Brunner has well remarked that the older the Germanic record is, the more distinctly does it bear the stamp of the late-Roman record. [48] This remark holds true of our Old English diplomas, for in the seventh century and in a less degree the eighth century they show strong traces of the Roman private deed in the shape of various formulae. In the later documents these formulae are not used, and we may therefore claim that their presence in a copy of [a] charter of which the original is not preserved is very strong evidence in favour of its authenticity. Few texts have been more generally condemned that the Chertsey charter of Frithuwald mentioned above, [49] partly on account of its early date, but more especially because in the chartulary in which it is preserved it is followed by boundaries that are late enough in date to contain a reference by name to a Norman knight. A glance at the text will shew that these boundaries do not form part of the charter, but were merely entered after in the chartulary. [50] An examination of the text of the charter shews, I think, clearly that it is genuine. It is therefore the oldest of our royal charters. On the other hand, the absence of these distinctively Roman formulae in an early deed renders its authenticity very doubtful.
Our knowledge of the late Roman private deed is based upon the priceless papyri issuing principally from Ravenna. The earliest of these is dated 443 or 444, [51] but there are several fifth- and sixth-century examples. That they represent the late Roman and not a specifically Ravennese instrument is proved by the occurrence of the same form amongst Italian deeds of much later date, such for instance as the Neapolitan deeds, wherein we find the same model in use in the ninth and tenth centuries. Portions of the formulae occur also in the Frankish formularies for private deeds. These Ravenna deeds are written on papyrus, this material being then the traditional one for public instruments. [52] All Italian documents of this nature of the fifth, sixth and seventh centuries are on this fragile material, [53] the charta of the Digest of Justinian. The imperial rescripts were, if we may judge from the two fragments in existence, written upon papyrus, and the papal chancery continued to use it until the tenth century. The Ostrogothic and Lombard kings, imitating the imperial chancery, [54] used papyrus for their diplomas, and the Merovingian kings used it until the end of the seventh century. [55] Curiously enough we have no trace or record of the use of papyrus by the English kings. [56] It is tempting to explain the want of any genuine diplomas for the first three quarters of a century after the landing of St. Augustine by the theory that he or his companions and successors used this fragile and perishable material. But the slow progress of Christianity and the fact that the earliest original charter, that of 679, [57] is on parchment, renders the theory very hazardous. That documents of the period of the conversion, documents in all probability written on papyrus, have disappeared from Canterbury we know from the evidence of Beda, who gives us copies of bulls from Pope Gregory and other that are derived plainly, as he states, from the originals at Canterbury, [58] and not, as has been sometimes thought, [59] from the papal registers at Rome. It is possible that these disappeared in the fire at Canterbury Cathedral in Lanfranc's time, for Eadmer records that the ancient privileges of the see were then destroyed and that no copies of them were preserved in registers. [60] Recent discoveries in Egypt have tended to give us a much exaggerated view of the durability of papyrus, but in Europe its durability was much less than in antiseptic air of Egypt. Maffei has collected passages from the classics to shew how short was the life of papyrus. [61] Papyrus two hundred years old was a remarkable things in Pliny's eyes. [62] The use of parchment for legal documents has not been found earlier than the second half of the seventh century. [63] In France the oldest existing document on parchment is dated 670, and the oldest royal act is a precept of 677, [64] and in Germany the oldest deed on this material is dated 731, whilst the oldest Italian example is a notarial instrument of 716. [65] Our earliest English example of parchment is, as we have seen of the year 679. [66] The latest Merovingian royal document on papyrus is dated 692. [67] It is evident that in western Europe parchment superseded papyrus for diplomas in the second half of the seventh century. Papyrus is not met with in chancery use north of the Alps in the eighth century. [68] Its suppression in the seventh century has been conjecturally explained as a consequence of the Arab conquest of Egypt in 634. [69]
The affixing of a seal to instruments written on papyrus would be a difficult task, [70] and we might in this way explain another peculiarity of the Old English royal instruments, the absence of authentication by means of seals, especially as the late Roman private deed was not authenticated by a seal. [71] But the emperors presumably affixed their seals to their numerous instruments written on papyrus, and the Merovingian kings certainly sealed diplomas written on this material. The non-use of a signet or seal in the Old English diplomas is an outcome of their derivation from the late Roman private deed. It is probably also another proof that the English kings were considered by their Italian mentors as having no claim to invest themselves with the imperial insignia so freely adopted by the Germanic kings of Italy and Gaul. Amongst these insignia the signet ring or seal was included. The use of seals gradually descended from the king to his great lords. An important step in the encroachment of the mayor of the palace upon the powers of the Merovingian king is marked by the mayor adopting a seal for the authentication of documents. The used of seals by knights in the twelfth century was considered an impertinence by Richard de Lucy, [72] the great justiciar. He, no doubt, represents an ancient tradition when he contemptuously bursts out with the remark that 'of old it was not the custom for every petty knight to have a seal, which is only befitting to kings and important men'.
