[863] Napier and Stevenson, Crawford Charters, p. 43. Some of the

best work that has been done towards connecting Domesday Book

with the A.-S. land-books will be found in a paper on the

Pre-Domesday Hide of Gloucestershire: Transactions of Bristol

and Gloucestershire Arch. Soc. vol. xviii., by Mr C. S.

Taylor.

[864] K. 12 (i. 16); B. i. 69; H. & S. 129; Plummer, Bede, ii. 247.

The charter itself is open to grave suspicion.

[865] C. S. Taylor, The Pre-Domesday Hide of Gloucestershire.

[866] E. p. 4; B. M. Facsim. iv. 1.

[867] K. 83 (i. 100): 'in possessionem aecclesiasticae rationis et

regulae ... in ius monasticae rationis.' K. 90 (i. 108): 'in

possessionem iuris ecclesiastici.' K. 101 (i. 122): 'ut sit

aecclesiastici iuris potestate subdita in perpetuum.'

[868] K. 54 (i. 60) is a gift to an abbess, for compare K. 36 (i.

41). We here leave out of account the early lease for lives

granted by Bp. Wilfrid, K. 91 (i. 109), an important document,

but one which must be mentioned in another context.

[869] An accusative absolute.

[870] Eadric's deed is K. 27 (i. 30). See also Hlothar's charter K.

16 (i. 20) and Snaebraed's, K. 52 (i. 59); B.M. Facs. i.

plates 1, 3. With these should be compared the forms in

Rozière, Formules, i. 208-255. On pp. 235, 253 will be found

instances, one from the very ancient Angevin collection,

another from Marculf, in which the breaker of the charter is

threatened, not only with a money penalty, but also with

excommunication and damnation.

[871] K. Nos. 12, 16, 32, 36, 48, 52, 56, 67, etc.

[872] K. 131 (i. 158).

[873] K. 1.

[874] K. Nos. 27, 35, 77, 79, 999, 1006, 1007.

[875] K. 35 (i. 39); E. 13; B. M. Facs. i. 2.

[876] K. 52 (i. 59); E. 16; B. M. Facs. i. 3.

[877] E. 4; B. M. Facs. iv. 1.

[878] Davidson, Precedents in Conveyancing, i. 88 (ed. 1874): 'In

conveying estates, it is not usual to refer to the leases

affecting the same, unless the leases are for a long term, of

years, or beneficial, or otherwise not of the ordinary type.'

[879] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 230). In the O. E.

version the words are: 'Ond se cyning ... him to godsuna

onfeng and to tacne ðære sibbe him twa mægþe forgeaf, ðæt is

Wiht ealond and Meanwara mægþe on West Seaxna ðeode.'

[880] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 232).

[881] K. 114 (i. 139); E. 49: 'et cum omni tributo quod regibus inde

dabatur.' So by a deed of A.D. 762, K. 109 (i. 133), B. i.

272, a thegn states that king Æthelbert gave him a _villa_

'cum tributo illius possidendam' and then proceeds to give

this _villa_ to a church 'cum tributo illius.'

[882] E. 4; B. M. Facs. iv. 1: 'et semper liber permaneat omnibus

habentibus ab omnibus duris secularibus, notis et ignotis,

praeter arcem et pontem ac vulgare militiam.'

[883] K. 77 (i. 92); E. 24; B. M. Facs. i. 6: 'Et ius regium in ea

deinceps nullum repperiatur omnino, excepto dumtaxat tale

quale generale est in universis ecclesiasticis terris quae in

hac Cantia esse noscuntur.'

[884] K. 90 (i. 108); E. 40: 'Et ut ab omni tributo vectigalium

operum onerumque saecularium sit libera in perpetuum, pro

mercede aeternae retributionis, regali potestate decernens

statuo; tantum ut deo omnipotenti ex eodem agello

aecclesiasticae servitutis famulatum impendat.'

[885] K. 56 (i. 64); H. & S. iii. 278; B. i. 171. The charter is of

fairly good repute, but nothing that comes from Evesham is

beyond suspicion. It is almost impossible to translate these

early books without making their language too definite. How,

for instance shall we render 'nulli, neque principi, neque

praefecto, neque tiranno alicui pascui constituantur'?

[886] Ine, 70, § 1.

