Hitherto we have dealt exclusively with the O.E. diploma. We must now turn to another class of record that began to displace the diploma in the eleventh century and that eventually superseded it in the next century. [279] This is the document that we may call the writ. It and the diploma represent two classes of records that were in use amongst the Romans. One is the dispositive record, that is the document that is in itself the vehicle of the gift, which is not completed until the delivery of the document. This is the diploma, the document with which we have been hitherto concerned. The other is an instrument that notifies a transaction that is already completed. The distinction between the two classes of documents was hinted at by Sickel and finally established by Brunner. [280] On the continent the former class is called the carta and the latter notitia, but in England we are compelled to use the terms diploma and writ.
But the fact that the distinction represented by these two forms of records existed amongst the late Roman record must not lead us to believe that we shall [?] a Roman prototype for the English writ. The connexion is rather in the purport than in the form of the Roman and the English instruments. It is true that we find close parallels to the English writ amongst the Greek papyri from Fayoum. We must not, however, lay too great stress upon this agreement inform, for it is most probably to be accounted for by the fact that they are both epistolary in form, and that they are both royal mandates addressed to certain officers.
The earliest English writ that is genuine is that of Cnut in favour of archbishop Æthelnoth of Canterbury. [281] It is written in the fine MS. known as MacDurnan's Gospels preserved at Lambeth Palace, in a contemporary hand. Kemble recognised that this writ was the archbishop's investiture of temporalities, and its importance in legal and diplomatic history has [been] brought out by Professor Maitland in his usual inimitable manner. [282] The writ is in English, a feature probably arising from its close connexion with the shire-moots. We have seen that the English, with their usual independency and originality, used their own language in wills and other legal documents in the ninth century. With the exception of the Gothic attestations in the Italian sixth-century deeds, there is no trace of any Germanic race drawing up legal documents in their own tongue at so early a date. [283] At the very end of the twelfth century we meet in Iceland with deeds in the native language. The earliest German record in the vernacular comes from the middle of the thirteenth century, and the French are no earlier. The Norman Conquest strengthened the hold of Latin as the legal language, although we have traces of the use of English by Norman bishops and abbots in the twelfth century and of the drawing up of leases in that language in the twelfth century. French comes into occasional use for legal deeds in the thirteenth century, and English makes it appearance at the opening of the fifteenth century, when it entered upon a lengthy struggle with Latin for the mastery that was not finally settled by the absolute defeat of the foreign tongue until the middle of the last century.
We have already laid down the position that transfers of land were in O.E. times effected without written documents by the witness of the suitors of the shire-moot or hundred-court, an undoubted survival of early Germanic law. When the boroughs obtain importance in the constitutional scheme, their courts are invested with the duties of the shire-moot and of the hundred- court. The later medieval borough is not satisfied until it has reached the rank and is invested with the officers of a county, and we have witnessed in our day the creation of new class of county boroughs. The beginning of this long municipal struggle is far back in the mists of our early history. As early as the ninth century we have, in a note appended to a charter of 839, [284] evidence that land was conveyed by the witness of the inhabitants of a city, no doubt in their borough court. The noteworthy feature about this passage is that land that had been granted by a royal instrument could be transferred before a popular assembly. The instrument or 'book' was, it is true, handed over at the same time. This important note is in English to this effect 'Lulla bought this book and this land from Æthelwald with the witnesses of all these port-men' - (inhabitants of the town of Canterbury). A later note in the same charter, also in English, testifies that Archbishop Dunstan bought the land from a woman and her two sons by the witness of the monastery at Christ Church and of the body of the burghers (burhwered). In Cnut's time we have an instance of the endorsement of a mortgage in English on the back of a diploma of Æthelstan's, and that the bishop had signified that he had granted this mortgage to the wise men of the borough of four Devonshire boroughs. [285]
