conveyance might easily delude a layman or a foreigner. An impecunious
earl, we will say, sells his ancient family estate. We look at the deed
whereby this sale is perfected. The Earl of _A._ grants unto _B. C._ and
his heirs all the land delineated on a certain map and described in a
certain schedule. That in substance is all that the deed tells us. We
look at the map; we see a tract of many thousand acres, which, besides a
grand mansion, has farm-houses, cottages, perhaps, entire villages upon
it. The schedule tells us the names of the fields and of the
farm-houses. Like enough no word will hint that any one lives in the
houses and cottages, or that any one, save the seller, has any right of
any kind in any part of this wide territory. But what is the truth?
Perhaps a hundred different men, farmers and cottagers, have rights of
different kinds in various portions of the tract. Some have leases, some
have 'agreements for leases,' some hold for terms of years, some hold
from year to year, some hold at will. The rights of these tenants
stand, as it were, between the purchaser and the land that he has
bought. He has bought the benefit, and the burden also, of a large mass
of contracts. But of these things his conveyance says nothing[878]. And
so again, in the brief charters of the thirteenth century a feoffor will
say no more than that he has given _manerium meum de Westona_, as though
the manor of Weston were some simple physical object like a black horse,
and yet under analysis this _manerium_ turns out to be a complex tangle
of rights in which many men, free and villein, are concerned.
[Conveyance of superiority in early times.]
But it will be said that all this is the result of 'feudalism.' It
implies just that dismemberment of the _dominium_ which is one of
feudalism's main characteristics. Undoubtedly in the twelfth century the
free tenant in fee simple who holds land 'in demesne' can have, must
have, a lord above him, who also holds and is seised of that land and
who will speak of the land as his. But we are now in the age before
feudalism, in the seventh and eighth centuries. Are we to believe that
the free owner of Kemble's 'ethel, hid, or alod' might have above him,
perhaps always had above him, not merely a lord (for a personal relation
of patronage between lord and man is not to the point), but a landlord:
one who would speak of that 'ethel, hid or alod' as _terra iuris mei_:
one who to save his soul would give that land to a church and tell the
bishop or abbot to do whatever he pleased with it? If we believe this,
shall we not be believing that so far as English history can be carried
there is no age before 'feudalism'?
[Illustrations.]
We will glance for a moment at two transactions which took place near
the end of the seventh century. Bede tells how Æthelwealh king of the
South Saxons was persuaded to become a Christian by Wulfhere king of the
Mercians. The Mercian received the South Saxon as his godson and by way
of christening-gift gave him two provinces, namely the Isle of Wight and
the territory of the Meanwari in Wessex, perhaps the hundreds of Meon in
Hampshire[879]. Then the same Bede tells us that the same Æthelwealh
gave to Bishop Wilfrid a land of eighty-seven families, to wit, the
promontory of Selsey: he gave it with its fields and its men, among whom
were two hundred and fifty male and female slaves[880]. A modern reader
will perhaps see here two very different transactions. In the one case
he sees 'the cession of a province' by one king to another, and possibly
he thinks how Queen Victoria ceded Heligoland to her imperial
grandson:--the act is an act of public law, a transfer of sovereignty.
In the other case he sees a private act, the gift of an estate for pious
uses. But Bede and his translator saw little, if any, difference between
the two gifts: in each case Bede says 'donavit'; the translator in the
one case says 'forgeaf,' in the other 'geaf and sealde.' Now it will
hardly be supposed that the Isle of Wight had no inhabitants who were
not the slaves or the _coloni_ of the king, and, that being so, we are
not bound to suppose that there were no free landowners in the
promontory of Selsey. May it not be that what Æthelwealh had to give and
gave to Wilfrid was what in our eyes would be far rather political power
than private property?
[What had the king to give?]