[887] Thorpe, Gloss, s. v. _Foster_, thinks that this law has to do

with the fostering of a child. Schmid is inclined to hold that

it speaks of a rent payable to a landlord.

[888] Ine, 64-6: 'He who has 20 hides must show 12 hides of

cultivated land if he wishes to go away. He who has 10 hides

shall show 6 hides of cultivated land. He who has 3 hides let

him show one and a half.' The persons with whom these laws

deal are certainly not _ascripti glebae_; they are very great

men. Then we must read c. 63: 'If a gesithcundman go away,

then may he have his reeve with him and his smith and his

child's fosterer'; and then c. 68: 'If a gesithcundman be

driven off, let him be driven from the dwelling (botle), not

from the set land (naes þaere setene).' The king's gesiths

have been taking up large grants of waste land and putting

under-tenants on the soil. These great folk must not fling up

their holdings until they have brought the land into

cultivation. If they do abandon their land, they may take away

with them only three of their dependants. If they are evicted

by some adverse claimant this is not to harm their

under-tenants; they are to be driven from the _botl_, that is

from the chief house, but not from the land that they have set

out to husbandmen. These last are to enjoy a secure title. We

must leave to linguists the question whether we have rightly

understood the difficult _seten_; but these chapters, together

with c. 67, which deals with the relations between these lords

and their husbandmen, seem to point to some great scheme for

colonizing a newly-conquered district.

[889] Kemble, Saxons, i. 294-8; ii. 58.

[890] Karl Lehmann, Abhandlungen zur Germanischen Rechtsgeschichte,

1888; Liber Census Daniae, ed. O. Nielsen, 1879.

[891] Cnut's law (II. 62) about this matter seems to imply that in

consequence of the immunities lavishly bestowed by his

predecessors, the old 'king's _feorm_' was only leviable from

lands which were deemed to be the king's lands, but that

Cnut's reeves had been demanding that this _feorm_ should be

supplemented by other lands. The king of his grace forbids

them to do this. The old _feorm_ has been changed into a rent

of crown lands; a vague claim to 'purveyance' is abolished,

but will appear again after the Conquest.

[892] In the A.-S. Chron. ann. 991, 1007, 1011, the Danegeld appears

as a _gafol_; but this is the common word for a rent paid by a

tenant to his landlord.

[893] Kemble, Saxons ii. 73-6.

[894] Already in 749 Æthelbald of Mercia in a general privilege for

the churches (H. & S. iii. 386) says, 'Sed nec hoc

praetermittendum est, cum necessarium constat aecclesiis Dei,

quia Æthelbaldus Rex, pro expiatione delictorum suorum et

retributione mercedis aeternae, famulis Dei propriam

libertatem in fructibus silvarum agrorumque, sive in caeteris

utilitatibus fluminum vel raptura piscium, habere donavit.'

[895] See above, p. 55.

[896] Rectitudines c. 1 (Schmid, App. III.).

[897] See above, p. 169.

[898] Schröder, Die Franken und ihr Recht, Zeitsch. d. Savigny

Stiftung, iii. 62-82, has argued that, from the first times of

the Frankish settlement onwards, the king has a _Bodenregal_,

an _Obereigenthum_ over all land.

[899] Epistola ad Ecgbertum (ed. Plummer, i. 405).

[900] K. 131 (i. 158).

[901] K. 137 (i. 164); B. M. Facs. i. 10. A few words are illegible,

but the land is given 'in ius ecclesiasticae liberalitatis in

perpetuum possid[endam].'

[902] Æthelwulf makes a grant to a thegn, K. 269 (ii. 48), 'pro

expiatione piaculorum meorum et absolutione criminum meorum.'

In course of time the piety of the recitals becomes more and

more perfunctory. It becomes a philosophic reflection on the

transitoriness of earthly affairs and finally evaporates,

leaving behind some commonplace about the superiority of

written over unwritten testimony.

[903] Bede (ed. Plummer, i. 415): 'ipsas quoque litteras

privilegiorum suorum.'

§ 2. _Book-land and Folk-land._

[What is folk-land?]

With 'book-land' is contrasted 'folk-land.' Therefore of folk-land a few

words must be said. What is folk-land? A few years ago the answer that

historians gave to this question was this: It is the land of the folk,

the land belonging to the folk. Dr Vinogradoff has argued that this is

not the right answer[904]. His argument has convinced us; but, as it is

still new, we will take leave to repeat it with some few additions of

our own.

