dealt out jurisdictional rights with a lavish hand. This we gather, not
so much from his Latin land-books, as from English writs in which he
announces to the bishop, earl, sheriff and great men of a county that he
has given land in that county to some church 'with sake and soke and
toll and team'; sometimes he adds 'with infangennethef, grithbrice,
foresteal, hamsocn, flymena-fyrmth,' and so forth. Sometimes the donees
are to have these rights in all their own lands. Sometimes he gives them
the hundredal jurisdiction over lands that are not their own. Thus to
St. Benet of Ramsey he gives soken over all the men in a hundred and a
half--over all the men who are 'moot-worthy, fyrd-worthy, and
fold-worthy,' whosesoever men they may be: that is to say (as we
understand it) he gives a jurisdiction over all the free men of the
district, the men who attend the moots, who attend the host and who are
not compelled by any _soca faldae_ to send their sheep to a seignorial
fold, and this although those men be bound to St. Benet neither by
tenure nor by personal commendation[937]. Again, he concedes that the
donee's tenants shall be quit of shires and hundreds[938]. Again, he
gives the favoured church taxational power: whenever the king takes a
geld, be it army-geld, or ship-geld, the monks may impose a similar tax
upon the township and keep the proceeds to their own use[939]. In short,
it seems not too much to say that any delegation and appropriation of
justice of which our Norman kings were guilty had an ample warrant in
the practice of St. Edward.
[Cnut's practice.]
Now the theory which would make him an innovator in this matter receives
a rude shock from a writ of Cnut[940]. The king announces that the
Archbishop of Canterbury is to be worthy throughout his lands of his
sake and soke and grithbrice, hamsocn, foresteal, infangennethef and
flymena-fyrmth. Until the genuineness of this writ, which does not
stand quite alone[941], be disproved, the charge that has been brought
against Edward fails. He was but following in the steps of the great
Dane, though it may be that he rushed forward where his predecessor had
trod cautiously.
[Cnut's law.]
Having seen what Cnut could do upon occasion, we turn to the famous
passage in his dooms which declares what 'rights the king has over all
men[942].' In Wessex and Mercia (in the Danelaw the list is somewhat
different) he has hamsocn, foresteal, flymena-fyrmth and fyrd-wite
'unless he will honour a man yet further and grant him this worship.'
Now if we had not before us his writ for the archbishop, we might
perhaps argue that this law merely decreed that the profits of certain
pleas were not to be covered by the 'farms' paid to the king by the
sheriffs and other national officers. But in the writ we see that Cnut
allows to the archbishop just the excepted rights, just that 'worship'
which men are not to have as a general rule. Nor surely can we say that
what is conceded is, not jurisdiction itself, but merely the profits of
jurisdiction. The archbishop is to have _sake_ as well as _soke_, and
those who have contended for the strictest interpretation of royal
grants have not contended that the former of these words can mean
anything but 'causes,' 'pleas,' 'jurisdiction.' Therefore when it is
interpreted by the aid of this writ, Cnut's law seems to imply that
private jurisdiction is a common thing. The king is already compelled to
protest that there are certain pleas of the crown that are not covered
by vague and general words.
[The book and the writ.]
Now express grants of _sake_ and _soke_ first become apparent to us in
documents of a certain class, a class that we do not get before the last
years of the tenth century. It is necessary therefore that we should
make a short digression into the region of 'diplomatics.' The
instruments of the Confessor's reign, and we may add of the Norman
reigns, which we loosely call royal charters or royal land-books divide
themselves somewhat easily into two main classes, which we will call
respectively (1) charters and (2) writs. These names are not very happy,
still they are the best that occur to us. If we have regard to the form
of the instrument, the distinction is evident. The charter is with rare
exceptions in Latin. It begins with an invocation of the Triune God or
perhaps with a sacred monogram. On the other hand, there is no address
to mortal men; there is no salutation. There follow a pious _arenga_
setting forth how good a thing it is to make gifts, how desirable it is,
since men are very wicked, that transactions should be put into writing.
Then the king states that he gives, or has given, or will give--the use
of the future tense is not uncommon--certain land to a certain person.
