Chapter XII: ARRINGTON. A vill of 4 hides (7)

Of some value though this 'constitutional check' may have been, we can not regard it as a relic of a time when there was land which in any accurate sense of the term was owned by the people. The recorded action of the witan in relation to the king's grants does not become more prominent, it becomes less prominent, as we go backwards and reach the heptarchic days. But that is not all. Is it not marvellous that there should be land owned by the people and yet that we should have to discover this momentous fact from a few casual phrases occurring in three documents of the ninth and tenth centuries? Are we to suppose that whenever the king is giving away land, this land is the land of the people? Why do not the charters say so? Repeatedly the king speaks of the land that he gives as 'my land' (_terram iuris mei_), and this too in charters which state that the witan give their consent to the grant. Never by any chance does a scribe slip into any such phrase as _terram gentis meae, terram gentis Merciorum_ or the like. And how came it about that from the very earliest time the king could devote the people's land to the salvation of his own peculiar soul? But, it will be said, no doubt the king had private estates besides having a power over 'the unallotted lands of the nation,' and those private estates he could give away as he pleased. But then, how are we to distinguish between those charters whereby he disposed of his own and those whereby he disposed of national lands? The formula which expresses the consent of the wise will certainly not serve our turn. It leads, as we have seen, to a distinction between different ages, not to a classification of the various charters of one and the same king.

[King's land and crown land.]

Some historians have supposed that at the outset there was a clear distinction between the king's private estates and those national lands which were becoming the domains of the crown. Now a vague distinction between what belonged to the king as king and what belonged to him--if we may use so modern a phrase--in his private capacity, we may admit, while at the same time we gravely doubt whether the language or the thought of the eighth or ninth century had any forms in which this distinction could be precisely expressed. Even within the ecclesiastical sphere, where traditions of Roman law may have lingered and where dead saints presented themselves as persons capable of acquiring land, it was by no means easy to distinguish the bishop's property from his church's property. We may find a deed whereby some king for the love of God or the salvation of his soul gives land to a certain bishop, and states in strong, clear words that the donee is to have the most absolute power of giving and selling and even, for this sometimes occurs, of bequeathing the land[929]. We shall probably believe that the king intends that this land shall go to increase the territory of the church, and yet we dare not make the bishop either 'a trustee' or 'a corporation sole.'

[Fate of the king's land on his death.]

As to the king, it would be on his death that the necessity of drawing some distinction between his two capacities would first present itself. Perhaps a brother of his would be elected to the kingdom and his children would be passed by. Clearly this brother should have those lands which have supplied the king with the main part of his revenue, and yet it would be hard that the dead man's children should be portionless. However, we may strongly suspect that in the earliest time cases of this nature were settled as they arose without the establishment of any general rule, and that even on the eve of the Norman Conquest no definite classification of the king's estates had been framed. We dare not expect the rule to be more definite than that which settled the title to the kingship, and how exceedingly indefinite the latter was the historians of our constitution have explained. Hereditary and elective elements were mixed up in the title; we can define neither the one nor the other. That 'superiority' over all the land of his kingdom of which we have spoken above, though it might be alienated piecemeal among the living, would pass from the dead king to his elected successor. On the other hand, some kings were careful to have certain lands booked to themselves and to obtain from their nobles 'an express power of testamentary appointment.' But very possibly there was a wide fringe of disputable matter. King Alfred's will, with all that he says about what had been done by himself, his father and his brothers, seems to tell us that a prudent king would obtain the consent of his councillors to any disposition that he made of land that was in any sort his. Also it seems to bear witness to a strong feeling that the reigning king should enjoy at any rate the bulk of the lands that his predecessor had enjoyed[930].

[The new king and the old king's heir.]

In one of his charters Æthelred the Unready is made to tell a long and curious story[931]:--'My father, king Edgar, gave certain lands to the minster at Abingdon. On his death the wise men elected as king my brother Edward, and put me in possession of the lands which belonged to the king's sons. Among these were the lands given to Abingdon; they were forcibly taken from the monks. Whether this was lawful or unlawful those wise men know best. Then my brother Edward died and I became possessed, not only of the lands which belonged to the king's sons, but also of the royal lands. I do not wish to incur my father's curse, and therefore I intend to substitute for his gift a compensation out of my own proper inheritance. The land that I am now going to dispose of I acquired by gift from certain persons whose names I state.'--We seem to see here three kinds of land, the _regales terrae_ which pass from king to king, the lands 'entailed,' if we may use that term, on the king's family (_regii pueri_), and lands which come to a king by way of gift or the like and constitute his _propria hereditas_. But the wise men seem to have violated three solemn books which they themselves or their predecessors had attested, and we can but say with king Æthelred '_quam rem si iuste aut iniuste fecerint ipsi sciant_[932].' There can be but little law about such matters so long as the title to the kingship is indefinable[933].

[Ancient demesne and its immunity.]

