§ 2. Book-land and Folk-land.

What is folk-land?

With ‘book-land’ is contrasted ‘folk-land.’ Therefore of folk-land a few words must be said. What is folk-land? A few years ago the answer that historians gave to this question was this: It is the land of the folk, the land belonging to the folk. Dr Vinogradoff has argued that this is not the right answer[904]. His argument has convinced us; but, as it is still new, we will take leave to repeat it with some few additions of our own.

Folk-land in the texts.

The term ‘folk-land’ occurs but thrice in our texts. It occurs in one law and in two charters. The one law comes from Edward the Elder[905] and all that it tells us is that folk-land is the great contrast to book-land. Folk-land and book-land seem to cover the whole field of land tenure. Possibly this law tells us also that while a dispute about folk-land will, a dispute about book-land will not, come before the shiremoot:—but we hardly obtain even this information[906]. Then we have the two charters. Of these the earlier is a deed of Æthelbert of Kent dated in 858[907]. The king with the consent of his great men and of the prelates gives to his thegn Wulflaf five plough-lands at Washingwell (aliquam partem terrae iuris mei) in exchange for land at Marsham. He declares that the land at Washingwell is to be free from all burdens save the three usually excepted, the land at Marsham having enjoyed a similar immunity. The boundaries of Washingwell are then stated. On the west it is bounded by the king’s folk-land (cyninges folcland) which Wighelm and Wulflaf have. So much for the deed itself. On its back there is an endorsement to the following effect: ‘This is the land-book for Washingwell that Æthelbert the king granted to Wulflaf his thegn in exchange for an equal amount of other land at Marsham; the king granted and booked to Wulflaf five sullungs of land at Washingwell for the five sullungs at Marsham and the king made that land at Marsham his folk-land (“did it him to folk-land”) when they had exchanged the lands, save the marshes and the salterns at Faversham and the woods that belong to the salterns.’ Now this deed teaches us that there was land which was known as ‘the king’s folk-land,’ and that it was in the occupation of two men called Wighelm and Wulflaf, the latter of whom may well have been the Wulflaf who made an exchange with the king. The endorsement tells us that when the king received the land at Marsham he made it his folk-land, ‘he did it him to folk-land.’

The will of Alfred the Ealdorman.

The other charter is of greater value. It is the will of the Ealdorman Alfred and comes from some year late in the ninth century[908]. He desires in the first place to state who are the persons to whom he gives his inheritance and his book-land. He then gives somewhat more than 100 hides, including 6 at Lingfield and 10 at Horsley, to his wife for her life, ‘with remainder,’ as we should say, to their daughter. More than once he calls this daughter ‘our common bairn,’ thus drawing attention to the fact that she is not merely his daughter, but also his wife’s daughter. This is of importance, for in a later clause we hear of a son. ‘I give to my son Æthelwald three hides of book-land: two hides on Hwætedune [Waddon], and one at Gatatune [Gatton] and therewith 100 swine, and, if the king will grant him the folk-land with the book-land, then let him have and enjoy it: but if this may not be, then let her [my wife] grant to him whichever she will, either the land at Horsley or the land at Lingfield.’ Such are the materials which must provide us with our knowledge of folk-land.

Comment on Alfred’s will.

We must examine Alfred’s will somewhat carefully. The testator has a wife, a son, a daughter. He leaves the bulk of his book-land to his wife for life with remainder to his daughter. For his son he makes a small provision (only three hides) out of his book-land, but he expresses a wish that the king will let that son have the folk-land, and, if this wish be not fulfilled, then that son is to have either ten or else six hides out of the book-land previously given to the wife and daughter. We see that, even if he gets these few hides, the son will obtain but a small part of a handsome fortune. ‘If the king will grant him the folk-land’—this may suggest that a man’s folk-land will not descend to his heir. But another, and, as it seems to us, a far more probable explanation is open. The son is ‘my son,’ the daughter is ‘our common bairn.’ May not the son be illegitimate, or may not his legitimacy be doubtful, for legitimacy is somewhat a matter of degree? The ealdorman may have contracted a dubious or a morganatic marriage. We can see that he does not feel called upon to do very much for this son of his. He expresses a hope that the king as supreme judge will hold the son to be legitimate, or sufficiently legitimate to inherit the folk-land, which he does not endeavour to bequeath.

