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$Title{History Of Europe During The Middle Ages
Notes To Book VIII: Part V}
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$Author{Hallam, Henry}
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$Subject{folcland
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Notes To Book VIII: Part V
Note IX

     The nature of both tenures has been perspicuously illustrated by Mr.
Allen, in his Inquiry into the Rise and Growth of the Royal Prerogative, from
which I shall make a long extract.

     "The distribution of landed property in England by the Anglo-Saxons
appears to have been regulated on the same principles that directed their
brethren on the continent.  Part of the lands they acquired was converted into
estates of inheritance for individuals; part remained the property of the
public, and was left to the disposal of the state.  The former was called
bocland; the latter I apprehend to have been that description of landed
property which was known by the name of folcland.

     "Folcland, as the word imports, was the land of the folk or people. It
was the property of the community.  It might be occupied in common, or
possessed in severalty; and, in the latter case, it was probably parcelled out
to individuals in the folcgemot, or court of the district, and the grant
attested by the freemen who were then present.  But, while it continued to be
folcland, it could not be alienated in perpetuity; and, therefore, on the
expiration of the term for which it had been granted, it reverted to the
community, and was again distributed by the same authority. ^a

[Footnote a: Spelman describes folcland as terra popularis, quae jure communi
possidetur - sine scripto.  Gloss.  Folcland.  In another place he
distinguishes it accurately from bocland.  Praedia Saxones duplici titulo
possidebant: vel scripti auctoritate, quod bocland vocabant - vel populi
testimonio, quod folcland dixere.  Ib.  Bocland.]

     "Bocland was held by book or charter.  It was land that had been severed
by an act of government from the folcland, and converted into an estate of
perpetual inheritance.  It might belong to the church, to the king, or to a
subject.  It might be alienable and devisable at the will of the proprietor.
It might be limited in its descent without any power of alienation in the
possessor.  It was often granted for a single life, or for more lives than
one, with remainder in perpetuity to the church.  It was forfeited for various
delinquencies to the state.

     "Estates in perpetuity were usually created by charter after the
introduction of writing, and, on that account, bocland and land of inheritance
are often used as synonymous expressions.  But at an earlier period they were
conferred by the delivery of a staff, a spear, an arrow, a drinking-horn, the
branch of a tree, or a piece of turf; and when the donation was in favor of
the church, these symbolical representations of the grant were deposited with
solemnity on the altar; nor was this practice entirely laid aside after the
introduction of title-deeds. There are instances of it as late as the time of
the Conqueror.  It is not, therefore, quite correct to say that all the lands
of the Anglo-Saxons were either folcland or bocland.  When land was granted in
perpetuity it ceased to be folcland; but it could not with propriety be termed
bocland, unless it was conveyed by a written instrument.

     "Folcland was subject to many burdens and exactions from which bocland
was exempt.  The possessors of folcland were bound to assist in the reparation
of royal vills and in other public works.  They were liable to have travellers
and others quartered on them for subsistence.  They were required to give
hospitality to kings and great men in their progresses through the country, to
furnish them with carriages and relays of horses, and to extend the same
assistance to their messengers, followers, and servants, and even to the
persons who had charge of their hawks, horses, and hounds.  Such at least are
the burdens from which lands are liberated when converted by charter into
bocland.

     "Bocland was liable to none of these exactions.  It was released from all
services to the public, with the exception of contributing to military
expeditions, and to the reparation of castles and bridges.  These duties or
services were comprised in the phrase of trinoda necessitas, which were said
to be incumbent on all persons, so that none could be excused from them.  The
church indeed contrived, in some cases, to obtain an exemption from them; but
in general its lands, like those of others, were subject to them.  Some of the
charters granting to the possessions of the church an exemption from all
services whatsoever were genuine; but the greater part are forgeries." (P.
142.)

     Bocland, we perceive by this extract, was not necessarily allodial, in
the sense of absolute propriety.  It might be granted for lives, as was often
the case; and then it seems to have been called laen-land (praestita), lent or
leased.  (Palgrave, ii. 361.) Such land, however, was not feudal, as I
conceive, if we use that word in its legitimate European sense; though lehn is
the only German word for a fief.  Mr. Allen has found no traces of this use of
the word among the Anglo-Saxons.  (Appendix, p. 57.) Sir F. Palgrave agrees in
general with Mr. Allen. ^b

[Footnote b: The law of real property, or bocland, in the Anglo-Saxon period,
is given in a few page, equally succinct and luminous, by Mr. Spence.  Equit.
Jurisd. pp. 20-25.  The Codex Diplomaticus furnishes the best ancient
precedents, and is of course studied, to the disregard, where necessary, of
more defective authorities, by those who regard this portion of legal
history.]

