lay-man says that the donee is to have the power of leaving the land to
whomsoever he may please, or to such heirs as he may choose, we still
must doubt whether his testamentary power is utterly unrestrained,
whether he will not have to consult the royal donor when he is making
his will. The phenomena which we have here to consider are very obscure,
because we never can be quite certain why it is that a testator is
seeking the king's aid. We have to remember that the testament is an
exotic, ecclesiastical institution which is likely to come into
collision with the ancient folk-law. From an early time the church was
striving in favour of the utmost measure of testamentary freedom, for
formless wills, for nuncupative wills[1038]. The very largeness of its
claims made impossible any definite compromise between church-right and
folk-right. So far as we can see, no precise law is evolved as to when
and how and over what a man may exercise a power of testation. The
church will support testaments of the most formless kind; on the other
hand, the heirs of the dead man will endeavour, despite the anathema, to
break his will, and sometimes they will succeed[1039]. Consequently the
testator will endeavour to obtain the crosses of the bishops and the
consent of the king. He has already a book which tells him that he may
leave the land to a chosen heir; but if he be prudent he will not trust
to this by itself. Kings change their minds.
[The heriot and the testament.]
Then the law about heriots complicates the matter. The heriot has its
origin in the duty of the dying thegn or of his heirs to return to his
lord the arms which that lord has given or lent to him. We have to use
some such vague phrase as 'given or lent'; we dare not speak more
precisely[1040]. A time comes when the king provides his thegn, no
longer with arms, but with land; still the heriot is rendered[1041]. In
the tenth century this render is closely connected with the exercise of
testamentary power. The thegn offers a heriot with a prayer that 'his
will may stand.' He presents swords and money to the king in order that
he may be worthy of his testament[1042]. When we find such phrases as
this, we can not always be certain that the land of which the testator
is going to dispose is land over which a book purports to give him
testamentary power; he may be hoping that the king's aid will be
sufficient to enable him to bequeath the unbooked land that he
holds[1043]. In other cases he may be endeavouring to dispose of lands
that have merely been 'loaned' to him for his life by the king. But this
will hardly serve to explain all the cases, and we so frequently find
the holder of book-land applying for the king's consent when he is going
to make an alienation of it _inter vivos_ that we need not marvel at
finding a similar application made when he is about to execute a
testament[1044].
[The gift and the loan.]
This having been said, we shall not be surprised to find that in ancient
times the difference between a gift of land and a loan of land was not
nearly so well marked as it would be by modern law. The loan may be
regarded as a temporary gift, the gift as a very permanent, if not
perpetual, loan. We know how this matter looks in the law of Bracton's
age. By feoffment one gives land to a man for his life, or one gives it
to him and the heirs of his body, or to him and his heirs: but in any
case, the land may come back to the giver. The difference between the
three feoffments is a difference in degree rather than in kind; one will
operate for a longer, another for a shorter time; but, however absolute
the gift may be, the giver never parts with all his interest in the
land[1045]. Or we may put it in another way:--in our English law
usufruct is a temporary _dominium_ and _dominium_ is a usufruct that may
be perpetual. Or, once more, adopting the language of modern statutes,
we may say that the tenant for life is no usufructuary but 'a limited
owner.' We are accustomed to bring this doctrine into connexion with
rules about dependent tenure:--the donor, we say, retains an interest in
the land because he is the tenant's lord. But, on looking at the ancient
land-books, we may find reason to suspect that the confusion of loans
with gifts and gifts with loans (if we may speak of confusion where in
truth the things confounded have never as yet been clearly
distinguished) is one of the original germs of the rule that all land is
held of the king. After all, the king--and he is by far the greatest
giver in the country and his gifts are models for all gifts--never can
really part with all the rights that he has in the land that he gives,
for he still will be king of it and therefore in a sense it will always
be part of his land. To maintain a sharp distinction between the rights
that he has as king and the rights that he has as landlord,
jurisprudence is not as yet prepared.--But we must look at the land-loan
more closely.
[The _precarium_.]
