not regard it as a relic of a time when there was land which in any
accurate sense of the term was owned by the people. The recorded action
of the witan in relation to the king's grants does not become more
prominent, it becomes less prominent, as we go backwards and reach the
heptarchic days. But that is not all. Is it not marvellous that there
should be land owned by the people and yet that we should have to
discover this momentous fact from a few casual phrases occurring in
three documents of the ninth and tenth centuries? Are we to suppose that
whenever the king is giving away land, this land is the land of the
people? Why do not the charters say so? Repeatedly the king speaks of
the land that he gives as 'my land' (_terram iuris mei_), and this too
in charters which state that the witan give their consent to the grant.
Never by any chance does a scribe slip into any such phrase as _terram
gentis meae, terram gentis Merciorum_ or the like. And how came it about
that from the very earliest time the king could devote the people's land
to the salvation of his own peculiar soul? But, it will be said, no
doubt the king had private estates besides having a power over 'the
unallotted lands of the nation,' and those private estates he could give
away as he pleased. But then, how are we to distinguish between those
charters whereby he disposed of his own and those whereby he disposed of
national lands? The formula which expresses the consent of the wise will
certainly not serve our turn. It leads, as we have seen, to a
distinction between different ages, not to a classification of the
various charters of one and the same king.
[King's land and crown land.]
Some historians have supposed that at the outset there was a clear
distinction between the king's private estates and those national lands
which were becoming the domains of the crown. Now a vague distinction
between what belonged to the king as king and what belonged to him--if
we may use so modern a phrase--in his private capacity, we may admit,
while at the same time we gravely doubt whether the language or the
thought of the eighth or ninth century had any forms in which this
distinction could be precisely expressed. Even within the ecclesiastical
sphere, where traditions of Roman law may have lingered and where dead
saints presented themselves as persons capable of acquiring land, it was
by no means easy to distinguish the bishop's property from his church's
property. We may find a deed whereby some king for the love of God or
the salvation of his soul gives land to a certain bishop, and states in
strong, clear words that the donee is to have the most absolute power of
giving and selling and even, for this sometimes occurs, of bequeathing
the land[929]. We shall probably believe that the king intends that this
land shall go to increase the territory of the church, and yet we dare
not make the bishop either 'a trustee' or 'a corporation sole.'
[Fate of the king's land on his death.]
As to the king, it would be on his death that the necessity of drawing
some distinction between his two capacities would first present itself.
Perhaps a brother of his would be elected to the kingdom and his
children would be passed by. Clearly this brother should have those
lands which have supplied the king with the main part of his revenue,
and yet it would be hard that the dead man's children should be
portionless. However, we may strongly suspect that in the earliest time
cases of this nature were settled as they arose without the
establishment of any general rule, and that even on the eve of the
Norman Conquest no definite classification of the king's estates had
been framed. We dare not expect the rule to be more definite than that
which settled the title to the kingship, and how exceedingly indefinite
the latter was the historians of our constitution have explained.
Hereditary and elective elements were mixed up in the title; we can
define neither the one nor the other. That 'superiority' over all the
land of his kingdom of which we have spoken above, though it might be
alienated piecemeal among the living, would pass from the dead king to
his elected successor. On the other hand, some kings were careful to
have certain lands booked to themselves and to obtain from their nobles
'an express power of testamentary appointment.' But very possibly there
was a wide fringe of disputable matter. King Alfred's will, with all
that he says about what had been done by himself, his father and his
brothers, seems to tell us that a prudent king would obtain the consent
of his councillors to any disposition that he made of land that was in
any sort his. Also it seems to bear witness to a strong feeling that the
reigning king should enjoy at any rate the bulk of the lands that his
predecessor had enjoyed[930].
[The new king and the old king's heir.]
