Criminal justice of the Church.

At this point we may profitably remember that the jurisdiction which in later days appears as the ‘criminal jurisdiction’ of ecclesiastical tribunals (the jurisdiction which, for example, those tribunals exercise when they chastise a man for incest, fornication or perjury) was but slowly disengaged from the general mass of penal jurisdiction that was wielded by moots in which the bishop occupied a prominent seat. Moreover, the bishop’s justice did not escape that fiscal taint which pervaded the whole system of criminal law. As in some cases the king is entitled to a wite, so in others the wite falls to the bishop. For instance, we see traces of a rude concordat, which, when incest or adultery is committed, subjects the woman to the bishop, the man to the king[992]; and then from Domesday Book we learn that in the borough of Lewes the upshot of this partition is that the king will get 8s. 4d. from the man while the adulteress pays a like sum to the archbishop of Canterbury[993]. And so ecclesiastical jurisdiction becomes a source of income, a matter to be fought for and bargained for. The monks of Battle will claim that within the banlieu of their abbey all the ‘forfeitures of Christianity’ belong to them and not to the bishop of Chichester[994]. What is more, they will connect their claim to purely temporal justice with their possession of ordeal pits, and here we may see another link between the hundred-moots and the churches[995]. The churches have made money out of the ordeal. Long after the English prelates had been forbidden to hold spiritual pleas in the hundred courts, Alexander III. was compelled to speak sharply to the archbishop of Canterbury touching the conduct of archdeacons who exacted thirty pence from every man or woman who went to the fire or the water for purgation[996].

Antiquity of seignorial courts.

No doubt the theory to which we have been led implies that in the eighth or even in the seventh century, there were in England ‘immunists’ who had jurisdiction within their territories, and further it implies that a royal grant of land in the ninth and tenth centuries generally included, and this as a matter of ‘common form,’ a grant of jurisdiction. We cannot see either in the history of England or in the history of the Frankish Empire any reason why we should shrink from these conclusions. Further, it must be admitted that if the clause of immunity conveys, or permits the growth of, seignorial jurisdiction, this jurisdiction is of an exalted kind, for no causes are excepted out of it, unless it be by the words about the ángild, and even those words drop out from the charters in course of time. Those words about the ángild imply, to our thinking, that the immunist will have jurisdiction over any dispute which arises between two men of the enfranchised territory, and also that if an action against one of these men be brought by a ‘foreigner’ in a court outside the precinct, the immunist can obtain ‘cognizance’ of the action by appearing in that court and paying the ángild. When the words about the ángild disappear, this means that the immunist is obtaining a yet further measure of ‘liberty’:—whenever one of his men is sued he can ‘crave his court’ and need not, as a condition for obtaining it, offer to pay what is due to the plaintiff. The highest criminal jurisdiction was probably excepted from the grant. Being a grant of wites, it will not extend to the ‘bootless’ the ‘unemendable’ crimes. But Cnut’s attempt to save for himself certain pleas of the crown looks to us like the effort of a strong king to recover what his predecessors have been losing[997]. And then Cnut himself and the Confessor,—the latter with reckless liberality—expressly grant to the churches just those very reserved pleas of the crown. The result is that the well endowed immunist of S^t. Edward’s day has jurisdiction as high as that which any palatine earl of after ages enjoyed. No crime, except possibly some direct attack upon the king’s person, property or retainers, was too high for him. It is the reconstruction of criminal justice in Henry II.’s time, the new learning of felonies, the introduction of the novel and royal procedure of indictment, that reduce the immunist’s powers and leave him with nothing better than an unintelligible list of obsolete words[998]. In this matter of seignorial justice England had little to learn from Normandy. On the contrary, the Norman counts and barons were eager to secure the uncouth phrases which gave to the English immunist his justice, ‘haute, moyenne et basse justice.’

Justice, vassalage and tenure.