Foreign historians have shown how after the barbarian invasions one
single form of legal thought, or (if we may borrow a term from them),
one single legal 'institute' which had been saved out of the ruins of
Roman jurisprudence, was made to do the hard duty of expressing the most
miscellaneous facts, was made to meet a vast multitude of cases in
which, while one man is the owner of land, another man is occupying and
enjoying it by the owner's permission. This institute was the
_precarium_. Originally but a tenancy at will, it was elaborated into
different shapes which, when their elaboration had been completed, had
little in common. For some reason or another one begs (_rogare_) of a
landowner leave to occupy a piece of land; for some reason or another
the prayer is granted, the grantor making a display of generosity and
speaking of his act as a 'benefit' (_beneficium_), an act of good-nature
and liberality. An elastic form is thus established. The petitioner may,
or may not, promise to pay a rent to his benefactor; the benefactor may,
or may not, engage that the relationship shall continue for a fixed term
of years, or for the life of the petitioner or for several lives.
Usually this relationship between petitioner and benefactor is
complicated with the bond of patronage: the former has commended himself
to the latter, has come within his power, his protection, his trust
(_trustis_), has become his _fidelis_, his _homo_. At a later time the
inferior is a _vassus_, the superior is his _senior_, for the word
_vassus_, which has meant a menial servant, spreads upwards. Then the
_precarium_, as it were, divides itself into various channels. One of
its streams encompasses the large province of humble tenancies, wherein
the peasants obtain land from the churches and other owners on more or
less arduous conditions, or reserve a right to occupy so long as they
live the lands that they have given to the saints. Another stream sweeps
onward into the domain of grand history and public law. The noble
obtains a spacious territory, perhaps a county, from the king by way of
'benefaction'; the _precarium_ becomes the _beneficium_, the
_beneficium_ becomes the _feudum_[1046]. The king can not prevent the
_beneficia_, the _feuda_, from becoming hereditary.
[The English land-loan.]
The analogous English institution was the _lǽn_ or, as we now say, loan.
If in translating a German book we render _Lehn_ by _fief_, _feud_, or
_fee_, we should still remember that a _Lehn_ is a loan. And no doubt
the history of our ancient land-loans was influenced by the history of
the _precarium_. We come upon the technical terms of continental law
when King Æthelbald forbids any one to beg for a benefit or benefice out
of the lands that have been given to the church of Winchester[1047].
There was need for such prohibitions. Edward the Elder prayed the bishop
of this very church to lend him some land for his life; the bishop
consented, but expressed a fervent hope that there would be no more of
such requests, which in truth were very like commands. It would seem
that some of the English kings occasionally did what had been done on a
large scale in France by Charles Martel or his sons, namely, they
compelled the churches to grant benefices to lay noblemen[1048]. When
bishop Oswald of Worcester declared how he had been lending lands to his
thegns, he used a foreign, technical term: '_beneficium_ quod illis
_praestitum_ est[1049].' But it is clear that the English conception of
a land-loan was very lax; it would blend with the conception of a gift.
To describe transactions of one and the same kind, if such verbs as
_commodare_ and _lǽnan_ and _lǽtan_ were used[1050], such words as
_conferre_, _concedere_, _tribuere_, _largiri_ and _donare_ were also
used[1051]. A loan is a temporary gift, and the nature of the
transaction remains the same whether the man to whom the loan is made
does, or does not, come under the obligation of paying rent or
performing services.
[Loans of church lands to the great.]
Unfortunately our materials only permit us to study one branch of the
loan; the aristocratic branch we may call it. No doubt the lords,
especially the churches, are from an early time letting or 'loaning'
lands to cultivators. Specimens of such agricultural leases we do not
see and cannot expect to see, for they would hardly be put into writing.
But at an early time we do see the churches loaning lands, and wide
lands, to great men. This is a matter of much importance. One other
course in the feudal edifice is thus constructed. We have seen the
churches interposed between the king and the cultivators of the soil;
the churches have become landlords with free land-holders under them.