Thus, then, it would seem that the features that distinguished the Old English royal charters from the similar instruments of the Lombard and Frankish kings - that is the imitation of the Roman private deed, the absence of authentication or recognition by the chancellor, and the non-use of a seal - may all be ascribed to the fact that the early English king was looked upon as being outside the Roman world, and as not therefore to be invested with the outward signs of the imperial state. Perhaps we ought to mention another feature in this connexion - that is the authentication of the English diploma by numerous witnesses. [73] This is in itself a usage copied from the Roman private deed, but it is significant in another way. The imperial instrument needed no such extraneous authentication as the testimony of witnesses, [74] since it was a document that could not be challenged or gainsaid. [75] Accordingly we find the diplomas of the Germanic Kings of Italy and France issued without the mention of witnesses, other than that implied by the recognition of the chancellor or his deputy. The foreign diplomas never wholly lose the character of a precept, whereas the Old English diploma is of the nature of a public instrument recording in solemn manner certain grants. It is neither a letter nor a precept.
This is a character it has acquired from the late Roman private record, for the latter is in form a certificate drawn up in the first person by the donor and dictated by him to a public notary, making known that he has made such and such a grant or sale. It begins, in accordance with the provisions of one of Justinian's Novellae, which makes legally obligatory what had previously been permissive only, with a note of the consular and imperial years. Our earliest diplomas imitate this custom, substituting the regnal year of the English king. They also prefix a verbal invocation. This use invocations as the commencement of deeds, etc. was recommended by St. Chrysostom at the end of the fourth century, and an imperial edict of 395 prescribes their use. [76] In England the invocation is always a verbal one, but it could also be represented by a monogram of the Greek initials of the name of Christ. This monogram, the so-called labarum or chrismon, was the only invocation used in the Lombardic royal instruments and in the Frankish diplomas until the time of Charles the Great, who used the monogrammatic and verbal invocations jointly. We meet with instances of the use of both in the later English charters, but the early ones use a simple invocation of the name of Jesus, sometimes preceded by a cross. It is somewhat curious that the invocation should be so simple in the early English charters, for lengthy invocations of the Trinity and of the Virgin Mary occur in the early seventh century Graeco-Egyptian deeds amongst the Fayoum papyri. But Justinian begins a novella with an invocation as simple as that of the earliest of our charters: '+ In the name of Our Lord Jesus Christ, our God'. The Chertsey charter commences with an invocation 'In nomine domini salvatoris Jesu Christi', [77] and it recurs in the Kentish charter of Oswine, A.D. 675, [78] and of Swæbheard, A.D. 676, [79] and of Nothhelm of Sussex 692. [80] These are from copies, but they are supported by the occurrence of the same formula in the charter of Hlothhari of Kent, A.D. 679, [81] and in that of Hodilred of Essex, A.D. 692, [82] of which we possess the originals, and in the record of the Council of Hatfield, A.D. 680, the text of which is preserved in Beda's Historia Ecclesiastica. [83] It also occurs with an additional clause 'regnante in perpetuum ac gubernante suam ecclesiam eodem domino nostro Jesu Christo' in the record of the Council of Hertford, A.D. 673, also preserved by Beda. [84] This additional clause is the nucleus of the later invocations, which omit the 'in nomine' and commence with the word 'regnante' or some equivalent, the whole forming an ablative absolute clause. The simple invocation 'In nomine domini nostri salvatoris Jesu Christi' would seem to be the original form introduced from Italy, [85] for it is found in the very early eighth century Lombardic charters preserved in the interesting register of the great Sabine monastery of Farfa, and it was the normal form of the invocation in the precepts of the Lombardic dukes of Benevento, and became after 759 the usual form in the precepts of the Lombardic duke of Spoleto. [86] These Farfa charters, which commence in 718, are much nearer in form to the Old English diplomas than the late Roman record. Indeed, the agreement is so close that we can hardly resist drawing the conclusion that they represent a modification of the late Roman record of considerably earlier date, a modification that must have been in use in or near Rome in the later part of the sixth or the beginning of the seventh [century]. Farfa itself is no great distance from Rome, and it was for some time part of the Lombardic duchy of Spoleto. As the term Lombardic covered so large an era of seventh-century Italy, it will be convenient to speak of these charters as the Farfa forms instead of the Lombardic. The late Roman private deed appears side by side in the Farfa register with the Farfa form, and it was, in the opinion of Professor Brunner, an innovation of the fifth century on the much briefer and very different Roman private deed. If we have thus grounds for believing in a deliberate reformation of the private record in the highly organized legal system of Italy in the fifth century, we can hardly deny the possibility of the emergence of a new form, represented by the Farfa charter and the Old English diploma, in the sixth century, more especially as St. Gregory's grant of 587, already mentioned, has many features agreeing with the Farfa form, although it is drawn up in epistolary form and has the rogatio testium of the late Roman record.
