marriage.' We can see the beginning of it. In 983 Oswald let five manses
to his kinsman Gardulf. Gardulf is to enjoy the land during his life;
after his death his widow is to have it, if she remains a widow or if
she marries one of the bishop's subjects[1081]. So the bishop is already
taking an interest in the marriages of his tenants; he will have no
woman holding his land who is married to one who is not his man. And
then Domesday Book tells us how in the Confessor's day one of Oswald's
successors had disposed of an heiress and her land to one of his
knights[1082].
[Seignorial jurisdiction.]
Still, it will be urged, the feudalism here displayed is imperfect in
one important respect. These tenants of the church of Worcester hold
their land under contracts cognizable by the national courts; they do
not hold by any special feudal law, they are not subject to any feudal
tribunal. Now if when we hear of 'feudalism,' we are to think of that
orderly, centralized body of land-law which in Henry III.'s day has
subjected the whole realm to its simple but mighty formulas, the
feudalism of Oswald's land-loans is imperfect enough. But then we must
remind ourselves that never in this country does feudal law (the
_Lehnrecht_ of Germany) become a system to be contrasted with the
ordinary land law (_Landrecht_)[1083], and also we must observe that
already in Oswald's day the thegns of the church of Worcester were in
all probability as completely subject to a private and seignorial
justice as ever were any freeholding Englishman. What court protected
their tenure, what court would decide a dispute between them and the
bishop? Doubtless--it will be answered--the hundred court. But in all
probability that court, the court of the great triple hundred of
Oswaldslaw was already in the hand of the bishop who gave it its
name[1084]. The suits of these tenants would come into a court where the
bishop would preside by himself or his deputy, and where the doomsmen
would be the tenants and justiciables of the bishop--not indeed because
tenure begets jurisdiction (to such a generalization as this men have
not yet come)--but still, the justice that these tenants will get will
be seignorial justice.
[Oswaldslaw and England at large.]
Now how far we should be safe in drawing from Oswald's loans and
Oswaldslaw any general inferences about the whole of England is a
difficult question. It is clear that the bishop was at great pains to
regulate the temporal affairs of his church. He obtained for his leases
the sanction of every authority human and divine, the consent of the
convent, the ealdorman, the king, the witan; he deposited the covenant
with the king, with the archbishop of Canterbury, with the bishop of
Winchester. Also we must remember that he had lived in a Frankish
monastery, and that, at least in things monastic, he was a radical
reformer. Nor should it be concealed that in Domesday Book the entries
concerning the estates of the church of Worcester stand out in bold
relief from the monotonous background. Not only is the account of the
hundred of Oswaldslaw prefaced by a statement which in forcible words
lays stress on its complete subjection to the bishop, but in numerous
cases the tenure of the nobler and freer tenants within that hundred is
described as being more or less precarious:--they do whatever services
the bishop may require; they serve 'at the will of the bishop'; no one
of them may have any lord but the bishop; they are but tenants for a
time and when that time is expired their land will revert to the
church[1085].
[Inferences from Oswald's loans.]
However, we should hesitate long before we said that Oswald's land-loans
were merely foreign innovations. His predecessors had granted leases for
lives; other churches were granting leases for lives, and the important
document that he sent to the king proves to us that we can not trust our
Anglo-Saxon lease or land-book to contain the whole of the terms of that
tenure which it created. Suppose that this unique document had perished,
how utterly mistaken an opinion should we have formed of the terms upon
which the thegns and knights of the church of Worcester held their
lands! We should have heard hardly a word of money payments, no word of
the oath of subjection, of the _lex equitandi_, of the indefinite
obligation of obeying whatever commands the bishop might give. It may
well be that the thegns and knights of other churches held on terms very
similar to those that the bishop of Worcester imposed. Even if we think
that Oswald was an innovator, we must remember that the adviser of
Edgar, the friend of Dunstan, the reformer of the monasteries, the man
who for thirty years was Bishop of Worcester and for twenty years
Archbishop of York, was able to make innovations on a grand scale. What
such a man does others will do. The yet safer truth that what Oswald did
could be done, should not be meaningless for us. In the second half of
the tenth century there were men willing to take land on such terms as
Oswald has described.
[Economic position of Oswald's tenants.]
