Constitution of English nation from 7th to 11th century.

Appropriation of the soil.

General allotment probable.

The magth.

fresh attacks from Denmark. These now assumed the form of a regular war of conquest, conducted by the kings of a country which had at length been admitted within the civilising pale of Christendom, and whose people were no longer ferocious pirates, like their ancestors in the former invasions. The English Royal house was for a time supplanted by its Danish rival, but the polity of the Kingdom was not changed. The English still outnumbered their conquerors; and on the death of Harthaknut, in 1042, the ancient line of Cerdic1 regained the throne. With the exception of the reigns of Harold II. and the first four Norman kings, descendants of the house of Cerdic have occupied it ever since.

Before the Norman Conquest, the various Teutonic tribes had coalesced with one another and with the descendants of the Danish settlers, and had become fused into one nation. We have now to inquire what was the Constitution of the English nation from the seventh to the eleventh century; a constitution which survived the Norman Conquest, and which in all its essential principles-developed and adapted from time to time to meet the requirements of successive generations, but still the same has continued down to our own day.

Of the exact process by which the territory conquered by each of the invading tribes was divided amongst the colonists, we have no positive knowledge. Any statement on this point must therefore necessarily be hypothetical. But there can be little doubt that, as to a large portion of the land of each colony, a principle of allotment was generally adopted based upon the existing divisions of the host into companies, each consisting of a hundred warriors united by the tie of kinship. The allotment of land made to each hundred warriors would be sub-divided, according to the minor divisions of the kindred, into mægths, i.e., a greater or less number of settlers closely connected by the family tie. Certain portions of the land appropriated to the

1 [Hannis Taylor, Engl. Const., vol. i. p. 176, remarks, "As the fittest it survived."-ED.]

2 [Hannis Taylor, Eng. Const., i. p. 134, q. v., says: "A definite conclusion has now been reached as to the general nature of Teutonic conquest in Britain, and also as to the manner in which the invaders settled down upon the conquered soil. There can no longer be any doubt of the fact that the English kin' brought with them, and replanted at some stage of its development, the primitive system of landownership represented in the Fatherland by the village community of kindred cultivators called in the German muniments the mark, which developed in Britain into the 'kin' or township."-ED.]

3 "There were two groups of individuals in the Anglo-Saxon community to which the word family may be applied. The first and larger group, including the whole body of the kindred, is called in Anglo-Saxon the Magth or Mægburh. . . . The second and smaller group, including only the husband, his wife, and children, may be called the household."-Young, Essays in Anglo-Saxon Law. (Boston, 1876.) On the Mægburh, see further, Kemble, Saxons in England, i. 234.

separate magths were held in absolute ownership by the heads of families; other portions were both held and cultivated in common as the common property of the community.

the chiefs.

Besides the land thus divided among the simple freemen, Private esa further portion of the territory was retained by the chief of tates of the tribe as his private estate; and it is probable that the nobles also and leaders of subordinate rank either themselves appropriated, or received, grants of estates in severalty.

All the land which remained after satisfying these various Public lands. claimants was the common property of the whole colony--the Folkland. As the various tribal colonies or shires coalesced into kingdoms, and the Kingdom of Wessex absorbed the other kingdoms, and developed into the Kingdom of England, the Folkland of the shire became in turn the Folkland of the provincial kingdom and of the English nation.

Although tenure of land in common by local communities Absolute continued to subsist, and has left its traces in the common lands ownership in severalty of townships and manors of the present day, absolute ownership soon became in severalty, which had existed from the first, soon became the general the general rule.

During the pre-Norman period, therefore, the whole land of England may be broadly divided under the two great heads of (1) Public, or Folcland; and (2) Private or Bocland.

rule.

(1) Folcland, the land of the folk or people, was the common Folcland. property of the nation. It formed the main source of the State revenues, and could not be alienated without the consent of the national council. But it might be held by individuals, subject to such rents and services as the State, in its landowning capacity, should think fit to determine. While, however, it continued to be Folkland, its alienation was only temporary, and could not be in perpetuity; so that at the expiration of the term for which it had been granted it reverted to the nation. It was closely analogous to the ager publicus of the Romans, and its individual holders to the Roman possessores.

(2) Bocland1 was land held in full ownership, either as part Bookland. of an original allotment, or as having been subsequently severed from the Folkland, with the consent of the nation, and appropriated to individuals in perpetuity, subject merely to such burdens as the State, in its political as distinguished from its landowning capacity, might impose upon its members.

