By Julie Mumby

Customary rules are thought to have governed the cross-generational transmission of family land – i.e., land passed from one generation to the next within a small group of closely-related persons. But the surviving sources reveal little of what these rules involved. From the Historia abbatum, Bede’s early eighth-century history of the foundation of his monastery at Wearmouth-Jarrow and of its abbots, it has been inferred that family land was divided among sons, with the first-born taking precedence. Benedict Biscop, the founder of the monastery, is therein said to have uttered the following words on his deathbed in 689:

‘For’, he said, ‘as he who by carnal means begets carnal children necessarily by carnal and earthly considerations seeks carnal and earthly heirs for his inheritance those who by the spiritual seed of the Word bring forth spiritual sons of God are necessarily driven by spiritual considerations. Among his spiritual children let him be the greater who is endowed with the greater spiritual grace, just as earthly parents recognize their first born son the principal of their children and in the partition of their inheritance are in the habit of giving preference to him’ (HA,11).

Thomas Charles-Edwards suggested that the late seventh-century laws of the West Saxon King Ine revealed how the eldest son took precedence – he was given the parental home.

If a ceorl and his wife have a child together, and the ceorl dies, the mother is to have her child and rear it; and she is to be given six shillings for its maintenance, a cow in summer, an ox in winter; the kinsman are to take charge of the frumstol [i.e., the ‘first seat’] until the child is grown up (Ine 38).

Yet there are problems here: Ine’s Wessex is geographically a long way from Bede’s Northumbria, and Ine 38 mentions only one child, who might have been female – the gender neutral bearn is used; the association of the frumstol with the eldest son is thus uncertain. Bede’s intellectual milieu also raises the possibility that, rather than founding his analogy on contemporary lay practices, he based it on the precedence afforded biblical first-born sons (Genesis 48:13–14). By revealing the existence of other possibilities, the so-called ‘Kentish Custumal’, which describes a form of inheritance known as gavelkind, further destabilizes the weight placed on the evidence of the Historia abbatum. Although the Custumal as it survives is perhaps a late thirteenth-century document, gavelkind itself was almost certainly of Anglo-Saxon origin. The Custumal provides that the parental home (‘the hearth and forty feet around it’) pass to the youngest son, but gives priority to the eldest son elsewhere in the partition process: ‘and let the eldest brother have first choice, and the others afterward, according to age’. So it at least looks as though we should resist placing the eldest son in automatic possession of the parental home in every early Anglo-Saxon kingdom.

Beyond Ine 38 the early English laws reveal little of Anglo-Saxon inheritance practices. The slightly earlier laws attributed to the Kentish kings Hloþhere and Eadric say much the same as those of Ine: here, the child of a deceased father was to be given one of his father’s kin to act as surety for his property (feoh, literally ‘cattle’) until he reached ten years of age (Hl 4). In the late ninth century, King Alfred ruled that a man who broke his pledge, but who would not submit without, must forfeit his weapons and his inheritances (Af 1.4), while an abducted nun, and any child she might bear, was to receive no inheritance from her abductor (Af 8). Æthelred II’s laws refer specifically to heirs (erfenuma): ‘and if anyone dwells without contest and claim on his property (āre) for life, then no man shall bring an action [from the verb spræcan, literally ‘to speak’] against his heirs after his death’ (III Atr 14). Wives and children, rather than unspecified heirs, were protected in the eleventh-century laws of Cnut (II Cn 72), which elsewhere disallow interference in inheritance: the heirs of a man who fell before his lord were to ‘succeed to the land and to the possessions and divide it very justly’ (II Cn 78); the property of a man who died intestate (cwydeleas, literally ‘speechless’) was ‘to be very justly divided among his wife and children and near kinsmen, each in the proportion which belongs to him’ (II Cn 70). Perhaps deriving from a now lost secular counterpart of VIII Æthelred (1014), these clauses could well reflect grievances that Æthelred II undertook to address when the witan invited him to return from his brief Norman exile in 1014, ‘if he would govern them more justly than he did before’ (ASC [C] 1014).