This distinction between the lands which would pass from king to king and the lands which would pass from the king to his heirs or to his devisees may have been complicated with another distinction. Domesday Book tells us that some, but by no means all, of the lands held by the Confessor were and had always been free of geld, and this freedom from taxation may imply other immunities. It is possible that, as in later times, certain 'ancient demesnes of the crown' already stood outside the national system of taxation, justice and police, that the ealdorman of the shire and the shire-moot had no jurisdiction over them, and that they were administered by reeves yet more personally dependent on the king than was the shire-reeve. It is possible, however, that the two distinctions cut each other, for when the king booked land to himself he, at all events on some occasions, inserted in the charter a clause of immunity, the very object of which was to put the land outside the general, national system. To this distinction the famous exchange which Æthelbert effected with his thegn Wulflaf may point. It says that when, instead of Washingwell, the king accepted Marsham, 'he did it him to folk-land.' The land at Marsham was no longer to enjoy that immunity which it had enjoyed while it was in the hands of the thegn, it was to come under the sway of the sheriff and of the national courts. However, it is much easier for us to dream dreams about such a transaction than to discover the truth.

[Rights of individuals in national land.]

If the folk-land was the land of the people and if the king when he booked land to a church or a thegn was usually booking folk-land and converting it into book-land, how are we to think of the land that still is folk-land? Is it land that has not yet been brought into cultivation; is it land in which no proprietary interests, save that of the folk, exist? Now we are far from saying that the king never grants land that is waste and void of inhabitants; but it is plain enough that this is not the common case. The charter deals in the first instance with manses, _villae_, _vici_, houses, túns, with cultivated fields and meadows. Waste land (it may be) is given in large quantities, but merely as appurtenant to the profitable core of the gift. We see too that individual men have rights in the folk-land; Alfred the ealdorman has folk-land and hopes that on his death it will pass to his son; King Æthelbert has folk-land and it is occupied by Wighelm and Wulflaf; King Edward the Elder supposes that the title to folk-land may be in dispute between two persons and that this dispute will come before the sheriff. What then the folk owns, if it owns anything at all, is not (if we may introduce such feudal terms) 'land in demesne' but 'land in service,' in other words, a superiority or seignory over land. We must add that it is a superiority over free men and over men who have titles that can be the subject of law-suits in the county court. And now we must ask, What profit does the nation get out of this superiority? Shall we say that the _tributum_, the _vectigal_ paid to the king is to be regarded as rent paid to the nation, that the _opera regia_, the _victus_, the _pastus_, are services rendered by the tenant to the people, or shall we say that the folk's right over this land is proved by its serving as the fund whereon the king can draw when he desires to save his soul? Then, if on the other hand we make the tillers of the folk-land mere tenants at will, there will be little room left for any landowners, for any 'peasant proprietors.' To meet this difficulty it has been supposed that, at all events at a remote time, there was much land that was neither folk-land nor book-land. The allotments which the original settlers received were neither folk-land nor book-land.

[The _alod_.]

In order to describe those allotments the words _alod_ and _ethel_ have been used, and other terms, such as 'family land' and 'heir land,' have been invented. But in the laws and the charters we do not meet with these phrases. The law of Edward the Elder seems to set before us book-land and folk-land as exhausting the kinds of land. 'He who deforces any one of his right, be it in book-land, be it in 'folk-land' must pay a penalty. It is difficult to believe that this law says nothing of one very common kind of land, still more difficult to believe that already in the first half of the ninth century the amount of the so-called _alod_, _ethel_, or 'heir-land,' had become so small that it might be neglected. So far as we can see, book-land from first to last was only held by the churches and by very great men. The books that we have, more especially the later books, are with hardly any exceptions furnished with clauses of immunity, clauses which put the land outside the national system of police, and, as we think, of justice also. It is not to be imagined for one moment that the numerous _liberi homines_ who even in the Conqueror's reign held land in Essex and East Anglia had books. To say that book-land had consumed the ancient _alod_ or _ethel_, is in truth to say that all land was privileged.

[Book-land and privilege.]

We turn once more to Edward's law. Land, it would seem, is either book-land or folk-land. Book-land is land held by book, by a royal and ecclesiastical _privilegium_. Folk-land is land held without book, by unwritten title, by the folk-law. 'Folk-land' is the term which modern historians have rejected in favour of the outlandish _alod_. The holder of folk-land is a free landowner, though at an early date the king discovers that over him and his land there exists an alienable superiority. Partly by alienations of this superiority, partly perhaps by gifts of land of which the king is himself the owner, book-land is created.

[Kinds of land and kinds of right.]

Edward's law speaks as though it were dealing with two different kinds of land. But really it is dealing with two different kinds of title. We, and even our statutes, habitually speak of freehold land, copyhold land, leasehold land, yet we know that the same piece of land may be at one and the same time freehold, copyhold and leasehold. All land is freehold land; every rood has its freeholder. Bracton habitually spoke of land held by frankalmoin, land held by knight's service, land held in socage, but he knew well enough that a single acre might be held at one and the same time by many different tenures. Just so, we take it, the same land might be both book-land and folk-land, the book-land of the minster, the folk-land of the free men who were holding--not indeed 'of'--but still 'under' the minster. They or their ancestors had held under the king, but the king had booked their land (which also in a certain sense was his land) to a church. The mental effort, the abstraction, that would be required of us were we to speak of various 'estates, rights and titles,' we try to avoid by speaking as though the distinction that was to be indicated were a distinction between various material things, and as though a freehold or copyhold quality were, like fertility or sterility, an attribute of the soil. Even so abstract a term as 'estate' is soon debased by the vulgar mouth: estates are ploughed; men 'shoot over' their estates. 'Book-land' is a briefer term than 'land held by book-right'; 'folk-land' is a briefer term than 'land held by folk-right.' The same piece of land may be held by book-right and by folk-right; it may be book-land and folk-land too.

