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But if the community were dependent, though the individual tenant might have well-established customary rights against his fellow-tenants, and even against his lord, in his homestead, and though custom might bind the lord to recognize the descent of land to heirs, I do not see how the ordinary manorial tenant could acquire, as against his lord, the right of alienation or of devise. Free tenants added to the Manor might often, as we know from Domesday, "ire quo voluerunt cum terra,” commend themselves and their land to another lord; though many of them again could only "ire quo voluerunt," change their allegiance by abandoning their land, or at the utmost alienate it so that the new tenant should hold of the manor1; while others again "non potuerunt recedere cum terra." But I do not think there is any evidence that the ordinary villani and bordarii at this or any time could alienate without their lord's consent; and this consent was probably more of a reality, when Villein-services had not yet been commuted for money, and when travelling was less common. The modern agricultural labourer now rarely journeys into "foreign parts,” as he calls them; his ancestor of Domesday is not likely to have been more active.

But if this is so, the alienable Heir-land of the member of a community is of small importance, and we must look for Heir-land elsewhere. I think it can be found in all the older manorial communities, regarded from the point of view of the Lord. Many of the newer thegns and great men derived their land undoubtedly from grants by book from the folc-land, or some few from transfers of heir-land by writing: but the older proprietors, I think, held most of their land as Heir-land, which had descended in their family from the original settler to whom had been granted the manorial estate which the conquered were still tilling on the site of the Roman villa, which their former conquerors had abandoned. In these lands, family rights would conflict with the claims of the individual, and in these lands, the growth of

1 Domesday, 140, a. 2, 66 a vassal of Asgar held this land, and might sell it, but the soke remained in Hitchin."

2 Except perhaps in Kent: Elton,

Tenures of Kent, pp. 39, 40.

3 See Seebohm on the local evidences in Hertfordshire. V. C. p. 424 et seq.

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individual property, set out by Lodge and Pollock, may be traced. This is the class of estate we find in Domesday everywhere in England but in the Eastern and Danish counties, where the original tillers of the soil had disappeared, and the land seems to have been cultivated on a system more akin to a free community, by socmen and liberi homines. Here again, we shall find a place for Heir-land, and here the rights of the family will not easily die out. But community-land, in the sense of land which a free community held in tillage, in my opinion filled a very small place in English rural economy. The English communities were dependent on a lord.

Mr Seebohm has suggested' that the right of succession to the manorial holding, the equal yardland of the geburs or villani, was to one son only, whether the oldest or youngest, for the equal holdings could have been preserved in no other way. This necessity, he argues, caused the abandonment of gavelkind, or equal division, while the Jüngsten-Recht, or Borough English, an old custom of tribal households, survived in some cases to determine which son should be the favoured one. The customs of many manors appear to contradict this theory; and the difficult questions of early manorial customs can hardly be solved till the treasures of history in the Court Rolls of the Manors are brought to light.

III. The Folc-land was the land of the folc, or people, and it could only be permanently alienated from them by a grant in writing, or Book, made by their representatives, the King and Witan, when it ceased to be folc-land. But there were also estates of folc-land concerning which very slight evidence exists, but which appear to have been estates for the grantee's life, reverting to the folc on his death. They were certainly not devisable by will, nor were they estates of inheritance, descending in a fixed line on the grantee's death. Duke Alfred's will runs: "I bequeath to Aethelwald my son 3 hides of boc-land...and if the King will give him the folc-land to the boc-land, then he may have and enjoy it, but if it shall not be so, then let my wife give him which she will, either the land at Horsley or that at Langafeld"." This shows both that Alfred by himself could not

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bequeath his estate of folc-land, and also that Aethelwald, as his son, would not eo jure inherit it. Again Abbot Wulfwold formally recites to the scirgemot a grant by the King, as an unfettered estate, "to give or sell during my day or after my day to whomsoever it best pleases me," of land "which my father held." Here the Abbot's father appears to have held an estate of folc-land, and the Abbot to have obtained its regrant as unfettered book-land. But as from the nature of this tenure no charter existed to record its incidents, it is impossible to speak of it with any certainty. It is probable that the holder of an estate of folc-land might alienate his interest in it during his life, in which case the subordinate interest, as held of a definite holder, and not of the State, would be laen-land.

B. Land held by the terms of a writing, or Book.

In the case of Book-land, from the method of its creation, far more information exists. If created out of Heir-land, it would be by a simple charter or book, to which the family, or the King, might at certain stages of its history be parties; if out of folc-land, the consent of the King and Witan would be necessary. But the nature of the estate granted followed strictly the terms of the book or charter; and of the various estates so created we have numerous specimens. Book-land probably owed its introduction to the clergy, who monopolized the art of writing, and who were interested in strengthening the power of free alienation and bequest, as against the claims of the family, that they might turn to good use the death-bed repentances of wealthy sinners, by procuring the reversion of their lands to their church or monastery.

