This re-appearance in England after the Norman Conquest of diplomatic usages and even formulae that had been in use in the earliest periods of the Old English charters is one of the great difficulties that we have to deal with in attempting to settle the question of the authenticity of Old English charters preserved in later copies. The difficulty arises, of course, from the common origin in the late Latin private deed of the Old English charter and the Frankish private deed, the parent of the Norman. There are many formulae in the Frankish formularies that were not used in England until after the Norman Conquest, and we may safely condemn any O.E. text in which they occur. But we must not assume that because certain Formulae met with in these Frankish formularies are found also in an O.E. charter that the latter is a forgery. We have seen, to take one example, that the clause 'quicquid exinde facere volueris liberam habeas potestatem' is used in genuine O.E. charters of the seventh century, and we should therefore be manifestly wrong if we condemned a copy of an O.E charter because it contained these words and because they occur in the formulary of Marculf. It is unnecessary to multiply examples, for I have taken care to point out instances where the formulae of the late Roman private deed are common to the Old English diplomas and to the Frankish formularies. In this as in every other study we must not form hasty conclusions upon the evidence of a solitary instance or formula in a text. Occasionally a forger of a charter will deliberately borrow a clause from a genuine O.E. charter, although he generally betrays himself by ascribing the charter to a king who did not use the particular formula. The question of authenticity of a given text can only be settled by the careful consideration of a number of factors and by the application of numerous minute tests. Nothing, for instance, could be more misleading than to conclude from the occurrence of the Roman formula 'sana mente integroque concilio' in the granting clause of the charter of Æthelberht of Kent, A.D. 605, [165] that this text was genuine because, as we have seen these words were undoubtedly used in O.E. charters of the seventh century. This charter is, contrary to the O.E. usage, addressed, after the manner of letters patent, 'omnibus suae gentis fidelibus'; it used the Norman-Latin redditus 'rent' and donaria for dona; it mentions the writer, who is described as referendarius, a Romano-Merovingian chancery title that was never in use in England, and another Frankish official is converted by some blunder into a 'Graphio comes'. An equally impudent and even clumsier forgery is the charter of Wulfhere of Mercia to Peterborough (Medeshamstede) abbey in 664. [166] This charter abounds with Norman terms and forms such as francum plegium, caruca (of land), late legal terms such as in puram et perpetuum elemosinam, and formulae from twelfth-century writs and charters. Yet when we come to the end of this egregious forgery, we find a lengthy anathema that is not only drawn up in the O.E. form but was actually in use in England nearly four centuries after the pretended date of this precious charter. And it is provided with a string of witnesses after the Old English model, a considerable portion of whom might really have witnessed a charter in the year 664. When, however, we find a charter such as that of Frithuwald [167] to which I have so frequently referred in which practically every sentence that could be possibly fixed in character can be proved to have been in use in England at the date of the charter and to have gone out of fashion within a short period of that date, we may safely conclude that the text was derived from a genuine charter. The evidence in favour of this charter is strengthened by the fact, which emerges from the foregoing examination of the formulae reproduced from the late Roman private deed, that this charter in several instances preserves fuller forms of these Roman clauses than occur elsewhere in our early charters. It is a somewhat sad reflection for the diplomatist that there can be no absolute certainty as to the authenticity of a charter in the absence of the original, and the arguments from the study of the formulae will not ensure him against the possibility that the portion of the charter that cannot well be tested by diplomatic - that is the quantity and name of the land conveyed, the person or monastery to whom it is conveyed, the immunities and privileges conferred - may be the product of some monastic forger, or may have been modified or interpolated before it was finally recorded in a chartulary. In these cases the character of the witness must be considered. We could hardly believe a Crowland or a Peterborough chartulary in any case, and where there was any doubt we should not be inclined to decide favourably on the evidence of the Evesham or the Winchester chartularies. If, on the other hand, the text before us rested upon the respectable authority of Heming's Worcestershire chartulary or Ernulf's Rochester chartulary, [168] the weight of their general honesty and accuracy of transcription in cases where we can check them should turn the wavering balance in favour of the text under consideration. There is only one theory that would throw doubt upon the authenticity of Frithuwald's charter. [169] It is one that we should do well to bear constantly in mind, for it is a theory that deprives all diplomatic as distinguished from palaeographical tests of their efficacy. This disturbing theory is the possibility of a forger borrowing a genuine charter of a particular king, copying the whole of its formulas and witnesses, and in fact producing a text differing only from his original in the description of the land or enumeration of the privileges intended to be granted by it. The charter thus prepared would break down when its handwriting was examined, but it would not be the charter itself that we should have before us, but a later copy in a chartulary, which would preclude all evidence from handwriting. For it is a remarkable fact that the great majority of the forged charters have come down to [us] through the medium of later copies, and an original forged charter is quite as rare as an original genuine charter.