In one of his charters Æthelred the Unready is made to tell a long and
curious story[931]:--'My father, king Edgar, gave certain lands to the
minster at Abingdon. On his death the wise men elected as king my
brother Edward, and put me in possession of the lands which belonged to
the king's sons. Among these were the lands given to Abingdon; they were
forcibly taken from the monks. Whether this was lawful or unlawful those
wise men know best. Then my brother Edward died and I became possessed,
not only of the lands which belonged to the king's sons, but also of the
royal lands. I do not wish to incur my father's curse, and therefore I
intend to substitute for his gift a compensation out of my own proper
inheritance. The land that I am now going to dispose of I acquired by
gift from certain persons whose names I state.'--We seem to see here
three kinds of land, the _regales terrae_ which pass from king to king,
the lands 'entailed,' if we may use that term, on the king's family
(_regii pueri_), and lands which come to a king by way of gift or the
like and constitute his _propria hereditas_. But the wise men seem to
have violated three solemn books which they themselves or their
predecessors had attested, and we can but say with king Æthelred '_quam
rem si iuste aut iniuste fecerint ipsi sciant_[932].' There can be but
little law about such matters so long as the title to the kingship is
indefinable[933].
[Ancient demesne and its immunity.]
This distinction between the lands which would pass from king to king
and the lands which would pass from the king to his heirs or to his
devisees may have been complicated with another distinction. Domesday
Book tells us that some, but by no means all, of the lands held by the
Confessor were and had always been free of geld, and this freedom from
taxation may imply other immunities. It is possible that, as in later
times, certain 'ancient demesnes of the crown' already stood outside the
national system of taxation, justice and police, that the ealdorman of
the shire and the shire-moot had no jurisdiction over them, and that
they were administered by reeves yet more personally dependent on the
king than was the shire-reeve. It is possible, however, that the two
distinctions cut each other, for when the king booked land to himself
he, at all events on some occasions, inserted in the charter a clause of
immunity, the very object of which was to put the land outside the
general, national system. To this distinction the famous exchange which
Æthelbert effected with his thegn Wulflaf may point. It says that when,
instead of Washingwell, the king accepted Marsham, 'he did it him to
folk-land.' The land at Marsham was no longer to enjoy that immunity
which it had enjoyed while it was in the hands of the thegn, it was to
come under the sway of the sheriff and of the national courts. However,
it is much easier for us to dream dreams about such a transaction than
to discover the truth.
[Rights of individuals in national land.]
If the folk-land was the land of the people and if the king when he
booked land to a church or a thegn was usually booking folk-land and
converting it into book-land, how are we to think of the land that still
is folk-land? Is it land that has not yet been brought into cultivation;
is it land in which no proprietary interests, save that of the folk,
exist? Now we are far from saying that the king never grants land that
is waste and void of inhabitants; but it is plain enough that this is
not the common case. The charter deals in the first instance with
manses, _villae_, _vici_, houses, túns, with cultivated fields and
meadows. Waste land (it may be) is given in large quantities, but merely
as appurtenant to the profitable core of the gift. We see too that
individual men have rights in the folk-land; Alfred the ealdorman has
folk-land and hopes that on his death it will pass to his son; King
Æthelbert has folk-land and it is occupied by Wighelm and Wulflaf; King
Edward the Elder supposes that the title to folk-land may be in dispute
between two persons and that this dispute will come before the sheriff.
What then the folk owns, if it owns anything at all, is not (if we may
introduce such feudal terms) 'land in demesne' but 'land in service,' in
other words, a superiority or seignory over land. We must add that it is
a superiority over free men and over men who have titles that can be the
subject of law-suits in the county court. And now we must ask, What
profit does the nation get out of this superiority? Shall we say that
the _tributum_, the _vectigal_ paid to the king is to be regarded as
rent paid to the nation, that the _opera regia_, the _victus_, the
_pastus_, are services rendered by the tenant to the people, or shall we
say that the folk's right over this land is proved by its serving as the
fund whereon the king can draw when he desires to save his soul? Then,
if on the other hand we make the tillers of the folk-land mere tenants
at will, there will be little room left for any landowners, for any
'peasant proprietors.' To meet this difficulty it has been supposed
that, at all events at a remote time, there was much land that was
neither folk-land nor book-land. The allotments which the original
settlers received were neither folk-land nor book-land.
[The _alod_.]
In order to describe those allotments the words _alod_ and _ethel_ have
been used, and other terms, such as 'family land' and 'heir land,' have
been invented. But in the laws and the charters we do not meet with
these phrases. The law of Edward the Elder seems to set before us
book-land and folk-land as exhausting the kinds of land. 'He who
deforces any one of his right, be it in book-land, be it in 'folk-land'
must pay a penalty. It is difficult to believe that this law says
nothing of one very common kind of land, still more difficult to believe
that already in the first half of the ninth century the amount of the
so-called _alod_, _ethel_, or 'heir-land,' had become so small that it
might be neglected. So far as we can see, book-land from first to last
was only held by the churches and by very great men. The books that we
have, more especially the later books, are with hardly any exceptions
furnished with clauses of immunity, clauses which put the land outside
the national system of police, and, as we think, of justice also. It is
not to be imagined for one moment that the numerous _liberi homines_ who
even in the Conqueror's reign held land in Essex and East Anglia had
books. To say that book-land had consumed the ancient _alod_ or _ethel_,
is in truth to say that all land was privileged.
