THE ENGLISH HISTORICAL REVIEW Downloaded from NO. XXIX.—JANUARY 1893 http://ehr.oxfordjournals.org/ Folkland. WORD that occurs on three occasions, and, unless I am mis- A taken, on three occasions only, in our .whole store of Anglo- Saxon documents, has become the parent of comprehensive theories of early English history. This could hardly have been otherwise. The historian who writes of England as it was before the Norman at National University of Singapore on June 27, 2015 conquest must have some explanation to give of the term folkland. I shall not here speak of the manner in which this theme had been treated by those historians and antiquaries who preceded John Allen. Suffice it, that, so far as I am aware, it did not occur to any of them to maintain that the folkland is the land owned by'the folk. Folkland being contrasted with bookland, it was easy for them to infer that, as bookland is held under a written instrument, so folkland must be held without a title-deed. This done, they could dispute as to which of the two was ' feudal,' which ' allodial.' The ' folk' element in folkland could be accounted for by Baying that folkland is land held under common law, or that it is land held by common people. Even Palgrave in 188& did not adopt the theory which Allen had propounded in 1880.' But it is,with Allen's theory that I am concerned, the theory that the folkland was the land that was owned by the nation, the ager puMicus of England; and I can hardly be wrong in calling it the generally ac- cepted doctrine, for it has commanded the assent of Kemble,* Hallam,8 Stubbs,4 Freeman,4 Green,6 Thorpe,7 Elton,8 Lodge,9 1 Palgrave, Rist and Progress, L 577. 1 Cod. DipU vol. i. p. oiv.; Saxons in England, i. 280. • Middle Ages, supplemental notes (1848), p. 264. 4 Const. Hist. L 81. * Norman Congvist.'i. 90.' • Hist, of English People, i. U. ' Ancient Lavt, glossary, s.v. Folo-land. ' Tenures of Kent, p. 219. • Essays in A.-S. Lav, p. 67. VOL. vm.—NO. XXIX. B 2 FOLKLAND Jan. Pollock,10 Earle," Reinhold Schmid,la Konrad Maurer,11 Gneist," Waitz,15 Sohm,10 Brnnner,17 Schroder,18 and Kovalevsky.10 It ia not in any spirit of contradiction that I venture to set my face against this received opinion. If after many misgivings I dare to do so, my excuse must be that the ranks of Allen's followers are not by any means so closely arrayed as at first sight they appear to be. A curious process of development has been going on, as it were, within the theory, in the couree of which process many imperfections in it have been discovered by successive scholars, who have tacked on to it various appendices which Beem hardly consis- Downloaded from tent with the original principle. I should like to trace the some- what sinuous course of this critical process and to carry it a little further—to carry it to a point at which Allen's dogma has to be altogether abandoned. The materiala which Allen brought to the construction of his http://ehr.oxfordjournals.org/ theory were in the main the following: *°—(1) The term folkland is in itself quite plain and full of meaning. It designates the land of the folk, the land that is owned by the folk as a whole, as con- trasted with that which is owned by smaller groups, by private in- dividuals, or by the king. (2) If nevertheless we find folkland in the hands of private individuals, this can only mean that they had the uae of it, while the ownership remained with the state or folk. (8) The will of Ealdorman Alfred, one of the three documents in at National University of Singapore on June 27, 2015 which the term occurs, shows that if a piece of folkland was in private hands, then on the death of the occupant it would revert to the state; if his heirs were to enjoy it a new grant was necessary. (4) A famous letter by Beda must be understood as speaking of the folkland, for it evidently refers to land owned by the state and used as a fund out of which warriors might be remunerated for their services. In this letter Beda condemns the lavish alienation of this national fund. (6) Thus the part played by the folkland in England is parallel to that played by the royal demesne, the fitcu* of the continental nations, from which beneficia are distributed to soldiers, beiieficia which will be held by a tenure less free and less.complete than allodial ownership. The one peculiarity of the English system ia that it distinguishes between king and state, and treats this great demesne as the property of the people. (6) Alienation of the folkland was possible. It could be converted into private property by an act of the government, namely, by an act " Land Laws, p. 20. " Land Charttn, p. 1L a Qs$*Ue, glossary, S.T. Folc-land. '• Krit. XJtbtnehau. L 109 11 Hi$U EngL ContU L 8. " Deutsche 7erfas$. GeteK H. 239. 