And now we must turn to consider another element in the king's alienable superiority. We must speak of jurisdiction.

FOOTNOTES:

[904] Vinogradoff, Folkland, Eng. Hist. Rev. viii. 1.

[905] Edw. I. 2.

[906] Schmid, p. 575.

[907] K. 281 (ii. 64); B. M. Facs. ii. 33.

[908] K. 317 (ii. 120); T. 480; B. ii. 195.

[909] K. 260 (ii. 28); B. ii. 33; B. M. Facs. ii. 30.

[910] In K. 1019 (v. 58) there is talk of Offa having booked land to
himself, and in K. 1245 (vi. 58) Edgar seems to perform a
similar feat without mentioning the consent of the witan,
though they attest the deed. See Stubbs, Const. Hist. i. 145.

[911] From Alfred and Edward the Elder we have hardly enough genuine
charters to serve as materials for an induction, but Edward's
reign seems the turning point.

[912] A.D. 838, K. 1044 (v. 90): Egbert gives 'aliquantulam terrae
partem meae propriae hereditatis ... cum consilio et
testimonio optimatum meorum.' A.D. 863, K. 1059 (v. 116):
Æthelred 'cum consensu ac licentia episcoporum ac principum
meorum' gives 'aliquam partem agri quae ad me rite
pertinebat.'

[913] Stubbs, Const. Hist. i. 212.

[914] We know of but four specimens earlier than 750. The first is a
deed whereby Wulfhere of Mercia makes a grant 'cum consensu et
licentia amicorum et optimatum meorum': E. 4; B. M. Facs. iv.
1. The second is a deed whereby Hlothar of Kent makes a grant
with the consent of Abp Theodore, his (Hlothar's) brother's
son Eadric and all the princes; K. 16 (i. 20); B. M. Facs. i.
1. The third, known to us only through a copy, is one by which
Æthelbald of Mercia makes a grant 'cum consensu vel
episcoporum vel optimatum meorum'; K. 83 (i. 100). By a fourth
deed, K. 27 (i. 30), Eadric grants land 'cum consensu meorum
patriciorum'; but this also we only get from a copy.

[915] K. 1 (i. 1); A.D. 604. Æthelbert for Rochester.

[916] K. 43 (i. 50); B. i. 140: A.D. 697, Wihtræd.--K. 47 (i. 54);
E. 17; B. M. Facs. i. 4: Wihtræd.--K. 77 (i. 92); E. 24; B. M.
Facs. i. 6: A.D. 732, Æthelbert.--K. 132 (i. 160); E. 54; B.
M. Facs. ii. 4: A.D. 778, Egbert.

[917] K. 85 (i. 102); E. 32: Eadbert for Rochester. Of this deed we
have but a transcript. The formula of attestation is very
curious and may have been distorted either by the original
scribe or the copyist.

[918] K. 157 (i. 189), Offa of Mercia uses this eschatocol, but in a
Kentish gift.

[919] K. 1006-7 (v. 47-8); B. i. 256-7.

[920] K. 79 (i. 95).

[921] Brunner, Rechtsgeschichte der Röm. u. German. Urkunde, pp.
220-8; Giry, Manuel de diplomatique, 614. Bede in his famous
letter (ed. Plummer, i. 417) uses the technical _astipulari_
to describe the action of the prelates who set their crosses
to the king's charters. It occurs also in a charter of 791, K.
1015 (v. 53-4). See also K. 691 (iii. 289), 'constipulatores.'

[922] Brunner, op. cit. 158. Dr Brunner thinks that the precedents
for A.-S. charters came direct from Rome rather than from any
other quarter (p. 187); but he fully admits that these
charters when compared with foreign instruments show a certain
formlessness.

[923] Under our own law we may conceive a case in which a man would
be compelled to die unwillingly intestate because one of the
two people present at his death-bed capriciously refused to
witness a will.

[924] The transition is marked by the following charters.--K. 104,
105, 108, 113, in these we have the mere rogation of fit and
proper witnesses.--K. 114 (a Kentish deed which Kemble
ascribes to 759-765), in this the clause of attestation speaks
of the counsel and consent of the _optimates_ and
_principes_.--K. 118, Uhtred of the Hwiccas makes a grant with
the consent and licence of Offa king of the Mercians and of
his (Offa's) bishops and _principes_.--K. 120, the witnesses
are described as _condonantes_.--K. 121, 122, (A.D. 774) the
clause of attestation says 'cum sacerdotibus et senioribus
populi more testium subscribendo.'--K. 131, 'testium ergo et
consentientium episcoporum ac principum meorum signa et nomina
pro firmitatis stabilimento hic infra notabo.'--A clause of
this kind becomes common with Offa, see K. 134, 137, 138, 148,
151, but occasionally there are relapses and the signatories
merely appear as 'fit and proper' or 'religious' witnesses.
But it is not until after 800 that, save as a rare exception,
the consent of the magnates is brought into connexion with the
operative words.

[925] Bresslau, Urkundenlehre, i. 697.

[926] Bede's letter to Egbert (ed. Plummer, i. 405) and his account
of Benedict Biscop (ib. 364) show that it was expected of the
king that he should provide land for young warriors of noble
race; but no word implies that the land out of which the
provision was to be made was 'folk-land,' nor is it clear that
the young warrior was to have a book.

