This is very dark. Our best guess as to its meaning is this:—If a man of God, that is, a tenant of the church, is accused of crime, the custos of the church (this may mean the abbot, but more probably points to his reeve) may by his single oath purge the accused. But if he dare not do this, then he (the abbot or reeve) may pay the bót that is claimed, and by performing this condition he may obtain a transfer (vicissitudo) of the cause and do what other justice remains to be done, i.e. he may exact the wite. So in the second charter the abbot may pay the bót, the singulare pretium, and so obtain a right to exact the wite:—he makes the payment ut talia [i.e. witereden] accipiat. In guessing that vicissitudo points to a transfer of a suit, we have in mind the manner in which theLeges Henrici, 9 § 4, speak of the ‘transition’ of causes from court to court. The case that is being dealt with by these charters we take to be one in which an outsider in a ‘foreign’ court sues one of the abbot’s tenants. The abbot can swear away the charge, or if he dares not do this, can obtain cognizance of the cause (in the language of a later day potest petere curiam suam) and therewith the right to the wite, but must in this case pay the restitutory bót, or rather, perhaps, find security that this shall be paid to the plaintiff in case he is successful. The clause may also imply that a multiple bót can not be exacted from the immunist’s men, e.g. such a bót as we saw the Abbot of Pershore exacting from the Westminster men; but this is a minor question.
§ 4. Book-land and Loan-land.
The book and the gift.
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.