Part 38

Now we may well say that here is feudal tenure. In the first place, we notice a few verbal points. The recipient of the _lǽn_ has received a _beneficium_ from the bishop, and if he will not hold the land _de episcopo_, none the less he will hold it _sub episcopo_. Then he is the bishop's _fidelis_, his _fidus homo_, his 'hold and true man,' his thegn, his knight, his soldier, his _minister_, his _miles_, his _eques_. Then he takes an oath to the bishop, and seemingly this oath states in the most energetic terms his utter subjection to the bishop's commands. What is more, he swears to be faithful and obedient because he has received a _beneficium_ from the bishop, and the amount of his service is measured by the quantity of land that he has received. Then again, we see that he holds his land by service; if he fails in his service, at all events if he denies his liability to serve, he is in peril of losing the land, though perhaps he may escape by paying a pecuniary fine. As to the services to be rendered, if we compare them with those of which Glanvill and Bracton speak, they will seem both miscellaneous and indefinite; perhaps we ought to say that they are all the more feudal on that account. The tenant is to pay the church-scot, the _ecclesiasticus census_ of other documents. This, as we learn from Domesday Book, is one load (_summa_) of the best corn from every hide of land, and unless it be paid on St. Martin's day, it must be paid twelve-fold along with a fine[1072]. He must pay toll to the bishop when he buys and sells; he must pay _tace_, apparently the pannage of a later time, for his pigs. He must go on the bishop's errands, provide him with hunting-spears, erect his 'deer-hedge' when he goes to the chase. There remains a margin of unspecified services; for he must do what he is told to do according to the will of the bishop. But, above all, he is a horseman, a riding man and must fulfil 'the law of riding.' For a moment we are tempted to say 'the law of chivalry.' This indeed would be an anachronism; but still he is bound to ride at the bishop's command. Will he ride only on peaceful errands? We doubt it. He is bound to do all the service that is due to the king, all the forinsec service[1073] we may say. A certain quantity of military service is due from the bishop's lands; his thegns must do it. As already said, the obligation of serving in warfare is not yet so precisely connected with the tenure of certain parcels of land as it will be in the days of Henry II., but already the notion prevails that the land owes soldiers to the king, and probably the bishop has so arranged matters that his territory will be fully 'acquitted' if his _equites_, his _milites_ take the field. Under what banner will they fight? Hardly under the sheriff's banner. Oswald is founding Oswaldslaw and within Oswaldslaw the sheriff will have no power. More probably they will follow the banner of St. Mary of Worcester. This we know, that in the Confessor's reign one Eadric was steersman of the bishop's ship and commander of the bishop's troops[1074]. This also we know, that in the suit between the churches of Worcester and of Evesham that came before the Domesday commissioners, one of the rights claimed by the bishop against the abbot was that the men of two villages, Hamton and Bengeworth, were bound to pay geld and to fight along with the bishop's men[1075]. And then, suppose that Danes or Welshmen or Englishmen make a raid on the bishop's land, is it certain that he will communicate with the ealdorman or the king before he calls upon his knights to defend and to avenge him? Still we must not bring into undue relief the military side of the tenure.

[Oswald's riding men.]

These men may be bound to fight at the bishop's call, but fighting is not their main business; they are not professional warriors. They are the predecessors not of the military tenants of the twelfth century, but of the _radchenistres_, and _radmanni_ of Domesday Book, the _rodknights_ of Bracton's text, the thegns and drengs of the northern counties who puzzle the lawyers of the Angevin time. Point by point we can compare the tenure of these _ministri_ and _equites_ of the tenth with that of the thegns and drengs of the twelfth and thirteenth centuries and at point after point we find similarity, almost identity. They pay rent; they have horses and their horses are at the service of their lord; they must ride his errands, carry his stores, assist him in the chase; they must fight if need be, but the exact nature of this obligation is indefinite[1076]. Dependent tenure is here and, we may say, feudal tenure, and even tenure by knight's service, for though the English _cniht_ of the tenth century differs much from the knight of the twelfth, still it is a change in military tactics rather than a change in legal ideas that is required to convert the one into the other. As events fell out there was a breach of continuity; the English thegns and drengs and knights either had to make way for Norman _milites_, or, as sometimes happened, they were subjected to Norman _milites_ and constituted a class for which no place could readily be found in the new jurisprudence of tenures. But had Harold won the day at Hastings and at the same time learnt a lesson from the imminence of defeat, some peaceful process would probably have done the same work that was done by forfeitures and violent displacements. The day for heavy cavalry and professional militancy was fast approaching when Oswald subjected his tenants to the _lex equitandi_.

