THE ANGLO-SAXON LAND LAW.

HARDLY any branch of early Teutonic law is more obscure than that which forms the subject of this essay. Modern investigation has been comparatively slight, and, on the whole, unsatisfactory. This does not arise entirely from a lack of material. The codes, it is true, are but meagre in all that relates to the ownership of land; but the charters of the Anglo-Saxon period are numerous, and rich in detail. It is this very abundance of detail which has proved the chief stumbling-block to scholars of the present day. The intricacy and confusion in the grants, wills, settlements, and the like, are, in a measure, to blame for the faulty methods of treatment, which thus far have only brought out a few of the most prominent features of the subject. The land law of the Anglo-Saxons, like all their other law, is based on a few simple and fundamental conceptions. The extreme clumsiness of the Anglo-Saxon mind is apparent to any one who has closely studied their early legal history; and this mental awkwardness led them to cling to their primitive ideas, with a tenacity unequalled, except among the Scandinavian races, by the kindred continental tribes. Another effect of these intellectual qualities was not so happy. As society progressed, the old principles, which had been all-sufficient in the German forests, proved inadequate to the new requirements. Instead of making such additions as altered circumstances demanded, they twisted their old methods, invented numberless details, added here and diminished there, as the momentary stress impelled them, and suffered the inevitable changes and the new conceptions to work their way, without assistance, into general acceptance. The result, as might easily be foreseen, was, that the law slowly developed, more and more encumbered in each succeeding generation with a mass of contradictory and well-nigh impossible details, which at this day are absolutely appalling. The law of real property, too, was really nothing but a collection of customs. It may be fairly said that there is hardly any law, in the exact definition of the term, existing on the subject. To enhance all this, their legal thought and expression were loose, ill-defined, and clumsy to the last degree. Many eminent writers have endeavored to extract, from the authorities, evidences of a system, rounded, defined, and of arithmetical proportions. But, if contemporaneous Anglo-Saxon histories and charters show any thing, they prove that such a system did not exist, that it was something inconceivable to the Anglo-Saxon mind.

Unfavorable as many circumstances were, the purity of the race, the isolated condition of the country, and the very slowness and tenacity of intellect already referred to, gave a scientific development to the pure Germanic law hardly to be found elsewhere. Free from the injurious influences of the Roman and Celtic peoples, the laws and institutions of the ancient German tribes flourished and waxed strong on the soil of England. If the Anglo-Saxon laws are not as absolutely untainted as those of their kindred in Sweden, Denmark, Norway, and Iceland, they developed to more purpose. Strong enough to resist the power of the church in infancy, stronger still to resist the shock of Norman invasion, crushed then, but not destroyed, by foreign influences, the great principles of Anglo-Saxon law, ever changing and assimilating, have survived in the noblest work of the race, -the English common law. The early law of real property is not so rich in marked and imperishable principles as many other branches; but it was based on certain strong conceptions, some of which have endured, while others, long since vanished, possess now only historical importance. It is the purpose of this essay to attempt a classification of these conceptions or principles, - to prove their existence, and trace the outlines, as the case may be, of their growth or their decay. Starting with the belief that the mass of intricate details in which the subject is involved are objects only of antiquarian curiosity, every thing not directly tending to the illustration or elucidation of the main and leading ideas will be rigidly excluded.

The first difficulty which meets the inquirer is to ascertain how many kinds of land resting on fundamentally different conceptions were known to the Anglo-Saxons. If difference of origin be taken as the only standard of distinction, there were two, - estates originating in a written instrument, and estates originating in custom; or, in briefer form, estates that were created by book (boc-land), and estates that were not so created. The latter class falls into three subdivisions, estates of the family or individual (family land); estates of a corporation, like the mark, thorpe, or hundred (the common land); finally, estates of the nation or state (the folcland). These three subdivisions are severally so important, and so distinct from each other, that, for a complete answer to our first question, it is necessary to admit four sorts of land, -boc-land and the three subdivisions of the opposite class. An examination of these four great classes ought to result in a thorough understanding of Anglo-Saxon land law. The only portion not necessarily covered by them is the law of dower in lands, which requires separate treatment.

Before proceeding with this investigation, it becomes necessary to consider briefly two preliminary points, - the distribution of the various kinds of land with reference to each other, and taxation.

Nothing has proved a more fruitful cause of unnecessary misconception and difficulty than a failure to appreciate the relative distribution of lands. Much labor and ingenuity have been vainly expended in evolving theories as to the mode of division of the territory of Britain adopted by German invaders. Analogy with the methods in vogue among the Continental tribes is misleading, because the circumstances were different. Two theories are discussed by Dr. Konrad Maurer, - either the conquerors divided the land in accordance with fixed rule as they advanced; or, after the first period of war and confusion, a rearrangement took place according to established forms. Dr. Maurer1 gives his adhesion to the first of these views. Whether the first theory be accepted and the second rejected, or vice versa, or whether, as seems most probable, the distribution was regulated by a system which was a mixture of both, the ultimate question, and the only really important one, is as to the relative distribution of lands at the period when contemporaneous authorities begin. In order to simplify the matter as far as possible, let all England be regarded as a political unit. The whole territory may then be taken to represent a vast area of folc-land; the lands of individuals or families, of communities and of the book, being scattered throughout its length and breadth, like oases in a desert. Roughly speaking, this represents not unfairly the geographical distribution of lands. The same person could, and often did, hold estates of all the kinds thus intermingled. One well-known example suffices to prove this statement. Duke Alfred bequeathed family land, boc-land, folc-land, or certain definite parcels of the same,2 and appendant rights in common land, and these estates, as appears by the same document, lay in various parts of the country. It is further evident, from this instance, that the same person might be a member of several communities, all widely separated. To better illustrate this last point, a charter of Æthelwulf of Wessex, A.D. 839, may be cited. The grant is of a vill lying within the walls of Dover, and twenty-three acres pertaining thereto in various parts of the civitas. Here the king - holding, as is shown by other charters, in all parts of England - appears as the owner of lands in various parts of Dover. Still more prolific in confusion was the growth of dependent communities. There were in England many owners of large estates. The most prominent were the state, the crown, and the church; but there were also many large individual proprietors, including the king. On these great estates, or on the folc-land, groups forming communities, exactly similar to the pure, independent community, - except that the title to the lands they occupied was not vested in themselves, - were seated. A community on the folc-land affords the best illustration of the result. A large proprietor, like Duke Alfred already referred to, held extensive estates of folc-land,1 which he let out to poor freemen, his tenants. A communal group was thus formed, with all the usual intricate relations and customs. In the case cited, the title to the land is in the state, the lands are laens as to the individual tenant, and communal as to the aggregate of tenants, and Duke Alfred, the lord of the land, is in turn but the tenant on sufferance of the state. There are instances in plenty, in the later grants, of the gift of lands and communities together. These were probably cases where the title had never been in the commoners, or had been lost by the growth of some great estate within their limits. To take another example, this time a description of church property: "Saeculares igitur episcoporum ditione subjecti intra ambitum hujus spatiosae telluris diversis in villis degentes." 5 Again, in the case of a royal grant, to take a very common instance, Ceoluulf, A.D. 875, grants a vill with two small vills pertaining to it." Still another case is a grant of Offa's, A.D. 780, in which the estate, pre