No one perhaps to such a question would boldly say: Yes. And yet, when it comes to a treatment of particulars, an affirmative answer seems to be implied in much that has been written even by modern historians. They begin at the beginning and attribute precise ideas and well-defined law to the German conquerors of Britain. If they began with the eleventh century and thence turned to the earlier time, they might come to another opinion, to the opinion that in the beginning all was very vague, and that such clearness and precision as legal thought has attained in the days of the Norman Conquest has been very gradually attained and is chiefly due to the influence which the old heathen world working through the Roman church has exercised upon the new. The process that is started when barbarism is brought into contact with civilization is not simple. The hitherto naked savage may at once assume some part of the raiment, perhaps the hat, of the white man. When after a while he puts these things aside and learns to make for himself clothes suitable to the climate in which he lives and the pursuits in which he is engaged, we see in this an advance, not a relapse; and yet he has abandoned some things that belong to the white man. Even so when our kings of the eighth century set their hands to documents written in Latin and bristling with the technical terms of Roman law, to documents which at first sight seem to express clear enough ideas of ownership and alienation, we must not at once assume that they have grasped these ideas. In course of time men will evolve formulas which will aptly fit their thought, for example, the ‘feudal’ charter of feoffment with its tenendum de me and its reddendo mihi. Externally it will not be so Roman or (we may say it) so modern a document as was the land-book of the eighth century, and yet in truth there has been progress not retrogress. Words that Roman lawyers would have understood give way before words which would have been nonsense to them, feoffamentum, liberatio seisinae and the like. This is as it should be. Men are learning to say what they really mean.
Our materials.
And now let us remember that our materials for the legal history of the long age which lies behind Domesday Book are scanty. A long age it is, even if we measure it only from the date of Augustin’s mission. The Conqueror stands midway between Æthelbert and Elizabeth. To illustrate five hundred years of legal history we have only the dooms and the land-books. The dooms are so much taken up with the work of keeping the peace and punishing theft that they tell us little of the structure of society or of the feudalizing process, while as to what they imply it is but too easy for different men to form different opinions. Some twelve hundred land-books or charters, genuine and spurious, are our best, almost our only, evidence, and it must needs be that they will give us but a partial and one-sided view of intricate and many-sided facts[857].
§ 1. Book-land and the Land-book.
The lands of the churches.
Now these charters or land-books are, with hardly any exceptions, ecclesiastical title-deeds. Most of them are deeds whereby lands were conveyed to the churches; some are deeds whereby lands were conveyed to men who conveyed them to the churches. Partial, one-sided and in details untrustworthy though the testimony that they bear may be, there is still one general question that they ought to answer and we ought to ask. Domesday Book shows us many of the churches as the lords of wide and continuous tracts of land. Now about this important element in the feudal structure the land-books ought to tell us something. They ought to tell us how the churches acquired their territories; they ought to tell us what class of men made gifts of land to the churches; they ought to tell us whether those gifts were of big tracts or of small pieces. For example, let us remember how Domesday Book shows us that four minsters, Worcester, Evesham, Pershore and Westminster, were lords of seven-twelfths of Worcestershire, that the church of Worcester was lord of one quarter of that shire and lord of the triple hundred of Oswaldslaw. How did that church become the owner of a quarter of a county, to say nothing of lands in other shires? We ought to be able to answer this question in general terms, for among the charters that have come down to us there is no series which is longer, there is hardly a long series which is of better repute, than the line of the land-books which belonged to the church of Worcester. They come to us for the more part in the form of a cartulary compiled not long after the Conquest by the monk Heming at the instance of Bishop Wulfstan[858].
How the churches acquired their lands.
Now the answer that they give to our question is this:—With but few exceptions, the donors of these lands were kings or under-kings, kings or under-kings of the Mercians, kings of the English, and the gifts were large gifts. Very often the charter comprised a tract of land which in Domesday Book appears as a whole vill or as several contiguous vills. Seldom indeed is the subject-matter of the gift described as being a villa or a vicus:—the king merely says that he gives so many manses or the land of so many manentes at a certain place. Still, if we compare these charters with Domesday Book, we shall become convinced that very often the land given was of wide extent. For example, Domesday Book tells us that the church of Worcester holds Sedgebarrow (Seggesbarue) where it has four hides for geld, but eight plough teams. How was this acquired? The monks answer that three centuries ago, in 777, Aldred the under-king of the Hwiccas gave them viculum qui nuncupatur aet Segcesbaruue iiii. mansiones, that land having been giving to him by Offa king of the Mercians in order that the soul of the subregulus might have something done for it[859]. In the Conqueror’s reign the Archbishop of Canterbury held a great estate in Middlesex of which Harrow was the centre, and which contained no less than 100 hides. Already in 832 the archbishop or his church had 104 hides at Harrow[860]. Here we will state our belief, its grounds will appear in another essay, that the ‘manses’ that the kings throw about by fives and tens and twenties, are no small holdings, but hides each of which contains, or is for fiscal purposes deemed to contain, some 120 acres of arable land together with stretches, often wide stretches, of wood, meadow and waste, the extent of which varies from case to case. From the seventh century onwards the kings are giving large territories to the churches. One instance is beyond suspicion, for Bede attests it. In 686 or thereabouts Æthelwealh king of the South Saxons gave to Bishop Wilfrid the land of eighty-seven families in the promontory of Selsey, and among its inhabitants were two hundred and fifty male and female slaves[861]. This gift comprised a spacious tract of country; it comprised what then were, or what afterwards became, the sites of many villages[862]. But to whichever of our oldest churches we turn, the story that it proclaims in its title-deeds is always the same:—We obtained our lands by means of royal grants; we obtained them not in little pieces, here a few acres and there a few, but in great pieces. Canterbury and Winchester echo the tale that is told by Worcester. Another example may be given. It is one that has been carefully examined of late. In 739 King Æthelheard of Wessex gave to Forthhere bishop of Sherborne twenty cassati at the place called ‘Cridie.’ Thereby he disposed of what now are ‘the parishes of Crediton, Newton St. Cyres, Upton Pyne, Brampford Speke, Hittesleigh, Drewsteignton, Colebrooke, Morchard Bishop, Sandford, Kennerleigh and the modern parish of Sherwood, part of Cheriton Bishop, and possibly the whole of Clannaborough.’ He disposed of the whole and more than the whole of the modern ‘hundred’ of Crediton[863]. Then, to choose one last instance, it is said that already in 679 Osric of the Hwiccas gave to an abbess centum manentes qui adiacent civitati quae vocatur Hát Bathu[864]. It is not unlikely that this means that a king newly converted to Christianity disposed by one deed of many square leagues of land, namely, of the hundred of Bath[865]. The kingdom of the Hwiccas was not boundless. If Osric executed a few more charters of this kind he would soon have ‘booked’ it all.
The earliest books.