These men were not peasants. The land that Oswald gave them they were
not going to cultivate merely by their own labour and the labour of
their sons and their slaves, though we are far from saying that they
scorned to handle the plough. We have in Domesday Book a description of
their holdings, and it is clear that in the Confessor's day, when some
of Oswald's leases must yet have been in operation, the lessees had what
we should describe as small manors with villeins and cottagers upon
them. Thus, for example, Eadric the Steersman, who led the bishop's
host, had an estate of five hides which in 1086 had three _villani_ and
four _bordarii_, to say nothing of a priest, upon it[1086]. Like enough,
what the bishop has been 'loaning' to his thegns has been by no means
always 'land in demesne,' it has been 'land in service': in other words,
a superiority, a seignory. Thus, as we say, another course of the feudal
edifice is constructed. Above the cultivator stands the thegn or the
_cniht_, who himself is a tenant under the bishop and who owes to the
bishop services that are neither very light nor very definite. We can
not but raise the question whether the cultivators, if we suppose them
to be in origin free landowners, can support the weight of this
superstructure without being depressed towards serfage. But we are not
yet in a position to deal thoroughly with this question[1087].
[Loan-land and book-land.]
We must now return for a moment to the relation that exists between the
loan and the book. _Lǽnland_ is contrasted with _bócland_; but
historians have had the greatest difficulty in discovering the principle
that lies beneath this distinction[1088]. Certainly we can not say that,
while book-land is created and governed by a charter, there will be no
written instrument, no book, creating and governing the _lǽn_. We have
books which in unambiguous terms tell us that they bear witness to
loans. Nor can we say that the holder of book-land will always have a
perpetual right to the land, 'an estate in fee simple,' an estate to him
and his heirs. In many cases a royal charter will create a smaller
estate than this; it will limit the descent of the land to the heirs
male of the donee. Moreover the written leases for three lives of which
we have been speaking are 'books.' Thus in 977 Oswald grants three
manses to his thegn Eadric for three lives, and the charter ends with a
statement which tells us in English that Oswald the archbishop is
booking to Eadric his thegn three hides of land which Eadric formerly
held as _lǽnland_[1089]. A similar deed of 985 contains a similar
statement; five hides which Eadric held as _lǽnland_ are now being
booked to him, but booked only for three lives[1090]. In yet another of
Oswald's charters we are told that the donee is to hold the land by way
of book-land as amply as he before held it by way of _lǽnland_[1091].
After this it is needless to say that book-land may be burdened with
rents and services. But indeed it would seem that Oswald's thegns and
knights held both book-land and _lǽnland_. It was book-land because it
had been booked to them, and yet very certainly it had only been loaned
to them[1092].
[Book-land in the dooms.]
Let us then turn to the laws and read what they say about book-land. Two
rules stand out clearly. Æthelred the Unready declares that every _wíte_
incurred by a holder of book-land is to be paid to the king[1093]. Cnut
declares that the book-land of the outlaw, whosesoever man he may be,
and of the man who flies in battle is to go to the king[1094]. These
laws seem to put before us the holder of book-land as standing by reason
of his land in some specially close relationship to the king. If we may
use the language of a later day, the holder of book-land is a tenant in
chief of the king, and this even though he may have commended himself to
someone else. On the other hand, if the holder of _lǽnland_ commits a
grave crime, his land reverts, or escheats or is forfeited to the man
who made the _lǽn_[1095]. And yet, though this be so and though Oswald's
thegns will in some sense or another be holding book-land, we may be
quite certain that should one of them be outlawed the bishop will claim
the land. Indeed he is careful about this as about other matters. Often
he inserts in his charter a clause saying that, whatever the grantee may
do, the land shall return unforfeited to the church.
[Relation of loan-land to book-land.]
Any solution of these difficulties must be of a somewhat speculative
kind. We fashion for ourselves a history of the book and of the
land-loan which runs as follows:--The written charter first makes its
appearance as a foreign and ecclesiastical novelty. For a very long time
it is used mainly, if not solely, as a means of endowing the churches
with lands and superiorities. It is an instrument of a very solemn
character armed with the anathema and sanctioned by the crosses of those
who can bind and loose. Usually it confers rights which none but kings
can bestow, and which even kings ought hardly to bestow save with the
advice of their councillors. A mass of rights held under such a charter
is book-land, or, if we please, the land over which such rights are
exercisable, is book-land for the grantee. In course of time similar
privileges are granted by the kings to their thegns, though the book
does not thereby altogether lose its religious traits. It is long before
private persons begin to use writing for the conveyance or creation of
rights in land. The total number of the books executed by persons who
are neither kings, nor underkings, nor prelates of the church, was, we
take it, never very large; certainly the number of such books that have
come down to us is very small.
