i. 119, seems to doubt whether it can be traced far beyond

the days of Cnut. Zinkeisen, Die Anfänge der Lehngerichtsbarkeit in England (1893, a Berlin doctoral dissertation), criticizes Mr Adams's theory.

[935] Essays, pp. 43-4.

[936] See above, p. 84.

[937] K. 853 (iv. 208); E. 343.

[938] The clearest instance is in the Waltham charter, K. 813 (iv. 154), but some details of this are not beyond suspicion. See also the writs for Westminster, K. 828 (iv. 191), 857 (iv. 213); Ordn. Facs. vol. ii. pl. 9.

[939] Charter for St. Edmund's, K. 1346 (vi. 205). See the account of Bury St. Edmunds in D. B. ii. 372: 'et quaudo in hundreto solvitur ad geltum 1 lib. tunc inde exeunt 60 den. ad victum monachorum.'

[940] First printed from a copy in the MacDurnan Gospels by J. O. Westwood in Palaeographia Sacra, with a facsimile, plate 11. Accepted by Kemble and printed by him in Archaeological Journal, xiv. 61; Earle, 232; Freeman, Norman Conquest, ii. 52.

[941] See the writ for St. Paul's, K. 1319 (vi. 183). Mr Adams (p. 44) stigmatizes this as an evident forgery; but the reasons for this severe judgment are not apparent. See also K. 1321 (vi. 190), and the Latin writ of Harthacnut K. 1330 (vi. 192), which may have a genuine basis.

[942] Cnut, II. 12 (Schmid, p. 276).

[943] Thus if a statute requires written and signed evidence of an agreement, a letter in which the writer says, 'True, I made such and such an agreement, but I am not going to keep it,' may be evidence enough; see _Bailey_ v. _Sweeting_, 9 C. B. N. S. 843.

[944] Brunner, Carta und Notitia (Commentationes in honorem T. Mommsen); Brunner, Zur Rechtsgeschichte der Röm. u. Germ. Urkunde.

[945] Both the Angevin charter and the Angevin letters patent are in what we call 'writ-form.' The main formal difference is that the charter professes to be witnessed by a number of the king's councillors, while _Teste Meipso_ does for letters patent. This distinction is coming to the front about the year 1200.

[946] K. 731 (iv. 9); T. 308.

[947] K. 642 (iii. 203); compare D. B. i. 41.

[948] The Conqueror's charter for Exeter reproduced in Ordnance Facsimiles, vol. ii. is a fine specimen of the solemn charters referred to above. A considerable number of specimens, genuine and spurious (for our present purpose a forgery is almost as valuable as a true charter), will be found in the Monasticon, e.g. i. 174, Rufus for Rochester; i. 266, Rufus for Bath; ii. 109-111, 126, Henry I. for Abingdon; i. 163, Henry I. for Rochester; ii. 65-6, Henry I. for Evesham; ii. 267, Henry I. for Bath; ii. 539, Henry I. for Exeter; iii. 448, Henry I. for Malvern; vi. (1) 247, Henry I. for Merton; iii. 406, Stephen for Eye. Nor was this solemn form employed only by kings:--See Monast. ii. 385-6, Earl Hugh for Chester; iii. 404, Robert Malet for Eye; v. 121, Hugh de la Val for Pontefract; v. 167, William of Mortain for Montacute; v. 190, Simon of Senlis for St. Andrew Northampton; v. 247, Stephen of Boulogne for Furness; v. 316, Richard Earl of Exeter for Quarr; v. 628, Ranulf of Chester for Pulton. As to Normandy, see the charters in the Neustria Pia and the Gallia Christiana. A charter of Henry II. for Fontenay recites a charter by which the ancestors of Jordan Tesson founded the abbey with the consent of Duke William, also a charter of Duke William, 'quae cartae crucibus sunt signatae secundum antiquam consuetudinem'; Neustria Pia, p. 80; Gallia Christiana, xi. Ap. col. 82. It is probable that during the Norman reigns the king's cross was considered more valuable even than the king's seal; Monast. iv. p. 18, Henry I. says, 'hanc donationem confirmo ego Henricus rex et astipulatione sanctae crucis et appositione sigilli mei'; Ibid. ii. 385-6, Earl Hugh confirms a gift 'non solum sigillo meo sed etiam sigillo Dei omnipotentis, id est, signo sanctae crucis.' It is not implied in our text that every specimen of each of the two forms of instrument that we have mentioned will always display all the characteristics that have been noticed. There is no reason, for example, why in a solemn charter the king should not speak in the past tense of the act of gift, and as a matter of fact he does so in some of the Anglo-Saxon books, while, on the other hand, an instrument which begins with a salutation may well have the words of gift in the present tense (this is by no means uncommon in Anglo-Norman documents); nor of course is it necessary that an instrument in writ-form should be authenticated by a seal instead of a cross. Again, a solemn charter with crosses and pious recitals may begin with a salutation. We merely point out that the diplomata of Edward the Confessor and his Norman successors tend to conform to two distinct types. As to this matter see the remarks of Hickes, Dissertatio Epistolaris, p. 77; Hardy, Introduction to Charter Rolls, xiv., xxxvi.

