800 and 900 or 925 may serve to mark very rudely the two limits of the middle period. Now a clause in the body of the deed stating that the gift is made by the consent of the witan is characteristic of this middle period. Any one who wishes to forge a royal land-book of the ninth century should insert this clause; any one who wishes to forge a deed of the tenth or of the eighth century should think twice before he makes use of it. To be more exact, it becomes a common form under Cenwulf of Mercia and Egbert of Wessex; it grows very rare under Æthelstan[911]. In the meanwhile it serves as a common form, and it appears in deeds wherein the king says in forcible terms that he is disposing of his land and his inheritance[912]. During the last of our three periods all that is ascribed to the great men whose crosses follow the king's cross is little, if anything, more than the function of witnesses. A deed of Æthelstan's day will end with some such formula as the following: 'this book was written at such a place and time, and its authority was confirmed by the witnesses whose names are written below.' But very often there is no such concluding formula: we have simply the list of witnesses and their crosses, and of each of them it is said that he consented and subscribed. Later in the tenth century the formula which introduces the names of the witnesses will hardly admit that they in any sense confirmed the transaction; it will say merely, 'This book was written on such a day _his testibus consentientibus quorum nomina inferius caraxantur_.' On this will follow the names and crosses; and of each bishop--but not as a general rule of any other witness--it will be said that he has done something for the stability of the deed. To convey this information, the scribe rings the changes on a score of Latin words--_subscripsi_, _consensi_, _consolidavi_, _corroboravi_, _confirmavi_, _conscripsi_, _consignavi_, _adquievi_, _praepinxi_, _praepunxi_, _praenotavi_, and so forth, thereby showing that he has no very clear notion as to what it really is that the bishop does. But this degradation of what seems to be a formula of assent into a formula of attestation has been noticed by others[913], and it is more to our purpose to examine the charters of the earliest period, for then, if at any time, the folk-land should have appeared in its true character as the land of the people.

[Attestation of the earliest books.]

Now during our earliest period instruments which contain in conjunction with their operative words any allusion to the consent of the great men of the realm are exceedingly rare[914]. A commoner case is that in which the eschatocol says something about consent. We will collect a few examples.

I have confirmed this with the sign of the holy cross with the
counsel of Laurence the bishop and of all my _principes_ and have
requested them to do the like[915].

I have impressed the sign of the holy cross and requested fit and
proper witnesses to subscribe[916].

I have confirmed this gift with my own hand and have caused fit and
proper witnesses, my companions (_commites_), to confirm and
subscribe[917].

This formula, undoubtedly of foreign origin, was common in Kent[918]. From Wessex and the middle of the eighth century, we twice obtain a fuller form.

These things were done in such a year; and that my munificent gift
may be the more firmly established (_firmius roboretur_) we have
associated with ourselves the fit and proper witnesses and
'adstipulators' whose names and descriptions are set forth below to
subscribe and confirm this privilege of the aforesaid estate
(_praedictae possessionis privilegium_[919]).

More frequently however the document has nothing that can be called a clause of attestation. It simply gives us the names and the crosses of the witnesses. Occasionally over against each name, or each of the most important names, is set some word or phrase describing this witness's act. He has subscribed, or he has consented, or he has consented and subscribed, or perhaps he has confirmed[920].

[Confirmation and attestation.]

Now we ought not to draw inferences from these phrases without knowing that in the Latin of this period such words as _confirmare_, _corroborare_, _adstipulari_ are the proper words whereby to describe the act of those who become witnesses to the execution of a deed[921]. Our kings are making use, though it is a lax use, of foreign formulas; what is more, they are adopting the formulas of private deeds. They have no chancellor, as the Frankish kings have, and they do not, as the Frankish kings do, dispense with that _rogatio testium_ which is one of the usual forms of private law[922]. On the continent of Europe all this talk about confirmation, corroboration and consent would by no means imply that the witnesses were more than witnesses. The line which divides attestation from participation is really somewhat fine, and though well enough apprehended by modern lawyers, would not easily be explained to a barbarian ealdorman. A witness does consent to the execution of the instrument which he attests, though he may be utterly ignorant of its import, and, if the law demands that such an instrument shall be attested, then it may well be said of the witness that by attesting it he makes it firm, he confirms it. Until he attested it, it was not a valid instrument[923]. Now we are not saying that the magnates, more especially the bishops, who attested these ancient charters thought of themselves as mere witnesses. Had that been so, a clause expressing the consent of the whole body of great men would hardly have crept into the charters; and it does creep in gradually during the last half of the eighth century[924]. A similar development has been noticed in the charters of the German kings. A clause expressing the consent of the great folk rarely occurs in the Merovingian or the early Carolingian charters, unless they belong to certain exceptional classes. It is said to become common under the weak rule of Lewis the Child; then for a while it becomes rare again, and then once more common under Henry III and Henry IV, though consent and witness are hardly to be distinguished[925].

[Function of the witan.]

Perhaps from the first in England the cross of at least one bishop was much to be desired or was almost indispensable, for the anathema which the charter pronounces will be a solemn sentence of excommunication when it comes from a bishop, while it will be at best a pious wish if it comes from the king; and it is well to have the cross of every bishop, so that the breaker of the charter may find himself excommunicated in every diocese. This is not all; we may well believe that from the first the king was more or less bound to consult with his great men before he alienated his land. The notion that land could be alienated at all may not have been very ancient, and the king when giving land away may have been expected to pay some regard to the welfare of his realm[926]. The discovery that he had an alienable superiority over free land and free landowners would sharpen this rule. Some of these early donations are to our minds more like cessions of political power than gifts of land; they make over to bishops and abbots rights which the king has exercised rather as king than as landowner. A wholesome practice grows up which is embodied in the clause that states the consent of the witan, and, even when this clause has disappeared, still it is in the presence and with the witness of his councillors that the king makes his grants. This is no purely English phenomenon. When a Norman duke hands his charter to be roborated and confirmed by his _fideles_, we do not infer that he is disposing of land that is not his[927]. But it is very remarkable that in the earliest English charters the consent of an overlord is treated as a far more serious thing than the consent of the nobles[928].

[The king and the people's land.]