[Heritable loans.]

Yet another of those feudal phenomena that come before us in the twelfth century may easily be engendered by these loans; we mean the precarious inheritance, the right to 'relieve' from the lord the land that a dead man held of him[1077]. In speaking of Oswald's loans as 'leases for three lives' we have used a loose phrase which might lead a modern reader astray. Oswald does not let land to a man for the lives of three persons named in the lease and therefore existing at the time when the lease is made; rather he lets the land to a man and declares that it shall descend to two successive heirs of his. The exact extent of the power that the lessee has of instituting an heir, in other words of devising the land by testament, instead of allowing it to be inherited _ab intestato_, we need not discuss; suffice it that the lessee's rights may twice pass from ancestor to heir, or from testator to devisee[1078]. Now such a lease may cover the better part of a century. A time will come when the land ought to return to the church that gave it; but for some eighty years it will have 'been in one family' and twice over it will have been inherited. Is it very probable that the bishop will be able to oust the third heir? Will he wish to do so, if three generations of thegns or knights have faithfully served the church? May we not be fairly certain that this third heir will get the land on the old terms, if he will 'recognize' the church's right to turn him out? As a matter of fact we see that Oswald's successors have great difficulty in recovering the land that he has let[1079]. In the middle ages he who allows land to descend twice has often enough allowed it to become heritable for good and all. Despite solemn charters and awful anathemas he will have to be content with a relief[1080].

[Wardship and marriage.]

But at least, it will be said, there was no 'right of wardship and marriage.' We can see the beginning of it. In 983 Oswald let five manses to his kinsman Gardulf. Gardulf is to enjoy the land during his life; after his death his widow is to have it, if she remains a widow or if she marries one of the bishop's subjects[1081]. So the bishop is already taking an interest in the marriages of his tenants; he will have no woman holding his land who is married to one who is not his man. And then Domesday Book tells us how in the Confessor's day one of Oswald's successors had disposed of an heiress and her land to one of his knights[1082].

[Seignorial jurisdiction.]

Still, it will be urged, the feudalism here displayed is imperfect in one important respect. These tenants of the church of Worcester hold their land under contracts cognizable by the national courts; they do not hold by any special feudal law, they are not subject to any feudal tribunal. Now if when we hear of 'feudalism,' we are to think of that orderly, centralized body of land-law which in Henry III.'s day has subjected the whole realm to its simple but mighty formulas, the feudalism of Oswald's land-loans is imperfect enough. But then we must remind ourselves that never in this country does feudal law (the _Lehnrecht_ of Germany) become a system to be contrasted with the ordinary land law (_Landrecht_)[1083], and also we must observe that already in Oswald's day the thegns of the church of Worcester were in all probability as completely subject to a private and seignorial justice as ever were any freeholding Englishman. What court protected their tenure, what court would decide a dispute between them and the bishop? Doubtless--it will be answered--the hundred court. But in all probability that court, the court of the great triple hundred of Oswaldslaw was already in the hand of the bishop who gave it its name[1084]. The suits of these tenants would come into a court where the bishop would preside by himself or his deputy, and where the doomsmen would be the tenants and justiciables of the bishop--not indeed because tenure begets jurisdiction (to such a generalization as this men have not yet come)--but still, the justice that these tenants will get will be seignorial justice.

[Oswaldslaw and England at large.]

Now how far we should be safe in drawing from Oswald's loans and Oswaldslaw any general inferences about the whole of England is a difficult question. It is clear that the bishop was at great pains to regulate the temporal affairs of his church. He obtained for his leases the sanction of every authority human and divine, the consent of the convent, the ealdorman, the king, the witan; he deposited the covenant with the king, with the archbishop of Canterbury, with the bishop of Winchester. Also we must remember that he had lived in a Frankish monastery, and that, at least in things monastic, he was a radical reformer. Nor should it be concealed that in Domesday Book the entries concerning the estates of the church of Worcester stand out in bold relief from the monotonous background. Not only is the account of the hundred of Oswaldslaw prefaced by a statement which in forcible words lays stress on its complete subjection to the bishop, but in numerous cases the tenure of the nobler and freer tenants within that hundred is described as being more or less precarious:--they do whatever services the bishop may require; they serve 'at the will of the bishop'; no one of them may have any lord but the bishop; they are but tenants for a time and when that time is expired their land will revert to the church[1085].