1 Bocland = land conveyed by book or charter, the usual mode after the introduction of writing. Though all land, on being granted in perpetuity, ceased to be Folcland, it was not strictly Bocland, unless conveyed in writing. Land thus held in absolute property has been called in different Teutonic dialects, edel, odal, or alod." ["Odal" or "pedel" is an ancient Norse word denoting landed property to which no other person may lay claim, as distinguished from Fe-odal" property lent": comp. the Odalbonden (peasants) in Sweden.-ED.]

The Folkland becomes terra regis.

Folkland, even when granted to individuals for a life or lives or other term in severalty, always retained certain marks of its public character in the burdens to which it was liable. Its possessors were bound to assist in the execution of various public works, including the repair of royal vills; and they might be called upon to entertain the king and great men in their progress through the country, and to furnish carriages and horses for their service. Bookland, on the contrary, was released from all public burdens, except the trinoda necessitas, or liability of its owners to military service and to a contribution for the repair of fortresses and bridges (fyrd, burh-bot, and brycge-bot). Bookland might be held for various estates or interests. It was generally alienable inter vivos, devisable by will, and transmissible by inheritance. It might be entailed or limited in descent, in which case the owner was deprived of the power of alienation. The king, like any of his subjects, had private estates of Bookland which did not merge in the Crown, and over which he exercised the same powers of disposition as a private individual.1 In the course of time much of the Folkland was converted into Bookland. Large grants were made to the Church, and also to individuals for specific purposes, as for the pay of the king's thegns (thegn-land), of the gerefa (gerefa-land, reve-land), or of the officers of the Royal household.

Both Folkland and Bookland might be leased out to free cultivators, in such quantities and on such terms as the holders pleased. When so leased out, it was termed lænland (land lent or leased).

As the regal office advanced in dignity and power, a tendency set in to substitute the King for the Nation as the owner of the national lands; the word Folkland gradually fell out of use, and was replaced by the term terra regis, or Crown-land. This tendency reached its climax after the Norman Conquest, when the whole land of the kingdom came to be regarded as the demesne land of the king, held of him by a feudal tenure.2

1 From the will of King Alfred (Cod. Diplom., ii. 112) it is evident that both he and his grandfather Egbert had the absolute disposal of their bocland. Allen (Royal Prerogative, p. 144) thus sums up the information on the land laws of the Anglo-Saxons contained in this interesting document: "It appears that Egbert, grandfather of Alfred, had settled his landed property on his male in preference to his female heirs; that Ethelwulf, father of Alfred, had bequeathed various estates to his younger children, and regulated, in certain contingencies how they should descend; that Alfred himself and two of his brothers had acquired landed property. in addition to the inheritance they received from their father; that their rights over their estates were settled and adjudged in the courts of law as if they had been private individuals; and lastly, that Alfred was empowered to make a new settlement of his lands by a decision of the witan in these words: 'It is now all thine own; bequeath it, give it, or sell it to kinsman or stranger, as it pleaseth thee best.'"

2 For a fuller descripton of Folkland and Bookland, see Allen, Royal Prerog.; 135 et seq.

divisions.

The unit of the territorial division was the tun, township or Territorial vicus, occupied by a body of allodial owners associated by the tie of local contiguity, and also as representing either the original A magth community of allottees, or the dependent settlers on the estate of the immigrant chief. Each township had its tungemit, or assembly of freemen, and a tun-gerefa as its head man or chief executive officer. The townships were grouped together The Towninto hundreds, or as they were called in the Anglian districts, ship. wapentakes. An aggregation of hundreds constituted the shire, and the union of shires made up the later Kingdom.

The hundred, or wapentake, a district answering to the pagus The Hunof Tacitus, probably has its origin in the primitive settlements, dred. varying in geographical extent, of each hundred warriors of the invading host. The term wapentake, which clearly has reference to the armed gathering of the freemen, points to the military origin of the hundred, like that of the hærred in the Scandinavian kingdoms.2 In England the names hundred and wapentake first appear in the laws of Edgar (A.D. 959-975) in connection with the police organisation of the kingdom. By this time the term hundred, originally denoting certain personal relations of the inhabitants of a district, had probably acquired its territorial signification as a subdivision of the shire or kingdom to which it belonged. It had its hundred-gemot, which took cognisance of Its organisaall matters, criminal and civil, arising within the hundred,

; and was attended by the thegns of the hundred and by the

man.