[927] See William's charter for Fécamp, Neustria Pia, p. 224.

[928] A.D. 692-3, K. 35 (i. 39); B. M. Facs. i. 2: a grant by
'Hodilredus parens Sebbi ... cum ipsius consensu'; 'ego Sebbi
rex Eastsaxonorum pro confirmatione subscripsi.'--A.D. 704, K.
52 (i. 59); B. M. Facs. i. 3: 'Ego Sueabræd rex Eastsaxonorum
et ego Pæogthath cum licentia Ædelredi regis.'--A.D. 706, K.
56 (i. 64), 'Ego Æthiluueard subregulus ... consentiente
Coenredo rege Merciorum.'--A.D. 721-46, K. 91 (i. 109),
Æthelbald of Mercia attests a lease made by the bishop of
Worcester.--A.D. 759, K. 105 (i. 128); B. M. Facs. ii. 2:
three brothers, each of whom is a _regulus_, make a gift 'cum
licentia et permissione Regis Offan Merciorum.'--A.D. 767,
770, K. 117-8 (i. 144-5): two gifts by Uhtred, _regulus_ of
the Hwiccas, 'cum consensu et licentia Offani Regis
Merciorum.'--A.D. 791? K. 1016 (v. 54): 'Ego Aldwlfus dux
Suð-Saxonum ... cum consensu et licentia Offae regis
Merciorum.'

[929] K. 113 (i. 137).

[930] K. 314 (ii. 112); 1067 (v. 127); Liber de Hyda, 57. On the
death of Æthelbald, two of his sons, Æthelred and Alfred, seem
to have made over the lands which had been devised to them by
their father to Æthelbert, the reigning king, so that he might
enjoy them during his life. Then again, on Æthelbert's death,
Alfred would not insist upon a partition but allowed his share
to remain in the possession of Æthelred, the reigning king.
See also Eadred's will, Liber de Hyda, 153; he seems to have a
good deal of land of which he can dispose freely.

[931] K. 1312 (vi. 172).

[932] The violated books are in Chron. Abingd. i. 314, 317, 334.

[933] Were it possible for us to say that the kingship was elective,
this would be but a beginning of difficulties. For example, we
should raise a question which in all probability has no
answer, were we to ask whether a majority could bind a
minority.

§ 3. _Sake and Soke._

[Importance of seignorial justice.]

Of all the phenomena of feudalism none seems more essential than seignorial justice. In times gone by English lawyers and historians have been apt to treat it lightly and to concentrate their attention on military tenure. For them 'the introduction of the military tenures' has been 'the establishment of the feudal system.' But when compared with seignorial justice, military tenure is a superficial matter, one out of many effects rather than a deep-seated cause. Seignorial justice is a deep-seated cause of many effects, a principle which when once introduced is capable of transfiguring a nation. Of the origin and antiquity of this principle, however, some even of our most illustrious historians have spoken with great hesitation and therefore we shall spend some time in examining the texts which reveal what can be known about it, admitting once for all that they leave much room for differences of opinion.

[Theory of the modern origin of seignorial justice.]

Since the doctrine to which we have come would trace seignorial justice back to a remote time, we shall do well to state at the outset an extreme version of the opposite doctrine, a version which has been elaborately set forth in a learned and spirited essay[934].--On the eve of the battle of Hastings a seignorial court was still a new thing in England. It was a Norman precursor of the Norman Conquest. England owes it to Edward the Confessor, who was 'half-Norman by birth and wholly Norman by education and sympathies.' It came to us with 'a new theory of constitutional law.' From the reign of no older king can any evidence be produced of the existence--at any rate of the legalized existence--of private courts. True, there are charters that give to the holders of great estates the profits of jurisdiction; but a grant of the profits of jurisdiction is one thing, jurisdiction itself is another. True, that one man might have _soke_ over another, but this does not mean that he had jurisdiction; at the most it means that he was entitled to the profits of justice, to wites, to fines and amercements. 'No instance can be found before the Norman times in which _sócn_ means jurisdiction. _Sócn_ had a technical meaning of its own which is always rigorously observed. The idea of jurisdiction, on the other hand, was expressed by an equally technical word, the meaning of which is also rigorously observed. This is _sacu_, a word which has strangely vanished from our legal vocabulary, but is still preserved, even in its technical sense, by the German _sache_[935].'

[Sake and soke in the Norman age.]

Now it will not be disputed that in Domesday Book and the Leges Henrici this distinction is obliterated. _Soke_ means jurisdiction and '_sake_ and _soke_' is but a pleonastic phrase, which means no more than _soke_[936]. Nor is it disputable that on the vigil of the Conquest a great deal of jurisdiction was wielded by the lords. Not a few of the 'hundreds' were in private hands, and, apart from hundredal jurisdiction, a lord might have and often had sake and soke over his own lands. It is not denied that Edward the Confessor had freely granted to churches and other lords large rights of justice,--not merely rights to the profits of jurisdiction, but jurisdiction itself. The question is whether what he did was new.

[The Confessor's writs.]