The king booking land to himself.

The king like other persons can have both folk-land, and book-land. We have just heard of ‘the king’s folk-land’: we turn to the important deed whereby King Æthelwulf booked land to himself[909]. Alms, it says, are the most perdurable of possessions; one ought to minister to the necessities of others and so make to oneself friends of the mammon of unrighteousness; therefore I King Æthelwulf with the consent and leave of my bishops and great men have booked to myself twenty manses so that I may enjoy them and leave them after my death to whomsoever I please in perpetuity: the land is to be free from all tribute and the like, save military service and the repair of bridges. Then the description of the land thus booked is preceded by the statement: ‘These are the lands which his wise men (senatores) conceded to Æthelwulf.’ Now the full meaning of this famous instrument we can not yet discuss. To put it briefly, our explanation will be that over his book-land the king will have powers which he will not have over his folk-land; in particular he will have that testamentary power which will enable him to become friendly with the mammon of unrighteousness and secure those eternal mansions that he desires. But we have introduced this charter here because, though it says no word of folk-land, it forms an important part of the case of those who contend that folk-land is land belonging to the people[910]

The consent of the witan.

Another weighty argument is derived from the fact that there are but very few charters of the kings which do not in some formula or another profess that many illustrious persons have consented to or have witnessed the making of the deed. We have no desire to detract from the significance of this fact, still we ought to examine our documents with care. Such words as a charter has about ‘consent’ may occur in two different contexts. They may occur in close connexion with the words of gift, ‘the operative words,’ as our conveyancers say, or they may occur in the eschatocol, the clause which deals with the execution and attestation of the instrument. If we come across two deeds, one of which tells us how ‘I king Æthelwulf with the consent and leave of my bishops and great men give land to a church or a thegn,’ while the other says nothing of consent until it tells us how ‘This charter was written on such a day his testibus consentientibus,’ we must not at once treat them as saying the same thing in two different ways.

Consent and witness in the land-books.

For this purpose we may divide our charters into three periods. The first begins with the few genuine charters of the seventh century and ends in the reign of Egbert, the second endures until the reign of Edward the Elder, the third until the Norman Conquest. It will be well understood that we draw no hard line; each period has its penumbra; but the years 800 and 900 or 925 may serve to mark very rudely the two limits of the middle period. Now a clause in the body of the deed stating that the gift is made by the consent of the witan is characteristic of this middle period. Any one who wishes to forge a royal land-book of the ninth century should insert this clause; any one who wishes to forge a deed of the tenth or of the eighth century should think twice before he makes use of it. To be more exact, it becomes a common form under Cenwulf of Mercia and Egbert of Wessex; it grows very rare under Æthelstan[911]. In the meanwhile it serves as a common form, and it appears in deeds wherein the king says in forcible terms that he is disposing of his land and his inheritance[912]. During the last of our three periods all that is ascribed to the great men whose crosses follow the king’s cross is little, if anything, more than the function of witnesses. A deed of Æthelstan’s day will end with some such formula as the following: ‘this book was written at such a place and time, and its authority was confirmed by the witnesses whose names are written below.’ But very often there is no such concluding formula: we have simply the list of witnesses and their crosses, and of each of them it is said that he consented and subscribed. Later in the tenth century the formula which introduces the names of the witnesses will hardly admit that they in any sense confirmed the transaction; it will say merely, ‘This book was written on such a day his testibus consentientibus quorum nomina inferius caraxantur.’ On this will follow the names and crosses; and of each bishop—but not as a general rule of any other witness—it will be said that he has done something for the stability of the deed. To convey this information, the scribe rings the changes on a score of Latin words—subscripsi, consensi, consolidavi, corroboravi, confirmavi, conscripsi, consignavi, adquievi, praepinxi, praepunxi, praenotavi, and so forth, thereby showing that he has no very clear notion as to what it really is that the bishop does. But this degradation of what seems to be a formula of assent into a formula of attestation has been noticed by others[913], and it is more to our purpose to examine the charters of the earliest period, for then, if at any time, the folk-land should have appeared in its true character as the land of the people.

