Part 30

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.]