The production of a forged charter in the manner just described represents the highest development of the forger's art. There are several indications amongst the later texts of this intelligent imitation of genuine charter, but fortunately the preparation of texts in this way demanded skill and foresight that were exceedingly rare amongst the monastic forgers. They were free from any control of diplomatic criticism. This immunity from diplomatic tests is well exemplified by the not infrequent forgeries of O.E. charters on the lines of the Merovingian or later Frankish or even twelfth century Anglo-Norman diplomas and charters, and by the persistence of the baseless notion that it was a custom of the Old English kings to deck out their diplomas with gold and red initial letters, chrismons and crosses - a notion that was shared by English judges and lawyers as late as the times of Elizabeth.
But the probability of the frequent occurrence of undetectable forgeries formed by direct copying of genuine charters is seriously reduced by the operation of numerous factors. To account for such a forgery we have first to assume the existence of a monk possessing the knowledge that the Anglo-Saxon diploma differed in form from the charter of his own time, and intelligent enough to perceive that his forged charter might be tested by comparison with genuine charters. The former piece of knowledge would naturally be more likely to be impressed upon a man who was conversant with the archives of a monastery containing genuine O.E. charters, than it would be upon a member of a monastery that did not possess a single O.E. charter. It is perhaps unfair to measure the ordinary monastic forger by the high intellectual standard of William of Malmesbury, but we may at any rate recall his acute observations upon the different nature of the Latinity used in the O.E. diplomas to that employed in French and Norman charters. When we have forgeries originating in monasteries that possessed genuine O.E. charters we do see conscious and clever imitations of O.E. formulas. Thus the Winchester and Malmesbury forgeries are skilful productions that do not bear very obvious marks of spuriousness, whilst some of the texts from Worcester are so cleverly prepared that opinion will long be divided as to whether they are genuine or spurious. On the other hand the forgeries from Crowland, Peterborough, and Westminster are so clumsy and so unlike any O.E. diplomas that their spurious nature is at once apparent. The reason of this [is], no doubt, to be found in the unfamiliarity of the monks of these monasteries with O.E. instruments.
Our next assumption necessary for the fabrication of an undetectable charter is that the forger, in addition to possessing the knowledge that the O.E. charter differed in form from that of his own day, was also aware that the O.E. kings did not all use the same formulas, and in fact that the O.E. royal instruments went through a series of well marked developments. This is a fact that we are only just beginning to realize, and it is unlikely that any twelfth-century forger, with his necessarily exiguous opportunities of seeing and comparing O.E. charter, should have become aware of this. He might, however, erroneously suggest to us that he had noticed these differences, for if he were a man lacking in originality and finding [it] easier to copy and adapt a genuine charter than to invent a brand new one, he might by luck or choice take as his model a charter of the very king upon whom it was necessary or desirable to father his production. This, however, seldom happened, either from want of intelligence on the part of the forger or from the forger's inability to lay his hand upon a charter of the particular king whose name he wished to take in vain. Generally it sufficed the forger if the charter that he chose as his model came from any O.E. king. We should therefore expect on a priori grounds that the charters most commonly imitated by the forgers were those of kings who had left the greatest number of instruments behind them. This is exactly what happened. The greater portion of the charters in existence date from the century or century and a quarter before the Norman Conquest, and it is the charters of this period that are most frequently imitated. Thus when a monk wants to forge a charter for a seventh- or eighth-century king, he will generally, if he imitates an O.E. charter at all, make the early king speak in the words of Æthelstan or Edgar. If the forger was not restricted in his choice of a king to whom to ascribe his bogus charter, as he was sometimes restricted when he wished to invent a foundation charter and it was well known who was the founder of this monastery, he would most likely father his forgery upon Æthelstan or Edgar, and thus add to the number of texts bearing their names that might serve as the starting point of fresh forgeries. There were, of course, reasons why these kings were such great favourites. Æthelstan was the first real king of all England, and he thus occupied a strong historical position in the eyes of the men of the twelfth century. Moreover, he was the hero of many popular stories, and he was the one O.E. king who impressed himself most strongly upon the imagination of the twelfth and thirteenth century. He was a hero of romance, and his real acts and deeds were almost buried beneath the crust of fictions, legal, monastic and popular, with which they were overlaid. Edgar was also a very great favourite with the forgers. Of him also many tales were told amongst the common fold, and he was a great historical figure. Englishmen long remembered the glories of his reign, and the peace and good government of this youthful king were objects they long sighed for. But what rendered him so great a favourite with the monkish forgers was not these considerations, but the great position that he held in the history of monasticism as the re-introducer of monks into England, the friend and patron of Æthelwold, 'the father of the monks', and of the still greater St. Dunstan, whose figure seemed to Englishmen of the twelfth and thirteenth centuries to stand forth more clearly and powerfully than that of any other ecclesiastic or statesman in the twilight of the little-known times beyond the Norman Conquest.
