Part 39

But there is a deeper cause of perplexity. Once more we must repeat that the gift shades off into the loan, the loan into the gift. The loan is a gift for a time. It is by words of donation ('I give,' 'I grant') that Oswald's _beneficia_ are _praestita_ to his knights and thegns. Conversely, the king's most absolute gift leaves something owing and continuously owing to him; it may be prayers, it may be fealty and obedience. And having considered by how rarely good fortune it is that we know the terms of Oswald's land-loans, how thoroughly we might have mistaken their nature but for the preservation of a single document, we shall be very cautious in denying that between many of the holders of book-land and the king there was in the latter half of the tenth century a relationship for which we have no other name than feudal tenure. If Oswald's charters create such a tenure, what shall we say of the numerous charters whereby Edred, Edwy, Edgar and Æthelred grant land to their thegns in consideration of fealty and obedience? Must not these thegns fulfil the whole _lex equitandi_; will they not lose their lands if they fail in this service? True that the rights conferred upon them are not restrained within the compass of three lives but are heritable _ad infinitum_. But does this affect the character of their tenure? Can we--we can not in more recent times--draw any inference from 'the _quantum_ of the estate' to 'the quality of the tenure'? On the whole, we are inclined to believe that the practice of loaning lands affected the practice of giving lands, there being no sharp and formal distinction between the gift and the loan, and that when Edward the Confessor died no great injustice would have been done by a statement that those who held their lands by royal books held their lands 'of' the king. This at least we know, that the formula of dependent tenure ('_A_ holds land of _B_') was current in the English speech of the Confessor's days and that some of the king's thegns held their land 'of' the king[1100]. We may guess that those old terms 'book-land' and 'loan-land' would soon have disappeared even from an unconquered England, for it was becoming plain that the book bears witness to a loan. A new word was wanted; that word was _feudum_.

FOOTNOTES:

[1021] K. 729 (iv. 3).

[1022] It is noticeable that the verb _syllan_ usually means 'to give.' Words such as _vendere_ are avoided.

[1023] A.D. 941, K. 390 (ii. 234) condemned by Kemble: 'amabili vassallo meo.'--A.D. 952, K. 431 (ii. 302): 'cuidam vassallo.'--A.D. 956? K. 462 (ii. 338): 'meo fideli vassallo.'--A.D. 967, K. 534 (iii. 11): 'meo fideli vassallo.'--A.D. 821, K. 214 (i. 269): 'expeditionem cum 12 vassallis et cum tantis scutis exerceant.' After the Norman Conquest the word is very rare in our legal texts.

[1024] K. 179 (i. 216): 'eo videlicet iure si ipse nobis et optimatibus nostris fidelis manserit minister et inconvulsus amicus.'

[1025] K. 408 (ii. 263): 'eatenus ut vita comite tam fidus mente quam subditus operibus mihi placabile obsequium praebeat, et meum post obitum cuicunque meorum amicorum voluero eadem fidelitate immobilis obediensque fiat.'

[1026] The terms of the oath are given in Schmid, App. X.

[1027] See above, p. 69.

[1028] See above, p. 69.

[1029] K. 214 (i. 269); H. & S. iii. 556.

[1030] D. B. i. 172; see above, p. 159.

[1031] Cnut, II. 13, 77.

[1032] See above, p. 156.

[1033] K. 1035 (v. 76). The charter is not beyond suspicion, but Kemble has received, and the editors of the Councils (H. & S. iii. 607) have refused to condemn it.

[1034] K. 1020 (v. 60); B. i. 409; H. & S. iii. 528.

[1035] See Brunner, Die Landschenkungen der Merowinger und der Agilolfinger, Forschungen, p. 6: 'He who receives an order acquires in the insignia of the order which are delivered to him an ownership of an extremely attenuated kind. He can not give them away or sell them or let them out or give them in dowry. When he dies they go back to the giver.' We are not aware of any English decision on such matters as these. In a charter for Winchester (B. ii. 238) Edward the Elder is represented as saying that the land that he gives to the church is never to be alienated. If, however, the monks must sell or exchange it, then they may return it 'to that royal family by whom it was given to them.'

[1036] Brunner, Zur Rechtsgeschichte d. röm. u. germ. Urkunde, p. 190; Hist. Eng. Law, ii. 12.

