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diff --git a/43255-0.txt b/43255-0.txt index fbd276d..37d0719 100644 --- a/43255-0.txt +++ b/43255-0.txt @@ -1,39 +1,4 @@ -The Project Gutenberg eBook, Domesday Book and Beyond, by Frederic William -Maitland - - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - - - - -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 - -Character set encoding: UTF-8 - - -***START OF THE PROJECT GUTENBERG EBOOK DOMESDAY BOOK AND BEYOND*** - - -KD Weeks, Irma Å pehar, and the Online Distributed Proofreading Team -(http://www.pgdp.net) from page images generously made available by -Internet Archive/Canadian Libraries(http://archive.org/details/toronto) - - +*** START OF THE PROJECT GUTENBERG EBOOK 43255 *** Note: Project Gutenberg also has an HTML version of this file which includes the original maps. @@ -27211,362 +27176,4 @@ noted. p. 552 Deme[ns]e/Deme[sn]e Corrected. - - -***END OF THE PROJECT GUTENBERG EBOOK DOMESDAY BOOK AND BEYOND*** - - -******* This file should be named 43255-0.txt or 43255-0.zip ******* - - -This and all associated files of various formats will be found in: -http://www.gutenberg.org/dirs/4/3/2/5/43255 - - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - - - - -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 - -Character set encoding: ISO-8859-1 - - -***START OF THE PROJECT GUTENBERG EBOOK DOMESDAY BOOK AND BEYOND*** - - -E-text prepared by KD Weeks, Irma Spehar, and the Online Distributed -Proofreading Team (http://www.pgdp.net) from page images generously made -available by Internet Archive/Canadian Libraries -(http://archive.org/details/toronto) - - - -Note: Project Gutenberg also has an HTML version of this - file which includes the original maps. - See 43255-h.htm or 43255-h.zip: - (http://www.gutenberg.org/files/43255/43255-h/43255-h.htm) - or - (http://www.gutenberg.org/files/43255/43255-h.zip) - - - Images of the original pages are available through - Internet Archive/Canadian Libraries. See - http://archive.org/details/domesdaybook00maituoft - - -Transcriber's note: - - Text enclosed by underscores is in italics (_italics_). - - Text enclosed by equal signs is in bold face or other - blackletter font (=bold=). - - The abbreviation of 'Saint' with a superscripted "t" is - left simply as "St.". - - There are some diacritical marks which cannot be rendered - as printed. The following notation is used to indicate them. - - An acute accent: [´æ] - A macron, or bar: [=a], [=o] - A breve: [)o] - - There is a single Greek word which is given using a simple - transliteration as [Greek: pur]. - - The marginal paragraph descriptions are placed preceding - each paragraph, and delimited using square brackets: - [Paragraph Description]. On occasion, there are more than - one for a single paragraph. - - The copious footnotes have been renumbered, consecutively, - and gathered at the end of each chapter. Internal references - to those notes in the original have been modified to refer - to the new numbers. - - - - - -DOMESDAY BOOK AND BEYOND - -Three Essays in the Early History of England. - - - * * * * * * - -Cambridge University Press Warehouse, -C. F. Clay, Manager. -=London=: Fetter Lane, E.C. -=Glasgow=: 50, Wellington Street. - -[Illustration] - -Also - -=London=: Stevens and Sons, Ltd., 119 and 120, Chancery Lane. -=Leipzig=: P. A. Brockhaus. -=Bombay and Calcutta=: Macmillan & Co. Ltd. - -[All rights reserved.] - - * * * * * * - - -DOMESDAY BOOK AND BEYOND - -Three Essays in the Early History of England - -by - -FREDERIC WILLIAM MAITLAND, LL.D. - -Formerly Downing Professor of the Laws of England -in the University of Cambridge, -Of Lincoln's Inn, Barrister-At-Law. - - - - - - - -Cambridge: -At the University Press -1907 - -First Edition 1897. -Reprinted 1907. - - - - -PREFACE. - - -The greater part of what is in this book was written in order that it -might be included in the _History of English Law before the Time of -Edward I._ which was published by Sir Frederick Pollock and me in the -year 1895. Divers reasons dictated a change of plan. Of one only need I -speak. I knew that Mr Round was on the eve of giving to the world his -_Feudal England_, and that thereby he would teach me and others many new -lessons about the scheme and meaning of Domesday Book. That I was well -advised in waiting will be evident to everyone who has studied his work. -In its light I have suppressed, corrected, added much. The delay has -also enabled me to profit by Dr Meitzen's _Siedelung und Agrarwesen der -Germanen_[1], a book which will assuredly leave a deep mark upon all our -theories of old English history. - -The title under which I here collect my three Essays is chosen for the -purpose of indicating that I have followed that retrogressive method -'from the known to the unknown,' of which Mr Seebohm is the apostle. -Domesday Book appears to me, not indeed as the known, but as the -knowable. The Beyond is still very dark: but the way to it lies through -the Norman record. A result is given to us: the problem is to find cause -and process. That in some sort I have been endeavouring to answer Mr -Seebohm, I can not conceal from myself or from others. A hearty -admiration of his _English Village Community_ is one main source of -this book. That the task of disputing his conclusions might have fallen -to stronger hands than mine I well know. I had hoped that by this time -Prof. Vinogradoff's _Villainage in England_ would have had a sequel. -When that sequel comes (and may it come soon) my provisional answer can -be forgotten. One who by a few strokes of his pen has deprived the -English nation of its land, its folk-land, owes us some reparation. I -have been trying to show how we can best bear the loss, and abandon as -little as may be of what we learnt from Dr Konrad von Maurer and Dr -Stubbs. - -For my hastily compiled Domesday Statistics I have apologized in the -proper place. Here I will only add that I had but one long vacation to -give to a piece of work that would have been better performed had it -been spread over many years. Mr Corbett, of King's College, has already -shown me how by a little more patience and ingenuity I might have -obtained some rounder and therefore more significant figures. But of -this it is for him to speak. - -Among the friends whom I wish to thank for their advice and assistance I -am more especially grateful to Mr Herbert Fisher, of New College, who -has borne the tedious labour of reading all my sheets, and to Mr W. H. -Stevenson, of Exeter College, whose unrivalled knowledge of English -diplomatics has been generously placed at my service. - - F. W. M. - - _20 January, 1897._ - - - - -CONTENTS. - - - PAGE - - PREFACE v - - TABLE OF CONTENTS vii - - LIST OF ABBREVIATIONS xiv - - ESSAY I. - - DOMESDAY BOOK. - - Domesday Book and its satellites, 1. Domesday and legal history, - 2. Domesday a geld book, 3. The danegeld, 3. The inquest and the geld - system, 5. Importance of the geld, 7. Unstable terminology of the - record, 8. The legal ideas of century xi. 9. - - § 1. _Plan of the Survey_, pp. 9-26. - - The geographical basis, 9. The vill as the unit, 10. Modern and - ancient vills, 12. Omission of vills, 13. Fission of vills, 14. The - nucleated village and the vill of scattered steads, 15. Illustration - by maps, 16. Size of the vill, 17. Population of the vill, 19. - Contrasts between east and west, 20. Small vills, 20. Importance of - the east, 21. Manorial and non-manorial vills, 22. Distribution of - free men and serfs, 23. The classification of men, 23. The classes of - men and the geld system, 24. Our course, 25. - - § 2. _The Serfs_, pp. 26-36. - - The _servus_ of Domesday, 26. Legal position of the serf, 27. - Degrees of serfdom, 27. Predial element in serfdom, 28. The serf and - criminal law, 29. Serf and villein, 30. The serf of the _Leges_, 30. - Return to the _servus_ of Domesday, 33. Disappearance of _servi_, 35. - - § 3. _The Villeins_, pp. 36-66. - - The boors or coliberts, 36. The continental colibert, 37. The - English boor, 37. _Villani_, _bordarii_, _cotarii_, 38. The villein's - tenement, 40. Villeins and cottiers, 41. Freedom and unfreedom of the - _villani_, 41. Meaning of freedom, 42. The villein as free, 43. The - villein as unfree, 45. Anglo-Saxon free-holding, 46. Free-holding - and seignorial rights, 47. The scale of free-holding, 49. Free land - and immunity, 50. Unfreedom of the villein, 50. Right of recapture, - 50. Rarity of flight, 51. The villein and seignorial justice, 52. The - villein and national justice, 52. The villein and his land, 53. The - villein's land and the geld, 54. The villein's services, 56. The - villein's rent, 57. The English for _villanus_, 58. Summary of the - villein's position, 60. Depression of the peasants, 61. The Normans - and the rustics, 61. Depression of the sokemen, 63. The peasants on - the royal demesne, 65. - - § 4. _The Sokemen_, pp. 66-79. - - _Sochemanni_ and _liberi homines_, 66. Lord and man, 67. Bonds - between lord and man, 67. Commendation, 69. Commendation and - protection, 70. Commendation and warranty, 71. Commendation and - tenure, 71. The lord's interest in commendation, 72. The seignory - over the commended, 74. Commendation and service, 74. Land-loans and - services, 75. The man's _consuetudines_, 76. Nature of - _consuetudines_, 78. Justiciary _consuetudines_, 78. - - § 5. _Sake and Soke_, pp. 80-107. - - Sake and soke, 80. Private jurisdiction in the _Leges_, 80. Soke - in the _Leges Henrici_, 81. Kinds of soke in the _Leges_, 82. The - Norman kings and private justice, 83. Sake and soke in Domesday, 84. - Meaning of _soke_, 84. Meaning of _sake_, 84. Soke as jurisdiction, - 86. Seignorial justice before the Conquest, 87. Soke as a regality, - 89. Soke over villeins, 90. Private soke and hundredal soke, 91. - Hundredal and manorial soke, 92. The seignorial court, 94. Soke and - the earl's third penny, 95. Soke and house-peace, 97. Soke over - houses, 99. Vendible soke, 100. Soke and mund, 100. Justice and - jurisdiction, 102. Soke and commendation, 103. Sokemen and 'free - men,' 104. Holdings of the sokemen, 106. - - § 6. _The Manor_, pp. 107-128. - - What is a manor? 107. _Manerium_ a technical term, 107. Manor and - hall, 109. Difference between manor and hall, 110. Size of the - _maneria_, 110. A large manor, 111. Enormous manors--Leominster, - Berkeley, Tewkesbury, Taunton, 112. Large manors in the Midlands, - 114. Townhouses and berewicks attached to manors, 114. Manor and - soke, 115. Minute manors in the west, 116. Minute manors in the east, - 117. The manor as a peasant's holding, 118. Definition of a manor, - 119. The manor and the geld, 120. Classification of men for the geld, - 122. Proofs of connexion of the manor with the geld, 122. Land gelds - in a manor, 124. Geld and hall, 124. The lord and the man's taxes, - 125. Distinction between villeins and sokemen, 125. The lord's - subsidiary liability, 126. Manors distributed to the Frenchmen, 127. - Summary, 128. - - § 7. _Manor and Vill_, pp. 129-150. - - Manorial and non-manorial vills, 129. The vill of Orwell, 129. The - Wetherley hundred of Cambridgeshire, 131. The Wetherley sokemen, 134. - The sokemen and seignorial justice, 135. Changes in the Wetherley - hundred, 135. Manorialism in Cambridgeshire, 136. The sokemen and the - manors, 137. Hertfordshire sokemen, 138. The small _maneria_, 138. - The Danes and freedom, 139. The Danish counties, 139. The contrast - between villeins and sokemen, 140. Free villages, 141. Village - communities, 142. The villagers as co-owners, 142. The waste land of - the vill, 143. Co-ownership of mills and churches, 144. The system of - virgates in a free village, 144. The virgates and inheritance, 145. - The farm of the vill, 146. Round sums raised from the villages, 147. - The township and police law, 147. The free village and Norman - government, 149. Organization of the free village, 149. - - § 8. _The Feudal Superstructure_, pp. 150-172. - - The higher ranks of men, 150. Dependent tenure, 151. _Feudum_, - 152. _Alodium_, 153. Application of the formula of dependent tenure, - 154. Military tenure, 156. The army and the land, 157. Feudalism and - army service, 158. Punishment for default of service, 159. The new - military service, 160. The thegns, 161. Nature of thegnship, 163. The - thegns of Domesday, 165. Greater and lesser thegns, 165. The great - lords, 166. The king as landlord, 166. The ancient demesne, 167. The - comital manors, 168. Private rights and governmental revenues, 168. - The English state, 170. - - § 9. _The Boroughs_, pp. 172-219. - - Borough and village, 172. The borough in century xiii., 173. The - number of the boroughs, 173. The aid-paying boroughs of century xii, - 174. List of aids, 175. The boroughs in Domesday, 176. The borough as - a county town, 178. The borough on no man's land, 178. Heterogeneous - tenures in the boroughs, 179. Burgages attached to rural manors, 180. - The burgess and the rural manor, 181. Tenure of the borough and - tenure of land within the borough, 181. The king and other landlords, - 182. - - The oldest burh, 183. The king's burh, 184. The special peace of - the burh, 184. The town and the burh, 185. The building of boroughs, - 186. The shire and its borough, 186. Military geography, 187. _The - Burghal Hidage_, 187. The shire's wall-work, 188. Henry the Fowler and - the German burgs, 189. The shire thegns and their borough houses, 189. - The knights in the borough, 190. _Burh-bót_ and castle-guard, 191. - - Borough and market, 192. Establishment of markets, 193. Moneyers in - the burh, 195. Burh and port, 195. Military and commercial elements in - the borough, 196. The borough and agriculture, 196. Burgesses as - cultivators, 197. Burgage tenure, 198. Eastern and western boroughs, - 199. Common property of the burgesses, 200. The community as - landholders, 200. Rights of common, 202. Absence of communalism in the - borough, 202. The borough community and its lord, 203. The farm of the - borough, 204. The sheriff and the farm of the borough, 205. The - community and the geld, 206. Partition of taxes, 207. No corporation - farming the borough, 208. Borough and county organization, 209. - Government of the boroughs, 209. The borough court, 210. The law-men, - 211. Definition of the borough, 212. Mediatized boroughs, 212. - Boroughs on the king's land and other boroughs, 215. Attributes of the - borough, 216. Classification of the boroughs, 217. National element in - the boroughs, 219. - - ESSAY II. - - ENGLAND BEFORE THE CONQUEST. - - Object of this essay, 220. Fundamental controversies over - Anglo-Saxon history, 221. The Romanesque theory unacceptable, 222. - Feudalism as a normal stage, 223. Feudalism as progress and - retrogress, 224. Progress and retrogress in the history of legal - ideas, 224. The contact of barbarism and civilization, 225. Our - materials, 226. - - § 1. _Book-land and the Land-book_, pp. 226-244. - - The lands of the churches, 226. How the churches acquired their - lands, 227. The earliest land-books, 229. Exotic character of the - book, 230. The book purports to convey ownership, 230. The book - conveys a superiority, 231. A modern analogy, 232. Conveyance of - superiorities in early times, 233. What had the king to give? 234. - The king's alienable rights, 234. Royal rights in land, 235. The - king's _feorm_, 236. Nature of the _feorm_, 237. Tribute and rent, - 239. Mixture of ownership and superiority, 240. Growth of the - seignory, 241. Book-land and church-right, 242. Book-land and - testament, 243. - - § 2. _Book-land and Folk-land_, pp. 244-258. - - What is folk-land? 244. Folk-land in the laws, 244. Folk-land in - the charters, 245. Land booked by the king to himself, 246. The - consent of the witan, 247. Consent and witness in the land-books, - 247. Attestation of the earliest books, 248, Confirmation and - attestation, 250. Function of the witan, 251. The king and the - people's land, 252. King's land and crown land, 253. Fate of the - king's land on his death, 253. The new king and the old king's heir, - 254. Immunity of the ancient demesne, 255. Rights of individuals in - national land, 255. The _alod_, 256. Book-land and privilege, 257. - Kinds of land and kinds of right, 257. - - § 3. _Sake and Soke_, pp. 258-292. - - Importance of seignorial justice, 258. Theory of the modern origin - of seignorial justice, 258. Sake and soke in the Norman age, 259. The - Confessor's writs, 259. Cnut's writs, 260. Cnut's law, 261. The book - and the writ, 261. Diplomatics, 262. The Anglo-Saxon writ, 264. Sake - and soke appear when writs appear, 265. Traditional evidence of sake - and soke, 267. _Altitonantis_, 268. Criticism of the earlier books, - 269. The clause of immunity, 270. Dissection of the words of - immunity, 272. The _trinoda necessitas_, 273. The _ángild_, 274. The - right to wites and the right to a court, 275. The Taunton book, 276. - The immunists and the wite, 277. Justice and jurisdiction, 277. The - Frankish immunity, 278. Seignorial and ecclesiastical jurisdiction, - 279. Criminal justice of the church, 281. Antiquity of seignorial - courts, 282. Justice, vassalage and tenure, 283. The lord and the - accused vassal, 284. The state, the lord and the vassal, 285. The - _landríca_ as immunist, 286. The immunist's rights over free men, - 288. Sub-delegation of justiciary rights, 289. Number of the - immunists, 289. - - Note: The _Ángild_ Clause, 290. - - § 4. _Book-land and Loan-land_, pp. 293-318. - - The book and the gift, 293. Book-land and service, 294. Military - service, 295. Escheat of book-land, 295. Alienation of book-land, - 297. The heriot and the testament, 298. The gift and the loan, 299. - The _precarium_, 300. The English land-loan, 301. Loans of church - land to the great, 302. The consideration for the loan, 303. St. - Oswald's loans, 303. Oswald's letter to Edgar, 304. Feudalism in - Oswald's law, 307. Oswald's riding-men, 308. Heritable loans, 309. - Wardship and marriage, 310. Seignorial jurisdiction, 310. Oswald's - law and England at large, 311. Inferences from Oswald's loans, 312. - Economic position of Oswald's tenants, 312. Loan-land and book-land, - 313. Book-land in the dooms, 314. Royal and other books, 315. The - gift and the loan, 317. Dependent tenure, 317. - - § 5. _The Growth of Seignorial Power_, pp. 318-340. - - Subjection of free men, 318. The royal grantee and the land, 318. - Provender rents and the manorial economy, 319. The church and the - peasants, 320. Growth of the manorial system, 321. Church-scot and - tithes, 321. Jurisdictional rights of the lord, 322. The lord and the - man's taxes, 323. Depression of the free ceorl, 324. The slaves, 325. - Growth of manors from below, 325. - - Theories which connect the manor with the Roman villa, 326. The - _Rectitudines_, 327. Discussion of the _Rectitudines_, 328. The - Tidenham case, 329. The Stoke case, 330. Inferences from these cases, - 332. The _villa_ and the _vicus_, 333. Manors in the land-books, 334. - The _mansus_ and the _manens_, 335. The hide, 336. The strip-holding - and the villa, 337. The lord and the strips, 338. The ceorl and the - slave, 339. The condition of the Danelaw, 339. - - § 6. _The Village Community_, pp. 340-356. - - Free villages, 340. Ownership by communities and ownership by - individuals, 341. Co-ownership and ownership by corporations, 341. - Ownership and governmental power, 342. Ownership and subordinate - governmental power, 343. Evolution of sovereignty and ownership, 343. - Communal ownership as a stage, 344. The theory of normal stages, 345. - - Was land owned by village communities? 346. Meadows, pastures and - woods, 348. The bond between neighbours, 349. Feebleness of village - communalism, 349. Absence of organization, 350. The German village on - conquered soil, 351. Development of kingly power, 351. The free - village in England, 352. The village meeting, 353. What might have - become of the free village, 353. Mark communities, 354. Intercommoning - between vills, 355. Last words, 356. - - ESSAY III. - - THE HIDE. - - What was the hide? 357. Importance of the question, 357. Hide and - manse in Bede, 358. Hide and manse in the land-books, 358. The large - hide and the manorial arrangement, 360. Our course, 361. - - § 1. _Measures and Fields_, pp. 362-399. - - Permanence and change in agrarian history, 362. Rapidity of change - in old times, 363. Devastation of villages, 363. Village colonies, - 365. Change of field systems, 365. Differences between different - shires, 366. New and old villages, 367. - - History of land measures, 368. Growth of uniform measures, 369. - Superficial measure, 370. The ancient elements of land measure, 372. - The German acre, 373. English acres, 373. Small and large acres, 374. - Anglo-Saxon rods and acres, 375. Customary acres and forest acres, - 376. The acre and the day's work, 377. The real acres in the fields, - 379. The _culturae_ or shots, 379. Delimitation of shots, 380. Real - and ideal acres, 381. Irregular length of acres, 383. The _seliones_ - or beds, 383. Acres divided lengthwise, 384. The virgate, 385. Yard - and yard-land, 385. The virgate a fraction of the hide, 385. The - yard-land in laws and charters, 386. - - The hide as a measure, 387. The hide as a measure of arable, 388. - The hide of 120 acres, 389. Real and fiscal hides, 389. Causes of - divergence of fiscal from real hides, 390. Effects of the divergence, - 392. Acreage of the hide in later days, 393. The carucate and bovate, - 395. The ox-gang, 396. The fiscal carucate, 396. Acreage tilled by a - plough, 397. Walter of Henley's programme of ploughing, 398. - - § 2. _Domesday Statistics_, pp. 399-490. - - _Statistical Tables_, 400-403. - - Domesday's three statements, 399. Northern formulas, 404. Southern - formulas, 405. Kentish formulas, 406. Relation between the three - statements, 406. Introduction of statistics, 407. Explanation of - statistics, 407. Acreage, 407. Population, 408. Danegeld, 408. Hides, - carucates, sulungs, 408. Reduced hidage, 410. The teamlands, 410. The - teams, 411. The values, 411. The table of ratios, 411. Imperfection - of statistics, 412. Constancy of ratios, 413. - - The team, 413. Variability of the _caruca_, 414. Constancy of the - _caruca_, 414. The villein's teams, 415. The villein's oxen, 416. - Light and heavy ploughs, 417. The team of Domesday and other - documents, 417. - - The teamland, 418. Fractional parts of the teamland, 418. Land for - oxen and wood for swine, 419. The teamland no areal unit, 419. The - teamlands of Great and the teams of Little Domesday, 420. The - Leicestershire formulas, 420. Origin of the inquiry touching the - teamlands, 421. Modification of the inquiry, 423. The potential teams, - 423. Normal relation between teams and teamlands, 424. The land of - deficient teams, 425. Actual and potential teamlands, 426. The land of - excessive teams, 427. Digression to East Anglia, 429. The teamland no - areal measure, 431. Eyton's theory, 431. Domesday's lineal measure, - 432. Measured teamlands, 433. - - Amount of arable in England, 435. Decrease of arable, 436. The food - problem, 436. What was the population? 436. What was the field-system? - 437. What was the acre's yield? 437. Consumption of beer, 438. The - Englishman's diet, 440. Is the arable superabundant? 