     We find another great living authority on Anglo-Saxon and Teutonic law
concurring in the same luminous solution of this long-disputed problem. "The
natural origin of folcland is the superabundance of good land above what was
at once appropriated by the tribes, families, or gentes (maegburg, gelondan),
who first settled in a waste or conquered land; but its existence enters into
and modifies the system of law, and on it depends the definition of the march
and the gau with their boundaries.  Over the folcland at first the king alone
had no control; it must have been apportioned by the nation in its solemn
meeting; earlier, by the shire or other collection of freemen.  In Beowulf,
the king determines to build a palace, and distribute in it to his comites
such gold, silver, arms, and other valuables as God had given him, save the
folcsceare and the lives of men - 'butan folcsceare and feorum gumena' - which
he had no authority to dispose of.  This relative position of folcland to
bocland is not confined to the Anglo-Saxon institutions.  The Frisians, a race
from whom we took more than has generally been recognized, had the same
distinction.  At the same time I differ from Grimm, who seems to consider
folcland as the pure alod, bocland as the fief.  'Folcland in Gegensatz zu
beneficium.  Leges Edv. II.; das ist, reine alod, im Gegensatz zu beneficium,
Lehen.  Vgl. das Friesische caplond und bocland.  As. p. 15.' (D. R. A. p.
463.) I think the reverse is the case; and indeed we have one instance where a
king exchanged a certain portion of folcland for an equal portion of bocland
with one of his comites.  He then gave the exchanged folcland all the
privileges of bocland, and proceeded to make the bocland he had received in
exchange folcland." (Kemble's Codex Diplomaticus, i. p. 104.)

     It is of importance to mention that Mr. K., when he wrote this passage,
had not seen Mr. Allen's work; so that the independent concurrence of two such
antiquaries in the same theory lends it very great support.  In the second
volume of the Codex Diplomaticus the editor adduces fresh evidence as to the
nature of folcland, "the terra fiscalis, or public land grantable by the king
or his council, as the representatives of the nation." (P. 9.) Mr. Thorpe, in
the glossary to his edition of "Ancient Laws" (v. Folcland), quotes part of
the same extract from Allen which I have given, and, making no remark, must be
understood to concur in it. Thus we may consider this interpretation in
possession of the field. ^c

[Footnote c: It seems to be a necessary inference from the evidence of
Domesday Book that all England has been converted into bocland before the
Conquest, with the exception of the terra regis, if that were truly the
representative of ancient folcland, as Allen supposes.]

     The word folcland fell by degrees into disuse, and gave place to the term
terra regis, or crown-land.  (Allen, p. 160.) This indicates the growth of a
monarchical theory which reached its climax, in this application of it, after
the Conquest, when the entire land of England was supposed to have been the
demesne land of the king, held under him by a feudal tenure.

Note X

     "Amongst the prerogatives of the crown, the Conqueror and many of his
successors appear to have assumed the power of making laws to a certain
extent, without the authority of their greater council, especially when
operating only in restraint of the king's prerogative, for the benefit of his
subjects, or explaining, amending, or adding to the existing law of the land,
as administered between subject and subject; and this prerogative was commonly
exercised with the advice of the king's ordinary or select council, though
frequently the edict was expressed in the king's name alone.  But as far as
can be judged from existing documents or from history, it was generally
conceived that beyond these limits the consent of a larger assembly, of that
which was deemed the 'Commune concilium regni,' was in strictness necessary;
though sometimes the monarch on the throne ventured to stretch his prerogative
further, even to the imposition of taxes to answer his necessities, without
the common consent; and the great struggles between the kings of England and
their people have generally been produced by such stretches of the royal
prerogative, till at length it has been established that no legislative act
can be done without the concurrence of that assembly, now emphatically called
the king's parliament." (Report of Lord's Committee on the Dignity of a Peer,
p. 22, edit. 1819.)

     "It appears," says the committee afterwards, "from all the charters taken
together, that during the reigns of William Rufus, his brother Henry, and
Stephen, many things had been done contrary to law; but that there did exist
some legal constitution of government, of which a legislative council (for
some purposes at least) formed a part; and particularly that all impositions
and exactions by the mere authority of the crown, not warranted by the
existing law, were reprobated as infringements of the just rights of the
subjects of the realm, though the existing law left a large portion of the
king's subjects liable to tallage imposed at the will of the crown; and the
tenants of the mesne lords were in many cases exposed to similar exaction."
(P. 42.)