[Inferences from Oswald's loans.]

However, we should hesitate long before we said that Oswald's land-loans were merely foreign innovations. His predecessors had granted leases for lives; other churches were granting leases for lives, and the important document that he sent to the king proves to us that we can not trust our Anglo-Saxon lease or land-book to contain the whole of the terms of that tenure which it created. Suppose that this unique document had perished, how utterly mistaken an opinion should we have formed of the terms upon which the thegns and knights of the church of Worcester held their lands! We should have heard hardly a word of money payments, no word of the oath of subjection, of the _lex equitandi_, of the indefinite obligation of obeying whatever commands the bishop might give. It may well be that the thegns and knights of other churches held on terms very similar to those that the bishop of Worcester imposed. Even if we think that Oswald was an innovator, we must remember that the adviser of Edgar, the friend of Dunstan, the reformer of the monasteries, the man who for thirty years was Bishop of Worcester and for twenty years Archbishop of York, was able to make innovations on a grand scale. What such a man does others will do. The yet safer truth that what Oswald did could be done, should not be meaningless for us. In the second half of the tenth century there were men willing to take land on such terms as Oswald has described.

[Economic position of Oswald's tenants.]

These men were not peasants. The land that Oswald gave them they were not going to cultivate merely by their own labour and the labour of their sons and their slaves, though we are far from saying that they scorned to handle the plough. We have in Domesday Book a description of their holdings, and it is clear that in the Confessor's day, when some of Oswald's leases must yet have been in operation, the lessees had what we should describe as small manors with villeins and cottagers upon them. Thus, for example, Eadric the Steersman, who led the bishop's host, had an estate of five hides which in 1086 had three _villani_ and four _bordarii_, to say nothing of a priest, upon it[1086]. Like enough, what the bishop has been 'loaning' to his thegns has been by no means always 'land in demesne,' it has been 'land in service': in other words, a superiority, a seignory. Thus, as we say, another course of the feudal edifice is constructed. Above the cultivator stands the thegn or the _cniht_, who himself is a tenant under the bishop and who owes to the bishop services that are neither very light nor very definite. We can not but raise the question whether the cultivators, if we suppose them to be in origin free landowners, can support the weight of this superstructure without being depressed towards serfage. But we are not yet in a position to deal thoroughly with this question[1087].

[Loan-land and book-land.]

We must now return for a moment to the relation that exists between the loan and the book. _Lǽnland_ is contrasted with _bócland_; but historians have had the greatest difficulty in discovering the principle that lies beneath this distinction[1088]. Certainly we can not say that, while book-land is created and governed by a charter, there will be no written instrument, no book, creating and governing the _lǽn_. We have books which in unambiguous terms tell us that they bear witness to loans. Nor can we say that the holder of book-land will always have a perpetual right to the land, 'an estate in fee simple,' an estate to him and his heirs. In many cases a royal charter will create a smaller estate than this; it will limit the descent of the land to the heirs male of the donee. Moreover the written leases for three lives of which we have been speaking are 'books.' Thus in 977 Oswald grants three manses to his thegn Eadric for three lives, and the charter ends with a statement which tells us in English that Oswald the archbishop is

## booking to Eadric his thegn three hides of land which Eadric formerly

held as _lǽnland_[1089]. A similar deed of 985 contains a similar statement; five hides which Eadric held as _lǽnland_ are now being booked to him, but booked only for three lives[1090]. In yet another of Oswald's charters we are told that the donee is to hold the land by way of book-land as amply as he before held it by way of _lǽnland_[1091]. After this it is needless to say that book-land may be burdened with rents and services. But indeed it would seem that Oswald's thegns and knights held both book-land and _lǽnland_. It was book-land because it had been booked to them, and yet very certainly it had only been loaned to them[1092].

[Book-land in the dooms.]