441. Amount of - pasturage, 441. Area of the villages, 443. Produce and value, 444. - Varying size of acres, 445. The teamland in Cambridgeshire, 445. - - The hides of Domesday, 446. Relation between hides and teamlands, - 447. Unhidated estates, 448. Beneficial hidation, 448. Effect of - privilege, 449. Divergence of hide from teamland, 450. Partition of - the geld, 451. Distribution of hides among counties and hundreds, 451. - The hidage of Worcestershire, 451. _The County Hidage_, 455. Its date, - 456. The Northamptonshire Geld Roll, 457. Credibility of _The County - Hidage_, 458. Reductions of hidage, 458. The county quotas, 459. The - hundred and the hundred hides, 459. Comparison of Domesday hidage with - Pipe Rolls, 460. Under-rated and over-rated counties, 461. Hidage and - value, 462. One pound, one hide, 465. Equivalence of pound and hide, - 465. Cases of under-taxation, 466. Kent, 466. Devon and Cornwall, 467. - Cases of over-taxation, 468. Leicestershire, 468. Yorkshire, 469. - Equity and hidage, 470. Distribution of hides and of teamlands, 471. - Area and value as elements of geldability, 472. The equitable - teamland, 473. Artificial valets, 473. The new assessments of Henry - II., 473. - - Acreage of the fiscal hide, 475. Equation between hide and acres, - 475. The hide of 120 acres, 476. Evidence from Cambridgeshire, 476. - Evidence from the Isle of Ely, 476. Evidence from Middlesex, 477. - Meaning of the Middlesex entries, 478. Evidence in the Geld Inquests, - 478. Result of the evidence, 480. Evidence from Essex, 480. Acreage of - the fiscal carucate, 483. Acreage of the fiscal sulung, 484. Kemble's - theory, 485. The ploughland and the plough, 486. The Yorkshire - carucates, 487. Relation between teamlands and fiscal carucates, 487. - The fiscal hide of 120 acres, 489. Antiquity of the large hide, 489. - - § 3. _Beyond Domesday_, pp, 490-520. - - The hide beyond Domesday, 490. Arguments in favour of small hides, - 490. Continuity of the hide in the land-books, 491. Examples from - charters of Chertsey, 492. Examples from charters of Malmesbury, 492. - Permanence of the hidation, 493. Gifts of villages, 494. Gifts of - manses in villages, 495. The largest gifts, 496. The Winchester - estate at Chilcombe, 496. The Winchester estates at Downton and - Taunton, 498. Kemble and the Taunton estate, 499. Difficulty of - identifying parcels, 500. The numerous hides in ancient documents, - 501. _The Burghal Hidage_, 502. _The Tribal Hidage_, 506. Bede's - hidage, 508. Bede and the land-books, 509. Gradual reduction of - hidage, 510. Over-estimates of hidage, 510. Size of Bede's hide, 511. - Evidence from Iona, 512. Evidence from Selsey, 513. Conclusion in - favour of the large hide, 515. Continental analogies, 515. The German - _Hufe_, 515. The _Königshufe_, 516. The large hide on the continent, - 517. The large hide not too large, 518. The large hide and the manor, - 519. Last words, 520. - - -FOOTNOTES: - -[1] Siedelung und Agrarwesen der Westgermanen und Ostgermanen, der - Kelten, Römer, Finnen und Slawen, von August Meitzen, Berlin, 1895. - - - LIST OF ABBREVIATIONS. - - B. = Birch, Cartularium Saxonicum, London, 1885-7-93. - D. B. = Domesday Book. - E. = Earle, Land Charters, Oxford, 1888. - E. H. R. = English Historical Review. - H. & S. = Haddan and Stubbs, Councils and Ecclesiastical - Documents, vol. iii, Oxford, 1871. - K. = Kemble, Codex Diplomaticus Ævi Saxonici, London, 1839-48. - T. = Thorpe, Diplomatarium Anglicanum, London, 1865. - - - ADDENDUM. - - p. 347, note 794. Instances of the periodic reallotment of the whole - land of a vill, exclusive of houses and crofts, seem to have been not - unknown in the north of England. Here the reallotment is found in - connexion with a husbandry which knows no permanent severance of the - arable from the grass-land, but from time to time ploughs up a tract - and after a while allows it to become grass-land once more. See F. W. - Dendy, The Ancient Farms of Northumberland, Archaeologia Aeliana, Vol. - xvi. I have to thank Mr Edward Bateson for a reference to this paper. - - - - -ESSAY I. - -DOMESDAY BOOK. - - -[Domesday Book and its satellites.] - -At midwinter in the year 1085 William the Conqueror wore his crown at -Gloucester and there he had deep speech with his wise men. The outcome -of that speech was the mission throughout all England of 'barons,' -'legates' or 'justices' charged with the duty of collecting from the -verdicts of the shires, the hundreds and the vills a _descriptio_ of his -new realm. The outcome of that mission was the _descriptio_ preserved -for us in two manuscript volumes, which within a century after their -making had already acquired the name of Domesday Book. The second of -those volumes, sometimes known as Little Domesday, deals with but three -counties, namely Essex, Norfolk and Suffolk, while the first volume -comprehends the rest of England. Along with these we must place certain -other documents that are closely connected with the grand inquest. We -have in the so-called Inquisitio Comitatus Cantabrigiae, a copy, an -imperfect copy, of the verdicts delivered by the Cambridgeshire jurors, -and this, as we shall hereafter see, is a document of the highest value, -even though in some details it is not always very trustworthy[2]. We -have in the so-called Inquisitio Eliensis an account of the estates of -the Abbey of Ely in Cambridgeshire, Suffolk and other counties, an -account which has as its ultimate source the verdicts of the juries and -which contains some particulars which were omitted from Domesday -Book[3]. We have in the so-called Exon Domesday an account of Cornwall -and Devonshire and of certain lands in Somerset, Dorset and Wiltshire; -this also seems to have been constructed directly or indirectly out of -the verdicts delivered in those counties, and it contains certain -particulars about the amount of stock upon the various estates which are -omitted from what, for distinction's sake, is sometimes called the -Exchequer Domesday[4]. At the beginning of this Exon Domesday we have -certain accounts relating to the payment of a great geld, seemingly the -geld of six shillings on the hide that William levied in the winter of -1083-4, two years before the deep speech at Gloucester[5]. Lastly, in -the Northamptonshire Geld Roll[6] we have some precious information -about fiscal affairs as they stood some few years before the survey[7]. - -[Domesday and legal history.] - -Such in brief are the documents out of which, with some small help from -the Anglo-Saxon dooms and land-books, from the charters of Norman kings -and from the so-called Leges of the Conqueror, the Confessor and Henry -I., some future historian may be able to reconstruct the land-law which -obtained in the conquered England of 1086, and (for our records -frequently speak of the _tempus Regis Edwardi_) the unconquered England -of 1065. The reflection that but for the deep speech at Gloucester, but -for the lucky survival of two or three manuscripts, he would have known -next to nothing of that law, will make him modest and cautious. At the -present moment, though much has been done towards forcing Domesday Book -to yield its meaning, some of the legal problems that are raised by it, -especially those which concern the time of King Edward, have hardly been -stated, much less solved. It is with some hope of stating, with little -hope of solving them that we begin this essay. If only we can ask the -right questions we shall have done something for a good end. If English -history is to be understood, the law of Domesday Book must be mastered. -We have here an absolutely unique account of feudalism in two different -stages of its growth, the more trustworthy, though the more puzzling, -because it gives us particulars and not generalities. - -Puzzling enough it certainly is, and this for many reasons. Our task may -be the easier if we state some of those reasons at the outset. - -[Domesday a geld book.] - -To say that Domesday Book is no collection of laws or treatise on law -would be needless. Very seldom does it state any rule in general terms, -and when it does so we shall usually find cause for believing that this -rule is itself an exception, a local custom, a provincial privilege. -Thus, if we are to come by general rules, we must obtain them -inductively by a comparison of many thousand particular instances. But -further, Domesday Book is no register of title, no register of all those -rights and facts which constitute the system of land-holdership. One -great purpose seems to mould both its form and its substance; it is a -geld-book. - -[Danegeld.] - -When Duke William became king of the English, he found (so he might well -think) among the most valuable of his newly acquired regalia, a right to -levy a land-tax under the name of geld or danegeld. A detailed history -of that tax cannot be written. It is under the year 991 that our English -chronicle first mentions a tribute paid to the Danes[8]; £10,000 was -then paid to them. In 994 the yet larger sum of £16,000[9] was levied. -In 1002 the tribute had risen to £24,000[10], in 1007 to £30,000[11], in -1009 East Kent paid £3,000[12]; £21,000 was raised in 1014[13]; in 1018 -Cnut when newly crowned took £72,000 besides £11,000 paid by the -Londoners[14]; in 1040 Harthacnut took £21,099 besides a sum of £11,048 -that was paid for thirty-two ships[15]. With a Dane upon the throne, -this tribute seems to have become an occasional war-tax. How often it -was levied we cannot tell; but that it was levied more than once by the -Confessor is not doubtful[16]. We are told that he abolished it in or -about the year 1051, some eight or nine years after his accession, some -fifteen before his death. No sooner was William crowned than 'he laid on -men a geld exceeding stiff.' In the next year 'he set a mickle geld' on -the people. In the winter of 1083-4 he raised a geld of 72 pence (6 -Norman shillings) upon the hide. That this tax was enormously heavy is -plain. Taking one case with another, it would seem that the hide was -frequently supposed to be worth about £1 a year and there were many -hides in England that were worth far less. But grievous as was the tax -which immediately preceded the making of the survey, we are not entitled -to infer that it was of unprecedented severity. It brought William but -£415 or thereabouts from Dorset and £510 or thereabouts from -Somerset[17]. Worcestershire was deemed to contain about 1200 hides and -therefore, even if none of its hides had been exempted, it would have -contributed but £360. If the huge sums mentioned by the chronicler had -really been exacted, and that too within the memory of men who were yet -living, William might well regard the right to levy a geld as the most -precious jewel in his English crown. To secure a due and punctual -payment of it was worth a gigantic effort, a survey such as had never -been made and a record such as had never been penned since the grandest -days of the old Roman Empire. But further, the assessment of the geld -sadly needed reform. Owing to one cause and another, owing to privileges -and immunities that had been capriciously granted, owing also, so we -think, to a radically vicious method of computing the geldable areas of -counties and hundreds, the old assessment was full of anomalies and -iniquities. Some estates were over-rated, others were scandalously -under-rated. That William intended to correct the old assessment, or -rather to sweep it away and put a new assessment in its stead, seems -highly probable, though it has not been proved that either he or his -sons accomplished this feat[18]. For this purpose, however, materials -were to be collected which would enable the royal officers to decide -what changes were necessary in order that all England might be taxed in -accordance with a just and uniform plan. Concerning each estate they -were to know the number of geldable units ('hides' or 'carucates') for -which it had answered in King Edward's day, they were to know the number -of plough oxen that there were upon it, they were to know its true -annual value, they were to know whether that value had been rising or -falling during the past twenty years. Domesday Book has well been called -a rate book, and the task of spelling out a land law from the -particulars that it states is not unlike the task that would lie before -any one who endeavoured to construct our modern law of real property out -of rate books, income tax returns and similar materials. All the lands, -all the land-holders of England may be brought before us, but we are -told only of such facts, such rights, such legal relationships as bear -on the actual or potential payment of geld. True, that some minor -purposes may be achieved by the king's commissioners, though the quest -for geld is their one main object. About the rents and renders due from -his own demesne manors the king may thus obtain some valuable -information. Also he may learn, as it were by the way, whether any of -his barons or other men have presumed to occupy, to 'invade,' lands -which he has reserved for himself. Again, if several persons are in -dispute about a tract of ground, the contest may be appeased by the -testimony of shire and hundred, or may be reserved for the king's -audience; at any rate the existence of an outstanding claim may be -recorded by the royal commissioners. Here and there the peculiar customs -of a shire or a borough will be stated, and incidentally the services -that certain tenants owe to their lords may be noticed. But all this is -done sporadically and unsystematically. Our record is no register of -title, it is no feodary, it is no custumal, it is no rent roll; it is a -tax book, a geld book. - -[The survey and the geld system.] - -We say this, not by way of vain complaint against its meagreness, but -because in our belief a care for geld and for all that concerns the -assessment and payment of geld colours far more deeply than commentators -have usually supposed the information that is given to us about other -matters. We should not be surprised if definitions and distinctions -which at first sight have little enough to do with fiscal arrangements, -for example the definition of a manor and the distinction between a -villein and a 'free man,' involved references to the apportionment and -the levy of the land-tax. Often enough it happens that legal ideas of a -very general kind are defined by fiscal rules; for example, our modern -English idea of 'occupation' has become so much part and parcel of a -system of assessment that lawyers are always ready to argue that a -certain man must be an 'occupier' because such men as he are rated to -the relief of the poor. It seems then a fair supposition that any line -that Domesday Book draws systematically and sharply, whether it be -between various classes of men or between various classes of tenements, -is somehow or another connected with the main theme of that -book--geldability, actual or potential. - -[Weight of the danegeld.] - -Since we have mentioned the stories told by the chronicler about the -tribute paid to the Danes, we may make a comment upon them which will -become of importance hereafter. Those stories look true, and they seem -to be accepted by modern historians. Had we been told just once that -some large number of pounds, for example £60,000, was levied, or had the -same round sum been repeated in year after year, we might well have said -that such figures deserved no attention, and that by £60,000 our -annalist merely meant a big sum of money. But, as will have been seen, -he varies his figures from year to year and is not always content with a -round number; he speaks of £21,099 and of £11,048[19]. We can hardly -therefore treat his statements as mere loose talk and are reluctantly -driven to suppose that they are true or near the truth. If this be so, -then, unless some discovery has yet to be made in the history of money, -no word but 'appalling' will adequately describe the taxation of which -he speaks. We know pretty accurately the amount of money that became due -when Henry I. or Henry II. imposed a danegeld of two shillings on the -hide. The following table constructed from the pipe rolls will show the -sum charged against each county. We arrange the shires in the order of -their indebtedness, for a few of the many caprices of the allotment will -thus be visible, and our table may be of use to us in other -contexts[20]. - - APPROXIMATE CHARGE OF A DANEGELD OF TWO SHILLINGS ON THE HIDE IN THE - MIDDLE OF THE TWELFTH CENTURY. - - £ £ - Wiltshire 389 | Cambridge 114 - Norfolk 330 | Derby and Nottingham 110 - Somerset 278 | Hertford 110 - Lincoln 266 | Bedford 110 - Dorset 248 | Kent 105 - Oxford 242 | Devon 104 - Essex 236 | Worcester 101 - Suffolk 235 | Leicester 100 - Sussex 210 | Hereford 94 - Bucks 205 | Middlesex 85 - Berks 202 | Huntingdon 71 - Gloucester 190 | Stafford 44 - S. Hants 180 | Cornwall 23 - Surrey 177 | Rutland 12 - York 160 | Northumberland 100 - Warwick 129 | Cheshire[21] 0 - N. Hants 120 | ---- - Salop 118 | Total 5198 - -[The geld of old times.] - -Now be it understood that these figures do not show the amount of money -that Henry I. and Henry II. could obtain by a danegeld. They had to take -much less. When it was last levied, the tax was not bringing in £3500, -so many were the churches and great folk who had obtained temporary or -permanent exemptions from it. We will cite Leicestershire for example. -The total of the geld charged upon it was almost exactly or quite -exactly £100. On the second roll of Henry II.'s reign we find that £25. -7_s._ 6_d._ have been paid into the treasury, that £22. 8_s._ 3_d._ have -been 'pardoned' to magnates and templars, that £51. 8_s._ 2_d._ are -written off in respect of waste, and that 16_s._ 0_d._ are still due. On -the eighth roll the account shows that £62. 12_s._ 7_d._ have been paid -and that £37. 6_s._ 9_d._ have been 'pardoned.' No, what our table -displays is the amount that would be raised if all exemptions were -disregarded and no penny forborne. And now let us turn back to the -chronicle and (not to take an extreme example) read of £30,000 being -raised. Unless we are prepared to bring against the fathers of English -history a charge of repeated, wanton and circumstantial lying, we shall -think of the danegeld of Æthelred's reign and of Cnut's as of an impost -so heavy that it was fully capable of transmuting a whole nation. -Therefore the lines that are drawn by the incidence of this tribute will -be deep and permanent; but still we must remember that primarily they -will be fiscal lines. - -[Unstable terminology of the survey.] - -Then again, we ought not to look to Domesday Book for a settled and -stable scheme of technical terms. Such a scheme could not be established -in a brief twenty years. About one half of the technical terms that meet -us, about one half of the terms which, as we think, ought to be -precisely defined, are, we may say, English terms. They are ancient -English words, or they are words brought hither by the Danes, or they -are Latin words which have long been in use in England and have acquired -special meanings in relation to English affairs. On the other hand, -about half the technical terms are French. Some of them are old Latin -words which have acquired special meanings in France, some are Romance -words newly coined in France, some are Teutonic words which tell of the -Frankish conquest of Gaul. In the one great class we place _scira_, -_hundredum_, _wapentac_, _hida_, _berewica_, _inland_, _haga_, _soka_, -_saka_, _geldum_, _gablum_, _scotum_, _heregeat_, _gersuma_, _thegnus_, -_sochemannus_, _burus_, _coscet_; in the other _comitatus_, _carucata_, -_virgata_, _bovata_, _arpentum_, _manerium_, _feudum_, _alodium_, -_homagium_, _relevium_, _baro_, _vicecomes_, _vavassor_, _villanus_, -_bordarius_, _colibertus_, _hospes_. It is not in twenty years that a -settled and stable scheme can be formed out of such elements as these. -And often enough it is very difficult for us to give just the right -meaning to some simple Latin word. If we translate _miles_ by _soldier_ -or _warrior_, this may be too indefinite; if we translate it by -_knight_, this may be too definite, and yet leave open the question -whether we are comparing the _miles_ of 1086 with the _cniht_ of -unconquered England or with the knight of the thirteenth century. If we -render _vicecomes_ by _sheriff_ we are making our sheriff too little of -a _vicomte_. When _comes_ is before us we have to choose between giving -Britanny an _earl_, giving Chester a _count_, or offending some of our -_comites_ by invidious distinctions. Time will show what these words -shall mean. Some will perish in the struggle for existence; others have -long and adventurous careers before them. At present two sets of terms -are rudely intermixed; the time when they will grow into an organic -whole is but beginning. - -[Legal ideas of cent. xi.] - -To this we must add that, unless we have mistaken the general drift of -legal history, the law implied in Domesday Book ought to be for us very -difficult law, far more difficult than the law of the thirteenth -century, for the thirteenth century is nearer to us than is the -eleventh. The grown man will find it easier to think the thoughts of the -school-boy than to think the thoughts of the baby. And yet the doctrine -that our remote forefathers being simple folk had simple law dies hard. -Too often we allow ourselves to suppose that, could we but get back to -the beginning, we should find that all was intelligible and should then -be able to watch the process whereby simple ideas were smothered under -subtleties and technicalities. But it is not so. Simplicity is the -outcome of technical subtlety; it is the goal not the starting point. As -we go backwards the familiar outlines become blurred; the ideas become -fluid, and instead of the simple we find the indefinite. But difficult -though our task may be, we must turn to it. - -FOOTNOTES: - - [2] Inquisitio Comitatus Cantabrigiae, ed. N. E. Hamilton. When, as - sometimes happens, the figures in this record differ from those - given in Domesday Book, the latter seem to be in general the - more correct, for the arithmetic is better. Also it seems plain - that the compilers of Domesday had, even for districts - comprised in the Inquisitio, other materials besides those that - the Inquisitio contains. For example, that document says - nothing of some of the royal manors. [Since this note was - written, Mr Round, Feudal England, pp. 10 ff. has published the - same result after an elaborate investigation.] - - [3] This is printed in D. B. vol. iv. and given by Hamilton at the - end of his Inq. Com. Cantab. As to the manner in which it was - compiled see Round, Feudal England, 133 ff. - - [4] The Exon Domesday is printed in D. B. vol. iv. - - [5] Round, Domesday Studies, i. 91: 'I am tempted to believe that - these geld rolls in the form in which we now have them were - compiled at Winchester after the close of Easter 1084, by the - body which was the germ of the future Exchequer.' - - [6] Printed by Ellis, Introduction to Domesday, i. 184. - - [7] Round, Feudal England, 147. - - [8] Earle, Two Chronicles, 130-1. - - [9] Ibid. 132-3. - - [10] Ibid. 137. - - [11] Ibid. 141. - - [12] Ibid. 142. - - [13] Ibid. 151. - - [14] Ibid. 160-1. - - [15] Ibid. 167. - - [16] There is a valuable paper on this subject, A Short Account of - Danegeld [by P. C. Webb] published in 1756. - - [17] D. B. iv. 26, 489. - - [18] In 1194 the tax for Richard's ransom seems, at least in - Wiltshire, to have been distributed in the main according to - the assessment that prevailed in 1084; Rolls of the King's - Court (Pipe Roll Soc.) i. Introduction, p. xxiv. - - [19] The statement in Æthelred, II. 7 (Schmid, p. 209) as to a - payment of £22,000 is in a general way corroborative of the - chronicler's large figures. - - [20] The figures will be given more accurately on a later page. - - [21] Cheshire pays no geld to the king. This loss is compensated by - a sum which is sometimes exacted from Northumberland. - - - - -§ 1. _Plan of the Survey._ - - -[The geographical basis.] - -England was already mapped out into counties, hundreds or wapentakes and -vills. Trithings or ridings appear in Yorkshire and Lincolnshire, lathes -in Kent, rapes in Sussex, while leets appear, at least sporadically, in -Norfolk[22]. These provincial peculiarities we must pass by, nor will we -pause to comment at any length on the changes in the boundaries of -counties and of hundreds that have taken place since the date of the -survey. Though these changes have been many and some few of them have -been large[23], we may still say that as a general rule the political -geography of England was already stereotyped. And we see that already -there are many curious anomalies, 'detached portions' of counties, -discrete hundreds, places that are extra-hundredal[24], places that for -one purpose are in one county and for another purpose in another -county[25]. We see also that proprietary rights have already been making -sport of arrangements which in our eyes should be fixed by public law. -Earls, sheriffs and others have enjoyed a marvellous power of taking a -tract of land out of one district and placing it, or 'making it lie' in -another district[26]. Land is constantly spoken of as though it were the -most portable of things; it can easily be taken from one vill or hundred -and be added to or placed in or caused to lie in another vill or -hundred. This 'notional movability' of land, if we may use such a term, -will become of importance to us when we are studying the formation of -manors. - -[The vill as the geographical unit.] - -For the present, however, we are concerned with the general truth that -England is divided into counties, hundreds or wapentakes and vills. This -is the geographical basis of the survey. That basis, however, is hidden -from us by the form of our record. The plan adopted by those who -fashioned Domesday Book out of the returns provided for them by the -king's commissioners is a curious, compromising plan. We may say that in -part it is geographical, while in part it is feudal or proprietary. It -takes each county separately and thus far it is geographical; but within -the boundaries of each county it arranges the lands under the names of -the tenants in chief who hold them. Thus all the lands in Cambridgeshire -of which Count Alan is tenant in chief are brought together, no matter -that they lie scattered about in various hundreds. Therefore it is -necessary for us to understand that the original returns reported by the -surveyors did not reach the royal treasury in this form. At least as -regards the county of Cambridge, we can be certain of this. The hundreds -were taken one by one; they were taken in a geographical order, and not -until the justices had learned all that was to be known of Staplehow -hundred did they call upon the jurors of Cheveley hundred for their -verdict. That such was their procedure we might have guessed even had we -not been fortunate enough to have a copy of the Cambridgeshire verdicts; -for, though the commissioners seem to have held but one moot for each -shire, still it is plain that each hundred was represented by a separate -set of jurors[27]. But from these Cambridgeshire verdicts we learn what -otherwise we could hardly have known. Within each hundred the survey was -made by vills[28]. If we suppose the commissioners charging the jurors -we must represent them as saying, not 'Tell us what tenants in chief -have lands in your hundred and how much each of them holds,' but 'Tell -us about each vill in your hundred, who holds land in it.' Thus, for -example, the men of the Armingford hundred are called up. They make a -separate report about each vill in it. They begin by stating that the -vill is rated at a certain number of hides and then they proceed to -distribute those hides among the tenants in chief. Thus, for example, -they say that Abington was rated at 5 hides, and that those 5 hides are -distributed thus[29]: - - hides virgates - Hugh Pincerna holds of the bishop of Winchester 2-1/2 1/2 - The king 1/2 - Ralph and Robert hold of Hardouin de Eschalers 1 1-1/2 - Earl Roger 1 - Picot the sheriff 1/2 - Alwin Hamelecoc the bedel holds of the king 1/2 - _____ _____ - 5 0 - -Now in Domesday Book we must look to several different pages to get this -information about the vill of Abington,--to one page for Earl Roger's -land, to another page for Picot's land, and we may easily miss the -important fact that this vill of Abington has been rated as a whole at -the neat, round figure of 5 hides. And then we see that the whole -hundred of Armingford has been rated at the neat, round figure of 100 -hides, and has consisted of six vills rated at 10 hides apiece and eight -vills rated at 5 hides apiece[30]. Thus we are brought to look upon the -vill as a unit in a system of assessment. All this is concealed from us -by the form of Domesday Book. - -[Stability of the vill.] - -When that book mentions the name of a place, when it says that Roger -holds Sutton or that Ralph holds three hides in Norton, we regard that -name as the name of a vill; it may or may not be also the name of a -manor. Speaking very generally we may say that the place so named will -in after times be known as a vill and in our own day will be a civil -parish. No doubt in some parts of the country new vills have been -created since the Conqueror's time. Some names that occur in our record -fail to obtain a permanent place on the roll of English vills, become -the names of hamlets or disappear altogether; on the other hand, new -names come to the front. Of course we dare not say dogmatically that all -the names mentioned in Domesday Book were the names of vills; very -possibly (if this distinction was already known) some of them were the -names of hamlets; nor, again, do we imply that the _villa_ of 1086 had -much organization; but a place that is mentioned in Domesday Book will -probably be recognized as a vill in the thirteenth, a civil parish in -the nineteenth century. Let us take Cambridgeshire by way of example. -Excluding the Isle of Ely, we find that the political geography of the -Conqueror's reign has endured until our own time. The boundaries of the -hundreds lie almost where they lay, the number of vills has hardly been -increased or diminished. The chief changes amount to this:--A small -tract on the east