This peculiar silence of the Old English royal instruments as to the writers has not been explained. It is, I venture to suggest, a result of the nature of the Germanic conquest of Britain. The use of written documents for the conveyance of land, the granting of immunities, or for the communication of the sovereign's will was, it need hardly be said, unknown to the Germanic tribes. [16] The Germanic chief establishing a kingdom in Italy or Gaul found himself surrounded by the highly technical administrative system of the Roman empire, and as the invaders were comparatively few in number, they made little change in the administration. [17] The Germanic kings willingly aped the state and formality of the Roman emperor, [18] and accordingly surrounded themselves with ministers and officials bearing the same names and executing the same functions as those of the imperial court. The establishment of a chancery on the Roman-Byzantine model was a necessary outcome of this. Already in the time of Theodoric we find the Ostrogothic 'King of Italy' provided with the Roman chancery officials known as referendarii, cancellarii and tabelliones. [19] These officials naturally reproduce the usages of the imperial chancery, and hence they draw up the instruments of their sovereign on the lines of those of the emperor. We unfortunately know little of the latter, but, as we might expect from the highly technical nature of the Roman legal and administrative systems, the imperial instruments were carefully authenticated. One means of doing so was by the attestation or recognition of the officer whom we should call at a later time the chancellor. [20] The Roman completion clause was long represented in the royal instruments of Italy, France and Germany. (The latter, diplomatically speaking, marches with France, for its diplomas are derived form the Frankish monarchs.) In Italy and Gaul the Germanic invasions did not seriously affect the continuity of the legal and religious usages of the conquered countries, and the Gothic, Lombardic and Frankish kings were from the first familiarised with the use of written documents for legal purposes.
The situation was far different in Britain. There a century and a half of paganism separated the conquest from the conversion of the first English king. During the awful period of slow conquest and unceasing warfare all traces of Roman administration must have disappeared. It was not until after the introduction of Christianity that the necessity for written documents arose, and even then the demand was very slight. Professor Maitland has, with his usual brilliant insight, pointed out that the Old English royal diploma is almost exclusively ecclesiastical in its origin and use. [21] In every early instance it relates, either directly or indirectly, to the dedication of land to the service of God. [22] The effect was, apart from the grants of various exemptions, to put the land in question outside the operation of ordinary descent of land by the common law. [23] It thus became book-land or land that did not descend like folkland automatically by customary Germanic law to members of a man's family or gens. Even the few tenth and eleventh century diplomas that are not made in favour of monasteries have obviously for their object the conferring upon the donee of the power of alienating the land by will or otherwise at his pleasure, and of exempting the land from the rigid laws of descent. [24] It was no doubt with view of cutting off the claim of the gens that land was so conveyed by the king to a noble or other layman, and even in the well-known case of the king 'booking' land to himself. [25] The few late grants of lands forfeited for treason or other crimes were probably dictated by the same intention. In theory the folkland seems to have been inalienable outside the gens, [26] but in practice land could be acquired by a man otherwise than by inheritance. [27] Conveyances of land between laymen seems clearly to have taken place without the mediation of written deeds, and the need for written conveyances was not universally recognised until long after the Norman Conquest. [28] The conveyance of land by the witness of the Hundred or Shire Court, of which we hear before the Norman Conquest and of which traces are preserved in the Domesday survey, [29] no doubt represents an early English and Germanic system. Thus then, when Christianity introduced the need for written documents, there could have been no one in the king's court to compose them, and there were no notaries in private practice to whom the task could have been allotted. [30] The duty therefore naturally devolved upon the Italian missionaries. Our oldest existing charters are written in uncials of an Italian character, and are dated 679 and 692-3, [31] that is within eighty-three and ninety-six years respectively of the arrival of St. Augustine. There are texts pretending to go back to the time of that saint, but they are forgeries, and there are a few genuine charters slightly earlier than 679 preserved in later copies. Whether charters were drawn up by St. Augustine or his followers is doubtful. Certainly none of the texts that purport to date from his period can be accepted as genuine. Brunner has urged the possibility of the Old English charter being derived