[1037] See Brunner, Landschenkungen, Forschungen, p. 1. In this paper Dr Brunner appealed to our English law, in order that he might settle the famous controversy between Waitz and Roth as to the character of the gifts of land made by the Merovingians. On p. 5 he denies that our rule about 'words of inheritance' should be called feudal. Its starting point is the principle that the quality [an English lawyer would add--and the quantity also] of the 'estate' (_Besitzrecht_) can be determined by the donor's words, by a _lex donationis_ imposed by the donor on the land.

[1038] Brunner, Geschichte der Urkunde, p. 200.

[1039] Heming's Cartulary, i. 259. 'Post mortem autem eius, filius eius ... testamentum patris sui irritum faciens....' Ibid. p. 263: 'Brihtwinus ... eandem terram Deo et Sanctae Mariae obtulit, eundemque nepotem suum monachum fecit. Filius eius etiam, Brihtmarus nomine, pater ipsius iam dicti Edwini monachi, cum heres patris extitisset, ... ipsam ... villam monasterio dedit.' Hist. Eng. Law, ii. 250.

[1040] Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292.

[1041] Crawford Charters (ed. Napier and Stevenson), pp. 23, 126. Early in cent. xi. a bishop in his testament declares how he gives 'to each retainer his steed which he had lent him.'

[1042] See the wills collected by Thorpe; p. 501: Gift to the queen for her mediation that the will may stand. Ibid. p. 505: 'And bishop Theodred and ealdorman Eadric informed me, when I gave my lord the sword that king Edmund gave me ... that I might be worthy of my testament (_mine quides wirde_). And I never ... have done any wrong to my lord that it may not so be.' Ibid. p. 519: 'And I pray my dear lord for the love of God that my testament may stand.' See also pp. 528, 539, 543, 552, 576.

[1043] Thus ealdorman Alfred disposes (but with the consent of the king and all his witan) of his 'heritage' as well as of his book-land; Thorpe, 480. Lodge, Essays on A.-S. Law, p. 108, supposes a certain power of regulating the descent of 'family land' within the family.

[1044] K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et praesente domino meo rege ... concessi ... terram iuris mei ... quam praefatus rex Eadredus mihi dedit in perpetuam hereditatem cum libro eiusdem terrae.'--K. 1130 (v. 254): 'Ego Eadulfus dux per concessionem domini mei regis ... concedo ... has terras de propria possessione mea quas idem ... rex dedit in perpetuam hereditatem.'--K. 1226 (vi. 25): 'Ego Ælfwordus minister Regis Eadgari concedo ... annuente domino meo rege ... villam unam de patrimonio meo.'

[1045] Except in the cases, comparatively rare before the statute _Quia Emptores_, in which the feoffee is to hold of the feoffor's lord.

[1046] Fustel de Coulanges, Les origines du système féodal; Brunner, D. R. G. i. 209-12.

[1047] K. 1058 (v. 115); B. ii. 89: 'et nullus iam licentiam ulterius habeat Christi neque sancti Petri ... neque ausus sit ulterius illam terram praedictam _rogandi in beneficium_.'

[1048] K. 1089 (v. 166); B. ii. 281. See also K. 262 (ii. 33); B. ii. 40; Birhtwulf of Mercia takes a lease for five lives from the church of Worcester and assigns it to a thegn. The consideration for this lease is a promise that for the future he will not make gifts out of the goods of the church.

[1049] K. 1287 (vi. 124). The verb _praestare_ was the regular term for describing the action of one who was constituting a _precarium_ or _beneficium_. In K. 1071 (v. 138) Bp Werferth of Worcester obtains a lease for three lives having petitioned for it; 'terram ... humili prece deprecatus fui.'

[1050] For _commodare_ see K. v. pp. 166, 169, 171; for _lǽnan_, ibid. 162; for _lǽtan_, ibid. 164.

[1051] See Bp Oswald's leases.

[1052] K. 91 (i. 109).

[1053] K. 165 (i. 201).

[1054] K. 279 (ii. 61).

[1055] K. 339 (ii. 149).

[1056] See the charter of Cenwulf for Winchcombe, H. & S. iii. 572 and the editors' note at 575. See also K. 610 (iii. 157), 1058 (v. 115), 1090 (v. 169).

[1057] K. 262 (ii. 33) is a lease for five lives by the church of Worcester; but the lessee is a king.

[1058] Nov. 7, 3. See Brunner, Zur Rechtsgeschichte der röm. u. germ. Urkunde, 187. Theodore of Tarsus would perhaps have known this rule. It does not belong to the general western tradition of Roman law, but is distinctly Justinianic.

[1059] K. 165 (i. 201). The 'limitation' is not very plain; but we seem to have here a lease for two lives.