side of the county containing Exning and Bellingham -has been made over to Suffolk; four other names contained in Domesday no -longer stand for parishes, while the names of five of our modern -parishes--one of them is the significant name of Newton--are not found -there[31]. But about a hundred and ten vills that were vills in 1086 -are vills or civil parishes at the present day, and in all probability -they then had approximately the same boundaries that they have now. - -[Omission of vills.] - -This may be a somewhat too favourable example of permanence and -continuity. Of all counties Cambridgeshire is the one whose ancient -geography can be the most easily examined; but wherever we have looked -we have come to the conclusion that the distribution of England into -vills is in the main as old as the Norman conquest[32]. Two causes of -difficulty may be noticed, for they are of some interest. Owing to what -we have called the 'notional movability' of land, we never can be quite -sure that when certain hides or acres are said to be in or lie in a -certain place they are really and physically in that place. They are -really in one village, but they are spoken of as belonging to another -village, because their occupants pay their geld or do their services in -the latter. Manorial and fiscal geography interferes with physical and -villar geography. We have lately seen how land rated at five hides was -comprised, as a matter of fact, in the vill of Abington; but of those -five hides, one virgate 'lay in' Shingay, a half-hide 'lay in' -Litlington while a half-virgate 'lay and had always lain' in Morden[33]. -This, if we mistake not, leads in some cases to an omission of the names -of small vills. A great lord has a compact estate, perhaps the whole of -one of the small southern hundreds. He treats it as a whole, and all the -land that he has there will be ascribed to some considerable village in -which he has his hall. We should be rash in supposing that there were no -other villages on this land. For example, in Surrey there is now-a-days -a hundred called Farnham which comprises the parish of Farnham, the -parish of Frensham and some other villages. If we mistake not, all that -Domesday Book has to say of the whole of this territory is that the -Bishop of Winchester holds Farnham, that it has been rated at 60 hides, -that it has been worth the large sum of £65 a year and that there are so -many tenants upon it[34]. We certainly must not draw the inference that -there was but one vill in this tract. If the bishop is tenant in chief -of the whole hundred and has become responsible for all the geld that -is levied therefrom, there is no great reason why the surveyors should -trouble themselves about the vills. Thus the simple _Episcopus tenet -Ferneham_ may dispose of some 25,000 acres of land. So the same bishop -has an estate at Chilcombe in Hampshire; but clearly the name -_Ciltecumbe_ covers a wide territory for there are no less than nine -churches upon it[35]. We never can be very certain about the boundaries -of these large and compact estates. - -[Fission of vills.] - -A second cause of difficulty lies in the fact that in comparatively -modern times, from the twelfth century onwards, two or three contiguous -villages will often bear the same name and be distinguished only by what -we may call their surnames--thus Guilden Morden and Steeple Morden, -Stratfield Saye, Stratfield Turgis, Stratfield Mortimer, Tolleshunt -Knights, Tolleshunt Major, Tolleshunt Darcy. Such cases are common; in -some districts they are hardly exceptional. Doubtless they point to a -time when a single village by some process of colonization or -subdivision become two villages. Now Domesday Book seldom enables us to -say for certain whether the change has already taken place. In a few -instances it marks off the little village from the great village of the -same name[36]. In some other instances it will speak, for example, of -_Mordune_ and _Mordune Alia_, of _Emingeforde_ and _Emingeforde Alia_, -or the like, thus showing both that the change has taken place, and also -that it is so recent that it is recognized only by very clumsy terms. In -Cambridgeshire, since we have the original verdicts, we can see that the -two Mordens are already distinct; the one is rated at ten hides, the -other at five[37]. On the other hand, we can see that our Great and -Little Shelford are rated as one vill of twenty hides[38], our Castle -Camps and Shudy Camps as one vill of five hides[39]. Elsewhere we are -left to guess whether the fission is complete, and the surnames that -many of our vills ultimately acquire, the names of families which rose -to greatness in the twelfth and thirteenth centuries, will often suggest -that the surveyors saw but one vill where we see two[40]. However, the -broad truth stands out that England was divided into vills and that in -general the vill of Domesday Book is still a vill in after days[41]. - -[The nucleated village and the vill of scattered steads.] - -The 'vill' or 'town' of the later middle ages was, like the 'civil -parish' of our own day, a tract of land with some houses on it, and this -tract was a unit in the national system of police and finance[42], But -we are not entitled to make for ourselves any one typical picture of the -English vill. We are learning from the ordnance map (that marvellous -palimpsest, which under Dr Meitzen's guidance we are beginning to -decipher) that in all probability we must keep at least two types before -our minds. On the one hand, there is what we might call the true village -or the nucleated village. In the purest form of this type there is one -and only one cluster of houses. It is a fairly large cluster; it stands -in the midst of its fields, of its territory, and until lately a -considerable part of its territory will probably have consisted of -spacious 'common fields.' In a country in which there are villages of -this type the parish boundaries seem almost to draw themselves[43]. On -the other hand, we may easily find a country in which there are few -villages of this character. The houses which lie within the boundary of -the parish are scattered about in small clusters; here two or three, -there three or four. These clusters often have names of their own, and -it seems a mere chance that the name borne by one of them should be also -the name of the whole parish or vill[44]. We see no traces of very large -fields. On the face of the map there is no reason why a particular group -of cottages should be reckoned to belong to this parish rather than to -the next. As our eyes grow accustomed to the work we may arrive at some -extremely important conclusions such as those which Meitzen has -suggested. The outlines of our nucleated villages may have been drawn -for us by Germanic settlers, whereas in the land of hamlets and -scattered steads old Celtic arrangements may never have been thoroughly -effaced. Towards theories of this kind we are slowly winning our way. -In the meantime let us remember that a _villa_ of Domesday Book may -correspond to one of at least two very different models or may be -intermediate between various types. It may be a fairly large and -agrarianly organic unit, or it may be a group of small agrarian units -which are being held together in one whole merely by an external force, -by police law and fiscal law[45]. - -[Illustrations by maps.] - -Two little fragments of 'the original one inch ordnance map' will be -more eloquent than would be many paragraphs of written discourse. The -one pictures a district on the border between Oxfordshire and Berkshire -cut by the Thames and the main line of the Great Western Railway; the -other a district on the border between Devon and Somerset, north of -Collumpton and south of Wiveliscombe. Neither is an extreme example. -True villages we may easily find. Cambridgeshire, for instance, would -have afforded some beautiful specimens, for many of the 'open fields' -were still open when the ordnance map of that county was made. But -throughout large tracts of England, even though there has been an -'inclosure' and there are no longer any open fields, our map often shows -a land of villages. When it does so and the district that it portrays is -a purely agricultural district, we may generally assume without going -far wrong that the villages are ancient, for during at least the last -three centuries the predominant current in our agrarian history has set -against the formation of villages and towards the distribution of -scattered homesteads. To find the purest specimens of a land of hamlets -we ought to go to Wales or to Cornwall or to other parts of 'the Celtic -fringe'; very fair examples might be found throughout the west of -England. Also we may perhaps find hamlets rather than villages wherever -there have been within the historic period large tracts of forest land. -Very often, again, the parish or township looks on our map like a -hybrid. We seem to see a village with satellitic hamlets. Much more -remains to be done before we shall be able to construe the testimony of -our fields and walls and hedges, but at least two types of vill must be -in our eyes when we are reading Domesday Book[46]. - -[Illustration: A LAND OF VILLAGES - _On the border between Oxfordshire and Berkshire._ - [_Between pp._ 16-17]] - -[Illustration: A LAND OF HAMLETS - _On the border between Somerset and Devon._] - -[Size of the vill.] - -To say that the _villa_ of Domesday Book is in general the vill of the -thirteenth century and the civil parish of the nineteenth is to say that -the areal extent of the _villa_ varied widely from case to case. More -important is it for us to observe that the number of inhabitants of the -_villa_ varied widely from case to case. The error into which we are -most likely to fall will be that of making our vill too populous. Some -vills, especially some royal vills, are populous enough; a few contain a -hundred households; but the average township is certainly much smaller -than this[47]. Before we give any figures, it should first be observed -that Domesday Book never enables us to count heads. It states the number -of the tenants of various classes, _sochemanni_, _villani_, _bordarii_, -and the like, and leaves us to suppose that each of these persons is, or -may be, the head of a household. It also states how many _servi_ there -are. Whether we ought to suppose that only the heads of servile -households are reckoned, or whether we ought to think of the _servi_ as -having no households but as living within the lord's gates and being -enumerated, men, women and able-bodied children, by the head--this is a -difficult question. Still we may reach some results which will enable us -to compare township with township. By way of fair sample we may take the -Armingford hundred of Cambridgeshire, and all persons who are above the -rank of _servi_ we will include under the term 'the non-servile -population[48].' - - ARMINGFORD HUNDRED. - - Non-servile - population Servi Total - - Abington 19 0 19 - Bassingbourn 35 3 38 - Clapton 19 0 19 - Croydon 29 0 29 - Hatley 18 3 21 - Litlington 37 6 43 - Melbourn 62 1 63 - Meldreth 44 7 51 - Morden 43 11 54 - Morden Alia 50 0 50 - Shingay 18 0 18 - Tadlow 27 4 31 - Wendy 12 4 16 - Whaddon 44 6 50 - --- --- --- - Total 457 45 502 - - -Here in fourteen vills we have an average of thirty-two non-servile -households for every vill. Now even in our own day a parish with -thirty-two houses, though small, is not extremely small. But we should -form a wrong picture of the England of the eleventh century if we filled -all parts of it with such vills as these. We will take at random -fourteen vills in Staffordshire held by Earl Roger[49]. - - Non-servile - population Servi Total - - Claverlege 45 0 45 - Nordlege 9 0 9 - Alvidelege 13 0 13 - Halas 40 2 42 - Chenistelei 11 0 11 - Otne 7 1 8 - Nortberie 20 1 21 - Erlide 8 2 10 - Gaitone 16 0 16 - Cressvale 8 0 8 - Dodintone 3 0 3 - Modreshale 5 0 5 - Almentone 8 0 8 - Metford 7 1 8 - --- --- --- - Total 200 7 207 - -Here for fourteen vills we have an average of but fourteen non-servile -households and the _servi_ are so few that we may neglect them. We will -next look at a page in the survey of Somersetshire which describes -certain vills that have fallen to the lot of the bishop of -Coutances[50]. - - Non-servile - population Servi Total - - Winemeresham 8 3 11 - Chetenore 3 1 4 - Widicumbe 21 6 27 - Harpetrev 10 2 12 - Hotune 11 0 11 - Lilebere 6 1 7 - Wintreth 4 2 6 - Aisecome 11 7 18 - Clutone 22 1 23 - Temesbare 7 3 10 - Nortone 16 3 19 - Cliveham 15 1 16 - Ferenberge 13 6 19 - Cliveware 6 0 6 - --- --- --- - Total 153 36 189 - -Here we have on the average but eleven non-servile households for each -village, and even if we suppose each _servus_ to represent a household, -we have not fourteen households. Yet smaller vills will be found in -Devonshire, many vills in which the total number of the persons -mentioned does not exceed ten and near half of these are _servi_. In -Cornwall the townships, if townships we ought to call them, are yet -smaller; often we can attribute no more than five or six families to the -vill even if we include the _servi_. - -[Population of the vills.] - -[Contrast between east and west.] - -Unless our calculations mislead us, the density of the population in the -average vill of a given county varies somewhat directly with the density -of the population in that county; at all events we can not say that -where vills are populous, vills will be few. As regards this matter no -precise results are attainable; our document is full of snares for -arithmeticians. Still if for a moment we have recourse to the crude -method of dividing the number of acres comprised in a modern county by -the number of the persons who are mentioned in the survey of that -county, the outcome of our calculation will be remarkable and will point -to some broad truth[51]. For Suffolk the quotient is 46 or thereabouts; -for Norfolk but little larger[52]; for Essex 61, for Lincoln 67; for -Bedford, Berkshire, Northampton, Leicester, Middlesex, Oxford, Kent and -Somerset it lies between 70 and 80, for Buckingham, Warwick, Sussex, -Wiltshire and Dorset it lies between 80 and 90; Devon, Gloucester, -Worcester, Hereford are thinly peopled, Cornwall, Stafford, Shropshire -very thinly. Some particular results that we should thus attain would be -delusive. Thus we should say that men were sparse in Cambridgeshire, did -we not remember that a large part of our modern Cambridgeshire was then -a sheet of water. Permanent physical causes interfere with the operation -of the general rule. Thus Surrey, with its wide heaths has, as we might -expect, but few men to the square mile. Derbyshire has many vills lying -waste; Yorkshire is so much wasted that it can give us no valuable -result; and again, Yorkshire and Cheshire were larger than they are now, -while Rutland and the adjacent counties had not their present -boundaries. For all this however, we come to a very general rule:--the -density of the population decreases as we pass from east to west. With -this we may connect another rule:--land is much more valuable in the -east than it is in the west. This matter is indeed hedged in by many -thorny questions; still whatever hypothesis we may adopt as to the mode -in which land was valued, one general truth comes out pretty plainly, -namely, that, economic arrangements being what they were, it was far -better to have a team-land in Essex than to have an equal area of arable -land in Devon. - -[Small vills.] - -Between eastern and western England there were differences visible to -the natural eye. With these were connected unseen and legal differences, -partly as causes, partly as effects. But for the moment let us dwell on -the fact that many an English vill has very few inhabitants. We are to -speak hereafter of village communities. Let us therefore reflect that a -community of some eight or ten householders is not likely to be a highly -organized entity. This is not all, for these eight or ten householders -will often belong to two, three or four different social and economic, -if not legal, classes. Some may be sokemen, some _villani_, _bordarii_, -_cotarii_, and besides them there will be a few _servi_. If a vill -consists, as in Devonshire often enough it will, of some three -_villani_, some four _bordarii_ and some two _servi_, the -'township-moot,' if such a moot there be, will be a queer little -assembly, the manorial court, if such a court there be, will not have -much to do. These men can not have many communal affairs; there will be -no great scope for dooms or for by-laws; they may well take all their -disputes into the hundred court, especially in Devonshire where the -hundreds are small. Thus of the visible vill of the eleventh century and -its material surroundings we may form a wrong notion. Often enough in -the west its common fields (if common fields it had) were not wide -fields; the men who had shares therein were few and belonged to various -classes. Thus of two villages in Gloucestershire, Brookthorpe and -Harescombe, all that we can read is that in Brostrop there were two -teams, one _villanus_, three _bordarii_, four _servi_, while in -Hersecome there were two teams, two _bordarii_ and five _servi_[53]. -Many a Devonshire township can produce but two or three teams. Often -enough our 'village community' will be a heterogeneous little group -whose main capital consists of some 300 acres of arable land and some 20 -beasts of the plough. - -[Importance of the east.] - -On the other hand, we must be careful not to omit from our view the -rich and thickly populated shires or to imagine or to speak as though we -imagined that a general theory of English history can neglect the East -of England. If we leave Lincolnshire, Norfolk and Suffolk out of account -we are to all appearance leaving out of account not much less than a -quarter of the whole nation[54]. Let us make three groups of counties: -(1) a South-Western group containing Devon, Somerset, Dorset and -Wiltshire: (2) a Mid-Western group containing the shires of Gloucester, -Worcester, Hereford, Salop, Stafford and Warwick: (3) an Eastern group -containing Lincolnshire, Norfolk and Suffolk. The first of these groups -has the largest; the third the smallest acreage. In Domesday Book, -however, the figures which state their population seem to be -these[55]:-- - - South-Western Group: 49,155 - Mid-Western Group: 33,191 - Eastern Group: 72,883 - -These figures are so emphatic that they may cause us for a moment to -doubt their value, and on details we must lay no stress. But we have -materials which enable us to check the general effect. In 1297 Edward I. -levied a lay subsidy of a ninth[56]. The sums borne by our three groups -of counties were these:-- - - £ - South-Western Group: 4,038 - Mid-Western Group: 3,514 - Eastern Group: 7,329 - -There is a curious resemblance between these two sets of figures. Then -in 1377 and 1381 returns were made for a poll-tax[57]. The number of -polls returned in our three groups were these:-- - - 1377 1381 - South-Western Group: 183,842 106,086 - Mid-Western Group: 158,245 115,679 - Eastern Group: 255,498 182,830 - -No doubt all inferences drawn from medieval statistics are exceedingly -precarious; but, unless a good many figures have conspired to deceive -us, Lincolnshire, Norfolk and Suffolk were at the time of the Conquest -and for three centuries afterwards vastly richer and more populous than -any tract of equal area in the West. - -[Manorial and non-manorial vills.] - -Another distinction between the eastern counties and the rest of England -is apparent. In many shires we shall find that the name of each vill is -mentioned once and no more. This is so because the land of each vill -belongs in its entirety to some one tenant in chief. We may go further: -we may say, though at present in an untechnical sense, that each vill is -a manor. Such is the general rule, though there will be exceptions to -it. On the other hand, in the eastern counties this rule will become the -exception. For example, of the fourteen vills in the Armingford hundred -of Cambridgeshire there is but one of which it is true that the whole -of its land is held by a single tenant in chief. In this county it is -common to find that three or four Norman lords hold land in the same -vill. This seems true not only of Cambridgeshire but also of Essex, -Suffolk, Norfolk, Lincoln, Nottingham, Derby, and some parts of -Yorkshire. Even in other districts of England the rule that each vill -has a single lord is by no means unbroken in the Conqueror's day and we -can see that there were many exceptions to it in the Confessor's. A -careful examination of all England vill by vill would perhaps show that -the contrast which we are noting is neither so sharp nor so ancient as -at first sight it seems to be: nevertheless it exists. - -[The distribution of free men and serfs.] - -A better known contrast there is. The eastern counties are the home of -liberty[58]. We may divide the tillers of the soil into five great -classes; these in order of dignity and freedom are (1) _liberi homines_, -(2) _sochemanni_, (3) _villani_, (4) _bordarii_, _cotarii_ etc., (5) -_servi_. The two first of these classes are to be found in large numbers -only in Norfolk, Suffolk, Lincolnshire, Nottinghamshire, Leicestershire -and Northamptonshire. We shall hereafter see that Cambridgeshire also -has been full of sokemen, though since the Conquest they have fallen -from their high estate. On the other hand, the number of _servi_ -increases pretty steadily as we cross the country from east to west. It -reaches its maximum in Cornwall and Gloucestershire; it is very low in -Norfolk, Suffolk, Derby, Leicester, Middlesex, Sussex; it descends to -zero in Yorkshire and Lincolnshire. This descent to zero may fairly warn -us that the terms with which we are dealing may not bear precisely the -same meaning in all parts of England, or that a small class is apt to be -reckoned as forming part of a larger class. But still it is clear enough -that some of these terms are used with care and express real and -important distinctions. - -[The classification of men.] - -Of this we are assured by a document which seems to reproduce the -wording of the instructions which defined the duty of at least one party -of royal commissioners[59]. We are about to speak of the mode in which -the occupants of the soil are classified by Domesday Book, and therefore -this document deserves our best attention. It runs thus:--The King's -barons inquired by the oath of the sheriff of the shire and of all the -barons and of their Frenchmen and of the whole hundred, the priest, -reeve and six _villani_ of every vill, how the mansion (_mansio_) is -called, who held it in the time of King Edward, who holds it now, how -many hides, how many plough-teams on the demesne, how many plough-teams -of the men, how many _villani_, how many _cotarii_, how many _servi_, -how many _liberi homines_, how many _sochemanni_, how much wood, how -much meadow, how much pasture, how many mills, how many fisheries, how -much has been taken away therefrom, how much added thereto, and how much -there is now, how much each _liber homo_ and _sochemannus_ had and -has:--All this thrice over, to wit as regards the time of King Edward, -the time when King William gave it, and the present time, and whether -more can be had thence than is had now[60]. - -[Basis of classification.] - -Five classes of men are mentioned and they are mentioned in an order -that is extremely curious:--_villani_, _cotarii_, _servi_, _liberi -homines_, _sochemanni_. It descends three steps, then it leaps from the -very bottom of the scale to the very top and thence it descends one -step. A parody of it might speak of the rural population of modern -England as consisting of large farmers, small farmers, cottagers, great -landlords, small landlords. But a little consideration will convince us -that beneath this apparent caprice there lies some legal principle. We -shall observe that these five species of tenants are grouped into two -genera. The king wants to know how much each _liber homo_, how much each -_sochemannus_ holds; he does not want to know how much each _villanus_, -each _cotarius_, each _servus_ holds. Connecting this with the main -object of the whole survey, we shall probably be brought to the guess -that between the sokeman and the villein there is some broad distinction -which concerns the king as the recipient of geld. May it not be -this:--the villein's lord is answerable for the geld due from the land -that the villein holds, the sokeman's lord is not answerable, at least -he is not answerable as principal debtor for the geld due from the land -that the sokeman holds? If this be so, the order in which the five -classes of men are mentioned will not seem unnatural. It proceeds -outwards from the lord and his _mansio_. First it mentions the persons -seated on land for the geld of which he is responsible, and them it -arranges in an 'order of merit.' Then it turns to persons who, though in -some way or another connected with the lord and his _mansio_, are -themselves tax-payers, and concerning them the commissioners are to -inquire how much each of them holds. Of course we can not say that this -theory is proved by the statement that lies before us; but it is -suggested by that statement and may for a while serve us as a working -hypothesis. If this theory be sound, then we have here a distinction of -the utmost importance. For one mighty purpose, the purpose that is -uppermost in King William's mind, the _villanus_ is not a landowner, his -lord is the landowner; on the other hand the _sochemannus_ is a -landowner, and is taxed as such. We are not saying that this is a purely -fiscal distinction. In legal logic the lord's liability for the geld -that is apportioned on the land occupied by his villeins may be rather -an effect than a cause. A lawyer might argue that the lord must pay -because the occupier is his _villanus_, not that the occupier is a -_villanus_ because the lord pays. And yet, as we may often see in legal -history, there will be action and reaction between cause and effect. The -geld is no trifle. Levied at that rate of six shillings on the hide at -which King William has just now levied it, it is a momentous force -capable of depressing and displacing whole classes of men. In 1086 this -tax is so much in everybody's mind that any distinction as to its -incidence will cut deeply into the body of the law. - -[Our course.] - -Now this classification of men we will take as the starting point for -our enterprise. If we could define the _liber homo_, _sochemannus_, -_villanus_, _cotarius_, _servus_, we should have solved some of the -great legal problems of Domesday Book, for by the way we should have had -to define two other difficult terms, namely _manerium_ and _soca_. It -would then remain that we should say something of the higher strata of -society, of earls and sheriffs, of barons, knights, thegns and their -tenures, of such terms as _alodium_ and _feudum_, of the general theory -of landownership or landholdership. We will begin with the lowest order -of men, with the _servi_, and thence work our way upwards. But our -course can not be straightforward. There are so many terms to be -explained that sometimes we shall be compelled to leave a question but -partially answered while we are endeavouring to find a partial answer -for some yet more difficult question. - -FOOTNOTES: - - [22] D. B. ii. 109 b: 'Hundret de Grenehou 14 letis.' Ib. 212 b: - 'Hundret et Dim. de Clakelosa de 10 leitis.' Round, Feudal - England, 101. - - [23] Some of them are mentioned by Ellis, Introduction, i. 34-9. - - [24] D. B. i. 184 b: 'Haec terra non geldat nec consuetudinem dat - nec in aliquo hundredo iacet'; i. 157 'Haec terra nunquam - geldavit nec alicui hundredo pertinet nec pertinuit'; i. 357 b - 'Hae duae carucatae non sunt in numero alicuius hundredi neque - habent pares in Lincolescyra.' - - [25] D. B. i. 207 b: 'Jacet in Bedefordscira set geldum dat in - Huntedonscire'; i. 61 b 'Jacet et appreciata est in Gratentun - quod est in Oxenefordscire et tamen dat scotum in Berchescire'; - i. 132 b, the manor of Weston 'lies in' Hitchin which is in - Hertfordshire, but its _wara_ 'lies in' Bedfordshire, i.e. it - pays geld, it 'defends itself' in the latter county; i. 189 b, - the _wara_ of a certain hide 'lies in' Hinxton which is in - Cambridgeshire, but the land belongs to the manor of - Chesterford and therefore is valued in Essex. D. B. i. 178; - five hides 'geld and plead' in Worcestershire, but pay their - farm in Herefordshire. - - [26] D. B. i. 157 b: 'Has [terras in Oxenefordscire] coniunxit - terrae suae in Glowecestrescire'; i. 209 b 'foris misit de - hundredo ubi se defendebat T. R. E.'; i. 50 'et misit foras - comitatum et misit in Wiltesire.' See also Ellis, i. 36. - - [27] See Round, Feudal England, p. 118. Mr Round seems to think that - the commissioners made a circuit through the hundreds. I doubt - they did more than their successors the justices in eyre were - wont to do, that is, they held in the shire-town a moot which - was attended by (1) the magnates of the shire who spoke for the - shire, (2) a jury from every hundred, (3) a deputation of - _villani_ from every township. See the Yorkshire and - Lincolnshire _Clamores_ (i. 375) where we may find successive - entries beginning with (_a_) _Scyra testatur_, (_b_) - _Westreding testatur_, (_c_) _Testatur wapentac_. Strikingly - similar entries are found on the eyre rolls. As Sir F. Pollock - (Eng. Hist. Rev. xi. 213) remarks, it is misleading to speak of - the Domesday 'survey'; Domesday Inquest would be better. - - [28] See Round, Feudal England, p. 44. - - [29] Inquis. Com. Cantab. 