Attestation of the earliest books.

Now during our earliest period instruments which contain in conjunction with their operative words any allusion to the consent of the great men of the realm are exceedingly rare[914]. A commoner case is that in which the eschatocol says something about consent. We will collect a few examples.

I have confirmed this with the sign of the holy cross with the counsel of Laurence the bishop and of all my principes and have requested them to do the like[915].

I have impressed the sign of the holy cross and requested fit and proper witnesses to subscribe[916].

I have confirmed this gift with my own hand and have caused fit and proper witnesses, my companions (commites), to confirm and subscribe[917].

This formula, undoubtedly of foreign origin, was common in Kent[918]. From Wessex and the middle of the eighth century, we twice obtain a fuller form.

These things were done in such a year; and that my munificent gift may be the more firmly established (firmius roboretur) we have associated with ourselves the fit and proper witnesses and ‘adstipulators’ whose names and descriptions are set forth below to subscribe and confirm this privilege of the aforesaid estate (praedictae possessionis privilegium[919]).

More frequently however the document has nothing that can be called a clause of attestation. It simply gives us the names and the crosses of the witnesses. Occasionally over against each name, or each of the most important names, is set some word or phrase describing this witness’s act. He has subscribed, or he has consented, or he has consented and subscribed, or perhaps he has confirmed[920].

Confirmation and attestation.

Now we ought not to draw inferences from these phrases without knowing that in the Latin of this period such words as confirmare, corroborare, adstipulari are the proper words whereby to describe the act of those who become witnesses to the execution of a deed[921]. Our kings are making use, though it is a lax use, of foreign formulas; what is more, they are adopting the formulas of private deeds. They have no chancellor, as the Frankish kings have, and they do not, as the Frankish kings do, dispense with that rogatio testium which is one of the usual forms of private law[922]. On the continent of Europe all this talk about confirmation, corroboration and consent would by no means imply that the witnesses were more than witnesses. The line which divides attestation from participation is really somewhat fine, and though well enough apprehended by modern lawyers, would not easily be explained to a barbarian ealdorman. A witness does consent to the execution of the instrument which he attests, though he may be utterly ignorant of its import, and, if the law demands that such an instrument shall be attested, then it may well be said of the witness that by attesting it he makes it firm, he confirms it. Until he attested it, it was not a valid instrument[923]. Now we are not saying that the magnates, more especially the bishops, who attested these ancient charters thought of themselves as mere witnesses. Had that been so, a clause expressing the consent of the whole body of great men would hardly have crept into the charters; and it does creep in gradually during the last half of the eighth century[924]. A similar development has been noticed in the charters of the German kings. A clause expressing the consent of the great folk rarely occurs in the Merovingian or the early Carolingian charters, unless they belong to certain exceptional classes. It is said to become common under the weak rule of Lewis the Child; then for a while it becomes rare again, and then once more common under Henry III and Henry IV, though consent and witness are hardly to be distinguished[925]

Function of the witan.