[1060] K. 182 (i. 220).

[1061] K. 262 (ii. 33); B. ii. 40: lease by church of Worcester to the king for five lives: 'et illi dabant terram illam ea tamen conditione ut ipse rex firmius amicus sit episcopo praefato et familia in omnibus bonis eorum.' K. 279 (ii. 61): lease by the same church to a dux and his wife with stipulation for _amicitia_.

[1062] These are preserved in Heming's Cartulary; see K. 494-673.

[1063] In K. 498 (ii. 386) the _aecclesiasticus census_ is two _modii_ of clean grain; in K. 511 (ii. 400) the lessee must mow once and reap once 'with all his craft'; in K. 508 (ii. 398) he must sow two acres with his own seed and reap it; in K. 661 (iii. 233) is a similar stipulation.

[1064] In many cases the clause of immunity has become very obscure owing to a copyist's blunder. It is made to run thus: 'Sit autem terra ista libera omni regi nisi aecclesiastici censi.' Some mistake between _rei_ and _regi_ may be suspected. What we want is what we get in some other cases, e.g. K. 651, 652, viz. 'libera ab omni saecularis rei negotio.' The following forms are somewhat exceptional; K. 530 and 612, 'butan ferdfare and walgeworc and brycgeworc _and circanlade'_; K. 623, 666, 'excepta sanctae dei basilicae suppeditatione et ministratione'; K. 625, 'exceptis sanctae dei aecclesiae necessitatibus et utilitatibus.'

[1065] Kemble gives it in Cod. Dipl. 1287 (vi. 124) and in an appendix to vol. i. of his history. Also he speaks of it in Cod. Dipl. i. xxxv., and there says that it is 'a laboured justification' by Bp Oswald of his proceedings. To my mind it is nothing of the kind. Oswald is proud of what he has done and wishes that a memorial of his acts may be carefully preserved for the benefit of the church. Of course, if regarded from our modern point of view, the form of the document is curious. The bishop seems engaged in an attempt to bind his lessees by his own unilateral account of the terms to which they have agreed. But his object is to have of the contract a record which has been laid before the king and the witan and which, if we are to use modern terms, will have all the force of an act of parliament, to say nothing of the anathema.

[1066] In places its language becomes turbid and well-nigh untranslatable.

[1067] It may be that the bishop has just obtained from the king a grant or confirmation of the hundredal jurisdiction over what is to be Oswaldslaw.

[1068] K. vi. 125: 'hoc est ut omnis equitandi lex ab eis impleatur quae ad equites pertinet.'

[1069] K. vi. 125: 'et ad totum piramiticum opus aecclesiae calcis atque ad pontis aedificium ultro inveniantur parati.' The translation here given is but guesswork; we suppose that _piramiticus_ means 'of or belonging to fire (πῦρ).'

[1070] Ibid.: 'insuper ad multas alias indigentiae causas quibus opus est domino antistiti frunisci, sive ad suum servitium sive ad regale explendum, semper illius archiductoris dominatui et voluntati qui episcopatui praesidet ... subditi fiant.' Is _archiductor_ but a fine name for the bishop? We think not. In the Confessor's day Eadric the Steersman was 'ductor exercitus episcopi ad servitium regis' (Heming, i. 81), and it would seem from this that the tenants were to be subject to a captain set over them by the bishop. But in the famous, if spurious, charter for Oswaldslaw (see above, p. 268) Edgar says that on a naval expedition the bishop's men are not to serve under the ordinary officers 'sed cum suo archiductore, videlicet episcopo, qui eos defendere et protegere debet ab omni perturbatione et inquietudine.' This would settle the question, could we be certain that the words 'videlicet episcopo' were not the gloss of a forger who was improving an ancient instrument. For our present purpose, however, it is no very important question whether the _archiductor_, the commander in chief of these tenants, is the bishop himself or an officer of his.

[1071] Ibid.: 'praevaricationis delictum secundum quod praesulis ius est emendet.'

[1072] D. B. 174. Compare the entry on f. 175 b relating to the church-scot of Pershore.

[1073] Hist. Eng. Law, i. 217. See also D. B. i. 165 b, Hinetune.

[1074] Heming, i. 81: 'Edricus qui fuit, tempore regis Edwardi, stermannus navis episcopi et ductor exercitus eiusdem episcopi ad servitium regis.' D. B. i. 173 b: 'Edricus stirman' held five hides of the bishop.