And now it is discovered that the churches have a superiority which they
can lend to others. We see already a four-storeyed structure. There are
the cultivator, the church's thegn, the church, the king. Very great men
think it no shame to beg boons from the church. Already before 750 the
bishop of Worcester has granted five manses to 'Comes Leppa' for
lives[1052]; before the century is out the abbot of Medeshamstead has
granted ten manses to the 'princeps' Cuthbert for lives[1053]. In 855
the bishop of Worcester gives eleven manses to the ealdorman of the
Mercians and his wife for their lives[1054]; in 904 a successor of his
makes a similar gift[1055]. But we have seen that the king himself was
not above taking a loan from the church. Indeed powerful men insist on
having loans, and the churches, in order to protect themselves against
importunities, obtain from the king this among their other immunities,
namely, that no lay man is to beg boons from them, or that no lease is
to be for longer than the lessee's life[1056]. In such cases we may
also see the working of a second motive: the church is to be protected
against the prodigality of its own rulers. The leases made by the
prelates seem usually to have been for three lives. This compass is so
often reached, so seldom exceeded[1057] that we may well believe that
the English church had accepted as a rule of sound policy, if not as a
rule of law, the novel of Justinian which set the limit of three lives
to leases of church lands[1058].
[The consideration for the loan.]
Occasionally the lease is made in consideration of a sum of money paid
down; occasionally the recipient of the land comes under an express
obligation to pay rent. An early example shows us the abbot of
Medeshamstead letting ten manses to the 'princeps' Cuthbert for lives in
consideration of a gross sum of a thousand shillings and an annual
_pastus_ or 'farm' of one night[1059]. The bishop of Worcester early in
the ninth century concedes land to a woman for her life on condition
that she shall cleanse and renovate the furniture of the church[1060].
On the other hand, when land is 'loaned' to a king or a great nobleman,
this may be in consideration of his patronage and protection; the church
stipulates for his _amicitia_[1061]. We may say that he becomes the
_advocatus_ of the church, and the patronage exercised by kings and
nobles over the churches is of importance, though perhaps it was not
quite so serious a matter in England as it was elsewhere.
[St. Oswald's loans.]
But from our present point of view by far the most interesting form that
the loan takes is the loan to the thegn or the _cniht_. Happily it falls
out that we have an excellent opportunity of studying this institution.
We recall the fact that by the gifts of kings and underkings the church
of Worcester had become entitled to vast tracts of land in
Worcestershire and the adjoining counties. Now between the years 962 and
992 Bishop Oswald granted at the very least some seventy loans
comprising in all 180 manses or thereabouts[1062]. In almost all cases
the loan was for three lives. In a few cases the recipient was a kinsman
of the bishop, in a few he was an ecclesiastic; far more generally he is
described as 'minister meus,' 'fidelis meus,' 'cliens meus,' 'miles
meus,' 'my knight,' 'my thegn,' 'my true man.' When the 'cause' or
consideration for the transaction is expressed it is 'ob eius fidele
obsequium' or 'pro eius humili subiectione atque famulatu': a recompense
is made for fealty and service. Any thing that could be called a
stipulation for future service is very rare. A definite rent is seldom
reserved[1063]. Sometimes the bishop declares that the land is to be
free from all earthly burdens, save service in the host and the repair
of bridges and strongholds. To those excepted imposts he sometimes adds
church-scot, or the church's rent, without specifying the amount.
Sometimes he seems to go further and to say that the land is to be free
from everything save the church's rent (_ecclesiasticus census_)[1064].
In so doing he gives a hint that the recipients of the lands will have
something to pay to, or something to do for the church. Were it not for
this, we might well think that these loans were made solely in
consideration of past services, of obedience already rendered, and that
at most the recipient undertook the vague obligation of being faithful
and obsequious in the future.
[St. Oswald's letter to Edgar.]
