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Title: Domesday Book and Beyond - Three Essays in the Early History of England
Author: Maitland, Frederic William
Language: English
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DOMESDAY BOOK AND BEYOND

Three Essays in the Early History of England.


      *      *      *      *      *      *

Cambridge University Press Warehouse,
C. F. Clay, Manager.
=London=: Fetter Lane, E.C.
=Glasgow=: 50, Wellington Street.

[Illustration]

Also

=London=: Stevens and Sons, Ltd., 119 and 120, Chancery Lane.
=Leipzig=: P. A. Brockhaus.
=Bombay and Calcutta=: Macmillan & Co. Ltd.

[All rights reserved.]

      *      *      *      *      *      *


PREFACE.


The greater part of what is in this book was written in order that it
might be included in the _History of English Law before the Time of
Edward I._ which was published by Sir Frederick Pollock and me in the
year 1895. Divers reasons dictated a change of plan. Of one only need I
speak. I knew that Mr Round was on the eve of giving to the world his
_Feudal England_, and that thereby he would teach me and others many new
lessons about the scheme and meaning of Domesday Book. That I was well
advised in waiting will be evident to everyone who has studied his work.
In its light I have suppressed, corrected, added much. The delay has
also enabled me to profit by Dr Meitzen's _Siedelung und Agrarwesen der
Germanen_[1], a book which will assuredly leave a deep mark upon all our
theories of old English history.

The title under which I here collect my three Essays is chosen for the
purpose of indicating that I have followed that retrogressive method
'from the known to the unknown,' of which Mr Seebohm is the apostle.
Domesday Book appears to me, not indeed as the known, but as the
knowable. The Beyond is still very dark: but the way to it lies through
the Norman record. A result is given to us: the problem is to find cause
and process. That in some sort I have been endeavouring to answer Mr
Seebohm, I can not conceal from myself or from others. A hearty
admiration of his _English Village Community_ is one main source of
this book. That the task of disputing his conclusions might have fallen
to stronger hands than mine I well know. I had hoped that by this time
Prof. Vinogradoff's _Villainage in England_ would have had a sequel.
When that sequel comes (and may it come soon) my provisional answer can
be forgotten. One who by a few strokes of his pen has deprived the
English nation of its land, its folk-land, owes us some reparation. I
have been trying to show how we can best bear the loss, and abandon as
little as may be of what we learnt from Dr Konrad von Maurer and Dr
Stubbs.

For my hastily compiled Domesday Statistics I have apologized in the
proper place. Here I will only add that I had but one long vacation to
give to a piece of work that would have been better performed had it
been spread over many years. Mr Corbett, of King's College, has already
shown me how by a little more patience and ingenuity I might have
obtained some rounder and therefore more significant figures. But of
this it is for him to speak.

Among the friends whom I wish to thank for their advice and assistance I
am more especially grateful to Mr Herbert Fisher, of New College, who
has borne the tedious labour of reading all my sheets, and to Mr W. H.
Stevenson, of Exeter College, whose unrivalled knowledge of English
diplomatics has been generously placed at my service.

                                                  F. W. M.

  _20 January, 1897._



CONTENTS.


                                                                    PAGE

  PREFACE                                                              v

  TABLE OF CONTENTS                                                  vii

  LIST OF ABBREVIATIONS                                              xiv

                                ESSAY I.

                              DOMESDAY BOOK.

     Domesday Book and its satellites, 1. Domesday and legal history,
  2. Domesday a geld book, 3. The danegeld, 3. The inquest and the geld
  system, 5. Importance of the geld, 7. Unstable terminology of the
  record, 8. The legal ideas of century xi. 9.

                § 1. _Plan of the Survey_, pp. 9-26.

     The geographical basis, 9. The vill as the unit, 10. Modern and
  ancient vills, 12. Omission of vills, 13. Fission of vills, 14. The
  nucleated village and the vill of scattered steads, 15. Illustration
  by maps, 16. Size of the vill, 17. Population of the vill, 19.
  Contrasts between east and west, 20. Small vills, 20. Importance of
  the east, 21. Manorial and non-manorial vills, 22. Distribution of
  free men and serfs, 23. The classification of men, 23. The classes of
  men and the geld system, 24. Our course, 25.

                § 2. _The Serfs_, pp. 26-36.

     The _servus_ of Domesday, 26. Legal position of the serf, 27.
  Degrees of serfdom, 27. Predial element in serfdom, 28. The serf and
  criminal law, 29. Serf and villein, 30. The serf of the _Leges_, 30.
  Return to the _servus_ of Domesday, 33. Disappearance of _servi_, 35.

                § 3. _The Villeins_, pp. 36-66.

     The boors or coliberts, 36. The continental colibert, 37. The
  English boor, 37. _Villani_, _bordarii_, _cotarii_, 38. The villein's
  tenement, 40. Villeins and cottiers, 41. Freedom and unfreedom of the
  _villani_, 41. Meaning of freedom, 42. The villein as free, 43. The
  villein as unfree, 45. Anglo-Saxon free-holding, 46. Free-holding
  and seignorial rights, 47. The scale of free-holding, 49. Free land
  and immunity, 50. Unfreedom of the villein, 50. Right of recapture,
  50. Rarity of flight, 51. The villein and seignorial justice, 52. The
  villein and national justice, 52. The villein and his land, 53. The
  villein's land and the geld, 54. The villein's services, 56. The
  villein's rent, 57. The English for _villanus_, 58. Summary of the
  villein's position, 60. Depression of the peasants, 61. The Normans
  and the rustics, 61. Depression of the sokemen, 63. The peasants on
  the royal demesne, 65.

                § 4. _The Sokemen_, pp. 66-79.

     _Sochemanni_ and _liberi homines_, 66. Lord and man, 67. Bonds
  between lord and man, 67. Commendation, 69. Commendation and
  protection, 70. Commendation and warranty, 71. Commendation and
  tenure, 71. The lord's interest in commendation, 72. The seignory
  over the commended, 74. Commendation and service, 74. Land-loans and
  services, 75. The man's _consuetudines_, 76. Nature of
  _consuetudines_, 78. Justiciary _consuetudines_, 78.

                § 5. _Sake and Soke_, pp. 80-107.

     Sake and soke, 80. Private jurisdiction in the _Leges_, 80. Soke
  in the _Leges Henrici_, 81. Kinds of soke in the _Leges_, 82. The
  Norman kings and private justice, 83. Sake and soke in Domesday, 84.
  Meaning of _soke_, 84. Meaning of _sake_, 84. Soke as jurisdiction,
  86. Seignorial justice before the Conquest, 87. Soke as a regality,
  89. Soke over villeins, 90. Private soke and hundredal soke, 91.
  Hundredal and manorial soke, 92. The seignorial court, 94. Soke and
  the earl's third penny, 95. Soke and house-peace, 97. Soke over
  houses, 99. Vendible soke, 100. Soke and mund, 100. Justice and
  jurisdiction, 102. Soke and commendation, 103. Sokemen and 'free
  men,' 104. Holdings of the sokemen, 106.

                § 6. _The Manor_, pp. 107-128.

     What is a manor? 107. _Manerium_ a technical term, 107. Manor and
  hall, 109. Difference between manor and hall, 110. Size of the
  _maneria_, 110. A large manor, 111. Enormous manors--Leominster,
  Berkeley, Tewkesbury, Taunton, 112. Large manors in the Midlands,
  114. Townhouses and berewicks attached to manors, 114. Manor and
  soke, 115. Minute manors in the west, 116. Minute manors in the east,
  117. The manor as a peasant's holding, 118. Definition of a manor,
  119. The manor and the geld, 120. Classification of men for the geld,
  122. Proofs of connexion of the manor with the geld, 122. Land gelds
  in a manor, 124. Geld and hall, 124. The lord and the man's taxes,
  125. Distinction between villeins and sokemen, 125. The lord's
  subsidiary liability, 126. Manors distributed to the Frenchmen, 127.
  Summary, 128.

                § 7. _Manor and Vill_, pp. 129-150.

     Manorial and non-manorial vills, 129. The vill of Orwell, 129. The
  Wetherley hundred of Cambridgeshire, 131. The Wetherley sokemen, 134.
  The sokemen and seignorial justice, 135. Changes in the Wetherley
  hundred, 135. Manorialism in Cambridgeshire, 136. The sokemen and the
  manors, 137. Hertfordshire sokemen, 138. The small _maneria_, 138.
  The Danes and freedom, 139. The Danish counties, 139. The contrast
  between villeins and sokemen, 140. Free villages, 141. Village
  communities, 142. The villagers as co-owners, 142. The waste land of
  the vill, 143. Co-ownership of mills and churches, 144. The system of
  virgates in a free village, 144. The virgates and inheritance, 145.
  The farm of the vill, 146. Round sums raised from the villages, 147.
  The township and police law, 147. The free village and Norman
  government, 149. Organization of the free village, 149.

                § 8. _The Feudal Superstructure_, pp. 150-172.

     The higher ranks of men, 150. Dependent tenure, 151. _Feudum_,
  152. _Alodium_, 153. Application of the formula of dependent tenure,
  154. Military tenure, 156. The army and the land, 157. Feudalism and
  army service, 158. Punishment for default of service, 159. The new
  military service, 160. The thegns, 161. Nature of thegnship, 163. The
  thegns of Domesday, 165. Greater and lesser thegns, 165. The great
  lords, 166. The king as landlord, 166. The ancient demesne, 167. The
  comital manors, 168. Private rights and governmental revenues, 168.
  The English state, 170.

                § 9. _The Boroughs_, pp. 172-219.

     Borough and village, 172. The borough in century xiii., 173. The
  number of the boroughs, 173. The aid-paying boroughs of century xii,
  174. List of aids, 175. The boroughs in Domesday, 176. The borough as
  a county town, 178. The borough on no man's land, 178. Heterogeneous
  tenures in the boroughs, 179. Burgages attached to rural manors, 180.
  The burgess and the rural manor, 181. Tenure of the borough and
  tenure of land within the borough, 181. The king and other landlords,
  182.

     The oldest burh, 183. The king's burh, 184. The special peace of
  the burh, 184. The town and the burh, 185. The building of boroughs,
  186. The shire and its borough, 186. Military geography, 187. _The
  Burghal Hidage_, 187. The shire's wall-work, 188. Henry the Fowler and
  the German burgs, 189. The shire thegns and their borough houses, 189.
  The knights in the borough, 190. _Burh-bót_ and castle-guard, 191.

     Borough and market, 192. Establishment of markets, 193. Moneyers in
  the burh, 195. Burh and port, 195. Military and commercial elements in
  the borough, 196. The borough and agriculture, 196. Burgesses as
  cultivators, 197. Burgage tenure, 198. Eastern and western boroughs,
  199. Common property of the burgesses, 200. The community as
  landholders, 200. Rights of common, 202. Absence of communalism in the
  borough, 202. The borough community and its lord, 203. The farm of the
  borough, 204. The sheriff and the farm of the borough, 205. The
  community and the geld, 206. Partition of taxes, 207. No corporation
  farming the borough, 208. Borough and county organization, 209.
  Government of the boroughs, 209. The borough court, 210. The law-men,
  211. Definition of the borough, 212. Mediatized boroughs, 212.
  Boroughs on the king's land and other boroughs, 215. Attributes of the
  borough, 216. Classification of the boroughs, 217. National element in
  the boroughs, 219.

                              ESSAY II.

                     ENGLAND BEFORE THE CONQUEST.

     Object of this essay, 220. Fundamental controversies over
  Anglo-Saxon history, 221. The Romanesque theory unacceptable, 222.
  Feudalism as a normal stage, 223. Feudalism as progress and
  retrogress, 224. Progress and retrogress in the history of legal
  ideas, 224. The contact of barbarism and civilization, 225. Our
  materials, 226.

                § 1. _Book-land and the Land-book_, pp. 226-244.

     The lands of the churches, 226. How the churches acquired their
  lands, 227. The earliest land-books, 229. Exotic character of the
  book, 230. The book purports to convey ownership, 230. The book
  conveys a superiority, 231. A modern analogy, 232. Conveyance of
  superiorities in early times, 233. What had the king to give? 234.
  The king's alienable rights, 234. Royal rights in land, 235. The
  king's _feorm_, 236. Nature of the _feorm_, 237. Tribute and rent,
  239. Mixture of ownership and superiority, 240. Growth of the
  seignory, 241. Book-land and church-right, 242. Book-land and
  testament, 243.

                § 2. _Book-land and Folk-land_, pp. 244-258.

     What is folk-land? 244. Folk-land in the laws, 244. Folk-land in
  the charters, 245. Land booked by the king to himself, 246. The
  consent of the witan, 247. Consent and witness in the land-books,
  247. Attestation of the earliest books, 248, Confirmation and
  attestation, 250. Function of the witan, 251. The king and the
  people's land, 252. King's land and crown land, 253. Fate of the
  king's land on his death, 253. The new king and the old king's heir,
  254. Immunity of the ancient demesne, 255. Rights of individuals in
  national land, 255. The _alod_, 256. Book-land and privilege, 257.
  Kinds of land and kinds of right, 257.

                § 3. _Sake and Soke_, pp. 258-292.

     Importance of seignorial justice, 258. Theory of the modern origin
  of seignorial justice, 258. Sake and soke in the Norman age, 259. The
  Confessor's writs, 259. Cnut's writs, 260. Cnut's law, 261. The book
  and the writ, 261. Diplomatics, 262. The Anglo-Saxon writ, 264. Sake
  and soke appear when writs appear, 265. Traditional evidence of sake
  and soke, 267. _Altitonantis_, 268. Criticism of the earlier books,
  269. The clause of immunity, 270. Dissection of the words of
  immunity, 272. The _trinoda necessitas_, 273. The _ángild_, 274. The
  right to wites and the right to a court, 275. The Taunton book, 276.
  The immunists and the wite, 277. Justice and jurisdiction, 277. The
  Frankish immunity, 278. Seignorial and ecclesiastical jurisdiction,
  279. Criminal justice of the church, 281. Antiquity of seignorial
  courts, 282. Justice, vassalage and tenure, 283. The lord and the
  accused vassal, 284. The state, the lord and the vassal, 285. The
  _landríca_ as immunist, 286. The immunist's rights over free men,
  288. Sub-delegation of justiciary rights, 289. Number of the
  immunists, 289.

     Note: The _Ángild_ Clause, 290.

                § 4. _Book-land and Loan-land_, pp. 293-318.

     The book and the gift, 293. Book-land and service, 294. Military
  service, 295. Escheat of book-land, 295. Alienation of book-land,
  297. The heriot and the testament, 298. The gift and the loan, 299.
  The _precarium_, 300. The English land-loan, 301. Loans of church
  land to the great, 302. The consideration for the loan, 303. St.
  Oswald's loans, 303. Oswald's letter to Edgar, 304. Feudalism in
  Oswald's law, 307. Oswald's riding-men, 308. Heritable loans, 309.
  Wardship and marriage, 310. Seignorial jurisdiction, 310. Oswald's
  law and England at large, 311. Inferences from Oswald's loans, 312.
  Economic position of Oswald's tenants, 312. Loan-land and book-land,
  313. Book-land in the dooms, 314. Royal and other books, 315. The
  gift and the loan, 317. Dependent tenure, 317.

                § 5. _The Growth of Seignorial Power_, pp. 318-340.

     Subjection of free men, 318. The royal grantee and the land, 318.
  Provender rents and the manorial economy, 319. The church and the
  peasants, 320. Growth of the manorial system, 321. Church-scot and
  tithes, 321. Jurisdictional rights of the lord, 322. The lord and the
  man's taxes, 323. Depression of the free ceorl, 324. The slaves, 325.
  Growth of manors from below, 325.

     Theories which connect the manor with the Roman villa, 326. The
  _Rectitudines_, 327. Discussion of the _Rectitudines_, 328. The
  Tidenham case, 329. The Stoke case, 330. Inferences from these cases,
  332. The _villa_ and the _vicus_, 333. Manors in the land-books, 334.
  The _mansus_ and the _manens_, 335. The hide, 336. The strip-holding
  and the villa, 337. The lord and the strips, 338. The ceorl and the
  slave, 339. The condition of the Danelaw, 339.

                § 6. _The Village Community_, pp. 340-356.

     Free villages, 340. Ownership by communities and ownership by
  individuals, 341. Co-ownership and ownership by corporations, 341.
  Ownership and governmental power, 342. Ownership and subordinate
  governmental power, 343. Evolution of sovereignty and ownership, 343.
  Communal ownership as a stage, 344. The theory of normal stages, 345.

     Was land owned by village communities? 346. Meadows, pastures and
  woods, 348. The bond between neighbours, 349. Feebleness of village
  communalism, 349. Absence of organization, 350. The German village on
  conquered soil, 351. Development of kingly power, 351. The free
  village in England, 352. The village meeting, 353. What might have
  become of the free village, 353. Mark communities, 354. Intercommoning
  between vills, 355. Last words, 356.

                               ESSAY III.

                               THE HIDE.

     What was the hide? 357. Importance of the question, 357. Hide and
  manse in Bede, 358. Hide and manse in the land-books, 358. The large
  hide and the manorial arrangement, 360. Our course, 361.

                § 1. _Measures and Fields_, pp. 362-399.

     Permanence and change in agrarian history, 362. Rapidity of change
  in old times, 363. Devastation of villages, 363. Village colonies,
  365. Change of field systems, 365. Differences between different
  shires, 366. New and old villages, 367.

     History of land measures, 368. Growth of uniform measures, 369.
  Superficial measure, 370. The ancient elements of land measure, 372.
  The German acre, 373. English acres, 373. Small and large acres, 374.
  Anglo-Saxon rods and acres, 375. Customary acres and forest acres,
  376. The acre and the day's work, 377. The real acres in the fields,
  379. The _culturae_ or shots, 379. Delimitation of shots, 380. Real
  and ideal acres, 381. Irregular length of acres, 383. The _seliones_
  or beds, 383. Acres divided lengthwise, 384. The virgate, 385. Yard
  and yard-land, 385. The virgate a fraction of the hide, 385. The
  yard-land in laws and charters, 386.

     The hide as a measure, 387. The hide as a measure of arable, 388.
  The hide of 120 acres, 389. Real and fiscal hides, 389. Causes of
  divergence of fiscal from real hides, 390. Effects of the divergence,
  392. Acreage of the hide in later days, 393. The carucate and bovate,
  395. The ox-gang, 396. The fiscal carucate, 396. Acreage tilled by a
  plough, 397. Walter of Henley's programme of ploughing, 398.

                § 2. _Domesday Statistics_, pp. 399-490.

                     _Statistical Tables_, 400-403.

     Domesday's three statements, 399. Northern formulas, 404. Southern
  formulas, 405. Kentish formulas, 406. Relation between the three
  statements, 406. Introduction of statistics, 407. Explanation of
  statistics, 407. Acreage, 407. Population, 408. Danegeld, 408. Hides,
  carucates, sulungs, 408. Reduced hidage, 410. The teamlands, 410. The
  teams, 411. The values, 411. The table of ratios, 411. Imperfection
  of statistics, 412. Constancy of ratios, 413.

     The team, 413. Variability of the _caruca_, 414. Constancy of the
  _caruca_, 414. The villein's teams, 415. The villein's oxen, 416.
  Light and heavy ploughs, 417. The team of Domesday and other
  documents, 417.

     The teamland, 418. Fractional parts of the teamland, 418. Land for
  oxen and wood for swine, 419. The teamland no areal unit, 419. The
  teamlands of Great and the teams of Little Domesday, 420. The
  Leicestershire formulas, 420. Origin of the inquiry touching the
  teamlands, 421. Modification of the inquiry, 423. The potential teams,
  423. Normal relation between teams and teamlands, 424. The land of
  deficient teams, 425. Actual and potential teamlands, 426. The land of
  excessive teams, 427. Digression to East Anglia, 429. The teamland no
  areal measure, 431. Eyton's theory, 431. Domesday's lineal measure,
  432. Measured teamlands, 433.

     Amount of arable in England, 435. Decrease of arable, 436. The food
  problem, 436. What was the population? 436. What was the field-system?
  437. What was the acre's yield? 437. Consumption of beer, 438. The
  Englishman's diet, 440. Is the arable superabundant? 441. Amount of
  pasturage, 441. Area of the villages, 443. Produce and value, 444.
  Varying size of acres, 445. The teamland in Cambridgeshire, 445.

     The hides of Domesday, 446. Relation between hides and teamlands,
  447. Unhidated estates, 448. Beneficial hidation, 448. Effect of
  privilege, 449. Divergence of hide from teamland, 450. Partition of
  the geld, 451. Distribution of hides among counties and hundreds, 451.
  The hidage of Worcestershire, 451. _The County Hidage_, 455. Its date,
  456. The Northamptonshire Geld Roll, 457. Credibility of _The County
  Hidage_, 458. Reductions of hidage, 458. The county quotas, 459. The
  hundred and the hundred hides, 459. Comparison of Domesday hidage with
  Pipe Rolls, 460. Under-rated and over-rated counties, 461. Hidage and
  value, 462. One pound, one hide, 465. Equivalence of pound and hide,
  465. Cases of under-taxation, 466. Kent, 466. Devon and Cornwall, 467.
  Cases of over-taxation, 468. Leicestershire, 468. Yorkshire, 469.
  Equity and hidage, 470. Distribution of hides and of teamlands, 471.
  Area and value as elements of geldability, 472. The equitable
  teamland, 473. Artificial valets, 473. The new assessments of Henry
  II., 473.

     Acreage of the fiscal hide, 475. Equation between hide and acres,
  475. The hide of 120 acres, 476. Evidence from Cambridgeshire, 476.
  Evidence from the Isle of Ely, 476. Evidence from Middlesex, 477.
  Meaning of the Middlesex entries, 478. Evidence in the Geld Inquests,
  478. Result of the evidence, 480. Evidence from Essex, 480. Acreage of
  the fiscal carucate, 483. Acreage of the fiscal sulung, 484. Kemble's
  theory, 485. The ploughland and the plough, 486. The Yorkshire
  carucates, 487. Relation between teamlands and fiscal carucates, 487.
  The fiscal hide of 120 acres, 489. Antiquity of the large hide, 489.

                § 3. _Beyond Domesday_, pp, 490-520.

     The hide beyond Domesday, 490. Arguments in favour of small hides,
  490. Continuity of the hide in the land-books, 491. Examples from
  charters of Chertsey, 492. Examples from charters of Malmesbury, 492.
  Permanence of the hidation, 493. Gifts of villages, 494. Gifts of
  manses in villages, 495. The largest gifts, 496. The Winchester
  estate at Chilcombe, 496. The Winchester estates at Downton and
  Taunton, 498. Kemble and the Taunton estate, 499. Difficulty of
  identifying parcels, 500. The numerous hides in ancient documents,
  501. _The Burghal Hidage_, 502. _The Tribal Hidage_, 506. Bede's
  hidage, 508. Bede and the land-books, 509. Gradual reduction of
  hidage, 510. Over-estimates of hidage, 510. Size of Bede's hide, 511.
  Evidence from Iona, 512. Evidence from Selsey, 513. Conclusion in
  favour of the large hide, 515. Continental analogies, 515. The German
  _Hufe_, 515. The _Königshufe_, 516. The large hide on the continent,
  517. The large hide not too large, 518. The large hide and the manor,
  519. Last words, 520.


FOOTNOTES:

[1] Siedelung und Agrarwesen der Westgermanen und Ostgermanen, der
    Kelten, Römer, Finnen und Slawen, von August Meitzen, Berlin, 1895.


                     LIST OF ABBREVIATIONS.

          B. = Birch, Cartularium Saxonicum, London, 1885-7-93.
          D. B. = Domesday Book.
          E. = Earle, Land Charters, Oxford, 1888.
          E. H. R. = English Historical Review.
          H. & S. = Haddan and Stubbs, Councils and Ecclesiastical
                     Documents, vol. iii, Oxford, 1871.
          K. = Kemble, Codex Diplomaticus Ævi Saxonici, London, 1839-48.
          T. = Thorpe, Diplomatarium Anglicanum, London, 1865.


                            ADDENDUM.

  p. 347, note 794. Instances of the periodic reallotment of the whole
  land of a vill, exclusive of houses and crofts, seem to have been not
  unknown in the north of England. Here the reallotment is found in
  connexion with a husbandry which knows no permanent severance of the
  arable from the grass-land, but from time to time ploughs up a tract
  and after a while allows it to become grass-land once more. See F. W.
  Dendy, The Ancient Farms of Northumberland, Archaeologia Aeliana, Vol.
  xvi. I have to thank Mr Edward Bateson for a reference to this paper.



ESSAY I.

DOMESDAY BOOK.


[Domesday Book and its satellites.]

At midwinter in the year 1085 William the Conqueror wore his crown at
Gloucester and there he had deep speech with his wise men. The outcome
of that speech was the mission throughout all England of 'barons,'
'legates' or 'justices' charged with the duty of collecting from the
verdicts of the shires, the hundreds and the vills a _descriptio_ of his
new realm. The outcome of that mission was the _descriptio_ preserved
for us in two manuscript volumes, which within a century after their
making had already acquired the name of Domesday Book. The second of
those volumes, sometimes known as Little Domesday, deals with but three
counties, namely Essex, Norfolk and Suffolk, while the first volume
comprehends the rest of England. Along with these we must place certain
other documents that are closely connected with the grand inquest. We
have in the so-called Inquisitio Comitatus Cantabrigiae, a copy, an
imperfect copy, of the verdicts delivered by the Cambridgeshire jurors,
and this, as we shall hereafter see, is a document of the highest value,
even though in some details it is not always very trustworthy[2]. We
have in the so-called Inquisitio Eliensis an account of the estates of
the Abbey of Ely in Cambridgeshire, Suffolk and other counties, an
account which has as its ultimate source the verdicts of the juries and
which contains some particulars which were omitted from Domesday
Book[3]. We have in the so-called Exon Domesday an account of Cornwall
and Devonshire and of certain lands in Somerset, Dorset and Wiltshire;
this also seems to have been constructed directly or indirectly out of
the verdicts delivered in those counties, and it contains certain
particulars about the amount of stock upon the various estates which are
omitted from what, for distinction's sake, is sometimes called the
Exchequer Domesday[4]. At the beginning of this Exon Domesday we have
certain accounts relating to the payment of a great geld, seemingly the
geld of six shillings on the hide that William levied in the winter of
1083-4, two years before the deep speech at Gloucester[5]. Lastly, in
the Northamptonshire Geld Roll[6] we have some precious information
about fiscal affairs as they stood some few years before the survey[7].

[Domesday and legal history.]

Such in brief are the documents out of which, with some small help from
the Anglo-Saxon dooms and land-books, from the charters of Norman kings
and from the so-called Leges of the Conqueror, the Confessor and Henry
I., some future historian may be able to reconstruct the land-law which
obtained in the conquered England of 1086, and (for our records
frequently speak of the _tempus Regis Edwardi_) the unconquered England
of 1065. The reflection that but for the deep speech at Gloucester, but
for the lucky survival of two or three manuscripts, he would have known
next to nothing of that law, will make him modest and cautious. At the
present moment, though much has been done towards forcing Domesday Book
to yield its meaning, some of the legal problems that are raised by it,
especially those which concern the time of King Edward, have hardly been
stated, much less solved. It is with some hope of stating, with little
hope of solving them that we begin this essay. If only we can ask the
right questions we shall have done something for a good end. If English
history is to be understood, the law of Domesday Book must be mastered.
We have here an absolutely unique account of feudalism in two different
stages of its growth, the more trustworthy, though the more puzzling,
because it gives us particulars and not generalities.

Puzzling enough it certainly is, and this for many reasons. Our task may
be the easier if we state some of those reasons at the outset.

[Domesday a geld book.]

To say that Domesday Book is no collection of laws or treatise on law
would be needless. Very seldom does it state any rule in general terms,
and when it does so we shall usually find cause for believing that this
rule is itself an exception, a local custom, a provincial privilege.
Thus, if we are to come by general rules, we must obtain them
inductively by a comparison of many thousand particular instances. But
further, Domesday Book is no register of title, no register of all those
rights and facts which constitute the system of land-holdership. One
great purpose seems to mould both its form and its substance; it is a
geld-book.

[Danegeld.]

When Duke William became king of the English, he found (so he might well
think) among the most valuable of his newly acquired regalia, a right to
levy a land-tax under the name of geld or danegeld. A detailed history
of that tax cannot be written. It is under the year 991 that our English
chronicle first mentions a tribute paid to the Danes[8]; £10,000 was
then paid to them. In 994 the yet larger sum of £16,000[9] was levied.
In 1002 the tribute had risen to £24,000[10], in 1007 to £30,000[11], in
1009 East Kent paid £3,000[12]; £21,000 was raised in 1014[13]; in 1018
Cnut when newly crowned took £72,000 besides £11,000 paid by the
Londoners[14]; in 1040 Harthacnut took £21,099 besides a sum of £11,048
that was paid for thirty-two ships[15]. With a Dane upon the throne,
this tribute seems to have become an occasional war-tax. How often it
was levied we cannot tell; but that it was levied more than once by the
Confessor is not doubtful[16]. We are told that he abolished it in or
about the year 1051, some eight or nine years after his accession, some
fifteen before his death. No sooner was William crowned than 'he laid on
men a geld exceeding stiff.' In the next year 'he set a mickle geld' on
the people. In the winter of 1083-4 he raised a geld of 72 pence (6
Norman shillings) upon the hide. That this tax was enormously heavy is
plain. Taking one case with another, it would seem that the hide was
frequently supposed to be worth about £1 a year and there were many
hides in England that were worth far less. But grievous as was the tax
which immediately preceded the making of the survey, we are not entitled
to infer that it was of unprecedented severity. It brought William but
£415 or thereabouts from Dorset and £510 or thereabouts from
Somerset[17]. Worcestershire was deemed to contain about 1200 hides and
therefore, even if none of its hides had been exempted, it would have
contributed but £360. If the huge sums mentioned by the chronicler had
really been exacted, and that too within the memory of men who were yet
living, William might well regard the right to levy a geld as the most
precious jewel in his English crown. To secure a due and punctual
payment of it was worth a gigantic effort, a survey such as had never
been made and a record such as had never been penned since the grandest
days of the old Roman Empire. But further, the assessment of the geld
sadly needed reform. Owing to one cause and another, owing to privileges
and immunities that had been capriciously granted, owing also, so we
think, to a radically vicious method of computing the geldable areas of
counties and hundreds, the old assessment was full of anomalies and
iniquities. Some estates were over-rated, others were scandalously
under-rated. That William intended to correct the old assessment, or
rather to sweep it away and put a new assessment in its stead, seems
highly probable, though it has not been proved that either he or his
sons accomplished this feat[18]. For this purpose, however, materials
were to be collected which would enable the royal officers to decide
what changes were necessary in order that all England might be taxed in
accordance with a just and uniform plan. Concerning each estate they
were to know the number of geldable units ('hides' or 'carucates') for
which it had answered in King Edward's day, they were to know the number
of plough oxen that there were upon it, they were to know its true
annual value, they were to know whether that value had been rising or
falling during the past twenty years. Domesday Book has well been called
a rate book, and the task of spelling out a land law from the
particulars that it states is not unlike the task that would lie before
any one who endeavoured to construct our modern law of real property out
of rate books, income tax returns and similar materials. All the lands,
all the land-holders of England may be brought before us, but we are
told only of such facts, such rights, such legal relationships as bear
on the actual or potential payment of geld. True, that some minor
purposes may be achieved by the king's commissioners, though the quest
for geld is their one main object. About the rents and renders due from
his own demesne manors the king may thus obtain some valuable
information. Also he may learn, as it were by the way, whether any of
his barons or other men have presumed to occupy, to 'invade,' lands
which he has reserved for himself. Again, if several persons are in
dispute about a tract of ground, the contest may be appeased by the
testimony of shire and hundred, or may be reserved for the king's
audience; at any rate the existence of an outstanding claim may be
recorded by the royal commissioners. Here and there the peculiar customs
of a shire or a borough will be stated, and incidentally the services
that certain tenants owe to their lords may be noticed. But all this is
done sporadically and unsystematically. Our record is no register of
title, it is no feodary, it is no custumal, it is no rent roll; it is a
tax book, a geld book.

[The survey and the geld system.]

We say this, not by way of vain complaint against its meagreness, but
because in our belief a care for geld and for all that concerns the
assessment and payment of geld colours far more deeply than commentators
have usually supposed the information that is given to us about other
matters. We should not be surprised if definitions and distinctions
which at first sight have little enough to do with fiscal arrangements,
for example the definition of a manor and the distinction between a
villein and a 'free man,' involved references to the apportionment and
the levy of the land-tax. Often enough it happens that legal ideas of a
very general kind are defined by fiscal rules; for example, our modern
English idea of 'occupation' has become so much part and parcel of a
system of assessment that lawyers are always ready to argue that a
certain man must be an 'occupier' because such men as he are rated to
the relief of the poor. It seems then a fair supposition that any line
that Domesday Book draws systematically and sharply, whether it be
between various classes of men or between various classes of tenements,
is somehow or another connected with the main theme of that
book--geldability, actual or potential.

[Weight of the danegeld.]

Since we have mentioned the stories told by the chronicler about the
tribute paid to the Danes, we may make a comment upon them which will
become of importance hereafter. Those stories look true, and they seem
to be accepted by modern historians. Had we been told just once that
some large number of pounds, for example £60,000, was levied, or had the
same round sum been repeated in year after year, we might well have said
that such figures deserved no attention, and that by £60,000 our
annalist merely meant a big sum of money. But, as will have been seen,
he varies his figures from year to year and is not always content with a
round number; he speaks of £21,099 and of £11,048[19]. We can hardly
therefore treat his statements as mere loose talk and are reluctantly
driven to suppose that they are true or near the truth. If this be so,
then, unless some discovery has yet to be made in the history of money,
no word but 'appalling' will adequately describe the taxation of which
he speaks. We know pretty accurately the amount of money that became due
when Henry I. or Henry II. imposed a danegeld of two shillings on the
hide. The following table constructed from the pipe rolls will show the
sum charged against each county. We arrange the shires in the order of
their indebtedness, for a few of the many caprices of the allotment will
thus be visible, and our table may be of use to us in other
contexts[20].

  APPROXIMATE CHARGE OF A DANEGELD OF TWO SHILLINGS ON THE HIDE IN THE
                      MIDDLE OF THE TWELFTH CENTURY.

                                 £                             £
          Wiltshire             389   | Cambridge             114
          Norfolk               330   | Derby and Nottingham  110
          Somerset              278   | Hertford              110
          Lincoln               266   | Bedford               110
          Dorset                248   | Kent                  105
          Oxford                242   | Devon                 104
          Essex                 236   | Worcester             101
          Suffolk               235   | Leicester             100
          Sussex                210   | Hereford               94
          Bucks                 205   | Middlesex              85
          Berks                 202   | Huntingdon             71
          Gloucester            190   | Stafford               44
          S. Hants              180   | Cornwall               23
          Surrey                177   | Rutland                12
          York                  160   | Northumberland        100
          Warwick               129   | Cheshire[21]            0
          N. Hants              120   |                      ----
          Salop                 118   |          Total       5198

[The geld of old times.]

Now be it understood that these figures do not show the amount of money
that Henry I. and Henry II. could obtain by a danegeld. They had to take
much less. When it was last levied, the tax was not bringing in £3500,
so many were the churches and great folk who had obtained temporary or
permanent exemptions from it. We will cite Leicestershire for example.
The total of the geld charged upon it was almost exactly or quite
exactly £100. On the second roll of Henry II.'s reign we find that £25.
7_s._ 6_d._ have been paid into the treasury, that £22. 8_s._ 3_d._ have
been 'pardoned' to magnates and templars, that £51. 8_s._ 2_d._ are
written off in respect of waste, and that 16_s._ 0_d._ are still due. On
the eighth roll the account shows that £62. 12_s._ 7_d._ have been paid
and that £37. 6_s._ 9_d._ have been 'pardoned.' No, what our table
displays is the amount that would be raised if all exemptions were
disregarded and no penny forborne. And now let us turn back to the
chronicle and (not to take an extreme example) read of £30,000 being
raised. Unless we are prepared to bring against the fathers of English
history a charge of repeated, wanton and circumstantial lying, we shall
think of the danegeld of Æthelred's reign and of Cnut's as of an impost
so heavy that it was fully capable of transmuting a whole nation.
Therefore the lines that are drawn by the incidence of this tribute will
be deep and permanent; but still we must remember that primarily they
will be fiscal lines.

[Unstable terminology of the survey.]

Then again, we ought not to look to Domesday Book for a settled and
stable scheme of technical terms. Such a scheme could not be established
in a brief twenty years. About one half of the technical terms that meet
us, about one half of the terms which, as we think, ought to be
precisely defined, are, we may say, English terms. They are ancient
English words, or they are words brought hither by the Danes, or they
are Latin words which have long been in use in England and have acquired
special meanings in relation to English affairs. On the other hand,
about half the technical terms are French. Some of them are old Latin
words which have acquired special meanings in France, some are Romance
words newly coined in France, some are Teutonic words which tell of the
Frankish conquest of Gaul. In the one great class we place _scira_,
_hundredum_, _wapentac_, _hida_, _berewica_, _inland_, _haga_, _soka_,
_saka_, _geldum_, _gablum_, _scotum_, _heregeat_, _gersuma_, _thegnus_,
_sochemannus_, _burus_, _coscet_; in the other _comitatus_, _carucata_,
_virgata_, _bovata_, _arpentum_, _manerium_, _feudum_, _alodium_,
_homagium_, _relevium_, _baro_, _vicecomes_, _vavassor_, _villanus_,
_bordarius_, _colibertus_, _hospes_. It is not in twenty years that a
settled and stable scheme can be formed out of such elements as these.
And often enough it is very difficult for us to give just the right
meaning to some simple Latin word. If we translate _miles_ by _soldier_
or _warrior_, this may be too indefinite; if we translate it by
_knight_, this may be too definite, and yet leave open the question
whether we are comparing the _miles_ of 1086 with the _cniht_ of
unconquered England or with the knight of the thirteenth century. If we
render _vicecomes_ by _sheriff_ we are making our sheriff too little of
a _vicomte_. When _comes_ is before us we have to choose between giving
Britanny an _earl_, giving Chester a _count_, or offending some of our
_comites_ by invidious distinctions. Time will show what these words
shall mean. Some will perish in the struggle for existence; others have
long and adventurous careers before them. At present two sets of terms
are rudely intermixed; the time when they will grow into an organic
whole is but beginning.

[Legal ideas of cent. xi.]

To this we must add that, unless we have mistaken the general drift of
legal history, the law implied in Domesday Book ought to be for us very
difficult law, far more difficult than the law of the thirteenth
century, for the thirteenth century is nearer to us than is the
eleventh. The grown man will find it easier to think the thoughts of the
school-boy than to think the thoughts of the baby. And yet the doctrine
that our remote forefathers being simple folk had simple law dies hard.
Too often we allow ourselves to suppose that, could we but get back to
the beginning, we should find that all was intelligible and should then
be able to watch the process whereby simple ideas were smothered under
subtleties and technicalities. But it is not so. Simplicity is the
outcome of technical subtlety; it is the goal not the starting point. As
we go backwards the familiar outlines become blurred; the ideas become
fluid, and instead of the simple we find the indefinite. But difficult
though our task may be, we must turn to it.

FOOTNOTES:

  [2] Inquisitio Comitatus Cantabrigiae, ed. N. E. Hamilton. When, as
      sometimes happens, the figures in this record differ from those
      given in Domesday Book, the latter seem to be in general the
      more correct, for the arithmetic is better. Also it seems plain
      that the compilers of Domesday had, even for districts
      comprised in the Inquisitio, other materials besides those that
      the Inquisitio contains. For example, that document says
      nothing of some of the royal manors. [Since this note was
      written, Mr Round, Feudal England, pp. 10 ff. has published the
      same result after an elaborate investigation.]

  [3] This is printed in D. B. vol. iv. and given by Hamilton at the
      end of his Inq. Com. Cantab. As to the manner in which it was
      compiled see Round, Feudal England, 133 ff.

  [4] The Exon Domesday is printed in D. B. vol. iv.

  [5] Round, Domesday Studies, i. 91: 'I am tempted to believe that
      these geld rolls in the form in which we now have them were
      compiled at Winchester after the close of Easter 1084, by the
      body which was the germ of the future Exchequer.'

  [6] Printed by Ellis, Introduction to Domesday, i. 184.

  [7] Round, Feudal England, 147.

  [8] Earle, Two Chronicles, 130-1.

  [9] Ibid. 132-3.

  [10] Ibid. 137.

  [11] Ibid. 141.

  [12] Ibid. 142.

  [13] Ibid. 151.

  [14] Ibid. 160-1.

  [15] Ibid. 167.

  [16] There is a valuable paper on this subject, A Short Account of
       Danegeld [by P. C. Webb] published in 1756.

  [17] D. B. iv. 26, 489.

  [18] In 1194 the tax for Richard's ransom seems, at least in
       Wiltshire, to have been distributed in the main according to
       the assessment that prevailed in 1084; Rolls of the King's
       Court (Pipe Roll Soc.) i. Introduction, p. xxiv.

  [19] The statement in Æthelred, II. 7 (Schmid, p. 209) as to a
       payment of £22,000 is in a general way corroborative of the
       chronicler's large figures.

  [20] The figures will be given more accurately on a later page.

  [21] Cheshire pays no geld to the king. This loss is compensated by
       a sum which is sometimes exacted from Northumberland.



§ 1. _Plan of the Survey._


[The geographical basis.]

England was already mapped out into counties, hundreds or wapentakes and
vills. Trithings or ridings appear in Yorkshire and Lincolnshire, lathes
in Kent, rapes in Sussex, while leets appear, at least sporadically, in
Norfolk[22]. These provincial peculiarities we must pass by, nor will we
pause to comment at any length on the changes in the boundaries of
counties and of hundreds that have taken place since the date of the
survey. Though these changes have been many and some few of them have
been large[23], we may still say that as a general rule the political
geography of England was already stereotyped. And we see that already
there are many curious anomalies, 'detached portions' of counties,
discrete hundreds, places that are extra-hundredal[24], places that for
one purpose are in one county and for another purpose in another
county[25]. We see also that proprietary rights have already been making
sport of arrangements which in our eyes should be fixed by public law.
Earls, sheriffs and others have enjoyed a marvellous power of taking a
tract of land out of one district and placing it, or 'making it lie' in
another district[26]. Land is constantly spoken of as though it were the
most portable of things; it can easily be taken from one vill or hundred
and be added to or placed in or caused to lie in another vill or
hundred. This 'notional movability' of land, if we may use such a term,
will become of importance to us when we are studying the formation of
manors.

[The vill as the geographical unit.]

For the present, however, we are concerned with the general truth that
England is divided into counties, hundreds or wapentakes and vills. This
is the geographical basis of the survey. That basis, however, is hidden
from us by the form of our record. The plan adopted by those who
fashioned Domesday Book out of the returns provided for them by the
king's commissioners is a curious, compromising plan. We may say that in
part it is geographical, while in part it is feudal or proprietary. It
takes each county separately and thus far it is geographical; but within
the boundaries of each county it arranges the lands under the names of
the tenants in chief who hold them. Thus all the lands in Cambridgeshire
of which Count Alan is tenant in chief are brought together, no matter
that they lie scattered about in various hundreds. Therefore it is
necessary for us to understand that the original returns reported by the
surveyors did not reach the royal treasury in this form. At least as
regards the county of Cambridge, we can be certain of this. The hundreds
were taken one by one; they were taken in a geographical order, and not
until the justices had learned all that was to be known of Staplehow
hundred did they call upon the jurors of Cheveley hundred for their
verdict. That such was their procedure we might have guessed even had we
not been fortunate enough to have a copy of the Cambridgeshire verdicts;
for, though the commissioners seem to have held but one moot for each
shire, still it is plain that each hundred was represented by a separate
set of jurors[27]. But from these Cambridgeshire verdicts we learn what
otherwise we could hardly have known. Within each hundred the survey was
made by vills[28]. If we suppose the commissioners charging the jurors
we must represent them as saying, not 'Tell us what tenants in chief
have lands in your hundred and how much each of them holds,' but 'Tell
us about each vill in your hundred, who holds land in it.' Thus, for
example, the men of the Armingford hundred are called up. They make a
separate report about each vill in it. They begin by stating that the
vill is rated at a certain number of hides and then they proceed to
distribute those hides among the tenants in chief. Thus, for example,
they say that Abington was rated at 5 hides, and that those 5 hides are
distributed thus[29]:

                                                        hides   virgates
  Hugh Pincerna holds of the bishop of Winchester       2-1/2      1/2
  The king                                                1/2
  Ralph and Robert hold of Hardouin de Eschalers        1        1-1/2
  Earl Roger                                                     1
  Picot the sheriff                                                1/2
  Alwin Hamelecoc the bedel holds of the king                      1/2
                                                        _____    _____
                                                        5        0

Now in Domesday Book we must look to several different pages to get this
information about the vill of Abington,--to one page for Earl Roger's
land, to another page for Picot's land, and we may easily miss the
important fact that this vill of Abington has been rated as a whole at
the neat, round figure of 5 hides. And then we see that the whole
hundred of Armingford has been rated at the neat, round figure of 100
hides, and has consisted of six vills rated at 10 hides apiece and eight
vills rated at 5 hides apiece[30]. Thus we are brought to look upon the
vill as a unit in a system of assessment. All this is concealed from us
by the form of Domesday Book.

[Stability of the vill.]

When that book mentions the name of a place, when it says that Roger
holds Sutton or that Ralph holds three hides in Norton, we regard that
name as the name of a vill; it may or may not be also the name of a
manor. Speaking very generally we may say that the place so named will
in after times be known as a vill and in our own day will be a civil
parish. No doubt in some parts of the country new vills have been
created since the Conqueror's time. Some names that occur in our record
fail to obtain a permanent place on the roll of English vills, become
the names of hamlets or disappear altogether; on the other hand, new
names come to the front. Of course we dare not say dogmatically that all
the names mentioned in Domesday Book were the names of vills; very
possibly (if this distinction was already known) some of them were the
names of hamlets; nor, again, do we imply that the _villa_ of 1086 had
much organization; but a place that is mentioned in Domesday Book will
probably be recognized as a vill in the thirteenth, a civil parish in
the nineteenth century. Let us take Cambridgeshire by way of example.
Excluding the Isle of Ely, we find that the political geography of the
Conqueror's reign has endured until our own time. The boundaries of the
hundreds lie almost where they lay, the number of vills has hardly been
increased or diminished. The chief changes amount to this:--A small
tract on the east side of the county containing Exning and Bellingham
has been made over to Suffolk; four other names contained in Domesday no
longer stand for parishes, while the names of five of our modern
parishes--one of them is the significant name of Newton--are not found
there[31]. But about a hundred and ten vills that were vills in 1086
are vills or civil parishes at the present day, and in all probability
they then had approximately the same boundaries that they have now.

[Omission of vills.]

This may be a somewhat too favourable example of permanence and
continuity. Of all counties Cambridgeshire is the one whose ancient
geography can be the most easily examined; but wherever we have looked
we have come to the conclusion that the distribution of England into
vills is in the main as old as the Norman conquest[32]. Two causes of
difficulty may be noticed, for they are of some interest. Owing to what
we have called the 'notional movability' of land, we never can be quite
sure that when certain hides or acres are said to be in or lie in a
certain place they are really and physically in that place. They are
really in one village, but they are spoken of as belonging to another
village, because their occupants pay their geld or do their services in
the latter. Manorial and fiscal geography interferes with physical and
villar geography. We have lately seen how land rated at five hides was
comprised, as a matter of fact, in the vill of Abington; but of those
five hides, one virgate 'lay in' Shingay, a half-hide 'lay in'
Litlington while a half-virgate 'lay and had always lain' in Morden[33].
This, if we mistake not, leads in some cases to an omission of the names
of small vills. A great lord has a compact estate, perhaps the whole of
one of the small southern hundreds. He treats it as a whole, and all the
land that he has there will be ascribed to some considerable village in
which he has his hall. We should be rash in supposing that there were no
other villages on this land. For example, in Surrey there is now-a-days
a hundred called Farnham which comprises the parish of Farnham, the
parish of Frensham and some other villages. If we mistake not, all that
Domesday Book has to say of the whole of this territory is that the
Bishop of Winchester holds Farnham, that it has been rated at 60 hides,
that it has been worth the large sum of £65 a year and that there are so
many tenants upon it[34]. We certainly must not draw the inference that
there was but one vill in this tract. If the bishop is tenant in chief
of the whole hundred and has become responsible for all the geld that
is levied therefrom, there is no great reason why the surveyors should
trouble themselves about the vills. Thus the simple _Episcopus tenet
Ferneham_ may dispose of some 25,000 acres of land. So the same bishop
has an estate at Chilcombe in Hampshire; but clearly the name
_Ciltecumbe_ covers a wide territory for there are no less than nine
churches upon it[35]. We never can be very certain about the boundaries
of these large and compact estates.

[Fission of vills.]

A second cause of difficulty lies in the fact that in comparatively
modern times, from the twelfth century onwards, two or three contiguous
villages will often bear the same name and be distinguished only by what
we may call their surnames--thus Guilden Morden and Steeple Morden,
Stratfield Saye, Stratfield Turgis, Stratfield Mortimer, Tolleshunt
Knights, Tolleshunt Major, Tolleshunt Darcy. Such cases are common; in
some districts they are hardly exceptional. Doubtless they point to a
time when a single village by some process of colonization or
subdivision become two villages. Now Domesday Book seldom enables us to
say for certain whether the change has already taken place. In a few
instances it marks off the little village from the great village of the
same name[36]. In some other instances it will speak, for example, of
_Mordune_ and _Mordune Alia_, of _Emingeforde_ and _Emingeforde Alia_,
or the like, thus showing both that the change has taken place, and also
that it is so recent that it is recognized only by very clumsy terms. In
Cambridgeshire, since we have the original verdicts, we can see that the
two Mordens are already distinct; the one is rated at ten hides, the
other at five[37]. On the other hand, we can see that our Great and
Little Shelford are rated as one vill of twenty hides[38], our Castle
Camps and Shudy Camps as one vill of five hides[39]. Elsewhere we are
left to guess whether the fission is complete, and the surnames that
many of our vills ultimately acquire, the names of families which rose
to greatness in the twelfth and thirteenth centuries, will often suggest
that the surveyors saw but one vill where we see two[40]. However, the
broad truth stands out that England was divided into vills and that in
general the vill of Domesday Book is still a vill in after days[41].

[The nucleated village and the vill of scattered steads.]

The 'vill' or 'town' of the later middle ages was, like the 'civil
parish' of our own day, a tract of land with some houses on it, and this
tract was a unit in the national system of police and finance[42], But
we are not entitled to make for ourselves any one typical picture of the
English vill. We are learning from the ordnance map (that marvellous
palimpsest, which under Dr Meitzen's guidance we are beginning to
decipher) that in all probability we must keep at least two types before
our minds. On the one hand, there is what we might call the true village
or the nucleated village. In the purest form of this type there is one
and only one cluster of houses. It is a fairly large cluster; it stands
in the midst of its fields, of its territory, and until lately a
considerable part of its territory will probably have consisted of
spacious 'common fields.' In a country in which there are villages of
this type the parish boundaries seem almost to draw themselves[43]. On
the other hand, we may easily find a country in which there are few
villages of this character. The houses which lie within the boundary of
the parish are scattered about in small clusters; here two or three,
there three or four. These clusters often have names of their own, and
it seems a mere chance that the name borne by one of them should be also
the name of the whole parish or vill[44]. We see no traces of very large
fields. On the face of the map there is no reason why a particular group
of cottages should be reckoned to belong to this parish rather than to
the next. As our eyes grow accustomed to the work we may arrive at some
extremely important conclusions such as those which Meitzen has
suggested. The outlines of our nucleated villages may have been drawn
for us by Germanic settlers, whereas in the land of hamlets and
scattered steads old Celtic arrangements may never have been thoroughly
effaced. Towards theories of this kind we are slowly winning our way.
In the meantime let us remember that a _villa_ of Domesday Book may
correspond to one of at least two very different models or may be
intermediate between various types. It may be a fairly large and
agrarianly organic unit, or it may be a group of small agrarian units
which are being held together in one whole merely by an external force,
by police law and fiscal law[45].

[Illustrations by maps.]

Two little fragments of 'the original one inch ordnance map' will be
more eloquent than would be many paragraphs of written discourse. The
one pictures a district on the border between Oxfordshire and Berkshire
cut by the Thames and the main line of the Great Western Railway; the
other a district on the border between Devon and Somerset, north of
Collumpton and south of Wiveliscombe. Neither is an extreme example.
True villages we may easily find. Cambridgeshire, for instance, would
have afforded some beautiful specimens, for many of the 'open fields'
were still open when the ordnance map of that county was made. But
throughout large tracts of England, even though there has been an
'inclosure' and there are no longer any open fields, our map often shows
a land of villages. When it does so and the district that it portrays is
a purely agricultural district, we may generally assume without going
far wrong that the villages are ancient, for during at least the last
three centuries the predominant current in our agrarian history has set
against the formation of villages and towards the distribution of
scattered homesteads. To find the purest specimens of a land of hamlets
we ought to go to Wales or to Cornwall or to other parts of 'the Celtic
fringe'; very fair examples might be found throughout the west of
England. Also we may perhaps find hamlets rather than villages wherever
there have been within the historic period large tracts of forest land.
Very often, again, the parish or township looks on our map like a
hybrid. We seem to see a village with satellitic hamlets. Much more
remains to be done before we shall be able to construe the testimony of
our fields and walls and hedges, but at least two types of vill must be
in our eyes when we are reading Domesday Book[46].

[Illustration: A LAND OF VILLAGES
              _On the border between Oxfordshire and Berkshire._
              [_Between pp._ 16-17]]

[Illustration: A LAND OF HAMLETS
              _On the border between Somerset and Devon._]

[Size of the vill.]

To say that the _villa_ of Domesday Book is in general the vill of the
thirteenth century and the civil parish of the nineteenth is to say that
the areal extent of the _villa_ varied widely from case to case. More
important is it for us to observe that the number of inhabitants of the
_villa_ varied widely from case to case. The error into which we are
most likely to fall will be that of making our vill too populous. Some
vills, especially some royal vills, are populous enough; a few contain a
hundred households; but the average township is certainly much smaller
than this[47]. Before we give any figures, it should first be observed
that Domesday Book never enables us to count heads. It states the number
of the tenants of various classes, _sochemanni_, _villani_, _bordarii_,
and the like, and leaves us to suppose that each of these persons is, or
may be, the head of a household. It also states how many _servi_ there
are. Whether we ought to suppose that only the heads of servile
households are reckoned, or whether we ought to think of the _servi_ as
having no households but as living within the lord's gates and being
enumerated, men, women and able-bodied children, by the head--this is a
difficult question. Still we may reach some results which will enable us
to compare township with township. By way of fair sample we may take the
Armingford hundred of Cambridgeshire, and all persons who are above the
rank of _servi_ we will include under the term 'the non-servile
population[48].'

                     ARMINGFORD HUNDRED.

                    Non-servile
                    population    Servi    Total

          Abington        19        0         19
          Bassingbourn    35        3         38
          Clapton         19        0         19
          Croydon         29        0         29
          Hatley          18        3         21
          Litlington      37        6         43
          Melbourn        62        1         63
          Meldreth        44        7         51
          Morden          43       11         54
          Morden Alia     50        0         50
          Shingay         18        0         18
          Tadlow          27        4         31
          Wendy           12        4         16
          Whaddon         44        6         50
                         ---      ---        ---
              Total      457       45        502


Here in fourteen vills we have an average of thirty-two non-servile
households for every vill. Now even in our own day a parish with
thirty-two houses, though small, is not extremely small. But we should
form a wrong picture of the England of the eleventh century if we filled
all parts of it with such vills as these. We will take at random
fourteen vills in Staffordshire held by Earl Roger[49].

                    Non-servile
                    population    Servi   Total

          Claverlege      45        0        45
          Nordlege         9        0         9
          Alvidelege      13        0        13
          Halas           40        2        42
          Chenistelei     11        0        11
          Otne             7        1         8
          Nortberie       20        1        21
          Erlide           8        2        10
          Gaitone         16        0        16
          Cressvale       8         0         8
          Dodintone       3         0         3
          Modreshale      5         0         5
          Almentone       8         0         8
          Metford         7         1         8
                        ---       ---       ---
               Total    200         7       207

Here for fourteen vills we have an average of but fourteen non-servile
households and the _servi_ are so few that we may neglect them. We will
next look at a page in the survey of Somersetshire which describes
certain vills that have fallen to the lot of the bishop of
Coutances[50].

                         Non-servile
                         population   Servi    Total

          Winemeresham    8         3       11
          Chetenore       3         1        4
          Widicumbe      21         6       27
          Harpetrev      10         2       12
          Hotune         11         0       11
          Lilebere        6         1        7
          Wintreth        4         2        6
          Aisecome       11         7       18
          Clutone        22         1       23
          Temesbare       7         3       10
          Nortone        16         3       19
          Cliveham       15         1       16
          Ferenberge     13         6       19
          Cliveware       6         0        6
                        ---       ---      ---
                Total   153        36      189

Here we have on the average but eleven non-servile households for each
village, and even if we suppose each _servus_ to represent a household,
we have not fourteen households. Yet smaller vills will be found in
Devonshire, many vills in which the total number of the persons
mentioned does not exceed ten and near half of these are _servi_. In
Cornwall the townships, if townships we ought to call them, are yet
smaller; often we can attribute no more than five or six families to the
vill even if we include the _servi_.

[Population of the vills.]

[Contrast between east and west.]

Unless our calculations mislead us, the density of the population in the
average vill of a given county varies somewhat directly with the density
of the population in that county; at all events we can not say that
where vills are populous, vills will be few. As regards this matter no
precise results are attainable; our document is full of snares for
arithmeticians. Still if for a moment we have recourse to the crude
method of dividing the number of acres comprised in a modern county by
the number of the persons who are mentioned in the survey of that
county, the outcome of our calculation will be remarkable and will point
to some broad truth[51]. For Suffolk the quotient is 46 or thereabouts;
for Norfolk but little larger[52]; for Essex 61, for Lincoln 67; for
Bedford, Berkshire, Northampton, Leicester, Middlesex, Oxford, Kent and
Somerset it lies between 70 and 80, for Buckingham, Warwick, Sussex,
Wiltshire and Dorset it lies between 80 and 90; Devon, Gloucester,
Worcester, Hereford are thinly peopled, Cornwall, Stafford, Shropshire
very thinly. Some particular results that we should thus attain would be
delusive. Thus we should say that men were sparse in Cambridgeshire, did
we not remember that a large part of our modern Cambridgeshire was then
a sheet of water. Permanent physical causes interfere with the operation
of the general rule. Thus Surrey, with its wide heaths has, as we might
expect, but few men to the square mile. Derbyshire has many vills lying
waste; Yorkshire is so much wasted that it can give us no valuable
result; and again, Yorkshire and Cheshire were larger than they are now,
while Rutland and the adjacent counties had not their present
boundaries. For all this however, we come to a very general rule:--the
density of the population decreases as we pass from east to west. With
this we may connect another rule:--land is much more valuable in the
east than it is in the west. This matter is indeed hedged in by many
thorny questions; still whatever hypothesis we may adopt as to the mode
in which land was valued, one general truth comes out pretty plainly,
namely, that, economic arrangements being what they were, it was far
better to have a team-land in Essex than to have an equal area of arable
land in Devon.

[Small vills.]

Between eastern and western England there were differences visible to
the natural eye. With these were connected unseen and legal differences,
partly as causes, partly as effects. But for the moment let us dwell on
the fact that many an English vill has very few inhabitants. We are to
speak hereafter of village communities. Let us therefore reflect that a
community of some eight or ten householders is not likely to be a highly
organized entity. This is not all, for these eight or ten householders
will often belong to two, three or four different social and economic,
if not legal, classes. Some may be sokemen, some _villani_, _bordarii_,
_cotarii_, and besides them there will be a few _servi_. If a vill
consists, as in Devonshire often enough it will, of some three
_villani_, some four _bordarii_ and some two _servi_, the
'township-moot,' if such a moot there be, will be a queer little
assembly, the manorial court, if such a court there be, will not have
much to do. These men can not have many communal affairs; there will be
no great scope for dooms or for by-laws; they may well take all their
disputes into the hundred court, especially in Devonshire where the
hundreds are small. Thus of the visible vill of the eleventh century and
its material surroundings we may form a wrong notion. Often enough in
the west its common fields (if common fields it had) were not wide
fields; the men who had shares therein were few and belonged to various
classes. Thus of two villages in Gloucestershire, Brookthorpe and
Harescombe, all that we can read is that in Brostrop there were two
teams, one _villanus_, three _bordarii_, four _servi_, while in
Hersecome there were two teams, two _bordarii_ and five _servi_[53].
Many a Devonshire township can produce but two or three teams. Often
enough our 'village community' will be a heterogeneous little group
whose main capital consists of some 300 acres of arable land and some 20
beasts of the plough.

[Importance of the east.]

On the other hand, we must be careful not to omit from our view the
rich and thickly populated shires or to imagine or to speak as though we
imagined that a general theory of English history can neglect the East
of England. If we leave Lincolnshire, Norfolk and Suffolk out of account
we are to all appearance leaving out of account not much less than a
quarter of the whole nation[54]. Let us make three groups of counties:
(1) a South-Western group containing Devon, Somerset, Dorset and
Wiltshire: (2) a Mid-Western group containing the shires of Gloucester,
Worcester, Hereford, Salop, Stafford and Warwick: (3) an Eastern group
containing Lincolnshire, Norfolk and Suffolk. The first of these groups
has the largest; the third the smallest acreage. In Domesday Book,
however, the figures which state their population seem to be
these[55]:--

          South-Western Group:    49,155
          Mid-Western Group:      33,191
          Eastern Group:          72,883

These figures are so emphatic that they may cause us for a moment to
doubt their value, and on details we must lay no stress. But we have
materials which enable us to check the general effect. In 1297 Edward I.
levied a lay subsidy of a ninth[56]. The sums borne by our three groups
of counties were these:--

                                    £
          South-Western Group:    4,038
          Mid-Western Group:      3,514
          Eastern Group:          7,329

There is a curious resemblance between these two sets of figures. Then
in 1377 and 1381 returns were made for a poll-tax[57]. The number of
polls returned in our three groups were these:--

                                  1377      1381
          South-Western Group:   183,842   106,086
          Mid-Western Group:     158,245   115,679
          Eastern Group:         255,498   182,830

No doubt all inferences drawn from medieval statistics are exceedingly
precarious; but, unless a good many figures have conspired to deceive
us, Lincolnshire, Norfolk and Suffolk were at the time of the Conquest
and for three centuries afterwards vastly richer and more populous than
any tract of equal area in the West.

[Manorial and non-manorial vills.]

Another distinction between the eastern counties and the rest of England
is apparent. In many shires we shall find that the name of each vill is
mentioned once and no more. This is so because the land of each vill
belongs in its entirety to some one tenant in chief. We may go further:
we may say, though at present in an untechnical sense, that each vill is
a manor. Such is the general rule, though there will be exceptions to
it. On the other hand, in the eastern counties this rule will become the
exception. For example, of the fourteen vills in the Armingford hundred
of Cambridgeshire there is but one of which it is true that the whole
of its land is held by a single tenant in chief. In this county it is
common to find that three or four Norman lords hold land in the same
vill. This seems true not only of Cambridgeshire but also of Essex,
Suffolk, Norfolk, Lincoln, Nottingham, Derby, and some parts of
Yorkshire. Even in other districts of England the rule that each vill
has a single lord is by no means unbroken in the Conqueror's day and we
can see that there were many exceptions to it in the Confessor's. A
careful examination of all England vill by vill would perhaps show that
the contrast which we are noting is neither so sharp nor so ancient as
at first sight it seems to be: nevertheless it exists.

[The distribution of free men and serfs.]

A better known contrast there is. The eastern counties are the home of
liberty[58]. We may divide the tillers of the soil into five great
classes; these in order of dignity and freedom are (1) _liberi homines_,
(2) _sochemanni_, (3) _villani_, (4) _bordarii_, _cotarii_ etc., (5)
_servi_. The two first of these classes are to be found in large numbers
only in Norfolk, Suffolk, Lincolnshire, Nottinghamshire, Leicestershire
and Northamptonshire. We shall hereafter see that Cambridgeshire also
has been full of sokemen, though since the Conquest they have fallen
from their high estate. On the other hand, the number of _servi_
increases pretty steadily as we cross the country from east to west. It
reaches its maximum in Cornwall and Gloucestershire; it is very low in
Norfolk, Suffolk, Derby, Leicester, Middlesex, Sussex; it descends to
zero in Yorkshire and Lincolnshire. This descent to zero may fairly warn
us that the terms with which we are dealing may not bear precisely the
same meaning in all parts of England, or that a small class is apt to be
reckoned as forming part of a larger class. But still it is clear enough
that some of these terms are used with care and express real and
important distinctions.

[The classification of men.]

Of this we are assured by a document which seems to reproduce the
wording of the instructions which defined the duty of at least one party
of royal commissioners[59]. We are about to speak of the mode in which
the occupants of the soil are classified by Domesday Book, and therefore
this document deserves our best attention. It runs thus:--The King's
barons inquired by the oath of the sheriff of the shire and of all the
barons and of their Frenchmen and of the whole hundred, the priest,
reeve and six _villani_ of every vill, how the mansion (_mansio_) is
called, who held it in the time of King Edward, who holds it now, how
many hides, how many plough-teams on the demesne, how many plough-teams
of the men, how many _villani_, how many _cotarii_, how many _servi_,
how many _liberi homines_, how many _sochemanni_, how much wood, how
much meadow, how much pasture, how many mills, how many fisheries, how
much has been taken away therefrom, how much added thereto, and how much
there is now, how much each _liber homo_ and _sochemannus_ had and
has:--All this thrice over, to wit as regards the time of King Edward,
the time when King William gave it, and the present time, and whether
more can be had thence than is had now[60].

[Basis of classification.]

Five classes of men are mentioned and they are mentioned in an order
that is extremely curious:--_villani_, _cotarii_, _servi_, _liberi
homines_, _sochemanni_. It descends three steps, then it leaps from the
very bottom of the scale to the very top and thence it descends one
step. A parody of it might speak of the rural population of modern
England as consisting of large farmers, small farmers, cottagers, great
landlords, small landlords. But a little consideration will convince us
that beneath this apparent caprice there lies some legal principle. We
shall observe that these five species of tenants are grouped into two
genera. The king wants to know how much each _liber homo_, how much each
_sochemannus_ holds; he does not want to know how much each _villanus_,
each _cotarius_, each _servus_ holds. Connecting this with the main
object of the whole survey, we shall probably be brought to the guess
that between the sokeman and the villein there is some broad distinction
which concerns the king as the recipient of geld. May it not be
this:--the villein's lord is answerable for the geld due from the land
that the villein holds, the sokeman's lord is not answerable, at least
he is not answerable as principal debtor for the geld due from the land
that the sokeman holds? If this be so, the order in which the five
classes of men are mentioned will not seem unnatural. It proceeds
outwards from the lord and his _mansio_. First it mentions the persons
seated on land for the geld of which he is responsible, and them it
arranges in an 'order of merit.' Then it turns to persons who, though in
some way or another connected with the lord and his _mansio_, are
themselves tax-payers, and concerning them the commissioners are to
inquire how much each of them holds. Of course we can not say that this
theory is proved by the statement that lies before us; but it is
suggested by that statement and may for a while serve us as a working
hypothesis. If this theory be sound, then we have here a distinction of
the utmost importance. For one mighty purpose, the purpose that is
uppermost in King William's mind, the _villanus_ is not a landowner, his
lord is the landowner; on the other hand the _sochemannus_ is a
landowner, and is taxed as such. We are not saying that this is a purely
fiscal distinction. In legal logic the lord's liability for the geld
that is apportioned on the land occupied by his villeins may be rather
an effect than a cause. A lawyer might argue that the lord must pay
because the occupier is his _villanus_, not that the occupier is a
_villanus_ because the lord pays. And yet, as we may often see in legal
history, there will be action and reaction between cause and effect. The
geld is no trifle. Levied at that rate of six shillings on the hide at
which King William has just now levied it, it is a momentous force
capable of depressing and displacing whole classes of men. In 1086 this
tax is so much in everybody's mind that any distinction as to its
incidence will cut deeply into the body of the law.

[Our course.]

Now this classification of men we will take as the starting point for
our enterprise. If we could define the _liber homo_, _sochemannus_,
_villanus_, _cotarius_, _servus_, we should have solved some of the
great legal problems of Domesday Book, for by the way we should have had
to define two other difficult terms, namely _manerium_ and _soca_. It
would then remain that we should say something of the higher strata of
society, of earls and sheriffs, of barons, knights, thegns and their
tenures, of such terms as _alodium_ and _feudum_, of the general theory
of landownership or landholdership. We will begin with the lowest order
of men, with the _servi_, and thence work our way upwards. But our
course can not be straightforward. There are so many terms to be
explained that sometimes we shall be compelled to leave a question but
partially answered while we are endeavouring to find a partial answer
for some yet more difficult question.

FOOTNOTES:

  [22] D. B. ii. 109 b: 'Hundret de Grenehou 14 letis.' Ib. 212 b:
       'Hundret et Dim. de Clakelosa de 10 leitis.' Round, Feudal
       England, 101.

  [23] Some of them are mentioned by Ellis, Introduction, i. 34-9.

  [24] D. B. i. 184 b: 'Haec terra non geldat nec consuetudinem dat
       nec in aliquo hundredo iacet'; i. 157 'Haec terra nunquam
       geldavit nec alicui hundredo pertinet nec pertinuit'; i. 357 b
       'Hae duae carucatae non sunt in numero alicuius hundredi neque
       habent pares in Lincolescyra.'

  [25] D. B. i. 207 b: 'Jacet in Bedefordscira set geldum dat in
       Huntedonscire'; i. 61 b 'Jacet et appreciata est in Gratentun
       quod est in Oxenefordscire et tamen dat scotum in Berchescire';
       i. 132 b, the manor of Weston 'lies in' Hitchin which is in
       Hertfordshire, but its _wara_ 'lies in' Bedfordshire, i.e. it
       pays geld, it 'defends itself' in the latter county; i. 189 b,
       the _wara_ of a certain hide 'lies in' Hinxton which is in
       Cambridgeshire, but the land belongs to the manor of
       Chesterford and therefore is valued in Essex. D. B. i. 178;
       five hides 'geld and plead' in Worcestershire, but pay their
       farm in Herefordshire.

  [26] D. B. i. 157 b: 'Has [terras in Oxenefordscire] coniunxit
       terrae suae in Glowecestrescire'; i. 209 b 'foris misit de
       hundredo ubi se defendebat T. R. E.'; i. 50 'et misit foras
       comitatum et misit in Wiltesire.' See also Ellis, i. 36.

  [27] See Round, Feudal England, p. 118. Mr Round seems to think that
       the commissioners made a circuit through the hundreds. I doubt
       they did more than their successors the justices in eyre were
       wont to do, that is, they held in the shire-town a moot which
       was attended by (1) the magnates of the shire who spoke for the
       shire, (2) a jury from every hundred, (3) a deputation of
       _villani_ from every township. See the Yorkshire and
       Lincolnshire _Clamores_ (i. 375) where we may find successive
       entries beginning with (_a_) _Scyra testatur_, (_b_)
       _Westreding testatur_, (_c_) _Testatur wapentac_. Strikingly
       similar entries are found on the eyre rolls. As Sir F. Pollock
       (Eng. Hist. Rev. xi. 213) remarks, it is misleading to speak of
       the Domesday 'survey'; Domesday Inquest would be better.

  [28] See Round, Feudal England, p. 44.

  [29] Inquis. Com. Cantab. 60.

  [30] See the table in Round, Feudal England, p. 50. I had already
       selected this beautiful specimen before Mr Round's book
       appeared. He has given several others that are quite as neat.

  [31] Of course we take no account of urban parishes.

  [32] Eyton's laborious studies have made this plain as regards some
       counties widely removed from each other; still, _e.g._ in his
       book on Somerset, he has now and again to note that names which
       appear in D. B. are obsolete.

  [33] Inq. Com. Cant. 60-1.

  [34] D. B. i. 31.

  [35] D. B. i. 41. We shall return to this matter hereafter.

  [36] A good many cases will be found in Essex and Suffolk.

  [37] Inq. Com. Cantab. 51, 53.

  [38] Ibid. 47.

  [39] Ibid. 29.

  [40] Maitland, Surnames of English Villages, Archaeological Review,
       iv. 233.

  [41] We do not mean to imply that there were not wide stretches of
       waste land which were regarded as being 'extra-villar,' or
       common to several vills.

  [42] Hist. Eng. Law, i. 547.

  [43] This of course would not be true of cases in which the lands of
       various villages were intermixed in one large tract of common
       field. As to these 'discrete vills,' see Hist. Eng. Law, i.
       549.

  [44] This name-giving cluster will usually contain the parish church
       and so will enjoy a certain preeminence. But we are to speak of
       a time when parish churches were novelties.

  [45] See Meitzen, Siedelung und Agrarwesen der Germanen, especially
       ii. 119 ff.

  [46] When the hamlets bear names with such ancient suffixes as
       -_ton_, -_ham_, -_by_, _-worth_, _-wick_, _-thorpe_, this of
       course is in favour of their antiquity. On the other hand, if
       they are known merely by family names such as _Styles's_,
       _Nokes's_, _Johnson's_ or the like, this, though not conclusive
       evidence of, is compatible with their modernity. Meitzen thinks
       that in Kent and along the southern shore the German invaders
       founded but few villages. The map does not convince me that
       this inference is correct.

  [47] When more than five-and-twenty team-lands or thereabouts are
       ascribed to a single place, we shall generally find reason to
       believe that what is being described is not a single vill. See
       above, p. 13.

  [48] Inq. Com. Cant. 51 fol. In a few cases our figures will involve
       a small element of conjecture.

  [49] D. B. i. 248. We have tried to avoid vills in which it is
       certain or probable that some other tenant in chief had an
       estate.

  [50] D. B. i. 88. We have tried to make sure that no tenant in chief
       save the bishop had land in any of these vills, and this we
       think fairly certain, except as regards Harptree and Norton.
       There are now two Harptrees, East and West, and four or more
       Nortons.

  [51] We take the figures from Ellis, Introduction, ii. 417 ff.

  [52] Very possibly this figure is too low. There is reason to think
       that some of the free men and sokemen of these counties get
       counted twice or thrice over because they hold land under
       several different lords. On the other hand Ellis (Introduction,
       ii. 491) would argue that the figure is too high. But the words
       _Alii ibi tenent_ which occur at the end of numerous entries
       mean, we believe, not that there are in this vill other
       unenumerated tillers of the soil, but that the vill is divided
       between several tenants in chief.

  [53] D. B. i. 162 b.

  [54] Ellis's figures are: England 283,242: the three counties
       72,883.

  [55] We take these figures from Ellis.

  [56] Lay Subsidy, 25 Edw. I. (Yorkshire Archaeological Society), pp.
       xxxi-xxxv. Fractions of a pound are neglected.

  [57] Powell, The Rising in East Anglia, 120-3. The great decrease
       between 1377 and 1381 in the number of persons taxed, we must
       not try to explain.

  [58] See the serviceable maps in Seebohm, Village Community, 86. But
       they seem to treat Yorkshire unfairly. It has 5·5 per cent. of
       sokemen.

  [59] This is found at the beginning of the Inquisitio Eliensis; D.
       B. iv. 497; Hamilton, Inquisitio, 97. See Round, Feudal
       England, 133 ff.

  [60] We must not hastily draw the inference that every party of
       commissioners received the same set of instructions. Perhaps,
       for example, carucates, not hides, were mentioned in the
       instructions given to those commissioners who were to visit the
       carucated counties. Perhaps the non-appearance of _servi_ in
       Yorkshire and Lincolnshire may be due to no deeper cause.



§ 2. _The Serfs._


[The serfs in Domesday Book.]

The existence of some 25,000 serfs is recorded. In the thirteenth
century _servus_ and _villanus_ are, at least among lawyers, equivalent
words. The only unfree man is the 'serf-villein' and the lawyers are
trying to subject him to the curious principle that he is the lord's
chattel but a free man in relation to all but his lord[61]. It is far
otherwise in Domesday Book. In entry after entry and county after county
the _servi_ are kept well apart from the _villani_, _bordarii_,
_cotarii_. Often they are mentioned in quite another context to that in
which the _villani_ are enumerated. As an instance we may take a manor
in Surrey[62]:--'In demesne there are 5 teams and there are 25 _villani_
and 6 _bordarii_ with 14 teams. There is one mill of 2 shillings and one
fishery and one church and 4 acres of meadow, and wood for 150 pannage
pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the
wood and 10 _servi_.' Often enough the _servi_ are placed between two
other sources of wealth, the church and the mill. In some counties they
seem to take precedence over the _villani_; the common formula is 'In
dominio sunt _a_ carucae et _b_ servi et _c_ villani et _d_ bordarii cum
_e_ carucis.' But this is delusive; the formula is bringing the _servi_
into connexion with the demesne teams and separating them from the teams
of the tenants. We must render it thus--'On the demesne there are _a_
teams and _b_ servi; and there are _c_ villani and _d_ bordarii with _e_
teams.' Still we seem to see a gently graduated scale of social classes,
_villani_, _bordarii_, _cotarii_, _servi_, and while the jurors of one
county will arrange them in one fashion, the jurors of another county
may adopt a different scheme. Thus in their classification of mankind
the jurors will sometimes lay great stress on the possession of plough
oxen. In Hertfordshire we read:--'There are 6 teams in demesne and 41
_villani_ and 17 _bordarii_ have 20 teams ... there are 22 _cotarii_ and
12 _servi_[63].'--'The priest, 13 _villani_ and 4 _bordarii_ have 6
teams ... there are two _cotarii_ and 4 _servi_[64].'--'The priest and
24 _villani_ have 13 teams ... there are 12 _bordarii_, 16 _cotarii_ and
11 _servi_[65].' A division is in this instance made between the people
who have oxen and the people who have none; _villani_ have oxen,
_cotarii_ and _servi_ have none; sometimes the _bordarii_ stand above
this line, sometimes below it.

[Legal position of the serf.]

Of the legal position of the _servus_ Domesday Book tells us little or
nothing; but earlier and later documents oblige us to think of him as a
slave, one who in the main has no legal rights. He is the _theów_ of the
Anglo-Saxon dooms, the _servus_ of the ecclesiastical canons. But though
we do right in calling him a slave, still we might well be mistaken were
we to think of the line which divides him from other men as being as
sharp as the line which a mature jurisprudence will draw between thing
and person. We may well doubt whether this principle--'The slave is a
thing, not a person'--can be fully understood by a grossly barbarous
age. It implies the idea of a person, and in the world of sense we find
not persons but men.

[Degrees of serfdom.]

Thus degrees of servility are possible. A class may stand, as it were,
half-way between the class of slaves and the class of free men. The
Kentish law of the seventh century as it appears in the dooms of
Æthelbert[66], like many of its continental sisters, knows a class of
men who perhaps are not free men and yet are not slaves; it knows the
_læt_ as well as the _theów_. From what race the Kentish _læt_ has
sprung, and how, when it comes to details, the law will treat him--these
are obscure questions, and the latter of them can not be answered unless
we apply to him what is written about the _laeti_, _liti_ and _lidi_ of
the continent. He is thus far a person that he has a small wergild but
possibly he is bound to the soil. Only in Æthelbert's dooms do we read
of him. From later days, until Domesday Book breaks the silence, we do
not obtain any definite evidence of the existence of any class of men
who are not slaves but none the less are tied to the land. Of men who
are bound to do heavy labour services for their lords we do hear, but we
do not hear that if they run away they can be captured and brought
back. As we shall see by and by, Domesday Book bears witness to the
existence of a class of _buri_, _burs_, _coliberti_, who seem to be
distinctly superior to the _servi_, but distinctly inferior to the
villeins, bordiers and cottiers. It is by no means impossible that they,
without being slaves, are in a very proper and intelligible sense unfree
men, that they have civil rights which they can assert in courts of law,
but that they are tied to the soil. The gulf between the seventh and the
eleventh centuries is too wide to allow of our connecting them with the
_læt_ of Æthelbert's laws, but still our documents are not exhaustive
enough to justify us in denying that all along there has been a class
(though it can hardly have been a large class) of men who could not quit
their tenements and yet were no slaves. As we shall see hereafter,
liberty was in certain contexts reckoned a matter of degree; even the
_villanus_, even the _sochemannus_ was not for every purpose _liber
homo_. When this is so, the _theów_ or _servus_ is like to appear as the
unfreest of persons rather than as no person but a thing.

[Prædial element in serfage.]

In the second place, we may guess that from a remote time there has been
in the condition of the _theów_ a certain element of praediality. The
slaves have not been worked in gangs nor housed in barracks[67]. The
_servus_ has often been a _servus casatus_, he has had a cottage or even
a manse and yardland which _de facto_ he might call his own. There is
here no legal limitation of his master's power. Some slave trade there
has been; but on the whole it seems probable that the _theów_ has been
usually treated as annexed to a tenement. The duties exacted of him from
year to year have remained constant. The consequence is that a free man
in return for a plot of land may well agree to do all that a _theów_
usually does and see in this no descent into slavery. Thus the slave
gets a chance of acquiring what will be as a matter of fact a
_peculium_. In the seventh century the church tried to turn this matter
of fact into matter of law. 'Non licet homini,' says Theodore's
Penitential, 'a servo tollere pecuniam, quam ipse labore suo
adquesierit[68].' We have no reason for thinking that this effort was
very strenuous or very successful, or that the law of the eleventh
century allowed the _servus_ any proprietary rights; and yet he might
often be the occupier of land and of chattels with which, so long as he
did his customary services, his lord would seldom meddle.

[The serf in criminal law.]

In the third place, we may believe that for some time past police law
and punitive law have been doing something to conceal, if not to
obliterate, the line which separates the slave from other men. A mature
jurisprudence may be able to hold fast the fundamental principle that a
slave is not a person but a thing, while at the same time it both limits
the master's power of abusing his human chattel and guards against those
dangers which may arise from the existence of things which have wills,
and sometimes bad wills, of their own. But an immature jurisprudence is
incapable of this exploit. It begins to play fast and loose with its
elementary notions. It begins to punish the criminous slave without
being quite certain as to how far it is punishing him and how far it is
punishing his master. Confusion is easy, for if the slave be punished by
death or mutilation, his master will suffer, and a pecuniary mulct
exacted from the slave is exacted from his master. Learned writers have
come to the most opposite opinions as to the extent to which the
Anglo-Saxon dooms by their distribution of penalties recognize the
personality of the _theów_. But this is not all. For a long time past
the law has had before it the difficult problem of dealing with crimes
and delicts committed by poor and economically dependent free men, men
who have no land of their own, who are here to-day and gone to-morrow,
'men from whom no right can be had.' It has been endeavouring to make
the lords answerable to a certain extent for the misdeeds of their free
retainers. If a slave is charged with a crime his master is bound to
produce him in court. But the law requires that the lord shall in very
similar fashion produce his free 'loaf eater,' his mainpast, nay, it has
been endeavouring to enforce the rule that every free man who has no
land of his own shall have a lord bound to produce him when he is
accused. Also it has been fostering the growth of private justice. The
lord's duty of producing his men, bond and free, has been becoming the
duty of holding a court in which his men, free and bond, will answer for
themselves. How far this process had gone in the days of the Confessor
is a question to which we shall return[69].

[Serf and villein.]

For all this however, we may say with certainty that in the eleventh
century the _servi_ were marked off from all other men by definite legal
lines. What is more, we may say that every man who was not a _theów_ was
in some definite legal sense a free man. This sharp contrast is put
before us by the laws of Cnut as well as by those of his predecessors.
If a freeman works on a holiday, he pays for it with his _healsfang_; if
a _theówman_ does the like, he pays for it with his hide or his
hide-geld[70]. Equally sharp is the same distinction in the Leges
Henrici, and this too in passages which, so far as we know, are not
borrowed from Anglo-Saxon documents. For many purposes 'aut servus aut
liber homo' is a perfect dilemma. There is no confusion whatever between
the _villani_ and the _servi_. The _villani_ are 'viles et inopes
personae' but clearly enough they are _liberi homines_. So also in the
Quadripartitus, the Latin translation of the ancient dooms made in Henry
I.'s reign, there is no confusion about this matter; the _theówman_
becomes a _servus_, while _villanus_ is the equivalent for _ceorl_. The
Norman writers still tell how according to the old law of the English
the _villanus_ might become a thegn if he acquired five hides of
land[71]; at times they will put before us _villani_ and _thaini_ or
even _villani_ and _barones_ as an exhaustive classification of free
men[72].

[The serf of the Leges.]

Let us learn what may be learnt of the _servus_ from the Leges Henrici.
Every man is either a _liber homo_ or a _servus_[73]. Free men are
either two-hundred-men or twelve-hundred-men; perhaps we ought to add
that there is also a class of six-hundred-men[74]. A serf becomes such
either by birth or by some event, such as a sale into slavery, that
happens in his lifetime[75]. Servile blood is transmitted from father to
child; some lords hold that it is also transmitted by mother to
child[76]. If a slave is to be freed this should be done publicly, in
court, or church or market, and lance and helmet or other the arms of
free men should be given him, while he should give his lord thirty
pence, that is the price of his skin, as a sign that he is henceforth
'worthy of his hide.' On the other hand, when a free man falls into
slavery then also there should be a public ceremony. He should put his
head between his lord's hands and should receive as the arms of slavery
some bill-hook or the like[77]. Public ceremonies are requisite, for the
state is endangered by the uncertain condition of accused criminals; the
lords will assert at one moment that their men are free and at the next
moment that these same men are slaves[78]. The descent of a free man
into slavery is treated as no uncommon event; the slave may well have
free kinsfolk[79]. But, to come to the fundamental rule, the _villanus_,
the meanest of free men, is a two-hundred-man, that is to say, if he be
slain the very substantial wergild of 200 Saxon shillings or £4 must be
paid to his kinsfolk[80], while a man-bót of 30 shillings is paid to his
lord[81]. But if a _servus_ be slain his kinsfolk receive the
comparatively trifling sum of 40 pence while the lord gets the man-bót
of 20 shillings[82]. That the serf's kinsfolk should receive a small sum
need not surprise us. Germanic law has never found it easy to carry the
principle that the slave is a chattel to extreme conclusions; but the
payment seems trifling and half contemptuous; at any rate the life of
the villein is worth the life of twenty-four serfs[83]. Then again, it
is by no means certain that a lord can not kill his serf with impunity.
'If,' says our text, 'a man slay his own serf, his is the sin and his is
the loss':--we may interpret this to mean that he has sinned but sinned
against himself[84]. Then again, for the evil deeds of his slave the
master is in some degree responsible. If my slave be guilty of a petty
theft not worthy of death, I am bound to make restitution; if the crime
be a capital one and he be taken handhaving, then he must 'die like a
free man[85].' If my slave be guilty of homicide, my duty is to set him
free and hand him over to the kindred of the slain, but apparently I may
purchase his life by a sum of 40 shillings, a sum much less than the
_wer_ of the slain man[86]. We must not be too hard on the owners of
delinquent slaves. There are cases, for example, in which, several
slaves having committed a crime, one of them chosen by lot must suffer
for the sins of all[87]. Our author is borrowing from the laws of
several different centuries and does not arrive at any neat result; nor
must we wonder at this, for the problems presented to jurisprudence by
the crimes and delicts of slaves are very intricate. Then again, we have
the rule that if free men and serfs join in a crime, the whole guilt is
to be attributed to the free: he who joins with a slave in a theft has
no companion[88]. On the whole, though the slave is likely to have as a
matter of fact a _peculium_ of his own, a _peculium_ out of which he may
be able to pay for his offences and even perhaps to purchase his
liberty[89], the _servus_ of our Leges seems to be in the main a
rightless being. We look in vain for any trace of that idea of the
relativity of servitude which becomes the core of Bracton's
doctrine[90]. At the same time we observe that many, perhaps most, of
the rules which mark the slavish condition of the serf are ancient rules
and rules that are becoming obsolete. In the twelfth century the old
system of _wer_ and _bót_ is already vanishing, though an antiquarian
lawyer may yet try to revivify it. When it disappears altogether before
the new law, which holds every grave crime to be a felony, and punishes
almost every felony with death[91], many grand differences between the
villein and the serf will have perished. The gallows is a great
leveller.

[Return to the _servus_ of Domesday.]

If now we recur to the days of the Conquest, we cannot doubt that the
law knew a definite class of slaves, and marked them off by many
distinctions from the _villani_ and _cotarii_, and even from the
_coliberti_. Sums that seem high were being paid for men whose freedom
was being purchased[92]. At Lewes the toll paid for the sale of an ox
was a halfpenny; on the sale of a man it was fourpence[93]. In later
documents we may sometimes see a distinction well drawn. Thus in the
Black Book of Peterborough, compiled in 1127 or thereabouts, we may read
how on one of his manors the abbot has eight herdsmen (_bovarii_), how
each of them holds ten acres, has to do labour services and render
loaves and poultry. And then we read that each of them must pay one
penny for his head if he be a free man (_liber homo_), while he pays
nothing if he be a _servus_[94]. This is a well-drawn distinction. Of
two men whose economic position is precisely the same, the one may be
free, the other a slave, and it is the free man, not the slave, who has
to pay a head-penny. Now when the Conqueror's surveyors, or rather the
jurors, call a man a _servus_ they are, so it seems to us, thinking
rather of his legal status than of his position in the economy of a
manor. At any rate we ought to observe that the economic stratification
of society may cut the legal stratification. We are accustomed perhaps
to suppose that while the _villani_ have lands that are in some sense
their own, while they support themselves and their families by tilling
those lands, the _servus_ has no land that is in any sense his own, but
is fed at his lord's board, is housed in his lord's court, and spends
all his time in the cultivation of his lord's demesne lands. Such may
have been the case in those parts of England where we hear of but few
_servi_; those few may have been inmates of the lord's house and have
had no plots of their own. But such can hardly have been the case in the
south-western counties; the _servi_ are too many to be menials. Indeed
it would seem that these _servi_ sometimes had arable plots, and had
oxen, which were to be distinguished from the demesne oxen of their
lords--not indeed as a matter of law, but as a matter of economic
usage[95]. It is plain that the legal and the economic lines may
intersect one another; the menial who is fed by the lord and who must
give his whole time to the lord's work may be a free man; the slave may
have a cottage and oxen and a plot of arable land, and labour for
himself as well labouring for his lord. Hence a perplexed and uncertain
terminology:--the _servus_ who has land and oxen may be casually called
a _villanus_[96], and we cannot be sure that no one whom our record
calls a _servus_ has the wergild of a free man. Nor can we be sure that
the enumeration of the _servi_ is always governed by one consistent
principle. In the shires of Gloucester, Hereford and Worcester we read
of numerous _ancillae_--in Worcestershire of 677 _servi_ and 101
_ancillae_[97]--and this may make us think that in this district all the
able-bodied serfs are enumerated, whether or no they have cottages to
themselves[98]. We may strongly suspect that the king's commissioners
were not much interested in the line that separated the _villani_ from
the _servi_, since the lord was as directly answerable for the geld of
any lands that were in the occupation of his villeins as he was for the
geld of those plots that were tilled for him by his slaves. That there
should have been never a _theów_ in all Yorkshire and Lincolnshire is
hardly credible, and yet we hear of no _servi_ in those counties.

[Disappearance of _servi_.]

This being so, we encounter some difficulty if we would put just the
right interpretation on a remarkable fact that is visible in Essex. The
description of that county tells us not only how many _villani_,
_bordarii_ and _servi_ there are now, but also how many there were in
King Edward's day, and thus shows what changes have taken place during
the last twenty years. Now on manor after manor the number of villeins
and bordiers, if of them we make one class, has increased, while the
number of _servi_ has fallen. We take 100 entries (four batches of 25
apiece) and see that the number of _villani_ and _bordarii_ has risen
from 1486 to 1894, while the number of _servi_ has fallen from 423 to
303. We make another experiment with a hundred entries. This gives the
following result:--

                           1066    1086
               Villani     1273    1247
               Bordarii     810    1241
               Servi        384     312

This decrease in the number of _servi_ seems to be pretty evenly
distributed throughout the county[99]. We shall not readily ascribe the
change to any mildheartedness of the lords. They are Frenchmen, and in
all probability they have got the most they could out of a mass of
peasantry made malleable and manageable by the Conquest. We may rather
be entitled to infer that there has been a considerable change in rural
economy. For the cultivation of his demesne land the lord begins to rely
less and less on the labour of serfs whom he feeds, more and more upon
the labour of tenants who have plots of their own and who feed
themselves. From this again we may perhaps infer that the labour
services of the _villani_ and _bordarii_ are being augmented. But at any
rate it speaks ill of their fate, that under the sway of foreigners, who
may fairly be suspected of some harshness and greed, their inferiors,
the true _servi_, are somewhat rapidly disappearing. However, it is by
no means impossible that with a slavery so complete as that of the
English _theów_ the Normans were not very familiar in their own
country[100].

FOOTNOTES:

  [61] Hist. Eng. Law, i. 398.

  [62] D. B. i. 34, Limenesfeld.

  [63] D. B. i. 132 b, Hiz.

  [64] D. B. i. 132 b, Waldenei.

  [65] D. B. i. 136, Sandone.

  [66] Æthelb. 26.

  [67] Tacitus, Germ. c. 25: 'Caeteris servis non in nostrum morem,
       descriptis per familiam ministeriis, utuntur. Suam quisque
       sedem, suos penates regit. Frumenti modum dominus aut pecoris
       aut vestis ut colono iniungit, et servus hactenus paret.'

  [68] Haddan and Stubbs, Councils, iii. 202.

  [69] See on the one hand Maurer, K. U. i. 410, on the other a
       learned essay by Jastrow, Zur strafrechtlichen Stellung der
       Sklaven, in Gierke's Untersuchungen zur Deutsche Geschichte,
       vol. i. Maurer holds that the Anglo-Saxon slave is in the main
       a chattel, that _e.g._ the master must answer for the delicts
       of his slave in the same way that the owner answers for damage
       done by his beasts, and that this liability can be clearly
       marked off from the duty of the lord of free retainers who is
       merely bound to produce them in court. Jastrow, on the
       contrary, thinks that even at a quite early time the
       Anglo-Saxon slave is treated as a person by criminal law; he
       has a wergild; he can be fined; his trespasses are never
       compared to the trespasses of beasts; the lord's duty, if one
       of his men is charged with crime, is much the same whether that
       man be free or bond. Any theory involves an explanation of
       several passages that are obscure and perhaps corrupt.

  [70] Cnut, II. 45-6.

  [71] Schmid, Appendix V. (Of Ranks); Pseudoleges Canuti, 60 (Schmid,
       p. 431).

  [72] Leg. Hen. 76 § 7: 'Differentia tamen weregildi multa est in
       Cantia villanorum et baronum.'

  [73] Leg. Hen. 76 § 2.

  [74] Leg. Hen. 76 § 3.

  [75] Ibid. 76 § 3.

  [76] Ibid. 77; see Hist. Eng. Law, i. 405.

  [77] Ibid. 78 § 2. The difficult _strublum_ we leave untouched.

  [78] Ibid. 78 § 2 from Cnut, II. 20. On this see Jastrow's comment,
       op. cit. p. 80.

  [79] Ibid. 70 § 5.

  [80] Ibid. 70 § 1; 76 § 4.

  [81] Ibid. 69 § 2.

  [82] Ibid. 70 § 4: 'Si liber servum occidat similiter reddat
       parentibus 40 den. et duas mufflas et unum pullum [_al._
       billum] mutilatum.' The _mufflae_ are thick gloves. Compare
       Ancient Laws of Wales, i. 239, 511; the bondman has no
       _galanas_ (wergild) but if injured he receives a _saraad_; 'the
       saraad of a bondman is twelve pence, six for a coat for him,
       three for trousers, one for buskins, one for a hook and one for
       a rope, and if he be a woodman let the hook-penny be for an
       axe.' If we read _billum_ instead of _pullum_ the English rule
       may remind us of the Welsh. His hedger's gloves and bill-hook
       are the arms appropriate to the serf, 'servitutis arma'; cf.
       Leg. Hen. 78 § 2. As to the _man-bót_ see Liebermann, Leg.
       Edwardi, p. 71.

  [83] In Leg. Hen. 81 § 3 (a passage which seems to show that by his
       master's favour even the _servus_ may sometimes sue for a wrong
       done to him) we have this sum:--_villanus_ : _cothsetus_ :
       _servus_ :: 30 : 15 : 6.

  [84] Ibid. 75 § 4: 'suum peccatum est et dampnum.' See also 70 § 10,
       an exceedingly obscure passage.

  [85] Ibid. 59 § 23.

  [86] Ibid. 70 § 5; but for this our author has to go back as far as
       Ine.

  [87] Ibid. 59 § 25.

  [88] Ibid. 59 § 24; 85 § 4: 'solus furatur qui cum servo furatur.'

  [89] Ibid. 78 § 3; 59 § 25.

  [90] Hist. Eng. Law, i. 398, 402.

  [91] Hist. Eng. Law, ii. 457.

  [92] See the Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes
       a pound or a half-pound is paid.

  [93] D. B. i. 26.

  [94] Chron. Petrob. 163.

  [95] D. B. i. 105 b, Devon: 'Rolf tenet de B[alduino] Boslie ...
       Terra est 8 carucis. In dominio est 1 caruca et dimidia et 7
       servi cum 1 caruca.' D. B. iv. 265: 'Balduinus habet 1
       mansionem quae vocatur Bosleia ... hanc possunt arare 8
       carrucae et modo tenet eam Roffus de Balduino. Inde habet R. 1
       ferdinum et 1 carrucam et dimidiam in dominio et villani tenent
       aliam terram et habent ibi 1 carrucam. Ibi habet R. 7 servos.'
       In the Exeter record these seven serfs seem to get reckoned as
       being both _servi_ and _villani_. So in the account of Rentis,
       D. B. iv. 204-5, the lord is said to have one quarter of the
       arable in demesne and two oxen, while the _villani_ are said to
       have the rest of the arable and one team; but the only
       _villani_ are 8 _coliberti_ and 4 _servi_.

  [96] See last note.

  [97] Ellis, Introduction, ii. 504-6.

  [98] See, for example, the following Herefordshire entry, D. B. i.
       180 b: 'In dominio sunt 2 carucae et 4 villani et 8 bordarii et
       prepositus et bedellus. Inter omnes habent 4 carucas. Ibi 8
       inter servos et ancillas et vaccarius et daia.'

  [99] Mr Round has drawn attention to the great increase of
       _bordarii_: Antiquary (1882) vi. 9. In the second of our two
       experiments the cases were taken from the royal demesne and the
       lands of the churches. The surveys of Norfolk and Suffolk
       profess to enumerate the various classes of peasants T. R. E.;
       but commonly each entry reports that there has been no change.
       Without saying that we disbelieve these reports, we
       nevertheless may say that a verdict which asserts that things
       have always (_semper_) been as they now are may easily be the
       outcome of nescience.

  [100] Hist. Eng. Law, i. 53-4.



§ 3. _The Villeins._


[The boors or coliberts.]

Next above the _servi_ we see the small but interesting class of _buri_,
_burs_ or _coliberti_. Probably it was not mentioned in the writ which
set the commissioners their task, and this may well be the reason why it
appears as but a very small class. It has some 900 members; still it is
represented in fourteen shires: Hampshire, Berkshire, Wiltshire, Dorset,
Somerset, Devon, Cornwall, Buckingham, Oxford, Gloucester, Worcester,
Hereford, Warwick, Shropshire--in short, in the shires of Wessex and
western Mercia. Twice over our record explains--a piece of rare good
fortune--that _buri_ and _coliberti_ are all one[101]. In general they
are presented to us as being akin rather to the _servi_ than to the
_villani_ or _bordarii_, as when we are told, 'In demesne there is one
virgate of land and there are 3 teams and 11 _servi_ and 5 _coliberti_,
and there are 15 _villani_ and 15 _bordarii_ with 8 teams[102].' But
this rule is by no means unbroken; sometimes the _coliberti_ are
separated from the _servi_ and a precedence over the _cotarii_ or even
over the _bordarii_ is given them. Thus of a Wiltshire manor it is
written, 'In demesne there are 8 teams and 20 _servi_ and 41 _villani_
and 30 _bordarii_ and 7 _coliberti_ and 74 _cotarii_ have among them all
27 teams[103].' Again of a Warwickshire manor, 'There is land for 26
teams; in demesne are 3 teams and 4 _servi_ and 43 _villani_ and 6
_coliberti_ and 10 _bordarii_ with 16 teams[104].' A classification
which turns upon legal status is cut by a classification which turns
upon economic condition. The _colibertus_ we take to be an unfreer man
(how there come to be degrees of freedom is a question to be asked by
and by) than the _cotarius_ or the _bordarius_, but on a given manor he
may be a more important person, for he may have plough beasts while the
_cotarius_ has none, he may have two oxen while the _bordarius_ has but
an ox.

[The Continental colibert.]

[The English boor.]

In calling him a _colibertus_ the Norman clerks are giving him a foreign
name, the etymological origin of which is very dark[105]; but this much
seems plain, that in the France of the eleventh century a large class
bearing this name had been formed out of ancient elements, Roman
_coloni_ and Germanic _liti_, a class which was not rightless (for it
could be distinguished from the class of _servi_, and a _colibertus_
might be made a _servus_ by way of punishment for his crimes) but which
yet was unfree, for the _colibertus_ who left his lord might be pursued
and recaptured[106]. As to the Englishman upon whom this name is
bestowed we know him to be a _gebúr_, a boor, and we learn something of
him from that mysterious document entitled 'Rectitudines Singularum
Personarum[107].' His services, we are told, vary from place to place;
in some districts he works for his lord two days a week and during
harvest-time three days a week; he pays gafol in money, barley, sheep
and poultry; also he has ploughing to do besides his week-work; he pays
hearth-penny; he and one of his fellows must between them feed a dog. It
is usual to provide him with an outfit of two oxen, one cow, six sheep,
and seed for seven acres of his yardland, and also to provide him with
household stuff; on his death all these chattels go back to his lord.
Thus the boor is put before us as a tenant with a house and a yardland
or virgate, and two plough oxen. He will therefore play a more important
part in the manorial economy than the cottager who has no beasts. But he
is a very dependent person; his beasts, even the poor furniture of his
house, his pots and crocks, are provided for him by his lord. Probably
it is this that marks him off from the ordinary _villanus_ or
'townsman,' and brings him near the serf. In a sense he may be a free
man. We have seen how the law, whether we look for it to the code of
Cnut or to the Leges Henrici, is holding fast the proposition that every
one who is not a _theówman_ is a free man, that every one is either a
_liber homo_ or a _servus_. We have no warrant for denying to the boor
the full wergild of 200 shillings. He pays the hearth-penny, or Peter's
penny, and the document that tells us this elsewhere mentions this
payment as the mark of a free man[108]. And yet in a very true and
accurate sense he may be unfree, unfree to quit his lord's service. All
that he has belongs to his lord; he must be perpetually in debt to his
lord; he could hardly leave his lord without being guilty of something
very like theft, an abstraction of chattels committed to his charge.
Very probably if he flies, his lord has a right to recapture him. On the
other hand, so dependent a man will be in a very strict sense a tenant
at will. When he dies not only his tenement but his stock will belong to
the lord; like the French _colibert_ he is _mainmortable_. At the same
time, to one familiar with the cartularies of the thirteenth century the
rents and services that this boor has to pay and perform for his virgate
will not appear enormous. If we mistake not, many a _villanus_ of Henry
III.'s day would have thought them light. Of course any such comparison
is beset by difficulties, for at present we know all too little of the
history of wages and prices. Nevertheless the intermediation of this
class of _buri_ or _coliberti_ between the serfs and the villeins of
Domesday Book must tend to raise our estimate both of the legal freedom
and of the economic welfare of that great mass of peasants which is now
to come before us[109].

[Villani, bordarii, cotarii.]

That great mass consists of some 108,500 _villani_, some 82,600
_bordarii_, and some 6,800 _cotarii_ and _coscets_[110]. Though in manor
after manor we may find representatives of each of these three classes,
we can see that for some important purpose they form but one grand
class, and that the term _villanus_ may be used to cover the whole genus
as well as to designate one of its three species. In the Exon Domesday
a common formula, having stated the number of hides in the manor and the
number of teams for which it can find work, proceeds to divide the land
and the existing teams between the demesne and the _villani_--the
_villani_, it will say, have so many hides and so many teams. Then it
will state how many _villani_, _bordarii_, _cotarii_ there are. But it
will sometimes fall out that there are no _villani_ if that term is to
be used in its specific sense, and so, after having been told that the
_villani_ have so much land and so many teams, we learn that the only
_villani_ on this manor are _bordarii_[111]. The lines which divide the
three species are, we may be sure, much rather economic than legal
lines. Of course the law may recognise them upon occasion[112], but we
can not say that the _bordarius_ has a different status from that of the
_villanus_. In the Leges both fall under the term _villani_; indeed, as
hereafter will be seen, that term has sometimes to cover all men who are
not _servi_ but are not noble. Nor must we suppose that the economic
lines are drawn with much precision or according to any one uniform
pattern. Of _villani_ and _bordarii_ we may read in every county;
_cotarii_ or _coscets_ in considerable numbers are found only in Kent,
Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset, Berkshire,
Hertford and Cambridge, though they are not absolutely unknown in
Buckingham, in Devon, in Hereford, Worcester, Shropshire, Yorkshire. We
can not tell how the English jurors would have expressed the distinction
between _bordarii_ and _cotarii_, for while the _cot_ is English, the
_borde_ is French. If we are entitled to draw any inference from the
distribution of the cottiers, it would be that the smallest of small
tenements were to be found chiefly along the southern shore; but then
there are no _cotarii_ in Hampshire, plenty in Sussex, Surrey, Wiltshire
and Dorset. Again, in the two shires last mentioned some distinction
seems to be taken between the _coscets_ and the _cotarii_, the former
being superior to the latter[113]. Two centuries later we find a similar
distinction among the tenants of Worcester Priory. There are _cotmanni_
whose rents and services are heavier, and whose tenements are
presumably larger than those of the _cotarii_, though the difference is
not very great[114].

[Size of the villain's tenement.]

The vagueness of distinctions such as these is well illustrated by the
failure of the term _bordarius_ (and none is more prominent in Domesday
Book) to take firm root in this country[115]. The successors of the
_bordarii_ seem to become in the later documents either _villani_ with
small or cottiers with large tenements. Distinctions which turn on the
amount of land that is possessed or the amount of service that is done
cannot be accurately formulated and forced upon a whole country. Perhaps
in general we may endow the _villanus_ of Domesday Book with a virgate
or quarter of a hide, while we ascribe to the _bordarius_ a less
quantity and doubt whether the _cotarius_ usually had arable land. But
the survey of Middlesex, which is the main authority touching this
matter, shows that the _villanus_ may on occasion have a whole
hide[116], that is four virgates, and that often he has but half a
virgate; it shows us that the _bordarius_, though often he has but four
or five acres, may have a half virgate, that is as much as many a
_villanus_[117]; it shows us that the _cotarius_ may have five acres,
that is as much as many a _bordarius_[118], though he will often have no
more than a croft[119]. In Essex we hear of _bordarii_ who held no
arable land[120]. Nor dare we lay down any stern rule about the
possession of plough beasts. It would seem as if sometimes the
_bordarius_ had oxen, while sometimes he had none[121]. The _villanus_
might have two oxen, but he might have more or less. We may find that
in Cornwall a single team of eight is forthcoming where there are[122]

               3 villani, 4 bordarii, 2 servi
               2    "     2    "      3   "
               0    "     5    "      2   "
               1    "     5    "      1   "
               2    "     5    "      4   "
               2    "     3    "      1   "
               3    "     6    "      3   "

In some Gloucestershire manors every villein seems to have a full plough
team[123]. Merely economic grades are essentially indefinite. Who could
have defined a 'cottage' in the eleventh century? Who can define one
now[124]?

[Villeins and cottiers.]

In truth the vast class of men that we are examining must have been
heterogeneous to a high degree. Not only were some members of it much
wealthier than others, but in all probability some were economically
subject to others. So it was in later days. In the thirteenth century we
may easily find a manor in which the lord is paying hardly any wages. He
gets nearly all his agricultural work done for him by his villeins and
his cottiers. Out of his cottiers however he will get but one day's work
in the week. If then we ask what the cottiers are doing during the rest
of their time, the answer surely must be that they are often working as
hired labourers on the villein's virgates, for a cottier can not have
spent five days in the week over the tillage of his poor little
tenement. It is a remarkable feature of the manorial arrangement that
the meanest of the lord's _nativi_ are but rarely working for him. Thus
if we were to remove the lord in order that the village community might
be revealed, we should still see not only rich and poor, but employers
and employed, villagers and 'undersettles.'

[Freedom and unfreedom of _villani_.]

Now all these people are in a sense unfree, while yet in some other
sense they are free. Let us then spend a short while in discussing the
various meanings that freedom may have in a legal classification of the
sorts and conditions of men. When we have put out of account the
rightless slave, who is a thing, it still remains possible to say that
some men are unfree, while others are free, and even that freedom is a
matter of degree. But we may use various standards for the measurement
of liberty.