For one moment longer we may dwell on the indisputable fact that he dealt out jurisdictional rights with a lavish hand. This we gather, not so much from his Latin land-books, as from English writs in which he announces to the bishop, earl, sheriff and great men of a county that he has given land in that county to some church 'with sake and soke and toll and team'; sometimes he adds 'with infangennethef, grithbrice, foresteal, hamsocn, flymena-fyrmth,' and so forth. Sometimes the donees are to have these rights in all their own lands. Sometimes he gives them the hundredal jurisdiction over lands that are not their own. Thus to St. Benet of Ramsey he gives soken over all the men in a hundred and a half--over all the men who are 'moot-worthy, fyrd-worthy, and fold-worthy,' whosesoever men they may be: that is to say (as we understand it) he gives a jurisdiction over all the free men of the district, the men who attend the moots, who attend the host and who are not compelled by any _soca faldae_ to send their sheep to a seignorial fold, and this although those men be bound to St. Benet neither by tenure nor by personal commendation[937]. Again, he concedes that the donee's tenants shall be quit of shires and hundreds[938]. Again, he gives the favoured church taxational power: whenever the king takes a geld, be it army-geld, or ship-geld, the monks may impose a similar tax upon the township and keep the proceeds to their own use[939]. In short, it seems not too much to say that any delegation and appropriation of justice of which our Norman kings were guilty had an ample warrant in the practice of St. Edward.

[Cnut's practice.]

Now the theory which would make him an innovator in this matter receives a rude shock from a writ of Cnut[940]. The king announces that the Archbishop of Canterbury is to be worthy throughout his lands of his sake and soke and grithbrice, hamsocn, foresteal, infangennethef and flymena-fyrmth. Until the genuineness of this writ, which does not stand quite alone[941], be disproved, the charge that has been brought against Edward fails. He was but following in the steps of the great Dane, though it may be that he rushed forward where his predecessor had trod cautiously.

[Cnut's law.]

Having seen what Cnut could do upon occasion, we turn to the famous passage in his dooms which declares what 'rights the king has over all men[942].' In Wessex and Mercia (in the Danelaw the list is somewhat different) he has hamsocn, foresteal, flymena-fyrmth and fyrd-wite 'unless he will honour a man yet further and grant him this worship.' Now if we had not before us his writ for the archbishop, we might perhaps argue that this law merely decreed that the profits of certain pleas were not to be covered by the 'farms' paid to the king by the sheriffs and other national officers. But in the writ we see that Cnut allows to the archbishop just the excepted rights, just that 'worship' which men are not to have as a general rule. Nor surely can we say that what is conceded is, not jurisdiction itself, but merely the profits of jurisdiction. The archbishop is to have _sake_ as well as _soke_, and those who have contended for the strictest interpretation of royal grants have not contended that the former of these words can mean anything but 'causes,' 'pleas,' 'jurisdiction.' Therefore when it is interpreted by the aid of this writ, Cnut's law seems to imply that private jurisdiction is a common thing. The king is already compelled to protest that there are certain pleas of the crown that are not covered by vague and general words.

[The book and the writ.]

Now express grants of _sake_ and _soke_ first become apparent to us in documents of a certain class, a class that we do not get before the last years of the tenth century. It is necessary therefore that we should make a short digression into the region of 'diplomatics.' The instruments of the Confessor's reign, and we may add of the Norman reigns, which we loosely call royal charters or royal land-books divide themselves somewhat easily into two main classes, which we will call respectively (1) charters and (2) writs. These names are not very happy, still they are the best that occur to us. If we have regard to the form of the instrument, the distinction is evident. The charter is with rare exceptions in Latin. It begins with an invocation of the Triune God or perhaps with a sacred monogram. On the other hand, there is no address to mortal men; there is no salutation. There follow a pious _arenga_ setting forth how good a thing it is to make gifts, how desirable it is, since men are very wicked, that transactions should be put into writing. Then the king states that he gives, or has given, or will give--the use of the future tense is not uncommon--certain land to a certain person. Then comes a clause which we shall hereafter call 'the clause of immunity':--the land is to be free from certain burdens. Then comes the anathema or damnatory clause, threatening all breakers of the charter with excommunication here and torment hereafter. Then in the charters of the time before the Conquest the boundaries of the land are described in English. Then comes the sign of the cross touched by the king's hand and the crosses of the witan or nobles who 'attest' or 'attest and consent to' the grant. In the writ all is otherwise. In the Confessor's day it is usually, in the Norman reigns it is sometimes, an English document. It begins, not with an invocation, but with a salutation;--the king greets his subjects or some class of his subjects: King Edward greets 'Herman bishop and Harold earl and all my thegns in Dorset,' or 'Leofwin bishop and Edwin earl and all my thegns in Staffordshire':--and then he tells them something. He tells them that he has granted lands or liberties to a certain person. There follows a command or a threat--'I command and firmly enjoin that none shall disturb the grantee,' 'I will not suffer that any man wrong the grantee.' The boundaries are not described. There is seldom any curse. The king makes no cross. If any witnesses are mentioned, they are few and they do not make crosses.

[Differences between book and writ.]

