Edward the Elder classifies every kind of property under the two rubrics of land held by custom and land held by a charter,1 that King Ethelbert is converting a newlyacquired estate into folkland, inalienable property; that the consent of the king is necessary for the transmission to a bastard of folkland, a family estate subject to customary restrictions.

Stubbs maintains that there

was a public land

Thus folkland does not mean "public land." Stubbs gives his adhesion to this view a little unwillingly, it would seem,2 in the passages he has carefully revised and corrected. But he maintains that there existed, at least until the end of the period of the Heptarchy, 3 a public land belonging to the people and distinct from the royal demesne. It was "the whole area, which was not at the original allotment assigned either to individuals or to communities. . . . It constituted the standing treasury of the country; no alienation of any part of it could be made without the consent of the national council. Estates for life were created out of the public land . . . the beneficiary could express a

1. The classification of the law of Edward, which recognises only folkland and bookland, oththe on bóclande oththe on folclande, would be incomplete and surprisingly erroneous, if folkland signified "land of the people." It would leave out of account family property transmitted hereditarily, as distinguished from holdings burdened with services; yet such property certainly existed then. It is doubtless this difficulty which has led certain defenders of Allen's thesis to suppose, without a shadow of proof, that the hereditary family estate had disappeared at an early date. There was another difficulty: this land, had existed in any case; was it not strange that no term denoting it specially was to be found in the Anglo-Saxon texts? This objection had already struck Kemble. As they did not realise that family landed property was called in AngloSaxon folkland, they sought for a name for it. Hence the terms ethel (invented by Kemble), yrfeland (invented by Pollock), to which Stubbs has made the mistake of giving currency. (See Const. Hist., p. 81, note 2; compare, however, p. 80, note 1, restriction of the word ethel.) These appellations are not and cannot be founded on the authorities, for the good reason that the word denoting this kind of property was folkland. 2. In note 3 of vol. i, p. 81, Stubbs appears to hesitate and speaks of the "much contested term folkland."

3. "The public land," Stubbs supposes, was becoming virtually king's

land from the moment the West-Saxon monarch became sole ruler of the English." (op. cit. p. 212, cf. p. 100.)

wish concerning their destination in his will, but an express act of the king and the witan was necessary to give legal force to such a disposition. . The tribute derived from what remained of the public land and the revenue of the royal demesne sufficed for the greater part of the expenses of the royal house, etc." 1

On what authorities is this theory founded? Stubbs, usually so precise, does not quote his authorities in his notes, speaks vaguely of "charters." It is easy to see that, whilst appearing to accept the interpretation of the word folkland which Mr. Vinogradoff rediscovered in Spelman, Stubbs retains a historical theory founded principally on the three texts of which we have just been speaking and on the erroneous explanation of the word folkland. His expression, quoted above, respecting the possessor of an estate in public land, who expresses a desire in his will with regard to the destination of that estate, is founded solely on the will of ealdorman Alfred; 2 now, as we have seen, Alfred expresses a wish relative to his folkland, which as a matter of fact is a family estate, and not a portion of ager publicus.

Letter from

It has been claimed, it is true, that other documents in which the term folkland is not used, attest the existence of an Anglo-Saxon ager publicus. Mr. shown how Bede to Egbert Vinogradoff has clearly unjustifiable such an interpretation is. The most celebrated of these documents is a letter of Bede to Egbert: the pseudo-monasteries of his time had caused so many estates, tot loca, to be given to them, that there did not remain enough to endow the sons of the nobles and warriors, ut omnino desit locus ubi filii nobilium aut emeritorum militum possessionem accipere possint. Stubbs concludes from this that "the sons of

1. See especially Const. Hist., i, pp. 82-83, 202-203, 212. See also pp. 118, 127, note 4, 131, 138, 159, 302, etc.

2. It may be noted too that, in the document, there is mention of the consent of the king, but the witan are not referred to.

C

the nobles and the warriors who had earned their rest looked for at least a life estate out of the public land.1 Who can fail to see that this translation of the words loca, locus, has arisen from a preconceived idea? It is perfectly allowable to suppose that the grants of which Bede speaks were made from the royal demesne. In England, as in France, men complained of the alienations from the royal demesne, or at least of the manner in which they were effected. That is all that Bede's letter. proves.

It was doubtless with a view to restraining the imprudence of which Bede speaks that in the following

Consent of Witenagemot to alienations of land

century the witan intervened in matters of alienation of the demesne. The consent of the Witenagemot to alienations of land is an incontestable and interesting fact, but it has not the significance Stubbs attributes to it. We must begin by remarking with Mr. Maitland that this consent is at first very seldom expressed,-four times only in charters anterior to 750; it becomes habitual in the ninth century, then falls into desuetude, and from about 900 or 925 onwards is replaced by the mere mention of the confirmation by witnesses.2 Again, there is no reason to attach a very special importance to the intervention of the witan in cases of alienation, since they dealt with all kinds of business; their very extensive political rôle is one of the characteristic features of Anglo-Saxon institutions. Finally, the mention we have of the consent of the witan in no wise confers more probability on the theory that there existed a public land distinct from the royal demesne. In the often quoted charter of 858 the land which Ethelbert alienates with the consent of his witan is called terra juris mei. We have no document in

1. op. cit. p. 171. The passage in Bede [ed. Plummer, i, 415] is quoted in note (2).

2. Cf. Stubbs, Const. Hist., i, p. 212.

which the land the alienation of which the witan confirm or revoke appears as a part of the ager publicus.

Thus there is no ground for distinguishing between public land and royal demesne. The Anglo-Saxon kings had evidently in that respect ideas as vague and blurred in outline as our Merovingians, and it would be very singular if they had established a distinction between two things so difficult not to confound.

Stubbs' theory about Anglo-Saxon public land is therefore a weak part of his work. He was often enough unfortunate when he founded general theories on the work of others. But he was a scholar of incomparable perspicacity and sobriety when he studied the sources himself; this was most frequently the case, and it is for that reason that his book maintains its position.

36

III.

TWELFHYND-MAN AND TWYHYND-MAN.

A NEW THEORY RESPECTING FAMILY SOLIDARITY AMONG THE ANGLO-SAXONS.

Usual

ACCORDING to the usual interpretation which has been adopted by Stubbs,1 the twelfhynd-man is the man who has a wergild of 1,200 shillings, and the interpretation twyhynd-man is the simple ceorl, who has a wergild of one-sixth of that amount. Similarly the oath of the twelfhynd-man, in a court of justice, is worth six times that of the ceorl. The intermediate class of sixhynd-men possessed a wergild of 600 shillings. Hynd, hynden is hund, a hundred. Twelfhynd-man ought to be translated man of twelve hundreds, twyhyndman by man of two hundreds, etc.

of Mr. Seebohm

In a fairly recent book, which is moreover a work of absorbing interest, Mr. F. Seebohm proposes an entirely different explanation, which serves him as Interpretation the foundation of his theory as to the importance of family solidarity in the formation of Anglo-Saxon society. According to him the term hynden, which we find in the 54th chapter of the laws of King Ini or Ine, has no numerical significance, and denotes the compurgators who support with their oath a kinsman accused of murder. The judicial oath of full value, which can aid a man most effectively to purge himself of an accusation, is the oath taken by the twelve oath-helpers of his kindred, having each a complete family. In primitive times a great number of relatives is an unquestionable advantage.

1. Const. Hist. i, pp. 128 note 4, 175, 178.

2. Tribal Custom in Anglo-Saxon law, 1902, pp. 406 sqq.,

499 sqq.