Then comes a clause which we shall hereafter call 'the clause of
immunity':--the land is to be free from certain burdens. Then comes the
anathema or damnatory clause, threatening all breakers of the charter
with excommunication here and torment hereafter. Then in the charters of
the time before the Conquest the boundaries of the land are described in
English. Then comes the sign of the cross touched by the king's hand and
the crosses of the witan or nobles who 'attest' or 'attest and consent
to' the grant. In the writ all is otherwise. In the Confessor's day it
is usually, in the Norman reigns it is sometimes, an English document.
It begins, not with an invocation, but with a salutation;--the king
greets his subjects or some class of his subjects: King Edward greets
'Herman bishop and Harold earl and all my thegns in Dorset,' or 'Leofwin
bishop and Edwin earl and all my thegns in Staffordshire':--and then he
tells them something. He tells them that he has granted lands or
liberties to a certain person. There follows a command or a threat--'I
command and firmly enjoin that none shall disturb the grantee,' 'I will
not suffer that any man wrong the grantee.' The boundaries are not
described. There is seldom any curse. The king makes no cross. If any
witnesses are mentioned, they are few and they do not make crosses.
[Differences between book and writ.]
Now these formal differences correspond more or less exactly to a
substantial difference. As every modern lawyer knows, a written document
may stand in one of two relations to a legal transaction. On the one
hand it may itself be the transaction: that is to say, the act of
signing, or of signing and delivering, the document may be the act by
which certain rights are created or transferred. On the other hand, the
instrument may be but evidence of the transaction. Perhaps the law may
say that of such a transaction it will receive no evidence save a
document written and signed; perhaps it may say that the testimony of
documents is not to be contradicted by word of mouth; but still the
document is only evidence, though it may be incontrovertible evidence,
of the transaction; the transaction may have been complete before the
document was signed[943]. This material distinction is likely to express
itself in points of form; for instance, such a phrase as 'I hereby give'
is natural in the one case; such a phrase as 'Know all men by this
writing that I have given' is appropriate in the other. Instruments of
both kinds were well enough known in the Frankish kingdom; their history
has been traced back into the history of Roman conveyancing[944]. It
would be out of place were we here to discuss the question whether the
Anglo-Saxon land-book was a dispositive or merely an evidential
document; suffice it to say that with rare exceptions the instruments
that are of earlier date than the Confessor's reign are in form charters
and not writs. On the other hand, the documents of the Angevin kings
which treat of gifts of lands and liberties, though we call them
charters, are in form (if we adopt the classification here made) not
charters but writs. In form they are evidential rather than dispositive;
they are addressed to certain persons--all the king's lieges or a class
of the lieges--bidding them take notice that the king has done
something, has given lands, and then adding some command or some threat.
This command or threat makes them more than evidential documents; the
_Sciatis me dedisse_ is followed by a _Quare volo et firmiter
praecipio_; it is not for no purpose that the king informs his officers
or his subjects of his having made a gift; still in form they are
letters, open letters, 'letters patent,' and the points of difference
between the Angevin charter and the Angevin 'letters patent' (strictly
and properly so called) are few, technical and unimportant when compared
with the points of difference which mark off these two classes of
documents from the ancient land-book[945]. In short before the end of
the twelfth century, the writ-form or letter-form with its salutation,
its 'Know ye,' its air of conveying information coupled with commands,
has entirely supplanted the true charter-form with its dispositive words
and its air of not merely witnessing, but actually being, a gift of
land.
[Anglo-Saxon writs.]
But to represent this as a contrast between English instruments and
Norman or French instruments would be a mistake. In the first place, we
have a few documents in writ-form that are older than the days of the
Norman-hearted Edward. As already said, we have a writ from Cnut and it
has all those features of Edward's writs which have been considered
distinctively foreign. We have another writ from the same king. The king
addresses Archbishop Lyfing, Abbot Ælfmær, Æthelric the shireman 'and
all my thegns twelvehinde and twihinde.' He tells them that he has
confirmed the archbishop's liberties and threatens with the pains of
hell any one who infringes them[946]. We have a writ from Æthelred the
Unready, and a remarkable writ it is. He addresses Ælfric the ealdorman,
Wulfmær and Æthelweard and all the thegns in Hampshire and tells them
how he has confirmed the liberties of bishop Ælfheah and how large
tracts of land are to be reckoned as but one hide--an early example of
'beneficial hidation[947].' Secondly, the solemn charter with its
invocation, its pious harangue, its dispositive words, its religious
sanction, its numerous crosses, its crowd of attesting and consenting
witnesses, was in use in Normandy before and after the conquest of
England. Thirdly, the Norman kings of England used it upon occasion.