[Royal and other books.]
Nothing could be more utterly unproved than the opinion that in
Anglo-Saxon times written instruments were commonly used for the
transfer of rights in land. Let us glance for a moment at the documents
that purport to have come to us from the tenth century. Genuine and
spurious we have near six hundred. But we exclude first the grants made
by the kings, secondly Oswald's leases and a few similar documents
executed by other prelates, thirdly a few testamentary or
quasi-testamentary dispositions made by the great and wealthy. Hardly
ten documents remain. Let us observe their nature. The ealdorman and
lady of the Mercians make a grant to a church in royal fashion[1096];
but in every other case in which we have a document which we can
conceive as either transferring rights in land or as being formal
evidence of such a transfer, the consent of the king or of the king and
witan to the transaction is stated, and with hardly an exception the
king executes the document[1097]. Even the holder of book-land who
wished to alienate it, for example, the thegn who wished to pass on his
book-land to a church, did not in general execute a written conveyance.
One of three courses was followed. The donor handed over his own book,
the book granted by the king, and apparently this was enough; or the
parties to the transaction went before the king, delivered up the old
and obtained a new book; or the donor executed some brief
instrument--sometimes a mere note endorsed on the original book--stating
how he had transferred his right[1098]. But in any case, according to
the common usage of words, a usage which has a long history behind it,
it is only the man who is holding under a royal privilege who has
'book-land.' It is to this established usage that the laws refer when
they declare that the king and no lower lord is to have the _wíte_ from
the holder of book-land, and that when book-land is forfeited it is
forfeited to the king. For all this, however, if you adhere to the
letter, book-land can only mean land held by book. Now from a remote
time men have been 'loaning' land, and prelates when they have made a
loan have sometimes executed a written instrument, a book. A prelate can
pronounce the anathema and the recipient of the _lǽn_ may well wish to
be protected, not merely by writing, but by Christ's rood. When
therefore Bishop Oswald grants a written lease to one of his thegns who
heretofore has been in enjoyment of the land but has had no charter to
show for it, we may well say that in the future this thegn will have
book-land, though at the same time he has but loan-land. We have no
scruple about charging our ancestors with having a confused terminology.
The confusion is due to a natural development; 'books' were formerly
used only for one purpose, they are beginning to be used for many
purposes, and consequently 'book-land' may mean one thing in one
context, another in another. We may say that every one who holds under a
written document holds book-land, or we may still confine the name
'book' to that class of books which was at one time the only class. The
king's charters, the king's privileges, have been the only books; they
are still books in a preeminent sense. Just so in later days men will
speak of 'tenure in capite' when what they really mean is 'tenure in
capite of the crown by military service[1099].'
[The gift and the loan.]
But there is a deeper cause of perplexity. Once more we must repeat that
the gift shades off into the loan, the loan into the gift. The loan is a
gift for a time. It is by words of donation ('I give,' 'I grant') that
Oswald's _beneficia_ are _praestita_ to his knights and thegns.
Conversely, the king's most absolute gift leaves something owing and
continuously owing to him; it may be prayers, it may be fealty and
obedience. And having considered by how rarely good fortune it is that
we know the terms of Oswald's land-loans, how thoroughly we might have
mistaken their nature but for the preservation of a single document, we
shall be very cautious in denying that between many of the holders of
book-land and the king there was in the latter half of the tenth century
a relationship for which we have no other name than feudal tenure. If
Oswald's charters create such a tenure, what shall we say of the
numerous charters whereby Edred, Edwy, Edgar and Æthelred grant land to
their thegns in consideration of fealty and obedience? Must not these
thegns fulfil the whole _lex equitandi_; will they not lose their lands
if they fail in this service? True that the rights conferred upon them
are not restrained within the compass of three lives but are heritable
_ad infinitum_. But does this affect the character of their tenure? Can
we--we can not in more recent times--draw any inference from 'the
_quantum_ of the estate' to 'the quality of the tenure'? On the whole,
we are inclined to believe that the practice of loaning lands affected
the practice of giving lands, there being no sharp and formal
distinction between the gift and the loan, and that when Edward the
Confessor died no great injustice would have been done by a statement
that those who held their lands by royal books held their lands 'of' the
king. This at least we know, that the formula of dependent tenure ('_A_
holds land of _B_') was current in the English speech of the Confessor's
days and that some of the king's thegns held their land 'of' the
king[1100]. We may guess that those old terms 'book-land' and
'loan-land' would soon have disappeared even from an unconquered
England, for it was becoming plain that the book bears witness to a
loan. A new word was wanted; that word was _feudum_.
