4

CUSTOMARY ESTATES.

Law, calls such estates "unbooked laens," and applies the term "booked laens" to all subordinate estates of land, carved out of the full property in land and created by writing, thus taking the general term "laen" to mean all estates in land where there was a reversion or remainder over from the original grant. Mr Pollock criticizes both the use of the term laen, as applied to estates created by book, and also the proposition that estates in folc-land were unbooked laens; he himself holds laens to involve "holding under a definite person or superior by specific services,' and as estates of folc-land were held from the state, and not from a definite person, he refuses them the name of laens1.

With regard to each of these classes, we have now to consider:

I. The holder's power of alienating them during his life. II. The holder's power of disposing of them on his death, by Will.

III. The course of Intestate Succession with regard to them.

A. Customary Land. I. Heir-land'.

The advocates of the Mark-System allege the division of the land of each community into: 1. the Homestead, in which private property apart from the community was gradually established: 2. Arable lands, which were allotted annually to the members of the community according to customary rules: 3. Pasture and Waste, which were shared by the community in common without any, even temporary, allotment of particular portions. And in the growth of private property in the Homestead, they find the origin of Heir-land.

This property at first is that of the family; its nature and incidents are based upon the needs and regulated by the rights of the family but the family's private property gradually becomes the private property of the individual. There seems little doubt that originally Heir-land, or yrfe-land, whatever its

1 Land Laws, p. 194.

2 Anglo-Saxon Law, pp. 68-81.

3 Suam quisque domum spatio circumdat. TACITUS.

origin, was inalienable either inter vivos, or by Will, and that the question of intestate succession did not arise with regard to it; for the family never died, though its members did, while if it died out entirely, the land would revert to the community. The next step in its development into private property would be when the head of the family was recognized as having certain rights over the land, and we find a stage in the history when the land is alienable by the head of the family, at first only within the limits of the family, and with the consent of all the members of the family. Several instances occur in the charters where attempts to alienate family land without the consent of its members failed. Thus, in a charter of Bishop Wulfred [A. D. 811]', it is recited that Egbert had granted leave to Aldhun to leave his land by will [conscribendo dederat]: sed post ea Rex Offa praedictam terram a nostra familia, [to whom Aldhun had willed it], abstulit, videlicet quasi non liceret Ecgberhto agros hereditario jure scribere (because family land might not be booked)2.

Another instance is found in a suit in which Ealdred, Bishop of Worcester, was concerned. Toki, a King's thegn, had willed to the bishop land held "jure haereditariae successionis." But his son Aki attacked the will; "eam terram parentum successione ad suum jus reclamasset," whereupon the bishop compromised the matter with the king's consent for 8 marks, and Aki gave him the land, "liberam a sua et ab omni parentelae suae haereditaria proclamatione, et scripto firmato reconsignavit, ut libere eam posset dare seu vendere cuicumque vellet absque ullius contradictione3." In some cases also the kindred join in the grant for additional security, and attempts by kindred to break the

1 Cod. Dip. cxcv.

2 The reason for a similar interference by Offa with a gift to the church by Aldhun of land given him by Egbert, is stated elsewhere to be “injustum esse quod minister ejus (i.e. Aldhun), praesumpserit terram sibi a domino distributam, absque ejus testimonio in alterius potestatem dare:" this looks like a grant prohi

biting alienation without leave of the king, but it is noticeable that Offa did not restore the land to Aldhun's family, who were wronged by his will, but "suis distribuit ministris." Cod. Dip. мxx.

3 C. Dip. DCCCV. Anglo-Saxon Law, App. No. 30.

4 C. Dip. MXVII.

6

WILLS OF HEIR-LAND.

wills which purport to alienate Heir-land from the family are frequent1.

On the other hand the celebrated Will of Duke Alfred is written to show "who are the men of my kin and my companions, to whom I will my yrfe-land, and my boc-land." Yrfe-land here is Heir-land, and the possibility of leaving it by will, certainly within the limits of the kindred, and perhaps beyond, is shown. A grant of Offa's runs: "Duddono meo ministro, et post se homini suae propinquitatis cui ipse relinquats." In the will of Aethelric he leaves certain land to his mother, with power to alienate it, "cum recto consilio propinquorum meorum, qui mihi haereditatem dabant." Beorhtric and Aelfswyth make a will "testibus his praesentibus de propriis parentibus suis." Leofwine buys land from Edric his kinsman "aefre in his cynn tó fáne and to syllanne dam de him aefre leófost beó." Sellers to Bishop Aelfwold arranged "aet hi wurdon sehte daet da gebroðra eallae geeódon of dám lande, bútan anum," to whom it was bequeathed, and that he should hold it for his day'.