Much they did by writ. The vast tracts of land that they had at their
disposal would naturally favour the conciser form; but some of the
religious houses thought it well to obtain genuine land-books of the old
English, and (we must add) of the old Frankish type. The king's seal was
not good enough for them; they would have the king's cross and the
crosses of his wife, sons, prelates and barons. The ultimately complete
victory of what we have called the writ-form over what we have called
the charter-form may perhaps be rightly described as a result of the
Conquest, an outcome, that is, of the strong monarchy founded by
William of Normandy and consolidated by Henry of Anjou, but it can not
be rightly described as the victory of a French form over an English
form; and a very similar change was taking place in the chancery of the
French kings[948].
[Sake and soke appear when writs appear.]
We may say then that the appearance of words clearly and indisputably
conceding jurisdictional rights is contemporaneous with the appearance
of a new class of diplomata, namely royal writs as contrasted with royal
charters or land-books. We may add that it is contemporaneous with the
appearance of royal diplomata couched in the vernacular language. This
may well lead us to two speculations. In the first place, is it not very
possible that many ancient writs have been lost? The writ was a far less
solemn instrument than the land-book, and it is by no means certain that
the writs of the Confessor were intended to serve as title-deeds or to
come to the custody of those for whose benefit they were issued. King
Edward greets the bishop of London, Earl Harold, the sheriff and all the
thegns of Middlesex and tells them how he has given land to St. Peter
and the monks of Westminster, and how he wills that they enjoy their
sake and soke. The original document is presented to the bishop, the
earl, or the sheriff (to all of them perhaps as they sit in their shire
moot) and we can not be certain that after this the monks ought to have
that document in their possession, that it ought not to be kept by the
sheriff, or perhaps returned to the king with an indorsement expressive
of obedience. Many hundred writs must King William have issued in favour
of his barons--this is plain from Domesday Book--and what would we not
give for a dozen of them? Secondly, it is well worth notice that 'sake
and soke' begin to appear so soon as royal diplomata written in English
become common, and when we observe the formulas which enshrine these
words we find some difficulty in believing that such formulas are new or
foreign. Let us listen to one.
saca and socne
toll and team
griðbrice and hamsocne
and foresteal
and alle oðre gerihte
inne tid and ut of tide
binnan burh and butan burh
on stræte and of stræte.
Surely this alliteration and this rude rhythm tell us that the clause
has long been fashioning itself in the minds and mouths of the people
and is no piece of a new-fangled 'chancery-style[949].' And one other
remark about language will occur to us. In many respects the law Latin
of the middle ages went on becoming a better and better language until,
in the thirteenth century, it became a very good, useful and accurate
form of speech. But it gained this excellence by frankly renouncing all
attempts after classicality, all thought of the golden or the silver
age, and by freely borrowing from English whatever words it wanted and
making them Latin by a suffix. The Latin of the Anglo-Saxon land-books
is for all practical purposes a far worse language, just because it
strives to be far better. It wanted to be good Latin, and even at times
good Greek. The scribe of the ninth or tenth century would have been
shocked by such words as _tainus_, _dreinus_, _smalemannus_,
_sochemannus_ which enabled his successors to say precisely what they
wanted. He gives us _provincia_ instead of _scira_, _satrapes_ instead
of _aldermanni_, and we read of _tributum_ and _census_ when we would
much rather have read of _geldum_ and _gablum_. It was out of the
question that he should be guilty of such barbarisms as _saca et soca_.
If he is to speak to us of these things, he will do so in some phrase
which he thinks would not have disgraced a Roman orator--in a phrase,
that is, which will not really fit his thought.
[Traditional evidence of sake and soke.]
The traditions, the legends, current in later times, can not be
altogether neglected. The prelates of the thirteenth century often
asserted that some of their franchises, and in particular their hundred
courts, had been given to their predecessors in an extremely remote age.
