Part 32

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.]