Perhaps from the first in England the cross of at least one bishop was much to be desired or was almost indispensable, for the anathema which the charter pronounces will be a solemn sentence of excommunication when it comes from a bishop, while it will be at best a pious wish if it comes from the king; and it is well to have the cross of every bishop, so that the breaker of the charter may find himself excommunicated in every diocese. This is not all; we may well believe that from the first the king was more or less bound to consult with his great men before he alienated his land. The notion that land could be alienated at all may not have been very ancient, and the king when giving land away may have been expected to pay some regard to the welfare of his realm[926]. The discovery that he had an alienable superiority over free land and free landowners would sharpen this rule. Some of these early donations are to our minds more like cessions of political power than gifts of land; they make over to bishops and abbots rights which the king has exercised rather as king than as landowner. A wholesome practice grows up which is embodied in the clause that states the consent of the witan, and, even when this clause has disappeared, still it is in the presence and with the witness of his councillors that the king makes his grants. This is no purely English phenomenon. When a Norman duke hands his charter to be roborated and confirmed by his fideles, we do not infer that he is disposing of land that is not his[927]. But it is very remarkable that in the earliest English charters the consent of an overlord is treated as a far more serious thing than the consent of the nobles[928]

The king and the people’s land.

Of some value though this ‘constitutional check’ may have been, we can not regard it as a relic of a time when there was land which in any accurate sense of the term was owned by the people. The recorded action of the witan in relation to the king’s grants does not become more prominent, it becomes less prominent, as we go backwards and reach the heptarchic days. But that is not all. Is it not marvellous that there should be land owned by the people and yet that we should have to discover this momentous fact from a few casual phrases occurring in three documents of the ninth and tenth centuries? Are we to suppose that whenever the king is giving away land, this land is the land of the people? Why do not the charters say so? Repeatedly the king speaks of the land that he gives as ‘my land’ (terram iuris mei), and this too in charters which state that the witan give their consent to the grant. Never by any chance does a scribe slip into any such phrase as terram gentis meae, terram gentis Merciorum or the like. And how came it about that from the very earliest time the king could devote the people’s land to the salvation of his own peculiar soul? But, it will be said, no doubt the king had private estates besides having a power over ‘the unallotted lands of the nation,’ and those private estates he could give away as he pleased. But then, how are we to distinguish between those charters whereby he disposed of his own and those whereby he disposed of national lands? The formula which expresses the consent of the wise will certainly not serve our turn. It leads, as we have seen, to a distinction between different ages, not to a classification of the various charters of one and the same king.

King’s land and crown land.

Some historians have supposed that at the outset there was a clear distinction between the king’s private estates and those national lands which were becoming the domains of the crown. Now a vague distinction between what belonged to the king as king and what belonged to him—if we may use so modern a phrase—in his private capacity, we may admit, while at the same time we gravely doubt whether the language or the thought of the eighth or ninth century had any forms in which this distinction could be precisely expressed. Even within the ecclesiastical sphere, where traditions of Roman law may have lingered and where dead saints presented themselves as persons capable of acquiring land, it was by no means easy to distinguish the bishop’s property from his church’s property. We may find a deed whereby some king for the love of God or the salvation of his soul gives land to a certain bishop, and states in strong, clear words that the donee is to have the most absolute power of giving and selling and even, for this sometimes occurs, of bequeathing the land[929]. We shall probably believe that the king intends that this land shall go to increase the territory of the church, and yet we dare not make the bishop either ‘a trustee’ or ‘a corporation sole.

Fate of the king’s land on his death.

As to the king, it would be on his death that the necessity of drawing some distinction between his two capacities would first present itself. Perhaps a brother of his would be elected to the kingdom and his children would be passed by. Clearly this brother should have those lands which have supplied the king with the main part of his revenue, and yet it would be hard that the dead man’s children should be portionless. However, we may strongly suspect that in the earliest time cases of this nature were settled as they arose without the establishment of any general rule, and that even on the eve of the Norman Conquest no definite classification of the king’s estates had been framed. We dare not expect the rule to be more definite than that which settled the title to the kingship, and how exceedingly indefinite the latter was the historians of our constitution have explained. Hereditary and elective elements were mixed up in the title; we can define neither the one nor the other. That ‘superiority’ over all the land of his kingdom of which we have spoken above, though it might be alienated piecemeal among the living, would pass from the dead king to his elected successor. On the other hand, some kings were careful to have certain lands booked to themselves and to obtain from their nobles ‘an express power of testamentary appointment.’ But very possibly there was a wide fringe of disputable matter. King Alfred’s will, with all that he says about what had been done by himself, his father and his brothers, seems to tell us that a prudent king would obtain the consent of his councillors to any disposition that he made of land that was in any sort his. Also it seems to bear witness to a strong feeling that the reigning king should enjoy at any rate the bulk of the lands that his predecessor had enjoyed[930]