[949] The curious formula, Schmid, App. XI., already has 'ne sace ne socne.' This seems to suppose that it is a common thing for a man to have sake and soke over his land.

[950] R. H. ii. 231.

[951] R. H. ii. 458.

[952] D. B. i. 172 b.

[953] R. H. ii. 283.

[954] Hale, Worcester Register, pp. xxx, 21 b; K. Appendix, 514 (vi. 237); Hickes, Dissertatio Epistolaris, i. 86; at the end of his dissertation Hickes gives a facsimile of the instrument.

[955] A record of 825 (H. & S. iii. 596-601) mentions a place 'in provincia Huicciorum' called Oslafeshlau; the editors of the Councils say 'Oslafeshlau is probably the original name of the hundred which now, either from some act of St. Oswald or by an easy corruption, is called Oswaldslaw.' One of Oswald's books (K. iii. 160) mentions 'Oswald's hlaw' among the boundaries of Wulfringtune, i.e. Wolverton, a few miles east of Worcester. It is very likely that the true name of the hundred is Oswald's hlaw, i.e. Oswald's hill, not Oswald's law, though the mistake was made at an early time. But the story told by the charter as to the fusion of three old hundreds is corroborated by Domesday, and in the thirteenth century one of the three courts was still held at Wimborntree.

[956] But Dr Stubbs, Const. Hist. i. 118, relies on part of this charter and it is not like ordinary forger's work. If, as is highly probable, there has been some 'improvement' of the charter, such improvement seems to have favoured, not the church of Worcester as against the king, but the monks as against the bishop.

[957] 'cum tolle et teame, saca et socne, et infangenetheof, et proprii iuris debitum transgressionis, et poenam delicti quae Anglice dicitur ofersæwnesse, et gyltwyte.'

[958] D. B. i. 172 b: 'Ecclesia S. Mariae de Wirecestre habet unum hundret quod vocatur Oswaldeslau in quo iacent ccc. hidae. De quibus episcopus ipsius ecclesiae a constitutione antiquorum temporum habet omnes redditiones socharum et omnes consuetudines inibi pertinentes ad dominicum victum et regis servitium et suum, ita ut nullus vicecomes ullam ibi habere possit querelam, nec in aliquo placito, nec in alia qualibet causa. Hoc testatur totus comitatus.'

[959] Another example is Edgar's charter for Ely, A.D. 970 K. 563 (iii. 56), which bestows the soke over the two hundreds which lie within the Isle, five hundreds in Essex, and all other lands of the monastery. Kemble was inclined to accept the A.-S. version of the charter. It purports to be obtained by bishop Æthelwold and, if genuine, is closely connected with the Oswaldslaw charter; both testify to unusual privileges obtained by the founders of the new monasticism.