From these and other instances we can see how important was the position held by the local courts as witnesses and recorders of transfers of land. In the Domesday Survey we have numerous proofs that questions of title were decided by them. In order to execute this function properly, it is obvious that they must have been advertised of every change in the ownership of land in their district. Otherwise the appeal to their memory in questions of disputed titles would have possessed little legal value. It therefore follows that when the king made a grant of land by diploma, he must have signified the fact in some way to the shire-moot or borough court. In the days of the small kingdoms this might have been done by a verbal message, or the king might even have trusted such a public action as the bestowal of a diploma to have come to the knowledge of the men in the neighbourhood of the land conveyed without his direct interposition. But with the expansion of the kingdom this system could not work satisfactorily. What was possible to a king of Sussex or Essex would be difficult for the ruler of the great kingdoms of Mercia or Wessex. It would be more difficult still for the king who ruled from the English Channel to the Firth of Forth. It is no wonder therefore that the custom arose of the king signifying in writing to the suitors of the shire-moot that he had made a particular grant. The instrument used was the writ, and the fact that it was addressed to the shire-moot rendered its preservation doubtful. In the few cases where they were preserved the abbey or person in whose favour they were issued would seem to have presented them to the shire-moot, to have had them read, and to have regained possession of them and treasured them as muniments of title. As a rule the abbey would be satisfied by preserving the solemn diploma. In one instance only have I been able to find that the diploma and the writ were both preserved. In another instance in the time of William the Conqueror the diploma is preserved and we have a record of the sending of the writ to the shire-moot. As the chances of the preservation of the writ, until it displaced the diploma, were so small, there is no reason why we may not assume that the writ was in use long before the earliest instance of it that has come down to us. This is an assumption that is supported by the form of the writ, and by the fact that Cnut is not known as an innovator in chancery usages. Being addressed to the unlettered shiremen, the writ was necessarily in English, and it has certain fixed formulas and alliterative jingles that are, as Professor Maitland has well observed, suggestive of greater antiquity than the time of Cnut. The history of the writ seems to have gone through three stages. First, it is delivered to the shire-moot, and nothing more is heard of it. Second, occasionally the party in whose favour it is drawn up, obtains possession of it and keeps [it]. Third, it has become a usual custom thus to retain the writ, which takes its place as a muniment of title and gradually renders the issue of the diploma unnecessary. Owing to its elastic form the writ can be made to do almost anything. Hence it is used for the promulgation of laws; by the addition of [an] enacting clause it gradually develops into the royal charter and thus continues in use until the time of Queen Anne. It is made to convey the king's will to other persons than the suitors of the shire-moot, and at the end of the twelfth century it becomes differentiated into letters patent and letters close, the two great instruments for the government of England for many centuries. In the form of letters patent it is still in use. Already by the end of the eleventh century we can trace in it the lineaments of the later judicial writs - an interesting progeny upon which Professor Maitland, our modern Selden, has thrown so much light. [286]
The writs of Christ Church, Canterbury, afford us a convenient epitome of the history of the writ. They begin with this famous writ of King Cnut, which it is advisable to lay before you in a translated form. [287] After the sign of the cross, it proceeds, in the brief, business-like language of the writ: 'King Cnut greets in friendly wise all my bishops and my earls and my reeves in every shire wherein Archbishop Æthelnoth and the monastery at Christ's Church has land. And I notify to you that I have granted to him that he shall be worthy of his sac and of his soc, and of 'grið-bryce', and of 'ham-socn', and of forestall, and of intaken thief, and of 'flymenafyrmð' over his own men within borough and without, and over Christ Church, and over as many thegns as I have granted to him. And I will that no man shall claim any jurisdiction therein except he and his bailiffs, because I have given these rights to Christ for the redemption of my soul for ever, and I will that no man shall ever infringe this under pain of forfeiting my friendship.'