But over the free land of free landowners what rights had the king which
he could cede to another king or to a prelate, saying withal that the
subject of his gift was land? He had, as we think, rights of two kinds
that were thus alienable; we may call them fiscal rights and justiciary
rights, though such terms must be somewhat too precise when applied to
the vague thought of the seventh and eighth centuries. Of justiciary
rights we shall speak below. As to the rights that we call fiscal, we
find that the king is entitled to something that he calls _tributum_,
_vectigal_, to something that he calls _pastus_, _victus_, the king's
_feorm_; also there is military service to be done, and the king, when
making a gift, may have a word to say about this.
[The king's alienable rights.]
Now it must at once be confessed that the charters of this early period
seldom suggest any such confusion between political power and ownership
as that which we postulate. Still from time to time hints are given to
us that should not be ignored. Thus a Kentish king shortly after the
middle of the eighth century gave to the church of Rochester twenty
ploughlands, not only 'with the fields, woods, meadows, pastures,
marshes and waters thereto pertaining,' but also 'with the _tributum_
which was paid thence to the king[881].' Such a phrase would hardly be
appropriate if the king were giving land of which he was the absolute
owner, land cultivated for him by his slaves.
[Military service as a burden on land.]
A little more light is thrown on the matter by the first rude specimens
of a clause that is to become common in after times, the clause of
immunity. Already in the seventh century Wulfhere of Mercia, having made
a gift of five manses, adds: 'Let this land remain free to all who have
it, from all earthly hardships, known or unknown, except fastness and
bridge and the common host[882].' So in 732 a king of Kent says: 'And no
royal due shall be found in it henceforth, saving such as is common to
all church lands in this Kent[883].' Æthelbald of Mercia says: 'By my
royal power I decree that it be free for ever from all tribute of
secular payments, labours and burdens, so that the said land may render
service to none but Almighty God and the church[884].' Yet more
instructive, if we may rely upon it, is the foundation charter of
Evesham Abbey. Æthelweard has given twelve manses: he then says, 'I
decree that for the future this land be free from all public tribute,
purveyance, royal works, military service (_ab omni publico vectigali, a
victu, ab expeditione, ab opere regio_) so that all things in that place
which are valuable and useful may serve the church of St. Mary, that is
to say, the brethren serving [God] there; save this, that if in the
island belonging to the said land there shall chance to be an unusual
supply of mast, the king may have pasture for fattening one herd of
pigs, but beyond this no pasture shall be set out for any prince or
potentate[885].' Now in the first place, these charters speak as though
military service is due from land:--I (says the king) declare this land
to be free from the 'fyrd,' from the _expeditio_--or--I declare that it
is free from all earthly burdens, except military service and the duty
of repairing bridge and burh. We are not saying that there is already
military tenure, but we do say that already the 'fyrd' is conceived as a
burden on land, in so much that the phrase 'This land is--or is not--to
be free of military service' has a meaning. But after all, land never
fights: men fight. Of what men then is the king speaking when he says
that the land is, or is not, free from the _expeditio_? Not of the
donees themselves, for they are bishops and monks and serve in no army
but God's. Not of the slaves who are on the land, for they are not
'fyrd-worthy.' He is speaking of free men who live on the land; he is
declaring that when he has, if so modern a term be suffered, 'attorned'
them to the church, they will still have to serve in warfare, or he is
declaring that they will be free even from this duty to the state in
order that the land may be the more absolutely at the service of God and
His stewards.
[The king's _feorm_.]
Then military service, along with the duty of repairing bridges and
fastnesses, belongs to a genus of dues, of which unfortunately we get
but a vague description. There are _vectigalia publica_, _opera regia_,
_onera saecularia_, there is _tributum_, there is _victus_. How much of
the information that we get about these matters from later days we may
carry back with us to the earliest period it is difficult to say.