Now these formal differences correspond more or less exactly to a substantial difference. As every modern lawyer knows, a written document may stand in one of two relations to a legal transaction. On the one hand it may itself be the transaction: that is to say, the act of signing, or of signing and delivering, the document may be the act by which certain rights are created or transferred. On the other hand, the instrument may be but evidence of the transaction. Perhaps the law may say that of such a transaction it will receive no evidence save a document written and signed; perhaps it may say that the testimony of documents is not to be contradicted by word of mouth; but still the document is only evidence, though it may be incontrovertible evidence, of the transaction; the transaction may have been complete before the document was signed[943]. This material distinction is likely to express itself in points of form; for instance, such a phrase as 'I hereby give' is natural in the one case; such a phrase as 'Know all men by this writing that I have given' is appropriate in the other. Instruments of both kinds were well enough known in the Frankish kingdom; their history has been traced back into the history of Roman conveyancing[944]. It would be out of place were we here to discuss the question whether the Anglo-Saxon land-book was a dispositive or merely an evidential document; suffice it to say that with rare exceptions the instruments that are of earlier date than the Confessor's reign are in form charters and not writs. On the other hand, the documents of the Angevin kings which treat of gifts of lands and liberties, though we call them charters, are in form (if we adopt the classification here made) not charters but writs. In form they are evidential rather than dispositive; they are addressed to certain persons--all the king's lieges or a class of the lieges--bidding them take notice that the king has done something, has given lands, and then adding some command or some threat. This command or threat makes them more than evidential documents; the _Sciatis me dedisse_ is followed by a _Quare volo et firmiter praecipio_; it is not for no purpose that the king informs his officers or his subjects of his having made a gift; still in form they are letters, open letters, 'letters patent,' and the points of difference between the Angevin charter and the Angevin 'letters patent' (strictly and properly so called) are few, technical and unimportant when compared with the points of difference which mark off these two classes of documents from the ancient land-book[945]. In short before the end of the twelfth century, the writ-form or letter-form with its salutation, its 'Know ye,' its air of conveying information coupled with commands, has entirely supplanted the true charter-form with its dispositive words and its air of not merely witnessing, but actually being, a gift of land.

[Anglo-Saxon writs.]

But to represent this as a contrast between English instruments and Norman or French instruments would be a mistake. In the first place, we have a few documents in writ-form that are older than the days of the Norman-hearted Edward. As already said, we have a writ from Cnut and it has all those features of Edward's writs which have been considered distinctively foreign. We have another writ from the same king. The king addresses Archbishop Lyfing, Abbot Ælfmær, Æthelric the shireman 'and all my thegns twelvehinde and twihinde.' He tells them that he has confirmed the archbishop's liberties and threatens with the pains of hell any one who infringes them[946]. We have a writ from Æthelred the Unready, and a remarkable writ it is. He addresses Ælfric the ealdorman, Wulfmær and Æthelweard and all the thegns in Hampshire and tells them how he has confirmed the liberties of bishop Ælfheah and how large tracts of land are to be reckoned as but one hide--an early example of 'beneficial hidation[947].' Secondly, the solemn charter with its invocation, its pious harangue, its dispositive words, its religious sanction, its numerous crosses, its crowd of attesting and consenting witnesses, was in use in Normandy before and after the conquest of England. Thirdly, the Norman kings of England used it upon occasion. Much they did by writ. The vast tracts of land that they had at their disposal would naturally favour the conciser form; but some of the religious houses thought it well to obtain genuine land-books of the old English, and (we must add) of the old Frankish type. The king's seal was not good enough for them; they would have the king's cross and the crosses of his wife, sons, prelates and barons. The ultimately complete victory of what we have called the writ-form over what we have called the charter-form may perhaps be rightly described as a result of the Conquest, an outcome, that is, of the strong monarchy founded by William of Normandy and consolidated by Henry of Anjou, but it can not be rightly described as the victory of a French form over an English form; and a very similar change was taking place in the chancery of the French kings[948].

[Sake and soke appear when writs appear.]

We may say then that the appearance of words clearly and indisputably conceding jurisdictional rights is contemporaneous with the appearance of a new class of diplomata, namely royal writs as contrasted with royal charters or land-books. We may add that it is contemporaneous with the appearance of royal diplomata couched in the vernacular language. This may well lead us to two speculations. In the first place, is it not very possible that many ancient writs have been lost? The writ was a far less solemn instrument than the land-book, and it is by no means certain that the writs of the Confessor were intended to serve as title-deeds or to come to the custody of those for whose benefit they were issued. King Edward greets the bishop of London, Earl Harold, the sheriff and all the thegns of Middlesex and tells them how he has given land to St. Peter and the monks of Westminster, and how he wills that they enjoy their sake and soke. The original document is presented to the bishop, the earl, or the sheriff (to all of them perhaps as they sit in their shire moot) and we can not be certain that after this the monks ought to have that document in their possession, that it ought not to be kept by the sheriff, or perhaps returned to the king with an indorsement expressive of obedience. Many hundred writs must King William have issued in favour of his barons--this is plain from Domesday Book--and what would we not give for a dozen of them? Secondly, it is well worth notice that 'sake and soke' begin to appear so soon as royal diplomata written in English become common, and when we observe the formulas which enshrine these words we find some difficulty in believing that such formulas are new or foreign. Let us listen to one.

saca and socne
toll and team
griðbrice and hamsocne
and foresteal
and alle oðre gerihte
inne tid and ut of tide
binnan burh and butan burh
on stræte and of stræte.