We may now continue the comparison of the late Roman private deed and the Farfa charters with our earliest diplomas. The Farfa charter, after the invocation and the dating clause, inserts a proem, expounding the necessity of providing for one's soul in the future world by gifts to God in this, or the need for recording transactions in writing for the avoidance of disputes in the future. These are two of the most favourite themes of the proems of our earliest diplomas. The Farfa charter introduces with the words 'et ideo' the operative clause of the late Roman deed, which commences 'constat eum donasse, vedidisse' or the like. The Farfa charter converts this into the first person, and refers to the donee in the second person. Most of our earliest charters are made to a recipient who is addressed in the second person, and the use of the second person in this clause is evidence of high antiquity in an English charter. This use of the second person in the private deed of Wighard to the abbess Beorngyth of 672 preserved in the Bath chartulary in the library of Corpus Christi is one of several proofs in favour of the authenticity of this charter, which may claim to be the oldest English private deed in existence. [87] As private deeds do not come within the province of these lectures, I must justify this reference by the remark that the derivation of the Old English royal diploma from the Italian private deed is supported by the fact that English private deeds in early times make use of the same formulae as the royal instruments. The use of the second person goes out of use in the royal diplomas in the early part of the eighth century, the recipient being after that period mentioned invariably in the third person. Hence we may conclude that all secondary texts of charters in which the second person occurs are derived from genuine originals. (Here it is necessary to give expression to the warning that although we may satisfy ourselves by all the resources of diplomatic that the formulae of a late copy of a charter agree with the estimable date of the charter, we cannot guarantee in every case that the body of the charter has not been tampered with. Although the study of diplomatic may lead us to suspect clauses granting immunities as interpolations in a genuine text, it will afford us no guidance in detecting tampering with the names of the estates, their contents, etc. Sometimes an interpolation has the appearance of a gloss or marginal note that has crept in the body of the text in the chartulary. For instance Frithuwald's Chertsey charter, [88] in which the donee is mentioned in the second person, contains a clause 'sunt tamen diversa nomina de ipsa eadem terra supradicta, scilicet Cirotesegc, Torpe' and six other local names. This clause breaks the construction, and is probably interpolated.) The second person is used in the original charters of Hlothhere in 679 [89] and of Hodilred in 692-3, [90] and in the charters of Nothhelm of Sussex, A.D. 692, [91] and Wihtred of Kent, A.D. 694, [92] and in a private deed of Æthelmod to the abbess Beorngyth, A.D. 681, [93] all of which are preserved in chartularies only. It also occurs in a charter of Ceadwealla of Wessex A.D. 688, [94] which seems to be genuine despite its presence in the suspicious Winchester chartulary and its date by the era of the Incarnation. But although the use of the second person is strong evidence in favour of the authenticity of an early charter, its absence cannot be argued as an objection to other early charters, for the third person seems to have been also used form the earliest time. This need not surprise us, for we have seen that it was used in the late Roman private deed. Another distinctive feature of the earliest English diplomas is the conveyance of the gift 'tibi et per te monasterio tuo'. With this clause may be compared such phrases in the Farfa charter as 'tibi … abbati vel ad manachos tuos servientes in monasterio'. [95]
Another ancient clause in the early charters is the declaration that the king has made the particular gift 'sana mente integroque concilio'. It occurs, for example, in the charters of Frithuwald [96] and Hodilred. [97] This sentence is derived from the Roman will. It is found in the form 'sanus, salbus (= salvus), sanaquoque mente integroque consilio' in Roman wills of A.D. 385 and 474. [98] It occurs in the formulae for wills in Marculf's Frankish formulary, a work of the seventh century. In the Farfa charters, however, it occurs in deeds of exchange. The presence of this clause in a text of an early English charter is an argument in favour of authenticity. But it is not, when unsupported by other early formulae, to be taken as conclusive proof that the text in which it occurs is genuine. For example, it occurs in the forged charter of Æthelberht of Kent, A.D. 605, [99] a forgery so clumsy that it was condemned by the ecclesiastical authorities at London in 1181. [100]