Next to these two great kings the most favourite monarch with the forgers was Offa, the great king of Mercia. He was known to history as a powerful king, a founder of monasteries, and the father of saints. This memory was carefully cherished at the great and influential monastery of St. Albans and its cells. His long reign was recorded by a great number of charters. Many forged charters were drawn up in his name, and his genuine charters seem to have afforded the model for most of the spurious charters pretending to date before his time. The explanation of this must surely be that the intelligent forgers of these early charters perceived that there were differences in the chancery-usages of the Old English kings, and therefore took care to choose for imitation the oldest model accessible to them. This in most cases must have been instruments of Offa.
Now if we assume that a monk of the twelfth century found it necessary to forge a seventh-century foundation charter, we should expect him, if he was a clever forger, to take as his model a charter of Æthelstan or Edgar. If he was very clever, we should expect him to imitate a charter of Offa's. What adjective should we apply to the imaginary forger of the Chertsey charter [170] who could have mastered the Roman formulas in the handfull of our earliest charters, and who could moreover use correctly fuller Roman formulas than those occurring in the texts that have come to us? Several of these formulas, were, it is true, still in use in Italy in the twelfth century, and it is not without the bounds of possibility that an Italian monk, familiar with these forms in his own country, might have been at Chertsey in the twelfth century and have prepared this charter. But I think we may rule out this possibility, for an Italian monk would scarcely be the person to whom the task of forging an O.E. diploma would be assigned, and it is unlikely that, if he did undertake the task, he could have been aware that these Roman formulas were used by English kings in the seventh century. Moreover, it is making very heavy demands upon even Italian ingenuity to assume that our hypothetical Italian monks could have distinguished so accurately between the late Roman formulas that were and those that were not used in English diplomas in the seventh century, and that he should also have known what clauses and expressions in the private deeds of his own country should be omitted from the seventh-century English diplomas as later Italian developments and additions. [171] But the Chertsey chartulary [172] has fortunately provided us with evidence that its official forger, so far from being capable of exhibiting the high intelligence, one might say the genius, required for forgery of Frithuwald's charter, [173] was a very indifferent craftsman. It was found necessary to provide a charter conveying to the monastery some score or so of estates, and the Chertsey monks deemed it advisable to ascribe their bestowal upon the monastery to Frithuwald, their founder. The forger began well by taking the genuine charter of Frithuwald for his model. From this he copied the invocation, the witnesses and the witnessing clauses, and made up the introductory sentences, really the operative clauses, by bringing together in different order various clauses from the original charter. He then made the king use the pluralis majestatis in accordance with the usages of his own time. He then gives a list of the lands conveyed, adds a very wide exemption from worldly services that it is unrepresented in the original, and then adds a monstrous anathema that occurs also in the Chertsey forgeries assigned to later kings, and which is clearly based upon ten[th] century models. Moreover, he gave to this precious production the impossible date of 727, which he describes as the 'year of the Incarnation', an era that did not come into use for legal documents in England or in western Europe until the eighth century. This ignorance as to the date of Frithuwald's reign is a good proof of the late date of the forgery. [174] The genuine charter is dated simply by the day of the month, the king's regnal year, the system of dating in use at that period, being for some reason omitted. The contrast between the genuine and forged charters is instructive. We should condemn the latter simply on the ground of the long enumeration of the estates, for these long strings of names are alien to the O.E. diploma, which will convey a great tract of country under a single local name. The long enumeration is an imitation of the Norman charters of confirmation, wherein all the estates of a monastery were named. We thus see that the authenticity of the Frithuwald charter of circa 675 is evident from comparison with the forged one of 727, [175] no less than from the text of its formulas by a singularly severe diplomatic test. As it comes so well out of the ordeal, we may surely conclude that it is a copy of a genuine seventh-century charter. The conclusion is of interest, for this charter is the only early royal charter prior to the original charter of Hlothhari in 679 [176] that has passed the examination of its diplomatic formulae. We may therefore install it in the honourable position of the earliest English royal instrument.
The genuine seventh-century charters are few in number, and they are outnumbered by texts that must be condemned as spurious. From Evesham we have several clumsy and impudent forgeries. The monks of Canterbury fabricated charters to replace those that had been destroyed. Their brethren at Glastonbury and Winchester begin their long series of forgeries with texts pretending to come from this century. The monastery of Malmesbury, a competer in infamy with Glastonbury, contributes several bogus charters, Abingdon, Chertsey, and Barking also figure in the list of forgeries, and even Worcester, the guardian of so many genuine early charters, does not escape the contagion of falsification. The Peterborough forgery we have already discussed.