[960] E.g. K. 1298 (vi. 149), 'Dis is seo freolsboc to ðan mynstre æt Byrtune.'

[961] E.g. K. 277 (ii. 58), 278 (ii. 60).

[962] A.D. 875; K. 306 (ii. 101); B. ii. 159.

[963] Unsuspected charters of the seventh and eighth centuries are so few, that we hardly dare venture on any generalities about their wording. But already in a charter attributed to 674, E. p. 4, Brit. Mus. Facs. iv. 1, something very like the 'common form' of later days appears; it appears also in a charter of A.D. 691-2, K. 32 (i. 35), E. p. 12, of which we have but a fragmentary copy, and before the end of the eighth century it appears with some frequency; see e.g. Offa's charter of 774, K. 123 (i. 150): 'sit autem terra illa libera ab omni saecularis rei negotio, praeter pontis, arcisve restaurationem et contra hostes communem expeditionem.'

[964] Occasionally the contrast is expressly drawn, e.g. by Æthelbald, K. 90 (i. 108): 'ut ab omni tributo vectigalium operum onerumque _saecularium_ sit libera ... tantum ut Deo omnipotenti ex eodem agello _aecclesiasticae_ servitutis famulatum inpendat.'

[965] See above, p. 229.

[966] Privilege of Wihtræd, A.D. 696-716, Haddan and Stubbs, iii. 238: 'Adhuc addimus maiorem libertatem. Inprimis Christi ecclesiae cum omnibus agris ad eam pertinentibus, similiter Hrofensi ecclesiae cum suis, caeterisque praedictis omnibus ecclesiis Dei nostri, subiciantur pro salute animae meae, meorumque praedecessorum, et pro spe caelestis regni ex hac die, et deinceps concedimus et donamus ab omnibus difficultatibus saecularium servitutis, a pastu Regis, principum, comitum, nec non ab operibus, maioribus minoribusve gravitatibus: et ab omni debitu vel pulsione regum tensuris liberos eos esse perpetua libertate statuimus.' See also the act by which Æthelbald confirmed this privilege in 742, H. & S. iii. 340, B. i. 233-6. According to one version of this act, the _trinoda necessitas_ is, according to another it is not, excepted. The learned editors of the Councils speak of 'the suspicions common to every record that notices the Privilege of Wihtræd.' We are treading on treacherous ground. See also the less suspicious Act of Æthelbald, A.D. 749, H. & S. iii. 386: 'Concedo ut monasteria et aecclesiae a publicis vectigalibus et ab omnibus operibus oneribusque, auctore Deo, servientes absoluti maneant, nisi sola quae communiter fruenda sunt, omnique populo, edicto regis, facienda iubentur, id est, instructionibus pontium, vel necessariis defensionibus arcium contra hostes, non sunt renuenda.'

[967] A.D. 1066, Edward the Confessor for Westminster, K. 828 (iv. 191): 'scotfre and gavelfre.'

[968] Kemble, Codex, vol. i. Introduction liii-lvi., collects some of the best instances. Offa for a valuable consideration frees certain lands belonging to the church of Worcester from _pastiones_; 'nec non et trium annorum ad se pertinentes pastiones, id est sex convivia, libenter concedendo largitus est': K. 143 (i. 173), B. i. 335.

[969] A.D. 904, K. 1084 (v. 157).

[970] A.D. 826, Egbert for Winchester, K. 1037 (v. 81): 'Volo etiam ut haec terra libera semper sit ... nullique serviat nisi soli episcopo Wentano.'

[971] K. 1346 (vi. 205). Compare Fustel de Coulanges, L'Immunité Mérovingienne, Revue historique, xxiii. 21.

[972] E.g. K. 1117 (v. 231): 'tribus semotis causis a quibus nullus nostrorum poterit expers fore'; K. v. pp. 259, 283, 334.

