There are two minor restraints on alienation, which we may briefly notice; the devotion of land, especially under the Confessor, to religious purposes, and the creation of restraining rights over land by mortgages. Mortgages are naturally found most frequently in the freer counties of England. In Lincolnshire there are some half-dozen entries in Domesday of land in vadimonium, and the existence of a mortgage was of course a restraint on the alienation of the land. We find this actually recorded in Hertfordshire, where in a certain manor "a certain woman had 5 virgates of land under Anschil de Wara, and she might sell them, except one virgate, which was mortgaged to Almer for 10s.1 Similarly ecclesiastical ownership had a restraining influence on alienation, besides that exercised by the fact that many ecclesiastical lands were held for one life, or at the most three. Lands owned by the church in Domesday show more restraints on alienation than those held either of the King, or of great Lords: the lordship or jurisdiction "non potest separari ab ecclesia," and sometimes it is the tenant who cannot be separated, but is bound to the land. In Wiltshire, of 32 landowners and their land we find the entry "qui tenuerunt T. R. E. non potuerunt ab ecclesia separari." The hundred in Hertfordshire testify that a certain tenant "could not dispose of it from the church, but that after his death it must return to the church." In Wiltshire, "Alwardus tenet tres hidas quas Ulwardus T. R. E. ab Episcopo emit in vita sua tantum ut postea redirent ad firmam episcopi, quia de dominio episcopi erant." Again: "De hac eadem terra tres hidas vendiderat Abbas cuidam Taino T. R. E. ad aetatem trium hominum, et ipse abbas habebat inde servitium et postea debebat redire ad dominium"." This church estate for three lives however allowed considerable liberty to its holder, for in the same county there is an entry: "Toti emit eam T. R. E. de Ecclesia Malmesburiense ad aetatem trium hominum, et infra 1 f. 141, a, 2. Sometimes the mortgagee had the power to sell-cf. the entry "an Englishman held this land in mortgage, and might sell it"-f. 133, a, 2. 2 f. 139, a, 2. hunc terminum poterat ire cum ea ad quem vellet dominum1." Here the church had not even the soc during this term of lives; but no similar entry occurs in the rest of Domesday. More restricted estates are common: e.g. "Aluric tenuit de Abbatissa unam hidam...ea conditione ut post mortem ejus rediret ad ecclesiam, quia de dominica firma erat?." Sometimes the church. had not to wait till the death of the holder, but could exert its influence before: e.g. "Hanc terram reddidit sponte sua ecclesiae Hardingus, qui in vita sua per conventionem debebat tenere3." In Essex a landowner "non potuit vendere sine licentia abbatis:" and this sometimes affected superior landowners. Asgar held T. R. E. a manor in Buckinghamshire of the Church at Canterbury, "so that it could not be separated from the church," and Archbishop Stigand himself is recorded as having held land which he could not separate from the church. From an entry in Cambridgeshire "T. R. E. de hoc manerio tenuit Ailbertus vi hidas, ita quod non potest vendere nec ab ecclesia separare, sed post mortem suam restitueretur ecclesiae de Ely"," where vendere is contrasted with separare ab ecclesia, I should infer that the latter phrase referred merely to the soke or jurisdiction, and allowed by itself a substitution of another tenant to the estate which the alienor held of the church. There are a large number of instances in Domesday of lands held by the church or private persons on condition of praying for the donor, or in frankalmoign, which of course could not be alienated by their holders. In Hertfordshire certain lands "were of the alms of King Edward, and of all the Kings his forerunners"." In Bedfordshire, Alurin a priest held T. R. E.one sixth of a hide: "Rex Willielmus sibi postea in eleemosina concessit, unde pro anima regis et reginae omni ebdomada feria duas missas persolvit." In Norfolk, "unus liber homo tenet XL acras terrae in eleemosina et cantat unaquaque ebdomada tres missas." KING'S CONSENT TO ALIENATION. 21 In lands devoted to religious purposes we inevitably find restrictions on alienation, the multiplication of which leads in the course of time to prohibitions of alienation for such purposes. Another alleged restriction on alienation before the Conquest may be briefly noticed. Mr Coote has argued that “no land before the Conquest could be alienated without the leave of the King1." In support of this startling proposition, he adduces some dozen charters in the Codex Diplomaticus in which the gift is recited to be made by the leave of the king. But we have seen that at a certain stage in the history of Heir-land the consent of the king and witan was obtained to its alienation in order to defeat the claims of the family; and it is also probable that many of the greater proprietors made their grants of bookland in the shiremoot, or in the witan, after the fashion of Private Acts of Parliament, as Mr Pollock suggests, and to obtain greater security for and witness of their alienations. These two causes are quite sufficient to account for the instances Mr Coote cites, without having recourse to the fact that many grants of land contain no such recital of the leave of the King. But Mr Coote's examples explain themselves. Without a minute examination of all, the very first he cites, runs thus: "cum licentia et permissione regis Offani, nos tres germani, uno patre editi, donabimus tibi, Headda abbas, terram juris nostri... nunquam nos haeredesque nostros ullo tempore contra hanc donationem esse venturos""... which is clearly a grant of family land by the brothers who owned it, with the king's leave obtained to bar the claims of the family. And a similar explanation can be given of Mr Coote's other examples. His theory of the necessity of the king's leave for alienation may therefore be dismissed. With regard to the methods and formalities of alienation there are undoubted instances where a grant was made by Book, and a symbolical transfer was also performed3. Thus in 1 Neglected Fact in English History, pp. 23, 173. Romans in Britain, pp. 247-251. 2 A.D. 759. Cod. D. cv. I. 128. 3 Cod. D. Nos. 12, 104, 114, 1019: Nos. 114, 177 are marked by Kemble as forgeries, but the incident may have been copied from genuine charters. Black Book of Peterborough, ed. Stubbs. Pollock, Land Laws, 193. 22 SYMBOLICAL TRANSFER. the eighth century Ethelred, on a visit to Medesham, gave to the brethren he found there 30 manentes, and confirmed the gift by placing on the Gospels' Book a sod taken from the place. Again a purchase of lands from the king was ratified in the king's chamber by placing a sod from the land on the Gospels' Book in the presence of the bishop. This symbolism might well find no record in the books, but would play a prominent part in transfers of Heir-land and manorial holdings under the old customary law, where its dramatic character would impress the memory of the witnesses. And the customs still existing in manors of symbolical transfer, as by a straw at Wintringham in Lincolnshire, or by a rod in some of the Norfolk manors, have probably the same origin. Tenants in Capite CHAPTER II. THE EVIDENCE OF DOMESDAY BOOK. THE question remains to what extent the land of England was held under one or other of these tenures. We fortunately have in Domesday Book an exhaustive enumeration of the classes into which the landowners and cultivators of England fell 20 years after the Conquest. The land was then held and tilled as follows1: 1. Greater Landowners Under Tenants II. Socage Tenants Sochmanni Dimidii Sochmanni. Liberi Homines Commendati Dimidii 224 |