[Folk-land in the texts.]

The term 'folk-land' occurs but thrice in our texts. It occurs in one

law and in two charters. The one law comes from Edward the Elder[905]

and all that it tells us is that folk-land is the great contrast to

book-land. Folk-land and book-land seem to cover the whole field of land

tenure. Possibly this law tells us also that while a dispute about

folk-land will, a dispute about book-land will not, come before the

shiremoot:--but we hardly obtain even this information[906]. Then we

have the two charters. Of these the earlier is a deed of Æthelbert of

Kent dated in 858[907]. The king with the consent of his great men and

of the prelates gives to his thegn Wulflaf five plough-lands at

Washingwell (_aliquam partem terrae iuris mei_) in exchange for land at

Marsham. He declares that the land at Washingwell is to be free from

all burdens save the three usually excepted, the land at Marsham having

enjoyed a similar immunity. The boundaries of Washingwell are then

stated. On the west it is bounded by the king's folk-land (_cyninges

folcland_) which Wighelm and Wulflaf have. So much for the deed itself.

On its back there is an endorsement to the following effect: 'This is

the land-book for Washingwell that Æthelbert the king granted to Wulflaf

his thegn in exchange for an equal amount of other land at Marsham; the

king granted and booked to Wulflaf five sullungs of land at Washingwell

for the five sullungs at Marsham and the king made that land at Marsham

his folk-land ("did it him to folk-land") when they had exchanged the

lands, save the marshes and the salterns at Faversham and the woods that

belong to the salterns.' Now this deed teaches us that there was land

which was known as 'the king's folk-land,' and that it was in the

occupation of two men called Wighelm and Wulflaf, the latter of whom may

well have been the Wulflaf who made an exchange with the king. The

endorsement tells us that when the king received the land at Marsham he

made it his folk-land, 'he did it him to folk-land.'

[The will of Alfred the Ealdorman.]

The other charter is of greater value. It is the will of the Ealdorman

Alfred and comes from some year late in the ninth century[908]. He

desires in the first place to state who are the persons to whom he gives

his inheritance and his book-land. He then gives somewhat more than 100

hides, including 6 at Lingfield and 10 at Horsley, to his wife for her

life, 'with remainder,' as we should say, to their daughter. More than

once he calls this daughter 'our common bairn,' thus drawing attention

to the fact that she is not merely his daughter, but also his wife's

daughter. This is of importance, for in a later clause we hear of a son.

'I give to my son Æthelwald three hides of book-land: two hides on

Hwætedune [Waddon], and one at Gatatune [Gatton] and therewith 100

swine, and, if the king will grant him the folk-land with the book-land,

then let him have and enjoy it: but if this may not be, then let her [my

wife] grant to him whichever she will, either the land at Horsley or the

land at Lingfield.' Such are the materials which must provide us with

our knowledge of folk-land.

[Comment on Alfred's will.]

We must examine Alfred's will somewhat carefully. The testator has a

wife, a son, a daughter. He leaves the bulk of his book-land to his wife

for life with remainder to his daughter. For his son he makes a small

provision (only three hides) out of his book-land, but he expresses a

wish that the king will let that son have the folk-land, and, if this

wish be not fulfilled, then that son is to have either ten or else six

hides out of the book-land previously given to the wife and daughter. We

see that, even if he gets these few hides, the son will obtain but a

small part of a handsome fortune. 'If the king will grant him the

folk-land'--this may suggest that a man's folk-land will not descend to

his heir. But another, and, as it seems to us, a far more probable

explanation is open. The son is 'my son,' the daughter is 'our common

bairn.' May not the son be illegitimate, or may not his legitimacy be

doubtful, for legitimacy is somewhat a matter of degree? The ealdorman

may have contracted a dubious or a morganatic marriage. We can see that

he does not feel called upon to do very much for this son of his. He

expresses a hope that the king as supreme judge will hold the son to be

legitimate, or sufficiently legitimate to inherit the folk-land, which

he does not endeavour to bequeath.

[The king booking land to himself.]