[Meaning of freedom.]

Perhaps in the first place we shall think of what German writers call
_Freizügigkeit_, the power to leave the master whom one has been
serving. This power our ancestors would perhaps have called
'fare-worthiness[125].' If the master has the right to recapture the
servant who leaves his service, or even if he has the right to call upon
the officers of the state to pursue him and bring him back to his work,
then we may account this servant an unfree man, albeit the relation
between him and his master has been created by free contract. Such
unfreedom is very distinct from rightlessness. As a freak of
jurisprudence we might imagine a modern nobleman entitled to reduce by
force and arms his fugitive butler to well-paid and easy duties, while
all the same that butler had rights against all the world including his
master, had access to all courts, and could even sue for his wages if
they were not punctually paid. If we call him unfree, then freedom will
look like a matter of degree, for the master's power to get back his
fugitive may be defined by law in divers manners. May he go in pursuit
and use force? Must he send a constable or sheriff's officer? Must he
first go to court and obtain a judgment, 'a decree for specific
performance' of the contract of service? The right of recapture seems to
shade off gradually into a right to insist that a breach of the contract
of service is a criminal offence to be punished by fine or imprisonment.

Then, again, there may seem to us to be more of unfreedom in the case of
one who was born a servant than in the case of one who has contracted to
serve, though we should note that one may be born to serve without being
born rightless.

More to the point than these obvious reflections will be the remark that
in the thirteenth century we learn to think of various spheres or planes
of justice. A right good in one sphere may have no existence in
another. The rights of the villeins in their tenements are sanctioned by
manorial justice; they are ignored by the king's courts. Here, again,
the ideas of freedom and unfreedom find a part to play. True that in the
order of legal logic freedom may precede royal protection; a tenure is
protected because it is free; still men are soon arguing that it is free
because it is protected, and this probably discloses an idea which lies
deep[126]:--the king's courts, the national courts, are open to the
free; we approach the rightlessness of the slave if our rights are
recognized only in a court of which our lord is the president.

The thirteenth century will also supply us with the notion that
continuous agricultural service, service in which there is a
considerable element of uncertainty, is unfree service. Where from day
to day the lord's will counts for much in determining the work that his
tenants must do, such tenants, even if they be free men, are not holding
freely. But uncertainty is a matter of degree, and therefore unfreedom
may easily be regarded as a matter of degree[127].

Then, again, in the law books of the Norman age we see distinct traces
of a usage which would make _liber_ or _liberalis_ an equivalent for our
_noble_, or at least for our _gentle_. The common man with the wergild
of 200 shillings, though indubitably he is no _servus_, is not
_liberalis homo_[128].

Lastly, in our thirteenth century we learn that privileges and
exceptional immunities are 'liberties' and 'franchises.' What is our
definition of a liberty, a franchise? A portion of royal power in the
hands of a subject. In Henry III.'s day we do not say that the Earl of
Chester is a freer man, more of a _liber homo_, than is the Earl of
Gloucester, but we do say that he has more, greater, higher liberties.

Therefore we shall not be surprised if in Domesday Book what we read of
freedom, of free men, of free land is sadly obscure. Let us then observe
that the _villanus_ both is and is not a free man.

[The villein as free.]

According to the usual terminology of the Leges, everyone who is above
the rank of a _servus_, but below the rank of a thegn, is a _villanus_.
The _villanus_ is the non-noble _liber homo_. All those numerous
sokemen of the eastern counties whom Domesday ranks above the _villani_,
all those numerous _liberi homines_ whom it ranks above the sokemen,
are, according to this scheme, _villani_ if they be not thegns. And this
scheme is still of great importance, for it is the scheme of _bót_ and
_wer_. By what have been the most vital of all the rules of law, all
these men have been massed together; each of them has a _wer_ of two
hundred shillings[129]. This, we may remark in passing, is no trivial
sum, though the shillings are the small Saxon shillings of four pence or
five pence. There seems to be a good deal of evidence that for a long
time past the ox had been valued at 30 pence, the sheep at 5 pence[130].
At this rate the ceorl's death must be paid for by the price of some
twenty-four or thirty oxen. The sons of a _villanus_ who had but two
oxen must have been under some temptation to wish that their father
would get himself killed by a solvent thegn. Very rarely indeed do the
Leges notice the sokeman or mention _liberi homines_ so as to exclude
the _villani_ from the scope of that term[131]. Domesday Book also on
occasion can divide mankind into slaves and free men. It does so when it
tells us that on a Gloucestershire manor there were twelve _servi_ whom
the lord had made free[132]. It does so again when it tells us that in
the city of Chester the bishop had eight shillings if a free man, four
shillings if a serf, did work upon a festival[133]. So in a description
of the manor of South Perrott in Somerset we read that a certain custom
is due to it from the manor of 'Cruche' (Crewkerne), namely, that every
free man must render one bloom of iron. We look for these free men at
'Cruche' and see no one on the manor but _villani_, _bordarii_,
_coliberti_ and _servi_[134]. Of the Count of Mortain's manor of
Bickenhall it is written that every free man renders a bloom of iron at
the king's manor of Curry; but at Bickenhall there is no one above the
condition of a _villanus_[135]. Other passages will suggest that the
_villanus_ sometimes is and sometimes is not _liber homo_. On a Norfolk
manor we find free villeins, _liberi villani_[136].

[The villein as unfree.]

For all this, however, there must be some very important sense in which
the _villanus_ is not free. In the survey of the eastern counties he is
separated from the _liberi homines_ by the whole class of _sochemanni_.
'In this manor,' we are told, 'there was at that time a free man with
half a hide who has now been made one of the villeins[137].' At times
the word _francus_ is introduced so as to suggest for a moment that,
though the villein may be _liber homo_, he is not _francus_[138]. But
this suggestion, even if it be made, is not maintained, and there are
hundreds of passages which implicitly deny that the villein is _liber
homo_. But then these passages draw the line between freedom and
unfreedom at a point high in the legal scale, a point far above the
heads of the _villani_. At least for the main purposes of Domesday Book
the free man is a man who holds land freely. Let us observe what is said
of the men who have been holding manors. The formula will vary somewhat
from county to county, but we shall often find four phrases used as
equivalent, '_X_ tenuit et liber homo fuit,' '_X_ tenuit ut liber homo,'
'_X_ tenuit et cum terra sua liber fuit,' '_X_ tenuit libere[139].' But
this freeholding implies a high degree of freedom, freedom of a kind
that would have shocked the lawyers of a later age.

[Anglo-Saxon 'freeholding.']

With some regrets we must leave the peasants for a while in order that
we may glance at the higher strata of society. We may take it as certain
that, at least in the eyes of William's ministers, the ordinary holder
of a manor in the time of the Confessor had been holding it under
(_sub_) some lord, if not of (_de_) some lord. But then the closeness of
the connexion between him and his lord, the character of the relation
between lord, man and land, had varied much from case to case. Now these
matters are often expressed in terms of a calculus of personal freedom.
But let us begin with some phrases which seem intelligible enough. The
man can, or he can not, 'sell or give his land'; he can, or he can not,
'sell or give it without the licence of his lord'; he can sell it if he
has first offered it to his lord[140]; he can sell it on paying his lord
two shillings[141]. This seems very simple:--the lord can, or (as the
case may be) can not, prevent his tenant from alienating the land; he
has a right of preemption or he has a right to exact a fine when there
is a change of tenants. But then come phrases that are less in harmony
with our idea of feudal tenure. The man can not sell his land 'away
from' his lord[142], he can not give or sell it 'outside' a certain
manor belonging to his lord[143], or, being the tenant of some church,
he can not 'separate' his land from the church[144], or give or sell it
outside the church[145].

[Freeholding and the lord's rights.]

We have perhaps taken for granted under the influence of later law that
an alienation will not impair the lord's rights, and will but give him a
new instead of an old tenant. But it is not of any mere substitution
such as this that these men of the eleventh century are thinking. They
have it in their minds that the man may wish, may be able, utterly to
withdraw his land from the sphere of his lord's rights. Therefore in
many cases they note with some care that the man, though he can give or
sell his land, can not altogether put an end to such relation as has
existed between this land and his lord. He can sell, but some of the
lord's rights will 'remain,' in particular the lord's 'soke' over the
land (for the present let us say his jurisdiction over the land) will
remain[146]. The purchaser will not of necessity become the 'man' of
this lord, will not of necessity owe him any _servitium_ or
_consuetudo_, but will come under his jurisdiction[147]. Interchanging
however with these phrases[148], we have others which seem to point to
the same set of distinctions, but to express them in terms of personal
freedom. The man can, or else he can not, withdraw from his lord, go
away from his lord, withdraw from his lord's manor; he can or he can not
withdraw with his land; he can or can not go to another lord, or go
wherever he pleases[149]. Some of these phrases will, if taken
literally, seem to say that the persons of whom they are used are tied
to the soil; they can not leave the land, or the manor, or the soke.
Probably in some of these cases the bond between man and lord is a
perpetual bond of homage and fealty, and if the man breaks that bond by
refusing the due obedience or putting himself under another lord, he is
guilty of a wrong[150]. But of pursuing him and capturing him and
reducing him to servitude there can be no talk. Many of these persons
who 'can not recede' are men of wealth and rank, of high rank that is
recognized by law, they are king's thegns or the thegns of the churches,
they are 'twelve-hundred men[151].' However, it is not the man's power
to leave his lord so much as the power to leave his lord and take his
land with him, that these phrases bring to our notice; or rather the
assumption is made that no one will want to leave his lord if he must
also leave his land behind him. And then this power of taking land from
this lord and bringing it under another lord is conceived as an index of
personal freedom. Thus we read: 'These men were so free that they could
go where they pleased[152],' and again, 'Four sokemen held this land,
of whom three were free, while the fourth held one hide but could not
give or sell it[153].' Not that no one is called a _liber homo_ unless
he has this power of 'receding' from his lord; far from it; all is a
matter of degree; but the free man is freer if he can 'go to what lord
he pleases,' and often enough the phrases 'X tenuit et liber homo fuit,'
'X tenuit libere,' 'X tenuit ut liber homo' seem to have no other
meaning than this, that the occupant of the land enjoyed the liberty of
taking it with him whithersoever he would. Therefore there is no
tautology in saying that the holder of the land was a thegn and a free
man, though of course there is a sense, there are many senses, in which
every thegn is free[154]. All this talk of the freedom that consists in
choosing a lord and subjecting land to him may well puzzle us, for it
puzzled the men of the twelfth century. The chronicler of Abingdon abbey
had to explain that in the old days a free man could do strange
things[155].

[The scale of freeholding.]

Comparisons may be instituted between the freedom of one free man and
that of another:--'Five thegns held this land of Earl Edwin and could go
with their land whither they would, and below them they had four
soldiers, who were as free as themselves[156].' A high degree of liberty
is marked when we are told that, 'The said men were so free that they
could sell their land with soke and sake wherever they would[157].' But
there are yet higher degrees of liberty. Of Worcestershire it is
written, 'When the king goes upon a military expedition, if anyone who
is summoned stays at home, then if he is so free a man that he has his
sake and soke and can go whither he pleases with his land, he with all
his land shall be in the king's mercy[158].' The free man is the freer
if he has soke and sake, if he has jurisdiction over other men.
Exceptional privileges, immunities from common burdens, are already
regarded as 'liberties.' This is no new thing; often enough when the
Anglo-Saxon land books speak of freedom they mean privilege.

[Free land.]

The idea of freedom is equally vague and elastic if, instead of applying
it to men, we apply it to land or the tenure of land. Two _bordarii_ are
now holding a small plot; 'they themselves held it freely in King
Edward's day[159].' Here no doubt there has been a fall; but how deep a
fall we can not be sure. To say that a man's land is free may imply far
more freedom than freehold tenure implies in later times; it may imply
that the bond between him and his lord, if indeed he has a lord, is of a
purely personal character and hardly gives the lord any hold over the
land[160]. But this is not all. Perfect freedom is not attained so long
as the land owes any single duty to the state. Often enough--but exactly
how often it were no easy task to tell--the _libera terra_ of our record
is land that has been exempted even from the danegeld; it is highly
privileged land[161]. Let us remember that at the present day, though
the definition of free land or freehold land has long ago been fixed, we
still speak as though free land might become freer if it were 'free of
land-tax and tithe rent-charge.'

[The unfreedom of the villein.]

If now we return to the _villanus_ and deny that he is _liber homo_ and
deny also that he is holding freely, we shall be saying little and using
the laxest of terms. There are half-a-dozen questions that we would fain
ask about him, and there will be no harm in asking them, though Domesday
Book is taciturn.

[Can the villein be pursued?]

Is he free to quit his lord and his land, or can he be pursued and
captured? No one word can be obtained in answer to this question. We can
only say that in Henry II.'s day the ordinary peasant was regarded by
the royal officials as _ascriptitius_; the land that he occupied was
said to be part of his lord's demesne; his chattels were his
lord's[162]. But then this was conceived to be, at least in some degree,
the result of the Norman Conquest and subsequent rebellions of the
peasantry[163]. To this we may add that in one of our sets of Leges, the
French Leis of William the Conqueror, there are certain clauses which
would be of great importance could we suppose that they had an
authoritative origin, and which in any case are remarkable enough. The
_nativus_ who flies from the land on which he is born, let none retain
him or his chattels; if the lords will not send back these men to their
land the king's officers are to do it[164]. On the other hand, the
tillers of the soil are not to be worked beyond their proper rent; their
lord may not remove them from their land so long as they perform their
right services[165]. Whether or no we suppose that in the writer's
opinion the ordinary peasant was a _nativus_ (of _nativi_ Domesday Book
has nothing to say) we still have law more favourable to the peasant
than was the common law of Bracton's age:--a tiller who does his
accustomed service is not to be ejected; he is no tenant at will.

[Rarity of flight.]

Hereafter we shall show that the English peasants did suffer by the
substitution of French for English lords. But the question that we have
asked, so urgent, so fundamental, as it may seem to us, is really one
which, as the history of the Roman _coloni_ might prove, can long remain
unanswered. Men may become economically so dependent on their lords, on
wealthy masters and creditors, that the legal question whether they can
quit their service has no interest. Who wishes to leave his all and go
forth a beggar into the world? On the whole we can find no evidence
whatever that the men of the Confessor's day who were retrospectively
called _villani_ were tied to the soil. Certainly in Norman times the
tradition was held that according to the old law the _villanus_ might
acquire five hides of land and so 'thrive to thegn-right[166].'

[The villein and seignorial justice.]

Our next question should be whether he was subject to seignorial
justice. This is part of a much wider question that we must face
hereafter, for seignorial justice should be treated as a whole. We must
here anticipate a conclusion, the proof of which will come by and by,
namely, that the _villanus_ sometimes was and sometimes was not the
justiciable of a court in which his lord or his lord's steward presided.
All depended on the answer to the question whether his lord had 'sake
and soke.' His lord might have justiciary rights over all his tenants,
or merely over his _villani_, or he might have no justiciary rights, for
as yet 'sake and soke' were in the king's gift, and the mere fact that a
lord had 'men' or tenants did not give him a jurisdiction over them.

[The villein and national justice.]

With this question is connected another, namely, whether the _villani_
had a _locus standi_ in the national courts. We have seen six _villani_
together with the priest (undoubtedly a free man) and the reeve of each
vill summoned to swear in the great inquest[167]. One of the most famous
scenes recorded by our book is that in which William of Chernet claimed
a Hampshire manor on behalf of Hugh de Port and produced his witnesses
from among the best and eldest men of the county; but Picot, the sheriff
of Cambridgeshire, who was in possession, replied with the testimony of
villeins and mean folk and reeves, who were willing to support his case
by oath or by ordeal[168]. Again, in Norfolk, Roger the sheriff claimed
a hundred acres and five _villani_ and a mill as belonging to the royal
manor of Branfort, and five _villani_ of the said manor testified in his
favour and offered to make whatever proof anyone might adjudge to them,
but the half-hundred of Ipswich testified that the land belonged to a
certain church of St. Peter that Wihtgar held, and he offered to
deraign this[169]. Certainly this does not look as if _villani_ were
excluded from the national moots. But a rule which valued the oath of a
single thegn as highly as the oath of six ceorls would make the ceorl
but a poor witness and tend to keep him out of court[170]. The men who
are active in the communal courts, who make the judgments there, are
usually men of thegnly rank; but to go to court as a doomsman is one
thing, to go as a litigant is another[171].

[The villein and his land.]

We may now approach the question whether, and if so in what sense, the
land that the _villanus_ occupies is his land. Throughout Domesday Book
a distinction is sedulously maintained between the land of the villeins
(_terra villanorum_) and the land that the lord has _in dominio_. Let us
notice this phrase. Only the demesne land does the lord hold _in
dominio_, in ownership. The delicate shade of difference that Bracton
would see between _dominicum_ and _dominium_ is not as yet marked. In
later times it became strictly correct to say that the lord held in
demesne (_in dominico suo_) not only the lands which he occupied by
himself or his servants, but also the lands held of him by villein
tenure[172]. This usage appears very plainly in the Dialogue on the
Exchequer. 'You shall know,' says the writer, 'that we give the name
demesnes (_dominica_) to those lands that a man cultivates at his own
cost or by his own labour, and also to those which are possessed in his
name by his _ascriptitii_; for by the law of this kingdom not only can
these _ascriptitii_ be removed by their lords from the lands that they
now possess and transferred to other places, but they may be sold and
dispersed at will; so that rightly are both they and the lands which
they cultivate for the behalf of their lords accounted to be
_dominia_[173].' Far other is the normal, if not invariable, usage of
Domesday Book. The _terrae villanorum_, the _silvae villanorum_, the
_piscariae villanorum_, the _molini villanorum_--for the villeins have
woods and fisheries and mills--these the lord does not hold _in
dominio_[174]. Then again the oxen of the villeins are carefully
distinguished from the oxen of the demesne, while often enough they are
not distinguished from the oxen of those who in every sense are free
tenants[175]. Now as regards both the land and the oxen we seem put to
the dilemma that either they belong to the lord or else they belong to
the villeins. We cannot avoid this dilemma, as we can in later days, by
saying that according to the common law the ownership of these things is
with the lord, while according to the custom of the manor it is with the
villeins, for we believe that a hall-moot, a manorial court, is still a
somewhat exceptional institution.

On the whole we can hardly doubt that both in their land and in their
oxen the villeins have had rights protected by law. Let us glance once
more at the scheme of _bót_ and _wer_ that has been in force. A villein
is slain; the _manbót_ payable to his lord is marked off from the much
heavier _wergild_ that is payable to his kindred. If all that a villein
could have belonged to his lord such a distinction would be idle.

[The villein's land and the geld.]

Still we take it that for one most important purpose the villein's land
is the lord's land:--the lord must answer for the geld that is due from
it. Not that the burden falls ultimately on the lord. On the contrary,
it is not unlikely that he makes his villeins pay the geld that is due
from his demesne land; it is one of their services that they must
'defend their lord's inland' against the geld. But over against the
state the lord represents as well the land of his villeins as his own
demesne land. From the great levy of 1084 the demesne lands of the
barons had been exempted[176], but no doubt they had been responsible
for the tax assessed on the lands held by their _villani_. We much doubt
whether the collectors of the geld went round to the cottages of the
villeins and demanded here six pence and there four pence; they
presented themselves at the lord's hall and asked for a large sum. Nay,
we believe that very often a perfectly free tenant paid his geld to his
lord, or through his lord[177]. Hence arrangements by which some hides
were made to acquit other hides; such, for example, was the arrangement
at Tewkesbury; there were fifty hides which had to acquit the whole
ninety-five hides from all geld and royal service[178]. And then it
might be that the lord, enjoying a special privilege, was entitled to
take the geld from his tenants and yet paid no geld to the king; thus
did the canons of St. Petroc in Cornwall[179] and the monks of St.
Edmund in Suffolk[180]. But as regards lands occupied by villeins, the
king, so it seems to us, looks for his geld to the lord and he does not
look behind the lord. This is no detail of a fiscal system. A potent
force has thus been set in motion. He who pays for land,--it is but fair
that he should be considered the owner of that land. We have a hint of
this principle in a law of Cnut:--'He who has "defended" land with the
witness of the shire, is to enjoy it without question during his life
and on his death may give or sell it to whom he pleases[181].' We have
another hint of this principle in a story told by Heming, the monk of
Worcester:--in Cnut's time but four days of grace were given to the
landowner for the payment of the geld; when these had elapsed, anyone
who paid the geld might have the land[182]. It is a principle which, if
it is applied to the case of lord and villein, will attribute the
ownership of the land to the lord and not to the villein.

[The villein's services.]

And then we would ask: What services do the villeins render? A deep
silence answers us, and as will hereafter be shown, there are many
reasons why we should not import the information given us by the
monastic cartularies, even such early cartularies as the Black Book of
Peterborough, into the days of the Confessor. No doubt the villeins
usually do some labour upon the lord's demesne lands. In particular they
help to plough it. A manor, we can see, is generally so arranged that
the ratio borne by the demesne oxen to the demesne land will be smaller
than that borne by the villeins' oxen to the villeins' land. Thus, to
give one example out of a hundred, in a Somersetshire manor the lord has
four hides and three teams, the villeins have two hides and three
teams[183]. But then the lord gets some help in his agriculture from
those who are undoubtedly free tenants. The teams of the free tenants
are often covered by the same phrase that covers the teams of the
villeins[184]. Radknights who are _liberi homines_ plough and harrow at
the lord's court[185]. The very few entries which tell us of the labour
of the villeins are quite insufficient to condemn the whole class to
unlimited, or even to very heavy work. On a manor in Herefordshire there
are twelve bordiers who work one day in the week[186]. On the enormous
manor of Leominster there are 238 _villani_ and 85 _bordarii_. The
_villani_ plough and sow with their own seed 140 acres of their lord's
land and they pay 11 pounds and 52 pence[187]. On the manor of Marcle,
which also is in Herefordshire, there are 36 _villani_ and 10 _bordarii_
with 40 teams. These _villani_ plough and sow with their own seed 80
acres of wheat and 71 of oats[188]. At Kingston, yet another manor in
the same county, 'the _villani_ who dwelt there in King Edward's day
carried venison to Hereford and did no other service, so says the
shire[189].' On one Worcestershire manor of Westminster Abbey 10
villeins and 10 bordiers with 6 teams plough 6 acres and sow them with
their own seed; on another 8 villeins and 6 bordiers with 6 teams do the
like by 4 acres[190]. This is light work. Casually we are told of
burgesses living at Tamworth who have to work like the other villeins of
the manor of Drayton to which they are attached[191], and we are told of
men on a royal manor who do such works for the king as the reeve may
command[192]; but, curiously enough, it is not of any villeins but of
the Bishop of Worcester's riding men (_radmanni_) that it is written
'they do whatever is commanded them[193].'

[Money rents paid by villeins.]

With our thirteenth century cartularies before us, we might easily
underrate the amount of money that was already being paid as the rent of
land at the date of the Conquest. In several counties we come across
small groups of _censarii_, _censores_, _gablatores_ who pay for their
land in money, of _cervisarii_ and _mellitarii_ who bring beer and
honey. Renders in kind, in herrings, eels, salmon are not uncommon, and
sometimes they are 'appreciated,' valued in terms of money. The pannage
pig or the grass swine, which the villeins give in return for mast and
herbage, is often mentioned. Throughout Sussex it seems to be the custom
that the lord should have 'for herbage' one pig from every villein who
has seven pigs[194]. But money will be taken instead of swine, oxen or
fish[195]. The _gersuma_, the _tailla_, the theoretically free gifts of
the tenants, are sums of money. But often enough the _villanus_ is
paying a substantial money rent. We have seen how at Leominster villeins
plough and sow 140 acres for their lord and pay a rent of more than
£11[196]. At Lewisham in Kent the Abbot of Gand has a manor valued at
£30; of this £2 is due to the profits of the port while two mills with
'the gafol of the rustics' bring in £8. 12_s._[197] Such entries as the
following are not uncommon--there is one villein rendering
30_d._[198]--there is one villein rendering 10_s._[199]--46 _cotarii_
with one hide render 30 shillings a year[200]--the villeins give 13_s._
4_d._ by way of _consuetudo_[201]. No doubt it would be somewhat rare to
find a villein discharging all his dues in money--this is suggested when
we are told how on the land of St. Augustin one Wadard holds a large
piece 'de terra villanorum' and yet renders no service to the abbot save
30_s._ a year[202]. At least in one instance the villeins seem to be
holding the manor in farm, that is to say, they are farming the demesne
land and paying a rent in money or in provender[203]. We dare not
represent the stream of economic history as flowing uninterruptedly from
a system of labour services to a system of rents. We must remember that
in the Conqueror's reign the lord very often had numerous serfs whose
whole time was given to the cultivation of his demesne. In the
south-western counties he will often have two, three or more serfs for
every team that he has on his demesne, and, while this is so, we can not
safely say that his husbandry requires that the villeins should be
labouring on his land for three or four days in every week.

[The English for _villanus_.]

As a last question we may ask: What was the English for _villanus_? It
is a foreign word, one of those words which came in with the Conqueror.
Surely, we may argue, there must have been some English equivalent for
it. Yet we have the greatest difficulty in finding the proper term. True
that in the Quadripartitus and the Leges _villanus_ generally represents
_ceorl_; _ceorl_ when it is not rendered by _villanus_ is left
untranslated in some such form as _cyrliscus homo_. But then _ceorl_
must be a wider word than the _villanus_ of Domesday Book, for it has
to cover all the non-noble free men; it must comprehend the numerous
_sochemanni_ and _liberi homines_ of northern and eastern England. This
in itself is not a little remarkable; it makes us suspect that some of
the lines drawn by Domesday Book are by no means very old; they can not
be drawn by any of those terms that have been current in the Anglo-Saxon
dooms or which still are current in the text-books that lawyers are
compiling. To suppose that _villanus_ is equivalent to _gebúr_ is
impossible; we have the best warrant for saying that the Latin for
_gebúr_ is not _villanus_ but _colibertus_[204]. Nor can we hold that
the _villanus_ is a _geneat_. In the last days of the old English
kingdom the _geneat_, the 'companion,' the 'fellow,' appears as a
horseman who rides on his lord's errands; we must seek him among the
_radmanni_ and _rachenistres_ and _drengi_ of Domesday Book[205]. We
shall venture the guess that when the Norman clerks wrote down
_villanus_, the English jurors had said _túnesman_. As a matter of
etymology the two words answer to each other well enough; the _villa_ is
the _tún_, and the men of the _villa_ are the men of the _tún_. In the
enlarged Latin version of the laws of Cnut, known as Instituta Cnuti,
there is an important remark:--tithes are to be paid both from the lands
of the thegn and from the lands of the villeins--'tam de dominio
liberalis hominis, id est þegenes, quam de terra villanorum, id est
tuumannes (_corr._ tunmannes)[206].' Then in a collection of dooms known
as the Northumbrian Priests' Law there is a clause which orders the
payment of Peter's pence. If a king's thegn or landlord (_landrica_)
withholds his penny, he must pay ten half-marks, half to Christ, half to
the king; but if a _túnesman_ withholds it, then let the landlord pay it
and take an ox from the man[207]. A very valuable passage this is. It
shows us how the lord is becoming responsible for the man's taxes: if
the tenant will not pay them, the lord must. It is then in connexion
with this responsibility of the lord that the term _townsman_ meets us,
and, if we mistake not, it is the lord's responsibility for geld that is
the chief agent in the definition of the class of _villani_. The
pressure of taxation, civil and ecclesiastical, has been forming new
social strata, and a new word, in itself a vague word, is making its way
into the vocabulary of the law[208].

[Summary.]

The class of villeins may well be heterogeneous. It may well contain (so
we think) men who, or whose ancestors, have owned the land under a
political supremacy, not easily to be distinguished from landlordship,
that belongs to the king; and, on the other hand, it may well contain
those who have never in themselves or their predecessors been other than
the tenants of another man's soil. In some counties on the Welsh march
there are groups of _hospites_ who in fact or theory are colonists whom
the lord has invited onto his land[209]; but this word, very common in
France, is not common in England. Our record is not concerned to
describe the nature or the origin of the villein's tenure; it is in
quest of geld and of the persons who ought to be charged with geld, and
so it matters not whether the lord has let land to the villein or has
acquired rights over land of which the villein was once the owner.
Therefore we lay down no broad principle about the rights of the
villein, but we have suggested that taken in the mass the _villani_ of
the Confessor's reign were far more 'law-worthy' than were the _villani_
of the thirteenth century. We can not treat either the legal or the
economic history of our peasantry as a continuous whole; it is divided
into two parts by the red thread of the Norman Conquest. That is a
catastrophe. William might do his best to make it as little of a
catastrophe as was possible, to insist that each French lord should have
precisely the same rights that had been enjoyed by his English
_antecessor_; it may even be that he endeavoured to assure to those who
were becoming _villani_ the rights that they had enjoyed under King
Edward[210]. Such a task, if attempted, was impossible. We hear indeed
that the English 'redeemed their lands,' but probably this refers only
to those English lords, those thegns or the like, who were fortunate
enough to find that a ransom would be accepted[211]. We have no warrant
for thinking that the peasants, the common 'townsmen,' obtained from
the king any covenanted mercies. They were handed over to new lords, who
were very free in fact, if not in theory, to get out of them all that
could be got without gross cruelty.

[Depression of the villeins.]

We are not left to speculate about this matter. In after days those who
were likely to hold a true tradition, the great financier of the
twelfth, the great lawyer of the thirteenth century, believed that there
had been a catastrophe. As a result of the Conquest, the peasants, at
all events some of the peasants, had fallen from their free estate; free
men, holding freely, they had been compelled to do unfree services[212].
But if we need not rely upon speculation, neither need we rely upon
tradition. Domesday Book is full of evidence that the tillers of the
soil are being depressed.

[The Normans and the peasants.]

Here we may read of a free man with half a hide who has now been made
one of the villeins[213], there of the holder of a small manor who now
cultivates it as the farmer of a French lord _graviter et
miserabiliter_[214], and there of a sokeman who has lost his land for
not paying geld, though none was due[215]; while the great Richard of
Tonbridge has condescended to abstract a virgate from a villein or a
villein from a virgate[216]. But, again, it is not on a few cases in
which our record states that some man has suffered an injustice that we
would rely. Rather we notice what it treats as a quite common event.
Free men are being 'added to' manors to which they did not belong. Thus
in Suffolk a number of free men have been added to the manor of
Montfort; they pay no 'custom' to it before the Conquest, but now they
pay £15; Ælfric who was reeve under Roger Bigot set them this
custom[217]. Hard by them were men who used to pay 20 shillings, but
this same Ælfric raised their rent to 100 shillings[218]. 'A free man
held this land and could sell it, but Waleran father of John has added
him to this manor[219]':--Entries of this kind are common. The utmost
rents are being exacted from the farmers:--this manor was let for three
years at a rent of £12 and a yearly gift of an ounce of gold, but all
the farmers who took it were ruined[220]--that manor was let for £3.
15_s_. but the men were thereby ruined and now it is valued at only
45_s._[221] About these matters French and English can not agree:--this
manor renders £70 by weight, but the English value it at only £60 by
tale[222]--the English fix the value at £80, but the French at
£100[223]--Frenchmen and Englishmen agree that it is worth £50, but
Richard let it to an Englishman for £60, who thereby lost £10 a year, at
the very least[224]. 'It can not pay,' 'it can hardly pay,' 'it could
not stand' the rent, such are the phrases that we hear. If the lord gets
the most out of the farmer to whom he has leased the manor, we may be
sure that the farmer is making the most out of the villeins.

[Depression of the sokemen.]

But the most convincing proof of the depression of the peasantry comes
to us from Cambridgeshire. The rural population of that county as it
existed in 1086 has been classified thus[225]:--

                    sochemanni   213
                    villani     1902
                    bordarii    1428
                    cotarii      736
                    servi        548

But we also learn that the Cambridgeshire of the Confessor's day had
contained at the very least 900 instead of 200 sokemen[226]. This is an
enormous and a significant change. Let us look at a single village. In
Meldreth there is a manor; it is now a manor of the most ordinary kind;
it is rated at 3 hides and 1 virgate, but contains 5 team-lands; in
demesne are half a hide and one team, and 15 _bordarii_ and 3 _cotarii_
have 4 teams, and there is one _servus_. But before the Conquest this
land was held by 15 sokemen; 10 of them were under the soke of the Abbey
of Ely and held 2 hides and half a virgate; the other 5 held 1 hide and
half a virgate and were the men of Earl Ælfgar[227]. What has become of
these fifteen sokemen? They are now represented by fifteen bordiers and
five cottiers; and the demesne land of the manor is a new thing. The
sokemen have fallen, and their fall has brought with it the
consolidation of manorial husbandry and seignorial power. At Orwell Earl
Roger has now a small estate; a third of it is in demesne, while the
residue is held by 2 villeins and 3 bordiers, and there is a serf there.
This land had belonged to six sokemen, and those six had been under no
less than five different lords; two belonged to Edith the Fair, one to
Archbishop Stigand, one to Robert Wimarc's son, one to the king, and one
to Earl Ælfgar[228]. Displacements such as this we may see in village
after village. No one can read the survey of Cambridgeshire without
seeing that the freer sorts of the peasantry have been thrust out, or
rather thrust down.

[Further illustrations of depression.]

Evidence so cogent as this we shall hardly find in any part of the
record save that which relates to Cambridgeshire and Bedfordshire. But
great movements of the kind that we are examining will hardly confine
themselves within the boundaries of a county. A little variation in the
formula which tells us who held the land in 1066 may hide from us the
true state of the case. We can not expect that men will be very accurate
in stating the legal relationships that existed twenty years ago. Since
the day when King Edward was alive and dead many things have happened,
many new words and new forms of thought have become familiar. But taking
the verdicts as we find them, there is still no lack of evidence. In
Essex we may see the _liberi homines_ disappearing[229]. But we need not
look only to the eastern counties. At Bromley, in Surrey, Bishop Odo has
a manor of 32 hides, 4 of which had belonged to 'free men' who could go
where they pleased, but now there are only villeins, cottiers, and
serfs[230]. We turn the page and find Odo holding 10 hides which had
belonged to 'the alodiaries of the vill[231].' In Kent Hugh de Port is
holding land that was held by 6 free men who could go whither they
would; there are now 6 villeins and 14 bordiers there, with one team
between them[232]. Students of Domesday were too apt to treat the
_antecessores_ of the Norman lords as being in all cases lords of
manors. Lords of manors, or rather holders of manors, they often were,
but as we shall see more fully hereafter, when we are examining the term
_manerium_, such phrases are likely to deceive us. Often enough they
were very small people with very little land. For example these six free
men whom Hugh de Port represents had only two and a half team-lands. We
pass by a few pages and find Hugh de Montfort with a holding which
comprises but one team-land and a half; he has 4 villeins and 2 bordiers
there. His _antecessores_ were three free men, who could go whither they
would[233]. They had need for but 12 oxen; they had no more land than
they could easily till, at all events with the help of two or three
cottagers or slaves. To all appearance they were no better than
peasants. They or their sons may still be tilling the land as Hugh's
villeins. When we look for such instances we very easily find them. The
case is not altered by the fact that the term 'manor' is given to the
holdings of these _antecessores_. In Sussex an under-tenant of Earl
Roger has an estate with four villeins upon it. His _antecessores_ were
two free men who held the land as two manors. And how much land was
there to be divided between the two? There was one team-land. Such
holders of _maneria_ were tillers of the soil, peasants, at best
yeomen[234]. If they were of thegnly rank, this again does not alter the
case. When in the survey of Dorset we read how four thegns held two
team-lands, how six thegns held two team-lands, eight thegns two
team-lands, nine thegns four team-lands, eleven thegns four
team-lands[235], we can not of course be certain that each of these
groups of co-tenants had but one holding; but thegnly rank is inherited,
and if a thegn will have nine or ten sons there will soon be tillers of
the soil with the wergild of twelve hundred shillings. Now if these
things are being done in the middling strata of society, if the sokemen
are being suppressed or depressed in Cambridgeshire, the alodiaries in
Sussex, what is likely to be the fate of the poor? They will have to
till their lord's demesne _graviter et miserabiliter_. He can afford to
dispense with serfs, for he has villeins.

[The peasants on the royal demesne.]

A last argument must be added. What we see in the thirteenth century of
the ancient demesne of the crown[236] might lead us to expect that in
Domesday Book 'the manors of St. Edward' would stand out in bold
relief. Instead of a population mainly consisting of villeins shall we
not find upon them large numbers of sokemen, the ancestors of the men
who in after days will be protected by the little writ of right and the
_Monstraverunt_? Nothing of the kind. The royal manor differs in no such
mode as this from any other manor. If it lies in a county in which other
manors have sokemen, then it may or may not have sokemen. If it lies in
a county in which other manors have no sokemen, it will have none.
Cambridgeshire is a county in which there are some, and have been many,
sokemen; there is hardly a sokeman upon the ancient demesne. In after
days the men of Chesterton, for example, will have all the peculiar
rights attributed by lawyers to the sokemen of St. Edward. But St.
Edward, if we trust Domesday Book, had never a sokeman there; he had two
villeins and a number of bordiers and cottiers[237]. It seems fairly
clear that from an early time, if not from the first days of the
Conquest onwards, the king was the best of landlords. The tenants of
those manors that were conceived as annexed to the crown, those tenants
one and all, save the class of slaves which was disappearing, got a
better, a more regular justice than that which the villeins of other
lords could hope for. It was the king's justice, and therefore--for
the king's public and private capacities were hardly to be distinguished
--it was public justice, and so became formal justice, defined by writs,
administered in the last resort by the highest court, the ablest
lawyers. And so sokemen disappear from private manors. Some of them as
tenants in free socage may maintain their position; many fall down into
the class of tenants in villeinage. On the ancient demesne the sokemen
multiply; they appear where Domesday knew them not; for those who are
protected by royal justice can hardly (now that villeinage implies a
precarious tenure) be called villeins, they must be 'villein sokemen' at
the least. Whether or no we trust the tradition which ascribes to the
Conqueror a law in favour of the tillers of the soil, we can hardly
doubt that the _villani_ and _bordarii_ whom Domesday Book shows us on
the royal manors are treated as having legal rights in their holdings.
And if this be true of them, it should be true of their peers upon other
manors. Yes, it should be true; the manorial courts that are arising
should do impartial justice even between lord and villeins; but who is
to make it true?


FOOTNOTES:

  [101] D. B. i. 38, Coseham: '8 burs i. coliberti.' Ib. 38 b Dene:
        'et coliberti [vel bures _interlined_].'

  [102] D. B. i. 65, Wintreburne.

  [103] D. B. i. 75, Bridetone et Bere.

  [104] D. B. i. 239 b, Etone.

  [105] Guérard, Cartulaire de L'Abbaye de S. Père de Chartres, vol.
        i. p. xlii.

  [106] The position of the _coliberti_ is discussed by Guérard, _loc.
        cit._., and by Lamprecht, Geschichte des Französischen
        Wirthschaftslebens (in Schmoller's Forschungen, Bd i.), p. 81.
        Guérard says, 'Les coliberts peuvent se placer à peu près
        indifferemment ou au dernier des hommes libres, ou à la tête
        des hommes engagés dans les liens de la servitude.'

  [107] Schmid, App. III. C. 4.

  [108] Rectitudines, c. 3.

  [109] Occasionally the _coliberti_ of D. B. are put before us as
        paying rents in money or in kind. Thus D. B. i. 38, Hants: 'In
        Coseham sunt 4 hidae quae pertinent huic manerio ubi T. R. E.
        erant 8 burs i. coliberti cum 4 carucis reddentes 50 sol. 8
        den. minus.' D. B. i. 179 b, Heref.: 'Villani dant de
        consuetudine 13 sol. et 4 den. et [sex] coliberti reddunt 3
        sextarios frumenti et ordei et 2 oves et dimidiam cum agnis et
        2 den. et unum obolum.' D. B. i. 165: 'et in Glouucestre 1
        burgensis reddens 5 den. et 2 coliberti reddentes 34 den.' In
        a charter coming from Bishop Denewulf (K. 1079) we read of
        three wite-theówmen who were boor-born and three who were
        theów-born.

  [110] Ellis, Introduction, ii. 511-14.

  [111] For examples see D. B. iv. 211 and the following pages.

  [112] Leg. Hen. 81, § 3: 'Quidam villani qui sunt eiusmodi
        leierwitam et blodwitam et huiusmodi minora forisfacta emerunt
        a dominis suis, vel quomodo meruerunt de suis et in suos,
        quorum fletgefoth vel overseunessa est 30 den.; cothseti 15
        den.; servi 6 den.'

  [113] D. B. i. 71, Haseberie: '5 villani et 13 coscez et 2 cotarii.'
        Ibid. 80 b: Chinestanestone: '18 villani et 14 coscez et 4
        cotarii.'

  [114] Worcester Register, 59 b (Sedgebarrow): four _cotmanni_, each
        of whom pays 20_d._ or works one day a week and two in autumn;
        two _cottarii_, each of whom pays 12_d._ or works one day a
        week. Ibid. 69 b (Shipston): two _cotmanni_, each of whom pays
        3_s._ or works like a virgater; two _cottarii_, each of whom
        pays 13_d._ Ibid. 76 a (Cropthorn): two _cotmanni_, each of
        whom pays 2_s._ or works like a _cottarius_; two _cottarii_,
        each of whom pays 18_d._ or works one day a week.

  [115] Vinogradoff, Villainage, 149, gives a few instances of its
        occurrence; but it seems to be very rare.

  [116] D. B. i. 127 b, Fuleham: 'Ibi 5 villani quisque 1 hidam.'
        There are a good many other instances.

  [117] D. B. i. 130, Hamntone; 'et 4 bordarii quisque de dimidia
        virga.'

  [118] D. B. i. 127, Herges: 'et 2 cotarii de 13 acris.'

  [119] D. B. i. 127 b, Fuleham: 'et 22 cotarii de dimidia hida et 8
        cotarii de suis hortis.'

  [120] D. B. ii. 75 b: 'et 5 bordarii super aquam qui non tenent
        terram.'

  [121] D. B. i. 163 b, Turneberie: 'et 42 villani et 18 radchenistre
        cum 21 carucis et 23 bordarii et 15 servi et 4 coliberti.'
        Ibid. 164, Hechanestede: 'et 5 villani et 8 bordarii cum 6
        carucis; ibi 6 servi.'

  [122] D. B. iv. 215-223; on p. 223 there are two _villani_ with one
        ox.

  [123] D. B. i. 164, Tedeneham: 'Ibi erant 38 villani habentes 38
        carucas.' Ibid. 164 b, Nortune, '15 villani cum 15 carucis;
        Stanwelle, 5 villani cum 5 carucis.'

  [124] Malden, Domesday Survey of Surrey (Domesday Studies, ii.) 469,
        says that in Surrey '_bordarii_ and _cotarii_ only occur once
        together upon the same manor, and very seldom in the same
        hundred.... There are three hundreds, Godalming, Wallington
        and Elmbridge, where the _cotarii_ are nearly universal to the
        exclusion of _bordarii_. In the others the _bordarii_ are
        nearly or quite universal, to the exclusion of the _cotarii_.'

  [125] Thorpe, Diplomatarium, 623. King Eadwig declares that a
        certain church-ward of Exeter is 'free and fare-worthy.'

  [126] Hist. Eng. Law, i. 341 ff.

  [127] Hist. Eng. Law, i. 354-8.

  [128] Liebermann, Instituta Cnuti, Transact. Roy. Hist. Soc. vii.
        93.

  [129] Leg. Will. Conq. I. 8: 'La were del thein 20 lib. in
        Merchenelahe, 25 lib. in Westsexenelahe. La were del vilain
        100 sol. en Merchenelahe e ensement en Westsexene.' Leg. Henr.
        70, § 1: 'In Westsexa quae caput regni est et legum, twyhindi,
        i.e. villani, wera est 4 lib.; twelfhindi, i.e. thaini, 25
        lib.' Ibid. 76, § 2: 'Omnis autem wera liberorum est aut
        servorum ... liberi alii twyhindi, alii syxhindi, alii
        twelfhindi'; § 6, twihindus = cyrliscus = villanus. As to the
        100 shillings in the first of these passages, see Schmid, p.
        676. There is some other evidence that the equation, 1 Norman
        shilling = 2 English shillings, was occasionally treated as
        correct enough. As to the six-hynde man, see Schmid, p. 653;
        we may doubt whether he existed in the eleventh century, but
        according to the Instituta Cnuti the _radchenistres_ of the
        west may have been six-hynde. We must not draw from Alfred's
        treaty with the Danes (Schmid, p. 107) the inference that the
        normal ceorl was seated on _gafol-land_. This international
        instrument is settling an exceptionally high tariff for the
        maintenance of the peace. Every man, whatever his rank, is to
        enjoy the handsome wergild of 8 half-marks of pure gold,
        except the Danish lysing and the English ceorl who is seated
        on gafol-land; these are to have but the common wer of 200
        shillings. The parallel passage in Æthelred's treaty (Schmid,
        p. 207) sets £30 on every free man if he is killed by a man of
        the other race. See Schmid, p. 676.

  [130] Ine, 55: a sheep with a lamb until a fortnight after Easter is
        worth 1 shilling. Æthelstan, VI. 6: a horse 120 pence, an ox
        30 pence, a cow 20, a sheep 1 shilling (5 pence). Ibid. 8, §
        5: an ox 30 pence. Schmid, App. I. c. 7: a horse 30 shillings,
        a mare 20 shillings, an ox 30 pence, a cow 24 pence, a swine 8
        pence, a sheep 1 shilling, a goat 2 pence, a man (i.e. a
        slave) 1 pound. Schmid, App. iii. c. 9: a sheep or 3 pence. D.
        B. i. 117 b: an ox or 30 pence. D. B. i. 26: Tolls at Lewes;
        for a man 4 pence, an ox a halfpenny. This preserves the
        equation that we have already seen, namely, 1 slave = 8 oxen.
        Thus the full team is worth one pound. On the twelfth century
        Pipe Rolls the ox often costs 3 shillings (= 36 pence) or even
        more.

  [131] In Leg. Will. Conq. I. 16, we hear of the _forisfacturae_
        (probably the 'insult fines') due to archbishops, bishops,
        counts, barons and sokemen; the baron has 10 shillings, the
        sokeman 40 pence. In the same document, c. 20, § 2, we read of
        the reliefs of counts, barons, vavassors and villeins. Leg.
        Edw. Conf. 12, § 4, speaks of the _manbót_ due in the Danelaw;
        on the death of a _villanus_ or a _socheman_ 12 ores are paid,
        on the death of a _liber homo_ 3 marks.

  [132] D. B. i. 167 b, Heile: 'ibi erant 12 servi quos Willelmus
        liberos fecit.'

  [133] D. B. i. 263: 'Si quis liber homo facit opera in die feriato
        inde episcopus habet 8 solidos. De servo autem vel ancilla
        feriatum diem infringente, habet episcopus 4 solidos.' Compare
        Cnut, II. 45.

  [134] D. B. i. 86: 'Huic manerio reddebatur T. R. E. de Cruche per
        annum consuetudo, hoc est 6 oves cum agnis totidem, et quisque
        liber homo i. blomam ferri.' South Perrott had belonged to the
        Confessor, Crewkerne to Edith, probably 'the rich and fair.'
        For the description of Cruche see D. B. i. 86 b. As to the
        'bloom' of iron see Ellis, Introduction, i. 136.

  [135] D. B. i. 92. See also p. 87 b, the account of Seveberge.

  [136] D. B. ii. 145.

  [137] D. B. ii. 1: 'In hoc manerio erat tunc temporis quidam liber
        homo de dimidia hida qui modo effectus est unus de villanis.'

  [138] Thus D. B. i. 127, Mid.: 'inter francos et villanos 45
        carucae'; Ibid. 70, Wilts: '4 villani et 3 bordarii et unus
        francus cum 2 carucis'; Ibid. 241, Warw.: 'Ibi sunt 3
        francones homines cum 4 villanis et 3 bordariis.' Sometimes
        _francus_ may be an equivalent for _francigena_; e.g. i. 254
        b, where in one entry we have _unus francigena_ and in the
        next _unus francus homo_. But an Englishman may be _francus_;
        ii. 54 b 'accepit 15 acras de uno franco teigno et misit cum
        terra sua.' However, it is not an insignificant fact that the
        very name of Frenchman (_francigena_) must have suggested free
        birth.

  [139] For examples see the surveys of Warwick, Stafford and
        Shropshire.

  [140] D. B. ii. 260: 'et 7 homines qui possent vendere terram suam
        si eam prius obtulissent domino suo.'

  [141] D. B. ii. 278 b: 'si vellent recedere daret quisque 2
        solidos.' Ibid. 207: 'et possent recedere si darent 2
        solidos.'

  [142] D. B. ii. 435: 'Et super Vlnoht habuit commendationem
        antecessor R. Malet, teste hundredo, et non potuit vendere nec
        dare _de eo_ terram suam.' Ibid. 397: 'viderunt eum iurare
        quod non poterat dare [vel] vendere terram suam _ab_
        antecessore Ricardi.'

  [143] D. B. i. 145: 'Hoc manerium tenuit Aluuinus homo Estan, non
        potuit dare nec vendere extra Brichelle manerium Estani.'

  [144] D. B. i. 133: 'Hanc terram tenuit Aluric Blac 2 hidas de
        Abbate Westmonasterii T. R. E.: non poterat separare ab
        aecclesia.'

  [145] D. B. ii. 216 b: 'Ita est in monasterio quod nec vendere nec
        forisfacere potest extra ecclesia.'

  [146] For example, D. B. i. 201: 'terram suam vendere potuerunt,
        soca vero remansit Abbati.' D. B. ii. 78: 'et poterant vendere
        terram set soca et saca remanebat antecessori Alberici.' Ibid.
        ii. 92 b: 'unus sochemannus fuit in hac terra de 15 acris quas
        poterat vendere, set soca iacebat in Warleia terra S. Pauli.'

  [147] But the _consuetudo_, rent or the like, may 'remain': D. B.
        ii. 181 b: 'et possent vendere terram suam set consuetudo
        remanebat in manerio.' And so the _commendatio_ may 'remain';
        ii. 357 b: 'Hi poterant dare et vendere terram, set saca et
        soca et commendatio remanebant Sancto [Eadmundo].'

  [148] For example, D. B. i. 201: 'Homines Abbatis de Ely fuerunt et
        4 terram suam _vendere potuerunt_, soca vero remansit Abbati,
        et quartus 1 virgam et dimidiam habuit et _recedere non
        potuit_.' See the important evidence produced by Round, Feudal
        England, 24, as to the equivalence of these phrases.

  [149] One of the commonest terms is _recedere_--'potuit
        recedere'--'non potuit recedere'; i. 41, 'non potuit cum terra
        _recedere ad alium dominum_'; i. 56 b, '10 liberi homines T.
        R. E. tenebant 12 hidas et dimidiam de terra eiusdem manerii
        sed _inde recedere_ non poterant'; ii. 19 b, 'non poterant
        _recedere a terra_ sine licentia Abbatis'; ii. 57 b, 'non
        poterant recedere _ab illo manerio_'; ii. 66, 'non poterant
        _removere_ ab illo manerio'; ii. 41, 'non poterant _recedere a
        soca_ Wisgari'; ii. 41 b, 'nec poterant _abire_ sine iussu
        domini'; i. 66 b, 'qui tenuit T. R. E. non poterat ab
        aecclesia diverti [separari]'; ii. 116, 'unus [burgensis] erat
        ita dominicus ut non posset _recedere nec homagium facere_
        sine licentia [Stigandi]'; ii. 119, 'de istis hominibus erant
        36 ita dominice Regis Edwardi ut non possent _esse homines
        cuiuslibet_ sed semper tamen consuetudo regis remanebat preter
        herigete.' A remarkable form is, ii. 57 b, 'non potuit istam
        terram mittere in aliquo loco nisi in abbatia.' Then 'potuit
        ire quo voluit,' 'non potuit ire quolibet' are common enough.

  [150] Ine, c. 39: He who leaves his lord without permission pays
        sixty shillings to his lord.

  [151] For example, D. B. i. 41: 'Tres taini tenuerunt de episcopo et
        non potuerunt ire quolibet.'

  [152] D. B. i. 35 b, Tornecrosta.

  [153] D. B. i. 212 b, Stanford.

  [154] D. B. i. 249 b: 'Tres taini tenuerunt et liberi homines
        fuerunt'; 256, 'Ipsi taini liberi erant'; 259 b, 'Quatuor
        taini tenuerunt ante eum et liberi fuerunt.'

  [155] Chron. Abingd. i. 490: 'Nam quidam dives, Turkillus nomine,
        sub Haroldi comitis testimonio et consultu, de se cum sua
        terra quae Kingestun dicitur, ecclesiae Abbendonensi et abbati
        Ordrico homagium fecit; licitum quippe libero cuique, illo in
        tempore, sic agere erat.'

  [156] D. B. i. 180 b: 'et poterant ire cum terra quo volebant, et
        habebant sub se 4 milites, ita liberos ut ipsi erant.'

  [157] D. B. ii. 59.

  [158] D. B. i. 172: 'si ita liber homo est ut habeat socam suam et
        sacam et cum terra sua possit ire quo voluerit.'

  [159] D. B. i. 84 b.

  [160] D. B. ii. 213: 'Hanc terram calumpniatur esse liberam Vlchitel
        homo Hermeri, quocunque modo iudicetur, vel bello vel iudicio,
        et alius est praesto probare eo modo quod iacuit ad ecclesiam
        [S. Adeldredae] die quo rex Edwardus obiit. Set totus
        hundretus testatur eam fuisse T. R. E. ad S. Adeldredam.'

  [161] See in particular the survey of Gloucestershire; D. B. i. 165
        b: 'Hoc manerium quietum est a geldo et ab omni forensi
        servitio praeter aecclesiae'; Ibid. 'Haec terra libera fuit et
        quieta ab omni geldo et regali servitio'; 170, 'Una hida et
        dimidia libera a geldo.' When after reading these passages we
        come upon the following (167 b), 'Isdem W. tenet Tatinton:
        Ulgar tenuit de rege Edwardo: haec terra libera est,' and when
        we observe that the land is not hidated, we shall probably
        infer that 'This land is free' means 'This land is exempt from
        geld, and (perhaps) from all other royal service.'

  [162] Dialogus, i. c. 11; ii. c. 14.

  [163] Dialogus, i. c. 10.

  [164] Will. Conq. I. 30, 31: 'Si les seignurages ne facent altri
        gainurs venir a lour terre, la justise le facet.' The Latin
        version is ridiculous: 'Si domini terrarum non procurent
        _idoneos_ cultores ad terras suas colendas, iustitiarii hoc
        faciant.' The translator seems to have been puzzled by the
        word _altri_ or _autrui_.

  [165] Ibid. 29.

  [166] Schmid, App. v.; vii., 2, §§ 9-11; Pseudoleges Canuti, 60-1
        (Schmid, p. 431).

  [167] D. B. iv. 497.

  [168] D. B. i. 44 b: 'Istam terram calumpniatur Willelmus de
        Chernet, dicens pertinere ad manerium de Cerneford feudum
        Hugonis de Port per hereditatem sui antecessoris et de hoc
        suum testimonium adduxit de melioribus et antiquis hominibus
        totius comitatus et hundredi; et Picot contraduxit suum
        testimonium de villanis et vili plebe et de prepositis, qui
        volunt defendere per sacramentum vel dei iudicium, quod ille
        qui tenuit terram liber homo fuit et potuit ire cum terra sua
        quo voluit. Sed testes Willelmi nolunt accipere legem nisi
        regis Edwardi usque dum diffiniatur per regem.' It seems
        possible that William's witnesses wished to insist on the
        ancient rule that the oath of one thegn would countervail the
        oaths of six ceorls. This was the old English law (_lex
        Edwardi_) on which they relied.

  [169] D. B. ii. 393: 'et 5 villani de eodem manerio testantur ei et
        offerunt legem qualem quis iudicaverit; set dimidium hundret
        de Gepeswiz testantur quod hoc iacebat ad ecclesiam T. R. E.
        et Wisgarus tenebat et offert derationari.'

  [170] Schmid, App. vi.; Leg. Hen. 61 § 2: 'thaini iusiurandum
        contravalet iusiurandum sex villanorum.'

  [171] Leg. Hen. 29, § 1.

  [172] Hist. Eng. Law, i. 344.

  [173] Dialogus, i. c. 11.

  [174] D. B. i. 67 b: 'De terra villanorum dedit abbatissa uni militi
        3 hidas et dimidiam.' Ibid. 89: 'tenet Johannes de episcopo 2
        hidas de terra villanorum.' Ibid. i. 169: 'unus francigena
        tenet terram unius villani.' Ibid. 164: 'In Sauerna 11
        piscariae in dominio et 42 piscariae villanorum.' Ibid. 230:
        'Silva dominica 1 leu. long. et dim. leu. lat. Silva
        villanorum 4 quarent. long. et 3 quarent. lat.' Ibid. 7 b: '5
        molini villanorum.' We have not seen _dominicum_ used as a
        substantive; but in the Exon. D. B. iv. 75 we have
        _dominicatus Regis_, for the king's demesne. There is already
        a slight ambiguity about the term _dominium_. We may say that
        a church has a manor _in dominio_, meaning thereby that the
        manor as a whole is held by the church itself and is not held
        of it by any tenant; and then we may go on to say that only
        one half of the land comprised in this manor is held by the
        church _in dominio_. Cf. Hist. Eng. Law, ii. 126.

  [175] For example, D. B. i. 159: 'Nunc in dominio 3 carucae et 6
        servi, et 26 villani cum 3 bordariis et 15 liberi homines
        habent 30 carucas.' Ibid. 165: 'In dominio 2 carucae et 9
        villani et 6 bordarii et presbyter et unus rachenistre cum 10
        carucis.' Ibid. 258 b: 'et 3 villani et 2 bordarii et 2
        francigenae cum 2 carucis.' But such entries are common
        enough.

  [176] Round, Domesday Studies, i. 97.

  [177] D. B. i. 28: 'Ipse Willelmus de Braiose tenet Wasingetune....
        De hac terra tenet Gislebertus dim. hidam, Radulfus 1 hidam,
        Willelmus 3 virgas, Leuuinus dim. hidam qui potuit recedere
        cum terra sua et dedit geldum domino suo et dominus suus
        nichil dedit.'

  [178] D. B. i. 163, 163 b.

  [179] D. B. i. 121: 'Omnes superius descriptas terras tenebant T. R.
        E. S. Petrocus; huius sancti terrae nunquam reddiderunt geldum
        nisi ipsi aecclesiae.' D. B. iv. 187: 'Terrae S. Petrochi
        nunquam reddiderunt gildum nisi sancto.'

  [180] D. B. ii. 372: 'Et quando in hundreto solvitur ad geldum 1
        libra tunc inde exeunt 60 denarii ad victum monachorum.'

  [181] Cnut, II. 79: 'And se þe land gewerod hæbbe be scire
        gewitnisse....' The A.-S. _werian_ is just the Latin
        _defendere_.

  [182] Heming, Cartulary, i. 278; Round, Domesday Studies, i. 89.
        Compare the story in D. B. i. 216 b: Osbern or Osbert the
        fisherman claims certain land as having belonged to his
        'antecessor'; 'sed postquam rex Willelmus in Angliam venit,
        ille gablum de hac terra dare noluit et Radulfus Taillgebosc
        gablum dedit et pro forisfacto ipsam terram sumpsit et cuidam
        suo militi tribuit.'

  [183] D. B. iv. 245, Cruca.

  [184] See above p. 54, note 175.

  [185] D. B. i. 163: 'Ibi erant villani 21 et 9 rachenistres habentes
        26 carucas et 5 coliberti et unus bordarius cum 5 carucis. Hi
        rachenistres arabant et herciabant ad curiam domini.' Ibid.
        'Ibi 19 liberi homines rachenistres habentes 48 carucas cum
        suis hominibus.' Ibid. 166: 'De terra huius manerii tenebant
        radchenistres, id est liberi homines, T. R. E., qui tamen
        omnes ad opus domini arabant et herciabant et falcabant et
        metebant.'

  [186] D. B. i. 186, Ewias.

  [187] D. B. i. 180.

  [188] D. B. i. 179 b.

  [189] D. B. i. 179 b.

  [190] D. B. i. 174 b.

  [191] D. B. i. 246 b. So the burgesses of Steyning (i. 17) 'ad
        curiam operabantur sicut villani T. R. E.'

  [192] D. B. i. 219.

  [193] D. B. i. 174 b: 'Ipsi radmans secabant una die in anno et omne
        servitium quod eis iubebatur faciebant.' The position of these
        tenants will be discussed hereafter in connexion with St.
        Oswald's charters.

  [194] D. B. i. 16 b: 'De herbagio, unus porcus de unoquoque villano
        qui habet septem porcos.' In the margin stands 'Similiter per
        totum Sussex.'

  [195] D. B. i. 12 b: 'Ibi tantum silvae unde exeunt de pasnagio 40
        porci aut 54 denarii et unus obolus.' Ibid. 191 b: 'De
        presentacione piscium 12 solidi et 9 denarii.' Ibid. 117 b:
        'aut unum bovem aut 30 denarios.'

  [196] See above p. 56.

  [197] D. B. i. 12 b.

  [198] D. B. i. 11 b, Hamestede.

  [199] D. B. i. 117 b, Colun.

  [200] D. B. i. 127, Stibenhede.

  [201] D. B. i. 179 b, Lene.

  [202] D. B. i. 12 b, Norborne.

  [203] D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli.... Hoc
        manerium tenent villani ad firmam canonicorum. In dominio nil
        habetur.'

  [204] See above p. 36.

  [205] This matter will be discussed when we deal with St. Oswald's
        charters.

  [205] Schmid, p. 263 (note). This document is Dr Liebermann's
        Instituta Cnuti (Trans. Roy. Hist. Soc. vii. 77).

  [207] Schmid, App. II. 57-9.

  [208] For the rest, the word _túnesman_ appears in Edgar IV. 8, 13,
        in connexion with provisions against the theft of cattle.

  [209] D. B. i. 259, 259 b.

  [210] Leg. Will. I. 29.

  [211] D. B. ii. 360 b: 'Hanc terram habet Abbas in vadimonio pro
        duabus marcis auri concessu Engelrici quando redimebant
        Anglici terras suas.' Sometimes the Englishman gets back his
        land as a bedesman: i. 218, 'Hanc terram tenuit pater huius
        hominis et vendere poterit T. R. E. Hanc rex Willelmus in
        elemosina eidem concessit'; i. 211, 'Hanc terram tenuit Avigi
        et potuit dare cui voluit T. R. E. Hanc ei postea rex
        Willelmus concessit et per breve R. Tallebosc commendavit ut
        eum servaret'; i. 218 b, a similar case.

  [212] Dialogus, i. c. 10; Bracton, f. 7. On both passages see
        Vinogradoff, Villainage, p. 121.

  [213] D. B. ii. 1: 'In hoc manerio erat tunc temporis quidam liber
        homo ... qui modo effectus est unus de villanis.'

  [214] D. B. i. 148 b: 'In Merse tenet Ailric de Willelmo 4 hidas pro
        uno manerio.... Istemet tenuit T. R. E. sed modo tenet ad
        firmam de Willelmo graviter et miserabiliter.'

  [215] D. B. i. 141: 'Hanc terram sumpsit Petrus vicecomes de isto
        sochemanno Regis Willelmi in manu eiusdem Regis pro
        forisfactura de gildo Regis se non reddidisse ut homines sui
        dicunt. Sed homines de scira non portant vicecomiti
        testimonium, quia semper fuit quieta de gildo et de aliis erga
        Regem quamdiu tenuit, testante hundret.'

  [216] D. B. i. 30: 'Ricardus de Tonebrige tenet de hoc manerio unam
        virgatam cum silva unde abstulit rusticum qui ibi manebat.'

  [217] D. B. ii. 282 b: 'et istam consuetudinem constituit illis
        Aluricus prepositus in tempore R. Bigot.'

  [218] D. B. ii. 284 b.

  [219] D. B. ii. 84 b.

  [220] D. B. ii. 353 b: 'omnes fuerunt confusi.'

  [221] D. B. ii. 440 b: 'sed homines inde fuerunt confusi.'

  [222] D. B. i. 65, Aldeborne.

  [223] D. B. ii. 18, Berdringas.

  [224] D. B. ii. 88 b, Tachesteda.

  [225] Ellis, Introduction, ii. 428. We give Ellis's figures, but
        think that he has exaggerated the number of sokemen who were
        to be found in 1086.

  [226] We make considerably more than 900 by counting only those who
        are expressly described as sokemen and excluding the many
        persons who are simply described as _homines_ capable of
        selling their land.

  [227] Hamilton, Inquisitio, 65.

  [228] Hamilton, Inquisitio, 77.

  [229] Thus e.g. D. B. ii. 87 b: 'Hidingham tenet Garengerus de
        Rogero pro 25 acris quas tenuerunt 15 liberi homines T. R. E.'

  [230] D. B. i. 31.

  [231] D. B. i. 31 b: 'Et 10 hidas tenebant alodiarii villae.'

  [232] D. B. i. 10 b.

  [233] D. B. i. 13, Essella.

  [234] D. B. i. 24.

  [235] D. B. 83, 83 b.

  [236] Vinogradoff, Villainage, 89 ff.; Hist. Engl. Law, i. 366 ff.

  [237] D. B. i. 189 b.



§ 4. _The Sokemen._


[The _sochemanni_ and _liberi homines_.]

Now of a large part of England we may say that all the occupiers of land
who are not holding 'manors[238]' will belong to some of those classes
of which we have already spoken. They will be villeins, bordiers,
cottiers, 'boors' or serfs. Here and there we may find a few persons who
are described as _liberi homines_. In some of the western counties,
Gloucester, Worcester, Hereford, Shropshire, there are _rachenistres_ or
_radmans_; between the Ribble and the Mersey we may find a party of
_drengs_. Still it is generally true that two of those five classes that
seem to have been mentioned in King William's writ[239], the
_sochemanni_ and the _liberi homines_, are largely represented only in
certain counties. They are to be seen in Essex, yet more thickly in
Suffolk and Norfolk. In Lincolnshire nearly half of the rural population
consists of sokemen, though there is no class of persons described as
_liberi homines_. There are some sokemen in Yorkshire, but they are not
very numerous and there are hardly any _liberi homines_. We have seen
how in Cambridgeshire and Bedfordshire the sokemen have fared ill; but
still some are left there. Traces of them may be found in Hertford and
Buckingham; they are thick in Leicester, Nottingham and Northampton;
there are some in Derbyshire. There have been sokemen in Middlesex[240]
and in Surrey[241]; but they have been suppressed; a few remain in
Kent[242]; so we should be rash were we to find anything
characteristically Scandinavian in the sokemen. Even in Suffolk they are
suffering ill at the hands of their new masters[243], while in
Cambridgeshire, Bedfordshire, Hertfordshire they have been suppressed or
displaced.

[Lord and man.]

We have now to enter on a difficult task, a discussion of the relation
which exists between these _sochemanni_ and _liberi homines_ on the one
hand and their lord upon the other. The character of this relation
varies from case to case. We may distinguish three different bonds by
which a man may be bound to a lord, a personal bond, a tenurial bond, a
jurisdictional or justiciary bond. But the language of Domesday Book is
not very patient of this analysis. However in the second volume we very
frequently come upon two ideas which are sharply contrasted with each
other; the one is expressed by the term _commendatio_, the other by the
term _soca_[244]. To these we must add the great vague term
_consuetudo_, and we shall also have to consider the phrases which
describe the various degrees of that freedom of 'withdrawing himself
with his land' that a man may enjoy.

[Bonds between lord and man.]

In order that we may become familiar with the use made of these terms
and phrases we will transcribe a few typical entries:

     Two free men, of whom Ælfwin had not even the commendation[245].

     Of these men Harold had not even the commendation[246].

Thus commendation seems put before us as the slightest bond that there
can be between lord and man. Very often we are told that the lord had
the commendation and nothing more[247]. Thus it is contrasted with the
soke:--

     His predecessor had only the commendation of this, and Harold had
     the soke[248].

     Of these six free men St Benet had the soke, and of one of them the
     commendation[249].

And the commendation is contrasted with the 'custom,' the _consuetudo_,
perhaps we might say the 'service':--

     Of the said sokeman Ralph Peverel had a custom of 3 shillings a
     year, but in the Confessor's time his ancestor had only the
     commendation[250].

     R. Malet claims 18 free men, 3 of them by commendation, and the
     rest for all custom[251].

And the soke is contrasted with the _consuetudo_:--

     To this manor belong 4 men for all custom, and other 4 for soke
     only[252].

In a given case all these bonds may be united:--

     There are 7 sokemen who are the Saint's men with sake and soke and
     all custom[253].

     Over this man the Saint has sake and soke and commendation with all
     custom[254].

Then if the man 'withdraws,' or gives or sells his land, we often read
of the soke 'remaining'; we sometimes read of the commendation, the
custom, the service 'remaining.'

     These free men could sell or give their land, but the commendation
     and the soke and sake would remain to St Edmund[255].

     These men could sell their land, but the soke would remain to the
     Saint and the service (_servitium_), whoever might be the
     buyer[256].

     They could give and sell their land, but the soke and the
     commendation and the service would remain to the Saint[257].

But after all, these distinctions are not maintained with rigour, for
the soke is sometimes spoken of as though it were a species of
_consuetudo_. We have a tangled skein in our hands.

[Commendation.]

The thread that looks as if it would be the easiest to unravel, is that
which is styled 'mere commendation.' The same idea is expressed
by other phrases--'he committed himself to Bishop Herman for his
defence[258]'--'they submitted themselves with their land to the abbey
for defence[259]'--'he became the man of Goisfrid of his own free
will[260]'--'she put herself with her land in the hand of the
queen[261].' 'Homage' is not a common term in Domesday Book, but if,
when speaking of the old time, it says, as it constantly does, that one
person was the man of another, no doubt it is telling us of a
relationship which had its origin in an oath and a symbolic
ceremony[262]. 'She put herself into the hands of the queen'--we should
take these words to mean just what they say. An Anglo-Saxon oath of
fealty (_hyldáð_) has been preserved[263]. The swearer promises to be
faithful and true to his lord, to love all that his lord loves and
eschew all that his lord eschews. He makes no distinct reference to any
land, but he refers to some compact which exists between him and his
lord:--He will be faithful and true on condition that his lord treats
him according to his deserts and according to the covenant that has been
established between them.

[Commendation and protection.]

To all seeming there need not be any land in the case; and, if the man
has land, the act of commendation will not give the lord as a matter of
course any rights in that land. Certainly Domesday Book seems to assume
that in general every owner or holder of land must have had a lord. This
assumption is very worthy of notice. A law of Æthelstan[264] had said
that lordless men 'of whom no right could be had' were to have lords,
but this command seems aimed at the landless folk, not at those whose
land is a sufficient surety for their good behaviour. The law had not
directly commanded the landed men to commend themselves, but it had
supplied them with motives for so doing[265]. What did a man gain by
this act of submission? Of advantages that might be called 'extra-legal'
we will say nothing, though in the wild days of Æthelred the Unready,
and even during the Confessor's reign, there was lawlessness enough to
make the small proprietor wish that he had a mightier friend than the
law could be. But there were distinct legal advantages to be had by
commendation. In the first place, the life of the great man's man was
protected not only by a _wer-gild_, but by a _man-bót_:--a _man-bót_ due
to one who had the power to exact it; and if, as one of our authorities
assures us, the amount of the _man-bót_ varied with the rank of the
lord[266], this would help to account for a remarkable fact disclosed by
Domesday Book, namely, that the chosen lord was usually a person of the
very highest rank, an earl, an archbishop, the king. Then, again, if the
man got into a scrape, his lord might be of service to him. Suppose the
man accused of theft: in certain cases he might escape with a single,
instead of a triple ordeal, if he had a lord who would swear to his good
character[267]. In yet other cases his lord would come forward as his
compurgator; perhaps he was morally bound to do so; and, being a man of
high rank, would swear a crushing oath. And within certain limits that
we can not well define the lord might warrant the doings of his man,
might take upon himself the task of defending an action to which his man
was subjected[268]. What the man has sought by his submission is
_defensio_, _tuitio_; the lord is his _defensor_, _tutor_, _protector_,
_advocatus_, in a word, his warrantor[269].

[Commendation and warranty.]

Of warranty we are accustomed to think chiefly in connexion with the
title to land:--the feoffor warrants the feoffee in his enjoyment of the
tenement. But to all appearance in the eleventh century it is rather as
lord than as giver, seller or lender, that the vouchee comes to the
defence of his man. If the land is conceived as having once been the
warrantor's land, this may be but a fiction:--the man has given up his
land and then taken it again merely in order that he may be able to say
with some truth that he has it by his lord's gift. But we can not be
sure that as yet any such fiction is necessary. 'I will defend any
action that is brought against you for this land':--as yet men see no
reason why such a promise as this, if made with due ceremony, should not
be enforced. A certain amount of 'maintenance' is desirable in their
eyes and laudable.

[Commendation and tenure.]

Though we began with the statement that where there is commendation
there may yet be no land in the case, we have none the less been already
led to the supposition that often enough land does get involved in this
nexus between man and lord. No doubt a landless man may commend himself
and get no land in return for his homage; but with such an one Domesday
Book is not concerned. The cases in which it takes an interest are those
in which a landholder has commended himself. Now we dare not say that a
landholder can never commend himself without commending his land
also[270]. Howbeit, the usual practice certainly is that a man who
submits or commits himself for 'defence' or 'protection' shall take his
land with him; he 'goes with his land' to a lord. Very curious are some
of the instances which show how large a liberty men have enjoyed of
taking land wherever they please. 'Tostig bought this land from the
church of Malmesbury for three lives':--in this there is nothing
strange; leases for three lives granted by churches to thegns have been
common. But of course we should assume that during the lease the land
could have no other lord than the church of Malmesbury. Not so, however,
for during his lease Tostig 'could go with that land to whatever lord he
pleased[271].' In Essex there was before the Conquest a man who held
land; that land in some sort belonged to the Abbey of Barking, and could
not be separated from the abbey; but the holder of it was the man
('merely the man' say the jurors) of one Leofhild the predecessor of
Geoffrey de Mandeville[272]. In this last case we may satisfy ourselves
by saying that a purely personal relation is distinguished from a
tenurial relation; the man of Leofhild is the tenant of the abbey. But
what of Tostig's case? Land that he holds of the church of Malmesbury,
and that too by no perpetual tenure, he can commend to another lord.
From the man's point of view, protection, defence, warranty, is the
essence of commendation, and the warranty that he chiefly needs is the
warranty of his possession, of the title by which he holds his land. It
can not but be therefore that the lord to whom he commends himself and
his land, should be in some sort his landlord.

[The lord's interest in commendation.]

Not that he need pay rent, or perform other services in return for the
land. The land is his land; he has not obtained it from his lord; on the
contrary he has carried it to his lord. Mere commendation is therefore
distinguished by a score of entries from a relation that involves the
payment of _consuetudines_. Doubtless however the lord obtains 'a
valuable consideration' for all that he gives. Part of this will
probably lie without the legal sphere. He has a sworn retainer who will
fight whenever he is told to fight. But even the law allows the man to
go great lengths in his lord's defence[273]. In a rough age happy is
the lord who has many sworn to defend him. When at a later time we see
that the claimant of land must offer proof 'by the body of a certain
free man of his,' we are taught that the lords have relied upon the
testimony and the strong right arms of their vassals. That in all cases
the lord got more than this we can not say, though perhaps commendation
carried with it the right to the heriot, the horse and armour of the
dead man[274]. The relation is often put before us as temporary.
Numerous are the persons who 'can seek lords where they choose' or who
can 'go with their land wherever they please.' How large a liberty these
phrases accord to lord and man it were hard to tell. We can not believe
that either party to the contract could dissolve it just at the moment
when the other had some need to enforce it; but still at other times the
man might dissolve it, and we may suppose that the lord could do so too.
But the connexion might be of a more permanent kind. Perhaps in most
cases in which we are told that a man can not withdraw his land from his
lord the bond between them is regarded as something other than
commendation--there is commendation and something more. But this is no
universal truth. You might be the lord's man 'merely by commendation'
and yet be unable to sell your land without the lord's leave[275]. At
any rate, in one way and another 'the commendation' is considered as
capable of binding the land. The commended man will be spoken of as
holding the land under (_sub_) his lord, if not of (_de_) his lord[276].
In many cases if he sells the land 'the commendation will remain to his
lord'--by which is meant, not that the vendor will continue to be the
man of that lord (for the purposes of the Domesday Inquest this would
be a matter of indifference) but that the lord's rights over the land
are not destroyed. The purchaser comes to the land and finds the
commendation inhering in it[277].

[The seignory over the commended.]

And so, again, the lord's rights under the commendation seem to
constitute an alienable and heritable seignory. It is thus that we may
best explain the case, very common in East Anglia, in which a man is
commended half to one and half to another lord[278]. Thus we read of a
case in which a free man was commended, as to one-third to Wulfsige, and
as to the residue to Wulfsige's two brothers[279]. In this instance it
seems clear that the commendation has descended to three co-heirs. In
other cases a lord may have made over his rights to two religious
houses; thus we hear of a man who is common to the Abbots of Ely and
St. Edmund's[280]. In some cases a man may, in others he may not, be
able to prevent himself being transferred from lord to lord, or from
ancestor to heir. What passes by alienation or inheritance may be
regarded rather as a right to his commendation than as the commendation
itself[281]. Of course there is nothing to hinder one from being the man
of several different lords. Ælfric Black held lands of the Abbot of
Westminster which he could not separate from the church, but for other
lands he was the man of Archbishop Stigand[282]. Already a lofty edifice
is being constructed; _B_, to whom _C_ is commended, is himself
commended to _A_; and in this case a certain relation exists between _C_
and _A_; _C_ is 'sub-commended' to _A_[283].

[Commendation and service.]

In a given case the somewhat vague obligation of the commended man may
be rendered definite by a bargain which imposes upon him the payment of
rent or the performance of some specified services. When this is so, we
shall often find that the land is moving, if we may so speak, not from
the man but from the lord. The man is taking land from the lord to hold
during good behaviour[284], or for life[285], or for lives. A form of
lease or loan (_lǽn_) which gives the land to the lessee and to two or
three successive heirs of his, has from of old been commonly used by
some of the great churches[286]. Also we see landowners giving up their
land to the churches and taking it back again as mere life tenants.
During their lives the church is to have some 'service,' or at least
some 'recognition' of its lordship, while after their deaths the church
will have the land in demesne[287]. This is something different from
mere commendation. We see here the _feuda oblata_ or _beneficia oblata_
which foreign jurists have contrasted with _feuda_ or _beneficia data_.
The land is brought into the bargain by the man, not by the lord. But
often the land comes from the lord, and the tenancy is no merely
temporary tenancy; it is heritable. The king has provided his thegns
with lands; the earls, the churches have provided their thegns with
lands, and these thegns have heritable estates, and already they are
conceived as holding them of (_de_) the churches, the earls, the king.
But we must not as yet be led away into any discussion about the
architecture of the very highest storeys of the feudal or vassalic
edifice. It must at present suffice that in humbler quarters there has
been much letting and hiring of land. The leases, if we choose to call
them so, the gifts, if we choose to call them so, have created heritable
rights and perdurable relationships.

[Land-loans and services.]

There is no kind of service that can not be purchased by a grant or
lease of land. Godric's wife had land from the king because she fed his
dogs[288]. Ælfgyfu the maiden had land from Godric the sheriff that she
might teach his daughter orfrey work[289]. The monks of Pershore
stipulate that their dominion shall be recognized by 'a day's farm' in
every year, that is, that the lessee shall once a year furnish the
convent with a day's victual[290]. The king's thegns between the Ribble
and the Mersey have 'like villeins' to make lodges for the king, and
fisheries and deer-hays, and must send their reapers to cut the king's
crops at harvest time[291]. The radmen and radknights of the west must
ride on their lord's errands and make themselves generally useful; they
plough and harrow and mow, and do whatever is commanded them[292].

[The man's _consuetudines_.]

But we would here speak chiefly of the lowly 'free men' and sokemen of
the eastern counties. Besides having their commendation and their soke,
the lord very often has what is known as their _consuetudo_ or their
_consuetudines_. Often they are the lord's men _de omni consuetudine_.
In all probability the word when thus employed, when contrasted with
commendation on the one hand and with soke on the other, points to
payments and renders to be made in money and in kind and to services of
an agricultural character. Of such services only one stands out
prominently; it is very frequently mentioned in the survey of East
Anglia; it is fold-soke, _soca faldae_. The man must not have a fold of
his own; his sheep must lie in the lord's fold. It is manure that the
lord wants; the demand for manure has played a large part in the history
of the human race. Often enough this is the one _consuetudo_, the one
definite service, that the lord gets out of his free men[293]. And then
a man who is _consuetus ad faldam_, tied to his lord's fold, is hardly
to be considered as being in all respects a 'free' man. Those who are
not 'fold-worthy' are to be classed with those who are not 'moot-worthy'
or 'fyrd-worthy.' We are tempted to say that a man's _caput_ is
diminished by his having to seek his lord's fold, just as it would be
diminished if he were excluded from the communal courts or the national
host[294]. From the nature of this one _consuetudo_ and from the
prominence that is given to it, we may guess the character of the other
_consuetudines_. Suit to the lord's mill would be analogous to suit to
his fold[295]. Of 'mill-soke' we read nothing, but often enough a
surprisingly large part of the total value of a manor is ascribed to its
mill, and we may argue that the lord has not invested capital in a
costly undertaking without making sure of a return. We may well suppose
that like the radmen of the west the free men and sokemen of the east
give their lord some help in his husbandry at harvest time. From a
document which comes to us from the abbey of Ely, and which is slightly
older than the Domesday Inquest, we learn that certain of St.
Etheldreda's sokemen in Suffolk had nothing to do but to plough and
thresh whenever the abbot required this of them; others had to plough
and weed and reap, to carry the victual of the monks to the minster and
furnish horses whenever called upon to do so[296]. This seems to point
rather to 'boon-days' than to continuous 'week-work,' and we observe
that the sokemen of the east like the radmen of the west have horses.
Occasionally we learn that a sokeman has to pay an annual sum of money
to his lord; sometimes this looks like a substantial rent, sometimes
like a mere 'recognition'; but the words that most nearly translate our
'rent,' _redditus_, _census_, _gablum_ are seldom used in this context.
All is _consuetudo_.

[Nature of _consuetudines_.]

It is an interesting word. We perhaps are eager to urge the dilemma that
in these cases the land must have been brought into the bargain either
by the lord or by the tenant:--either the lord is conceived as having
let land to the tenant, or the theory is that the tenant has commended
land to the lord. But the dilemma is not perfect. It may well be that
this relationship is thought of as having existed from all time; it may
well be that this relationship, though under slowly varying forms, has
really existed for several centuries, and has had its beginning in no
contract, in no bargain. In origin the rights of the lord may be the
rights of kings and ealdormen, rights over subjects rather than rights
over tenants. The word _consuetudo_ covers taxes as well as rents, and,
if the sokeman has to do work for his lord, very often, especially in
Cambridgeshire and Hertfordshire, he has to do work for the king or for
the sheriff also. If he has to do carrying service for the lord, he has
to do carrying service (_avera_) for the sheriff also or in lieu thereof
to pay a small sum of money[297]. And another aspect of this word
_consuetudo_ is interesting to us. Land that is burdened with customs is
customary land (_terra consuetudinaria_)[298]. As yet this term does not
imply that the tenure, though protected by custom, is not protected by
law; there is no opposition between law and custom; the customary tenant
of Domesday Book is the tenant who renders customs, and the more customs
he renders the more customary he is[299].

[Justiciary _consuetudines_.]

This word _consuetudo_ is the widest of words. Perhaps we find the best
equivalent for _consuetudines_ in our own vague 'dues[300].' It covers
what we should call rents; it covers what we should call rates and
taxes; but further it covers what we should call the proceeds and
profits of justice. Let us construe a few entries. At Romney there are
burgesses who in return for the service that they do on the sea are quit
of all customs except three, namely, larceny, peace-breach and
ambush[301]. In Berkshire King Edward gave to one of his foresters half
a hide of land free from all custom, except the king's forfeiture, such
as larceny, homicide, hám-fare and peace-breach[302]. In what sense can
a crime be a custom? In a fiscal sense. A crime is a source of revenue.
In what sense should we wish to have our land free of crimes, free even,
if this be possible, of larceny and homicide? In this sense:--we should
wish that no money whatever should go out of our land, neither by way of
rent, nor by way of tax, rate, toll, nor yet again by way of
_forisfactura_, of payment for crime committed. We should wish also that
our land with the tenants on it should be quit or quiet (_quieta_) from
the incursions of royal and national officers, whether they be in search
of taxes or in search of criminals and the fines due from criminals, and
we should also like to put those fines in our own pockets. Justice
therefore takes its place among the _consuetudines_: 'larceny' is a
source of income. A lord who has 'his customs,' is a lord who has among
other sources of revenue, justice or the profits of justice[303].
'Justice or the profits of justice,' we say, for our record does not
care to distinguish between them. It is thinking of money while we are
engaged in questioning it about the constitution and competence of
tribunals. It gives us but crooked answers. However, we must make the
best that can be made of them, and in particular must form some opinion
about the _consuetudines_ known as _sake_ and _soke_.


FOOTNOTES:

  [238] We shall see hereafter that some of these so-called 'manors'
        are but small plots and their holders small folk.

  [239] See above p. 24.

  [240] D. B. i. 128 b, 129, 129 b.

  [241] D. B. i. 34, 35 b.

  [242] D. B. i. 13.

  [243] D. B. ii. 287. There are free men, apparently 120 in number,
        of whom it is written: 'Hii liberi homines qui tempore regis
        Eduardi pertinebant in soca de Bercolt, unusquisque gratis
        dabat preposito per annum 4 tantum denarios, et reddebat socam
        sicut lex ferebat, et quando Rogerius Bigot prius habuit
        vicecomitatum statuerunt ministri sui quod redderent 15 libras
        per annum, quod non faciebant T. R. E. Et quando Robertus
        Malet habuit vicecomitatum sui ministri creverunt illos ad 20
        libras. Et quando Rogerius Bigot eos rehabuit dederunt
        similiter 20 libras. Et modo tenet eos Aluricus Wanz tali
        consuetudine qua erant T. R. E.' This is a rare instance of a
        reestablishment of the _status quo ante conquestum_.

  [244] Compare Round, Feudal England, 33.

  [245] D. B. ii. 187 b: 'Ex his non habuit Ailwinus suus antecessor
        etiam commendationem.'

  [246] D. B. ii. 287: 'De his hominibus ... non habuit Haroldus etiam
        commendationem.'

  [247] D. B. ii. 153 b: 'Unde suus antecessor habuit commendationem
        tantum.' Ibid. 154: 'Alstan liber homo Edrici commend[atione]
        tantum.'

  [248] D. B. ii. 161 b.

  [249] D. B. ii. 244.

  [250] D. B. ii. 6: 'De predicto sochemano habuit Rad. Piperellus
        consuetudinem in unoquoque anno per 3 solidos, set in T. R. E.
        non habuit eius antecessor nisi tantum modo commendationem.'

  [251] D. B. ii. 171 b: 'Calumpniatur R. Malet 18 liberos homines, 3
        commendatione et alios de omni consuetudine.'

  [252] D. B. ii. 250 b: 'Huic manerio adiacent semper 4 homines de
        omni consuetudine et alii 4 ad socham tantum.'

  [253] D. B. ii. 356 b.

  [254] D. B. ii. 357.

  [255] D. B. ii. 353 b.

  [256] D. B. ii. 362: 'set soca remaneret sancto et servitium
        quicunque terram emeret.'

  [257] D. B. ii. 358.

  [258] D. B. i. 58: 'Pater Tori tenuit T. R. E. et potuit ire quo
        voluit sed pro sua defensione se commisit Hermanno episcopo et
        Tori Osmundo episcopo similiter.'

  [259] D. B. i. 32 b: 'set pro defensione se cum terra abbatiae
        summiserunt.'

  [260] D. B. ii. 62 b: 'et T. R. W. effectus est homo Goisfridi
        sponte sua.'

  [261] D. B. i. 36 b: 'T. R. W. femina quae hanc terram tenebat misit
        se cum ea in manu reginae.' Ibid. 36: 'Quidam liber homo hanc
        terram tenens et quo vellet abire valens commisit se in
        defensione Walterii pro defensione sua.'

  [262] D. B. ii. 172: 'Hos calumpniatur Drogo de Befrerere pro
        homagio tantum.' This seems equivalent to the common
        'commendatione tantum.' D. B. i. 225 b: 'fuerunt homines
        Burred et iccirco G. episcopus clamat hominationem eorum.'

  [263] Schmid, App. x.

  [264] Æthelst. II. 2.

  [265] Also it had declared that every man must have a pledge, and
        probably the easiest way of fulfilling this command was to
        place oneself under a lord who would put one into a tithing.

  [266] Leg. Edw. Conf. 12, § 5; but this is contradicted by Leg.
        Henr. 87, § 4.

  [267] Æthelr. I. 1, § 2; compare Æthelr. III. 3, § 4.

  [268] Leg. Hen. 82, § 6; 85, § 2.

  [269] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' Ibid.
        103: 'vocavit Ilbodonem ad tutorem et postea non adduxit
        tutorem.' Ibid. 31 b: 'revocat eam ad defensorem.' D. B. i.
        141 b: 142: 'sed Harduinus reclamat Petrum vicecomitem ad
        protectorem.' Ibid. 227 b: 'et dicit regem suum advocatum
        esse.'

  [270] D. B. ii. 71 b: 'Phenge tenet idem Serlo de R[anulfo
        Piperello] quod tenuit liber homo ... qui T. R. W. effectus
        est homo antecessoris Ranulfi Piperelli, set terram suam sibi
        non dedit.' This however is not quite to the point.

  [271] D. B. i. 72: 'Toti emit eam T. R. E. de aecclesia
        Malmesburiensi ad etatem trium hominum et infra hunc terminum
        poterat ire cum ea ad quem vellet dominum.'

  [272] D. B. ii. 57 b: 'Et haec terra quam modo tenet G. fuit in
        abbatia de Berchingis sicuti hundret testatur; set ille qui
        tenuit hanc terram fuit tantum modo homo [Leuild] antecessoris
        Goisfridi et non potuit istam terram mittere in aliquo loco
        nisi in abbatia.'

  [273] Leg. Hen. 82, § 3.

  [274] D. B. ii. 118 b: 'In burgo [de Tetfort] autem erant 943
        burgenses T. R. E. De his habuit Rex omnem consuetudinem. De
        istis hominibus erant 36 ita dominice Regis E. ut non possent
        esse homines alicuius sine licentia Regis. Alii omnes poterant
        esse homines cuiuslibet set semper tamen consuetudeo Regis
        remanebat _preter herigete_.' Compare D. B. i. 336 b,
        Stamford: 'In his custodiis sunt 72 mansi sochemanorum, qui
        habent terras suas in dominio, et qui petunt dominos ubi
        volunt, super quos Rex nichil aliud habet nisi emendationem
        forisfacturae eorum et heriete et theloneum.' In this case
        commendation would not carry the heriot with it.

  [275] D. B. ii. 201: 'Liber homo de 80 acris terrae Almari episcopi
        et Alwoldi abbatis commend[atione] tantum, et hic homo erat
        ita in monasterio quod non potuit dare terram suam nec
        vendere.' See another entry of the same kind on the same page.

  [276] D. B. i. 50 b: 'Hic Alwinus tenuit hanc terram T. R. E. sub
        Wigoto pro tuitione; modo tenet eam sub Milone.'

  [277] For example, D. B. ii. 353 b: 'Hii poterant dare et vendere
        terram suam T. R. E. set commend[atio] et soca et saca
        remanebat S. Edmundo.'

  [278] D. B. ii. 182 b: 'Ulchetel habuit dimidiam commendationem de
        illo T. R. E. et de uxore ipsius totam commendationem.' Ibid.
        249 b: 'Medietas istius hominis fuit antecessoris Baingnardi
        commendatione tantum et alia medietas S. Edmundi cum dimidia
        terra.' The contrast between _dimidii homines_ and _integri
        homines_ is common enough. See D. B. ii. 309: one man has a
        sixth and another five-sixths of a commendation.

  [279] D. B. ii. 333 b.

  [280] D. B. ii. 125 b.

  [281] D. B. i. 58. Tori 'committed himself for defence' to Bp.
        Herman; Tori's son has done the same to Osmund, the successor
        of Herman.

  [282] D. B. i. 133: 'sed pro aliis terris homo archiepiscopi
        Stigandi fuit.'

  [283] On the whole this seems to be the meaning of
        'sub-commendation.' We read a good deal of men who were
        sub-commended to the _antecessor_ of Robert Malet. This seems
        to be explained by such an entry as the following (ii. 313 b):
        'Eadric holds two free men who were commended to Eadric, who
        himself was commended to (another) Eadric, the _antecessor_ of
        Robert Malet.'

  [284] D. B. i. 45 b: 'Quidam frater Edrici tenuit tali conventione,
        quod quamdiu bene se haberet erga eum [Edricum] tamdiu terram
        de eo teneret, et si vendere vellet, non alicui nisi ei de quo
        tenebat vendere vel dare liceret.'

  [285] Cases of life tenancies will be found in D. B. i. 47,
        Stantune; 67 b, Newetone; 80, Catesclive; 177 b, Witune; ii.
        373, 444 b.

  [286] D. B. i. 46 b, 66 b, 72, 175. We shall return to this when in
        the next essay we speak of _loanland_.

  [287] D. B. i. 67 b: 'Hanc terram reddidit sponte sua aecclesiae
        Hardingus qui in vita sua per convent[ionem] debebat tenere.'
        See also the case in i. 177 b. Again, ii. 431: 'terram quam
        cepit cum uxore sua ... misit in ecclesia concedente muliere
        tali conventione quod non potuit vendere nec dare de
        aecclesia.' For a 'recognitio' see i. 175, Persore.

  [288] D. B. i. 57 b.

  [289] D. B. i. 149: 'De his tenuit Aluuid puella 2 hidas ... et de
        dominica firma Regis Edwardi habuit ipsa dimidiam hidam quam
        Godricus vicecomes ei concessit quamdiu vicecomes esset, ut
        illa doceret filiam ejus aurifrisium operari.'

  [290] D. B. i. 175: 'Hanc emit quidam Godricus teinus regis Edwardi
        vita trium haeredum et dabat in anno monachis unam firmam pro
        recognitione.'

  [291] D. B. i. 269 b.

  [292] See above p. 56. Their tenure will be discussed hereafter in
        connexion with St. Oswald's land-loans.

  [293] D. B. ii. 187 b: 'In Carletuna 27 liberi homines et dimidius
        sub Olfo commendatione tantum et soca falde ... 15 liberi
        homines sub Olfo soca falde et commendatione tantum.'

  [294] D. B. ii. 203 b: 'In eadem villa 12 homines 6 quorum erant in
        soca falde et alii 6 erant liberi.' Ibid. 361 b: '70 liberi
        ... super hos homines habet et semper habuit sacam et socam et
        omnem consuetudinem et ad faldam pertinent omnes preter 4.'
        Ibid. ii. 207: '17 liberi homines consueti ad faldam et
        commendati.' The term 'fold-worthy' occurs in a writ of Edward
        the Confessor; he gives to St. Benet of Ramsey soke over such
        of the men of a certain district as are moot-worthy,
        fyrd-worthy, and fold-worthy: Earle, Land Charters, p. 343;
        Kemble, iv. p. 208.

  [295] In later extents of East Anglian manors the fold-soke plays an
        important part. Cart. Rams. iii. 267: 'R. tenuit unam
        carucatam terrae cum falda sua pro octo solidis. A. dabat pro
        terra sua quadraginta denarios et oves eius erant in falda
        Abbatis.... H. triginta acras pro quatuor solidis et oves eius
        sunt in manu domini....'

  [296] See the document printed by Hamilton at the end of the
        Inquisitio Com. Cantabr. p. 192. 'Isti solummodo arabunt et
        contererent messes eiusdem loci quotienscunque abbas
        preceperit....' 'Ita proprie sunt abbati ut quotienscunque
        ipse preceperit in anno arabunt suam terram, purgabunt et
        colligent segetes, portabunt victum monachorum ad monasterium,
        equos eorum in suis necessitatibus semper habebit.' For more
        of this matter see Round, Feudal England, 30.

  [297] D. B. i. 141: there are four sokemen who are men of Æthelmær
        and who can not sell their land without his consent; but they
        are under the king's sake and soke and jointly provide the
        sheriff with one _avera_ every year or four pence.

  [298] D. B. i. 249: 'Haec terra fuit consuetudinaria solummodo de
        theloneo regis sed aliam socam habebat.'

  [299] D. B. ii. 273 b: 'In eadem 8 consuetudinarii ad faldam sui
        antecessoris.' Ibid. 215: '8 homines consuetudinarios ad hoc
        manerium.'

  [300] D. B. i. 280: 'Duae partes Regis et tercia comitis de censu et
        theloneo et forisfactura et de omni consuetudine.' Ibid. 42:
        'Unam aecclesiam et 6 capellas cum omni consuetudine vivorum
        et mortuorum.'

  [301] D. B. i. 10 b: 'et sunt quieti pro servitio maris ab omni
        consuetudine preter tribus, latrocinio, pace infracta, et
        forestel.'

  [302] D. B. i. 61 b: 'solutam ab omni consuetudine propter forestam
        custodiendam excepta forisfactura Regis, sicut est
        latrocinium, et homicidium, et heinfara, et fracta pax.'

  [303] D. B. i. 52: 'Hi infrascripti habent in Hantone
        consuetud[ines] domorum suarum.' Ibid. 249: 'Haec terra fuit
        consuetudinaria solummodo de theloneo Regis sed socam aliam
        habebat.'



§ 5. _Sake and soke._


[Sake and soke.]

We may best begin our investigation by recalling the law of later times.
In the thirteenth century seignorial justice, that is, justice in
private hands, has two roots. A certain civil jurisdiction belongs to
the lord as such; if he has tenants enough to form a court, he is at
liberty to hold a court of and for his tenants. This kind of seignorial
justice we call specifically feudal justice. But very often a lord has
other and greater powers than the feudal principle would give him; in
particular he has the view of frankpledge and the police justice that
the view of frankpledge implies. All such powers must in theory have
their origin in grants made by the king; they are franchises. With
feudal justice therefore we contrast 'franchisal' justice[304].

[Private jurisdiction in the Leges.]

Now if we go back to the Norman period we shall begin to doubt whether
the feudal principle--the principle which as a matter of course gives
the lord justiciary powers over his tenants--is of very ancient
origin[305]. The state of things that then existed should be revealed to
us by the Leges Henrici; for, if that book has any plan at all, it is a
treatise on the law of jurisdiction, a treatise on 'soke.' To this topic
the writer constantly returns after many digressions, and the leading
theme of his work is found in the following sentence:--'As to the soke
of pleas, there is that which belongs properly and exclusively to the
royal fiscus; there is that which it participates with others; there is
that which belongs to the sheriffs and royal bailiffs as comprised in
their ferms; there is that which belongs to the barons who have soke and
sake[306].' But, when all has been said, the picture that is left on our
minds is that of a confused conflict between inconsistent and indefinite
principles, and very possibly the compiler in giving us such a picture
is fulfilling the duty of a faithful portrayer of facts, though he does
not satisfy our demand for a rational theory.

[Soke in the _Leges Henrici_.]

On the one hand, it seems plain that there is a seignorial justice which
is not 'franchisal.' Certain persons have a certain 'soke' apart from
any regalities which may have been expressly conceded to them by the
king. But it is not clear that the legal basis of this soke is the
simple feudal principle stated above, namely, that jurisdiction springs
from the mere fact of tenure. An element of which we hear little in
later days, is prominent in the Leges, the element of rank or personal
status. 'The archbishops, bishops, earls and other 'powers'
(_potestates_) have sake and soke, toll, team and infangenethef in their
own lands[307].' Here the principle seems to be that men of a certain
rank have certain jurisdictional powers, and the vague term _potestates_
may include in this class all the king's barons. But then the
freeholding _vavassores_ have a certain jurisdiction, they have the
pleas which concern _wer_ and _wíte_ (that is to say 'emendable' pleas)
over their own men and their own property, and sometimes over another
man's men who have been arrested or attached in the act of
trespass[308]. Whatever else we may think of these _vavassores_, they
are not barons and probably they are not immediate tenants of the
king[309]. It is clear, however, that there may be a 'lord' with 'men'
who yet has no sake or soke over them[310]. We are told indeed that
every lord may summon his man to stand to right in his court, and that
if the man be resident in the remotest manor of the honour of which he
holds, he still must go to the plea[311]. Here for a moment we seem to
have a fairly clear announcement of what we call the simple feudal
principle, unadulterated by any element of personal rank; still our text
supposes that the lord in question is a great man, he has no mere manor
but an honour or several honours. On the whole, our law seems for the
time to be taking the shape that French law took. If we leave out of
sight the definitely granted franchisal powers, then we may say that a
baron or the holder of a grand fief has 'high justice,' or if that term
be too technical, a higher justice, while the vavassor has 'low justice'
or a lower justice. But in this province, as in other provinces, of
English law personal rank becomes of less and less importance. The rules
which would determine it and its consequences are never allowed to
become definite, and in the end a great generalization surmounts all
difficulties:--every lord has a certain civil justice over his tenants;
whatsoever powers go beyond this, are franchises.

[Kinds of soke in the _Leges_.]

As to the sort of jurisdiction that a lord of our Leges has, we can make
no statement in general terms. Such categories as 'civil' and 'criminal'
are too modern for use. We must of course except the pleas of the crown,
of which a long and ungeneralized list is set before us[312]. We must
except the pleas of the church. We must except certain pleas which
belong in part to the king and in part to the church[313]. Then we
observe that the justice of an archbishop, bishop or earl, probably the
justice of a baron also, extends as high as _infangenethef_, while that
of a vavassor goes no higher than such offences as are emendable. The
whole matter however is complicated by royal grants. The king may grant
away a demesne manor and retain not only 'the exclusive soke' (i.e. the
soke over the pleas of the crown), but also 'the common soke' in his
hand[314], and a great man may by purchase acquire soke (for example, we
may suppose, the hundredal soke) over lands that are not his own[315].
Then again, we may suspect that what is said of 'soke' in general does
not apply to any jurisdiction that a lord may exercise over his _servi_
and _villani_. As to the _servi_, very possibly the lord's right over
them is still conceived as proprietary rather than jurisdictional, while
for his _villani_ (_serf_ and _villein_ are not yet convertible terms)
the lord, whatever his rank may be, will probably hold a 'hallmoot[316]'
and exercise that 'common soke' which does not infringe the royal
preserves. On the whole, the law of the thirteenth century seems to
evolve itself somewhat easily out of the law of these Leges, the process
of development being threefold: (1) the lord's rank as bishop, abbot,
earl, baron, becomes unimportant; (2) the element of tenure becomes
all-important; the mere fact that the man holds land of the lord makes
him the lord's justiciable; thus a generalization becomes possible which
permits even so lowly a person as a burgess of Dunstable to hold a court
for his tenants[317]; (3) the obsolescence of the old law of _wíte_ and
_wer_, the growth of the new law of felony, the emergence in Glanvill's
book of the distinction between criminal and civil pleas as a grand
primary distinction, the introduction of the specially royal processes
of presentment and inquest, bring about a new apportionment of the field
of justice and a rational demarcation of feudal from franchisal powers.
Still when we see the lords, especially the prelates of the church,
relying upon prescription for their choicest franchises[318], we may
learn (if such a lesson be needed) that new theories could not master
all the ancient facts.

[The Norman kings and private jurisdiction.]

Whether the Conqueror or either of his sons would have admitted that any
justice could be done in England that was not his justice, we may fairly
doubt. They issued numerous charters which had no other object than that
of giving or confirming to the donees 'their sake and soke,' and, so far
as we can see, there is no jurisdiction, at least none over free men,
that is not accounted to be 'sake and soke.' Occasionally it is said
that the donees are to have 'their court.' However far the feudalization
of justice had gone either in Normandy or in England before the
Conquest, the Conquest itself was likely to conceal from view the
question whether or no all seignorial jurisdiction is delegated from
above; for thenceforward every lay tenant in chief, as no mere matter of
theory, but as a plain matter of fact, held his land by a title derived
newly and immediately from the king. Thus it would be easy for the king
to maintain that, if the lords exercised jurisdictional powers, they did
so by virtue of his grant, an expressed grant or an implied grant.
Gradually the process of subinfeudation would make the theoretical
question prominent and pressing, for certainly the Norman nobles
conceived that, even if their justice was delegated to them by the king,
no rule of law prevented them from appointing sub-delegates. If they
claimed to give away land, they claimed also to give away justice, and
no earnest effort can have been made to prevent their doing this[319].

[Sake and soke in Domesday Book.]

Returning from this brief digression, we must consider _sake_ and _soke_
as they are in Domesday Book. For a moment we will attend to the words
themselves[320]. Of the two _soke_ is by far the commoner; indeed we
hardly ever find _sake_ except in connexion with _soke_, and when we do,
it seems just an equivalent for _soke_. We have but an alliterative
jingle like 'judgment and justice[321].' Apparently it matters little or
nothing whether we say of a lord that he has _soke_, or that he has
_sake_, or that he has _soke_ and _sake_. But not only is _soke_ the
commoner, it is also the wider word; we can not substitute _sake_ for it
in all contexts. Thus, for example, we say that a man renders _soke_ to
his lord or to his lord's manor; also we say that a piece of land is a
_soke_ of such and such a manor; no similar use is made of _sake_.

[Meaning of _sake_.]

Now as a matter of etymology _sake_ seems the easier of the two words.
It is the Anglo-Saxon _sacu_, the German _Sache_, a thing, a matter, and
hence a 'matter' or 'cause' in the lawyer's sense of these terms, a
'matter' in dispute between litigants, a 'cause' before the court. It is
still in use among us, for though we do not speak of a sake between two
persons, we do speak of a man acting for another's sake, or for God's
sake, or for the sake of money[322]. In Latin therefore _sake_ may be
rendered by _placitum_:--'Roger has sake over them' will become
'Rogerius habet placita super eos[323]'; Roger has the right to hold
plea over them. Thus easily enough _sake_ becomes the right to have a
court and to do justice.

[Meaning of _soke_.]

As to _soke_, this has a very similar signification, but the route by
which it attains that signification is somewhat doubtful. We must start
with this that _soke_, _socna_, _soca_, is the Anglo-Saxon _sócn_ and
has for its primary meaning a _seeking_. It may become connected with
justice or jurisdiction by one or by both of two ways. One of these is
explained by a passage in the Leges Henrici which says that the king
has certain causes or pleas 'in socna i.e. quaestione sua.' The king has
certain pleas within his investigation, or his right to investigate. A
later phrase may help us:--the king is entitled to 'inquire of, hear and
determine' these matters[324]. But the word might journey along another
path which would lead to much the same end. It means seeking, following,
suing, making suit, _sequi_, _sectam facere_. The duty known as _soca
faldae_ is the duty of seeking the lord's fold. Thus _soca_ may be the
duty of seeking or suing at the lord's court and the correlative right
of the lord to keep a court and exact suit. Without denying that the
word has traversed the first of the two routes, the route by way of
'investigation'--in the face of the Leges Henrici we can hardly deny
this--we may confidently assert that it has traversed the second, the
route by way of 'suit.' There are several passages which assure us that
_soke_ is a genus of which _fold-soke_ is a species. Thus:--'Of these
men Peter's predecessor had fold-soke and commendation and Stigand had
the other soke[325].' In a document which is very closely connected with
the great survey we find what seems to be a Latin translation of our
word. The churches of Worcester and Evesham were quarrelling about
certain lands at Hamton. Under the eye of the king's commissioners they
came to a compromise, which declared that the fifteen hides at Hamton
belonged to the bishop of Worcester's hundred of Oswaldslaw and ought to
pay the king's geld and perform the king's services along with the
bishop and ought 'to seek the said hundred for pleading':--_requirere ad
placitandum_, this is the main kind of 'seeking' that _soke_
implies[326]. If we look back far enough in the Anglo-Saxon dooms,
there is indeed much to make us think that the act of seeking a lord and
placing oneself under his protection, and the consequences of that act,
the relation between man and lord, the fealty promised by the one, the
warranty due from the other, have been known as _sócn_[327]. If so, then
there may have been a time when commendation and soke were all one. But
this time must be already ancient, for although we do not know what
English word was represented by _commendatio_, still there is no
distinction more emphatically drawn by Domesday Book than that between
_commendatio_ and _soca_.

[Soke as jurisdiction.]