Surely this alliteration and this rude rhythm tell us that the clause has long been fashioning itself in the minds and mouths of the people and is no piece of a new-fangled 'chancery-style[949].' And one other remark about language will occur to us. In many respects the law Latin of the middle ages went on becoming a better and better language until, in the thirteenth century, it became a very good, useful and accurate form of speech. But it gained this excellence by frankly renouncing all attempts after classicality, all thought of the golden or the silver age, and by freely borrowing from English whatever words it wanted and making them Latin by a suffix. The Latin of the Anglo-Saxon land-books is for all practical purposes a far worse language, just because it strives to be far better. It wanted to be good Latin, and even at times good Greek. The scribe of the ninth or tenth century would have been shocked by such words as _tainus_, _dreinus_, _smalemannus_, _sochemannus_ which enabled his successors to say precisely what they wanted. He gives us _provincia_ instead of _scira_, _satrapes_ instead of _aldermanni_, and we read of _tributum_ and _census_ when we would much rather have read of _geldum_ and _gablum_. It was out of the question that he should be guilty of such barbarisms as _saca et soca_. If he is to speak to us of these things, he will do so in some phrase which he thinks would not have disgraced a Roman orator--in a phrase, that is, which will not really fit his thought.

[Traditional evidence of sake and soke.]

The traditions, the legends, current in later times, can not be altogether neglected. The prelates of the thirteenth century often asserted that some of their franchises, and in particular their hundred courts, had been given to their predecessors in an extremely remote age. Thus the bishop of Salisbury claimed the hundred of Ramsbury in Wiltshire by grant of King Offa of Mercia[950]; the Abbot of Ramsey claimed the hundred of Clackclose in Norfolk by grant of King Edgar[951]. On such claims we can lay but very little stress, for if the church had held its 'liberties' from before the Conquest, the exact date at which it had acquired them was of little importance and their origin would easily become the sport of guess-work and myth. But occasionally we can say that there must in all probability be some truth in the tale. Such is the case with the famous hundred of Oswaldslaw in Worcestershire. When the Domesday survey was made this hundred belonged to the church of Worcester. Worcestershire was deemed to comprise twelve hundreds and Oswaldslaw counted for three of them[952]. Oswaldslaw contained 300 hides, and to all seeming the whole shire contained 1200 hides or thereabouts. Even in the thirteenth century a certain tripleness seems to be displayed by this hundred; the bishop holds his hundred court in three different places, namely, outside the city of Worcester, at Dryhurst and at Wimborntree[953]. Now the story current in St. Mary's convent was that this triple hundred of Oswaldslaw received its name from Oswald, the saintly bishop who ruled the church of Worcester from 960 to 992. A charter was produced, perhaps the most celebrated of all land-books, that _Altitonantis Dei largiflua clementia_, which, after many centuries, was to prove the King of England's dominion over the narrow seas[954]. According to this charter Edgar, Oswald's patron, threw together three old hundreds, Cuthbertslaw, Wolfhereslaw, and Wimborntree to form a domain for the bishop and his monks[955]. Could we accept the would-be charter as genuine, could we even accept it as a true copy of a genuine book (and this we can hardly do)[956], there would be an end of all controversy as to the existence of seignorial justice in the year 964, for undoubtedly it contains words which confer jurisdiction[957]. Upon these we will not rely: the fact remains that in Domesday Book there appears this hundred of Oswaldslaw, that it is treated as a triple hundred, as three hundreds, that the bishop has jurisdiction over it, that the sheriff has no rights within it, that it looks like a very artificial aggregate of land, for pieces of it lie intermixed with other hundreds and pieces of it lie surrounded by Gloucestershire. In 1086 the church of Worcester had to all appearance just those rights which the _Altitonantis_ professed to grant to her; already they were associated with the name of Oswald; already they were regarded as ancient privileges. 'Saint Mary of Worcester has a hundred called Oswaldslaw, in which lie 300 hides, from which the bishop of the said church, by a constitution of ancient times, has the profits of all sokes and all the customs which belong thereto for his own board and for the king's service and his own, so that no sheriff can make any claim for any plea or for any other cause:--this the whole county witnesses[958].' Surely the whole county would not have spoken thus of some newfangled device of the half-Norman Edward. Such a case as this, so great a matter as the utter exclusion of the sheriff from one quarter of the shire, we shall hardly attempt to explain by hypothetical usurpations. These liberties were granted by some king or other. If they were granted by the Confessor, why was not a charter of the Confessor produced? Why instead was a charter of Edgar produced, perhaps rewritten and revised, perhaps concocted? The easiest answer to this question seems to be that, whatever may be the truth about this detail or that, the _Altitonantis_ tells a story that in the main is true. The diplomatist's scepticism should in this and other instances be held in check by the reflexion that kings and sheriffs did not permit themselves to be cheated wholesale out of valuable rights, when the true state of the facts must have been patent to hundreds of men, patent to all the men of Oswaldslaw and to 'the whole county' of Worcester[959].

[Criticism of the earlier books.]

We may now turn to the genuine books of an earlier time and patiently examine their words. It is well known that an Anglo-Saxon land-book proceeding from the king very commonly, though not always, contains a clause of immunity. Sometimes a grant of immunity is the essence of the book; the land in question already belongs to a church, and the bishop or abbot now succeeds in getting it set free from burdens to which it has hitherto been subject. What is now granted to him is 'freedom,' 'liberty,' 'freóls'; the book is a _freóls-bóc_[960]; it may be that he is willing to pay money, to give land, to promise prayers in return for this franchise, this _libertas_[961]. Thus, for example, King Ceolwulf of Mercia grants a _libertas_ to the Bishop of Worcester, freeing all his land from the burden of feeding the king's horses, and in consideration of this grant the bishop gives to the king five hides of land for four lives and agrees that prayers shall be said for him every Sunday[962].