Varied and flexible approaches to the partition of inheritance emerge strongly in Domesday. The Surrey Domesday includes what looks like a straightforward case of a man who divided his property before his death: ‘Leofgar held [Thames Ditton] of Harold, and served him, but could have gone with the land where he would. When he died, he divided this land between his three sons in the time of King Edward’ (GDB, fo. 32). Elsewhere, further varieties of partition appear. In Colchester (Essex), Godric’s four sons divided their father’s land into four parts of unequal value before the Conquest (LDB, fo. 104). Lincolnshire entries indicate that the practice of partition could be applied to rights and obligations as well as land. When Harold, Guthfrith and Ælfric divided their father’s land after his death in the time of King Edward, Ælfric did not receive a share of their father’s soke – i.e., his right to collect profits of justice and other customary dues with respect to the land (GDB, fo. 375). Four other brothers presumably divided their father’s soke in line with the land: Domesday records that ‘the Bishop of Durham ought to have the land of three brothers with sake and soke, and Eudo fitz Spirewic the land of the fourth brother, likewise with sake and soke’ (GDB, fo. 376). Before 1066, Ketel and Thorfridh divided their father’s land, with Ketel assuming the attached military obligations in their entirety (GDB, fo. 354), while Sighwat, Alnoth, Fenkell and Eskil rotated such military obligations between them when they divided their father’s land (GDB, fo. 375v).

So, family land in Anglo-Saxon England was passed across the generations through what were often structurally complex kin-groups via flexible inheritance practices that gave primacy to partition among sons. Sons perhaps postponed inheritance by daughters – the Kentish Custumal provided that in the absence of male heirs, inheritance might be divided between female. Since family land placed in female hands passed out of family control when women married and moved away from their natal family, such postponement would be unsurprising, and is found elsewhere in early medieval Europe. Still, daughters must have inherited family land on a regular basis – E. A. Wrigley estimated that, in pre-industrial societies, the birth of six children would give a one-third chance of a son surviving his father; and 20 per cent of couples would have only female children. Women only once appear in the sources in possession of partitioned inheritance. In the early ninth century, the West Saxon King Ecgberht confirmed the possession of ten hides at Woolland (Dorset) by three sisters, Beornwyn, Ælfflæd and Walenburch (S 277). The charter states that the women had inherited the estate and partitioned it among themselves. After receiving more of their paternal inheritance, a new division occurred: Beornwyn retired to Dartington (Devon), leaving her sisters to divide Woolland. Susan Kelly has argued that the account of these two divisions by the sisters was added to an authentic charter in the tenth or eleventh century – but the events described may have been real enough. The sisters purportedly sought King Ecgberht’s charter because the estate’s documentation was missing. This suggests that Woolland was bookland – i.e., land held by royal diploma – rather than family land. Generally subject to fewer restrictions on alienation than family land, bookland was often used to endow daughters. Woolland was perhaps family land converted to bookland to enable the father of Beornwyn, Ælfflæd and Walenburch to provide for his daughters. The wills of Anglo-Saxon England, being documents that recorded the descent of bookland, thus feature a disproportionate number of daughters; sons rarely appear as beneficiaries within them precisely because family land catered for their needs.

The apparent elasticity of Anglo-Saxon inheritance practices revealed in the sources reflects the findings of social anthropologists working in the field of customary law, who consider ‘rules’ anything but immemorial: Ian Hamnett suggested that ‘nothing is more characteristic of customary law than its particularism and localisation’, the application of which is ‘flexible and subject to change’. Partible inheritance of family land among sons might have been the overarching customary rule governing Anglo-Saxon inheritance, but the exact divisions of both property and its associated rights and obligations were probably subject to regional variation where they suited individual family circumstances.

Select bibliography

Charles-Edwards, T. M., ‘Kinship, status and the origins of the hide’, Past & Present, 56 (1972), 3–33.

Hamnett, I., Chieftainship and Legitimacy: an Anthropological Study of Executive Law in Lesotho (London, 1975).

Kelly, S. E. (ed.), Charters of Shaftesbury Abbey (Oxford, 1996).

Lancaster, L., ‘Kinship in Anglo-Saxon Society – II’, British Journal of Sociology, 9 (1958), 359–77.

Mumby, J., ‘The descent of family land in later Anglo-Saxon England’, Historical Research, 84 (2011), 399–415

Plummer, C., Venerabilis Baedae. Historiam Ecclesiasticam Gentis Anglorum, Historiam Abbatum, Epistolam ad Ecgbertum una cum Historia Abbatum Auctore Anonymo (2 vols., Oxford, 1896).

Wittwer, K. (ed.), Kentish Custumal consulted via <http://www.kentarchaeology.ac.uk/custumal/KWcustumal.pdf> 

Wormald, P., ‘On ÞA WÆPNEDHEALFE: kingship and royal property from Æthelwulf to Edward the Elder’, in Higham, N. J. and Hill, D. H. (eds.), Edward the Elder, 899–924 (London, 1999), pp. 264–79.

Wrigley, E. A., ‘Fertility strategy for the individual and group’, in Tilly, C., Historical Studies of Changing Fertility (Princeton, NJ, 1978), pp. 136–54.