from remains of the Roman common law in Britain, although he holds that it was more probably derived from the Church, by whom it was borrowed from the Italian or Franco-Roman law-system. [32] The former alternative is unlikely as we have no trace of the survival of Roman law in Britain. The O.E. charter is clearly of Italian origin, and it was introduced if not by St. Augustine himself, certainly by some of his immediate successors. A significant indication of this Italian religious origin is the fact that our second oldest original, the charter of Hodilred of Essex, in 692 or 693, [33] has a proem practically agreeing with that of a private deed of St. Gregory dated in 587 before he became Pope, and that the same proem is also used in what I believe to be the oldest royal charter, a charter preserved only in a very late copy - the foundation of Frithuwald, King of Surrey, of Chertsey abbey before 675, [34] usually and erroneously considered spurious. In Italy this proem also occurs in a deed formerly ascribed to St. Gregory, but which De Rossi had proved to belong to Gregory II (715-731). [35]
Let us try to realize the position of the Italian missionary who found himself called upon to draw up a deed of gift to a newly founded monastery by an English king. [36] He could not regard the king, who did not lay claim to Roman pomp and who had not surrounded himself with a body of officials in imitation of the imperial household, as representing the emperor and as expected to echo the language and formulae of the imperial chancery. [37] The officers required for the authentication of an imperial or royal diploma were non-existent, and the king, having nothing to do with written documents, had never felt the necessity of possessing a signet ring or seal. [38] The Italian therefore turned for a model to the private deed of his own country, with which he was, no doubt, much more familiar than with the imperial or royal instruments. Professor Maitland has described the O.E. royal diploma as a layman's copy of an Italian private deed. [39] As represented by the earlier texts it is a by no means unskilful reproduction. There were, of course, some necessary modifications introduced. The late Roman private deed did not contain a proem, and our oldest original charter is also devoid of one, [40] and charters are occasionally constructed without them until the ninth century. But side by side with this proem-less charter there existed in England the charter provided with a proem, and the latter class predominated. We have seen that Gregory the Great used a proem in a grant of his for religious purposes, and the Italian notaries in the seventh century and possibly earlier began to use a proem in deeds made especially for pious uses. [41] It was, no doubt, the ecclesiastical nature of the Old English diploma that called for the use of a proem. The proem was imitated either from imperial instruments or from papal or episcopal letters or records, which probably copied the use from the imperial chancery. [42] Another innovation was the introduction of a sanction containing threats of divine punishment for infraction, [43] in place of the sanction of the Italian private deed, which bound the descendants of the donor to maintain the deed under a pecuniary penalty. Some of our very early charters contain unmistakable traces of this latter sanction in the form of injunctions from the king to his heirs to observe his gift, with threats of punishment in a future world for breach instead of a pecuniary fine. This religious sanction is another peculiarity of the Old English royal diplomas, for the early Italian and Frankish diplomas impose a fine upon those contravening them. This, again, arose from the imitation of the usages of the imperial chancery. It is another proof that the English kings were considered, or considered themselves, outside the pale of the Roman legal system that it was deemed necessary to substitute a religious sanction for a legal one in their diplomas. This religious sanction was imitated from what we may call the ecclesiastical record, i.e. such writings as papal bulls, records of the proceedings of councils, and the like. It was probably the council proceedings that the draughtsmen had in mind, for the O.E. diploma has many points in common with them, including even the silence as [to] the writer. Indeed, we might conveniently describe the O.E. diploma as the late Roman private deed modified by the influence of the conciliar record. It was the influence of the latter also that caused the progressive increase in the number of the witnesses, who in the earliest charters barely exceed the legal number of witnesses of the Roman private deed, and who witness merely. They in fact represent the rogatio testium of Roman law. [44] Under the influence of the conciliar record they not only increase in number, but they begin to signify their consent and approbation of the grant, [45] and seem to become participators in its bestowal. This change in nature may have been induced in the case of the ecclesiastical witnesses by the feeling that they were responsible for the sanction, [46] for what was merely the expression of a pious wish in the mouth of the king became in their mouths a solemn anathema backed up by all the dread powers of the Church. [47]