Now when we meet with _soca_ in the Leges Henrici we naturally construe
it by some such terms as 'jurisdiction,' 'justice,' 'the right to hold a
court.' We have seen that the author of that treatise renders it by the
Latin _quaestio_. We also meet the following phrases which seem clear
enough:--'Every cause shall be determined in the hundred, or in the
county, or in the hallmoot of those who have soke, or in the courts of
the lords[328]'; '... according to the soke of pleas, which some have in
their own land over their own men, some over their own men and
strangers, either in all causes or in some causes[329]': ... 'grithbrice
or hámsócn or any of those matters which exceed their soke and
sake[330]': 'in capital causes the soke is the king's[331].' So again
our author explains that though a baron has soke this will not give him
a right to justice over himself; no one, he says, can have his own
forfeiture; no one has a soke of impunity:--'nullus enim socnam habet
impune peccandi[332].' The use that Domesday Book makes of the word may
not be quite so clear. Sometimes we are inclined to render it by _suit_,
in particular when fold-soke is contrasted with 'other soke.' But very
generally we must construe it by _justice_ or by _justiciary rights_,
though we must be careful not to introduce the seignorial court where it
does not exist, and to remember that a lord may be entitled to receive
the wites or fines incurred by his criminous men without holding a court
for them. Those men may be tried and condemned in a hundred court, but
the wite will be paid to their lord. Then the word is applied to tracts
of land. A tract over which a lord has justiciary power, or a
wite-exacting power, is his _soke_, and very often his _soke_ is
contrasted with those other lands over which he has rights of a more
definitely proprietary kind. But we must turn from words to law.

[Seignorial justice before the Conquest.]

Already before the Conquest there was plenty of seignorial justice in
England. The greatest of the Anglo-Saxon lords had enjoyed wide and high
justiciary rights. Naturally it is of the rights of the churches that we
hear most, for the rights that they had under King Edward they still
claim under King William. Foremost among them we may notice the church
of Canterbury. On the great day at Penenden Heath, Lanfranc proved that
throughout the lands of his church in Kent the king had but three
rights; all other justice was in the hands of the archbishop[333]. In
Warwickshire the Archbishop of York has soke and sake, toll and team,
church-scot and all other 'forfeitures' save those four which the king
has throughout the whole realm[334]. These four forfeitures are probably
the four reserved pleas of the crown that are mentioned in the laws of
Cnut--_mundbryce_, _hámsócn_, _forsteal_ and _fyrdwíte_[335]. But even
these rights though usually reserved to the king may have been made over
to the lord. In Yorkshire neither king nor earl has any 'custom' within
the lands of St. Peter of York, St. John of Beverley, St. Wilfrid of
Ripon, St. Cuthbert of Durham and the Holy Trinity. We are asked
specially to note that in this region there are four royal highways,
three by land and one by water where the king claims all forfeitures
even when they run through the land of the archbishop or of the
earl[336]. Within his immense manor of Taunton the Bishop of Winchester
has pleas of the highest class, and three times a year without any
summons his men must meet to hold them[337]. In Worcestershire seven of
the twelve hundreds into which the county is divided are in the heads of
four great churches; Worcester has three, Westminster two, Evesham one,
Pershore one. Westminster holds its lands as freely as the king held
them in his demesne; Pershore enjoys all the pleas of the free men; no
sheriff can claim anything within the territory of St. Mary of
Worcester, neither in any plea, nor in any other matter[338]. In East
Anglia we frequently hear of the reserved pleas of the crown. In this
Danish district they are accounted to be six in number; probably they
are _griðbrice_, _hámsócn_, _fihtwíte_ and _fyrdwíte_, outlaw's-work
and the receipt of outlaws[339]. Often we read how over the men of some
lord the king and the earl have 'the six forfeitures,' or how 'the soke
of the six forfeitures' lies in some royal manor[340]. But then there is
a large tract in which these six forfeitures belong to St. Edmund; some
other lord may have sake and soke in a given parcel of that tract, but
the six forfeitures belong to St. Edmund; they are indeed 'the six
forfeitures of St. Edmund[341].' Other arrangements were possible. We
hear of men over whom St. Benet had three forfeitures[342]. The lawmen
of Stamford had sake and soke within their houses and over their men,
save geld, heriot, larceny and forfeitures exceeding 40 ores of
silver[343]. Certain burgesses of Romney serve the king on the sea, and
therefore they have their own forfeitures, save larceny, peace-breach
and forsteal, and these belong, not to the king, but to the
archbishop[344]. Sometimes King William will be careful to limit his
confirmation of a lord's sake and soke to the 'emendable forfeitures,'
the offences which can be paid for with money[345].

[Soke as a regality.]

That in the Confessor's day justiciary rights could only be claimed by
virtue of royal grants, that they did not arise out of the mere relation
between lord and man, lord and tenant, or lord and villein, seems to us
fairly certain. In the first place, as already said, soke is frequently
contrasted with commendation. In the second place, as we turn over the
pages of our record, we shall see it remarked of some man, who held a
manor in the days before the Conquest, that he had it with sake and
soke, and the remark is made in such a context that thereby he is
singled out from among his fellows[346]. Thus it is said of a little
group of villeins and sokemen in Essex that 'their lord had sake and
soke[347].' Not that we can argue that a lord has no soke unless it is
expressly ascribed to him. The surveyors have no great interest in this
matter. Sometimes such a phrase as 'he held it freely' seems to serve as
an equivalent for 'he held it with sake and soke[348].' It is said of
the Countess Judith, a lady of exalted rank, that she had a manse in
Lincoln without sake and soke[348]. Then we are told that throughout the
city of Canterbury the king had sake and soke except in the lands of the
Holy Trinity (Christ Church), St. Augustin, Queen Edith, and three
other lords[350]. We have a list of fifteen persons who had sake and
soke in the two lathes of Sutton and Aylesford[351], a list of
thirty-five persons who had sake and soke, toll and team in Lincolnshire
(it includes the queen, a bishop, three abbots and two earls[352]), and
a list of nineteen persons who had similar rights in the shires of Derby
and Nottingham[353]. Such lists would have been pointless had any
generalization been possible. Then in East Anglia it is common enough to
find that the men who are reckoned to be the _liberi homines_ of some
lord are under the soke of another lord or render their soke to the king
and the earl, that is to say, to the hundred court. Often enough it is
said somewhat pointedly that the men over whom the king and the earl
have soke are _liberi homines_, and this may for a moment suggest that
the lord as a matter of course has soke over such of his men as are not
ranked as 'free men'; possibly it may suggest that freedom in this
context implies subjection to a national as opposed to a seignorial
tribunal[354]. But on the one hand a lord often enough has soke over
those who are distinctively 'free men[355],' while on the other hand, as
will be explained below, he has not the soke over his sokeman[356].

[Soke over villeins.]

But we must go further and say that the lord has not always the soke
over his villeins. This is a matter of much importance. An entry
relating to a manor in Suffolk seems to put it beyond doubt:--In the
hundred and a half of Sanford Auti a thegn held Wenham in King Edward's
time for a manor and three carucates of land; there were then nine
_villani_, four _bordarii_ and one _servus_ and there were two teams on
the demesne; Auti had the soke over his demesne and the soke of the
villeins was in Bercolt[357]. Now Bercolt, the modern Bergholt, was a
royal manor, the seat of a great court, which had soke over many men in
the neighbouring villages. To all seeming it was the court for the
hundred, or 'hundred-and-a-half,' of Sanford[358]. Here then we seem to
have villeins who are not under the soke of their lord but are the
justiciables of the hundred court. In another case, also from Suffolk,
it is said of the lord of a manor that he had soke 'only over the
demesne of his hall,' and this seems to exclude from the scope of his
justiciary rights the land held by thirty-two villeins and eight
bordiers[359]. We may find the line drawn at various places. Not very
unfrequently in East Anglia a lord has the soke over those men who are
bound to his sheep-fold, while those who are 'fold-worthy' attend the
hundred court[360]. In one case a curious and instructive distinction is
taken:--'In Farwell lay in King Edward's day the sake and soke of all
who had less than thirty acres, but of all who had thirty acres the soke
and sake lay in the hundred[361].' In this case the line seems to be
drawn just below the virgater, no matter the legal class to which the
virgater belongs. To our thinking it is plain enough that many a
_manerium_ of the Confessor's day had no court of its own. As we shall
see hereafter, the manors are often far too small to allow of our
endowing each of them with a court. When of a Cheshire manor we hear
that 'this manor has its pleas in its lord's hall' we are being told of
something that is exceptional[362]. In the thirteenth century no one
would have made such a remark. In the eleventh the _halimote_ or
_hall-moot_ looks like a novelty.

[Private soke and hundredal soke.]

Seignorial justice is as yet very closely connected with the general
scheme of national justice. Frequently the lord who has justice has a
hundred. We remember how seven of the twelve hundreds of Worcestershire
are in the hands of four great churches[363]. St. Etheldreda of Ely has
the soke of five and a half hundreds in Suffolk[364]. In Essex Swain had
the half-hundred of Clavering, and the pleas thereof brought him in
25_s._ a year[365]. In Nottinghamshire the Bishop of Lincoln had all the
customs of the king and the earl throughout the wapentake of
Newark[366]. The monks of Battle Abbey claimed that the sake and soke of
twenty-two hundreds and a half and all royal 'forfeitures' were annexed
to their manor of Wye[367]. But further--and this deserves
attention--when the hundredal jurisdiction was not in the hands of some
other lord, it was conceived as belonging to the king. The sake and soke
of a hundred or of several hundreds is described as 'lying in,' or being
annexed to, some royal manor and it is farmed by the farmer of that
manor. Oxfordshire gives us the best example of this. The soke of four
and a half hundreds belongs to the royal manor of Bensington, that of
two hundreds to Headington, that of two and a half to Kirtlington, that
of three to Upton, that of three to Shipton, that of two to Bampton,
that of two to Bloxham and Adderbury[368]. What we see here we may see
elsewhere also[369]. If then King William gives the royal manor of Wye
to his newly founded church of St. Martin in the Place of Battle, the
monks will contend that they have obtained as an appurtenance the
hundredal soke over a large part of the county of Kent[370].

[Hundredal and manorial soke.]

The law seems as yet, if we may so speak, unconscious of the fact that
underneath or beside the hundredal soke a new soke is growing up. It
seems to treat _the_ soke over a man or over a piece of land as an
indivisible thing that must 'lie' somewhere and can not be in two places
at once. It has indeed to admit that while one lord has the soke, the
king or another lord may have certain reserved and exalted
'forfeitures,' the three forfeitures or the four or the six, as the case
may be[371]; but it has no classification of courts. The lord's court,
if it be not the court of an ancient hundred, is conceived as the court
of a half-hundred, or of a quarter of a hundred[372], or as the court of
a district that has been carved out from a hundred[373]. Thus Stigand
had the soke of the half-hundred of Hersham, save Thorpe which belonged
to St. Edmund, and Pulham which belonged to St. Etheldreda[374]; thus
also the king had the soke of the half-hundred of Diss, except the land
of St. Edmund, where he shared the soke with the saint, and except the
lands of Wulfgæt and of Stigand[375]. But it is impossible to maintain
this theory. The hundred is becoming full of manors, within each of
which a lord is exercising or endeavouring to exercise a soke over all,
or certain classes, of his men. It is possible that in Lincolnshire we
see the beginnings of a differentiating process; we meet with the word
_frisoca_, _frigsoca_, _frigesoca_. Whether this stands for 'free
soken,' or, as seems more likely, for 'frið soken,' soke in matters
relating to the peace, it seems to mark off one kind of soke from other
kinds[376]. We have to remember that in later days the relation of the
manorial to the hundredal courts is curious. In no accurate sense can we
say that the court of the manor is below the court of the hundred. No
appeal, no complaint of false judgment, lies from the one to the other;
and yet, unless the manor enjoys some exceptional privilege, it is not
extra-hundredal and its jurisdiction in personal causes is over-lapped
by the jurisdiction of the hundred court: the two courts arise from
different principles[377]. In Domesday Book the feudal or tenurial
principle seems still struggling for recognition. Already the Norman
lords are assuming a soke which their _antecessores_ did not enjoy[378].
As will be seen below, they are enlarging and consolidating their manors
and thereby rendering a manorial justice possible and profitable.
Whether we ought to hold that the mere shock and jar of conquest and
dispossession was sufficient to set up the process which covered our
land with small courts, or whether we ought to hold that an element of
foreign law worked the change, is a question that will never be answered
unless the Norman archives have yet many secrets to tell. The great
'honorial' courts of later days may be French; still it is hardly in
this region that we should look for much foreign law. It is in English
words that the French baron of the Conqueror's day must speak when he
claims justiciary rights. But that the process was far from being
complete in 1086 seems evident.

[The seignorial court.]

Many questions about the distribution and the constitution of the courts
we must leave unsolved. Not only does our record tell us nothing of
courts in unambiguous words, but it hardly has a word that will answer
to our 'court.' The term _curia_ is in use, but it seems always to
signify a physical object, the lord's house or the court-yard around it,
never an institution, a tribunal[379]. Almost all that we are told is
conveyed to us under the cover of such words as _sake_, _soke_,
_placita_, _forisfacturae_. We know that the Bishop of Winchester has a
court at Taunton, for his tenants are bound to come together thrice a
year to hold his pleas without being summoned[380]. This phrase--'to
hold his pleas'--seems to tell us distinctly enough that the suitors are
the doomsmen of the court. Then, again, we have the well-known story of
what happened at Orwell in Cambridgeshire. In that village Count Roger
had a small estate; he had land for a team and a half. This land had
belonged to six sokemen. He had borrowed three of them from Picot the
sheriff in order that they might hold his pleas, and having got them he
refused to return them[381]. That the court that he wished to hold was a
court merely for his land at Orwell is highly improbable, but he had
other lands scattered about in the various villages of the Wetherly
hundred, though in all his tenants amounted to but 14 villeins, 42
bordiers, 15 cottiers, and 4 serfs. We can not draw the inference that
men of the class known as sokemen were necessary for the constitution of
a court, for at the date of the survey there was no sokeman left in all
Roger's land in Cambridgeshire; the three that he borrowed from Picot
had disappeared or were reckoned as villeins or worse. Still he held a
court and that court had doomsmen. But we can not argue that every lord
who had soke, or sake and soke, had a court of his own. It may be that
in some cases he was satisfied with claiming the 'forfeitures' which his
men incurred in the hundred courts. This is suggested to us by what we
read of the earl's third penny.

[Soke and the earl's third penny.]

In the county court and in every hundred court that has not passed into
private hands, the king is entitled to but two-thirds of the proceeds of
justice and the earl gets the other third, except perhaps in certain
exceptional cases in which the king has the whole profit of some
specially royal plea. The soke in the hundred courts belongs to the king
and the earl. And just as the king's rights as the lord of a hundredal
court become bound up with, and are let to farm with, some royal manor,
so the earl's third penny will be annexed to some comital manor. Thus
the third penny of Dorsetshire was annexed to Earl Harold's manor of
Pireton[382], and the third penny of Warwickshire to Earl Edwin's manor
of Cote[383]. Harold had a manor in Herefordshire to which belonged the
third penny of three hundreds[384]; Godwin had a manor in Hampshire to
which belonged the third penny of six hundreds[385]; the third penny of
three Devonian hundreds belonged to the manor of Blackpool[386]. Now, at
least in some cases, the king could not by his grants deprive the earl
of his right; the grantee of soke had to take it subject to the earl's
third penny. Thus for the shires of Derby and Nottingham we have a list
of nineteen persons who were entitled to the king's two-pence, but only
three of them were entitled to the earl's penny[387]. The monks of
Battle declared that throughout many hundreds in Kent they were entitled
to 'the king's two-pence'; the earl's third penny belonged to Odo of
Bayeux[388]. And so of certain 'free men' in Norfolk it is said that
'their soke is in the hundred for the third penny[389].' A man commits
an offence; he incurs a _wíte_; two-thirds of it should go to his lord;
one-third to the earl: in what court should he be tried? The answer that
Domesday Book suggests by its silence is that this is a matter of
indifference; it does not care to distinguish between the right to hold
a court and the right to take the profits of justice. Just once the veil
is raised for a moment. In Suffolk lies the hundred of Blything; its
head is the vill of Blythburgh where there is a royal manor[390]. Within
that hundred lies the considerable town of Dunwich, which Edric holds as
a manor. Now in Dunwich the king has this custom that two or three men
shall go to the hundred court if they be duly summoned, and if they make
default they shall pay a fine of two ores, and if a thief be caught
there he shall be judged there and corporeal justice shall be done in
Blythburgh and the lord of Dunwich shall have the thief's chattels.
Apparently in this case the lord of Dunwich will see to the trying but
not to the hanging of the thief; but, at any rate, a rare effort is here
made to define how justice shall be done[391]. The rarity of such
efforts is very significant. Of course Domesday Book is not a treatise
on jurisdiction; still if there were other terms in use, we should not
be for ever put off with the vague, undifferentiated _soke_. On the
whole, we take it that the lord who enjoyed soke had a right to keep a
court if he chose to do so, and that generally he did this, though he
would be far from keeping a separate court for each of his little
manors; but if his possessions were small he may have contented himself
with attending the hundred court and claiming the fines incurred by his
men. Sometimes a lord seems to have soke only over his own demesne
lands[392]; in this case the wites that will come to him will be few. We
may in later times see some curious compromises. If a thief is caught on
the land of the Prior of Canterbury at Brook in Kent, the borhs-elder
and frank-pledges of Brook are to take him to the court of the hundred
of Wye, which belongs to the Abbot of Battle. Then, if he is not one of
the Prior's men, he will be judged by the hundred. But if he is the
Prior's man, then the bailiff of Brook will 'crave the Prior's court.'
The Prior's folk will then go apart and judge the accused, a few of the
hundredors going with them to act as assessors. If the tribunal thus
constituted cannot agree, then once more the accused will be brought
back into the hundred and will there be judged by the hundredors in
common. In this instance we see that even in Henry II.'s day the Prior
has not thoroughly extricated his court from the hundred moot[393].

[Soke and house-peace.]

It seems possible that a further hint as to the history of soke is given
us by certain entries relating to the boroughs. It will already have
become apparent that if there is soke over men, there is also soke over
land: if men 'render soke' so also acres 'render soke.' We can see that
a very elaborate web of rules is thus woven. One man strikes another.
Before we can tell what the striker ought to pay and to whom he ought
to pay it, we ought to know who had soke over the striker, over the
stricken, over the spot where the blow was given, over the spot where
the offender was attached or arrested or accused. 'The men of Southwark
testify that in King Edward's time no one took toll on the strand or in
the water-street save the king, and if any one in the act of committing
an offence was there challenged, he paid the amends to the king, but if
without being challenged he escaped under a man who had sake and soke,
that man had the amends[394].' Then we read how at Wallingford certain
owners of houses enjoyed 'the gafol of their houses, and blood, if blood
was shed there and the man was received inside before he was challenged
by the king's reeve, except on Saturday, for then the king had the
forfeiture on account of the market; and for adultery and larceny they
had the forfeiture in their houses, but the other forfeitures were the
king's[395].' We can not hope to recover the intricate rules which
governed these affairs, rules which must have been as intricate as those
of our 'private international law.' But the description of Wallingford
tells us of householders who enjoy the 'forfeitures' which arise from
crimes committed in their own houses, and a suspicion may cross our
minds that the right to these forfeitures is not in its origin a purely
jurisdictional or justiciary right. However, these householders are
great people (the Bishop of Salisbury, the Abbot of St Albans are among
them), their town houses are considered as appurtenant to their rural
manors and the soke over the manor comprehends the town house. And so
when we read how the twelve lawmen of Stamford had sake and soke within
their houses and over their own men 'save geld, and heriot, and
corporeal forfeitures to the amount of 40 ores of silver and larceny' we
may be reading of rights which can properly be described as
justiciary[396].

[Soke in houses.]

But a much more difficult case comes before us at Warwick[397]. We first
hear of the town houses that are held by great men as parts of their
manors, and then we hear that 'besides these houses there are in the
borough nineteen burgesses who have nineteen houses with sake and soke
and all customs.' Now we can not easily believe that the burgess's house
is a jurisdictional area, or that in exacting a mulct from one who
commits a crime in that house the burgess will be playing the magistrate
or exercising a right to do justice or take the profits of justice by
virtue of a grant made to him by the king. Rather we are likely to see
here a relic of the ancient 'house-peace[398].' If you commit an act of
violence in a man's house, whatever you may have to pay to the person
whom you strike and to the king, you will also have to make amends to
the owner of the house, even though he be but a ceorl or a boor, for you
have broken his peace[399]. The right of the burgess to exact a mulct
from one who has shed blood or committed adultery within his walls may
in truth be a right of this kind, and yet, like other rights to other
mulcts, it is now conceived as an emanation of sake and soke. If in the
eleventh century we hear but little of this householder's right, may
this not be because the householder has surrendered it to his lord, or
the lord has usurped it from the householder, and thus it has gone to
swell the mass of the lord's jurisdictional rights? At Broughton in
Huntingdonshire the Abbot of Ramsey has a manor with some sokemen upon
it 'and these sokemen say that they used to have legerwite
(fornication-fine), bloodwite and larceny up to fourpence, and above
fourpence the Abbot had the forfeiture of larceny[400].' Various
interpretations may be set upon this difficult passage. We may fashion
for ourselves a village court (though there are but ten sokemen) and
suppose that the commune of sokemen enjoyed the smaller fines incurred
by any of its members. But we are inclined to connect this entry with
those relating to Wallingford and to Warwick and to believe that each
sokeman has enjoyed a right to exact a sum of money for the breach of
his peace. The law does not clearly mark off the right of the injured
housefather from the right of the offended magistrate. How could it do
so? If you commit an act of violence you must pay a wite to the king.
Why so? Because you have wronged the king by breaking his peace and he
requires 'amends' from you. With this thought in our minds we may now
approach an obscure problem.

[Vendible soke.]

We have said that seignorial justice is regarded as having its origin in
royal grants, and in the main this seems true. We hardly state an
exception to this rule if we say that grantees of justice become in
their turn grantors. Not merely could the earl who had soke grant this
to one of his thegns, but that thegn would be said to hold the soke
'under' or 'of' the earl. Justice, we may say, was already being
subinfeudated[401]. But now and again we meet with much more startling
statements. Usually if a man over whom his lord has soke 'withdraws
himself with his land,' or 'goes elsewhere with his land,' the lord's
soke over that land 'remains': he still has jurisdictional rights over
that land though it is commended to a new lord. We may be surprised at
being very frequently told that this is the case, for we can hardly
imagine a man having power to take his land out of one sphere of justice
and to put it into another. But that some men, and they not men of high
rank, enjoyed this power seems probable. Of a Hertfordshire manor we
read: 'In this manor there were six sokemen, men of Archbishop Stigand,
and each had one hide, and they could sell, saving the soke, and one of
them could even sell his soke with the land[402].' This case may be
exceptional; there may have been a very unusual compact between the
archbishop and this egregiously free sokeman; but the frequency with
which we are told that on a sale the soke 'remains' does not favour this
supposition.

[Soke and mund.]

We seem driven to the conclusion that in some parts of the country the
practice of commendation had been allowed to interfere even with
jurisdictional relationships: that there were men who could 'go with
their land to what lord they chose' and carry with them not merely their
homage, but also their suit of court and their 'forfeitures.' This may
seem to us intolerable. If it be true, it tells us that the state has
been very weak; it tells us that the national scheme of justice has been
torn to shreds by free contract, that men have had the utmost difficulty
in distinguishing between property and political power, between personal
relationships and the magistracy to which land is subject. But unless we
are mistaken, the house-peace in its decay has helped to produce this
confusion. In a certain sense a mere ceorl has had what is now called a
soke,--it used to be called a _mund_ or _grið_--over his house and over
his loaf-eaters: that is to say, he has been entitled to have money paid
to him if his house-peace were broken or his loaf-eaters beaten. This
right he has been able to transfer to a lord. In one way or another it
has now come into the lord's hand and become mixed up with other rights.
In Henry I.'s day a lawyer will be explaining that if a villein receives
money when blood is shed or fornication is committed in his house, this
is because he has purchased these forfeitures from his lord[403]. This
reverses the order of history.

[Soke and jurisdiction.]

Such is the best explanation that we can give of the men who sell their
soke with their land. No doubt we are accusing Domesday Book of being
very obscure, of using a single word to express some three or four
different ideas. In some degree the obscurity may be due to the fact
that French justiciars and French clerks have become the exponents of
English law. But we may gravely doubt whether Englishmen would have
produced a result more intelligible to us. One cause of difficulty we
may perhaps remove. In accordance with common wont we have from time to
time spoken of seignorial jurisdiction. But if the word _jurisdiction_
be strictly construed, then in all likelihood there never has been in
this country any seignorial jurisdiction. It is not the part of the lord
to declare the law (_ius dicere_); 'curia domini debet facere iudicia et
non dominus[404].' From first to last this seems to be so, unless we
take account of theories that come to us from a time when the lord's
court was fast becoming an obsolete institution[405]. So it is in
Domesday Book. In the hundred court the sheriff presides; it is he that
appoints a day for the litigation, but the men of the hundred, the men
who come together 'to give and receive right,' make the judgments[406].
The tenants of the Bishop of Winchester 'hold the bishops' pleas' at
Taunton; Earl Roger borrows sokemen 'to hold his pleas[407].' Thus the
erection of a new court is no very revolutionary proceeding; it passes
unnoticed. If once it be granted that all the justiciary profits arising
from a certain group of men or tract of land are to go to a certain
lord, it is very much a matter of indifference to kings and sheriffs
whether the lord holds a court of his own or exacts this money in the
hundred court. Indeed, a sheriff may be inclined to say 'I am not going
to do your justice for nothing; do it yourself.' So long as every lord
will come to the hundred court himself or send his steward, the sheriff
will have no lack of capable doomsmen. Then the men of the lord's
precinct may well wish for a court at their doors; they will be spared
the long journey to the hundred court; they will settle their own
affairs and be a law unto themselves. Thus we ought not to say that the
lax use of the word _soke_ covers a confusion between 'jurisdiction' and
the profits of 'jurisdiction,' and if we say that the confusion is
between justice and the profits of justice, we are pointing to a
distinction which the men of the Confessor's time might regard as
somewhat shadowy. In any case their lord is to have their wites; in any
case they will get the judgment of their peers; what is left to dispute
about is mere geography, the number of the courts, the demarcation of
justiciary areas. We may say, if we will, that far-sighted men would not
have argued in this manner, for seignorial justice was a force mighty
for good and for ill; but it has not been proved to our satisfaction
that the men who ruled England in the age before the Conquest were
far-sighted. Their work ended in a stupendous failure.

[Soke and commendation.]

To the sake and soke of the old English law we shall have to return once
more in our next essay. Our discussion of the sake and soke of Domesday
Book was induced by a consideration of the various bonds which may bind
a man to a lord. And now we ought to understand that in the eastern
counties it is extremely common for a man to be bound to one lord by
commendation and to another lord by soke. Very often indeed a man is
commended to one lord, while the soke over him and over his land 'lies
in' some hundred court which belongs to another lord or is still in the
hands of the king and the earl. How to draw with any exactness the line
between the rights given to the one lord by the commendation and to the
other lord by the soke we can not tell. For instance, we find many men
who can not sell their land without the consent of a lord. This we may
usually regard as the result of some term in the bargain of
commendation; but in some cases it may well be the outcome of soke. Thus
at Sturston in Norfolk we see a free man of St Etheldreda of Ely; his
sake and soke belong to Archbishop Stigand's manor of Earsham (Sturston
and Earsham lie some five miles apart); now this man if he wishes to
give or sell his land must obtain the licence both of St Etheldreda and
of Stigand[408]. And so as regards the forfeiture of land. We are
perhaps accustomed to think of the escheat _propter delictum tenentis_
as having its origin in the ideas of homage and tenure rather than in
the justiciary rights of the lord. Howbeit there is much to make us
think that the right to take the land of one who has forfeited that land
by crime was closely connected with the right to other wites or
_forisfacturae_. 'Of all the thegns who hold land in the Well wapentake
of Lincolnshire, St Mary of Lincoln had two-thirds of every
_forisfactura_ and the earl the other third; and so of their heriots;
and so if they forfeited their land, two-thirds went to St Mary and the
remainder to the earl[409].' St Mary has not enfeoffed these thegns; but
by some royal grant she has two-thirds of the soke over them. In
Suffolk one Brungar held a small manor with soke. He was a 'free man'
commended to Robert Wimarc's son; but the sake and soke over him
belonged to St Edmund. Unfortunately for Brungar, stolen horses were
found in his house, and we fear that he came to a bad end. At any rate
he drops out of the story. Then St Edmund's Abbot, who had the sake and
soke, and Robert, who had the commendation, went to law, and right
gladly would we have heard the plea; but they came to some compromise
and to all seeming Robert got the land[410]. If we are puzzled by this
labyrinthine web of legal relationships, we may console ourselves with
the reflection that the Normans also were puzzled by it. They seem to
have felt the necessity of attributing the lordship of land to one lord
and one only (though of course that lord might have another lord above
him), of consolidating soke with commendation, homage with justice, and
in the end they brought out a simple and symmetrical result, albeit to
the last the relation of seignorial to hundredal justice is not to be
explained by any elegant theory of feudalism.

[Sokemen and free men.]

Yet another problem shall be stated, though we have little hope of
solving it. The writ, or rather one of the writs, which defined the
scope of the survey seems to have spoken of _liberi homines_ and
_sochemanni_ as of two classes of men that were to be distinguished from
each other. In Essex, Suffolk and Norfolk this distinction is often
drawn. In one and the same manor we shall find both 'free men' and
sokemen[411]; we may even hear of sokemen who formerly were 'free
men[412].' But the import of this distinction evades us. Sometimes it is
said of sokemen that they 'hold freely[413].' We read that four sokemen
held this land of whom three were free, while the fourth had one hide
but could not give or sell it[414]. This may suggest that the principle
of the division is to be found in the power to alienate the land, to
'withdraw' with the land to another lord[415]. There may be truth in the
suggestion, but we can not square it with all our cases[416]. Often
enough the 'free man' can not sell without the consent of his lord[417].
We have just met with a 'free man' who had to obtain the consent both of
the lord of his commendation and of the lord of his soke[418]. On the
other hand, the sokeman who can sell without his lord's leave is no rare
being[419], and it was of a sokeman that we read how he could sell, not
only his land, but also his soke[420].

[Difference between 'free men' and sokemen.]

Again, we dare not say that while the 'free man' is the justiciable of a
national court, the soke over the sokeman belongs to his lord. Neither
side of this proposition is true. Very often the soke over the 'free
man' belongs to a church or to some other lord[421], who may or may not
be his lord by commendation[422]. Very often the lord has not the soke
over his sokemen. This may seem a paradox, but it is true. We make it
clearer by saying that you may have a man who is your man and who is a
sokeman, but yet you have no soke over him; his soke 'lies' or 'is
rendered' elsewhere. This is a common enough phenomenon, but it is apt
to escape attention. When we are told that a certain English lord had a
sokeman at a certain place, we must not jump to the conclusion that he
had soke over that man of his. Thus in Hertfordshire Æthelmær held a
manor and in it there were four sokemen; they were, we are told, his
_homines_: but over two of them the king had sake and soke[423]. Unless
we are greatly mistaken, the soke of many of the East Anglian sokemen,
no matter whose men they were, lay in the hundred courts. This prevents
our saying that a sokeman is one over whom his lord has soke, or one who
renders soke to his lord. We may doubt whether the line between the
sokemen and the 'free men' is drawn in accordance with any one
principle. Not only is freedom a matter of degree, but freedom is
measured along several different scales. At one time it is to the power
of alienation or 'withdrawal' that attention is attracted, at another to
the number or the kind of the services and 'customs' that the man must
render to his lord. When we see that in Lincolnshire there is no class
of 'free men' but that there are some eleven thousand sokemen, we shall
probably be persuaded that the distinction drawn in East Anglia was of
no very great importance to the surveyors or the king. It may have been
a matter of pure personal rank. These _liberi homines_ may have enjoyed
a wergild of more than 200 shillings, for in the Norman age we see
traces of a usage which will not allow that any one is 'free' if he is
not noble[424]. But perhaps when the Domesday of East Anglia has been
fully explored, hundred by hundred and vill by vill, we shall come to
the conclusion that the 'free men' of one district would have been
called sokemen in another district[425].

[Holdings of the sokemen.]

Some of these sokemen and 'free men' had very small tenements. Let us
look at a list of tenants in Norfolk. 'In Carleton were 2 free men with
7 acres. In Kicklington were 2 free men with 2 acres. In Forncett 1 free
man with 2 acres. In Tanaton 4 free men with 4 acres. In Wacton 2 free
men with 1-1/2 acres. In Stratton 1 free man with 4 acres. In Moulton 3
free men with 5 acres. In Tibenham 2 free men with 7 acres. In Aslacton
1 free man with 1 acre[426].' These eighteen free men had but sixteen
oxen among them. We think it highly probable that in the survey of East
Anglia one and the same free man is sometimes mentioned several times;
he holds a little land under one lord, and a little under another lord;
but in all he holds little. Then again, we see that these small freemen
often have a few bordiers or even a few free men 'below them[427].' And
then we observe that, while some of them are spoken of as having
belonged to the manors of their lords, others are reported to have had
manors of their own.


FOOTNOTES:

  [304] Hist. Eng. Law, i. 558. The terms here used were adopted when
        the Introduction to the Selden Society's Select Pleas in
        Manorial Courts (1888) was being written. M. Esmein in his
        Cours d'histoire du droit français, ed. 2 (1895), p. 259, has
        insisted on the same distinction but has used other and
        perhaps apter terms. According to him 'la justice rendue par
        les seigneurs' (my seignorial justice) is either 'la justice
        seigneuriale' (my franchisal justice) or 'la justice féodale'
        (my feudal justice).

  [305] See Liebermann, Leges Edwardi, p. 88.

  [306] Leg. Hen. 9, § 9.

  [307] Leg. Henr. 20 § 2.

  [308] Leg. Henr. 27.

  [309] Hist. Eng. Law, i. 532.

  [310] Leg. Henr. 57 § 8. Cf. 59 § 19.

  [311] Leg. Henr. 55.

  [312] Leg. Henr. 10 § 1.

  [313] Leg. Henr. 11 § 1. This explains the 'participatio' of 9 § 9.

  [314] Leg. Henr. 19.

  [315] Leg. Henr. 20 § 2.

  [316] Leg. Henr. 9 § 4; 20 § 2; 57 § 8; 78 § 2.

  [317] Hist. Eng. Law, i. 574.

  [318] Hist. Eng. Law, i. 571.

  [319] See e.g. Geoffrey Clinton for Kenilworth, Monast. vi. 221:
        'Concedo ... ut habeant curiam suam ... ita libere ... sicut
        ego meam curiam ... ex concessu regis melius et firmius
        habeo.' Robert of Ouilly for Osney, ibid. p. 251: 'Volo ...
        quod habeant curiam ipsorum liberam de suis hominibus de
        omnimodis transgressionibus et defaltis, et quieti sint tam
        ipsi quam eorum tenentes de omnimodis curiae meae sectis.'

  [320] See Liebermann, Leg. Edw. p. 91.

  [321] Thus in D.B. ii. 409 we find two successive entries, the 'in
        _saca_ regis et comitis' of the one, being to all seeming an
        equivalent for the 'in _soca_ regis et comitis' of the other.
        D. B. ii. 416: 'de omnibus habuit antecessor Rannulfi
        commendationem et _sacam_ excepto uno qui est in _soca_ S.
        Edmundi.' Ibid. ii. 391 b: 'liberi homines Wisgari cum _saca_
        ... liber homo ... sub Witgaro cum _soca_.' In the Inquisitio
        Eliensis (e.g. Hamilton, p. 109) _saca_ is sometimes used
        instead of _soca_ in the common formula 'sed soca remansit
        abbati.' In D. B. ii. 264 b, a scribe having written 'sed
        habet s_a_cam' has afterwards substituted an _o_ for the _a_;
        we have noted no other instance of such care.

  [322] Hist. Eng. Law, i. 566.

  [323] D. B. i. 184, Ewias.

  [324] Leg. Henr. 20 § 1. The author of Leg. Edw. Conf., c. 22, also
        attempts to connect soke with seeking, but his words are
        exceedingly obscure: 'Soche est quod si aliquis quaerit
        aliquid in terra sua, etiam furtum, sua est iustitia, si
        inventum sit an non.' On the whole we take this nonsense to
        mean that my right of soke is my right to do justice in case
        any one seeks (by way of legal proceedings) anything in my
        land, even though the accusation that he brings be one of
        theft, and even though the stolen goods have not been found on
        the thief. Already the word is a prey to the etymologist.

  [325] D. B. ii. 256.

  [326] Heming Cart. i. 75-6: 'quod illae 15 hidae inste pertinent ad
        Osuualdeslaue hundredum episcopi et debent cum ipso episcopo
        censum regis solvere et omnia alia servitia ad regem
        pertinentia et inde idem requirere ad placitandum.' Another
        account of the same transaction, ibid. 77, says 'et
        [episcopus] deraciocinavit socam et sacam de Hamtona ad suum
        hundred Osuualdeslauue quod ibi debent placitare et geldum et
        expeditionem et cetera legis servitia de illis 15 hidis secum
        debent persolvere.'

  [327] Schmid, Glossar. s. v. _sócen_. The word, it would seem, first
        makes its way into the vocabulary of the law as describing the
        act of seeking a sanctuary and the protection that a criminal
        gains by that act. A forged charter of Edgar for Thorney
        Abbey, Red Book of Thorney, Camb. Univ. Lib., f. 4, says that
        the word is a Danish word--'Regi vero pro consensu et eiusdem
        mercimonii licentia ac pro reatus emendatione quam Dani
        _socne_ nsitato nominant vocabulo, centum dedit splendidissimi
        auri mancusas.'

  [328] Leg. Henr. 9 § 4.

  [329] Ibid.

  [330] Ibid. 22.

  [331] Ibid. 20 § 3.

  [332] Ibid. 24.

  [333] Selden's Eadmer, p. 197; Bigelow, Placita Anglo-Norman. p. 7.

  [334] D. B. i. 238 b, Alvestone.

  [335] Cnut, II. 12. We may construe these terms by breach of the
        king's special peace, attacks on houses, ambush, neglect of
        the summons to the host. In Hereford, D. B. i. 179, the king
        is accounted to have three pleas, breach of his peace,
        hámfare, which is the same as hámsócn, and forsteal; and
        besides this he receives the penalty from a man who makes
        default in military service.

  [336] D. B. i. 298 b.

  [337] D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone,
        burgheristh, latrones, pacis infractio, hainfare, denarii de
        hundret, et denarii S. Petri; ter in anno teneri placita
        episcopi sine ammonitione; profectio in exercitum cum
        hominibus episcopi.' See also the English document, Kemble,
        Cod. Dipl. iv. p. 233. The odd word _burgheristh_ looks like a
        corrupt form of _burhgrið_ (the peace of the _burh_), or of
        _burhgerihta_ (burh-rights, borough-dues), which word occurs
        in the English document.

  [338] D. B. i. 172, 175.

  [339] Cnut II. 12, 13, 14. Perhaps when in other parts of England
        the pleas of the crown are reckoned to be but four, it is
        treated as self-evident that the outlaw falls into the king's
        hand, as also the man who harbours an outlaw. If _fihtwíte_ is
        the right word, we must suppose with Schmid (p. 586) that a
        _fihtwíte_ was only paid when there was homicide. A fine for
        mere fighting or drawing blood would not have been a reserved
        plea.

  [340] D. B. ii. 179 b: 'Et iste Withri habebat sacham et socam super
        istam terram et rex et comes 6 forisfacturas.' Ibid. 223: 'In
        Cheiunchala soca de 6 forisfacturis.'

  [341] D. B. ii. 413 b: 'socam et sacam praeter 6 forisfacturas S.
        Eadmundi.' Ibid. 373: 'S. Eadmundus 6 forisfacturas.' Ibid.
        384 b: 'Tota hec terra iacebat in dominio Abbatiae [de Eli] T.
        R. E. cum omni consuetudine praeter sex forisfacturas S.
        Eadmundi.'

  [342] D. B. ii. 244: 'sex liberi homines ... ex his habet S.
        Benedictus socam et de uno commendationem et de 24 tres
        forisfacturas.'

  [343] D. B. i. 336 b: 'praeter geld et heriete et forisfacturam
        corporum suorum de 40 oris argenti et praeter latronem.' Such
        a phrase as 'geld, heriot and thief' is instructive.

  [344] D. B. i. 4 b.

  [345] William I. for Ely, Hamilton, Inquisitio, p. xviii.: 'omnes
        alias forisfacturas quae emendabiles sunt.'

  [346] D. B. ii. 195: 'Super hos habuit T. R. E. Episcopus 6
        forisfacturas sed hundret nec vidit breve nec sigillum nec
        concessum Regis.'

  [347] D. B. ii. 34 b.

  [348] See e.g. D. B. i. 220.

  [349] D. B. i. 336: 'Rogerius de Busli habet unum mansum Sueni filii
        Suaue cum saca et soca. Judita comitissa habet unum mansum
        Stori sine saca et soca.'

  [350] D. B. i. 2.

  [351] D. B. i. 1 b.

  [352] D. B. i. 337.

  [353] D. B. i. 280 b.

  [354] D. B. ii. 185: 'Super omnes liberos istius hundreti [de
        Northerpingeham] habet Rex sacam et socam.' Ibid. 188 b: 'Rex
        et comes de omnibus istis liberis hominibus socam.' Ibid. 203:
        'Et de omnibus his liberis [Episcopi Osberni] soca in
        hundreto.'

  [355] D. B. ii. 210: 'Super omnes istos liberos homines habuit Rex
        Eadwardus socam et sacam, et postea Guert accepit per vim, sed
        Rex Willelmus dedit [S. Eadmundo] cum manerio socam et sacam
        de omnibus liberis Guert sicut ipse tenebat; hoc reclamant
        monachi.'

  [356] Below, p. 105.

  [357] D. B. ii. 425 b.

  [358] D. B. ii. 287, 287 b: 'Sanfort Hund. et dim.... Supradictum
        manerium scilicet Bercolt ... cum soca de hundreto et dimidio
        reddebat T. R. E. 24 lib.' On subsequent pages it is often
        said that the soke of certain persons or lands is in Bergholt.

  [359] D. B. ii. 408 b: 'Hagala tenuit Gutmundus sub Rege Edwardo pro
        manerio 8 car[ucatarum] terrae cum soca et saca super dominium
        hallae tantum. Tunc 32 villani ... 8 bordarii ... 10 servi.
        Semper 4 carucae in dominio. Tunc et post 24 carucae
        hominum.... Sex sochemanni eiusdem Gutmundi de quibus soca est
        in hundreto.'

  [360] D. B. ii. 216: 'De Redeham habebat Abbas socam super hos qui
        sequebantur faldam, et de aliis soca in hundreto.' Ibid. 129
        b: 'Super omnes istos qui faldam Comitis requirebant habebat
        Comes socam et sacam, super alios omnes Rex et Comes.' Ibid.
        194 b: 'In Begetuna tenuit Episcopus Almarus per emptionem T.
        R. E. cum soca et saca de Comite Algaro de bor[dariis] et
        sequentibus faldam 3 carucatas terrae.' Ibid. 350 b: 'habebat
        socam et sacam super hallam et bordarios.'

  [361] D. B. ii. 130 b.

  [362] D. B. i. 265 b: 'Hoc manerium habet suum placitum in aula
        domini sui.'

  [363] Above, p. 88.

  [364] D. B. ii. 385 b.

  [365] D. B. ii. 46 b.

  [366] D. B. i. 283 b.

  [367] D. B. i. 11 b.; Chron. de Bello (Anglia Christiana Soc.) p.
        28; Battle Custumals (Camd. Soc.), p. 126.

  [368] D. B. i. 154 b.

  [369] D. B. 39 b, Hants: 'Huic manerio pertinet soca duorum
        hundredorum.' Ibid. 64 b, Wilts: 'In hac firma erant placita
        hundretorum de Cicementone et Sutelesberg quae regi
        pertinebant.' Ibid. ii. 185: 'Super omnes liberos istius
        hundreti habet rex sacam et socam.' Ibid. ii. 113 b.: 'Soca et
        sacha de Grenehou hundreto pertinet ad Wistune manerium Regis,
        quicunque ibi teneat, et habent Rex et Comes.'

  [370] See above, note 367.

  [371] Above, p. 88.

  [372] D. B. ii. 379: 'Super ferting de Almeham habet W. Episcopus
        socam et sacam.'

  [373] D. B. i. 184: 'Haec terra non pertinet ... ad hundredum. De
        hac terra habet Rogerius 15 sextarios mellis et 15 porcos
        quando homines sunt ibi et placita super eos.'

  [374] D. B. ii. 139 b.

  [375] D. B. ii. 114.

  [376] D. B. i. 340, 346, 357 b, 366, 368 b (ter). See also on f.
        344, 344 b, the symbol fð in the margin. The word friðsócn
        occurs in Æthelr. VIII. 1 and Cnut I. 2 § 3, where it seems to
        stand for a sanctuary, an asylum.

  [377] If one of _A_'s tenants is sued in a personal action in the
        hundred court he will have to answer there unless _A_ appears
        and 'claims his court.' This comes out plainly in certain
        rolls of the court of Wisbeach Hundred, which by the kind
        permission of the Bishop of Ely, I have examined. On a roll of
        33 Edw. I. we find Stephen Hamond sued for a debt; 'et super
        hoc venit Prior Elyensis et petit curiam suam; et Thomas
        Doreward petit curiam suam de dicto Stephano residente suo et
        tenente suo.' The prior's petition is refused on the ground
        that Stephen is not his tenant, and Doreward's petition is
        refused on the ground that it is unprecedented.

  [378] D. B. ii. 291: 'Et fuit in soca Regis. Postquam Briennus
        habuit, nullam consuetudinem reddidit in hundreto.' Ibid. 240:
        'Hoc totum tenuit Lisius pro uno manerio; modo tenet Eudo
        successor illius et in T. R. E. soca et saca fuit in hundreto;
        set modo tenet Eudo.'--Ibid. 240 b: 'Soca istius terre T. R.
        E. iacuit in Folsa Regis; modo habet Walterius
        [Giffardus].'--Ibid. 285 b: the hundred testified that in
        truth the King and Earl had the soke and sake in the
        Confessor's day, but the men of the vill say that Burchard
        likewise (_similiter_) had the soke of his free men as well as
        of his villeins.

  [379] D. B. i. 35 b: 'Duo fratres tenuerunt T. R. E.; unusquisque
        habuit domum suam et tamen manserunt in una curia.' Ibid. 103
        b: 'Ibi molendinum serviens curiae.' Ibid. 103: 'arabant et
        herciabant ad curiam domini.'

  [380] D. B. i. 87 b. Kemble, Cod. Dip., iv. p. 233: 'and þriwa secan
        gemot on 12 monðum.'

  [381] D. B. i. 193 b; Hamilton, Inquisitio, 77-8.

  [382] D. B. i. 75.

  [383] D. B. i. 238.

  [384] D. B. i. 186.

  [385] D. B. i. 38 b.

  [386] D. B. i. 101.

  [387] D. B. i. 280 b: 'Hic notantur qui habuerunt socam et sacam et
        thol et thaim et consuetudinem Regis 2 denariorum.... Horum
        omnium nemo habere potuit tercium denarium comitis nisi eius
        concessu et hoc quamdiu viveret, preter Archiepiscopum et Ulf
        Ferisc et Godeue Comitissam.'

  [388] See above, p. 92, note 367.

  [389] D. B. ii. 123 b: 'De istis est soca in hundreto ad tercium
        denarium.'

  [390] D. B. ii. 282.

  [391] D. B. ii. 312: 'Rex habet in Duneuuic consuetudinem hanc quod
        duo vel tres ibunt ad hundret si recte moniti fuerint, et si
        hoc non faciunt, forisfacti sunt de 2 oris, et si latro _ibi_
        fuerit captus _ibi_ judicabitur, et corporalis iusticia in
        Blieburc capietur, et sua pecunia remanebit dominio de
        Duneuuic.' It seems to us that the first _ibi_ must refer to
        Dunwich and therefore that the second does so likewise. Still
        the passage is ambiguous enough.

  [392] See above, p. 91.

  [393] Battle Custumals (Camden Soc.) 136. This is an interesting
        example, for it suggests an explanation of the common claim to
        hold a court 'outside' the hundred court (_petit curiam suam
        extra hundredum_). The claimant's men will go apart and hold a
        little court by themselves outside 'the four benches' of the
        hundred.

  [394] D. B. i. 32: 'et si quis forisfaciens ibi calumpniatus
        fuisset, Regi emendabat; si vero non calumpniatus abisset sub
        eo qui sacam et socam habuisset, ille emendam de reo haberet.'
        Compare with this the account of Guildford, Ibid. 30.

  [395] D. B. i. 56 b.

  [396] D. B. i. 336 b.

  [397] D. B. i. 238.

  [398] The passages from the dooms are collected by Schmid s. v.
        _Hausfriede_, _Feohtan_.

  [399] Ine, 6 § 3: 'If he fight in the house of a gavel-payer or
        boor, let him give 30 shillings by way of wite and 6 shillings
        to the boor.'

  [400] D. B. i. 204.

  [401] D. B. ii. 419 b: 'Cercesfort tenuit Scapius teinnus
        Haroldi.... Scapius habuit socam sub Haroldo.'--Ibid. 313:
        'Heroldus socam habuit et Stanuuinus de eo.... Idem Stanuuinus
        socam habuit de Heroldo.'

  [402] D. B. i. 142 b: 'et vendere potuerunt praeter socam; unus
        autem eorum etiam socam suam cum terra vendere poterat.' Comp.
        D. B. ii. 230: 'Huic manerio iacent 5 liberi homines ad socam
        tantum commend[ati] et 2 de omni consuetudine.'--Ibid. ii. 59:
        'In Cingeham tenuit Sauinus presbyter 15 acras ... in eadem
        villa tenuit Etsinus 15 acras.... Isti supradicti fuerunt
        liberi ita quod ipsi possent vendere terram cum soca et saca
        ut hundretus testatur.'--Ibid. ii. 40 b: 'et iste fuit ita
        liber quod posset ire quo vellet cum soca et sacha set tantum
        fuit homo Wisgari.'

  [403] Leg. Henr. 81 § 3: 'Quidam, villani qui sunt, eiusmodi
        leierwitam et blodwitam et huiusmodi minora forisfacta emerunt
        a dominis suis, vel quomodo meruerunt, de suis et in suos,
        quorum flet-gefoth vel overseunessa est 30 den.; cothseti 15
        den.; servi 6 (_al._ 5) den.' The _flet-gefoth_ seems to be
        the sum due for fighting in a man's _flet_ or house.

  [404] Munimenta Gildhallae, i. 66.

  [405] Hist. Eng. Law, i. 580-2.

  [406] D. B. ii. 424: 'Et dicunt etiam quod istam terram R[anulfus]
        calumpniavit supra Radulfum, et vicecomes Rogerius denominavit
        illis constitutum tempus m[odo] ut ambo adfuissent; Ranulfo
        adveniente defuit Radulfus et iccirco diiudicaverunt homines
        hundreti Rannulfum esse saisitum.'--Ibid. i. 165 b: 'Modo
        iacet in Bernitone hundredo iudicio hominum eiusdem
        hundredi.'--Ibid. i. 58 b: 'unde iudicium non dixerunt, sed
        ante Regem ut iudicet dimiserunt.'--Ibid. 182 b: 'In isto
        hundredo ad placita conveniunt qui ibi manent ut rectum
        faciant et accipiant.'

  [407] Above, p. 95.

  [408] D. B. ii. 186: 'In Sterestuna tenuit 1 liber homo S. Aldrede
        T. R. E. et Stigandi erat soca et saco in Hersam, set nec dare
        nec vendere poterat terram suam sine licentia S. Aldrede et
        Stigandi.'

  [409] D. B. ii. 376.

  [410] D. B. ii. 401 b: 'Eodem tempore fuerunt furati equi inventi in
        domo istius Brungari, ita quod Abbas cuius fuit soca et saca
        et Rodbertus qui habuit commendationem super istum venerunt de
        hoc furto ad placitum, et sicut hundret testatur discesserunt
        amicabiliter sine iudicio quod vidissed (_sic_) hundret.'

  [411] E.g. D. B. ii. 35 b: 'quas tenuerunt 2 sochemanni et 1 liber
        homo.'

  [412] D. B. ii. 28 b: 'Huic manerio iacent 5 sochemanni quorum 2
        occupavit Ingelricus tempore Regis Willelmi qui tune erant
        liberi homines.'

  [413] D. B. ii. 83: '3 sochemanni tenentes libere.'--Ibid. 88 b:
        'tunc fuit 1 sochemannus qui libere tenuit 1 virgatam.'--Ibid.
        58: 'in hac terra sunt 13 sochemanni qui libere tenent.'

  [414] D. B. i. 212 b, Bedf.: 'Hanc terram tenuerunt 4 sochemanni
        quorum 3 liberi fuerunt, quartus vero unam hidam habuit, sed
        nec dare nec vendere potuit.'

  [415] D. B. i. 35 b, 'Isti liberi homines ita liberi fuerunt quod
        poterant ire quo volebant.'--Ibid. ii. 187: '5 homines ... ex
        istis erant 4 liberi ut non possent recedere nisi dando 2
        solidos.'

  [416] Round, Feudal England, 34.

  [417] D. B. ii. 59 b, Essex: 'quod tenuerunt 2 liberi homines ...
        set non poterant recedere sine licentia illius Algari.'--Ibid.
        216 b, Norf.: 'Ibi sunt 5 liberi homines S. Benedicti
        commendatione tantum ... et ita est in monasterio quod nec
        vendere nec forisfacere pot[uerunt] extra ecclesia set soca
        est in hundredo.'--Ibid. i. 137 b, Herts: 'duo teigni ...
        vendere non potuerunt.'--Ibid. i. 30 b, Hants: 'Duo liberi
        homines tenuerunt de episcopo T. R. E. sed recedere cum terra
        non potuerunt.'

  [418] Above, p. 103, note 417.

  [419] E.g. D. B. i. 129 b: 'In hac terra fuerunt 5 sochemanni de 6
        hidis quas potuerunt dare vel vendere sine licentia dominorum
        suorum.'

  [420] Above, p. 100, note 402.

  [421] E.g. D. B. ii. 358: '7 liberos homines ... hi poterant dare
        vel vendere terram set saca et soca et commendatio et
        servitium remanebant Sancto [Edmundo].'

  [422] D. B. ii. 186: 'In Sterestuna tenuit unus liber homo S.
        Aldredae T. R. E. et Stigandi erat soca et saco in
        Hersam.'--Ibid. 139 b: 'habuit socam et sacam ... de
        commendatis suis.'

  [423] D. B. i. 141.

  [424] Liebermann, Leges Edwardi, p. 72. The most important passage
        is Leg. Edw. 12 § 4: 'Manbote in Danelaga de villano et de
        socheman 12 oras [= 20 sol.]: de liberis hominibus 3 marcas [=
        40 sol.].'

  [425] A study of the Hundred Rolls might prepare us for this result.
        One jury will call _servi_ those whom another jury would have
        called _villani_. See e.g. R. H. ii. 688 ff.

  [426] D. B. ii. 189 b, 190.

  [427] D. B. ii. 318: 'In Suttona tenet idem W. [de Cadomo] de R.
        Malet 2 liberos homines commendatos Edrico 61 acr[arum] et sub
        1 ex ipsis 5 liberi [_sic_] homines.'--Ibid. 321 b: 'In
        Caldecota 6 liberi homines commendati Leuuino de Bachetuna 74
        acr. et 7 liberi homines sub eis commend[ati] de 6 acr. et
        dim.'



§ 6. _The Manor._


[What is a manor?]

This brings us face to face with a question that we have hitherto
evaded. What is a manor? The word _manerium_ appears on page after page
of Domesday Book, but to define its meaning will task our patience.
Perhaps we may have to say that sometimes the term is loosely used, that
it has now a wider, now a narrower compass, but we can not say that it
is not a technical term. Indeed the one statement that we can safely
make about it is that, at all events in certain passages and certain
contexts, it is a technical term.

['Manor' a technical term.]

We may be led to this opinion by observing that in the description of
certain counties--Middlesex, Buckingham, Bedford, Cambridge, Huntingdon,
Derby, Nottingham, Lincoln, York--the symbol _M_ which represents a
manor, is often carried out into the margin, and is sometimes contrasted
with the _S_ which represents a soke and the _B_ which represents a
berewick. This no doubt has been done--though it may not have been very
consistently done--for the purpose of guiding the eye of officials who
will turn over the pages in search of manors. But much clearer evidence
is forthcoming. Throughout the survey of Essex it is common to find
entries which take such a form as this: 'Thurkil held it for two hides
and for one manor'; 'Brithmær held it for five hides and for one manor';
'Two free men who were brothers held it for two hides and for two
manors'; 'Three free men held it for three manors and for four hides and
twenty-seven acres[428].' In Sussex again the statement '_X_ tenuit pro
uno manerio[429]' frequently occurs. Such phrases as 'Four brothers held
it for two manors, Hugh received it for one manor[430],'--'These four
manors are now for one manor[431],'--'Then there were two halls, now it
is in one manor[432],'--'A certain thegn held four hides and it was a
manor[433],'--are by no means unusual[434]. A clerk writes 'Elmer
tenuit' and then is at pains to add by way of interlineation 'pro
manerio[435].' 'Eight thegns held this manor, one of them, Alwin, held
two hides for a manor; another, Ulf, two hides for a manor; another,
Algar, one hide and a half for a manor; Elsi one hide, Turkill one hide,
Lodi one hide, Osulf one hide, Elric a half-hide[436]'--when we read
this we feel sure that the scribe is using his terms carefully and that
he is telling us that the holdings of the five thegns last mentioned
were not manors. And then Hugh de Port holds Wallop in Hampshire 'for
half a manor[437].' But let us say at once that at least one rule of
law, or of local custom, demands a definition of a _manerium_. In the
shires of Nottingham and Derby a thegn who has more than six manors pays
a relief of £8 to the king, but if he has only six manors or less, then
a relief of 3 marks to the sheriff[438]. It seems clear therefore that
not only did the Norman rulers treat the term _manerium_ as an accurate
term charged with legal meaning, but they thought that it, or rather
some English equivalent for it, had been in the Confessor's day an
accurate term charged with legal meaning.

[The word _manerium_.]

The term _manerium_ seems to have come in with the Conqueror[439],
though other derivatives from the Latin verb _manere_, in particular
_mansa_, _mansio_, _mansiuncula_ had been freely employed by the scribes
of the land-books. But these had as a rule been used as representatives
of the English _hide_, and just for this reason they were incapable of
expressing the notion that the Normans desired to express by the word
_manerium_. In its origin that word is but one more name for a house.
Throughout the Exeter Domesday the word _mansio_ is used instead of the
_manerium_ of the Exchequer record, and even in the Exchequer record we
may find these two terms used interchangeably:--'Three free men belonged
to this _manerium_; one of them had half a hide and could withdraw
himself without the licence of the lord of the _mansio_[440].' If we
look for the vernacular term that was rendered by _manerium_, we are
likely to find it in the English _heal_. Though this is not connected
with the Latin _aula_, still these two words bearing a similar meaning
meet and are fused in the _aula_, _haula_, _halla_ of Domesday Book.

[Manor and hall.]

Now this term stands in the first instance for a house and can be
exchanged with _curia_. You may say that there is meadow enough for the
horses of the _curia_[441], and that there are three horses in the
_aula_[442]; you may speak indifferently of a mill that serves the
hall[443], or of the mill that grinds the corn of the court[444]. But
further, you may say that in Stonham there are 50 acres of the demesne
land of the hall in Creeting, or that in Thorney there are 24 acres
which belong to the hall in Stonham[445], or that Roger de Rames has
lands which once were in the hall of St Edmund[446], or that in the hall
of Grantham there are three carucates of land[447], or that Guthmund's
sake and soke extended only over the demesne of his hall[448]. We feel
that to such phrases as these we should do no great violence were we to
substitute 'manor' for 'hall.' Other phrases serve to bring these two
words very closely together. One and the same page tells us, first, that
Hugh de Port holds as one manor what four brothers held as two manors,
and then, that on another estate there is one hall though of old there
were two halls[449]:--these two stories seem to have the same point.
'Four brothers held this; there was only one hall there[450].' 'Two
brothers held it and each had his hall; now it is as one manor[451].'
'In these two lands there is but one hall[452].' 'Then there were two
halls; now it is in one manor[453].' 'Ten manors; ten thegns, each had
his hall[454].' 'Ingelric set these men to his hall.... Ingelric added
these men to his manor[455].'

[Difference between manor and hall.]

We do not contend that _manerium_ and _halla_ are precisely equivalent.
Now and again we shall be told of a _manerium sine halla_[456] as of
some exceptional phenomenon. The term _manerium_ has contracted a shade
of technical meaning; it refers, so we think, to a system of taxation,
and thus it is being differentiated from the term _hall_. Suppose, for
example, that a hall or manor has meant a house from which taxes are
collected, and that some one removes that house, houses being very
portable things[457]: 'by construction of law,' as we now say, there
still may be a hall or manor on the old site; or we may take advantage
of the new wealth of words and say that, though the hall has gone, the
manor remains: to do this is neater than to say that there is a
'constructive' hall where no hall can be seen. Then again, _manerium_ is
proving itself to be the more elastic of the two terms. We may indeed
speak of a considerable stretch of land as belonging to or even as
'being in' a certain hall, and this stretch may include not only land
that the owner of the hall occupies and cultivates by himself or his
servants, but also land and houses that are occupied by his
villeins[458]: still we could hardly talk of the hall being a league
long and a league wide or containing a square league. Of _manerium_,
however, we may use even such phrases as those just mentioned[459]. For
all this, we can think of no English word for which _manerium_ can
stand, save _hall_; _tún_, it is clear enough, was translated by
_villa_, not by _manerium_.

[Size of the _maneria_.]

If now we turn from words to look at the things which those words
signify, we shall soon be convinced that to describe a typical
_manerium_ is an impossible feat, for on the one hand there are enormous
_maneria_ and on the other hand there are many holdings called
_maneria_ which are so small that we, with our reminiscences of the law
of later days, can hardly bring ourselves to speak of them as manors. If
we look in the world of sense for the essence of the _manerium_ we shall
find nothing that is common to all _maneria_ save a piece of
ground--very large it may be, or very small--held (in some sense or
another) by a single person or by a group of co-tenants, for even upon a
house we shall not be able to insist very strictly. After weary
arithmetical labours we might indeed obtain an average manor; we might
come to the conclusion that the average manor contained so many hides or
acres, possibly that it included land occupied by so many sokemen,
villeins, bordiers, serfs; but an average is not a type, and the
uselessness of such calculations will soon become apparent.

[A large manor.]

We may begin by looking at a somewhat large manor. Let it be that of
Staines in Middlesex, which is held by St Peter of Westminster[460]. It
is rated at 19 hides but contains land for 24 plough-teams. To the
demesne belong 11 hides and there are 13 teams there. The villeins have
11 teams. There are:--

           3 villeins with a half-hide apiece.
           4 villeins with a hide between them.
           8 villeins with a half-virgate apiece.
          36 bordiers with 3 hides between them.
           1 villein with 1 virgate.
           4 bordiers with 40 acres between them.
          10 bordiers with 5 acres apiece.
           5 cottiers with 4 acres.
           8 bordiers with 1 virgate.
           3 cottiers with 9 acres.
          13 serfs.
          46 burgesses paying 40 shillings a year.

There are 6 mills of 64 shillings and one fish-weir of 6_s._ 8_d._ and
one weir which renders nothing. There is pasture sufficient for the
cattle of the vill. There is meadow for the 24 teams, and in addition to
this there is meadow worth 20_s._ a year. There is wood for 30 pigs;
there are 2 arpents of vineyard. To this manor belong four berewicks.
Altogether it is worth £35 and formerly it was worth £40.--This is a
handsome manor.--The next manor that is mentioned would be a fairer
specimen. It is Sunbury held by St Peter of Westminster[461]. It is
rated at 7 hides and there is land for but 6 teams. To the demesne
belong 4 hides and there is one team there. The villeins have 4 teams.
There are:--

               A priest with a half-virgate.
               8 villeins with a virgate apiece.
               2 villeins with a virgate.
               5 bordiers with a virgate.
               5 cottiers.
               1 serf.

There is meadow for 6 teams and pasture enough for the cattle of the
vill. Altogether it is worth £6 and has been worth £7. Within this one
county of Middlesex we can see wide variations. There are manors which
are worth £50 and there are manors which are not worth as many
shillings. The archbishop's grand manor at Harrow has land for 70
teams[462]; the Westminster manor of Cowley has land for but one team
and the only tenants upon it are two villeins[463].

[Enormous manors. Leominster.]

But far larger variations than these are to be found. Let us look at a
few gigantic manors. Leominster in Herefordshire had been held by Queen
Edith together with sixteen members[464]. The names of these members are
given and we may find them scattered about over a wide tract of
Herefordshire. In this manor with its members there were 80 hides. In
the demesne there were 30 teams. There were 8 reeves and 16 beadles and
8 radknights and 238 villeins, 75 bordiers and 82 male and female serfs.
These in all had 230 teams; so that with the demesne teams there were no
less than 260. Further there were Norman barons paying rents to this
manor. Ralph de Mortemer for example paid 15_s._ and Hugh de Lacy 6_s._
8_d._ It is let to farm at a rent of £60 and besides this has to support
a house of nuns; were it freed from this duty, it might, so thinks the
county, be let at a rent of £120. It is a most interesting manor, for we
see strong traces of a neat symmetrical arrangement:--witness the 16
members, 8 reeves, 8 radknights, 16 beadles; very probably it has a
Welsh basis[465]. But we have in this place to note that it is called a
manor, and for certain purposes it is treated as a single whole. For
what purposes? Well, for one thing, it is let to farm as a single whole.
This, however, is of no very great importance, for landlords and farmers
may make what bargains they please. But also it is taxed as a single
whole. It is rated at the nice round figures of 80 hides.

[Berkeley.]

[Tewkesbury.]

No less handsome and yet more valuable is Berkeley in
Gloucestershire[466]. It brought in a rent of £170 of refined money. It
had eighteen members which were dispersed abroad over so wide a field
that a straight line of thirty miles would hardly join their uttermost
points[467]. 'All the aforesaid members belong to Berkeley.' There were
29 radknights, 162 villeins, 147 bordiers, 22 coliberts, 161 male and
female serfs, besides some unenumerated men of the radknights; on the
demesne land were 54-1/2 teams; and the tenants had 192. Tewkesbury also
is a splendid manor. 'When it was all together in King Edward's time it
was worth £100,' though now but £50 at the most can be had from it and
in the turmoil of the Conquest its value fell to £12[468]. It was a
scattered unit, but still it was a unit for fiscal purposes. It was
reckoned to contain 95 hides, but the 45 which were in demesne were quit
of geld, and matters had been so arranged that all the geld on the
remaining 50 hides had, as between the lord and his various tenants,
been thrown on 35 of those hides. The 'head of the manor' was at
Tewkesbury; the members were dispersed abroad; but 'they gelded in
Tewkesbury[469].'

[Taunton.]

No list of great manors would be complete without a notice of
Taunton[470]. 'The bishop of Winchester holds Tantone or has a mansion
called Tantone. Stigand held it in King Edward's day and it gelded for
54 hides and 2-1/2 virgates. There is land for 100 teams, and besides
this the bishop in his demesne has land for 20 teams which never
gelded.' 'With all its appendages and customs it is worth £154. 12_d._'
'Tantone' then is valued as a whole and it has gelded as a whole. But
'Tantone' in this sense covers far more than the borough which bears
that name; it covers many places which have names of their own and had
names of their own when the survey was made[471]. We might speak of the
bishop of Exeter's manor of Crediton in Devon which is worth £75 and in
which are 264 villeins and 73 bordiers[472], or of the bishop of
Winchester's manor of Chilcombe in Hampshire where there are nine
churches[473]; but we turn to another part of England.

[Large manors in the midlands.]

If we wish to see a midland manor with many members we may look at
Rothley in Leicestershire[474]. The vill of Rothley itself is not very
large and it is separately valued at but 62_s._ But 'to this manor
belong the following members,' and then we read of no less than
twenty-one members scattered over a large area and containing 204
sokemen who with 157 villeins and 94 bordiers have 82 teams and who pay
in all £31. 8_s._ 1_d._ Their rents are thus reckoned as forming a
single whole. In Lincolnshire Earl Edwin's manor of Kirton had 25
satellites, Earl Morcar's manor of Caistor 16, the Queen's manor of
Horncastle 15[475]. A Northamptonshire manor of 27 hides lay scattered
about in six hundreds[476].

[Town-houses and berewicks attached to manors.]

It is common enough to see a town-house annexed to a rural manor.
Sometimes a considerable group of houses or 'haws' in the borough is
deemed to 'lie in' or form part of a manor remote from its walls. Thus,
to give but two examples, twelve houses in London belong to the Bishop
of Durham's manor of Waltham in Essex; twenty-eight houses in London to
the manor of Barking[477]. Not only these houses but their occupants are
deemed to belong to the manor; thus 80 burgesses in Dunwich pertain to
one of the Ely manors[478]. The berewick (_bereuita_)[479] also
frequently meets our eye. Its name seems to signify primarily a wick, or
village, in which barley is grown; but, like the barton (_bertona_) and
the grange (_grangia_) of later days, it seems often to be a detached
portion of a manor which is in part dependent on, and yet in part
independent of, the main body. Probably at the berewick the lord has
some demesne land and some farm buildings, a barn or the like, and the
villeins of the berewick are but seldom called upon to leave its limits;
but the lord has no hall there, he does not consume its produce upon the
spot, and yet for some important purposes the berewick is a part of the
manor. The berewick might well be some way off from the hall; a manor
in Hampshire had three berewicks on the mainland and two in the Isle of
Wight[480].

[Manor and soke.]

Then again in the north and east the manor is often the centre of an
extensive but very discrete territory known as its soke. One says that
certain lands are 'soke' or are 'the soke,' or are 'in the soke' of such
a manor, or that 'their soke belongs' to such a manor. One contrasts the
soke of the manor with the 'inland' and with the berewicks[481]. The
soke in this context seems to be the territory in which the lord's
rights are, or have been, of a justiciary rather than of a proprietary
kind[482]. The manor of the eastern counties is a discrete, a dissipated
thing. Far from lying within a ring fence, it often consists of a small
nucleus of demesne land and villein tenements in one village, together
with many detached parcels in many other villages, which are held by
'free men' and sokemen. In such a case we may use the term _manerium_
now in a wider, now in a narrower sense. In valuing the manor, we hardly
know whether to include or exclude these free men. We say that the manor
'with the free men' is worth so much[483], or that the manor 'without
the free men' is worth so much[484], that the manor is worth £10 and
that the free men pay 40 shillings[485], that Thurmot had soke over the
manor and over three of the free men while the Abbot of Ely had soke
over the other three[486].

[Minute manors.]

From one extreme we may pass to the other extreme. If there were huge
manors, there were also tiny manors. Let us begin in the south-west of
England. Quite common is the manor which is said to have land for but
one team; common also is the manor which is said to have land for but
half a team. This means, as we believe, that the first of these manors
has but some 120 acres of arable, while the second has but 60 acres or
thereabouts. 'Domesday measures' are, it is well known, the matter of
many disputes; therefore we will not wholly rely upon them, but will
look at some of these 'half-team' manors and observe how much they are
worth, how many tenants and how much stock they have upon them.

     (i) A Somersetshire manor[487]. Half the land is in demesne; half
     is held by 7 bordiers. The only plough beasts are 4 oxen on the
     demesne; there are 3 beasts that do not plough, 20 sheep, 7 acres
     of underwood, 20 acres of pasture. It is worth 12_s._, formerly it
     was worth 10_s._

     (ii) A Somersetshire manor[488]. A quarter of the land is in
     demesne; the rest is held by 2 villeins and 3 bordiers. The men
     have one team; apparently the demesne has no plough-oxen. No other
     animals are mentioned. There are 140 acres of wood, 41 acres of
     moor, 40 acres of pasture. It is worth 12_s._ 6_d._ and has been
     worth 20_s._

     (iii) A Somersetshire manor[489]. All the land, save 10 acres, is
     in demesne; 2 bordiers hold the 10 acres. There is a team on the
     demesne; there are 2 beasts that do not plough, 7 pigs, 16 sheep, 4
     acres of meadow, 7 of pasture. Value, 6_s._

     (iv) A Somersetshire manor[490]. The whole of the arable is in
     demesne; the only tenant is a bordier. There are 4 plough-oxen and
     11 goats and 7 acres of underwood. Value, 6_s._

     (v) A Devonshire manor[491]. To all seeming all is in demesne and
     there are no tenants. There are 4 plough-beasts, 15 sheep, 5 goats,
     4 acres of meadow. Value, 3_s._

     (vi) A Devonshire manor[492]. Value, 3_s._ All seems to be in
     demesne; we see no tenants and no stock.

We have been at no great pains to select examples, and yet smaller
manors may be found, manors which provide arable land for but two oxen.
Thus

     (vii) A Somersetshire manor[493] occupied by one villein. We read
     nothing of any stock. Value, 15_d._

     (viii) A Somersetshire manor[494] with 3 bordiers on it. Value,
     4_s._

     (ix) A Somersetshire manor[495] with one bordier on it. Value,
     30_d._

The lowest value of a manor in this part of the world is, so far as we
have observed, one shilling; that manor to all appearance was nothing
but a piece of pasture land[496]. Yet each of these holdings is a
_mansio_, and the Bishop of Winchester's holding at Taunton is a
_mansio_.

[Small manors in the east.]

From one side of England we will journey to the other side; from Devon
and Somerset to Essex and Suffolk. We soon observe that in describing
the holdings of the 'free men' and sokemen of this eastern district as
they were in King Edward's day, our record constantly introduces the
term _manerium_. A series of entries telling us how 'a free man held _x_
hides or carucates or acres' will ever and anon be broken by an entry
that tells us how 'a free man held _x_ hides or carucates or acres for a
manor'[497]. We soon give up counting the cases in which the manor is
rated at 60 acres. We begin counting the cases in which it is rated at
30 acres and find them numerous; we see manors rated at 24 acres, at 20,
at 15, at 12 acres. But this, it may be said, tells us little, for these
manors may be extravagantly underrated[498]. Let us then look at a few
of them.

     (i) In Espalle Siric held 30 acres for a manor; there were always 3
     bordiers and one team and 4 acres of meadow; wood for 60 pigs and
     13 beasts. It was then worth 10_s._[499]

     (ii) In Torentuna Turchetel a free man held 30 acres for a manor;
     there were always 2 bordiers and one team and a half. It is worth
     10_s._[500]

     (iii) In Bonghea Godric a free man held 30 acres for a manor; there
     were 1 bordier and 1 team and 2 acres of meadow. It was then worth
     8_s_.[501]

     (iv) Three free men and their mother held 30 acres for a manor.
     There was half a team. Value, 5_s._[502]

     (v) In Rincham a free man held 30 acres for a manor. There were
     half a team and one acre of meadow. Value, 5_s._[503]

     (vi) In Wenham Ælfgar a free man held 24 acres for a manor. Value,
     4_s._[504]

     (vii) In Torp a free man held 20 acres for a manor. One team; wood
     for 5 pigs. Value, 40_d._[505]

     (viii) In Tudenham Ælfric the deacon, a free man, held 12 acres for
     a manor. One team, 3 bordiers, 2 acres of meadow, 1 rouncey, 2
     beasts that do not plough, 11 pigs, 40 sheep. Value, 3_s._[506]

We are not speaking of curiosities; the sixty acre manor was very common
in Essex, the thirty acre manor was no rarity in Suffolk.

[The manor as a peasant's holding.]

Now it is plain enough that the 'lord' of such a manor,--or rather the
holder of such a manor, for there was little lordship in the case,--was
often enough a peasant, a tiller of the soil. He was under soke and
under commendation; commended it may be to one lord, rendering soke to
another. Sometimes he is called a sokeman[507]. But he has a manor.
Sometimes he has a full team, sometimes but half a team. Sometimes he
has a couple of bordiers seated on his land, who help him in his
husbandry. Sometimes there is no trace of tenants, and his holding is by
no means too large to permit of his cultivating it by his own labour and
that of his sons. No doubt in the west country even before the Conquest
these petty _mansiones_ or _maneria_ were being accumulated in the hands
of the wealthy. The thegn who was the _antecessor_ of the Norman baron,
sometimes held a group, a geographically discontinuous group, of petty
manors as well as some more substantial and better consolidated estates.
But still each little holding is reckoned a manor, while in the east of
England there is nothing to show that the nameless free men who held the
manors which are said to consist of 60, 40, 30 acres had usually more
than one manor apiece. When therefore we are told that already before
the Conquest England was full of manors, we must reply: Yes, but of what
manors[508]?

[Definition of a manor.]

Now were the differences between various manors a mere difference in
size and in value, a student of law might pass them by. Our notion of
ownership is the same whether it be applied to the largest and most
precious, or to the smallest and most worthless of things. But in this
case we have not to deal with mere differences in size or value. The
examples that we have given will have proved that few, if any,
propositions of legal import will hold good of all _maneria_. We must
expressly reject some suggestions that the later history of our law may
make to us. 'A manor has a court of its own':--this is plainly untrue.
To say nothing of extreme cases, of the smallest of the manors that we
have noticed, we can not easily believe that a manor with less than ten
tenants has a court of its own, yet the number of such manors is
exceedingly large. 'A manor has freehold tenants':--this of course we
must deny, unless we hold that the _villani_ are freeholders. 'A manor
has villein or customary tenants':--even this proposition, though true
of many cases, we can not accept. Not only may we find a manor the only
tenants upon which are _liberi homines_[509], but we are compelled to
protest that a manor need not have any tenants at all. 'A manor must
contain demesne land':--this again we can not believe. In one case we
read that the whole manor is being farmed by the villeins so that there
is nothing in demesne[510], while in other cases we are told that there
is nothing in demesne and see no trace of any recent change[511]. Thus,
one after another, all the familiar propositions seem to fail us, and
yet we have seen good reason to believe that _manerium_ has some exact
meaning. It remains that we should hazard an explanation.

[The manor and the geld.]

A manor is a house against which geld is charged. To the opinion that in
some way or another the definition of a manor is intimately connected
with the great tax we shall be brought by phrases such as the following:
'Richard holds Fivehide of the Earl which Brihtmær held in King Edward's
time for forty acres and for a manor[512].'--'Two free men who were
brothers, Bondi and Ælfric held it for two hides and for two
manors[513].' When we say that a man holds land 'as' or 'for' (_pro_)
forty acres, we mean that his holding, be its real size what it may, is
rated to the geld at forty acres. If we add the words 'and as (or for)
one manor,' surely we are still speaking of the geld. For one moment the
thought may cross our minds that, besides a tax on land, there has been
an additional tax on 'halls,' on houses of a certain size or value; but
this we soon dismiss as most unlikely. To raise but one out of many
objections: had there been such a house-tax, it would have left plain
traces of itself in those 'Geld Inquests' of the south-western counties
that have come down to us. Rather we regard the matter thus:--The geld
is a land-tax, a tax of so much per hide or carucate. In all likelihood
it has been assessed according to a method which we might call the
method of subpartitioned provincial quotas. The assumption has been made
that a shire or other large district contains a certain number of hides;
this number has then been apportioned among the hundreds of that shire,
and the number allotted to each hundred has been apportioned among the
vills of that hundred. The common result is that some neat number of
hides, five, ten or the like is attributed to the vill[514]. This again
has been divided between the holdings in that vill. Ultimately it is
settled that for fiscal purposes a given holding contains, or must be
deemed to contain, this or that number of hides, virgates, or acres.
Thus far the system makes no use of the _manerium_. But it now has to
discover some house against which a demand may be made for every
particular penny of geld. Despite the 'realism' of the system, it has to
face the fact that, after all, taxes must be paid by men and not by
land. Men live in houses. It seeks the tax-payer in his house. Now, were
all the occupiers of land absolute owners of the land that they
occupied, even were it true that every acre had some one person as its
absolute owner, the task would be simple. A schedule of five columns,
such we are familiar with, would set forth 'Owner's Name,' 'Place of
Residence,' 'Description of Geldable Property,' 'Hidage,' 'Amount due.'
But the occupier is not always the owner; what is more, there is no
absolute ownership. Two, three, four persons will be interested in the
land; the occupier will have a lord and that lord a lord; the occupier
may be a serf, a villein, a sokeman; there is commendation to be
considered and soke and all the infinite varieties of the power to
'withdraw' the land from the lord. Rude and hard and arbitrary lines
must be drawn. Of course the state will endeavour to collect the geld in
big sums. It will endeavour to make the great folk answer for the geld
which lies on any land that is in any way subject to their power; thus
the cost of collecting petty sums will be saved and the tax will be
charged on men who are solvent. The central power may even hold out
certain advantages to the lord who will become responsible for the geld
of his tenants or justiciables or commended men. The hints that we get
in divers counties that the lord's 'inland' has borne no geld seem to
point in this direction, though the arrangements about this matter seem
to have varied from shire to shire[515]. On the pipe rolls of a later
day we see that the geld charged against the magnates is often
'pardoned.' For one reason the king can not easily tax the rich; for
another he can not easily tax the poor; so he gets at the poor through
the rich. The small folk will gladly accept any scheme that will keep
the tax-collector from their doors, even though they purchase their
relief by onerous promises of rents and services. The great men, again,
may find advantage in such bargains; they want periodical rents and
services, and in order to obtain them will accept a certain
responsibility for occasional taxes. This process had gone very far on
the eve of the Conquest. Moreover the great men had enjoyed a large
liberty of paying their geld where they pleased, of making special
compositions with the king, of turning some wide and discrete territory
into a single geld-paying unit, of forming such 'manors' as Taunton or
Berkeley or Leominster.

[Classification of men for the geld.]

In King Edward's day, the occupiers of the soil might, so it seems to
us, be divided by the financier into three main classes. In the first
class we place the man who has a manor. He has, that is, a house at
which he is charged with geld. He may be a great man or a small, an earl
or a peasant; he may be charged at that house with the geld of a hundred
hides or with the geld of fifteen acres. In the second class we place
the villeins, bordiers, cottiers. The geld apportioned to the land that
they occupy is demanded from their lord at his manor, or one of his
manors. How he recoups himself for having to make this payment, that is
his concern; but he is responsible for it to the king, not as guarantor
but as principal debtor. But then, at least in the east and north, there
are many men who fall into neither of these classes. They are not
villeins, they are sokemen or 'free men'; but their own tenements are
not manors; they belong to or 'lie in' some manor of their lord. These
men, we think, can be personally charged with the geld; but they pay
their geld at their lord's hall and he is in some measure bound to exact
the payment.

[Proofs of connexion between the manor and the geld.]

Any thing that could be called a strict proof of this theory we can not
offer; but it has been suggested by many facts and phrases which we can
not otherwise explain. In the first place, our record seems to assume
that every holding either is a manor or forms part of a manor[516]. Then
we are told how lands 'geld' at or in some manor or at the _caput
manerii_. Thus lands which lie many miles away from Tewkesbury, but
which belong to the manor of Tewkesbury, 'geld in Tewkesbury[517].'
Sometimes the same information is conveyed to us by a phrase that
deserves notice. A piece of land is said to 'defend itself' in or at
some manor, or, which is the same thing, to have its _wara_ or render
its _wara_, that is to say, its defence, its answer to the demand for
geld, there[518]. 'In Middleton two sokemen had 16 acres of land and
they rendered their _wara_ in the said Middleton, but they could give
and sell their land to whom they pleased[519].' When we are told that
certain lands are _in warnode Drogonis_ or _in warnode Archiepiscopi_,
it is meant that the lands belong to Drogo or the Archbishop for the
purpose of 'defence' against the geld[520]. It is not sufficient that
land should be taxed, it must be taxed 'in' some place, which may be
remote from that in which, as a matter of physical fact, it lies[521].
One clear case of a free tenant paying his geld to his lord is put
before us:--'Leofwin had half a hide and could withdraw with his land
and he paid geld to his lord and his lord paid nothing[522].' Besides
this we have cases in which the lord enjoys the special privilege of
collecting the geld from his tenants and keeping it for his own
use[523]. A remarkable Kentish entry tells us that at Peckham the
archbishop had an estate which had been rated at six sullungs, and then
that 'of the land of this manor a certain man of the archbishop held a
half-sullung which in King Edward's day gelded with these six sullungs,
although being free land it did not belong to the manor save for the
purpose of the scot[524].' Here we have land so free that the one
connexion between it and the manor to which it is attributed consists in
the payment of geld--it gelds along with the other lands of the manor.
In the great lawsuit between the churches of Worcester and Evesham about
the lands at Hamton, the former contended that these lands should pay
their geld along with the other estates of the bishop[525].

[Land gelds in a manor.]

Let us observe the first question that the commissioners are to ask of
the jurors. What is the name of the _mansio_? Every piece of geldable
land is connected with some _mansio_, at which it gelds. Let us observe
how the commissioners and the jurors proceed in a district where the
_villae_ and the _mansiones_ or _maneria_ are but rarely coincident. The
jurors of the Armingford hundred of Cambridgeshire are speaking of their
country vill by vill. They come to the vill of Abington[526]. Abington,
they say, was rated at five hides. Of these five hides the king has a
half-hide; this lies in Litlington. Earl Roger has one virgate; this
lies in his manor of Shingay. Picot the sheriff has a half-virgate; this
lies and has always lain in Morden. In what sense important to the
commissioners or their master can a bundle of strips scattered about in
the fields of Abington be said to lie in Litlington, in Shingay, or in
Morden? We answer that it gelds there.

[Geld and hall.]

Hence the importance of the hall. It is the place where geld is demanded
and paid. A manor without a hall is a thing to be carefully noted,
otherwise some geld may be lost[527]. A man's land has descended to his
three sons: if 'there is only one hall,' but one demand for geld need be
made; if 'each has his hall,' there must be three separate demands. When
we are told that two brothers held land and that each had his house
(_domus_) though they dwelt in one court (_curia_), a nice problem is
being put before us:--Two halls, or one hall--Two manors or one
manor[528]?

[The petty manors.]

The petty _maneria_ of Suffolk, what can they be but holdings which geld
by themselves? The holders of them are not great men, they have no
tenants or just two or three bordiers; sometimes they can not 'withdraw'
their lands from their lords. But still they pay their own taxes at
their own houses.

[The lord and his man's taxes.]

In supposing that forces have been at work which tend to make the lord
responsible for the taxes of his men, we are not without a warrant in
the ancient dooms. 'If a king's thegn or a lord of land (_landrica_)
neglects to pay the Rome penny, let him forfeit ten half-marks, half to
Christ, half to the king. If a "townsman" withholds the penny, let the
lord of the land pay the penny and take an ox from the man, and if the
lord neglects to do this, then let Christ and the king receive the full
_bót_ of 12 ores[529].' The right of doing justice is also the duty of
doing justice. It is natural that the lord with soke should become a
tax-gatherer, and he will gladly guarantee the taxes if thereby he can
prevent the king's officers from entering his precinct and meddling with
his justiciables. At no time has the state found it easy to collect
taxes from the poor; over and over again it has been glad to avail
itself of the landlord's intermediation[530].

[Distinction between villeins and sokemen.]

Our theory that while the lord is directly and primarily responsible for
the geld of his villeins, he is but subsidiarily responsible for the
geld of those of his sokemen or 'free men' who are deemed to belong to
his manor, is founded in part on what we take to have been the wording
of King William's writ[531], in part on the form taken by the returns
made thereto. The writ draws a marked line between the villein and the
sokeman. The king wishes to know how much land each sokeman, each _liber
homo_, holds; he does not care that any distinction should be drawn
between the lord's demesne lands and the lands of the villeins. And, on
the whole, his commands are obeyed. A typical entry in the survey of
East Anglia will first describe in one mass the land held by the lord
and his villeins, will tell us how many carucates this land is rated at,
how many teams there are on the demesne, and how many the men have, then
it will enumerate sheep and pigs and goats, and then, as it were in an
appendix, it will add that so many sokemen belong to this manor and that
between them they hold so many carucates or acres[532]. In Suffolk even
the names of these humble tenants are sometimes recorded[533]. And then,
we have seen[534] that there is some doubt as to whether or no these men
are or are not to be reckoned as part of the manor for all purposes. We
have to say that the manor 'with the free men,' or 'without the free
men' is worth so much.

[The lord's subsidiary liability.]

After all, we are only supposing that the fashion in which the danegeld
was put in charge resembled in some of its main outlines the fashion in
which a very similar tax was put in charge under Richard I. In 1194 the
land-tax that was levied for the payment of the king's ransom seems to
have been assessed according to the hidage stated in Domesday Book[535].
Then in 1198 a new assessment was made. We are told that the king
ordained that every baron should with the sheriffs aid distrain his men
to pay the tax cast upon them, and that if, owing to the baron's
default, distresses were not made, then the amount due from the baron's
men should be seized from the baron's own demesne and he should be left
to recoup himself as best he could[536]. Now it is a liability of this
sort that we are venturing to carry back into the Confessor's day. The
lord is responsible to the state as principal, and indeed as sole,
debtor for so much of the geld as is due from his demesne land and from
the land of his _villani_, while as regards any lands of 'free men' or
sokemen which are attached to his manor, his liability is not primary
nor absolute; he is bound to take measures to make these men pay their
taxes; if he fails in this duty, then their taxes will become due from
his demesne[537].

[Manors distributed to the Frenchmen.]

When we read that in Nottinghamshire the relief of the thegn who had six
manors or less was three marks, while his who had more than six manors
was eight pounds[538], this may seem to hint that some inferior limit
was set to the size of the manor. If so, it was drawn at a very low
point in the scale of tenements. Possibly some general rule had
compelled all men who held less than a bovate or half-virgate to 'add'
themselves to the manor of some lord. But the Nottinghamshire rule is
rude and arbitrary. He who has seven houses against which geld is
charged is a big man. On the other hand, it is probable that the Norman
lords brought with them some notion, and not a very modest notion, of
what a reasonably sufficient _manerium_ should be. The king has in some
cases rewarded them by a promise of ten or twenty manors without
specifying very carefully what those manors are to be like. He has
promised Count Eustace a hundred manors[539]. Thus we would explain a
not uncommon class of entries:--'fourteen free men commended to Wulfsige
were delivered to Rainald to make up (_ad perficiendum_) this manor of
Carlington[540].'--'in Berningham a free man held 20 acres of land and
this was delivered to Walter Giffard to make up Letheringsett[541].'--
'Peter claims the land which belonged to seventeen free men as having
been delivered to him to make up this manor[542].'--'This land was
delivered to Peter to make up some, but his men do not know what,
manor[543].' The small 'free men' of the east have been 'added to'
manors to which they did not belong in King Edward's day. A few of the
free men of Suffolk still 'remain in the king's hand' ready to be
delivered out to complete the manors of their conquerors[544]. Here too
we may perhaps find the explanation of the entry which says that Hugh de
Port held Wallop 'for half a manor[545].' The king has promised him a
dozen or score of manors; and this estate at Wallop worth but fifteen
shillings a year, really no gentleman would take it for a manor.

[Summary.]

Such then is the best explanation that we can offer of the _manerium_ of
Domesday Book. About details we may be wrong, but that this term has a
technical meaning which is connected with the levy of the danegeld we
can not doubt. It loses that meaning in course of time because the
danegeld gives way before newer forms of taxation. It never again
acquires a technical meaning until the late days when retrospective
lawyers find the essence of a manor in its court[546].


FOOTNOTES:

  [428] D. B. ii. 21, 26, 37 b, 59 b.

  [429] D. B. i. 21.

  [430] D. B. i. 45.

  [431] D. B. i. 6 b.

  [432] D. B. i. 27.

  [433] D. B. i. 163.

  [434] So in the Exeter record, D. B. iv. 390: 'Tenuerunt 3 tegni pro
        4 mansionibus, et Robertus habet illas pro 1 mansione.'

  [435] D. B. i. 169 b. Similar interlineations in i. 98.

  [436] D. B. i. 148; on f. 149 is a similar case.

  [437] D. B. i. 45 b.

  [438] D. B. i. 280 b.

  [439] In several passages in D. B. the word seems to be _manerius_.

  [440] D. B. ii. 96 b: 'Huic manerio iacebant 3 liberi homines, unus
        tenuit dim. hidam et potuit abire sine licentia domini ipsius
        mansionis.'

  [441] D. B. i. 149, Wicombe.

  [442] D. B. ii. 38 b, Hersam.

  [443] D. B. i. 174 b, Poiwic.

  [444] D. B. i. 268, Gretford.

  [445] D. B. ii. 350 b.

  [446] D. B. ii. 263: 'sed fuerunt in aula S. Edmundi.'

  [447] D. B. i. 337 b.

  [448] D. B. ii. 408 b: 'cum soca et saca super dominium hallae
        tantum.'

  [449] D. B. i. 45, Wicheham, Werste.

  [450] D. B. i. 20, Waliland.

  [451] D. B. i. 11 b, Acres.

  [452] D. B. i. 26 b, Eldretune.

  [453] D. B. i. 27, Percinges.

  [454] D. B. i. 284 b, Ættune.

  [455] D. B. ii. 29 b, 30 b.

  [456] D. B. i. 307 b, Burghedurum; 308, Ternusc.

  [457] D. B. i. 63: 'Ipse quoque transportavit hallam et alias domos
        et pecuniam in alio manerio.'

  [458] D. B. i. 338 b: 'Ad huius manerii aulam pertinent Catenai et
        Usun 4 car. terrae ad geldum. Terra ad 8 carucas. Ibi in
        dominio 2 carucae et 20 villani et 15 sochemanni et 10
        bordarii habentes 9 carucas. Ibi 360 acre prati. Ad eundem
        manerium iacet hec soca:--In Linberge 4 car. terrae etc.'

  [459] Throughout Yorkshire the phrase is common, 'Totum manerium
        _x._ leu. long. et _y._ leu. lat.'

  [460] D. B. i. 128.

  [461] D. B. i. 128 b.

  [462] D. B. i. 127.

  [463] D. B. i. 128 b.

  [464] D. B. i. 180.

  [465] Compare the cases in Seebohm, Village Community, 267.

  [466] D. B. i. 163.

  [467] If we mistake not, the Osleuuorde of the record is Ashleworth,
        which, though some miles to the north of Gloucester, either
        still is, or but lately was, a detached piece of the Berkeley
        hundred.

  [468] D. B. i. 163.

  [469] D. B. i. 163 b: 'Hanc terram dedit regina Rogerio de Buslei et
        geldabat pro 4 hidis in Tedechesberie.'

  [470] D. B. i. 87 b; iv. 161.

  [471] Eyton, Somerset, ii. 34.

  [472] D. B. i. 101 b; iv. 107.

  [473] D. B. i. 41.

  [474] D. B. i. 230.

  [475] D. B. i. 338-9.

  [476] D. B. i. 220, Tingdene.

  [477] D. B. ii. 15 b, 17 b.

  [478] D. B. ii. 385 b.

  [479] The form _bereuita_ is exceedingly common, but must, we think,
        be due to a mistake; _c_ has been read as _t_.

  [480] D. B. i. 38 b, Edlinges. Some of the 'wicks' seem to have been
        dairy farms. D. B. i. 58 b: 'et wika de 10 pensis caseorum.'
        On the Glastonbury estates we find persons called _wikarii_,
        each of whom has a _wika_. Glastonbury Rentalia, 39: 'Thomas
        de Wika tenet 5 acras et 50 oves matrices et 12 vaccas ...
        Philippus de Wika tenet unum ferlingum et 50 oves matrices et
        12 vaccas.' Ibid. 44: 'A. B. tenet unum ferlingum et 50 oves
        matrices et 12 vaccas pro 1 sol. pro wika.' Ibid. 48:
        'Ricardus de Wika tenet 5 acras et 50 oves matrices et 12
        vaccas. Alanus de Wika eodem modo.' Ibid. p. 51

  [481] D. B. i. 350: 'In Osgotebi et Tauelebi 2 bo[vatae] inland et 1
        bo[vata] soca huius manerii.' D. B. i. 338 b: 'Hiboldeston est
        bereuuita non soca et in Grangeham sunt 2 car[ucatae] inland
        et in Springetorp dim. car[ucata] est inland. Reliqua omnis
        est soca.'

  [482] When therefore, as is often the case, we find that the
        occupants of 'the soke' are not sokemen but villeins, this
        seems to point to a recent depression of the peasantry.

  [483] D. B. ii. 330 b: 'In illo manerio ... sunt 35 liberi
        homines.... Tunc valuerunt liberi homines 4 libras. Manerium
        cum liberis hominibus valet modo 24 libras.'

  [484] D. B. ii. 358 b: 'Hoc manerium exceptis liberis tunc valuit 30
        solidos.'

  [485] D. B. ii. 289 b.

  [486] D. B. ii. 285 b.

  [487] D. B. iv. 397; i. 93 b, Ichetoca.

  [488] D. B. iv. 411; i. 94 b, Tocheswilla.

  [489] D. B. iv. 398; i. 93 b, Pilloc.

  [490] D. B. iv. 341; i. 96, Sordemanneford.

  [491] D. B. iv. 355; i. 116 b, Labera.

  [492] D. B. iv. 367; i. 112 b, Oplomia.

  [493] D. B. iv. 338; i. 95 b, Aisseforda.

  [494] D. B. iv. 395; i. 93, Terra Colgrini.

  [495] D. B. iv. 394; i. 93, Rima.

  [496] D. B. iv. 338; i. 95 b, Aisseforda.

  [497] As the term _manerium_ is often represented by the mere letter
        _M_ or _m_, we will refer to some cases in which it is written
        in full. D. B. ii. 295 b: '40 acras pro uno manerio'; Ibid.
        311 b: 'In eadem villa est 1 liber homo de 40 acris et tenet
        pro manerio.'

  [498] The question whether the acreage stated in the Suffolk survey
        is real or rateable can not be briefly debated. We hope to
        return to it.

  [499] D. B. ii. 322 b, 323.

  [500] D. B. ii. 323.

  [501] D. B. ii. 288.

  [502] D. B. ii. 309.

  [503] D. B. ii. 297 b.

  [504] D. B. ii. 377.

  [505] D. B. ii. 333.

  [506] D. B. ii. 423.

  [507] D. B. ii. 316: 'In Aldeburc tenuit Uluricus sochemannus Edrici
        T. R. E. 80 acras pro manerio.' Ibid. 353: 'Nordberiam tenuit
        Eduinus presbyter sochemannus Abbatis 30 acras pro manerio.'

  [508] We have taken our examples of small manors from the east and
        the south-west because Little Domesday and the Exeter Domesday
        give details which are not to be had elsewhere. But instances
        may be found in many other parts of England. Thus in Sussex,
        i. 24, two free men held as two manors land rated at a hide
        and sufficient for one team; it is now tilled by four
        villeins. In the Isle of Wight, D. B. i. 39 b, five free men
        held as five manors land sufficient for two teams; it is now
        tilled by four villeins. In Gloucestershire, D. B. i. 170, is
        a manor worth ten shillings with two serfs upon it; also a
        manor rated at one virgate. In Derbyshire, D. B. i. 274 b,
        land sufficient for four teams and rated as four carucates had
        formed eight manors. In Nottinghamshire, D. B. i. 285 b, land
        sufficient for a team and a half and valued at ten shillings
        had formed five manors for five thegns, each of whom had his
        hall.

  [509] D. B. ii. 380: 'In Thistledona tenet 1 liber homo Ulmarus
        commendatus S. Eldrede 60 acras pro manerio et 5 liberi
        homines sub se.'

  [510] D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli.... Hoc
        manerium tenent villani ad firmam canonicorum. In dominio nil
        habetur.'

  [511] D. B. i. 235 b: Billesdone, 'In dominio nil fuit nec est.'
        Ibid. 166 b, Glouc.: 'Isdem Willelmus [de Ow] tenet
        Alvredestone. Bondi tenuit T. R. E. Ibi 3 hidae geldantes. Nil
        ibi est in dominio, sed 5 villani et 3 bordarii habent 3
        carucas.'... 'Isdem Willelmus tenet Odelavestone. Brictri
        filius Algari tenuit. Ibi nil in dominio nisi 5 villani cum 5
        carucis.' D. B. iv. 396: 'Rogerius habet 1 mansionem quae
        vocatur P...et reddit gildum pro dimidia virgata; hanc potest
        arare 1 carruca. Hanc tenet Anschetillus de Rogerio. Ibi habet
        Anschetillus 4 bordarios qui tenent totam illam terram et
        habent ibi 1 carrucam et 1 agrum prati, et reddit 10 solidos.'

  [512] D. B. ii. 31.

  [513] D. B. ii. 59 b.

  [514] I leave this sentence as it stood before Mr Round had
        published in his Feudal England the results of his brilliant
        researches. Of the 'five hide unit' I already knew a good
        deal; of the 'six carucate unit' I knew nothing.

  [515] Round, Domesday Studies, i. 109.

  [516] D. B. i. 35: 'In Driteham tenet Ricardus [filius Gisleberti] 1
        hidam et dimidiam. Ælmar tenuit de Rege E. pro uno manerio....
        In eadem Driteham est 1 hida et dimidia quam tenuit Aluric de
        Rege E. pro uno manerio, et postea dedit illam terram uxori
        suae et filiae ad aecclesiam de Certesy, sicuti homines de
        hundredo testantur. Ricardus [filius Gisleberti] calumniatur.
        Non iacet ulli manerio, nec pro manerio tenet, set liberata
        fuit ei et modo 3 hidae geldant pro una hida et dimidia.' To
        say of the second of these two plots that it neither is a
        manor nor yet belongs to a manor, is to say that it is
        shirking the geld. D. B. i. 48: 'Walerannus tenet Dene....
        Ista tera non adiacet ulli suo manerio.' Here _suo_ =
        _Waleranni_. Waleran seems to be holding land without good
        title.

  [517] D. B. i. 163 b, Clifort. D. B. i. 58 b: 'In Winteham tenet
        Hubertus de Abbate 5 hidas, de terra villanorum fuerunt 4, et
        geldaverunt cum hidis manerii.'

  [518] The word _wara_ means defence; it comes from a root which has
        given us, _wary_, _warrant_, _warn_, _guarantee_, _weir_, etc.
        See Vinogradoff, Villainage, 243.

  [519] D. B. i. 212.

  [520] D. B. i. 340, 366, 368. Is not the last part of the word A.-S.
        _notu_, (business, office)?

  [521] D. B. i. 132 b: 'Hoc manerium tenuit Heraldus Comes et iacuit
        et iacet in Hiz [Hitchin, Herts] sed wara hujus manerii iacuit
        in Bedefordscire T. R. E. in hundredo de Maneheue.' D. B. i.
        190, 'Haec terra est bereuuicha in Neuport [Essex] set wara
        ejus iacet in Grantebrige.' When in the survey of Oxfordshire,
        i. 160, it is said, 'Ibi 1 hida de _warland_ in dominio,' the
        taxed land is contrasted with the inland, which in this county
        has gone untaxed.

  [522] D. B. i. 28.

  [523] See the cases of the monks of Bury and the canons of S.
        Petroc, above, p. 55.

  [524] D. B. i. 4 b: 'De terra huius manerii ten[uit] unus homo
        archiepiscopi dimid. solin et cum his 6 solins geldabat T. R.
        E. quamvis non pertineret manerio nisi de scoto quia libera
        terra erat.' The _scotum_ in this context seems to be or to
        include the geld. Compare D. B. i. 61 b: 'Haec terra iacet et
        appreciata est in Gratentun quod est in Oxenefordscire et
        tamen dat scotum in Berchescire.' D. B. ii. 11: 'In Colecestra
        habet episcopus 14 domos et 4 acras non reddentes
        consuetudinem praeter scotum nisi episcopo.'

  [525] See above, p. 85.

  [526] Hamilton, Inquisitio, 60.

  [527] Above, p. 110.

  [528] D. B. i. 35 b.

  [529] Northumbrian Priests' Law, 58, 59, (Schmid, p. 369.)

  [530] An Act of 1869 (32-3 Vic. c. 41) allowed the owners of certain
        small houses to agree to pay the rates which under the
        ordinary law would become due from the occupiers, and
        authorized the vestries to allow such owners a commission of
        25 per cent. See also the instructive recital in 59 Geo. III.
        c. 12, sec. 19:--The small occupiers are evading the poors'
        rate, and the owners exact higher rents than they would
        otherwise get, on the ground that the occupiers can not be
        effectually assessed.

  [531] See above, p. 24.

  [532] E.g. D. B. ii. 389 b, 'Clarum tenuit Aluricus pro manerio 24
        car. terrae T. R. E. Tunc 40 villani.... Tunc 12 carucae in
        dominio.... Tunc 36 carucae hominum.... Huic manerio semper
        adiacent 5 sochemani cum omni consuetudine 1 car. terrae et
        dim. Semper 1 caruca et dimidia.'

  [533] E.g. D. B. ii. 339: 'In eadem villa 14 liberi homines
        commendati, Godricus faber et Edricus et Ulnotus et Osulfus et
        Uluricus et Stanmarus et Leuietus et Wihtricus et Blachemanus
        et Mansuna et Leuinus et Ulmarus et Ulfah et alter Ulfah et
        Leofstanus de 40 acris et habent 2 carucas et valent 10
        solidos.'

  [534] Above, p. 115.

  [535] Rolls of the King's Court, Ric. I. (Pipe Roll. Soc.), p. xxiv.
        But apparently there had been considerable rearrangements in
        some of the counties.

  [536] Hoveden, iv. 46. The important words are these: 'Statutum
        etiam fuit quod quilibet baro cum vicecomite faceret
        districtiones super homines suos; et si per defectum baronum
        districtiones factae non fuissent, caperetur de dominico
        baronum quod super homines suos restaret reddendum, et ipsi
        barones ad homines suos inde caperent.' The baron's _homines_
        we take to be freeholders; he would be absolutely liable for
        the tax cast upon his villeinage. As to the tax of 1198 see
        Eng. Hist. Rev. iii. 501, 701; iv. 105, 108.

  [537] In Dial. de Scac. ii. 14, the author tells us that until
        recently if a baron who owed money to the crown was insolvent,
        the goods of his knights could be seized. The idea of
        subsidiary liability is not too subtle for the time.

  [538] Above, p. 108.

  [539] D. B. ii. 9: 'set Comes Eustachius 1 ex illis [hidis] tenet
        que non est de suis c. [100] mansionibus.'

  [540] D. B. ii. 233 b.

  [541] D. B. ii. 242 b.

  [542] D. B. ii. 258.

  [543] D. B. ii. 258.

  [544] D. B. ii. 447.

  [545] D. B. i. 45 b.

  [546] Two objections to our theory may be met by a note. (1) Some
        manors are free of geld, and therefore to make our definition
        correct we ought to say that a manor is a tenement which
        either pays its geld at a single place or which would do so
        were it not freed from the tax by some special privilege. A
        _manerium_ does not cease to be a _manerium_ by being freed
        from geld. (2) In later days we may well find a manor holden
        of another manor, so that a plot of land may be within two
        manors. If this usage of the term can be traced back into
        Domesday Book as a common phenomenon, then our doctrine is in
        great jeopardy. But we have noticed no passage which clearly
        and unambiguously says that a tract of land was _at one and
        the same time_ both a _manerium_ and also a part of another
        _manerium_. To this we must add that of the distribution of
        _maneria_ T. R. E. we only obtain casual and very imperfect
        tidings. If T. R. W. a free man has been 'added to' a
        _manerium_, the commissioners have no deep interest in the
        inquiry whether T. R. E. his tenement was itself an
        independent _manerium_. A great simplification has been
        effected and the number of _maneria_ has been largely reduced.



§ 7. _Manor and Vill._


[Manorial and non-manorial vills.]

After what has now been said, it is needless to repeat that in Domesday
Book the _manerium_ and the _villa_ are utterly different things[547].
In a given case the two may coincide, and throughout a great tract of
England such cases were common and we may even say that they were
normal. But in the east this was not so. We may easily find a village
which taken as a whole has been utterly free from seignorial domination.
Orwell in Cambridgeshire will be a good example[548].

[The vill of Orwell.]

In King Edward's day this vill of Orwell was rated at 4 hides: probably
it was somewhat underrated for at the date of the survey it was deemed
capable of finding land for nearly 6 teams. The following table will
show who held the four hides before the Conquest:--

                                                H.     V.     A.

  Two sokemen, men of Edith the Fair              2/3
  A sokeman, man of Abp Stigand                 1-1/3
  A sokeman, man of Robert Wimarc's son         1-1/3
  A sokeman, man of the King                      2/3
  A sokeman, man of Earl Ælfgar                 1-1/3
  A sokeman, man of Earl Waltheof               3
  A sokeman, man of the King                      1/3
  Sigar a man of Æsgar the Staller              1-1/3
  Turbert a man of Edith the Fair               3-1/4   5
  Achil a man of Earl Harold                    1
  A sokeman of the King                         1
  St. Mary of Chatteris                          1/3
  St. Mary of Chatteris                          1/4
                                                ----------------
                                                4       0      0[549]

It will be seen that eight of the most exalted persons in the land, the
king, the archbishop, three earls, two royal marshals or stallers, and
that mysterious lady known as Edith the Fair, to say nothing of the
church of Chatteris, had a certain interest in this little
Cambridgeshire village. But then how slight an interest it was! Every
one of the tenants was free to 'withdraw himself,' 'to give or sell his
land.' Now we can not say that all of them were peasants. Achil the man
of Harold seems to have had other lands in the neighbouring villages of
Harlton and Barrington[550]. It is probable that Turbert, Edith's man,
had another virgate at Kingston[551]: he was one of the jurors of the
hundred in which Orwell lay[552]. Sigar the man of Æsgar was another
juror, and held land at Thriplow, Foxton, Haslingfield and Shepreth; he
seems to have been his lord's steward[553]. But we may be fairly certain
that the unnamed sokemen tilled their own soil, though perhaps they had
help from a few cottagers. And they can not have been constantly
employed in cultivating the demesne lands of their lords. They must go
some distance to find any such demesne lands. The Wetherley hundred, in
which Orwell lies, is full of the sokemen of these great folk: Waltheof,
for example, has 3 men in Comberton, 4 in Barton, 3 in Grantchester, 1
in Wratworth: but he has no demesne land, and if he had it, he could not
get it tilled by these scattered tenants. The Fair Edith has half a hide
in Haslingfield and we are told that this belongs to the manor of
Swavesey. Now at Swavesey Edith has a considerable manor[554], but it
can not have got much in the way of labour out of a tenant who lived at
Haslingfield, for the two villages are a long ten miles apart. As to the
king's sokemen, their only recorded services are the _avera_ and the
_inward_. The former seems to be a carrying service done at the
sheriff's bidding and to be only exigible when the king comes into the
shire, while _inward_ seems to be the duty of forming a body guard for
the king while he is in the shire:--if in any year the king did not
come, a small sum of money was taken instead[555].