Our next question must be whether in the days before the Conquest a franchise or immunity was the only root of private jurisdiction: in other words, whether any jurisdiction was implied in the mere relation between lord and man or between lord and tenant. This also is a question which will hardly be finally answered if regard be had only to the English documents. For France it is the question whether the senior, as such, has jurisdiction over his vassus, or again, whether he has jurisdiction over his vassus if, as is usually the case in the Carlovingian age, the vassus holds a beneficium given to him by his senior. The English dooms which deal with what we may call the justiciary relationship between lord and man closely resemble in many respects the Frankish capitularies which touch the same subject; both sets of documents seem to evade the simple question that we put to them. But as regards the continent it may here be enough to say that, though there have been many debates, the current of learning seems to have set decidedly in favour of the doctrine that neither in Merovingian nor yet in Carlovingian times had the senior, unless he was an immunist, a jurisdiction over his men. Such a jurisdiction has not been developed when the midnight hides everything from our view. When the morning comes, feudal justice stands revealed, though nowhere perhaps is it governed by that simple principle that ultimately prevailed in England, namely, that any and every lord, no matter his personal rank or the rank of his tenement, has civil justice over his tenants.

The lord’s duty when his man is accused.

The possibility of debate about this matter is afforded by texts of an earlier age, which at times seem to speak of the lord as ‘doing justice’ when a charge is brought against any of his men[999]. Our English run parallel with the Frankish texts. The state in its organization of justice and police does not treat the contract between man and lord, between senior and vassus, as a matter of indifference, still less as a danger to society. We must not think of feudalism or vassalism as of something which from the very first is anti-national and anarchic. In its earliest stages it is fostered by the state, by the king, by national law. The state demands that the lordless man of whom no right can be had shall have a lord[1000]. It makes the lord responsible for the appearance of his men in court to answer accusations[1001]. It is not unlikely that the whole system of frankpledge grows out of this requirement. In some instances the state may go further; it may treat the lord, not merely as bound to produce his man, but as responsible for his man’s evil deeds. But, at all events, any one who has a charge to make against a lord’s man must in the first instance demand justice of the lord. If without making such a demand, making it repeatedly, he brings the charge before the king, he must pay the same fine that the lord would have paid had he been guilty of a default of justice[1002]. ‘Of a default of justice’ we say and are compelled to say. It is phrases such as this that have occasioned controversy. To an ear attuned to the language of feudalism they seem to imply a seignorial court in which the lord ‘does justice’ or ‘holds full right’ to the demandant. But to all appearance they have gradually changed their meaning. Originally a lord ‘does right’ to the demandant by producing in a public court the man against whom the claim is urged; or he does it by satisfying the claim, and in that case he seems entitled to exact from his man, not merely a sum which will compensate the outlay, but also the ‘wite’ or fine which in another case would have gone to the king or some national officer. He has thus ‘done justice’ and may have the usual profit that comes of doing justice. Probably we ought to distinguish between a laxer and a stricter measure of responsibility, between the lord’s responsibility for his men in general and his responsibility for such of his men as form his familia, in the language of later days his mainpast; but our texts do not lay much stress upon this distinction, and, as a matter of remote history, the relation between lord and man may grow out of the relation between the head of a household and the members of it[1003].

Duty of the lord.

At any rate, in numberless cases the law begins to interpose a third person, namely, the wrong-doer’s lord, between the wrong-doer and the wronged: it is to this lord that the claimant should in the first instance address himself. The lord who does his duty by the king and the nation is he who keeps a tight hold on his men, who chooses them carefully, who dismisses them if they are bad subjects, who ‘does justice’ and ‘holds full right’ if any of them be accused. Then, on the other hand, he has the right and duty of ‘warranting’ his men. If, as will often happen, the bond between a lord and his man is complicated with the bond between landlord and tenant, then, as in later days, if the tenant’s title be impeached, he will vouch his lord to warranty and the lord will defend the action. But, besides this, within limits that are not well defined, the lord is the man’s defensor or tutor[1004]. It is expected of him by morality, if not by law, that he will take upon himself the responsibility for his man’s acts if they be not open crimes. He must stand by his men and see them through all trouble[1005].

The state requires the lord to ‘do right.’