1 “The tun is originally the enclosure or hedge, whether of the single farm or of the enclosed village, as the burh is the fortified house of the powerful The corresponding word in the Norse is gardr, our garth or yard. The equivalent German termination is heim, our ham; the Danish form is by (Norse bú = German, bau)."—Stubbs, Const. Hist., i. 88. Cf. also the Flemish and Frisic hem and um.)

-a

2 The difficulty in determining the principle upon which the hundreds were established is increased by the fact that they are most numerous in some of the smaller shires. Kent contains 61, Sussex 65, Dorsetshire 34 hundreds; while Lancashire has only six. A probable explanation of this disproportion, and a further argument in favour of a military origin, may be derived from the fact that the small southern counties were the districts first conquered, and therefore the most densely populated by the new settlers. The county of Kent is divided into six lathes, of nearly equal size, having the jurisdiction of the hundreds in other shires. The lathe may be derived from the Jutish 'lething' (in modern Danish 'leding military levy). The singular division of Sussex into six rapes' (each of which is subdivided into hundreds), seems also to have been made for military purposes. The old Norse 'hreppr' denoted a nearly similar territorial division. (See Lappenberg, England under the Anglo-Saxons, by Thorpe, i. 96, 107.) Two counties, Yorkshire and Lincolnshire, were divided into Trithings or Thirds (which still subsist in Yorkshire under the corrupted name of Ridings), and these were subdivided generally_into_wapentakes. [Cf. Gneist, Hist. Eng. Const., p. 41, and footnote; Leg. Edward, c. 33, "Ewerwickshire, Nicolshyr, Notinghamshyr, Northamptonshire usque ad Watling strete sub lege Anglorum sunt. Eo quod Angli vocant hundredum, supradicta comitatus vocant wapertergium." Vide also Lappenberg, Geschichte von England (1834), i. p. 91.-ED.]

tion.

The Shire.

Organisation and Officers. The Ealdor

nian.

The Sheriff.

representative townreve and four men from each township. The chief executive officer was the hundred-man or hundredsealdor, who convened the hundred-gemot. He was generally, and at first always, elective; but as the personal gradually gave way to the territorial influence, he was in many places nominated by the thegn or other great man to whom the hundred belonged.

The division into shires (a word originally signifying merely a subdivision or share of any larger whole) is very ancient, but the period at which it arose is uncertain. We have evidence that in Wessex the division into shires existed as early as the end of the seventh century, long anterior to the time of Alfred, to whom their institution has been popularly attributed. In the laws of Ina [Ine 36, sec. 8], King of the West Saxons (cir. A.D. 690), provision is made for the case of a plaintiff failing to obtain justice from his scirman, or other judge; if an ealdorman compound a felony it is declared that he shall forfeit his scir and the defendant is forbidden secretly to withdraw from his lord into another scir. As Wessex gradually annexed the other kingdoms, these naturally fell into the rank of shires; or where they themselves had arisen from the union of several early settlements, were split up into several shires on the lines of the old tribal divisions.1

The government of the shire was administered concurrently by an ealdorman, and the scir-gerefa, or sheriff. The ealdorman (the princeps of Tacitus and the comes of the Normans) was originally elected in the general assembly of the nation; but there was a constant and increasing tendency to make the office hereditary in certain great families. On the annexation of an under-kingdom, the ealdormanship usually became hereditary in the old royal house; but in all cases, down to the Norman Conquest, the consent of the king and Witan was required at each devolution of the office. Sometimes several shires were administered by one ealdorman, but this arrangement did not involve an amalgamation of the separate organisations of each shire. The sheriff (or as he was termed after the Norman Conquest, vice-comes-a title apt to obscure his independence of the ealdorman) was the special representative of the regal or 1 On the various origins of the different historical shires or counties, see Palgrave, Commonwealth, p. 116; and Stubbs, Const. Hist., i. 124-125, who The constitutional machinery of the shire represents either the national organisation of the several divisions created by West Saxon Conquest; or that of the early settlements which united in the Mercian Kingdom, as it advanced westward; or the rearrangement by the West Saxon dynasty of the whole of England on the principles already at work in its own shires." Henry Adams, Essays in Anglo-Saxon Law, p. 19 (quoted by Hannis Taylor), arrives at the same conclusion that: "the state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hundredth of the tenth."-ED.]

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