60. - - [30] See the table in Round, Feudal England, p. 50. I had already - selected this beautiful specimen before Mr Round's book - appeared. He has given several others that are quite as neat. - - [31] Of course we take no account of urban parishes. - - [32] Eyton's laborious studies have made this plain as regards some - counties widely removed from each other; still, _e.g._ in his - book on Somerset, he has now and again to note that names which - appear in D. B. are obsolete. - - [33] Inq. Com. Cant. 60-1. - - [34] D. B. i. 31. - - [35] D. B. i. 41. We shall return to this matter hereafter. - - [36] A good many cases will be found in Essex and Suffolk. - - [37] Inq. Com. Cantab. 51, 53. - - [38] Ibid. 47. - - [39] Ibid. 29. - - [40] Maitland, Surnames of English Villages, Archaeological Review, - iv. 233. - - [41] We do not mean to imply that there were not wide stretches of - waste land which were regarded as being 'extra-villar,' or - common to several vills. - - [42] Hist. Eng. Law, i. 547. - - [43] This of course would not be true of cases in which the lands of - various villages were intermixed in one large tract of common - field. As to these 'discrete vills,' see Hist. Eng. Law, i. - 549. - - [44] This name-giving cluster will usually contain the parish church - and so will enjoy a certain preeminence. But we are to speak of - a time when parish churches were novelties. - - [45] See Meitzen, Siedelung und Agrarwesen der Germanen, especially - ii. 119 ff. - - [46] When the hamlets bear names with such ancient suffixes as - -_ton_, -_ham_, -_by_, _-worth_, _-wick_, _-thorpe_, this of - course is in favour of their antiquity. On the other hand, if - they are known merely by family names such as _Styles's_, - _Nokes's_, _Johnson's_ or the like, this, though not conclusive - evidence of, is compatible with their modernity. Meitzen thinks - that in Kent and along the southern shore the German invaders - founded but few villages. The map does not convince me that - this inference is correct. - - [47] When more than five-and-twenty team-lands or thereabouts are - ascribed to a single place, we shall generally find reason to - believe that what is being described is not a single vill. See - above, p. 13. - - [48] Inq. Com. Cant. 51 fol. In a few cases our figures will involve - a small element of conjecture. - - [49] D. B. i. 248. We have tried to avoid vills in which it is - certain or probable that some other tenant in chief had an - estate. - - [50] D. B. i. 88. We have tried to make sure that no tenant in chief - save the bishop had land in any of these vills, and this we - think fairly certain, except as regards Harptree and Norton. - There are now two Harptrees, East and West, and four or more - Nortons. - - [51] We take the figures from Ellis, Introduction, ii. 417 ff. - - [52] Very possibly this figure is too low. There is reason to think - that some of the free men and sokemen of these counties get - counted twice or thrice over because they hold land under - several different lords. On the other hand Ellis (Introduction, - ii. 491) would argue that the figure is too high. But the words - _Alii ibi tenent_ which occur at the end of numerous entries - mean, we believe, not that there are in this vill other - unenumerated tillers of the soil, but that the vill is divided - between several tenants in chief. - - [53] D. B. i. 162 b. - - [54] Ellis's figures are: England 283,242: the three counties - 72,883. - - [55] We take these figures from Ellis. - - [56] Lay Subsidy, 25 Edw. I. (Yorkshire Archaeological Society), pp. - xxxi-xxxv. Fractions of a pound are neglected. - - [57] Powell, The Rising in East Anglia, 120-3. The great decrease - between 1377 and 1381 in the number of persons taxed, we must - not try to explain. - - [58] See the serviceable maps in Seebohm, Village Community, 86. But - they seem to treat Yorkshire unfairly. It has 5·5 per cent. of - sokemen. - - [59] This is found at the beginning of the Inquisitio Eliensis; D. - B. iv. 497; Hamilton, Inquisitio, 97. See Round, Feudal - England, 133 ff. - - [60] We must not hastily draw the inference that every party of - commissioners received the same set of instructions. Perhaps, - for example, carucates, not hides, were mentioned in the - instructions given to those commissioners who were to visit the - carucated counties. Perhaps the non-appearance of _servi_ in - Yorkshire and Lincolnshire may be due to no deeper cause. - - - - -§ 2. _The Serfs._ - - -[The serfs in Domesday Book.] - -The existence of some 25,000 serfs is recorded. In the thirteenth -century _servus_ and _villanus_ are, at least among lawyers, equivalent -words. The only unfree man is the 'serf-villein' and the lawyers are -trying to subject him to the curious principle that he is the lord's -chattel but a free man in relation to all but his lord[61]. It is far -otherwise in Domesday Book. In entry after entry and county after county -the _servi_ are kept well apart from the _villani_, _bordarii_, -_cotarii_. Often they are mentioned in quite another context to that in -which the _villani_ are enumerated. As an instance we may take a manor -in Surrey[62]:--'In demesne there are 5 teams and there are 25 _villani_ -and 6 _bordarii_ with 14 teams. There is one mill of 2 shillings and one -fishery and one church and 4 acres of meadow, and wood for 150 pannage -pigs, and 2 stone-quarries of 2 shillings and 2 nests of hawks in the -wood and 10 _servi_.' Often enough the _servi_ are placed between two -other sources of wealth, the church and the mill. In some counties they -seem to take precedence over the _villani_; the common formula is 'In -dominio sunt _a_ carucae et _b_ servi et _c_ villani et _d_ bordarii cum -_e_ carucis.' But this is delusive; the formula is bringing the _servi_ -into connexion with the demesne teams and separating them from the teams -of the tenants. We must render it thus--'On the demesne there are _a_ -teams and _b_ servi; and there are _c_ villani and _d_ bordarii with _e_ -teams.' Still we seem to see a gently graduated scale of social classes, -_villani_, _bordarii_, _cotarii_, _servi_, and while the jurors of one -county will arrange them in one fashion, the jurors of another county -may adopt a different scheme. Thus in their classification of mankind -the jurors will sometimes lay great stress on the possession of plough -oxen. In Hertfordshire we read:--'There are 6 teams in demesne and 41 -_villani_ and 17 _bordarii_ have 20 teams ... there are 22 _cotarii_ and -12 _servi_[63].'--'The priest, 13 _villani_ and 4 _bordarii_ have 6 -teams ... there are two _cotarii_ and 4 _servi_[64].'--'The priest and -24 _villani_ have 13 teams ... there are 12 _bordarii_, 16 _cotarii_ and -11 _servi_[65].' A division is in this instance made between the people -who have oxen and the people who have none; _villani_ have oxen, -_cotarii_ and _servi_ have none; sometimes the _bordarii_ stand above -this line, sometimes below it. - -[Legal position of the serf.] - -Of the legal position of the _servus_ Domesday Book tells us little or -nothing; but earlier and later documents oblige us to think of him as a -slave, one who in the main has no legal rights. He is the _theów_ of the -Anglo-Saxon dooms, the _servus_ of the ecclesiastical canons. But though -we do right in calling him a slave, still we might well be mistaken were -we to think of the line which divides him from other men as being as -sharp as the line which a mature jurisprudence will draw between thing -and person. We may well doubt whether this principle--'The slave is a -thing, not a person'--can be fully understood by a grossly barbarous -age. It implies the idea of a person, and in the world of sense we find -not persons but men. - -[Degrees of serfdom.] - -Thus degrees of servility are possible. A class may stand, as it were, -half-way between the class of slaves and the class of free men. The -Kentish law of the seventh century as it appears in the dooms of -Æthelbert[66], like many of its continental sisters, knows a class of -men who perhaps are not free men and yet are not slaves; it knows the -_læt_ as well as the _theów_. From what race the Kentish _læt_ has -sprung, and how, when it comes to details, the law will treat him--these -are obscure questions, and the latter of them can not be answered unless -we apply to him what is written about the _laeti_, _liti_ and _lidi_ of -the continent. He is thus far a person that he has a small wergild but -possibly he is bound to the soil. Only in Æthelbert's dooms do we read -of him. From later days, until Domesday Book breaks the silence, we do -not obtain any definite evidence of the existence of any class of men -who are not slaves but none the less are tied to the land. Of men who -are bound to do heavy labour services for their lords we do hear, but we -do not hear that if they run away they can be captured and brought -back. As we shall see by and by, Domesday Book bears witness to the -existence of a class of _buri_, _burs_, _coliberti_, who seem to be -distinctly superior to the _servi_, but distinctly inferior to the -villeins, bordiers and cottiers. It is by no means impossible that they, -without being slaves, are in a very proper and intelligible sense unfree -men, that they have civil rights which they can assert in courts of law, -but that they are tied to the soil. The gulf between the seventh and the -eleventh centuries is too wide to allow of our connecting them with the -_læt_ of Æthelbert's laws, but still our documents are not exhaustive -enough to justify us in denying that all along there has been a class -(though it can hardly have been a large class) of men who could not quit -their tenements and yet were no slaves. As we shall see hereafter, -liberty was in certain contexts reckoned a matter of degree; even the -_villanus_, even the _sochemannus_ was not for every purpose _liber -homo_. When this is so, the _theów_ or _servus_ is like to appear as the -unfreest of persons rather than as no person but a thing. - -[Prædial element in serfage.] - -In the second place, we may guess that from a remote time there has been -in the condition of the _theów_ a certain element of praediality. The -slaves have not been worked in gangs nor housed in barracks[67]. The -_servus_ has often been a _servus casatus_, he has had a cottage or even -a manse and yardland which _de facto_ he might call his own. There is -here no legal limitation of his master's power. Some slave trade there -has been; but on the whole it seems probable that the _theów_ has been -usually treated as annexed to a tenement. The duties exacted of him from -year to year have remained constant. The consequence is that a free man -in return for a plot of land may well agree to do all that a _theów_ -usually does and see in this no descent into slavery. Thus the slave -gets a chance of acquiring what will be as a matter of fact a -_peculium_. In the seventh century the church tried to turn this matter -of fact into matter of law. 'Non licet homini,' says Theodore's -Penitential, 'a servo tollere pecuniam, quam ipse labore suo -adquesierit[68].' We have no reason for thinking that this effort was -very strenuous or very successful, or that the law of the eleventh -century allowed the _servus_ any proprietary rights; and yet he might -often be the occupier of land and of chattels with which, so long as he -did his customary services, his lord would seldom meddle. - -[The serf in criminal law.] - -In the third place, we may believe that for some time past police law -and punitive law have been doing something to conceal, if not to -obliterate, the line which separates the slave from other men. A mature -jurisprudence may be able to hold fast the fundamental principle that a -slave is not a person but a thing, while at the same time it both limits -the master's power of abusing his human chattel and guards against those -dangers which may arise from the existence of things which have wills, -and sometimes bad wills, of their own. But an immature jurisprudence is -incapable of this exploit. It begins to play fast and loose with its -elementary notions. It begins to punish the criminous slave without -being quite certain as to how far it is punishing him and how far it is -punishing his master. Confusion is easy, for if the slave be punished by -death or mutilation, his master will suffer, and a pecuniary mulct -exacted from the slave is exacted from his master. Learned writers have -come to the most opposite opinions as to the extent to which the -Anglo-Saxon dooms by their distribution of penalties recognize the -personality of the _theów_. But this is not all. For a long time past -the law has had before it the difficult problem of dealing with crimes -and delicts committed by poor and economically dependent free men, men -who have no land of their own, who are here to-day and gone to-morrow, -'men from whom no right can be had.' It has been endeavouring to make -the lords answerable to a certain extent for the misdeeds of their free -retainers. If a slave is charged with a crime his master is bound to -produce him in court. But the law requires that the lord shall in very -similar fashion produce his free 'loaf eater,' his mainpast, nay, it has -been endeavouring to enforce the rule that every free man who has no -land of his own shall have a lord bound to produce him when he is -accused. Also it has been fostering the growth of private justice. The -lord's duty of producing his men, bond and free, has been becoming the -duty of holding a court in which his men, free and bond, will answer for -themselves. How far this process had gone in the days of the Confessor -is a question to which we shall return[69]. - -[Serf and villein.] - -For all this however, we may say with certainty that in the eleventh -century the _servi_ were marked off from all other men by definite legal -lines. What is more, we may say that every man who was not a _theów_ was -in some definite legal sense a free man. This sharp contrast is put -before us by the laws of Cnut as well as by those of his predecessors. -If a freeman works on a holiday, he pays for it with his _healsfang_; if -a _theówman_ does the like, he pays for it with his hide or his -hide-geld[70]. Equally sharp is the same distinction in the Leges -Henrici, and this too in passages which, so far as we know, are not -borrowed from Anglo-Saxon documents. For many purposes 'aut servus aut -liber homo' is a perfect dilemma. There is no confusion whatever between -the _villani_ and the _servi_. The _villani_ are 'viles et inopes -personae' but clearly enough they are _liberi homines_. So also in the -Quadripartitus, the Latin translation of the ancient dooms made in Henry -I.'s reign, there is no confusion about this matter; the _theówman_ -becomes a _servus_, while _villanus_ is the equivalent for _ceorl_. The -Norman writers still tell how according to the old law of the English -the _villanus_ might become a thegn if he acquired five hides of -land[71]; at times they will put before us _villani_ and _thaini_ or -even _villani_ and _barones_ as an exhaustive classification of free -men[72]. - -[The serf of the Leges.] - -Let us learn what may be learnt of the _servus_ from the Leges Henrici. -Every man is either a _liber homo_ or a _servus_[73]. Free men are -either two-hundred-men or twelve-hundred-men; perhaps we ought to add -that there is also a class of six-hundred-men[74]. A serf becomes such -either by birth or by some event, such as a sale into slavery, that -happens in his lifetime[75]. Servile blood is transmitted from father to -child; some lords hold that it is also transmitted by mother to -child[76]. If a slave is to be freed this should be done publicly, in -court, or church or market, and lance and helmet or other the arms of -free men should be given him, while he should give his lord thirty -pence, that is the price of his skin, as a sign that he is henceforth -'worthy of his hide.' On the other hand, when a free man falls into -slavery then also there should be a public ceremony. He should put his -head between his lord's hands and should receive as the arms of slavery -some bill-hook or the like[77]. Public ceremonies are requisite, for the -state is endangered by the uncertain condition of accused criminals; the -lords will assert at one moment that their men are free and at the next -moment that these same men are slaves[78]. The descent of a free man -into slavery is treated as no uncommon event; the slave may well have -free kinsfolk[79]. But, to come to the fundamental rule, the _villanus_, -the meanest of free men, is a two-hundred-man, that is to say, if he be -slain the very substantial wergild of 200 Saxon shillings or £4 must be -paid to his kinsfolk[80], while a man-bót of 30 shillings is paid to his -lord[81]. But if a _servus_ be slain his kinsfolk receive the -comparatively trifling sum of 40 pence while the lord gets the man-bót -of 20 shillings[82]. That the serf's kinsfolk should receive a small sum -need not surprise us. Germanic law has never found it easy to carry the -principle that the slave is a chattel to extreme conclusions; but the -payment seems trifling and half contemptuous; at any rate the life of -the villein is worth the life of twenty-four serfs[83]. Then again, it -is by no means certain that a lord can not kill his serf with impunity. -'If,' says our text, 'a man slay his own serf, his is the sin and his is -the loss':--we may interpret this to mean that he has sinned but sinned -against himself[84]. Then again, for the evil deeds of his slave the -master is in some degree responsible. If my slave be guilty of a petty -theft not worthy of death, I am bound to make restitution; if the crime -be a capital one and he be taken handhaving, then he must 'die like a -free man[85].' If my slave be guilty of homicide, my duty is to set him -free and hand him over to the kindred of the slain, but apparently I may -purchase his life by a sum of 40 shillings, a sum much less than the -_wer_ of the slain man[86]. We must not be too hard on the owners of -delinquent slaves. There are cases, for example, in which, several -slaves having committed a crime, one of them chosen by lot must suffer -for the sins of all[87]. Our author is borrowing from the laws of -several different centuries and does not arrive at any neat result; nor -must we wonder at this, for the problems presented to jurisprudence by -the crimes and delicts of slaves are very intricate. Then again, we have -the rule that if free men and serfs join in a crime, the whole guilt is -to be attributed to the free: he who joins with a slave in a theft has -no companion[88]. On the whole, though the slave is likely to have as a -matter of fact a _peculium_ of his own, a _peculium_ out of which he may -be able to pay for his offences and even perhaps to purchase his -liberty[89], the _servus_ of our Leges seems to be in the main a -rightless being. We look in vain for any trace of that idea of the -relativity of servitude which becomes the core of Bracton's -doctrine[90]. At the same time we observe that many, perhaps most, of -the rules which mark the slavish condition of the serf are ancient rules -and rules that are becoming obsolete. In the twelfth century the old -system of _wer_ and _bót_ is already vanishing, though an antiquarian -lawyer may yet try to revivify it. When it disappears altogether before -the new law, which holds every grave crime to be a felony, and punishes -almost every felony with death[91], many grand differences between the -villein and the serf will have perished. The gallows is a great -leveller. - -[Return to the _servus_ of Domesday.] - -If now we recur to the days of the Conquest, we cannot doubt that the -law knew a definite class of slaves, and marked them off by many -distinctions from the _villani_ and _cotarii_, and even from the -_coliberti_. Sums that seem high were being paid for men whose freedom -was being purchased[92]. At Lewes the toll paid for the sale of an ox -was a halfpenny; on the sale of a man it was fourpence[93]. In later -documents we may sometimes see a distinction well drawn. Thus in the -Black Book of Peterborough, compiled in 1127 or thereabouts, we may read -how on one of his manors the abbot has eight herdsmen (_bovarii_), how -each of them holds ten acres, has to do labour services and render -loaves and poultry. And then we read that each of them must pay one -penny for his head if he be a free man (_liber homo_), while he pays -nothing if he be a _servus_[94]. This is a well-drawn distinction. Of -two men whose economic position is precisely the same, the one may be -free, the other a slave, and it is the free man, not the slave, who has -to pay a head-penny. Now when the Conqueror's surveyors, or rather the -jurors, call a man a _servus_ they are, so it seems to us, thinking -rather of his legal status than of his position in the economy of a -manor. At any rate we ought to observe that the economic stratification -of society may cut the legal stratification. We are accustomed perhaps -to suppose that while the _villani_ have lands that are in some sense -their own, while they support themselves and their families by tilling -those lands, the _servus_ has no land that is in any sense his own, but -is fed at his lord's board, is housed in his lord's court, and spends -all his time in the cultivation of his lord's demesne lands. Such may -have been the case in those parts of England where we hear of but few -_servi_; those few may have been inmates of the lord's house and have -had no plots of their own. But such can hardly have been the case in the -south-western counties; the _servi_ are too many to be menials. Indeed -it would seem that these _servi_ sometimes had arable plots, and had -oxen, which were to be distinguished from the demesne oxen of their -lords--not indeed as a matter of law, but as a matter of economic -usage[95]. It is plain that the legal and the economic lines may -intersect one another; the menial who is fed by the lord and who must -give his whole time to the lord's work may be a free man; the slave may -have a cottage and oxen and a plot of arable land, and labour for -himself as well labouring for his lord. Hence a perplexed and uncertain -terminology:--the _servus_ who has land and oxen may be casually called -a _villanus_[96], and we cannot be sure that no one whom our record -calls a _servus_ has the wergild of a free man. Nor can we be sure that -the enumeration of the _servi_ is always governed by one consistent -principle. In the shires of Gloucester, Hereford and Worcester we read -of numerous _ancillae_--in Worcestershire of 677 _servi_ and 101 -_ancillae_[97]--and this may make us think that in this district all the -able-bodied serfs are enumerated, whether or no they have cottages to -themselves[98]. We may strongly suspect that the king's commissioners -were not much interested in the line that separated the _villani_ from -the _servi_, since the lord was as directly answerable for the geld of -any lands that were in the occupation of his villeins as he was for the -geld of those plots that were tilled for him by his slaves. That there -should have been never a _theów_ in all Yorkshire and Lincolnshire is -hardly credible, and yet we hear of no _servi_ in those counties. - -[Disappearance of _servi_.] - -This being so, we encounter some difficulty if we would put just the -right interpretation on a remarkable fact that is visible in Essex. The -description of that county tells us not only how many _villani_, -_bordarii_ and _servi_ there are now, but also how many there were in -King Edward's day, and thus shows what changes have taken place during -the last twenty years. Now on manor after manor the number of villeins -and bordiers, if of them we make one class, has increased, while the -number of _servi_ has fallen. We take 100 entries (four batches of 25 -apiece) and see that the number of _villani_ and _bordarii_ has risen -from 1486 to 1894, while the number of _servi_ has fallen from 423 to -303. We make another experiment with a hundred entries. This gives the -following result:-- - - 1066 1086 - Villani 1273 1247 - Bordarii 810 1241 - Servi 384 312 - -This decrease in the number of _servi_ seems to be pretty evenly -distributed throughout the county[99]. We shall not readily ascribe the -change to any mildheartedness of the lords. They are Frenchmen, and in -all probability they have got the most they could out of a mass of -peasantry made malleable and manageable by the Conquest. We may rather -be entitled to infer that there has been a considerable change in rural -economy. For the cultivation of his demesne land the lord begins to rely -less and less on the labour of serfs whom he feeds, more and more upon -the labour of tenants who have plots of their own and who feed -themselves. From this again we may perhaps infer that the labour -services of the _villani_ and _bordarii_ are being augmented. But at any -rate it speaks ill of their fate, that under the sway of foreigners, who -may fairly be suspected of some harshness and greed, their inferiors, -the true _servi_, are somewhat rapidly disappearing. However, it is by -no means impossible that with a slavery so complete as that of the -English _theów_ the Normans were not very familiar in their own -country[100]. - -FOOTNOTES: - - [61] Hist. Eng. Law, i. 398. - - [62] D. B. i. 34, Limenesfeld. - - [63] D. B. i. 132 b, Hiz. - - [64] D. B. i. 132 b, Waldenei. - - [65] D. B. i. 136, Sandone. - - [66] Æthelb. 