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Title: Domesday Book and Beyond

Three Essays in the Early History of England

Author: Frederic William Maitland

Release Date: July 19, 2013 [eBook #43255]

Language: English

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Transcriber’s Note

Marginal descriptions

The marginal paragraph descriptions are placed at the beginning of each paragraph, and will be shown as can be seen here. On occasion, there are more than one for a single paragraph.

The copious footnotes have been renumbered, consecutively, and gathered at the end of this text. Internal references to those notes in the original have been modified to refer to the new numbers, and all have been hyperlinked.

The page references in the Index have also been linked to the physical page on which the topic appears.

There are two detailed maps. A link to the full image size has been added to each caption for optional viewing.

Please refer to the Notes at the end of this text for additional detail.







C. F. CLAY, Manager.
London: STEVENS AND SONS, Ltd., 119 and 120, CHANCERY LANE.
Leipzig: P. A. BROCKHAUS.
Bombay and Calcutta: MACMILLAN & CO. Ltd.
[All rights reserved.]






First Edition 1897.
Reprinted 1907.


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.


Preface v
Table of Contents vii
List of Abbreviations xiv
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 servus, 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.

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.

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.



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.


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.


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.


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 100
Berks 202 Huntingdon 71
Gloucester 190 Stafford 44
S. Hants 180 Cornwall 44
Surrey 177 Rutland 44
York 160 Northumberland 44
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. 7s. 6d. have been paid into the treasury, that £22. 8s. 3d. have been ‘pardoned’ to magnates and templars, that £51. 8s. 2d. are written off in respect of waste, and that 16s. 0d. are still due. On the eighth roll the account shows that £62. 12s. 7d. have been paid and that £37. 6s. 9d. 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.

§ 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 212   12
The king     12
Ralph and Robert hold of Hardouin de Eschalers 1 112
Earl Roger 1  
Picot the sheriff     12
Alwin Hamelecoc the bedel holds of the king         12
  5 0

Now in Domesday Book we must look to several different pages to get this information about the vill of Abington,—dash;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].

On the border between Oxfordshire and Berkshire.
[Larger map]

[Between pp. 16–17]

On the border between Somerset and Devon.
[Larger map]

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.

Servi Total
Morden Alia50050
Whaddon   44   6   50

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].

Servi Total
Metford    7    1    8

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].

Servi Total
Cliveware    6    0    6

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:—

South-Western Group:183,842106,086
Mid-Western Group:158,245115,679
Eastern Group:255,498182,830

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.

§ 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 theLeges 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:—


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].

§ 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 theLeges 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 villani4 borarii,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. 12s.[197] Such entries as the following are not uncommon—there is one villein rendering 30d.[198]—there is one villein rendering 10s.[199]—46 cotarii with one hide render 30 shillings a year[200]—the villeins give 13s. 4d. 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 30s. 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].


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. 15s. but the men were thereby ruined and now it is valued at only 45s.[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]:—


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?

§ 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.


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.

§ 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 theLeges 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 theLeges 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 theLeges 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[349]. 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 25s. 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 112 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.

§ 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 6s. 8d. 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 20s. 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 15s. and Hugh de Lacy 6s. 8d. 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.



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 5412 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].’


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 212 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. 12d.’ ‘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 62s. 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. 8s. 1d. 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 12s., formerly it was worth 10s.

(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 12s. 6d. and has been worth 20s.

(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, 6s.

(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, 6s.

(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, 3s.

(vi) A Devonshire manor[492]. Value, 3s. 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, 15d.

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

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

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 10s.[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 10s.[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 8s.[501]

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

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

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

(vii) In Torp a free man held 20 acres for a manor. One team; wood for 5 pigs. Value, 40d.[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, 3s.[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.


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].

§ 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  23
A sokeman, man of Abp Stigand 113
A sokeman, man of Robert Wimarc’s son 113 
A sokeman, man of the King   23 
A sokeman, man of Earl Ælfgar 113 
A sokeman, man of Earl Waltheof 3 
A sokeman, man of the King   13 
Sigar a man of Æsgar the Staller 113 
Turbert a man of Edith the Fair 3145
Achil a man of Earl Harold 1 
A sokeman of the King 1 
St. Mary of Chatteris  13 
St. Mary of Chatteris               14         