But happily for us St. Oswald was a careful man of business and put on
record in the most solemn manner the terms on which he made his
land-loans. The document in which he did this is for our purposes the
most important of all the documents that have come down to us from the
age before the Conquest[1065]. It takes the form of a letter written to
King Edgar. We will give a brief and bald abstract of it[1066]:--'I am
(says the bishop) deeply grateful to you my lord, for all your
liberality and will remain faithful to you for ever. In particular am I
grateful to you for receiving my complaint and that of God's holy Church
and granting redress by the counsel of your wise men[1067]. Therefore I
have resolved to put on record the manner in which I have been granting
to my faithful men for the space of three lives the lands committed to
my charge, so that by the leave and witness of you, my lord and king, I
may declare this matter to the bishops my successors, and that they may
know what to exact from these men according to the covenant that they
have made with me and according to their solemn promise. I have written
this document in order that none of them may hereafter endeavour to
abjure the service of the church. This then is the covenant made with
the leave of my lord the king and attested, roborated and confirmed by
him and all his wise men. I have granted the land to be held under me
(_sub me_) on these terms, to wit, that every one of these men shall
fulfil the whole law of riding as riding men should[1068], and that they
shall pay in full all those dues which of right belong to the church,
that is to say _ciricsceott_, _toll_, and _tace_ or _swinscead_, and all
other dues of the church (unless the bishop will excuse them from any
thing), and shall swear that so long as they possess the said land they
will be humbly subject to the commands of the bishop. What is more, they
shall hold themselves ready to supply all the needs of the bishop; they
shall lend their horses; they shall ride themselves, and be ready to
build bridges and do all that is necessary in burning lime for the work
of the church[1069]; they shall erect a hedge for the bishop's hunt and
shall lend their own hunting spears whenever the bishop may need them.
And further, to meet many other wants of the bishop, whether for the
fulfilment of the service due to him or of that due to the king, they
shall with all humility and subjection be obedient to his domination and
to his will[1070], in consideration of the benefice that has been loaned
to them, and according to the quantity of the land that each of them
possesses. And when the term for which the lands are granted has run
out, it shall be in the bishop's power either to retain those lands for
himself or to loan them out to any one for a further term, but so that
the said services due to the church shall be fully rendered. And in case
any shall make wilful default in rendering the aforesaid dues of the
church, he shall make amends according to the bishop's _wite_[1071] or
else shall lose the gift and land that he enjoyed. And if any one
attempt to defraud the church of land or service, be he deprived of
God's blessing unless he shall make full restitution. He who keeps this,
let him be blessed; he who violates this, let him be cursed: Amen. Once
more, my lord, I express my gratitude to you. There are three copies of
this document; one at Worcester, one deposited with the Archbishop of
Canterbury and one with the Bishop of Winchester.'
[Feudalism in Oswaldslaw.]
Now we may well say that here is feudal tenure. In the first place, we
notice a few verbal points. The recipient of the _lǽn_ has received a
_beneficium_ from the bishop, and if he will not hold the land _de
episcopo_, none the less he will hold it _sub episcopo_. Then he is the
bishop's _fidelis_, his _fidus homo_, his 'hold and true man,' his
thegn, his knight, his soldier, his _minister_, his _miles_, his
_eques_. Then he takes an oath to the bishop, and seemingly this oath
states in the most energetic terms his utter subjection to the bishop's
commands. What is more, he swears to be faithful and obedient because he
has received a _beneficium_ from the bishop, and the amount of his
service is measured by the quantity of land that he has received. Then
again, we see that he holds his land by service; if he fails in his
service, at all events if he denies his liability to serve, he is in
peril of losing the land, though perhaps he may escape by paying a
pecuniary fine. As to the services to be rendered, if we compare them
with those of which Glanvill and Bracton speak, they will seem both
miscellaneous and indefinite; perhaps we ought to say that they are all
the more feudal on that account. The tenant is to pay the church-scot,
the _ecclesiasticus census_ of other documents. This, as we learn from
Domesday Book, is one load (_summa_) of the best corn from every hide of
land, and unless it be paid on St. Martin's day, it must be paid
twelve-fold along with a fine[1072]. He must pay toll to the bishop when
he buys and sells; he must pay _tace_, apparently the pannage of a later
time, for his pigs. He must go on the bishop's errands, provide him with
hunting-spears, erect his 'deer-hedge' when he goes to the chase. There
remains a margin of unspecified services; for he must do what he is told
to do according to the will of the bishop. But, above all, he is a
horseman, a riding man and must fulfil 'the law of riding.' For a moment
we are tempted to say 'the law of chivalry.' This indeed would be an
anachronism; but still he is bound to ride at the bishop's command. Will
he ride only on peaceful errands? We doubt it. He is bound to do all
the service that is due to the king, all the forinsec service[1073] we
may say. A certain quantity of military service is due from the bishop's
lands; his thegns must do it. As already said, the obligation of serving
in warfare is not yet so precisely connected with the tenure of certain
parcels of land as it will be in the days of Henry II., but already the
notion prevails that the land owes soldiers to the king, and probably
the bishop has so arranged matters that his territory will be fully
'acquitted' if his _equites_, his _milites_ take the field. Under what
banner will they fight? Hardly under the sheriff's banner. Oswald is
founding Oswaldslaw and within Oswaldslaw the sheriff will have no
power. More probably they will follow the banner of St. Mary of
Worcester. This we know, that in the Confessor's reign one Eadric was
steersman of the bishop's ship and commander of the bishop's
troops[1074]. This also we know, that in the suit between the churches
of Worcester and of Evesham that came before the Domesday commissioners,
one of the rights claimed by the bishop against the abbot was that the
men of two villages, Hamton and Bengeworth, were bound to pay geld and
to fight along with the bishop's men[1075]. And then, suppose that Danes
or Welshmen or Englishmen make a raid on the bishop's land, is it
certain that he will communicate with the ealdorman or the king before
he calls upon his knights to defend and to avenge him? Still we must not
bring into undue relief the military side of the tenure.