Apparently the king, the under-king, even the ealdorman, has a certain
right of living at the expense of his subjects, of making a progress
through the villages and quartering himself, his courtiers, his
huntsmen, his dogs and horses upon the folk of the townships, of
exacting a 'one night's farm' from this village, a 'two nights' farm'
from that. The men who have to bear these exactions may well be free men
and free landowners; still over them the king has certain rights and
rights that he can give away. According to our interpretation of the
charters, it is often enough such rights as these that the king is
giving when he says that he is giving _terram iuris mei_. He declares,
it will be observed, that the land is to be free from _vectigalia_ and
_opera_ to which it has heretofore been subject. But does he mean by
this to benefit the occupiers of the soil? No, he has no care whatever
to relieve them. Bent on saving his soul, his care is that the land
shall be wholly devoted to the service of God. As we understand the
matter, whatever _vectigalia_ and _opera_ the king has hitherto exacted
from these men the church will now exact. The king has conveyed what he
had to convey, a superiority over free landowners.
[Nature of the _feorm_.]
It is permissible to doubt whether modern historians have fully realized
the extent of the rights which the king had over the land of free
landowners. In the middle of Ine's laws, which follow each other in no
rational order, we suddenly come upon an isolated text, which says this:
'For 10 hides "to foster" 10 vessels of honey, 300 loaves, 12 ambers of
Welsh ale, 30 of clear [ale], 2 old [i.e. full grown] oxen or 10
wethers, 10 geese, 20 hens, 10 cheeses, an amber full of butter, 5
salmon, 20 poundsweight of fodder and a hundred eels[886].' The context
throws no light upon the sentence; but in truth no sentence in Ine's
laws has a context. What is its meaning? We can not but think that this
_foster_ is the king's _victus_[887]. Once a year from every ten hides
he is entitled to this _feorm_. Perhaps it is a 'one night's _feorm_';
for it may be enough to support a king of the seventh century and a
modest retinue during twenty-four hours. Still it will be no trifling
burden upon the land, even if we suppose the hide to have 120 arable
acres or thereabouts. Suppose that the king transfers his right over a
single hide to some bishop or abbot, the donee will be entitled to
receive from that hide a rent which can not be called insignificant. We
dare not argue that this law is a general law for the whole of Wessex.
It may refer only to some newly settled and allotted districts. There
are other hints in these laws of Ine of some large land-settlement, an
allotment of land among great men who have become bound to bring under
cultivation a district theretofore waste[888]. But it is difficult to
dissociate the _foster_ of these laws from the _victus_ of the charters,
and, quite apart from this disputable passage, we have plenty of proof
that the king's _victus_ was an incumbrance which pressed heavily upon
the lands of free landowners[889]. If in England the duty of feeding the
king as he journeys through the country developed into a regular tax or
rent this would not stand alone. That duty plays a considerable part in
the Scandinavian law-books, and in the Denmark of the thirteenth century
we may find arrangements which are very like that set forth in Ine's
law. Every hundred (_herad_), taken as a whole, has to contribute
something towards the king's support. Often it is a round sum of money;
but often it will consist of provisions necessary to maintain the king's
household during a night or two or three nights (_servicium unius
noctis, servicium duarum noctium_). Then the 'service of two nights' is
accurately defined. It consists of, among other things, 26 salted pigs,
14 live pigs, 16 salted oxen, 16 salted sheep, 360 fowls, 180 geese, 360
cheeses, corn, malt, fodder, butter, herrings, stock-fish, pepper and
salt. This revenue stands apart from the revenue derived from the crown
lands; it is regarded as a tax rather than a rent; but it is to this
extent rooted in the soil, that the amount due from each hundred
(_herad_) is fixed[890]. There is a great deal to make us think that at
a quite early time in England such arrangements as this had been made.
If we look at the charters we find that the king is always giving away
manses in fives and tens, fifteens and twenties. This symmetry, this
prevalence of a decimal system, we take to be artificial; already the
manse, or hide, is a fiscal unit, a fraction of a district which has to
supply the king with food or with money in lieu of food[891].
[Tribute and rent.]
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.