[A Cambridgeshire hundred.]

Lest it should be thought that in picking out the village of Orwell we
have studiously sought a rare case, we will here set out in a tabular
form what we can learn of the state of the hundred in which Orwell lies.
The Wetherley hundred contained twelve vills: it was a land of true
villages which until very lately had wide open fields[556]. In the
Confessor's day the lands in it were allotted thus:--

                CAMBRIDGESHIRE. WETHERLEY HUNDRED[557].

  I. COMBERTON. A vill of 6 hides.
                                            H.  V.  A.       C.  B.
    1. Seven sokemen of the King            1   1   0}
       A sokeman, man of Earl Waltheof}         3   0}       4   0
       A sokeman, man of Abp Stigand  }              }
    2. A man of Earl Waltheof               1  15            1   0
    3. A sokeman, man of the King           1   0}
       A sokeman, man of Abp Stigand        1  15}           2   0
       A sokeman, man of Earl Waltheof      1  15}
    4. The King                             2   2   0        5   0
                                            ---------       ------
                                            5   3  15[558]  12   0

  II. BARTON. A vill of 7 hides.
    1. Two sokemen, men of Earl Waltheof    1   1  15     }
       A sokeman, man of Earl Waltheof          3  15[559]}  5   0
       A sokeman, man of Earl Waltheof          1   0     }
    2. Juhael the King's hunter             1   0   0        1   0
    3. A sokeman, man of Edith the Fair         2   0}       6   0
    4. Twenty-three sokemen of the King     3   0   0}
                                            ---------       ------
                                            7   0   0       12   0

  III. GRANTCHESTER. A vill of 7 hides[560].
                                            H.  V.  A.       C.  B.
    1. Five sokemen, men of the King            3   0        1   0
    2. Two sokemen, men of the King         2   1   0}       6   0
       A sokeman, man of Æsgar the Staller      2   0}
    3. A sokeman, man of Earl Ælfgar            3   0}
       Three sokemen, men of Earl Waltheof  2   0   0}       4   0
    4. Godman a man of Edith the Fair           1  15        1   0
    5. Juhael the King's hunter                 1   0            4
    6. Wulfric, the King's man                     15        3
                                            ---------       ------
                                            7   0   0       12   7

  IV. HASLINGFIELD. A vill of 20 hides.
    1. The King                             7   1   0        8   0
    2. Five sokemen, men of the King        3   0   0}
       A sokeman, man of Æsgar the Staller  1   3   0}       4   0
    3. Ealdred a man of Edith the Fair      1   0  15        1   4
    4. Edith the Fair, belonging to Swavesey    2   0            4
    5. Sigar a man of Æsgar the Staller     5   0   0        6   0
    6. Two sokemen of the King              1   1   3        2   0
    7. Merewin, a man of Edith the Fair            12        0   0
                                           ----------       ------
                                           20   0   0       22   0

  V. HARLTON. A vill of 5 hides.

    1. Achil, a King's thegn and under him
         five sokemen of whom four were
         his men while the fifth was the
         man of Ernulf                      4   0   0        6   0
    2. Godman a man of Æsgar the Staller    1   0   0        1   0
                                            ---------        -----
                                            5   0   0        7   0

  VI. BARRINGTON. A vill of 10 hides.

    1. Eadric Púr a King's thegn                3   0}
       Fifteen sokemen, men of the King     4   1  15}
       Four sokemen, men of Earl Ælfgar     2   0  15}
       Three sokemen, men of Æsgar the               }      11   0
         Staller                            1   0   0}
       Eadric Púr, holding of the Church             }
         of Chatteris                              15}
    2. The Church of Chatteris              2   0   0        4   0
    3. Ethsi, holding of Robert Wimarc's son       20            3
    4. Achil the Dane, a man of Earl Harold        40            6
    5. A sokeman, man of the King                  15            2
                                            ----------      ------
                                           11   0   0[561]  17   3

  VII. SHEPRETH. A vill of 5 hides.
                                            H.  V.  A.       C.  B.
    1. Four sokemen, men of the King}       2   0  15        2   2
       A sokeman, man of Earl Ælfgar}
    2. The Church of Chatteris              1   1  15        1   4
    3. Sigar a man of Æsgar the Staller     1   0   0        1   0
    4. Heming a man of the King                 1  15            4
    5. The Church of Ely                           15            2
                                            ---------        -----
                                            5   0   0        5   4

  VIII. ORWELL. A vill of 4 hides.
    1. Two sokemen, men of Edith the Fair          20}
       A sokeman, man of Abp Stigand            1  10}
       A sokeman, man of Robert Wimarc's son    1  10}       1   4
       A sokeman, man of the King                  20}
       A sokeman, man of Earl Ælfgar            1  10}
    2. A sokeman, man of Earl Waltheof          3   0}       1   0
       A sokeman, man of the King                  10}
    3. Sigar, a man of Æsgar the Staller        1  10            4
    4. Turbert, a man of Edith the Fair         3  12-1/2    1   4
    5. Achil, a man of Earl Harold              1   0            2
    6. A sokeman, man of the King               1   0            3
    7. The Church of Chatteris                     10            1
    8. The Church of Chatteris                      7-1/2          1/2
                                            ---------        ---------
                                            4   0   0        5   2-1/2

  IX. WRATWORTH. A vill of 4 hides.
    1. A sokeman, man of Edith the Fair         3  10}
       A sokeman, man of Abp Stigand            3   0}
       A sokeman, man of Earl Ælfgar            1  10}       3   0
       A sokeman, man of Robert Wimarc's son       10}
       A sokeman, man of the King                  20}
    2. A sokeman, man of Earl Waltheof          2  20}       1   0
       A sokeman, man of Robert Wimarc's son       10}
    3. A sokeman, man of Edith the Fair         1  10            4
    4. A sokeman, man of the King               1   0            3
    5. Two sokemen, men of the King             2   0            4
                                            ----------       -----
                                            4   0   0        5   3

  X. WHITWELL. A vill of 4 hides.
    1. A sokeman, man of Earl Ælfgar            1  20}
       A sokeman, man of Robert Wimarc's son    1   0}       1   4
       A sokeman, man of the King               2   0}
    2. A sokeman, man of Abp Stigand               15}
       A sokeman, man of Edith the Fair            10}           4
       [A sokeman]                                 15}
    3. Six sokemen, men of the King         1   1   0}
       A sokeman, man of Robert Wimarc's son    2   0}       2   0
       A sokeman, man of Earl Ælfgar            1   0}
    4. Godwin a man of Edith the Fair           2   0        1   0
                                            ---------        -----
                                            4   0   0        5   0

  XI. WIMPOLE. A vill of 4 hides.
                                            H.  V.  A.       C.  B.
    1. Edith the Fair                       2   2  15        3   0
    2. Earl Gyrth                           1   1  15        2   0
                                            ---------        -----
                                            4   0   0        5   0

  XII. ARRINGTON. A vill of 4 hides.
    1. Ælfric, a King's thegn               1   1  10}
       A sokeman, man of Earl Waltheof      1   0   0}
       A sokeman, man of the Abbot of Ely   1   0   0}       8   0
       A sokeman, man of Robert Wimarc's son       20}
    2. A man of Edith the Fair                  2   0            4
                                            ---------        -----
                                            4   0   0[562]   8   4

[The Wetherley sokemen.]

Now if by a 'manor' we mean what our historical economists usually mean
when they use that term, we must protest that before the Norman Conquest
there were very few manors in the Wetherley hundred. In no one case was
the whole of a village coincident with a manor, with a lord's estate.
The king had considerable manors in Comberton and Haslingfield. Sigar
had a manor at Haslingfield; the church of Chatteris had a manor at
Barrington besides some land at Shepreth; Wimpole was divided between
Edith and Earl Gyrth; Harlton between Achil and Godman. But in Barton,
Grantchester, Shepreth, Orwell, Wratworth, Whitwell and Arrington we see
nothing manorial, unless we hold ourselves free to use that term of a
little tenement which to all appearance might easily be cultivated by
the labour of one household, at all events with occasional help supplied
by a few cottagers. Indeed it is difficult to say what profit some of
the great people whose names we have mentioned were deriving from those
of their men who dwelt in the Wetherley hundred. We take the Mercian
earl for example[563]. One of the sokemen of Grantchester, four of the
sokemen of Barrington, one of the sokemen of Shepreth, one of the
sokemen of Orwell, one of the sokemen of Wratworth, two of the sokemen
of Whitwell were Ælfgar's men. That Ælfgar got a little money or a
little provender out of them is probable, that they did some carrying
service for him is possible and perhaps they aided him at harvest time
on some manor of his in another part of the county; but that they were
not the tillers of his land seems clear[564].

[The sokeman and seignorial justice.]

What is more, our analysis of this Wetherley hundred enables us to drive
home the remark that very often a sokeman was not the sokeman of his
lord or, in other words, that he was not under seignorial justice[565].
Ælfgar had ten sokemen scattered about in six villages. Did he hold a
court for them? We think not. Did they go to the court of some distant
manor? We think not. The court they attended was the Wetherley
hundred-moot. One of the sokemen in Arrington was in a somewhat
exceptional position--exceptional, that is, in this hundred. Not only
was he the man of the Abbot of Ely, but his soke belonged to the Abbot;
and if he sold his tenement, and this he could do without the Abbot's
consent, the soke over his land would 'remain' to the Abbot[566]. He was
not only his lord's man but his lord's justiciable and probably attended
some court outside the hundred. But for the more part these men of
Wetherley were not the justiciables of their lords. It was a very free
hundred when the Normans came there: much too free for the nation's
welfare we may think, for these sokemen could go with their land to what
lord they pleased. Also be it noted in passing that the churches have
little in Wetherley.

[Changes in the Wetherley hundred.]

In 1086 there had been a change. The sokemen had disappeared. The Norman
lords had made demesne land where their English _antecessores_ possessed
none. Count Roger had instituted a seignorial court at Orwell. He had
borrowed three sokemen 'to hold his pleas' from Picot the sheriff and
had refused to give them up again[567]. Apparently they had sunk to the
level of _villani_. Two centuries afterwards we see the hundred of
Wetherley once more. There is villeinage enough in it. The villein at
Orwell, for example, holds only 10 acres but works for his lord on 152
days in the year, besides boon-days[568]. And yet we should go far
astray if we imposed upon these Cambridgeshire villages that neat
manorial system which we see at its neatest and strongest in the
abbatial cartularies. The villages do not become manors. The manors are
small. The manors are intermixed in the open fields. There are often
freeholders in the village who are not the tenants of any lord who has a
manor there. A villein will hold two tenements of two lords. The villein
of one lord will be the freeholder of another. The 'manorial system' has
been forced upon the villages, but it fits them badly[569].

[Manorialism in Cambridgeshire.]

In the thirteenth century the common field of a Cambridgeshire village
was often a very maze of proprietary rights, and yet the village was an
agrarian whole. Let us take, for example, Duxford as it stood in the
reign of Edward I.[570] We see 39 villein tenements each of which has
fourteen acres in the fields. These tenements are divided between five
different manors. Four of our typical 'townsmen' hold of Henry de Lacy,
who holds of Simon de Furneaux, who holds of the Count of Britanny, who
holds of the king. Two hold of Ralph of Duxford, who holds of Basilia
wife of Baldwyn of St George, who holds of William Mortimer, who holds
of Simon de Furneaux, who holds of the Count of Britanny, who holds of
the king. Eight hold of the Templars, who hold of Roger de Colville, who
holds of the Earl of Albemarle, who holds of the king. Nine hold of
William le Goyz, who holds of Henry of Boxworth, who holds of Richard de
Freville, who holds of the king. Sixteen hold of John d'Abernon, who
holds of the Earl Marshal, who holds of the king. Three of the greatest
'honours' in England are represented. Three monasteries and two
parochial churches have strips in the fields. And yet there are normal
tenements cut according to one pattern, tenements of fourteen acres the
holders of which, though their other services may differ, pay for the
more part an equal rent[571]. The village seems to say that it must be
one, though the lords would make it many. And then we look back to the
Confessor's day and we see that a good part of Duxford was held by
sokemen[572].

[The sokemen and the manors.]

Perhaps we shall be guilty of needless repetition; but what is written
in Domesday Book about _maneria_ is admirably designed for the deception
of modern readers whose heads are full of 'the manorial system.'
Therefore let us look at two Hertfordshire villages. In one of them
there is a _manerium_ which Ralph Basset holds of Robert of Ouilly[573].
It has been rated at 4, but is now rated at 2 hides. There is land for 4
teams. In demesne are 2 teams; and 3-1/2 _villani_ with 2 sokemen of 1
hide and 5 _bordarii_ have 2 teams. There are 1 cottager and 1 serf and
a mill of 10 shillings and meadow for 3 teams. It is now worth £3; in
King Edward's day it was worth £5. Now here, we say, is a pretty little
manor of the common kind. Let us then explore its past history. 'Five
sokemen held this manor.' Yes, we say, before the Conquest this manor
was held in physically undivided shares by five lords. Their shares were
small and they were humble people; but still they had a manor. But let
us read further. 'Two of them were the men of Brihtric and held 1-1/2
hides; other two were the men of Osulf the son of Frane and held 1-1/2
hides; and the fifth was the man of Eadmer Atule and held a hide.' We
will at once finish the story and see how Robert of Ouilly came by this
manor. 'No one of these five sokemen belonged to his _antecessor_ Wigot;
every one of them might sell his land. One of them bought (i.e.
redeemed) his land for nine ounces of gold from King William, so the men
of the hundred say, and afterwards turned for protection to Wigot.' So
Robert's title to this manor is none of the best. But are we sure that
before the Conquest there was anything that we should call a manor?
These five sokemen who have unequal shares, who have three different
lords, who hold in all but 4 team-lands, whose land is worth but £5, do
not look like a set of coparceners to whom a 'manor' has descended. When
Robert of Ouilly has got his manor there are upon it 2 sokemen, 3
villeins, 5 _bordarii_, a cottager and a serf. It was not a splendid
manor for five lords.

[Hertfordshire sokemen.]

We turn over a few pages. Hardouin of Eschalers has a manor rated at
5-1/2 hides[574]. It contains land for 8 teams. In demesne are 2 hides
less 20 acres, and 3 teams; 11 _villani_ with the priest and 5
_bordarii_ have 5 teams. There are 4 cottagers and 6 serfs. It is worth
£9; in the Confessor's day it was worth £10. Who held this manor in the
past? Nine sokemen held it. Rather a large party of joint lords, we say;
but still, families will grow. Howbeit, we must finish the
sentence:--'Of these, one, Sired by name, was the man of Earl Harold and
held 1 hide and 3 virgates for a manor; another, Alfred, a man of Earl
Ælfgar, held 1-1/2 hides for a manor; and the other seven were sokemen
of King Edward and held 2 hides and 1 virgate and they supplied the
sheriff with 9 pence a year or 2-1/4 _averae_ (carrying services).' No,
we have not been reading of the joint holders of a 'manor'; we have been
reading of peasant proprietors. Two of them were substantial folk; each
of the two held a _manerium_ at which geld was paid; the other seven
gelded at one of the king's _maneria_ under the view of his bailiffs.
_Maneria_ there have been everywhere; but 'manors' we see in the making.
Hardouin has made one under our eyes.

[The small _maneria_.]

We hear the objection that, be it never so humble, a manor is a manor.
But is that truism quite true? If all that we want for the constitution
of a manor is a proprietor of some land who has a right to exact from
some other man, or two or three other men, the whole or some part of the
labour that is necessary for the tillage of his soil, we may indeed see
manors everywhere and at all times. Even if we introduce a more
characteristically medieval element and demand that the tillers shall be
neither menial servants nor labourers hired for money, but men who make
their living by cultivating for their own behoof small plots which the
proprietor allows them to occupy, still we shall have the utmost
difficulty if we would go behind manorialism. But suppose for a moment
that we have a village the land of which is being held by nine sokemen,
each of whom has a hide or half-hide scattered about in the open fields,
and each of whom controls the labour of a couple of serfs, shall we not
be misleading the public and ourselves if we speak of nine manors or
even of nine 'embryo manors'? At any rate it is clear enough that if
these estates of the sokemen are 'embryo manors,' then these embryos
were deposited in the common fields. In that case the common fields, the
hides and yard-lands of the village are not the creatures of
manorialism.

[The Danes and freedom.]

We have seen free villages; we have seen a free hundred. We might have
found yet freer hundreds had we gone to Suffolk. We have chosen
Cambridgeshire because Cambridgeshire can not be called a Danish county,
except in a sense in which, notwithstanding the wasted condition of
Yorkshire, about one half of the English nation lived in Danish
counties. When men divide up England between the three laws, they place
Cambridgeshire under the Danelaw; but to that law they subject about one
half of the inhabitants of England. There may have been many men of
Scandinavian race in Cambridgeshire; but we find hundreds not
wapentakes, hides not carucates, while among the names of villages there
are few indeed which betray a Scandinavian origin. The Wetherley hundred
was not many miles away from the classic fields of Hitchin[575].

[The Danish counties.]

But in truth we must be careful how we use our Dane. Yorkshire was a
Danish county in a sense in which Cambridgeshire was not Danish; it was
a land of trithings and wapentakes, a land without hides, where many a
village testified by its name to a Scandinavian settlement. And yet to
all appearance it was in the Confessor's day a land where the manors
stood thick[576]. Then we have that wonderful contrast between Yorkshire
and Lincolnshire which Ellis summed up in these figures:--

                    Sochemanni      Villani       Bordarii
     Lincolnshire     11,503         7,723         4,024
     Yorkshire           447         5,079         1,819

Perhaps this contrast would have been less violent if Yorkshire had not
been devastated: but violent it is and must be. It will provoke the
remark that the 'faults' (if any faults there be) in a truly economic
stratification of mankind are not likely to occur just at the boundaries
of the shires, whereas so long as each county has a court from which
there is no appeal to any central tribunal, we may expect to find that
lines which have their origin in fiscal practice will be sharp lines and
will coincide with the metes and bounds of jurisdictional districts.

[The contrast between villeins and sokemen.]

Nor should it escape remark that the names by which a grand distinction
is expressed are in their origin very loose terms and etymologically
ill-fitted to the purpose that they are serving. In English the
_villanus_ is the _túnesman_ or, as we should say, the villager. And yet
to all seeming the sokeman is essentially a villager. What is more the
land where the sokemen and 'free men' lived was a land of true villages,
of big villages, of limitless 'open fields,' whereas the hamleted west
was servile. Then again _sokeman_ is a very odd term. If it signified
that the man to whom it is applied was always the justiciable of the
lord to whom he was commended, we could understand it. Even if this man
were always the justiciable of a court that had passed into private
hands, we could still understand it. But apparently there are plenty of
sokemen whose soke 'is' or 'lies' in those hundred courts that have no
lord but the king. The best guess that we can make as to the manner in
which they have acquired their name is that in an age which is being
persuaded that some 'service' must be done by every one who holds land,
suit of court appears as the only service that is done by all these men.
They may owe other services; but they all owe suit of court. If so we
may see their legal successors in those freeholders of the twelfth
century who are 'acquitting' their lords and their villages by doing
suit at the national courts[577]. But when a new force comes into play
(and the tribute to the pirate was a new and a powerful force) new lines
of demarcation must be drawn, new classes of men must be formed and
words will be borrowed for the purpose with little care for
etymological niceties. One large and widely-spread class may find a name
for itself in a district where the ordinary 'townsmen' or villagers are
no longer treated as taxpayers responsible to the state, while some
practice peculiar to a small part of the country may confer the name of
'sokemen' on those tillers of the soil who are rated to the geld. We are
not arguing that this distinction, even when it first emerged, implied
nothing that concerned the economic position of the villein and the
sokeman. The most dependent peasants would naturally be the people who
could not be directly charged with the geld, and the peasants who could
not pay the geld would naturally become dependent on those who would pay
it for them; still we are not entitled to assume that the fiscal scheme
accurately mirrored the economic facts, or that the varying practice of
different moots and different collectors may not have stamped as the
villeins of one shire those who would have been the sokemen of
another[578].

[Free villages.]

Be this as it may, any theory of English history must face the free, the
lordless, village and must account for it as for one of the normal
phenomena which existed in the year of grace 1066. How common it was we
shall never know until the material contained in Domesday Book has been
geographically rearranged by counties, hundreds and vills. But whether
common or no, it was normal, just as normal as the village which was
completely subject to seignorial power. We have before us villages
which, taken as wholes, have no lords. What is more, it seems obvious
enough that, unless there has been some great catastrophe in the past,
some insurrection of the peasants or the like, the village of
Orwell--and other villages might be named by the dozen--has never had a
lord. Such lordships as exist in it are plainly not the relics of a
dominion which has been split up among divers persons by the action of
gifts and inheritances. The sokemen of Orwell have worshipped every
rising sun. One has commended himself to the ill-fated Harold, another
to the ill-fated Waltheof, a third has chosen the Mercian Ælfgar, a
fourth has placed himself under the aspiring Archbishop; yet all are
free to 'withdraw.' We have here a very free village indeed, for its
members enjoy a freedom of which no freeholder of the thirteenth century
would even dream, and in a certain sense we have here a free village
community. How much communalism is there? Of this most difficult
question only a few words will now be said, for our guesses about remote
ages we will yet a while reserve.

[Village communities.]

In the first place, we can not doubt that the 'open field system' of
agriculture prevails as well in the free villages as in those that are
under the control of a lord. The sokeman's hide or virgate is no
ring-fenced 'close' but is composed of many scattered strips. Again, we
can hardly doubt that the practice of 'co-aration' prevailed. The
sokeman had seldom beasts enough to make up a team. It is well known
that the whole scheme of land-measurements which runs through Domesday
Book is based upon the theory that land is ploughed by teams of eight
oxen. It is perhaps possible that smaller teams were sometimes employed;
but when we read that a certain man 'always ploughed with three
oxen[579],' or 'used to plough with two oxen but now ploughs with half a
team[580],' or 'used to plough with a team but now ploughs with two
oxen[581],' we are reading, not of small teams, but of the number of
oxen that the man in question contributed towards the team of eight that
was made up by him and his neighbours. When of a piece of land in
Bedfordshire it is said that 'one ox ploughs there,' this means that the
land in question supplies but one ox in a team of eight[582]; and here
and not in any monstrous birth do we find the explanation of 'terra est
dimidio bovi et ibi est semibos[583]':--there is a sixteenth part of a
teamland and its tenant along with some other man provides an ox. There
may have been light ploughs as well as heavy ploughs, but the heavy
plough must have been extremely common, since the term 'plough team'
(_caruca_) seems invariably to mean a team of eight.

[The villagers as co-owners.]

Then one notable case meets our eye in which the ownership of land, of
arable land, seems to be attributed to a village community. In
Goldington, a village in Bedfordshire, Walter now holds a hide; there is
land for one team and meadow for half a team. 'The men of the vill held
this land in common and could sell it[584].' Apparently the men of the
vill were Ælfwin Sac a man of the Bishop of Lincoln who held half a
team-land and 'could do what he liked with it,' nine sokemen who held
three team-lands between them, three other sokemen who held three
team-lands, and Ælfmær a man of Asgil who held three team-lands[585].
How it came about that these men, besides holding land in severalty,
held a tract in common, we are left to guess. Nor can we say whether
such a case was usual or unusual. Very often in Little Domesday we meet
an entry which tells how _x_ free men held _y_ acres and had _z_ teams;
for example, how 15 free men held 40 acres and had 2 teams[586]. In
general we may well suppose that each of them held his strips in
severalty, but we dare not say that such a phrase never points to
co-ownership.

[The waste land of the vill.]

Then as to such part of the land as is not arable:--Even in the free
village a few enclosed meadows will probably be found; but the pasture
ground lies open for 'the cattle of the vill.' At the date of the
survey, though several Norman lords have estates in one vill, the common
formula used in connexion with each estate is, not 'there is pasture for
the cattle of this manor, or of this land,' but 'there is pasture for
the cattle of the vill.' Occasionally we read of 'common pasture' in a
context which shows that the pasture is common not to several manorial
lords but to the villeins of one lord[587]. In the hundred of Coleness
in Suffolk there is a pasture which is common to all the men of the
hundred[588]. But, as might be expected, we hear little of the mode in
which pasture rights were allotted or regulated. Such rights were
probably treated as appurtenances of the arable land:--'The canons of
Waltham claim as much wood as belongs to one hide[589].' If the rights
of user are known, no one cares about the bare ownership of pasture land
or wood land:--it is all one whether we say that Earl Edwin is entitled
to one third of a certain wood or to every third oak that grows
therein[590].

[Co-ownership of mills.]

Sometimes the ownership of a mill is divided into so many shares that we
are tempted to think that this mill has been erected at the cost of the
vill. In Suffolk a free man holds a little _manerium_ which is composed
of 24 acres of land, 1-1/2 acres of meadow and 'a fourth part of the
mill in every third year[591]':--he takes his turn with his neighbours
in the enjoyment of the revenue of the mill. We may even be led to
suspect that the parish churches have sometimes been treated as
belonging to the men of the vill who have subscribed to erect or to
endow them. In Suffolk a twelfth part of a church belongs to a petty
_manerium_ which contains 30 acres and is cultivated by two bordiers
with a single team[592]. When a parish church gets its virgate by 'the
charity of the neighbours[593],' when nine free men give it twenty acres
for the good of their souls[594], we may see in this some trace of
communal action.

[The system of virgates in a free village.]

Incidentally we may notice that the system of virgate holdings seems
quite compatible with an absence of seignorial control. In the free
village, for example in Orwell, we shall often find that one man has
twice, thrice or four times as much as another man:--the same is the
case in the manorialized villages of Middlesex, where a villein may have
as much as a hide or as little as a half-virgate; but all the holdings
will bear, at least in theory, some simple relation to each other. Thus
in Orwell the virgates are divided into thirds and quarters, and in
several instances a man has four thirds of a virgate. In Essex and East
Anglia, though we may find many irregular and many very small holdings,
tenements of 60, 45, 40, 30, 20, 15 acres are far commoner than they
would be were it not that a unit of 120 acres will very easily break
into such pieces. Domesday Book takes no notice of family law and its
'vendere potuit' merely excludes the interference of the lord and does
not imply that a man is at liberty to disappoint his expectant heirs.
Very possibly there has been among the small folk but little giving or
selling of land.

[The virgates and inheritance.]

Nor is a law which gives the dead man's land to all his sons as co-heirs
a sufficient force to destroy the system of hides and virgates when once
it is established by some original allotment. In the higher ranks of
society we see large groups of thegns holding land in common, holding as
the Normans say 'in parage.' We can hardly doubt that they are co-heirs
holding an inheritance that has not been physically partitioned[595].
Sometimes it is said of a single man that he holds in parage[596]. This
gives us a valuable hint. Holding in parage implies that one of the
'pares,' one of the parceners,--as a general rule he would be the eldest
of them--is answerable to king and lord for the services due from the
land, while his fellows are bound only to him; they must help him to
discharge duties for which he is primarily responsible[597]. This seems
the import of such passages as the following--'Five thegns held two
bovates; one of them was the _senior_ (the elder, and we may almost
say the lord) of the others[598]'--'Eight thegns held this manor;
one of them Alli, a man of King Edward, was the _senior_ of the
others[599]'--'Godric and his brothers held three carucates; two of
them served the third[600]'--'Chetel and Turver were brothers and
after the death of their father they divided the land, but so that
Chetel in doing the king's service should have help from Turver his
brother[601]'--'Siwate, Alnod, Fenchel and Aschil divided the land of
their father equally, and they held in such wise that if there were need
for attendance in the king's host and Siwate could go, his brothers were
to aid him [with money and provisions]; and on the next occasion another
brother was to go and Siwate like the rest was to help him; and so on
down the list; but Siwate was the king's man[602].' No doubt similar
arrangements were made by co-heirs of lowlier station[603]. The
integrity of the tenement is maintained though several men have an
interest in it. In relation to the lord and the state one of them
represents his fellows. When the shares become very small, some of the
claimants might be bought out by the others[604].

[The farm.]

But, to return to the village, we must once more notice that the Canons
of St Paul's have let their manor of Willesden to the villeins[605].
This leads us to speculate as to the incidence and collection of those
great provender rents of which we read when royal manors are described.
In King Edward's day a royal manor is often charged with the whole or
some aliquot share of a 'one night's farm,' that is one day's victual
for the king's household. Definite amounts of bread, cheese, malt, meat,
beer, honey, wool have to be supplied; thus, for example, Cheltenham
must furnish three thousand loaves for the king's dogs and King's Barton
must do the like[606]. Then too Edward the sheriff receives as the
profits of the shrievalty of Wiltshire, 130 pigs, 32 bacons, certain
quantities of wheat, malt, oats, and honey, 400 chicken, 1600 eggs, 100
cheeses, 100 lambs, 52 fleeces[607]. Between the king and the men of the
manor, no doubt there stands a farmer, either the sheriff or some other
person, who is bound to supply the due quantity of provender; but to say
that this is so does not solve the problem that is before us. We have
still to ask how this due quantity is obtained from the men of the
village. It is a quantity which can be expressed by round figures; it is
3000 dog-cakes, or the like. We do not arrive at these pretty results by
adding up the rents due from individuals. Again, just in the counties
which are the homes of freedom we hear much of sums of money that are
paid to a lord by way of free will offering[608]. In Norfolk and Suffolk
the villagers will give a yearly _gersuma_, in Lincoln they will pay a
yearly _tailla_, and this will be a neat round sum; very often it is 20
shillings, or 40 or 10.

[Round sums raised from the villages.]

In this particular we seem to see an increase of something that may be
called communalism, as we go backwards. Of course in the cartularies of
a later age we may discover round sums of money which, under the names
of 'tallage' or 'aid' are imposed upon the vill as a whole; but in
general we may accept the rule that tributes to be paid by the vill as a
whole, in money or in kind, are not of recent origin. They are more
prominent in the oldest than in other documents. As examples, we may
notice the 'cornage' of the Boldon Book--one vill renders 20 shillings,
another 30 shillings for cornage[609]; also the contributions of sheep,
poultry, bread and cloth which the vills of Peterborough Abbey bring to
the monks on the festival of their patron saint--one vill supplying ten
rams and twenty ells of cloth, another four rams, five ells of cloth,
ten chicken and three hundred loaves[610]. But then we have to notice
that a village which has to pay a provender rent or even a _tailla_ or
_gersuma_ is not altogether a free village. Its communal action is
called out by seignorial pressure.

[The township and police law.]

And as we go backwards the township seems to lose such definiteness as
is given to it by the police law of the thirteenth century[611]. This
was to be expected, for such law implies a powerful, centralized state,
which sends its justices round the country to amerce the townships and
compel these local communities to do their duties. Once and once only
does the township appear in the Anglo-Saxon dooms. This is in a law of
Edgar. If a man who is on a journey buys cattle, then on his return home
he must turn them onto the common pasture, 'with the witness of the
township.' If he fails to do so, then after five nights the townsmen are
to give information to the elder of the hundred, and in that case they
and their cattle-herd will be free of blame, and the man who brought the
cattle into the town will forfeit them, half to the lord and half to
the hundred. If, on the other hand, the townsmen fail in the duty of
giving information, their herd will pay for it with his skin[612]. The
township has very little organization of which the state can make use.
It does not seem even to have an 'elder' or head-man, and, from the
threat of a flogging, we may gather that its common herdsman will be a
slave. Purchases of cattle can not be made 'with the witness of the
township'; the purchaser ought to seek out two or three of those twelve
standing witnesses who are appointed for every hundred[613]. So again,
in the twelfth century we see the finder of a stray beast bringing it
into the vill; he conducts it to the church-door and tells his story to
the priest, the reeve and as many of the best men of the vill as can be
got together. Then the reeve sends to the four neighbouring vills, calls
in from each the priest, the reeve and three or four men and recounts
the tale in their presence. Then on the following day he goes to the
head-man of the hundred and puts the whole matter before him and
delivers up the beast to him, unless indeed the place where it was found
straying was within the domain of some lord who had sake and soke[614].
Here again, the organization of the township appears to be of a most
rudimentary kind. It has no court, unless its lord has sake and soke; it
has no power to detain an estray for safe custody. In this very simple
case it requires the help of other vills and must transmit the cause to
the hundred court. And so again, though there may be some reason for
thinking that at one time the murder fine--the fine payable if the
slayer of a foreigner was not arrested--was primarily exigible from the
vill in which the corpse was found, the hundred being but subsidiarily
liable, still this rule seems to have been soon abandoned and the burden
of the fine, a fine far too heavy for a single vill, was cast upon the
hundred[615]. For all this, however, the law knew and made use of the
township. The Domesday commissioners required the testimony of the
priest, the reeve and six _villani_ of every vill. So soon as the law
about suit to the hundred court becomes at all plain, the suit is due
rather from vills than from men, and the burden is discharged by the
lord of the vill or his steward, or, if neither of them can attend,
then by the priest, the reeve and four of the vill's best men[616].

[The free village and Norman government.]

How could these requirements be met by a vill which had no lord? It
would be a fair remark that the existence of such vills is not
contemplated by the Norman rulers. The men who will represent the vill
before the Domesday commissioners will in their eyes be _villani_. This
assumption is becoming true enough. We have seen Orwell full of sokemen;
in 1086 there is never a sokeman in it; there is no one in it who is
above the rank of a villein. Count Roger and Walter Giffard, Count Alan
and Geoffrey de Mandeville can make such arrangements about the suit of
Orwell, the reeveship of Orwell, as they think fit. Everywhere the
Frenchmen are consolidating their manors, creating demesne land where
their English _antecessores_ had none, devising scientific frontiers,
doing what in them lies to make every vill a manor. Thus is evolved that
state of things which comes before us in the thirteenth century. The
work of the foreigners was done so completely that we can see but very
little of the institutions that they swept away.

[Organization of the free village.]

On the whole, however, we shall do well not to endow the free township
of the Confessor's day with much organization. We may be certain that,
at least as a general rule, it had no court; we may doubt very gravely
whether it always had any elder, head-man, or reeve. Often it was a
small and yet a heterogeneous, and a politically distracted body. Some
of its members might be attached to the house of Godwin, some had sworn
to live and die for the house of Leofric. Just because it is free it has
few, if any, communal payments to make. Only if it comes under a single
lord will it have to render a provender rent, a _tailla_ or _gersuma_.
As a sphere for communal action there remains only the regulation of the
arable lands, the woods and waste. We can not say for certain that these
give scope for much regulation. The arable strips are held in severalty;
if by chance some of them are held in common, this in all probability is
a case rather of co-ownership than of communal ownership. The pasture
rights may well be regarded as appurtenances of the arable strips. The
practice of 'co-aration' need not be enforced by law; the man who will
not help his neighbours must be content to see his own land unploughed.
The course of agriculture is fixed and will not be often or easily
altered. The 'realism' which roots every right and duty in a definite
patch of soil, the rapid conversion of new arrangements into immemorial
customs, the practice of taking turn and turn about, the practice of
casting lots, these will do much towards settling questions such as our
modern imaginations would solve by means of a village council. No doubt,
from time to time a new departure is made; new land is reclaimed from
the waste, perhaps the pasture rights are stinted or redistributed, a
mill is built or a church is endowed;--but all this requires no periodic
assemblies, no organization that we dare call either permanent or legal.
Once in five years or so there may be something to be done, and done it
will be by a resolution of the villagers which is or calls itself an
unanimous resolution. If the Cambridgeshire townships had been
landowning corporations, each of them would have passed as a single unit
into the hands of some Norman baron. But this did not happen. On the
contrary, the Norman barons had to content themselves with intermixed
strips; the strips of Ælfgar's men went to Count Roger, the strips of
Edith's men went to Count Alan. We are far from denying the existence of
a communal sentiment, of a notion that somehow or another the men of the
vill taken as a whole owned the lands of the vill, but this sentiment,
this notion, if strong was vague. There were no institutions in which it
could realize itself, there was no form of speech or thought in which it
could find an apt expression. It evaded the grasp of law. At the touch
of jurisprudence the township became a mere group of individuals, each
with his separate rights[617].


FOOTNOTES:

  [547] D. B. ii. 174: 'Hec villa fuit in duobus maneriis T. R. E.'
        Ibid. i. 164: 'De his 2 villis fecit Comes W. unum manerium.'

  [548] Inquisitio, 77-9.

  [549] This result comes out correctly if 1H=4V=120A. For the state
        of this vill T. R. W. see Round, Feudal England, 40.

  [550] His plot at Orwell is said to belong to Harlton. Then at
        Harlton we find an Achil with sokemen under him, and though in
        D. B. he is described as a king's thegn, this is not
        incompatible with his being the man of Harold for some of his
        lands. At Barrington Achillus Danaus homo Haroldi has a
        holding of 40 acres.

  [551] Inquisitio, 86.

  [552] Ibid. 68.

  [553] Ibid. 43, 44, 45, 73, 76.

  [554] D. B. i. 195.

  [555] D. B. i. 139: 'De consuetudine 1 averam inveniebat cum Rex in
        scyra veniebat, si non 5 den. reddebat.' D. B. i. 190,
        '[Sochemanni in Fuleberne] reddunt per annum 8 libras arsas et
        pensatas et unoquoque anno 12 equos et 12 inguardos si Rex in
        vicecomitatu veniret, si non veniret 12 sol. et 8 den.; T. R.
        E. non reddebant vicecomiti nisi averas et inguardos vel 12
        sol. et 8 den. et superplus invasit Picot [vicecomes] super
        Regem.'

  [556] Wratworth has completely disappeared from the modern map; its
        territory seems to be included in that of the present Orwell.
        See Rot. Hund. ii. 559 and Lysons, Magna Britannia, ii. 243. A
        small hamlet called Malton seems to represent it. Whitwell
        also is no longer the name of a village, while the modern
        Coton is not mentioned in D. B. There is now a Whitwell Farm
        near the village of Coton, but in the parish of Barton. The
        modern Coton does not seem to be the ancient Whitwell, for on
        Subsidy Rolls we may find Whitwell annexed to Barton and Coton
        to Grantchester.

  [557] The figures in our first column represent the division of the
        vill among the Norman lords. H. V. A. stand for Hides,
        Virgates, Acres. By C. and B. we signify the Carucae and Boves
        for which 'there was land.'

  [558] There is some small error in this case.

  [559] A small conjectural emendation.

  [560] The Inq. Com. Cant. says 6 hides.

  [561] An error of one hide in the particulars. The two records do
        not fully agree.

  [562] A small emendation justified by Inq. Eliensis (Hamilton, p.
        110).

  [563] Ælfgar died before King Edward; Freeman, Norman Conquest, ed.
        3, iii. 469, places his death in or about 1062.

  [564] The history of the earldoms during Edward's reign is
        exceedingly obscure. See Freeman's elaborate note: Ibid., 555.
        In particular Cambridgeshire seems to have lain now in one and
        now in another earldom. Thus it comes about that
        Cambridgeshire sokemen are commended some to Ælfgar, some to
        Waltheof, some to Harold, some to Gyrth. Ælfgar, for example,
        had at one time been earl in East Anglia. Men who had
        commended themselves to an earl would, unless they 'withdrew
        themselves,' still be his men though he had ceased to be earl
        of their county.

  [565] See above, p. 105. Observe how frequently our record speaks of
        'sochemanni _homines_ Algari' and the like. These sokemen are
        Ælfgar's men; but are not properly his sokemen.

  [566] Inq. Com. Cant. 110. This is from the Inquisitio Eliensis.
        Compare p. 83.

  [567] Inq. Com. Cant. 77-8.

  [568] Rot. Hund. ii. 558.

  [569] One instance may suffice. In Sawston (Rot. Hund. ii. 575-80)
        are three manors, _A_, _B_, _C_; _A_ has a sub-manor. One
        Thomas Dovenel holds in villeinage of the lord of _A_; in
        villeinage of the lord of _B_; in freehold of the lord of _B_;
        in freehold of a tenant of the lord of _B_; in freehold of a
        tenant of a tenant of the lord of _B_.

  [570] Rot. Hund. ii. 580.

  [571] On four out of the five manors the rent is 2_s._ 3_d._; on the
        fifth 3_s._ 0_d._

  [572] Inq. Com. Cant. 41.

  [573] D. B. i. 137 b.

  [574] D. B. i. 141 b.

  [575] Inq. Com. Cant., pp. 108-110. As names of the Abbot of Ely's
        sokemen in Meldreth and neighbouring villages we have Grimmus,
        Alsi Cild, Wenesi, Alsi, Leofwinus, Ædricus, Godwinus,
        Almarus, Aluricus frater Goduuini, Ædriz, Alsi Berd, Alricus
        Godingessune, Wenestan, Alwin Blondus, Alfuuinus, Aluredus,
        Alricus Brunesune, Alware, Hunuð, Hunwinus, Brizstanus. This
        does not point to a preponderance of Norse or Danish blood.

  [576] Owing to the wasted condition of Yorkshire, the information
        that we obtain of the T. R. E. is meagre and perfunctory. But
        what seems characteristic of this county is a holding of two
        or three ploughlands which we might fairly call an embryo
        manor.

  [577] See the early extents in Cart. Rams. iii. Thus (242) at
        Hemingford: 'R. V. tenet tres virgatas et dimidiam et sequitur
        hundredum et comitatum.... R. H. tenet duas virgatas et
        sequitur hundredum et comitatum.' Elsworth (249): 'R. filius
        T. duas virgatas. Pro altera sequitur comitatum et hundredum;
        pro altera solvit quinque solidos.' Brancaster (261): 'Cnutus
        avus Petri tenebat terram suam libere in tempore Regis Henrici
        et sequebatur comitatum et hundredum, et fuit quietus ab omni
        servitio.' See also Vinogradoff, Villainage, 411 ff.

  [578] Some thirty years ago the whole political world of England was
        agitated by controversy about 'the compound householder.' Was
        he to have a vote? The historian of the nineteenth century
        will not treat the compound householders as forming one
        homogeneous class of men whose general status could be marked
        off from that of other classes. Nor, it is to be hoped, will
        etymological guesses lead him to believe that the compound
        householder held a compound house. He will say that a landlord
        'compounded for' the rates of the aforesaid householder.
        _Mutatis mutandis_ may not the villein have been the compound
        householder of the eleventh century?

  [579] D. B. ii. 204: '3 liberi homines ... semper arant cum 3
        bobus.'

  [580] D. B. ii. 184 b.

  [581] D. B. ii. 192 b.

  [582] D. B. i. 211.

  [583] D. B. i. 218 b. Compare the 'dimidius porcus' of ii. 287.

  [584] D. B. i. 213 b: 'Hanc terram tenuerunt homines villae
        communiter et vendere potuerunt.'

  [585] D. B. i. 210, 212 b, 213 b.

  [586] D. B. i. 214: 'In Meldone Johannes de Roches occupavit iniuste
        25 acras super homines qui villam tenent.' This is a vague
        phrase.

  [587] e.g. D. B. i. 112 b: 'Colsuen homo Episcopi Constantiensis
        aufert ab hoc manerio communem pasturam quae ibi adiacebat T.
        R. E. et etiam T. R. W. quinque annis.'

  [588] D. B. ii. 339 b.

  [589] D. B. i. 140 b.

  [590] D. B. i. 75: 'tercia vero pars vel tercia quercus erat Comitis
        Eduini.'

  [591] D. B. ii. 404 b: 'et in tercio anno quarta pars mol[endini].'

  [592] D. B. ii. 291 b.

  [593] D. B. ii. 24 b.

  [594] D. B. ii. 438.

  [595] D. B. i. 83: 'sex taini in paragio,' 'quatuor taini in
        paragio.' Ibid. 83 b: 'novem taini in paragio.' Ibid. 168 b:
        'quinque fratres tenuerunt pro 5 maneriis et poterant ire quo
        volebant et pares erant.'

  [596] D. B. i. 96 b: 'dim. hida quam tenebat T. R. E. unus tainus in
        paragio.' Ibid. 40: 'Brictric tenuit de episcopo in paragio.'

  [597] But it was possible for several men to be holding in parage
        and yet for each of them to have a separate _manerium_. This
        seems to imply that their holdings were physically separate
        and that each holding was separately liable for geld, though
        as regards other matters, e.g. military service, the division
        was ignored.

  [598] D. B. i. 291.

  [599] D. B. i. 145 b.

  [600] D. B. i. 341.

  [601] D. B. i. 354.

  [602] D. B. i. 375 b: 'Siuuate et Alnod et Fenchel et Aschil
        equaliter et pariliter diviserunt inter se terram patris sui
        T. R. E. et ita tenuerunt ut si opus fuit expeditione Regis et
        Siuuate potuit ire, alii fratres iuverunt eum. Post istum,
        ivit alter et Siuuate cum reliquis iuvit eum; et sic de
        omnibus. Siuuate tamen fuit homo Regis.'

  [603] D. B. i. 206: 'sex sochemanni id est Aluuoldus et 5 fratres
        eius habuerunt 4 hid. et dim. ad geldum.'

  [604] D. B. i. 233: 'Hanc terram tenuerunt 2 fratres pro 2 maneriis,
        et postea emit alter ab altero partem suam et fecit unum
        manerium de duobus T. R. E.'

  [605] D. B. i. 127 b: 'Hoc manerium tenent villani ad firmam
        canonicorum.'

  [606] D. B. i. 162 b.

  [607] D. B. i. 69.

  [608] D. B. ii. 118 b Yarmouth: 'De gersuma has 4 libras dant
        burgenses gratis et amicitia.'

  [609] Thus D. B. iv. 568: 'Due ville reddunt 30 sol. de cornagio.'
        Ib. 570: 'Queryngdonshire reddit 76 sol. de cornagio.'

  [610] Black Book of Peterborough, _passim_.

  [611] Hist. Engl. Law, i. 550.

  [612] Edgar IV. 8. 9.

  [613] Ibid. 6.

  [614] Leg. Edw. Conf. 24.

  [615] Leg. Edw. Conf. 15. Compare Leg. Henr. 91; Leg. Will. Conq. I.
        22; Leg. Will. Conq. III.. 3.

  [616] Leg. Henr. 7 § 7.

  [617] It is possible that the entry (i. 204) which tells how the
        sokemen of Broughton enjoyed the smaller _wites_ points to a
        free village court; but we have put another interpretation
        upon this; see above, p. 99.



§ 8. _The Feudal Superstructure._


[The higher ranks of men.]

It remains that we should speak very briefly of the higher ranks of men
and the tenure by which they held their land. Little accurate
information can be extorted from our record. The upper storeys of the
old English edifice have been demolished and a new superstructure has
been reared in their stead. It is not the office of Domesday Book to
tell us much even of the new nobility, of the services which the counts
and barons are to render to the king in return for their handsome
endowments:--as to the old nobility, that has perished. Still there are
some questions that we ought to ask.

[Dependent tenure.]

The general theory that all land tenure, except indeed the tenure by
which the king holds land in demesne, is dependent tenure, seems to be
implied, not only by many particular entries, but also by the whole
scheme of the book. Every holder of land, except the king, holds it of
(_de_) some lord, and therefore every acre of land that is not royal
demesne can be arranged under the name of some tenant in chief. Even a
church will hold its land, if not of the king, then of some other
lord[618]. The terms of the tenure are but very rarely described, for
Domesday Book is no feodary. Just now and again a tenure _in elemosina_
is noticed and in some of these cases this term seems already to bear
the technical sense that it will have in later days; the tenant owes a
spiritual, but no secular service[619]. A few instances of what later
lawyers would call a 'tenure by divine service,' as distinct from a
tenure in frank-almoin, may be found[620]. A few words here and there
betray the existence of tenure by knight's service and of castle
guard[621]. In the _servientes Regis_ who have been enfeoffed in divers
counties we may see the predecessors of the tenants by serjeanty[622].
We shall remark, however, the absence of those abstract terms which are
to become the names of the various tenures. We read of _servientes_,
_sochemanni_, _villani_, _burgenses_, but not of _seriantia_[623],
_socagium_, _villenagium_, _burgagium_. As we pursue our retrogressive
course through the middle ages, we do not find that the law of personal
condition becomes more and more distinct from the law of land tenure; on
the contrary, the two become less and less separable.

[_Feudum._]

It has sometimes been said that a feudal tenure was the only kind of
land tenure that the Norman conquerors could conceive. In a certain
sense this may be true, but we should have preferred to say that
probably they could not easily conceive a kind of tenure that was not
dependent:--every one who holds land (except he be the king) holds it of
someone else. The adjective 'feudal' was not in their vocabulary, and
their use of the word _feudum_--occasionally we meet the older
_feum_[624]--is exceedingly obscure. Very rarely does it denote a tenure
or a mass of rights; usually, though it may connote rights of a certain
order, it denotes a stretch of land; thus we may read of the fee of the
Bishop of Bayeux, thereby being meant the territory which the bishop
holds. Occasionally, however, we hear of a man holding land _in feudo_.
One instance may be enough to show that such a phrase did not imply
military tenure:--'William the Chamberlain held this manor _in feudo_ of
the Queen [Matilda] at a rent of £3 a year and after her death he held
it in the same fashion of the king[625].' All sense of militariness, and
all sense of precariousness, that the word has ever had in its
continental history, seems to be disappearing. Already the process has
begun which will make it applicable to every person who has heritable
rights in land. William the Chamberlain is, we take it, already a fee
farmer, that is, a rent-paying tenant with heritable rights[626]. As to
the word _beneficium_, which _feum_ or _feudum_ has been supplanting, we
shall hardly find it with its old meaning. It seems to be holding its
own only within the sphere of ecclesiastical rights, where the
'benefice' will survive until our own day[627].

[_Alodium._]

A yet more interesting and equally foreign word is not unfrequently
used, namely, _alodium_. The Norman commissioners deemed that a large
number of English tenants in Kent, Sussex, Surrey and Hampshire and some
in Berkshire had been _alodiarii_ or _aloarii_ and had held _in alodium_
or _sicut alodium_. The appearance of this term in one district and in
one only is far from proving that there had been anything peculiar in
the law of that district. It may well be a mere chance that the _liberi
homines_ of other counties are not called _alodiaries_. Still in
Hampshire, where alodiaries abounded, it was not every free man holding
land who had an _alod_[628]. Perhaps we shall be right in thinking that
the term pointed to heritability:--the free man who holds land but has
no _alod_ has only an estate for life. Certainly it does not mean that
the tenant has no lord. The alodiary may hold his alod 'of' his
lord[629]; he may owe service to his lord[630]; he may pay a
relief[631]; he may have no power 'to withdraw himself with his land'
from his lord[632]. The Norman lawyers had no speculative objection to
the existence of alodiaries; it in no way contradicted such doctrine of
tenure as they had formed. In 1086 there were still alodiaries in
Berkshire[633], and in royal charters of a much later day there is talk
of the alodiaries of Kent as of an existing class[634]. It is just
possible that William's commissioners saw some difference between
holding _in feudo_ and holding _in alodio_. If ever they contrasted the
two words, they may have hinted that while the _feudum_ has been given
by the lord to the man, the _alodium_ has been brought by the man to the
lord; but we can not be very certain that they ever opposed these terms
to each other[635]. Such sparse evidence as we can obtain from Normandy
strengthens our belief that the wide, the almost insuperable, gulf that
modern theorists have found or have set between 'alodial ownership' and
'feudal tenure' was not perceptible in the eleventh century[636]. It can
be no part of our task to trace the history of these terms _alodium_ and
_feudum_ behind the date at which they are brought into England, but
hereafter we shall see that here in England a process had been at work
which, had these terms been in use, would have brought the alod very
near to the feud, the feud very near to the alod.

[Application of the formula of dependent tenure.]

It is probable that this process had gone somewhat further in Normandy
than in England. It is probable that the Normans knew that in imposing
upon all English lands 'the formula of dependent tenure' they were
simplifying matters. They seem to think, and they may be pretty right in
thinking, that every English land-holder had held his land under (_sub_)
some lord; but apparently they do not think that every English
land-holder had held his land of (_de_) some lord. Not unfrequently they
show that this is so. Thus one Sigar holds a piece of Cambridgeshire
_of_ Geoffrey de Mandeville; he used to hold it _under_ Æsgar the
Staller[637]. We catch a slight shade of difference between the two
prepositions; _sub_ lays stress on the lord's power, which may well be
of a personal or justiciary, rather than of a proprietary kind, while
_de_ imports a theory about the origin of the tenure; it makes the
tenant's rights look like derivative rights:--it is supposed that he
gets his land from his lord. And at least in the eastern counties--so
it may well have seemed to the Normans--matters sadly needed
simplification. Even elsewhere and when a large estate is at stake they
can not always get an answer to the question 'Of whom was this land
holden[638]?' Still they thought that some of the greatest men in the
realm had held their lands, or some of their lands, of the king or of
someone else. The formulas which are used throughout the description of
Hampshire and some other counties seem to assume that every holder of a
manor, at all events if a layman, had held it _of_ the king, if he did
not hold it _of_ another lord. Tenure _in feudo_ again they regarded as
no innovation[639]. They saw the work of subinfeudation:--Brihtmær held
land of Azor and Azor of Harold; we may well suppose that Harold held it
_of_ the king and that some villeins held part of it of Brihtmær, and
thus we see already a feudal ladder with no less than five rungs[640].
They saw that the thegns owed 'service' to their lords[641]. They saw
the heriot; they sometimes called it a relief[642]. We can not be sure
that this change of names imported any change in the law; when a burgess
of Hereford died the king took a heriot, but if he could not get the
heriot he took the dead man's land[643]. They saw that in certain cases
an heir had to 'seek' his ancestor's lord if he wished to enjoy his
ancestor's land[644]. They saw that many a free man could not give or
sell his land without his lord's consent. They saw that great and
powerful men could not give or sell their land without the king's
consent[645].

[Military tenure.]

They saw something very like military tenure. No matter with which we
have to deal is darker than the constitution of the English army on the
eve of its defeat. We may indeed safely believe that no English king had
ever relinquished the right to call upon all the free men of his realm
to resist an invader. On the other hand, it seems quite clear that, as a
matter of fact, 'the host' was no longer 'the nation in arms.' The
common folk of a shire could hardly be got to fight outside their shire,
and ill-armed troops of peasants were now of little avail. The only army
upon which the king could habitually rely was a small force. The city of
Oxford sent but twenty men or twenty pounds[646]: Leicester sent twelve
men[647]: Warwick sent ten[648]. In Berkshire the law was that, if the
king called out the host, one soldier (_miles_) should go for every five
hides and should receive from each hide four shillings as his stipend
for two months' service. If the man who was summoned made default, he
forfeited all his land to the king; but there were cases in which he
might send one of his men as a substitute, and for a default committed
by his substitute he suffered no forfeiture, but only a fine of fifty
shillings[649]. It is probable that a similar 'five hide rule' obtained
throughout a large part of England. The borough of Wilton was bound to
send twenty shillings or one man 'as for an honour of five hides[650].'
When an army or a fleet was called out, Exeter 'served to the amount of
five hides[651].' All this points to a small force of well armed
soldiers. For example, 'the five hide rule' would be satisfied if
Worcestershire sent a contingent of 240 men. But not only was the army
small; it was a territorial army; it grew out of the soil.

[The army and the land.]

At first sight this 'five hide rule' may seem to have in it little that
is akin to a feudal system of knights' fees. We may suppose that it will
work thus:--The host is summoned; the number of hides in each hundred is
known. To despatch a company of soldiers proportioned to the number of
the hides, for example twenty warriors if the hundred contains just one
hundred hides, is the business of the hundred court and the question
'Who must go?' will be answered by election, rotation or lot. But it is
not probable that the territorializing process will stop here, and this
for several reasons. An army that can not be mobilized without the
action of the hundred moots is not a handy force. While the hundredors
are deliberating the Danes or Welshmen will be burning and slaying. Also
a king will not easily be content with the responsibility of a
fluctuating and indeterminate body of hundredors; he will insist, if he
can, that there must be some one person answerable to him for each unit
of military power. A serviceable system will not have been established
until the country is divided into 'five-hide-units,' until every man's
holding is such an unit, or is composed of several such units, or is an
aliquot share of such an unit. Then again the holdings with which the
rule will have to deal are not homogeneous; they are not all of one and
the same order. It is not as though to each plot of land there
corresponded some one person who was the only person interested in it;
the occupiers of the soil have lords and again those lords have lords.
The king will insist, if he can, that the lords who stand high in this
scale must answer to him for the service that is due from all the lands
over which they exercise a dominion, and then he will leave them free to
settle, as between themselves and their dependants, the ultimate
incidence of the burden:--thus room will be made for the play of free
contract. At all events when, as is not unusual, some lord is the lord
of a whole hundred and of its court, the king will regard him as
personally liable for the production of the whole contingent that is due
from that hundred. In this way a system will be evolved which for many
practical purposes will be indistinguishable from the system of knights'
fees, and all this without any help from the definitely feudal idea
that military service is the return which the tenant makes to the lord
for the gift of land that the lord has made to the tenant.

[Feudalism and army service.]

That this process had already done much of its work when the old English
army received its last summons, we can not doubt, though it is very
possible that this work had been done sporadically. We see that the land
was being plotted out into five-hide-units. In one passage the Norman
clerks call such a unit an honour, an 'honour of five hides[652].' There
is an old theory based upon legal texts that such an honour qualifies
its lord or owner to be a thegn. If a ceorl prospers so that he has five
hides 'to the king's útware,' that is, an estate rated as five hides for
military purposes, he is worthy of a thegn's wergild[653]. Then the
Anglo-Saxon charters show us how the kings have been endowing their
thegns with tracts of territory which are deemed to contain just five or
some multiple of five hides[654]. The thegn with five hides will have
tenants below him; but none of them need serve in the host if their lord
goes, as he ought to go, in person. Then each of these territorial units
continues to owe the same quantum of military service, though the number
of persons interested in it be increased or diminished, and thus the
ultimate incidence of the duty becomes the subject-matter of private
arrangements. That is the point of a story from Lincolnshire which we
have already recounted:--A man's land descends to his four sons; they
divide it equally and agree to take turns in doing the military service
that is due from it; but only the eldest of them is to be the king's
man[655]. Then we see that the great nobles lead or send to the war all
the _milites_ that are due from the lands over which they have a
seignory. There are already wide lands which owe military service--we
can not put it otherwise--to the bishop of Winchester as lord of
Taunton:--they owe 'attendance in the host along with the men of the
bishop[656].' The churches of Worcester and Evesham fell out about
certain lands at Hamton; one of the disputed questions was whether or
no Hamton ought to do its military service 'in the bishop's hundred of
Oswaldslaw' or elsewhere[657]. This question we take to be one of great
importance to the bishop. Lord of the triple hundred of Oswaldslaw, lord
of three hundred hides, he is bound to put sixty warriors into the field
and he is anxious that men who ought to be helping him to make up this
tale shall not be serving in another contingent.

[Default of service.]

But from Worcestershire we obtain a still more precious piece of
information. The custom of that county is this:--When the king summons
the host and his summons is disregarded by one who is a lord with
jurisdiction, 'by one who is so free a man that he has sake and soke and
can go with his land where he pleases,' then all his lands are in the
king's mercy. But if the defaulter be the man of another lord and the
lord sends a substitute in his stead, then he, the defaulter, must pay
forty shillings to his lord,--to his lord, not to the king, for the king
has had the service that was due; but if the lord does not send a
substitute, then the forty shillings which the defaulter pays to the
lord, the lord must pay to the king[658]. A feudalist of the straiter
sort might well find fault with this rule. He might object that the lord
ought to forfeit his land, not only if he himself fails to attend the
host, but also if he fails to bring with him his due tale of _milites_.
Feudalism was not perfected in a day. Still here we have the root of the
matter--the lord is bound to bring into the field a certain number of
_milites_, perhaps one man from every five hides, and if he can not
bring those who are bound to follow him, he must bring others or pay a
fine. His man, on the other hand, is bound to him and is not bound to
the king. That man by shirking his duty will commit no offence against
the king. The king is ceasing to care about the ultimate incidence of
the military burden, because he relies upon the responsibility of the
magnates. How this system worked in the eastern counties where the power
of the magnates was feebler, we can not tell. It is not improbable that
one of the forces that is attaching the small free proprietors to the
manors of their lords is this 'five hide rule'; they are being compelled
to bring their acres into five-hide-units, to club together under the
superintendence of a lord who will answer for them to the king, while as
to the villeins, so seldom have they fought that they are ceasing to be
'fyrd-worthy[659].' But in the west we have already what in substance
are knights' fees. The Bishop of Worcester held 300 hides over which he
had sake and soke and all customs; he was bound to put 60 _milites_ into
the field; if he failed in this duty he had to pay 40 shillings for each
deficient _miles_. At the beginning of Henry II.'s reign he was charged
with 60 knights' fees[660].

[The new military service.]

We are not doubting that the Conqueror defined the amount of military
service that was to be due to him from each of his tenants in chief, nor
are we suggesting that he paid respect to the rule about the five hides,
but it seems questionable whether he introduced any very new principle.
A new theoretic element may come to the front, a contractual
element:--the tenant in chief must bring up his knights because that is
the service that was stipulated for when he received his land. But we
cannot say that even this theory was unfamiliar to the English. The
rulers of the churches had been giving or 'loaning' lands to thegns. In
so doing they had not been dissipating the wealth of the saints without
receiving some 'valuable consideration' for the gift or the loan
(_lǽn_); they looked to their thegns for the military service that
their land owed to the king. To this point we must return in our next
essay; but quite apart from definitely feudal bargains between the king
and his magnates, between the magnates and their dependants, a
definition of the duty of military service which connects it with the
ownership of land (and to such a definition men will come so soon as the
well-armed few can defeat the ill-armed many) will naturally produce a
state of things which will be patient of, even if it will not engender,
a purely feudal explanation. If one of the men to whom the Bishop of
Worcester looks for military service makes a default, the fine that is
due from him will go to the bishop, not to the king. Why so? One
explanation will be that the bishop has over him a sake and soke of the
very highest order, which comprehends even that _fyrd-wíte_, that fine
for the neglect of military duty, which is one of the usually reserved
pleas of the crown[661]. Another explanation will be that this man has
broken a contract that he made with the bishop and therefore owes amends
to the bishop:--to the bishop, not to the king, who was no party to the
contract. Sometimes the one explanation will be the truer, sometimes the
other. Sometimes both will be true enough. As a matter of fact, we
believe that these men of the Bishop of Worcester or their predecessors
in title have solemnly promised to do whatever service the king demands
from the bishop[662]. Still we can hardly doubt which of the two
explanations is the older, and, if we attribute to the Norman invaders,
as perhaps we may, a definite apprehension of the theory that knight's
service is the outcome of feudal compacts, this still leaves open the
inquiry whether the past history of military service in Frankland had
not been very like the past history of military service in England.
Already in the days of Charles the Great the duty of fighting the
Emperor's battles was being bound up with the tenure of land by the
operation of a rule very similar to that of which we have been speaking.
The owner of three (at a later time of four) manses was to serve; men
who held but a manse apiece were to group themselves together to supply
soldiers. Then at a later time the feudal theory of free contract was
brought in to explain an already existing state of things[663].

[The thegns.]

Closely connected with this matter is another thorny topic, namely, the
status of the thegn and the relation of the thegn to his lord. In the
Confessor's day many _maneria_ had been held by thegns; some of them
were still holding their lands when the survey was made and were still
called thegns. The king's thegns were numerous, but the queen also had
thegns, the earls had thegns, the churches had thegns and we find thegns
ascribed to men who were neither earls nor prelates but themselves were
thegns[664]. Many of the king's thegns were able to give or sell the
lands that they held, 'to go to whatever lord they pleased[665].' On the
other hand, many of the thegns of the churches held lands which they
could not 'withdraw' from the churches[666]; in other words 'the
thegn-lands' of the church could not be separated from the church[667].
The Conqueror respected the bond that tied them to the church. The Abbot
of Ely complained to him that the foreigners had been abstracting the
lands of St. Etheldreda. His answer was that her demesne manors must at
once be given back to her, while as for the men who have occupied her
thegnlands, they must either make their peace with the abbot or
surrender their holdings[668]. Thus the abbot seems to have had the
benefit of that forfeiture which his thegns incurred by espousing the
cause of Harold. We see therefore that the relation between thegn, lord
and land varied from case to case. The land might have proceeded from
the lord and be held of the lord by the thegn as a perpetually
inheritable estate, or as an estate granted to him for life, or granted
to him and two successive heirs[669]; on the other hand, the lord's hold
over the land might be slight and the bond between thegn and lord might
be a mere commendation which the thegn could at any time dissolve.
Again, the relation between thegn and lord is no longer conceived as a
menial, 'serviential' or ministerial relation. The _Taini Regis_ are
often contrasted with the _Servientes Regis_[670]. The one trait of
thegnship which comes out clearly on the face of our record is that the
thegn is a man of war[671]. But even this trait is obscured by language
which seems to show that there has been a great redistribution of
military service. Though there is no Latin word that will translate
_thegn_ except _miles_, though these two terms are never contrasted with
each other, and though there are thegns still existing, still of these
two terms one belongs to the old, the other to the new order of
things[672]. Thus thegnship is already becoming antiquated and we are
left to guess from older dooms and later Leges what was its essence in
the days of King Edward.

[Nature of thegnship.]

The task is difficult for we can see that this institution has undergone
many changes in the course of a long history and yet can not tell how
much has remained unchanged. We begin by thinking of thegnship as a
relation between two men. The thegn is somebody's thegn. The household
of the great man, but more especially the king's household, is the
cradle of thegnship. The king's thegns are his free servants--servants
but also companions. In peace they have duties to perform about his
court and about his person; they are his body-guard in war. Then the
king--and other great lords follow his example--begins to give lands to
his thegns, and thus the nature of the thegnship is modified. The thegn
no longer lives in his lord's court; he is a warrior endowed with land.
Then the thegnship becomes more than a relationship, it becomes a
status. The thegn is a 'twelve hundred man'; his wergild and his oath
countervail those of six ceorls. This status seems to be hereditary; the
thegn's sons are 'dearer born' than are the sons of the ceorl[673]. But
we can not tell how far this principle is carried. We can not easily
reconcile this hereditary transmission of thegn-right with the original
principle that thegnship is a relation between two men. We may have
thegns who are nobody's thegns, or else we may have persons entitled to
the thegnly wergild who yet are not thegns. What is more, since the law
which regulates the inheritance of land does not favour the first-born,
we may have poor thegns and landless thegns. Yet another principle comes
into play. A duty of finding well armed warriors for the host is being
territorialized; every five hides should find a soldier. The thegn from
of old has to attend the host with adequate equipment; the men who under
the new system have to attend the host with horse and heavy armour are
usually thegns. Then the man who has five hides, and who therefore ought
to put a warrior into the field, is a thegn or is entitled to be a
thegn. The ceorl obtains the thegnly wergild if he has an estate rated
for military purposes at five hides. Another version of this tradition
requires of the ceorl who 'thrives to thegn-right' five hides of his own
land, a church, a kitchen, a house in the _burh_, a special office in
the king's hall. To be 'worthy of thegn-right' may be one thing, to be a
thegn, another. To be a thegn one must be some one's thegn. The
prosperous ceorl will be no thegn until he has put himself under some
lord. But the bond between him and his lord may be dissoluble at will
and may hardly affect his land. It is, we repeat, very difficult to
discover how these various principles were working together, checking
and controlling each other in the first half of the eleventh century.
Several inconsistent elements seem to be blended. There is the element
of hereditary caste:--the thegn transmits thegnly blood to his
offspring. There is the element of personal relationship:--he is the
thegn of some lord and owes fealty to that lord. There is the military
element:--he is a warrior who has horse and heavy armour and is bound to
fight the nation's battles. Connected with this last there is the
proprietary element:--each five hides must send a warrior to the host;
the man with five hides is entitled to become, perhaps he may be
compelled to become a thegn, a warrior[674].

[The thegns of Domesday.]

On the whole, we gather from Domesday Book that the military element is
subduing the others. The thegn is the man who for one reason or another
is a warrior. For one reason or another, we say; for the class of thegns
is by no means homogeneous. On the one hand, we see the thegns of the
churches, who have been endowed by the prelates in order that they may
do the military service due from the ecclesiastical lands. Many of the
prelates have thegns, and for the creation of thegnlands by the churches
it would not be easy to find any explanation save that which we have
already found in the territorialization of military service. The thegn
might pay some annual 'recognition' to the church, he might send his
labourers to help his lord for a day or two at harvest time; but we may
be sure that he was not rack-rented and that, if military service be
left out of account, the church was a loser by endowing him. Here the
land proceeds from the lord to the thegn; the thegn can not give or sell
it; the holder of that land can have no lord but the church; if he
forfeits the land, he forfeits it to the church. But, on the other hand,
we see numerous king's thegns who are able 'to go to what lord they
please.' We may see in them landed proprietors who by the play of 'the
five hide rule' have become bound to serve as warriors. We may be fairly
certain that they have not been endowed by the king, otherwise they
would not enjoy the liberty, that marvellous liberty, of leaving him, of
putting themselves under the protection and the banner of some earl or
some prelate. Not that every thegn will (if we may borrow phrases from a
later age) possess a full 'thegn's fee' or owe the service of a whole
warrior. Large groups of thegns we may see who obviously are brothers or
cousins enjoying in undivided shares the inheritance of some dead
ancestor. They may take it in turns to go to the war; the king may hold
the eldest of them responsible for all the service; but each of them
will be called a thegn, will be entitled to a thegnly wergild and swear
a thegnly oath. Still, on the whole, the thegn of Domesday Book is a
warrior, and he holds--though perhaps along with his coparceners--land
that is bound to supply a warrior.

[Greater and lesser thegns.]

In the main all thegns seem to have the same legal status, though they
may not be all of equal rank. All of them seem to have the wergild of
twelve hundred shillings. A law of Cnut, after describing the heriot of
the earl, distinguishes two classes of thegns; there is 'the king's
thegn who is nighest to him' and whose heriot includes four horses and
50 mancuses of gold, and 'the middle thegn' or 'less thegn' from whom he
gets but one horse and one set of arms or £2.[675] This law should we
think be read in connexion with the rule that is recorded by Domesday
Book as prevailing in the shires of Derby and Nottingham:--the thegn who
had fewer than seven manors paid a relief of 3 marks to the sheriff,
while he who had seven and upwards paid £8 to the king[676]. A rude line
is drawn between the richer and the poorer thegns of the king. The
former deal immediately with the king and pay their reliefs directly to
him; the latter are under the sheriff and their reliefs are comprised in
his farm. Thus the wealthy thegns, like the _barones maiores_ of later
days, are 'nigher to' the king than are the 'less-thegns' or those
_barones minores_ who in a certain sense are their successors.

[The great lords.]

The kings, the earls and the churches have of course many demesne
manors. Of the ecclesiastical estates we shall speak in our next essay,
for they can be best examined in the light that is cast upon them by the
Anglo-Saxon charters. Here we will merely observe that some of the
churches have not only large, but well compacted territories. The abbey
of St. Etheldreda, for example, besides having outlying manors, holds
the two hundreds which make up the isle of Ely; her property in
Cambridgeshire is valued at £318[677]. The earls also are rich in
demesne manors and so is the king.

[The king as landlord.]

King William is much richer than King Edward was. The Conqueror has been
chary in appointing earls and consequently he has in his hand, not only
the royal manors, but also a great many comital manors, to say nothing
of some other estates which, for one reason or another, he has kept to
himself. Edward had been rich, but when compared with his earls he had
not been extravagantly rich. In Somersetshire, for example, there were
twelve royal manors which may have brought in a revenue of £500 or
thereabouts, while there were fifteen comital manors which were worth
nearly £300[678]. The royal demesne had been a scattered territory; the
king had something in most shires, but was far richer in some than in
others. It was not so much in the number of his manors as in their size
and value that he excelled the richest of his subjects. Somehow or
another he had acquired many of those vills which were to be the smaller
boroughs and the market towns of later days. We may well suppose that
from of old the vills that a king would wish to get and to keep would be
the flourishing vills, but again we can not doubt that many a vill has
prospered because it was the king's.

[The ancient demesne.]

Among the manors which William holds in the south-west a distinction is
drawn by the Exeter Domesday. The manors which the Confessor held are
'The King's Demesne which belongs to the kingdom,' while those which
were held by the house of Godwin are the 'Comital Manors[679].' So in
East Anglia certain manors are distinguished as pertaining or having
pertained to the kingdom or kingship, the _regnum_ or _regio_[680]. This
does not seem to have implied that they were inalienably annexed to the
crown, for King Edward had given some of them away. Neither when it
speaks of the time of William, nor when it speaks of the time of Edward,
does our record draw any clear line between those manors which the king
holds as king and those which he holds in his private capacity, though
it may just hint that certain ancient estates ought not to be alienated.
The degree in which the various manors of the crown stood outside the
national system of finance, justice and police we can not accurately
ascertain. Some, but by no means all, pay no geld. Of some it is said
that they have never paid geld. Perhaps in these ingeldable manors we
may see those which constituted the royal demesne of the West Saxon
kings at some remote date. Of the king's vill of Gomshall in Surrey it
is written: 'the villeins of this vill were free from all the affairs of
the sheriff[681],' as though it were no general truth that with a royal
manor the sheriff had nothing to do.

[The comital manors.]

As with the estates of the king, so with the estates of the earls, we
find it impossible to distinguish between private property and official
property. Certain manors are regarded as the 'manors of the shire'
(_mansiones de comitatu_[682]); certain vills are 'comital vills[683],'
they belong to 'the consulate[684].' Hereditary right tempered by
outlawry was fast becoming the title by which the earldoms were holden.
The position of the house of Leofric in Mercia was far from being as
strong as the position of the house of Rolf in Normandy, and yet we may
be sure that King Harold would not have been able to treat the sons of
Ælfgar as removable officers. But one of the best marked features of
Domesday Book, a feature displayed on page after page, the enormous
wealth of the house of Godwin, seems only explicable by the supposition
that the earlships and the older ealdormanships had carried with them a
title to the enjoyment of wide lands. That enormous wealth had been
acquired within a marvellously short time. Godwin was a new man: nothing
certain is known of his ancestry. His daughter's marriage with the king
will account for something; Harold's marriage with the daughter of
Ælfgar will account for something, for instance, for manors which Harold
held in the middle of Ælfgar's country[685]; and a great deal of simple
rapacity is laid to the charge of Harold by jurors whose testimony is
not to be lightly rejected[686]; but the greater part of the land
ascribed to Godwin, his widow and his sons, seems to consist of
_comitales villae_.

[Private rights and governmental revenues.]

The wealth of the earls is a matter of great importance. If we subtract
the estates of the king, the estates of the earls, and the estates of
the churches--and, as we shall see hereafter, the churches had obtained
the bulk of their wealth directly from the kings,--if we subtract again
the lands which the king, the earls, the churches have granted to their
thegns, the England of 1065 will not appear to us a land of very great
landowners, and we may obtain a valuable hint as to one of the origins
of feudalism. A vast amount of land is or has recently been held by
office-holders, by the holders of the kingship, the earlships, or the
ealdormanships. We seem to see their proprietary rights arising in the
sphere of public law, growing out of governmental rights, which however
themselves are conceived as being in some sort proprietary. Many a
passage in Domesday Book will suggest to us that a right to take tribute
and a right to take the profits of justice have helped to give the king
and the earls their manors and their seignories. Even in his own demesne
manors the king is apt to appear rather as a tribute taker than as a
landowner. Manors of very unequal size and value have had to supply him
with equal quantities of victuals; each has to give 'a night's farm'
once a year. Then from the counties at large he has taken a tribute;
from Oxfordshire, for example, £10 for a hawk, 20 shillings for a
sumpter horse, £23 for dogs and 6 sesters of honey[687]; from
Worcestershire £10 or a Norway hawk, 20 shillings for a sumpter
horse[688]; from Warwickshire £23 for 'the dog's custom,' 20 shillings
for a sumpter horse, £10 for a hawk and 24 sesters of honey[689]. The
farm of the county that the sheriff pays is made up out of obscure old
items of this sort. Many men who are not the king's tenants must assist
him in his hunting, must help in the erection of his deer-hays[690].
Then there are the _avera_ and the _inwards_ that are exacted by the
king or his sheriff from sokemen who are not the king's men. The sheriff
also is entitled to provender rents; out of 'the revenues which belong
to the shrievalty' of Wiltshire, Edward of Salisbury gets pigs, wheat,
barley, oats, honey, poultry, eggs, cheeses, lambs and fleeces; and
besides this he seems to have 'reveland' which belongs to him as
sheriff[691]. Then we see curious payments in money and renders in kind
made to some royal or some comital manor by the holders of other manors.
In Devonshire, Charlton which belongs to the Bishop of Coutances,
Honiton which belongs to the Count of Mortain, Smaurige which belongs to
Ralph de Pomerai, Membury which belongs to William Chevre, Roverige
which belongs to St. Mary of Rouen, each of these manors used to pay
twenty pence a year to the royal manor of Axminster[692]. In
Somersetshire there are manors which have owed _consuetudines_, masses
of iron and sheep and lambs to the royal manors of South Perrott and
Cury, or the comital manors of Crewkerne and Dulverton[693]. Then again,
we find that pasture rights are connected with justiciary
rights:--Godwin had a manor in Hampshire to which belonged the third
penny of six hundreds, and in all the woods of those six hundreds he had
free pasture and pannage[694]; the third penny of three hundreds in
Devonshire and the third animal of the moorland pastures were annexed to
the manor of Molland[695]. Many things seem to indicate that the
distinction between private rights and governmental powers has been but
faintly perceived in the past.

[The English state.]

If now we look at that English state which is the outcome of a purely
English history, we see that it has already taken a pyramidal or conical
shape. It is a society of lords and men. At its base are the cultivators
of the soil, at its apex is the king. This cone is as yet but low. Even
at the end of William's reign the peasant seldom had more than two lords
between him and the king, but already in the Confessor's reign he might
well have three[696]. Also the cone is obtuse: the angle at its apex
will grow acuter under Norman rulers. We can indeed obtain no accurate
statistics, but the number of landholders who were King Edward's men
must have been much larger than the tale of the Norman tenants in chief.
In the geographical distribution of the large estates under William
there is but little more regularity than there was under his
predecessor. In Cheshire and in Shropshire the Conqueror formed two
great fiefs for Hugh of Avranches and Roger of Montgomery, well
compacted fiefs, the like of which England had not yet seen. But the
units which William found in existence and which he distributed among
his followers were for the more part discrete units, and seldom did the
Norman baron acquire as his honour any wide stretch of continuous
territory. Still a great change took place in the substance of the cone,
or if that substance is made up of lords and men and acres, then in the
nature of, or rather the relation between, the forces which held the
atoms together. Every change makes for symmetry, simplicity,
consolidation. Some of these changes will seem to us predestined. To
speculate as to what would have happened had Harold repelled the invader
would be vain, and certainly we have no reason for believing that in
that case the formula of dependent tenure would ever have got hold of
every acre of English land and every right in English land. The law of
'land loans' (_Lehnrecht_) would hardly have become our only land law,
had not a conqueror enjoyed an unbounded power, or a power bounded only
by some reverence for the churches, of deciding by what men and on what
terms every rood of England should be holden. Had it not been for this,
we should surely have had some _franc alleu_ to oppose to the _fief_,
some _Eigen_ to oppose to the _Lehn_. But if England was not to be for
ever a prey to rebellions and civil wars, the power of the lords over
their men must have been--not indeed increased, but--territorialized;
the liberty of 'going with one's land to whatever lord one chose' must
have been curtailed. As yet the central force embodied in the kingship
was too feeble to deal directly with every one of its subjects, to
govern them and protect them. The intermediation of the lords was
necessary; the state could not but be pyramidal; and, while this was so,
the freedom that men had of forsaking one lord for another, of forsaking
even the king for the ambitious earl, was a freedom that was akin to
anarchy. Such a liberty must have its wings clipt; free contract must be
taught to know its place; the lord's hold over the man's land must
become permanent. This change, if it makes at first for a more definite
feudalism, or (to use words more strictly) if it substitutes feudalism
for vassalism, makes also for the stability of the state, for the
increase of the state's power over the individual, and in the end for
the disappearance of feudalism. The freeholder of the thirteenth
century is much more like the subject of a modern state than was the
free man of the Confessor's day who could place himself and his land
under the power and warranty of whatever lord he chose. Lordship in
becoming landlordship begins to lose its most dangerous element; it is
ceasing to be a religion, it is becoming a 'real' right, a matter for
private law. Again, we may guess, if we please, that but for the Norman
Conquest the mass of the English peasantry would never have fallen so
low as fall it did. The 'sokemen' would hardly have been turned into
'villeins,' the 'villeins' would hardly have become 'serfs.' And yet the
villeins of the Confessor's time were in a perilous position. Already
they were occupying lands which for two most important purposes were
reckoned the lands of their lords, lands for which their lords gelded,
lands for which their lords fought. Even in an English England the time
might have come when the state, refusing to look behind their lords,
would have left the protection of their rights to a _Hofrecht_, to 'the
custom of the manor.'

[Last words.]

It is, we repeat it, vain to speculate about such matters, for we know
too little of the relative strength of the various forces that were at
work, and an accident, a war, a famine, may at any moment decide the
fate, even the legal fate, of a great class. And above all there is the
unanswerable question whether Harold or any near successor of his would
or could have done what William did so soon as the survey was
accomplished, when he proved that, after all, the pyramid was no pyramid
and that every particle of it was in immediate contact with him, and
'there came to him all the land-sitting men who were worth aught from
over all England, whosesoever men they were, and they bowed themselves
to him, and became this man's men[697].'


FOOTNOTES:

  [618] D. B. i. 91: 'Ecclesia Romana beati Petri Apostoli tenet de
        Rege Peritone.' Ib. 157: 'Ecclesia Sancti Dyonisii Parisii
        tenet de Rege Teigtone. Rex Edwardus ei dedit.' Ib. 20 b:
        'Abbas de Grestain tenet de Comite 2 hidas in Bedingham.'

  [619] Hist. Eng. Law, i. 220.

  [620] D. B. i. 218 b: 'Rex vero Willelmus sibi postea in elemosina
        concessit, unde pro anima Regis et Regine omni ebdomada 2
        feria missam persolvit.' D. B. ii. 133: 'et cantat unaquaque
        ebdomada tres missas.'

  [621] D. B. i. 3: 'reddit unum militem in servitio Archiepiscopi.'
        Ib. 10 b: 'servitium unius militis.' Ib. 32: 'servitium unius
        militis.' Ib. 151 b: 'inveniebat 2 loricatos in custodiam de
        Windesores.'

  [622] Hist. Eng. Law, i. 268.

  [623] But D. B. i. 218 b gives us 'tenet in ministerio Regis.'

  [624] D. B. i. 4 b: 'De terra huius manerii tenet Godefridus in feuo
        dimid. solin.' Ib. 36 b: 'Humfridus Camerarius tenet de feuo
        Reginae Cumbe.' Ib. 336 b: 'Ipsam [domum] clamat Normannus
        Crassus de feuo Regis.'

  [625] D. B. i. 129 b: 'Postea Willelmus Camerarius tenuit de Regina
        in feudo pro 3 lib. per annum de firma, et post mortem Reginae
        eodem modo tenuit de Rege.'

  [626] But, as in general a farmer would have no heritable rights,
        holding in fee may be contrasted with holding in farm. D. B.
        i. 230 b: 'Has terras habet Goduinus de Rege ad firmam, Dislea
        vero tenet de Rege in feudo.' So again it may be contrasted
        with the husband's rights in his wife's marriage portion. D.
        B. i. 214 b: 'De ista terra tenet Pirotus 3 hidas de maritagio
        suae feminae et unam hidam et terciam partem unius hidae tenet
        in feudum de Nigello.'

  [627] D. B. i. 158: Robert de Ouilly holds forty-two houses in
        Oxford, some meadow-land and a mill 'cum beneficio S. Petri,'
        i.e. together with the benefice of S. Peter's church.
        Elsewhere, i. 273, we read that King William gave a manor to
        the monks of Burton 'pro beneficio suo'; but the meaning of
        this is by no means clear.

  [628] D. B. i. 44 b: 'Duo liberi homines tenuerunt de Alwino sed non
        fuit alod.' The same phrase occurs on f. 46.

  [629] D. B. i. 22: 'Aluuard et Algar tenuerunt de Rege pro 2
        maneriis in alodia ... Ælueua tenuit de Rege Edwardo sicut
        alodium.' Ib. 26: 'Godwinus Comes tenuit et de eo 7 aloarii.'

  [630] D. B. i. 60 b: 'Duo alodiarii tenuerunt T. R. E. ... unus
        servivit Reginae, alter Bundino.'

  [631] D. B. i. 1: 'Quando moritur alodiarius, Rex inde habet
        relevationem terrae.'

  [632] D. B. i. 52 b: 'Has hidas tenuerunt 7 alodiarii de Episcopo
        nec poterant recedere alio vel ab illo.'

  [633] D. B. i. 63 b: 'Ibi sunt 5 alodiarii.'

  [634] See charter of John for St Augustin's, Canterbury, Rot. Cart.
        p. 105: 'omnes allodiarios quos eis habemus datos.' This
        phrase seems to descend through a series of charters from two
        charters of the Conqueror in which the 'swa fele þegna swa ic
        heom togeleton habbe' of the one appears in the other as
        'omnes allodiarios.' If so, we get from the Conqueror's own
        chancery the equation þegn=alodiarius. Hist. Mon. S. August.
        349-50.

  [635] D. B. i. 23: in two successive entries we have 'Offa tenuit de
        Episcopo in feudo.... Almar tenuit de Goduino Comite in
        alodium.' So again, i. 59: 'Blacheman tenuit de Heraldo Comite
        in alodio.... Blacheman tenuit in feudo T. R. E.' The
        suggestion has been made that _alodium_ represents
        _book-land_; see Pollock, Land Laws, ed. 3. p. 27; Eng. Hist.
        Rev. xi. 227; but we gravely doubt whether the humbler
        _alodiarii_ had books. The author of the Quadripartitus
        renders _bócland_ by _terra hereditaria_, _terra
        testimentalis_, _terra libera_, and even by _feudum_ (Edg. II.
        2); _alodium_ occurs in the Instituta Cnuti. After this we can
        hardly say for certain that D. B. does not use _alodium_ and
        _feodum_ as equivalents, both representing a heritable estate,
        as absolute an ownership of land as is conceivable.

  [636] Hist. Eng. Law, i. 46.

  [637] D. B. i. 197.

  [638] D. B. i. 238 b: 'Reliquas autem 7 hidas et dimidiam tenuit
        [_sic_] Britnodus et Aluui T. R. E., sed comitatus nescit de
        quo tenuerint.'

  [639] D. B. i. 23: 'Offa tenuit de episcopo in feudo.' Ib. i. 59 b:
        'Blacheman tenuit in feudo T. R. E.'

  [640] D. B. i. 28 b: 'Bricmar tenuit de Azor et Azor de Heraldo ...
        Terra est 2 carucis. In dominio est una et 2 villani et 2
        bordarii cum dimidia caruca.'

  [641] D. B. i. 75 b: 'De eadem terra ten[ent] 3 taini 3 hidas et
        reddunt 3 libras excepto servicio.' Ib. 86 b: 'Huic manerio
        est addita dimidia hida. Tres taini tenebant T. R. E. et
        serviebant preposito manerii per consuetudinem absque omni
        firma donante.'

  [642] D. B. i. 1: 'Quando moritur alodiarius, Rex inde habet
        relevationem terrae.'

  [643] D. B. i. 179: 'Burgensis cum caballo serviens, cum moriebatur,
        habebat Rex equum et arma eius. De eo qui equum non habebat,
        si moreretur, habebat Rex aut 10 solidos aut terram eius cum
        domibus.'

  [644] D. B. i. 50 b: 'Alric tenet dimidiam hidam. Hanc tenuit pater
        eius de Rege E. Sed hic Regem non requisivit post mortem
        Godric sui avunculi qui eam custodiebat.'

  [645] D. B. i. 238 b: 'Huic aecclesiae dedit Aluuinus vicecomes
        Cliptone concessu Regis Edwardi et filiorum suorum pro anima
        sua.' Ib. 59: 'De hoc manerio scira attestatur, quod Edricus
        qui eum tenebat deliberavit illum filio suo qui erat in
        Abendone monachus ut ad firmam illud teneret et sibi donec
        viveret necessaria vitae donaret; post mortem vero eius
        manerium haberet. Et ideo nesciunt homines de scira quod
        abbatiae pertineat, neque enim inde viderunt brevem Regis vel
        sigillum. Abbas vero testatur quod in T. R. E. misit ille
        manerium ad aecclesiam unde erat et inde habet brevem et
        sigillum R. E.'

  [646] D. B. i. 154: 'Quando Rex ibat in expeditione, burgenses 20
        ibant cum eo pro omnibus aliis, vel 20 libras dabant Regi ut
        omnes essent liberi.'

  [647] D. B. i. 230: 'Quando Rex ibat in exercitu per terram, de ipso
        burgo 12 burgenses ibant cum eo.'

  [648] D. B. i. 238: 'Consuetudo Waruuic fuit, ut eunte rege per
        terram in expeditionem, decem burgenses de Waruuic pro omnibus
        aliis irent.'

  [649] D. B. i. 57 b.

  [650] D. B. i. 64 b: 'Quando Rex ibat in expeditione vel terra vel
        mari, habebat de hoc burgo aut 20 solidos ad pascendos suos
        buzecarlos, aut unum hominem ducebat secum pro honore 5
        hidarum.'

  [651] D. B. i. 100: 'Quando expeditio ibat per terram aut per mare
        serviebat haec civitas quantum 5 hidae terrae.'

  [652] Above, p. 156, note 650.

  [653] Schmid, App. VII. c. 2. § 9-12; App. V; Pseudoleges Canuti
        (i.e. Instituta Cnuti) 60, 61 (Schmid, p. 431).

  [654] Of this we shall speak in another Essay.

  [655] D. B. i. 375 b; above, p. 145.

  [656] D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone ...
        profectio in exercitum cum hominibus episcopi.... Hae duae
        terrae non debent exercitum.'

  [657] See above, p. 85, note 326.

  [658] D. B. i. 172: 'Quando Rex in hostem pergit, si quis edictum
        eius vocatus remanserit, si ita liber homo est ut habeat socam
        suam et sacam et cum terra sua possit ire quo voluerit, de
        omni terra sua est in misericordia Regis. Cuiuscumque vero
        alterius domini homo si de hoste remanserit et dominus eius
        pro eo alium hominem duxerit, 40 sol. domino suo qui vocatus
        fuit emendabit. Quod si ex toto nullus pro eo abierit, ipse
        quidem domino suo 40 sol. dabit, dominus autem eius totidem
        solidis Regi emendabit.'

  [659] See above, p. 77, note 294.

  [660] See Round, Feudal England, 249.

  [661] D. B. i. 208: 'Testantur homines de comitatu quod Rex Edwardus
        dedit Suineshefet Siuuardo Comiti soccam et sacam, et sic
        habuit Haroldus comes, praeter quod geldabant in hundredo et
        in hostem cum eis ibant.' It is here noted that though Harold
        had sake and soke over Swineshead, it paid its geld and did
        its military duty in the hundred. Our record would hardly
        mention such a point unless very often the exaction of geld
        and military service was one of the rights and duties of the
        lord who had sake and soke.

  [662] In the next chapter we shall speak of the bishop's land-loans.

  [663] See the capitularies of 807 and 808 (ed. Boretius, pp. 134,
        137). Also, Fustel de Coulanges, Les transformations de la
        royauté, 515 ff. It may well be doubted whether the five-hide
        rule had not been borrowed by English kings from their
        Frankish neighbours. Stubbs, Const. Hist. i. 208 ff.

  [664] D. B. i. 152 b: 'duo teigni homines Alrici filii Goding.' Ib.
        'Hoc manerium tenuit Azor filius Toti teignus Regis Edwardi et
        alter teignus homo eius tenuit unam hidam et vendere potuit.'

  [665] D. B. i. 84 b: at the end of a list of royal thegns 'Omnes qui
        has terras T. R. E. tenebant, poterant ire ad quem dominum
        volebant.'

  [666] D. B. i. 41: 'Tres taini tenuerunt de episcopo et non
        potuerunt ire quolibet.'

  [667] D. B. i. 91: 'Hae terrae erant tainland in Glastingberie T. R.
        E. nec poterant ab aecclesia separari.'

  [668] Hamilton, Inquisitio, pp. xviii. xix.

  [669] D. B. i. 66 b: 'De hac eadem terra 3 hidas vendiderat abbas
        cuidam taino T. R. E. ad aetatem trium hominum, et ipse abbas
        habebat inde servitium, et postea debet redire ad dominium.'
        Ib. i. 83 b: 'Ipsa femina tenet 2 hidas in Tatentone quae
        erant de dominio abbatiae de Cernel; T. R. E. duo teini
        tenebant prestito.'

  [670] D. B. i. 64 b: 'Herman et alii servientes Regis ... Odo et
        alii taini Regis ... Herueus et alii ministri Regis.' Ib. 75:
        'Guddmund et alii taini ... Willelmus Belet et alii servientes
        Regis.'

  [671] D. B. i. 56 b (Berkshire custom): 'Tainus vel miles Regis
        dominicus moriens, pro relevamento dimittebat Regi omnia arma
        sua et equum unum cum sella, alium sine sella.'

  [672] D. B. i. 83: 'Bricsi tenuit miles Regis E.' Such entries are
        rare. D. B. i. 66: 'De eadem terra huius manerii ten[ent] duo
        Angli.... Unus ex eis est miles iussu Regis et nepos fuit
        Hermanni episcopi.' Here the king compels an Englishman to
        become a _miles_. D. B. i. 180 b: 'Quinque taini ... habebant
        sub se 4 milites.' The warrior was not necessarily of thegnly
        rank.

  [673] See the passages collected by Schmid, Gesetze, p. 667.

  [674] In their treatment of the thegnship of the last days before
        the Conquest, Maurer lays stress upon the proprietary element,
        Schmid upon the hereditary. See Little, Gesiths and Thegns, E.
        H. R. iv. 723.

  [675] Cnut, ii. 71.

  [676] D. B. i. 280 b.

  [677] Hamilton, Inquisitio, 121.

  [678] Eyton, Somerset, i. 84.

  [679] D. B. iv. 75: 'Dominicatus Regis ad Regnum pertinens in
        Devenescira.' Ib. 99: 'Mansiones de Comitatu.' Eyton,
        Somerset, i. 78.

  [680] D. B. ii. 119: 'Hoc manerium fuit de regno, sed Rex Edwardus
        dedit Radulfo Comiti.' Ib. 144: 'Suafham pertinuit ad regionem
        et Rex E. dedit R. Comiti.' Ib. 281 b: 'Terra Regis de Regione
        quam Rogerus Bigotus servat.' Ib. 408 b: 'Tornei manerium
        Regis de regione.' Mr Round, Feudal England, p. 140, treats
        _regio_ as a mere blunder; but it may well stand for
        _kingship_.

  [681] D. B. i. 30 b: 'Huius villae villani ab omni re vicecom[itis]
        sunt quieti.'

  [682] D. B. iv. 99.

  [683] Pseudoleges Canuti (= Liebermann's Instituta Cnuti), 55
        (Schmid, p. 430): 'Comitis rectitudines secundum Anglos istae
        sunt communes cum rege: tertius denarius in villis ubi
        mercatum convenerit, et in castigatione latronum, et comitales
        villae, quae ad comitatum eius pertinent.'

  [684] D. B. ii. 118 b: 'Terre Regis in Tetford ... est una leugata
        terre in longa et dim. in lato de qua Rex habet duas partes:
        de his autem duabus partibus tercia pars in consulatu iacet.'
        But this seems to mean that only this part of the land is in
        the county of Norfolk. Ibid. i. 246: in Stafford the king has
        twenty-two houses 'de honore comitum.'

  [685] D. B. i. 246.

  [686] Ellis, Introduction. i. 313. When twenty years after Harold's
        death a question about the title to land is at issue, there
        seems no reason why the jurors should tell lies about Harold.

  [687] D. B. i. 154 b.

  [688] D. B. i. 172.

  [689] D. B. i. 238.

  [690] D. B. i. 56 b: Berkshire custom, 'Qui monitus ad stabilitionem
        venationis non ibat 50 sol. Regi emendabat.' See also the
        Hereford custom, Ib. 179; also Rectitudines (Schmid, App.
        III.) c. 1.

  [691] D. B. i. 69. But the meaning of _reveland_ is obscure. The
        most important passages about it are in D. B. i. 57 b
        (Eseldeborne), 181 (Getune). D. B. i. 83: 'Hanc tenet Aiulf de
        Rege quamdiu erit vicecomes.'

  [692] D. B. i. 100.

  [693] D. B. i. 86, 86 b, 92, 97; so in Devonshire, 117 b: 'Hoc
        manerium debet per consuetudinem in Tavetone manerium Regis
        aut 1 bovem aut 30 denarios.'

  [694] D. B. i. 38 b.

  [695] D. B. i. 101: 'Ipsi manerio pertinet tercius denarius de
        hundredis Nortmoltone et Badentone et Brantone et tercium
        animal pasturae morarum.'

  [696] Above, p. 155.

  [697] Chron. ann. 1085.



§ 9. _The Boroughs._


[Borough and village.]

Dark as the history of our villages may be, the history of the boroughs
is darker yet; or rather, perhaps, the darkness seems blacker because we
are compelled to suppose that it conceals from our view changes more
rapid and intricate than those that have happened in the open country.
The few paragraphs that follow will be devoted mainly to the development
of one suggestion which has come to us from foreign books, but which may
throw a little light where every feeble ray is useful. At completeness
we must not aim, and in our first words we ought to protest that no
general theory will tell the story of every or any particular town[698].

[The borough in cent. xiii.]

In the thirteenth century a legal, though a wavering, line is drawn
between the borough and the mere vill or rural township[699]. It is a
wavering line, for stress can be laid now upon one and now upon another
attribute of the ancient and indubitable boroughs, and this selected
attribute can then be employed as a test for the claims of other towns.
When in Edward I.'s day the sheriffs are being told to bid every borough
send two burgesses to the king's parliaments, there are somewhat more
than 150 places to which such summonses will at times be addressed,
though before the end of the middle ages the number of 'parliamentary
boroughs' will have shrunk to 100 or thereabouts[700]. Many towns seem
to hover on the border line and in some cases the sheriff has been able
to decide whether or no a town shall be represented in the councils of
the realm. Yet if we go back to the early years of the tenth century, we
shall still find this contrast between the borough and the mere township
existing as a contrast whence legal consequences flow. Where lies the
contrast? What is it that makes a borough to be a borough? That is the
problem that we desire to solve. It is a legal problem. We are not to
ask why some places are thickly populated or why trade has flowed in
this or that channel. We are to ask why certain vills are severed from
other vills and are called boroughs.

[The number of the boroughs.]

We may reasonably wish, however, since mental pictures must be painted,
to know at the outset whereabouts the line will be drawn, and whether
when we are speaking of the Conqueror's reign and earlier times we shall
have a large or a small number of boroughs on our hands. Will it be a
hundred and fifty, or a hundred, or will it be only fifty? At once we
will say that some fifty boroughs stand out prominently and will demand
our best attention, though a second and far less important class was
already being formed.

[The aid-paying boroughs of cent. xii.]

In the middle of the twelfth century the Exchequer was treating certain
places in an exceptional fashion. It was subjecting them to a special
tax in the form of an _auxilium_ or _donum_. This fact we may take as
the starting point for our researches. Now if we read the unique Pipe
Roll of Henry I.'s reign and the earliest Pipe Rolls of Henry II.'s we
observe that an 'aid' or a 'gift' is from time to time collected from
the 'cities and boroughs,' and if we put down the names of the towns
which are charged with this impost, we obtain a remarkable result[701].
Speaking broadly we may say that the only towns which pay are 'county
towns.' For a large part of England this is strictly true. We will
follow the order of Domesday Book, beginning however with its second
zone. If London is in Middlesex[702], it is Middlesex's one borough. In
Hertfordshire is Hertford. In Buckinghamshire is Buckingham, but no aid
can be expected from it. In Oxfordshire is Oxford. In Gloucestershire is
Gloucester, but Winchcombe also asserts its burghal rank. In
Worcestershire is Worcester, while Droitwich appears occasionally with a
small gift. Hereford is the one borough of Herefordshire. Turning to the
third zone, we pass rapidly through Cambridgeshire, Huntingdonshire,
Bedfordshire and Northamptonshire; each has its borough. This will be
true of Leicestershire also; but Leicester is by this time so completely
in the hands of its earl that the king gets nothing from it. Nor, it
would seem, does he get anything from Warwick. Half in Warwickshire,
half in Staffordshire lies Tamworth; Stafford also pays. At times
Bridgenorth appears beside Shrewsbury. Nothing is received from Chester,
for it is the head of a palatinate. Derby, Nottingham and York are the
only representatives of their shires. Lincolnshire has Stamford on its
border as well as Lincoln in its centre. Norfolk has Thetford as well as
Norwich; but Suffolk has only Ipswich and Essex only Colchester.

[Aid-paying boroughs in the south.]

In the southern zone matters are not so simple. Kent contains Canterbury
and Rochester; Surrey contains Guildford and Southwark; Sussex only
Chichester. Hampshire has Winchester; Southampton is receiving special
treatment. Wallingford represents Berkshire. When we get to Wiltshire
and Dorset we are in the classical land of small boroughs. There are
various little towns whose fate is in the balance; Marlborough and Calne
seem for the moment to be the most prominent. In Somersetshire, whatever
may have been true in the past, Ilchester is standing out as the one
borough that pays an aid. Exeter has now no second in Devonshire. If
there is a borough in Cornwall, it makes no gift to the king.

[List of aids.]

We may obtain some notion of the relative rank of these towns if we set
forth the amounts with which they are charged in 1130 and in 1156,
though the materials for this comparison are unfortunately incomplete.

                           Pipe Roll     Pipe Roll
                           31 Hen. I     2 Hen. II
                               £             £
          London             120           120
          Winchester          80
          Lincoln             60            60
          York                40            40
          Norwich             30            33-1/3
          Exeter                            20
          Canterbury          20            13-1/3
          Colchester          20[2]         12-2/3[703]
          Oxford              20            20
          Gloucester          15            15
          Wallingford         15
          Worcester                         15
          Cambridge           12            12
          Hereford                          10
          Thetford            10
          Northampton         10
          Rochester                         10
          Nottingham}         15            15
          Derby     }
          Wiltshire boroughs  17
            Calne                           1
          Dorset boroughs     15
          Huntingdon           8            8
          Ipswich              7            3-1/3
          Guildford            5            5
          Southwark            5            5
          Hertford             5
          Stamford             5
          Bedford              5            6-2/3
          Shrewsbury                        5
          Droitwich                         5
          Stafford             3-1/3        3-1/3
          Winchcombe           3            5
          Tamworth             2-3/4        1-1/4[704]
          Ilchester                         2-1/2
          Chichester[705]

[Value of the list.]

Now we are not putting this forward as a list of those English towns
that were the most prosperous in the middle of the twelfth century. We
have made no mention of flourishing seaports, of Dover, Hastings,
Bristol, Yarmouth. Nor is this a list of all the places that are
casually called _burgi_ on rolls of Henry II.'s reign. That name is
given to Scarborough, Knaresborough, Tickhill, Cirencester and various
other towns. New tests of 'burgality' (if we may make that word) are
emerging and old tests are becoming obsolete. We see too that some towns
are dropping out of the list of aid-paying boroughs. In 1130 Wallingford
has thrice failed to pay its aid of £15 and the whole debt of £45 must
be forgiven to the burgesses _pro paupertate eorum_[706]. So Wallingford
drops out of this list. Probably Buckingham has dropped out at an
earlier time for a similar reason. But still this list, especially in
the form that it takes in Henry I.'s time, is of great importance to
those who are going to study the boroughs of Domesday Book. It looks
like a traditional list. It deals out nice round sums. It is
endeavouring to keep Wallingford on a par with Gloucester and above
Northampton. It is retaining Winchcombe.

[The boroughs in Domesday.]

If we make the experiment, we shall discover that this catalogue really
is a good prologue to Domesday Book. We will once more visit the
counties which form the second zone. The account that our record gives
of Hertfordshire has a preface. That preface deals with the borough of
Hertford and precedes even the list of the Hertfordshire tenants in
chief. Buckingham in Buckinghamshire and Oxford in Oxfordshire are
similarly treated. In Gloucestershire the city of Gloucester and the
borough of Winchcombe are described before the body of the county is
touched. In Worcestershire, Herefordshire, Cambridgeshire,
Huntingdonshire, Bedfordshire, Northamptonshire, Leicestershire,
Warwickshire, Staffordshire[707], Shropshire, Cheshire, Derbyshire,
Nottinghamshire[708] and Yorkshire the same procedure is adopted: the
account of the shire's city or borough precedes the account of the
shire. In Lincolnshire the description of the county is introduced by
the description of Lincoln and Stamford; also of Torksey, which had
been a place of military importance and seems to have been closely
united with the city of Lincoln by some governmental bond[709].
Convenient arrangement is not the strong point of 'Little Domesday'; but
what is said therein of Colchester is said at the very end of the survey
of Essex, while Norwich, Yarmouth and Thetford stand at the end of the
royal estates in Norfolk, and Ipswich stands at the end of the royal
estates in Suffolk.

[Southern boroughs in Domesday.]

If now we enter the southern zone and keep in our minds the scheme that
we have seen prevailing in the greater part of England, we shall observe
that the account of Kent has a prologue touching Dover, Canterbury and
Rochester. In Berkshire an excellent account of Wallingford precedes the
rubric _Terra Regis_. Four places in Dorset are singled out for
prefatory treatment, namely, Dorchester, Bridport, Wareham and
Shaftesbury. In Devon Exeter stands, if we may so speak, above the line,
and stands alone, though Barnstaple, Lidford and Totness are reckoned as
boroughs. Of the other counties there is more to be said. If we compare
the first page of the survey of Somerset with the first pages that are
devoted to its two neighbours, Dorset and Devon, we shall probably come
to the conclusion that the compilers of the book scrupled to put any
Somerset vill on a par with Exeter, Dorchester, Bridport, Wareham and
Shaftesbury. In each of the three cases the page is mapped out in
precisely the same fashion. The second column is headed by _Terra
Regis_. A long way down in the first column begins the list of tenants
in chief. The upper part of the first column contains in one case the
account of Exeter, in another the account of the four Dorset boroughs,
but in the third case, that of Somerset, it is left blank. In Wiltshire
Malmesbury and Marlborough stand above the line; but, if we look to the
foot of the page, we shall suspect that the compilers can not easily
force their general scheme upon this part of the country. In Surrey no
place stands above the line. Guildford is the first place mentioned on
the _Terra Regis_; Southwark seems to be inadequately treated on a later
page. The case of Sussex is like that of Somerset; the list of the
tenants in chief is preceded by a blank space. In Hampshire a whole
column is left blank. On a later page the borough of Southampton has a
column to itself; in the next column stands the _Terra Regis_ of the
Isle of Wight. And now let us turn back to the Middlesex that we have as
yet ignored. Nearly two columns, to say nothing of some precedent pages,
are void[710].

[The boroughs and the plan of Domesday Book.]

Now we must not be led away into speculations which would be vain. We
must not, for example, inquire whether the information that had been
obtained touching London and Winchester was too bulky to fill a room
that had been left for it. We must not inquire whether something was to
be said of Chichester or Hastings, of Ilchester or of Bristol that has
not been said. But apparently we may attribute to King William's
officials a certain general idea. It is an idea which suits the greater
part of England very well, though they find difficulties in their way
when they endeavour to impose it on some of the counties that lie south
of the Thames. The broad fact stands clear that throughout the larger
part of England the commissioners found a town in each county, and in
general one town only, which required special treatment. They do not
locate it on the _Terra Regis_; they do not locate it on any man's land.
It stands outside the general system of land tenure.

[The borough on no man's land.]