FOOTNOTES:
[1021] K. 729 (iv. 3).
[1022] It is noticeable that the verb _syllan_ usually means 'to
give.' Words such as _vendere_ are avoided.
[1023] A.D. 941, K. 390 (ii. 234) condemned by Kemble: 'amabili
vassallo meo.'--A.D. 952, K. 431 (ii. 302): 'cuidam
vassallo.'--A.D. 956? K. 462 (ii. 338): 'meo fideli
vassallo.'--A.D. 967, K. 534 (iii. 11): 'meo fideli
vassallo.'--A.D. 821, K. 214 (i. 269): 'expeditionem cum 12
vassallis et cum tantis scutis exerceant.' After the Norman
Conquest the word is very rare in our legal texts.
[1024] K. 179 (i. 216): 'eo videlicet iure si ipse nobis et
optimatibus nostris fidelis manserit minister et inconvulsus
amicus.'
[1025] K. 408 (ii. 263): 'eatenus ut vita comite tam fidus mente
quam subditus operibus mihi placabile obsequium praebeat, et
meum post obitum cuicunque meorum amicorum voluero eadem
fidelitate immobilis obediensque fiat.'
[1026] The terms of the oath are given in Schmid, App. X.
[1027] See above, p. 69.
[1028] See above, p. 69.
[1029] K. 214 (i. 269); H. & S. iii. 556.
[1030] D. B. i. 172; see above, p. 159.
[1031] Cnut, II. 13, 77.
[1032] See above, p. 156.
[1033] K. 1035 (v. 76). The charter is not beyond suspicion, but
Kemble has received, and the editors of the Councils (H. & S.
iii. 607) have refused to condemn it.
[1034] K. 1020 (v. 60); B. i. 409; H. & S. iii. 528.
[1035] See Brunner, Die Landschenkungen der Merowinger und der
Agilolfinger, Forschungen, p. 6: 'He who receives an order
acquires in the insignia of the order which are delivered to
him an ownership of an extremely attenuated kind. He can not
give them away or sell them or let them out or give them in
dowry. When he dies they go back to the giver.' We are not
aware of any English decision on such matters as these. In a
charter for Winchester (B. ii. 238) Edward the Elder is
represented as saying that the land that he gives to the
church is never to be alienated. If, however, the monks must
sell or exchange it, then they may return it 'to that royal
family by whom it was given to them.'
[1036] Brunner, Zur Rechtsgeschichte d. röm. u. germ. Urkunde, p.
190; Hist. Eng. Law, ii. 12.
[1037] See Brunner, Landschenkungen, Forschungen, p. 1. In this
paper Dr Brunner appealed to our English law, in order that
he might settle the famous controversy between Waitz and Roth
as to the character of the gifts of land made by the
Merovingians. On p. 5 he denies that our rule about 'words of
inheritance' should be called feudal. Its starting point is
the principle that the quality [an English lawyer would
add--and the quantity also] of the 'estate' (_Besitzrecht_)
can be determined by the donor's words, by a _lex donationis_
imposed by the donor on the land.
[1038] Brunner, Geschichte der Urkunde, p. 200.
[1039] Heming's Cartulary, i. 259. 'Post mortem autem eius, filius
eius ... testamentum patris sui irritum faciens....' Ibid. p.
263: 'Brihtwinus ... eandem terram Deo et Sanctae Mariae
obtulit, eundemque nepotem suum monachum fecit. Filius eius
etiam, Brihtmarus nomine, pater ipsius iam dicti Edwini
monachi, cum heres patris extitisset, ... ipsam ... villam
monasterio dedit.' Hist. Eng. Law, ii. 250.
[1040] Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292.
[1041] Crawford Charters (ed. Napier and Stevenson), pp. 23, 126.
Early in cent. xi. a bishop in his testament declares how he
gives 'to each retainer his steed which he had lent him.'
