The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0093/00931.txt

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$Title{History Of Europe During The Middle Ages
Notes To Book VIII: Part V}
$Subtitle{}
$Author{Hallam, Henry}
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$Subject{folcland
william
bocland
charter
council
committee
land
laws
might
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$Date{}
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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