[973] To this class belong the foundation charter of Evesham mentioned above, p. 235, and Offa's charter for St. Albans, K. 161 (i. 195), which Haddan and Stubbs, iii. 469, are unwilling to decisively reject. Cenwulf's charter for Abingdon, K. 214 (i. 269), H. & S. iii. 556, sets a limit to the amount of military service that is to be demanded. Æthelstan's charter for Crediton, recently printed by Napier and Stevenson, Crawford Charters, p. 5, frees land from the _trinoda necessitas_.

[974] E.g. K. i. p. 274; ii. pp. 14, 15, 24, 26, 83; v. pp. 53, 62, 81.

[975] Observe how Bede describes a gift made by Oswy in the middle of the seventh century; Hist. Eccl. iii. 24 (ed. Plummer, i. 178): 'donatis insuper duodecim possessiunculis terrarum in quibus _ablato studio militiae terrestris_, ad exercendam militiam caelestem etc.'

[976] The passages in the dooms which mention it are collected in Schmid, Glossar, s. v. _ángild_. They are discussed by Maurer, Krit. Ueberschau, ii. 32.

[977] The clauses of immunity which mention the _ángild_ will be collected in a note at the end of this section.

[978] K. 210 (i. 265); B. i. 497; H. & S. iii. 585. The clause in question is not found in every copy of the charter. If some monk is to be accused of tampering with the book, there seems just as much reason for charging him with having omitted a clause which limited, as for charging him with inserting a clause which recognized, the jurisdiction of the church.

[979] These clauses will be discussed in a note at the end of this section.

[980] A.D. 841, K. 250 (ii. 14): 'Liberabo ab omnibus saecularibus servitutibus ... regis et principis vel iuniorum eorum, nisi in confinio reddant rationem contra alium.' Compare K. 117 (i. 144): 'nisi specialiter pretium pro pretio ad terminum.' Also Leg. Henr. 57 § 1: 'Si inter compares vicinos utrinque sint querelae, conveniant ad divisas.' Ibid. 57 § 8: 'aliquando in divisis vel in erthmiotis.' Ibid. 9 § 4: 'Et omnis causa terminetur, vel hundreto, vel comitatu, vel hallimoto soccam habentium, vel dominorum curiis, vel divisis parium.' See above, p. 97.

[981] A.D. 828, K. 223 (i. 287): 'cum furis comprehensione intus et foris'; A.D. 842, K. 253 (ii. 16) 'ut ... furis comprehensione ... terra secura et immunis ... permaneat'; A.D. 850, K. 1049 (v. 95) a similar form; A.D. 858, K. 281 (ii. 64), a similar form; A.D. 869, K. 300 (ii. 95), a similar form; A.D. 880, K. 312 (ii. 109): 'cum furis comprehensione.' See Kemble's remarks, C. D. vol. i. p. xlvi.

[982] Hist. Eng. Law, i. 565.

[983] K. 1084 (v. 157); B. ii. 272: 'Christo concessi ut episcopi homines tam nobiles quam ignobiles in praefato rure degentes hoc idem ius in omni haberent dignitate quo regis homines perfruuntur regalibus fiscis commorantes, et omnia saecularium rerum iudicia ad usus praesulum exerceantur eodem modo quo regalium negotiorum discutiuntur iudicia.' Similar words occur in a confirmation by Edgar, K. 598 (iii. 136), which Kemble rejects. This contains an English paraphrase of the Latin text.

[984] Compare K. 821 (iv. 171): 'swa freols on eallan thingan eall swa thaes cinges agen innland.'

[985] Hist. Eng. Law, i. 570.

[986] Hist. Eng. Law, i. 580.