For a while the state approves all this. The dangerous person is, not the lord, whose wide lands are some security for his good behaviour, but the lordless man of whom no right can be had. Somehow or another theft must be suppressed. This is the determination of our strongest kings, of our wisest ‘witan.’ That they are raising up over against the state another power, the power of seignorial justice, they do not see. And, after all, these ‘witan’ both laymen and clerks are themselves great lords, and the king is the lordliest of them all. Thus the foundation for a feudal jurisdiction is laid. Still between the lord’s duty of producing his men and his right to hold a court of and for his men there is to our eyes a great gulf. We have seen above that this gulf had not been bridged even in the Confessor’s, even in the Conqueror’s day[1006]. Nor to our thinking would it have been bridged but for the creation of ‘immunities’ upon a grand scale. The first origin of the immunity we have sought in the efforts of the clergy to obtain lands which should be utterly exempt from ‘all earthly burdens,’ ‘all worldly business.’ But this effort unites with the stream of tendency that we have now been watching. The state will be grateful to the church if it will ‘hold all the men of God to right’ and do judgment between them and upon them.

The land-ríca as immunist.

There is also a long series of dooms going back as far as Æthelstan’s reign which give certain fines and forfeitures to one who is described as the land-hláford or the land-ríca. Remarkable they are, for they seem to assume that wherever a crime is committed there will be forthcoming some-one who will answer to the title ‘the land-lord’ or ‘the territorial magnate.’ In some sense or another they presuppose that there is Nulle terre sans seigneur. But who is this ‘landlord’? According to our thinking, he is the lord of the hundred or else the lord who has a charter of immunity comprehending the land in question, and, if there be no person answering to this description, then he is the king. In the first place, in certain dooms relating to London we are told that, when a thief is caught and slain, his property is to be divided into two parts, of which his wife takes one, while the other is divided between the king and ‘the association’ (perhaps we may say ‘the gild’) which was engaged in the pursuit and capture; ‘but if it be book-land or bishop’s-land, the landlord takes half with the association in common[1007].’ This seems to mean that there will be a lord to share in the proceeds of the forfeiture if, but only if, the scene of the capture be land that is within an immunity. It is assumed, not without warrant in the land-books, that the man who has book-land always, or almost always, enjoys an immunity, while as to the bishop’s-land, whether the bishop be holding it in demesne or have granted it out to his thegns, that no doubt will be protected by an ample charter. So again, in another law ‘the lord’ receives the thief’s wer ‘if he [the lord] is worthy of his wite[1008]’: that is to say, the lord receives it if he is in enjoyment of an immunity which confers upon him a right to ‘wites.’ Then again, in several cases we find that the land-lord or land-ríca shares the proceeds of a fine with the hundred or wapentake[1009]. This, as we think, points to the fact that the hundreds and wapentakes are passing into private hands. These laws are severe laws against criminals. They urge all men to the pursuit of the flying thief and they hold out a reward to those who are active in this duty. The men of the hundred are to have half the thief’s property, while the lord (who in many cases will be the lord of the hundred) is to have the other half. He is to have no more, even though his charter may seem to give him more. So again, in certain cases an accused person must find security that he will stand a trial, and the gage is to be given ‘half to the land-ríca, half to the wapentake[1010].’ This land-ríca is the lord of the wapentake. In another instance the gage must be given half to the land-ríca and half to the king’s port-reeve[1011]. Then there are cases in which the ‘land-lord’ is to take possession of cattle that have been irregularly acquired and are presumably stolen, and is to preserve them until their true owner shall make his appearance[1012]. These provisions, which seem the foundation of the ‘franchise of waif and stray,’ suggest that the ‘land-lord’ is the president of the court into which the owner must go when he wishes to prove his title; were this not so, the king’s reeve would be the person who would have the custody of the unclaimed beasts. Certainly our explanation of these passages assumes that a hundred is often in private hands and it assumes that, when this is not the case, then the king is regarded as the lord of the hundred. But in so doing it merely assumes that the state of things revealed by Domesday Book is about a century old. When in that record we read that the soke of four and a half hundreds in Oxfordshire ‘belongs to’ the royal manor of Bensington, that the soke of two hundreds ‘belongs to’ the royal manor of Headington, that the soke of other two hundreds ‘belongs to’ the royal manor of Bampton, we see that the king is the lord, the proprietor, of those hundreds which have no other lord[1013]. From the laws now before us we infer that this is no very new arrangement. But of course it is possible that those laws have divers cases in view. It may be that within the hundred there is an immunity, a privileged township or manor, and that a thief is caught there. Who is to have the profits which arise from the crime and condemnation? The answer is: Half shall go to the hundred, half to the land-ríca, that is to say, half goes to the doomsmen, or perhaps to the lord, of the hundred court, half to the immunist. The lord under the general words of his charter might perchance claim the whole; but, in order that all the hundredors may have an interest in the pursuit of thieves, it is otherwise decreed. But where is justice to be done, in the hundred court or in the court of the immunist? That is a question of secondary importance to which our laws do not address themselves. Very probably justice will be done in the hundred court, or again it is not impossible that a mixed tribunal consisting partly of the men of ‘the franchise,’ partly of the men of ‘the geldable’ will meet upon the boundary of the immunist’s land[1014]. Our main point must be that the land-lord or land-ríca of these laws is an immunist, or is the king, who, where there is no immunity, occupies the position of an immunist.