For a while, then, let us confine our attention to these county towns,
and we shall soon see why it is that they are rarely brought under any
rubric which would describe them as pieces of the king's soil or pieces
of some one else's soil. The trait to which we allude we shall call (for
want of a better term) the tenurial heterogeneity of the burgesses. In
those boroughs that are fully described we seldom, if ever, find that
all the burgesses have the same landlord. Of course there is a sense in
which, according to the view of the Domesday surveyors and of all later
lawyers, every inch of borough land is held of one landlord, namely, the
king; but in that sense every inch of England has the same landlord. The
fact that we would bring into relief is this, that normally the
burgesses of the borough do not hold their burgages immediately of one
and the same lord; they are not 'peers of a tenure'; the group that they
constitute is not a tenurial group. Far rather we shall find that,
though there will be some burgesses holding immediately of the king,
there will be others whose titles can be traced to the king only through
the medium of other lords. And the mesne lord will often be a very great
man, some prelate or baron with a widespread honour. Within the borough
he will, to use the language of Domesday Book, 'have' or 'hold' a small
group of burgesses, and sometimes they will be reckoned as annexed to or
as 'lying in' some manor distant from the town. It seems generally
expected that the barons of the county should have a few burgages apiece
in the county town. This arrangement does not look new. Seemingly the
great men of an earlier day, the _antecessores_ of the Frenchmen, have
owned town-houses: not so much houses for their own use, as houses or
'haws' (_hagae_) in which they could keep a few 'burgesses.'

[Heterogeneous tenures in the boroughs.]

Some examples of this remarkable arrangement should be given. First we
will look at Oxford. The king has many houses; the Archbishop of
Canterbury has 7; the Bishop of Winchester 9; the Bishop of Bayeux 18;
the Bishop of Lincoln 30; the Bishop of Coutances 2; the Bishop of
Hereford 3; the Abbot of St Edmund's 1; the Abbot of Abingdon 14; the
Abbot of Eynsham 13. And so with the worldly great:--the Count of
Mortain has 10; Count Hugh has 7; the Count of Evreux 1; Robert of
Ouilly 12; Roger of Ivry 15; Walter Giffard 17:--but we need not repeat
the whole long list[711].

It is so at Wallingford; King Edward had 8 virgates on which were 276
houses, and they paid him £11 rent; Bishop Walkelin of Winchester has
27, which pay 25 shillings; the Abbot of Abingdon has two acres, on
which are 7 houses paying 4 shillings; Milo Crispin has 20 houses, which
pay 12 shillings and 10 pence; and so forth[712]. Further, it is said
that the Bishop's 27 houses are valued in Brightwell; and, turning to
the account of Brightwell, there, sure enough, we find mention of the 25
shillings which these houses pay[713]. Milo's 20 houses are said to 'lie
in' Newnham; he has also in Wallingford 6 houses which are in Hazeley, 1
which is in Stoke, 1 which is in Chalgrove, one acre with 6 houses which
is in Sutton, one acre with 11 houses which is in Bray; 'all this land'
we are told 'belongs to Oxfordshire, but nevertheless it is in
Wallingford.' Yes, Milo's manor of Chalgrove lies five, his manor of
Hazeley lies seven miles from Wallingford; nevertheless, houses which
are physically in Wallingford are constructively in Chalgrove and
Hazeley. That we are not dealing with a Norman novelty is in this case
extremely plain. Wallingford is a border town. We read first of the
Berkshire landowners who have burgesses within it. There follows a list
of the Oxfordshire 'thegns' who hold houses in Wallingford. Archbishop
Lanfranc and Count Hugh appear in this context as 'thegns' of
Oxfordshire.

[Examples of heterogeneity.]

When we have obtained this clue, we soon begin to see that what is true
of Oxford and Wallingford is true even of those towns of which no
substantive description is given us. Thus there are 'haws' or
town-houses in Winchester which are attached to manors in all corners of
Hampshire, at Wallop, Clatford, Basingstoke, Eversley, Candover,
Strathfield, Minstead and elsewhere. Some of the manors to which the
burghers of London were attached are not, even in our own day, within
our monstrous town; there are some at Banstead and Bletchingley in
Surrey, at Waltham and Thurrock in Essex. But in every quarter we see
this curious scheme. At Warwick the king has in his demesne 113 houses,
and his barons have 112[714]. Of the barons' houses it is written:
'These houses belong to the lands which the barons hold outside the
borough and are valued there.' Or turn we to a small town:--at
Buckingham the barons have 26 burgesses; no one of them has more than
5.[715] The page that tells us this presents to us an admirable contrast
between Buckingham and its future rival. Aylesbury is just an ordinary
royal manor and stands under the rubric _Terra Regis_. Buckingham is a
very petty townlet; but it is a borough, and Count Hugh and the Bishop
of Coutances, Robert of Ouilly, Roger of Ivry, Arnulf of Hesdin and
other mighty men have burgesses there. As a climax we may mention the
case of Winchcombe. The burgages in this little town were held by many
great people. About the year 1100 the king had 60; the Abbot of
Winchcombe 40; the Abbot of Evesham 2; the Bishop of Hereford 2; Robert
of Bellême 3; Robert Fitzhamon 5, and divers other persons of note had
some 29 houses among them[716]. However poor, however small Winchcombe
may have been, it radically differed from the common manor and the
common village.

[Burgesses attached to manors.]

We have seen above how in the Conqueror's day the Abbey of Westminster
had a manor at Staines[717] and how that manor included 48 burgesses who
paid 40_s._ a year. Were those burgesses really in Staines, and was
Staines a borough? No, they were in the city of London. The Confessor
had told his Middlesex thegns how he willed that St Peter and the
brethren at Westminster should have the manor (_cotlif_) of Staines with
the land called Staninghaw (_mid ðam lande Stæningehaga_) within London
and all other things that had belonged to Staines[718]. Is not the guess
permissible that Staining Lane in the City of London[719], wherein stood
the church of St Mary, Staining, was so called, not 'because stainers
lived in it,' but because it once contained the haws of the men of
Staines? We must be careful before we find boroughs in Domesday Book,
for its language is deceptive. Perhaps we may believe that really and
physically there were forty-six burgesses in the vill of St Albans[720];
but, after what we have read of Staines, can we be quite sure that these
burgesses were not in London? The burgesses who de iure 'are in' one
place are often _de facto_ in quite another place.

[Tenure of the borough and tenure of land within the borough.]

We may for a moment pass over two centuries and turn to the detailed
account of Cambridge given to us by the Hundred Rolls, the most
elaborate description that we have of any medieval borough. Now in one
sense the 'vill' or borough of Cambridge belongs to the king, and, under
him, to the burgesses, for they hold it of him _in capite_ at a fee-farm
rent. But this does not mean that each burgess holds his tenement of the
corporation or _communitas_ of burgesses, which in its turn holds every
yard of land of the king in chief. It does not even mean that each
burgess holds immediately of the king, the _communitas_ intervening as
farmer of the king's rents[721]. No, the titles of the various burgesses
go up to the king by many various routes. Some of them pay rents to the
officers of the borough who are the king's farmers; but many of them do
not. The Chancellor and Masters of the University, for example, hold
three messuages in the vill of Cambridge; 'but' say the sworn burgesses
'what they pay for the same, we do not know and can not discover[722].'
How could it be otherwise? Domesday Book shows us that the Count of
Britanny had ten burgesses in Cambridge[723]. Count Alan's houses will
never be held in chief of the crown by any burgess: they will form part
of the honour of Richmond to the end of time. We may take another
example which will show the permanence of proprietary arrangements in
the boroughs. From an account of Gloucester which comes to us from the
year 1100 or thereabouts we learn that there were 300 houses in the
king's demesne and 313 belonging to other lords. From the year 1455 we
have another account which tells of 310 tenements paying landgavel to
the king's farmers and 346 which pay them nothing[724].

[The king and other landlords.]

Perhaps no further examples are needed. But this tenurial heterogeneity
seems to be an attribute of all or nearly all the very ancient boroughs,
the county towns. In some cases the king was the landlord of far the
greater number of the burgesses. In other cases the bishop became in
course of time the lord of some large quarter of a town in which his
cathedral stood. At Canterbury and Rochester, at Winchester and
Worcester, this process had been at work from remote days; the bishops
had been acquiring land and 'haws' within the walls[725]. But we can see
that in Henry I.'s day there were still four earls who were keeping up
their interest in their burgesses at Winchester[726]. In the later
middle ages we may, if we will, call these places royal boroughs and the
king's 'demesne boroughs,' for the burgesses derive their 'liberties'
directly from the king. But we must keep these ancient boroughs well
apart from any royal manors which the king has newly raised to burghal
rank. In the latter he will be the immediate landlord of every burgess;
in the former a good deal of rent will be paid, not to him, nor to the
community as his farmers, but to those who are filling the shoes of the
thegns of the shire.

[The oldest burh.]

This said, we will turn back our thoughts to the oldest days. The word
that deserves our best attention is _burh_, the future _borough_, for
little good would come of an attempt to found a theory upon the Latin
words, such as _civitas_, _oppidum_ and _urbs_ which occur in some of
those magniloquent land-books[727]. Now it seems fairly clear that for
some long time after the Germanic invasions the word _burh_ meant merely
a fastness, a stronghold, and suggested no thick population nor any
population at all. This we might learn from the map of England. The
hill-top that has been fortified is a _burh_. Very often it has given
its name to a neighbouring village[728]. But, to say nothing of hamlets,
we have full two hundred and fifty parishes whose names end in _burgh_,
_borough_ or _bury_, and in many cases we see no sign in them of an
ancient camp or of an exceptionally dense population. It seems a mere
chance that they are not _tons_ or _hams_, _worths_ or _thorpes_. Then
again, in Essex and neighbouring shires it is common to find that in the
village called _X_ there is a squire's mansion or a cluster of houses
called _X-bury_. Further, we can see plainly from our oldest laws that
the palisade or entrenchment around a great man's house is a _burh_.
Thus Alfred: The king's _burh-bryce_ (the sum to be paid for breaking
his _burh_) is 120 shillings, an archbishop's 90 shillings, another
bishop's 60 shillings, a twelve-hundred man's 30 shillings, a
six-hundred-man's 15 shillings, a ceorl's edor-bryce (the sum to be paid
for breaking his hedge) 5 shillings[729]. The ceorl, whose _wer_ is 200
shillings, will not have a _burh_, he will only have a hedge round his
house; but the man whose _wer_ is 600 shillings will probably have some
stockade, some rude rampart; he will have a _burh_.

[The king's burh.]

We observe the heavy _bót_ of 120 shillings which protects the king's
_burh_. May we not see here the very first stage in the legal history of
our boroughs? We pass over some centuries and we read in a statement of
the Londoners' customs that a man who is guilty of unlawful violence
must pay the king's _burh-bryce_ of five pounds[730]. And then the
Domesday surveyors tell us how at Canterbury every crime committed in
those streets which run right through the city is a crime against the
king, and so it is if committed upon the high-roads outside the city for
the space of one league, three perches and three feet[731]. This curious
accuracy over perches and feet sends us to another ancient
document:--'Thus far shall the king's peace (_grið_) extend from his
_burhgeat_ where he is sitting towards all four quarters, namely, three
miles, three furlongs, three acre-breadths, nine feet, nine
hand-breadths, nine barley-corns[732].' And then we remember how Fleta
tells us that the verge of the king's palace is twelve leagues in
circumference, and how within that ambit the palace court, the king's
most private court, has jurisdiction[733].

[The special peace of the burh.]

Has not legal fiction been at work since an early time? Has not the
sanctity of the king's house extended itself over a group of houses? The
term _burh_ seems to spread outwards from the defensible house of the
king and with it the sphere of his _burh-bryce_ is amplified. Within the
borough there reigns a special peace. This has a double meaning:--not
only do acts which would be illegal anywhere become more illegal when
they are done within the borough, but acts which would be legal
elsewhere, are illegal there. King Edmund legislating against the
blood-feud makes his _burh_ as sacred as a church; it is a sanctuary
where the feud may not be prosecuted[734]. If in construing such a
passage we doubt how to translate _burh_, whether by _house_ or by
_borough_, we are admitting that the language of the law does not
distinguish between the two. The Englishman's house is his castle, or,
to use an older term, his _burh_; the king's borough is the king's
house, for his house-peace prevails in its streets[735].

[The town and the burh.]

Our oldest laws seem to know no _burh_ other than the strong house of a
great (but he need not be a very great) man. Early in the tenth century,
however, the word had already acquired a new meaning. In Æthelstan's day
it seems to be supposed by the legislator that a moot will usually be
held in a _burh_. If a man neglects three summonses to a moot, the
oldest men of the _burh_ are to ride to his place and seize his
goods[736]. Already a _burh_ will have many men in it. Some of them will
be elder-men, aldermen. A moot will be held in it. Very possibly this
will be the shire-moot, for, since there is riding to be done, we see
that the person who ought to have come to the moot may live at a
distance[737]. A little later the _burh_ certainly has a moot of its
own. Edgar bids his subjects seek the _burh-gemót_ as well as the
_scyr-gemót_ and the _hundred-gemót_. The borough-moot is to be held
thrice a year[738]. At least from this time forward, the borough has a
court. An important line is thus drawn between the borough and the mere
_tún_. The borough has a court; the village has none, or, if the
villages are getting courts, this is due to the action of lords who
have sake and soke and is not commanded by national law. National law
commands that there shall be a moot thrice a year in every _burh_.

[The building of boroughs.]

The extension of the term _burh_ from a fortified house to a fortified
group of houses must be explained by those who are skilled in the
history of military affairs. It is for them to tell us, for example, how
much use the Angles and Saxons in the oldest days made of the entrenched
hill-tops, and whether the walls of the Roman towns were continuously
repaired[739]. Howbeit, a time seems to have come, at latest in the
struggle between the Danish invaders and the West-Saxon kings, when the
establishment and maintenance of what we might call fortified towns was
seen to be a matter of importance. There was to be a cluster of
inhabited dwellings which as a whole was to be made defensible by ditch
and mound, by palisade or wall. Edward the Elder and the Lady of the
Mercians were active in this work. Within the course of a few years
burgs were 'wrought' or 'timbered' at Worcester, Chester, Hertford,
Witham in Essex, Bridgnorth, Tamworth, Stafford, Warwick, Eddisbury,
Warbury, Runcorn, Buckingham, Towcester, Maldon, Huntingdon[740].
Whatever may be meant by the duty of repairing burgs when it is
mentioned in charters coming from a somewhat earlier time, it must for
the future be that of upholding those walls and mounds that the king and
the lady are rearing. The land was to be burdened with the maintenance
of strongholds. The land, we say. That is the style of the land-books.
Land, even though given to a church, is not to be free (unless by
exceptional favour) of army-service, bridge-work and borough-bettering
or borough-fastening. Wall-work[741] is coupled with bridge-work; to the
duty of maintaining the county bridges is joined the duty of
constructing and repairing the boroughs. Shall we say the 'county
boroughs'?

[The shire and its borough.]

Let us ask ourselves how the burden that is known as _burh-bót_, the
duty that the Latin charters call _constructio_, _munitio_,
_restauratio_, _defensio_, _arcis_ (for _arx_ is the common term) will
really be borne. Is it not highly probable, almost certain, that each
particular tract of land will be ascript to some particular _arx_ or
_castellum_[742], and that if, for instance, there is but one _burh_ in
a shire, all the lands in that shire must help to better that _burh_.
Apportionment will very likely go further. The man with five hides will
know how much of the mound or the wall he must maintain, how much
'wall-work' he must do. We see how the old bridge-work becomes a burden
on the estates of the county landowners. From century to century the
Cambridgeshire landowners contribute according to their hidage to repair
the most important bridge of their county, a bridge which lies in the
middle of the borough of Cambridge. Newer arrangements, the rise of
castles and of borough communities, have relieved them from the duty of
'borough-fastening;' but the bridge-work is apportioned on their lands.

[Military geography.]

The exceedingly neat and artificial scheme of political geography that
we find in the midlands, in the country of the true 'shires,' forcibly
suggests deliberate delimitation for military purposes. Each shire is to
have its borough in its middle. Each shire takes its name from its
borough. We must leave it for others to say in every particular case
whether and in what sense the shire is older than the borough or the
borough than the shire: whether an old Roman chester was taken as a
centre or whether the struggles between Germanic tribes had fixed a
circumference. But a policy, a plan, there has been, and the outcome of
it is that the shire maintains the borough[743].

There has come down to us in a sadly degenerate form a document which we
shall hereafter call 'The Burghal Hidage[744].' It sets forth, so we
believe, certain arrangements made early in the tenth century for the
defence of Wessex against Danish inroads. It names divers strongholds,
and assigns to each a large number of hides. A few of the places that it
mentions we have not yet found on the map. Beginning in the east of
Sussex and following the order of the list, we seem to see Hastings,
Lewes, Burpham (near Arundel), Chichester, Porchester, Southampton,
Winchester, Wilton, Tisbury (or perhaps Chisenbury), Shaftesbury,
Twyneham, Wareham, Bredy, Exeter, Halwell near Totness, Lidford,
Barnstaple, Watchet, Axbridge; then Langport and Lyng (which defend the
isle of Athelney), Bath, Malmesbury, Cricklade, Oxford, Wallingford,
Buckingham, Eastling near Guildford, and Southwark. Corrupt and
enigmatical though this catalogue may be, it is of the highest
importance. It shows how in the great age of burg-building the
strongholds had wide provinces which in some manner or another were
appurtenant to them, and it may also give us some precious hints about
places in Wessex which once were national burgs but which forfeited
their burghal character in the tenth century. Guildford seems to have
risen at the expense of Eastling and Totness at the expense of Halwell,
while Tisbury, Bredy and Watchet (if we are right in fancying that they
are mentioned) soon lost caste. Lyng is not a place which we should have
named among the oldest of England's burgs, and yet we have all read how
Alfred wrought a 'work' at Athelney. In Wessex burgs rise and fall
somewhat rapidly. North of the Thames the system is more stable. Also it
is more artificial, for north of the Thames civil and military geography
coincide.

[The shire's wall-work.]

Let us now look once more at the Oxford of Domesday Book. The king has
twenty 'mural houses[745]' which belonged to Earl Ælfgar; they pay
13_s._ 2_d._ He has a house of 6_d._ which is constructively at Shipton;
one of 4_d._ at Bloxham; one of 30_d._ at Risborough and two of 4_d._ at
Twyford in Buckinghamshire. 'They are called mural houses because, if
there be need and the king gives order, they shall repair the wall.'
There follows a list of the noble houseowners, an archbishop, six
bishops, three earls and so forth. 'All the above hold these houses free
because of the reparation of the wall. All the houses that are called
"mural" were in King Edward's time free of everything except army
service and wall-work.' Then of Chester we read this[746]:--'To repair
the wall and the bridge, the reeve called out one man from every hide
in the county, and the lord whose man did not come paid 40_s_. to the
king and earl.' The duty of maintaining the bulwark of the county's
borough is incumbent on the magnates of the county. They discharge it by
keeping haws in the borough and burgesses in those haws[747].

[Henry the Fowler and the German burgs.]

We may doubt whether the duty of the county to its borough has gone no
farther than mere 'wall-work.' A tale from the older Saxony may come in
well at this point. When the German king Henry the Fowler was building
burgs in Saxony and was playing the part that had lately been played in
England by Edward and Æthelflæd, he chose, we are told, the ninth man
from among the _agrarii milites_; these chosen men were to live in the
burgs; they were to build dwellings there for their fellows
(_confamiliares_) who were to remain in the country tilling the soil and
carrying a third of the produce to the burgs, and in these burgs all
_concilia_ and _conventus_ and _convivia_ were to be held[748]. Modern
historians have found in this story some difficulties which need not be
noticed here. Only the core of it interests us. Certain men are clubbed
together into groups of nine for the purpose of maintaining the burg as
a garrisoned and victualled stronghold in which all will find room in
case a hostile inroad be made.

[The shire thegns and their town houses.]

Turning to England we shall not forget how in the year 894 Alfred
divided his forces into two halves; half were to take the field, half to
remain at home, besides the men who were to hold the burgs[749]; but at
all events we shall hardly go astray if we suggest that the thegns of
the shire have been bound to keep houses and retainers in the borough of
their shire and that this duty has been apportioned among the great
estates[750]. We find that the baron of Domesday Book has a few
burgesses in the borough and that these few burgesses 'belong' in some
sense or another to his various rural manors. Why should he keep a few
burgesses in the borough and in what sense can these men belong some to
this manor and some to that? To all appearance this arrangement is not
modern. King Edmund conveyed to his thegn Æthelweard an estate of seven
hides at Tistead in Hampshire and therewith the haws within the burg of
Winchester that belonged to those seven hides[751]. When the Bishop of
Worcester loaned out lands to his thegns, the lands carried with them
haws in the 'port' of Worcester[752]. We have all read of the ceorl who
'throve to thegn-right.' He had five hides of his own land, a church and
a kitchen, a bell-tower and a _burh-geat-setl_, which, to our thinking,
is just a house in the 'gate,' the street of the _burh_[753]. He did not
acquire a town-house in order that he might enjoy the pleasures of the
town. He acquired it because, if he was to be one of the great men of
the county, he was bound to keep in the county's _burh_ retainers who
would do the wall-work and hoard provisions sent in to meet the evil day
when all men would wish to be behind the walls of a _burh_.

[The knights in the borough.]

We have it in our modern heads that the medieval borough is a sanctuary
of peace, an oasis of 'industrialism' in the wilderness of 'militancy.'
Now a sanctuary of peace the borough is from the very first. An
exceptional and exalted peace reigns over it. If you break that peace
you incur the king's _burh-bryce_. But we may strongly suspect that the
first burg-men, the first _burgenses_, were not an exceptionally
peaceful folk. Those _burhwaras_ of London who thrashed Swegen[754] and
chose kings were no sleek traders; nor must we speak contemptuously of
'trained bands of apprentices' or of 'the civic militia.' In all
probability these burg-men were of all men in the realm the most
professionally warlike. Were we to say that in the boroughs the knightly
element was strong we might mislead, for the word _knight_ has had
chivalrous adventures. However, we may believe that the _burgensis_ of
the tenth century very often was a _cniht_, a great man's _cniht_, and
that if not exactly a professional soldier (professional militancy was
but beginning) he was kept in the borough for a military purpose and was
perhaps being fed by the manor to which he belonged. These knights
formed gilds for religious and convivial purposes. At Cambridge there
was a gild of thegns, who were united in blood-brotherhood. We can not
be certain that all these thegns habitually lived in Cambridge. Perhaps
we should rather say that already a Cambridgeshire club had its
head-quarters in Cambridge and there held its 'morning-speeches' and its
drinking bouts. These thegns had 'knights' who seem to have been in some
sort inferior members of the gild and to have been bound by its
rules[755]. Then we hear of 'knight-gilds' at London and Canterbury and
Winchester[756]. Such gilds would be models for the merchant-gilds of
after-days, and indeed when not long after the Conquest we catch at
Canterbury our first glimpse of a merchant-gild, its members are calling
themselves knights: knights of the chapman-gild[757]. Among the knights
who dwelt in the burg such voluntary societies were the more needful,
because these men had not grown up together as members of a community.
They came from different districts and had different lords. In this
heterogeneity we may also see one reason why a very stringent peace, the
king's own house-peace, should be maintained, and why the borough should
have a moot of its own. When compared with a village there is something
artificial about the borough.

[_Buhr-bót_ and castle-guard.]

This artificiality exercised an influence over the later fate of the
boroughs. The ground had been cleared for the growth of a new kind of
community, one whose members were not bound together by feudal,
proprietary, agricultural ties. But the strand that we have been
endeavouring to trace is broken at the Conquest. The castle arises. It
is garrisoned by knights who are more heavily armed and more
professionally militant than were their predecessors. The castle is now
what wants defending; the knights who defend it form no part of the
burghal community, and perhaps 'the castle fee' is in law no part of the
borough. And yet let us see how in the twelfth century the king's castle
at Norwich was manned. It was manned by the knights of the Abbot of St
Edmund's. One troop served there for three months and then was relieved
by another, and those who were thus set free went home to the manors
with which the abbot had enfeoffed them and which they held by the
service of castle-guard[758]. Much in this arrangement is new; the
castle itself is new; but it is no new thing, we take it, that the
_burh_ should be garrisoned by the knights of abbots or earls. And who
built the castles, who built the Tower of London? Let us read what the
chronicler says of the year 1097:--Also many shires which belonged to
London for work[759] were sorely harassed by the wall that they wrought
around the tower, and by the bridge, which had been nearly washed away,
and by the work of the king's hall that was wrought at Westminster.
There were shires or districts which from of old owed this work or work
of this kind to London-bury[760].

[Borough and market.]

Long before the Conquest, however, a force had begun to play which was
to give to the boroughs their most permanent characteristic. They were
to be centres of trade. We must not exclude the hypothesis that some
places were fortified and converted into burgs because they were already
the focuses of such commerce as there was. But the general logic of the
process we take to have been this:--The king's _burh_ enjoys a special
peace: Even the men who are going to or coming from it are under royal
protection: Therefore within its walls men can meet together to buy and
sell in safety: Also laws which are directed against theft command that
men shall not buy and sell elsewhere: Thus a market is established:
Traders begin to build booths round the market-place and to live in the
borough. A theory has indeed been brilliantly urged which would find the
legal germ of the borough rather in a market-peace than in the peace of
a burg[761]. But this doctrine has difficulties to meet. A market-peace
is essentially temporary, while the borough's peace is eternal. A market
court, if it arises, will have a jurisdiction only over bargains made
and offences committed on market-days, whereas the borough court has a
general competence and hears pleas relating to the property in houses
and lands. Here in England during the Angevin time the 'franchise,' or
royally granted right, of holding a market is quite distinct from the
legal essence of the borough. Lawful markets are held in many places
that are not boroughs; indeed in the end by calling a place 'a mere
market-town' we should imply that it was no borough. Already in Domesday
Book this seems to be the case. Markets are being held and market-tolls
are being taken in many vills which are not of burghal rank[762].
Perhaps also we may see the borough-peace and the market-peace lying
side by side. In the Wallingford of the Confessor's day there were many
persons who had sake and soke within their houses. If any one spilt
blood and escaped into one of those houses before he was attached, the
owner received the blood-wite. But it was not so on Saturdays, for then
the money went to the king 'because of the market[763].' Thus the king's
borough-peace seems to be intensified on market-days; on those days it
will even penetrate the houses of the immunists. So at Dover some
unwonted peace or 'truce' prevailed in the town from St. Michael's Day
to St. Andrew's: that is to say, during the herring season[764].

[Establishment of markets.]

The establishment of a market is not one of those indefinite phenomena
which the historian of law must make over to the historian of economic
processes. It is a definite and a legal act. The market is established
by law. It is established by law which prohibits men from buying and
selling elsewhere than in a duly constituted market. To prevent an easy
disposal of stolen goods is the aim of this prohibition. Our
legislators are always thinking of the cattle-lifter. At times they seem
to go the full length of decreeing that only in a 'port' may anything be
bought or sold, unless it be of trifling value; but other dooms would
also sanction a purchase concluded before the hundred court. He who buys
elsewhere runs a risk of being treated as a thief if he happens to buy
stolen goods[765]. Official witnesses are to be appointed for this
purpose in every hundred and in every _burh_: twelve in every hundred
and small _burh_, thirty-three in a large _burh_[766]. Here once more we
see the _burh_ co-ordinated with the hundred. A by-motive favours this
establishment of markets. Those who traffic in the safety of the king's
_burh_ may fairly be asked to pay some toll to the king. They enjoy his
peace; perhaps also the use of royal weights and measures, known and
trustworthy, is another part of the valuable consideration that they
receive. First and last throughout the history of the boroughs toll is a
matter of importance[767]. It gives the king a revenue from the borough,
a revenue that he can let to farm. Also, though we do not think that the
borough court was in its origin a mere market court, the disputes of the
market-place will provide the borough court with plentiful litigation,
and in this quarter also the king will find a new source of income.
Among the old land-books that which speaks most expressly of the profits
of jurisdiction as the subject-matter of a gift is a charter which
concerns the town of Worcester. Æthelred and Æthelflæd, the ealdorman
and lady of the Mercians, have, at the request of the bishop, built a
_burh_ at Worcester, and they declare that of all the rights that
appertain to their lordship both in market (_on ceapstowe_) and in
street, within the _burh_ and without, they have given half to God and
St. Peter, with the witness of King Alfred and all the wise of Mercia.
The lord of the church is to have half of all, be it land-fee, or
fiht-wite, stealing, wohceapung (fines for buying or selling contrary to
the rules of the market) or borough-wall-scotting[768]. Quite apart
from the rent of houses, there is a revenue to be gained from the
borough.

[Moneyers in the burh.]

Another rule has helped to define the borough, and this rule also has
its root among the regalia. No one, says King Æthelstan, is to coin
money except in a port; in Canterbury there may be seven moneyers, four
of the king, two of the bishop, one of the abbot; in Rochester three,
two of the king, one of the bishop; in London-borough eight; in
Winchester six; in Lewes two; in Hastings one; in Chichester one; in
Hampton two; in Wareham two; in Exeter two; in Shaftesbury two, and in
each of the other boroughs one[769]. Already, then, a _burh_ is an
entity known to the law: every _burh_ is to have its moneyer.

[_Burh_ and _port_.]

We have thus to consider the _burh_ (1) as a stronghold, a place of
refuge, a military centre: (2) as a place which has a moot that is a
unit in the general, national system of moots: (3) as a place in which a
market is held. When in the laws this third feature is to be made
prominent, the _burh_ is spoken of as a _port_, and perhaps from the
first there might be a _port_ which was not a _burh_[770]. The word
_port_ was applied to inland towns. To this usage of it the _portmoot_
or _portmanmoot_ that in after days we may find in boroughs far from the
coast bears abiding testimony. On the other hand, except on the seaside,
this word has not become a part of many English place names[771]. If, as
seems probable, it is the Latin _portus_, we apparently learn from the
use made of it that at one time the havens (and some of those havens may
not have been in England) were the only known spots where there was much
buying and selling. But be it remembered that a market-place, a
_ceap-stow_, does not imply a resident population of buyers and
sellers; it does not imply the existence of retailers[772].

[Military and commercial elements in the borough.]

We can not analyse the borough population; we can not weigh the
commercial element implied by _port_ or the military element implied by
_burh_; but to all seeming the former had been rapidly getting the upper
hand during the century which preceded the making of Domesday Book. If
we are on the right track, there was a time when the thegns of the shire
must have regarded their borough haws rather as a burden than as a
source of revenue. They kept those haws because they were bound to keep
them. On the other hand, the barons of the Conqueror's day are deriving
some income from these houses. Often it is very small. Count Hugh, for
example, has just one burgess at Buckingham who pays him twenty-six
pence a year[773]. All too soon, it may be, had the boroughs put off
their militancy. Had they retained it, England might never have been
conquered. Houses which should have been occupied by 'knights,' were
occupied by chapmen.

[The borough and agriculture.]

But this is not the whole difficulty. Even if we could closely watch the
change which substitutes a merchant or shopkeeper for a 'knight' as the
typical burg-man or burgess, we should still have to investigate an
agrarian problem. Very likely we ought to think that even on the eve of
the Conquest the group of men which dwells within the walls is often a
group which by tilling the soil produces a great part of its own food,
though some men may be living by handicraft or trade and some may still
be supported by those manors to which they 'belong.' In one case the
institutions that are characteristic of _burh_ and _port_ may have been
superimposed upon those of an ancient village which had common fields.
In another an almost uninhabited spot may have been chosen as the site
for a stronghold. In the former and, as we should fancy, the commoner
case a large choice is open to the constructive historian, for he may
suppose that the selected village was full of serfs or full of free
proprietors, that the soil was royal demesne or had various landlords.
In one instance he may think that he sees the coalescence of several
little communities that were once distinct; in another the gradual
occupation of a space marked out by Roman walls. The one strong hint
that is given to us by Domesday Book and later documents is that our
generalities should be few and that, were this possible, each borough
should be separately studied.

[Burgesses as cultivators.]

As a rule, quite half of the burgesses in any of those county towns that
are fully described in the survey are the king's own burgesses, and in
some cases his share is very large. This suggests that the land on which
the borough stands has been royal land and that the king provided the
shire thegns with sites for their haws. For their haws they have
sometimes been paying him small rents. On the other hand, at Leicester,
though the king has some 40 houses, the great majority belong to Hugh of
Grantmesnil. He has about 80 houses which pertain to 17 different manors
and which may in the past have been held by many different thegns; but
he also holds 110 houses which are not allotted to manors and which have
probably come to him as the representative of the earls and ealdormen of
an older time[774]. This looks as if in this case the soil had been not
royal but 'comital' land at the time when the place was fortified and
when the landowners of the shire, including perhaps the king, were
obliged to build houses within the wall. But though we fully admit that
each of our boroughs has lived its own life, our evidence seems to point
to the conclusion that in those truly ancient boroughs of which we have
been speaking, though there might be many inhabitants who held and who
cultivated arable land lying without the walls, there were from a remote
time other burgesses who were not landowners and were not
agriculturists and yet were men of importance in the borough. If we
look, for example, at the elaborate account of Colchester we shall first
read the names of the king's burgesses. 'Of these 276 burgesses of the
king, the majority have one house and a plot of land of from one to
twenty-five acres; some possess more than one house and some have none;
they had in all 355 houses and held 1296 acres of land[775]'. But these
were not the only burgesses. Various magnates had houses which were
annexed to their rural manors. Count Eustace (to name a few) had 12,
Geoffrey de Mandeville 2, the Abbot of Westminster 4, the Abbess of
Barking 3, and seemingly to these houses no strips in the arable fields
were attached[776]. Thus, though many of the burgesses may till the
soil, the borough community is not an agrarian community. We can not
treat it as a village community that has prospered and slowly changed
its habits. A new principle has been introduced, an element of
heterogeneity. The men who meet each other in court and market, the men
who will hereafter farm the court and market, are not the shareholders
in an agricultural concern.

[Burgage tenure.]

That tenurial heterogeneity of which we have been speaking had another
important effect. When in later days a rural manor is being raised to
the rank of a _liber burgus_, the introduction of 'burgage tenure' seems
to be regarded as the very essence of the enfranchisement[777]. Probably
this feature had appeared in many boroughs at an early date. The lord
with lands in Oxfordshire may have been bound to keep a few houses and
retainers in Oxford. If, however, the commercial element in the town
began to get the better of the military element, if Oxford became a
centre of trade, then a house in Oxford could be let for a money rent.
In Domesday Book the barons are drawing rents from their borough houses.
If any return is to be made by the occupier to the owner it will take
the form of a money rent; it can hardly take another form. Thus tenure
at a money rent would become the typical tenure of a burgage tenement.
It will be a securely heritable tenure, because the landlord is an
absentee and has too few tenants in the town to require the care of a
resident reeve. But there may have been many dwellers in some of the
boroughs who were bound to help in the cultivation of a stretch of royal
or episcopal demesne that lay close to the walls. In the west some of
the king's burgesses seem to have been holding under onerous terms. At
Shrewsbury, which lies near the border of Wales where every girl's
marriage gave rise to an _amobyr_, a maid had to pay ten, a widow twenty
shillings when she took a husband, and a relief of ten shillings was due
when a burgess died[778]. At Hereford the reeve's consent was necessary
when a burgage was to be sold, and he took a third of the price. When a
burgess died the king got his horse and arms (these Hereford burgesses
were fighting men); if he had no horse, then ten shillings 'or his land
with the houses.' Any one who was too poor to do his service might
abandon his tenement to the reeve without having to pay for it. Such an
entry as this seems to tell us that the services were no trivial return
for the tenement[779].

[Eastern and western boroughs.]

On the other hand, we may see at Stamford what seem to be the remains of
a very free group of settlers, presumably Danes. The town contains among
other houses 77 houses of sokemen 'who hold their lands in demesne and
seek lords wherever they please, and over whom the king has nothing but
wite and heriot and toll.' These may be the same persons who hold 272
acres of land and pay no rent for it[780]. At Norwich, again, we seem to
hear of a time when the burgesses were free to commend themselves to
whomever they would, and were therefore living in houses which were all
their own, and for which they paid no rent[781]. It is very possible
that, so far as landlordly rights are concerned, there was as much
difference between the eastern and the western towns as there was
between the eastern and the western villages. Still if we look at
borough after borough, tenure at a money rent is the tenure of the
burgage houses that we expect to find, and such a tenure, even if in its
origin it has been precarious, is likely to become heritable and
secure. As to the shire thegns, they have in some cases paid to the king
small rents for their haws; but in others, for example at Oxford, tenure
by wall-work has been their tenure, and when in other towns we find them
paying rent to the king we may perhaps see commuted wall-work.

[Common property of the burgesses.]

[The community as landholders.]

Traces are few in Domesday Book of any property that can be regarded as
the property of a nascent municipal corporation, and even of any that
can be called the joint or common property of the burgesses. In general
each burgess holds his house in the town of the king or of some other
lord by a several title, and, if he has land in the neighbouring fields,
this also he holds by a several title. 'In the borough of Nottingham
there were in King Edward's day 183 burgesses and 19 _villani_. To this
borough belong 6 carucates of land for the king's geld and one meadow
and certain small woods ... This land was divided between 38 burgesses
and [the king] received 75_s_. 7_d_. from the rent of the land and the
works of the burgesses.' 'In the borough of Derby there were in King
Edward's day 243 resident burgesses.... To this borough belong 12
carucates of land for the geld, but they might be ploughed by 8 teams.
This land was divided among 41 burgesses who had 12 teams[782].' In
these cases we see plainly enough that such arable land as is in any way
connected with the borough has been held by but a few out of the total
number of the burgesses. Therefore we must deal cautiously with entries
that are less explicit. When, for example, in the description of
Stamford we read 'Lagemanni et burgenses habent cclxxii. acras sine omni
consuetudine[783],' we must not at once decide that there is any
ownership by the burgesses as a corporation, or any joint ownership, or
even that all the burgesses have strips in these fields, though
apparently the burgesses who have strips pay no rent for them. This is
the fact and the only fact that the commissioners desire to record. They
do not care whether every burgess has a piece, or whether (as was
certainly the case elsewhere) only some of them held land outside the
walls. When of Norwich we read 'et in burgo tenent burgenses xliii.
capellas[784],' we do not suppose that all the Norwich burghers have
chapels, still less that they hold the forty-three chapels as
co-owners, still less that these chapels belong to a corporation. We
remember that the Latin language has neither a definite nor an
indefinite article. Therefore when of 80 acres at Canterbury, which are
now held by Ralph de Colombiers, we read 'quas tenebant burgenses in
alodia de rege,' we need not suppose that these acres had belonged to
_the_ (i.e. to all the) burgesses of Canterbury[785]. So of Exeter it is
written: 'Burgenses Exoniae urbis habent extra civitatem terram xii.
caruc[arum] quae nullam consuetudinem reddunt nisi ad ipsam civitatem.'
This, though another interpretation is possible, may only mean that
there are outside the city twelve plough-lands which are held by
burgesses whose rents go to make up that sum of £18 which is paid to the
king, or rather in part to the sheriff and in part to the queen dowager,
as the ferm of the city[786]. Concerning Colchester there is an entry
which perhaps ascribes to the community of burgesses the ownership or
the tenancy of fourscore acres of land and of a strip eight perches in
width surrounding the town wall; but this entry is exceedingly
obscure[787]. Another dark case occurs at Canterbury. We are told that
the burgesses or certain burgesses used to hold land of the king 'in
their gild[788].' Along with this we must read another passage which
states how in the same city the Archbishop has twelve burgesses and
thirty-two houses which 'the clerks of the vill hold in their gild.'
Apparently in this last case we have a clerical club or fraternity
holding land, and the burgher's gild may be of much the same nature, a
voluntary association. Not very long after the date of Domesday, for
Anselm was still alive, an exchange of lands was made between the
convent (_hired_, _familia_) of Christ Church and the 'cnihts' of the
chapman gild of Canterbury. The transaction takes place between the
'hired' on the one hand, the 'heap' (for such is the word employed) on
the other. The witnesses to this transaction are Archbishop Anselm and
the 'hired' on the one hand, Calveal the portreeve and 'the eldest men
of the heap' on the other[789]. But to see a municipal corporation in
the burghers' gild of Domesday Book would be very rash. We do not know
that all the burghers belonged to it or that it had any governmental
functions[790].

[Rights of common.]

We may of course find that a group of burgesses has 'rights of common;'
but rights of common, though they are rights which are to be enjoyed in
common, are apt to be common rights in no other sense, for each commoner
has a several title to send his beasts onto the pasture. Thus 'all the
burgesses of Oxford have pasture in common outside the wall which brings
in [to the king] 6_s._ 8_d[791]._' The soil is the king's; the burgesses
pay for the right of grazing it. The roundness of the sum that they pay
seems indeed to hint at some arrangement between the king and the
burgesses taken in mass; but probably each burgess, and the lord of each
burgess, regards a right of pasture as appurtenant to a burgage
tenement. The case is striking, for we have seen how heterogeneous a
group these Oxford burgesses were[792]. No less than nine prelates, to
say nothing of earls and barons, had burgesses in the city. We must
greatly doubt whether there is any power in any assembly of the
burgesses to take from the Bishop of Winchester or the Count of Mortain
the customary rights of pasture that have been enjoyed by the tenants of
his tenements.

[Absence of communalism in the boroughs.]

We might perhaps have guessed that the boroughs would be the places of
all others in which such communalism as there was in the ancient village
community would maintain and develop itself, until in course of time the
borough corporation, the ideal borough, would stand out as the owner of
lands which lay within and without the wall. But, if we have not been
going astray, we may see why this did not happen, at least in what we
may call the old national boroughs. The burgensic group was not
homogeneous enough. We may suppose that some members of it had inherited
arable strips and pasture rights from the original settlers; but others
were 'knights' who had been placed in the haws of the shire-thegns, or
were merchants and craftsmen who had been attracted by the market, and
for them there would be no room in an old agrarian scheme. Indeed it is
not improbable that, even as regards rights of pasture, there was more
difference between burgess and burgess than there was between villager
and villager. In modern times it is not unknown that some of the
burgesses will have pasture rights, while others will have none, and in
those who are thus favoured we may fancy that we see the successors in
title of the king's tenants who turned out their beasts on the king's
land[793].

[The borough community and its lord.]

We have seen that in the boroughs a group of men is formed whose
principle of cohesion is not to be found in land tenure. The definition
of a burgess may involve the possession of a house within or hard by the
walls; but the burgesses do not coalesce as being the tenants or the men
of one lord; and yet coalesce they will. They are united in and by the
moot and the market-place, united under the king in whose peace they
traffic; and then they are soon united over against the king, who exacts
toll from them and has favours to grant them. They aspire to farm their
own tolls, to manage their own market and their own court. The king's
rights are pecuniary rights; he is entitled to collect numerous small
sums. Instead of these he may be willing to take a fixed sum every year,
or, in other words, to let his rights to farm.

[The farm of the borough.]

This step seems to have been very generally taken before the Conquest.
Already the boroughs were farmed. Now the sums which the king would draw
from a borough would be of several different kinds. In the first place,
there would be the profits of the market and of the borough court. In
the second place, there would be the gafol, the 'haw-gavel' and
'land-gavel' arising from tenements belonging to the king and occupied
by burgesses. In the third place, there might be the danegeld; but the
danegeld was a tax, an occasional tax, and for the moment we may leave
it out of our consideration. Now the profits of the market and court
seem to have been farmed. The sums that they bring in to the king are
round sums. The farmer seems to have been the sheriff or in some cases
the king's portreeve. We can find no case in which it is absolutely
clear to our minds that the borough itself, the _communitas burgi_, is
reckoned to be the king's farmer. Again, the king's gafol, that is his
burgage rents, may be farmed: they are computed at a round sum. Thus at
Huntingdon ten pounds are paid by way of land-gafol, and we may be
fairly certain that the sum of the rents of the individual burgesses who
held their tenements immediately of the king (there were other burgesses
who belonged to the Abbot of Ramsey) did not exactly make up this neat
sum[794]. In this case, however, the sum due to the king from his
farmer, probably the sheriff, in respect of the land-gafol is expressly
distinguished from the sum that he has to pay for the farm of the
borough (_firma burgi_):--at least in its narrowest sense, the _burgus_
which is farmed is not a mass of lands and houses, it is a market and a
court[795]. But, though we find no case in which the community of the
borough is unambiguously treated as the king's farmer, there are cases
in which it seems to come before us as the sheriff's farmer. 'The
burgesses' of Northampton pay to the sheriff £30. 10_s._ per
annum:--'this belongs to his farm[796].' The sheriff of Northamptonshire
is liable to the king for a round sum as the farm of the shire, but
'the burgesses' of Northampton are liable to the sheriff for a round
sum. This may mean that for this round sum they are jointly and
severally liable, while, on the other hand, they collect the tolls and
fines, perhaps also the king's burgage rents, and have an opportunity of
making profit by the transaction.

[The sheriff and the borough's farm.]

We must not be in haste to expel the sheriff from the boroughs of the
shire, or to bring the burgesses into immediate contact with the king's
treasury. We must remember that at the beginning of Henry II.'s reign
there is scarcely an exception to the rule that the boroughs of the
shire are in the eyes of auditors at the Exchequer simply parts of that
county which the sheriff farms. So far as the farm is concerned, the
royal treasury knows nothing of any boroughs[797]. The sheriff of
Gloucestershire, for example, accounts for a round sum which is the farm
of his county; neither he nor any one else accounts to the king for any
farm of the borough of Gloucester. If, as is most probable, the borough
is being farmed, it is being farmed by some person or persons to whom,
not the king, but the sheriff has let it for a longer or shorter period
at a fixed rent. Here, again, we see the likeness between a borough and
a hundred. The king lets the shire to farm; the shire includes hundreds
and boroughs; the sheriff 'lets the hundreds to farm; the sheriff lets
the boroughs to farm.' A few years later a new arrangement is made. The
king begins to let the borough of Gloucester to farm. A sum of £50
(blanch) is now deducted from the rent that the sheriff has been paying
for his shire, and, on the other hand, Osmund the reeve accounts for
£55, which is the rent of the borough. We must not antedate a change
which is taking place very gradually in the middle of the twelfth
century. Nor must we at once reject the inference that, as the bailiffs
to whom the sheriff lets the hundreds are chosen by him, so also the
bailiffs or portreeves to whom he lets the boroughs are or have been
chosen by him. It seems very possible that one of the first steps
towards independence that a borough takes is that its burgesses induce
the sheriff to accept their nominee as his farmer of the town if they in
mass will make themselves jointly and severally liable for the rent.
These movements take place in the dark and we can not date them; but to
antedate them would be easy.

[The community and the geld.]

We also see that the 'geld' that the borough has to pay is a round sum
that remains constant from year to year. Cambridge, for example, is
assessed at a hundred hides, Bedford at half a hundred[798]. Now we have
good reason to believe that, in the open country also, a round sum of
geld or (and this is the same thing) a round number of hides had been
thrown upon the hundreds, that the sum thrown upon a hundred was then
partitioned among the vills, and that the sum thrown upon a vill was
partitioned among the persons who held land in the vill. In the open
country, however, when once the partition had been made, the number of
hides that was cast upon the land of any one proprietor seems to have
been fixed for good and all[799]. If we suppose, for example, that a
vill had been assessed at ten hides and that five of those units had
been assigned to a certain Edward, then Edward or his successors in
title would always have to pay for five hides, and would have to pay for
no more although the other proprietors in the vill obtained an exemption
from the tax or were insolvent. In short, the tax though originally
distributed by a partitionary method was not repartitionable. On the
other hand, in the boroughs a more communal arrangement seems to have
prevailed. In some sense or another, the whole borough, no matter what
its fortunes might be, remained answerable for the twenty, fifty or a
hundred hides that had been imposed upon it. Such a difference would
naturally arise. In the open country the taxational hidation was
supposed to represent and did represent, albeit rudely, a state of facts
that had once existed. The man who was charged with a hide ought in
truth to have had one of those agrarian units that were commonly known
as hides. But when a borough was charged with hides, a method of
taxation that was adapted to and suggested by rural arrangements was
being inappropriately applied to what had become or would soon become
an urban district. Thus the gross sum that is cast upon the borough does
not split itself once and for all into many small sums each of which
takes root in a particular tenement. The whole sum is exigible from the
whole borough every time a geld is imposed. It is repartitionable.

[Partition of taxes.]

For all this, however, we must be careful not to see more communalism or
more local self-government than really exists. At first sight we may
think that we detect a communal or a joint liability of all the
burgesses for the whole sum that is due from the borough in any one
year. 'The English born' burgesses of Shrewsbury send up a piteous
wail[800]. They still have to pay the whole geld as they paid it in the
Confessor's day, although the earl has taken for his castle the sites of
fifty-one houses, and other fifty houses are waste, and forty-three
French burgesses hold houses which used to pay geld, and the earl has
given to the abbey, which he has founded, thirty-nine burgesses who used
to pay geld along with the others. But, when we examine the matter more
closely, we may doubt whether there is here any joint and several (to
say nothing of any corporate) liability. Very various are the modes in
which a land-tax or house-tax may be assessed and levied. Suppose a tax
of £100 imposed upon a certain district in which there are a hundred
houses. Suppose it also to be law that, though some of these houses come
to the hands of elemosynary corporations (which we will imagine to enjoy
an immunity from taxation) still the whole £100 must be raised annually
from the householders of the district. For all this, we have not as yet
decided that any householder will ever be liable, even in the first
instance, for more than his own particular share of the £100. A
readjustment of taxation there must be. It may take one of many forms.
There may be a revaluation of the district, and the £100 may be newly
apportioned by some meeting of householders or some government officer.
But, again, the readjustment may be automatic. Formerly there were 100
houses to pay £100. Now there are 90 houses to pay £100. That each of
the 90 must pay ten-ninths of a pound is a conclusion that the rule of
three draws for us. In the middle ages an automatic readjustment was all
the easier because of the common assumption that the value of lands and
houses was known to every one and that one virgate in a manor was as
good as another, one 'haw' in a borough as good as another[801]. We do
not say that the complaint of the burgesses at Shrewsbury points to no
more than an automatic readjustment of taxation which all along has been
a taxation of individuals; still the warning is needful that the
exaction at regular or irregular intervals of a fixed amount from a
district, or from the householders or inhabitants of a district, an
amount which remains constant though certain portions of the district
obtain immunity from the impost, does not of necessity point to any kind
of liability that is not the liability of one single individual for
specific sums which he and he only has to pay; nor does it of necessity
point to any self-governing or self-assessing assembly of
inhabitants[802].

[No corporation implied by the farming of the borough.]

Returning, however, to the case of Northampton, it certainly seems to
tell us of a composition, not indeed between the burgesses and the king,
but between the burgesses and the sheriff. 'The burgesses of Northampton
pay to the sheriff £30. 10_s._' We may believe that 'the burgesses' who
pay this sum have a chance of making a profit. If so, 'the burgesses'
are already beginning to farm 'the borough.' From this, nevertheless, we
must not leap to corporate liability or corporate property. Very likely
the sheriff regards every burgess of Northampton as liable to him for
the whole £30. 10_s._; very certainly, as we think, he does not look for
payment merely to property which belongs, not to any individual burgess
nor to any sum of individual burgesses, but to 'the borough' of
Northampton. Nor if the burgesses make profit out of tolls and fines,
does it follow that they have a permanent common purse; they may divide
the surplus every year[803], or we may suspect them of drinking the
profits as soon as they are made.

[Borough and county organization.]

Entries which describe the limits that are set to the duty of military
or of naval service may seem more eloquent. Thus of Dover we are told
that the burgesses used to supply twenty ships for fifteen days in the
year with twenty-one men in each ship, and that they did this because
the king had released to them his sake and soke[804]. Here we seem to
read of a definite transaction between the king of the one part and the
borough of the other part, and one which implies a good deal of
governmental organization in the borough. We would say nothing to lessen
the just force of such a passage, which does not stand alone[805]; but
still there need be but little more organization in the borough of Dover
than there is in Berkshire. It was the custom of that county that, when
the king summoned his host, only one soldier went from every five hides,
while each hide provided him with four shillings for his equipment and
wages[806]. We may guess that in a county such a scheme very rapidly
'realized' itself and took root in the soil, that in a borough there was
less 'realism,' that there were more frequent readjustments of the
burden; but the difference is a difference of degree.

[Government of the boroughs.]

Of anything that could be called the constitution of the boroughs, next
to nothing can we learn. We may take it that in most cases the king's
farmer was the sheriff of the shire; in some few cases, as for example
at Hereford, the reeve of the borough may have been directly accountable
to the king[807]. We know no proof that in any case the reeve was an
elected officer. Probably in each borough a court was held which was a
court for the borough; probably it was, at least as a general rule,
co-ordinate with a hundred court, and indeed at starting the borough
seems to be regarded as a vill which is also a hundred[808]. The action
of this court, however, like the action of other hundred courts, must as
time went on have been hampered by the growth of seignorial justice. The
sake and soke which a lord might have over his men and over his lands
were certainly not excluded by the borough walls. He had sometimes been
expressly told that he might enjoy these rights 'within borough and
without borough.' It is difficult for us to realize the exact meaning
that 'sake and soke' would bear when ascribed to a prelate or thegn who
had but two or three houses within the town. Perhaps in such cases the
town houses were for jurisdictional purposes deemed to be situate within
some rural manor of their lord. But in a borough a lord might have a
compact group of tenants quite large enough to form a petty court. In
such a case the borough court would have the seignorial courts as
rivals, and many a dispute would there be. At Lincoln one Tochi had a
hall which undoubtedly was free 'from all custom'; but he had also
thirty houses over which the king had toll and forfeiture. So the
burgesses swore; but a certain priest was ready to prove by ordeal that
they swore falsely[809]. In these cases the lord's territory would
appear in later times as a little 'liberty' lying within the borough
walls. The middle ages were far spent before such liberties had become
mere petty nuisances[810]. In the old cathedral towns, such as
Canterbury and Winchester, the bishop's jurisdictional powers and
immunities were serious affairs, for the bishop's tenants were
numerous[811]. Nevertheless, in the great and ancient boroughs, the
boroughs which stand out as types and models, there was from a very
remote time a court, a borough-moot or portman-moot, which was not
seignorial, a court which was a unit in a national system of courts.

[The borough court.]

Of the form that the borough court took we can say little. Perhaps at
first it would be an assembly of all the free burg-men or port-men. As
its business increased in the large boroughs, as it began to sit once a
week instead of thrice a year, a set of persons bound to serve as
doomsmen may have been formed, a set of aldermen or lawmen whose offices
might or might not be hereditary, might or might not 'run with' the
possession of certain specific tenements. A 'husting' might be formed,
that is, a house-thing as distinct from a 'thing' or court held in the
open air. Law required that there should be standing witnesses in a
borough, before whom bargains and sales should take place. Such a demand
might hasten the formation of a small body of doomsmen. In Cambridge
there were lawmen of thegnly rank[812]; in Lincoln there were twelve
lawmen[813]; in Stamford there had been twelve, though at the date of
Domesday Book there were but nine[814]; we read of four _iudices_ in
York[815], and of twelve _iudices_ in Chester[816]. So late as 1275 the
twelve lawmen of Stamford lived on in the persons of their heirs or
successors. There are, said a jury, twelve men in Stamford who are
called lawmen because their ancestors were in old time the judges of the
laws (_iudices legum_) in the said town; they hold of the king in chief;
by what service we do not know; but you can find out from Domesday
Book[817]. Over the bodies of these, presumably Danish, lawmen there has
been much disputation. We know that taken individually the lawmen of
Lincoln were holders of heritable franchises, of sake and soke. We know
that among the twelve _iudices_ of Chester were men of the king, men of
the earl, men of the bishop; they had to attend the 'hundred,' that is,
we take it, the borough court. We know no more; but it seems likely that
we have to deal with persons who collectively form a group of doomsmen,
while individually each of them is a great man, of thegnly rank, with
sake and soke over his men and his lands; his office passes to his
heir[818]. On the whole, however, we must doubt whether the generality
of English boroughs had arrived at even this somewhat rudimentary stage
of organization. In 1200 the men of Ipswich, having received a charter
from King John, decided that there should be in their borough twelve
chief portmen, 'as there were in the other free boroughs in England,'
who should have full power to govern and maintain the town and to render
the judgments of its court[819]. Now Ipswich has a right to be placed in
the class of ancient boroughs, of county towns, and yet to all
appearance it had no definite class of chief men or doomsmen until the
year 1200. Still we ought not to infer from this that the town moot had
been in practice a democratic institution. There may be a great deal of
oligarchy, and oligarchy of an oppressive kind, though the ruling class
has never been defined by law. Domesday Book allows us to see in various
towns a large number of poor folk who can not pay taxes or can only pay
a poll tax. We must be chary of conceding to this crowd any share in the
dooms of the court[820].

[Definition of the borough.]

But what concerns the government of the boroughs has for the time been
sufficiently said by others. In our few last words we will return to our
first theme, the difference between the borough and the mere township.

[Mediatized boroughs.]

We have seen that in Domesday Book a prominent position is conceded to
certain towns. They are not brought under any rubric which would place
them upon the king's or any other person's land. It must now be
confessed that there are some other towns that are not thus treated and
that none the less are called boroughs. If, however, we remember that
burgesses often are in law where they are not in fact, the list that we
shall make of these boroughs will not be long. Still such boroughs exist
and a few words should be said about them. They seem to fall into two
classes, for they are described as being on the king's land or on the
land of some noble or prelate. Of the latter class we will speak first.
It does not contain many members and in some cases we can be certain
that in the Confessor's day the borough in question had no other lord
than the king. Totness is a case in point. It now falls under the title
_Terra Judhel de Tottenais_; but we are told that King Edward held it in
demesne[821]. In Sussex we see that Steyning, Pevensey and Lewes are
called _burgi_[822], Steyning is placed on the land of the Abbot of
Fécamp, Pevensey on that of the Count of Mortain and Lewes on that of
William of Warenne; but at Lewes there have been many haws appurtenant
to the rural manors of the shire thegns[823]. In Kent the borough of
Hythe seems to be completely under the archbishop[824]. He has burgesses
at Romney over whom he has justiciary rights, but they serve the
king[825]. The 'little borough called Fordwich' belonged to the Abbot of
St Augustin. But of this we know the history. The Confessor gave him
the royal two-thirds, while the bishop of Bayeux as the successor of
Earl Godwin gave him the comital one-third[826]. Further north, Louth in
Lincolnshire and Newark in Nottinghamshire seem to be accounted
boroughs; they both belong to the bishop of Lincoln; but in the case of
Newark (which was probably an old _burh_) we may doubt whether his title
is very ancient[827]. We are told that at Tatteshall, the Pontefract of
later days[828], there are sixty 'minute burgesses,' that is, we take
it, burgesses in a small way. Ilbert de Lacy is now their lord; but here
again we may suspect a recent act of mediatization[829]. Grantham in
Lincolnshire is placed on the Terra Regis; it had belonged to Queen
Edith; there were, however, seventy-seven tofts in it which belonged to
'the sokemen of the thegns,' that is, to the sokemen of the thegns of
the shire[830]. Then in Suffolk we see that Ipswich is described at the
end of the section which deals with the royal estates; a similar place
is found for Norwich, Yarmouth and Thetford in the survey of
Norfolk[831]. But for Dunwich we must look elsewhere. There were
burgesses at Dunwich; but to all seeming the royal rights over the town
had passed into the hands of Eadric of Laxfield[832]. The successor of
the same Eadric has burgesses among his tenants at Eye[833]. There are
burgesses at Clare, though Clare belongs altogether to the progenitor of
the lordly race which will take its name from this little town[834]. But
at least in this last case, the burgesses may be new-comers, or rather
perhaps we may see that an old idea is giving way to a newer idea of a
borough, and that if men engaged in trade or handicraft settle round a
market-place and pay money-rents to a lord they will be called
burgesses, though the town is no national fortress. At Berkhampstead 52
burgesses are collected in a _burbium_, but they may be as new as the
two _arpents_ of vineyard[835]. We must not say dogmatically that never
in the days before the Conquest had a village become a borough while it
had for its one and only landlord some person other than the king, some
bishop, or some thegn. This may have happened at Taunton. In 1086 there
were burgesses at Taunton and it enjoyed 'burh-riht,' and yet from a
very remote time it had belonged to the bishops of Winchester. But the
cases in which we may suppose that a village in private hands became a
_burgus_ and that this change took place before the Norman invasion seem
to be extremely few. In these few the cause of the change may have been
that the king by way of special favour imposed his _burhgrið_ upon the
town and thereby augmented the revenue of its lord[836].

[Boroughs on the king's land.]

As to the boroughs that are regarded as standing on the king's land,
these also seem to be few and for the more part they are small. There
are burgesses at Maldon[837]; but Maldon is not placed by the side of
Colchester[838]; it is described among the royal estates. There are
burgesses at Bristol[839]; but Bristol is not placed beside Gloucester
and Winchcombe. Perhaps we should have heard more of it, if it had not,
like Tamworth, stood on the border of two counties. In the south-west
the king's officials seem to be grappling with difficulties as best they
may. In Dorset they place Dorchester, Bridport, Wareham and Shaftesbury
above the rubric _Terra Regis_[840], and we can not find that they
reckon any other place as a borough. In Devonshire we see Exeter above
the line; Lidford and Barnstaple, however, are called boroughs though
they are assigned to the king's land, and (as already said) Totness is a
borough, though it is mediatized and is described among the estates of
its Breton lord[841]. No borough in Somerset is placed above the line,
though we learn that the king has 107 burgesses in Ilchester who pay him
20 shillings[842], and that he and others have burgesses at Bath[843].
Perhaps the space that stands vacant before the list of the tenants in
chief should have been filled with some words about these two towns.
Axbridge, Langport and Milborne seem to be boroughs; Axbridge and
Langport occur in that list of ancient fortresses which we have called
The Burghal Hidage[844]. Wells was an episcopal, Somerton a royal manor;
we have no reason for calling either of them a borough. In Hampshire
another of the ancient fortresses, Twyneham (the modern Christ Church)
is still called _burgus_, but seems to be finding its level among the
royal manors[845]. In Wiltshire Malmesbury and Marlborough are placed
above the line. We learn that the king receives £50 from the _burgus_ of
Wilton[846], and we also learn incidentally that various lords have
burgesses in that town; for example, the bishop of Salisbury has
burgesses in Wilton who belong to his manor of Salisbury[847]. Old
Salisbury ('old Sarum' as we foolishly call it) seems to be a mere
manor belonging to the bishop; but the king receives its third penny.
He receives also the third penny of Cricklade, which we have named
before now as one of the old Wessex strongholds, and several of the
county magnates had burgesses there. On the other hand Calne, Bedwind
and Warminster are reckoned to be manors on the king's land. Burgesses
belong to them; but whether those burgesses are really resident in them
may not be quite certain[848]. Devizes we can not find. That puzzles
should occur in this quarter is what our general theory might lead us to
expect. In the old home of the West-Saxon kings there may well have been
towns which had long ago secured the name and the peace of royal burgs,
though they manifested none of that tenurial heterogeneity which is the
common mark of a borough. A town, a village, which not only belonged to
the king but contained a palace or house in which he often dwelt, would
enjoy his special peace, and might maintain its burghal dignity long
after there was little, if any, real difference between it and other
manors or villages of which the king was the immediate landlord. Already
in 1086 there may have been 'rotten boroughs,' boroughs that were rotten
before they were ripe[849].

[Attributes of the borough.]

A borough belongs to the genus _villa_ (_tún_). In age after age our
task is to discover its _differentia_, and the task is hard because, as
age succeeds age, changes in law and changes in fact are making the old
distinctions obsolete while others are becoming important. Let us
observe, then, that already when Domesday Book was in the making those
ancient attributes of which we have been speaking were disappearing or
were fated soon to disappear. We have thought of the typical borough as
a fortified town maintained by a district for military purposes. But
already the shire thegns have been letting their haws at a rent and
probably have been letting them to craftsmen and traders. Also the time
has come for knight-service and castles and castle-guard. We have
thought of the typical borough as the sphere of a special peace. But the
day is at hand when a revolution in the criminal law will destroy the
old system of _wer_ and _wíte_ and _bót_, and the king's peace will
reign always and everywhere[850]. We have thought of the typical borough
as a town which has a court. But the day is at hand when almost every
village will have its court, its manorial court. New contrasts, however,
are emerging as the old contrasts fade away. Against a background of
villeinage and week-work, the borough begins to stand out as the scene
of burgage tenure. The service by which the burgess holds his tenement
is a money rent. This may lead to a large increase in the number of
boroughs. If a lord enfranchises a manor, abolishes villein customs,
takes money rents, allows his tenants to farm the court and perhaps also
to farm a market that he has acquired from the king, he will be said to
create a _liber burgus_[851]. Merchant gilds, elected bailiffs, elected
mayors and common seals will appear and will complicate the question.
There will follow a time of uncertainty and confusion when the sheriffs
will decide as suits them best which of the smaller towns are boroughs
and which are not.

[Classification of boroughs.]

If the theory that we have been suggesting is true, all or very nearly
all our ancient boroughs (and we will draw the line of ancientry at the
Conquest) are in their inception royal boroughs. The group of burgesses
when taken as a whole had no superior other than the king. His was the
peace that prevailed in the streets; the profits of the court and of the
market were his, though they were farmed by a reeve. Rarely, however,
was he the landlord of all the burgesses. In general not a few of them
lived in houses that belonged to the thegns of the shire. We must be
careful therefore before we speak of these towns as 'boroughs on the
royal demesne.' For the more part, the compilers of Domesday Book have
refused to place them on the _Terra Regis_. In course of time some of
them will be currently spoken of as boroughs on or of the royal demesne.
The rights of those who represent the thegns of the shire will have
become mere rights to rent, and, their origin being forgotten, they will
even be treated as mere rent-charges[852]. The great majority of the
burgesses will in many instances be the king's immediate tenants and he
will be the only lord of that incorporeal thing, 'the borough,' the only
man who can grant it a charter or let it to farm. But we must
distinguish between these towns and those which at the Conquest were
manors on the king's land. These latter, if he enfranchises them, will
be boroughs on the royal demesne in an exacter sense. So, again, we must
distinguish between those ancient boroughs which the king has mediatized
and those manors of mesne lords which are raised to the rank of
boroughs. We have seen that from the ancient borough the king received a
revenue of tolls and fines. Therefore he had something to give away. He
could mediatize the borough. Domesday Book shows us that this had
already been done in a few instances[853]. At a later time some even of
the county towns passed out of the king's hands into the hands of earls.
This happened at Leicester and at Warwick. The earl succeeded to the
king's rights, and the burgesses had to go to the earl for their
liberties and their charters. But such cases are very distinct from
those in which a mesne lord grants an enfranchising charter to the men
of a place which has hitherto been one of his manors, and by speaking of
boroughs which are 'on the land of mesne lords' we must not confuse two
classes of towns which have long had different histories. In the ancient
boroughs there is from the first an element that we must call both
artificial and national. The borough does not grow up spontaneously; it
is made; it is 'wrought'; it is 'timbered.' It has a national purpose;
it is maintained 'at the cost of the nation' by the duty that the shire
owes to it. This trait may soon have disappeared, may soon have been
forgotten, but a great work had been done. In these nationally supported
and heterogeneously peopled towns a new kind of community might wax and
thrive.


FOOTNOTES:

  [698] A sketch of the principal argument of this section was
        published in Eng. Hist. Rev., xi. 13, as a review of
        Keutgen's Untersuchungen über den Ursprung der deutschen
        Stadtverfassung. The origin of the French and German towns
        has become the theme of a large and very interesting
        literature. A good introduction to this will be found in an
        article by M. Pirenne, L'origine des constitutions urbaines,
        Revue historique, liii. 52, lvii. 293, and an article by Mr
        Ashley, Quarterly Journal of Economics, vol. x. July, 1896.
        The continuous survival of Roman municipal institutions even
        in Gaul seems to be denied by almost all modern students.

  [699] Hist. Eng. Law, i. 625.

  [700] Stubbs, Const. Hist. iii. 448.

  [701] We must exclude cases in which the king takes an aid from his
        whole demesne, e.g. for his daughter's marriage, for in such a
        case many royal manors which have no right to be called
        boroughs must make a gift.

  [702] Round, Geoffrey de Mandeville, 347, has excellent remarks on
        this point.

  [703] Nearly.

  [704] This may come only from the Staffordshire part of Tamworth.

  [705] Chichester pays in later years; but very little.

  [706] Pipe Roll, 31 Hen. I. p. 139.

  [707] Was the blank space in D. B. i. 246 left for the borough of
        Tamworth? This borough is incidentally mentioned in D. B. i.
        238, 246, 246 b.

  [708] But the account of the two sister boroughs here falls between
        the accounts of the two sister counties.

  [709] D. B. i. 337. It is even called a _suburbium_ of Lincoln,
        though it lies full 10 miles from the city.

  [710] The one glimpse that I have had of the manuscript suggested to
        me (1) that the accounts of some of the boroughs were
        postscripts, and (2) that space was left for accounts of
        London and Winchester. The anatomy of the book deserves
        examination by an expert.

  [711] D. B. i. 154.

  [712] D. B. i. 56.

  [713] D. B. i. 58.

  [714] D. B. i. 238.

  [715] D. B. i. 143.

  [716] Ellis, Introduction, ii. 446; Winchcombe Land-boc, ed. Royce,
        p. xiv; Stevenson, Rental of Gloucester, p. ix.

  [717] D. B. i. 128, 128 b; and above, p. 111.

  [718] K. 855 (iv. 211).

  [719] Stow, Survey, ed. Strype, Bk. iii. p. 121.

  [720] D. B. i. 135 b.

  [721] Hist. Eng. Law, i. 636.

  [722] Rot. Hund. ii. 361.

  [723] D. B. i. 189.

  [724] Rental of Gloucester, ed. W. H. Stevenson: Gloucester, 1890,
        p. x.

  [725] There are many examples in Kemble's Codex.

  [726] Pipe Roll, 31 Hen. I. p. 41: 'Vicecomes reddit compotum de £80
        de auxilio civitatis.... Et in perdonis.... Comiti de Mellent
        25 sol.... Comiti de Lerecestria 35 sol.... Comiti de Warenna
        16 sol.... Comiti Gloecestriae 116 sol. et 8 den.' See also
        the Liber Wintoniae, D. B. iv. 531 ff.

  [727] In the A.-S. land-books the word _civitas_ is commonly applied
        to Worcester, Winchester, Canterbury, and other such places,
        which are both bishops' sees and the head places of large
        districts. But (K. v. p. 180) Gloucester is a _civitas_, and
        for some time after the Conquest it is rather the county town
        than the cathedral town that bears this title. Did any one
        ever speak of Selsey or Sherborne as a _civitas_? In 803 (K.
        v. p. 65) the bishops of Canterbury, Lichfield, Leicester,
        Sidnacester, Worcester, Winchester, Dunwich, London and
        Rochester style themselves bishops of _civitates_, while those
        of Hereford, Sherborne, Elmham and Selsey do not use this
        word. But an inference from this would be rash.

  [728] An interesting example is this. In 779 Offa conveys to a thegn
        land at Sulmonnesburg. The boundaries mentioned in the charter
        are those of the present parish of Bourton-on-the-Water.
        'Sulmonnesburg ... is the ancient camp close to Bourton which
        gave its name to the Domesday Hundred of Salmanesberie, and at
        a gap in the rampart of which a Court Leet was held till
        recently.' See C. S. Taylor, Pre-Domesday Hide of
        Gloucestershire, Trans. Bristol and Gloucestershire Archæol.
        Soc. vol. xviii. pt. 2. As regards the names of hills and of
        villages named from hills there may occasionally be some
        difficulty in marking off those which go back to _beorh_
        (_berry_, _berrow_, _barrow_) from those which go back to
        _burh_ (_burgh_, _borough_, _bury_). Mr Stevenson tells me
        that in the West of England the termination _-borough_
        sometimes represents _-beorh_.

  [729] Alfred, 40; Ine, 45.

  [730] Aethelr. IV. 4. The Quadripartitus is our only authority for
        these _Instituta_; but Dr Liebermann (Quadrip. p. 138) holds
        that the translator had in front of him a document written
        before the Conquest. Schmid would read _borh-bryce_; see p.
        541; but this emendation seems needless. Has not the sum been
        Normanized? The king's _burh-bryce_ used to be 120 (i.e. in
        English 'a hundred') shillings, and a hundred _Norman_
        shillings make £5. So according to the Berkshire custom (D. B.
        i. 56 b) he who by night breaks a _civitas_ pays 100 shillings
        to the king and not (it is noted) to the sheriff.

  [731] D. B. i. 2: 'Concordatum est de rectis callibus quae habent
        per civitatem introitum et exitum, quicunque in illis
        forisfecerit, regi emendabit.' See the important document
        contained in a St Augustin's Cartulary and printed in Larking,
        Domesday of Kent, Appendix, 35: 'Et omnes vie civitatis que
        habent duas portas, hoc est introitum et exitum, ille sunt de
        consuetudine Regis.'

  [732] Schmid, App. XII; Leg. Henr. c. 16.

  [733] Fleta, p. 66; see also 13 Ric. II. stat. 1. cap. 3.

  [734] Edmund, II. 2.

  [735] See also Schmid, App. IV. (Be griðe and be munde), § 15: 'If
        any man fights or steals in the king's _burh_ or the
        neighbourhood (the 'verge'), he forfeits his life, if the king
        will not concede that he be redeemed by a _wergild_.'

  [736] Æthelstan, II. 20.

  [737] K. 1334 (vi. p. 195): a contract made at Exeter before Earl
        Godwin and all the shire.

  [738] Edgar, III. 5; Cnut, II. 18.

  [739] Mention is made of the walls of Rochester and Canterbury in
        various charters from the middle of cent. viii onwards: K.
        vol. i. pp. 138, 183, 274; vol. ii. pp. 1, 26, 36, 57, 86;
        vol. v. p. 68.

  [740] Green, Conquest of England, 189-207.

  [741] For instance, K. iii. pp. 5, 50.

  [742] K. 1154 (v. 302): 'adiacent etiam agri quamplurimi circa
        castellum quod Welingaford vocitatur.'--K. 152 (i. 183):
        'castelli quod nominatur Hrofescester.'--K. 276 (ii. 57):
        'castelli Hrobi.'

  [743] A beautiful example is given by Staffordshire and
        Warwickshire. Each has its borough in its centre, while
        Tamworth on the border is partly in the one shire, partly in
        the other. See Pipe Roll, 31 Hen. I. 75, 76, 107, 108. As to
        these Mercian shires, see Stubbs, Const. Hist., i. 123; Green,
        Conquest of England, 237: 'Hertfordshire, Buckinghamshire and
        Bedfordshire are other instances of purely military creation,
        districts assigned to the fortresses which Eadward raised at
        these points.'

  [744] See our index under _Burghal Hidage_. Mr W. H. Stevenson's
        valuable aid in the identification of these burgs is
        gratefully acknowledged.

  [745] D. B. i. 154.

  [746] D. B. i. 262 b.

  [747] It will be understood that we are not contending for an exact
        correspondence between civil and military geography. Oxford
        and Wallingford are border towns. Berkshire men help to
        maintain Oxford, and Oxfordshire men help to maintain
        Wallingford.

  [748] Widukind, I. 35. For comments see Waitz, Heinrich V. 95;
        Richter, Annalen, iii. 8; Giesebrecht, Kaiserzeit (ed. 5), i.
        222, 811; Keutgen, Ursprung der deutschen Stadtverfassung, p.
        44. Giesebrecht holds that Edward's measures may well have
        been Henry's model.

  [749] A.-S. Chron. ann. 894.

  [750] A charter of 899 (K. v. p. 141) professes to tell how King
        Alfred, Abp Plegmund and Æthelred ealdorman of the Mercians
        held a moot 'de instauratione urbis Londoniae.' One result of
        this moot was that two plots of land inside the walls, with
        hythes outside the walls, were given by the king, the one to
        the church of Canterbury, the other to the church of
        Worcester. How will the _instauratio_ of London be secured by
        such grants?

  [751] K. 1144 (v. 280). Other cases: K. 663 (Chichester), 673
        (Winchester), 705 (Warwick), 724 (Warwick), 746 (Oxford), 1235
        (Winchester).

  [752] K. 765-6, 805.

  [753] Schmid, App. V. This might mean a seat (of justice) in the
        gate of his own _burh_. But this document will hardly be older
        than, if so old as, cent. x., by which time we should suppose
        that _burh_ more often pointed to a borough than to a strong
        house. We may guess that in the latter sense it was supplanted
        by the _hall_ of which we read a great deal in Domesday. See
        above, p. 109. However, it does not seem certain that O. E.
        _geat_ can mean _street_.

  [754] A.-S. Chron. ann. 994.

  [755] Thorpe, Diplomatarium, 610. When the Confessor sends a writ to
        London he addresses it to the bishop, portreeve and
        burh-thegns. See K. iv. pp. 856, 857, 861, 872.

  [756] Gross, Gild Merchant, i. 183, 189.

  [757] Gross, op. cit. ii. 37.

  [758] Hist. Eng. Law, i. 257.

  [759] A.-S. Chron. ann. 1097: 'Eac manege sciran þe mid weorce to
        Lundenne belumpon ...' Thorpe thought good to substitute
        _scipan_ for _sciran_.

  [760] D. B. i. 298. Outside York were some lands which gelded with
        the city; 'et in tribus operibus Regis cum civibus erant.'
        This refers to the _trinoda necessitas_.

  [761] Sohm, Die Entstehung des deutschen Städtewesens: Leipzig,
        1890.

  [762] Ellis, Introduction, i. 248-253.

  [763] D. B. i. 56 b.

  [764] D. B. i. 1. Black Book of the Admiralty, ii. 158: 'the herring
        season, that is from St. Michael's Day to St. Clement's (Nov.
        23).' St. Andrew's Day is Dec. 1.

  [765] Edward, I. 1; Æthelstan, II. 12, 13; IV. 2; VI. 10; Edmund,
        III. 5; Edgar, IV. 7-11; Leg. Will. I. 45; Leg. Will. III. 10.
        See Schmid, Glossar. s.v. _Marktrecht_.

  [766] Edgar, IV. 3-6. We should expect rather 36 than 33, and
        _xxxvi_ might easily become _xxxiii_.

  [767] K. 280 (ii. 63), 316 (ii. 118).

  [768] Kemble, Cod. Dip. 1075 (v. 142); Kemble, Saxons, ii. 328;
        Thorpe, 136: 'ge landfeoh, ge fihtwite, ge stale, ge
        wohceapung, ge burhwealles sceatinge.' In D. B. i. 173 it is
        said that the Bishop of Worcester had received the third penny
        of the borough. Apparently in the Confessor's day he received
        £6, the third of a sum of £18. As to the early history of
        markets, see the paper contributed by Mr C. I. Elton to the
        Report of the Royal Commission on Market Rights, 1889.

  [769] Æthelstan, II. 14.

  [770] The general equivalence of _port_ and _burh_ we may perhaps
        infer from Æthelstan, II. 14: No one is to coin money outside
        a _port_, and there is to be a moneyer in every _burh_.

  [771] Stockport, Langport, Amport, Newport-Pagnell, Milborne Port,
        Littleport are instances. But a very small river might be
        sufficient to make a place a haven.

  [772] Seemingly if this O.-E. _port_ is not Lat. _portus_, it is
        Lat. _porta_, and there is some fascination about the
        suggestion that the _burh-geat_, or in modern German the
        _Burg-gasse_, in which the market is held, was described in
        Latin as _porta burgi_. In A.D. 762 (K. i. p. 133) we have a
        house 'quae iam ad Quenegatum urbis Dorouernis in foro posita
        est.' In A.D. 845 (K. ii. p. 26) we find a 'publica strata' in
        Canterbury 'ubi appellatur Weoweraget,' that is, the gate of
        the men of Wye. But what we have to account for is the
        adoption of _port_ as an English word, and if our ancestors
        might have used _geat_, they need not have borrowed. In A.D.
        857 (K. ii. p. 63) the king bestows on the church of Worcester
        certain liberties at a spot in the town of London, 'hoc est,
        quod habeat intus liberaliter modium et pondera et mensura
        sicut in porto mos est ad fruendum.' To have public weights
        and measures is characteristic of a _portus_ (= haven). The
        word may have spread outwards from London. Dr Stubbs (Const.
        Hist. i. 439) gives a weighty vote for _porta_; but the
        continental usage deserves attention. Pirenne, Revue
        historique, lvii. 75: 'Toutes les villes anciennes [en
        Flandre] s'y forment au bord des eaux et portent le nom
        caractéristique de _portus_, c'est-à-dire de débarcadères.
        C'est de ce mot _portus_ que vient le mot flamand _poorter_,
        qui désigne le bourgeois.' See D. B. i. 181 b: 'in Hereford
        Port.'

  [773] D. B. i. 143.

  [774] D. B. i. 230.

  [775] Cutts, Colchester, 65; Round in The Antiquary, vol. vi. (1882)
        p. 5.

  [776] D. B. ii. 106-7. See Round, op. cit., p. 252.

  [777] Hist. Eng. Law, i. 629.

  [778] D. B. i. 252.

  [779] D. B. i. 179. So at Chester (i. 262 b) it is considered
        possible that the heir will not be able to pay the relief of
        ten shillings and will forfeit the tenement.

  [780] D. B. i. 336.

  [781] D. B. ii. 116. See also the case of Thetford (D. B. ii. 119),
        where there had been numerous burgesses who could choose their
        lords.

  [782] D. B. i. 280.

  [783] D. B. i. 336 b.

  [784] D. B. ii. 117.

  [785] D. B. i. 2. In 923 (K. v. p. 186) we hear of land outside
        Canterbury called _Burhuuare bocaceras_, apparently acres
        booked to [certain] burgesses.

  [786] D. B. i. 100.

  [787] D. B. ii. 107: 'In commune burgensum iiii. xx. acrae terrae;
        et circa murum viii. percae; de quo toto per annum habent
        burgenses lx. sol. ad servicium regis si opus fuerit, sin
        autem, in commune dividunt.' As to this most difficult
        passage, see Round, Antiquary, vol. vi. (1882) p. 97. Perhaps
        the most natural interpretation of it is that the community or
        commune of the burgesses holds this land and receives by way
        of rent from tenants, to whom it is let, the sum of 60
        shillings a year, which, if this be necessary, goes to make up
        what the borough has to pay to the king, or otherwise is
        divisible among the burgesses. But, as Mr Round rightly
        remarks, 60 shillings for this land would be a large rent.

  [788] D. B. i. 2: 'Ipsi quoque burgenses habebant de rege 33 acras
        terrae in gildam suam.' Another version says, '33 agros terre
        quos burgenses semper habuerunt in gilda eorum de donis omnium
        regum.' The document here cited is preserved in a cartulary of
        St Augustin, and is printed in Larking, Domesday of Kent, App.
        35. It is closely connected with the Domesday Survey and is of
        the highest interest.

  [789] Gross, Gild Merchant, ii. 37.

  [790] We do not even know for certain that when our record says that
        the burgesses and the clerks held land 'in gildam suam,' more
        was meant than that the land was part of their geldable
        property. See Gross, Gild Merchant, i. 189. In the Exon
        Domesday the geld is _gildum_.

  [791] D. B. i. 154.

  [792] See above, p. 179.

  [793] In modern York the freemen inhabiting the different wards had
        rights of pasture varying from ward to ward: Appendix to
        Report of Municipal Corporations' Commissioners, 1835, p.
        1745. York is one of the towns in which we may perhaps suppose
        that there has been a gradual union of several communities
        which were at one time agrarianly distinct. See D. B. i. 298.
        Dr Stubbs seems to regard this as a common case and speaks of
        'the townships which made up the _burh_' (Const. Hist. i.
        101). We can not think that the evidence usually points in
        this direction, and have grave doubts as to the existence
        within the walls of various communities that were called
        townships. Within borough walls we must not leap from parish
        to township.

  [794] D. B. i. 203. As to the whole of this matter see Mr Round's
        paper on Domesday Finance in Domesday Studies, vol. i.

  [795] Hist. Eng. Law, i. 635.

  [796] D. B. i. 219.

  [797] The case of London is anomalous; but not so anomalous as it is
        often supposed to be. On this point see Round, Geoffrey de
        Mandeville, 347 ff. On the Pipe Roll of 2 Hen. II. (pp. 24,
        28) the citizens of Lincoln are accounting for a farm of £180,
        while the sheriff in consequence of this arrangement is
        credited with £140 (blanch) when he accounts for the farm of
        the shire. This is as yet a rare phenomenon.

  [798] As to the round sums cast on the boroughs, see Round in
        Domesday Studies, i. 117 ff.; also Round, Feudal England, 156.

  [799] This may not have been the case in East Anglia.

  [800] D. B. i. 252.

  [801] D. B. i. 298. Of York we read: 'In the geld of the city are 84
        carucates of land, each of which gelds as much as one house in
        the city.' This seems to point to an automatic adjustment. To
        find out how much geld any house pays, divide the total sum
        that is thrown upon York by the number of houses + 84.

  [802] Mr Round (Domesday Studies, i. 129) who has done more than
        anyone else for the elucidation of the finance of Domesday,
        has spoken of 'the great Anglo-Saxon principle of _collective
        liability_.' This may be a useful term, provided that we
        distinguish (_a_) liability of a corporation for the whole tax
        whenever it is levied; (_b_) joint and several liability of
        all the burgesses for the whole tax whenever it is levied;
        (_c_) liability of each burgess for a share of the whole tax,
        the amount that he must pay in any year being affected by an
        increase or decrease in the number of contributories.

  [803] See the entry touching Colchester, above, p. 201, note 787.

  [804] D. B. i. 1.

  [805] D. B. i. 238. The custom of Warwick was that when the king
        made an expedition by land ten burgesses of Warwick should go
        for all the rest. He who did not go when summoned [summoned by
        whom?] paid 100 shillings to the king; [so his offence was
        against the king not against the town.] And if the king went
        against his enemies by sea, they sent him four boat-swains or
        four pounds in money.

  [806] D. B. i. 56 b.

  [807] D. B. i. 179.

  [808] At Chester (D. B. i. 262 b) the twelve civic _iudices_ paid a
        fine if they were absent without excuse from the 'hundret.'
        This seems to mean that their court was called a hundred moot.
        It is very possible that, at least in the earliest time, the
        moot that was held in the borough had jurisdiction over a
        territory considerably larger than the walled space, and in
        this case the urban would hardly differ from the rural
        hundred. A somewhat new kind of 'hundred' might be formed
        without the introduction of any new idea.

  [809] D. B. i. 336.

  [810] Hist. Eng. Law, i. 631.

  [811] Green, Town Life, vol. i. ch. xi.

  [812] D. B. i. 189.

  [813] D. B. i. 336 b.

  [814] D. B. i. 336 b.

  [815] D. B. i. 298.

  [816] D. B. i. 262 b.

  [817] R. H. i. 354-6.

  [818] Besides the well known English books, see a paper by Konrad
        Maurer, Sitzungsberichte der Akademie der Wissenschaften zu
        München, Philosoph.-philolog. Classe, 1887, vol. ii. p. 363.
        In the Leges Edw. Conf. 38 § 2, the 'lagemanni et meliores
        homines de burgo' seem to serve as inquest men, rather than
        doomsmen; while the _lahmen_ of the document concerning the
        Dunsetan (Schmid, App. I.) seem to be doomsmen.

  [819] Gross, Gild Merchant, ii. 114 ff.; Hist. Eng. Law, i. 642.

  [820] D. B. ii. 290, Ipswich: 'Modo vero sunt 110 burgenses qui
        consuetudinem reddunt et 100 pauperes burgenses qui non
        possunt reddere ad geltum Regis nisi unum denarium de suis
        capitibus.' D. B. ii. 116, Norwich: 'Modo sunt in burgo 665
        burgenses anglici et consuetudines reddunt, et 480 bordarii
        qui propter pauperiem nullam reddunt consuetudinem.'

  [821] D. B. i. 108 b.

  [822] Whether the _novum burgum_ mentioned in D. B. i. 17 is
        Winchelsea or Rye or a new town at Hastings seems to be
        disputable. See Round, Feudal England, 568.

  [823] D. B. i. 26 b, 27.

  [824] D. B. i. 4 b.

  [825] D. B. i. 4 b. See also, 10 b.

  [826] D. B. i. 12.

  [827] D. B. i. 345, 283 b. It has been said that Leofric gave Newark
        to the see.

  [828] Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from
        Yorkshire Archaeological Journal), p. 126.

  [829] D. B. i. 316 b. The estate is ingeldable and therefore looks
        like an ancient possession of the king.

  [830] D. B. 337 b: 'Toftes sochemanorum teignorum.' Some
        commentators have seen here 'sokemen thegns'; but the other
        interpretation seems far more probable.

  [831] Had these towns been described in Great Domesday, they would
        probably have been definitely placed outside the _Terra
        Regis_.

  [832] D. B. ii. 311, 312, 385.

  [833] D. B. ii. 319 b.

  [834] D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.' For
        Sudbury, see D. B. ii. 286 b; for Beccles, 369 b.

  [835] D. B. i. 136 b: 'In burbio huius villae 52 burgenses.' The
        word _burbium_ looks as if some one had argued that as
        _suburbium_ means an annex to a town, therefore _burbium_ must
        mean a town. But the influence of _burh_, _burg_, _bourg_ may
        be suspected. A few pages back (132) the _burgum_ of Hertford
        seems to be spoken of as 'hoc suburbium.' It is of course to
        be remembered that _burgus_ or _burgum_ was a word with which
        the Normans were familiar: it was becoming the French _bourg_.
        It is difficult to unravel any distinctively French thread in
        the institutional history of our boroughs during the Norman
        age; but the little knot of traders clustered outside a lord's
        castle at Clare or Berkhampstead, at Tutbury, Wigmore or
        Rhuddlan may have for its type rather a French _bourg_ than an
        English _burh_. Indeed at Rhuddlan (i. 269) the burgesses have
        received the law of Breteuil.

  [836] For Taunton, see D. B. i. 87 b: 'Istae consuetudines pertinent
        ad Tantone: burgeristh, latrones, pacis infractio, hainfare,
        denarii de hundred, denarii S. Petri, ciricieti.' Compare the
        document which stands as K. 897 (iv. 233): 'Ðæt is ærest ...
        seo men redden into Tantune cirhsceattas and burhgerihtu.' See
        also K. 1084 (v. 157): 'ut episcopi homines [apud Tantun] tam
        nobiles quam ignobiles ... hoc idem ius in omni haberent
        dignitate quo regis homines perfruuntur, regalibus fiscis
        commorantes.'

  [837] D. B. ii. 5 b.

  [838] D. B. ii. 104.

  [839] D. B. i. 163.

  [840] D. B. i. 75.

  [841] D. B. i. 100, 108 b.

  [842] D. B. i. 86 b.

  [843] D. B. i. 87.

  [844] See above, p. 188.

  [845] D. B. 38 b, 44.

  [846] D. B. 64 b.

  [847] D. B. 66.

  [848] The burgesses belonging to Ramsbury are really at Cricklade:
        D. B. i. 66.

  [849] It seems very possible that already before the Conquest some
        boroughs had fallen out of the list. In cent. x. we read, for
        example, of a _burh_ at Towcester and of a _burh_ at Witham in
        Essex. We must not indeed contend that a shire-supported town
        with tenurial heterogeneity came into existence wherever
        Edward the Elder or the Lady of the Mercians 'wrought a
        _burh_.' But still during a time of peace the walls of a petty
        _burh_ would be neglected, and, if the great majority of the
        inhabitants were the king's tenants, there would be little to
        distinguish this place from a royal village of the common
        kind. See for Towcester, D. B. i. 219 b; for Witham, D. B. ii.
        1 b. In later days we may see an old borough, such as
        Buckingham, falling very low and sending no burgesses to
        parliament. It will be understood that we have not pledged
        ourselves to any list of the places that were boroughs in
        1066. There are difficult cases such as that of St Albans; see
        above, p. 181. But, we are persuaded that few places were
        deemed _burgi_, except the shire towns.

  [850] A last relic of the old borough peace may be found in
        Britton's definition of burglary (i. 42): 'Burglars are those
        who feloniously in time of peace break churches, or the houses
        of others, or the walls or gates of our cities or boroughs
        (_de nos citez ou de nos burgs_).'

  [851] By a charter of enfranchisement a lord might introduce burgage
        tenure and abolish 'servile customs'; but it must be, to say
        the least, doubtful whether he could, without the king's
        licence, confer upon a village the public status of a borough
        and e.g. authorize it to behave like a hundred before the
        justices in eyre. This is one of the reasons why sheriffs can
        draw the line where they please, and why some towns which have
        been enfranchised never obtain a secure place in the list of
        parliamentary boroughs.

  [852] Hist. Eng. Law, i. 630. When it is being said that if land in
        the borough escheats, it always escheats to the king, the
        mesne tenures are already being forgotten within the borough,
        just as in modern times we have forgotten them in the open
        country. The burgher's power of devising his land made escheat
        a rare event, and so destroyed the evidence of mesne tenure.

  [853] See above, p. 212. Also the king might give away an undivided
        share of the borough. Apparently the church of Worcester had
        received the third penny of the city ever since the day when
        the _burh_ was wrought by the ealdorman and lady of the
        Mercians. See above, p. 194.



ESSAY II.

ENGLAND BEFORE THE CONQUEST.


[Object of this Essay.]

No one can spend patient hours in examining the complex web disclosed by
Domesday Book without making some theories, at least some guesses, about
the political, social and economic threads of which that web has been
woven. But if we here venture to fashion and state a few such theories
or such guesses, it is with no hope that they will be a complete
explanation of old English history. For, in the first place, we are to
speak mainly of the things of the law, of legal ideas and legal forms,
and once for all we may protest that we have no wish to overestimate
their importance. The elaborate and long continued development to which
we point when we speak of 'feudalism,' can not be fully explained by any
discussion of legal ideas and legal forms. On the other hand, it can not
be fully explained without such discussion, for almost all that we can
know about it is to be found in legal documents. In the second place, we
are to make a selection. Certain phases of our oldest legal history,
notably those which are called 'constitutional,' have been so fully
treated by classical books, that at the present moment there is no good
reason why we should traverse the ground that has been covered.
Therefore if, for example, we say little or nothing of the ancient
Germanic _comitatus_ or of the relationship between lord and man in so
far as it is a merely personal relationship, this will not be because we
have overlooked these matters; it will be because there is nothing to be
gained by our repeating what has been well and sufficiently said by Dr
Konrad Maurer, Dr Reinhold Schmid, Dr Stubbs and others. And if, again,
we lay great stress on what may be called the ecclesiastical phase of
the feudalizing process, this will not be because we think it the only
phase, it will be because we think that too little attention has been
paid by English writers to the influence which the churches exercised
upon temporal affairs by means of their endowments. The day for an
artistically proportioned picture of the growth of feudalism has not yet
come; the day for a quantitative analysis of the elements of feudalism
may never come; for the present we must be content if we can bring out a
few new truths or set a few old truths in a new light. The vast and
intricate subject may be approached from many different quarters. If we
can make some little progress along our chosen path, we shall be all the
more willing to admit that progress along other paths is possible.

[Fundamental controversies as to Anglo-Saxon history.]

It can not but be, however, that this part of our work should be
controversial, though it need not be polemical. We are told that 'in
spite of all the labour that has been spent on the early history of
England, scholars are still at variance upon the most fundamental of
questions: the question whether that history began with a population of
independent freemen or with a population of dependent serfs[854]'. Some
exception may be taken to this statement. No one denies that for the
purposes of English history slavery is a primitive institution, nor that
in the seventh and eighth centuries there were many slaves in England.
On the other hand, no one will assert that we can ascertain, even
approximately, the ratio that the number of slaves bore to the number of
free men. Moreover such terms as 'dependent' and 'independent' are not
words that we can profitably quarrel over, since they are inexact and
ambiguous. For all this, however, it may well be said that there are two
main theories before the world. The one would trace the English manor
back to the Roman villa, would think of the soil of England as being
tilled from the first mainly by men who, when they were not mere slaves,
were _coloni_ ascript to the land. The other would postulate the
existence of a large number of free men who with their own labour tilled
their own soil, of men who might fairly be called free 'peasant
proprietors' since they were far from rich and had few slaves or
servants, and yet who were no mere peasants since they habitually bore
arms in the national host. What may be considered for the moment as a
variant on this latter doctrine would place the ownership of the soil,
or of large tracts of the soil, not in these free peasants taken as
individuals, but in free village communities.

[The Romanesque theory unacceptable.]

Now we will say at once that the first of these theories we can not
accept if it be put forward in a general form, if it be applied to the
whole or anything like the whole of England. Certainly we are not in a
position to deny that in some cases, a Roman villa having come into the
hands of a Saxon chieftain, he treated the slaves and _coloni_ that he
found upon it in much the same way as that in which they had been
theretofore treated, though even in such a case the change was in all
probability momentous, since large commerce and all that large commerce
implies had perished. But against the hypothesis that this was the
general case the English language and the names of our English villages
are the unanswered protest. It seems incredible that the bulk of the
population should have been of Celtic blood and yet that the Celtic
language should not merely have disappeared, but have stamped few traces
of itself upon the speech of the conquerors.[855] This we regard as an
objection which goes to the root of the whole matter and which throws
upon those who would make the English nation in the main a nation of
Celtic bondmen, the burden of strictly proving their thesis. The German
invaders must have been numerous. The Britons were no cowards. They
contested the soil inch by inch. The struggle was long and arduous. What
then, we must ask, became of the mass of the victors? Surely it is
impossible that they at once settled down as the 'dependent serfs' of
their chieftains. Again, though it is very likely that where we find a
land of scattered steads and of isolated hamlets, there the Germanic
conquerors have spared or have been unable to subdue the Britons or have
adapted their own arrangements to the exterior framework that was
provided by Celtic or Roman agriculture, still, until Meitzen[856] has
been refuted, we are compelled to say that our true villages, the
nucleated villages with large 'open fields,' are not Celtic, are not
Roman, but are very purely and typically German. But this is not all.
Hereafter we shall urge some other objections. The doctrine in question
will give no rational explanation of the state of things that is
revealed to us by the Domesday Survey of the northern and eastern
counties and it will give no rational explanation of seignorial justice.
This being so, we seem bound to suppose that at one time there was a
large class of peasant proprietors, that is, of free men who tilled the
soil that they owned, and to discuss the process which substitutes for
peasant proprietorship the manorial organization.

[Feudalism as a normal stage.]

Though we can not deal at any length with a matter which lies outside
the realm of legal history, we ought at once to explain that we need not
regard this change as a retrogression. There are indeed historians who
have not yet abandoned the habit of speaking of feudalism as though it
were a disease of the body politic. Now the word 'feudalism' is and
always will be an inexact term, and, no doubt, at various times and
places there emerge phenomena which may with great propriety be called
feudal and which come of evil and make for evil. But if we use the term,
and often we do, in a very wide sense, if we describe several centuries
as feudal, then feudalism will appear to us as a natural and even a
necessary stage in our history: that is to say, if we would have the
England of the sixteenth century arise out of the England of the eighth
without passing through a period of feudalism, we must suppose many
immense and fundamental changes in the nature of man and his
surroundings. If we use the term in this wide sense, then (the barbarian
conquests being given us as an unalterable fact) feudalism means
civilization, the separation of employments, the division of labor, the
possibility of national defence, the possibility of art, science,
literature and learned leisure; the cathedral, the scriptorium, the
library, are as truly the work of feudalism as is the baronial castle.
When therefore we speak, as we shall have to speak, of forces which make
for the subjection of the peasantry to seignorial justice and which
substitute the manor with its villeins for the free village, we
shall--so at least it seems to us--be speaking not of abnormal forces,
not of retrogression, not of disease, but in the main of normal and
healthy growth. Far from us indeed is the cheerful optimism which
refuses to see that the process of civilization is often a cruel
process; but the England of the eleventh century is nearer to the
England of the nineteenth than is the England of the seventh--nearer by
just four hundred years.

[Feudalism as progress and as retrogress.]

This leads to a remark which concerns us more deeply. As regards the
legal ideas in which feudalism is expressed a general question may be
raised. If we approach them from the standpoint of modern law, if we
approach them from the standpoint of the classical Roman law, they are
confused ideas. In particular no clear line is drawn between public and
private law. Ownership is _dominium_; but governmental power,
jurisdictional power, these also are _dominium_. Office is property;
taxes are rents; governmental relationships arise _ex contractu_. Then
within the province of private law the ideas are few; these few have
hard work to do; their outlines are blurred. One _dominium_ rises above
another _dominium_, one seisin over another seisin. Efforts after
precision made in comparatively recent times by romanizing lawyers serve
only to show how vague was the subject-matter with which they had to
deal. They would give the lord a _dominium directum_, the vassal a
_dominium utile_; but then, when there has been further subinfeudation,
this vassal will have a _dominium utile_ as regards the lord paramount,
but a _dominium directum_ as regards the sub-vassal. So again, as we
shall see hereafter, the gift of land shades off into the 'loan' of
land, the 'loan' into the gift. The question then occurs whether we are
right in applying to this state of things such a word as 'confusion,' a
word which implies that things that once were distinct have wrongfully
or unfortunately been mixed up with each other, a word which implies
error or retrogression.

[Progress and retrogress in the history of legal ideas.]

Now, no doubt, from one point of view, namely that of universal history,
we do see confusion and retrogression. Ideal possessions which have been
won for mankind by the thought of Roman lawyers are lost for a long
while and must be recovered painfully. Lines that have been traced with
precision are smudged out, and then they must be traced once more. If we
regard western Europe as a whole, this retrogression appears as a slow
change. How slow--that is a much controverted question. There are, for
example, historians who would have us think of the Gaul of Merovingian
times as being in the main governed by Roman ideas and institutions,
which have indeed been sadly debased, but still are the old ideas and
institutions. There are other historians who can discover in this same
Gaul little that is not genuinely German and barbarous. But at any rate,
it must be admitted that somehow or another a retrogression takes
place, that the best legal ideas of the ninth and tenth centuries are
not so good, so modern, as those of the third and fourth. If, however,
we take a narrower view and fix our eyes upon the barbarian hordes which
invade a Roman province, shall we say that their legal thought gradually
goes to the bad, and loses distinctions which it has once apprehended?
To turn to our own case--Shall we say that Englishmen of the eighth
century mark the line that divides public from private law, while
Englishmen of the eleventh century can not perceive it?

[The contact of barbarism and civilization.]

No one perhaps to such a question would boldly say: Yes. And yet, when
it comes to a treatment of particulars, an affirmative answer seems to
be implied in much that has been written even by modern historians. They
begin at the beginning and attribute precise ideas and well-defined law
to the German conquerors of Britain. If they began with the eleventh
century and thence turned to the earlier time, they might come to
another opinion, to the opinion that in the beginning all was very
vague, and that such clearness and precision as legal thought has
attained in the days of the Norman Conquest has been very gradually
attained and is chiefly due to the influence which the old heathen world
working through the Roman church has exercised upon the new. The process
that is started when barbarism is brought into contact with civilization
is not simple. The hitherto naked savage may at once assume some part of
the raiment, perhaps the hat, of the white man. When after a while he
puts these things aside and learns to make for himself clothes suitable
to the climate in which he lives and the pursuits in which he is
engaged, we see in this an advance, not a relapse; and yet he has
abandoned some things that belong to the white man. Even so when our
kings of the eighth century set their hands to documents written in
Latin and bristling with the technical terms of Roman law, to documents
which at first sight seem to express clear enough ideas of ownership and
alienation, we must not at once assume that they have grasped these
ideas. In course of time men will evolve formulas which will aptly fit
their thought, for example, the 'feudal' charter of feoffment with its
_tenendum de me_ and its _reddendo mihi_. Externally it will not be so
Roman or (we may say it) so modern a document as was the land-book of
the eighth century, and yet in truth there has been progress not
retrogress. Words that Roman lawyers would have understood give way
before words which would have been nonsense to them, _feoffamentum_,
_liberatio seisinae_ and the like. This is as it should be. Men are
learning to say what they really mean.

[Our materials.]

And now let us remember that our materials for the legal history of the
long age which lies behind Domesday Book are scanty. A long age it is,
even if we measure it only from the date of Augustin's mission. The
Conqueror stands midway between Æthelbert and Elizabeth. To illustrate
five hundred years of legal history we have only the dooms and the
land-books. The dooms are so much taken up with the work of keeping the
peace and punishing theft that they tell us little of the structure of
society or of the feudalizing process, while as to what they imply it is
but too easy for different men to form different opinions. Some twelve
hundred land-books or charters, genuine and spurious, are our best,
almost our only, evidence, and it must needs be that they will give us
but a partial and one-sided view of intricate and many-sided facts[857].


FOOTNOTES:

  [854] Ashley, Introduction to Fustel de Coulanges, Origin of
        Property in Land, p. vii.

  [855] The gradual disappearance in recent times of the Irish
        language is no parallel case, for this is a triumph of the
        printing press. Mr Stevenson tells me that the number of
        unquestioned cases of a word borrowed from Celtic in very
        ancient times is now reduced to less than ten.

  [856] Meitzen, Siedelung und Agrarwesen der Germanen, especially ii.
        120 ff.

  [857] We shall use, and cite by the letter _K._, Kemble's Codex
        Diplomaticus Aevi Saxonici. We shall refer by the letters _H.
        & S._ to the third volume of the Councils and Ecclesiastical
        Documents edited by Haddan and Stubbs, by the letter _T._ to
        Thorpe's Diplomatarium, by the letter _B._ to Birch's
        Cartularium, by the letter _E._ to Earle's Land Charters.
        Reference will also be made to the two collections of
        facsimiles, namely, the four volumes which come from the
        British Museum and the two which come from the Ordnance
        Survey. We are yet a long way off a satisfactory edition of
        the land-books. A model has been lately set by Prof. Napier
        and Mr Stevenson in their edition of the Crawford Collection
        of Early Charters, Oxford, 1895.



§ 1. _Book-land and the Land-book._


[The lands of the churches.]

Now these charters or land-books are, with hardly any exceptions,
ecclesiastical title-deeds. Most of them are deeds whereby lands were
conveyed to the churches; some are deeds whereby lands were conveyed to
men who conveyed them to the churches. Partial, one-sided and in details
untrustworthy though the testimony that they bear may be, there is still
one general question that they ought to answer and we ought to ask.
Domesday Book shows us many of the churches as the lords of wide and
continuous tracts of land. Now about this important element in the
feudal structure the land-books ought to tell us something. They ought
to tell us how the churches acquired their territories; they ought to
tell us what class of men made gifts of land to the churches; they ought
to tell us whether those gifts were of big tracts or of small pieces.
For example, let us remember how Domesday Book shows us that four
minsters, Worcester, Evesham, Pershore and Westminster, were lords of
seven-twelfths of Worcestershire, that the church of Worcester was lord
of one quarter of that shire and lord of the triple hundred of
Oswaldslaw. How did that church become the owner of a quarter of a
county, to say nothing of lands in other shires? We ought to be able to
answer this question in general terms, for among the charters that have
come down to us there is no series which is longer, there is hardly a
long series which is of better repute, than the line of the land-books
which belonged to the church of Worcester. They come to us for the more
part in the form of a cartulary compiled not long after the Conquest by
the monk Heming at the instance of Bishop Wulfstan[858].

[How the churches acquired their lands.]

Now the answer that they give to our question is this:--With but few
exceptions, the donors of these lands were kings or under-kings, kings
or under-kings of the Mercians, kings of the English, and the gifts were
large gifts. Very often the charter comprised a tract of land which in
Domesday Book appears as a whole vill or as several contiguous vills.
Seldom indeed is the subject-matter of the gift described as being a
_villa_ or a _vicus_:--the king merely says that he gives so many manses
or the land of so many _manentes_ at a certain place. Still, if we
compare these charters with Domesday Book, we shall become convinced
that very often the land given was of wide extent. For example, Domesday
Book tells us that the church of Worcester holds Sedgebarrow
(Seggesbarue) where it has four hides for geld, but eight plough teams.
How was this acquired? The monks answer that three centuries ago, in
777, Aldred the under-king of the Hwiccas gave them _viculum qui
nuncupatur aet Segcesbaruue iiii. mansiones_, that land having been
giving to him by Offa king of the Mercians in order that the soul of the
_subregulus_ might have something done for it[859]. In the Conqueror's
reign the Archbishop of Canterbury held a great estate in Middlesex of
which Harrow was the centre, and which contained no less than 100 hides.
Already in 832 the archbishop or his church had 104 hides at
Harrow[860]. Here we will state our belief, its grounds will appear in
another essay, that the 'manses' that the kings throw about by fives and
tens and twenties, are no small holdings, but hides each of which
contains, or is for fiscal purposes deemed to contain, some 120 acres of
arable land together with stretches, often wide stretches, of wood,
meadow and waste, the extent of which varies from case to case. From the
seventh century onwards the kings are giving large territories to the
churches. One instance is beyond suspicion, for Bede attests it. In 686
or thereabouts Æthelwealh king of the South Saxons gave to Bishop
Wilfrid the land of eighty-seven families in the promontory of Selsey,
and among its inhabitants were two hundred and fifty male and female
slaves[861]. This gift comprised a spacious tract of country; it
comprised what then were, or what afterwards became, the sites of many
villages[862]. But to whichever of our oldest churches we turn, the
story that it proclaims in its title-deeds is always the same:--We
obtained our lands by means of royal grants; we obtained them not in
little pieces, here a few acres and there a few, but in great pieces.
Canterbury and Winchester echo the tale that is told by Worcester.
Another example may be given. It is one that has been carefully examined
of late. In 739 King Æthelheard of Wessex gave to Forthhere bishop of
Sherborne twenty _cassati_ at the place called 'Cridie.' Thereby he
disposed of what now are 'the parishes of Crediton, Newton St. Cyres,
Upton Pyne, Brampford Speke, Hittesleigh, Drewsteignton, Colebrooke,
Morchard Bishop, Sandford, Kennerleigh and the modern parish of
Sherwood, part of Cheriton Bishop, and possibly the whole of
Clannaborough.' He disposed of the whole and more than the whole of the
modern 'hundred' of Crediton[863]. Then, to choose one last instance, it
is said that already in 679 Osric of the Hwiccas gave to an abbess
_centum manentes qui adiacent civitati quae vocatur Hát Bathu_[864]. It
is not unlikely that this means that a king newly converted to
Christianity disposed by one deed of many square leagues of land,
namely, of the hundred of Bath[865]. The kingdom of the Hwiccas was not
boundless. If Osric executed a few more charters of this kind he would
soon have 'booked' it all.