[1075] Heming, i. 77: 'Et [episcopus] deracionavit socam et sacam de Hamtona ad suum hundred de Oswaldes lawe, quod ibi debent placitare et geldum et expeditionem ... persolvere.'

[1076] Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625.

[1077] Hist. Eng. Law, i. 288.

[1078] In this respect Oswald's leases seem to have closely resembled a form of lease, known as _manusfirma_, which became common in the France of the eleventh century: Lamprecht, Beiträge zur Geschichte des französischen Wirthschaftslebens, pp. 59, 60.

[1079] Heming, i. 259: 'Ac primo videndum quae terrae trium heredum temporibus accommodatae sint, post quorum decessum iuri monasterii redderentur, quaeve postea iuxta hanc conventionem redditae, quaeve iniuste sunt retentae, sive ipsorum, qui eas exigere deberent, negligentia, sive denegatae sint iniquorum hominum potentia.' See also the story told by Heming on p. 264.

[1080] Lamprecht, op. cit. p. 61, says that it was quite uncommon for the French landlord to get back his land if once he let it for three lives. One of the Worcester leases, but one stigmatized by Kemble (ii. 152), is a lease for three lives 'nisi haeredes illius tempus prolixius a pontifice sedis illius adipisci poterint.'

[1081] K. 637 (iii. 194): 'si in viduitate manere decreverit, vel magis nubere voluerit, ei tamen viro qui episcopali dignitati supradictae aecclesiae sit subiectus.'

[1082] D. B. i. 173: 'Hanc terram tenuit Sirof de episcopo T. R. E., quo mortuo dedit episcopus filiam eius cum hac terra cuidam suo militi, qui et matrem pasceret et episcopo inde serviret.'

[1083] Hist. Eng. Law, i. 214.

[1084] See above, p. 267.

[1085] D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso dominio aecclesiae, et si quid de ipsis cuicunque homini quolibet modo attributum vel praestitum fuisset ad serviendum inde episcopo, ille qui eam terram praestitam sibi tenebat nullam omnino consuetudinem sibimet inde retinere poterat nisi per episcopum, neque terram retinere nisi usque ad impletum tempus quod ipsi inter se constituerant, et nusquam cum ea terra se vertere poterat ... Kenewardus tenuit et deserviebat sicut episcopus volebat ... Ricardus tenuit ad servitium quod episcopus voluit ... Godricus tenuit serviens inde episcopo ut poterat deprecari ... Godricus tenuit ad voluntatem episcopi.'

[1086] D. B. 173 b.

[1087] Oswald's tenants closely resemble the _ministeriales_ of foreign bishops; see Waitz, Verfassungsgeschichte, v. 283-350. Oswald's _lex equitandi_ may be compared with what is said (ibid. p. 293) of a bishop of Constance: 'quibus omnibus hoc ius constituit, ut cum abbate equitarent eique domi forisque ministrarent, equos suos tam abbati quam fratribus suis quocumque necesse esset praestarent, monasterium pro posse suo defensarent.'

[1088] Kemble, Saxons, i. 310 ff.; K. Maurer, Krit. Ueb. i. 104; Essays in Anglo-Saxon Law, No. ii. (Lodge); Brunner, Geschichte d. röm. u. germ. Urkunde, 182.

[1089] K. 617 (iii. 164).

[1090] K. 651 (iii. 216).

[1091] K. 679 (iii. 258).

[1092] K. 1287 (vi. 125): 'propter beneficium quod eis praestitum est.' D. B. i. 173 b. It may cross the reader's mind that the leases of which Oswald speaks in his letter to Edgar are not the transactions recorded in the charters that have come down to us, but other and unwritten leases. But Domesday Book and the stories told by Heming make against this explanation.

[1093] Æthelr. I. 1, § 14.

[1094] Cnut, II. 13, 77.

[1095] K. 328 (ii. 133): A certain Helmstan is guilty of theft 'and mon gerehte ðæt yrfe cinge forðon he wes cinges mon and Ordlaf feng to his londe forðan hit wæs his læn ðæt he on sæt.'

[1096] K. 330 (ii. 136).

[1097] K. 414 (ii. 273): conveyance by Wulfric with the king's consent.--K. 491 (ii. 379): conveyance by Wulfstan with consent of king and witan, who execute the deed.--K. 690-1 (iii. 286-8): conveyances by Æscwig executed by king and witan.--K. 1124, 1130 (v. 246-54): conveyances confirmed by king and bishops.--K. 1201 (v. 378): exchange with king's consent.--K. 1226 (vi. 25): conveyance by a thegn reciting king's consent. A few documents we must leave unclassified; K. 499, 591, 693; we do not know how they were executed or what was their evidential value.