[Oswald's riding men.]
These men may be bound to fight at the bishop's call, but fighting is
not their main business; they are not professional warriors. They are
the predecessors not of the military tenants of the twelfth century, but
of the _radchenistres_, and _radmanni_ of Domesday Book, the
_rodknights_ of Bracton's text, the thegns and drengs of the northern
counties who puzzle the lawyers of the Angevin time. Point by point we
can compare the tenure of these _ministri_ and _equites_ of the tenth
with that of the thegns and drengs of the twelfth and thirteenth
centuries and at point after point we find similarity, almost identity.
They pay rent; they have horses and their horses are at the service of
their lord; they must ride his errands, carry his stores, assist him in
the chase; they must fight if need be, but the exact nature of this
obligation is indefinite[1076]. Dependent tenure is here and, we may
say, feudal tenure, and even tenure by knight's service, for though the
English _cniht_ of the tenth century differs much from the knight of the
twelfth, still it is a change in military tactics rather than a change
in legal ideas that is required to convert the one into the other. As
events fell out there was a breach of continuity; the English thegns and
drengs and knights either had to make way for Norman _milites_, or, as
sometimes happened, they were subjected to Norman _milites_ and
constituted a class for which no place could readily be found in the new
jurisprudence of tenures. But had Harold won the day at Hastings and at
the same time learnt a lesson from the imminence of defeat, some
peaceful process would probably have done the same work that was done by
forfeitures and violent displacements. The day for heavy cavalry and
professional militancy was fast approaching when Oswald subjected his
tenants to the _lex equitandi_.
[Heritable loans.]
Yet another of those feudal phenomena that come before us in the twelfth
century may easily be engendered by these loans; we mean the precarious
inheritance, the right to 'relieve' from the lord the land that a dead
man held of him[1077]. In speaking of Oswald's loans as 'leases for
three lives' we have used a loose phrase which might lead a modern
reader astray. Oswald does not let land to a man for the lives of three
persons named in the lease and therefore existing at the time when the
lease is made; rather he lets the land to a man and declares that it
shall descend to two successive heirs of his. The exact extent of the
power that the lessee has of instituting an heir, in other words of
devising the land by testament, instead of allowing it to be inherited
_ab intestato_, we need not discuss; suffice it that the lessee's rights
may twice pass from ancestor to heir, or from testator to devisee[1078].
Now such a lease may cover the better part of a century. A time will
come when the land ought to return to the church that gave it; but for
some eighty years it will have 'been in one family' and twice over it
will have been inherited. Is it very probable that the bishop will be
able to oust the third heir? Will he wish to do so, if three generations
of thegns or knights have faithfully served the church? May we not be
fairly certain that this third heir will get the land on the old terms,
if he will 'recognize' the church's right to turn him out? As a matter
of fact we see that Oswald's successors have great difficulty in
recovering the land that he has let[1079]. In the middle ages he who
allows land to descend twice has often enough allowed it to become
heritable for good and all. Despite solemn charters and awful anathemas
he will have to be content with a relief[1080].
[Wardship and marriage.]