[987] Few questions in Frankish history have been more warmly contested than this, whether the immunist had a jurisdiction within his territory. On the one hand, it has been contended that there is no evidence older than 840 that he exercised jurisdiction even as between the inhabitants of that territory. On the other hand, it has been said that already in 614 he has civil jurisdiction in disputes between these inhabitants, besides a criminal jurisdiction over them, which however does not extend to the graver crimes. A few references will suffice to put the reader in the current of this discussion; Löning, Geschichte des Deutschen Kirchenrechts, ii. 731; Brunner, D. R. G. ii. 298; Schröder, D. R. G. 174; Beauchet, Histoire de l'organisation judiciaire en France, 74; Beaudoin, Étude sur les origines du regime féodal (Annales de l'enseignement supérieur de Grenoble, vol. i. p. 43); Fustel de Coulanges, L'Immunité Mérovingienne (Revue Historique, xxii. 249, xxiii. I). One of the most disputed points is the character of the court held by an abbot, which is put before us by the very ancient Formulae Andecavenses, a collection attributed to the sixth or, at the latest, to the early years of the seventh century. It has been asserted and denied that this abbot of Angers is exercising the powers given to him by an immunity; some have said that he, or rather his steward, is merely acting as an arbitrator; Brunner, Forschungen, 665, explains him as one of the _mediocres iudices_ of decaying Roman law. On the whole, the balance of learning is inclining to the opinion that, even in the Merovingian time, there were great churches and other lords with courts which wielded power over free men, and that the 'immunities,' even if they were not intended to create such courts, at all events made them possible, or, as Fustel says, consecrated them.

[988] Madox, Hist. Exch. i. 109; Bigelow, Placita Anglo-Normannica, 114.

[989] Hist. Eng. Law, i. 224-30.

[990] Nissl, Der Gerichtsstand des Clerus im Fränkischen Reich, 247.

[991] K. 214 (i. 269); 236 (i. 312).

[992] Edw. & Guth. 4; Leg. Henr. II, § 5.

[993] D. B. i. 26.

[994] Chron. de Bello, 26-7: 'Et si forisfacturae Christianitatis quolibet modo infra leugam contigerint, coram abbate definiendae referantur. Habeatque ecclesia S. Martini emendationem forisfacturae; poenitentiam vero reatus sui rei ab episcopo percipiant.'

[995] Battle Custumals (Camden Soc.), 126: 'Septem hundreda non habent fossas nisi apud Wy, et ideo habemus ij. denarios: Archiepiscopus tamen et Prior de novo trahunt homines suos ad fossas: Abbas de S. Augustino non habet.'

[996] c. 3, X. 5, 37: 'Accepimus ... quod archidiaconi Conventrensis episcopatus ... in examinatione ignis et aquae triginta denarios a viro et muliere quaerere praesumunt.'

[997] Cnut II. 12-15.

[998] Hist. Eng. Law, i. 564.

[999] Beaudoin, op. cit. p. 94 ff.

[1000] Æthelstan, II. 2.

[1001] Konrad Maurer, Krit. Ueberschau, ii. 30 ff.

[1002] Æthelstan, II. 3. Observe how in the Latin version 'se blaford the rihtes wyrne' becomes 'dominus qui rectum difforciabit.'

[1003] K. Maurer, Krit. Ueberschau, ii. 32, 40, 41. Ine, 22, is of great importance on account of its antiquity.

[1004] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' See above, p. 71.

[1005] Leg. Henr. 57, § 8; 82, §§ 4, 5, 6.

[1006] See above, p. 89.

[1007] Æthelstan, VI. (Iudicia Civitatis Lundoniae), 1.

[1008] Æthelred, I. 1, § 7.

[1009] Edgar, I. 2, 3; III. 7; IV. 2, § 8; Æthelred, I. 1; III. 3, 4, 7.

[1010] Æthelred, III. 3, 4.

[1011] Æthelred, III. 7.

[1012] Edgar, IV..= 2, § 11; Æthelred, I. 3.

[1013] D. B. i. 154. See above, p. 92.

[1014] See above, p. 275.

[1015] Northumbrian Priests' Law, Schmid, App. II. 48-9.