The king like other persons can have both folk-land, and book-land. We

have just heard of 'the king's folk-land': we turn to the important deed

whereby King Æthelwulf booked land to himself[909]. Alms, it says, are

the most perdurable of possessions; one ought to minister to the

necessities of others and so make to oneself friends of the mammon of

unrighteousness; therefore I King Æthelwulf with the consent and leave

of my bishops and great men have booked to myself twenty manses so that

I may enjoy them and leave them after my death to whomsoever I please in

perpetuity: the land is to be free from all tribute and the like, save

military service and the repair of bridges. Then the description of the

land thus booked is preceded by the statement: 'These are the lands

which his wise men (_senatores_) conceded to Æthelwulf.' Now the full

meaning of this famous instrument we can not yet discuss. To put it

briefly, our explanation will be that over his book-land the king will

have powers which he will not have over his folk-land; in particular he

will have that testamentary power which will enable him to become

friendly with the mammon of unrighteousness and secure those eternal

mansions that he desires. But we have introduced this charter here

because, though it says no word of folk-land, it forms an important part

of the case of those who contend that folk-land is land belonging to the

people[910].

[The consent of the witan.]

Another weighty argument is derived from the fact that there are but

very few charters of the kings which do not in some formula or another

profess that many illustrious persons have consented to or have

witnessed the making of the deed. We have no desire to detract from the

significance of this fact, still we ought to examine our documents with

care. Such words as a charter has about 'consent' may occur in two

different contexts. They may occur in close connexion with the words of

gift, 'the operative words,' as our conveyancers say, or they may occur

in the eschatocol, the clause which deals with the execution and

attestation of the instrument. If we come across two deeds, one of which

tells us how 'I king Æthelwulf with the consent and leave of my bishops

and great men give land to a church or a thegn,' while the other says

nothing of consent until it tells us how 'This charter was written on

such a day _his testibus consentientibus_,' we must not at once treat

them as saying the same thing in two different ways.

[Consent and witness in the land-books.]

For this purpose we may divide our charters into three periods. The

first begins with the few genuine charters of the seventh century and

ends in the reign of Egbert, the second endures until the reign of

Edward the Elder, the third until the Norman Conquest. It will be well

understood that we draw no hard line; each period has its penumbra; but

the years 800 and 900 or 925 may serve to mark very rudely the two

limits of the middle period. Now a clause in the body of the deed

stating that the gift is made by the consent of the witan is

characteristic of this middle period. Any one who wishes to forge a

royal land-book of the ninth century should insert this clause; any one

who wishes to forge a deed of the tenth or of the eighth century should

think twice before he makes use of it. To be more exact, it becomes a

common form under Cenwulf of Mercia and Egbert of Wessex; it grows very

rare under Æthelstan[911]. In the meanwhile it serves as a common form,

and it appears in deeds wherein the king says in forcible terms that he

is disposing of his land and his inheritance[912]. During the last of

our three periods all that is ascribed to the great men whose crosses

follow the king's cross is little, if anything, more than the function

of witnesses. A deed of Æthelstan's day will end with some such formula

as the following: 'this book was written at such a place and time, and

its authority was confirmed by the witnesses whose names are written

below.' But very often there is no such concluding formula: we have

simply the list of witnesses and their crosses, and of each of them it

is said that he consented and subscribed. Later in the tenth century the

formula which introduces the names of the witnesses will hardly admit

that they in any sense confirmed the transaction; it will say merely,

'This book was written on such a day _his testibus consentientibus

quorum nomina inferius caraxantur_.' On this will follow the names and

crosses; and of each bishop--but not as a general rule of any other

witness--it will be said that he has done something for the stability of

the deed. To convey this information, the scribe rings the changes on a

score of Latin words--_subscripsi_, _consensi_, _consolidavi_,

_corroboravi_, _confirmavi_, _conscripsi_, _consignavi_, _adquievi_,

_praepinxi_, _praepunxi_, _praenotavi_, and so forth, thereby showing

that he has no very clear notion as to what it really is that the bishop

does. But this degradation of what seems to be a formula of assent into

a formula of attestation has been noticed by others[913], and it is more

to our purpose to examine the charters of the earliest period, for then,

if at any time, the folk-land should have appeared in its true character

as the land of the people.

[Attestation of the earliest books.]

Now during our earliest period instruments which contain in conjunction

with their operative words any allusion to the consent of the great men

of the realm are exceedingly rare[914]. A commoner case is that in which

the eschatocol says something about consent. We will collect a few

examples.