The verba dispositiva or 'operative words' in a few of our earliest charters are derived from the late Latin private deed. They are also found in the Farfa charters and generally in the Lombardic private deeds. In Frithuwald's charter the words are 'a praesente die dono, concedo, transfero, et de meo jure in tuum transcribo'. [101] In Hodilred's charter they are 'perpetualiter trado et de meo jure in tuo transscribo'. [102] Wihtred of Kent, in 694, uses the words 'a praesenti die et tempore tibi … terram contulimus inperpetuum possidendam' [103] and in 696 'a praesenti die et tempore a nostra jusrisdictione transferentes imperpetuum tradimus possidendam'. [104] The charter of St. Gregory of A.D. 587 contains the clause 'dono, cedo, trado et mancipo, et ex meo iure in vestro iure dominioque transcribo'. A sixth-century fragment of papyrus begins with the words 'et in iur … omni … in potestatem perpetem transcribo, cedo, trado et mancipo'. [105] Another fragment of the middle of the ninth century contains the words 'a praesenti die refundere et refundo, seu transferre atque transfero, et ad (= a) meo jure meoque dominium … alieno seu transcribo in iura et dominium vestrum'. [106] The Lombardic formula was 'a presenti die dono, cedo, trado et mancipo iure directo transscribo'. [107] A Frankish example of the year 804 is 'transfundo atque transfirmo … et dono … de jure meo in iure et dominatione ipsius monasterio … trado perpetualiter a die presente ad possidendum'. [108]
We may here consider another clause of Roman origin in the early Old English charter that defines the dominium thus transferred. In the charters it usually follows after the description of the land conveyed. In Frithuwald's charter we read 'omnia teneatis et possideatis, et quodcunque volueritis de eisdem terris facere tam tu quam posteri tui liberam licenciam habeatis'. [109] In the original charter of Hodilred the clause appears as 'ut tam tu quam posteri tui teneatis, possideatis, et quaecumque volueris de eadem facere terra liberam habeatis potestatem'. [110] Other instances may be found in the charter of Eadric of Kent, A.D. 686, [111] of Wihtred of Kent in 694, [112] and, slightly varied, in a charter of Oswini of Kent in 675. [113] It also occurs in a charter of Cenwulf of Mercia and his wife in 799, preserved in a copy of circ. 1000, which is remarkable for the number of early formulas contained in it. [114] Probably the explanation of this retention or re-appearance of these Roman formulae is that the charter relates to Kent, and it is the Kentish charters that contain the strongest evidence of Roman origin. This charter contrasts so strongly with the Mercian charters that we must assume imitation of Kentish usages or that the wording of the charter is founded upon some lost seventh-century Kentish instrument. The clause now under consideration became converted into a clause giving liberty to bequeath the land or a provision that it should revert after the donee's life to a specified monastery. The original clause occurs as early as 489 [115] in the Italian papyri. In a fragment that has been assigned to no less a person that Odoacer we have the words 'quos utendi, possidendi, alienandi, vel ad posteros remittendi livero (= libero) potiaris arvitrio (= arbitrio)'. [116] This suggests comparison with a charter of Wihtred of Kent in 696 'quicquid exinde facere volueritis, vestri erit arbitrii'. [117] In a sixth-century papyrus we find a form of the clause even nearer to the English use: 'quicquid ex eadem portione iuris mei facere maluerint … liberam et perpetem in omnibus habeant potestatem'. In the famous Naples papyrus of 551, so remarkable for its attestations in Gothic, the formula occurs as 'possideas, habiturus licentiam possidendi, nec non ad tuos posteros transferendi, vel quibus cumque tu contractibus alienare malueris', etc. In Marculf's formulary the clause occurs as 'ut a praesenti die … habeat, teneat atque possedeat, et suis posteris ad possidendam relinquat, vel quicquid exinde facere voluerit … liberam habeat potestatem'. [118] The student of our late medieval records may be astonished to meet with a representative at so early a date of the familiar habendum et