[1016] Ibid. 57, 58. See also the texts which give the lord a share with the bishop in the penalty for neglect to pay tithe, viz. Edgar, II. 3; Æthelred, VIII. 8; Cnut, I. 8.

[1017] K. 498 (ii. 386).

[1018] See above, p. 100.

[1019] The Archbishop of York, the bishops of Durham, Chester, Lincoln and (for one manor) Salisbury, the abbots of York, Peterborough, Ramsey, Croyland, Burton and (for one manor) Westminster.

[1020] D. B. i. 280 b; i. 337.

§ 4. _Book-land and Loan-land._

[The book and the gift.]

We can not say that from the first the gift of book-land establishes between the donee and the royal donor any such permanent relation as that which in later times is called tenure. What the king gives he apparently gives for good and all. In particular, a gift of land to a church is 'an out and out gift'; nay more, it is a dedication. Still, even within the sphere of piety and alms, we sometimes find the notion that in consequence of the gift the donee should do something for the donor. Cnut frees the lands of the church of Exeter from all burdens except military service, bridge-repair and 'assiduous prayers[1021],' and thus the title by which the churches hold their lands is already being brought under the rubric _Do ut des_. Turning to the books granted to laymen, we see that, at all events from the middle of the tenth century onwards, they usually state a _causa_, or as we might say 'a consideration,' for the gift. Generally the gift is 'an out and out gift.' Words are used which expressly tell us that the donee is to enjoy the land during his life and may on his death give it to whomsoever he chooses. Nothing is said about his paying rent or about his rendering in the future any service to the king in return for the land. The 'consideration' that is stated in the instrument is, if we may still use such modern terms, 'a past consideration.' The land comes rather as a reward than as a retaining fee. Sometimes indeed the thegn pays money to the king and is in some sort a buyer of the land, though the king will take credit for generosity and will talk of giving rather than of selling[1022]. More often the land comes as a reward to him for obedience and fidelity or fealty. Already the word _fidelitas_ is in common use; we have only to render it by _fealty_ and the transaction between the king and his thegn will be apt to look like an infeudation, especially when the thegn is described by the foreign term _vassallus_[1023]. Even the general rule that the king is rewarding a past, rather than stipulating for a future fealty, is not unbroken. Thus as early as 801 we find Cenwulf of Mercia and Cuthræd of Kent giving land to a thegn as a perpetual inheritance 'but so that he shall remain a faithful servant and unshaken friend to us and our magnates[1024].' So again, in 946 King Edmund gives land to a faithful _minister_ 'in order that while I live he may serve me faithful in mind and obedient in deed and that after my death he may with the same fealty obey whomsoever of my friends I may choose[1025].' The king, it will be seen, reserves the right to dispose by will of his thegn's fealty. A continuing relation is established between the king and his successors in title on the one hand, the holder of the book-land and his successors in title on the other.

[Book-land and service.]

However, as already said, the gift supposes that the personal relationship of lord and thegn already exists between the donor and the donee before the gift is made. This relationship was established by a formal ceremony; the thegn swore an oath of fealty, and it is likely that he bent his knee and bowed his head before his lord[1026]. The Normans saw their homage in the English commendation[1027]. The fidelity expected of the thegn is not regarded as a debt incurred by the receipt of land. And if the king does not usually stipulate for fidelity, still less does he stipulate for any definite service, in particular for any definite amount of military service. The land is not to be free of military service:--this is all that is said. However, to say this is to say that military service is already a burden on land. Already it is conceivable--very possibly it is true--that some of the lands of the churches have been freed even from this burden[1028]. What is more, if we may believe the Abingdon charters, the ninth century is not far advanced before the king is occasionally making bargains as to the amount of military service that the lands of the churches shall render. Abingdon need send to the host but twelve vassals and twelve shields[1029]. Likewise we see that on the eve of the Conquest, though other men who neglected the call to arms might escape with a fine of forty shillings, it was the rule, at least in Worcestershire, that the free man who had sake and soke and could 'go with his land whither he would' forfeited that land if he was guilty of a similar default[1030]. With this we must connect those laws of Cnut which say that the man who flees in battle, as well as the man who is outlawed, forfeits his book-land to the king, no matter who may be his lord[1031].