The immunist’s rights over free men.

We see too that the immunist’s rights extend over free men and over free landowners. If a man is guilty of heathenry he must, if he be a king’s thegn, pay ten half-marks, half to Christ and half to the king, but if he be another ‘landowning man’ then he pays six half-marks, half to Christ and half to the land-ríca[1015]. The landowner normally has a land-lord above him. We see also that the lord is made liable for the payment of dues which are ultimately exigible from those who are dwelling within his territory. ‘If a king’s thegn or other land-ríca makes default in paying Peter’s pence, he must pay ten half-marks, half to Christ and half to the king; if a “towns-man” makes a similar default, the land-ríca must pay the penny and take an ox from the defaulter, and if the land-ríca neglects to do this, then Christ and the king shall receive the full bót of twelve ores[1016].’ Such is the manner in which the lord’s power is consolidated. He begins to stand between his free men and the state, between his free men and the church.

Delegation of justiciary rights.

Another consequence of the argument in which we have been engaged is that, at least a century before the Conquest, the great immunists were granting immunities to their dependants. From this consequence we shall not flinch. Bishop Oswald, for example, was an immunist on a splendid scale, and when he loaned land to a knight and said that the land was to be ‘free from all secular service’ save the trinoda necessitas, he loaned not merely land, but immunity and jurisdiction. On one occasion, adopting a formula that has lately come before us, he said that nothing was to go out of the land by way of wite[1017]. By this we understand that he gave to his thegn any wites which might thereafter be incurred by the inhabitants of the manses which were comprised in the loan, and further that he gave him the right to hold a court. Domesday Book requires us to believe that such transactions had not been uncommon[1018].

Number of immunists.

Will our attempt to explain the land-books create too many holders of sake and soke? We do not think so, for we do not think that the number of land-books should be indefinitely multiplied by our imaginations. If we look in Domesday Book at the counties which lie south of the Thames, we shall indeed see that the total amount of land of which the churches are tenants in chief is very large. But the number of these landowning churches is small. When we have named seven episcopal and a dozen abbatial minsters we have disposed of by far the greater bulk of the church lands in this district, and these minsters are as a general rule just those which have transmitted to us in cartularies and chronicles the story of their acquisitions. To churches that were destroyed by the Danes we may allot some charters; but we should have no warrant for the supposition that royal diplomata have perished by the hundred and left no trace behind. In the shires of York, Lincoln, Nottingham, Derby we might allow sake and soke to every English prelate who appears as a tenant in chief and yet not raise to twelve[1019] the number of the ecclesiastical immunists who had lands in this wide region. As to the lay holders of sake and soke, they were not very many though they held broad lands; also they belonged for the more part to an exalted class[1020]. However, here as elsewhere we must admit that every attempted explanation discloses new problems.

NOTE.
The Ángild Clause.

§ 4. Book-land and Loan-land.

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 testamentarypower; 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’slife[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.

S^t. 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.

S^t. Oswald’s letter to Edgar.

But happily for us S^t. 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 S^t. 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 S^t. 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