tenendum clause of English conveyances, but the germ of it can be traced back to the late Roman private deed. It is interesting to note its representative in our early private conveyance, the grant by Wighard in 672, [119] where it occurs as 'ut habeas, teneas, iure dominio tam tuo quam monasterii tui vindices ac defendas'. I have quoted the whole of this phrase because it also represents one [of] the formulae of the late Roman private deed. The instances are few. In the private deed of Æthelmod, A.D. 681, the form is 'ut habeatis iure dominioque vestro, quam monasterio vestro vindicetis'. [120] In Oswini of Kent, A.D. 689, it is 'ut praefatam terram … sibi vendicent ac defendant cum omnibus suis pertinentiis'. [121] It is cut down in Wihtred's charter of 694 to 'successoresque tui defendant inperpetuum', [122] a form that occurs also in Cenwulf's charter of 799 already referred to. [123] In the original charter of Hlothhere of Kent, A.D. 679, it appears as 'teneas, possedeas tu posterique tui imperpetuum defendant'. [124] The Italian origin of the clause is proved by its occurrence in St. Gregory's grant of 587 in the clause 'monasterium habeat, teneat, possideat, iure dominioque suo in perpetuum vendicet et defendat'. In a sixth-century Ravenna deed it appears as 'habeant, teneant, possedeant, iuri dominioque more quo voluerit imperpetuo vendicent atque defendant'. Here as in St. Gregory's deed the clause occurs after the mention of the retention of the usufruct by the donor, and it seems to have some reference to the reversion after the lapse of the usufruct. In a papyrus of 591 the vendor says 'hac suo iuri dominiumque more quo voluerit in perpetuo vindicare recte liceat eidem comparatori'. [125] Other instances occur in the papyri with slight variations. [126]
In the earliest O.E. diplomas this defining clause is followed by another clause that derives its origin from the late Latin private deed. This occurs in Frithuwald's charter in the following form 'Nunquam me ullo tempore heredeque meo contra hanc donationis meae cartulam esse venturis'. [127] This clause, with a slightly different arrangement, appears in the charter of Eadric, King of Kent, A.D. 686, [128] and in the charter of Ceadwealla of Wessex, A.D. 688, [129] where it is converted into the nominative and provided with a verb in the indicative. In the charter of Wihtred of Kent, A.D. 694, [130] it is used with an unimportant change, and the same form occurs in Cenwulf's charter of 799. [131] It is represented in St Gregory's grant of 587 by the words 'spondeo atque promitto nunquam me heredes successores meos … contrariam inferre voluntatem, sed in huius mei heredes, successoresque meos promitto fidem cartulae duraturos'. In a papyrus of 553 it appears as 'contra quam donationem nullo tempore nullaque ratione me posteros successoresque meos venturos esse polliceor, invocato tremendi diem iudicii'. [132] In the Farfa charters it occurs as 'ab hac die neque a nobis neque ab heredibus nostris contra hanc cartulam venditionis nostrae ire aux vexare promittimus'. These Farfa charters also contain a clause that is well represented in the O.E. charters. The Farfa formula is 'et cartula ista venditionis in sua permaneat nicholiminus firmitate'. [133] This appears in O.E. as an accusative absolute clause, as in the charter of Hlothhere of Kent, A.D. 679, [134] and of Hodilred, A.D. 692-3, [135] where it follows the anathema, 'manentem hanc donationis chartulam in sua nihilominus firmitate'. In an abbreviated form it is used in the charter of Ceadwealla of Wessex, A.D. 688, [136] and in the full form but converted into an ablative clause, no doubt by the scribe of the chartulary, in the charter of Oswine of Kent, A.D. 689, [137] and in that of Wihtred of Kent, A.D. 696. [138] It occurs, however, as an ablative in the original charter of Æthelbald of Mercia, A.D. 734. [139] The use of the accusative absolute is noteworthy. It is probably to be ascribed to Italian influence, for instances of the confusion between accusative and ablative are common in the Vulgar Latin of Italy of the seventh and eighth centuries. They also occur in Merovingian Latin, but the Vulgar Latin characteristics are almost unknown in English deeds, because an Englishman deeds, because an Englishman learned Latin as a foreign tongue and he could not confuse it with his vernacular, as the Italian or Gaul did. For the same reasons Germans were writing reasonably correct Latin before the great reformation of Latin by Charles the Great with the assistance of our learned countryman Alcuin.