     These passages appeared to Mr. Allen so inadequate a representation of
the Anglo-Norman constitution, that he commented upon the ignorance of the
committee with no slight severity in the Edinburgh Review.  The principal
charges against the Report in this respect are, that the committee have
confounded the ordinary or select council of the king with the commune
concilium, and supposed that the former alone was intended by historians as
the advisers of the crown in its prerogative of altering the law of the land,
when, in fact, the great council of the national aristocracy is clearly
pointed out; and that they have disregarded a great deal of historical
testimony to the political importance of the latter.  It appears to be clearly
shown, from the Saxon Chronicle and other writers, that assemblies of bishops
and nobles, sometimes very large, were held by custom, "de more," three times
in the year, by William the Conqueror and by both his sons; that they were,
however, gradually intermitted by Henry I., and ceased early in the reign of
Stephen.  In these councils, which were legislative so far as new statutes
were ever required, a matter of somewhat rare occurrence, but more frequently
rendering their advice on measures to be adopted, or their judgment in
criminal charges against men of high rank, and even in civil litigation, we
have, at least in theory, the acknowledged limitations of royal authority.  I
refer the reader to this article in the Edinburgh Review (vol. xxxv.), to
which we must generally assent; observing, however, that the committee, though
in all probability mistaken in ascribing proceedings of the Norman sovereigns
to the advise of a select council, which really emanated from one much larger,
did not call in question, but positively assert, the constitutional necessity
of the latter for general taxation, and perhaps for legislative enactments of
an important kind.  And, when we consider the improbability that "all the
great men over all England, archbishops and bishops, abbots and earls, thanes
and knights," as the Saxon chronicler pretends, could have been regularly
present thrice a year, at Winchester, Westminster, and Gloucester, when
William, as he informs us, "wore his crown," we may well suspect that, in the
ordinary exercise of his prerogative, and even in such provisions as might
appear to him necessary, he did not wait for a very full assembly of his
tenants in chief.  The main question is, whether this council of advice and
assent was altogether of his own nomination, and this we may confidently deny.

     The custom of the Anglo-Saxon kings had been to hold meetings of their
witan very frequently, at least in the regular course of their government. And
this was also the rule in the grand fiefs of France.  The pomp of their court,
the maintenance of loyal respect, the power of keeping a vigilant eye over the
behavior of the chief men, were sufficient motives for the Norman kings to
preserve this custom; and the nobility of course saw in it the security of
their privileges as well as the exhibition of their importance.  Hence we find
that William and his sons held their courts de more, as a regular usage, three
times a year, and generally at the great festivals, and in different parts of
the kingdom.  Instances are collected by the Edinburgh Reviewer (vol. xxxv. p.
5).  And here the public business was transacted; though, if these meetings
were so frequent, it is probable that for the most part they passed off in a
banquet or a tournament.

     The Lords' Committee, in notes on the Second Report, when reprinted in
1829, do not acquiesce in the positions of their hardy critic, to whom,
without direct mention, they manifestly allude.  "From the relations of
annalists and historians," they observe, "it has been inferred that during the
reign of the Conqueror, and during a long course of time from the Conquest,
the archbishops, bishops, abbots and priors, earls and barons of the realm
were regularly convened three times in every year, at three different and
distinct places in the kingdom, to a general council of the realm.
Considering the state of the country, and the habits and dispositions of the
people, this seems highly improbable; especially if the word barones, or the
words proceres or magnates, often used by writers in describing such
assemblies, were intended to include all the persons holding immediately of
the crown, who, according to the charter of John, were required to be summoned
to constitute the great council of the realm, for the purpose of granting aids
to the crown." (P. 449.) But it is not necessary to suppose this; those might
have attended who lived near, or who were specially summoned.  The committee
argue on the supposition that all tenants in chief must have attended thrice a
year, which no one probably ever asserted.  But that William and his sons did
hold public meetings, de more, at three several places in every year, or at
least very frequently, cannot be controverted without denying what respected
historical testimonies affirm; and the language of these early writers
intimates that they were numerously attended.  Aids were not regularly
granted, and laws much more rarely enacted in them; but they might still be a
national council.  But the constituent parts of such councils will be
discussed in a subsequent note.