[The earliest books.]

Let us then examine with some care the charters that come to us from the
earliest period, a period which shall begin with the year 600 and end
with the year 750. From this time we have some forty charters
sufficiently genuine for our present purpose. With hardly an exception
the grantor is a king or an under-king, while the grantee is a dead
saint, a church, a bishop, an abbot, or a body of monks. If the grantee
is a layman, the gift is made to him in order that he may found a
minster. If this purpose is not expressed, it is to be understood. Thus
in 674 or thereabouts Wulfhere king of the Mercians gives five manses to
his kinsman Berhtferth as a perpetual inheritance. Berhtferth is to have
full power to give them to whom he pleases, and we are not told that he
proposes to devote them to pious uses. Nevertheless, the king makes the
gift 'for the love of Almighty God and of his faithful servant St.
Peter[866].' In other cases the lay donee is to hold the land 'by church
right' or 'by minster right[867].' Indeed there seems to be no single
deed of this period which does not purport upon its face to be in some
sort an ecclesiastical act, an act done for the good of the
church[868].

[Exotic character of the book.]

These charters are documents of ecclesiastical origin; they are also
documents of foreign origin. The bishops and abbots have brought or have
imported models from abroad. The 'books' that they induce the kings to
sign are full of technical phrases which already have an ancient
history. By way of illustration we will notice one point at which there
is an instructive resemblance and an instructive contrast. On the
Continent a grantor of lands ends his conveyance with a 'penal
stipulation.' If an heir of his controverts the deed, he is to pay a
certain sum, and none the less the conveyance is to remain in full
force. In England we can not thus stipulate for a pecuniary penalty; the
land-book is still so purely an ecclesiastical affair that the
punishment of its violator must be left to the church and to God. So
instead of stipulating that he shall pay money, we stipulate that he
shall be excommunicated and, if impenitent, damned, but we do not forget
to add that none the less the conveyance shall remain as valid and
effectual as ever. 'If anyone,' says Eadric of Kent, 'shall attempt to
go against this gift, let him be separated from all Christianity and the
body and blood of Jesus Christ, _manentem hanc donationis chartulam[869]
in sua nihilominus firmitate_.' Such words may look somewhat out of
place in their new surroundings; but they are part of a venerable
formula.[870]

[The book purports to confer ownership.]

But what is the model to which in the last resort these documents go
back? A conveyance by a Roman landowner. He has in the land full and
absolute _dominium_ and is going to transfer this to another. Let us
observe that the recorded motive which prompts a king to set his cross,
or rather Christ's cross, to a land-book is a purely personal motive. He
wishes to save his soul, he desires pardon for his crimes[871]. Of the
welfare of his realm he says nothing; but his soul must be saved.
Sometimes he will give land to an under-king or to an ealdorman, for
they also have souls and may desire salvation[872]. He is acting as a
private landowner might act. Then he uses terms and phrases which belong
to the realm of pure private law. He asserts in the most energetic of
all the words that the law of the lower empire could provide that he
is a landowner and that he is going to transfer landownership. The
land in question is _tellus mea_[873] or it is _terra iuris mei_[874].
Then it is the very land itself that he gives, the land of so many
manses, 'with all the appurtenances, fields, pastures, woods, marshes.'
It is no mere right over the land that he gives, but the very soil
itself. Next let us observe the terms in which the act of conveyance is
stated:--_perpetualiter trado et de meo iure in tuo transscribo terram
... ut tam tu quam posteri tui teneatis, possideatis et quaecunque
volueris de eadem terra facere liberam habeatis potestatem_[875]. The
Latin language of the time had no terms more potent or precise than
these. Or again: _aliquantulam agri partem ... Waldhario episcopo in
dominio donare decrevimus_[876]. Or again: _aeternaliter et
perseverabiliter possideat abendi vel dandi cuicumque eligere
voluerit_[877]. But it is needless to multiply examples.

[Does the book really confer ownership?]

No doubt then, if we bring to the interpretation of these instruments
the ideas of an earlier or of a later time, the ideas of ancient Rome or
of modern Europe, we see the king as a landowner conferring on the
churches landownership pure and simple. The fact on which our
constitutional historians have laid stress, namely, that sometimes (for
we must not overstate the case) the king says that the bishops and his
great men are consenting to his deed, important though it may be in
other contexts, is of little moment here. The king is put before us as
the owner of the land conveyed; it is, he says, _terra mea, terra iuris
mei_. The rule, if rule it be, that he must not give away his land
without the consent of bishops and nobles in no way denies his
ownership. However, we are at the moment more concerned with the fact,
or seeming fact, that what he gives to the churches is ownership and
nothing less.

[The book really conveys a superiority.]

But if we loyally accept this seeming fact and think it over, to what
conclusions shall we not be brought, when we remember how wide were the
lands which the churches acquired from the kings, when we think once
more how by virtue of royal gifts the church of Worcester acquired a
quarter of a county? When these lands were given to the church were they
waste lands? It is plain that this was not the common case. Already
there were manses, there were arable fields, there were meadows, there
were tillers of the soil. One of two conclusions seems to follow. Either
the king really did own these large districts, and the tillers of the
soil were merely his slaves or _coloni_, who were conveyed along with
the soil, or else the clear and emphatic language of the charters sadly
needs explanation. Now if we hold by the letter of the charters, if we
say that the king really does confer landownership upon the churches,
there will be small room left for any landowners in England save the
kings, the churches and perhaps a few great nobles. This is a theory
which for many reasons we can not adopt; no one can adopt it who is not
prepared to believe that Britain was conquered by a handful of
chieftains without followers. The only alternative course seems that of
saying that many of the land-books even of the earliest period, despite
their language, convey not the ownership of land, but (the term must be
allowed us) a 'superiority' over land and over free men.

[A modern analogy.]

Let us for a moment remember that the wording of a modern English
conveyance might easily delude a layman or a foreigner. An impecunious
earl, we will say, sells his ancient family estate. We look at the deed
whereby this sale is perfected. The Earl of _A._ grants unto _B. C._ and
his heirs all the land delineated on a certain map and described in a
certain schedule. That in substance is all that the deed tells us. We
look at the map; we see a tract of many thousand acres, which, besides a
grand mansion, has farm-houses, cottages, perhaps, entire villages upon
it. The schedule tells us the names of the fields and of the
farm-houses. Like enough no word will hint that any one lives in the
houses and cottages, or that any one, save the seller, has any right of
any kind in any part of this wide territory. But what is the truth?
Perhaps a hundred different men, farmers and cottagers, have rights of
different kinds in various portions of the tract. Some have leases, some
have 'agreements for leases,' some hold for terms of years, some hold
from year to year, some hold at will. The rights of these tenants
stand, as it were, between the purchaser and the land that he has
bought. He has bought the benefit, and the burden also, of a large mass
of contracts. But of these things his conveyance says nothing[878]. And
so again, in the brief charters of the thirteenth century a feoffor will
say no more than that he has given _manerium meum de Westona_, as though
the manor of Weston were some simple physical object like a black horse,
and yet under analysis this _manerium_ turns out to be a complex tangle
of rights in which many men, free and villein, are concerned.

[Conveyance of superiority in early times.]

But it will be said that all this is the result of 'feudalism.' It
implies just that dismemberment of the _dominium_ which is one of
feudalism's main characteristics. Undoubtedly in the twelfth century the
free tenant in fee simple who holds land 'in demesne' can have, must
have, a lord above him, who also holds and is seised of that land and
who will speak of the land as his. But we are now in the age before
feudalism, in the seventh and eighth centuries. Are we to believe that
the free owner of Kemble's 'ethel, hid, or alod' might have above him,
perhaps always had above him, not merely a lord (for a personal relation
of patronage between lord and man is not to the point), but a landlord:
one who would speak of that 'ethel, hid or alod' as _terra iuris mei_:
one who to save his soul would give that land to a church and tell the
bishop or abbot to do whatever he pleased with it? If we believe this,
shall we not be believing that so far as English history can be carried
there is no age before 'feudalism'?

[Illustrations.]

We will glance for a moment at two transactions which took place near
the end of the seventh century. Bede tells how Æthelwealh king of the
South Saxons was persuaded to become a Christian by Wulfhere king of the
Mercians. The Mercian received the South Saxon as his godson and by way
of christening-gift gave him two provinces, namely the Isle of Wight and
the territory of the Meanwari in Wessex, perhaps the hundreds of Meon in
Hampshire[879]. Then the same Bede tells us that the same Æthelwealh
gave to Bishop Wilfrid a land of eighty-seven families, to wit, the
promontory of Selsey: he gave it with its fields and its men, among whom
were two hundred and fifty male and female slaves[880]. A modern reader
will perhaps see here two very different transactions. In the one case
he sees 'the cession of a province' by one king to another, and possibly
he thinks how Queen Victoria ceded Heligoland to her imperial
grandson:--the act is an act of public law, a transfer of sovereignty.
In the other case he sees a private act, the gift of an estate for pious
uses. But Bede and his translator saw little, if any, difference between
the two gifts: in each case Bede says 'donavit'; the translator in the
one case says 'forgeaf,' in the other 'geaf and sealde.' Now it will
hardly be supposed that the Isle of Wight had no inhabitants who were
not the slaves or the _coloni_ of the king, and, that being so, we are
not bound to suppose that there were no free landowners in the
promontory of Selsey. May it not be that what Æthelwealh had to give and
gave to Wilfrid was what in our eyes would be far rather political power
than private property?

[What had the king to give?]

But over the free land of free landowners what rights had the king which
he could cede to another king or to a prelate, saying withal that the
subject of his gift was land? He had, as we think, rights of two kinds
that were thus alienable; we may call them fiscal rights and justiciary
rights, though such terms must be somewhat too precise when applied to
the vague thought of the seventh and eighth centuries. Of justiciary
rights we shall speak below. As to the rights that we call fiscal, we
find that the king is entitled to something that he calls _tributum_,
_vectigal_, to something that he calls _pastus_, _victus_, the king's
_feorm_; also there is military service to be done, and the king, when
making a gift, may have a word to say about this.

[The king's alienable rights.]

Now it must at once be confessed that the charters of this early period
seldom suggest any such confusion between political power and ownership
as that which we postulate. Still from time to time hints are given to
us that should not be ignored. Thus a Kentish king shortly after the
middle of the eighth century gave to the church of Rochester twenty
ploughlands, not only 'with the fields, woods, meadows, pastures,
marshes and waters thereto pertaining,' but also 'with the _tributum_
which was paid thence to the king[881].' Such a phrase would hardly be
appropriate if the king were giving land of which he was the absolute
owner, land cultivated for him by his slaves.

[Military service as a burden on land.]

A little more light is thrown on the matter by the first rude specimens
of a clause that is to become common in after times, the clause of
immunity. Already in the seventh century Wulfhere of Mercia, having made
a gift of five manses, adds: 'Let this land remain free to all who have
it, from all earthly hardships, known or unknown, except fastness and
bridge and the common host[882].' So in 732 a king of Kent says: 'And no
royal due shall be found in it henceforth, saving such as is common to
all church lands in this Kent[883].' Æthelbald of Mercia says: 'By my
royal power I decree that it be free for ever from all tribute of
secular payments, labours and burdens, so that the said land may render
service to none but Almighty God and the church[884].' Yet more
instructive, if we may rely upon it, is the foundation charter of
Evesham Abbey. Æthelweard has given twelve manses: he then says, 'I
decree that for the future this land be free from all public tribute,
purveyance, royal works, military service (_ab omni publico vectigali, a
victu, ab expeditione, ab opere regio_) so that all things in that place
which are valuable and useful may serve the church of St. Mary, that is
to say, the brethren serving [God] there; save this, that if in the
island belonging to the said land there shall chance to be an unusual
supply of mast, the king may have pasture for fattening one herd of
pigs, but beyond this no pasture shall be set out for any prince or
potentate[885].' Now in the first place, these charters speak as though
military service is due from land:--I (says the king) declare this land
to be free from the 'fyrd,' from the _expeditio_--or--I declare that it
is free from all earthly burdens, except military service and the duty
of repairing bridge and burh. We are not saying that there is already
military tenure, but we do say that already the 'fyrd' is conceived as a
burden on land, in so much that the phrase 'This land is--or is not--to
be free of military service' has a meaning. But after all, land never
fights: men fight. Of what men then is the king speaking when he says
that the land is, or is not, free from the _expeditio_? Not of the
donees themselves, for they are bishops and monks and serve in no army
but God's. Not of the slaves who are on the land, for they are not
'fyrd-worthy.' He is speaking of free men who live on the land; he is
declaring that when he has, if so modern a term be suffered, 'attorned'
them to the church, they will still have to serve in warfare, or he is
declaring that they will be free even from this duty to the state in
order that the land may be the more absolutely at the service of God and
His stewards.

[The king's _feorm_.]

Then military service, along with the duty of repairing bridges and
fastnesses, belongs to a genus of dues, of which unfortunately we get
but a vague description. There are _vectigalia publica_, _opera regia_,
_onera saecularia_, there is _tributum_, there is _victus_. How much of
the information that we get about these matters from later days we may
carry back with us to the earliest period it is difficult to say.
Apparently the king, the under-king, even the ealdorman, has a certain
right of living at the expense of his subjects, of making a progress
through the villages and quartering himself, his courtiers, his
huntsmen, his dogs and horses upon the folk of the townships, of
exacting a 'one night's farm' from this village, a 'two nights' farm'
from that. The men who have to bear these exactions may well be free men
and free landowners; still over them the king has certain rights and
rights that he can give away. According to our interpretation of the
charters, it is often enough such rights as these that the king is
giving when he says that he is giving _terram iuris mei_. He declares,
it will be observed, that the land is to be free from _vectigalia_ and
_opera_ to which it has heretofore been subject. But does he mean by
this to benefit the occupiers of the soil? No, he has no care whatever
to relieve them. Bent on saving his soul, his care is that the land
shall be wholly devoted to the service of God. As we understand the
matter, whatever _vectigalia_ and _opera_ the king has hitherto exacted
from these men the church will now exact. The king has conveyed what he
had to convey, a superiority over free landowners.

[Nature of the _feorm_.]

It is permissible to doubt whether modern historians have fully realized
the extent of the rights which the king had over the land of free
landowners. In the middle of Ine's laws, which follow each other in no
rational order, we suddenly come upon an isolated text, which says this:
'For 10 hides "to foster" 10 vessels of honey, 300 loaves, 12 ambers of
Welsh ale, 30 of clear [ale], 2 old [i.e. full grown] oxen or 10
wethers, 10 geese, 20 hens, 10 cheeses, an amber full of butter, 5
salmon, 20 poundsweight of fodder and a hundred eels[886].' The context
throws no light upon the sentence; but in truth no sentence in Ine's
laws has a context. What is its meaning? We can not but think that this
_foster_ is the king's _victus_[887]. Once a year from every ten hides
he is entitled to this _feorm_. Perhaps it is a 'one night's _feorm_';
for it may be enough to support a king of the seventh century and a
modest retinue during twenty-four hours. Still it will be no trifling
burden upon the land, even if we suppose the hide to have 120 arable
acres or thereabouts. Suppose that the king transfers his right over a
single hide to some bishop or abbot, the donee will be entitled to
receive from that hide a rent which can not be called insignificant. We
dare not argue that this law is a general law for the whole of Wessex.
It may refer only to some newly settled and allotted districts. There
are other hints in these laws of Ine of some large land-settlement, an
allotment of land among great men who have become bound to bring under
cultivation a district theretofore waste[888]. But it is difficult to
dissociate the _foster_ of these laws from the _victus_ of the charters,
and, quite apart from this disputable passage, we have plenty of proof
that the king's _victus_ was an incumbrance which pressed heavily upon
the lands of free landowners[889]. If in England the duty of feeding the
king as he journeys through the country developed into a regular tax or
rent this would not stand alone. That duty plays a considerable part in
the Scandinavian law-books, and in the Denmark of the thirteenth century
we may find arrangements which are very like that set forth in Ine's
law. Every hundred (_herad_), taken as a whole, has to contribute
something towards the king's support. Often it is a round sum of money;
but often it will consist of provisions necessary to maintain the king's
household during a night or two or three nights (_servicium unius
noctis, servicium duarum noctium_). Then the 'service of two nights' is
accurately defined. It consists of, among other things, 26 salted pigs,
14 live pigs, 16 salted oxen, 16 salted sheep, 360 fowls, 180 geese, 360
cheeses, corn, malt, fodder, butter, herrings, stock-fish, pepper and
salt. This revenue stands apart from the revenue derived from the crown
lands; it is regarded as a tax rather than a rent; but it is to this
extent rooted in the soil, that the amount due from each hundred
(_herad_) is fixed[890]. There is a great deal to make us think that at
a quite early time in England such arrangements as this had been made.
If we look at the charters we find that the king is always giving away
manses in fives and tens, fifteens and twenties. This symmetry, this
prevalence of a decimal system, we take to be artificial; already the
manse, or hide, is a fiscal unit, a fraction of a district which has to
supply the king with food or with money in lieu of food[891].

[Tribute and rent.]

Whatever be the origin of the king's _feorm_--and if we find it in the
voluntary gifts which yet barbarous Germans make to their kings, we may
none the less have to admit that it has been touched by the influence of
the Roman _tributum_--it becomes either a rent or a tax. We may call it
the one, or we may call it the other, for so long as the recipient of it
is the king, the law of the seventh and eighth centuries will hardly be
able to tell which it is[892]. The king begins to give it away: in the
hands of his donees, in the hands of the churches, it becomes a rent.
This is not all, however, that the king has to give, or that the king
does give, when he says that he is giving land. That he may be giving
away the profits of justice, that he may be giving jurisdiction itself,
we shall argue hereafter. But probably he has even in early days yet
other things to give, and at any rate in course of time he discovers
that such is the case. He can give the right to take toll, he can give
market rights[893]. It is by no means impossible that he has forest
rights, some general claim to place uncultivated land under his ban, if
he would hunt therein, and some general claim to the nobler kinds of
fish[894]. Then again, in the eleventh century we find men owing
services to the king which he still receives rather as king than
as landlord, and the sporadic distribution of these services seems
to show that they are not of modern origin. Such are, for example,
the 'inwards' and the 'averages' which are done by the free men of
Cambridgeshire[895]. We are told in a general way that the thegn owes
fyrdfare, burh-bót and brycg-bót, but that from many lands--the lands
comprised within no privilege, no franchise--'a greater land-right
arises at the king's ban'; for there is the king's deer-hedge to be
made, there are warships to be provided, there are sea-ward and
head-ward[896]. Every increase in the needs of the state, in the power
of the state, gives the king new rights in the land, consolidates his
seignory over the land. If a fleet be formed to resist the Danes, the
king has something to dispose of, a new immunity for sale. If a geld be
levied to buy off the Danes, the king can sell a freedom from this tax,
or he can tell the monks of St. Edmundsbury that they may levy the tax
from their men and keep it for their own use[897]. This, we argue, is
not a new abuse, a phenomenon which first appears in the evil feudal
time when men began to confuse _imperium_ with _dominium_, kingship with
landlordship, office with property, tax with rent. On the contrary, we
must begin with confusion. In some of the very earliest land-books that
have come down to us what the king really gives, when he says that he is
giving land, is far rather his kingly superiority over land and
landowners than anything that we dare call ownership[898].

[Mixture of ownership and superiority.]

Not that this is always the case. Very possible is it that from the
first the king had villages which were peopled mainly by his theows and
læts, and intertribal warfare may have increased their number. But the
charters, for all their apparent precision, will not enable us to
distinguish between these cases and others in which the villages are
full of free landowners and their slaves. The charters are not
engendered by the English facts; they are foreign, ecclesiastical,
Roman. By such documents, to our thinking, the king gives what he has to
give. In one case it may be a full ownership of a village or of some
scattered steads; in another it may be a superiority, which when
analyzed will turn out to be a right of exacting supplies of provender
from the men of the village; in a third, and perhaps a common case, the
same village will contain the _mansi serviles_ of the king's slaves and
the _mansi ingenuiles_ of free landowners. He no more thinks of
distinguishing by the words of his charter his governmental power over
free men and their land from his ownership of his slaves and the land
that they are tilling, than his successor of the eleventh or twelfth
century will think of making similar distinctions when he bestows a
'manor' or an 'honour.'

[The king's superiority.]

We have been suggesting and shall continue to suggest that at a very
early time, a time beyond which our land-books will not carry us, the
king is beginning to discover that the whole land which he rules is in a
certain and a profitable sense his land. He can give it away; he can
barter it in exchange for spiritual benefits, and this he can do without
wronging the free landholders who are in possession of that land, for
what he really gives is the dues (it is too early to say the 'service')
that they have owed to him and will henceforth owe to his donee. Let us
remember that his successors will undoubtedly be able to do this. In a
certain sense, Henry II., for example, will have all England to give
away. If we were to put an extreme case, we might have to reckon with
possible rebellions; but every single hide of England Henry can give
without wronging any one. Suppose that _C_ has been holding a tract as
the king's tenant in chief by service worth £5 a year, Henry can make a
grant of that land to _B_, and by this grant _C_ will not be wronged.
Henceforth _C_ will hold of _B_, and _B_ of the king. Suppose that, on
the occasion of this grant, services worth £2 a year are reserved, then
the king has it in his power to grant the land yet once more: to grant
it, let us say, to the Abbot of _A_, who is to hold in frankalmoin; _C_
will not be wronged, _B_ will not be wronged. What the king has done
with one hide he can do with every hide in England; piece by piece he
can give all England away. We have been suggesting and shall continue to
suggest that at a very early time, even in the first days of English
Christianity, the king is beginning to discover that he has some such
power as that which his successors will exercise. This barbarous
chieftain learns that his political sway over the folk involves a
proprietary and alienable element of which he can make profit. It
involves a right to _feorm_ and a right to _wites_. The beef and the
cheese and the Welsh ale that he might have levied from a district he
invests, if we may so speak, in what he is being taught to regard as the
safest and most profitable of all securities. He obtains not only
remission of his sins, but also the friendship and aid of bishops and
clergy. And so large stretches of land are 'booked' to the churches. It
is to be feared that if the England of the sixth century had been
visited by modern Englishmen, the Saxon chieftains would have been
awakened to a consciousness of their 'booking' powers by offers of gin
and rifles.

[Book-land and church right.]

In its original form and when put to its original purpose the land-book
is no mere deed of gift; it is a dedication. Under the sanction of a
solemn anathema, a tract of land is devoted to the service of God. A
very full power of disposing of it is given to the bishop or the abbot,
who is God's servant. As yet the law has none of those subtle ideas
which in after ages will enable it to treat him as 'a corporation sole'
or as 'a trustee,' nor can the folk-law meddle much with the affairs of
God. The bishop or abbot must be able to leave the land to whom he
pleases, to institute an heir. Thus 'book-land' stands, as it were,
outside the realm of the folk-law. In all probability the folk-law of
this early period knows no such thing as testamentary power.
Testamentary power can only be created by the words of a book, by an
anathema. But laymen are not slow to see that they can make use of this
new institution for purposes of their own, which are not always very
pious purposes. By a pretext that he is going to construct a minster, a
man will obtain a book garnished with the crosses of bishops. One day
calling himself an abbot and the next day calling himself a king's
thegn, a layman among ecclesiastics, an ecclesiastic among laymen, he
will shirk all duties that are owed to state and church. Already Bede
complains of this in a wise and famous letter. He advocates a resumption
of these inconsiderate and misplaced gifts, and reproves the prelates
for subscribing the books[899]. His letter may have done good; but
laymen still obtained books which authorized them to hold land 'by
church right.' Thus Offa of Mercia gave to an under-king lands at
Sedgebarrow 'in such wise that he might have them during his life, and
in exercise of full power might leave them to be possessed by church
right[900].' Thereupon the _subregulus_, as a modern English lawyer
might say, executed this power of appointment in favour of the church of
Worcester. The same Offa gave land to his thegn Dudda so that by church
right he might enjoy it during his life and leave it on his death to
whom he would[901].

[Book-land and testament.]

We must wait for a later age before we shall find the kings freely
booking lands to their thegns without any allusion to ecclesiastical
purposes. Indeed it may be said that the Anglo-Saxon land-book never
ceases to be an ecclesiastical instrument. True that in the tenth
century the kings are booking lands to their thegns with great
liberality; true also that there is no longer any pretence that the land
so booked will go to endow a church; but let us observe these books and
let us not ignore the recitals that they contain. Why does the king make
these grants? He says that it is because he hopes for an eternal reward
in the everlasting mansions. This has perhaps become an empty phrase:
but it has a history. Also it is needed in order to make the deed a
logical whole. Let us observe the sequence of the clauses:--'Whereas the
fashion of this world passeth away but the joys of heaven are eternal;
therefore I give land to my thegn so that he may enjoy it during his
life and leave it on his death to whomsoever he pleases, and if any one
shall come against this charter may he perish for ever; I have confirmed
this gift with the sign of Christ's holy cross[902].' Some piety in the
harangue (_arenga_) is necessary in order to lead up to the anathema and
the cross; it justifies the intervention of the bishops, who also will
make crosses and thereby will be denouncing the church's ban against any
one who violates the charter. And who, we may ask, is likely to violate
the charter? The donee's kinsfolk may be tempted to do this if the donee
makes use of that testamentary power which has been granted to him (as,
for instance, by leaving the land to a church) more especially because
it may be very doubtful whether in impeaching such a testament they will
not have the folk-law on their side. Such in brief outline is--so we
think--the history of book-land. It is land (or rather in many cases a
superiority) held by royal privilege[903] under the sanction of the
anathema.

FOOTNOTES:

  [858] Heming's Cartulary was published by Hearne. It has been said
        that some of the documents in this collection which Kemble
        accepted as genuine commit the fault of supposing that the
        old episcopal minster was dedicated to St. Mary, whereas it
        was dedicated to St. Peter. See Robertson, Historical Essays,
        195. However, where Heming's work can be tested it generally
        gains credit.

  [859] D. B. i. 173 b; K. 131 (i. 158); B. i. 311.

  [860] D. B. i. 127; K. 230 (i. 297); B. i. 558.

  [861] Hist. Eccl. iv. 13 (ed. Plummer, i. 232).

  [862] See the spurious charter of Cædwalla, K. 992 (v. 32) which
        purports to show where the 87 manses lay. According to it, the
        gift comprised some places which lay well outside the
        promontory of Selsey. But more of this hereafter.

  [863] Napier and Stevenson, Crawford Charters, p. 43. Some of the
        best work that has been done towards connecting Domesday Book
        with the A.-S. land-books will be found in a paper on the
        Pre-Domesday Hide of Gloucestershire: Transactions of Bristol
        and Gloucestershire Arch. Soc. vol. xviii., by Mr C. S.
        Taylor.

  [864] K. 12 (i. 16); B. i. 69; H. & S. 129; Plummer, Bede, ii. 247.
        The charter itself is open to grave suspicion.

  [865] C. S. Taylor, The Pre-Domesday Hide of Gloucestershire.

  [866] E. p. 4; B. M. Facsim. iv. 1.

  [867] K. 83 (i. 100): 'in possessionem aecclesiasticae rationis et
        regulae ... in ius monasticae rationis.' K. 90 (i. 108): 'in
        possessionem iuris ecclesiastici.' K. 101 (i. 122): 'ut sit
        aecclesiastici iuris potestate subdita in perpetuum.'

  [868] K. 54 (i. 60) is a gift to an abbess, for compare K. 36 (i.
        41). We here leave out of account the early lease for lives
        granted by Bp. Wilfrid, K. 91 (i. 109), an important document,
        but one which must be mentioned in another context.

  [869] An accusative absolute.

  [870] Eadric's deed is K. 27 (i. 30). See also Hlothar's charter K.
        16 (i. 20) and Snaebraed's, K. 52 (i. 59); B.M. Facs. i.
        plates 1, 3. With these should be compared the forms in
        Rozière, Formules, i. 208-255. On pp. 235, 253 will be found
        instances, one from the very ancient Angevin collection,
        another from Marculf, in which the breaker of the charter is
        threatened, not only with a money penalty, but also with
        excommunication and damnation.

  [871] K. Nos. 12, 16, 32, 36, 48, 52, 56, 67, etc.

  [872] K. 131 (i. 158).

  [873] K. 1.

  [874] K. Nos. 27, 35, 77, 79, 999, 1006, 1007.

  [875] K. 35 (i. 39); E. 13; B. M. Facs. i. 2.

  [876] K. 52 (i. 59); E. 16; B. M. Facs. i. 3.

  [877] E. 4; B. M. Facs. iv. 1.

  [878] Davidson, Precedents in Conveyancing, i. 88 (ed. 1874): 'In
        conveying estates, it is not usual to refer to the leases
        affecting the same, unless the leases are for a long term, of
        years, or beneficial, or otherwise not of the ordinary type.'

  [879] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 230). In the O. E.
        version the words are: 'Ond se cyning ... him to godsuna
        onfeng and to tacne ðære sibbe him twa mægþe forgeaf, ðæt is
        Wiht ealond and Meanwara mægþe on West Seaxna ðeode.'

  [880] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 232).

  [881] K. 114 (i. 139); E. 49: 'et cum omni tributo quod regibus inde
        dabatur.' So by a deed of A.D. 762, K. 109 (i. 133), B. i.
        272, a thegn states that king Æthelbert gave him a _villa_
        'cum tributo illius possidendam' and then proceeds to give
        this _villa_ to a church 'cum tributo illius.'

  [882] E. 4; B. M. Facs. iv. 1: 'et semper liber permaneat omnibus
        habentibus ab omnibus duris secularibus, notis et ignotis,
        praeter arcem et pontem ac vulgare militiam.'

  [883] K. 77 (i. 92); E. 24; B. M. Facs. i. 6: 'Et ius regium in ea
        deinceps nullum repperiatur omnino, excepto dumtaxat tale
        quale generale est in universis ecclesiasticis terris quae in
        hac Cantia esse noscuntur.'

  [884] K. 90 (i. 108); E. 40: 'Et ut ab omni tributo vectigalium
        operum onerumque saecularium sit libera in perpetuum, pro
        mercede aeternae retributionis, regali potestate decernens
        statuo; tantum ut deo omnipotenti ex eodem agello
        aecclesiasticae servitutis famulatum impendat.'

  [885] K. 56 (i. 64); H. & S. iii. 278; B. i. 171. The charter is of
        fairly good repute, but nothing that comes from Evesham is
        beyond suspicion. It is almost impossible to translate these
        early books without making their language too definite. How,
        for instance shall we render 'nulli, neque principi, neque
        praefecto, neque tiranno alicui pascui constituantur'?

  [886] Ine, 70, § 1.

  [887] Thorpe, Gloss, s. v. _Foster_, thinks that this law has to do
        with the fostering of a child. Schmid is inclined to hold that
        it speaks of a rent payable to a landlord.

  [888] Ine, 64-6: 'He who has 20 hides must show 12 hides of
        cultivated land if he wishes to go away. He who has 10 hides
        shall show 6 hides of cultivated land. He who has 3 hides let
        him show one and a half.' The persons with whom these laws
        deal are certainly not _ascripti glebae_; they are very great
        men. Then we must read c. 63: 'If a gesithcundman go away,
        then may he have his reeve with him and his smith and his
        child's fosterer'; and then c. 68: 'If a gesithcundman be
        driven off, let him be driven from the dwelling (botle), not
        from the set land (naes þaere setene).' The king's gesiths
        have been taking up large grants of waste land and putting
        under-tenants on the soil. These great folk must not fling up
        their holdings until they have brought the land into
        cultivation. If they do abandon their land, they may take away
        with them only three of their dependants. If they are evicted
        by some adverse claimant this is not to harm their
        under-tenants; they are to be driven from the _botl_, that is
        from the chief house, but not from the land that they have set
        out to husbandmen. These last are to enjoy a secure title. We
        must leave to linguists the question whether we have rightly
        understood the difficult _seten_; but these chapters, together
        with c. 67, which deals with the relations between these lords
        and their husbandmen, seem to point to some great scheme for
        colonizing a newly-conquered district.

  [889] Kemble, Saxons, i. 294-8; ii. 58.

  [890] Karl Lehmann, Abhandlungen zur Germanischen Rechtsgeschichte,
        1888; Liber Census Daniae, ed. O. Nielsen, 1879.

  [891] Cnut's law (II. 62) about this matter seems to imply that in
        consequence of the immunities lavishly bestowed by his
        predecessors, the old 'king's _feorm_' was only leviable from
        lands which were deemed to be the king's lands, but that
        Cnut's reeves had been demanding that this _feorm_ should be
        supplemented by other lands. The king of his grace forbids
        them to do this. The old _feorm_ has been changed into a rent
        of crown lands; a vague claim to 'purveyance' is abolished,
        but will appear again after the Conquest.

  [892] In the A.-S. Chron. ann. 991, 1007, 1011, the Danegeld appears
        as a _gafol_; but this is the common word for a rent paid by a
        tenant to his landlord.

  [893] Kemble, Saxons ii. 73-6.

  [894] Already in 749 Æthelbald of Mercia in a general privilege for
        the churches (H. & S. iii. 386) says, 'Sed nec hoc
        praetermittendum est, cum necessarium constat aecclesiis Dei,
        quia Æthelbaldus Rex, pro expiatione delictorum suorum et
        retributione mercedis aeternae, famulis Dei propriam
        libertatem in fructibus silvarum agrorumque, sive in caeteris
        utilitatibus fluminum vel raptura piscium, habere donavit.'

  [895] See above, p. 55.

  [896] Rectitudines c. 1 (Schmid, App. III.).

  [897] See above, p. 169.

  [898] Schröder, Die Franken und ihr Recht, Zeitsch. d. Savigny
        Stiftung, iii. 62-82, has argued that, from the first times of
        the Frankish settlement onwards, the king has a _Bodenregal_,
        an _Obereigenthum_ over all land.

  [899] Epistola ad Ecgbertum (ed. Plummer, i. 405).

  [900] K. 131 (i. 158).

  [901] K. 137 (i. 164); B. M. Facs. i. 10. A few words are illegible,
        but the land is given 'in ius ecclesiasticae liberalitatis in
        perpetuum possid[endam].'

  [902] Æthelwulf makes a grant to a thegn, K. 269 (ii. 48), 'pro
        expiatione piaculorum meorum et absolutione criminum meorum.'
        In course of time the piety of the recitals becomes more and
        more perfunctory. It becomes a philosophic reflection on the
        transitoriness of earthly affairs and finally evaporates,
        leaving behind some commonplace about the superiority of
        written over unwritten testimony.

  [903] Bede (ed. Plummer, i. 415): 'ipsas quoque litteras
        privilegiorum suorum.'



§ 2. _Book-land and Folk-land._


[What is folk-land?]

With 'book-land' is contrasted 'folk-land.' Therefore of folk-land a few
words must be said. What is folk-land? A few years ago the answer that
historians gave to this question was this: It is the land of the folk,
the land belonging to the folk. Dr Vinogradoff has argued that this is
not the right answer[904]. His argument has convinced us; but, as it is
still new, we will take leave to repeat it with some few additions of
our own.

[Folk-land in the texts.]

The term 'folk-land' occurs but thrice in our texts. It occurs in one
law and in two charters. The one law comes from Edward the Elder[905]
and all that it tells us is that folk-land is the great contrast to
book-land. Folk-land and book-land seem to cover the whole field of land
tenure. Possibly this law tells us also that while a dispute about
folk-land will, a dispute about book-land will not, come before the
shiremoot:--but we hardly obtain even this information[906]. Then we
have the two charters. Of these the earlier is a deed of Æthelbert of
Kent dated in 858[907]. The king with the consent of his great men and
of the prelates gives to his thegn Wulflaf five plough-lands at
Washingwell (_aliquam partem terrae iuris mei_) in exchange for land at
Marsham. He declares that the land at Washingwell is to be free from
all burdens save the three usually excepted, the land at Marsham having
enjoyed a similar immunity. The boundaries of Washingwell are then
stated. On the west it is bounded by the king's folk-land (_cyninges
folcland_) which Wighelm and Wulflaf have. So much for the deed itself.
On its back there is an endorsement to the following effect: 'This is
the land-book for Washingwell that Æthelbert the king granted to Wulflaf
his thegn in exchange for an equal amount of other land at Marsham; the
king granted and booked to Wulflaf five sullungs of land at Washingwell
for the five sullungs at Marsham and the king made that land at Marsham
his folk-land ("did it him to folk-land") when they had exchanged the
lands, save the marshes and the salterns at Faversham and the woods that
belong to the salterns.' Now this deed teaches us that there was land
which was known as 'the king's folk-land,' and that it was in the
occupation of two men called Wighelm and Wulflaf, the latter of whom may
well have been the Wulflaf who made an exchange with the king. The
endorsement tells us that when the king received the land at Marsham he
made it his folk-land, 'he did it him to folk-land.'

[The will of Alfred the Ealdorman.]

The other charter is of greater value. It is the will of the Ealdorman
Alfred and comes from some year late in the ninth century[908]. He
desires in the first place to state who are the persons to whom he gives
his inheritance and his book-land. He then gives somewhat more than 100
hides, including 6 at Lingfield and 10 at Horsley, to his wife for her
life, 'with remainder,' as we should say, to their daughter. More than
once he calls this daughter 'our common bairn,' thus drawing attention
to the fact that she is not merely his daughter, but also his wife's
daughter. This is of importance, for in a later clause we hear of a son.
'I give to my son Æthelwald three hides of book-land: two hides on
Hwætedune [Waddon], and one at Gatatune [Gatton] and therewith 100
swine, and, if the king will grant him the folk-land with the book-land,
then let him have and enjoy it: but if this may not be, then let her [my
wife] grant to him whichever she will, either the land at Horsley or the
land at Lingfield.' Such are the materials which must provide us with
our knowledge of folk-land.

[Comment on Alfred's will.]

We must examine Alfred's will somewhat carefully. The testator has a
wife, a son, a daughter. He leaves the bulk of his book-land to his wife
for life with remainder to his daughter. For his son he makes a small
provision (only three hides) out of his book-land, but he expresses a
wish that the king will let that son have the folk-land, and, if this
wish be not fulfilled, then that son is to have either ten or else six
hides out of the book-land previously given to the wife and daughter. We
see that, even if he gets these few hides, the son will obtain but a
small part of a handsome fortune. 'If the king will grant him the
folk-land'--this may suggest that a man's folk-land will not descend to
his heir. But another, and, as it seems to us, a far more probable
explanation is open. The son is 'my son,' the daughter is 'our common
bairn.' May not the son be illegitimate, or may not his legitimacy be
doubtful, for legitimacy is somewhat a matter of degree? The ealdorman
may have contracted a dubious or a morganatic marriage. We can see that
he does not feel called upon to do very much for this son of his. He
expresses a hope that the king as supreme judge will hold the son to be
legitimate, or sufficiently legitimate to inherit the folk-land, which
he does not endeavour to bequeath.

[The king booking land to himself.]

The king like other persons can have both folk-land, and book-land. We
have just heard of 'the king's folk-land': we turn to the important deed
whereby King Æthelwulf booked land to himself[909]. Alms, it says, are
the most perdurable of possessions; one ought to minister to the
necessities of others and so make to oneself friends of the mammon of
unrighteousness; therefore I King Æthelwulf with the consent and leave
of my bishops and great men have booked to myself twenty manses so that
I may enjoy them and leave them after my death to whomsoever I please in
perpetuity: the land is to be free from all tribute and the like, save
military service and the repair of bridges. Then the description of the
land thus booked is preceded by the statement: 'These are the lands
which his wise men (_senatores_) conceded to Æthelwulf.' Now the full
meaning of this famous instrument we can not yet discuss. To put it
briefly, our explanation will be that over his book-land the king will
have powers which he will not have over his folk-land; in particular he
will have that testamentary power which will enable him to become
friendly with the mammon of unrighteousness and secure those eternal
mansions that he desires. But we have introduced this charter here
because, though it says no word of folk-land, it forms an important part
of the case of those who contend that folk-land is land belonging to the
people[910].

[The consent of the witan.]

Another weighty argument is derived from the fact that there are but
very few charters of the kings which do not in some formula or another
profess that many illustrious persons have consented to or have
witnessed the making of the deed. We have no desire to detract from the
significance of this fact, still we ought to examine our documents with
care. Such words as a charter has about 'consent' may occur in two
different contexts. They may occur in close connexion with the words of
gift, 'the operative words,' as our conveyancers say, or they may occur
in the eschatocol, the clause which deals with the execution and
attestation of the instrument. If we come across two deeds, one of which
tells us how 'I king Æthelwulf with the consent and leave of my bishops
and great men give land to a church or a thegn,' while the other says
nothing of consent until it tells us how 'This charter was written on
such a day _his testibus consentientibus_,' we must not at once treat
them as saying the same thing in two different ways.

[Consent and witness in the land-books.]

For this purpose we may divide our charters into three periods. The
first begins with the few genuine charters of the seventh century and
ends in the reign of Egbert, the second endures until the reign of
Edward the Elder, the third until the Norman Conquest. It will be well
understood that we draw no hard line; each period has its penumbra; but
the years 800 and 900 or 925 may serve to mark very rudely the two
limits of the middle period. Now a clause in the body of the deed
stating that the gift is made by the consent of the witan is
characteristic of this middle period. Any one who wishes to forge a
royal land-book of the ninth century should insert this clause; any one
who wishes to forge a deed of the tenth or of the eighth century should
think twice before he makes use of it. To be more exact, it becomes a
common form under Cenwulf of Mercia and Egbert of Wessex; it grows very
rare under Æthelstan[911]. In the meanwhile it serves as a common form,
and it appears in deeds wherein the king says in forcible terms that he
is disposing of his land and his inheritance[912]. During the last of
our three periods all that is ascribed to the great men whose crosses
follow the king's cross is little, if anything, more than the function
of witnesses. A deed of Æthelstan's day will end with some such formula
as the following: 'this book was written at such a place and time, and
its authority was confirmed by the witnesses whose names are written
below.' But very often there is no such concluding formula: we have
simply the list of witnesses and their crosses, and of each of them it
is said that he consented and subscribed. Later in the tenth century the
formula which introduces the names of the witnesses will hardly admit
that they in any sense confirmed the transaction; it will say merely,
'This book was written on such a day _his testibus consentientibus
quorum nomina inferius caraxantur_.' On this will follow the names and
crosses; and of each bishop--but not as a general rule of any other
witness--it will be said that he has done something for the stability of
the deed. To convey this information, the scribe rings the changes on a
score of Latin words--_subscripsi_, _consensi_, _consolidavi_,
_corroboravi_, _confirmavi_, _conscripsi_, _consignavi_, _adquievi_,
_praepinxi_, _praepunxi_, _praenotavi_, and so forth, thereby showing
that he has no very clear notion as to what it really is that the bishop
does. But this degradation of what seems to be a formula of assent into
a formula of attestation has been noticed by others[913], and it is more
to our purpose to examine the charters of the earliest period, for then,
if at any time, the folk-land should have appeared in its true character
as the land of the people.

[Attestation of the earliest books.]

Now during our earliest period instruments which contain in conjunction
with their operative words any allusion to the consent of the great men
of the realm are exceedingly rare[914]. A commoner case is that in which
the eschatocol says something about consent. We will collect a few
examples.

     I have confirmed this with the sign of the holy cross with the
     counsel of Laurence the bishop and of all my _principes_ and have
     requested them to do the like[915].

     I have impressed the sign of the holy cross and requested fit and
     proper witnesses to subscribe[916].

     I have confirmed this gift with my own hand and have caused fit and
     proper witnesses, my companions (_commites_), to confirm and
     subscribe[917].

This formula, undoubtedly of foreign origin, was common in Kent[918].
From Wessex and the middle of the eighth century, we twice obtain a
fuller form.

     These things were done in such a year; and that my munificent gift
     may be the more firmly established (_firmius roboretur_) we have
     associated with ourselves the fit and proper witnesses and
     'adstipulators' whose names and descriptions are set forth below to
     subscribe and confirm this privilege of the aforesaid estate
     (_praedictae possessionis privilegium_[919]).

More frequently however the document has nothing that can be called a
clause of attestation. It simply gives us the names and the crosses of
the witnesses. Occasionally over against each name, or each of the most
important names, is set some word or phrase describing this witness's
act. He has subscribed, or he has consented, or he has consented and
subscribed, or perhaps he has confirmed[920].

[Confirmation and attestation.]

Now we ought not to draw inferences from these phrases without knowing
that in the Latin of this period such words as _confirmare_,
_corroborare_, _adstipulari_ are the proper words whereby to describe
the act of those who become witnesses to the execution of a deed[921].
Our kings are making use, though it is a lax use, of foreign formulas;
what is more, they are adopting the formulas of private deeds. They have
no chancellor, as the Frankish kings have, and they do not, as the
Frankish kings do, dispense with that _rogatio testium_ which is one of
the usual forms of private law[922]. On the continent of Europe all this
talk about confirmation, corroboration and consent would by no means
imply that the witnesses were more than witnesses. The line which
divides attestation from participation is really somewhat fine, and
though well enough apprehended by modern lawyers, would not easily be
explained to a barbarian ealdorman. A witness does consent to the
execution of the instrument which he attests, though he may be utterly
ignorant of its import, and, if the law demands that such an instrument
shall be attested, then it may well be said of the witness that by
attesting it he makes it firm, he confirms it. Until he attested it, it
was not a valid instrument[923]. Now we are not saying that the
magnates, more especially the bishops, who attested these ancient
charters thought of themselves as mere witnesses. Had that been so, a
clause expressing the consent of the whole body of great men would
hardly have crept into the charters; and it does creep in gradually
during the last half of the eighth century[924]. A similar development
has been noticed in the charters of the German kings. A clause
expressing the consent of the great folk rarely occurs in the
Merovingian or the early Carolingian charters, unless they belong to
certain exceptional classes. It is said to become common under the weak
rule of Lewis the Child; then for a while it becomes rare again, and
then once more common under Henry III and Henry IV, though consent and
witness are hardly to be distinguished[925].

[Function of the witan.]

Perhaps from the first in England the cross of at least one bishop was
much to be desired or was almost indispensable, for the anathema which
the charter pronounces will be a solemn sentence of excommunication when
it comes from a bishop, while it will be at best a pious wish if it
comes from the king; and it is well to have the cross of every bishop,
so that the breaker of the charter may find himself excommunicated in
every diocese. This is not all; we may well believe that from the first
the king was more or less bound to consult with his great men before he
alienated his land. The notion that land could be alienated at all may
not have been very ancient, and the king when giving land away may have
been expected to pay some regard to the welfare of his realm[926]. The
discovery that he had an alienable superiority over free land and free
landowners would sharpen this rule. Some of these early donations are to
our minds more like cessions of political power than gifts of land; they
make over to bishops and abbots rights which the king has exercised
rather as king than as landowner. A wholesome practice grows up which is
embodied in the clause that states the consent of the witan, and, even
when this clause has disappeared, still it is in the presence and with
the witness of his councillors that the king makes his grants. This is
no purely English phenomenon. When a Norman duke hands his charter to be
roborated and confirmed by his _fideles_, we do not infer that he is
disposing of land that is not his[927]. But it is very remarkable that
in the earliest English charters the consent of an overlord is treated
as a far more serious thing than the consent of the nobles[928].

[The king and the people's land.]

Of some value though this 'constitutional check' may have been, we can
not regard it as a relic of a time when there was land which in any
accurate sense of the term was owned by the people. The recorded action
of the witan in relation to the king's grants does not become more
prominent, it becomes less prominent, as we go backwards and reach the
heptarchic days. But that is not all. Is it not marvellous that there
should be land owned by the people and yet that we should have to
discover this momentous fact from a few casual phrases occurring in
three documents of the ninth and tenth centuries? Are we to suppose that
whenever the king is giving away land, this land is the land of the
people? Why do not the charters say so? Repeatedly the king speaks of
the land that he gives as 'my land' (_terram iuris mei_), and this too
in charters which state that the witan give their consent to the grant.
Never by any chance does a scribe slip into any such phrase as _terram
gentis meae, terram gentis Merciorum_ or the like. And how came it about
that from the very earliest time the king could devote the people's land
to the salvation of his own peculiar soul? But, it will be said, no
doubt the king had private estates besides having a power over 'the
unallotted lands of the nation,' and those private estates he could give
away as he pleased. But then, how are we to distinguish between those
charters whereby he disposed of his own and those whereby he disposed of
national lands? The formula which expresses the consent of the wise will
certainly not serve our turn. It leads, as we have seen, to a
distinction between different ages, not to a classification of the
various charters of one and the same king.

[King's land and crown land.]

Some historians have supposed that at the outset there was a clear
distinction between the king's private estates and those national lands
which were becoming the domains of the crown. Now a vague distinction
between what belonged to the king as king and what belonged to him--if
we may use so modern a phrase--in his private capacity, we may admit,
while at the same time we gravely doubt whether the language or the
thought of the eighth or ninth century had any forms in which this
distinction could be precisely expressed. Even within the ecclesiastical
sphere, where traditions of Roman law may have lingered and where dead
saints presented themselves as persons capable of acquiring land, it was
by no means easy to distinguish the bishop's property from his church's
property. We may find a deed whereby some king for the love of God or
the salvation of his soul gives land to a certain bishop, and states in
strong, clear words that the donee is to have the most absolute power of
giving and selling and even, for this sometimes occurs, of bequeathing
the land[929]. We shall probably believe that the king intends that this
land shall go to increase the territory of the church, and yet we dare
not make the bishop either 'a trustee' or 'a corporation sole.'

[Fate of the king's land on his death.]

As to the king, it would be on his death that the necessity of drawing
some distinction between his two capacities would first present itself.
Perhaps a brother of his would be elected to the kingdom and his
children would be passed by. Clearly this brother should have those
lands which have supplied the king with the main part of his revenue,
and yet it would be hard that the dead man's children should be
portionless. However, we may strongly suspect that in the earliest time
cases of this nature were settled as they arose without the
establishment of any general rule, and that even on the eve of the
Norman Conquest no definite classification of the king's estates had
been framed. We dare not expect the rule to be more definite than that
which settled the title to the kingship, and how exceedingly indefinite
the latter was the historians of our constitution have explained.
Hereditary and elective elements were mixed up in the title; we can
define neither the one nor the other. That 'superiority' over all the
land of his kingdom of which we have spoken above, though it might be
alienated piecemeal among the living, would pass from the dead king to
his elected successor. On the other hand, some kings were careful to
have certain lands booked to themselves and to obtain from their nobles
'an express power of testamentary appointment.' But very possibly there
was a wide fringe of disputable matter. King Alfred's will, with all
that he says about what had been done by himself, his father and his
brothers, seems to tell us that a prudent king would obtain the consent
of his councillors to any disposition that he made of land that was in
any sort his. Also it seems to bear witness to a strong feeling that the
reigning king should enjoy at any rate the bulk of the lands that his
predecessor had enjoyed[930].

[The new king and the old king's heir.]

In one of his charters Æthelred the Unready is made to tell a long and
curious story[931]:--'My father, king Edgar, gave certain lands to the
minster at Abingdon. On his death the wise men elected as king my
brother Edward, and put me in possession of the lands which belonged to
the king's sons. Among these were the lands given to Abingdon; they were
forcibly taken from the monks. Whether this was lawful or unlawful those
wise men know best. Then my brother Edward died and I became possessed,
not only of the lands which belonged to the king's sons, but also of the
royal lands. I do not wish to incur my father's curse, and therefore I
intend to substitute for his gift a compensation out of my own proper
inheritance. The land that I am now going to dispose of I acquired by
gift from certain persons whose names I state.'--We seem to see here
three kinds of land, the _regales terrae_ which pass from king to king,
the lands 'entailed,' if we may use that term, on the king's family
(_regii pueri_), and lands which come to a king by way of gift or the
like and constitute his _propria hereditas_. But the wise men seem to
have violated three solemn books which they themselves or their
predecessors had attested, and we can but say with king Æthelred '_quam
rem si iuste aut iniuste fecerint ipsi sciant_[932].' There can be but
little law about such matters so long as the title to the kingship is
indefinable[933].

[Ancient demesne and its immunity.]

This distinction between the lands which would pass from king to king
and the lands which would pass from the king to his heirs or to his
devisees may have been complicated with another distinction. Domesday
Book tells us that some, but by no means all, of the lands held by the
Confessor were and had always been free of geld, and this freedom from
taxation may imply other immunities. It is possible that, as in later
times, certain 'ancient demesnes of the crown' already stood outside the
national system of taxation, justice and police, that the ealdorman of
the shire and the shire-moot had no jurisdiction over them, and that
they were administered by reeves yet more personally dependent on the
king than was the shire-reeve. It is possible, however, that the two
distinctions cut each other, for when the king booked land to himself
he, at all events on some occasions, inserted in the charter a clause of
immunity, the very object of which was to put the land outside the
general, national system. To this distinction the famous exchange which
Æthelbert effected with his thegn Wulflaf may point. It says that when,
instead of Washingwell, the king accepted Marsham, 'he did it him to
folk-land.' The land at Marsham was no longer to enjoy that immunity
which it had enjoyed while it was in the hands of the thegn, it was to
come under the sway of the sheriff and of the national courts. However,
it is much easier for us to dream dreams about such a transaction than
to discover the truth.

[Rights of individuals in national land.]

If the folk-land was the land of the people and if the king when he
booked land to a church or a thegn was usually booking folk-land and
converting it into book-land, how are we to think of the land that still
is folk-land? Is it land that has not yet been brought into cultivation;
is it land in which no proprietary interests, save that of the folk,
exist? Now we are far from saying that the king never grants land that
is waste and void of inhabitants; but it is plain enough that this is
not the common case. The charter deals in the first instance with
manses, _villae_, _vici_, houses, túns, with cultivated fields and
meadows. Waste land (it may be) is given in large quantities, but merely
as appurtenant to the profitable core of the gift. We see too that
individual men have rights in the folk-land; Alfred the ealdorman has
folk-land and hopes that on his death it will pass to his son; King
Æthelbert has folk-land and it is occupied by Wighelm and Wulflaf; King
Edward the Elder supposes that the title to folk-land may be in dispute
between two persons and that this dispute will come before the sheriff.
What then the folk owns, if it owns anything at all, is not (if we may
introduce such feudal terms) 'land in demesne' but 'land in service,' in
other words, a superiority or seignory over land. We must add that it is
a superiority over free men and over men who have titles that can be the
subject of law-suits in the county court. And now we must ask, What
profit does the nation get out of this superiority? Shall we say that
the _tributum_, the _vectigal_ paid to the king is to be regarded as
rent paid to the nation, that the _opera regia_, the _victus_, the
_pastus_, are services rendered by the tenant to the people, or shall we
say that the folk's right over this land is proved by its serving as the
fund whereon the king can draw when he desires to save his soul? Then,
if on the other hand we make the tillers of the folk-land mere tenants
at will, there will be little room left for any landowners, for any
'peasant proprietors.' To meet this difficulty it has been supposed
that, at all events at a remote time, there was much land that was
neither folk-land nor book-land. The allotments which the original
settlers received were neither folk-land nor book-land.

[The _alod_.]

In order to describe those allotments the words _alod_ and _ethel_ have
been used, and other terms, such as 'family land' and 'heir land,' have
been invented. But in the laws and the charters we do not meet with
these phrases. The law of Edward the Elder seems to set before us
book-land and folk-land as exhausting the kinds of land. 'He who
deforces any one of his right, be it in book-land, be it in 'folk-land'
must pay a penalty. It is difficult to believe that this law says
nothing of one very common kind of land, still more difficult to believe
that already in the first half of the ninth century the amount of the
so-called _alod_, _ethel_, or 'heir-land,' had become so small that it
might be neglected. So far as we can see, book-land from first to last
was only held by the churches and by very great men. The books that we
have, more especially the later books, are with hardly any exceptions
furnished with clauses of immunity, clauses which put the land outside
the national system of police, and, as we think, of justice also. It is
not to be imagined for one moment that the numerous _liberi homines_ who
even in the Conqueror's reign held land in Essex and East Anglia had
books. To say that book-land had consumed the ancient _alod_ or _ethel_,
is in truth to say that all land was privileged.

[Book-land and privilege.]

We turn once more to Edward's law. Land, it would seem, is either
book-land or folk-land. Book-land is land held by book, by a royal and
ecclesiastical _privilegium_. Folk-land is land held without book, by
unwritten title, by the folk-law. 'Folk-land' is the term which modern
historians have rejected in favour of the outlandish _alod_. The holder
of folk-land is a free landowner, though at an early date the king
discovers that over him and his land there exists an alienable
superiority. Partly by alienations of this superiority, partly perhaps
by gifts of land of which the king is himself the owner, book-land is
created.

[Kinds of land and kinds of right.]

Edward's law speaks as though it were dealing with two different kinds
of land. But really it is dealing with two different kinds of title. We,
and even our statutes, habitually speak of freehold land, copyhold land,
leasehold land, yet we know that the same piece of land may be at one
and the same time freehold, copyhold and leasehold. All land is freehold
land; every rood has its freeholder. Bracton habitually spoke of land
held by frankalmoin, land held by knight's service, land held in socage,
but he knew well enough that a single acre might be held at one and the
same time by many different tenures. Just so, we take it, the same land
might be both book-land and folk-land, the book-land of the minster, the
folk-land of the free men who were holding--not indeed 'of'--but still
'under' the minster. They or their ancestors had held under the king,
but the king had booked their land (which also in a certain sense was
his land) to a church. The mental effort, the abstraction, that would
be required of us were we to speak of various 'estates, rights and
titles,' we try to avoid by speaking as though the distinction that was
to be indicated were a distinction between various material things, and
as though a freehold or copyhold quality were, like fertility or
sterility, an attribute of the soil. Even so abstract a term as 'estate'
is soon debased by the vulgar mouth: estates are ploughed; men 'shoot
over' their estates. 'Book-land' is a briefer term than 'land held by
book-right'; 'folk-land' is a briefer term than 'land held by
folk-right.' The same piece of land may be held by book-right and by
folk-right; it may be book-land and folk-land too.

And now we must turn to consider another element in the king's alienable
superiority. We must speak of jurisdiction.


FOOTNOTES:

  [904] Vinogradoff, Folkland, Eng. Hist. Rev. viii. 1.

  [905] Edw. I. 2.

  [906] Schmid, p. 575.

  [907] K. 281 (ii. 64); B. M. Facs. ii. 33.

  [908] K. 317 (ii. 120); T. 480; B. ii. 195.

  [909] K. 260 (ii. 28); B. ii. 33; B. M. Facs. ii. 30.

  [910] In K. 1019 (v. 58) there is talk of Offa having booked land to
        himself, and in K. 1245 (vi. 58) Edgar seems to perform a
        similar feat without mentioning the consent of the witan,
        though they attest the deed. See Stubbs, Const. Hist. i. 145.

  [911] From Alfred and Edward the Elder we have hardly enough genuine
        charters to serve as materials for an induction, but Edward's
        reign seems the turning point.

  [912] A.D. 838, K. 1044 (v. 90): Egbert gives 'aliquantulam terrae
        partem meae propriae hereditatis ... cum consilio et
        testimonio optimatum meorum.' A.D. 863, K. 1059 (v. 116):
        Æthelred 'cum consensu ac licentia episcoporum ac principum
        meorum' gives 'aliquam partem agri quae ad me rite
        pertinebat.'

  [913] Stubbs, Const. Hist. i. 212.

  [914] We know of but four specimens earlier than 750. The first is a
        deed whereby Wulfhere of Mercia makes a grant 'cum consensu et
        licentia amicorum et optimatum meorum': E. 4; B. M. Facs. iv.
        1. The second is a deed whereby Hlothar of Kent makes a grant
        with the consent of Abp Theodore, his (Hlothar's) brother's
        son Eadric and all the princes; K. 16 (i. 20); B. M. Facs. i.
        1. The third, known to us only through a copy, is one by which
        Æthelbald of Mercia makes a grant 'cum consensu vel
        episcoporum vel optimatum meorum'; K. 83 (i. 100). By a fourth
        deed, K. 27 (i. 30), Eadric grants land 'cum consensu meorum
        patriciorum'; but this also we only get from a copy.

  [915] K. 1 (i. 1); A.D. 604. Æthelbert for Rochester.

  [916] K. 43 (i. 50); B. i. 140: A.D. 697, Wihtræd.--K. 47 (i. 54);
        E. 17; B. M. Facs. i. 4: Wihtræd.--K. 77 (i. 92); E. 24; B. M.
        Facs. i. 6: A.D. 732, Æthelbert.--K. 132 (i. 160); E. 54; B.
        M. Facs. ii. 4: A.D. 778, Egbert.

  [917] K. 85 (i. 102); E. 32: Eadbert for Rochester. Of this deed we
        have but a transcript. The formula of attestation is very
        curious and may have been distorted either by the original
        scribe or the copyist.

  [918] K. 157 (i. 189), Offa of Mercia uses this eschatocol, but in a
        Kentish gift.

  [919] K. 1006-7 (v. 47-8); B. i. 256-7.

  [920] K. 79 (i. 95).

  [921] Brunner, Rechtsgeschichte der Röm. u. German. Urkunde, pp.
        220-8; Giry, Manuel de diplomatique, 614. Bede in his famous
        letter (ed. Plummer, i. 417) uses the technical _astipulari_
        to describe the action of the prelates who set their crosses
        to the king's charters. It occurs also in a charter of 791, K.
        1015 (v. 53-4). See also K. 691 (iii. 289), 'constipulatores.'

  [922] Brunner, op. cit. 158. Dr Brunner thinks that the precedents
        for A.-S. charters came direct from Rome rather than from any
        other quarter (p. 187); but he fully admits that these
        charters when compared with foreign instruments show a certain
        formlessness.

  [923] Under our own law we may conceive a case in which a man would
        be compelled to die unwillingly intestate because one of the
        two people present at his death-bed capriciously refused to
        witness a will.

  [924] The transition is marked by the following charters.--K. 104,
        105, 108, 113, in these we have the mere rogation of fit and
        proper witnesses.--K. 114 (a Kentish deed which Kemble
        ascribes to 759-765), in this the clause of attestation speaks
        of the counsel and consent of the _optimates_ and
        _principes_.--K. 118, Uhtred of the Hwiccas makes a grant with
        the consent and licence of Offa king of the Mercians and of
        his (Offa's) bishops and _principes_.--K. 120, the witnesses
        are described as _condonantes_.--K. 121, 122, (A.D. 774) the
        clause of attestation says 'cum sacerdotibus et senioribus
        populi more testium subscribendo.'--K. 131, 'testium ergo et
        consentientium episcoporum ac principum meorum signa et nomina
        pro firmitatis stabilimento hic infra notabo.'--A clause of
        this kind becomes common with Offa, see K. 134, 137, 138, 148,
        151, but occasionally there are relapses and the signatories
        merely appear as 'fit and proper' or 'religious' witnesses.
        But it is not until after 800 that, save as a rare exception,
        the consent of the magnates is brought into connexion with the
        operative words.

  [925] Bresslau, Urkundenlehre, i. 697.

  [926] Bede's letter to Egbert (ed. Plummer, i. 405) and his account
        of Benedict Biscop (ib. 364) show that it was expected of the
        king that he should provide land for young warriors of noble
        race; but no word implies that the land out of which the
        provision was to be made was 'folk-land,' nor is it clear that
        the young warrior was to have a book.

  [927] See William's charter for Fécamp, Neustria Pia, p. 224.

  [928] A.D. 692-3, K. 35 (i. 39); B. M. Facs. i. 2: a grant by
        'Hodilredus parens Sebbi ... cum ipsius consensu'; 'ego Sebbi
        rex Eastsaxonorum pro confirmatione subscripsi.'--A.D. 704, K.
        52 (i. 59); B. M. Facs. i. 3: 'Ego Sueabræd rex Eastsaxonorum
        et ego Pæogthath cum licentia Ædelredi regis.'--A.D. 706, K.
        56 (i. 64), 'Ego Æthiluueard subregulus ... consentiente
        Coenredo rege Merciorum.'--A.D. 721-46, K. 91 (i. 109),
        Æthelbald of Mercia attests a lease made by the bishop of
        Worcester.--A.D. 759, K. 105 (i. 128); B. M. Facs. ii. 2:
        three brothers, each of whom is a _regulus_, make a gift 'cum
        licentia et permissione Regis Offan Merciorum.'--A.D. 767,
        770, K. 117-8 (i. 144-5): two gifts by Uhtred, _regulus_ of
        the Hwiccas, 'cum consensu et licentia Offani Regis
        Merciorum.'--A.D. 791? K. 1016 (v. 54): 'Ego Aldwlfus dux
        Suð-Saxonum ... cum consensu et licentia Offae regis
        Merciorum.'

  [929] K. 113 (i. 137).

  [930] K. 314 (ii. 112); 1067 (v. 127); Liber de Hyda, 57. On the
        death of Æthelbald, two of his sons, Æthelred and Alfred, seem
        to have made over the lands which had been devised to them by
        their father to Æthelbert, the reigning king, so that he might
        enjoy them during his life. Then again, on Æthelbert's death,
        Alfred would not insist upon a partition but allowed his share
        to remain in the possession of Æthelred, the reigning king.
        See also Eadred's will, Liber de Hyda, 153; he seems to have a
        good deal of land of which he can dispose freely.

  [931] K. 1312 (vi. 172).

  [932] The violated books are in Chron. Abingd. i. 314, 317, 334.

  [933] Were it possible for us to say that the kingship was elective,
        this would be but a beginning of difficulties. For example, we
        should raise a question which in all probability has no
        answer, were we to ask whether a majority could bind a
        minority.



§ 3. _Sake and Soke._


[Importance of seignorial justice.]

Of all the phenomena of feudalism none seems more essential than
seignorial justice. In times gone by English lawyers and historians have
been apt to treat it lightly and to concentrate their attention on
military tenure. For them 'the introduction of the military tenures' has
been 'the establishment of the feudal system.' But when compared with
seignorial justice, military tenure is a superficial matter, one out of
many effects rather than a deep-seated cause. Seignorial justice is a
deep-seated cause of many effects, a principle which when once
introduced is capable of transfiguring a nation. Of the origin and
antiquity of this principle, however, some even of our most illustrious
historians have spoken with great hesitation and therefore we shall
spend some time in examining the texts which reveal what can be known
about it, admitting once for all that they leave much room for
differences of opinion.

[Theory of the modern origin of seignorial justice.]

Since the doctrine to which we have come would trace seignorial justice
back to a remote time, we shall do well to state at the outset an
extreme version of the opposite doctrine, a version which has been
elaborately set forth in a learned and spirited essay[934].--On the eve
of the battle of Hastings a seignorial court was still a new thing in
England. It was a Norman precursor of the Norman Conquest. England owes
it to Edward the Confessor, who was 'half-Norman by birth and wholly
Norman by education and sympathies.' It came to us with 'a new theory of
constitutional law.' From the reign of no older king can any evidence be
produced of the existence--at any rate of the legalized existence--of
private courts. True, there are charters that give to the holders of
great estates the profits of jurisdiction; but a grant of the profits of
jurisdiction is one thing, jurisdiction itself is another. True, that
one man might have _soke_ over another, but this does not mean that he
had jurisdiction; at the most it means that he was entitled to the
profits of justice, to wites, to fines and amercements. 'No instance can
be found before the Norman times in which _sócn_ means jurisdiction.
_Sócn_ had a technical meaning of its own which is always rigorously
observed. The idea of jurisdiction, on the other hand, was expressed by
an equally technical word, the meaning of which is also rigorously
observed. This is _sacu_, a word which has strangely vanished from our
legal vocabulary, but is still preserved, even in its technical sense,
by the German _sache_[935].'

[Sake and soke in the Norman age.]

Now it will not be disputed that in Domesday Book and the Leges Henrici
this distinction is obliterated. _Soke_ means jurisdiction and '_sake_
and _soke_' is but a pleonastic phrase, which means no more than
_soke_[936]. Nor is it disputable that on the vigil of the Conquest a
great deal of jurisdiction was wielded by the lords. Not a few of the
'hundreds' were in private hands, and, apart from hundredal
jurisdiction, a lord might have and often had sake and soke over his own
lands. It is not denied that Edward the Confessor had freely granted to
churches and other lords large rights of justice,--not merely rights to
the profits of jurisdiction, but jurisdiction itself. The question is
whether what he did was new.

[The Confessor's writs.]

For one moment longer we may dwell on the indisputable fact that he
dealt out jurisdictional rights with a lavish hand. This we gather, not
so much from his Latin land-books, as from English writs in which he
announces to the bishop, earl, sheriff and great men of a county that he
has given land in that county to some church 'with sake and soke and
toll and team'; sometimes he adds 'with infangennethef, grithbrice,
foresteal, hamsocn, flymena-fyrmth,' and so forth. Sometimes the donees
are to have these rights in all their own lands. Sometimes he gives them
the hundredal jurisdiction over lands that are not their own. Thus to
St. Benet of Ramsey he gives soken over all the men in a hundred and a
half--over all the men who are 'moot-worthy, fyrd-worthy, and
fold-worthy,' whosesoever men they may be: that is to say (as we
understand it) he gives a jurisdiction over all the free men of the
district, the men who attend the moots, who attend the host and who are
not compelled by any _soca faldae_ to send their sheep to a seignorial
fold, and this although those men be bound to St. Benet neither by
tenure nor by personal commendation[937]. Again, he concedes that the
donee's tenants shall be quit of shires and hundreds[938]. Again, he
gives the favoured church taxational power: whenever the king takes a
geld, be it army-geld, or ship-geld, the monks may impose a similar tax
upon the township and keep the proceeds to their own use[939]. In short,
it seems not too much to say that any delegation and appropriation of
justice of which our Norman kings were guilty had an ample warrant in
the practice of St. Edward.

[Cnut's practice.]

Now the theory which would make him an innovator in this matter receives
a rude shock from a writ of Cnut[940]. The king announces that the
Archbishop of Canterbury is to be worthy throughout his lands of his
sake and soke and grithbrice, hamsocn, foresteal, infangennethef and
flymena-fyrmth. Until the genuineness of this writ, which does not
stand quite alone[941], be disproved, the charge that has been brought
against Edward fails. He was but following in the steps of the great
Dane, though it may be that he rushed forward where his predecessor had
trod cautiously.

[Cnut's law.]

Having seen what Cnut could do upon occasion, we turn to the famous
passage in his dooms which declares what 'rights the king has over all
men[942].' In Wessex and Mercia (in the Danelaw the list is somewhat
different) he has hamsocn, foresteal, flymena-fyrmth and fyrd-wite
'unless he will honour a man yet further and grant him this worship.'
Now if we had not before us his writ for the archbishop, we might
perhaps argue that this law merely decreed that the profits of certain
pleas were not to be covered by the 'farms' paid to the king by the
sheriffs and other national officers. But in the writ we see that Cnut
allows to the archbishop just the excepted rights, just that 'worship'
which men are not to have as a general rule. Nor surely can we say that
what is conceded is, not jurisdiction itself, but merely the profits of
jurisdiction. The archbishop is to have _sake_ as well as _soke_, and
those who have contended for the strictest interpretation of royal
grants have not contended that the former of these words can mean
anything but 'causes,' 'pleas,' 'jurisdiction.' Therefore when it is
interpreted by the aid of this writ, Cnut's law seems to imply that
private jurisdiction is a common thing. The king is already compelled to
protest that there are certain pleas of the crown that are not covered
by vague and general words.

[The book and the writ.]

Now express grants of _sake_ and _soke_ first become apparent to us in
documents of a certain class, a class that we do not get before the last
years of the tenth century. It is necessary therefore that we should
make a short digression into the region of 'diplomatics.' The
instruments of the Confessor's reign, and we may add of the Norman
reigns, which we loosely call royal charters or royal land-books divide
themselves somewhat easily into two main classes, which we will call
respectively (1) charters and (2) writs. These names are not very happy,
still they are the best that occur to us. If we have regard to the form
of the instrument, the distinction is evident. The charter is with rare
exceptions in Latin. It begins with an invocation of the Triune God or
perhaps with a sacred monogram. On the other hand, there is no address
to mortal men; there is no salutation. There follow a pious _arenga_
setting forth how good a thing it is to make gifts, how desirable it is,
since men are very wicked, that transactions should be put into writing.
Then the king states that he gives, or has given, or will give--the use
of the future tense is not uncommon--certain land to a certain person.
Then comes a clause which we shall hereafter call 'the clause of
immunity':--the land is to be free from certain burdens. Then comes the
anathema or damnatory clause, threatening all breakers of the charter
with excommunication here and torment hereafter. Then in the charters of
the time before the Conquest the boundaries of the land are described in
English. Then comes the sign of the cross touched by the king's hand and
the crosses of the witan or nobles who 'attest' or 'attest and consent
to' the grant. In the writ all is otherwise. In the Confessor's day it
is usually, in the Norman reigns it is sometimes, an English document.
It begins, not with an invocation, but with a salutation;--the king
greets his subjects or some class of his subjects: King Edward greets
'Herman bishop and Harold earl and all my thegns in Dorset,' or 'Leofwin
bishop and Edwin earl and all my thegns in Staffordshire':--and then he
tells them something. He tells them that he has granted lands or
liberties to a certain person. There follows a command or a threat--'I
command and firmly enjoin that none shall disturb the grantee,' 'I will
not suffer that any man wrong the grantee.' The boundaries are not
described. There is seldom any curse. The king makes no cross. If any
witnesses are mentioned, they are few and they do not make crosses.

[Differences between book and writ.]

Now these formal differences correspond more or less exactly to a
substantial difference. As every modern lawyer knows, a written document
may stand in one of two relations to a legal transaction. On the one
hand it may itself be the transaction: that is to say, the act of
signing, or of signing and delivering, the document may be the act by
which certain rights are created or transferred. On the other hand, the
instrument may be but evidence of the transaction. Perhaps the law may
say that of such a transaction it will receive no evidence save a
document written and signed; perhaps it may say that the testimony of
documents is not to be contradicted by word of mouth; but still the
document is only evidence, though it may be incontrovertible evidence,
of the transaction; the transaction may have been complete before the
document was signed[943]. This material distinction is likely to express
itself in points of form; for instance, such a phrase as 'I hereby give'
is natural in the one case; such a phrase as 'Know all men by this
writing that I have given' is appropriate in the other. Instruments of
both kinds were well enough known in the Frankish kingdom; their history
has been traced back into the history of Roman conveyancing[944]. It
would be out of place were we here to discuss the question whether the
Anglo-Saxon land-book was a dispositive or merely an evidential
document; suffice it to say that with rare exceptions the instruments
that are of earlier date than the Confessor's reign are in form charters
and not writs. On the other hand, the documents of the Angevin kings
which treat of gifts of lands and liberties, though we call them
charters, are in form (if we adopt the classification here made) not
charters but writs. In form they are evidential rather than dispositive;
they are addressed to certain persons--all the king's lieges or a class
of the lieges--bidding them take notice that the king has done
something, has given lands, and then adding some command or some threat.
This command or threat makes them more than evidential documents; the
_Sciatis me dedisse_ is followed by a _Quare volo et firmiter
praecipio_; it is not for no purpose that the king informs his officers
or his subjects of his having made a gift; still in form they are
letters, open letters, 'letters patent,' and the points of difference
between the Angevin charter and the Angevin 'letters patent' (strictly
and properly so called) are few, technical and unimportant when compared
with the points of difference which mark off these two classes of
documents from the ancient land-book[945]. In short before the end of
the twelfth century, the writ-form or letter-form with its salutation,
its 'Know ye,' its air of conveying information coupled with commands,
has entirely supplanted the true charter-form with its dispositive words
and its air of not merely witnessing, but actually being, a gift of
land.

[Anglo-Saxon writs.]

But to represent this as a contrast between English instruments and
Norman or French instruments would be a mistake. In the first place, we
have a few documents in writ-form that are older than the days of the
Norman-hearted Edward. As already said, we have a writ from Cnut and it
has all those features of Edward's writs which have been considered
distinctively foreign. We have another writ from the same king. The king
addresses Archbishop Lyfing, Abbot Ælfmær, Æthelric the shireman 'and
all my thegns twelvehinde and twihinde.' He tells them that he has
confirmed the archbishop's liberties and threatens with the pains of
hell any one who infringes them[946]. We have a writ from Æthelred the
Unready, and a remarkable writ it is. He addresses Ælfric the ealdorman,
Wulfmær and Æthelweard and all the thegns in Hampshire and tells them
how he has confirmed the liberties of bishop Ælfheah and how large
tracts of land are to be reckoned as but one hide--an early example of
'beneficial hidation[947].' Secondly, the solemn charter with its
invocation, its pious harangue, its dispositive words, its religious
sanction, its numerous crosses, its crowd of attesting and consenting
witnesses, was in use in Normandy before and after the conquest of
England. Thirdly, the Norman kings of England used it upon occasion.
Much they did by writ. The vast tracts of land that they had at their
disposal would naturally favour the conciser form; but some of the
religious houses thought it well to obtain genuine land-books of the old
English, and (we must add) of the old Frankish type. The king's seal was
not good enough for them; they would have the king's cross and the
crosses of his wife, sons, prelates and barons. The ultimately complete
victory of what we have called the writ-form over what we have called
the charter-form may perhaps be rightly described as a result of the
Conquest, an outcome, that is, of the strong monarchy founded by
William of Normandy and consolidated by Henry of Anjou, but it can not
be rightly described as the victory of a French form over an English
form; and a very similar change was taking place in the chancery of the
French kings[948].

[Sake and soke appear when writs appear.]

We may say then that the appearance of words clearly and indisputably
conceding jurisdictional rights is contemporaneous with the appearance
of a new class of diplomata, namely royal writs as contrasted with royal
charters or land-books. We may add that it is contemporaneous with the
appearance of royal diplomata couched in the vernacular language. This
may well lead us to two speculations. In the first place, is it not very
possible that many ancient writs have been lost? The writ was a far less
solemn instrument than the land-book, and it is by no means certain that
the writs of the Confessor were intended to serve as title-deeds or to
come to the custody of those for whose benefit they were issued. King
Edward greets the bishop of London, Earl Harold, the sheriff and all the
thegns of Middlesex and tells them how he has given land to St. Peter
and the monks of Westminster, and how he wills that they enjoy their
sake and soke. The original document is presented to the bishop, the
earl, or the sheriff (to all of them perhaps as they sit in their shire
moot) and we can not be certain that after this the monks ought to have
that document in their possession, that it ought not to be kept by the
sheriff, or perhaps returned to the king with an indorsement expressive
of obedience. Many hundred writs must King William have issued in favour
of his barons--this is plain from Domesday Book--and what would we not
give for a dozen of them? Secondly, it is well worth notice that 'sake
and soke' begin to appear so soon as royal diplomata written in English
become common, and when we observe the formulas which enshrine these
words we find some difficulty in believing that such formulas are new or
foreign. Let us listen to one.

               saca and socne
               toll and team
               griðbrice and hamsocne
               and foresteal
               and alle oðre gerihte
               inne tid and ut of tide
               binnan burh and butan burh
               on stræte and of stræte.

Surely this alliteration and this rude rhythm tell us that the clause
has long been fashioning itself in the minds and mouths of the people
and is no piece of a new-fangled 'chancery-style[949].' And one other
remark about language will occur to us. In many respects the law Latin
of the middle ages went on becoming a better and better language until,
in the thirteenth century, it became a very good, useful and accurate
form of speech. But it gained this excellence by frankly renouncing all
attempts after classicality, all thought of the golden or the silver
age, and by freely borrowing from English whatever words it wanted and
making them Latin by a suffix. The Latin of the Anglo-Saxon land-books
is for all practical purposes a far worse language, just because it
strives to be far better. It wanted to be good Latin, and even at times
good Greek. The scribe of the ninth or tenth century would have been
shocked by such words as _tainus_, _dreinus_, _smalemannus_,
_sochemannus_ which enabled his successors to say precisely what they
wanted. He gives us _provincia_ instead of _scira_, _satrapes_ instead
of _aldermanni_, and we read of _tributum_ and _census_ when we would
much rather have read of _geldum_ and _gablum_. It was out of the
question that he should be guilty of such barbarisms as _saca et soca_.
If he is to speak to us of these things, he will do so in some phrase
which he thinks would not have disgraced a Roman orator--in a phrase,
that is, which will not really fit his thought.

[Traditional evidence of sake and soke.]

The traditions, the legends, current in later times, can not be
altogether neglected. The prelates of the thirteenth century often
asserted that some of their franchises, and in particular their hundred
courts, had been given to their predecessors in an extremely remote age.
Thus the bishop of Salisbury claimed the hundred of Ramsbury in
Wiltshire by grant of King Offa of Mercia[950]; the Abbot of Ramsey
claimed the hundred of Clackclose in Norfolk by grant of King
Edgar[951]. On such claims we can lay but very little stress, for if the
church had held its 'liberties' from before the Conquest, the exact date
at which it had acquired them was of little importance and their origin
would easily become the sport of guess-work and myth. But occasionally
we can say that there must in all probability be some truth in the tale.
Such is the case with the famous hundred of Oswaldslaw in
Worcestershire. When the Domesday survey was made this hundred belonged
to the church of Worcester. Worcestershire was deemed to comprise twelve
hundreds and Oswaldslaw counted for three of them[952]. Oswaldslaw
contained 300 hides, and to all seeming the whole shire contained 1200
hides or thereabouts. Even in the thirteenth century a certain
tripleness seems to be displayed by this hundred; the bishop holds his
hundred court in three different places, namely, outside the city of
Worcester, at Dryhurst and at Wimborntree[953]. Now the story current in
St. Mary's convent was that this triple hundred of Oswaldslaw received
its name from Oswald, the saintly bishop who ruled the church of
Worcester from 960 to 992. A charter was produced, perhaps the most
celebrated of all land-books, that _Altitonantis Dei largiflua
clementia_, which, after many centuries, was to prove the King of
England's dominion over the narrow seas[954]. According to this charter
Edgar, Oswald's patron, threw together three old hundreds, Cuthbertslaw,
Wolfhereslaw, and Wimborntree to form a domain for the bishop and his
monks[955]. Could we accept the would-be charter as genuine, could we
even accept it as a true copy of a genuine book (and this we can hardly
do)[956], there would be an end of all controversy as to the existence
of seignorial justice in the year 964, for undoubtedly it contains words
which confer jurisdiction[957]. Upon these we will not rely: the fact
remains that in Domesday Book there appears this hundred of Oswaldslaw,
that it is treated as a triple hundred, as three hundreds, that the
bishop has jurisdiction over it, that the sheriff has no rights within
it, that it looks like a very artificial aggregate of land, for pieces
of it lie intermixed with other hundreds and pieces of it lie
surrounded by Gloucestershire. In 1086 the church of Worcester had to
all appearance just those rights which the _Altitonantis_ professed to
grant to her; already they were associated with the name of Oswald;
already they were regarded as ancient privileges. 'Saint Mary of
Worcester has a hundred called Oswaldslaw, in which lie 300 hides, from
which the bishop of the said church, by a constitution of ancient times,
has the profits of all sokes and all the customs which belong thereto
for his own board and for the king's service and his own, so that no
sheriff can make any claim for any plea or for any other cause:--this
the whole county witnesses[958].' Surely the whole county would not have
spoken thus of some newfangled device of the half-Norman Edward. Such a
case as this, so great a matter as the utter exclusion of the sheriff
from one quarter of the shire, we shall hardly attempt to explain by
hypothetical usurpations. These liberties were granted by some king or
other. If they were granted by the Confessor, why was not a charter of
the Confessor produced? Why instead was a charter of Edgar produced,
perhaps rewritten and revised, perhaps concocted? The easiest answer to
this question seems to be that, whatever may be the truth about this
detail or that, the _Altitonantis_ tells a story that in the main is
true. The diplomatist's scepticism should in this and other instances be
held in check by the reflexion that kings and sheriffs did not permit
themselves to be cheated wholesale out of valuable rights, when the true
state of the facts must have been patent to hundreds of men, patent to
all the men of Oswaldslaw and to 'the whole county' of Worcester[959].

[Criticism of the earlier books.]

We may now turn to the genuine books of an earlier time and patiently
examine their words. It is well known that an Anglo-Saxon land-book
proceeding from the king very commonly, though not always, contains a
clause of immunity. Sometimes a grant of immunity is the essence of the
book; the land in question already belongs to a church, and the bishop
or abbot now succeeds in getting it set free from burdens to which it
has hitherto been subject. What is now granted to him is 'freedom,'
'liberty,' 'freóls'; the book is a _freóls-bóc_[960]; it may be that he
is willing to pay money, to give land, to promise prayers in return for
this franchise, this _libertas_[961]. Thus, for example, King Ceolwulf
of Mercia grants a _libertas_ to the Bishop of Worcester, freeing all
his land from the burden of feeding the king's horses, and in
consideration of this grant the bishop gives to the king five hides of
land for four lives and agrees that prayers shall be said for him every
Sunday[962].

[The clause of immunity.]

Now in an ordinary case the clause of immunity will first contain some
general words declaring the land to be free of burdens in general,
and then some exceptive words declaring that it is not to be
free from certain specified burdens[963]. Both parts of the clause
demand our attention. The burdens from which the land is to be
free are described by a large phrase. Usually both a substantive
and an adjective are employed for the purpose; they are to be freed
_ab omni terrenae servitutis iugo_--_saecularibus negotiis_--_mundiali
obstaculo_--_mundialibus causis_--_saecularibus curis_--_mundialibus
coangustiis_--_cunctis laboribus vitae mortalium_. The adjectives are
remarkable, for they seem to suggest a contrast. The land is freed
from all earthly, worldly, secular, temporal services. Does this
not mean that it is devoted to services that are heavenly, sacred,
spiritual[964]? True, that in course of time we may find this same
formula used when the king is giving land, not to a church, but to one
of his thegns; but still in its origin the land-book is ecclesiastical;
'book-right' is the right of the church, _ius ecclesiasticum_[965], and
we may well believe that the phraseology of the books, which in
substance remains unaltered from century to century, was primarily
adapted to pious gifts. It is by no means improbable that in the middle
of the eighth century Æthelbald of Mercia by a general decree conceded
to all the churches of his kingdom just that freedom from all burdens,
save the _trinoda necessitas_, that was usually granted by the clause of
immunity contained in the land-books, and we can hardly say with
certainty that half a century before this time Wihtræd had not granted
to all the churches of Kent a yet larger measure of liberty, a liberty
which absolved them even from the _trinoda necessitas_[966]. Turning
from the adjectives to the substantives that are used, we find them to
be wide and indefinite words; the lands are to be free from all worldly
services, burdens, troubles, annoyances, affairs, business, causes,
matters and things. Sometimes a more definite word is added such as
_tributum_, _vectigal_, _census_, and clearly one main object of the
clause is to declare that the land is to pay nothing to the king or his
officers; it is to be free of rent and taxes, scotfree and
gafolfree[967]. Occasionally particular mention is made of a duty of
entertaining the king, his court, his officers, his huntsmen, dogs and
horses, also of a duty of entertaining his messengers and forwarding
them on their way[968]. Thus, for example, Taunton, which belonged to
the bishop of Winchester, had been bound to provide one night's
entertainment for the king and nine nights' entertainment for his
falconers and to support eight dogs and a dog-ward, to carry with horses
and carts to Curry and to Williton whatever the king might need, and to
conduct wayfarers to the neighbouring royal vills. To obtain immunity
from these burdens the bishop had to give the king sixty hides of
land[969].

[Discussion of the words of immunity.]

No doubt it is a sound canon of criticism that, when in a grant precise
are followed by vague words, the former should be taken to explain, and,
it may be, to restrain the latter. If, for example, land be freed 'from
taxes and all other secular burdens,' we may well urge that the 'other
secular burdens' which the writer has in his mind are burdens akin to
taxes. And of course it is fair to say that in our days a grant of
private justice would be an extremely different thing from a grant of
freedom from fiscal dues. But what, we must ask, does this freedom from
fiscal dues really mean when it is granted by an Anglo-Saxon land-book?
When the monks or canons obtain a charter freeing this territory from
all _tributum_ and _census_, from all _pastiones_ and so forth, is it
intended that the occupiers of the soil shall have the benefit of this
grant? Not so. The religious have been stipulating for themselves and
not for their men. The land has been freed from service to the king in
order that it may serve the church[970]; the church will take what the
king has hitherto taken or it will take an equivalent. In a writ of
Edward the Confessor this appears very plainly. Whenever men pay a geld
to the king, be it an army-geld or a ship-geld, the men of St. Edmund
are to pay a like geld to the abbot and the monks[971]. Probably this
principle has been at work all along. The king has had no mind to free
the _manentes_, _casati_, _tributarii_ of the church from any _tributum_
or _vectigal_. What has hitherto been paid to him, or some equivalent
for it, will now go to the treasury of the church. Thus, even within the
purely fiscal region, we see that the object of the immunity is to give
the church a grip on those who dwell upon the land. But we must read the
clause to its end.

[The _trinoda necessitas_.]

As is well known, it usually proceeds to except certain burdens, to
declare that the land is not to be free from them. These burdens, three
in number, are on a few occasions spoken of as the _trinoda necessitas_.
That term has become common in our own day and is useful. The land is
not to be free from the duty of army-service, the duty of repairing
strongholds, the duty of repairing bridges. An express exception of this
_trinoda necessitas_ out of the general words of immunity is extremely
common. Moreover there are charters which speak as though no lands could
ever be free from the triple charge[972], and a critic should look with
some suspicion upon any would-be land-book which expressly purports to
break this broad rule. But besides some books which do expressly purport
to free land from the _trinoda necessitas_[973], we have a considerable
number of others which grant immunity in wide terms and make no
exception of army-service, bridge-bote or burh-bote[974], and we are
hardly entitled to reject them all merely because they do not conform to
the general principle[975]. More to our purpose is it to notice that,
though a grant of jurisdictional powers would be an extremely different
thing from a grant of immunity from army-service, the duty of attending
the national or communal courts is extremely like the duty of attending
the host, and it would not be extravagant to argue that when the king
says 'I free this land from all secular burdens except those of
fyrd-fare, burh-bote and bridge-bote,' he says by implication 'I free
this land from suit to shires and hundreds.'

[The _ángild_.]

But yet more important is it to notice that charters of the ninth
century frequently except out of the words of immunity not three
burdens, but four. In addition to the _trinoda necessitas_, some fourth
matter is mentioned. Its nature is never very fully described, but it is
hinted at by the terms _ángild_, _singulare pretium_, _pretium pro
pretio_. In connexion with these charters we must read others which
exempt the land from 'penal causes,' or _wíte-rǽden_ and others which
expressly grant to the donee the 'wites' or certain 'wites' issuing from
the land; also we shall have to notice that there are dooms which decree
that certain 'wites' are to be paid to the land-lord or _land-ríca_. Now
_ángild_ (_singulare pretium_) is a technical term in common use[976].
When a crime has been committed--theft is the typical crime which the
legislators have ever before their eyes--the _ángild_ is the money
compensation that the person who has been wronged is entitled to
receive, as contrasted with any wite or fine that is payable to the
king. We find, then, a charter saying that certain land--not certain
persons, but certain land--is to be free from all secular burdens save
the _ángild_, and in some cases it will be added that the land is to pay
nothing, not one farthing, by way of wite, or that nothing is 'to go out
to wite[977].' Of the various interpretations that might possibly be put
upon such words one may be at once rejected. It is not the intention of
the king who makes or of the church which receives the grant that crimes
committed on this land shall go unpunished. No lord would wish his
territory to be a place where men might murder and steal with impunity.
We may be certain then that if a crime be committed, there is to be a
wite; but it is not to go outside the land; the lord himself is to have
it. But how is the lord to enforce his right to the wite,--must he sue
for it in the national or communal courts, or has he a court of his own?

[The right to wites and the right to a court.]

This question is difficult. The ancient charters, however nearly they
may go to telling us that the donee will do justice within his
territory, never go quite that length. There is, however, a book granted
by Cenwulf of Mercia in 816 to the church of Worcester which adds to the
clause of immunity these words--'and if a wicked man be three times
captured in open crime, let him be delivered up at the king's tún
(_vicum regalem_)[978].' This seems to tell us that only the worst
offenders will be delivered up to the royal or national officers and to
imply that the bishop may do justice upon all others. Then there are two
books in favour of the church of Abingdon, the one granted by Cenwulf in
821, the other by Egbert in 835, which, though their language is very
obscure, seem to tell us that if one of the 'men of God' (by which
phrase are meant the 'vassals' of the church of Abingdon) be accused of
any crime, the overseer of the church may swear away the charge by his
own oath, and that, if he dare not swear, he may pay the _ángild_ to the
plaintiff and, this done, will have justice over the offender[979].
Another ancient book suggests that the lord of an immunity, when he had
to pay the _ángild_ for one of his men, could not be forced to cross the
boundary of his land. On that boundary some mixed tribunal would meet
consisting partly of his men and partly of outsiders[980]. Then, again,
there are the books which either give the lord the _furis comprehensio_
or else exempt his land from the _furis comprehensio_. Now when a writ
of Cnut or Edward the Confessor tells us that a lord is to have
_infangennethef_ we do not doubt that he is to have the right which bore
that name in later days, the right to hold a court for and to hang
thieves who are caught in seisin of the stolen goods, and to the _furis
comprehensio_ of the older books we can hardly give another meaning. And
the apparent equivalence of the two phrases 'You shall hold this land
with thief-catching' and 'You shall hold this land free of
thief-catching' illustrates our argument that to exempt land from public
or national justice is to create private or seignorial justice[981]. We
may see this in later days; a lord who holds land 'free and quit of
frankpledge' assumes the right to hold a view of frankpledge, and we can
not say that he is wrong in so doing[982].

[The Taunton book.]

Lastly, in a book of fairly good repute we may read of the grand
liberties with which in 904 King Edward endowed the Bishop of
Winchester's large estate at Taunton--that estate which in subsequent
centuries was to become the classical example of colossal manors. 'I
have,' says the king, 'granted to Christ that the men of the bishop,
noble as well as non-noble, living on the said land shall be worthy of
the same right that is enjoyed by those who dwell on the demesnes of the
crown, and that jurisdiction in all secular causes shall be exercised to
the use of the bishops in the same manner as that in which jurisdiction
is exercised in matters pertaining to the king[983].' This is the more
important because it suggests, what like enough is true, that the king
himself is one of the first of all 'immunists'; his own estates, the
ancient demesne of the crown, already stand outside the national system
of finance, justice and police[984].

[The immunist and the wite.]

But so careful must we be in drawing inferences from singular instances,
so wary of forgeries, that in the end we can not dispense with arguments
which rest rather upon probabilities than upon recorded facts. It is
conceded that the 'immunist' (it is convenient to borrow a term that
French writers have coined) is entitled to many of the fines and
forfeitures that arise from offences committed within his territory. Is
it, we must ask, probable that any ealdorman or sheriff will be at pains
to exact and collect these fines and forfeitures for the immunist's
benefit? Now it is true that in later days a few lords enjoyed a
comparatively rare franchise known as _amerciamenta hominum_. When their
men were amerced in the king's court the amercements were paid into the
exchequer, and then the lord would petition to have them paid out to
him[985]. But this was an uncommon and an exalted franchise. As a
general rule, the person in whose name a court is held, be he king or
lord, gets the profits of the court. No one in the middle ages does
justice for nothing, and in the ninth century the days when national
officers would be paid by salary were far distant. When the king
declares that nothing is to 'go out' of the immunist's lands 'by way of
wite,' then to our thinking he declares that, save in exceptional cases,
he and his officers will neither meddle nor make with offences that are
committed within that territory. Again, though we may reject this
charter and that, there can be little doubt that before the end of the
tenth century, the territory held by a church sometimes coincided with a
jurisdictional district, with a hundred or group of hundreds. When this
was so, and the church enjoyed a full immunity, it was almost of
necessity the lord of the court as well as the lord of the land. Why
should the sheriff hold that court, why should he appoint a bailiff for
that hundred, if never thereout could he get one penny for his own or
the king's use?

[Justice and jurisdiction.]

We must once more remember that even in the days of full grown feudalism
the right to hold a court was after all rather a fiscal than a
jurisdictional right. We call it jurisdictional, but still, at least
normally, the lord was, neither in his own person, nor yet in the person
of his steward, the judge of the court[986]. His right was not in
strictness a right _ius dicendi_, for the suitors made the judgments.
When analysed it was a right to preside over a court and to take its
profits. Very easy therefore is the transition from a right to 'wites'
to such 'jurisdiction' as the feudal lord enjoys. When once it is
established that all the fines of a hundred court are to go to a bishop,
that no sheriff or bailiff will get anything by going to hold that
court, then the court already is 'in the bishop's hands.'

[The Frankish immunity.]

This, however, can not be treated as a merely English question. Parallel
to the English _fréols-bóc_ runs the Frankish _carta immunitatis_, and,
if the former has given rise to the question whether it conceded
jurisdictional rights, the latter has given rise, not merely to the same
question, but to much learned controversy. Now it is highly probable
that the English 'immunity' is not independent of the Merovingian
'immunity'; still the terms of the former do not seem to have been
copied from those of the latter, and it is a significant fact that two
different formulas should be equally open to the blame of not deciding
just that most important question which according to our ideas they
ought to decide. The Frankish formula is addressed by the king to his
subordinates and declares that no public officer (_nullus iudex
publicus_) is to enter the land of the immunist for the purpose of
hearing causes, levying _freda_ (which answer to our 'wites'), making
distresses or exacting pledges; but, like our English formula, it says
no word of any court to be held or any jurisdiction to be exercised by
the immunist. It would be impertinent to give here any lengthy account
of the various opinions about this matter that have been held by foreign
scholars, still more impertinent to pronounce any judgment upon them,
but even those writers who seem most inclined to minimize the scope of
the immunity are forced to admit that, as a mere matter of fact, the
immunist by virtue of his immunity is enabled to hold a court for his
territory. That seignorial courts were growing up even in the
Merovingian time, that such courts there were even in the sixth century,
there seems little or no doubt, even though it be denied that they were
the creatures of these clauses of immunity. On the whole, to whichever
side of the channel we look, we seem compelled, alike by the words of
the charters and by the controversies which they have occasioned, to
believe that in the eyes of the kings and the immunists seignorial
jurisdiction, that right to hold a court which seems to us so strange a
right, was not a matter of the first importance, not worth conceding,
not worth denying. Who is to have the profits of justice?--that is a
momentous question. But if it be decided that they are to go to the
bishop, then the king will have no further care for them:--the bishop
may and must get them for himself. As to the 'justiciables,' it may well
be that they are very indifferent about the matter, not impossible that
the burden of suit will be alleviated if the lord establishes a court of
his own, or if an old court passes into his hands[987].

[Seignorial and ecclesiastical jurisdiction.]

One other question should be raised, even if we can find for it no
certain answer. Is not seignorial jurisdiction very closely connected at
its root with ecclesiastical jurisdiction? Of course in more recent
times the two are thoroughly distinct from each other. The bishop,
besides being a spiritual judge, will be a feudal lord with many
manorial courts and many chartered franchises; but any court that he
holds as a lord will have nothing to do with the court that he holds as
a bishop. The constitution and procedure of the one will differ at every
point from the constitution and procedure of the other. The one belongs
to the temporal order and is subject to the king's court, the other
belongs to the spiritual order and is in no sense below the royal
tribunal. Thus it is when feudal law and canon law have reached their
full stature. But even from the twelfth century we may get a hint that
the distinction has not always been so sharply marked. We may read how
in Henry I.'s day the Bishop of Bath 'with his friends and barons' heard
a cause in which Modbert claimed lands that were held by the monks of
Bath. The proceedings took place under a royal writ and ought, we should
say, to have been in all respects temporal proceedings; but in framing
the judgment two bishops, three archdeacons and several 'clerks and
chaplains' took the leading part, while the lay tenants of the bishop
stood by as witnesses[988]. In this context we must remember that in the
twelfth century the clergy were contending that land given to a church
in frankalmoin is outside the sphere of secular justice[989], and, while
this contention was being urged, it was easily possible that a bishop
should hold an amphibious court:--Over the claim that Modbert is making
the bishop has jurisdiction, either because the monks are holding the
land of him as his tenants, or because that land has been given to God
and the saints by an ancient book which denounced the anathema against
all who should violate it. Going back yet further, we see, at all events
in France, that the claim of the clergy to hold their lands and
seignories exempt from all temporal jurisdiction has been intimately
connected with the claim of the clergy that they themselves need not
answer before a lay tribunal. A learned man has said that the exemption
of the clergy from the temporal courts was 'the first step towards the
feudalization of justice[990].' If our English documents do not make
this plain, if the relations between church and state were more
harmonious in England than elsewhere (and because more harmonious
therefore more indefinite and to the modern student more perplexing),
still we can see that the main idea of the English _fréols-bóc_ is the
liberation of a tract of ground from all secular troubles, all temporal
burdens, all earthly service. The land is dedicated to God and the
saints, or, if it is not dedicated in the strictest sense, it is given
for God's sake and the welfare of the donor's soul; it is within the ban
of the church. And so the men who sit upon the land of the church of
Abingdon, laymen though they be, are _homines Dei_, the men of God[991].
As such, should they not be subject to the jurisdiction of the church?

[Criminal justice of the Church.]

At this point we may profitably remember that the jurisdiction which in
later days appears as the 'criminal jurisdiction' of ecclesiastical
tribunals (the jurisdiction which, for example, those tribunals exercise
when they chastise a man for incest, fornication or perjury) was but
slowly disengaged from the general mass of penal jurisdiction that was
wielded by moots in which the bishop occupied a prominent seat.
Moreover, the bishop's justice did not escape that fiscal taint which
pervaded the whole system of criminal law. As in some cases the king is
entitled to a _wite_, so in others the _wite_ falls to the bishop. For
instance, we see traces of a rude _concordat_, which, when incest or
adultery is committed, subjects the woman to the bishop, the man to the
king[992]; and then from Domesday Book we learn that in the borough of
Lewes the upshot of this partition is that the king will get 8_s._ 4_d._
from the man while the adulteress pays a like sum to the archbishop of
Canterbury[993]. And so ecclesiastical jurisdiction becomes a source of
income, a matter to be fought for and bargained for. The monks of Battle
will claim that within the _banlieu_ of their abbey all the 'forfeitures
of Christianity' belong to them and not to the bishop of
Chichester[994]. What is more, they will connect their claim to purely
temporal justice with their possession of ordeal pits, and here we may
see another link between the hundred-moots and the churches[995]. The
churches have made money out of the ordeal. Long after the English
prelates had been forbidden to hold spiritual pleas in the hundred
courts, Alexander III. was compelled to speak sharply to the archbishop
of Canterbury touching the conduct of archdeacons who exacted thirty
pence from every man or woman who went to the fire or the water for
purgation[996].

[Antiquity of seignorial courts.]

No doubt the theory to which we have been led implies that in the eighth
or even in the seventh century, there were in England 'immunists' who
had jurisdiction within their territories, and further it implies that a
royal grant of land in the ninth and tenth centuries generally included,
and this as a matter of 'common form,' a grant of jurisdiction. We
cannot see either in the history of England or in the history of the
Frankish Empire any reason why we should shrink from these conclusions.
Further, it must be admitted that if the clause of immunity conveys, or
permits the growth of, seignorial jurisdiction, this jurisdiction is of
an exalted kind, for no causes are excepted out of it, unless it be by
the words about the _ángild_, and even those words drop out from the
charters in course of time. Those words about the _ángild_ imply, to our
thinking, that the immunist will have jurisdiction over any dispute
which arises between two men of the enfranchised territory, and also
that if an action against one of these men be brought by a 'foreigner'
in a court outside the precinct, the immunist can obtain 'cognizance' of
the action by appearing in that court and paying the _ángild_. When the
words about the _ángild_ disappear, this means that the immunist is
obtaining a yet further measure of 'liberty':--whenever one of his men
is sued he can 'crave his court' and need not, as a condition for
obtaining it, offer to pay what is due to the plaintiff. The highest
criminal jurisdiction was probably excepted from the grant. Being a
grant of wites, it will not extend to the 'bootless' the 'unemendable'
crimes. But Cnut's attempt to save for himself certain pleas of the
crown looks to us like the effort of a strong king to recover what his
predecessors have been losing[997]. And then Cnut himself and the
Confessor,--the latter with reckless liberality--expressly grant to the
churches just those very reserved pleas of the crown. The result is
that the well endowed immunist of St. Edward's day has jurisdiction as
high as that which any palatine earl of after ages enjoyed. No crime,
except possibly some direct attack upon the king's person, property or
retainers, was too high for him. It is the reconstruction of criminal
justice in Henry II.'s time, the new learning of felonies, the
introduction of the novel and royal procedure of indictment, that reduce
the immunist's powers and leave him with nothing better than an
unintelligible list of obsolete words[998]. In this matter of seignorial
justice England had little to learn from Normandy. On the contrary, the
Norman counts and barons were eager to secure the uncouth phrases which
gave to the English immunist his justice, 'haute, moyenne et basse
justice.'

[Sidenote: Justice, vassalage and tenure.]

Our next question must be whether in the days before the Conquest a
franchise or immunity was the only root of private jurisdiction: in
other words, whether any jurisdiction was implied in the mere relation
between lord and man or between lord and tenant. This also is a question
which will hardly be finally answered if regard be had only to the
English documents. For France it is the question whether the _senior_,
as such, has jurisdiction over his _vassus_, or again, whether he has
jurisdiction over his _vassus_ if, as is usually the case in the
Carlovingian age, the _vassus_ holds a _beneficium_ given to him by his
_senior_. The English dooms which deal with what we may call the
justiciary relationship between lord and man closely resemble in many
respects the Frankish capitularies which touch the same subject; both
sets of documents seem to evade the simple question that we put to them.
But as regards the continent it may here be enough to say that, though
there have been many debates, the current of learning seems to have set
decidedly in favour of the doctrine that neither in Merovingian nor yet
in Carlovingian times had the _senior_, unless he was an immunist, a
jurisdiction over his men. Such a jurisdiction has not been developed
when the midnight hides everything from our view. When the morning
comes, feudal justice stands revealed, though nowhere perhaps is it
governed by that simple principle that ultimately prevailed in England,
namely, that any and every lord, no matter his personal rank or the rank
of his tenement, has civil justice over his tenants.

[The lord's duty when his man is accused.]

The possibility of debate about this matter is afforded by texts of an
earlier age, which at times seem to speak of the lord as 'doing justice'
when a charge is brought against any of his men[999]. Our English run
parallel with the Frankish texts. The state in its organization of
justice and police does not treat the contract between man and lord,
between _senior_ and _vassus_, as a matter of indifference, still less
as a danger to society. We must not think of feudalism or vassalism as
of something which from the very first is anti-national and anarchic. In
its earliest stages it is fostered by the state, by the king, by
national law. The state demands that the lordless man of whom no right
can be had shall have a lord[1000]. It makes the lord responsible for
the appearance of his men in court to answer accusations[1001]. It is
not unlikely that the whole system of frankpledge grows out of this
requirement. In some instances the state may go further; it may treat
the lord, not merely as bound to produce his man, but as responsible for
his man's evil deeds. But, at all events, any one who has a charge to
make against a lord's man must in the first instance demand justice of
the lord. If without making such a demand, making it repeatedly, he
brings the charge before the king, he must pay the same fine that the
lord would have paid had he been guilty of a default of justice[1002].
'Of a default of justice' we say and are compelled to say. It is phrases
such as this that have occasioned controversy. To an ear attuned to the
language of feudalism they seem to imply a seignorial court in which the
lord 'does justice' or 'holds full right' to the demandant. But to all
appearance they have gradually changed their meaning. Originally a lord
'does right' to the demandant by producing in a public court the man
against whom the claim is urged; or he does it by satisfying the claim,
and in that case he seems entitled to exact from his man, not merely a
sum which will compensate the outlay, but also the 'wite' or fine which
in another case would have gone to the king or some national officer. He
has thus 'done justice' and may have the usual profit that comes of
doing justice. Probably we ought to distinguish between a laxer and a
stricter measure of responsibility, between the lord's responsibility
for his men in general and his responsibility for such of his men as
form his _familia_, in the language of later days his _mainpast_; but
our texts do not lay much stress upon this distinction, and, as a matter
of remote history, the relation between lord and man may grow out of the
relation between the head of a household and the members of it[1003].

[Duty of the lord.]

At any rate, in numberless cases the law begins to interpose a third
person, namely, the wrong-doer's lord, between the wrong-doer and the
wronged: it is to this lord that the claimant should in the first
instance address himself. The lord who does his duty by the king and the
nation is he who keeps a tight hold on his men, who chooses them
carefully, who dismisses them if they are bad subjects, who 'does
justice' and 'holds full right' if any of them be accused. Then, on the
other hand, he has the right and duty of 'warranting' his men. If, as
will often happen, the bond between a lord and his man is complicated
with the bond between landlord and tenant, then, as in later days, if
the tenant's title be impeached, he will vouch his lord to warranty and
the lord will defend the action. But, besides this, within limits that
are not well defined, the lord is the man's _defensor_ or _tutor_[1004].
It is expected of him by morality, if not by law, that he will take upon
himself the responsibility for his man's acts if they be not open
crimes. He must stand by his men and see them through all trouble[1005].

