Part 33

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_.]

But yet more important is it to notice that charters of the ninth century frequently except out of the words of immunity not three burdens, but four. In addition to the _trinoda necessitas_, some fourth matter is mentioned. Its nature is never very fully described, but it is hinted at by the terms _ángild_, _singulare pretium_, _pretium pro pretio_. In connexion with these charters we must read others which exempt the land from 'penal causes,' or _wíte-rǽden_ and others which expressly grant to the donee the 'wites' or certain 'wites' issuing from the land; also we shall have to notice that there are dooms which decree that certain 'wites' are to be paid to the land-lord or _land-ríca_. Now _ángild_ (_singulare pretium_) is a technical term in common use[976]. When a crime has been committed--theft is the typical crime which the legislators have ever before their eyes--the _ángild_ is the money compensation that the person who has been wronged is entitled to receive, as contrasted with any wite or fine that is payable to the king. We find, then, a charter saying that certain land--not certain persons, but certain land--is to be free from all secular burdens save the _ángild_, and in some cases it will be added that the land is to pay nothing, not one farthing, by way of wite, or that nothing is 'to go out to wite[977].' Of the various interpretations that might possibly be put upon such words one may be at once rejected. It is not the intention of the king who makes or of the church which receives the grant that crimes committed on this land shall go unpunished. No lord would wish his territory to be a place where men might murder and steal with impunity. We may be certain then that if a crime be committed, there is to be a wite; but it is not to go outside the land; the lord himself is to have it. But how is the lord to enforce his right to the wite,--must he sue for it in the national or communal courts, or has he a court of his own?

[The right to wites and the right to a court.]