26. - - [67] Tacitus, Germ. c. 25: 'Caeteris servis non in nostrum morem, - descriptis per familiam ministeriis, utuntur. Suam quisque - sedem, suos penates regit. Frumenti modum dominus aut pecoris - aut vestis ut colono iniungit, et servus hactenus paret.' - - [68] Haddan and Stubbs, Councils, iii. 202. - - [69] See on the one hand Maurer, K. U. i. 410, on the other a - learned essay by Jastrow, Zur strafrechtlichen Stellung der - Sklaven, in Gierke's Untersuchungen zur Deutsche Geschichte, - vol. i. Maurer holds that the Anglo-Saxon slave is in the main - a chattel, that _e.g._ the master must answer for the delicts - of his slave in the same way that the owner answers for damage - done by his beasts, and that this liability can be clearly - marked off from the duty of the lord of free retainers who is - merely bound to produce them in court. Jastrow, on the - contrary, thinks that even at a quite early time the - Anglo-Saxon slave is treated as a person by criminal law; he - has a wergild; he can be fined; his trespasses are never - compared to the trespasses of beasts; the lord's duty, if one - of his men is charged with crime, is much the same whether that - man be free or bond. Any theory involves an explanation of - several passages that are obscure and perhaps corrupt. - - [70] Cnut, II. 45-6. - - [71] Schmid, Appendix V. (Of Ranks); Pseudoleges Canuti, 60 (Schmid, - p. 431). - - [72] Leg. Hen. 76 § 7: 'Differentia tamen weregildi multa est in - Cantia villanorum et baronum.' - - [73] Leg. Hen. 76 § 2. - - [74] Leg. Hen. 76 § 3. - - [75] Ibid. 76 § 3. - - [76] Ibid. 77; see Hist. Eng. Law, i. 405. - - [77] Ibid. 78 § 2. The difficult _strublum_ we leave untouched. - - [78] Ibid. 78 § 2 from Cnut, II. 20. On this see Jastrow's comment, - op. cit. p. 80. - - [79] Ibid. 70 § 5. - - [80] Ibid. 70 § 1; 76 § 4. - - [81] Ibid. 69 § 2. - - [82] Ibid. 70 § 4: 'Si liber servum occidat similiter reddat - parentibus 40 den. et duas mufflas et unum pullum [_al._ - billum] mutilatum.' The _mufflae_ are thick gloves. Compare - Ancient Laws of Wales, i. 239, 511; the bondman has no - _galanas_ (wergild) but if injured he receives a _saraad_; 'the - saraad of a bondman is twelve pence, six for a coat for him, - three for trousers, one for buskins, one for a hook and one for - a rope, and if he be a woodman let the hook-penny be for an - axe.' If we read _billum_ instead of _pullum_ the English rule - may remind us of the Welsh. His hedger's gloves and bill-hook - are the arms appropriate to the serf, 'servitutis arma'; cf. - Leg. Hen. 78 § 2. As to the _man-bót_ see Liebermann, Leg. - Edwardi, p. 71. - - [83] In Leg. Hen. 81 § 3 (a passage which seems to show that by his - master's favour even the _servus_ may sometimes sue for a wrong - done to him) we have this sum:--_villanus_ : _cothsetus_ : - _servus_ :: 30 : 15 : 6. - - [84] Ibid. 75 § 4: 'suum peccatum est et dampnum.' See also - 70 § 10, an exceedingly obscure passage. - - [85] Ibid. 59 § 23. - - [86] Ibid. 70 § 5; but for this our author has to go back as far as - Ine. - - [87] Ibid. 59 § 25. - - [88] Ibid. 59 § 24; 85 § 4: 'solus furatur qui cum servo furatur.' - - [89] Ibid. 78 § 3; 59 § 25. - - [90] Hist. Eng. Law, i. 398, 402. - - [91] Hist. Eng. Law, ii. 457. - - [92] See the Bath manumissions, Kemble, Saxons, i. 507 ff. Sometimes - a pound or a half-pound is paid. - - [93] D. B. i. 26. - - [94] Chron. Petrob. 163. - - [95] D. B. i. 105 b, Devon: 'Rolf tenet de B[alduino] Boslie ... - Terra est 8 carucis. In dominio est 1 caruca et dimidia et 7 - servi cum 1 caruca.' D. B. iv. 265: 'Balduinus habet 1 - mansionem quae vocatur Bosleia ... hanc possunt arare 8 - carrucae et modo tenet eam Roffus de Balduino. Inde habet R. 1 - ferdinum et 1 carrucam et dimidiam in dominio et villani tenent - aliam terram et habent ibi 1 carrucam. Ibi habet R. 7 servos.' - In the Exeter record these seven serfs seem to get reckoned as - being both _servi_ and _villani_. So in the account of Rentis, - D. B. iv. 204-5, the lord is said to have one quarter of the - arable in demesne and two oxen, while the _villani_ are said to - have the rest of the arable and one team; but the only - _villani_ are 8 _coliberti_ and 4 _servi_. - - [96] See last note. - - [97] Ellis, Introduction, ii. 504-6. - - [98] See, for example, the following Herefordshire entry, D. B. i. - 180 b: 'In dominio sunt 2 carucae et 4 villani et 8 bordarii et - prepositus et bedellus. Inter omnes habent 4 carucas. Ibi 8 - inter servos et ancillas et vaccarius et daia.' - - [99] Mr Round has drawn attention to the great increase of - _bordarii_: Antiquary (1882) vi. 9. In the second of our two - experiments the cases were taken from the royal demesne and the - lands of the churches. The surveys of Norfolk and Suffolk - profess to enumerate the various classes of peasants T. R. E.; - but commonly each entry reports that there has been no change. - Without saying that we disbelieve these reports, we - nevertheless may say that a verdict which asserts that things - have always (_semper_) been as they now are may easily be the - outcome of nescience. - - [100] Hist. Eng. Law, i. 53-4. - - - - -§ 3. _The Villeins._ - - -[The boors or coliberts.] - -Next above the _servi_ we see the small but interesting class of _buri_, -_burs_ or _coliberti_. Probably it was not mentioned in the writ which -set the commissioners their task, and this may well be the reason why it -appears as but a very small class. It has some 900 members; still it is -represented in fourteen shires: Hampshire, Berkshire, Wiltshire, Dorset, -Somerset, Devon, Cornwall, Buckingham, Oxford, Gloucester, Worcester, -Hereford, Warwick, Shropshire--in short, in the shires of Wessex and -western Mercia. Twice over our record explains--a piece of rare good -fortune--that _buri_ and _coliberti_ are all one[101]. In general they -are presented to us as being akin rather to the _servi_ than to the -_villani_ or _bordarii_, as when we are told, 'In demesne there is one -virgate of land and there are 3 teams and 11 _servi_ and 5 _coliberti_, -and there are 15 _villani_ and 15 _bordarii_ with 8 teams[102].' But -this rule is by no means unbroken; sometimes the _coliberti_ are -separated from the _servi_ and a precedence over the _cotarii_ or even -over the _bordarii_ is given them. Thus of a Wiltshire manor it is -written, 'In demesne there are 8 teams and 20 _servi_ and 41 _villani_ -and 30 _bordarii_ and 7 _coliberti_ and 74 _cotarii_ have among them all -27 teams[103].' Again of a Warwickshire manor, 'There is land for 26 -teams; in demesne are 3 teams and 4 _servi_ and 43 _villani_ and 6 -_coliberti_ and 10 _bordarii_ with 16 teams[104].' A classification -which turns upon legal status is cut by a classification which turns -upon economic condition. The _colibertus_ we take to be an unfreer man -(how there come to be degrees of freedom is a question to be asked by -and by) than the _cotarius_ or the _bordarius_, but on a given manor he -may be a more important person, for he may have plough beasts while the -_cotarius_ has none, he may have two oxen while the _bordarius_ has but -an ox. - -[The Continental colibert.] - -[The English boor.] - -In calling him a _colibertus_ the Norman clerks are giving him a foreign -name, the etymological origin of which is very dark[105]; but this much -seems plain, that in the France of the eleventh century a large class -bearing this name had been formed out of ancient elements, Roman -_coloni_ and Germanic _liti_, a class which was not rightless (for it -could be distinguished from the class of _servi_, and a _colibertus_ -might be made a _servus_ by way of punishment for his crimes) but which -yet was unfree, for the _colibertus_ who left his lord might be pursued -and recaptured[106]. As to the Englishman upon whom this name is -bestowed we know him to be a _gebúr_, a boor, and we learn something of -him from that mysterious document entitled 'Rectitudines Singularum -Personarum[107].' His services, we are told, vary from place to place; -in some districts he works for his lord two days a week and during -harvest-time three days a week; he pays gafol in money, barley, sheep -and poultry; also he has ploughing to do besides his week-work; he pays -hearth-penny; he and one of his fellows must between them feed a dog. It -is usual to provide him with an outfit of two oxen, one cow, six sheep, -and seed for seven acres of his yardland, and also to provide him with -household stuff; on his death all these chattels go back to his lord. -Thus the boor is put before us as a tenant with a house and a yardland -or virgate, and two plough oxen. He will therefore play a more important -part in the manorial economy than the cottager who has no beasts. But he -is a very dependent person; his beasts, even the poor furniture of his -house, his pots and crocks, are provided for him by his lord. Probably -it is this that marks him off from the ordinary _villanus_ or -'townsman,' and brings him near the serf. In a sense he may be a free -man. We have seen how the law, whether we look for it to the code of -Cnut or to the Leges Henrici, is holding fast the proposition that every -one who is not a _theówman_ is a free man, that every one is either a -_liber homo_ or a _servus_. We have no warrant for denying to the boor -the full wergild of 200 shillings. He pays the hearth-penny, or Peter's -penny, and the document that tells us this elsewhere mentions this -payment as the mark of a free man[108]. And yet in a very true and -accurate sense he may be unfree, unfree to quit his lord's service. All -that he has belongs to his lord; he must be perpetually in debt to his -lord; he could hardly leave his lord without being guilty of something -very like theft, an abstraction of chattels committed to his charge. -Very probably if he flies, his lord has a right to recapture him. On the -other hand, so dependent a man will be in a very strict sense a tenant -at will. When he dies not only his tenement but his stock will belong to -the lord; like the French _colibert_ he is _mainmortable_. At the same -time, to one familiar with the cartularies of the thirteenth century the -rents and services that this boor has to pay and perform for his virgate -will not appear enormous. If we mistake not, many a _villanus_ of Henry -III.'s day would have thought them light. Of course any such comparison -is beset by difficulties, for at present we know all too little of the -history of wages and prices. Nevertheless the intermediation of this -class of _buri_ or _coliberti_ between the serfs and the villeins of -Domesday Book must tend to raise our estimate both of the legal freedom -and of the economic welfare of that great mass of peasants which is now -to come before us[109]. - -[Villani, bordarii, cotarii.] - -That great mass consists of some 108,500 _villani_, some 82,600 -_bordarii_, and some 6,800 _cotarii_ and _coscets_[110]. Though in manor -after manor we may find representatives of each of these three classes, -we can see that for some important purpose they form but one grand -class, and that the term _villanus_ may be used to cover the whole genus -as well as to designate one of its three species. In the Exon Domesday -a common formula, having stated the number of hides in the manor and the -number of teams for which it can find work, proceeds to divide the land -and the existing teams between the demesne and the _villani_--the -_villani_, it will say, have so many hides and so many teams. Then it -will state how many _villani_, _bordarii_, _cotarii_ there are. But it -will sometimes fall out that there are no _villani_ if that term is to -be used in its specific sense, and so, after having been told that the -_villani_ have so much land and so many teams, we learn that the only -_villani_ on this manor are _bordarii_[111]. The lines which divide the -three species are, we may be sure, much rather economic than legal -lines. Of course the law may recognise them upon occasion[112], but we -can not say that the _bordarius_ has a different status from that of the -_villanus_. In the Leges both fall under the term _villani_; indeed, as -hereafter will be seen, that term has sometimes to cover all men who are -not _servi_ but are not noble. Nor must we suppose that the economic -lines are drawn with much precision or according to any one uniform -pattern. Of _villani_ and _bordarii_ we may read in every county; -_cotarii_ or _coscets_ in considerable numbers are found only in Kent, -Sussex, Surrey, Middlesex, Wiltshire, Dorset, Somerset, Berkshire, -Hertford and Cambridge, though they are not absolutely unknown in -Buckingham, in Devon, in Hereford, Worcester, Shropshire, Yorkshire. We -can not tell how the English jurors would have expressed the distinction -between _bordarii_ and _cotarii_, for while the _cot_ is English, the -_borde_ is French. If we are entitled to draw any inference from the -distribution of the cottiers, it would be that the smallest of small -tenements were to be found chiefly along the southern shore; but then -there are no _cotarii_ in Hampshire, plenty in Sussex, Surrey, Wiltshire -and Dorset. Again, in the two shires last mentioned some distinction -seems to be taken between the _coscets_ and the _cotarii_, the former -being superior to the latter[113]. Two centuries later we find a similar -distinction among the tenants of Worcester Priory. There are _cotmanni_ -whose rents and services are heavier, and whose tenements are -presumably larger than those of the _cotarii_, though the difference is -not very great[114]. - -[Size of the villain's tenement.] - -The vagueness of distinctions such as these is well illustrated by the -failure of the term _bordarius_ (and none is more prominent in Domesday -Book) to take firm root in this country[115]. The successors of the -_bordarii_ seem to become in the later documents either _villani_ with -small or cottiers with large tenements. Distinctions which turn on the -amount of land that is possessed or the amount of service that is done -cannot be accurately formulated and forced upon a whole country. Perhaps -in general we may endow the _villanus_ of Domesday Book with a virgate -or quarter of a hide, while we ascribe to the _bordarius_ a less -quantity and doubt whether the _cotarius_ usually had arable land. But -the survey of Middlesex, which is the main authority touching this -matter, shows that the _villanus_ may on occasion have a whole -hide[116], that is four virgates, and that often he has but half a -virgate; it shows us that the _bordarius_, though often he has but four -or five acres, may have a half virgate, that is as much as many a -_villanus_[117]; it shows us that the _cotarius_ may have five acres, -that is as much as many a _bordarius_[118], though he will often have no -more than a croft[119]. In Essex we hear of _bordarii_ who held no -arable land[120]. Nor dare we lay down any stern rule about the -possession of plough beasts. It would seem as if sometimes the -_bordarius_ had oxen, while sometimes he had none[121]. The _villanus_ -might have two oxen, but he might have more or less. We may find that -in Cornwall a single team of eight is forthcoming where there are[122] - - 3 villani, 4 bordarii, 2 servi - 2 " 2 " 3 " - 0 " 5 " 2 " - 1 " 5 " 1 " - 2 " 5 " 4 " - 2 " 3 " 1 " - 3 " 6 " 3 " - -In some Gloucestershire manors every villein seems to have a full plough -team[123]. Merely economic grades are essentially indefinite. Who could -have defined a 'cottage' in the eleventh century? Who can define one -now[124]? - -[Villeins and cottiers.] - -In truth the vast class of men that we are examining must have been -heterogeneous to a high degree. Not only were some members of it much -wealthier than others, but in all probability some were economically -subject to others. So it was in later days. In the thirteenth century we -may easily find a manor in which the lord is paying hardly any wages. He -gets nearly all his agricultural work done for him by his villeins and -his cottiers. Out of his cottiers however he will get but one day's work -in the week. If then we ask what the cottiers are doing during the rest -of their time, the answer surely must be that they are often working as -hired labourers on the villein's virgates, for a cottier can not have -spent five days in the week over the tillage of his poor little -tenement. It is a remarkable feature of the manorial arrangement that -the meanest of the lord's _nativi_ are but rarely working for him. Thus -if we were to remove the lord in order that the village community might -be revealed, we should still see not only rich and poor, but employers -and employed, villagers and 'undersettles.' - -[Freedom and unfreedom of _villani_.] - -Now all these people are in a sense unfree, while yet in some other -sense they are free. Let us then spend a short while in discussing the -various meanings that freedom may have in a legal classification of the -sorts and conditions of men. When we have put out of account the -rightless slave, who is a thing, it still remains possible to say that -some men are unfree, while others are free, and even that freedom is a -matter of degree. But we may use various standards for the measurement -of liberty. - -[Meaning of freedom.] - -Perhaps in the first place we shall think of what German writers call -_Freizügigkeit_, the power to leave the master whom one has been -serving. This power our ancestors would perhaps have called -'fare-worthiness[125].' If the master has the right to recapture the -servant who leaves his service, or even if he has the right to call upon -the officers of the state to pursue him and bring him back to his work, -then we may account this servant an unfree man, albeit the relation -between him and his master has been created by free contract. Such -unfreedom is very distinct from rightlessness. As a freak of -jurisprudence we might imagine a modern nobleman entitled to reduce by -force and arms his fugitive butler to well-paid and easy duties, while -all the same that butler had rights against all the world including his -master, had access to all courts, and could even sue for his wages if -they were not punctually paid. If we call him unfree, then freedom will -look like a matter of degree, for the master's power to get back his -fugitive may be defined by law in divers manners. May he go in pursuit -and use force? Must he send a constable or sheriff's officer? Must he -first go to court and obtain a judgment, 'a decree for specific -performance' of the contract of service? The right of recapture seems to -shade off gradually into a right to insist that a breach of the contract -of service is a criminal offence to be punished by fine or imprisonment. - -Then, again, there may seem to us to be more of unfreedom in the case of -one who was born a servant than in the case of one who has contracted to -serve, though we should note that one may be born to serve without being -born rightless. - -More to the point than these obvious reflections will be the remark that -in the thirteenth century we learn to think of various spheres or planes -of justice. A right good in one sphere may have no existence in -another. The rights of the villeins in their tenements are sanctioned by -manorial justice; they are ignored by the king's courts. Here, again, -the ideas of freedom and unfreedom find a part to play. True that in the -order of legal logic freedom may precede royal protection; a tenure is -protected because it is free; still men are soon arguing that it is free -because it is protected, and this probably discloses an idea which lies -deep[126]:--the king's courts, the national courts, are open to the -free; we approach the rightlessness of the slave if our rights are -recognized only in a court of which our lord is the president. - -The thirteenth century will also supply us with the notion that -continuous agricultural service, service in which there is a -considerable element of uncertainty, is unfree service. Where from day -to day the lord's will counts for much in determining the work that his -tenants must do, such tenants, even if they be free men, are not holding -freely. But uncertainty is a matter of degree, and therefore unfreedom -may easily be regarded as a matter of degree[127]. - -Then, again, in the law books of the Norman age we see distinct traces -of a usage which would make _liber_ or _liberalis_ an equivalent for our -_noble_, or at least for our _gentle_. The common man with the wergild -of 200 shillings, though indubitably he is no _servus_, is not -_liberalis homo_[128]. - -Lastly, in our thirteenth century we learn that privileges and -exceptional immunities are 'liberties' and 'franchises.' What is our -definition of a liberty, a franchise? A portion of royal power in the -hands of a subject. In Henry III.'s day we do not say that the Earl of -Chester is a freer man, more of a _liber homo_, than is the Earl of -Gloucester, but we do say that he has more, greater, higher liberties. - -Therefore we shall not be surprised if in Domesday Book what we read of -freedom, of free men, of free land is sadly obscure. Let us then observe -that the _villanus_ both is and is not a free man. - -[The villein as free.] - -According to the usual terminology of the Leges, everyone who is above -the rank of a _servus_, but below the rank of a thegn, is a _villanus_. -The _villanus_ is the non-noble _liber homo_. All those numerous -sokemen of the eastern counties whom Domesday ranks above the _villani_, -all those numerous _liberi homines_ whom it ranks above the sokemen, -are, according to this scheme, _villani_ if they be not thegns. And this -scheme is still of great importance, for it is the scheme of _bót_ and -_wer_. By what have been the most vital of all the rules of law, all -these men have been massed together; each of them has a _wer_ of two -hundred shillings[129]. This, we may remark in passing, is no trivial -sum, though the shillings are the small Saxon shillings of four pence or -five pence. There seems to be a good deal of evidence that for a long -time past the ox had been valued at 30 pence, the sheep at 5 pence[130]. -At this rate the ceorl's death must be paid for by the price of some -twenty-four or thirty oxen. The sons of a _villanus_ who had but two -oxen must have been under some temptation to wish that their father -would get himself killed by a solvent thegn. Very rarely indeed do the -Leges notice the sokeman or mention _liberi homines_ so as to exclude -the _villani_ from the scope of that term[131]. Domesday Book also on -occasion can divide mankind into slaves and free men. It does so when it -tells us that on a Gloucestershire manor there were twelve _servi_ whom -the lord had made free[132]. It does so again when it tells us that in -the city of Chester the bishop had eight shillings if a free man, four -shillings if a serf, did work upon a festival[133]. So in a description -of the manor of South Perrott in Somerset we read that a certain custom -is due to it from the manor of 'Cruche' (Crewkerne), namely, that every -free man must render one bloom of iron. We look for these free men at -'Cruche' and see no one on the manor but _villani_, _bordarii_, -_coliberti_ and _servi_[134]. Of the Count of Mortain's manor of -Bickenhall it is written that every free man renders a bloom of iron at -the king's manor of Curry; but at Bickenhall there is no one above the -condition of a _villanus_[135]. Other passages will suggest that the -_villanus_ sometimes is and sometimes is not _liber homo_. On a Norfolk -manor we find free villeins, _liberi villani_[136]. - -[The villein as unfree.] - -For all this, however, there must be some very important sense in which -the _villanus_ is not free. In the survey of the eastern counties he is -separated from the _liberi homines_ by the whole class of _sochemanni_. -'In this manor,' we are told, 'there was at that time a free man with -half a hide who has now been made one of the villeins[137].' At times -the word _francus_ is introduced so as to suggest for a moment that, -though the villein may be _liber homo_, he is not _francus_[138]. But -this suggestion, even if it be made, is not maintained, and there are -hundreds of passages which implicitly deny that the villein is _liber -homo_. But then these passages draw the line between freedom and -unfreedom at a point high in the legal scale, a point far above the -heads of the _villani_. At least for the main purposes of Domesday Book -the free man is a man who holds land freely. Let us observe what is said -of the men who have been holding manors. The formula will vary somewhat -from county to county, but we shall often find four phrases used as -equivalent, '_X_ tenuit et liber homo fuit,' '_X_ tenuit ut liber homo,' -'_X_ tenuit et cum terra sua liber fuit,' '_X_ tenuit libere[139].' But -this freeholding implies a high degree of freedom, freedom of a kind -that would have shocked the lawyers of a later age. - -[Anglo-Saxon 'freeholding.'] - -With some regrets we must leave the peasants for a while in order that -we may glance at the higher strata of society. We may take it as certain -that, at least in the eyes of William's ministers, the ordinary holder -of a manor in the time of the Confessor had been holding it under -(_sub_) some