[Book-land and privilege.]
We turn once more to Edward's law. Land, it would seem, is either
book-land or folk-land. Book-land is land held by book, by a royal and
ecclesiastical _privilegium_. Folk-land is land held without book, by
unwritten title, by the folk-law. 'Folk-land' is the term which modern
historians have rejected in favour of the outlandish _alod_. The holder
of folk-land is a free landowner, though at an early date the king
discovers that over him and his land there exists an alienable
superiority. Partly by alienations of this superiority, partly perhaps
by gifts of land of which the king is himself the owner, book-land is
created.
[Kinds of land and kinds of right.]
Edward's law speaks as though it were dealing with two different kinds
of land. But really it is dealing with two different kinds of title. We,
and even our statutes, habitually speak of freehold land, copyhold land,
leasehold land, yet we know that the same piece of land may be at one
and the same time freehold, copyhold and leasehold. All land is freehold
land; every rood has its freeholder. Bracton habitually spoke of land
held by frankalmoin, land held by knight's service, land held in socage,
but he knew well enough that a single acre might be held at one and the
same time by many different tenures. Just so, we take it, the same land
might be both book-land and folk-land, the book-land of the minster, the
folk-land of the free men who were holding--not indeed 'of'--but still
'under' the minster. They or their ancestors had held under the king,
but the king had booked their land (which also in a certain sense was
his land) to a church. The mental effort, the abstraction, that would
be required of us were we to speak of various 'estates, rights and
titles,' we try to avoid by speaking as though the distinction that was
to be indicated were a distinction between various material things, and
as though a freehold or copyhold quality were, like fertility or
sterility, an attribute of the soil. Even so abstract a term as 'estate'
is soon debased by the vulgar mouth: estates are ploughed; men 'shoot
over' their estates. 'Book-land' is a briefer term than 'land held by
book-right'; 'folk-land' is a briefer term than 'land held by
folk-right.' The same piece of land may be held by book-right and by
folk-right; it may be book-land and folk-land too.
And now we must turn to consider another element in the king's alienable
superiority. We must speak of jurisdiction.
FOOTNOTES:
[904] Vinogradoff, Folkland, Eng. Hist. Rev. viii. 1.
[905] Edw. I. 2.
[906] Schmid, p. 575.
[907] K. 281 (ii. 64); B. M. Facs. ii. 33.
[908] K. 317 (ii. 120); T. 480; B. ii. 195.
[909] K. 260 (ii. 28); B. ii. 33; B. M. Facs. ii. 30.
[910] In K. 1019 (v. 58) there is talk of Offa having booked land to
himself, and in K. 1245 (vi. 58) Edgar seems to perform a
similar feat without mentioning the consent of the witan,
though they attest the deed. See Stubbs, Const. Hist. i. 145.
[911] From Alfred and Edward the Elder we have hardly enough genuine
charters to serve as materials for an induction, but Edward's
reign seems the turning point.
[912] A.D. 838, K. 1044 (v. 90): Egbert gives 'aliquantulam terrae
partem meae propriae hereditatis ... cum consilio et
testimonio optimatum meorum.' A.D. 863, K. 1059 (v. 116):
Æthelred 'cum consensu ac licentia episcoporum ac principum
meorum' gives 'aliquam partem agri quae ad me rite
pertinebat.'
[913] Stubbs, Const. Hist. i. 212.
[914] We know of but four specimens earlier than 750. The first is a
deed whereby Wulfhere of Mercia makes a grant 'cum consensu et
licentia amicorum et optimatum meorum': E. 4; B. M. Facs. iv.
1. The second is a deed whereby Hlothar of Kent makes a grant
with the consent of Abp Theodore, his (Hlothar's) brother's
son Eadric and all the princes; K. 16 (i. 20); B. M. Facs. i.