This writ, it will be seen, invests the archbishop, who filled the see from 1020 to 1038, with certain jurisdictions and immunities over his land, and it is one of the most important documents we possess for the early history of private jurisdiction. The writ would seem to have transferred these rights without their being mentioned in the formal diplomas. [288] There is preserved at Paris an original writ of Edward the Confessor signifying to the bishop of the diocese, the earl, and to all his thanes in Oxfordshire that he has granted Taynton of the great monastery of St. Denis near Paris, 'and all the things that pertain thereto of right, in wood and in field, with sac and with soke, as fully and as entirely as it was when in my hands'. [289] This writ has the usual direction of the writ, the Canterbury one being unusual in its more general address. The St. Denis writ is also noticeable for having a sanction, and for containing a clause 'and I will that the bishop shall draw up an instrument (boc) relating to this, with my full leave'. A Wulfwig, it may be noted, is called 'cancellarius' in a Westminster forgery of 1045. [290] In the diploma, which claims to have been written by bishop Wulfwig and is dated 1059, [291] no mention whatever is made of the jurisdiction conveyed by the sac and soke of the writ, unless it is covered by the clause exempting the land from everything except the contributing to military expeditions and to the repairing of fortresses and bridges. If private jurisdictions could thus be conveyed without being mentioned in diplomas, we have a fact of very great importance in the history of the growth of private jurisdiction, and the testimony of the St. Denis writ deserves additional importance from the fact that it relates to a new gift, not to the confirmation of already existing rights and immunities.
The Canterbury writ, on the other hand, merely invests the new archbishop with the existing rights of his see. [292] This is, perhaps, not absolutely clear from the words of the writ itself, but the conclusion that this is the intention is forced upon us by a consideration of the later writs. Succeeding archbishops obtained writs in precisely the same words down to the reign of Richard I, and also another writ investing them with the lands of the archbishopric. The oldest instance of the latter writ is that of archbishop Stigand in 1052. [293] From this time onwards the writs of all the archbishops are preserved in the originals or in copies. It is a good proof of the continuance of the O.E. chancery and administrative system under William the Conqueror that archbishop Lanfranc was invested with the jurisdiction of his lands with a writ drawn up in O.E. in the same words as the writ of Cnut. Similarly Archbishop Anselm received English writs under William II on his election in 1093, [294] and again when he was received into the favour of Henry I in 1105. The writs of William Rufus and Henry seem to have been accompanied by a Latin version. This was certainly the case in 1114 when writs were issued for Archbishop Ralph, and apparently in the case of archbishop William in 1123. Theobald in 1139 received a bilingual writ, and again upon the accession of Henry II in 1154. After this time the English version disappears, but the Latin, reproducing the language of Cnut's writ, was used by Richard I and John. This Latin version might be taken as a type of the royal charter of the Norman kings, which is generally assumed to be formed on Norman lines, whereas it is in every feature plainly and undoubtedly the O.E. writ in a Latin dress.
Series of writs almost as complete and as convincing might be adduced from St. Augustine's, Canterbury, from Winchester, Westminster, and Chertsey abbey. The monastery of St. Peter's at Ghent received from Henry I and Henry II and John Latin writs that were mere translations of a writ of Edward the Confessor.
The writ of Cnut cited above does not stand alone, for we have later copies and translations of half a dozen or more writs of his. In his diplomas Cnut followed the usages of the chancery of Edgar and Æthelred, but the writ in his time was probably already beginning to displace the diploma. We have, perhaps, evidence of this in the reign of Edward the Confessor. This king issued some twenty-five English writs relating to the estates conferred upon Westminster abbey by him, but he seems to have issued no diploma, a defect that the monks endeavoured to remedy about the year 1100 by forging no less than three diplomas for him. The king died, it is well known, before the completion of the abbey, but it is difficult to believe that he deferred the making of a diploma until the completion of the buildings. The citizens of London obtained from William the Conqueror a confirmation of their liberties soon after the Conquest. This confirmation took the form of a writ in English. This venerable slip of parchment, the first model of the long series of town charters, may have been the first application of the writ to a purpose of this sort, but even if this was so, it is a testimony of the growing popularity of the writ. This writ is noticeable for the appearance of the words 'French and English' in the address clause, for these words became fixed as a part of the address clause of writs in the eleventh and twelfth centuries, and as the writ became the model of the private charter, they are commonly met with in the deeds of nobles and others.