The new king and the old king’s heir.

In one of his charters Æthelred the Unready is made to tell a long and curious story[931]:—‘My father, king Edgar, gave certain lands to the minster at Abingdon. On his death the wise men elected as king my brother Edward, and put me in possession of the lands which belonged to the king’s sons. Among these were the lands given to Abingdon; they were forcibly taken from the monks. Whether this was lawful or unlawful those wise men know best. Then my brother Edward died and I became possessed, not only of the lands which belonged to the king’s sons, but also of the royal lands. I do not wish to incur my father’s curse, and therefore I intend to substitute for his gift a compensation out of my own proper inheritance. The land that I am now going to dispose of I acquired by gift from certain persons whose names I state.’—We seem to see here three kinds of land, the regales terrae which pass from king to king, the lands ‘entailed,’ if we may use that term, on the king’s family (regii pueri), and lands which come to a king by way of gift or the like and constitute his propria hereditas. But the wise men seem to have violated three solemn books which they themselves or their predecessors had attested, and we can but say with king Æthelred ‘quam rem si iuste aut iniuste fecerint ipsi sciant[932].’ There can be but little law about such matters so long as the title to the kingship is indefinable[933]

Ancient demesne and its immunity.

This distinction between the lands which would pass from king to king and the lands which would pass from the king to his heirs or to his devisees may have been complicated with another distinction. Domesday Book tells us that some, but by no means all, of the lands held by the Confessor were and had always been free of geld, and this freedom from taxation may imply other immunities. It is possible that, as in later times, certain ‘ancient demesnes of the crown’ already stood outside the national system of taxation, justice and police, that the ealdorman of the shire and the shire-moot had no jurisdiction over them, and that they were administered by reeves yet more personally dependent on the king than was the shire-reeve. It is possible, however, that the two distinctions cut each other, for when the king booked land to himself he, at all events on some occasions, inserted in the charter a clause of immunity, the very object of which was to put the land outside the general, national system. To this distinction the famous exchange which Æthelbert effected with his thegn Wulflaf may point. It says that when, instead of Washingwell, the king accepted Marsham, ‘he did it him to folk-land.’ The land at Marsham was no longer to enjoy that immunity which it had enjoyed while it was in the hands of the thegn, it was to come under the sway of the sheriff and of the national courts. However, it is much easier for us to dream dreams about such a transaction than to discover the truth.

Rights of individuals in national land.

If the folk-land was the land of the people and if the king when he booked land to a church or a thegn was usually booking folk-land and converting it into book-land, how are we to think of the land that still is folk-land? Is it land that has not yet been brought into cultivation; is it land in which no proprietary interests, save that of the folk, exist? Now we are far from saying that the king never grants land that is waste and void of inhabitants; but it is plain enough that this is not the common case. The charter deals in the first instance with manses, villae, vici, houses, túns, with cultivated fields and meadows. Waste land (it may be) is given in large quantities, but merely as appurtenant to the profitable core of the gift. We see too that individual men have rights in the folk-land; Alfred the ealdorman has folk-land and hopes that on his death it will pass to his son; King Æthelbert has folk-land and it is occupied by Wighelm and Wulflaf; King Edward the Elder supposes that the title to folk-land may be in dispute between two persons and that this dispute will come before the sheriff. What then the folk owns, if it owns anything at all, is not (if we may introduce such feudal terms) ‘land in demesne’ but ‘land in service,’ in other words, a superiority or seignory over land. We must add that it is a superiority over free men and over men who have titles that can be the subject of law-suits in the county court. And now we must ask, What profit does the nation get out of this superiority? Shall we say that the tributum, the vectigal paid to the king is to be regarded as rent paid to the nation, that the opera regia, the victus, the pastus, are services rendered by the tenant to the people, or shall we say that the folk’s right over this land is proved by its serving as the fund whereon the king can draw when he desires to save his soul? Then, if on the other hand we make the tillers of the folk-land mere tenants at will, there will be little room left for any landowners, for any ‘peasant proprietors.’ To meet this difficulty it has been supposed that, at all events at a remote time, there was much land that was neither folk-land nor book-land. The allotments which the original settlers received were neither folk-land nor book-land.