But even the restrictions in a book

1 Circa 1060 A.D. C. D. DCCCXXI. Kemble, Saxons in England, 1. 300.

2 Mr Pollock is of opinion that the creations of Book-land out of Heir-land, or Community Land were very slight (Land Laws, p. 24). For the reasons just stated, I am inclined to think that more of the Book-land may be

derived from alienations of large estates, originally held as Heir-land, than Mr Pollock supposes. The fact that the consent of the King and Witan was obtained to alienations of Heirland, shows that large estates of that tenure were held, and by great

men.

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might be disregarded; at least this appears to be the peril guarded against in Alfred's law :

"The man who has boc-land which his kindred left him; then ordain we that he must not give it from his kindred, if there be writing or witness that it was forbidden by those men who at first acquired it, and by those who gave it to him, that he should do so; and then let that be declared in the presence of the king and the bishop before his kinsmen1.”

It is difficult to see how this is, as Mr Lodge argues, an attempt to convert boc-land into family-land; it is rather an attempt to enforce the provisions of the book, for the holder's alienation of his boc-land is only to be restrained when such restrictions have been imposed on the land previously. It is curious however that the restriction is spoken of as imposed by "those who first acquired it, or who gave it to him" (these last being presumably the "kindred who left him land" of the earlier part of the law). For we should expect to find the restriction imposed in the original grant to his kindred, whereas it appears to be added to that original grant by the dealings of his kindred with the land. Perhaps this is explained by the addition by will of restrictions on the originally unfettered boc-land. It is also curious that the restrictions on alienation can be proved not only by gewrit, the book or written will, but also by gewitnesse, oral testimony: this may refer either to restrictions on alienation contained in a nuncupative will, or to oral proof of the contents of writings that have been lost.

The possessor of Book-land had powers of alienation, varying with the terms of the book, or will, under which he held. Thus a number of charters give an absolute power of alienation inter vivos or by will: e.g.—

"ita ut quamdiu vixerit potestatem habeat tenendi ac possi

1 Laws, § 41. Stubbs, S. C. p. 62. Anglo-Saxon Law, p. 70. Pollock, L. L. p. 194. This law may be compared with the provision in the Leges Henrici Primi, an unofficial collection of laws and customs, partly Saxon, partly Norman. "Si bocland habeat, quam ei parentes dederint, non mittat

eam extra cognationem suam, sicut
praediximus." C. LXX. § 21. Cus-
toms of Wessex. There is no previous
reference in the
88 § 14 reads, "Et nulli liceat foris
mittere hereditatem suam de parentela
sua, datione vel venditione, sicut dixi-
mus, maxime si parentela contradicat."

Laws to this, but C.

dendi, cuicumque voluerit vel se vivo vel certe post obitum suum relinquendi1."

66

ut habeat libertatem commutandi vel donandi in vita sua, et post ejus obitum teneat facultatem relinquendi cuicumque voluerit"."

There are also, to anticipate modern terms, obvious Estates Tail: e.g.

"in jus possessionemque sempiternam sibimet ad habendum quamdiu vivat, suoque relinquendum fratre germano diutius superstes si fuerit......et sic semper in illa sanguinitate paternae generationis, sexuque virili, perpetualiter consistat adscripta3.” "Hoc modo donatum est, ut semen masculum possideat et non femininum; et post obitum prosapiae illius data sit......ad ecclesiam Eofesham1": where there is a species of Estate tail, with remainder to the Church.

We also find estates granted by book for three lives, with a reversion or remainder to some religious foundation: e.g."Ealhferð quanto tempore vixerit, et post se duobus haeredibus, quibus defunctis aecclesiae Weogornensi restituatur": "freolice his daeg forgeaf, and aefter his daeg twâm yrfeweardum" (heirs) "Jaem de sylf wille." One of these books has a note explaining that Aelfward was the first life, and the land was then in the hands of his daughter, who was the second life®.

The right of alienation was sometimes restricted by a right of pre-emption on the part of the grantor. In an old deed in the Canterbury archives, the Prior of Christchurch grants land thus: "G. tenebit de nobis has terras jure hereditario; et licebit ei de ipsis tanquam de propriis facere quod voluerit, salvo jure et redditu nostro. Ita tamen quod si eas alicui dare voluerit vel 1 A.D. 736: Kemble, C. D. 1. Pref.

XXXI.

2 A.D. 805. Kemble, ibid. Two other examples are curious. A.D. 767: "quam is semper possideat, et post se cui voluerit haeredum relinquat." A.D. 805 "et jure haereditario firmiter fixa permaneat"-where there appears to be some sort of restriction or limitation to the family. Kemble, ibid.

3 A.D. 869: Kemble, C. D. 1. Pref.

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