lord, if not of (_de_) some lord. But then the closeness of -the connexion between him and his lord, the character of the relation -between lord, man and land, had varied much from case to case. Now these -matters are often expressed in terms of a calculus of personal freedom. -But let us begin with some phrases which seem intelligible enough. The -man can, or he can not, 'sell or give his land'; he can, or he can not, -'sell or give it without the licence of his lord'; he can sell it if he -has first offered it to his lord[140]; he can sell it on paying his lord -two shillings[141]. This seems very simple:--the lord can, or (as the -case may be) can not, prevent his tenant from alienating the land; he -has a right of preemption or he has a right to exact a fine when there -is a change of tenants. But then come phrases that are less in harmony -with our idea of feudal tenure. The man can not sell his land 'away -from' his lord[142], he can not give or sell it 'outside' a certain -manor belonging to his lord[143], or, being the tenant of some church, -he can not 'separate' his land from the church[144], or give or sell it -outside the church[145]. - -[Freeholding and the lord's rights.] - -We have perhaps taken for granted under the influence of later law that -an alienation will not impair the lord's rights, and will but give him a -new instead of an old tenant. But it is not of any mere substitution -such as this that these men of the eleventh century are thinking. They -have it in their minds that the man may wish, may be able, utterly to -withdraw his land from the sphere of his lord's rights. Therefore in -many cases they note with some care that the man, though he can give or -sell his land, can not altogether put an end to such relation as has -existed between this land and his lord. He can sell, but some of the -lord's rights will 'remain,' in particular the lord's 'soke' over the -land (for the present let us say his jurisdiction over the land) will -remain[146]. The purchaser will not of necessity become the 'man' of -this lord, will not of necessity owe him any _servitium_ or -_consuetudo_, but will come under his jurisdiction[147]. Interchanging -however with these phrases[148], we have others which seem to point to -the same set of distinctions, but to express them in terms of personal -freedom. The man can, or else he can not, withdraw from his lord, go -away from his lord, withdraw from his lord's manor; he can or he can not -withdraw with his land; he can or can not go to another lord, or go -wherever he pleases[149]. Some of these phrases will, if taken -literally, seem to say that the persons of whom they are used are tied -to the soil; they can not leave the land, or the manor, or the soke. -Probably in some of these cases the bond between man and lord is a -perpetual bond of homage and fealty, and if the man breaks that bond by -refusing the due obedience or putting himself under another lord, he is -guilty of a wrong[150]. But of pursuing him and capturing him and -reducing him to servitude there can be no talk. Many of these persons -who 'can not recede' are men of wealth and rank, of high rank that is -recognized by law, they are king's thegns or the thegns of the churches, -they are 'twelve-hundred men[151].' However, it is not the man's power -to leave his lord so much as the power to leave his lord and take his -land with him, that these phrases bring to our notice; or rather the -assumption is made that no one will want to leave his lord if he must -also leave his land behind him. And then this power of taking land from -this lord and bringing it under another lord is conceived as an index of -personal freedom. Thus we read: 'These men were so free that they could -go where they pleased[152],' and again, 'Four sokemen held this land, -of whom three were free, while the fourth held one hide but could not -give or sell it[153].' Not that no one is called a _liber homo_ unless -he has this power of 'receding' from his lord; far from it; all is a -matter of degree; but the free man is freer if he can 'go to what lord -he pleases,' and often enough the phrases 'X tenuit et liber homo fuit,' -'X tenuit libere,' 'X tenuit ut liber homo' seem to have no other -meaning than this, that the occupant of the land enjoyed the liberty of -taking it with him whithersoever he would. Therefore there is no -tautology in saying that the holder of the land was a thegn and a free -man, though of course there is a sense, there are many senses, in which -every thegn is free[154]. All this talk of the freedom that consists in -choosing a lord and subjecting land to him may well puzzle us, for it -puzzled the men of the twelfth century. The chronicler of Abingdon abbey -had to explain that in the old days a free man could do strange -things[155]. - -[The scale of freeholding.] - -Comparisons may be instituted between the freedom of one free man and -that of another:--'Five thegns held this land of Earl Edwin and could go -with their land whither they would, and below them they had four -soldiers, who were as free as themselves[156].' A high degree of liberty -is marked when we are told that, 'The said men were so free that they -could sell their land with soke and sake wherever they would[157].' But -there are yet higher degrees of liberty. Of Worcestershire it is -written, 'When the king goes upon a military expedition, if anyone who -is summoned stays at home, then if he is so free a man that he has his -sake and soke and can go whither he pleases with his land, he with all -his land shall be in the king's mercy[158].' The free man is the freer -if he has soke and sake, if he has jurisdiction over other men. -Exceptional privileges, immunities from common burdens, are already -regarded as 'liberties.' This is no new thing; often enough when the -Anglo-Saxon land books speak of freedom they mean privilege. - -[Free land.] - -The idea of freedom is equally vague and elastic if, instead of applying -it to men, we apply it to land or the tenure of land. Two _bordarii_ are -now holding a small plot; 'they themselves held it freely in King -Edward's day[159].' Here no doubt there has been a fall; but how deep a -fall we can not be sure. To say that a man's land is free may imply far -more freedom than freehold tenure implies in later times; it may imply -that the bond between him and his lord, if indeed he has a lord, is of a -purely personal character and hardly gives the lord any hold over the -land[160]. But this is not all. Perfect freedom is not attained so long -as the land owes any single duty to the state. Often enough--but exactly -how often it were no easy task to tell--the _libera terra_ of our record -is land that has been exempted even from the danegeld; it is highly -privileged land[161]. Let us remember that at the present day, though -the definition of free land or freehold land has long ago been fixed, we -still speak as though free land might become freer if it were 'free of -land-tax and tithe rent-charge.' - -[The unfreedom of the villein.] - -If now we return to the _villanus_ and deny that he is _liber homo_ and -deny also that he is holding freely, we shall be saying little and using -the laxest of terms. There are half-a-dozen questions that we would fain -ask about him, and there will be no harm in asking them, though Domesday -Book is taciturn. - -[Can the villein be pursued?] - -Is he free to quit his lord and his land, or can he be pursued and -captured? No one word can be obtained in answer to this question. We can -only say that in Henry II.'s day the ordinary peasant was regarded by -the royal officials as _ascriptitius_; the land that he occupied was -said to be part of his lord's demesne; his chattels were his -lord's[162]. But then this was conceived to be, at least in some degree, -the result of the Norman Conquest and subsequent rebellions of the -peasantry[163]. To this we may add that in one of our sets of Leges, the -French Leis of William the Conqueror, there are certain clauses which -would be of great importance could we suppose that they had an -authoritative origin, and which in any case are remarkable enough. The -_nativus_ who flies from the land on which he is born, let none retain -him or his chattels; if the lords will not send back these men to their -land the king's officers are to do it[164]. On the other hand, the -tillers of the soil are not to be worked beyond their proper rent; their -lord may not remove them from their land so long as they perform their -right services[165]. Whether or no we suppose that in the writer's -opinion the ordinary peasant was a _nativus_ (of _nativi_ Domesday Book -has nothing to say) we still have law more favourable to the peasant -than was the common law of Bracton's age:--a tiller who does his -accustomed service is not to be ejected; he is no tenant at will. - -[Rarity of flight.] - -Hereafter we shall show that the English peasants did suffer by the -substitution of French for English lords. But the question that we have -asked, so urgent, so fundamental, as it may seem to us, is really one -which, as the history of the Roman _coloni_ might prove, can long remain -unanswered. Men may become economically so dependent on their lords, on -wealthy masters and creditors, that the legal question whether they can -quit their service has no interest. Who wishes to leave his all and go -forth a beggar into the world? On the whole we can find no evidence -whatever that the men of the Confessor's day who were retrospectively -called _villani_ were tied to the soil. Certainly in Norman times the -tradition was held that according to the old law the _villanus_ might -acquire five hides of land and so 'thrive to thegn-right[166].' - -[The villein and seignorial justice.] - -Our next question should be whether he was subject to seignorial -justice. This is part of a much wider question that we must face -hereafter, for seignorial justice should be treated as a whole. We must -here anticipate a conclusion, the proof of which will come by and by, -namely, that the _villanus_ sometimes was and sometimes was not the -justiciable of a court in which his lord or his lord's steward presided. -All depended on the answer to the question whether his lord had 'sake -and soke.' His lord might have justiciary rights over all his tenants, -or merely over his _villani_, or he might have no justiciary rights, for -as yet 'sake and soke' were in the king's gift, and the mere fact that a -lord had 'men' or tenants did not give him a jurisdiction over them. - -[The villein and national justice.] - -With this question is connected another, namely, whether the _villani_ -had a _locus standi_ in the national courts. We have seen six _villani_ -together with the priest (undoubtedly a free man) and the reeve of each -vill summoned to swear in the great inquest[167]. One of the most famous -scenes recorded by our book is that in which William of Chernet claimed -a Hampshire manor on behalf of Hugh de Port and produced his witnesses -from among the best and eldest men of the county; but Picot, the sheriff -of Cambridgeshire, who was in possession, replied with the testimony of -villeins and mean folk and reeves, who were willing to support his case -by oath or by ordeal[168]. Again, in Norfolk, Roger the sheriff claimed -a hundred acres and five _villani_ and a mill as belonging to the royal -manor of Branfort, and five _villani_ of the said manor testified in his -favour and offered to make whatever proof anyone might adjudge to them, -but the half-hundred of Ipswich testified that the land belonged to a -certain church of St. Peter that Wihtgar held, and he offered to -deraign this[169]. Certainly this does not look as if _villani_ were -excluded from the national moots. But a rule which valued the oath of a -single thegn as highly as the oath of six ceorls would make the ceorl -but a poor witness and tend to keep him out of court[170]. The men who -are active in the communal courts, who make the judgments there, are -usually men of thegnly rank; but to go to court as a doomsman is one -thing, to go as a litigant is another[171]. - -[The villein and his land.] - -We may now approach the question whether, and if so in what sense, the -land that the _villanus_ occupies is his land. Throughout Domesday Book -a distinction is sedulously maintained between the land of the villeins -(_terra villanorum_) and the land that the lord has _in dominio_. Let us -notice this phrase. Only the demesne land does the lord hold _in -dominio_, in ownership. The delicate shade of difference that Bracton -would see between _dominicum_ and _dominium_ is not as yet marked. In -later times it became strictly correct to say that the lord held in -demesne (_in dominico suo_) not only the lands which he occupied by -himself or his servants, but also the lands held of him by villein -tenure[172]. This usage appears very plainly in the Dialogue on the -Exchequer. 'You shall know,' says the writer, 'that we give the name -demesnes (_dominica_) to those lands that a man cultivates at his own -cost or by his own labour, and also to those which are possessed in his -name by his _ascriptitii_; for by the law of this kingdom not only can -these _ascriptitii_ be removed by their lords from the lands that they -now possess and transferred to other places, but they may be sold and -dispersed at will; so that rightly are both they and the lands which -they cultivate for the behalf of their lords accounted to be -_dominia_[173].' Far other is the normal, if not invariable, usage of -Domesday Book. The _terrae villanorum_, the _silvae villanorum_, the -_piscariae villanorum_, the _molini villanorum_--for the villeins have -woods and fisheries and mills--these the lord does not hold _in -dominio_[174]. Then again the oxen of the villeins are carefully -distinguished from the oxen of the demesne, while often enough they are -not distinguished from the oxen of those who in every sense are free -tenants[175]. Now as regards both the land and the oxen we seem put to -the dilemma that either they belong to the lord or else they belong to -the villeins. We cannot avoid this dilemma, as we can in later days, by -saying that according to the common law the ownership of these things is -with the lord, while according to the custom of the manor it is with the -villeins, for we believe that a hall-moot, a manorial court, is still a -somewhat exceptional institution. - -On the whole we can hardly doubt that both in their land and in their -oxen the villeins have had rights protected by law. Let us glance once -more at the scheme of _bót_ and _wer_ that has been in force. A villein -is slain; the _manbót_ payable to his lord is marked off from the much -heavier _wergild_ that is payable to his kindred. If all that a villein -could have belonged to his lord such a distinction would be idle. - -[The villein's land and the geld.] - -Still we take it that for one most important purpose the villein's land -is the lord's land:--the lord must answer for the geld that is due from -it. Not that the burden falls ultimately on the lord. On the contrary, -it is not unlikely that he makes his villeins pay the geld that is due -from his demesne land; it is one of their services that they must -'defend their lord's inland' against the geld. But over against the -state the lord represents as well the land of his villeins as his own -demesne land. From the great levy of 1084 the demesne lands of the -barons had been exempted[176], but no doubt they had been responsible -for the tax assessed on the lands held by their _villani_. We much doubt -whether the collectors of the geld went round to the cottages of the -villeins and demanded here six pence and there four pence; they -presented themselves at the lord's hall and asked for a large sum. Nay, -we believe that very often a perfectly free tenant paid his geld to his -lord, or through his lord[177]. Hence arrangements by which some hides -were made to acquit other hides; such, for example, was the arrangement -at Tewkesbury; there were fifty hides which had to acquit the whole -ninety-five hides from all geld and royal service[178]. And then it -might be that the lord, enjoying a special privilege, was entitled to -take the geld from his tenants and yet paid no geld to the king; thus -did the canons of St. Petroc in Cornwall[179] and the monks of St. -Edmund in Suffolk[180]. But as regards lands occupied by villeins, the -king, so it seems to us, looks for his geld to the lord and he does not -look behind the lord. This is no detail of a fiscal system. A potent -force has thus been set in motion. He who pays for land,--it is but fair -that he should be considered the owner of that land. We have a hint of -this principle in a law of Cnut:--'He who has "defended" land with the -witness of the shire, is to enjoy it without question during his life -and on his death may give or sell it to whom he pleases[181].' We have -another hint of this principle in a story told by Heming, the monk of -Worcester:--in Cnut's time but four days of grace were given to the -landowner for the payment of the geld; when these had elapsed, anyone -who paid the geld might have the land[182]. It is a principle which, if -it is applied to the case of lord and villein, will attribute the -ownership of the land to the lord and not to the villein. - -[The villein's services.] - -And then we would ask: What services do the villeins render? A deep -silence answers us, and as will hereafter be shown, there are many -reasons why we should not import the information given us by the -monastic cartularies, even such early cartularies as the Black Book of -Peterborough, into the days of the Confessor. No doubt the villeins -usually do some labour upon the lord's demesne lands. In particular they -help to plough it. A manor, we can see, is generally so arranged that -the ratio borne by the demesne oxen to the demesne land will be smaller -than that borne by the villeins' oxen to the villeins' land. Thus, to -give one example out of a hundred, in a Somersetshire manor the lord has -four hides and three teams, the villeins have two hides and three -teams[183]. But then the lord gets some help in his agriculture from -those who are undoubtedly free tenants. The teams of the free tenants -are often covered by the same phrase that covers the teams of the -villeins[184]. Radknights who are _liberi homines_ plough and harrow at -the lord's court[185]. The very few entries which tell us of the labour -of the villeins are quite insufficient to condemn the whole class to -unlimited, or even to very heavy work. On a manor in Herefordshire there -are twelve bordiers who work one day in the week[186]. On the enormous -manor of Leominster there are 238 _villani_ and 85 _bordarii_. The -_villani_ plough and sow with their own seed 140 acres of their lord's -land and they pay 11 pounds and 52 pence[187]. On the manor of Marcle, -which also is in Herefordshire, there are 36 _villani_ and 10 _bordarii_ -with 40 teams. These _villani_ plough and sow with their own seed 80 -acres of wheat and 71 of oats[188]. At Kingston, yet another manor in -the same county, 'the _villani_ who dwelt there in King Edward's day -carried venison to Hereford and did no other service, so says the -shire[189].' On one Worcestershire manor of Westminster Abbey 10 -villeins and 10 bordiers with 6 teams plough 6 acres and sow them with -their own seed; on another 8 villeins and 6 bordiers with 6 teams do the -like by 4 acres[190]. This is light work. Casually we are told of -burgesses living at Tamworth who have to work like the other villeins of -the manor of Drayton to which they are attached[191], and we are told of -men on a royal manor who do such works for the king as the reeve may -command[192]; but, curiously enough, it is not of any villeins but of -the Bishop of Worcester's riding men (_radmanni_) that it is written -'they do whatever is commanded them[193].' - -[Money rents paid by villeins.] - -With our thirteenth century cartularies before us, we might easily -underrate the amount of money that was already being paid as the rent of -land at the date of the Conquest. In several counties we come across -small groups of _censarii_, _censores_, _gablatores_ who pay for their -land in money, of _cervisarii_ and _mellitarii_ who bring beer and -honey. Renders in kind, in herrings, eels, salmon are not uncommon, and -sometimes they are 'appreciated,' valued in terms of money. The pannage -pig or the grass swine, which the villeins give in return for mast and -herbage, is often mentioned. Throughout Sussex it seems to be the custom -that the lord should have 'for herbage' one pig from every villein who -has seven pigs[194]. But money will be taken instead of swine, oxen or -fish[195]. The _gersuma_, the _tailla_, the theoretically free gifts of -the tenants, are sums of money. But often enough the _villanus_ is -paying a substantial money rent. We have seen how at Leominster villeins -plough and sow 140 acres for their lord and pay a rent of more than -£11[196]. At Lewisham in Kent the Abbot of Gand has a manor valued at -£30; of this £2 is due to the profits of the port while two mills with -'the gafol of the rustics' bring in £8. 12_s._[197] Such entries as the -following are not uncommon--there is one villein rendering -30_d._[198]--there is one villein rendering 10_s._[199]--46 _cotarii_ -with one hide render 30 shillings a year[200]--the villeins give 13_s._ -4_d._ by way of _consuetudo_[201]. No doubt it would be somewhat rare to -find a villein discharging all his dues in money--this is suggested when -we are told how on the land of St. Augustin one Wadard holds a large -piece 'de terra villanorum' and yet renders no service to the abbot save -30_s._ a year[202]. At least in one instance the villeins seem to be -holding the manor in farm, that is to say, they are farming the demesne -land and paying a rent in money or in provender[203]. We dare not -represent the stream of economic history as flowing uninterruptedly from -a system of labour services to a system of rents. We must remember that -in the Conqueror's reign the lord very often had numerous serfs whose -whole time was given to the cultivation of his demesne. In the -south-western counties he will often have two, three or more serfs for -every team that he has on his demesne, and, while this is so, we can not -safely say that his husbandry requires that the villeins should be -labouring on his land for three or four days in every week. - -[The English for _villanus_.] - -As a last question we may ask: What was the English for _villanus_? It -is a foreign word, one of those words which came in with the Conqueror. -Surely, we may argue, there must have been some English equivalent for -it. Yet we have the greatest difficulty in finding the proper term. True -that in the Quadripartitus and the Leges _villanus_ generally represents -_ceorl_; _ceorl_ when it is not rendered by _villanus_ is left -untranslated in some such form as _cyrliscus homo_. But then _ceorl_ -must be a wider word than the _villanus_ of Domesday Book, for it has -to cover all the non-noble free men; it must comprehend the numerous -_sochemanni_ and _liberi homines_ of northern and eastern England. This -in itself is not a little remarkable; it makes us suspect that some of -the lines drawn by Domesday Book are by no means very old; they can not -be drawn by any of those terms that have been current in the Anglo-Saxon -dooms or which still are current in the text-books that lawyers are -compiling. To suppose that _villanus_ is equivalent to _gebúr_ is -impossible; we have the best warrant for saying that the Latin for -_gebúr_ is not _villanus_ but _colibertus_[204]. Nor can we hold that -the _villanus_ is a _geneat_. In the last days of the old English -kingdom the _geneat_, the 'companion,' the 'fellow,' appears as a -horseman who rides on his lord's errands; we must seek him among the -_radmanni_ and _rachenistres_ and _drengi_ of Domesday Book[205]. We -shall venture the guess that when the Norman clerks wrote down -_villanus_, the English jurors had said _túnesman_. As a matter of -etymology the two words answer to each other well enough; the _villa_ is -the _tún_, and the men of the _villa_ are the men of the _tún_. In the -enlarged Latin version of the laws of Cnut, known as Instituta Cnuti, -there is an important remark:--tithes are to be paid both from the lands -of the thegn and from the lands of the villeins--'tam de dominio -liberalis hominis, id est þegenes, quam de terra villanorum, id est -tuumannes (_corr._ tunmannes)[206].' Then in a collection of dooms known -as the Northumbrian Priests' Law there is a clause which orders the -payment of Peter's pence. If a king's thegn or landlord (_landrica_) -withholds his penny, he must pay ten half-marks, half to Christ, half to -the king; but if a _túnesman_ withholds it, then let the landlord pay it -and take an ox from the man[207]. A very valuable passage this is. It -shows us how the lord is becoming responsible for the man's taxes: if -the tenant will not pay them, the lord must. It is then in connexion -with this responsibility of the lord that the term _townsman_ meets us, -and, if we mistake not, it is the lord's responsibility for geld that is -the chief agent in the definition of the class of _villani_. The -pressure of taxation, civil and ecclesiastical, has been forming new -social strata, and a new word, in itself a vague word, is making its way -into the vocabulary of the law[208]. - -[Summary.] - -The class of villeins may well be heterogeneous. It may well contain (so -we think) men who, or whose ancestors, have owned the land under a -political supremacy, not easily to be distinguished from landlordship, -that belongs to the king; and, on the other hand, it may well contain -those who have never in themselves or their predecessors been other than -the tenants of another man's soil. In some counties on the Welsh march -there are groups of _hospites_ who in fact or theory are colonists whom -the lord has invited onto his land[209]; but this word, very common in -France, is not common in England. Our record is not concerned to -describe the nature or the origin of the villein's tenure; it is in -quest of geld and of the persons who ought to be charged with geld, and -so it matters not whether the lord has let land to the villein or has -acquired rights over land of which the villein was once the owner. -Therefore we lay down no broad principle about the rights of the -villein, but we have suggested that taken in the mass the _villani_ of -the Confessor's reign were far more 'law-worthy' than were the _villani_ -of the thirteenth century. We can not treat either the legal or the -economic history of our peasantry as a continuous whole; it is divided -into two parts by the red thread of the Norman Conquest. That is a -catastrophe. William might do his best to make it as little of a -catastrophe as was possible, to insist that each French lord should have -precisely the same rights that had been enjoyed by his English -_antecessor_; it may even be that he endeavoured to assure to those who -were becoming _villani_ the rights that they had enjoyed under King -Edward[210]. Such a task, if attempted, was impossible. We hear indeed -that the English 'redeemed their lands,' but probably this refers only -to those English lords, those thegns or the like, who were fortunate -enough to find that a ransom would be accepted[211]. We have no warrant -for thinking that the peasants, the common 'townsmen,' obtained from -the king any covenanted mercies. They were handed over to new lords, who -were very free in fact, if not in theory, to get out of them all that -could be got without gross cruelty. - -[Depression of the villeins.] - -We are not left to speculate about this matter. In after days those who -were likely to hold a true tradition, the great financier of the -twelfth, the great lawyer of the thirteenth century, believed that there -had been a catastrophe. As a result of the Conquest, the peasants, at -all events some of the peasants, had fallen from their free estate; free -men, holding freely, they had been compelled to do unfree services[212]. -But if we need not rely upon speculation, neither need we rely upon -tradition. Domesday Book is full of evidence that the tillers of the -soil are being depressed. - -[The Normans and the peasants.] - -Here we may read of a free man with half a hide who has now been made -one of the villeins[213], there of the holder of a small manor who now -cultivates it as the farmer of a French lord _graviter et -miserabiliter_[214], and there of a sokeman who has lost his land for -not paying geld, though none was due[215]; while the great Richard of -Tonbridge has condescended to abstract a virgate from a villein or a -villein from a virgate[216]. But, again, it is not on a few cases in -which our record states that some man has suffered an injustice that we -would rely. Rather we notice what it treats as a quite common event. -Free men are being 'added to' manors to which they did not belong. Thus -in Suffolk a number of free men have been added to the manor of -Montfort; they pay no 'custom' to it before the Conquest, but now they -pay £15; Ælfric who was reeve under Roger Bigot set them this -custom[217]. Hard by them were men who used to pay 20 shillings, but -this same Ælfric raised their rent to 100 shillings[218]. 