Thus the bishop of Salisbury claimed the hundred of Ramsbury in
Wiltshire by grant of King Offa of Mercia[950]; the Abbot of Ramsey
claimed the hundred of Clackclose in Norfolk by grant of King
Edgar[951]. On such claims we can lay but very little stress, for if the
church had held its 'liberties' from before the Conquest, the exact date
at which it had acquired them was of little importance and their origin
would easily become the sport of guess-work and myth. But occasionally
we can say that there must in all probability be some truth in the tale.
Such is the case with the famous hundred of Oswaldslaw in
Worcestershire. When the Domesday survey was made this hundred belonged
to the church of Worcester. Worcestershire was deemed to comprise twelve
hundreds and Oswaldslaw counted for three of them[952]. Oswaldslaw
contained 300 hides, and to all seeming the whole shire contained 1200
hides or thereabouts. Even in the thirteenth century a certain
tripleness seems to be displayed by this hundred; the bishop holds his
hundred court in three different places, namely, outside the city of
Worcester, at Dryhurst and at Wimborntree[953]. Now the story current in
St. Mary's convent was that this triple hundred of Oswaldslaw received
its name from Oswald, the saintly bishop who ruled the church of
Worcester from 960 to 992. A charter was produced, perhaps the most
celebrated of all land-books, that _Altitonantis Dei largiflua
clementia_, which, after many centuries, was to prove the King of
England's dominion over the narrow seas[954]. According to this charter
Edgar, Oswald's patron, threw together three old hundreds, Cuthbertslaw,
Wolfhereslaw, and Wimborntree to form a domain for the bishop and his
monks[955]. Could we accept the would-be charter as genuine, could we
even accept it as a true copy of a genuine book (and this we can hardly
do)[956], there would be an end of all controversy as to the existence
of seignorial justice in the year 964, for undoubtedly it contains words
which confer jurisdiction[957]. Upon these we will not rely: the fact
remains that in Domesday Book there appears this hundred of Oswaldslaw,
that it is treated as a triple hundred, as three hundreds, that the
bishop has jurisdiction over it, that the sheriff has no rights within
it, that it looks like a very artificial aggregate of land, for pieces
of it lie intermixed with other hundreds and pieces of it lie
surrounded by Gloucestershire. In 1086 the church of Worcester had to
all appearance just those rights which the _Altitonantis_ professed to
grant to her; already they were associated with the name of Oswald;
already they were regarded as ancient privileges. 'Saint Mary of
Worcester has a hundred called Oswaldslaw, in which lie 300 hides, from
which the bishop of the said church, by a constitution of ancient times,
has the profits of all sokes and all the customs which belong thereto
for his own board and for the king's service and his own, so that no
sheriff can make any claim for any plea or for any other cause:--this
the whole county witnesses[958].' Surely the whole county would not have
spoken thus of some newfangled device of the half-Norman Edward. Such a
case as this, so great a matter as the utter exclusion of the sheriff
from one quarter of the shire, we shall hardly attempt to explain by
hypothetical usurpations. These liberties were granted by some king or
other. If they were granted by the Confessor, why was not a charter of
the Confessor produced? Why instead was a charter of Edgar produced,
perhaps rewritten and revised, perhaps concocted? The easiest answer to
this question seems to be that, whatever may be the truth about this
detail or that, the _Altitonantis_ tells a story that in the main is
true. The diplomatist's scepticism should in this and other instances be
held in check by the reflexion that kings and sheriffs did not permit
themselves to be cheated wholesale out of valuable rights, when the true
state of the facts must have been patent to hundreds of men, patent to
all the men of Oswaldslaw and to 'the whole county' of Worcester[959].
[Criticism of the earlier books.]
We may now turn to the genuine books of an earlier time and patiently
examine their words. It is well known that an Anglo-Saxon land-book
proceeding from the king very commonly, though not always, contains a
clause of immunity. Sometimes a grant of immunity is the essence of the
book; the land in question already belongs to a church, and the bishop
or abbot now succeeds in getting it set free from burdens to which it
has hitherto been subject. What is now granted to him is 'freedom,'
'liberty,' 'freóls'; the book is a _freóls-bóc_[960]; it may be that he
is willing to pay money, to give land, to promise prayers in return for
this franchise, this _libertas_[961]. Thus, for example, King Ceolwulf
of Mercia grants a _libertas_ to the Bishop of Worcester, freeing all
his land from the burden of feeding the king's horses, and in
consideration of this grant the bishop gives to the king five hides of
land for four lives and agrees that prayers shall be said for him every
Sunday[962].