     It is to be here remarked that, with the exception of the charters
granted by William, Henry, and Stephen, which are in general rather like
confirmations of existing privileges than novel enactments, though some
clauses appear to be of the latter kind, little authentic evidence can be
found of any legislative proceedings from the Conquest to the reign of Henry
II.  The laws of the Conqueror, which we find in Ingulfus, do not come within
this category; they are a confirmation of English usages, granted by William
to his subjects.  "Cez sunt les leis et les custumes que li reis William
grantad el pople de Engleterre apres le conquest de la terre.  Iceles mesmes
que li reis Edward sun cusin tint devant lui." These, published by Gale
(Script. Rer. Anglic. vol. i.), and more accurately than before from the
Holkham manuscript by Sir Francis Palgrave, have sometimes passed for genuine.
The real original, however, is the Latin text, first published by him with the
French.  (Eng. Commonw. vol. ii. p. 89.) The French translation he refers to
the early part of the reign of Henry III. At the time when Ingulfus is
supposed to have lived, soon after the Conquest, no laws, as Sir F. Palgrave
justly observes, were written in French, and he might have added that we
cannot produce any other specimen of the language which is certainly of that
age.  (See Quarterly Review, xxxiv. 260.) It is said in the charter of Henry
I. that the laws of Edward were renewed by William with the same emendation.

     But the changes introduced by William in the tenure of land were so
momentous that the most cautious inquirers have been induced to presume some
degree of common consent by those whom they so much affected.  "There seems to
be evidence to show that the great change in the tenure of land, and
particularly the very extensive introduction of tenure by knight-service, was
made by the consent of those principally interested in the land charged with
the burdens of that tenure; and that the general changes made in the Saxon
laws by the Conqueror, forming of the two one people, was also effected by
common consent; namely, in the language of the charter of William with respect
to the tenures, 'per commune concilium tocius regni,' and with respect to
both, as expressed in the charter of his son Henry, 'concilio baronum'; though
it is far from clear who were the persons intended to be so described."
(Report of Lords' Committee, p. 50.)

     The separation of the civil and ecclesiastical jurisdictions was another
great innovation in the reign of the Conqueror.  This the Lords' Committee
incline to refer to his sole authority.  But Allen has shown by a writ of
William addressed to the Bishop of Lincoln that it was done "communi concilio,
et concilio archiepiscoporum meorum, et caeterorum episcoporum et abbatum, et
omnium principum regni mei." (Edinb. Rev. p. 15.) And the Domesday survey was
determined upon, after a consultation of William with his great council at
Gloucester, in 1084.  This would of course be reckoned a legislative measure
in the present day; but it might not pass for more than a temporary ordinance.
The only laws under Henry I., except his charter, of which any account remains
in history (there are none on record), fall under the same description.

     The Constitutions of Clarendon, in 1164, are certainly a regular statute;
whoever might be the consenting parties, a subject to be presently discussed,
these famous provisions were enacted in the great council of the nation.  This
is equally true of the Assizes of Northampton, in 1178.  But the earliest
Anglo-Norman law which is extant in a regular form is the assize made at
Clarendon for the preservation of the peace, probably between 1165 and 1176.
This remarkable statute, "quam dominus rex Henricus, consilio archiepiscoporum
et episcoporum et abbatum, caeterorumque baronum suorum constituit," was first
published by Sir F. Palgrave from a manuscript in the British Museum.  (Engl.
Commonw. i. 257; ii. 168.) In other instances the royal prerogative may
perhaps have been held sufficient for innovations which, after the
constitution became settled, would have required the sanction of the whole
legislature.  No act of parliament is known to have been made under Richard
I.; but an ordinance, setting the assize of bread, in the fifth of John, is
recited to be established "communi concilio baronum nostrorum." Whether these
words afford sufficient ground for believing that the assize was set in a full
council of the realm, may possibly be doubtful.  The committee incline to the
affirmative, and remark that a general proclamation to the same effect is
mentioned in history, but merely as proceeding from the king, so that "the
omission of the words 'communi concilio baronum' in the proclamation mentioned
by the historian, though appearing in the ordinance, tends also to show that,
though similar words may not be found in other similar documents, the absence
of those words ought not to lead to a certain conclusion that the act done had
not the authority of the same common council." (P. 84.)