1. The third, known to us only through a copy, is one by which
Æthelbald of Mercia makes a grant 'cum consensu vel
episcoporum vel optimatum meorum'; K. 83 (i. 100). By a fourth
deed, K. 27 (i. 30), Eadric grants land 'cum consensu meorum
patriciorum'; but this also we only get from a copy.
[915] K. 1 (i. 1); A.D. 604. Æthelbert for Rochester.
[916] K. 43 (i. 50); B. i. 140: A.D. 697, Wihtræd.--K. 47 (i. 54);
E. 17; B. M. Facs. i. 4: Wihtræd.--K. 77 (i. 92); E. 24; B. M.
Facs. i. 6: A.D. 732, Æthelbert.--K. 132 (i. 160); E. 54; B.
M. Facs. ii. 4: A.D. 778, Egbert.
[917] K. 85 (i. 102); E. 32: Eadbert for Rochester. Of this deed we
have but a transcript. The formula of attestation is very
curious and may have been distorted either by the original
scribe or the copyist.
[918] K. 157 (i. 189), Offa of Mercia uses this eschatocol, but in a
Kentish gift.
[919] K. 1006-7 (v. 47-8); B. i. 256-7.
[920] K. 79 (i. 95).
[921] Brunner, Rechtsgeschichte der Röm. u. German. Urkunde, pp.
220-8; Giry, Manuel de diplomatique, 614. Bede in his famous
letter (ed. Plummer, i. 417) uses the technical _astipulari_
to describe the action of the prelates who set their crosses
to the king's charters. It occurs also in a charter of 791, K.
1015 (v. 53-4). See also K. 691 (iii. 289), 'constipulatores.'
[922] Brunner, op. cit. 158. Dr Brunner thinks that the precedents
for A.-S. charters came direct from Rome rather than from any
other quarter (p. 187); but he fully admits that these
charters when compared with foreign instruments show a certain
formlessness.
[923] Under our own law we may conceive a case in which a man would
be compelled to die unwillingly intestate because one of the
two people present at his death-bed capriciously refused to
witness a will.
[924] The transition is marked by the following charters.--K. 104,
105, 108, 113, in these we have the mere rogation of fit and
proper witnesses.--K. 114 (a Kentish deed which Kemble
ascribes to 759-765), in this the clause of attestation speaks
of the counsel and consent of the _optimates_ and
_principes_.--K. 118, Uhtred of the Hwiccas makes a grant with
the consent and licence of Offa king of the Mercians and of
his (Offa's) bishops and _principes_.--K. 120, the witnesses
are described as _condonantes_.--K. 121, 122, (A.D. 774) the
clause of attestation says 'cum sacerdotibus et senioribus
populi more testium subscribendo.'--K. 131, 'testium ergo et
consentientium episcoporum ac principum meorum signa et nomina
pro firmitatis stabilimento hic infra notabo.'--A clause of
this kind becomes common with Offa, see K. 134, 137, 138, 148,
151, but occasionally there are relapses and the signatories
merely appear as 'fit and proper' or 'religious' witnesses.
But it is not until after 800 that, save as a rare exception,
the consent of the magnates is brought into connexion with the
operative words.
[925] Bresslau, Urkundenlehre, i. 697.
[926] Bede's letter to Egbert (ed. Plummer, i. 405) and his account
of Benedict Biscop (ib. 364) show that it was expected of the
king that he should provide land for young warriors of noble
race; but no word implies that the land out of which the
provision was to be made was 'folk-land,' nor is it clear that
the young warrior was to have a book.
[927] See William's charter for Fécamp, Neustria Pia, p. 224.
[928] A.D. 692-3, K. 35 (i. 39); B. M. Facs. i. 2: a grant by
'Hodilredus parens Sebbi ... cum ipsius consensu'; 'ego Sebbi
rex Eastsaxonorum pro confirmatione subscripsi.'--A.D. 704, K.
52 (i. 59); B. M. Facs. i. 3: 'Ego Sueabræd rex Eastsaxonorum
et ego Pæogthath cum licentia Ædelredi regis.'--A.D. 706, K.