'A free man -held this land and could sell it, but Waleran father of John has added -him to this manor[219]':--Entries of this kind are common. The utmost -rents are being exacted from the farmers:--this manor was let for three -years at a rent of £12 and a yearly gift of an ounce of gold, but all -the farmers who took it were ruined[220]--that manor was let for £3. -15_s_. but the men were thereby ruined and now it is valued at only -45_s._[221] About these matters French and English can not agree:--this -manor renders £70 by weight, but the English value it at only £60 by -tale[222]--the English fix the value at £80, but the French at -£100[223]--Frenchmen and Englishmen agree that it is worth £50, but -Richard let it to an Englishman for £60, who thereby lost £10 a year, at -the very least[224]. 'It can not pay,' 'it can hardly pay,' 'it could -not stand' the rent, such are the phrases that we hear. If the lord gets -the most out of the farmer to whom he has leased the manor, we may be -sure that the farmer is making the most out of the villeins. - -[Depression of the sokemen.] - -But the most convincing proof of the depression of the peasantry comes -to us from Cambridgeshire. The rural population of that county as it -existed in 1086 has been classified thus[225]:-- - - sochemanni 213 - villani 1902 - bordarii 1428 - cotarii 736 - servi 548 - -But we also learn that the Cambridgeshire of the Confessor's day had -contained at the very least 900 instead of 200 sokemen[226]. This is an -enormous and a significant change. Let us look at a single village. In -Meldreth there is a manor; it is now a manor of the most ordinary kind; -it is rated at 3 hides and 1 virgate, but contains 5 team-lands; in -demesne are half a hide and one team, and 15 _bordarii_ and 3 _cotarii_ -have 4 teams, and there is one _servus_. But before the Conquest this -land was held by 15 sokemen; 10 of them were under the soke of the Abbey -of Ely and held 2 hides and half a virgate; the other 5 held 1 hide and -half a virgate and were the men of Earl Ælfgar[227]. What has become of -these fifteen sokemen? They are now represented by fifteen bordiers and -five cottiers; and the demesne land of the manor is a new thing. The -sokemen have fallen, and their fall has brought with it the -consolidation of manorial husbandry and seignorial power. At Orwell Earl -Roger has now a small estate; a third of it is in demesne, while the -residue is held by 2 villeins and 3 bordiers, and there is a serf there. -This land had belonged to six sokemen, and those six had been under no -less than five different lords; two belonged to Edith the Fair, one to -Archbishop Stigand, one to Robert Wimarc's son, one to the king, and one -to Earl Ælfgar[228]. Displacements such as this we may see in village -after village. No one can read the survey of Cambridgeshire without -seeing that the freer sorts of the peasantry have been thrust out, or -rather thrust down. - -[Further illustrations of depression.] - -Evidence so cogent as this we shall hardly find in any part of the -record save that which relates to Cambridgeshire and Bedfordshire. But -great movements of the kind that we are examining will hardly confine -themselves within the boundaries of a county. A little variation in the -formula which tells us who held the land in 1066 may hide from us the -true state of the case. We can not expect that men will be very accurate -in stating the legal relationships that existed twenty years ago. Since -the day when King Edward was alive and dead many things have happened, -many new words and new forms of thought have become familiar. But taking -the verdicts as we find them, there is still no lack of evidence. In -Essex we may see the _liberi homines_ disappearing[229]. But we need not -look only to the eastern counties. At Bromley, in Surrey, Bishop Odo has -a manor of 32 hides, 4 of which had belonged to 'free men' who could go -where they pleased, but now there are only villeins, cottiers, and -serfs[230]. We turn the page and find Odo holding 10 hides which had -belonged to 'the alodiaries of the vill[231].' In Kent Hugh de Port is -holding land that was held by 6 free men who could go whither they -would; there are now 6 villeins and 14 bordiers there, with one team -between them[232]. Students of Domesday were too apt to treat the -_antecessores_ of the Norman lords as being in all cases lords of -manors. Lords of manors, or rather holders of manors, they often were, -but as we shall see more fully hereafter, when we are examining the term -_manerium_, such phrases are likely to deceive us. Often enough they -were very small people with very little land. For example these six free -men whom Hugh de Port represents had only two and a half team-lands. We -pass by a few pages and find Hugh de Montfort with a holding which -comprises but one team-land and a half; he has 4 villeins and 2 bordiers -there. His _antecessores_ were three free men, who could go whither they -would[233]. They had need for but 12 oxen; they had no more land than -they could easily till, at all events with the help of two or three -cottagers or slaves. To all appearance they were no better than -peasants. They or their sons may still be tilling the land as Hugh's -villeins. When we look for such instances we very easily find them. The -case is not altered by the fact that the term 'manor' is given to the -holdings of these _antecessores_. In Sussex an under-tenant of Earl -Roger has an estate with four villeins upon it. His _antecessores_ were -two free men who held the land as two manors. And how much land was -there to be divided between the two? There was one team-land. Such -holders of _maneria_ were tillers of the soil, peasants, at best -yeomen[234]. If they were of thegnly rank, this again does not alter the -case. When in the survey of Dorset we read how four thegns held two -team-lands, how six thegns held two team-lands, eight thegns two -team-lands, nine thegns four team-lands, eleven thegns four -team-lands[235], we can not of course be certain that each of these -groups of co-tenants had but one holding; but thegnly rank is inherited, -and if a thegn will have nine or ten sons there will soon be tillers of -the soil with the wergild of twelve hundred shillings. Now if these -things are being done in the middling strata of society, if the sokemen -are being suppressed or depressed in Cambridgeshire, the alodiaries in -Sussex, what is likely to be the fate of the poor? They will have to -till their lord's demesne _graviter et miserabiliter_. He can afford to -dispense with serfs, for he has villeins. - -[The peasants on the royal demesne.] - -A last argument must be added. What we see in the thirteenth century of -the ancient demesne of the crown[236] might lead us to expect that in -Domesday Book 'the manors of St. Edward' would stand out in bold -relief. Instead of a population mainly consisting of villeins shall we -not find upon them large numbers of sokemen, the ancestors of the men -who in after days will be protected by the little writ of right and the -_Monstraverunt_? Nothing of the kind. The royal manor differs in no such -mode as this from any other manor. If it lies in a county in which other -manors have sokemen, then it may or may not have sokemen. If it lies in -a county in which other manors have no sokemen, it will have none. -Cambridgeshire is a county in which there are some, and have been many, -sokemen; there is hardly a sokeman upon the ancient demesne. In after -days the men of Chesterton, for example, will have all the peculiar -rights attributed by lawyers to the sokemen of St. Edward. But St. -Edward, if we trust Domesday Book, had never a sokeman there; he had two -villeins and a number of bordiers and cottiers[237]. It seems fairly -clear that from an early time, if not from the first days of the -Conquest onwards, the king was the best of landlords. The tenants of -those manors that were conceived as annexed to the crown, those tenants -one and all, save the class of slaves which was disappearing, got a -better, a more regular justice than that which the villeins of other -lords could hope for. It was the king's justice, and therefore--for -the king's public and private capacities were hardly to be distinguished ---it was public justice, and so became formal justice, defined by writs, -administered in the last resort by the highest court, the ablest -lawyers. And so sokemen disappear from private manors. Some of them as -tenants in free socage may maintain their position; many fall down into -the class of tenants in villeinage. On the ancient demesne the sokemen -multiply; they appear where Domesday knew them not; for those who are -protected by royal justice can hardly (now that villeinage implies a -precarious tenure) be called villeins, they must be 'villein sokemen' at -the least. Whether or no we trust the tradition which ascribes to the -Conqueror a law in favour of the tillers of the soil, we can hardly -doubt that the _villani_ and _bordarii_ whom Domesday Book shows us on -the royal manors are treated as having legal rights in their holdings. -And if this be true of them, it should be true of their peers upon other -manors. Yes, it should be true; the manorial courts that are arising -should do impartial justice even between lord and villeins; but who is -to make it true? - - -FOOTNOTES: - - [101] D. B. i. 38, Coseham: '8 burs i. coliberti.' Ib. 38 b Dene: - 'et coliberti [vel bures _interlined_].' - - [102] D. B. i. 65, Wintreburne. - - [103] D. B. i. 75, Bridetone et Bere. - - [104] D. B. i. 239 b, Etone. - - [105] Guérard, Cartulaire de L'Abbaye de S. Père de Chartres, vol. - i. p. xlii. - - [106] The position of the _coliberti_ is discussed by Guérard, _loc. - cit._., and by Lamprecht, Geschichte des Französischen - Wirthschaftslebens (in Schmoller's Forschungen, Bd i.), p. 81. - Guérard says, 'Les coliberts peuvent se placer à peu près - indifferemment ou au dernier des hommes libres, ou à la tête - des hommes engagés dans les liens de la servitude.' - - [107] Schmid, App. III. C. 4. - - [108] Rectitudines, c. 3. - - [109] Occasionally the _coliberti_ of D. B. are put before us as - paying rents in money or in kind. Thus D. B. i. 38, Hants: 'In - Coseham sunt 4 hidae quae pertinent huic manerio ubi T. R. E. - erant 8 burs i. coliberti cum 4 carucis reddentes 50 sol. 8 - den. minus.' D. B. i. 179 b, Heref.: 'Villani dant de - consuetudine 13 sol. et 4 den. et [sex] coliberti reddunt 3 - sextarios frumenti et ordei et 2 oves et dimidiam cum agnis et - 2 den. et unum obolum.' D. B. i. 165: 'et in Glouucestre 1 - burgensis reddens 5 den. et 2 coliberti reddentes 34 den.' In - a charter coming from Bishop Denewulf (K. 1079) we read of - three wite-theówmen who were boor-born and three who were - theów-born. - - [110] Ellis, Introduction, ii. 511-14. - - [111] For examples see D. B. iv. 211 and the following pages. - - [112] Leg. Hen. 81, § 3: 'Quidam villani qui sunt eiusmodi - leierwitam et blodwitam et huiusmodi minora forisfacta emerunt - a dominis suis, vel quomodo meruerunt de suis et in suos, - quorum fletgefoth vel overseunessa est 30 den.; cothseti 15 - den.; servi 6 den.' - - [113] D. B. i. 71, Haseberie: '5 villani et 13 coscez et 2 cotarii.' - Ibid. 80 b: Chinestanestone: '18 villani et 14 coscez et 4 - cotarii.' - - [114] Worcester Register, 59 b (Sedgebarrow): four _cotmanni_, each - of whom pays 20_d._ or works one day a week and two in autumn; - two _cottarii_, each of whom pays 12_d._ or works one day a - week. Ibid. 69 b (Shipston): two _cotmanni_, each of whom pays - 3_s._ or works like a virgater; two _cottarii_, each of whom - pays 13_d._ Ibid. 76 a (Cropthorn): two _cotmanni_, each of - whom pays 2_s._ or works like a _cottarius_; two _cottarii_, - each of whom pays 18_d._ or works one day a week. - - [115] Vinogradoff, Villainage, 149, gives a few instances of its - occurrence; but it seems to be very rare. - - [116] D. B. i. 127 b, Fuleham: 'Ibi 5 villani quisque 1 hidam.' - There are a good many other instances. - - [117] D. B. i. 130, Hamntone; 'et 4 bordarii quisque de dimidia - virga.' - - [118] D. B. i. 127, Herges: 'et 2 cotarii de 13 acris.' - - [119] D. B. i. 127 b, Fuleham: 'et 22 cotarii de dimidia hida et 8 - cotarii de suis hortis.' - - [120] D. B. ii. 75 b: 'et 5 bordarii super aquam qui non tenent - terram.' - - [121] D. B. i. 163 b, Turneberie: 'et 42 villani et 18 radchenistre - cum 21 carucis et 23 bordarii et 15 servi et 4 coliberti.' - Ibid. 164, Hechanestede: 'et 5 villani et 8 bordarii cum 6 - carucis; ibi 6 servi.' - - [122] D. B. iv. 215-223; on p. 223 there are two _villani_ with one - ox. - - [123] D. B. i. 164, Tedeneham: 'Ibi erant 38 villani habentes 38 - carucas.' Ibid. 164 b, Nortune, '15 villani cum 15 carucis; - Stanwelle, 5 villani cum 5 carucis.' - - [124] Malden, Domesday Survey of Surrey (Domesday Studies, ii.) 469, - says that in Surrey '_bordarii_ and _cotarii_ only occur once - together upon the same manor, and very seldom in the same - hundred.... There are three hundreds, Godalming, Wallington - and Elmbridge, where the _cotarii_ are nearly universal to the - exclusion of _bordarii_. In the others the _bordarii_ are - nearly or quite universal, to the exclusion of the _cotarii_.' - - [125] Thorpe, Diplomatarium, 623. King Eadwig declares that a - certain church-ward of Exeter is 'free and fare-worthy.' - - [126] Hist. Eng. Law, i. 341 ff. - - [127] Hist. Eng. Law, i. 354-8. - - [128] Liebermann, Instituta Cnuti, Transact. Roy. Hist. Soc. vii. - 93. - - [129] Leg. Will. Conq. I. 8: 'La were del thein 20 lib. in - Merchenelahe, 25 lib. in Westsexenelahe. La were del vilain - 100 sol. en Merchenelahe e ensement en Westsexene.' Leg. Henr. - 70, § 1: 'In Westsexa quae caput regni est et legum, twyhindi, - i.e. villani, wera est 4 lib.; twelfhindi, i.e. thaini, 25 - lib.' Ibid. 76, § 2: 'Omnis autem wera liberorum est aut - servorum ... liberi alii twyhindi, alii syxhindi, alii - twelfhindi'; § 6, twihindus = cyrliscus = villanus. As to the - 100 shillings in the first of these passages, see Schmid, p. - 676. There is some other evidence that the equation, 1 Norman - shilling = 2 English shillings, was occasionally treated as - correct enough. As to the six-hynde man, see Schmid, p. 653; - we may doubt whether he existed in the eleventh century, but - according to the Instituta Cnuti the _radchenistres_ of the - west may have been six-hynde. We must not draw from Alfred's - treaty with the Danes (Schmid, p. 107) the inference that the - normal ceorl was seated on _gafol-land_. This international - instrument is settling an exceptionally high tariff for the - maintenance of the peace. Every man, whatever his rank, is to - enjoy the handsome wergild of 8 half-marks of pure gold, - except the Danish lysing and the English ceorl who is seated - on gafol-land; these are to have but the common wer of 200 - shillings. The parallel passage in Æthelred's treaty (Schmid, - p. 207) sets £30 on every free man if he is killed by a man of - the other race. See Schmid, p. 676. - - [130] Ine, 55: a sheep with a lamb until a fortnight after Easter is - worth 1 shilling. Æthelstan, VI. 6: a horse 120 pence, an ox - 30 pence, a cow 20, a sheep 1 shilling (5 pence). Ibid. 8, § - 5: an ox 30 pence. Schmid, App. I. c. 7: a horse 30 shillings, - a mare 20 shillings, an ox 30 pence, a cow 24 pence, a swine 8 - pence, a sheep 1 shilling, a goat 2 pence, a man (i.e. a - slave) 1 pound. Schmid, App. iii. c. 9: a sheep or 3 pence. D. - B. i. 117 b: an ox or 30 pence. D. B. i. 26: Tolls at Lewes; - for a man 4 pence, an ox a halfpenny. This preserves the - equation that we have already seen, namely, 1 slave = 8 oxen. - Thus the full team is worth one pound. On the twelfth century - Pipe Rolls the ox often costs 3 shillings (= 36 pence) or even - more. - - [131] In Leg. Will. Conq. I. 16, we hear of the _forisfacturae_ - (probably the 'insult fines') due to archbishops, bishops, - counts, barons and sokemen; the baron has 10 shillings, the - sokeman 40 pence. In the same document, c. 20, § 2, we read of - the reliefs of counts, barons, vavassors and villeins. Leg. - Edw. Conf. 12, § 4, speaks of the _manbót_ due in the Danelaw; - on the death of a _villanus_ or a _socheman_ 12 ores are paid, - on the death of a _liber homo_ 3 marks. - - [132] D. B. i. 167 b, Heile: 'ibi erant 12 servi quos Willelmus - liberos fecit.' - - [133] D. B. i. 263: 'Si quis liber homo facit opera in die feriato - inde episcopus habet 8 solidos. De servo autem vel ancilla - feriatum diem infringente, habet episcopus 4 solidos.' Compare - Cnut, II. 45. - - [134] D. B. i. 86: 'Huic manerio reddebatur T. R. E. de Cruche per - annum consuetudo, hoc est 6 oves cum agnis totidem, et quisque - liber homo i. blomam ferri.' South Perrott had belonged to the - Confessor, Crewkerne to Edith, probably 'the rich and fair.' - For the description of Cruche see D. B. i. 86 b. As to the - 'bloom' of iron see Ellis, Introduction, i. 136. - - [135] D. B. i. 92. See also p. 87 b, the account of Seveberge. - - [136] D. B. ii. 145. - - [137] D. B. ii. 1: 'In hoc manerio erat tunc temporis quidam liber - homo de dimidia hida qui modo effectus est unus de villanis.' - - [138] Thus D. B. i. 127, Mid.: 'inter francos et villanos 45 - carucae'; Ibid. 70, Wilts: '4 villani et 3 bordarii et unus - francus cum 2 carucis'; Ibid. 241, Warw.: 'Ibi sunt 3 - francones homines cum 4 villanis et 3 bordariis.' Sometimes - _francus_ may be an equivalent for _francigena_; e.g. i. 254 - b, where in one entry we have _unus francigena_ and in the - next _unus francus homo_. But an Englishman may be _francus_; - ii. 54 b 'accepit 15 acras de uno franco teigno et misit cum - terra sua.' However, it is not an insignificant fact that the - very name of Frenchman (_francigena_) must have suggested free - birth. - - [139] For examples see the surveys of Warwick, Stafford and - Shropshire. - - [140] D. B. ii. 260: 'et 7 homines qui possent vendere terram suam - si eam prius obtulissent domino suo.' - - [141] D. B. ii. 278 b: 'si vellent recedere daret quisque 2 - solidos.' Ibid. 207: 'et possent recedere si darent 2 - solidos.' - - [142] D. B. ii. 435: 'Et super Vlnoht habuit commendationem - antecessor R. Malet, teste hundredo, et non potuit vendere nec - dare _de eo_ terram suam.' Ibid. 397: 'viderunt eum iurare - quod non poterat dare [vel] vendere terram suam _ab_ - antecessore Ricardi.' - - [143] D. B. i. 145: 'Hoc manerium tenuit Aluuinus homo Estan, non - potuit dare nec vendere extra Brichelle manerium Estani.' - - [144] D. B. i. 133: 'Hanc terram tenuit Aluric Blac 2 hidas de - Abbate Westmonasterii T. R. E.: non poterat separare ab - aecclesia.' - - [145] D. B. ii. 216 b: 'Ita est in monasterio quod nec vendere nec - forisfacere potest extra ecclesia.' - - [146] For example, D. B. i. 201: 'terram suam vendere potuerunt, - soca vero remansit Abbati.' D. B. ii. 78: 'et poterant vendere - terram set soca et saca remanebat antecessori Alberici.' Ibid. - ii. 92 b: 'unus sochemannus fuit in hac terra de 15 acris quas - poterat vendere, set soca iacebat in Warleia terra S. Pauli.' - - [147] But the _consuetudo_, rent or the like, may 'remain': D. B. - ii. 181 b: 'et possent vendere terram suam set consuetudo - remanebat in manerio.' And so the _commendatio_ may 'remain'; - ii. 357 b: 'Hi poterant dare et vendere terram, set saca et - soca et commendatio remanebant Sancto [Eadmundo].' - - [148] For example, D. B. i. 201: 'Homines Abbatis de Ely fuerunt et - 4 terram suam _vendere potuerunt_, soca vero remansit Abbati, - et quartus 1 virgam et dimidiam habuit et _recedere non - potuit_.' See the important evidence produced by Round, Feudal - England, 24, as to the equivalence of these phrases. - - [149] One of the commonest terms is _recedere_--'potuit - recedere'--'non potuit recedere'; i. 41, 'non potuit cum terra - _recedere ad alium dominum_'; i. 56 b, '10 liberi homines T. - R. E. tenebant 12 hidas et dimidiam de terra eiusdem manerii - sed _inde recedere_ non poterant'; ii. 19 b, 'non poterant - _recedere a terra_ sine licentia Abbatis'; ii. 57 b, 'non - poterant recedere _ab illo manerio_'; ii. 66, 'non poterant - _removere_ ab illo manerio'; ii. 41, 'non poterant _recedere a - soca_ Wisgari'; ii. 41 b, 'nec poterant _abire_ sine iussu - domini'; i. 66 b, 'qui tenuit T. R. E. non poterat ab - aecclesia diverti [separari]'; ii. 116, 'unus [burgensis] erat - ita dominicus ut non posset _recedere nec homagium facere_ - sine licentia [Stigandi]'; ii. 119, 'de istis hominibus erant - 36 ita dominice Regis Edwardi ut non possent _esse homines - cuiuslibet_ sed semper tamen consuetudo regis remanebat preter - herigete.' A remarkable form is, ii. 57 b, 'non potuit istam - terram mittere in aliquo loco nisi in abbatia.' Then 'potuit - ire quo voluit,' 'non potuit ire quolibet' are common enough. - - [150] Ine, c. 39: He who leaves his lord without permission pays - sixty shillings to his lord. - - [151] For example, D. B. i. 41: 'Tres taini tenuerunt de episcopo et - non potuerunt ire quolibet.' - - [152] D. B. i. 35 b, Tornecrosta. - - [153] D. B. i. 212 b, Stanford. - - [154] D. B. i. 249 b: 'Tres taini tenuerunt et liberi homines - fuerunt'; 256, 'Ipsi taini liberi erant'; 259 b, 'Quatuor - taini tenuerunt ante eum et liberi fuerunt.' - - [155] Chron. Abingd. i. 490: 'Nam quidam dives, Turkillus nomine, - sub Haroldi comitis testimonio et consultu, de se cum sua - terra quae Kingestun dicitur, ecclesiae Abbendonensi et abbati - Ordrico homagium fecit; licitum quippe libero cuique, illo in - tempore, sic agere erat.' - - [156] D. B. i. 180 b: 'et poterant ire cum terra quo volebant, et - habebant sub se 4 milites, ita liberos ut ipsi erant.' - - [157] D. B. ii. 59. - - [158] D. B. i. 172: 'si ita liber homo est ut habeat socam suam et - sacam et cum terra sua possit ire quo voluerit.' - - [159] D. B. i. 84 b. - - [160] D. B. ii. 213: 'Hanc terram calumpniatur esse liberam Vlchitel - homo Hermeri, quocunque modo iudicetur, vel bello vel iudicio, - et alius est praesto probare eo modo quod iacuit ad ecclesiam - [S. Adeldredae] die quo rex Edwardus obiit. Set totus - hundretus testatur eam fuisse T. R. E. ad S. Adeldredam.' - - [161] See in particular the survey of Gloucestershire; D. B. i. 165 - b: 'Hoc manerium quietum est a geldo et ab omni forensi - servitio praeter aecclesiae'; Ibid. 