Let us then turn to the laws and read what they say about book-land. Two rules stand out clearly. Æthelred the Unready declares that every _wíte_ incurred by a holder of book-land is to be paid to the king[1093]. Cnut declares that the book-land of the outlaw, whosesoever man he may be, and of the man who flies in battle is to go to the king[1094]. These laws seem to put before us the holder of book-land as standing by reason of his land in some specially close relationship to the king. If we may use the language of a later day, the holder of book-land is a tenant in chief of the king, and this even though he may have commended himself to someone else. On the other hand, if the holder of _lǽnland_ commits a grave crime, his land reverts, or escheats or is forfeited to the man who made the _lǽn_[1095]. And yet, though this be so and though Oswald's thegns will in some sense or another be holding book-land, we may be quite certain that should one of them be outlawed the bishop will claim the land. Indeed he is careful about this as about other matters. Often he inserts in his charter a clause saying that, whatever the grantee may do, the land shall return unforfeited to the church.

[Relation of loan-land to book-land.]

Any solution of these difficulties must be of a somewhat speculative kind. We fashion for ourselves a history of the book and of the land-loan which runs as follows:--The written charter first makes its appearance as a foreign and ecclesiastical novelty. For a very long time it is used mainly, if not solely, as a means of endowing the churches with lands and superiorities. It is an instrument of a very solemn character armed with the anathema and sanctioned by the crosses of those who can bind and loose. Usually it confers rights which none but kings can bestow, and which even kings ought hardly to bestow save with the advice of their councillors. A mass of rights held under such a charter is book-land, or, if we please, the land over which such rights are exercisable, is book-land for the grantee. In course of time similar privileges are granted by the kings to their thegns, though the book does not thereby altogether lose its religious traits. It is long before private persons begin to use writing for the conveyance or creation of rights in land. The total number of the books executed by persons who are neither kings, nor underkings, nor prelates of the church, was, we take it, never very large; certainly the number of such books that have come down to us is very small.

[Royal and other books.]

Nothing could be more utterly unproved than the opinion that in Anglo-Saxon times written instruments were commonly used for the transfer of rights in land. Let us glance for a moment at the documents that purport to have come to us from the tenth century. Genuine and spurious we have near six hundred. But we exclude first the grants made by the kings, secondly Oswald's leases and a few similar documents executed by other prelates, thirdly a few testamentary or quasi-testamentary dispositions made by the great and wealthy. Hardly ten documents remain. Let us observe their nature. The ealdorman and lady of the Mercians make a grant to a church in royal fashion[1096]; but in every other case in which we have a document which we can conceive as either transferring rights in land or as being formal evidence of such a transfer, the consent of the king or of the king and witan to the transaction is stated, and with hardly an exception the king executes the document[1097]. Even the holder of book-land who wished to alienate it, for example, the thegn who wished to pass on his book-land to a church, did not in general execute a written conveyance. One of three courses was followed. The donor handed over his own book, the book granted by the king, and apparently this was enough; or the

## parties to the transaction went before the king, delivered up the old

and obtained a new book; or the donor executed some brief instrument--sometimes a mere note endorsed on the original book--stating how he had transferred his right[1098]. But in any case, according to the common usage of words, a usage which has a long history behind it, it is only the man who is holding under a royal privilege who has 'book-land.' It is to this established usage that the laws refer when they declare that the king and no lower lord is to have the _wíte_ from the holder of book-land, and that when book-land is forfeited it is forfeited to the king. For all this, however, if you adhere to the letter, book-land can only mean land held by book. Now from a remote time men have been 'loaning' land, and prelates when they have made a loan have sometimes executed a written instrument, a book. A prelate can pronounce the anathema and the recipient of the _lǽn_ may well wish to be protected, not merely by writing, but by Christ's rood. When therefore Bishop Oswald grants a written lease to one of his thegns who heretofore has been in enjoyment of the land but has had no charter to show for it, we may well say that in the future this thegn will have book-land, though at the same time he has but loan-land. We have no scruple about charging our ancestors with having a confused terminology. The confusion is due to a natural development; 'books' were formerly used only for one purpose, they are beginning to be used for many purposes, and consequently 'book-land' may mean one thing in one context, another in another. We may say that every one who holds under a written document holds book-land, or we may still confine the name 'book' to that class of books which was at one time the only class. The king's charters, the king's privileges, have been the only books; they are still books in a preeminent sense. Just so in later days men will speak of 'tenure in capite' when what they really mean is 'tenure in capite of the crown by military service[1099].'

[The gift and the loan.]