The next clause demanding our attention is the sanction or anathema. As we have already seen, this sanction is peculiar to English royal diplomas, and it is undoubtedly copied or imitated from the ecclesiastical record. The papal bulls throughout the middle ages contain an anathema formula that, despite its great length and rhetorical character, bears clear proof of an origin in a simpler form closely resembling the O.E. one. The records of the early English councils afford us even closer parallels. This sanction in our earliest diplomas is very simple in form, and contrasts strongly with the lengthy and rhetorical formulae of the later charters. In the early instances it is a wish or a declaration that those guilty of infringing the terms of the gift shall be separated from Christian society or from the Holy Sacrament in this world and from participation in the heavenly realms hereafter. We may commence our examples again with the Chertsey charter, [140] and we shall find that it bears proof of its seventh-century origin even in this clause. The words are 'Quod si quis contra hanc donationem et confirmationem venire temptaverit, sit hic separatus ab omni societate Christiana et a caelestis regni participatione privetur'. If we compare this with the original charter of Hlothari of Kent in 679, [141] we cannot fail to be struck by the close resemblance. Here the anathema is 'Quisquis contra hanc donationem venire temptaverit, sit ab omni Christianitate separatus, et a corpore et sanguine domini nostri Jhesu Christi suspensus'. The copy-charter of Eadric of Kent uses only the second half of this formula: 'sit separatus a participatione corporis et sanguinis domini nostri Jhesu Christi'. [142] The expulsion from Christian society is the sanction invoked in a somewhat expanded form in the charter of Ceadwealla of Wessex, A.D. 688. [143] But both punishments are threatened in the copy-charter of Oswine of Kent, A.D. 689, [144] and in that of Wihtred of Kent, A.D. 694. [145] The original charter of Hodilred, A.D. 692-3, [146] in some measure anticipates later usages in regard to this clause, although the resemblance to the early forms we have just quoted is still apparent. The clause is 'Si quis contra hanc donationis cartulam venire temptaverit aut corrumpere, ante omnipotentem Deum et Jesum Christum filium ejus et Spiritum Sanctum, id est inseperabilem Trinitatem, sciat se condemnatum et separatum ab omni societate Christiana'. The early charters are distinguished from the later ones not only by the brevity of the anathema, but by its comparative mildness. They are indeed benevolent wishes when compared with the ferocious, bombastic and blood-curdling anathemas of the later documents. We may safely lay down the rule that in early deeds the sanction clause must be brief, mild, and expressed in plain, straightforward diction, free from the tinsel rhetoric of later times. Indeed, this freedom from rhetorical exuberances is a pronounced characteristic of the earliest charters, but whilst the presence of grandiloquent phrases and wire-drawn clauses in an early text would justify our rejecting it as genuine, we cannot say that an early charter is genuine merely because it is free from verbal extravagance, because some of the most ignorant forgeries of the twelfth century are composed in as plain and bald language as it is possible to use. The twelfth-century charter errs on the side of excessive brevity and harshness, and familiarity with it caused many of the forgers of O.E. charters to fabricate charters that could by no imaginable possibility be condemned on the grounds of rhetorical redundancy. But these concisely-worded forgeries are at once condemned when we examine their formulae and test them by those of our earliest charters.
Following the sanction in the older charters generally comes the clause 'manentem hanc donationem, etc. in sua firmitate', a clause whose Italian origin we have just established.