The alod.

In order to describe those allotments the words alod and ethel have been used, and other terms, such as ‘family land’ and ‘heir land,’ have been invented. But in the laws and the charters we do not meet with these phrases. The law of Edward the Elder seems to set before us book-land and folk-land as exhausting the kinds of land. ‘He who deforces any one of his right, be it in book-land, be it in ‘folk-land’ must pay a penalty.’ It is difficult to believe that this law says nothing of one very common kind of land, still more difficult to believe that already in the first half of the ninth century the amount of the so-called alod, ethel, or ‘heir-land,’ had become so small that it might be neglected. So far as we can see, book-land from first to last was only held by the churches and by very great men. The books that we have, more especially the later books, are with hardly any exceptions furnished with clauses of immunity, clauses which put the land outside the national system of police, and, as we think, of justice also. It is not to be imagined for one moment that the numerous liberi homines who even in the Conqueror’s reign held land in Essex and East Anglia had books. To say that book-land had consumed the ancient alod or ethel, is in truth to say that all land was privileged.

Book-land and privilege.

We turn once more to Edward’s law. Land, it would seem, is either book-land or folk-land. Book-land is land held by book, by a royal and ecclesiastical privilegium. Folk-land is land held without book, by unwritten title, by the folk-law. ‘Folk-land’ is the term which modern historians have rejected in favour of the outlandish alod. The holder of folk-land is a free landowner, though at an early date the king discovers that over him and his land there exists an alienable superiority. Partly by alienations of this superiority, partly perhaps by gifts of land of which the king is himself the owner, book-land is created.

Kinds of land and kinds of right.

Edward’s law speaks as though it were dealing with two different kinds of land. But really it is dealing with two different kinds of title. We, and even our statutes, habitually speak of freehold land, copyhold land, leasehold land, yet we know that the same piece of land may be at one and the same time freehold, copyhold and leasehold. All land is freehold land; every rood has its freeholder. Bracton habitually spoke of land held by frankalmoin, land held by knight’s service, land held in socage, but he knew well enough that a single acre might be held at one and the same time by many different tenures. Just so, we take it, the same land might be both book-land and folk-land, the book-land of the minster, the folk-land of the free men who were holding—not indeed ‘of’—but still ‘under’ the minster. They or their ancestors had held under the king, but the king had booked their land (which also in a certain sense was his land) to a church. The mental effort, the abstraction, that would be required of us were we to speak of various ‘estates, rights and titles,’ we try to avoid by speaking as though the distinction that was to be indicated were a distinction between various material things, and as though a freehold or copyhold quality were, like fertility or sterility, an attribute of the soil. Even so abstract a term as ‘estate’ is soon debased by the vulgar mouth: estates are ploughed; men ‘shoot over’ their estates. ‘Book-land’ is a briefer term than ‘land held by book-right’; ‘folk-land’ is a briefer term than ‘land held by folk-right.’ The same piece of land may be held by book-right and by folk-right; it may be book-land and folk-land too.

And now we must turn to consider another element in the king’s alienable superiority. We must speak of jurisdiction.