I have confirmed this with the sign of the holy cross with the

counsel of Laurence the bishop and of all my _principes_ and have

requested them to do the like[915].

I have impressed the sign of the holy cross and requested fit and

proper witnesses to subscribe[916].

I have confirmed this gift with my own hand and have caused fit and

proper witnesses, my companions (_commites_), to confirm and

subscribe[917].

This formula, undoubtedly of foreign origin, was common in Kent[918].

From Wessex and the middle of the eighth century, we twice obtain a

fuller form.

These things were done in such a year; and that my munificent gift

may be the more firmly established (_firmius roboretur_) we have

associated with ourselves the fit and proper witnesses and

'adstipulators' whose names and descriptions are set forth below to

subscribe and confirm this privilege of the aforesaid estate

(_praedictae possessionis privilegium_[919]).

More frequently however the document has nothing that can be called a

clause of attestation. It simply gives us the names and the crosses of

the witnesses. Occasionally over against each name, or each of the most

important names, is set some word or phrase describing this witness's

act. He has subscribed, or he has consented, or he has consented and

subscribed, or perhaps he has confirmed[920].

[Confirmation and attestation.]

Now we ought not to draw inferences from these phrases without knowing

that in the Latin of this period such words as _confirmare_,

_corroborare_, _adstipulari_ are the proper words whereby to describe

the act of those who become witnesses to the execution of a deed[921].

Our kings are making use, though it is a lax use, of foreign formulas;

what is more, they are adopting the formulas of private deeds. They have

no chancellor, as the Frankish kings have, and they do not, as the

Frankish kings do, dispense with that _rogatio testium_ which is one of

the usual forms of private law[922]. On the continent of Europe all this

talk about confirmation, corroboration and consent would by no means

imply that the witnesses were more than witnesses. The line which

divides attestation from participation is really somewhat fine, and

though well enough apprehended by modern lawyers, would not easily be

explained to a barbarian ealdorman. A witness does consent to the

execution of the instrument which he attests, though he may be utterly

ignorant of its import, and, if the law demands that such an instrument

shall be attested, then it may well be said of the witness that by

attesting it he makes it firm, he confirms it. Until he attested it, it

was not a valid instrument[923]. Now we are not saying that the

magnates, more especially the bishops, who attested these ancient

charters thought of themselves as mere witnesses. Had that been so, a

clause expressing the consent of the whole body of great men would

hardly have crept into the charters; and it does creep in gradually

during the last half of the eighth century[924]. A similar development

has been noticed in the charters of the German kings. A clause

expressing the consent of the great folk rarely occurs in the

Merovingian or the early Carolingian charters, unless they belong to

certain exceptional classes. It is said to become common under the weak

rule of Lewis the Child; then for a while it becomes rare again, and

then once more common under Henry III and Henry IV, though consent and

witness are hardly to be distinguished[925].

[Function of the witan.]

Perhaps from the first in England the cross of at least one bishop was

much to be desired or was almost indispensable, for the anathema which

the charter pronounces will be a solemn sentence of excommunication when

it comes from a bishop, while it will be at best a pious wish if it

comes from the king; and it is well to have the cross of every bishop,

so that the breaker of the charter may find himself excommunicated in

every diocese. This is not all; we may well believe that from the first

the king was more or less bound to consult with his great men before he

alienated his land. The notion that land could be alienated at all may

not have been very ancient, and the king when giving land away may have

been expected to pay some regard to the welfare of his realm[926]. The

discovery that he had an alienable superiority over free land and free

landowners would sharpen this rule. Some of these early donations are to

our minds more like cessions of political power than gifts of land; they

make over to bishops and abbots rights which the king has exercised

rather as king than as landowner. A wholesome practice grows up which is

embodied in the clause that states the consent of the witan, and, even

when this clause has disappeared, still it is in the presence and with

the witness of his councillors that the king makes his grants. This is

no purely English phenomenon. When a Norman duke hands his charter to be

roborated and confirmed by his _fideles_, we do not infer that he is

disposing of land that is not his[927]. But it is very remarkable that

in the earliest English charters the consent of an overlord is treated

as a far more serious thing than the consent of the nobles[928].

[The king and the people's land.]

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