The clause usually following this is one to which I wish to direct especial attention, as it is an unquestionable proof of the imitation of the late Roman private deed. As it is a Roman legal formula, it is not open to the objection that might possibly be urged against some of the agreements in formulae that we have examined above - namely, that these clauses, meeting common needs and being the expression of common thoughts, might have originated in England independently of Italian reminiscences of the Roman private deed. In a lecture it is somewhat difficult to make thoroughly plain the essential identity of formulas that are apparently differentiated by the occasional omission or addition of a word or the replacement of a word by a synonym. Although I do not think that these trifling variations, which occur, it must be borne in mind, also in the Italian private deeds, affect the conclusion that the several Old English formulae with which we have dealt are borrowed directly from Italy, it is nevertheless gratifying to advance proofs that are not open to cavils of this nature. Such proof is, I claim, afforded by the clause in our early texts introducing the ratification of the witnesses. For this clause is no less than the formula by which the Roman notaries introduced the attestations of the legal witnesses, who played so important and well-defined a part in Roman deeds. Its presence in the English diplomas is a noteworthy proof of the influence that the formulas of the late Roman private deed had upon the men who supplied the models for our earliest instruments. Moreover, it is another proof, and one of great importance, that the Italian missionaries in drawing up the earliest English royal charters took for their model the Italian private deed and not the instruments of the emperor or the close imitations thereof issued by the Germanic kings in Italy. [147]
In my former lecture, it will be remembered, I endeavoured to explain the singular fact that the Old English royal instrument is, alone amongst the royal documents of western Europe, drawn up on the model of the Italian private deed instead of on that of the imperial or royal rescript, by the theory that the newly converted Christian king of the still pagan English kingdom was regarded as being outside the pale of the Roman legal or administrative system, and as therefore not to be expected or perhaps allowed to speak in the words of the emperor, as his brother Teutonic kings did in Italy, Gaul and Spain. The imperial instruments did not, as Professor Ficker has explained, [148] need authentication by witnesses. The sanction of the imperial power was so great that the confirmation of witnesses of an imperial instrument, besides being unnecessary, would have been considered derogatory. The will of the emperor could not be gainsaid, and therefore his instruments could [not] be challenged or disputed. The Germanic kings of Italy and Gaul laid claim to the power and privileges equal to those of the emperor, they surrounded themselves with courts and officials in reproduction of the imperial court, and they therefore naturally used the formula of the imperial chancery. Therefore we may claim that the issue of diplomas uncorroborated by witnesses was an outward sign of these quasi-imperial pretensions and state of the Germanic kings of Italy and France. The early English kings, separated, as we have said, by a century and a half of paganism from the influence and glamour of the Roman empire, could have had no traditions on which to base pretensions similar to those of the continental kings settled within the ancient boundaries of the empire, which presented itself as a living organism to their view. The mighty traditions of the empire continued to dazzle the imagination of the Germanic warrior-kings long after they had learned how weak and rotten was the Roman power. The traditions retained sufficient power even after the empire had practically vanished from western Europe and its waning glories had been smircked in the moral sloughs of Byzantium, to rivet the imagination and beget the imitation in the great mind of Charles the Great.
But to return from this digression. The late Roman private deed was required to have a number of witnesses, fixed by law at five or seven. Their functions in Roman was very much more important than those of the witnesses to the early English charters, and the application to the latter of the legal formula pertaining to the former is a fact remarkable in many ways. In the eyes of the Roman lawyer the functions of the Roman and of the English witnesses could hardly be confused, and the use of the Roman technical expression in the early English charters seems to support Professor Maitland's suggestion that the Old English charter is a reproduction or reflection of the Roman private deed by a man who was not a lawyer. [149] In the late Roman deeds each witness attests in set formulae that, being called (rogatus) by the donor or executor of the deed, he has witnessed the making of the conveyance or exchange, the payment of the purchase price, and the like, that he has witnessed the subscription by the donor, the delivery of the deed to the donee by the donor, and he subscribes himself as a witness. A cross was prefixed to the signature. These witnessing clauses are well represented in the charter of St. Gregory in 587 to which I have referred so frequently. In our earliest charters the witnessing is cut down or replaced by the words 'signum manus' followed by the