also, to keep in mind that “the companions of William, in whom many people see nothing but the spoilers of the wealth of the Anglo-Saxons, in more than one way renewed the face of England. We must not forget that most of them were great agriculturists.” 1 1. Ibid., p. 251. 29 II. FOLKLAND. WAS THERE A "PUBLIC LAND " AMONG THE Mistake of Allen 66 FOLLOWING Allen,1 and along with all the scholars who have dealt with this question after Allen,2 up to but excluding Mr. Vinogradoff, Stubbs in the earlier editions of his book, gave to the Anglo-Saxon expression folk-land the meaning of land of the people," ager publicus, and expounded a whole theory of this alleged institution. In 1893, Mr. Vinogradoff showed decisively that Allen was mistaken.3 To this conclusive refutation Mr. Maitland, in 1897, added new arguments; he adopted, reproduced and completed it in a chapter of his Domesday Book and Beyond. Stubbs Stubbs was evidently acquainted with the works of these two great jurists, although he does not expressly Attitude of quote them; in the last edition of his Constitutional History he alludes to the new explanation of the word folkland, given by "legal antiquaries," and has even obviously altered some passages of his work, in which he spoke incidentally of 1. John Allen, Inquiry into the rise and progress of the royal prerogative in England, 1830; 2nd ed., 1849, pp. 125–153. 2. Kemble, Freeman, Thorpe, Lodge, Pollock, Gneist, Waitz, Sohm, Brunner, etc. 3. P. Vinogradoff, Folkland in English Historical Review, viii, 1893, pp. 1–17. Čf. Stubbs' somewhat ambiguous note (Const. Hist., i, p. 81). See also Vinogradoff, The Growth of the Manor, 1905, pp. 142-143 and 244-245. 4. Book-land and Folk-land, in Domesday Book and Beyond, pp. 244– 258. 5. Stubbs, i, p. 81, note 2. 66 folkland. But his readers may ask themselves whether he accepts the opinion of Professors Vinogradoff and Maitland or no even as regards the meaning of the word. For, in several other passages, he lets the older interpretation of Allen 2 stand; elsewhere he tells us that the change of learned opinion as to the meaning of folkland involves certain alterations in the terminology, but does not seem to militate against the idea of the public land;" 3 and he maintains his theory on the Anglo-Saxon ager publicus, when in reality it is impossible to admit its existence, if we adopt the conclusions of Mr. Vinogradoff on the meaning of the word folkland, as we are bound to do. An extraordinary confusion results from this hesitation of Stubbs, which, in view of the great and legitimate authority of the Constitutional History, will contribute to uphold a view of whose erroneousness there can be no doubt.4 It is important to warn readers of Stubbs that : (1) folkland does not mean public land; (2) that there was not in Anglo-Saxon England any "public land " distinct from the royal demesne. The term folkland is to be found in three texts only; a law and two charters. According to a law of Edward the Elder (900--924?) it appears that all suits concerning landed property might be classed in two categories: suits regarding folkland, and suits regarding bookland. One of the Use of the word folkland 1. Compare especially the editions of 1891 and 1903 in §§ 54 (p. 144) and 75 (p. 209). 2. See in the edition of 1903, the unfortunate use of the word folkland on pages 100, 118, 131, 138 and above all on page 202. This use is in contradiction with the previous explanation of the term in note 2 on p. 81. It is evident that Stubbs would have substituted public land for folkland, if these passages had not escaped him in his revision. 3. Ibid., i, p. 83, note 2. 4. The old mistake about folkland is reproduced in Mr. Ballard's recent book, Domesday Boroughs, 1904, p. 124. 5. Edward, I, 2, in Liebermann, Gesetze der Angelsachsen, I, pp. 140 141. two charters is a charter of exchange, granted by King Ethelbert in 858; it is in Latin; in the text there is no mention of folkland, but a note in Anglo-Saxon on the back of the document indicates that the king has converted into folkland a piece of land which he has received in exchange for another. The third document is the will of the ealdorman Alfred, a document from the last third of the ninth century; it deals with a piece of land which is folkland and which the ealdorman wished to pass on to his son (according to all appearances an illegitimate son). He recognises that his son cannot enter into possession of this land unless the king consents.2 In these three documents folkland is opposed, not to private property, but to bookland, that is to say, land held by charter. All sorts of difficulties begin to appear if we understand by folkland the "land of the people," and, as Mr. Vinogradoff has ingeniously shown, the scholars who have followed Allen's interpretation have made additions to it, in order to maintain it intact, by which it has been rendered, really, more and more unacceptable. These difficulties vanish and the three texts become as clear as possible if we return to the explanation of the word folkland proposed in the "Folkland" opposed to "bookland" and signifies land held by custom seventeenth century by Spelman. Folkland signifies not the land of the people, public land, but the land held by popular custom, by folk-right. Bookland is the land held under franchises formally expressed in a charter, a book: under the influence of the Church and in consequence of the laws enacted by the king and the witenagemot, this more recent kind of property escaped old usages, and he who held it might dispose of it at his will, whilst folkland, at least in principle, was inalienable. It becomes clear to us that the law of 1. Kemble, Codex diplomaticus aevi Saxonici, ii, pp. 64-66, No. 281. 2. Ibidem, p. 120, No. 317. 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.) |