[The clause of immunity.]
Now in an ordinary case the clause of immunity will first contain some
general words declaring the land to be free of burdens in general,
and then some exceptive words declaring that it is not to be
free from certain specified burdens[963]. Both parts of the clause
demand our attention. The burdens from which the land is to be
free are described by a large phrase. Usually both a substantive
and an adjective are employed for the purpose; they are to be freed
_ab omni terrenae servitutis iugo_--_saecularibus negotiis_--_mundiali
obstaculo_--_mundialibus causis_--_saecularibus curis_--_mundialibus
coangustiis_--_cunctis laboribus vitae mortalium_. The adjectives are
remarkable, for they seem to suggest a contrast. The land is freed
from all earthly, worldly, secular, temporal services. Does this
not mean that it is devoted to services that are heavenly, sacred,
spiritual[964]? True, that in course of time we may find this same
formula used when the king is giving land, not to a church, but to one
of his thegns; but still in its origin the land-book is ecclesiastical;
'book-right' is the right of the church, _ius ecclesiasticum_[965], and
we may well believe that the phraseology of the books, which in
substance remains unaltered from century to century, was primarily
adapted to pious gifts. It is by no means improbable that in the middle
of the eighth century Æthelbald of Mercia by a general decree conceded
to all the churches of his kingdom just that freedom from all burdens,
save the _trinoda necessitas_, that was usually granted by the clause of
immunity contained in the land-books, and we can hardly say with
certainty that half a century before this time Wihtræd had not granted
to all the churches of Kent a yet larger measure of liberty, a liberty
which absolved them even from the _trinoda necessitas_[966]. Turning
from the adjectives to the substantives that are used, we find them to
be wide and indefinite words; the lands are to be free from all worldly
services, burdens, troubles, annoyances, affairs, business, causes,
matters and things. Sometimes a more definite word is added such as
_tributum_, _vectigal_, _census_, and clearly one main object of the
clause is to declare that the land is to pay nothing to the king or his
officers; it is to be free of rent and taxes, scotfree and
gafolfree[967]. Occasionally particular mention is made of a duty of
entertaining the king, his court, his officers, his huntsmen, dogs and
horses, also of a duty of entertaining his messengers and forwarding
them on their way[968]. Thus, for example, Taunton, which belonged to
the bishop of Winchester, had been bound to provide one night's
entertainment for the king and nine nights' entertainment for his
falconers and to support eight dogs and a dog-ward, to carry with horses
and carts to Curry and to Williton whatever the king might need, and to
conduct wayfarers to the neighbouring royal vills. To obtain immunity
from these burdens the bishop had to give the king sixty hides of
land[969].
[Discussion of the words of immunity.]
No doubt it is a sound canon of criticism that, when in a grant precise
are followed by vague words, the former should be taken to explain, and,
it may be, to restrain the latter. If, for example, land be freed 'from
taxes and all other secular burdens,' we may well urge that the 'other
secular burdens' which the writer has in his mind are burdens akin to
taxes. And of course it is fair to say that in our days a grant of
private justice would be an extremely different thing from a grant of
freedom from fiscal dues. But what, we must ask, does this freedom from
fiscal dues really mean when it is granted by an Anglo-Saxon land-book?
When the monks or canons obtain a charter freeing this territory from
all _tributum_ and _census_, from all _pastiones_ and so forth, is it
intended that the occupiers of the soil shall have the benefit of this
grant? Not so. The religious have been stipulating for themselves and
not for their men. The land has been freed from service to the king in
order that it may serve the church[970]; the church will take what the
king has hitherto taken or it will take an equivalent. In a writ of
Edward the Confessor this appears very plainly. Whenever men pay a geld
to the king, be it an army-geld or a ship-geld, the men of St. Edmund
are to pay a like geld to the abbot and the monks[971]. Probably this
principle has been at work all along. The king has had no mind to free
the _manentes_, _casati_, _tributarii_ of the church from any _tributum_
or _vectigal_. What has hitherto been paid to him, or some equivalent
for it, will now go to the treasury of the church. Thus, even within the
purely fiscal region, we see that the object of the immunity is to give
the church a grip on those who dwell upon the land. But we must read the
clause to its end.
[The _trinoda necessitas_.]