Domesday Book and Beyond: Three Essays in the Early History of England

by Frederic William Maitland

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.