The Oldest Law in England

James Lloyd delivers a crash course in Anglo-Saxon real estate law to explain one of the oldest, most commonly repeated and yet strangely ignored traditions in England.

How do you give someone land? The answer might seem obvious: We hand over a property deed, if necessary with a map attached. Yet this answer is insufficient. Land has been given and exchanged for thousands of years, long before the development of literacy and cartography. How, in a primitive, illiterate society can land change hands? We cannot actually pull a whole estate up out of the ground and physically hand it over to its new owner, can we?

Yes, we can. At least, we can do something very similar. The ninth-century German historian Widukind of Corvey recorded that the Saxons first emerged into history as traders on the mouth of the River Elbe in Hadeln, a region at that time inhabited by the Thuringian tribe, one of whom bought some man-bangles off a Saxon teenager for just for a purse-full of earth. The Thuringian returned home with his new bling and a hilarious story about how stupid the Saxons were. The Thuringians awoke the next morning, however, to find the Saxons encamped alarmingly close. In Saxon law, it turned out, handing over a sod of earth symbolized handing over the very land itself. The teenager had tricked the Thuringian into selling him his country and the Saxons were determined to ensure that the deal were honoured, by whatever means necessary.

Widukind’s patron, the contemporary Duke of Saxony, claimed the central German province of Thuringia, so this rather tongue-in-cheek story probably owes more to contemporary politics than it does to fifth-century history. What is true is that, while one branch of the Saxon tribe was conning the Thuringians out of their country, another sept was pursuing conquests on the opposite side of the North Sea. When Saint Augustine arrived in Britain in 597 to convert those particular Saxons to Christianity, he introduced not only a new religion but also new technology, the super-science of writing and it was his first high-profile convert, King Æthelberht of Kent, who was the first Germanic ruler anywhere to write the laws of his kingdom down.

The black letter of the law, however, did not usurp word of mouth and human memory overnight, or even in several hundred years. The procedure whereby the Saxons exchanged land in Britain remained the procedure whereby they had exchanged land in Germany, namely the physical handing over of a sod or twig taken from the estate in question, from its old owner to its new, in the presence of witnesses. Written title-deeds became an optional extra but it was the ceremony that was indispensable. The Normans gave it a name, “livery of seisin” and it was still being performed in manorial courts, as new tenants assumed their properties, even into the nineteenth century. It seems quaint now, an almost childishly literal way of handing over land and yet this ritual, displaced by written deeds and legal formulae only in the last two hundred years or so, is still performed in England to this day, in one particular context.

Very few people these days go to church every Sunday. Very few people went to church every Sunday in Anglo-Saxon times too, for the simple reason that there were very few churches. An Anglo-Saxon church was not the familiar little parish prayer-house, with its bumbling, bicycling, crime-solving vicar. Instead, pastoral provision was made by a few large churches, called minsters, served by a whole community of priests, who would take turns to go around the countryside, baptizing, preaching, marrying and burying, often in the open air.

In the tenth century, this started to change. It became fashionable for landowners to build churches on their own estates, to secure their tenants’ salvation and their own, not only in the next life but also in this, for a private church was a status symbol and one of the qualifications for admission to the nobility. It was from these estate churches that the parish system evolved. The priests who served these churches were initially considered members of the landlord’s staff and could be hired or fired at will but the bishops protested that this gave them insufficient job security, so the custom grew up of treating the priest himself as one of the tenants, with a parcel of land, including the church, permanently assigned to him and his successors.

An Anglo-Saxon church

This still meant that the priest was chosen by the lord of the manor and in the twelfth century, a period in which kings and popes were disputing which of them had the right to appoint bishops, this too came in for ecclesiastical criticism. The bishops demanded that they should choose the parish priests. The lords riposted that the parishes were merely their own estates on a Sunday, that priest and parishioners alike were their tenants and that it was on their land that the priest lived. Eventually, a compromise was reached, whereby the lord would choose a priest and recommend him to the bishop who would then formally appoint him.

This is still how the majority of parish priests in the Church of England are appointed today. Although modern democratic expectations have obfuscated the procedure with consultations and interviews, each parish church in England still has its titular “patron of the living”, in theory the successor to the founder of the church. He might be the lord of the manor or he might be some other person or corporation (the Crown, an Oxbridge college, a City livery company etc.) to whom a previous lord sold his rights. This patron recommends (the technical term is “presents”) a priest to the bishop, who appoints (the technical term is “institutes”) him as rector or vicar (that distinction without a difference will have to be explained another day) of the parish church. The bishop may refuse to institute the patron’s presentee but the patron may appeal against such a refusal and the bishop cannot institute a priest whom the patron has not presented.

The church itself, along with lands and rights attached to it, remains an estate (the technical term is “benefice”) of which the rector or vicar is legally the tenant. In Anglo-Saxon times, when the first parish priests were appointed, their induction into their tenement was achieved, as were all new tenancies, by placing into their hand a physical object representing their tenement, though for a priest this was usually the key to the church, a bible or a bell, rather than a sod of earth.

Over a thousand years later, this is still how it is done. Although the ceremony is now conducted in English and is performed by the archdeacon, rather than the lord of the manor, the canons of the Established Church still require that the archdeacon should place the key of the church into the new incumbent’s hand, or lay his hand on the doorhandle of the church. The new incumbent must then toll the bell, to alert his parish that he has taken corporal and legal possession of his benefice.

It may not be identical to an Anglo-Saxon livery of seisin but the principle, that handing over a part of the property in reality hands over the whole property in law, is the same and in that principle the induction of an Anglican priest may be said to preserve a ritual that dates back well over a thousand years, before the Reformation, before the Normans invaded, indeed before the English invaded, all the way back to the forests of Germany. This ancient ritual, this historical artefact, a ghost from our very earliest history, is performed every few years in every town and village in England. That, by any measure, must be considered amazing but what is still more amazing (or perhaps I mean depressing) is that, until just now, most of the people reading this did not even know.

Photo credits: King Aethelberht (Gordon Griffiths) / CC BY-SA 2.0

All Saints’ Church, Brixworth (Michael Garlick) / CC BY-SA 2.0

The Old Rectory, Greystoke (David Purchase) / CC BY-SA 2.0

 

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