[The clause of immunity.]

Now in an ordinary case the clause of immunity will first contain some general words declaring the land to be free of burdens in general, and then some exceptive words declaring that it is not to be free from certain specified burdens[963]. Both parts of the clause demand our attention. The burdens from which the land is to be free are described by a large phrase. Usually both a substantive and an adjective are employed for the purpose; they are to be freed _ab omni terrenae servitutis iugo_--_saecularibus negotiis_--_mundiali obstaculo_--_mundialibus causis_--_saecularibus curis_--_mundialibus coangustiis_--_cunctis laboribus vitae mortalium_. The adjectives are remarkable, for they seem to suggest a contrast. The land is freed from all earthly, worldly, secular, temporal services. Does this not mean that it is devoted to services that are heavenly, sacred, spiritual[964]? True, that in course of time we may find this same formula used when the king is giving land, not to a church, but to one of his thegns; but still in its origin the land-book is ecclesiastical; 'book-right' is the right of the church, _ius ecclesiasticum_[965], and we may well believe that the phraseology of the books, which in substance remains unaltered from century to century, was primarily adapted to pious gifts. It is by no means improbable that in the middle of the eighth century Æthelbald of Mercia by a general decree conceded to all the churches of his kingdom just that freedom from all burdens, save the _trinoda necessitas_, that was usually granted by the clause of immunity contained in the land-books, and we can hardly say with certainty that half a century before this time Wihtræd had not granted to all the churches of Kent a yet larger measure of liberty, a liberty which absolved them even from the _trinoda necessitas_[966]. Turning from the adjectives to the substantives that are used, we find them to be wide and indefinite words; the lands are to be free from all worldly services, burdens, troubles, annoyances, affairs, business, causes, matters and things. Sometimes a more definite word is added such as _tributum_, _vectigal_, _census_, and clearly one main object of the clause is to declare that the land is to pay nothing to the king or his officers; it is to be free of rent and taxes, scotfree and gafolfree[967]. Occasionally particular mention is made of a duty of entertaining the king, his court, his officers, his huntsmen, dogs and horses, also of a duty of entertaining his messengers and forwarding them on their way[968]. Thus, for example, Taunton, which belonged to the bishop of Winchester, had been bound to provide one night's entertainment for the king and nine nights' entertainment for his falconers and to support eight dogs and a dog-ward, to carry with horses and carts to Curry and to Williton whatever the king might need, and to conduct wayfarers to the neighbouring royal vills. To obtain immunity from these burdens the bishop had to give the king sixty hides of land[969].

[Discussion of the words of immunity.]

No doubt it is a sound canon of criticism that, when in a grant precise are followed by vague words, the former should be taken to explain, and, it may be, to restrain the latter. If, for example, land be freed 'from taxes and all other secular burdens,' we may well urge that the 'other secular burdens' which the writer has in his mind are burdens akin to taxes. And of course it is fair to say that in our days a grant of private justice would be an extremely different thing from a grant of freedom from fiscal dues. But what, we must ask, does this freedom from fiscal dues really mean when it is granted by an Anglo-Saxon land-book? When the monks or canons obtain a charter freeing this territory from all _tributum_ and _census_, from all _pastiones_ and so forth, is it intended that the occupiers of the soil shall have the benefit of this grant? Not so. The religious have been stipulating for themselves and not for their men. The land has been freed from service to the king in order that it may serve the church[970]; the church will take what the king has hitherto taken or it will take an equivalent. In a writ of Edward the Confessor this appears very plainly. Whenever men pay a geld to the king, be it an army-geld or a ship-geld, the men of St. Edmund are to pay a like geld to the abbot and the monks[971]. Probably this principle has been at work all along. The king has had no mind to free the _manentes_, _casati_, _tributarii_ of the church from any _tributum_ or _vectigal_. What has hitherto been paid to him, or some equivalent for it, will now go to the treasury of the church. Thus, even within the purely fiscal region, we see that the object of the immunity is to give the church a grip on those who dwell upon the land. But we must read the clause to its end.

[The _trinoda necessitas_.]

As is well known, it usually proceeds to except certain burdens, to declare that the land is not to be free from them. These burdens, three in number, are on a few occasions spoken of as the _trinoda necessitas_. That term has become common in our own day and is useful. The land is not to be free from the duty of army-service, the duty of repairing strongholds, the duty of repairing bridges. An express exception of this _trinoda necessitas_ out of the general words of immunity is extremely common. Moreover there are charters which speak as though no lands could ever be free from the triple charge[972], and a critic should look with some suspicion upon any would-be land-book which expressly purports to break this broad rule. But besides some books which do expressly purport to free land from the _trinoda necessitas_[973], we have a considerable number of others which grant immunity in wide terms and make no exception of army-service, bridge-bote or burh-bote[974], and we are hardly entitled to reject them all merely because they do not conform to the general principle[975]. More to our purpose is it to notice that, though a grant of jurisdictional powers would be an extremely different thing from a grant of immunity from army-service, the duty of attending the national or communal courts is extremely like the duty of attending the host, and it would not be extravagant to argue that when the king says 'I free this land from all secular burdens except those of fyrd-fare, burh-bote and bridge-bote,' he says by implication 'I free this land from suit to shires and hundreds.'

[The _ángild_.]