witness's name and by the word testis, though this latter word is not always given. The attestation is preceded or followed by the sign of the cross. The number of witnesses is not restricted to the Roman numbers, although they are, as contrasted with the later usages, few in number. It is noteworthy that the simple attestation 'Signum manus' is used in the Farfa charter. The Roman witnesses state in their attestations that they were invited (rogati) to subscribe by the executor of the deeds. This calling of witnesses is the rogatio testium prescribed by law for the validation of private deeds. In later times its shadow falls across the path of the student of English records in the shape of the attestations of the notaries public, who brought a survival of the formula with them from Italy. In the late Roman deeds this rogatio testium is referred to in the subscription of the donor, wherein he has read, consented to and subscribed the deed, that he has dictated it to the notary, and that he has desired or invited witnesses to subscribe. The latter clause is given in the words 'et testes ut subscriberent conrogavi' in a Ravenna charter of 523, in St. Gregory's deed and in several sixth-century papyri. Another formula of the same period is 'et testibus obtuli subscribendam', or 'testibus a me rogatis obtuli subscribendam'. Turning to our earliest charters we find in the Chertsey charter of 675 'testes ut subscriberent rogavi', in Hlothhere's charter of 679 the same word for word, [150] and also in the charter of Oswine of Kent, A.D. 689. [151] Hodilred's charter of 692-3 is without these words. [152] In the charter of Oswine of Kent, A.D. 675, the king states that he has conduxi the witnesses 'ad subscribendum ac ad consenciendum mihi huic donationi'. [153] Swæbheard of Kent c. 676 states he has requested (rogavi) his principes to subscribe the cross. [154] In 686 Eadric of Kent states that he has requested (rogavi) archbishop Theodore and other witnesses to subscribe. [155] Wihtred of Kent, A.D. 694, states that he has requested his principes to affix the sign of the cross. [156] This charter is noticeable for having another clause, an exceedingly rare one, that is derived from the late Roman private deed. This is the sentence 'Quam saepedictam cartulam scribendam dictvi, et tibi Eabbae abbatissae tradidi conservandam'. The testes ut subscriberent rogavi formula occurs in another charter of this king dated in 696, [157] and in an original charter of his dated in 697, [158] and in a charter of 699. [159] There are several variants of this formula in the early charters, but these need not detain us. It occurs, somewhat modified, but with the essential words 'ut subscriberet rogavi' in Æthelmod's private deed of 681. [160]
Side by side with this formula there occurs in our early charters another one that is also derived from the late Roman deed, and that is, like the phrase just considered, strong evidence in favour of the authenticity of a text in which it occurs. The late Roman deed was subscribed by the donor, sometimes in Greek, or even in Gothic. When, as occasionally happened, the donor was unable to write, it is stated that he had made or impressed the sign of the cross by reason of his ignorance of letters. In a papyrus of 553 the donor, a Gothic woman named Runilo, states that 'propter ignorantiam litterarum signa inpraessimus'. The word imprimere is thus used in papyri of 551 and 572, but in most instances the verb is facere. Thus we read in a sixth-century fragment 'propria manu pro ignorantia litterarum signum venerabilem sanctae Crucis feci'. This clause is hardly one that we should expect to meet with in our early diplomas, for it would have been exceptional to find a king in the seventh century who could write. The presence of this clause may therefore safely be ascribed to the imitation of the late Roman private deed, and it is a strong argument in favour of the authenticity of any text containing it, for it soon went out of use. Its supersession must have been hastened by a perception of its inappropriateness in England, more especially as the bishops, who presumably could write, ceased to subscribe, and the crosses that stand for their attestation were written by the clerk who wrote the diploma. Frithuwald is made to say 'signum sanctae crucis + pro ignorantia literarum expressi', an unimportant variation of the Italian impressi. [161] The same words, but different order, occur in the charter of Oswine of Kent, A.D. 689, [162] in [those] of Wihtred of Kent, A.D. 694 and 696, [and] in two original charters of this king of the year 697. [163] They are also found in the charter of Cenwulf in 799, [164] to which I have already drawn attention for its remarkable retention of late Roman formulae. Sometimes the words 'propria manu' are added. The words 'pro ignorantia literarum' were omitted occasionally in the seventh century, and then the phrase became 'propria manu signum crucis impressi'. This, again, is an evidence of antiquity, but a mention of the fact that a king has written or affixed the cross by his own hand must not be accepted as a proof that the charter containing it is genuine. A post-Conquest forger will occasionally refer to these autograph crosses, for the Norman kings sometimes affixed the cross to deeds in their own hands, and Norman forgers must have been acquainted with the French custom of signing with autograph crosses, a custom derived by another channel from the same source as the early Old English usage.