[The state requires the lord to 'do right.']

For a while the state approves all this. The dangerous person is, not
the lord, whose wide lands are some security for his good behaviour, but
the lordless man of whom no right can be had. Somehow or another theft
must be suppressed. This is the determination of our strongest kings, of
our wisest 'witan.' That they are raising up over against the state
another power, the power of seignorial justice, they do not see. And,
after all, these 'witan' both laymen and clerks are themselves great
lords, and the king is the lordliest of them all. Thus the foundation
for a feudal jurisdiction is laid. Still between the lord's duty of
producing his men and his right to hold a court of and for his men there
is to our eyes a great gulf. We have seen above that this gulf had not
been bridged even in the Confessor's, even in the Conqueror's day[1006].
Nor to our thinking would it have been bridged but for the creation of
'immunities' upon a grand scale. The first origin of the immunity we
have sought in the efforts of the clergy to obtain lands which should be
utterly exempt from 'all earthly burdens,' 'all worldly business.' But
this effort unites with the stream of tendency that we have now been
watching. The state will be grateful to the church if it will 'hold all
the men of God to right' and do judgment between them and upon them.

[Sidenote: The _land-ríca_ as immunist.]

There is also a long series of dooms going back as far as Æthelstan's
reign which give certain fines and forfeitures to one who is described
as the _land-hláford_ or the _land-ríca_. Remarkable they are, for they
seem to assume that wherever a crime is committed there will be
forthcoming some-one who will answer to the title 'the land-lord' or
'the territorial magnate.' In some sense or another they presuppose that
there is _Nulle terre sans seigneur_. But who is this 'landlord'?
According to our thinking, he is the lord of the hundred or else the
lord who has a charter of immunity comprehending the land in question,
and, if there be no person answering to this description, then he is the
king. In the first place, in certain dooms relating to London we are
told that, when a thief is caught and slain, his property is to be
divided into two parts, of which his wife takes one, while the other is
divided between the king and 'the association' (perhaps we may say 'the
gild') which was engaged in the pursuit and capture; 'but if it be
book-land or bishop's-land, the landlord takes half with the association
in common[1007].' This seems to mean that there will be a lord to share
in the proceeds of the forfeiture if, but only if, the scene of the
capture be land that is within an immunity. It is assumed, not without
warrant in the land-books, that the man who has book-land always, or
almost always, enjoys an immunity, while as to the bishop's-land,
whether the bishop be holding it in demesne or have granted it out to
his thegns, that no doubt will be protected by an ample charter. So
again, in another law 'the lord' receives the thief's _wer_ 'if he [the
lord] is worthy of his wite[1008]': that is to say, the lord receives
it if he is in enjoyment of an immunity which confers upon him a right
to 'wites.' Then again, in several cases we find that the land-lord or
_land-ríca_ shares the proceeds of a fine with the hundred or
wapentake[1009]. This, as we think, points to the fact that the hundreds
and wapentakes are passing into private hands. These laws are severe
laws against criminals. They urge all men to the pursuit of the flying
thief and they hold out a reward to those who are active in this duty.
The men of the hundred are to have half the thief's property, while the
lord (who in many cases will be the lord of the hundred) is to have the
other half. He is to have no more, even though his charter may seem to
give him more. So again, in certain cases an accused person must find
security that he will stand a trial, and the gage is to be given 'half
to the _land-ríca_, half to the wapentake[1010].' This _land-ríca_ is
the lord of the wapentake. In another instance the gage must be given
half to the _land-ríca_ and half to the king's port-reeve[1011]. Then
there are cases in which the 'land-lord' is to take possession of cattle
that have been irregularly acquired and are presumably stolen, and is to
preserve them until their true owner shall make his appearance[1012].
These provisions, which seem the foundation of the 'franchise of waif
and stray,' suggest that the 'land-lord' is the president of the court
into which the owner must go when he wishes to prove his title; were
this not so, the king's reeve would be the person who would have the
custody of the unclaimed beasts. Certainly our explanation of these
passages assumes that a hundred is often in private hands and it assumes
that, when this is not the case, then the king is regarded as the lord
of the hundred. But in so doing it merely assumes that the state of
things revealed by Domesday Book is about a century old. When in that
record we read that the soke of four and a half hundreds in Oxfordshire
'belongs to' the royal manor of Bensington, that the soke of two
hundreds 'belongs to' the royal manor of Headington, that the soke of
other two hundreds 'belongs to' the royal manor of Bampton, we see that
the king is the lord, the proprietor, of those hundreds which have no
other lord[1013]. From the laws now before us we infer that this is no
very new arrangement. But of course it is possible that those laws have
divers cases in view. It may be that within the hundred there is an
immunity, a privileged township or manor, and that a thief is caught
there. Who is to have the profits which arise from the crime and
condemnation? The answer is: Half shall go to the hundred, half to the
_land-ríca_, that is to say, half goes to the doomsmen, or perhaps to
the lord, of the hundred court, half to the immunist. The lord under the
general words of his charter might perchance claim the whole; but, in
order that all the hundredors may have an interest in the pursuit of
thieves, it is otherwise decreed. But where is justice to be done, in
the hundred court or in the court of the immunist? That is a question of
secondary importance to which our laws do not address themselves. Very
probably justice will be done in the hundred court, or again it is not
impossible that a mixed tribunal consisting partly of the men of 'the
franchise,' partly of the men of 'the geldable' will meet upon the
boundary of the immunist's land[1014]. Our main point must be that the
land-lord or _land-ríca_ of these laws is an immunist, or is the king,
who, where there is no immunity, occupies the position of an immunist.

[The immunist's rights over free men.]

We see too that the immunist's rights extend over free men and over free
landowners. If a man is guilty of heathenry he must, if he be a king's
thegn, pay ten half-marks, half to Christ and half to the king, but if
he be another 'landowning man' then he pays six half-marks, half to
Christ and half to the _land-ríca_[1015]. The landowner normally has a
land-lord above him. We see also that the lord is made liable for the
payment of dues which are ultimately exigible from those who are
dwelling within his territory. 'If a king's thegn or other _land-ríca_
makes default in paying Peter's pence, he must pay ten half-marks, half
to Christ and half to the king; if a "towns-man" makes a similar
default, the _land-ríca_ must pay the penny and take an ox from the
defaulter, and if the _land-ríca_ neglects to do this, then Christ and
the king shall receive the full _bót_ of twelve ores[1016].' Such is the
manner in which the lord's power is consolidated. He begins to stand
between his free men and the state, between his free men and the church.

[Delegation of justiciary rights.]

Another consequence of the argument in which we have been engaged is
that, at least a century before the Conquest, the great immunists were
granting immunities to their dependants. From this consequence we shall
not flinch. Bishop Oswald, for example, was an immunist on a splendid
scale, and when he loaned land to a knight and said that the land was to
be 'free from all secular service' save the _trinoda necessitas_, he
loaned not merely land, but immunity and jurisdiction. On one occasion,
adopting a formula that has lately come before us, he said that nothing
was to go out of the land by way of _wite_[1017]. By this we understand
that he gave to his thegn any wites which might thereafter be incurred
by the inhabitants of the manses which were comprised in the loan, and
further that he gave him the right to hold a court. Domesday Book
requires us to believe that such transactions had not been
uncommon[1018].

[Number of immunists.]

Will our attempt to explain the land-books create too many holders of
sake and soke? We do not think so, for we do not think that the number
of land-books should be indefinitely multiplied by our imaginations. If
we look in Domesday Book at the counties which lie south of the Thames,
we shall indeed see that the total amount of land of which the churches
are tenants in chief is very large. But the number of these landowning
churches is small. When we have named seven episcopal and a dozen
abbatial minsters we have disposed of by far the greater bulk of the
church lands in this district, and these minsters are as a general rule
just those which have transmitted to us in cartularies and chronicles
the story of their acquisitions. To churches that were destroyed by the
Danes we may allot some charters; but we should have no warrant for the
supposition that royal diplomata have perished by the hundred and left
no trace behind. In the shires of York, Lincoln, Nottingham, Derby we
might allow sake and soke to every English prelate who appears as a
tenant in chief and yet not raise to twelve[1019] the number of the
ecclesiastical immunists who had lands in this wide region. As to the
lay holders of sake and soke, they were not very many though they held
broad lands; also they belonged for the more part to an exalted
class[1020]. However, here as elsewhere we must admit that every
attempted explanation discloses new problems.


NOTE.

_The Ángild Clause._

     As we have said above, (p. 274), there are certain charters in
     which the clause of immunity makes mention of the _ángild_
     (_pretium pro pretio, singulare pretium_). We will here collect the
     obscure texts in which this difficult term occurs.

     First, however, we will call attention to a passage in Domesday's
     account of Worcestershire (D. B. i. 175 b), which throws some light
     on the matter. Westminster Abbey holds 200 hides and Pershore Abbey
     holds 100 hides. 'The county says that the church of Pershore is
     entitled to church-scot from all the 300 hides [its own 100 and
     Westminster's 200], to wit, from every hide on which a free man
     dwells one load of corn on St. Martin's day, (if he has more hides
     than one, they are free), and if that day be infringed [i.e. if
     payment be not made thereon], he who has kept back the corn must
     pay elevenfold, but first must pay what is due [i.e. he altogether
     pays twelve loads--"God's property and the church's twelve-fold"
     (Æthelb. 1.)]; and the Abbot of Pershore will have a wite
     (_forisfactura_) from his own 100 hides, such as he ought to have
     from his own land; but from the other 200 hides he will have the
     multifold payment of the corn that is due (_habet summam et
     persolutionem_) and the Abbot of Westminster has the wite
     (_forisfacturam_).' For _solvere et persolvere_, see Laws of
     William (Select Charters) c. 5; for _solta et persolta_, see Dial.
     de Scac. ii. 10.

     If then, a Westminster tenant fails to pay church-scot to Pershore,
     he must make _bót_ (very ample _bót_) to Pershore, but his _wite_
     will go to his own lord; nothing is to 'go out to _wite_' from the
     Westminster land. We will now turn to the land-books. We take them
     to be saying in effect that in such a case as that put by Domesday
     the grantee of the immunity is to have his man's wite, though the
     restitutory _bót_ will go to another.

     (i) A.D. 767. Uhtred of the Hwiccas. K. 117 (i. 144); B. i. 286:
     'interdicimus ut si aliquis in hac praenominatam terram aliquid
     foras furaverit alicui solvere aliquid nisi specialiter pretium pro
     pretio ad terminum ad poenam nihil foras.' We should place a stop
     after _terminum_. Then the last clause means 'nothing shall go out
     to wite.' The mention of the _terminus_ suggests a payment at the
     boundary of the immunist's land.

     (ii) [Questionable]. A.D. 799. Cenwulf. K. 176 (i. 213); B. i. 411:
     'de partibus vero et de causis singulare solvere pretium et nihil
     aliud de hac terra.'

     (iii) A.D. 799-802. Pilheard. K. 116 (i. 142); B. i. 284: 'ut ab
     omnium fiscalium redituum operum onerumque seu etiam popularium
     conciliorum vindictis nisi tantum pretium pro pretio liberae sint
     in perpetuum.'

     (iv) A.D. 814. Cenwulf of Mercia for the church of Worcester. K.
     206 (i. 259); B. i. 489: 'exceptis his, expeditione et pontis
     constructione, et singulare pretium foras, nihilque ad poenam
     resolvat.'

     (v) Cenwulf of Mercia for the church of Worcester. K. 215 (i. 271);
     B. i. 507: 'exceptis his, arcis et pontis constructione et
     expeditione et singulare pretium foras adversum aliud; ad poenam
     vero neque quadrantem minutam foras resolvat.'

     (vi) A.D. 822. Ceolwulf of Mercia for Archbishop Wilfred. K. 216
     (i. 272); B. i. 508: 'liberata permaneat in aefum nisi is quattuor
     causis quae nunc nominabo, expeditione contra paganos ostes, et
     pontes constructione sui [=seu] arcis munitione vel destructione in
     eodem gente, et singulare pretium foras reddat, secundum ritam
     gentes illius, et tamen nullam penam foras alicui persolvat.'

     (vii) A.D. 831. Wiglaf of Mercia for the archbishop. K. 227 (i.
     294); B. i. 556: 'nisi his tantum causis, expeditione et arcis
     munitione pontisque constructione et singulare pretium contra
     alium.'

     (viii) A.D. 835. Egbert of Wessex for Abingdon. K. 236 (i. 312); B.
     i. 577: 'de illa autem tribulatione que witereden nominatur sit
     libera, nisi tamen singuli pretium solverit ut talia accipiant.
     Fures quoque quos appellant weregeldðeofas si foras rapiautur,
     pretium eius dimidium illi aecclesiae, et dimidium regi detur, et
     si intus rapitur totum reddatur ad aecclesiam.'

     (ix) A.D. 849. Berhtwulf of Mercia for his thegn Egbert. K. 262
     (ii. 34); B. ii. 40: 'Liberabo ab omnibus saecularibus servitutibus
     ... nisi in confinio rationem reddant contra alium.'

     (x) A.D. 855. Burhred of Mercia for the church of Worcester. K. 277
     (ii. 58); B. ii. 88: 'nisi tantum quattuor causis, pontis et arcis,
     et expeditione contra hostes, et singulare pretium contra alium, et
     ad poenam nihil foras resolvat.

     (xi) A.D. 883. Æthelred of Mercia for Berkeley. K. 313 (ii. 110);
     B. ii. 172: 'and þæt ic þæt mynster fram æghwelcum gafolum gefreoge
     þe to þiode hlafarde belimpeð, littles oððe micles, cuðes ge
     uncuðes, butan angilde wið oþrum and fæsten gewerce and fyrd socne
     and brycg geweorce ... æghwelces þinges to freon ge wið cyning, ge
     wið ealdorman, ge wið gerefan æghwelces þeodomes, lytles and
     micles, butan fyrd socne and fæsten geworce and brycg geworce and
     angylde wið oðrum and noht ut to wite.'

     (xii) A.D. 888. Æthelred of Mercia for a thegn. K. 1068 (v. 133);
     B. ii. 194: 'liberam hanc terram describimus ab omnibus causis nisi
     singulare pretium contra aliud ponat et modum ecclesiae.' Is the
     _modus_ [or _modius_] of the church the church-scot?

     In a few other cases the immunity mentions penal causes,
     'witeræden,' and no express exception is made of the _ángild_.
     Thus:--

     (xiii) A.D. 842. Æthelwulf for a thegn. K. 253 (ii. 16); B. ii. 13:
     'ut regalium tributum et principali dominacione et vi coacta
     operacione et poenalium condicionum furis comprehensione ... secura
     ... permaneat.'

     (xiv) [Questionable]. A.D. 844. Æthelwulf for Malmesbury; one of
     the documents reciting the famous 'donation.' K. 1048 (v. 93); B.
     ii. 26; H. & S. iii. 630: 'ut sit tutus et munitus ab omnibus
     saecularibus servitutis, fiscis regalibus, tributis maioribus et
     minoribus, quod nos dicimus witereden.'

     (xv) A.D. 877. Bp. Tunbert. K. 1063 (v. 121); B. ii. 163: 'a
     taxationibus quod dicimus wite redenne.'

     The most detailed and at the same time the most hopelessly obscure
     information that we get is such as can be obtained from two
     Abingdon charters.

     A.D. 821. Cenwulf. K. 214 (i. 269); B. i. 505; H. & S. iii. 556:
     'Si pro aliquo delicto accusatur homo Dei aecclesiae ille custos
     solus cum suo iuramento si audeat illum castiget. Sin autem ut
     recipiat aliam iusticiam huius vicissitudinis conditionem praefatum
     delictum cum simplo praetio componat.'

     A.D. 835. Egbert. K. 236 (i. 312); B. i. 577; H. & S. iii. 613. The
     same clause, but with _alienam_ instead of _aliam_. Also the
     following:--'De illa autem tribulatione que witereden nominatur sit
     libera nisi tamen singuli [_corr._ singulare?] pretium solverit ut
     talia accipiant [accipiat?].'

     This is very dark. Our best guess as to its meaning is this:--If a
     man of God, that is, a tenant of the church, is accused of crime,
     the _custos_ of the church (this may mean the abbot, but more
     probably points to his reeve) may by his single oath purge the
     accused. But if he dare not do this, then he (the abbot or reeve)
     may pay the _bót_ that is claimed, and by performing this condition
     he may obtain a transfer (_vicissitudo_) of the cause and do what
     other justice remains to be done, i.e. he may exact the _wite_. So
     in the second charter the abbot may pay the _bót_, the _singulare
     pretium_, and so obtain a right to exact the wite:--he makes the
     payment _ut talia_ [i.e. _witereden_] _accipiat_. In guessing that
     _vicissitudo_ points to a transfer of a suit, we have in mind the
     manner in which the Leges Henrici, 9 § 4, speak of the 'transition'
     of causes from court to court. The case that is being dealt with by
     these charters we take to be one in which an outsider in a
     'foreign' court sues one of the abbot's tenants. The abbot can
     swear away the charge, or if he dares not do this, can obtain
     cognizance of the cause (in the language of a later day _potest
     petere curiam suam_) and therewith the right to the _wite_, but
     must in this case pay the restitutory _bót_, or rather, perhaps,
     find security that this shall be paid to the plaintiff in case he
     is successful. The clause may also imply that a multiple _bót_ can
     not be exacted from the immunist's men, e.g. such a _bót_ as we saw
     the Abbot of Pershore exacting from the Westminster men; but this
     is a minor question.


FOOTNOTES:

  [934] Adams, The Anglo-Saxon Courts of Law (Essays in Anglo-Saxon
        Law, p. 1). Hallam, Middle Ages (ed. 1837), vol. ii. p. 416,
        says that of the right of territorial jurisdiction 'we meet
        frequent instances in the laws and records of the
        Anglo-Saxons, though not in those of early date.' The one
        charter older than Edward the Confessor that he cites is one
        of the Croyland forgeries. Kemble's opinion seems to have
        fluctuated; Saxons, i. 177 note, ii. 397, Cod. Dipl. i.
        xliv-xlvii. K. Maurer, Krit. Ueberschau, ii. 57, thinks that
        the existence of the private court is proved for Cnut's
        reign, but not for any earlier time. Dr Stubbs, Const. Hist.
        i. 119, seems to doubt whether it can be traced far beyond
        the days of Cnut. Zinkeisen, Die Anfänge der
        Lehngerichtsbarkeit in England (1893, a Berlin doctoral
        dissertation), criticizes Mr Adams's theory.

  [935] Essays, pp. 43-4.

  [936] See above, p. 84.

  [937] K. 853 (iv. 208); E. 343.

  [938] The clearest instance is in the Waltham charter, K. 813 (iv.
        154), but some details of this are not beyond suspicion. See
        also the writs for Westminster, K. 828 (iv. 191), 857 (iv.
        213); Ordn. Facs. vol. ii. pl. 9.

  [939] Charter for St. Edmund's, K. 1346 (vi. 205). See the account
        of Bury St. Edmunds in D. B. ii. 372: 'et quaudo in hundreto
        solvitur ad geltum 1 lib. tunc inde exeunt 60 den. ad victum
        monachorum.'

  [940] First printed from a copy in the MacDurnan Gospels by J. O.
        Westwood in Palaeographia Sacra, with a facsimile, plate 11.
        Accepted by Kemble and printed by him in Archaeological
        Journal, xiv. 61; Earle, 232; Freeman, Norman Conquest, ii.
        52.

  [941] See the writ for St. Paul's, K. 1319 (vi. 183). Mr Adams (p.
        44) stigmatizes this as an evident forgery; but the reasons
        for this severe judgment are not apparent. See also K. 1321
        (vi. 190), and the Latin writ of Harthacnut K. 1330 (vi. 192),
        which may have a genuine basis.

  [942] Cnut, II. 12 (Schmid, p. 276).

  [943] Thus if a statute requires written and signed evidence of an
        agreement, a letter in which the writer says, 'True, I made
        such and such an agreement, but I am not going to keep it,'
        may be evidence enough; see _Bailey_ v. _Sweeting_, 9 C. B. N.
        S. 843.

  [944] Brunner, Carta und Notitia (Commentationes in honorem T.
        Mommsen); Brunner, Zur Rechtsgeschichte der Röm. u. Germ.
        Urkunde.

  [945] Both the Angevin charter and the Angevin letters patent are in
        what we call 'writ-form.' The main formal difference is that
        the charter professes to be witnessed by a number of the
        king's councillors, while _Teste Meipso_ does for letters
        patent. This distinction is coming to the front about the year
        1200.

  [946] K. 731 (iv. 9); T. 308.

  [947] K. 642 (iii. 203); compare D. B. i. 41.

  [948] The Conqueror's charter for Exeter reproduced in Ordnance
        Facsimiles, vol. ii. is a fine specimen of the solemn charters
        referred to above. A considerable number of specimens, genuine
        and spurious (for our present purpose a forgery is almost as
        valuable as a true charter), will be found in the Monasticon,
        e.g. i. 174, Rufus for Rochester; i. 266, Rufus for Bath; ii.
        109-111, 126, Henry I. for Abingdon; i. 163, Henry I. for
        Rochester; ii. 65-6, Henry I. for Evesham; ii. 267, Henry I.
        for Bath; ii. 539, Henry I. for Exeter; iii. 448, Henry I. for
        Malvern; vi. (1) 247, Henry I. for Merton; iii. 406, Stephen
        for Eye. Nor was this solemn form employed only by kings:--See
        Monast. ii. 385-6, Earl Hugh for Chester; iii. 404, Robert
        Malet for Eye; v. 121, Hugh de la Val for Pontefract; v. 167,
        William of Mortain for Montacute; v. 190, Simon of Senlis for
        St. Andrew Northampton; v. 247, Stephen of Boulogne for
        Furness; v. 316, Richard Earl of Exeter for Quarr; v. 628,
        Ranulf of Chester for Pulton. As to Normandy, see the charters
        in the Neustria Pia and the Gallia Christiana. A charter of
        Henry II. for Fontenay recites a charter by which the
        ancestors of Jordan Tesson founded the abbey with the consent
        of Duke William, also a charter of Duke William, 'quae cartae
        crucibus sunt signatae secundum antiquam consuetudinem';
        Neustria Pia, p. 80; Gallia Christiana, xi. Ap. col. 82. It is
        probable that during the Norman reigns the king's cross was
        considered more valuable even than the king's seal; Monast.
        iv. p. 18, Henry I. says, 'hanc donationem confirmo ego
        Henricus rex et astipulatione sanctae crucis et appositione
        sigilli mei'; Ibid. ii. 385-6, Earl Hugh confirms a gift 'non
        solum sigillo meo sed etiam sigillo Dei omnipotentis, id est,
        signo sanctae crucis.' It is not implied in our text that
        every specimen of each of the two forms of instrument that we
        have mentioned will always display all the characteristics
        that have been noticed. There is no reason, for example, why
        in a solemn charter the king should not speak in the past
        tense of the act of gift, and as a matter of fact he does so
        in some of the Anglo-Saxon books, while, on the other hand, an
        instrument which begins with a salutation may well have the
        words of gift in the present tense (this is by no means
        uncommon in Anglo-Norman documents); nor of course is it
        necessary that an instrument in writ-form should be
        authenticated by a seal instead of a cross. Again, a solemn
        charter with crosses and pious recitals may begin with a
        salutation. We merely point out that the diplomata of Edward
        the Confessor and his Norman successors tend to conform to two
        distinct types. As to this matter see the remarks of Hickes,
        Dissertatio Epistolaris, p. 77; Hardy, Introduction to Charter
        Rolls, xiv., xxxvi.

  [949] The curious formula, Schmid, App. XI., already has 'ne sace ne
        socne.' This seems to suppose that it is a common thing for a
        man to have sake and soke over his land.

  [950] R. H. ii. 231.

  [951] R. H. ii. 458.

  [952] D. B. i. 172 b.

  [953] R. H. ii. 283.

  [954] Hale, Worcester Register, pp. xxx, 21 b; K. Appendix, 514 (vi.
        237); Hickes, Dissertatio Epistolaris, i. 86; at the end of
        his dissertation Hickes gives a facsimile of the instrument.

  [955] A record of 825 (H. & S. iii. 596-601) mentions a place 'in
        provincia Huicciorum' called Oslafeshlau; the editors of the
        Councils say 'Oslafeshlau is probably the original name of the
        hundred which now, either from some act of St. Oswald or by an
        easy corruption, is called Oswaldslaw.' One of Oswald's books
        (K. iii. 160) mentions 'Oswald's hlaw' among the boundaries of
        Wulfringtune, i.e. Wolverton, a few miles east of Worcester.
        It is very likely that the true name of the hundred is
        Oswald's hlaw, i.e. Oswald's hill, not Oswald's law, though
        the mistake was made at an early time. But the story told by
        the charter as to the fusion of three old hundreds is
        corroborated by Domesday, and in the thirteenth century one of
        the three courts was still held at Wimborntree.

  [956] But Dr Stubbs, Const. Hist. i. 118, relies on part of this
        charter and it is not like ordinary forger's work. If, as is
        highly probable, there has been some 'improvement' of the
        charter, such improvement seems to have favoured, not the
        church of Worcester as against the king, but the monks as
        against the bishop.

  [957] 'cum tolle et teame, saca et socne, et infangenetheof, et
        proprii iuris debitum transgressionis, et poenam delicti quae
        Anglice dicitur ofersæwnesse, et gyltwyte.'

  [958] D. B. i. 172 b: 'Ecclesia S. Mariae de Wirecestre habet unum
        hundret quod vocatur Oswaldeslau in quo iacent ccc. hidae. De
        quibus episcopus ipsius ecclesiae a constitutione antiquorum
        temporum habet omnes redditiones socharum et omnes
        consuetudines inibi pertinentes ad dominicum victum et regis
        servitium et suum, ita ut nullus vicecomes ullam ibi habere
        possit querelam, nec in aliquo placito, nec in alia qualibet
        causa. Hoc testatur totus comitatus.'

  [959] Another example is Edgar's charter for Ely, A.D. 970 K. 563
        (iii. 56), which bestows the soke over the two hundreds which
        lie within the Isle, five hundreds in Essex, and all other
        lands of the monastery. Kemble was inclined to accept the
        A.-S. version of the charter. It purports to be obtained by
        bishop Æthelwold and, if genuine, is closely connected with
        the Oswaldslaw charter; both testify to unusual privileges
        obtained by the founders of the new monasticism.

  [960] E.g. K. 1298 (vi. 149), 'Dis is seo freolsboc to ðan mynstre
        æt Byrtune.'

  [961] E.g. K. 277 (ii. 58), 278 (ii. 60).

  [962] A.D. 875; K. 306 (ii. 101); B. ii. 159.

  [963] Unsuspected charters of the seventh and eighth centuries are
        so few, that we hardly dare venture on any generalities about
        their wording. But already in a charter attributed to 674, E.
        p. 4, Brit. Mus. Facs. iv. 1, something very like the 'common
        form' of later days appears; it appears also in a charter of
        A.D. 691-2, K. 32 (i. 35), E. p. 12, of which we have but a
        fragmentary copy, and before the end of the eighth century it
        appears with some frequency; see e.g. Offa's charter of 774,
        K. 123 (i. 150): 'sit autem terra illa libera ab omni
        saecularis rei negotio, praeter pontis, arcisve restaurationem
        et contra hostes communem expeditionem.'

  [964] Occasionally the contrast is expressly drawn, e.g. by
        Æthelbald, K. 90 (i. 108): 'ut ab omni tributo vectigalium
        operum onerumque _saecularium_ sit libera ... tantum ut Deo
        omnipotenti ex eodem agello _aecclesiasticae_ servitutis
        famulatum inpendat.'

  [965] See above, p. 229.

  [966] Privilege of Wihtræd, A.D. 696-716, Haddan and Stubbs, iii.
        238: 'Adhuc addimus maiorem libertatem. Inprimis Christi
        ecclesiae cum omnibus agris ad eam pertinentibus, similiter
        Hrofensi ecclesiae cum suis, caeterisque praedictis omnibus
        ecclesiis Dei nostri, subiciantur pro salute animae meae,
        meorumque praedecessorum, et pro spe caelestis regni ex hac
        die, et deinceps concedimus et donamus ab omnibus
        difficultatibus saecularium servitutis, a pastu Regis,
        principum, comitum, nec non ab operibus, maioribus minoribusve
        gravitatibus: et ab omni debitu vel pulsione regum tensuris
        liberos eos esse perpetua libertate statuimus.' See also the
        act by which Æthelbald confirmed this privilege in 742, H. &
        S. iii. 340, B. i. 233-6. According to one version of this
        act, the _trinoda necessitas_ is, according to another it is
        not, excepted. The learned editors of the Councils speak of
        'the suspicions common to every record that notices the
        Privilege of Wihtræd.' We are treading on treacherous ground.
        See also the less suspicious Act of Æthelbald, A.D. 749, H. &
        S. iii. 386: 'Concedo ut monasteria et aecclesiae a publicis
        vectigalibus et ab omnibus operibus oneribusque, auctore Deo,
        servientes absoluti maneant, nisi sola quae communiter fruenda
        sunt, omnique populo, edicto regis, facienda iubentur, id est,
        instructionibus pontium, vel necessariis defensionibus arcium
        contra hostes, non sunt renuenda.'

  [967] A.D. 1066, Edward the Confessor for Westminster, K. 828 (iv.
        191): 'scotfre and gavelfre.'

  [968] Kemble, Codex, vol. i. Introduction liii-lvi., collects some
        of the best instances. Offa for a valuable consideration frees
        certain lands belonging to the church of Worcester from
        _pastiones_; 'nec non et trium annorum ad se pertinentes
        pastiones, id est sex convivia, libenter concedendo largitus
        est': K. 143 (i. 173), B. i. 335.

  [969] A.D. 904, K. 1084 (v. 157).

  [970] A.D. 826, Egbert for Winchester, K. 1037 (v. 81): 'Volo etiam
        ut haec terra libera semper sit ... nullique serviat nisi soli
        episcopo Wentano.'

  [971] K. 1346 (vi. 205). Compare Fustel de Coulanges, L'Immunité
        Mérovingienne, Revue historique, xxiii. 21.

  [972] E.g. K. 1117 (v. 231): 'tribus semotis causis a quibus nullus
        nostrorum poterit expers fore'; K. v. pp. 259, 283, 334.

  [973] To this class belong the foundation charter of Evesham
        mentioned above, p. 235, and Offa's charter for St. Albans, K.
        161 (i. 195), which Haddan and Stubbs, iii. 469, are unwilling
        to decisively reject. Cenwulf's charter for Abingdon, K. 214
        (i. 269), H. & S. iii. 556, sets a limit to the amount of
        military service that is to be demanded. Æthelstan's charter
        for Crediton, recently printed by Napier and Stevenson,
        Crawford Charters, p. 5, frees land from the _trinoda
        necessitas_.

  [974] E.g. K. i. p. 274; ii. pp. 14, 15, 24, 26, 83; v. pp. 53, 62,
        81.

  [975] Observe how Bede describes a gift made by Oswy in the middle
        of the seventh century; Hist. Eccl. iii. 24 (ed. Plummer, i.
        178): 'donatis insuper duodecim possessiunculis terrarum in
        quibus _ablato studio militiae terrestris_, ad exercendam
        militiam caelestem etc.'

  [976] The passages in the dooms which mention it are collected in
        Schmid, Glossar, s. v. _ángild_. They are discussed by Maurer,
        Krit. Ueberschau, ii. 32.

  [977] The clauses of immunity which mention the _ángild_ will be
        collected in a note at the end of this section.

  [978] K. 210 (i. 265); B. i. 497; H. & S. iii. 585. The clause in
        question is not found in every copy of the charter. If some
        monk is to be accused of tampering with the book, there seems
        just as much reason for charging him with having omitted a
        clause which limited, as for charging him with inserting a
        clause which recognized, the jurisdiction of the church.

  [979] These clauses will be discussed in a note at the end of this
        section.

  [980] A.D. 841, K. 250 (ii. 14): 'Liberabo ab omnibus saecularibus
        servitutibus ... regis et principis vel iuniorum eorum, nisi
        in confinio reddant rationem contra alium.' Compare K. 117 (i.
        144): 'nisi specialiter pretium pro pretio ad terminum.' Also
        Leg. Henr. 57 § 1: 'Si inter compares vicinos utrinque sint
        querelae, conveniant ad divisas.' Ibid. 57 § 8: 'aliquando in
        divisis vel in erthmiotis.' Ibid. 9 § 4: 'Et omnis causa
        terminetur, vel hundreto, vel comitatu, vel hallimoto soccam
        habentium, vel dominorum curiis, vel divisis parium.' See
        above, p. 97.

  [981] A.D. 828, K. 223 (i. 287): 'cum furis comprehensione intus et
        foris'; A.D. 842, K. 253 (ii. 16) 'ut ... furis comprehensione
        ... terra secura et immunis ... permaneat'; A.D. 850, K. 1049
        (v. 95) a similar form; A.D. 858, K. 281 (ii. 64), a similar
        form; A.D. 869, K. 300 (ii. 95), a similar form; A.D. 880, K.
        312 (ii. 109): 'cum furis comprehensione.' See Kemble's
        remarks, C. D. vol. i. p. xlvi.

  [982] Hist. Eng. Law, i. 565.

  [983] K. 1084 (v. 157); B. ii. 272: 'Christo concessi ut episcopi
        homines tam nobiles quam ignobiles in praefato rure degentes
        hoc idem ius in omni haberent dignitate quo regis homines
        perfruuntur regalibus fiscis commorantes, et omnia saecularium
        rerum iudicia ad usus praesulum exerceantur eodem modo quo
        regalium negotiorum discutiuntur iudicia.' Similar words occur
        in a confirmation by Edgar, K. 598 (iii. 136), which Kemble
        rejects. This contains an English paraphrase of the Latin
        text.

  [984] Compare K. 821 (iv. 171): 'swa freols on eallan thingan eall
        swa thaes cinges agen innland.'

  [985] Hist. Eng. Law, i. 570.

  [986] Hist. Eng. Law, i. 580.

  [987] Few questions in Frankish history have been more warmly
        contested than this, whether the immunist had a jurisdiction
        within his territory. On the one hand, it has been contended
        that there is no evidence older than 840 that he exercised
        jurisdiction even as between the inhabitants of that
        territory. On the other hand, it has been said that already in
        614 he has civil jurisdiction in disputes between these
        inhabitants, besides a criminal jurisdiction over them, which
        however does not extend to the graver crimes. A few references
        will suffice to put the reader in the current of this
        discussion; Löning, Geschichte des Deutschen Kirchenrechts,
        ii. 731; Brunner, D. R. G. ii. 298; Schröder, D. R. G. 174;
        Beauchet, Histoire de l'organisation judiciaire en France, 74;
        Beaudoin, Étude sur les origines du regime féodal (Annales de
        l'enseignement supérieur de Grenoble, vol. i. p. 43); Fustel
        de Coulanges, L'Immunité Mérovingienne (Revue Historique,
        xxii. 249, xxiii. I). One of the most disputed points is the
        character of the court held by an abbot, which is put before
        us by the very ancient Formulae Andecavenses, a collection
        attributed to the sixth or, at the latest, to the early years
        of the seventh century. It has been asserted and denied that
        this abbot of Angers is exercising the powers given to him by
        an immunity; some have said that he, or rather his steward, is
        merely acting as an arbitrator; Brunner, Forschungen, 665,
        explains him as one of the _mediocres iudices_ of decaying
        Roman law. On the whole, the balance of learning is inclining
        to the opinion that, even in the Merovingian time, there were
        great churches and other lords with courts which wielded power
        over free men, and that the 'immunities,' even if they were
        not intended to create such courts, at all events made them
        possible, or, as Fustel says, consecrated them.

  [988] Madox, Hist. Exch. i. 109; Bigelow, Placita Anglo-Normannica,
        114.

  [989] Hist. Eng. Law, i. 224-30.

  [990] Nissl, Der Gerichtsstand des Clerus im Fränkischen Reich, 247.

  [991] K. 214 (i. 269); 236 (i. 312).

  [992] Edw. & Guth. 4; Leg. Henr. II, § 5.

  [993] D. B. i. 26.

  [994] Chron. de Bello, 26-7: 'Et si forisfacturae Christianitatis
        quolibet modo infra leugam contigerint, coram abbate
        definiendae referantur. Habeatque ecclesia S. Martini
        emendationem forisfacturae; poenitentiam vero reatus sui rei
        ab episcopo percipiant.'

  [995] Battle Custumals (Camden Soc.), 126: 'Septem hundreda non
        habent fossas nisi apud Wy, et ideo habemus ij. denarios:
        Archiepiscopus tamen et Prior de novo trahunt homines suos ad
        fossas: Abbas de S. Augustino non habet.'

  [996] c. 3, X. 5, 37: 'Accepimus ... quod archidiaconi Conventrensis
        episcopatus ... in examinatione ignis et aquae triginta
        denarios a viro et muliere quaerere praesumunt.'

  [997] Cnut II. 12-15.

  [998] Hist. Eng. Law, i. 564.

  [999] Beaudoin, op. cit. p. 94 ff.

  [1000] Æthelstan, II. 2.

  [1001] Konrad Maurer, Krit. Ueberschau, ii. 30 ff.

  [1002] Æthelstan, II. 3. Observe how in the Latin version 'se
         blaford the rihtes wyrne' becomes 'dominus qui rectum
         difforciabit.'

  [1003] K. Maurer, Krit. Ueberschau, ii. 32, 40, 41. Ine, 22, is of
         great importance on account of its antiquity.

  [1004] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' See
         above, p. 71.

  [1005] Leg. Henr. 57, § 8; 82, §§ 4, 5, 6.

  [1006] See above, p. 89.

  [1007] Æthelstan, VI. (Iudicia Civitatis Lundoniae), 1.

  [1008] Æthelred, I. 1, § 7.

  [1009] Edgar, I. 2, 3; III. 7; IV. 2, § 8; Æthelred, I. 1; III. 3,
         4, 7.

  [1010] Æthelred, III. 3, 4.

  [1011] Æthelred, III. 7.

  [1012] Edgar, IV..= 2, § 11; Æthelred, I. 3.

  [1013] D. B. i. 154. See above, p. 92.

  [1014] See above, p. 275.

  [1015] Northumbrian Priests' Law, Schmid, App. II. 48-9.

  [1016] Ibid. 57, 58. See also the texts which give the lord a share
         with the bishop in the penalty for neglect to pay tithe, viz.
         Edgar, II. 3; Æthelred, VIII. 8; Cnut, I. 8.

  [1017] K. 498 (ii. 386).

  [1018] See above, p. 100.

  [1019] The Archbishop of York, the bishops of Durham, Chester,
         Lincoln and (for one manor) Salisbury, the abbots of York,
         Peterborough, Ramsey, Croyland, Burton and (for one manor)
         Westminster.

  [1020] D. B. i. 280 b; i. 337.



§ 4. _Book-land and Loan-land._


[The book and the gift.]

We can not say that from the first the gift of book-land establishes
between the donee and the royal donor any such permanent relation as
that which in later times is called tenure. What the king gives he
apparently gives for good and all. In particular, a gift of land to a
church is 'an out and out gift'; nay more, it is a dedication. Still,
even within the sphere of piety and alms, we sometimes find the notion
that in consequence of the gift the donee should do something for the
donor. Cnut frees the lands of the church of Exeter from all burdens
except military service, bridge-repair and 'assiduous prayers[1021],'
and thus the title by which the churches hold their lands is already
being brought under the rubric _Do ut des_. Turning to the books granted
to laymen, we see that, at all events from the middle of the tenth
century onwards, they usually state a _causa_, or as we might say 'a
consideration,' for the gift. Generally the gift is 'an out and out
gift.' Words are used which expressly tell us that the donee is to enjoy
the land during his life and may on his death give it to whomsoever he
chooses. Nothing is said about his paying rent or about his rendering in
the future any service to the king in return for the land. The
'consideration' that is stated in the instrument is, if we may still use
such modern terms, 'a past consideration.' The land comes rather as a
reward than as a retaining fee. Sometimes indeed the thegn pays money to
the king and is in some sort a buyer of the land, though the king will
take credit for generosity and will talk of giving rather than of
selling[1022]. More often the land comes as a reward to him for
obedience and fidelity or fealty. Already the word _fidelitas_ is in
common use; we have only to render it by _fealty_ and the transaction
between the king and his thegn will be apt to look like an infeudation,
especially when the thegn is described by the foreign term
_vassallus_[1023]. Even the general rule that the king is rewarding a
past, rather than stipulating for a future fealty, is not unbroken. Thus
as early as 801 we find Cenwulf of Mercia and Cuthræd of Kent giving
land to a thegn as a perpetual inheritance 'but so that he shall remain
a faithful servant and unshaken friend to us and our magnates[1024].' So
again, in 946 King Edmund gives land to a faithful _minister_ 'in order
that while I live he may serve me faithful in mind and obedient in deed
and that after my death he may with the same fealty obey whomsoever of
my friends I may choose[1025].' The king, it will be seen, reserves the
right to dispose by will of his thegn's fealty. A continuing relation is
established between the king and his successors in title on the one
hand, the holder of the book-land and his successors in title on the
other.

[Book-land and service.]

However, as already said, the gift supposes that the personal
relationship of lord and thegn already exists between the donor and the
donee before the gift is made. This relationship was established by a
formal ceremony; the thegn swore an oath of fealty, and it is likely
that he bent his knee and bowed his head before his lord[1026]. The
Normans saw their homage in the English commendation[1027]. The fidelity
expected of the thegn is not regarded as a debt incurred by the receipt
of land. And if the king does not usually stipulate for fidelity, still
less does he stipulate for any definite service, in particular for any
definite amount of military service. The land is not to be free of
military service:--this is all that is said. However, to say this is to
say that military service is already a burden on land. Already it is
conceivable--very possibly it is true--that some of the lands of the
churches have been freed even from this burden[1028]. What is more, if
we may believe the Abingdon charters, the ninth century is not far
advanced before the king is occasionally making bargains as to the
amount of military service that the lands of the churches shall render.
Abingdon need send to the host but twelve vassals and twelve
shields[1029]. Likewise we see that on the eve of the Conquest, though
other men who neglected the call to arms might escape with a fine of
forty shillings, it was the rule, at least in Worcestershire, that the
free man who had sake and soke and could 'go with his land whither he
would' forfeited that land if he was guilty of a similar default[1030].
With this we must connect those laws of Cnut which say that the man who
flees in battle, as well as the man who is outlawed, forfeits his
book-land to the king, no matter who may be his lord[1031].

[Military service.]

Such rules when regarded from one point of view may well be called
feudal. Book-land having been derived from, is specially liable to
return to the king. It will return to him if the holder of it be guilty
of shirking his military duty or of other disgraceful crime. To this we
may add that if these rules betray the fact that the holder of this
king-given land may none the less have commended himself and his land to
some other lord against whose claims the king has to legislate, thereby
they disclose a feudalism of the worst, of the centrifugal kind. The
ancient controversy as to whether 'the military tenures' were 'known to
the Anglo-Saxons' is apt to become a battle over words. The old power of
calling out all able-bodied men for defensive warfare was never
abandoned; but it was not abandoned by the Norman and Angevin kings. The
holder of land was not spoken of as holding it by military service; but
it would seem that in the eleventh century the king, save in some
pressing necessity, could only ask for one man's service from every five
hides, and the holder of book-land forfeited that land if he disobeyed a
lawful summons[1032]. Whether a man who will lose land for such a cause
shall be said to hold it by military service is little better than a
question about the meaning of words. At best it is a question about
legal logic. We are asked to make our choice (and yet may doubt whether
our ancestors had made their choice) between the ideas of misdemeanour
and punishment on the one hand and the idea of reentry for breach of
condition on the other.

[Escheat of book-land.]

The same vagueness enshrouds the infancy of the escheat _propter
defectum tenentis_. Already in 825 a king tells how he gave land to one
of his _praefecti_ who died intestate and without an heir, 'and so that
land by the decree of my magnates was restored to me who had before
possessed it[1033].' Here we seem to see the notion that when a gift has
spent itself, when there is no longer any one who can bring himself
within the words of donation, the given land should return to the giver.
In another quarter we may see that when the king makes a gift he does
not utterly abandon all interest in the land that is given. Cenwulf of
Mercia in a charter for Christ Church at Canterbury tells us that King
Egbert gave land to a certain thegn of his who on leaving the country
gave it to the minster; but that Offa annulled this gift and gave away
the land to other thegns, saying that it was unlawful for a thegn to
give away without his lord's witness (_testimonio_) the land given to
him by his lord[1034]. Cenwulf restored the land to the church; but he
took money for it, and he does not say that Offa had acted illegally.
There is much to show that the 'restraint on alienation' is one of the
oldest of the 'incidents of tenure.' Our materials do not enable us to
formulate a general principle, but certain it is that the holders of
book-land, whether they be laymen or ecclesiastics, very generally
obtain the consent of the king when they propose to alienate their land
either _inter vivos_ or by testament. We may not argue from this to any
definite condition annexed to the gift, or to any standing relationship
between the donor and the donee like the 'tenure' of later times. After
all, it is a very natural thought that a reward bestowed by the king
should not be sold or given away. The crosses and stars with which
modern potentates decorate their _fideles_, we do not expect to see
these in the market[1035]. The land that the king has booked to his
thegn is an 'honour' and the giver will expect to be consulted before it
passes into hands that may be unworthy of it. It may be just because the
gift of book-land is made by the king and corroborated by all the powers
of church and state, that the book is conceived as exercising a
continuous sway over the land comprised in it. The book, it has well
been said, is the _lex possessionis_ of that land[1036]. It can make the
land descend this way or that way, and the land will come back to the
king if ever the power of the book be spent. What is more, from the
first we seem to see a germ of our famous English rule that if a gift be
made without 'words of inheritance' the gift will endure only during the
life of the donee:--will endure, we say, for a gift is no mere act done
once for all but a force that endures for a longer or a shorter period.
Certain it is that most of the charters are careful to say that the gift
is not thus to come to an end but is to go on operating despite the
donee's death[1037].

[Alienation of book-land.]

And even when, as is generally the case, the book made in favour of a
lay-man says that the donee is to have the power of leaving the land to
whomsoever he may please, or to such heirs as he may choose, we still
must doubt whether his testamentary power is utterly unrestrained,
whether he will not have to consult the royal donor when he is making
his will. The phenomena which we have here to consider are very obscure,
because we never can be quite certain why it is that a testator is
seeking the king's aid. We have to remember that the testament is an
exotic, ecclesiastical institution which is likely to come into
collision with the ancient folk-law. From an early time the church was
striving in favour of the utmost measure of testamentary freedom, for
formless wills, for nuncupative wills[1038]. The very largeness of its
claims made impossible any definite compromise between church-right and
folk-right. So far as we can see, no precise law is evolved as to when
and how and over what a man may exercise a power of testation. The
church will support testaments of the most formless kind; on the other
hand, the heirs of the dead man will endeavour, despite the anathema, to
break his will, and sometimes they will succeed[1039]. Consequently the
testator will endeavour to obtain the crosses of the bishops and the
consent of the king. He has already a book which tells him that he may
leave the land to a chosen heir; but if he be prudent he will not trust
to this by itself. Kings change their minds.

[The heriot and the testament.]

Then the law about heriots complicates the matter. The heriot has its
origin in the duty of the dying thegn or of his heirs to return to his
lord the arms which that lord has given or lent to him. We have to use
some such vague phrase as 'given or lent'; we dare not speak more
precisely[1040]. A time comes when the king provides his thegn, no
longer with arms, but with land; still the heriot is rendered[1041]. In
the tenth century this render is closely connected with the exercise of
testamentary power. The thegn offers a heriot with a prayer that 'his
will may stand.' He presents swords and money to the king in order that
he may be worthy of his testament[1042]. When we find such phrases as
this, we can not always be certain that the land of which the testator
is going to dispose is land over which a book purports to give him
testamentary power; he may be hoping that the king's aid will be
sufficient to enable him to bequeath the unbooked land that he
holds[1043]. In other cases he may be endeavouring to dispose of lands
that have merely been 'loaned' to him for his life by the king. But this
will hardly serve to explain all the cases, and we so frequently find
the holder of book-land applying for the king's consent when he is going
to make an alienation of it _inter vivos_ that we need not marvel at
finding a similar application made when he is about to execute a
testament[1044].

[The gift and the loan.]

This having been said, we shall not be surprised to find that in ancient
times the difference between a gift of land and a loan of land was not
nearly so well marked as it would be by modern law. The loan may be
regarded as a temporary gift, the gift as a very permanent, if not
perpetual, loan. We know how this matter looks in the law of Bracton's
age. By feoffment one gives land to a man for his life, or one gives it
to him and the heirs of his body, or to him and his heirs: but in any
case, the land may come back to the giver. The difference between the
three feoffments is a difference in degree rather than in kind; one will
operate for a longer, another for a shorter time; but, however absolute
the gift may be, the giver never parts with all his interest in the
land[1045]. Or we may put it in another way:--in our English law
usufruct is a temporary _dominium_ and _dominium_ is a usufruct that may
be perpetual. Or, once more, adopting the language of modern statutes,
we may say that the tenant for life is no usufructuary but 'a limited
owner.' We are accustomed to bring this doctrine into connexion with
rules about dependent tenure:--the donor, we say, retains an interest in
the land because he is the tenant's lord. But, on looking at the ancient
land-books, we may find reason to suspect that the confusion of loans
with gifts and gifts with loans (if we may speak of confusion where in
truth the things confounded have never as yet been clearly
distinguished) is one of the original germs of the rule that all land is
held of the king. After all, the king--and he is by far the greatest
giver in the country and his gifts are models for all gifts--never can
really part with all the rights that he has in the land that he gives,
for he still will be king of it and therefore in a sense it will always
be part of his land. To maintain a sharp distinction between the rights
that he has as king and the rights that he has as landlord,
jurisprudence is not as yet prepared.--But we must look at the land-loan
more closely.

[The _precarium_.]

Foreign historians have shown how after the barbarian invasions one
single form of legal thought, or (if we may borrow a term from them),
one single legal 'institute' which had been saved out of the ruins of
Roman jurisprudence, was made to do the hard duty of expressing the most
miscellaneous facts, was made to meet a vast multitude of cases in
which, while one man is the owner of land, another man is occupying and
enjoying it by the owner's permission. This institute was the
_precarium_. Originally but a tenancy at will, it was elaborated into
different shapes which, when their elaboration had been completed, had
little in common. For some reason or another one begs (_rogare_) of a
landowner leave to occupy a piece of land; for some reason or another
the prayer is granted, the grantor making a display of generosity and
speaking of his act as a 'benefit' (_beneficium_), an act of good-nature
and liberality. An elastic form is thus established. The petitioner may,
or may not, promise to pay a rent to his benefactor; the benefactor may,
or may not, engage that the relationship shall continue for a fixed term
of years, or for the life of the petitioner or for several lives.
Usually this relationship between petitioner and benefactor is
complicated with the bond of patronage: the former has commended himself
to the latter, has come within his power, his protection, his trust
(_trustis_), has become his _fidelis_, his _homo_. At a later time the
inferior is a _vassus_, the superior is his _senior_, for the word
_vassus_, which has meant a menial servant, spreads upwards. Then the
_precarium_, as it were, divides itself into various channels. One of
its streams encompasses the large province of humble tenancies, wherein
the peasants obtain land from the churches and other owners on more or
less arduous conditions, or reserve a right to occupy so long as they
live the lands that they have given to the saints. Another stream sweeps
onward into the domain of grand history and public law. The noble
obtains a spacious territory, perhaps a county, from the king by way of
'benefaction'; the _precarium_ becomes the _beneficium_, the
_beneficium_ becomes the _feudum_[1046]. The king can not prevent the
_beneficia_, the _feuda_, from becoming hereditary.

[The English land-loan.]

The analogous English institution was the _lǽn_ or, as we now say, loan.
If in translating a German book we render _Lehn_ by _fief_, _feud_, or
_fee_, we should still remember that a _Lehn_ is a loan. And no doubt
the history of our ancient land-loans was influenced by the history of
the _precarium_. We come upon the technical terms of continental law
when King Æthelbald forbids any one to beg for a benefit or benefice out
of the lands that have been given to the church of Winchester[1047].
There was need for such prohibitions. Edward the Elder prayed the bishop
of this very church to lend him some land for his life; the bishop
consented, but expressed a fervent hope that there would be no more of
such requests, which in truth were very like commands. It would seem
that some of the English kings occasionally did what had been done on a
large scale in France by Charles Martel or his sons, namely, they
compelled the churches to grant benefices to lay noblemen[1048]. When
bishop Oswald of Worcester declared how he had been lending lands to his
thegns, he used a foreign, technical term: '_beneficium_ quod illis
_praestitum_ est[1049].' But it is clear that the English conception of
a land-loan was very lax; it would blend with the conception of a gift.
To describe transactions of one and the same kind, if such verbs as
_commodare_ and _lǽnan_ and _lǽtan_ were used[1050], such words as
_conferre_, _concedere_, _tribuere_, _largiri_ and _donare_ were also
used[1051]. A loan is a temporary gift, and the nature of the
transaction remains the same whether the man to whom the loan is made
does, or does not, come under the obligation of paying rent or
performing services.

[Loans of church lands to the great.]

Unfortunately our materials only permit us to study one branch of the
loan; the aristocratic branch we may call it. No doubt the lords,
especially the churches, are from an early time letting or 'loaning'
lands to cultivators. Specimens of such agricultural leases we do not
see and cannot expect to see, for they would hardly be put into writing.
But at an early time we do see the churches loaning lands, and wide
lands, to great men. This is a matter of much importance. One other
course in the feudal edifice is thus constructed. We have seen the
churches interposed between the king and the cultivators of the soil;
the churches have become landlords with free land-holders under them.
And now it is discovered that the churches have a superiority which they
can lend to others. We see already a four-storeyed structure. There are
the cultivator, the church's thegn, the church, the king. Very great men
think it no shame to beg boons from the church. Already before 750 the
bishop of Worcester has granted five manses to 'Comes Leppa' for
lives[1052]; before the century is out the abbot of Medeshamstead has
granted ten manses to the 'princeps' Cuthbert for lives[1053]. In 855
the bishop of Worcester gives eleven manses to the ealdorman of the
Mercians and his wife for their lives[1054]; in 904 a successor of his
makes a similar gift[1055]. But we have seen that the king himself was
not above taking a loan from the church. Indeed powerful men insist on
having loans, and the churches, in order to protect themselves against
importunities, obtain from the king this among their other immunities,
namely, that no lay man is to beg boons from them, or that no lease is
to be for longer than the lessee's life[1056]. In such cases we may
also see the working of a second motive: the church is to be protected
against the prodigality of its own rulers. The leases made by the
prelates seem usually to have been for three lives. This compass is so
often reached, so seldom exceeded[1057] that we may well believe that
the English church had accepted as a rule of sound policy, if not as a
rule of law, the novel of Justinian which set the limit of three lives
to leases of church lands[1058].

[The consideration for the loan.]

Occasionally the lease is made in consideration of a sum of money paid
down; occasionally the recipient of the land comes under an express
obligation to pay rent. An early example shows us the abbot of
Medeshamstead letting ten manses to the 'princeps' Cuthbert for lives in
consideration of a gross sum of a thousand shillings and an annual
_pastus_ or 'farm' of one night[1059]. The bishop of Worcester early in
the ninth century concedes land to a woman for her life on condition
that she shall cleanse and renovate the furniture of the church[1060].
On the other hand, when land is 'loaned' to a king or a great nobleman,
this may be in consideration of his patronage and protection; the church
stipulates for his _amicitia_[1061]. We may say that he becomes the
_advocatus_ of the church, and the patronage exercised by kings and
nobles over the churches is of importance, though perhaps it was not
quite so serious a matter in England as it was elsewhere.

[St. Oswald's loans.]

But from our present point of view by far the most interesting form that
the loan takes is the loan to the thegn or the _cniht_. Happily it falls
out that we have an excellent opportunity of studying this institution.
We recall the fact that by the gifts of kings and underkings the church
of Worcester had become entitled to vast tracts of land in
Worcestershire and the adjoining counties. Now between the years 962 and
992 Bishop Oswald granted at the very least some seventy loans
comprising in all 180 manses or thereabouts[1062]. In almost all cases
the loan was for three lives. In a few cases the recipient was a kinsman
of the bishop, in a few he was an ecclesiastic; far more generally he is
described as 'minister meus,' 'fidelis meus,' 'cliens meus,' 'miles
meus,' 'my knight,' 'my thegn,' 'my true man.' When the 'cause' or
consideration for the transaction is expressed it is 'ob eius fidele
obsequium' or 'pro eius humili subiectione atque famulatu': a recompense
is made for fealty and service. Any thing that could be called a
stipulation for future service is very rare. A definite rent is seldom
reserved[1063]. Sometimes the bishop declares that the land is to be
free from all earthly burdens, save service in the host and the repair
of bridges and strongholds. To those excepted imposts he sometimes adds
church-scot, or the church's rent, without specifying the amount.
Sometimes he seems to go further and to say that the land is to be free
from everything save the church's rent (_ecclesiasticus census_)[1064].
In so doing he gives a hint that the recipients of the lands will have
something to pay to, or something to do for the church. Were it not for
this, we might well think that these loans were made solely in
consideration of past services, of obedience already rendered, and that
at most the recipient undertook the vague obligation of being faithful
and obsequious in the future.

[St. Oswald's letter to Edgar.]

But happily for us St. Oswald was a careful man of business and put on
record in the most solemn manner the terms on which he made his
land-loans. The document in which he did this is for our purposes the
most important of all the documents that have come down to us from the
age before the Conquest[1065]. It takes the form of a letter written to
King Edgar. We will give a brief and bald abstract of it[1066]:--'I am
(says the bishop) deeply grateful to you my lord, for all your
liberality and will remain faithful to you for ever. In particular am I
grateful to you for receiving my complaint and that of God's holy Church
and granting redress by the counsel of your wise men[1067]. Therefore I
have resolved to put on record the manner in which I have been granting
to my faithful men for the space of three lives the lands committed to
my charge, so that by the leave and witness of you, my lord and king, I
may declare this matter to the bishops my successors, and that they may
know what to exact from these men according to the covenant that they
have made with me and according to their solemn promise. I have written
this document in order that none of them may hereafter endeavour to
abjure the service of the church. This then is the covenant made with
the leave of my lord the king and attested, roborated and confirmed by
him and all his wise men. I have granted the land to be held under me
(_sub me_) on these terms, to wit, that every one of these men shall
fulfil the whole law of riding as riding men should[1068], and that they
shall pay in full all those dues which of right belong to the church,
that is to say _ciricsceott_, _toll_, and _tace_ or _swinscead_, and all
other dues of the church (unless the bishop will excuse them from any
thing), and shall swear that so long as they possess the said land they
will be humbly subject to the commands of the bishop. What is more, they
shall hold themselves ready to supply all the needs of the bishop; they
shall lend their horses; they shall ride themselves, and be ready to
build bridges and do all that is necessary in burning lime for the work
of the church[1069]; they shall erect a hedge for the bishop's hunt and
shall lend their own hunting spears whenever the bishop may need them.
And further, to meet many other wants of the bishop, whether for the
fulfilment of the service due to him or of that due to the king, they
shall with all humility and subjection be obedient to his domination and
to his will[1070], in consideration of the benefice that has been loaned
to them, and according to the quantity of the land that each of them
possesses. And when the term for which the lands are granted has run
out, it shall be in the bishop's power either to retain those lands for
himself or to loan them out to any one for a further term, but so that
the said services due to the church shall be fully rendered. And in case
any shall make wilful default in rendering the aforesaid dues of the
church, he shall make amends according to the bishop's _wite_[1071] or
else shall lose the gift and land that he enjoyed. And if any one
attempt to defraud the church of land or service, be he deprived of
God's blessing unless he shall make full restitution. He who keeps this,
let him be blessed; he who violates this, let him be cursed: Amen. Once
more, my lord, I express my gratitude to you. There are three copies of
this document; one at Worcester, one deposited with the Archbishop of
Canterbury and one with the Bishop of Winchester.'

[Feudalism in Oswaldslaw.]

Now we may well say that here is feudal tenure. In the first place, we
notice a few verbal points. The recipient of the _lǽn_ has received a
_beneficium_ from the bishop, and if he will not hold the land _de
episcopo_, none the less he will hold it _sub episcopo_. Then he is the
bishop's _fidelis_, his _fidus homo_, his 'hold and true man,' his
thegn, his knight, his soldier, his _minister_, his _miles_, his
_eques_. Then he takes an oath to the bishop, and seemingly this oath
states in the most energetic terms his utter subjection to the bishop's
commands. What is more, he swears to be faithful and obedient because he
has received a _beneficium_ from the bishop, and the amount of his
service is measured by the quantity of land that he has received. Then
again, we see that he holds his land by service; if he fails in his
service, at all events if he denies his liability to serve, he is in
peril of losing the land, though perhaps he may escape by paying a
pecuniary fine. As to the services to be rendered, if we compare them
with those of which Glanvill and Bracton speak, they will seem both
miscellaneous and indefinite; perhaps we ought to say that they are all
the more feudal on that account. The tenant is to pay the church-scot,
the _ecclesiasticus census_ of other documents. This, as we learn from
Domesday Book, is one load (_summa_) of the best corn from every hide of
land, and unless it be paid on St. Martin's day, it must be paid
twelve-fold along with a fine[1072]. He must pay toll to the bishop when
he buys and sells; he must pay _tace_, apparently the pannage of a later
time, for his pigs. He must go on the bishop's errands, provide him with
hunting-spears, erect his 'deer-hedge' when he goes to the chase. There
remains a margin of unspecified services; for he must do what he is told
to do according to the will of the bishop. But, above all, he is a
horseman, a riding man and must fulfil 'the law of riding.' For a moment
we are tempted to say 'the law of chivalry.' This indeed would be an
anachronism; but still he is bound to ride at the bishop's command. Will
he ride only on peaceful errands? We doubt it. He is bound to do all
the service that is due to the king, all the forinsec service[1073] we
may say. A certain quantity of military service is due from the bishop's
lands; his thegns must do it. As already said, the obligation of serving
in warfare is not yet so precisely connected with the tenure of certain
parcels of land as it will be in the days of Henry II., but already the
notion prevails that the land owes soldiers to the king, and probably
the bishop has so arranged matters that his territory will be fully
'acquitted' if his _equites_, his _milites_ take the field. Under what
banner will they fight? Hardly under the sheriff's banner. Oswald is
founding Oswaldslaw and within Oswaldslaw the sheriff will have no
power. More probably they will follow the banner of St. Mary of
Worcester. This we know, that in the Confessor's reign one Eadric was
steersman of the bishop's ship and commander of the bishop's
troops[1074]. This also we know, that in the suit between the churches
of Worcester and of Evesham that came before the Domesday commissioners,
one of the rights claimed by the bishop against the abbot was that the
men of two villages, Hamton and Bengeworth, were bound to pay geld and
to fight along with the bishop's men[1075]. And then, suppose that Danes
or Welshmen or Englishmen make a raid on the bishop's land, is it
certain that he will communicate with the ealdorman or the king before
he calls upon his knights to defend and to avenge him? Still we must not
bring into undue relief the military side of the tenure.

[Oswald's riding men.]

These men may be bound to fight at the bishop's call, but fighting is
not their main business; they are not professional warriors. They are
the predecessors not of the military tenants of the twelfth century, but
of the _radchenistres_, and _radmanni_ of Domesday Book, the
_rodknights_ of Bracton's text, the thegns and drengs of the northern
counties who puzzle the lawyers of the Angevin time. Point by point we
can compare the tenure of these _ministri_ and _equites_ of the tenth
with that of the thegns and drengs of the twelfth and thirteenth
centuries and at point after point we find similarity, almost identity.
They pay rent; they have horses and their horses are at the service of
their lord; they must ride his errands, carry his stores, assist him in
the chase; they must fight if need be, but the exact nature of this
obligation is indefinite[1076]. Dependent tenure is here and, we may
say, feudal tenure, and even tenure by knight's service, for though the
English _cniht_ of the tenth century differs much from the knight of the
twelfth, still it is a change in military tactics rather than a change
in legal ideas that is required to convert the one into the other. As
events fell out there was a breach of continuity; the English thegns and
drengs and knights either had to make way for Norman _milites_, or, as
sometimes happened, they were subjected to Norman _milites_ and
constituted a class for which no place could readily be found in the new
jurisprudence of tenures. But had Harold won the day at Hastings and at
the same time learnt a lesson from the imminence of defeat, some
peaceful process would probably have done the same work that was done by
forfeitures and violent displacements. The day for heavy cavalry and
professional militancy was fast approaching when Oswald subjected his
tenants to the _lex equitandi_.

[Heritable loans.]

Yet another of those feudal phenomena that come before us in the twelfth
century may easily be engendered by these loans; we mean the precarious
inheritance, the right to 'relieve' from the lord the land that a dead
man held of him[1077]. In speaking of Oswald's loans as 'leases for
three lives' we have used a loose phrase which might lead a modern
reader astray. Oswald does not let land to a man for the lives of three
persons named in the lease and therefore existing at the time when the
lease is made; rather he lets the land to a man and declares that it
shall descend to two successive heirs of his. The exact extent of the
power that the lessee has of instituting an heir, in other words of
devising the land by testament, instead of allowing it to be inherited
_ab intestato_, we need not discuss; suffice it that the lessee's rights
may twice pass from ancestor to heir, or from testator to devisee[1078].
Now such a lease may cover the better part of a century. A time will
come when the land ought to return to the church that gave it; but for
some eighty years it will have 'been in one family' and twice over it
will have been inherited. Is it very probable that the bishop will be
able to oust the third heir? Will he wish to do so, if three generations
of thegns or knights have faithfully served the church? May we not be
fairly certain that this third heir will get the land on the old terms,
if he will 'recognize' the church's right to turn him out? As a matter
of fact we see that Oswald's successors have great difficulty in
recovering the land that he has let[1079]. In the middle ages he who
allows land to descend twice has often enough allowed it to become
heritable for good and all. Despite solemn charters and awful anathemas
he will have to be content with a relief[1080].

[Wardship and marriage.]

But at least, it will be said, there was no 'right of wardship and
marriage.' We can see the beginning of it. In 983 Oswald let five manses
to his kinsman Gardulf. Gardulf is to enjoy the land during his life;
after his death his widow is to have it, if she remains a widow or if
she marries one of the bishop's subjects[1081]. So the bishop is already
taking an interest in the marriages of his tenants; he will have no
woman holding his land who is married to one who is not his man. And
then Domesday Book tells us how in the Confessor's day one of Oswald's
successors had disposed of an heiress and her land to one of his
knights[1082].

[Seignorial jurisdiction.]

Still, it will be urged, the feudalism here displayed is imperfect in
one important respect. These tenants of the church of Worcester hold
their land under contracts cognizable by the national courts; they do
not hold by any special feudal law, they are not subject to any feudal
tribunal. Now if when we hear of 'feudalism,' we are to think of that
orderly, centralized body of land-law which in Henry III.'s day has
subjected the whole realm to its simple but mighty formulas, the
feudalism of Oswald's land-loans is imperfect enough. But then we must
remind ourselves that never in this country does feudal law (the
_Lehnrecht_ of Germany) become a system to be contrasted with the
ordinary land law (_Landrecht_)[1083], and also we must observe that
already in Oswald's day the thegns of the church of Worcester were in
all probability as completely subject to a private and seignorial
justice as ever were any freeholding Englishman. What court protected
their tenure, what court would decide a dispute between them and the
bishop? Doubtless--it will be answered--the hundred court. But in all
probability that court, the court of the great triple hundred of
Oswaldslaw was already in the hand of the bishop who gave it its
name[1084]. The suits of these tenants would come into a court where the
bishop would preside by himself or his deputy, and where the doomsmen
would be the tenants and justiciables of the bishop--not indeed because
tenure begets jurisdiction (to such a generalization as this men have
not yet come)--but still, the justice that these tenants will get will
be seignorial justice.

[Oswaldslaw and England at large.]

Now how far we should be safe in drawing from Oswald's loans and
Oswaldslaw any general inferences about the whole of England is a
difficult question. It is clear that the bishop was at great pains to
regulate the temporal affairs of his church. He obtained for his leases
the sanction of every authority human and divine, the consent of the
convent, the ealdorman, the king, the witan; he deposited the covenant
with the king, with the archbishop of Canterbury, with the bishop of
Winchester. Also we must remember that he had lived in a Frankish
monastery, and that, at least in things monastic, he was a radical
reformer. Nor should it be concealed that in Domesday Book the entries
concerning the estates of the church of Worcester stand out in bold
relief from the monotonous background. Not only is the account of the
hundred of Oswaldslaw prefaced by a statement which in forcible words
lays stress on its complete subjection to the bishop, but in numerous
cases the tenure of the nobler and freer tenants within that hundred is
described as being more or less precarious:--they do whatever services
the bishop may require; they serve 'at the will of the bishop'; no one
of them may have any lord but the bishop; they are but tenants for a
time and when that time is expired their land will revert to the
church[1085].

[Inferences from Oswald's loans.]

However, we should hesitate long before we said that Oswald's land-loans
were merely foreign innovations. His predecessors had granted leases for
lives; other churches were granting leases for lives, and the important
document that he sent to the king proves to us that we can not trust our
Anglo-Saxon lease or land-book to contain the whole of the terms of that
tenure which it created. Suppose that this unique document had perished,
how utterly mistaken an opinion should we have formed of the terms upon
which the thegns and knights of the church of Worcester held their
lands! We should have heard hardly a word of money payments, no word of
the oath of subjection, of the _lex equitandi_, of the indefinite
obligation of obeying whatever commands the bishop might give. It may
well be that the thegns and knights of other churches held on terms very
similar to those that the bishop of Worcester imposed. Even if we think
that Oswald was an innovator, we must remember that the adviser of
Edgar, the friend of Dunstan, the reformer of the monasteries, the man
who for thirty years was Bishop of Worcester and for twenty years
Archbishop of York, was able to make innovations on a grand scale. What
such a man does others will do. The yet safer truth that what Oswald did
could be done, should not be meaningless for us. In the second half of
the tenth century there were men willing to take land on such terms as
Oswald has described.

[Economic position of Oswald's tenants.]

These men were not peasants. The land that Oswald gave them they were
not going to cultivate merely by their own labour and the labour of
their sons and their slaves, though we are far from saying that they
scorned to handle the plough. We have in Domesday Book a description of
their holdings, and it is clear that in the Confessor's day, when some
of Oswald's leases must yet have been in operation, the lessees had what
we should describe as small manors with villeins and cottagers upon
them. Thus, for example, Eadric the Steersman, who led the bishop's
host, had an estate of five hides which in 1086 had three _villani_ and
four _bordarii_, to say nothing of a priest, upon it[1086]. Like enough,
what the bishop has been 'loaning' to his thegns has been by no means
always 'land in demesne,' it has been 'land in service': in other words,
a superiority, a seignory. Thus, as we say, another course of the feudal
edifice is constructed. Above the cultivator stands the thegn or the
_cniht_, who himself is a tenant under the bishop and who owes to the
bishop services that are neither very light nor very definite. We can
not but raise the question whether the cultivators, if we suppose them
to be in origin free landowners, can support the weight of this
superstructure without being depressed towards serfage. But we are not
yet in a position to deal thoroughly with this question[1087].

[Loan-land and book-land.]

We must now return for a moment to the relation that exists between the
loan and the book. _Lǽnland_ is contrasted with _bócland_; but
historians have had the greatest difficulty in discovering the principle
that lies beneath this distinction[1088]. Certainly we can not say that,
while book-land is created and governed by a charter, there will be no
written instrument, no book, creating and governing the _lǽn_. We have
books which in unambiguous terms tell us that they bear witness to
loans. Nor can we say that the holder of book-land will always have a
perpetual right to the land, 'an estate in fee simple,' an estate to him
and his heirs. In many cases a royal charter will create a smaller
estate than this; it will limit the descent of the land to the heirs
male of the donee. Moreover the written leases for three lives of which
we have been speaking are 'books.' Thus in 977 Oswald grants three
manses to his thegn Eadric for three lives, and the charter ends with a
statement which tells us in English that Oswald the archbishop is
booking to Eadric his thegn three hides of land which Eadric formerly
held as _lǽnland_[1089]. A similar deed of 985 contains a similar
statement; five hides which Eadric held as _lǽnland_ are now being
booked to him, but booked only for three lives[1090]. In yet another of
Oswald's charters we are told that the donee is to hold the land by way
of book-land as amply as he before held it by way of _lǽnland_[1091].
After this it is needless to say that book-land may be burdened with
rents and services. But indeed it would seem that Oswald's thegns and
knights held both book-land and _lǽnland_. It was book-land because it
had been booked to them, and yet very certainly it had only been loaned
to them[1092].

[Book-land in the dooms.]

Let us then turn to the laws and read what they say about book-land. Two
rules stand out clearly. Æthelred the Unready declares that every _wíte_
incurred by a holder of book-land is to be paid to the king[1093]. Cnut
declares that the book-land of the outlaw, whosesoever man he may be,
and of the man who flies in battle is to go to the king[1094]. These
laws seem to put before us the holder of book-land as standing by reason
of his land in some specially close relationship to the king. If we may
use the language of a later day, the holder of book-land is a tenant in
chief of the king, and this even though he may have commended himself to
someone else. On the other hand, if the holder of _lǽnland_ commits a
grave crime, his land reverts, or escheats or is forfeited to the man
who made the _lǽn_[1095]. And yet, though this be so and though Oswald's
thegns will in some sense or another be holding book-land, we may be
quite certain that should one of them be outlawed the bishop will claim
the land. Indeed he is careful about this as about other matters. Often
he inserts in his charter a clause saying that, whatever the grantee may
do, the land shall return unforfeited to the church.

[Relation of loan-land to book-land.]

Any solution of these difficulties must be of a somewhat speculative
kind. We fashion for ourselves a history of the book and of the
land-loan which runs as follows:--The written charter first makes its
appearance as a foreign and ecclesiastical novelty. For a very long time
it is used mainly, if not solely, as a means of endowing the churches
with lands and superiorities. It is an instrument of a very solemn
character armed with the anathema and sanctioned by the crosses of those
who can bind and loose. Usually it confers rights which none but kings
can bestow, and which even kings ought hardly to bestow save with the
advice of their councillors. A mass of rights held under such a charter
is book-land, or, if we please, the land over which such rights are
exercisable, is book-land for the grantee. In course of time similar
privileges are granted by the kings to their thegns, though the book
does not thereby altogether lose its religious traits. It is long before
private persons begin to use writing for the conveyance or creation of
rights in land. The total number of the books executed by persons who
are neither kings, nor underkings, nor prelates of the church, was, we
take it, never very large; certainly the number of such books that have
come down to us is very small.

[Royal and other books.]

Nothing could be more utterly unproved than the opinion that in
Anglo-Saxon times written instruments were commonly used for the
transfer of rights in land. Let us glance for a moment at the documents
that purport to have come to us from the tenth century. Genuine and
spurious we have near six hundred. But we exclude first the grants made
by the kings, secondly Oswald's leases and a few similar documents
executed by other prelates, thirdly a few testamentary or
quasi-testamentary dispositions made by the great and wealthy. Hardly
ten documents remain. Let us observe their nature. The ealdorman and
lady of the Mercians make a grant to a church in royal fashion[1096];
but in every other case in which we have a document which we can
conceive as either transferring rights in land or as being formal
evidence of such a transfer, the consent of the king or of the king and
witan to the transaction is stated, and with hardly an exception the
king executes the document[1097]. Even the holder of book-land who
wished to alienate it, for example, the thegn who wished to pass on his
book-land to a church, did not in general execute a written conveyance.
One of three courses was followed. The donor handed over his own book,
the book granted by the king, and apparently this was enough; or the
parties to the transaction went before the king, delivered up the old
and obtained a new book; or the donor executed some brief
instrument--sometimes a mere note endorsed on the original book--stating
how he had transferred his right[1098]. But in any case, according to
the common usage of words, a usage which has a long history behind it,
it is only the man who is holding under a royal privilege who has
'book-land.' It is to this established usage that the laws refer when
they declare that the king and no lower lord is to have the _wíte_ from
the holder of book-land, and that when book-land is forfeited it is
forfeited to the king. For all this, however, if you adhere to the
letter, book-land can only mean land held by book. Now from a remote
time men have been 'loaning' land, and prelates when they have made a
loan have sometimes executed a written instrument, a book. A prelate can
pronounce the anathema and the recipient of the _lǽn_ may well wish to
be protected, not merely by writing, but by Christ's rood. When
therefore Bishop Oswald grants a written lease to one of his thegns who
heretofore has been in enjoyment of the land but has had no charter to
show for it, we may well say that in the future this thegn will have
book-land, though at the same time he has but loan-land. We have no
scruple about charging our ancestors with having a confused terminology.
The confusion is due to a natural development; 'books' were formerly
used only for one purpose, they are beginning to be used for many
purposes, and consequently 'book-land' may mean one thing in one
context, another in another. We may say that every one who holds under a
written document holds book-land, or we may still confine the name
'book' to that class of books which was at one time the only class. The
king's charters, the king's privileges, have been the only books; they
are still books in a preeminent sense. Just so in later days men will
speak of 'tenure in capite' when what they really mean is 'tenure in
capite of the crown by military service[1099].'

[The gift and the loan.]

But there is a deeper cause of perplexity. Once more we must repeat that
the gift shades off into the loan, the loan into the gift. The loan is a
gift for a time. It is by words of donation ('I give,' 'I grant') that
Oswald's _beneficia_ are _praestita_ to his knights and thegns.
Conversely, the king's most absolute gift leaves something owing and
continuously owing to him; it may be prayers, it may be fealty and
obedience. And having considered by how rarely good fortune it is that
we know the terms of Oswald's land-loans, how thoroughly we might have
mistaken their nature but for the preservation of a single document, we
shall be very cautious in denying that between many of the holders of
book-land and the king there was in the latter half of the tenth century
a relationship for which we have no other name than feudal tenure. If
Oswald's charters create such a tenure, what shall we say of the
numerous charters whereby Edred, Edwy, Edgar and Æthelred grant land to
their thegns in consideration of fealty and obedience? Must not these
thegns fulfil the whole _lex equitandi_; will they not lose their lands
if they fail in this service? True that the rights conferred upon them
are not restrained within the compass of three lives but are heritable
_ad infinitum_. But does this affect the character of their tenure? Can
we--we can not in more recent times--draw any inference from 'the
_quantum_ of the estate' to 'the quality of the tenure'? On the whole,
we are inclined to believe that the practice of loaning lands affected
the practice of giving lands, there being no sharp and formal
distinction between the gift and the loan, and that when Edward the
Confessor died no great injustice would have been done by a statement
that those who held their lands by royal books held their lands 'of' the
king. This at least we know, that the formula of dependent tenure ('_A_
holds land of _B_') was current in the English speech of the Confessor's
days and that some of the king's thegns held their land 'of' the
king[1100]. We may guess that those old terms 'book-land' and
'loan-land' would soon have disappeared even from an unconquered
England, for it was becoming plain that the book bears witness to a
loan. A new word was wanted; that word was _feudum_.

FOOTNOTES:

  [1021] K. 729 (iv. 3).

  [1022] It is noticeable that the verb _syllan_ usually means 'to
         give.' Words such as _vendere_ are avoided.

  [1023] A.D. 941, K. 390 (ii. 234) condemned by Kemble: 'amabili
         vassallo meo.'--A.D. 952, K. 431 (ii. 302): 'cuidam
         vassallo.'--A.D. 956? K. 462 (ii. 338): 'meo fideli
         vassallo.'--A.D. 967, K. 534 (iii. 11): 'meo fideli
         vassallo.'--A.D. 821, K. 214 (i. 269): 'expeditionem cum 12
         vassallis et cum tantis scutis exerceant.' After the Norman
         Conquest the word is very rare in our legal texts.

  [1024] K. 179 (i. 216): 'eo videlicet iure si ipse nobis et
         optimatibus nostris fidelis manserit minister et inconvulsus
         amicus.'

  [1025] K. 408 (ii. 263): 'eatenus ut vita comite tam fidus mente
         quam subditus operibus mihi placabile obsequium praebeat, et
         meum post obitum cuicunque meorum amicorum voluero eadem
         fidelitate immobilis obediensque fiat.'

  [1026] The terms of the oath are given in Schmid, App. X.

  [1027] See above, p. 69.

  [1028] See above, p. 69.

  [1029] K. 214 (i. 269); H. & S. iii. 556.

  [1030] D. B. i. 172; see above, p. 159.

  [1031] Cnut, II. 13, 77.

  [1032] See above, p. 156.

  [1033] K. 1035 (v. 76). The charter is not beyond suspicion, but
         Kemble has received, and the editors of the Councils (H. & S.
         iii. 607) have refused to condemn it.

  [1034] K. 1020 (v. 60); B. i. 409; H. & S. iii. 528.

  [1035] See Brunner, Die Landschenkungen der Merowinger und der
         Agilolfinger, Forschungen, p. 6: 'He who receives an order
         acquires in the insignia of the order which are delivered to
         him an ownership of an extremely attenuated kind. He can not
         give them away or sell them or let them out or give them in
         dowry. When he dies they go back to the giver.' We are not
         aware of any English decision on such matters as these. In a
         charter for Winchester (B. ii. 238) Edward the Elder is
         represented as saying that the land that he gives to the
         church is never to be alienated. If, however, the monks must
         sell or exchange it, then they may return it 'to that royal
         family by whom it was given to them.'

  [1036] Brunner, Zur Rechtsgeschichte d. röm. u. germ. Urkunde, p.
         190; Hist. Eng. Law, ii. 12.

  [1037] See Brunner, Landschenkungen, Forschungen, p. 1. In this
         paper Dr Brunner appealed to our English law, in order that
         he might settle the famous controversy between Waitz and Roth
         as to the character of the gifts of land made by the
         Merovingians. On p. 5 he denies that our rule about 'words of
         inheritance' should be called feudal. Its starting point is
         the principle that the quality [an English lawyer would
         add--and the quantity also] of the 'estate' (_Besitzrecht_)
         can be determined by the donor's words, by a _lex donationis_
         imposed by the donor on the land.

  [1038] Brunner, Geschichte der Urkunde, p. 200.

  [1039] Heming's Cartulary, i. 259. 'Post mortem autem eius, filius
         eius ... testamentum patris sui irritum faciens....' Ibid. p.
         263: 'Brihtwinus ... eandem terram Deo et Sanctae Mariae
         obtulit, eundemque nepotem suum monachum fecit. Filius eius
         etiam, Brihtmarus nomine, pater ipsius iam dicti Edwini
         monachi, cum heres patris extitisset, ... ipsam ... villam
         monasterio dedit.' Hist. Eng. Law, ii. 250.

  [1040] Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292.

  [1041] Crawford Charters (ed. Napier and Stevenson), pp. 23, 126.
         Early in cent. xi. a bishop in his testament declares how he
         gives 'to each retainer his steed which he had lent him.'

  [1042] See the wills collected by Thorpe; p. 501: Gift to the queen
         for her mediation that the will may stand. Ibid. p. 505: 'And
         bishop Theodred and ealdorman Eadric informed me, when I gave
         my lord the sword that king Edmund gave me ... that I might
         be worthy of my testament (_mine quides wirde_). And I never
         ... have done any wrong to my lord that it may not so be.'
         Ibid. p. 519: 'And I pray my dear lord for the love of God
         that my testament may stand.' See also pp. 528, 539, 543,
         552, 576.

  [1043] Thus ealdorman Alfred disposes (but with the consent of the
         king and all his witan) of his 'heritage' as well as of his
         book-land; Thorpe, 480. Lodge, Essays on A.-S. Law, p. 108,
         supposes a certain power of regulating the descent of 'family
         land' within the family.

  [1044] K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et
         praesente domino meo rege ... concessi ... terram iuris mei
         ... quam praefatus rex Eadredus mihi dedit in perpetuam
         hereditatem cum libro eiusdem terrae.'--K. 1130 (v. 254):
         'Ego Eadulfus dux per concessionem domini mei regis ...
         concedo ... has terras de propria possessione mea quas idem
         ... rex dedit in perpetuam hereditatem.'--K. 1226 (vi. 25):
         'Ego Ælfwordus minister Regis Eadgari concedo ... annuente
         domino meo rege ... villam unam de patrimonio meo.'

  [1045] Except in the cases, comparatively rare before the statute
         _Quia Emptores_, in which the feoffee is to hold of the
         feoffor's lord.

  [1046] Fustel de Coulanges, Les origines du système féodal; Brunner,
         D. R. G. i. 209-12.

  [1047] K. 1058 (v. 115); B. ii. 89: 'et nullus iam licentiam
         ulterius habeat Christi neque sancti Petri ... neque ausus
         sit ulterius illam terram praedictam _rogandi in
         beneficium_.'

  [1048] K. 1089 (v. 166); B. ii. 281. See also K. 262 (ii. 33); B.
         ii. 40; Birhtwulf of Mercia takes a lease for five lives from
         the church of Worcester and assigns it to a thegn. The
         consideration for this lease is a promise that for the future
         he will not make gifts out of the goods of the church.

  [1049] K. 1287 (vi. 124). The verb _praestare_ was the regular term
         for describing the action of one who was constituting a
         _precarium_ or _beneficium_. In K. 1071 (v. 138) Bp Werferth
         of Worcester obtains a lease for three lives having
         petitioned for it; 'terram ... humili prece deprecatus fui.'

  [1050] For _commodare_ see K. v. pp. 166, 169, 171; for _lǽnan_,
         ibid. 162; for _lǽtan_, ibid. 164.

  [1051] See Bp Oswald's leases.

  [1052] K. 91 (i. 109).

  [1053] K. 165 (i. 201).

  [1054] K. 279 (ii. 61).

  [1055] K. 339 (ii. 149).

  [1056] See the charter of Cenwulf for Winchcombe, H. & S. iii. 572
         and the editors' note at 575. See also K. 610 (iii. 157),
         1058 (v. 115), 1090 (v. 169).

  [1057] K. 262 (ii. 33) is a lease for five lives by the church of
         Worcester; but the lessee is a king.

  [1058] Nov. 7, 3. See Brunner, Zur Rechtsgeschichte der röm. u.
         germ. Urkunde, 187. Theodore of Tarsus would perhaps have
         known this rule. It does not belong to the general western
         tradition of Roman law, but is distinctly Justinianic.

  [1059] K. 165 (i. 201). The 'limitation' is not very plain; but we
         seem to have here a lease for two lives.

  [1060] K. 182 (i. 220).

  [1061] K. 262 (ii. 33); B. ii. 40: lease by church of Worcester to
         the king for five lives: 'et illi dabant terram illam ea
         tamen conditione ut ipse rex firmius amicus sit episcopo
         praefato et familia in omnibus bonis eorum.' K. 279 (ii. 61):
         lease by the same church to a dux and his wife with
         stipulation for _amicitia_.

  [1062] These are preserved in Heming's Cartulary; see K. 494-673.

  [1063] In K. 498 (ii. 386) the _aecclesiasticus census_ is two
         _modii_ of clean grain; in K. 511 (ii. 400) the lessee must
         mow once and reap once 'with all his craft'; in K. 508 (ii.
         398) he must sow two acres with his own seed and reap it; in
         K. 661 (iii. 233) is a similar stipulation.

  [1064] In many cases the clause of immunity has become very obscure
         owing to a copyist's blunder. It is made to run thus: 'Sit
         autem terra ista libera omni regi nisi aecclesiastici censi.'
         Some mistake between _rei_ and _regi_ may be suspected. What
         we want is what we get in some other cases, e.g. K. 651, 652,
         viz. 'libera ab omni saecularis rei negotio.' The following
         forms are somewhat exceptional; K. 530 and 612, 'butan
         ferdfare and walgeworc and brycgeworc _and circanlade'_; K.
         623, 666, 'excepta sanctae dei basilicae suppeditatione et
         ministratione'; K. 625, 'exceptis sanctae dei aecclesiae
         necessitatibus et utilitatibus.'

  [1065] Kemble gives it in Cod. Dipl. 1287 (vi. 124) and in an
         appendix to vol. i. of his history. Also he speaks of it in
         Cod. Dipl. i. xxxv., and there says that it is 'a laboured
         justification' by Bp Oswald of his proceedings. To my mind it
         is nothing of the kind. Oswald is proud of what he has done
         and wishes that a memorial of his acts may be carefully
         preserved for the benefit of the church. Of course, if
         regarded from our modern point of view, the form of the
         document is curious. The bishop seems engaged in an attempt
         to bind his lessees by his own unilateral account of the
         terms to which they have agreed. But his object is to have of
         the contract a record which has been laid before the king and
         the witan and which, if we are to use modern terms, will have
         all the force of an act of parliament, to say nothing of the
         anathema.

  [1066] In places its language becomes turbid and well-nigh
         untranslatable.

  [1067] It may be that the bishop has just obtained from the king a
         grant or confirmation of the hundredal jurisdiction over what
         is to be Oswaldslaw.

  [1068] K. vi. 125: 'hoc est ut omnis equitandi lex ab eis impleatur
         quae ad equites pertinet.'

  [1069] K. vi. 125: 'et ad totum piramiticum opus aecclesiae calcis
         atque ad pontis aedificium ultro inveniantur parati.' The
         translation here given is but guesswork; we suppose that
         _piramiticus_ means 'of or belonging to fire (πῦρ).'

  [1070] Ibid.: 'insuper ad multas alias indigentiae causas quibus
         opus est domino antistiti frunisci, sive ad suum servitium
         sive ad regale explendum, semper illius archiductoris
         dominatui et voluntati qui episcopatui praesidet ... subditi
         fiant.' Is _archiductor_ but a fine name for the bishop? We
         think not. In the Confessor's day Eadric the Steersman was
         'ductor exercitus episcopi ad servitium regis' (Heming, i.
         81), and it would seem from this that the tenants were to be
         subject to a captain set over them by the bishop. But in the
         famous, if spurious, charter for Oswaldslaw (see above, p.
         268) Edgar says that on a naval expedition the bishop's men
         are not to serve under the ordinary officers 'sed cum suo
         archiductore, videlicet episcopo, qui eos defendere et
         protegere debet ab omni perturbatione et inquietudine.' This
         would settle the question, could we be certain that the words
         'videlicet episcopo' were not the gloss of a forger who was
         improving an ancient instrument. For our present purpose,
         however, it is no very important question whether the
         _archiductor_, the commander in chief of these tenants, is
         the bishop himself or an officer of his.

  [1071] Ibid.: 'praevaricationis delictum secundum quod praesulis ius
         est emendet.'

  [1072] D. B. 174. Compare the entry on f. 175 b relating to the
         church-scot of Pershore.

  [1073] Hist. Eng. Law, i. 217. See also D. B. i. 165 b, Hinetune.

  [1074] Heming, i. 81: 'Edricus qui fuit, tempore regis Edwardi,
         stermannus navis episcopi et ductor exercitus eiusdem
         episcopi ad servitium regis.' D. B. i. 173 b: 'Edricus
         stirman' held five hides of the bishop.

  [1075] Heming, i. 77: 'Et [episcopus] deracionavit socam et sacam de
         Hamtona ad suum hundred de Oswaldes lawe, quod ibi debent
         placitare et geldum et expeditionem ... persolvere.'

  [1076] Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625.

  [1077] Hist. Eng. Law, i. 288.

  [1078] In this respect Oswald's leases seem to have closely
         resembled a form of lease, known as _manusfirma_, which
         became common in the France of the eleventh century:
         Lamprecht, Beiträge zur Geschichte des französischen
         Wirthschaftslebens, pp. 59, 60.

  [1079] Heming, i. 259: 'Ac primo videndum quae terrae trium heredum
         temporibus accommodatae sint, post quorum decessum iuri
         monasterii redderentur, quaeve postea iuxta hanc conventionem
         redditae, quaeve iniuste sunt retentae, sive ipsorum, qui eas
         exigere deberent, negligentia, sive denegatae sint iniquorum
         hominum potentia.' See also the story told by Heming on p.
         264.

  [1080] Lamprecht, op. cit. p. 61, says that it was quite uncommon
         for the French landlord to get back his land if once he let
         it for three lives. One of the Worcester leases, but one
         stigmatized by Kemble (ii. 152), is a lease for three lives
         'nisi haeredes illius tempus prolixius a pontifice sedis
         illius adipisci poterint.'

  [1081] K. 637 (iii. 194): 'si in viduitate manere decreverit, vel
         magis nubere voluerit, ei tamen viro qui episcopali dignitati
         supradictae aecclesiae sit subiectus.'

  [1082] D. B. i. 173: 'Hanc terram tenuit Sirof de episcopo T. R. E.,
         quo mortuo dedit episcopus filiam eius cum hac terra cuidam
         suo militi, qui et matrem pasceret et episcopo inde
         serviret.'

  [1083] Hist. Eng. Law, i. 214.

  [1084] See above, p. 267.

  [1085] D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso
         dominio aecclesiae, et si quid de ipsis cuicunque homini
         quolibet modo attributum vel praestitum fuisset ad serviendum
         inde episcopo, ille qui eam terram praestitam sibi tenebat
         nullam omnino consuetudinem sibimet inde retinere poterat
         nisi per episcopum, neque terram retinere nisi usque ad
         impletum tempus quod ipsi inter se constituerant, et nusquam
         cum ea terra se vertere poterat ... Kenewardus tenuit et
         deserviebat sicut episcopus volebat ... Ricardus tenuit ad
         servitium quod episcopus voluit ... Godricus tenuit serviens
         inde episcopo ut poterat deprecari ... Godricus tenuit ad
         voluntatem episcopi.'

  [1086] D. B. 173 b.

  [1087] Oswald's tenants closely resemble the _ministeriales_ of
         foreign bishops; see Waitz, Verfassungsgeschichte, v.
         283-350. Oswald's _lex equitandi_ may be compared with what
         is said (ibid. p. 293) of a bishop of Constance: 'quibus
         omnibus hoc ius constituit, ut cum abbate equitarent eique
         domi forisque ministrarent, equos suos tam abbati quam
         fratribus suis quocumque necesse esset praestarent,
         monasterium pro posse suo defensarent.'

  [1088] Kemble, Saxons, i. 310 ff.; K. Maurer, Krit. Ueb. i. 104;
         Essays in Anglo-Saxon Law, No. ii. (Lodge); Brunner,
         Geschichte d. röm. u. germ. Urkunde, 182.

  [1089] K. 617 (iii. 164).

  [1090] K. 651 (iii. 216).

  [1091] K. 679 (iii. 258).

  [1092] K. 1287 (vi. 125): 'propter beneficium quod eis praestitum
         est.' D. B. i. 173 b. It may cross the reader's mind that the
         leases of which Oswald speaks in his letter to Edgar are not
         the transactions recorded in the charters that have come down
         to us, but other and unwritten leases. But Domesday Book and
         the stories told by Heming make against this explanation.

  [1093] Æthelr. I. 1, § 14.

  [1094] Cnut, II. 13, 77.

  [1095] K. 328 (ii. 133): A certain Helmstan is guilty of theft 'and
         mon gerehte ðæt yrfe cinge forðon he wes cinges mon and
         Ordlaf feng to his londe forðan hit wæs his læn ðæt he on
         sæt.'

  [1096] K. 330 (ii. 136).

  [1097] K. 414 (ii. 273): conveyance by Wulfric with the king's
         consent.--K. 491 (ii. 379): conveyance by Wulfstan with
         consent of king and witan, who execute the deed.--K. 690-1
         (iii. 286-8): conveyances by Æscwig executed by king and
         witan.--K. 1124, 1130 (v. 246-54): conveyances confirmed by
         king and bishops.--K. 1201 (v. 378): exchange with king's
         consent.--K. 1226 (vi. 25): conveyance by a thegn reciting
         king's consent. A few documents we must leave unclassified;
         K. 499, 591, 693; we do not know how they were executed or
         what was their evidential value.

  [1098] Brunner, Geschichte d. röm. u. germ. Urkunde, p. 175.

  [1099] Hist. Eng. Law, i. 212.

  [1100] K. 843 (iv. 201): 'swa full and swa forð swa Ðurstan min
         huskarll hit furmest of me heold.'--K. 846 (iv. 205): 'swa
         full and swa forð swa Sweyn mi may hit formest of me
         held.'--K. 826 (iv. 190): 'swa Ælfwin sy nunne it heold of
         ðan minstre.'--K. 827 (iv. 190): 'swa Sihtric eorll of ðan
         minstre þeowlic it heold.' If K. 1237 (vi. 44) be genuine
         (and Kemble has not condemned it) then already in the middle
         of the tenth century 'Goda princeps tenuit terram de rege,'
         nor only so, 'tenuit honorem de rege'; but this document is
         unacceptable. At best it may be a late Latin translation of
         an English original.



§ 5. _The Growth of Seignorial Power._


[Subjection of free men.]

We now return to our original theme, the subjection to seignorial power
of free land-holders and their land, for we now have at our command the
legal machinery, which, when set in motion by economic and social
forces, is capable of effecting that subjection. Let us suppose a
village full of free land-holders. The king makes over to a church all
the rights that he has in that village, reserving only the _trinoda
necessitas_ and perhaps some pleas of the crown. The church now has a
superiority over the village, over the ceorls; it has a right to receive
all that, but for the king's charter, would have gone to him.

[The royal grantee and his land.]

In the first place, it has a right to the _feorm_, the _pastus_ or
_victus_ that the king has hitherto exacted. We should be wrong in
thinking that in the ninth century (whatever may have been the case in
earlier times) this exaction was a small matter. In 883 Æthelred
ealdorman of the Mercians with the consent of King Alfred freed the
lands of Berkeley minster from such parts of the king's _gafol_ or
_feorm_ as had until then been unredeemed. In return for this he
received twelve hides of land and thirty mancuses of gold, and then in
consideration of another sixty mancuses of gold he proceeded to grant a
lease of these twelve hides for three lives[1101]. The king had been
deriving a revenue from this land 'in clear ale, in beer, in honey, in
cattle, in swine and in sheep.' In Domesday Book a 'one night's farm'
is no trifle; it is all that the king gets from large stretches of his
demesne[1102]. Having become entitled to this royal right, the church
would proceed to make some new settlement with the villagers. Perhaps it
would stipulate for a one night's farm for the monks, that is to say,
for a provender-rent capable of supporting the convent for a day. In the
middle of the ninth century a day's farm of the monks of Canterbury
comprised forty sesters of ale, sixty loaves, a wether, two cheeses and
four fowls, besides other things[1103]. When once a village is charged
in favour of a lord with a provender-rent of this kind, the lord's grip
upon the land may easily be tightened. A settlement in terms of bread
and beer is not likely to be stable. Some change in circumstances will
make it inconvenient to all parties and the stronger bargainer will make
the best of the new bargain. The church will be a strong bargainer for
it has an inexhaustible treasure-house upon which to draw. We, however,
concerned with legal ideas, have merely to notice that the law will give
free play to social, economic and religious forces which are likely to
work in the lord's favour.

[Provender rents and the manorial economy.]

But a village charged with a 'provender-rent' may seem far enough
removed from the typical manor of the twelfth and thirteenth centuries.
In the one we see the villagers cultivating each for his own behoof and
supplying the lord at stated seasons with a certain quantity of
victuals; in the other the villagers spend a great portion of their time
in tilling the lord's demesne land. In the latter case the lord himself
appears as an agriculturist: in the former he is no agriculturist, but
merely a receiver of rent. The gulf may seem wide; but it is not
impassable. One part, the last part, of a process which surmounts it is
visible. In the eleventh and twelfth centuries the lords, though they
have much land in demesne, still reckon the whole or part of what they
are to receive from each manor in terms of 'farms'; the king gets a one
night's farm from this manor, the convent of Ramsey gets a fortnight's
farm from that manor[1104]. But we can conceive how the change begins.
The monks are not going to travel, as a king may have travelled, from
village to village feasting at the expense of the folk. They are going
to live in their monastery; they want a regular supply of victuals
brought to them. They must have an overseer in the village, one who will
look to it that the bread and beer are sent off punctually and are good.
In the village over which they already have a superiority they acquire a
manse of their very own, a _mansus indominicatus_ as their foreign
brethren would call it. When once they are thus established in the
village, piety and other-worldliness will do much towards increasing
their demesne and strengthening their position[1105].

[The church and the peasants.]

We have argued above that in the first instance it was not by means of
the petty gifts of private persons that the churches amassed their wide
territories. The starting point is the alienation of a royal
superiority. Still there can be little doubt that the small folk were
just as careful of their souls as were their rulers. They make gifts to
the church. Moreover, the gift is likely to create a dependent tenure.
They want to give, and yet they want to keep, for their land is their
livelihood. They surrender the land to the church: but then they take it
back again as a life-long loan. Thus the church has no great difficulty
about getting demesne. But further, it gets dependent tenants and a
dependent tenure is established. Like enough on the death of the donor
his heirs will be suffered to hold what their ancestor held. Very
possibly the church will be glad to make a compromise, for it may be
doubtful whether these _donationes post obitum_[1106], or these gifts
with reservation of an usufruct, can be defended against one, who, not
having the fear of God before his eyes, will make a determined attack
upon them. Gradually the church becomes more and more interested in the
husbandry of the village. It receives gifts; it makes loans; it
substitutes labour services to be done on its demesne lands for the old
_feorm_ of provender. It is rash to draw inferences from the fragmentary
and obscure laws of Ine; but one of them certainly suggests that, at
least in some district of Wessex, this process was going on rapidly at
the end of the seventh century, so rapidly and so oppressively that the
king had to step in to protect the smaller folk. The man who has taken
a yard of land at a rent is being compelled not only to pay but also to
labour. This, says the king, he need not do unless he is provided with a
house[1107].

[Growth of the manorial system.]

Now we are far from saying that the manorial system of rural economy is
thus invented. From the time of the Teutonic conquest of England onwards
there may have been servile villages, Roman villas with slaves and
_coloni_ cultivating the owner's demesne, which had passed bodily to a
new master. We have no evidence that is capable of disproving or of
proving this. What we think more probable is that in those tracts where
true villages (nucleated villages, as we have before now called
them[1108]) were not formed, the conquerors fitted themselves into an
agrarian scheme drawn for them by the Britons, and that in the small
scattered hamlets which existed in these tracts there was all along a
great deal of slavery[1109]. But, at any rate, the church was a
cosmopolitan institution. Many a prelate of the ninth and tenth
centuries, Bishop Oswald for one, must have known well enough how the
foreign monasteries managed their lands, and, whatever controversies may
rage round questions of remoter history, there can be no doubt that by
this time the rural economy of the church estates in France was in
substance that which we know as manorial. Foreign precedents in this as
in other matters may have done a great work in England[1110]. All that
we are here concerned to show is that there were forces at work which
were capable of transmuting a village full of free landholders into a
manor full of villeins.

[Church-scot and tithe.]

Besides the rights transferred to it by the king, the church would have
other rights at its command which it could employ for the subjection--we
use the word in no bad sense--of the peasantry. By the law of God it
might claim first-fruits and tenths. The payment known as _ciric-sceat_,
church-scot, is a very obscure matter[1111]. Certainly in laws of the
tenth century it seems to be put before us as a general tax or rate, due
from all lands, and not merely from those lands over which a church has
the lordship. On the other hand, both in earlier and in later documents
it seems to have a much less general character. In some of the earlier
it looks like a due, we may even say a rent (_ecclesiasticus census_)
paid to a church out of its own lands, while in the later documents, for
example in Domesday Book, it appears sporadically and looks like a heavy
burden on some lands, a light burden on others. The evidence suggests
that the church had attempted and on the whole had failed, despite the
help of kings and laws, to make this impost general. That in some
districts it was a serious incumbrance we may be sure. On those estates
of the church of Worcester to which we have often referred, every hide
was bound to pay upon St. Martin's day one horse-load (_summa_) of the
best corn that grew upon it. He who did not pay upon the appointed day
incurred the outrageous penalty of paying twelve-fold, and in addition
to this a fine was inflicted[1112]. If the bishop often insisted on the
letter of this severe rule, he must have reduced many a free ceorl to
beggary. It is by no means certain that the duty of paying tithe has not
a somewhat similar history. Though in this case the impost became a
general burden incumbent on all lands, it may have been a duty of
perfect obligation for the subjects of the churches, while as yet for
the mass of other landowners it was but a religious duty or even a
counsel of perfection. At any rate, this subtraction of a tenth of the
gross produce of the earth is no light thing: it is quite capable of
debasing many men from landownership to dependent tenancy.

[Jurisdictional rights of the lord.]

Another potent instrument for the subjection of the free landowners
would be the jurisdictional rights which passed from the king to the
churches and the thegns. At first this transfer would appear as a small
matter. The president of a court of free men is changed:--that is all.
Where the king's reeve sat, the bishop or the bishop's reeve now sits;
fines which went to the royal hoard now go to the minster; but a moot of
free men still administers folk-right to the justiciables of the church.
However, in course of time the change will have important effects. In
the first place, it helps to bind up suit of court with the tenure of
land. The suitor goes to the bishop's court because he holds land of
which the bishop is the lord. If, as will often be the case, he wishes
to escape from the burdensome duty, he will pay an annual sum in lieu
thereof, and here is a new rent. Then again all the affairs of the
territory are now periodically brought under the bishop's eye; he
knows, or his reeves know, all about every one's business and they have
countless opportunities of granting favours and therefore of driving
bargains. Moreover it is by no means unlikely that the lord will now
have something to say about the transfer of land, for it is by no means
unlikely that conveyances will be made in court, and that the rod or
_festuca_ which serves as a symbol of possession will be handed by the
seller to the reeve and by the reeve to the purchaser. We need not
regard the conveyance in court as a relic of a time when a village
community would have had a word to say if any of its members proposed to
assign his share to an outsider. There are many reasons for conveying
land in court. We get witnesses there, and no mere mortal witnesses but
the testimony of a court which does not die. Then, again, there may be
the claims of expectant heirs to be precluded and perhaps they can be
precluded by a decree of the court. The seller's kinsfolk can be ordered
to assert their rights within some limited time or else to hold their
peace for ever after, so that the purchaser will hold the land under the
court's ban[1113]. And thus the rod passes through the hands of the
president. But 'nothing for nothing' is a good medieval rule. The lord
will take a small fine for this _land-cóp_, this sale of land, and soon
it may seem that the purchaser acquires his title to the land rather
from the lord than from the vendor[1114].

[The lord and his man's taxes.]

Yet another turn is given to the screw, if we may so speak, when the
state and the church begin to hold the lord answerable for taxes which
in the last resort should be paid by the tenant[1115]. This, when we
call to mind the huge weight of the danegeld, will appear as a matter of
the utmost importance. Before the end of the tenth century--this is the
picture that we draw for ourselves--large masses of free peasants were
in sore straits and were in many ways subject to their lords. Many of
them were really holding their tenements by a more or less precarious
tenure. They had taken 'loans' from their lord and become bound to pay
rents and work continuously on his inland. Others of them may have had
ancient ancestral titles which could have been traced back to free
settlers and free conquerors; but for centuries past a lord had wielded
rights over their land. The king's _feorm_ had become the lord's
_gafol_, and this, supplemented by church-scot and by tithes, may have
been turned into _gafol_ and week-work. The time came for a new and
heavy tax. This was a crushing burden, and even had the geld been
collected from the small folk it would have had the effect of converting
many of them from landowners into landborrowers[1116]. But a worse fate
befell them. They were so poor that the state could no longer deal with
them; it dealt with their lord; he paid for their land. It follows that
in the eye of the state their land is his land. Less and less will the
national courts and the folk-law recognize their titles; the lord
'defends' this land against all the claims of the state; therefore the
state regards it as his. Hence what seems the primary distinction drawn
by Domesday Book--that between the soke-man and the _villanus_. The
_villanus_ is not rated to the land-tax. Some men are not rated to the
geld because they have but precarious titles; other men have precarious
titles because they are not rated to the geld. A wide and a legally
definable class is formed of men who hold land and who yet are fast
losing the warranty of national law. When once the country is full of
lords with sake and soke, a very small change, a very small exhibition
of indifference on the part of the state, will deprive the peasants of
this warranty and condemn them to hold, not by the law of the land, but
by the custom of their lord's court.

[Depression of the free ceorl.]

To this depth of degradation the great mass of the English peasants in
the southern and western counties--the _villani_, _bordarii_, _cotarii_
of Domesday Book--may perhaps have come before the Norman Conquest.
There may have been no courts which would recognize their titles to
their land, except the courts of their lords. We are by no means certain
that even this was so; but they must fall deeper yet before they will be
the 'serf-villeins' of the thirteenth century.

[The slaves.]

However, the conditions which would facilitate such a farther fall had
long been prepared, for slavery had been losing some of its harshest
features. Of this process we have said something elsewhere[1117]. What
the church did for the slave may have been wisely and was humanely done;
but what it did for the slave was done to the detriment of the poorer
classes of free men. By insisting that the slave has a soul to be saved,
that he can be sinned against and can sin, that his marriage is a
sacrament, we obliterate the line between person and thing. On the other
hand, in the submission of one person to the will of another, a
submission which within wide limits is utter and abject, the church saw
no harm. Villeinage and monasticism are not quite independent phenomena;
even a lawyer could see the analogy between the two[1118]. And a touch
of mysticism dignifies slavery:--the bishop of Rome is the serf of the
serfs of God; an earl held land of Westminster Abbey 'like a
_theow_[1119].' One of the surest facts that we know of the England of
Cnut's time is that the great folk were confounding their free men with
their theowmen and that the king forbad them to do this. We see that one
of the main lines which has separated the rightless slave from the free
ceorl is disappearing, for the lord, as suits his interest best, will
treat the same man now as free and now as bond[1120].