Development of the incidents of family land seems therefore to be, from absolute inalienability to private ownership within the family, admitting of alienation within the family and by the consent of its members; thence to private ownership and power of alienation outside the family with the consent of the king and Witan, which is substituted for that of the family; and thence to the full power of alienation without any restrictions. An example of this last stage appears, when Wulfred grants to the church “aliquem partem meae propriae hereditariae terrae,” without any reference to his kin, or to the consent of the king

and Witan'. This is early in date, but it is impossible to assign any strict limits of time to the particular stages suggested above, which varied with each piece of land, and, as is usually the case in changes of customary law, probably overlapped to a considerable extent.

Family-Land thus passes from inalienability to perfect alienability. Wills are introduced by ecclesiastical influence, and frequently used for clerical benefit; the progress is towards freedom of testation, unless the kindred are powerful enough to prevent it. In intestacy the land is divided among all the sons equally, and, failing sons, among all the daughters, this being the custom which survived in socage lands after the Conquest, and which still survives in Kent under the name of Gavelkind. The custom known as Borough-English, the Continental Jüngsten-Recht, whereby the youngest son succeeds to the paternal inheritance, also exists in some parts of the country.

The progress of Family-land is thus from a property belonging to the family and inalienable, to a fully alienable property, belonging usually to the head of the family. In this progress the position of the individual is strengthened at the expense the claims of the family. The most potent influence effecting this change is to be found in the desire of the church to benefit by gifts, or legacies in wills, themselves a clerical introduction.

II. Community Land may be regarded from two points of view. In the first place, a certain area of land was owned by an individual, or a family, or a community; in the second place it was tilled by tenants who had customary rights against the owners of the land and amongst themselves. Until recently however it has been an accepted article of faith in England that the early English land-system was one in which the cultivators were themselves the owners, one in which the land was owned by village communities or Marks. The Manor, or form of community where there is but one owner whose land is tilled under customary rules by free and serf tenants, is treated as a later encroachment on this. Indeed Mr Elton confidently assigns the parcelling out of the land into Manors to the reign of

1 C. D. ccxxv. a.d. 805-831.

Edward the Confessor'. But the Bishop of Chester, together with Dr Gneist, has refused to recognize the Mark as the "basis of local administration." "It cannot safely be affirmed," says Dr Stubbs, "that the German settlers in Britain brought with them the entire system of Mark organization"." He indeed makes the Township his constitutional unit, and represents it, as we have it in history, "either as a body of allodial owners who have advanced beyond the stage of land community, retaining many vestiges of that organization; or a body of tenants of a lord who regulates them, or allows them to regulate themselves, on principles derived from the same source." Mr Lodge will not even accept the Township as the unit of the Constitution, for he argues that the historical communities were mainly dependent, or settled on and owned by a lord, as opposed to independent, or owning the land themselves. This view Mr Seebohm's learned and original work strongly supports; for he indeed makes an unexpected attack on the very foundations of the Mark-System, by showing that the early Swiss communities in which Von Maurer found his primitive Marks are at least equally capable of being explained on the hypothesis of manorial communities holding of an abbey, as their lord. This is not the place to enter into a discussion as to the origin of manors, but Mr Seebohm appears to me to prove conclusively the identity of the manorial communities in their tenures, customs, and services, with the communities existing before the Conquest, and undoubtedly holding land in common. And if this is so it is, to say the least, not improbable that these latter were dependent communities, settled on land owned by a lord.

The importance of this as bearing on questions of alienation of, and succession to, land seems to me to be this. Heir-land, as explained by Lodge and Pollock, arises from the growth of private property in a village community. Now if this community were independent, the rights of the family and individual being established as against the rights of the community, freedom of alienation in the individual or family would result.

1 Elton, Tenures of Kent, p. 121.

2 Stubbs, 1. 83.

3 Stubbs, 1. 85.

4 Anglo-Saxon Law, p. 82.

5 Seebohm, Village Community, pp. 328-335.