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
    A sokeman, man of Earl Waltheof
    A sokeman, man of Abp Stigand
 1 1
 4  0
2. A man of Earl Waltheof    1 15  1  0
3. A sokeman, man of the King
    A sokeman, man of Abp Stigand
    A sokeman, man of Earl Waltheof
 2 0
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
    A sokeman, man of Earl Waltheof
    A sokeman, man of Earl Waltheof
 4  0
2. Juhael the King’s hunter  1 0 0 1 0
3. A sokeman, man of Edith the Fair
4. Twenty-three sokemen of the King
 6    0  
   7  0  0 12  0
III. Grantchester. A vill of 7 hides[560]
1. Five sokemen, men of the King    3  0  1  0
2. Two sokemen, men of the King
   A sokeman, man of Æsgar the Staller
 6  0
3. A sokeman, man of Earl Ælfgar
   Three sokemen, men of Earl Waltheof
 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.
  H. V. A. C. B.
1. The King  7  1  0  8  0
2. Five sokemen, men of the King
   A sokeman, man of Æsgar the Staller
 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
   Fifteen sokemen, men of the King
   Four sokemen, men of Earl Ælfgar
   Three sokemen, men of Æsgar the Staller
   Eadric Púr, holding of the Church of Chatteris
11  0
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
   A sokeman, man of Earl Ælfgar
 2  0 15  2  2
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
   A sokeman, man of Abp Stigand
   A sokeman, man of Robert Wimarc’s son
   A sokeman, man of the King
   A sokeman, man of Earl Ælfgar
 1  4
2. A sokeman, man of Earl Waltheof
   A sokeman, man of the King
 1  0
3. Sigar, a man of Æsgar the Staller    1 10    4
4. Turbert, a man of Edith the Fair    3 1212  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          712       12
   4  0  0  5  2
IX. Wratworth. A vill of 4 hides.
1. A sokeman, man of Edith the Fair
   A sokeman, man of Abp Stigand
   A sokeman, man of Earl Ælfgar
   A sokeman, man of Robert Wimarc’s son
   A sokeman, man of the King
 3  0
2. A sokeman, man of Earl Waltheof
   A sokeman, man of Robert Wimarc’s son
 1  0
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
   A sokeman, man of Robert Wimarc’s son
   A sokeman, A sokeman, man of the King
 1  4
2. A sokeman, man of Abp Stigand
   A sokeman, man of Edith the Fair
   [A sokeman]
3. Six sokemen, men of the King
   A sokeman, man of Robert Wimarc’s son
   A sokeman, man of Earl Ælfgar
 2  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.
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
   A sokeman, man of Earl Waltheof
   A sokeman, man of the Abbot of Ely
   A sokeman, man of Robert Wimarc’s son
 8  0
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 312 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 112 hides; other two were the men of Osulf the son of Frane and held 112 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 512 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 112 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 214 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:—


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, 112 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].

§ 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.


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].


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].’

§ 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
31 Hen.I
Pipe Roll
2 Hen. II
  Pipe Roll
31 Hen.I
Pipe Roll
2 Hen. II
  £ £   £ £
London 120 120 Wiltshire boroughs 17  
Winchester   80   Calne     1
Lincoln   60   60 Dorset boroughs 15  
York   40   40 Huntingdon   8   8
Norwich   30   3313 Ipswich   7   313
Exeter     20 Guildford   5   5
Canterbury   20   1313 Southwark   5   5
Colchester   20   1223[703] Hertford   5  
Oxford   20   20 Stamford   5  
Gloucester   15   15 Bedford   5   623
Wallingford   15   Shrewsbury     5
Worcester     15 Droitwich     5
Cambridge   12   12 Stafford   313   313
Hereford     10 Winchcombe   3   5
Thetford   10   Tamworth   2¾   1¼[704]
Northampton   10   Ilchester     212
Rochester     10 Chichester[705]    
  15   15      

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 40s. 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 13s. 2d. He has a house of 6d. which is constructively at Shipton; one of 4d. at Bloxham; one of 30d. at Risborough and two of 4d. 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 40s. 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.

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 75s. 7d. 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. The community as landholders. 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] 6s. 8d[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. 10s. 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. 10s.’ 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. 10s.; 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.


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].

§ 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 lsquo;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’.


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 lang="ang" xml:lang="ang">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.

§ 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.

§ 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 8s. 4d. 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.’

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.

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.

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 theLeges 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.

§ 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 testamentarypower; 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’slife[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.

§ 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].

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.

§ 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].

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.


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.

§ 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:

Teidana[1217], T.R.E. 53424
  T.R.W. 117033
Waldena[1218], T.R.E. 66171685
  T.R.W. 4640201022
Hame[1219], T.R.E. 3216358
  T.R.W. 48793412
Benefelda[1220], T.R.E. 102737
  T.R.W. 911434
Wimbeis[1221], T.R.E. 26186321
  T.R.W. 26550315

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.

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. Small acres.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 1612 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 214 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 1912 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, 1912, 21, 2212 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