56 (i. 64), 'Ego Æthiluueard subregulus ... consentiente
Coenredo rege Merciorum.'--A.D. 721-46, K. 91 (i. 109),
Æthelbald of Mercia attests a lease made by the bishop of
Worcester.--A.D. 759, K. 105 (i. 128); B. M. Facs. ii. 2:
three brothers, each of whom is a _regulus_, make a gift 'cum
licentia et permissione Regis Offan Merciorum.'--A.D. 767,
770, K. 117-8 (i. 144-5): two gifts by Uhtred, _regulus_ of
the Hwiccas, 'cum consensu et licentia Offani Regis
Merciorum.'--A.D. 791? K. 1016 (v. 54): 'Ego Aldwlfus dux
Suð-Saxonum ... cum consensu et licentia Offae regis
Merciorum.'
[929] K. 113 (i. 137).
[930] K. 314 (ii. 112); 1067 (v. 127); Liber de Hyda, 57. On the
death of Æthelbald, two of his sons, Æthelred and Alfred, seem
to have made over the lands which had been devised to them by
their father to Æthelbert, the reigning king, so that he might
enjoy them during his life. Then again, on Æthelbert's death,
Alfred would not insist upon a partition but allowed his share
to remain in the possession of Æthelred, the reigning king.
See also Eadred's will, Liber de Hyda, 153; he seems to have a
good deal of land of which he can dispose freely.
[931] K. 1312 (vi. 172).
[932] The violated books are in Chron. Abingd. i. 314, 317, 334.
[933] Were it possible for us to say that the kingship was elective,
this would be but a beginning of difficulties. For example, we
should raise a question which in all probability has no
answer, were we to ask whether a majority could bind a
minority.
§ 3. _Sake and Soke._
[Importance of seignorial justice.]
Of all the phenomena of feudalism none seems more essential than
seignorial justice. In times gone by English lawyers and historians have
been apt to treat it lightly and to concentrate their attention on
military tenure. For them 'the introduction of the military tenures' has
been 'the establishment of the feudal system.' But when compared with
seignorial justice, military tenure is a superficial matter, one out of
many effects rather than a deep-seated cause. Seignorial justice is a
deep-seated cause of many effects, a principle which when once
introduced is capable of transfiguring a nation. Of the origin and
antiquity of this principle, however, some even of our most illustrious
historians have spoken with great hesitation and therefore we shall
spend some time in examining the texts which reveal what can be known
about it, admitting once for all that they leave much room for
differences of opinion.
[Theory of the modern origin of seignorial justice.]
Since the doctrine to which we have come would trace seignorial justice
back to a remote time, we shall do well to state at the outset an
extreme version of the opposite doctrine, a version which has been
elaborately set forth in a learned and spirited essay[934].--On the eve
of the battle of Hastings a seignorial court was still a new thing in
England. It was a Norman precursor of the Norman Conquest. England owes
it to Edward the Confessor, who was 'half-Norman by birth and wholly
Norman by education and sympathies.' It came to us with 'a new theory of
constitutional law.' From the reign of no older king can any evidence be
produced of the existence--at any rate of the legalized existence--of
private courts. True, there are charters that give to the holders of
great estates the profits of jurisdiction; but a grant of the profits of
jurisdiction is one thing, jurisdiction itself is another. True, that
one man might have _soke_ over another, but this does not mean that he
had jurisdiction; at the most it means that he was entitled to the
profits of justice, to wites, to fines and amercements. 'No instance can
be found before the Norman times in which _sócn_ means jurisdiction.
_Sócn_ had a technical meaning of its own which is always rigorously
observed. The idea of jurisdiction, on the other hand, was expressed by
an equally technical word, the meaning of which is also rigorously
observed. This is _sacu_, a word which has strangely vanished from our
legal vocabulary, but is still preserved, even in its technical sense,
by the German _sache_[935].'
[Sake and soke in the Norman age.]
Now it will not be disputed that in Domesday Book and the Leges Henrici
this distinction is obliterated. _Soke_ means jurisdiction and '_sake_
and _soke_' is but a pleonastic phrase, which means no more than
_soke_[936]. Nor is it disputable that on the vigil of the Conquest a
great deal of jurisdiction was wielded by the lords. Not a few of the
'hundreds' were in private hands, and, apart from hundredal
jurisdiction, a lord might have and often had sake and soke over his own
lands. It is not denied that Edward the Confessor had freely granted to
churches and other lords large rights of justice,--not merely rights to
the profits of jurisdiction, but jurisdiction itself. The question is
whether what he did was new.
[The Confessor's writs.]