11 Beicht- vnd Gerichttoerfasswig, p. 81. " Zw*&*chttv**chi6hU da rOm. «. gtrm. TJrTewnd*, p. 164. " LtJtcbwh dtr dmdsehtn BtehttgtschiehU, p. SOS, - Law QvorUrly Bevimo, v. 278,1888. » Allen, Royal Prerogative, 2nd ed. p. 185-169. 1899 FOLKLAND 8 of the king and the witan as representatives of the nation. Our store of Anglo-Saxon charters contains a great many documents •which bear witness to transactions of this kind. They—though the term folkland may but rarely occur—are concerned with the conversion of folkland into bookland. (7) Historically all bookland has been folkland; all private property has been carved out of the state demesne by governmental grants, though originally the transfer may have been effected by ceremonial investiture without a charter. Kemble endorsed most of these doctrines, but in the course of Downloaded from his wide study of the old English records he came to the conclusion that Allen's classification of landed property was much too simple to reflect all the varieties of tenure displayed by the laws and the charters. Allen had treated the contrast between folkland and bookland as though all or almost all proprietary rights in land http://ehr.oxfordjournals.org/ could be brought under one of these two heads. Kemble, on the other hand, laid stress upon the mark, the land which belongs to communities, such as the shire, the hundred, the township, the kindred. Again—and this is more important— Kemble saw that it was impossible to bring all or nearly all the forms of private ownership under the head of bookland. Can we really believe that all private ownership has been carved out of national ownership by a series of definite and particular grants ? at National University of Singapore on June 27, 2015 Most we not hold that when the land waB newly conquered some general scheme of partition and endowment was adopted? We constantly come upon traces of the existence of lands, which, while they are held by individuals, are held under rules which differ materially from those which govern that full ownership which has been created by ' book.' By the side of that bookland which ia freely alienated and devised by its owner, we find plots which can- not be thus disposed of, but which must descend among the males of a certain family. To describe such plots as these, Kemble intro- duced the term cilicl. Thus the classification of tenures became in his hands more complex. Instead of two species, folkland and bookland, it must distinguish at least four—(1) ethel, (2) bookland, (8) markland, (4) folkland. With these we do not co-ordinate, though we may just mention, lanland, for the man who has lten- land has but a right of occupying what belongs to another. Then Kemble postulated a constant tendency making towards the libera- tion of ' the ethel, hide, of $lod,' from the restrictions which bound it, towards the.conversion of the ethel into bookland, Bo that before the Norman invasion almost every plot of ethel had become book- land by virtue of charters." In his valuable articles in the KritUclie Uebenehau, Konrad n Saxont, i. 806: 'Towards the dosing period of the Anglo-Saxon polity I should imagine that nearly every acre of land in England had become Wdand.' - - - 4 FOLKLAND Jan. Maurer declared in favour of the theory thus propounded by Allen and Kemble; but he had some strictures and qualifications to offer. His criticism was directed chiefly against Kemble as the representative of the theory in its latest and fullest form. He found some fault with the vagueness of Kemble's terminology. In -Kemble's exposition leenland seems to fluctuate between folkland on the one hand and bookland on the other. If Kemble can be pinned down to any definite opinion about this matter, it must be that a charter implies bookland, in other words, that a mere leen could not be created by a written instrument, since the very existence of this Downloaded from ' book ' would make it bookland. This, Maurer argues, is a mistake. The true distinction lies between cases in which ownership is trans- ferred and cases in which it is reserved. The creation of a lsen may be effected or evidenced by a written document, but the grantor or lessor reserves the right of ownership, and the grantee or lessee http://ehr.oxfordjournals.org/ acquires only a derivative and dependent right.