Part 29

Let us then examine with some care the charters that come to us from the earliest period, a period which shall begin with the year 600 and end with the year 750. From this time we have some forty charters sufficiently genuine for our present purpose. With hardly an exception the grantor is a king or an under-king, while the grantee is a dead saint, a church, a bishop, an abbot, or a body of monks. If the grantee is a layman, the gift is made to him in order that he may found a minster. If this purpose is not expressed, it is to be understood. Thus in 674 or thereabouts Wulfhere king of the Mercians gives five manses to his kinsman Berhtferth as a perpetual inheritance. Berhtferth is to have full power to give them to whom he pleases, and we are not told that he proposes to devote them to pious uses. Nevertheless, the king makes the gift 'for the love of Almighty God and of his faithful servant St. Peter[866].' In other cases the lay donee is to hold the land 'by church right' or 'by minster right[867].' Indeed there seems to be no single deed of this period which does not purport upon its face to be in some sort an ecclesiastical act, an act done for the good of the church[868].

[Exotic character of the book.]

These charters are documents of ecclesiastical origin; they are also documents of foreign origin. The bishops and abbots have brought or have imported models from abroad. The 'books' that they induce the kings to sign are full of technical phrases which already have an ancient history. By way of illustration we will notice one point at which there is an instructive resemblance and an instructive contrast. On the Continent a grantor of lands ends his conveyance with a 'penal stipulation.' If an heir of his controverts the deed, he is to pay a certain sum, and none the less the conveyance is to remain in full force. In England we can not thus stipulate for a pecuniary penalty; the land-book is still so purely an ecclesiastical affair that the punishment of its violator must be left to the church and to God. So instead of stipulating that he shall pay money, we stipulate that he shall be excommunicated and, if impenitent, damned, but we do not forget to add that none the less the conveyance shall remain as valid and effectual as ever. 'If anyone,' says Eadric of Kent, 'shall attempt to go against this gift, let him be separated from all Christianity and the body and blood of Jesus Christ, _manentem hanc donationis chartulam[869] in sua nihilominus firmitate_.' Such words may look somewhat out of place in their new surroundings; but they are part of a venerable formula.[870]

[The book purports to confer ownership.]

But what is the model to which in the last resort these documents go back? A conveyance by a Roman landowner. He has in the land full and absolute _dominium_ and is going to transfer this to another. Let us observe that the recorded motive which prompts a king to set his cross, or rather Christ's cross, to a land-book is a purely personal motive. He wishes to save his soul, he desires pardon for his crimes[871]. Of the welfare of his realm he says nothing; but his soul must be saved. Sometimes he will give land to an under-king or to an ealdorman, for they also have souls and may desire salvation[872]. He is acting as a private landowner might act. Then he uses terms and phrases which belong to the realm of pure private law. He asserts in the most energetic of all the words that the law of the lower empire could provide that he is a landowner and that he is going to transfer landownership. The land in question is _tellus mea_[873] or it is _terra iuris mei_[874]. Then it is the very land itself that he gives, the land of so many manses, 'with all the appurtenances, fields, pastures, woods, marshes.' It is no mere right over the land that he gives, but the very soil itself. Next let us observe the terms in which the act of conveyance is stated:--_perpetualiter trado et de meo iure in tuo transscribo terram ... ut tam tu quam posteri tui teneatis, possideatis et quaecunque volueris de eadem terra facere liberam habeatis potestatem_[875]. The Latin language of the time had no terms more potent or precise than these. Or again: _aliquantulam agri partem ... Waldhario episcopo in dominio donare decrevimus_[876]. Or again: _aeternaliter et perseverabiliter possideat abendi vel dandi cuicumque eligere voluerit_[877]. But it is needless to multiply examples.

[Does the book really confer ownership?]

No doubt then, if we bring to the interpretation of these instruments the ideas of an earlier or of a later time, the ideas of ancient Rome or of modern Europe, we see the king as a landowner conferring on the churches landownership pure and simple. The fact on which our constitutional historians have laid stress, namely, that sometimes (for we must not overstate the case) the king says that the bishops and his great men are consenting to his deed, important though it may be in other contexts, is of little moment here. The king is put before us as the owner of the land conveyed; it is, he says, _terra mea, terra iuris mei_. The rule, if rule it be, that he must not give away his land without the consent of bishops and nobles in no way denies his ownership. However, we are at the moment more concerned with the fact, or seeming fact, that what he gives to the churches is ownership and nothing less.

[The book really conveys a superiority.]

But if we loyally accept this seeming fact and think it over, to what conclusions shall we not be brought, when we remember how wide were the lands which the churches acquired from the kings, when we think once more how by virtue of royal gifts the church of Worcester acquired a quarter of a county? When these lands were given to the church were they waste lands? It is plain that this was not the common case. Already there were manses, there were arable fields, there were meadows, there were tillers of the soil. One of two conclusions seems to follow. Either the king really did own these large districts, and the tillers of the soil were merely his slaves or _coloni_, who were conveyed along with the soil, or else the clear and emphatic language of the charters sadly needs explanation. Now if we hold by the letter of the charters, if we say that the king really does confer landownership upon the churches, there will be small room left for any landowners in England save the kings, the churches and perhaps a few great nobles. This is a theory which for many reasons we can not adopt; no one can adopt it who is not prepared to believe that Britain was conquered by a handful of chieftains without followers. The only alternative course seems that of saying that many of the land-books even of the earliest period, despite their language, convey not the ownership of land, but (the term must be allowed us) a 'superiority' over land and over free men.

[A modern analogy.]

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'?

[Illustrations.]

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.]