Note XI

     This charter has been introduced into the new edition of Rymer's Foedera,
and heads that collection.  The Committee of the Lords on the Dignity of a
Peer, in their Second Report, have the following observations: - "The printed
copy is taken from the Red Book of the Exchequer, a document which has long
been admitted in the Court of Exchequer as evidence of authority for certain
purposes; but no trace has been hitherto found of the original charter of
William, though the insertion of a copy in a book in the custody of the king's
Exchequer, resorted to by the judges of that court for other purposes, seems
to afford reasonable ground for supposing that such a charter was issued, and
that the copy so preserved is probably correct, or nearly correct.  The copy
in the Red Book is without date, and no circumstance tending to show its true
date has occurred to the committee; but it may be collected from its contents
that it was probably issued in the latter part of that king's reign; about
which time it appears from history that he confirmed to his subjects in
England the ancient Saxon laws, with alterations." (P. 28.)

     I once thought, and have said, that this charter seems to comprehend
merely the feudal tenants of the crown.  This may be true of one clause; but
it is impossible to construe "omnes liberi homines totius monarchiae" in so
contracted a sense.  The committee indeed observe that many of the king's
tenants were long after subject to tallage.  But I do not suppose these to
have been included in "liberi homines." The charter involves a promise of the
crown to abstain from exactions frequent in the Conqueror's reign, and falling
on mesne tenants and others not liable to arbitrary taxation.

     This charter contains a clause - "Hoc quoque praecipimus ut omnes habeant
et teneant legem Edwardi Regis in omnibus rebus adjunctis his quae
constituimus ad ultilitatem Anglorum." And as there is apparent reference to
these words in the charter of Henry I. - "Legem Edwardi Regis vobis reddo cum
illis emendationibus quibus pater meus eam emendavit consilio baronum suorum"
- the committee are sufficiently moderate in calling this "a clause, tending
to give in some degree authenticity to the copy of the charter of William the
Conqueror inserted in the Red Book of the Exchequer." (P. 39.) This charter
seems to be fully established: it deserves to be accounted the first remedial
concession by the crown; for it indicates, especially taken in connection with
public history, an arbitrary exercise of royal power which neither the new nor
the old subjects of the English monarchy reckoned lawful.  It is also the
earliest recognition of the Anglo-Saxon laws, such as they subsisted under the
Confessor, and a proof both that the English were now endeavoring to raise
their heads from servitude, and that the Normans had discovered some
immunities from taxation, or some securities from absolute power, among the
conquered people, in which they desired to participate.  It is deserving of
remark that the distinction of personal law, which, indeed, had almost expired
on the continent, was never observed in England; at least, we have no evidence
of it, and the contrary is almost demonstrable.  The conquerors fell at once
into the laws of the conquered, and this continued for more than a century.

     The charter of William, like many others, was more ample than effectual.
"The committee have found no document to show, nor does it appear probable
from any relation in history, that William ever obtained any general aid from
his subjects by grant of a legislative assembly; though according to history,
even after the charter before mentioned, he extorted great sums from
individuals by various means and under various pretences.  Towards the close
of his reign, when he had exacted, as stated by the editor of the first part
of the Annals called the Annals of Waverley, the oath of fealty from the
principal landholders of every description, the same historian adds that
William passed into Normandy, 'adquisitis magnis thesauris ab hominibus suis,
super quos aliquam causam invenire poterat, sive juste sive inique' (words
which import exaction and not grant), and he died the year following in
Normandy." (P. 35.)

     The deeply learned reviewer of this Report has shown that the Annals of
Waverley are of very little authority, and merely in this part a translation
from the Saxon Chronicle.  But the translation of the passage quoted by the
committee is correct; and it was perhaps rather hypercritical to cavil at
their phrase that William obtained this money "by exaction and not by grant."
They never meant that he imposed a general tax.  That it was not by grant is
all that their purpose required; the passage which they quote shows that it
was under some pretext, and often an unjust one, which is not very unlike
exaction.

     It is highly probable that, in promising this immunity from unjust
exactions, William did not intend to abolish the ancient tax of Danegelt, or
to demand the consent of his great council when it was thought necessary to
impose it.  We read in the Saxon Chronicle that the king in 1083 exacted a
heavy tribute all over England, that is, seventy-two pence for each hyde. This
looks like a Danegelt.  The rumor of invasion from Denmark is set down by the
chronicler under the year 1085; but probably William had reason to be
prepared.  He may have had the consent of his great council in this instance.
But as the tax had formerly been perpetual, so that it was a relaxation in
favor of the subject to reserve it for an emergency, we may think it more
likely that this imposition was within his prerogative; that he, in other
words, was sole judge of the danger that required it.  It was, however, in
truth, a heavy tribute, being six shillings for every hyde, in many cases, as
we see by Domesday, no small proportion of the annual value, and would have
been a grievous burden as an annual payment.