[1098] Brunner, Geschichte d. röm. u. germ. Urkunde, p. 175.

[1099] Hist. Eng. Law, i. 212.

[1100] K. 843 (iv. 201): 'swa full and swa forð swa Ðurstan min huskarll hit furmest of me heold.'--K. 846 (iv. 205): 'swa full and swa forð swa Sweyn mi may hit formest of me held.'--K. 826 (iv. 190): 'swa Ælfwin sy nunne it heold of ðan minstre.'--K. 827 (iv. 190): 'swa Sihtric eorll of ðan minstre þeowlic it heold.' If K. 1237 (vi. 44) be genuine (and Kemble has not condemned it) then already in the middle of the tenth century 'Goda princeps tenuit terram de rege,' nor only so, 'tenuit honorem de rege'; but this document is unacceptable. At best it may be a late Latin translation of an English original.

§ 5. _The Growth of Seignorial Power._

[Subjection of free men.]

We now return to our original theme, the subjection to seignorial power of free land-holders and their land, for we now have at our command the legal machinery, which, when set in motion by economic and social forces, is capable of effecting that subjection. Let us suppose a village full of free land-holders. The king makes over to a church all the rights that he has in that village, reserving only the _trinoda necessitas_ and perhaps some pleas of the crown. The church now has a superiority over the village, over the ceorls; it has a right to receive all that, but for the king's charter, would have gone to him.

[The royal grantee and his land.]

In the first place, it has a right to the _feorm_, the _pastus_ or _victus_ that the king has hitherto exacted. We should be wrong in thinking that in the ninth century (whatever may have been the case in earlier times) this exaction was a small matter. In 883 Æthelred ealdorman of the Mercians with the consent of King Alfred freed the lands of Berkeley minster from such parts of the king's _gafol_ or _feorm_ as had until then been unredeemed. In return for this he received twelve hides of land and thirty mancuses of gold, and then in consideration of another sixty mancuses of gold he proceeded to grant a lease of these twelve hides for three lives[1101]. The king had been deriving a revenue from this land 'in clear ale, in beer, in honey, in cattle, in swine and in sheep.' In Domesday Book a 'one night's farm' is no trifle; it is all that the king gets from large stretches of his demesne[1102]. Having become entitled to this royal right, the church would proceed to make some new settlement with the villagers. Perhaps it would stipulate for a one night's farm for the monks, that is to say, for a provender-rent capable of supporting the convent for a day. In the middle of the ninth century a day's farm of the monks of Canterbury comprised forty sesters of ale, sixty loaves, a wether, two cheeses and four fowls, besides other things[1103]. When once a village is charged in favour of a lord with a provender-rent of this kind, the lord's grip upon the land may easily be tightened. A settlement in terms of bread and beer is not likely to be stable. Some change in circumstances will make it inconvenient to all parties and the stronger bargainer will make the best of the new bargain. The church will be a strong bargainer for it has an inexhaustible treasure-house upon which to draw. We, however, concerned with legal ideas, have merely to notice that the law will give free play to social, economic and religious forces which are likely to work in the lord's favour.

[Provender rents and the manorial economy.]

But a village charged with a 'provender-rent' may seem far enough removed from the typical manor of the twelfth and thirteenth centuries. In the one we see the villagers cultivating each for his own behoof and supplying the lord at stated seasons with a certain quantity of victuals; in the other the villagers spend a great portion of their time in tilling the lord's demesne land. In the latter case the lord himself appears as an agriculturist: in the former he is no agriculturist, but merely a receiver of rent. The gulf may seem wide; but it is not impassable. One part, the last part, of a process which surmounts it is visible. In the eleventh and twelfth centuries the lords, though they have much land in demesne, still reckon the whole or part of what they are to receive from each manor in terms of 'farms'; the king gets a one night's farm from this manor, the convent of Ramsey gets a fortnight's farm from that manor[1104]. But we can conceive how the change begins. The monks are not going to travel, as a king may have travelled, from village to village feasting at the expense of the folk. They are going to live in their monastery; they want a regular supply of victuals brought to them. They must have an overseer in the village, one who will look to it that the bread and beer are sent off punctually and are good. In the village over which they already have a superiority they acquire a manse of their very own, a _mansus indominicatus_ as their foreign brethren would call it. When once they are thus established in the village, piety and other-worldliness will do much towards increasing their demesne and strengthening their position[1105].

[The church and the peasants.]