[Military service.]

Such rules when regarded from one point of view may well be called feudal. Book-land having been derived from, is specially liable to return to the king. It will return to him if the holder of it be guilty of shirking his military duty or of other disgraceful crime. To this we may add that if these rules betray the fact that the holder of this king-given land may none the less have commended himself and his land to some other lord against whose claims the king has to legislate, thereby they disclose a feudalism of the worst, of the centrifugal kind. The ancient controversy as to whether 'the military tenures' were 'known to the Anglo-Saxons' is apt to become a battle over words. The old power of calling out all able-bodied men for defensive warfare was never abandoned; but it was not abandoned by the Norman and Angevin kings. The holder of land was not spoken of as holding it by military service; but it would seem that in the eleventh century the king, save in some pressing necessity, could only ask for one man's service from every five hides, and the holder of book-land forfeited that land if he disobeyed a lawful summons[1032]. Whether a man who will lose land for such a cause shall be said to hold it by military service is little better than a question about the meaning of words. At best it is a question about legal logic. We are asked to make our choice (and yet may doubt whether our ancestors had made their choice) between the ideas of misdemeanour and punishment on the one hand and the idea of reentry for breach of condition on the other.

[Escheat of book-land.]

The same vagueness enshrouds the infancy of the escheat _propter defectum tenentis_. Already in 825 a king tells how he gave land to one of his _praefecti_ who died intestate and without an heir, 'and so that land by the decree of my magnates was restored to me who had before possessed it[1033].' Here we seem to see the notion that when a gift has spent itself, when there is no longer any one who can bring himself within the words of donation, the given land should return to the giver. In another quarter we may see that when the king makes a gift he does not utterly abandon all interest in the land that is given. Cenwulf of Mercia in a charter for Christ Church at Canterbury tells us that King Egbert gave land to a certain thegn of his who on leaving the country gave it to the minster; but that Offa annulled this gift and gave away the land to other thegns, saying that it was unlawful for a thegn to give away without his lord's witness (_testimonio_) the land given to him by his lord[1034]. Cenwulf restored the land to the church; but he took money for it, and he does not say that Offa had acted illegally. There is much to show that the 'restraint on alienation' is one of the oldest of the 'incidents of tenure.' Our materials do not enable us to formulate a general principle, but certain it is that the holders of book-land, whether they be laymen or ecclesiastics, very generally obtain the consent of the king when they propose to alienate their land either _inter vivos_ or by testament. We may not argue from this to any definite condition annexed to the gift, or to any standing relationship between the donor and the donee like the 'tenure' of later times. After all, it is a very natural thought that a reward bestowed by the king should not be sold or given away. The crosses and stars with which modern potentates decorate their _fideles_, we do not expect to see these in the market[1035]. The land that the king has booked to his thegn is an 'honour' and the giver will expect to be consulted before it passes into hands that may be unworthy of it. It may be just because the gift of book-land is made by the king and corroborated by all the powers of church and state, that the book is conceived as exercising a continuous sway over the land comprised in it. The book, it has well been said, is the _lex possessionis_ of that land[1036]. It can make the land descend this way or that way, and the land will come back to the king if ever the power of the book be spent. What is more, from the first we seem to see a germ of our famous English rule that if a gift be made without 'words of inheritance' the gift will endure only during the life of the donee:--will endure, we say, for a gift is no mere act done once for all but a force that endures for a longer or a shorter period. Certain it is that most of the charters are careful to say that the gift is not thus to come to an end but is to go on operating despite the donee's death[1037].

[Alienation of book-land.]

And even when, as is generally the case, the book made in favour of a 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.]

But at least, it will be said, there was no 'right of wardship and 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.