[1042] See the wills collected by Thorpe; p. 501: Gift to the queen
for her mediation that the will may stand. Ibid. p. 505: 'And
bishop Theodred and ealdorman Eadric informed me, when I gave
my lord the sword that king Edmund gave me ... that I might
be worthy of my testament (_mine quides wirde_). And I never
... have done any wrong to my lord that it may not so be.'
Ibid. p. 519: 'And I pray my dear lord for the love of God
that my testament may stand.' See also pp. 528, 539, 543,
552, 576.
[1043] Thus ealdorman Alfred disposes (but with the consent of the
king and all his witan) of his 'heritage' as well as of his
book-land; Thorpe, 480. Lodge, Essays on A.-S. Law, p. 108,
supposes a certain power of regulating the descent of 'family
land' within the family.
[1044] K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et
praesente domino meo rege ... concessi ... terram iuris mei
... quam praefatus rex Eadredus mihi dedit in perpetuam
hereditatem cum libro eiusdem terrae.'--K. 1130 (v. 254):
'Ego Eadulfus dux per concessionem domini mei regis ...
concedo ... has terras de propria possessione mea quas idem
... rex dedit in perpetuam hereditatem.'--K. 1226 (vi. 25):
'Ego Ælfwordus minister Regis Eadgari concedo ... annuente
domino meo rege ... villam unam de patrimonio meo.'
[1045] Except in the cases, comparatively rare before the statute
_Quia Emptores_, in which the feoffee is to hold of the
feoffor's lord.
[1046] Fustel de Coulanges, Les origines du système féodal; Brunner,
D. R. G. i. 209-12.
[1047] K. 1058 (v. 115); B. ii. 89: 'et nullus iam licentiam
ulterius habeat Christi neque sancti Petri ... neque ausus
sit ulterius illam terram praedictam _rogandi in
beneficium_.'
[1048] K. 1089 (v. 166); B. ii. 281. See also K. 262 (ii. 33); B.
ii. 40; Birhtwulf of Mercia takes a lease for five lives from
the church of Worcester and assigns it to a thegn. The
consideration for this lease is a promise that for the future
he will not make gifts out of the goods of the church.
[1049] K. 1287 (vi. 124). The verb _praestare_ was the regular term
for describing the action of one who was constituting a
_precarium_ or _beneficium_. In K. 1071 (v. 138) Bp Werferth
of Worcester obtains a lease for three lives having
petitioned for it; 'terram ... humili prece deprecatus fui.'
[1050] For _commodare_ see K. v. pp. 166, 169, 171; for _lǽnan_,
ibid. 162; for _lǽtan_, ibid. 164.
[1051] See Bp Oswald's leases.
[1052] K. 91 (i. 109).
[1053] K. 165 (i. 201).
[1054] K. 279 (ii. 61).
[1055] K. 339 (ii. 149).
[1056] See the charter of Cenwulf for Winchcombe, H. & S. iii. 572
and the editors' note at 575. See also K. 610 (iii. 157),
1058 (v. 115), 1090 (v. 169).
[1057] K. 262 (ii. 33) is a lease for five lives by the church of
Worcester; but the lessee is a king.
[1058] Nov. 7, 3. See Brunner, Zur Rechtsgeschichte der röm. u.
germ. Urkunde, 187. Theodore of Tarsus would perhaps have
known this rule. It does not belong to the general western
tradition of Roman law, but is distinctly Justinianic.
[1059] K. 165 (i. 201). The 'limitation' is not very plain; but we
seem to have here a lease for two lives.
[1060] K. 182 (i. 220).
[1061] K. 262 (ii. 33); B. ii. 40: lease by church of Worcester to
the king for five lives: 'et illi dabant terram illam ea
tamen conditione ut ipse rex firmius amicus sit episcopo
praefato et familia in omnibus bonis eorum.' K. 279 (ii. 61):
lease by the same church to a dux and his wife with
stipulation for _amicitia_.
[1062] These are preserved in Heming's Cartulary; see K. 494-673.
[1063] In K. 498 (ii. 386) the _aecclesiasticus census_ is two
_modii_ of clean grain; in K. 511 (ii. 400) the lessee must
mow once and reap once 'with all his craft'; in K. 508 (ii.
398) he must sow two acres with his own seed and reap it; in
K. 661 (iii. 233) is a similar stipulation.