Let us then examine with some care the charters that come to us from the earliest period, a period which shall begin with the year 600 and end with the year 750. From this time we have some forty charters sufficiently genuine for our present purpose. With hardly an exception the grantor is a king or an under-king, while the grantee is a dead saint, a church, a bishop, an abbot, or a body of monks. If the grantee is a layman, the gift is made to him in order that he may found a minster. If this purpose is not expressed, it is to be understood. Thus in 674 or thereabouts Wulfhere king of the Mercians gives five manses to his kinsman Berhtferth as a perpetual inheritance. Berhtferth is to have full power to give them to whom he pleases, and we are not told that he proposes to devote them to pious uses. Nevertheless, the king makes the gift ‘for the love of Almighty God and of his faithful servant St. Peter[866].’ In other cases the lay donee is to hold the land ‘by church right’ or ‘by minster right[867].’ Indeed there seems to be no single deed of this period which does not purport upon its face to be in some sort an ecclesiastical act, an act done for the good of the church[868].
Exotic character of the book.
These charters are documents of ecclesiastical origin; they are also documents of foreign origin. The bishops and abbots have brought or have imported models from abroad. The ‘books’ that they induce the kings to sign are full of technical phrases which already have an ancient history. By way of illustration we will notice one point at which there is an instructive resemblance and an instructive contrast. On the Continent a grantor of lands ends his conveyance with a ‘penal stipulation.’ If an heir of his controverts the deed, he is to pay a certain sum, and none the less the conveyance is to remain in full force. In England we can not thus stipulate for a pecuniary penalty; the land-book is still so purely an ecclesiastical affair that the punishment of its violator must be left to the church and to God. So instead of stipulating that he shall pay money, we stipulate that he shall be excommunicated and, if impenitent, damned, but we do not forget to add that none the less the conveyance shall remain as valid and effectual as ever. ‘If anyone,’ says Eadric of Kent, ‘shall attempt to go against this gift, let him be separated from all Christianity and the body and blood of Jesus Christ, manentem hanc donationis chartulam[869] in sua nihilominus firmitate.’ Such words may look somewhat out of place in their new surroundings; but they are part of a venerable formula[870].
The book purports to confer ownership.
But what is the model to which in the last resort these documents go back? A conveyance by a Roman landowner. He has in the land full and absolute dominium and is going to transfer this to another. Let us observe that the recorded motive which prompts a king to set his cross, or rather Christ’s cross, to a land-book is a purely personal motive. He wishes to save his soul, he desires pardon for his crimes[871]. Of the welfare of his realm he says nothing; but his soul must be saved. Sometimes he will give land to an under-king or to an ealdorman, for they also have souls and may desire salvation[872]. He is acting as a private landowner might act. Then he uses terms and phrases which belong to the realm of pure private law. He asserts in the most energetic of all the words that the law of the lower empire could provide that he is a landowner and that he is going to transfer landownership. The land in question is tellus mea[873] or it is terra iuris mei[874]. Then it is the very land itself that he gives, the land of so many manses, ‘with all the appurtenances, fields, pastures, woods, marshes.’ It is no mere right over the land that he gives, but the very soil itself. Next let us observe the terms in which the act of conveyance is stated:—perpetualiter trado et de meo iure in tuo transscribo terram ... ut tam tu quam posteri tui teneatis, possideatis et quaecunque volueris de eadem terra facere liberam habeatis potestatem[875]. The Latin language of the time had no terms more potent or precise than these. Or again: aliquantulam agri partem ... Waldhario episcopo in dominio donare decrevimus[876]. Or again: aeternaliter et perseverabiliter possideat abendi vel dandi cuicumque eligere voluerit[877]. But it is needless to multiply examples.
Does the book really confer ownership?
No doubt then, if we bring to the interpretation of these instruments the ideas of an earlier or of a later time, the ideas of ancient Rome or of modern Europe, we see the king as a landowner conferring on the churches landownership pure and simple. The fact on which our constitutional historians have laid stress, namely, that sometimes (for we must not overstate the case) the king says that the bishops and his great men are consenting to his deed, important though it may be in other contexts, is of little moment here. The king is put before us as the owner of the land conveyed; it is, he says, terra mea, terra iuris mei. The rule, if rule it be, that he must not give away his land without the consent of bishops and nobles in no way denies his ownership. However, we are at the moment more concerned with the fact, or seeming fact, that what he gives to the churches is ownership and nothing less.
The book really conveys a superiority.
But if we loyally accept this seeming fact and think it over, to what conclusions shall we not be brought, when we remember how wide were the lands which the churches acquired from the kings, when we think once more how by virtue of royal gifts the church of Worcester acquired a quarter of a county? When these lands were given to the church were they waste lands? It is plain that this was not the common case. Already there were manses, there were arable fields, there were meadows, there were tillers of the soil. One of two conclusions seems to follow. Either the king really did own these large districts, and the tillers of the soil were merely his slaves or coloni, who were conveyed along with the soil, or else the clear and emphatic language of the charters sadly needs explanation. Now if we hold by the letter of the charters, if we say that the king really does confer landownership upon the churches, there will be small room left for any landowners in England save the kings, the churches and perhaps a few great nobles. This is a theory which for many reasons we can not adopt; no one can adopt it who is not prepared to believe that Britain was conquered by a handful of chieftains without followers. The only alternative course seems that of saying that many of the land-books even of the earliest period, despite their language, convey not the ownership of land, but (the term must be allowed us) a ‘superiority’ over land and over free men.
A modern analogy.