[Growth of manors from below.]

We might here speak of the numerous causes for which in a lawful fashion
a free man might be reduced into slavery, and were we to do so, should
have to notice the criminal law with its extremely heavy tariff of _wer_
and _wite_ and _bót_. But of this enough for the time has been said
elsewhere[1121], and there are many sides of English history at which we
can not even glance. However, lest we should be charged with a grave
omission, we must explain that the processes which have hitherto come
under our notice are far from being in our eyes the only processes that
tended towards the creation of manors. We have been thinking of the
manors as descending from above (if we may so speak) rather than as
growing up from below. The alienation of royal rights over villages and
villagers has been our starting point, and it is to this quarter that we
are inclined to look for the main source of seignorial power. But, no
doubt, within those villages which had no lords--and plenty of such
villages there were in 1065--forces were at work which made in the
direction of manorialism. They are obscure, for they play among small
men whose doings are not recorded. But we have every reason to suppose
that in the first half of the eleventh century a fortunate ceorl had
many opportunities of amassing land and of thriving at the expense of
his thriftless or unlucky neighbours. Probably the ordinary villager was
seldom far removed from insolvency: that is to say, one raid of
freebooters, one murrain, two or three bad seasons, would rob him of his
precious oxen and make him beggar or borrower. The great class of
_bordarii_ who in the east of England are subjected to the sokemen has
probably been recruited in this fashion[1122]. And so we may see in
Cambridgeshire that a man will sometimes have half a hide in one
village, a virgate in another, two-thirds of a virgate in a third. He is
'thriving to thegn-right.' Then, again, some prelate or some earl will
perhaps obtain the commendation of all the villagers, and his hold over
the village will be tightened by a grant of sake and soke, though, if we
may draw inferences from Cambridgeshire, this seems to have happened
rarely, for the sokemen of a village have often shown a marvellous
disagreement among themselves in their selection of lords, and seem to
have chosen light-heartedly between the house of Godwin and the house of
Leofric as if they were but voting for the yellows or the blues. We
fully admit that these forces were doing an important work; but they
were doing it slowly and it was not nearly achieved when the Normans
came. Nor was it neat work. It tended to produce not the true and
compact manerio-villar arrangement, but those loose, dissipated manors
which we see sprawling awkwardly over the common fields of the
Cambridgeshire townships[1123].

[Sidenote: Theories which connect the English manor with the Roman
villa.]

We have been endeavouring to show that the legal, social and economic
structure revealed to us by Domesday Book can be accounted for, even
though we believe that in the seventh century there was in England a
large mass of free landowning ceorls and that many villages were peopled
at that time and at later times chiefly by free landowning ceorls and
their slaves. We have now to examine the evidence that is supposed to
point to a contrary conclusion and to connect the English manor of the
eleventh century with the Roman villa of the fifth. Two questions should
be distinguished from each other--(1) Have we any proof that during
those six centuries, especially during the first three of them, the type
of rural economy which we know as 'manorial' was prevalent in England?
(2) Have we any proof that the tillers of the soil were for the more
part slaves or unfree men? We will move backwards from Domesday Book.

[The _Rectitudines_.]

In the first place reliance has been placed on the document known as
_Rectitudines Singularum Personarum_[1124]. Of the origin of this we
know nothing; we can not say for certain that it is many years older
than the Norman Conquest. Apparently it is the statement of one who is
concerned in the management of great estates and is desirous of
imparting his knowledge to others. It first sets forth the right of the
thegn. He is worthy of the right given to him by his book. He must do
three things in respect of his land, namely, fyrdfare, burh-bote and
bridge-work. From many lands however 'a more ample landright arises at
the king's ban': that is to say, the thegn is subject to other burdens,
such as making a deer-hedge at the king's hám, providing warships[1125]
and sea-ward and head-ward and fyrd-ward, and almsfee and church-scot
and many other things. Then we hear of the right of the _geneat_. It
varies from place to place. In some places he must pay rent
(_land-gafol_) and grass-swine yearly, and ride and carry and lead
loads, work and support his lord[1126], and reap and mow and hew the
deer-hedge and keep it up, build and hedge the _burh_ and make new roads
for the _tún_, pay church-scot and almsfee, keep head-ward and
horse-ward, go errands far and near wherever he is directed. Next we
hear of the cottier's services. He works one day a week and three days
in harvest-time. He ought not to pay rent. He ought to have five acres
more or less. He pays hearth-penny on Holy Thursday as every free man
should. He 'defends' or 'acquits' his lord's inland when there is a
summons for sea-ward or for the king's deer-hedge or the like, as befits
him, and pays church-scot at Martinmas. Then we have a long statement as
to the services of the _gebúr_. In some places they are heavy, in others
light. On some land he must work two days a week and three days at
harvest by way of week-work. Besides this there is rent to be paid in
money and kind. There is ploughing to be done and there are boon-works.
He has to feed dogs and find bread for the swine-herd. His beasts must
lie[1127] in his lord's fold from Martinmas to Easter. On the land where
this custom prevails the _gebúr_ receives by way of outfit two oxen and
one cow and six sheep and seven sown acres upon his yard-land. After the
first year he is to do his services in full and he is to receive his
working tools and the furniture for his house. We then hear of the
special duties and rights of the bee-keeper, the swine-herd, the
follower, the sower, ox-herd, shepherd, beadle, woodward, hayward and so
forth.

[Discussion of the _Rectitudines_.]

Now, according to our reading of this document, there stand below the
thegn, but above the serfs (of whom but few words are said[1128]) three
classes of men--there is the _geneat_, there is the _gebúr_ and there is
the _cotsetla_. The boor and the cottier are free men; the cottier pays
his hearth-penny, that is his Romescot, his Peter's-penny, on Holy
Thursday as every free man does; but both boor and cottier do week-work.
On the other hand the _geneat_ does no week-work. He pays a rent, he
pays a grass-swine (that is to say he gives a pig or pigs in return for
his pasture rights), he rides, he carries, he goes errands, he
discharges the forinsec service due from the manor, and he is under a
general obligation to do whatever his lord commands. He bears a name
which has originally been an honourable name; he is his lord's
'fellow[1129].' His services strikingly resemble those which St. Oswald
exacted from his _ministri_, his _equites_, his _milites_[1130]. Almost
every word that is said of the _geneat_ is true of those very
substantial persons who took land-loans from the church of Worcester.
The _geneat_ (who becomes a _villanus_ in the Latin version of our
document that was made by a Norman clerk of Henry I.'s reign) is a
riding-man, radman, radcniht, with a horse, a very different being from
the _villanus_ of the thirteenth century[1131]. On the other hand, in
the _gebúr_ of this document we may see the _burus_, who is also the
_colibertus_ of Domesday Book[1132], and he certainly is in a very
dependent position, for his lord provides him with cattle, with
instruments of husbandry, even with the scanty furniture of his house.
We dare not indeed argue from this text that the _villanus_ of Domesday
Book does not owe week-work, for the writer who rendered _geneat_ by
_villanus_ was quite unable to understand many parts of the document
that he was translating[1133]; but when we place the _Rectitudines_ by
the side of the survey we can hardly avoid the belief that the extremely
dependent _gebúr_ of the former is represented, not by the _villanus_,
but by the _burus_ or _colibertus_ of the latter. However, over and over
again the author of the _Rectitudines_ has protested that customs vary.
He will lay down no general rule; he does but know what goes on in
certain places[1134].

[The Tidenham case.]

In 956 King Eadwig gave to Bath Abbey thirty manses at Tidenham in
Gloucestershire[1135]. A cartulary compiled in the twelfth century
contains a copy of his gift, and remote from this it contains a
statement of the services due from the men of Tidenham. It is possible,
but unlikely, that this statement represents the state of affairs that
existed at the moment when the minster received the gift; to all
appearance it belongs to a later date[1136]. It begins by stating that
at Tidenham there are 30 hides, 9 of inland and 21 'gesettes landes,'
that is 9 hides of demesne and 21 hides of land set to tenants. Then
after an account of the fisheries, which were of importance, it tells us
of the services due from the _geneat_ and from the _gebúr_. The _geneat_
shall work as well on the land as off the land, whichever he is bid, and
ride and carry and lead loads and drive droves 'and do many other
things.' The _gebúr_ must do week-work, of which some particulars are
stated, and he also must pay rent in money and in kind. Here again a
well marked line is drawn between the _geneat_ and the _gebúr_. Here
again the _geneat_, like the _cniht_ or _minister_ of Oswaldslaw, is
under a very general obligation of obedience to his lord; but he is a
riding man and there is nothing whatever to show that he is habitually
employed in agricultural labour upon his lord's demesne. As to the
_gebúr_, he has to work hard enough day by day, and week by week, though
of his legal status we are told no word.

[The Stoke case.]

In a Winchester cartulary, 'a cartulary of the lowest possible
character,' there stands what purports to be a copy of the charter
whereby in the year 900 Edward the Elder gave to the church of
Winchester 10 _manentes_ of land 'æt Stoce be Hysseburnan' together with
all the men who were thereon at the time of Alfred's death and all the
men who were 'æt Hisseburna' at the same period. Edward, we are told,
acquired the land 'æt Stoce' in exchange for land 'æt Ceolseldene' and
'æt Sweoresholte [Sparsholt].' At the end of the would-be charter stand
the names of its witnesses. Then follows in English (but hardly the
English of the year 900) a statement of the services which the ceorls
shall do 'to Hysseburnan.' Then follow the boundaries. Then the
eschatocol of the charter and the list of witnesses is repeated[1137].
On the face of the copy are three suspicious traits: (1) the modernized
language, (2) the repeated eschatocol, (3) the description of the
services, for the like is found in no other charter. This is not all.
Two other documents in the same cartulary bear on the same transaction.
By the first Edward gave to the church of Winchester 50 _manentes_ 'æt
Hysseburnan' which he had obtained by an exchange for land 'æt
Merchamme[1138].' By the second he gave to the church of Winchester 50
_manentes_ 'ad Hursbourne' and other 10 'ad Stoke[1139].' The more
carefully these three documents are examined, the more difficult will
the critic find it to acquit the Winchester monks of falsifying their
'books' and improving Edward's gift. Therefore this famous statement
about the ceorls' services is not the least suspicious part of a highly
suspicious document. It is to this effect:--'From each _hiwisc_ (family
or hide), at the autumnal equinox, forty pence and six church _mittan_
of ale and three sesters of loaf-wheat. In their own time they shall
plough three acres and sow them with their own seed, and in their own
time bring it [the produce of the sown land] to barn. They shall pay
three pounds of gafol barley and mow half an acre of gafol-mead in their
own time and bring it to the rick; four fothers of split gafol-wood for
a shingle-rick in their own time and sixteen yards of gafol-fencing in
their own time. And at Easter two ewes with two lambs, but two young
sheep may be counted for an old one; and they shall wash and shear sheep
in their own time. And every week they shall do what work they are bid,
except three weeks, one at Midwinter, one at Easter and the third at the
Gang Days.' Here no doubt, as in the account of Tidenham, as in the
_Rectitudines_, we see what may fairly be called the manorial economy.
The lord has a village; he has demesne land (_inland_) which is
cultivated for him by the labour of his tenants; these tenants pay
_gafol_ in money or in kind; some of them (the _geneat_ of Tidenham, the
_geneat_ of the _Rectitudines_) assist him when called upon to do so;
others work steadily from day to day; in many particulars the extent of
the work due from them is ascertained; whether they are free men,
whether they are bound to the soil, whether the national courts will
protect them in their tenure, whether they are slaves, we are not told.

[Inferences from these cases.]

That such an arrangement was common in the eleventh century we know; a
solitary instance of it comes to us professedly from the first year of
the tenth, and certainly from a cartulary that is full of lies. To
draw general inferences from a few such instances would be rash.
What should we believe of 'the English village of the eleventh century'
if the one village of which we had any knowledge was Orwell in
Cambridgeshire[1140]? What should we believe of 'the English village of
the thirteenth century' if our only example was a village on the ancient
demesne? The traces of a manorial economy that have been discovered in
yet remoter times are few, slight and dubious. A passage in the laws of
Ine[1141] seems to prove that there were men who had let out small
quantities of land, 'a yard or more,' to cultivators at rents and who
were wrongfully endeavouring to get from their lessees work as well as
_gafol_. The same law may prove the highly probable proposition that
some men had taken 'loans' of manses and were paying for them, not only
by _gafol_, but by work done on the lord's land. That already in Ine's
day there were many free men who were needy and had lords above them,
that already the state was beginning to consecrate the relation between
lord and man as a security for the peace and a protection against crime
is undoubted[1142]. But this does not bring us very near to the Roman
_villa_. Nor shall we see a _villa_ wherever the dooms or the land-books
make mention of a _hám_ or a _tún_, for the meanest ceorl may have a
_tún_ and will probably have a home of his own[1143].

[The _villa_ and the _vicus_.]

It is said that the England of Bede's day was full of _villae_ and that
Bede calls the same place now _villa_ and now _vicus_[1144]. But before
we enter on any argument about the use of such words, we ought first to
remember that neither Bede nor the scribes of the land-books were
trained philologists. London is a _villa_[1145], but it is also a
_civitas_, _urbs_, _oppidum_, _vicus_, a _wíc_, a _tún_, a _burh_, and a
_port_. When we see such words as these used promiscuously we must lay
but little stress upon the occurrence of a particular term in a
particular case. Suppose for a moment that in England there were many
villages full of free landholders: what should they be called in Latin?
They should, it is replied, be called _vici_ and they should not be
called _villae_, for a _villa_ is an estate. But it is part of the case
of those who have used this argument that at the time of the barbarian
invasions the Roman world was full of _villae_, so full that every or
almost every _vicus_ was situated on and formed part of a _villa_[1146].
We are therefore exacting a good deal from Bede, from a man who learnt
his Latin in school, if we require him to be ever mindful of this nice
distinction. We are saying to him: 'True it is that a knot of
neighbouring houses with the appurtenant lands is habitually called a
_villa_; but then this word introduces the notion of ownership; the
_villa_ is an unit in a system of property law, and, if your village is
not also an estate, a _praedium_, then you should call it _vicus_ and
not _villa_.' To this we must add that, while the word _villa_ did not
until after the Norman Conquest force its way into English speech, the
word _vicus_ became an English word at a very early period[1147]. It
became our word _wick_ and it became part of a very large number of
place-names[1148]. The Domesday surveyors found _herdwicks_ and
_berewicks_ in many parts of the country[1149]. Moreover we can see
that in the Latin documents _villa_ is used in the loosest manner.
London is a _villa_; but a single house, a single 'haw,' in the city of
Canterbury or the city of Rochester is a _villa_[1150].

[Notices of manors in the charters.]

If we carefully attend to the wording of the land-books, we shall find
the manorial economy far more visible in the later than in the earlier
of them. The Confessor gives to Westminster 'ða cotlife Perscore and
Dorhurste' with all their lands and all their berewicks[1151]. He gives
the cotlif Eversley and all things of right belonging thereto, with
church and mill, with wood and field, with meadow and heath, with water
and with moor[1152]. From 998 we have a gift of a 'heafod-botl,' a
capital mansion, we may say, and its appurtenances[1153]. In earlier
times we may sometimes find that the subject matter of the royal gift is
spoken of as forming a single unit; it is a _villa_, or it is a _vicus_.
But rarely is the thing that is given called a _villa_ except when the
thing that is given is just a single hide[1154]. If a charter freely
disposes of several _villae_, meaning thereby villages, we shall
probably find some other reasons for assigning that charter, whatever
date it may bear, to the eleventh, the twelfth or a yet later
century[1155]. Sometimes in old books the king will say that he is
giving a _vicus_, a _vicus_ of five or eight or ten _tributarii_[1156].
Much more frequently he will not speak thus; he will not speak as though
the subject matter of his gift had a physical unity and individuality.
'I give,' he will say, 'so many _manentes_, _tributarii_, or _casati_
in the place known as _X_,' or 'I give a certain part of my land, to
wit, that of so many _manentes_, _tributarii_, or _casati_ at the spot
which men call _Y_.' Such language does not suggest that the manses thus
given are subservient to one dominant and dominical manse or manor; it
is very unlike the language of the twelfth century[1157]. Such words as
_fundus_ and _praedium_ are conspicuously absent, and _ager_ usually
means but a small piece of land, an acre. Foreign precedents would have
suggested that when an estate was to be conveyed it should be conveyed
_cum servis et ancillis_, or _cum mancipiis et accolabus_; such clauses
are rare in our English land-books[1158].

[The _mansa_ and the _manens_.]

But, it will be said, at all events the king is giving persons, men, as
well as land; he is giving _manentes_, _casati_, _tributarii_. What is
more these are foreign words and they describe the 'semi-servile'
occupants of the soil. Now it is true that sometimes he gives
_manentes_, _casati_, _tributarii_, though more often he gives either so
many manses (_mansas_), or 'the land of so many _manentes_, _casati_,
_tributarii_,' while in Kent he gives plough-lands or sullungs. But we
think it plain that in England these Latin words were used simply to
describe the extent, or rather the rateable extent, of land, without
much reference to the number or the quality of its occupants. The _terra
unius manentis_, even the _unus casatus_ when that is the subject of a
conveyance, is like Bede's _terra unius familiae_, the unit known to
Englishmen as the _hiwisc_, or _hide_[1159]. Hence it is that reference
is so often made to repute and estimation. 'I give,' says Egbert, 'a
certain portion of land to the amount, as I estimate, of five
_casati_,' or (it may be) 'of twenty _manentes_[1160].' Nothing can be
easier than to count whether there be four, five, or six 'semi-servile'
households on a given piece of land. Far easier would it be to do this
than to do what is habitually done, namely, to set forth the boundaries
of the land with laborious precision. But there is already an element of
estimation, of appreciation, in these units. Already they are units in a
system of taxation. Hence also it is that so very frequently what the
king gives is just exactly five, or some multiple of five, of these
units[1161]. Rating is a rough process; five and ten are pleasant
numbers.

[The hide.]

But against the argument which would see in every conveyance of 'five
_manentes_' or of 'the land of five _casati_' a conveyance of five
semi-servile households with their land we have another objection to
urge. Here we will state it briefly; a fuller statement would take us
far away from our present theme. If the land-books of the churches are
to lead up to Domesday Book, the unit conveyed as _terra unius manentis_
(_casati_, _tributarii_) is a hide with some 120 acres of arable land,
the land appropriate to a plough-team of eight oxen. Had the
semi-servile _manens_ as a general rule 120 arable acres, a plough-team
of eight oxen? We do not believe it, and those who have most strongly
insisted on the servility or 'semi-servility' of the tillers of the
soil, do not believe it. They would give the _gebúr_ but a quarter of a
hide and but two beasts of the plough. That being so, it should be
common ground that the _terra unius manentis_ (_casati_, _tributarii_)
can not be construed as 'the land occupied by one semi-servile tenant.'
An explanation of the fact that land is conveyed by reference to units
so large as the hide of 120 acres and that these units are spoken of as
though each household would normally have one of them must be sought
elsewhere; we can not here pause to find it. But in any case these
foreign terms should give us little trouble. When he hears such words as
_manens_, _casatus_, _tributarius_, the man who has lived in Gaul may
hear some undertone of servility or 'semi-servility.' We do not discuss
this matter; it may be so. But look at the words themselves, what do
they primarily mean? A _manens_ is one who dwells upon land, a _casatus_
is one to whom a _casa_ has been allotted, a _tributarius_ pays
_tributum_; the free English landowner pays a _tributum_ to the
king[1162]. We must make the best we can of a foreign, an inappropriate
tongue, and the best that we make is often very bad, especially when we
have a taste for fine writing. And so England is full of villas which
are Roman and satraps who, no doubt, are Persian.

[The strip-holding and the villa.]

And whence, we must ask, comes that system of intermixed 'strip-holding'
that we find in our English fields? Who laid out those fields? The
obvious answer is that they were laid out by men who would sacrifice
economy and efficiency at the shrine of equality. Each manse is to have
the same number of strips; the strips of one manse must be neither
better nor worse than those of its neighbour and therefore must be
scattered abroad over the whole territory of the village. That this
system was not invented by men who owned large continuous tracts is
plain. No such owner would for one moment dream of cutting up his land
in this ridiculous fashion, and of reserving for his own manse, not a
ring-fenced demesne, but strips lying here and there, 'hide-meal and
acre-meal' among the strips of his serfs. That is not the theory. No one
supposes that a Roman landowner whose hands were free allowed the soil
of his villa to be parcelled out in accordance with this wasteful,
cumbrous, barbarous plan. So his hands must not be free; the soil of
which he becomes the owner must already be plotted out in strips, and
these strips must be so tightly bound up into manses, that he scruples
to overturn an existing arrangement, and contents himself with
appropriating a few of the manses for his own use and compelling the
occupants of the others to labour for him and pay him rents. In this
there is nothing impossible; but we have only deferred, not solved the
problem. Who laid out our English fields and tied the strips into
manses? That this work was done by the Britons before they were brought
under the Roman yoke does not seem very probable. Celtic rural economy,
whenever it has had a chance of unfettered development, has made for
results far other than those that are recorded by the larger half of the
map of England. If throughout England the Romans found so tough a system
of intermixed manses that, despite all its absurdities, they could not
but spare it, then the Britons who dwelt in the land that was to be
English were many centuries in advance of the Britons who dwelt in the
land that was to be Welsh. To eke out this hypothesis another must be
introduced. The Teutonic invaders of Britain must be brought from some
manorialized province. So, after all, the model of the English field may
have been 'made in Germany.' Somehow or another it was made in South
Germany by semi-servile people, whose semi-servility was such a
half-and-half affair that they could not be prevented from sacrificing
every interest of their lords at the shrine of equality[1163].

[The lords and the strips.]

We are far from saying that wherever there is strip-holding, there
liberty and equality have once reigned[1164]. It is very possible that
where a barbarian chieftain obtained a ring-fenced allotment of
conquered soil, he sometimes divided it into scattered strips which he
parcelled out among his unfree dependants. But if he did this, he did it
because his only idea of agriculture was derived from a village formed
by men who were free and equal. The maintenance of a system of
intermixed strip-holding may be due to seignorial power, and a great
deal of the rigidity of the agrarian arrangements that we see in the
England of the thirteenth century may be due to the same cause.
Seignorial power was not, at least in origin, absolute ownership. It had
to make the best it could of an existing system. For the lord's purposes
that system was at its best when it was rigid and no tenement was
partible. But assuredly this plan was not originally invented by great
proprietors who were seeking to get the most they could out of their
land, their slaves and their capital.

[The ceorl and the slave.]

That we have not been denying the existence of slavery will be plain.
Indeed we may strongly suspect that the men who parcelled out our fields
were for the more part slave-owners, though slave-owners in a very small
way. To say nothing of Welshmen, there was quite enough inter-tribal
warfare to supply the ceorl with a captive. But it was not for the sake
of slaves or serfs or 'semi-servile' folk that the system of intermixed
strips was introduced.

[The condition of the Danelaw.]

Lastly, the theory which would derive the English manor from the Roman
_villa_ must face the grave problem presented to it by the account which
Domesday Book, when speaking of the Confessor's day, gives of the
eastern and northern counties, of a large quarter of all England, and of
just that part of England which was populous. We see swarms of men who
are free men but who are subject, they and their land, to various modes
and degrees of seignorial power. The modes are many, the degrees are
gentle. Personal, tenurial, justiciary threads are woven into a web that
bewilders us. Here we see the work of commendation, there the work of
the land-loan, and there again what comes of grants of sake and soke. We
see the formation of manors taking place under our eyes, and as yet the
process is by no means perfect. In village after village there is
nothing that our economic historians would consent to call a manor. Now,
no doubt, the difference between the east and the west is, at least in
part, due to Danish invasions and Danish settlements. But how shall we
picture to ourselves the action of the Danes? Is it to be supposed that
they found the Anglo-Roman manor-villa a prevalent and prosperous
institution, that they destroyed it and put something else in its place,
put in its place the village of free peasants who could 'go with their
land' to what lord they pleased? If so, then we have to face the
question why these heathen Danes acted in a manner so different from
that in which their predecessors, the heathen Angles and Saxons, had
acted. Surely one part of the explanation is that the inswarming
barbarians checked the manorializing process that was steadily at work
in Wessex and Mercia. We do not say that this is the whole explanation.
We have seen how free were many of the Cambridgeshire villages and have
little reason to believe that they had been settled by Danes[1165]. The
west country is the country to which we shall naturally look for the
most abundant traces of the _Wealh theow_. There it is that we find
numerous _servi_, and there that we find rather _trevs_ than villages.
But also we have hardly a single land-book of early date which deals
with any part of the territory that became the Danelaw. Many a book the
Danes may have burnt when they sacked the monasteries. They sacked the
monasteries, burnt the books and freed the land. But still we may doubt
whether the practice of booking lands to the churches had gone far in
East Anglia and the adjacent shires when they were once more overwhelmed
by barbarism. No doubt in course of time the churches of the east became
rich: Ely and St Edmunds, Peterborough and Ramsey, Croyland and Thorney.
But, even when supplemented by legend and forgery, their titles to wide
territories can seldom be compared for antiquity to the titles that
might have been pleaded by the churches of Kent and Wessex and the
Severn Valley. Richly endowed churches mean a subjected peasantry. And
thus we may say of the Danes that if in a certain sense they freed the
districts which they conquered, they in the same sense enslaved the rest
of England. Year by year Wessex and Mercia had to strain every nerve in
order to repel the pagans, to fit out fleets, build burgs and keep
armies always in the field. The peasant must in the end bear the cost of
this exhausting struggle. Meanwhile in the north and the east the
process that makes manors has been interrupted; it must be begun once
more. It was accomplished by men some of whom had Scandinavian blood in
their veins, but who were not heathens, not barbarians: it was
accomplished by Normans steeped in Frankish feudalism.


FOOTNOTES:

  [1101] K. 313 (ii. 110); T. 129; B. ii. 172.

  [1102] In many cases the one night's farm is reckoned at £100 or
         thereabouts; Round, Feudal England, 112.

  [1103] K. 477 (ii. 354); T. 509.

  [1104] Vinogradoff, Villainage, 301.

  [1105] Even T. R. W. and in a thoroughly manorial county such as
         Hampshire we may find a village in which the lord has no
         demesne. See e.g. D. B. i. 41 b, Alwarestoch.

  [1106] Hist. Eng. Law, ii. 315

  [1107] Ine, 67. See Schmid's note.

  [1108] See above, p. 15.

  [1109] See Meitzen, Siedelung und Agrarwesen der Germanen, ii. 97
         ff.

  [1110] Stubbs, Const. Hist. i. 223.

  [1111] The subject is treated at length by Kemble, Saxons, ii. 490
         and App. D, and Schmid, p. 545.

  [1112] D. B. i. 174. Compare Ine, 4; Æthelr. VIII. 11; Cnut, I. 10.

  [1113] Hist. Eng. Law, ii. 95.

  [1114] Æthelred, III. 3; Schmid, App. II. 67 and Schmid, Glossar, s.
         v. _land-ceáp_.

  [1115] See above, pp. 55, 122, 125.

  [1116] See above, p. 6. In a charter of Æthelred, K. 689 (iii. 284),
         Abp. Sigeric, the reputed inventor of the danegeld, is
         represented as pledging a village of thirty manses in order
         that he may pay the money demanded by the pirates. He thus
         raises 90 pounds of purest silver and 200 mancuses of purest
         gold. If the mancus was the eighth of a pound (Schmid, p.
         595) we have 90 pounds of silver and 25 of gold, or in all
         perhaps £390. The whole danegeld of Kent under Henry II. was
         less than £106. For other transactions of a similar kind, see
         Crawford Charters, 76.

  [1117] See above, p. 27.

  [1118] Hist. Eng. Law, i. p. 416.

  [1119] K. 1327 (iv. 190): 'swa full and swa forð swa Sihtric eorll
         of ðan ministre þeowlic it heold.'

  [1120] Cnut, II. 20.

  [1121] Hist. Eng. Law, ii. p. 458.

  [1122] Chron. Petrob. 166: 'Sunt etiam in eadem scira 15 undersetes
         qui nullum servicium faciunt nisi husbondis in quorum terra
         sedent.'

  [1123] See above, p. 136.

  [1124] Schmid, App. III. p. 370; Seebohm, English Village Community,
         p. 129. See also Liebermann's article in Anglia, ix. 251,
         where the _Gerefa_, which seems to be a second part of this
         document, is printed.

  [1125] We here adopt Schmid's conjecture: 'and scorp to friðscipe
         [_corr._ fyrdscipe].'

  [1126] Ibid.: 'and hlaford feormian,' and supply a feorm (firma) for
         his lord.

  [1127] The text says that he must lie at his lord's fold; but
         probably it refers to the _soca faldae_. See above, p. 76.

  [1128] Of the serfs we hear (c. 8, 9) what they are to receive, but
         not what they ought to do; their services are unlimited.

  [1129] Schmid, p. 596: Maurer, K. U. ii. 405.

  [1130] See above, p. 305, also Maurer, K. U. ii. 406.

  [1131] He is to 'work' for his lord; but then see how Oswald speaks
         of his knights and radmen: 'semper illius ... dominatui et
         voluntati ... cum omni humilitate et subiectione subditi
         fiant secundum ipsius voluntatem.' Cf. D. B. i. 172 b:
         'deserviebat sicut episcopus volebat' ... 'tenuit ad
         servitium quod episcopus voluit.' The translator who turned
         him into a villanus was capable of turning the king's
         _geneat_ of Ine's law into a _colonus_, a _colonus_ with a
         wergild of 1200 shillings! See Schmid, p. 29.

  [1132] See above, p. 36.

  [1133] See e.g. cap. i., where it is pretty clear that he can not
         translate _scorp_. So in the Latin version of Edgar II. c. 1
         he renders _geneatland_ by _terra villanorum_. But about such
         a matter as this the testimony of the Quadripartitus is of no
         value. See Liebermann, Gerefa, Anglia, ix. 258.

  [1134] Mr Seebohm, p. 130, commits what seems to me the mistake of
         saying that the cottiers and boors are 'various classes of
         geneats.' To my thinking a great contrast is drawn between
         the _geneat_ and the _gebúr_ both in this document and in the
         account of Tidenham. So in Edgar II. c. 1 the contrast is
         between land which the great man has in hand and land which
         he has let to his 'fellows,' his _equites_ and _ministri_.
         See Konrad Maurer, K. U. ii. 405-6. Such words as _gebúr_ and
         _burus_ are obviously very loose words and it is likely that
         many a man who answered to the description of the _gebúr_
         given by the Rectitudines appears in Domesday Book, which in
         general cares only about fiscal distinctions, as a _villanus_
         or _bordarius_. But we have clear proof that the surveyors
         saw a class of _buri_ ( = _coliberti_) who were distinct from
         the ordinary _villani_. See above, p. 36.

  [1135] K. 452 (ii. 327). See also Two Chartularies of Bath Abbey
         (Somerset Record Society), pp. 5, 18, 19.

  [1136] K. iii. 449; E. 375: Seebohm, 148. Both documents come from
         MS. C.C.C. Camb. cxi. The conveyance is on f. 57, the
         statement of services on f. 73. The statement of services
         immediately precedes the lease of Tidenham to Stigand, K. 822
         (iv. 171). Thus we have really better reason for referring
         that statement to the very eve of the Norman Conquest than to
         956. See also Kemble, Saxons, i. 321, and Maurer, K. U. ii.
         406.

  [1137] K. 1077 (v. 146; iv. 306); T. 143; Kemble, Saxons, i. 319;
         Seebohm, 160. But the form of the instrument as given in the
         Codex Wintoniensis is best seen in B. ii. 240. We have quoted
         above the estimate of this Codex formed by Mr Haddan and Dr
         Stubbs (Councils, iii. 638).

  [1138] B. ii. 238.

  [1139] B. ii. 239.

  [1140] See above, p. 129.

  [1141] Ine, 67.

  [1142] Ine, 39. The man who leaves his lord (not his lord's land,
         but his lord) without license, or steals himself away into
         another shire, is to pay 60 shillings (no trivial sum) to his
         lord.

  [1143] Surely the law, Hloth. and Ead. c. 15, which begins 'If a man
         receive a guest three nights in his own home (an his agenum
         hame)' is not directed only against the lords of manors. See
         Meitzen, Siedelung und Agrarwesen, ii. 123.

  [1144] Ashley, Translation of Fustel de Coulanges, Origin of
         Property, p. xvi.

  [1145] K. 220 (i. 280): 'ad regalem villam Lundoniae perveniens.'

  [1146] Fustel de Coulanges, L'Alleu, ch. vi. There is much to be
         said on the other side; see Flach, Les origines de l'ancienne
         France, ii. pp. 47-62. As to the _villa_ of the Lex Salica,
         see Blumenstok, Entstehung des deutschen
         Immobiliareigenthums, i. 219 ff.

  [1147] The suggestion that _villa_ appears in some of our
         place-names as the termination _-well_ runs counter, so Mr
         Stevenson tells me, to rules of phonology.

  [1148] See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In
         the translation of St. Mark viii. 23, 26 both _wíc_ and _tun_
         are used as equivalents for _vicus_:--'eduxit eum extra vicum
         ... et si in vicum introieris' = 'and lædde hine butan þa wic
         ... and ðeah þu on tun ga.' Even in France the word _vicus_
         becomes part of numerous place-names: see Flach, op. cit. i.
         p. 53.

  [1149] There is something curious about the use made of _wick_. It
         is often used to distinguish a hamlet or small cluster of
         houses separate from the main village. Thus in the parish of
         _X_ we shall find _X-wick_. The _berewicks_ and _herdwicks_
         of D. B. (see above, p. 114) seem to be small clusters. On
         the other hand London is a _wíc_; Hloth. and Ead. 16.

  [1150] K. 1041 (v. 88): 'in Dorobernia etiam civitate unam villam
         donabo ad quam pertinet quinque iugera terrae et duo prata.'
         K. 276 (ii. 57): 'dabo unam villam, quod nos Saxonice an haga
         dicimus.' K. 259 (ii. 26): 'villam unam ab orientale parte
         muri Doroverniae civitatis.'

  [1151] K. 829 (iv. 191).

  [1152] K. 845 (iv. 204). In a passage which has been interpolated
         into one copy of the A.-S. Chronicle (Thorpe, p. 220) we read
         'And se biscop ... bohte þa feala cotlif æt se king.'

  [1153] Crawford Charters, pp. 22, 125; K. 1293 (vi. 138).

  [1154] Thus K. 109 (i. 133): 'villam unam ... quae iam ad Quenegatum
         urbis Dorovernensis in foro posita est.' It is not denied
         that in some quite early charters a king gives a _villa_ or
         _villula_, e.g. K. 209 (i. 264): 'Heallingan cum villulis
         suis'; see also K. 140 (i. 169), in which _villula_ and
         _viculus_ are used as synonyms.

  [1155] A good example is that abominable forgery K. 984 (v. 2),
         Wulfhere's charter for Peterborough.

  [1156] For example, K. 117-8-20 (i. 144-7).

  [1157] One of the earliest instances of what looks like manorial
         organization will be found in K. 201 (i. 253); B. i. 485. In
         814 Cenwulf gives to the Abp. of Canterbury a plough-land:
         'et hoc aratrum cum omnibus utensilibus bonis ad mansionem in
         grafon æa [Graveney] æternaliter concessum est.'

  [1158] A.D. 880, K. 311 (ii. 107): 'Insuper etiam huic donationi in
         augmentum sex homines, qui prius pertinebant ad villam regiam
         in Beonsinctune, cum omni prole stirpeque eorum ad eandem
         conscripsimus aecclesiam.' A.D. 889, K. 315 (ii. 117): 'cum
         hominibus ad illam pertinentibus.' A.D. 962, K. 1239 (vi.
         49): 'vineam ... cum vinitoribus.' In late documents penned
         in English it is common to convey land 'with meat and with
         man.' Instances are collected in Crawford Charters, 127.

  [1159] Therefore we sometimes meet with the form _cassata_, while
         _manens_ is treated as a feminine word; K. i. 301; B. i. 573:
         'has x. manentes ... dividendas dimisit.' So Asser (ed.
         Camden, p. 4) says that Æthelwulf ordered that one poor man
         should be fed and clothed 'per omnem hereditariam terram suam
         semper in x. manentibus.'

  [1160] K. 1033 (v. 73): 'aliquam portionem terrae ... in modum
         videlicet ut autumo v. cassatorum.' K. 1308 (v. 83): 'aliquam
         portionem terrae ... in modum videlicet ut autumo xx.
         manentium.' K. 565 (iii. 64): 'quoddam ruris clima sub
         aestimatione decem cassatorum.' K. 573 (iii. 87): 'ruris
         quandam particulam, denis ab accolis aestimatam
         mansiunculis.' K. 602 (iii. 146): 'quoddam rus x. videlicet
         mansarum quantitate taxatum.'

  [1161] Let us open the Cod. Dipl. at the beginning of Edmund's reign
         (ii. 218). The number of manses given in twenty-five
         consecutive charters is as follows: 10, 20, 10, 10, 9, 10,
         15, 7, 8, 20, 10, 3, 5, 20, 30, 3, 6, 5, 3, 7, 20, 20, 5, 8,
         5.

  [1162] It seems almost necessary to protest that to-day our
         landowners are not semi-servile occupants of the soil, though
         they pay land taxes, house taxes, income taxes and rates
         innumerable.

  [1163] I can not but think that Fustel de Coulanges knew his
         business thoroughly well, and that if the German is to be
         taught his proper and insignificant place, the less that is
         said of intermixed 'strip-holding' the better, though to
         ignore it utterly was, even in France, a bold course.

  [1164] Meitzen, op. cit. i. 431-41.

  [1165] See above, p. 139.



§ 6. _The Village Community._


[The village community.]

We have argued for an England in which there were many free villages. It
remains for us to say a word of the doctrines which would fill England
with free landowning village communities. Here we enter a misty region
where arguments suggested by what are thought to be 'survivals' and
inferences drawn from other climes or other ages take the place of
documents. We are among guesses and little has as yet been proved.

[The popular theory.]

A popular theory teaches us that land belonged to communities before it
belonged to individuals. This theory has the great merit of being vague
and elastic; but, as it seems to think itself precise, and probably owes
some of its popularity to its pretence of precision, we feel it our duty
to point out to it its real merit, its vague elasticity.

[Co-ownership and ownership by corporations.]

It apparently attributes the ownership of land to communities. It
contrasts communities with individuals. In so doing it seems to hint,
and yet to be afraid of saying, that land was owned by corporations
before it was owned by men. The hesitation we can understand. No one who
has paid any attention to the history of law is likely to maintain with
a grave face that the ownership of land was attributed to fictitious
persons before it was attributed to men. But if we abandon ownership by
corporations and place in its stead co-ownership, then we seem to be
making an unfortunate use of words if we say that land belonged to
communities before it belonged to individuals. Co-ownership is ownership
by individuals. When at the present day an English landowner dies and
his land descends to his ten daughters, it is owned by individuals, by
ten individuals. If each of these ten ladies died intestate leaving ten
daughters, the land would still be owned by individuals, by a hundred
individuals.

['Communities' as owners.]

The distinction that modern law draws between the landowning corporation
and the group of co-owners is as sharp as any distinction can be. It
will be daily brought home to any one who takes an active share in the
management of the affairs of a corporation, for example, a small college
which has a master, six fellows and eight scholars. A conveyance of land
to the college and a conveyance of land to these fifteen men would have
utterly different effects. A corporation may be deep in debt while none
of its members owes a farthing. Now we may suspect, and not without
warrant, that in a remote past these two very different notions, namely
that of land owned by a corporation and that of land owned by a group of
co-owners were intimately blent in some much vaguer notion that was
neither exactly the one nor exactly the other. We may suspect that could
we examine the conduct of certain men who lived long ago we should be
sorely puzzled to say whether they were behaving as the co-owners of a
tract of land or as the members of a corporation which was its owner.
But to fashion for ourselves any clear and stable notion of a _tertium
quid_ that is neither corporate ownership nor co-ownership, but partly
the one and partly the other, seems impossible[1166]. Therefore if, in
accordance with the popular theory, we attribute the ownership of lands
to 'communities,' we ought to add that we do not attribute it to
corporations and that we are fully aware that co-ownership can not be
sharply contrasted with ownership by individuals.

[Possession and ownership.]

Also since we are apt to fall into the trick of talking about possession
when we mean ownership or proprietary right, we need not perhaps ask
pardon for the remark that land owned by a group of three joint tenants
may be possessed in many different ways. The three may be jointly
possessing the whole; each may be severally possessing a physically
divided third; the whole may be possessed by one of them or by some
fourth person; the possession may be rightful or wrongful.

But there is a graver question that must be raised. When we say that
land belonged to communities before it belonged to individuals, are we
really speaking of ownership or of something else?

[Ownership and governmental power.]

At the present day no two legal ideas seem more distinct from each other
than that of governmental power and that of proprietary right. The
'sovereign' of Great Britain (be the sovereignty where it may) is not
the owner of Great Britain, and if we still say that all land is 'held
of' the king, we know that the abolition of this antique dogma, this
_caput mortuum_, might be easily accomplished without any perceptible
revolution in the practical rules of English law. A landowner in the
United States does not 'hold of' the State or the people or the
government of the State. The 'eminent domain' of the State is neither
ownership nor any mode of ownership. Further, we conceive that the
sovereign person or sovereign body can, without claiming any ownership
in the soil, place many restrictions on the use that an owner may make
of his land. A law may prohibit owners from building on certain lands:
those lands are still their lands. Again, the supposed law may be not a
negative but a positive rule; it may require that the owners of certain
lands shall build upon them, or shall till them, or shall keep them as
pasture[1167]: still neither state nor sovereign will be owner of those
lands or have any proprietary interest in them. Our law may subject
certain lands to a land-tax to be paid to the state in money, or to a
tithe to be paid to the church in kind, but the state will not and the
church will not be part-owner of those lands. Our state may habitually
expropriate owners, may take their lands from them because they are
felons or because their lands are wanted for the construction of
railways. We may conceive it expropriating owners who have done no wrong
and yet are to have no compensation; but until the expropriation takes
place the state does not own the land. As with land, so with chattels.
The owner of a cart may find that it is impressed for the purpose of
military transport[1168] and yet the cart is his and not the state's.

[Ownership and the powers of subordinate governors.]

Similar powers may be exercised by persons or bodies that are not
sovereign, for example, by the governor of a province, by a county
council or a municipal corporation. Suppose that the owners of land
situate within a certain borough are prohibited by a by-law from placing
on their soil any buildings the plans of which have not been approved by
the town council. Carry this supposition further:--suppose that the town
council is a 'folk-moot' which every inhabitant of the borough may
attend. Still, according to our thinking, there would here be no
communal ownership and no division of ownership between individuals and
a corporation. If we thought it well to say that in such a case the
community would have some kind of 'eminent domain' over the land of
individuals, we should have to add that this kind of eminent domain was
not a proprietary right, but merely governmental power, a power of
making general rules and issuing particular commands. Nor would the case
be altered if the expressed object of such rules and commands was the
interest, it may even be the pecuniary interest, of the men of the town.
The erection of buildings may be controlled in order that the town may
be wholesome and sightly, or we may conceive that landowners in the
suburbs are compelled to keep their land as market-gardens or as
dairy-forms in order that vegetables or milk may be cheap:--for all this
the town council or community of townsfolk would have no property in the
land.

[Evolution of sovereignty and ownership.]

But though this be so, we can not doubt that could we trace back these
ideas to their origin, we should come to a time when they were hardly
distinct from each other. The language of our medieval law tells us that
this is so. The one word _dominium_ has to cover both proprietary rights
and many kinds of political power; it stands for ownership, lordship,
sovereignty, suzerainty. The power that Edward I. wields over all
England, the power that he claims over all Scotland, all Gascony, the
right that he has in his palace of Westminster, the right that he has in
his war-horse, all these are but modes of _dominium_. Then we imagine a
barbarous horde invading a country, putting its inhabitants to the sword
and defending it against all comers. Doubtless in some sort the land is
its land. But in what sort? In the sort in which Queen Victoria or the
British nation has lands in every quarter of the globe, the sort in
which all France belongs to the French Republic, or the sort in which
Blackacre is the land of John Styles? Have the barbarians themselves
answered this question? Have they asked it[1169]?

[Communal ownership as a stage.]

Now if we are going to confuse sovereignty with ownership, _imperium_
with _dominium_, political power with proprietary right, why then let
our socialists and collectivists cease their striving and sing _Te
Deum_. Already their ideal must be attained. Every inch of the soil of
France, to name one instance, 'belongs' to the French Republic. But, if
we would not be guilty of this confusion, then we must be very careful
before we assent to the proposition that in the normal course of history
(if indeed in such a context history can be said to have a normal
course) the ownership of land by communities appears before the
ownership of land by individuals. Even if we put aside all such
criticisms as would be legal quibbles in the eyes of impatient
theorists, and refuse to say whether the 'community' is a mass of men,
an ideal person or _tertium quid_, we still are likely to find that the
anthropologists will be against us. We are now told by one of the
acutest of explorers that, if we leave out of account as no true case of
ownership the sort of inchoate sovereignty which an independent tribe
of hunters may exercise over a piece of the world's surface, 'ownership
of land by individuals' is to be found at a much lower grade in the
scale of civilization than that at which 'communal ownership' makes its
first appearance[1170]. Communal ownership, it is said, is not seen
until that stage is reached at which the power of the chieftain is
already a considerable force and the work of centralization is
progressing. With these inductions we do not meddle; but if the
anthropologist will concede to the historian that he need not start from
communalism as from a necessary and primitive _datum_, a large room will
be open for our guesses when we speculate about the doings of a race of
barbarians who have come into contact with Roman ideas. Even had our
anthropologists at their command materials that would justify them in
prescribing a normal programme for the human race and in decreeing that
every independent portion of mankind must, if it is to move at all, move
through one fated series of stages which may be designated as Stage _A_,
Stage _B_, Stage _C_ and so forth, we still should have to face the fact
that the rapidly progressive groups have been just those which have not
been independent, which have not worked out their own salvation, but
have appropriated alien ideas and have thus been enabled, for anything
that we can tell, to leap from Stage _A_ to Stage _X_ without passing
through any intermediate stages. Our Anglo-Saxon ancestors did not
arrive at the alphabet, or at the Nicene Creed, by traversing a long
series of 'stages'; they leapt to the one and to the other.

[A normal sequence of stages.]

But in truth we are learning that the attempt to construct a normal
programme for all portions of mankind is idle and unscientific. For one
thing, the number of such portions that we can with any plausibility
treat as independent is very small. For another, such is the complexity
of human affairs and such their interdependence, that we can not hope
for scientific laws which will formulate a sequence of stages in any one
province of man's activity. We can not, for instance, find a law which
deals only with political and neglects proprietary arrangements, or a
law which deals only with property and neglects religion. So soon as we
penetrate below the surface, each of the cases whence we would induce
our law begins to look extremely unique, and we shall hesitate long
before we fill up the blanks that occur in the history of one nation by
institutions and processes that have been observed in some other
quarter. If we are in haste to drive the men of every race past all the
known 'stages,' if we force our reluctant forefathers through agnatic
_gentes_ and house-communities and the rest of it, our normal programme
for the human race is like to become a grotesque assortment of odds and
ends.

[Was land owned by village communities?]

It is an interesting question whether in the history of our own people
we ought to suppose any definite 'stage' intermediate between the
introduction of steady agriculture and the ownership of land by
individuals. To say the least, we have no proof that among the Germans
the land was continuously tilled before it was owned by individuals or
by those small groups that constituted the households. This seems to be
so whether we have regard to the country in which the Germans had once
lived as nomads or to those Celtic and Roman lands which they subdued.
To Gaul and to Britain they seem to have brought with them the idea that
the cultivable land should be allotted in severalty. In some cases they
fitted themselves into the agrarian framework that they found; in other
cases they formed villages closely resembling those that they had left
behind them in their older home. But to all appearance, even in that
older home, so soon as the village was formed and had ploughed lands
around it, the strips into which those fields were divided were owned in
severalty by the householders of the village. Great pains had been taken
to make the division equitable; each householder was to have strips
equal in number and in value, and to secure equivalence each was to have
a strip in every part of the arable territory. But our evidence, though
it may point to some co-operation in agriculture, does not point to a
communistic division of the fruits[1171]. Nor does it point to a time
when a village council or a majority of villagers conceived that it had
power to re-allot the arable strips at regular or irregular
intervals[1172]. On the contrary, the individual's hold upon his strips
developed very rapidly into an inheritable and partible ownership. No
doubt this ownership grew more intense as time went on. It is a common
remark that during yet recent ages the ownership of land that is known
to our law has been growing more intense. This is true and patent
enough; the landowner has gained powers of alienation that his
predecessors did not enjoy. Possibly the only ownership of land that was
known to the Lex Salica was inalienable and could be inherited only by
sons of the dead owner. Then again, in old days a trespass that did no
harm would have been no trespass. 'Nominal damages' are no primitive
institution, and for a long time a man may have had no action if strange
cattle browsed over land on which no crop of corn was ripening[1173].
But this growing intensity of ownership may be seen also in the case of
movable goods. Indeed there is a sense in which English law may be said
to have known a full ownership of land long ages before it knew a full
ownership of chattels[1174]. What, however, we are concerned to observe
is that the German village community does not seem to have resisted this
development of ownership or set up for itself any antagonistic
proprietary claim. It sought no more as regards the arable fields than a
certain power of regulating their culture, and in old times the
_Flurzwang_, the customary rotation of crop and fallow, must have
appeared less as the outcome of human ordinance than as an unalterable
arrangement established by the nature of things in general and of acre
strips in particular[1175].

[Sidenote: Meadows, pasture and wood.]

Thus, so far back as we can see, the German village had a solid core of
individualism. There were, however, lands which in a certain sense
belonged to it and which were not allotted for good and all among its
various members. For one thing, the meadows were often subjected to a
more communal scheme. In the later middle ages we may see them annually
redistributed by rotation or by lot among the owners of the arable. The
meadows, which must be sharply distinguished from the pasture, were few,
and, as we may see from Domesday and other records, they were
exceedingly valuable. Probably their great but varying value stood in
the way of any permanent partition that would have seemed equitable.
Still they were allotted annually and the right to an allotment 'ran
with' the house and the arable strips. But again, there were woods and
pastures. If we must at once find an owner for this _Almende_, we may be
inclined to place the ownership in a village community, though not
without remembering that if this community may develop into a
land-owning corporation, it may develop into a group of co-owners. But
in all likelihood the question as to the whereabouts of ownership might
go unanswered and unasked for a long time. Rights of user exercisable
over these woods and pastures were attached to the ownership of the
houses and the arable strips, and such 'rights of common' may take that
acutely individualistic form which they seem to have taken in the
England of the thirteenth century. The freeholder of 'ancient arable,'
whose tenement represents one of the original shares, has a right to
turn out beasts on the waste, on the whole waste and every inch of it,
and of this right nor lord, nor community can deprive him[1176]. Perhaps
we may attribute to our law about this matter an unusual and, in a
certain sense, an abnormal individualism. In the much governed England
of the Angevin time, the strong central power encouraged every
freeholder to look to it for relief against all kinds of pressure
seignorial or communal. Elsewhere a village moot may assume and retain
some control over these pasture rights. But still the untilled land, the
waste, the _Almende_, exists mainly, if not solely, for the benefit of a
small group of tenements that are owned and possessed in severalty. As
to the ownership of the land that is subject to the rights of pasture,
it is a nude, a very nude _dominium_, and for a long while no one gives
it a thought.

[The bond between neighbours.]

In a favourable environment the German village community may and will
become a landowning corporation. But many dangers lie before it:
internal as well as external dangers. We must not think of it as a
closely knit body of men. The agrarian is almost the only tie that keeps
it together. Originally the men who settle down in a village are likely
to be kinsmen. Some phrases in the continental folk-laws, and some
perhaps of our English place-names, point in this direction. But
(explain this how we will) the German system of kinship, which binds men
together by the sacred tie of blood-feud, traces blood both through
father and through mother, and therefore will not suffer a
'blood-feud-kin' to have either a local habitation or a name[1177]. Very
soon, especially if daughters or the sons of daughters are allowed (and
very ancient Frankish laws allow them) to inherit the dead man's land, a
man who lives in one village will often be closer of kin to men who live
in other villages than to his neighbours. The village community was not
a _gens_. The bond of blood was sacred, but it did not tie the Germans
into mutually exclusive clans. Nor did it hold them in large
'house-communities,' for the partible inheritance seems as a general
rule to have been soon partitioned[1178]. Nor again may we ascribe to
the German house-father much power over his full-grown sons[1179].

[Feebleness of the village community.]

Moreover, the village community was not a body that could declare the
law of the tribe or nation. It had no court, no jurisdiction. If moots
were held in it, these would be comparable rather to meetings of
shareholders than to sessions of a tribunal. In short, the village
landowners formed a group of men whose economic affairs were
inextricably intermixed, but this was almost the only principle that
made them an unit, unless and until the state began to use the township
as its organ for the maintenance of the peace and the collection of
taxes. That is the reason why we read little of the township in our
Anglo-Saxon dooms[1180]. Only as the state's pressure increases, does
the vill become one of the public institutions of the kingdom. We may
even exaggerate the amount of agricultural co-operation that was to be
found within it. Beyond the age in which the typical peasant is a
virgater contributing two oxen to a team of eight, our English evidence
seems to point to a time when the normal 'townsman' held a hide and had
slaves and oxen enough for its cultivation. Nor in all probability was
the village community a large body. We may doubt whether in the oldest
days it usually comprised more than some ten shareholders[1181].

[Absence of organization.]

Whatever might come in course of time, we must not suppose that the
village had much that could be called a constitution. In particular, we
must be careful not to carry too far back the notion that votes will be
counted and that the voice of a majority will be treated as the voice of
all. When that marvellous title _De migrantibus_ raises a corner of the
curtain and gives us our only glance into a village of newly settled
Salian Franks, the one indisputable trait that we see among much that is
disputable is that the new-comer must leave the village if one villager
objects to his presence. His presence, we may suppose, might be
objectionable because it might add to the number of those who enjoyed
wood, waste and water in common; but any one villager can insist on his
departure. Out of this state of things 'communal ownership' may grow;
but all the communalism that we see at present is very like
individualism[1182]. Above all, we must not picture these village lands
as 'impressed with a trust' in favour of unborn generations or as
devoted to 'public purposes.' If in course of time small folk, cottiers,
'under-settles' and the like, are found in the village, they will have
to struggle for rights in the waste, and the rights, if any, that they
get will be meagre when compared with those of the owners of 'whole
lands' and 'half lands.' An oligarchy of peasant proprietors may rule
the waste and the village.

[The German village on conquered soil.]

Thus even in favourable circumstances there were many difficulties to be
overcome if the communalism, such as it was, of the village community
was to be maintained and developed. But where the village was founded
upon conquered soil the circumstances were not favourable. If the
Germans invaded Gaul or Britain, the very fields themselves seemed to
rebel against communalism and to demand a ring-fenced severalty.
Throughout large tracts in Gaul the barbarians were content to adapt
themselves to the shell that was provided for them. A certain aliquot
share of every estate might be taken from its former owner and be
allotted to a Burgundian or a Goth according to a uniform plan[1183].
Throughout other large tracts villages of the Germanic type were
founded; a large part of northern Gaul was studded with such villages,
and it may be well for us to remember that some of our Norman
subjugators came to us from a land of villages, if others came from a
land of isolated homesteads[1184]. There can be little doubt that in
Britain numerous villages were formed which reproduced in all essentials
the villages which Saxons and Angles had left behind them on the
mainland, and as little doubt that very often, in the west and
south-west of Britain, German kings and eorls took to themselves
integral estates, the boundaries and agrarian arrangement whereof had
been drawn by Romans, or rather by Celts[1185].

[Development of kingly power.]

Then the invasions and the long wars called for a rapid development of
kingship. Very quickly the Frankish kingship became despotism. In
England also the kings became powerful and the hereditary nobles
disappeared. There was taxation. The country was plotted out according
to some rude scheme to provide the king with meat and cheese and
ale[1186]. Then came bishops and priests with the suggestion that he
should devote his revenues to the service of God and with forms of
conveyance which made him speak as if the whole land were his to give
away. Here, so we have argued, was the beginning of a process which
placed many a village under a lord. The words of this lord's 'book' told
him that he was owner, or at least lord, of this village 'with its woods
and its pastures.' The men of the village might or might not maintain
all their accustomed rights, but at any rate no expansion of those
rights beyond the ancient usage was possible. The potentialities of the
waste (if we may so speak) had been handed over to a lord; the future
was his.

[Free villages in England.]

We must not, however, repeat what has been lengthily said above touching
the growth of the manorial system, though we are painfully aware that we
have neglected many phases of the complicated process. Here let us
remember that this process was not complete in the year 1066, and let us
look once more at the free villages in the east; for example, at
Orwell[1187]. Who owned the land that served as a pasture for the
_pecunia villae_? Shall we place the ownership in the thirteen holders
of the arable strips into which the four hides were divided, or in a
corporation whereof they were the members, or in their various lords,
those eight exalted persons to whom they were commended, or shall we say
that here is _res nullius_? The supposition that the lords are owners of
the waste we may briefly dismiss. The landholders are free to 'withdraw
themselves' and seek other lords. That the land is _res nullius_ we may
also positively deny, if thereby be meant that it lies open to
occupation. Let a man of the next village turn out his beasts there and
he will find out fast enough that he has done a wrong. But who will sue
him? Will all the villagers join as co-plaintiffs or will the village
corporation appear by its attorney? Far more in accordance with all that
we see in later days is it to suppose that any one of the men of Orwell
who has a right to turn out beasts can resent the invasion[1188]. This
brings to our notice the core of individualism that lies in the centre
of the village. The houses and the arable strips are owned in severalty,
and annexed to these houses and arable strips are pasture rights which
are the rights of individuals and which, it may be believed, seem to
exhaust the utility of the waste. What remains to dispute about? A nude,
a very nude _dominium_, which is often imperceptible.

[The village meeting.]

Not always imperceptible. From time to time these Orwell people in town
meeting assembled may have taken some grave resolution as to the
treatment of the waste. They may now and then have decided to add to the
amount of arable and diminish the amount of pasture. But occasional
measures of this sort, for which a theoretical, if not a real, unanimity
is secured, will not generate a regulative organ, still less a
proprietary corporation. In decade after decade a township-moot at
Orwell would have little to do. The moot of the Wetherley hundred is the
court that deems dooms for the men of Orwell. If the lands of Orwell had
been steadily regarded as the lands of a corporation they would have
passed in one lump to some one Norman lord. But such corporate feeling
as there was was weak. The men of Orwell had been seeking lords, each
man for himself, in the most opposite quarters. Many of the virgates
that are physically in one village have, as we have seen[1189], been
made 'to lie in' other villages; for the free man can carry his land
where he pleases. When this is so, he is already beginning to feel that
the tie which keeps him in a village community is a restraint that has,
perhaps unfortunately, been imposed upon him and his property by ancient
history.

[What might have become of the free village.]

The fate of these lordless communities and of their waste was still
trembling in the balance when King Harold fell. To guess what would have
happened had he held his own is not easy. It is possible that what was
done by foreigners would have been done, though less rapidly, by lords
of English race, and that by consolidating soke and commendation into a
firm landlordship and then making among themselves treaties of
partition, they would have acquired the ownership of the pasture land
subject to the rights of common. It is perhaps more probable that in
some cases the old indeterminate state of things might have been
maintained until the idea of a fictitious personality had spread from
the chapter-house to the borough and from the borough to the village.
Then the ownership of the soil might have been attributed to a
corporation of which the freeholders in the village were the members.
One famous case which came to light in the seventeenth century may warn
us that throughout the middle ages there were here and there groups of
freeholders, and even of customary tenants, who were managing agrarian
affairs in a manner which feudalism could not explain and our English
law would not warrant, for they were behaving as though they were
members of a landowning corporation[1190]. Often in the east of England
the manors must have been so intermixed that village meetings, not
however of a democratic kind, may have dealt with business which lay
outside the competence of any seignorial court. We know little and, it
is to be feared, must be content to know little of such meetings. They
were not sessions of a tribunal; they kept no rolls; the law knew them
not. But we dare not say that if all seignorial pressure had been
removed, the village lands would have been preserved as communal lands
for modern villagers. Where there was no seignorial pressure, no joint
and several liability for dues, the tie was lax between the owners of
the strips in the village fields; and if there was a corporate element
in their union, there was also a strong element of co-ownership. Had
they been left to themselves, we can not say with any confidence that
they would not sooner or later have partitioned the waste. Was it not
their land, and might they not do what they liked with their own?

[Mark communities.]

One other question may be touched. It was the fashion in England some
years ago that those who spoke of village communities should say
something of 'the Germanic mark.' What they said seemed often to imply
that the German village community was a mark community. This was a
mistake. It seems indeed that there were parts of Germany in which the
word 'mark' was loosely used[1191]; but the true _Markgenossenschaft_
was utterly different from the _Dorfgenossenschaft_, and the lands with
which it dealt were just those lands that belonged to no village[1192].
In the country which saw the Germans becoming an agricultural race, the
lands belonging to the villages were but oases in a wild territory. In
later days some large piece of this territory is found to be under the
control of a 'mark-community,' whose members are dwelling here and there
in many different villages and exercise rights over the land (for the
more part it is forest land[1193]) that belongs to no village but
constitutes the mark. Traces of what might have become 'the mark system'
may perhaps be found in England; but not where they have been usually
sought.

[Intercommoning between vills.]

We read of a tract in Suffolk which is common pasture for the whole
hundred of Coleness[1194]. Instances in which a piece of land is common
pasture for many vills were by no means uncommon in the thirteenth
century. They grow rarer as time goes on. Our law provided but a
precarious and uncomfortable niche for them under the rubric _common pur
cause de vicinage_[1195]. These are the traces of what in different
surroundings might have become, and perhaps were near to becoming, mark
communities. In the thirteenth century the state seems to have been
already enforcing the theory that every inch of land ought to lie within
the territory of some vill[1196]. This was a police measure. The
responsibility of one set of villagers was not to cease until the
boundary was reached where the responsibility of another set began. But
even in recent times there have been larger moors in the north of
England which 'belonged' (we will use a vague word) to two or more
townships in common. At any rate, we must not take back this theory that
the vills exhaust the land into the days of the Germanic
settlement[1197]. In some districts the vills must have been separated
from each other by wide woods, and in all likelihood large portions of
these woods were not proper to any one village, but were regarded as
belonging, in some sense or another, to a group of villages. However,
land of this kind was just the land which was most exposed to an
assertion of royal ownership, and we imagine that a mark community had
from the first little chance of organizing itself in England[1198]. But
we have already made too many guesses.

[Last words.]

We must not be in a hurry to get to the beginning of the long history of
law. Very slowly we are making our way towards it. The history of law
must be a history of ideas. It must represent, not merely what men have
done and said, but what men have thought in bygone ages. The task of
reconstructing ancient ideas is hazardous, and can only be accomplished
little by little. If we are in a hurry to get to the beginning we shall
miss the path. Against many kinds of anachronism we now guard ourselves.
We are careful of costume, of armour and architecture, of words and
forms of speech. But it is far easier to be careful of these things than
to prevent the intrusion of untimely ideas. In particular there lies a
besetting danger for us in the barbarian's use of a language which is
too good for his thought. Mistakes then are easy, and when committed
they will be fatal and fundamental mistakes. If, for example, we
introduce the _persona ficta_ too soon, we shall be doing worse than if
we armed Hengest and Horsa with machine guns or pictured the Venerable
Bede correcting proofs for the press; we shall have built upon a
crumbling foundation. The most efficient method of protecting ourselves
against such errors is that of reading our history backwards as well as
forwards, of making sure of our middle ages before we talk about the
'archaic,' of accustoming our eyes to the twilight before we go out into
the night.


FOOTNOTES:

  [1166] This seems to me the net outcome of the long and interesting
         controversy which has divided the Germanists as to the
         nature of the German _Genossenschaft_.

  [1167] This is no extravagant hypothesis. See e.g. Stat. 7 Hen.
         VIII. c. 1 Thacte advoidyng pullyng downe of townes.

  [1168] See Army Act, 1881, 44 and 45 Vic. c. 58, sec. 115.

  [1169] Flach, Les origines de l'ancienne France, ii. 45, referring
         to the classical passages in Cæsar and Tacitus, says: 'Ce
         serait un abus de mots de dire que la tribu ou que le clan
         sont propriétaires. La tribu (_civitas_) a la souveraineté du
         territoire, les clans de leurs subdivisions ont l'usage des
         parts qui leur sont assignées. La conception même de la
         propriété est exclue par la nature des terres: étendue de
         friches toujours renaissantes et en surabondance toujours:
         _superest ager_.' See also Dargun, Ursprung des Eigenthums,
         Zeitschrift für vergleichende Rechtswissenschaft, v. 55.

  [1170] Dargun, Ursprung des Eigenthums, Zeitschrift für
         vergleichende Rechtswissenschaft, v. 1 (1884). See also
         Hildebrand, Recht und Sitte, Jena, 1896.

  [1171] In the A.-S. laws about tithes there is really no hint of
         communalism. When a landowner has ploughed his tenth acre, he
         is to assign that acre, or rather the crop that it will bear
         next year, to the church. That is all; and though it may be a
         rude plan, it is compatible with the most absolute
         individualism. Mr Seebohm, Village Community, 114, however,
         seems to think otherwise. As to the Welsh laws, we beg an
         enormous question if we introduce them into this context. A
         distribution of acres when the ploughing is done is just what
         we do not see in England.

  [1172] As to the famous words of Tacitus 'Agri pro numero cultorum
         ab uniuersis in uices [_al._ inuicem] occupantur' and the
         proposal to read _uniuersis vicis_, one of the best
         suggestions yet made (Meitzen, Siedelung, iii. 586) is that
         Tacitus wrote merely _ab uniuersis occupantur_, that a
         copyist repeated the word _uniuersis_, and that other
         copyists tried to make sense of nonsense.

  [1173] As to the state of things represented by the Lex Salica see
         Blumenstok, Entstehung des deutschen Immobiliareigenthums,
         Innsbruck, 1894, pp. 196 ff.

  [1174] Hist. Eng. Law, ii. 155. It may be convenient now-a-days to
         say that _ownership_ implies a power of alienation. See
         Pollock, Jurisprudence, 166. But to insist on this usage in
         such discussions as that in which we are engaged would lead
         to needless circumlocution. The question that is before us is
         whether as a complaint to which a court of law will give
         audience 'This acre is mine' is more modern than 'This acre
         is ours.'

  [1175] As to the whole of this matter see Meitzen, op. cit.,
         especially iii. 574-589. As regards arable land in this
         country the only 'survivals' which point to anything that
         should be called communal ownership are singularly
         inconclusive. They relate to small patches of arable land
         held by burgesses: that is to say, they relate to places in
         which a strong communal sentiment was developed during the
         later middle ages, and they do not relate to communities that
         ought to be called agricultural. The 'burgess plot' is not
         large enough to have been any man's livelihood when
         cultivated in medieval fashion, and it may well be modern. It
         is demonstrable that in one case a very 'archaic' arrangement
         was deliberately adopted in the nineteenth century by
         burgesses who preferred 'allotment grounds' to pasture
         rights. Maitland, Survival of Archaic Communities, Law
         Quarterly Review, ix. 36.

  [1176] Hist. Eng. Law, i. 610-12.

  [1177] Hist. Eng. Law, ii. 238. A hypothetical practice of endogamy
         will hardly give us the requisite explanation, for on the
         whole the church seems to have encountered little difficulty
         in imposing its extravagantly exogamous canons. To persuade
         the converts not to marry their _affines_ was a much harder
         task.

  [1178] Heusler, Institutionen, 229.

  [1179] As to the ownership of land by 'families,' see Hist. Eng.
         Law, ii. 242.

  [1180] See above, p. 147.

  [1181] Of this in the next essay.

  [1182] A valuable and interesting discussion of the proprietary
         system of the Lex Salica will be found in Blumenstok,
         Entstehung des deutschen Immobiliareigenthums, Innsbruck,
         1894. This will serve as a good introduction to the large
         literature which surrounds the _De migrantibus_. The least
         probable of all interpretations seems that given by Fustel de
         Coulanges.

  [1183] See Meitzen, op. cit. i. 526-35.

  [1184] Meitzen, i. 517 and the Maps 66 _a_, 66 _b_ in the Atlas.

  [1185] Meitzen, ii. 97-122.

  [1186] See above, p. 237.

  [1187] See above, p. 129.

  [1188] Throughout the historical time, so far as we know, the right
         of every commoner has been well protected against strangers.
         He might drive off the stranger's beasts, impound them, and,
         at all events if he had been incommoded, might sue for
         damages. See _Marys's case_, 9 Coke's Reports, 111 b; _Wells_
         v. _Watling_, 2 W. Blackstone's Reports, 1233. He needed no
         help from his neighbours.

  [1189] See above, pp. 13, 124.

  [1190] I refer to the much discussed case of Aston and Cote. See Law
         Quarterly Review, ix. 214.

  [1191] Meitzen, op. cit. i. 573.

  [1192] Ibid. i. 122-60.

  [1193] Therefore its assembly is a _Holtding_, and a _Holzgraf_
         presides there: Meitzen, op. cit. i. 125.

  [1194] D. B. ii. 339 b: 'In hundret de Coleness est quedam pastura
         communis omnibus hominibus de hundret.' At Rhuddlan (D. B. i.
         269) Earl Hugh has given to Robert half the castle, half the
         burg, and 'half of the forests which do not pertain to any
         vill of the said manor.' This, however, is in Wales.

  [1195] Hist. Eng. Law, i. 608.

  [1196] Ibid. i. 547.

  [1197] Blomefield, Hist. Norfolk, iv. 691 gives an account of an
         extremely fertile tract of pasture known as Tilney Smeeth
         upon which the cattle of seven 'towns' intercommoned.

  [1198] If we are right in supposing that very generally a royal
         land-book disposes of a whole village, then if it proceeds to
         give rights in the _communis silva_, it is probably speaking
         of a wood that is not regarded as annexed to that village but
         of one which is common to various villages. The
         intercommoning of vills in a forest is illustrated by the
         famous Epping case, _Commissioners of Sewers_ v. _Glasse_,
         Law Reports, 19 Equity, 134. But for the king's rights in
         forest land, a 'mark community' might have grown up in
         Epping. On the other hand, but for the king's rights, the
         land might long ago have been partitioned among the
         mark-men.



                             ESSAY III.

                             THE HIDE.


[What was the hide?]

What was the hide? However unwilling we may be to face this dreary old
question, we can not escape it. At first sight it may seem avoidable by
those who are interested in the general drift of national life, but have
no desire to solve petty problems or face unnecessary difficulties. The
history of weights and measures, some may say, is probably very curious
and no doubt is worth study; but we, who shall be amply satisfied if we
understand the grand movements and the broad traits, must leave this
little province, as we must leave much else, to antiquarian specialists.
Unfortunately, however, that question about the hide is 'pre-judicial'
to all the great questions of early English history.

[Importance of the question.]

If our choice lay between 30 and 40 acres, or again between a long and a
short hundred, then indeed we might refuse to take part in the conflict.
But between the advocates of big hides of 120 acres or thereabouts and
the advocates of little hides of 30 acres or thereabouts there should be
no peace. In the construction of early English history we shall adopt
one style of architecture if we are supplied with small hides, while if
our materials consist of big hides an entirely different 'plan and
elevation' must be chosen. Let us take one example. We find the kings
giving away manses or hides by fives and tens. What are they really
doing? Are they or are they not giving away whole villages? Obviously
this question is pre-judicial to many another. Our whole conception of
the Anglo-Saxon kingship will be profoundly affected by our attribution
or our denial to the king of an alienable superiority over villages that
are full of free landowners. This question, therefore, we should have
upon our hands even if we thought that we could rear the fabric of
political and constitutional history without first laying an economic
foundation. But the day for such castles in the air is passing.

Howbeit, we must not talk in this pompous way of castles or foundations.
We are not going to lay foundations, nor even to choose a site. We hope
to test a few materials and perhaps to show how a site may some day be
acquired.

[Hide and manse in Bede.]

From the Norman Conquest so far back as we can go, a certain possessory
unit or a certain typical tenement is being thrust upon our notice by
the laws, the charters, the historians[1199]. We may begin with Bede.
When he is going to speak of the area or the capacity of a tract of
land, be it large or be it small, he refers to a certain unit or type,
namely, the land of one family (_terra unius familiae_). The abbess Hild
acquires the land of one family and erects a religious house upon
it[1200]; king Oswy gives away twelve tracts of land, each of which
consists of 'the _possessiones_ of ten families'[1201]; the kingdom of
the South Saxons contains the land of 7,000 families[1202]. We see that
already Bede is thinking rather of the size or capacity of a tract of
soil than of the number of households that happen to be dwelling there.
'The measure (_mensura_) of the Isle of Wight is, according to the
English mode of reckoning, 1200 families[1203].' 'The isle of Thanet is
no small island: that is to say, according to the customary English
computation, it is of 600 families[1204].' Some apology is due from a
scholar who writes in Latin and who writes thus; so Bede tells us that
he is using the English mode of reckoning; he is literally translating
some English term.

[Hide and manse in the land-books.]

When his own book is rendered into English that term will reappear.
Usually it reappears in the form _híd_, but occasionally we have
_hiwisc_ or _hiwscipe_. There seems no room for doubt that _hiwisc_ and
the more abstract _hiwscipe_ mean a household, and very little room for
doubt that _híd_ springs from a root that is common to it and them and
has the same primary meaning[1205]. Elsewhere we may find an equivalence
between the hide and the _hiwisc_:--'If a Welsh man thrives so that he
has a _hiwisc_ of land and can render the king's gafol, then his wergild
is 120 shillings; but if he attains only to a _half-hide_ then his
wergild is 80 shillings[1206].' In the charters also we may now and then
find that the land to be conveyed is a _hiwisc_[1207], or is the land of
one _familia_[1208]. However, the common English term is _hide_, while
the scribes of the land-books, who as yet are above inventing a Latin
_hida_, ring the changes on half-a-dozen phrases[1209]. We begin with
_terra unius manentis_, _terra unius casati_, _terra unius tributarii_,
which keep clearly before our eyes the fact or the theory that the
normal householder, the normal taxpayer, will possess one of these
units. At a little later time the more convenient _mansa_ (sometimes
_mansio_[1210] or _mansiuncula_) becomes popular, and we may see also
that men are beginning to speak of manents, casates, tributaries 'of
land,' much as they would speak of acres or perches of land[1211]. So
far as we can see, all these terms are being used as though they were
absolutely equivalent. If a clerk has to describe several different
tenements, he will write of _manentes_ in one clause and _casati_ in the
next, merely because a repetition of the same term would be
inelegant[1212]. In Kentish charters we read more of the _aratrum_ and
the _sullung_ than of the manse and the hide; but apparently we have
here other names for what is a similar and in some sort an equivalent
unit[1213]; and it is by no means unknown that Kentish tenements will be
called manses and hides[1214].

[The large hide and the manorial arrangement.]

Now if we ask whether the type to which reference is thus made is a
tenement comprising about six-score acres of arable land, we are asking
a question of the gravest importance. For let us look at some of the
consequences which will flow from an affirmative answer. Let it be
granted that, long before the Norman Conquest, the hide has become an
unit in an unwieldy system of taxation, which has been governed by false
assumptions and vitiated by caprice, until the fiscal hide in a given
case may widely diverge from its original or indeed from any fixed type.
None the less, this system has for its base the theory that the typical
man of Anglo-Saxon law, the typical householder or taxpayer, has a hide,
has land enough for a team of oxen, has 120 arable acres. The language
of the charters supposes that this is so. No doubt the supposition is,
as every supposition of this kind must be, untrue; but still it must
have a core of truth, and in the remotest age this core will be at its
largest. Men will not fall into a habit of speaking of 120 arable acres
or thereabouts as the tenement of one family or of one householder,
unless as a matter of fact the tenement of one family or of one
householder has in a preponderant number of cases some such content as
this. Suppose, for example, that the Anglo-Saxon kingdoms of the sixth
century had been composed chiefly of lords, whose estates ranged from
600 acres to some much larger quantity, and of 'semi-servile'
cultivators, the average size of whose tenements was 30 acres, such a
usage of words as that which we are considering could never have struck
root. Either the small tenement of the cultivator or the big tenement of
his lord must have been taken as the typical 'manse,' the typical 'land
of one householder.' Let us at once press home this argument, though at
present it involves a hypothesis, for in the dull disquisitions that
follow we may be cheered by the thought that great questions are at
stake. If in the oldest time the typical 'land of one householder' had
120 arable acres, the manorial system was not prevalent, not dominant,
in England. It will be admitted on all hands that this would be much too
large a tenement for a serf or a semi-servile _colonus_. On the other
hand, it is much too small a tenement for any one who is going to play
the part of a manorial lord, unless we use the term _manorial_ in so
wide a sense that it becomes useless. For how many tenants will this
manorial lord, who is to be taken as the typical householder, have upon
his 120 acres? If his arrangements are at all like those revealed to us
by Domesday Book, he will keep at least one-third of his land in
demesne, and there will remain but 80 acres for the _coloni_. Shall we
give him three _coloni_, or four or five? We can hardly give him a
larger number. Furthermore, it is quite clear that this 'manorial lord'
will not own a village. The villages as we see them in the earliest
charters and thence onward into Domesday Book contain five, ten, fifteen
hides. Our manorial lord must be content to take his hide in little
scraps scattered about among the scraps of some ten or twenty other
'manorial lords' whose hides are similarly dispersed in the open field
of a village. All this seems to follow inevitably if once we are
satisfied that the hide of the old days had 120 arable acres or
thereabouts; for the hide is the land of one typical householder[1215].

[Our course.]

Now for a long time past there has been among historians and
antiquaries a good deal of agreement in favour of this large hide, but
against it appeal may be made to honoured names, such as those of Kemble
and Eyton[1216]. Also it must be confessed that in favour of much
smaller hides, or at least of much smaller hides for the earliest days,
some weighty arguments may be advanced. In order that they may be
understood, and perchance refuted, we must pursue a long and devious
course and must raise by the way many questions, touching which we have
no right to an opinion: questions about agriculture, questions about
land measurement, perhaps even physiological questions. Also it is our
misfortune that, as we stumble through the night, we must needs stumble
against some of our fellow adventurers.

FOOTNOTES:

  [1199] The word _tenement_ will be often employed hereafter. Has it
         become needful to protest that a _tenement_ need not be a
         house? If my body is my soul's 'frail tenement,' that is not
         because my body holds my soul (a reprobate error), but
         because (for this is better philosophy and sound law) my
         soul holds my body. But, to descend from these heights, it
         will be a thousand pities if a vulgar blunder compels us to
         abandon the excellent _tenement_ in favour of the feeble
         _holding_ or the over-worked _estate_.

  [1200] Hist. Eccl. lib. 4, c. 21 (23), ed. Plummer, i. 253.

  [1201] Ibid. lib. 3, c. 24, ed. cit. i. 178.

  [1202] Ibid. lib. 4, c. 13, ed. cit. i. 230.

  [1203] Ibid. lib. 4, c. 14 (16), ed. cit. i. 237.

  [1204] Ibid. lib. 1, c. 25, ed. cit. i. 45.

  [1205] If, as Mr Seebohm suggests (Village Community, p. 398), this
         word meant the skin of an ox, some one would assuredly have
         Latined it by _corium_, and not by _terra unius familiae_
         (_manentis_ etc.)

  [1206] Schmid, App. VII. (Wergilds), 2, § 7. By comparing this with
         Ine 32 we get an even more explicit equation: 'Gif Wylisc mon
         hæbbe hide londes' = 'Gif Wilisc mon geþeo þæt he hæbbe
         hiwisc landes.'

  [1207] K. 271 (ii. 52), a forgery: 'æt Cemele tien hyda, æt
         Domeccesige þriddehalf hiwisce.'--K. 1077 (v. 146): 'æt
         hilcan hiwisce feowerti penega.'--K. iii. 431: 'ðæs anes
         hiwisces boc ... ðas oðres hiwisces.'--K. 1050 (v. 98). See
         also Crawford Charters, 127, for _hiwscipe_.

  [1208] K. 1006 (v. 47): 'de terra iuris mei aliquantulam portionem,
         iuxta mensuram scilicet decem familiarum.' See also K. 1007.

  [1209] The would-be Latin _hida_ occurs already in K. 230 (i. 297),
         but is rare before the Conquest. On the other hand, as an
         English word _híd_ is in constant use.

  [1210] K. 131 (i. 159); K. 140 (i. 169).

  [1211] Thus, to give one early example, K. 1008 (v. 49): 'duodecim
         tributarios terrae quae appellantur Ferrinig.' So in K. 124
         (i. 151) we have the neuter form _manentia_.

  [1212] A good instance in Egbert's Dialogue, H. & S. iii. 404. For
         how many hides may the clergy swear? A priest may swear
         'secundum numerum 120 tributariorum'; a deacon 'iuxta numerum
         60 manentium'; a monk 'secundum numerum 30 tributariorum.'
         Here _tributarii_ alternates with _manentes_ for the same
         reason that _secundum_ alternates with _iuxta_. So K. 143 (i.
         173): '_manentes_ ... _casati_ ... _manentes_ ... _casati_.'

  [1213] See Schmid, p. 611.

  [1214] See, for instance, Werhard's testament (A.D. 832), K. 230 (i.
         297): 'Otteford 100 hidas, Grauenea 32 hidas.' These are
         Kentish estates. Hereafter we shall give some reasons for
         thinking that the Kentish _sullung_ may have a history that
         is all its own.

  [1215] Mr Seebohm, Village Community, p. 395, admits that the
         _familia_ of Bede and the _casatum_ of the charters is the
         hide, and that the hide has 120 acres. This does not prevent
         him from holding (p. 266) that when Bede speaks of king Oswy
         giving to a church twelve _possessiunculae_, each of ten
         families, we must see _decuriae_ of slaves, 'the bundle of
         ten slaves or semi-servile tenants.' He seems also to think
         that while the hide was 'the holding of the full free
         landholder,' the _hiwisc_ was the holding of a servile
         family. But the passage which he cites in a note (Wergilds, §
         7) seems to disprove this, for there undoubtedly, as he
         remarks, _hiwisc_=_hide_. It is the passage quoted above on
         p. 359. The Welshman gets a wergild of 120 shillings
         (three-fifths of an English ceorl's wergild) by acquiring a
         _hiwisc_ or (Ine 32) _hide_ of land. Why the _hide_ should
         not here mean what it admittedly means elsewhere is not
         apparent.

  [1216] Though Eyton has (for some reason that we can not find in his
         published works) allowed but 48 'gheld acres' to the 'gheld
         hide,' he can hardly be reckoned as an advocate of the Small
         Hide. His doctrine, if we have caught it, is that the hide
         has never been a measure of size. This raises the
         question--How comes it then that the fractions into which a
         hide breaks are indubitably called (gheld) 'acres'? Why not
         ounces, pints, pence?



§ 1. _Measures and Fields._


[Permanence and change in agrarian history.]

At the present moment there is no need for arguments which insist upon
the immutable character of ancient agrarian arrangements. If we take up
a map of a common field drawn in the eighteenth century, the lines that
we see upon it are in the main very old. The scheme seems fashioned for
the purpose of resisting change and compelling the men of one age to
till the land as their fathers tilled it. Nothing but an unanimous
agreement among those who are not likely to agree can break up that
prison-house of cells in which agriculture has been cramped and
confined. Rather, it may be, the student who is perusing the 'estate
map' and who is fascinated by the possession of a new tool for picking
historical locks, should warn himself that, though there has been
permanence, there has also been change, and that in a far-off time
changes of a certain sort came quickly. True that in the current of
agricultural progress there is a rapid acceleration as it flows towards
our own day. We may easily go back to an age when the introduction of a
new process or new implement was rare. On the other hand, if we fix our
attention on the map of any one village and contemplate its strips and
balks and virgates, the hazard involved in an assumption of their
antiquity will increase swiftly when we have left behind us the advent
of Duke William and are urging our inferential career towards Hengest
or, it may be, towards Cæsar.

[Rapidity of change in old times.]

Let us look, for example, at the changes that take place in some Essex
villages during the twenty years that precede the Domesday Inquest. The
following table shows them:

                          Villani  Bordarii   Servi  Lord's   Men's
                                                      teams   teams

    Teidana[1217],   T. R. E.   5        3        4       2       4
                     T. R. W.   1       17        0       3       3

    Waldena[1218],   T. R. E.  66       17       16       8      22
                     T. R. W.  46       40       20      10      22

       Hame[1219],   T. R. E.  32       16        3       5       8
                     T. R. W.  48       79        3       4      12

  Benefelda[1220],   T. R. E.  10        2        7       3       7
                     T. R. W.   9       11        4       3       4

    Wimbeis[1221],   T. R. E.  26       18        6       3      21
                     T. R. W.  26       55        0       3      15

These are but specimens of the obscure little revolutions that are being
accomplished in the Essex villages. In general there has been a marked
increase in the number of _bordarii_, at the expense of the villeins on
the one part and the serfs on the other[1222], and this, whatever else
it may represent, must tell us of a redistribution of tenements, perhaps
of a process that substitutes the half-virgate for the virgate as the
average holding of an Essex peasant. The jar of conquest has made such
revolutions easy[1223].

[Devastation of villages.]

But, it will be said, though the 'bundles' of strips be cut in half, the
main features of the field remain constant. Let us, however, look at
Yorkshire, where for fifteen years an immense tract of land has been
lying 'waste.' Have we any reason to believe that when agriculture
slowly steals back into this desert there will be a mere restoration of
the defaced map? Surely not. If for a few years an 'open field' lies
waste, there will be no mere restoration. For one thing, many of the old
outlines will have utterly vanished. Even if the acres were already
divided by the so-called 'balks' (and we can not be sure that they
always were[1224]), the balk was but a narrow strip of unploughed sward
and would hardly be perceptible when the whole field was once more a
sheet of grass and weeds. For another thing, new settlers would probably
begin by ploughing only a small portion of the old field. It is likely
enough that their measuring rod would not be even approximately equal to
the rod employed in a previous century, and they would have ample
opportunity for the introduction of novelties, for the substitution of
three fields for two and for all that such a change implies. Now
William's deliberate devastation of the north is but one final and
grandiose exploit of an ancient kind of warfare. After his day agrarian
history becomes more stable because invasions cease and the character of
civil warfare changes. The strife between York and Lancaster, between
King and Parliament, passes like a thunderstorm over the fields; it
damages the crops; but that is all, and Bosworth 'Field' and Naseby
'Field' will next year be tilled in the same old way. A raid of the
Danes, a feud between Angle and Saxon, was a different affair. The
peasants fought. Men, women and children were sold as slaves. Also there
was deliberate devastation. 'They make a wilderness and call it peace.'
What else should they call it, when a foodless wilderness is the most
scientific of all frontiers? Readers of the English Chronicle will doubt
whether there is any village in England that has not been once, or more
than once, a deserted village. And if we must reckon with war, there is
famine also to be reckoned with. When in a few brief words the English
Chronicler tells us that in 1043 there was mickle hunger in the land so
that the sestar of corn sold for sixty pence and even more[1225], he
is, like enough, telling us of a disaster which depopulated many a
village and forced many a villager to bow his head for meat in those
evil days[1226]. Agrarian history becomes more catastrophic as we trace
it backwards.

[Village colonies.]

And, putting on one side the ravages of war and famine, we must call to
mind the numerous hints that our map gives us of village
colonization[1227]. Men did not make two contiguous villages at one time
and call them both Hamton. Names are given to places in order that they
may be distinguished from neighbouring places. So when we see two
different villages, called Hamton and Other Hamton, lying next each
other, we may be fairly certain that they are not of equal antiquity,
and it is not unlikely that the one is the offshoot and daughter of the
other[1228]. There are about one hundred and fifty Newtons and Newtowns
in England. Every instance of colonization, every new settlement in the
woods, gave scope for the introduction of novelties, such scope as was
not to be found in after days when men stood thicker on the soil and all
the best land was already tilled[1229].

[Antiquity of the three-field system.]

Therefore we must not trust a method of husbandry or a scheme of
land-measures much further than we can see it. Nothing, for example,
could be rasher than the assumption that the 'three-course system' of
tillage was common in the England of the seventh century[1230]. We have
a little evidence that it was practised in the eleventh[1231], perhaps
some evidence, that it was not unknown in the ninth[1232]. But 'the
two-course system' can be traced as far[1233], and seems to have been as
common, if not commoner, in the thirteenth century[1234]. If on a modern
map we see a village with 'trinity fields,' we must not at once decide
that those who laid them out sowed two in every year, for it is well
within the bounds of possibility that two were left idle[1235]. An
agriculture of this kind was not unknown in the Yorkshire of the
fourteenth century[1236], and indeed we read that in the eighteenth 'one
crop and two fallows' was the traditional course in the open field of a
Suffolk village[1237].

[Differences between the different shires.]

We have time enough on our hands. Between Domesday Book and the
withdrawal of the legions lies as long an interval as that which
separates the Conqueror from Mr Arthur Young. Also we have space enough
on our hands. Any theory that would paint all England as plotted out for
proprietary and agricultural purposes in accordance with a single
pattern would be of all theories the least probable. We need not
contrast Kent with Westmoreland, or Cornwall with Norfolk, for our maps
seem to tell us that Somerset differed from Wiltshire and Dorset. The
settlement of a heathen folk loosely banded together under a war-lord
was one thing; the conquest of a new province by a Christian king who
was advised by foreign bishops and had already been taught that he had
land to 'book,' would be another thing. If, as seems possible, we read
in Ine's laws of a 'plantation' of some parts of Somerset effected by
means of large allotments made to the king's gesiths, who undertake to
put tillers on the soil[1238], we must not at once infer that this is an
old procedure, for it may be very new, and may have for its outcome an
agrarian arrangement strikingly unlike that which existed in the heart
of the older Wessex.

[New and old villages.]

Moreover there are upon the face of our map many cases which seem to
tell us that in the oldest days the smallest district that bore a name
was often large, and therefore that the territory which subserved a
single group of homesteads was often spacious. One example we will take
from Norfolk. We find a block of land that now-a-days consists of eleven
parishes, namely, Wiggenhall St. Mary the Virgin, Wiggenhall St.
German, Wiggenhall St. Peter, Wiggenhall St. Mary Magdalen, Tilney cum
Islington, Tilney All Saints, Tilney St. Lawrence, Terrington St.
Clement, Terrington St. John, Walpole St. Peter, Walpole St.
Andrew[1239]. In such a case we can hardly suppose that all these
villages belong to the same age, even if we are not entitled to infer
that the later villages were not founded until the day for parish
churches had arrived. This being so, it is highly probable that some
villages were formed at all stages of the feudalizing process, and
therefore that a historical account of 'the' English township, or even
of 'the' English nucleated village, would of necessity be untrue. And,
while this East Anglian specimen is still before us, we may notice
another interesting trait. In the Marshland Fen there is a considerable
tract of ground which consists of 'detached portions' of these and other
villages. Each has been given a block there, a fairly rectangular block.
At one point the partition is minute. A space of less than 36 acres has
been cut up so that no less than six villages shall have a piece, a
rectangular piece of it[1240]. It seems very possible that this fen has
at some time been common ground for all these villages, and, as already
said, it is in this quarter that we may perhaps find traces of something
that resembled the 'marks' of Germany[1241]. The science of village
morphology is still very young, and we must not be led away into any
discussion of its elements; but there is the more reason why we should
take to heart those warnings that it already gives us, because what we
can read of hides is to be found for the more part in documents
proceeding from a central power, which, for governmental and fiscal
purposes, endeavours to preserve fictitious continuity and uniformity in
the midst of change and variety. However, we must draw nearer to our
task.

[History of measures.]

As regards land measurement, we may be fairly certain that in the days
before the Norman Conquest there was little real, though much nominal
uniformity. The only measures for the size of things with which nature
has equipped the natural man are his limbs. For the things that he
handles he uses his thumb, span, cubit, ell; for the ground upon which
he walks, his foot and his pace. For large spaces and long distances he
must have recourse to 'time-labour-units,' to the day's journey and the
morning's ploughing. Then gradually, under the fostering care of
government, steady equations are established between these
units:--twelve thumbs, for instance, are to make a foot. Thus the
measures for land are brought into connexion with the more delicate
measures used for cloth and similar stuff. Then an attempt to obtain
some standard less variable than the limb may forge a link between
thumbs and grains of corn. Another device is the measuring rod. One rod
will represent the arm of an average man; a longer rod may serve to
mediate between the foot which is short and the acre or day's ploughing
which is large. In laying out a field in such wise that it shall consist
of equal pieces, each of which can be ploughed in a forenoon, we
naturally use a rod. We say, for example, that to plough a strip that is
4 rods wide and 40 long is a fair day's work. For some while there is
no reason why the rods employed in two neighbouring villages should be
strictly or even approximately equal[1242]. Taxation is the great force
that makes for standard land measures. Then a king declares how many
thumbs there ought to be in the cloth-ell or cloth-yard. At a later time
he actually makes cloth-ells or cloth-yards and distributes them,
keeping an ultimate standard in his own palace. Thenceforward all other
units tend to become mere fractions or multiples of this royal stick.
The foot is a third, the thumb or inch a thirty-sixth part thereof. Five
and a half cloth-measuring yards make a royal land-measuring rod. Plot
out a space which is four rods by forty, you will have an acre.

[Slow growth of uniformity.]

The whole story, if ever it be told at length, will be intricate; but we
believe that a general persuasion that land-measurements ought to be
fixed by law and by reference to some one carefully preserved standard
is much more modern than most people think. Real accuracy and the
establishment of a measure that is to be common to the whole realm first
emerge in connexion with the measurement of cloth and such like. There
is a delightful passage in the old Scotch laws which tells us that the
ell ought to contain 37 inches meted by the thumbs of three men, 'þat is
to say, a mekill man and a man of messurabill statur and of a lytill
man[1243].' We have somewhere read that in Germany, if a perch of
fifteen feet was to be manufactured, the first fifteen people who
chanced to come out of church contributed each a foot towards the
construction of the standard. At an early time, however, men were trying
to find some class of small things which were of a fairly invariable
length and hit upon barley-corns. This seems to have happened in England
before the Norman Conquest[1244]. Instead of taking the 'thoume' of 'a
man of messurabill statur' for your inch, you are to take three
barley-corns, 'iii bear cornys gud and chosyn but tayllis (i.e. without
the tails)'[1245]. But the twelfth century was drawing to an end before
any decisive step was taken to secure uniformity even in the measurement
of cloth. In Richard I.'s day guardians of weights and measures are to
be appointed in every county, city and borough; they are to keep iron
_ulnae_[1246]. At this time or a little later these _ulnae_, ells or
cloth-yards were being delivered out by a royal officer to all who might
require them, and that officer had the custody of the ultimate
standards[1247]. We may doubt whether the laws which require in general
terms that there shall be one measure throughout the realm had measures
of land in view[1248]. A common standard is not nearly as necessary in
this case as it is in the case of cloth. Even in our own day men do not
buy land by the acre or the perch in the same sense as that in which
they buy cloth or cotton by the yard. Very rarely will anyone name a
price for a rood and leave it to the other bargainer to decide which out
of many roods shall be included in the sale. Nevertheless, the
distribution of iron _ulnae_ was important. An equation was established
between the cloth measure and the land measure: five-and-a-half _ulnae_
or cloth-yards make one royal perch. After this we soon find that land
is occasionally measured by the iron _ulna_ of the king[1249].

[Superficial measure.]

The scheme of computation that we know as 'superficial measure' was long
in making itself part of the mental furniture of the ordinary man. Such
terms as 'square rod' and 'square mile' were not current, nor such
equations as that which tells us how 144 square inches make a square
foot. Whatever may have been the attainments of some cloistered
mathematicians, the man of business did not suppose that he could talk
of size without talking of shape, and indeed a set of terms which speak
of shapeless size is not very useful until men have enough of geometry
and trigonometry to measure spaces that are not rectangular
parallelograms. The enlightened people of the thirteenth century can say
that if an acre is _x_ perches long it is _y_ perches wide[1250]. They
can compare the size of spaces if all the lines be straight and all the
angles right; and for them an acre is no longer of necessity ten times
as long as it is broad. But they will not tell us (and they do not
think) that an acre contains _z_ 'square perches.' This is of some
importance to students of Domesday Book. Very often the size of a tract
of land is indicated by the length of two lines:--The wood or the
pasture is _x_ leagues (furlongs, perches, feet) in length and _y_ in
breadth. Now, to say the least, we are hasty if we treat this as a
statement which gives us size without shape. It is not all one to say
that a wood is a league long and a league wide and to say that it is two
leagues long and half a league wide. The jurors are not speaking of
superficial content, they are speaking of length and breadth, and they
are either giving us the extreme diameters of the irregularly shaped
woods and pastures, or (and this seems more probable) they are making
rough estimates of mean diameters. If we go back to an earlier time, the
less we think of 'superficial measure' the better[1251].

[The modern system.]

Let us recall the main features of our modern system, giving them the
names that they bore in medieval Latin.

                           _Linear Measure._

     12 inches (_pollices_)=1 foot (_pes_); 3 feet=1 yard (_ulna_); 5·5
     yards=1 rod, pole, perch (_virga_, _pertica_, _perca_); 40
     perches=1 furlong (_quarentina_); 8 furlongs=1 mile (_mille_); 12
     furlongs=1 _leuua_, _leuca_, _leuga_ (league)[1252].

                          _Superficial Measure._

     144 square inches=1 square foot; 9 square feet=1 square yard; 30·25
     square yards=1 square perch; 40 square perches=1 rood; 4 roods=1
     acre[1253].

In the thirteenth century these outlines are already drawn; but, as we
have seen, if we are to breathe the spirit of the time, we ought to say
(while admitting that acres may be variously shaped) that the normal
acre is 4 perches in width and 40 perches (=1 furlong) in length. The
only other space that we need consider is the quarter of an acre, our
rood. That ought to be 1 perch in width and 1 furlong (=40 perches) in
length. The breadth of the acre is still known to all Englishmen, for it
is the distance between the wickets.

[The ancient elements of land measure.]

This system has been generated by the corelation of cloth-measures and
land-measures. If we are going back to remote times, we must expel the
cloth-measures as intruders. What then is left is very simple; it is
this:--the human foot, a day's ploughing and a measuring stick which
mediates between feet and acres. That stick has had many names. Our
arithmetic books preserve three, 'rod, pole or perch'; it has also been
known as a _gād_ or _goad_ and a _lug_: but probably its oldest name
is _yard_ (_gyrd_). It is of some importance that we should perceive
that our modern yard of three feet is not one of the very ancient
land-measures. It is a 'cloth-yard' not a land-yard. In medieval
documents the Latin name for it is _ulna_[1254], and probably the oldest
English name for it is _eln_, _elle_, _ell_. There seems to have been a
shifting of names. The measuring rod that was used for land had so many
names, such as _perch_, _rod_, _pole_, _goad_, _lug_, that it could
afford, if we may so speak, to dispense with the additional name of
_yard_, which therefore might stand for the much shorter rod that was
used by the clothiers. However, even in our own century men have been
speaking of 'yards of land' in a manner which implies that at one time a
yard, when mentioned in this context, was the same thing as the perch.
When they have spoken of a 'yard of land' they have meant sometimes a
quarter of an acre (our rood) and sometimes a much larger space. In 1820
a 'yard of land' means, we are told, a quarter of an acre in Wiltshire,
while in Buckinghamshire it stands for a tract which varies from 28 to
40 acres[1255]. This last application of the term we shall consider by
and by. A yard of land or rood of land (_rood_ and _rod_ are all one) is
a quarter of an acre, because an acre is four rods or 'yards' or perches
in width, and, when an acre is to be divided, it is always, and for a
very good reason, divided by lines parallel to its long sides. So though
the rood or yard of land may in course of time take other shapes and
even become a shapeless size, it ought to be a rod or 'yard' in width
and forty rods or one furlong in length.

[The German acre.]

So we start with the human foot, the day's ploughing and a rod. How much
borrowing there has been in this matter by race from race is an obscure
question. For example, the mediation of a rod between the foot and the
day's work is common to the Roman and the Germanic systems. Here the
similarity ends, and the vast differences which begin seem to have
exceedingly deep roots. We can not be content with saying that the Roman
puts two oxen in the plough and therefore draws short furrows, whereas
the German puts eight oxen and draws long furrows. There seems to be a
radical disagreement between them as to what a plough should be and what
a plough should do[1256]. To these matters we can make but the slightest
reference, nor dare we touch the problems of Celtic history. Somehow or
another the Germans come to the rule that generally an acre or day's
work should be four rods wide and, if possible, about forty rods
long[1257].

[English acres.]

[Small acres.]

It is very probable that in England this rule prevailed at a remote
time. Throughout the middle ages and on to our own day there have been
many 'acres' in England which swerved markedly from what had become the
statutory type, and in some cases a pattern divergent from the statutory
pattern became 'customary' in a district. But apparently these customary
acres commonly agree with the royal standard in involving the equation:
1 acre = 4 perches x 40 perches[1258]. In Domesday Book and thence
onwards the common Latin for _furlong_ is _quarentina_, and this tells
us of furrows that are forty perches long. It is when we ask for the
number of feet in a perch that we begin to get various answers, and very
various they are. The statutory number, the ugly 16·5, looks like a
compromise[1259] between 15 and 18, both of which numbers seem to have
been common in England and elsewhere. This is the royal equation in the
thirteenth century; it has been found near the middle of the
twelfth[1260]; more at present we cannot say. Short perches and small
acres have been very common in the south of England. In 1820 some
information about the customary acre was collected[1261]:--In
Bedfordshire it was 'sometimes 2 roods.' In Dorsetshire 'generally 134
[instead of 160] perches.' In Hampshire, 'from 107 to 120 perches, but
sometimes 180,' In Herefordshire, 'two-thirds of a statute acre,' but
'of wood, an acre and three-fifths or 256 perches.' In Worcestershire,
'sometimes 132 or 141 perches.' In Sussex, '107, 110, 120, 130 or 212
perches'; '_short acre_, 100 or 120 perches'; '_forest acre_, 180
perches,' Then as to rods, the 'lug or goad' of Dorsetshire had 15 ft. 1
in.; in Hertfordshire, 20 feet; in Wiltshire, 15 or 16-1/2 or 18. The
wide prevalence of rods of 15 feet can not be doubted, and it seems
possible that rods with as few as 12 feet have been in use[1262]. An
acre raised from a 12 foot rod would, if feet were invariable, be little
more than half our modern statute acre. Nowhere do we see any sure trace
of a rod so short as the Roman _pertica_ of ten _pedes_, though the
scribes of the land-books will give the name _pertica_ to the English
_gyrd_[1263].

[Large acres.]

In northern districts the 'customary' acre grows larger. In Lincolnshire
it is said to be '5 roods, particularly for copyhold land'; but small
acres were known there also[1264]. In Staffordshire, 'nearly 2-1/4
acres.' In Cheshire, 'formerly and still in some places 10,240 square
yards' (pointing to a rod of 24 feet). In Westmoreland, '6760 square
yards' (pointing to a rod of 19-1/2 feet), also the so-called 'Irish
acre' of 7840 square yards (pointing to a rod of 21 feet). There is much
evidence that rods of 20 and 21 feet were often used in Yorkshire and
Derbyshire. Rods of 18, 19-1/2, 21, 22-1/2 and 24 feet were known in
Lancashire. A writer of the thirteenth century speaks as if rods of 16,
18, 20, 22 and 24 feet were in common use, and mentions none
shorter[1265]. As just said, the Irish plantation acre was founded on a
rod of 21 feet. The Scotch acre also is larger than the English; it
would contain about 6150·4 instead of 4840 of our square yards; it is
formed from a rod of 6 Scotch ells. On the other hand, the acres which
have prevailed in Wales seem to be small; one type had 4320 of our
square yards, another 3240.

[Anglo-Saxon rods and acres.]

There has been variety enough. Even if the limits of variation are given
by rods of 12 and 24 feet, this will enable one acre to be four times as
large as another. Whether before the twelfth century there was anything
that we ought to call a standard rod, a royal rod for all England, must
be very doubtful. In royal and other land-books references are made to
furlongs, to acre-breadths, to yards or rods or perches, and to feet as
to known measures of length[1266], but whether a kingly gift is always
measured by a kingly rod we do not know. The Carolingian emperors
endeavoured to impose a rod upon their dominions; it seems to have been
considerably shorter than our statute perch[1267]. In this province we
need not expect many Norman novelties. We see from Domesday Book that
the Frenchmen introduced the ancient Gallic _arpentum_[1268] as a
measure for vineyards[1269]; but most of the vines were of their own
planting, and the mere fact that they used this measure only for the
vineyards seems to tell us that they were content with English rods and
English acres[1270]. In Normandy the perches seem to have ranged upwards
from 16 to 25 feet[1271]; so that 16·5 would not have hit the average.
On the whole, our perch seems to speak of a king whose interests and
estates lay in southern England and who struck a mean between 15 and 18.
Whoever he was, we owe him no thanks for the 'undecimal' element that
taints our system[1272].

[Customary acres and forest acres.]

But we must be cautious in drawing inferences from loose reports about
'customary' measures. Village maps and village fields have yet to be
seriously studied. We may in the meanwhile doubt whether in some
districts to which the largest acres are ascribed, such acres are normal
or are drawn in the oldest villages. We may suspect them of being
'forest acres.' If once a good many of these abnormal units are
distributed in a district, they will by their very peculiarity attract
more than their fair share of attention and will be spoken of as
characteristic of that district. In Germany, as well as in England, we
find forest acres which are much larger than common acres and are meted
by a rod which is longer than the common rod[1273]. Possibly men have
found a long rod convenient when they have large spaces to measure, but
we fancy that the true explanation would illustrate the influence
exercised by taxation on systems of measurement. Some scheme of
allotment or colonization is being framed; an equal tribute is to be
reserved from the allotted acres. If, however, there is uncleared
woodland to be distributed, rude equity, instead of changing the tribute
on the acre, changes the acre's size and uses a long rod for land that
can not at once be tilled[1274]. Also fields that were plotted out by
Normans were likely to have large acres, and as the perches of Normandy
seem to have been longer than most of the perches that were used in
France, we may perhaps infer that the Scandinavian rods were long and
find in them an explanation of the big acres of northern England. But at
present such inferences would be precarious.

[The acre and the day's work.]

Whether in its origin the land-measuring rod is a mere representative of
a certain number of feet or is some instrument useful for other purposes
seems to be dubious. One of the names that it has borne in English is
_goad_; but most of our rods would be extravagantly long goads[1275].
Possibly the width of four oxen yoked abreast has exercised some
influence upon its length[1276]. When a rod had once found acceptance,
it must speedily have begun to convert that 'time-labour-unit,' the
acre, into a measured space. Already in the land-books we read of acres
of meadow[1277]; this is no longer a contradiction in terms. Still there
can be no doubt that our acre, like the _jurnale_, _Tagwerk_, _Morgen_
of the Continent, has at its root the tract that can be ploughed in a
day, or in a forenoon:--in the afternoon the oxen must go to the
pasture[1278]. Now, when compared with their foreign cousins, our
statute perch is a long rod and our statute acre is a decidedly large
'day-work-unit[1279].' It seems to tell of plentiful land, sparse
population and poor husbandry. This is of some importance. There is a
good deal of evidence pointing to the conclusion that, whereas in the
oldest days men really ploughed an acre in a forenoon, the current of
agricultural progress made for a while towards the diminution of the
space that was covered by a day's labour. In Ælfric's dialogue the
ploughman complains that each day he must till 'a full acre or
more[1280].' His successor, the poetic Piers, had only a half-acre to
plough[1281]. In monastic cartularies which come from southern counties,
where we have no reason to suspect exceptionally large acres, the
villein seems often to plough less than an acre[1282]. Then that
enlightened agriculturist, Walter of Henley, enters upon a long argument
to prove to his readers that you really can plough seven-eighths of an
acre in a forenoon, and even a whole acre if you are but engaged in that
light kind of ploughing which does for a second fallowing[1283]. Five
centuries later another enlightened agriculturist, Arthur Young,
discovered that 'from North Leach, through Gloucestershire,
Monmouthshire, and Glamorganshire, light and middling turnip-land etc.'
was being ploughed at the rate of half an acre to one acre a day by
teams of 'eight oxen; never less than six; or four and two horses.'
This, he says, was being done 'merely in compliance with the obstinacy
of the low people,' for 'the labourers will not touch a plough without
the usual number of beasts in it[1284]'. Mr Young could not tell us of
'these vile remnants of barbarity without a great degree of
disgust[1285]'. But we are grateful. We see that an acre of light land
was the maximum that these 'low people' with their eight oxen would
plough in a day, and we take it that at one time the voice of reforming
science had urged men to diminish the area ploughed in a given time, to
plough deeper and to draw their furrows closer. The old tradition was
probably well content with a furrow for every foot. Walter of Henley
proposed to put six additional furrows into the acre[1286]. Hereafter we
shall see that some of the statistics given by Domesday Book fall in