'Haec terra libera fuit et - quieta ab omni geldo et regali servitio'; 170, 'Una hida et - dimidia libera a geldo.' When after reading these passages we - come upon the following (167 b), 'Isdem W. tenet Tatinton: - Ulgar tenuit de rege Edwardo: haec terra libera est,' and when - we observe that the land is not hidated, we shall probably - infer that 'This land is free' means 'This land is exempt from - geld, and (perhaps) from all other royal service.' - - [162] Dialogus, i. c. 11; ii. c. 14. - - [163] Dialogus, i. c. 10. - - [164] Will. Conq. I. 30, 31: 'Si les seignurages ne facent altri - gainurs venir a lour terre, la justise le facet.' The Latin - version is ridiculous: 'Si domini terrarum non procurent - _idoneos_ cultores ad terras suas colendas, iustitiarii hoc - faciant.' The translator seems to have been puzzled by the - word _altri_ or _autrui_. - - [165] Ibid. 29. - - [166] Schmid, App. v.; vii., 2, §§ 9-11; Pseudoleges Canuti, 60-1 - (Schmid, p. 431). - - [167] D. B. iv. 497. - - [168] D. B. i. 44 b: 'Istam terram calumpniatur Willelmus de - Chernet, dicens pertinere ad manerium de Cerneford feudum - Hugonis de Port per hereditatem sui antecessoris et de hoc - suum testimonium adduxit de melioribus et antiquis hominibus - totius comitatus et hundredi; et Picot contraduxit suum - testimonium de villanis et vili plebe et de prepositis, qui - volunt defendere per sacramentum vel dei iudicium, quod ille - qui tenuit terram liber homo fuit et potuit ire cum terra sua - quo voluit. Sed testes Willelmi nolunt accipere legem nisi - regis Edwardi usque dum diffiniatur per regem.' It seems - possible that William's witnesses wished to insist on the - ancient rule that the oath of one thegn would countervail the - oaths of six ceorls. This was the old English law (_lex - Edwardi_) on which they relied. - - [169] D. B. ii. 393: 'et 5 villani de eodem manerio testantur ei et - offerunt legem qualem quis iudicaverit; set dimidium hundret - de Gepeswiz testantur quod hoc iacebat ad ecclesiam T. R. E. - et Wisgarus tenebat et offert derationari.' - - [170] Schmid, App. vi.; Leg. Hen. 61 § 2: 'thaini iusiurandum - contravalet iusiurandum sex villanorum.' - - [171] Leg. Hen. 29, § 1. - - [172] Hist. Eng. Law, i. 344. - - [173] Dialogus, i. c. 11. - - [174] D. B. i. 67 b: 'De terra villanorum dedit abbatissa uni militi - 3 hidas et dimidiam.' Ibid. 89: 'tenet Johannes de episcopo 2 - hidas de terra villanorum.' Ibid. i. 169: 'unus francigena - tenet terram unius villani.' Ibid. 164: 'In Sauerna 11 - piscariae in dominio et 42 piscariae villanorum.' Ibid. 230: - 'Silva dominica 1 leu. long. et dim. leu. lat. Silva - villanorum 4 quarent. long. et 3 quarent. lat.' Ibid. 7 b: '5 - molini villanorum.' We have not seen _dominicum_ used as a - substantive; but in the Exon. D. B. iv. 75 we have - _dominicatus Regis_, for the king's demesne. There is already - a slight ambiguity about the term _dominium_. We may say that - a church has a manor _in dominio_, meaning thereby that the - manor as a whole is held by the church itself and is not held - of it by any tenant; and then we may go on to say that only - one half of the land comprised in this manor is held by the - church _in dominio_. Cf. Hist. Eng. Law, ii. 126. - - [175] For example, D. B. i. 159: 'Nunc in dominio 3 carucae et 6 - servi, et 26 villani cum 3 bordariis et 15 liberi homines - habent 30 carucas.' Ibid. 165: 'In dominio 2 carucae et 9 - villani et 6 bordarii et presbyter et unus rachenistre cum 10 - carucis.' Ibid. 258 b: 'et 3 villani et 2 bordarii et 2 - francigenae cum 2 carucis.' But such entries are common - enough. - - [176] Round, Domesday Studies, i. 97. - - [177] D. B. i. 28: 'Ipse Willelmus de Braiose tenet Wasingetune.... - De hac terra tenet Gislebertus dim. hidam, Radulfus 1 hidam, - Willelmus 3 virgas, Leuuinus dim. hidam qui potuit recedere - cum terra sua et dedit geldum domino suo et dominus suus - nichil dedit.' - - [178] D. B. i. 163, 163 b. - - [179] D. B. i. 121: 'Omnes superius descriptas terras tenebant T. R. - E. S. Petrocus; huius sancti terrae nunquam reddiderunt geldum - nisi ipsi aecclesiae.' D. B. iv. 187: 'Terrae S. Petrochi - nunquam reddiderunt gildum nisi sancto.' - - [180] D. B. ii. 372: 'Et quando in hundreto solvitur ad geldum 1 - libra tunc inde exeunt 60 denarii ad victum monachorum.' - - [181] Cnut, II. 79: 'And se þe land gewerod hæbbe be scire - gewitnisse....' The A.-S. _werian_ is just the Latin - _defendere_. - - [182] Heming, Cartulary, i. 278; Round, Domesday Studies, i. 89. - Compare the story in D. B. i. 216 b: Osbern or Osbert the - fisherman claims certain land as having belonged to his - 'antecessor'; 'sed postquam rex Willelmus in Angliam venit, - ille gablum de hac terra dare noluit et Radulfus Taillgebosc - gablum dedit et pro forisfacto ipsam terram sumpsit et cuidam - suo militi tribuit.' - - [183] D. B. iv. 245, Cruca. - - [184] See above p. 54, note 175. - - [185] D. B. i. 163: 'Ibi erant villani 21 et 9 rachenistres habentes - 26 carucas et 5 coliberti et unus bordarius cum 5 carucis. Hi - rachenistres arabant et herciabant ad curiam domini.' Ibid. - 'Ibi 19 liberi homines rachenistres habentes 48 carucas cum - suis hominibus.' Ibid. 166: 'De terra huius manerii tenebant - radchenistres, id est liberi homines, T. R. E., qui tamen - omnes ad opus domini arabant et herciabant et falcabant et - metebant.' - - [186] D. B. i. 186, Ewias. - - [187] D. B. i. 180. - - [188] D. B. i. 179 b. - - [189] D. B. i. 179 b. - - [190] D. B. i. 174 b. - - [191] D. B. i. 246 b. So the burgesses of Steyning (i. 17) 'ad - curiam operabantur sicut villani T. R. E.' - - [192] D. B. i. 219. - - [193] D. B. i. 174 b: 'Ipsi radmans secabant una die in anno et omne - servitium quod eis iubebatur faciebant.' The position of these - tenants will be discussed hereafter in connexion with St. - Oswald's charters. - - [194] D. B. i. 16 b: 'De herbagio, unus porcus de unoquoque villano - qui habet septem porcos.' In the margin stands 'Similiter per - totum Sussex.' - - [195] D. B. i. 12 b: 'Ibi tantum silvae unde exeunt de pasnagio 40 - porci aut 54 denarii et unus obolus.' Ibid. 191 b: 'De - presentacione piscium 12 solidi et 9 denarii.' Ibid. 117 b: - 'aut unum bovem aut 30 denarios.' - - [196] See above p. 56. - - [197] D. B. i. 12 b. - - [198] D. B. i. 11 b, Hamestede. - - [199] D. B. i. 117 b, Colun. - - [200] D. B. i. 127, Stibenhede. - - [201] D. B. i. 179 b, Lene. - - [202] D. B. i. 12 b, Norborne. - - [203] D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli.... Hoc - manerium tenent villani ad firmam canonicorum. In dominio nil - habetur.' - - [204] See above p. 36. - - [205] This matter will be discussed when we deal with St. Oswald's - charters. - - [205] Schmid, p. 263 (note). This document is Dr Liebermann's - Instituta Cnuti (Trans. Roy. Hist. Soc. vii. 77). - - [207] Schmid, App. II. 57-9. - - [208] For the rest, the word _túnesman_ appears in Edgar IV. 8, 13, - in connexion with provisions against the theft of cattle. - - [209] D. B. i. 259, 259 b. - - [210] Leg. Will. I. 29. - - [211] D. B. ii. 360 b: 'Hanc terram habet Abbas in vadimonio pro - duabus marcis auri concessu Engelrici quando redimebant - Anglici terras suas.' Sometimes the Englishman gets back his - land as a bedesman: i. 218, 'Hanc terram tenuit pater huius - hominis et vendere poterit T. R. E. Hanc rex Willelmus in - elemosina eidem concessit'; i. 211, 'Hanc terram tenuit Avigi - et potuit dare cui voluit T. R. E. Hanc ei postea rex - Willelmus concessit et per breve R. Tallebosc commendavit ut - eum servaret'; i. 218 b, a similar case. - - [212] Dialogus, i. c. 10; Bracton, f. 7. On both passages see - Vinogradoff, Villainage, p. 121. - - [213] D. B. ii. 1: 'In hoc manerio erat tunc temporis quidam liber - homo ... qui modo effectus est unus de villanis.' - - [214] D. B. i. 148 b: 'In Merse tenet Ailric de Willelmo 4 hidas pro - uno manerio.... Istemet tenuit T. R. E. sed modo tenet ad - firmam de Willelmo graviter et miserabiliter.' - - [215] D. B. i. 141: 'Hanc terram sumpsit Petrus vicecomes de isto - sochemanno Regis Willelmi in manu eiusdem Regis pro - forisfactura de gildo Regis se non reddidisse ut homines sui - dicunt. Sed homines de scira non portant vicecomiti - testimonium, quia semper fuit quieta de gildo et de aliis erga - Regem quamdiu tenuit, testante hundret.' - - [216] D. B. i. 30: 'Ricardus de Tonebrige tenet de hoc manerio unam - virgatam cum silva unde abstulit rusticum qui ibi manebat.' - - [217] D. B. ii. 282 b: 'et istam consuetudinem constituit illis - Aluricus prepositus in tempore R. Bigot.' - - [218] D. B. ii. 284 b. - - [219] D. B. ii. 84 b. - - [220] D. B. ii. 353 b: 'omnes fuerunt confusi.' - - [221] D. B. ii. 440 b: 'sed homines inde fuerunt confusi.' - - [222] D. B. i. 65, Aldeborne. - - [223] D. B. ii. 18, Berdringas. - - [224] D. B. ii. 88 b, Tachesteda. - - [225] Ellis, Introduction, ii. 428. We give Ellis's figures, but - think that he has exaggerated the number of sokemen who were - to be found in 1086. - - [226] We make considerably more than 900 by counting only those who - are expressly described as sokemen and excluding the many - persons who are simply described as _homines_ capable of - selling their land. - - [227] Hamilton, Inquisitio, 65. - - [228] Hamilton, Inquisitio, 77. - - [229] Thus e.g. D. B. ii. 87 b: 'Hidingham tenet Garengerus de - Rogero pro 25 acris quas tenuerunt 15 liberi homines T. R. E.' - - [230] D. B. i. 31. - - [231] D. B. i. 31 b: 'Et 10 hidas tenebant alodiarii villae.' - - [232] D. B. i. 10 b. - - [233] D. B. i. 13, Essella. - - [234] D. B. i. 24. - - [235] D. B. 83, 83 b. - - [236] Vinogradoff, Villainage, 89 ff.; Hist. Engl. Law, i. 366 ff. - - [237] D. B. i. 189 b. - - - - -§ 4. _The Sokemen._ - - -[The _sochemanni_ and _liberi homines_.] - -Now of a large part of England we may say that all the occupiers of land -who are not holding 'manors[238]' will belong to some of those classes -of which we have already spoken. They will be villeins, bordiers, -cottiers, 'boors' or serfs. Here and there we may find a few persons who -are described as _liberi homines_. In some of the western counties, -Gloucester, Worcester, Hereford, Shropshire, there are _rachenistres_ or -_radmans_; between the Ribble and the Mersey we may find a party of -_drengs_. Still it is generally true that two of those five classes that -seem to have been mentioned in King William's writ[239], the -_sochemanni_ and the _liberi homines_, are largely represented only in -certain counties. They are to be seen in Essex, yet more thickly in -Suffolk and Norfolk. In Lincolnshire nearly half of the rural population -consists of sokemen, though there is no class of persons described as -_liberi homines_. There are some sokemen in Yorkshire, but they are not -very numerous and there are hardly any _liberi homines_. We have seen -how in Cambridgeshire and Bedfordshire the sokemen have fared ill; but -still some are left there. Traces of them may be found in Hertford and -Buckingham; they are thick in Leicester, Nottingham and Northampton; -there are some in Derbyshire. There have been sokemen in Middlesex[240] -and in Surrey[241]; but they have been suppressed; a few remain in -Kent[242]; so we should be rash were we to find anything -characteristically Scandinavian in the sokemen. Even in Suffolk they are -suffering ill at the hands of their new masters[243], while in -Cambridgeshire, Bedfordshire, Hertfordshire they have been suppressed or -displaced. - -[Lord and man.] - -We have now to enter on a difficult task, a discussion of the relation -which exists between these _sochemanni_ and _liberi homines_ on the one -hand and their lord upon the other. The character of this relation -varies from case to case. We may distinguish three different bonds by -which a man may be bound to a lord, a personal bond, a tenurial bond, a -jurisdictional or justiciary bond. But the language of Domesday Book is -not very patient of this analysis. However in the second volume we very -frequently come upon two ideas which are sharply contrasted with each -other; the one is expressed by the term _commendatio_, the other by the -term _soca_[244]. To these we must add the great vague term -_consuetudo_, and we shall also have to consider the phrases which -describe the various degrees of that freedom of 'withdrawing himself -with his land' that a man may enjoy. - -[Bonds between lord and man.] - -In order that we may become familiar with the use made of these terms -and phrases we will transcribe a few typical entries: - - Two free men, of whom Ælfwin had not even the commendation[245]. - - Of these men Harold had not even the commendation[246]. - -Thus commendation seems put before us as the slightest bond that there -can be between lord and man. Very often we are told that the lord had -the commendation and nothing more[247]. Thus it is contrasted with the -soke:-- - - His predecessor had only the commendation of this, and Harold had - the soke[248]. - - Of these six free men St Benet had the soke, and of one of them the - commendation[249]. - -And the commendation is contrasted with the 'custom,' the _consuetudo_, -perhaps we might say the 'service':-- - - Of the said sokeman Ralph Peverel had a custom of 3 shillings a - year, but in the Confessor's time his ancestor had only the - commendation[250]. - - R. Malet claims 18 free men, 3 of them by commendation, and the - rest for all custom[251]. - -And the soke is contrasted with the _consuetudo_:-- - - To this manor belong 4 men for all custom, and other 4 for soke - only[252]. - -In a given case all these bonds may be united:-- - - There are 7 sokemen who are the Saint's men with sake and soke and - all custom[253]. - - Over this man the Saint has sake and soke and commendation with all - custom[254]. - -Then if the man 'withdraws,' or gives or sells his land, we often read -of the soke 'remaining'; we sometimes read of the commendation, the -custom, the service 'remaining.' - - These free men could sell or give their land, but the commendation - and the soke and sake would remain to St Edmund[255]. - - These men could sell their land, but the soke would remain to the - Saint and the service (_servitium_), whoever might be the - buyer[256]. - - They could give and sell their land, but the soke and the - commendation and the service would remain to the Saint[257]. - -But after all, these distinctions are not maintained with rigour, for -the soke is sometimes spoken of as though it were a species of -_consuetudo_. We have a tangled skein in our hands. - -[Commendation.] - -The thread that looks as if it would be the easiest to unravel, is that -which is styled 'mere commendation.' The same idea is expressed -by other phrases--'he committed himself to Bishop Herman for his -defence[258]'--'they submitted themselves with their land to the abbey -for defence[259]'--'he became the man of Goisfrid of his own free -will[260]'--'she put herself with her land in the hand of the -queen[261].' 'Homage' is not a common term in Domesday Book, but if, -when speaking of the old time, it says, as it constantly does, that one -person was the man of another, no doubt it is telling us of a -relationship which had its origin in an oath and a symbolic -ceremony[262]. 'She put herself into the hands of the queen'--we should -take these words to mean just what they say. An Anglo-Saxon oath of -fealty (_hyldáð_) has been preserved[263]. The swearer promises to be -faithful and true to his lord, to love all that his lord loves and -eschew all that his lord eschews. He makes no distinct reference to any -land, but he refers to some compact which exists between him and his -lord:--He will be faithful and true on condition that his lord treats -him according to his deserts and according to the covenant that has been -established between them. - -[Commendation and protection.] - -To all seeming there need not be any land in the case; and, if the man -has land, the act of commendation will not give the lord as a matter of -course any rights in that land. Certainly Domesday Book seems to assume -that in general every owner or holder of land must have had a lord. This -assumption is very worthy of notice. A law of Æthelstan[264] had said -that lordless men 'of whom no right could be had' were to have lords, -but this command seems aimed at the landless folk, not at those whose -land is a sufficient surety for their good behaviour. The law had not -directly commanded the landed men to commend themselves, but it had -supplied them with motives for so doing[265]. What did a man gain by -this act of submission? Of advantages that might be called 'extra-legal' -we will say nothing, though in the wild days of Æthelred the Unready, -and even during the Confessor's reign, there was lawlessness enough to -make the small proprietor wish that he had a mightier friend than the -law could be. But there were distinct legal advantages to be had by -commendation. In the first place, the life of the great man's man was -protected not only by a _wer-gild_, but by a _man-bót_:--a _man-bót_ due -to one who had the power to exact it; and if, as one of our authorities -assures us, the amount of the _man-bót_ varied with the rank of the -lord[266], this would help to account for a remarkable fact disclosed by -Domesday Book, namely, that the chosen lord was usually a person of the -very highest rank, an earl, an archbishop, the king. Then, again, if the -man got into a scrape, his lord might be of service to him. Suppose the -man accused of theft: in certain cases he might escape with a single, -instead of a triple ordeal, if he had a lord who would swear to his good -character[267]. In yet other cases his lord would come forward as his -compurgator; perhaps he was morally bound to do so; and, being a man of -high rank, would swear a crushing oath. And within certain limits that -we can not well define the lord might warrant the doings of his man, -might take upon himself the task of defending an action to which his man -was subjected[268]. What the man has sought by his submission is -_defensio_, _tuitio_; the lord is his _defensor_, _tutor_, _protector_, -_advocatus_, in a word, his warrantor[269]. - -[Commendation and warranty.] - -Of warranty we are accustomed to think chiefly in connexion with the -title to land:--the feoffor warrants the feoffee in his enjoyment of the -tenement. But to all appearance in the eleventh century it is rather as -lord than as giver, seller or lender, that the vouchee comes to the -defence of his man. If the land is conceived as having once been the -warrantor's land, this may be but a fiction:--the man has given up his -land and then taken it again merely in order that he may be able to say -with some truth that he has it by his lord's gift. But we can not be -sure that as yet any such fiction is necessary. 'I will defend any -action that is brought against you for this land':--as yet men see no -reason why such a promise as this, if made with due ceremony, should not -be enforced. A certain amount of 'maintenance' is desirable in their -eyes and laudable. - -[Commendation and tenure.] - -Though we began with the statement that where there is commendation -there may yet be no land in the case, we have none the less been already -led to the supposition that often enough land does get involved in this -nexus between man and lord. No doubt a landless man may commend himself -and get no land in return for his homage; but with such an one Domesday -Book is not concerned. The cases in which it takes an interest are those -in which a landholder has commended himself. Now we dare not say that a -landholder can never commend himself without commending his land -also[270]. Howbeit, the usual practice certainly is that a man who -submits or commits himself for 'defence' or 'protection' shall take his -land with him; he 'goes with his land' to a lord. Very curious are some -of the instances which show how large a liberty men have enjoyed of -taking land wherever they please. 'Tostig bought this land from the -church of Malmesbury for three lives':--in this there is nothing -strange; leases for three lives granted by churches to thegns have been -common. But of course we should assume that during the lease the land -could have no other lord than the church of Malmesbury. Not so, however, -for during his lease Tostig 'could go with that land to whatever lord he -pleased[271].' In Essex there was before the Conquest a man who held -land; that land in some sort belonged to the Abbey of Barking, and could -not be separated from the abbey; but the holder of it was the man -('merely the man' say the jurors) of one Leofhild the predecessor of -Geoffrey de Mandeville[272]. In this last case we may satisfy ourselves -by saying that a purely personal relation is distinguished from a -tenurial relation; the man of Leofhild is the tenant of the abbey. But -what of Tostig's case? Land that he holds of the church of Malmesbury, -and that too by no perpetual tenure, he can commend to another lord. -From the man's point of view, protection, defence, warranty, is the -essence of commendation, and the warranty that he chiefly needs is the -warranty of his possession, of the title by which he holds his land. It -can not but be therefore that the lord to whom he commends himself and -his land, should be in some sort his landlord. - -[The lord's interest in commendation.] - -Not that he need pay rent, or perform other services in return for the -land. The land is his land; he has not obtained it from his lord; on the -contrary he has carried it to his lord. Mere commendation is therefore -distinguished by a score of entries from a relation that involves the -payment of _consuetudines_. Doubtless however the lord obtains 'a -valuable consideration' for all that he gives. Part of this will -probably lie without the legal sphere. He has a sworn retainer who will -fight whenever he is told to fight. But even the law allows the man to -go great lengths in his lord's defence[273]. In a rough age happy is -the lord who has many sworn to defend him. When at a later time we see -that the claimant of land must offer proof 'by the body of a certain -free man of his,' we are taught that the lords have relied upon the -testimony and the strong right arms of their vassals. That in all cases -the lord got more than this we can not say, though perhaps commendation -carried with it the right to the heriot, the horse and armour of the -dead man[274]. The relation is often put before us as temporary. -Numerous are the persons who 'can seek lords where they choose' or who -can 'go with their land wherever they please.' How large a liberty these -phrases accord to lord and man it were hard to tell. We can not believe -that either party to the contract could dissolve it just at the moment -when the other had some need to enforce it; but still at other times the -man might dissolve it, and we may suppose that the lord could do so too. -But the connexion might be of a more permanent kind. Perhaps in most -cases in which we are told that a man can not withdraw his land from his -lord the bond between them is regarded as something other than -commendation--there is commendation and something more. But this is no -universal truth. You might be the lord's man 'merely by commendation' -and yet be unable to sell your land without the lord's leave[275]. At -any rate, in one way and another 'the commendation' is considered as -capable of binding the land. The commended man will be spoken of as -holding the land under (_sub_) his lord, if not of (_de_) his lord[276]. -In many cases if he sells the land 'the commendation will remain to his -lord'--by which is meant, not that the vendor will continue to be the -man of that lord (for the purposes of the Domesday Inquest this would -be a matter of indifference) but that the lord's rights over the land -are not destroyed. The purchaser comes to the land and finds the -commendation inhering in it[277]. - -[The seignory over the commended.] - -And so, again, the lord's rights under the commendation seem to -constitute an alienable and heritable seignory. It is thus that we may -best explain the case, very common in East Anglia, in which a man is -commended half to one and half to another lord[278]. Thus we read of a -case in which a free man was commended, as to one-third to Wulfsige, and -as to the residue to Wulfsige's two brothers[279]. In this instance it -seems clear that the commendation has descended to three co-heirs. In -other cases a lord may have made over his rights to two religious -houses; thus we hear of a man who is common to the Abbots of Ely and -St. Edmund's[280]. In some cases a man may, in others he may not, be -able to prevent himself being transferred from lord to lord, or from -ancestor to heir. What passes by alienation or inheritance may be -regarded rather as a right to his commendation than as the commendation -itself[281]. Of course there is nothing to hinder one from being the man -of several different lords. Ælfric Black held lands of the Abbot of -Westminster which he could not separate from the church, but for other -lands he was the man of Archbishop Stigand[282]. Already a lofty edifice -is being constructed; _B_, to whom _C_ is commended, is himself -commended to _A_; and in this case a certain relation exists between _C_ -and _A_; _C_ is 'sub-commended' to _A_[283]. - -[Commendation and service.] - -In a given case the somewhat vague obligation of the commended man may -be rendered definite by a bargain which imposes upon him the payment of -rent or the performance of some specified services. When this is so, we -shall often find that the land is moving, if we may so speak, not from -the man but from the lord. The man is taking land from the lord to hold -during good behaviour[284], or for life[285], or for lives. A form of -lease or loan (_l[´æ]n_) which gives the land to the lessee and to two or -three successive heirs of his, has from of old been commonly used by -some of the great churches[286]. Also we see landowners giving up their -land to the churches and taking it back again as mere life tenants. -During their lives the church is to have some 'service,' or at least -some 'recognition' of its lordship, while after their deaths the church -will have the land in demesne[287]. This is something different from -mere commendation. We see here the _feuda oblata_ or _beneficia oblata_ -which foreign jurists have contrasted with _feuda_ or _beneficia data_. -The land is brought into the bargain by the man, not by the lord. But -often the land comes from the lord, and the tenancy is no merely -temporary tenancy; it is heritable. The king has provided his thegns -with lands; the earls, the churches have provided their thegns with -lands, and these thegns have heritable estates, and already they are -conceived as holding them of (_de_) the churches, the earls, the king. -But we must not as yet be led away into any discussion about the -architecture of the very highest storeys of the feudal or vassalic -edifice. It must at present suffice that in humbler quarters there has -been much letting and hiring of land. The leases, if we choose to call -them so, the gifts, if we choose to call them so, have created heritable -rights and perdurable relationships. - -[Land-loans and services.] - -There is no kind of service that can not be purchased by a grant or -lease of land. Godric's wife had land from the king because she fed his -dogs[288]. Ælfgyfu the maiden had land from Godric the sheriff that she -might teach his daughter orfrey work[289]. The monks of Pershore -stipulate that their dominion shall be recognized by 'a day's farm' in -every year, that is, that the lessee shall once a year furnish the -convent with a day's victual[290]. The king's thegns between the Ribble -and the Mersey have 'like villeins' to make lodges for the king, and -fisheries and deer-hays, and must send their reapers to cut the king's -crops at harvest time[291]. The radmen and radknights of the west must -ride on their lord's errands and make themselves generally useful; they -plough and harrow and mow, and do whatever is commanded them[292]. - -[The man's _consuetudines_.] - -But we would here speak chiefly of the lowly 'free men' and sokemen of -the eastern counties. Besides having their commendation and their soke, -the lord very often has what is known as their _consuetudo_ or their -_consuetudines_. Often they are the lord's men _de omni consuetudine_. -In all probability the word when thus employed, when contrasted with -commendation on the one hand and with soke on the other, points to -payments and renders to be made in money and in kind and to services of -an agricultural character. Of such services only one stands out -prominently; it is very frequently mentioned in the survey of East -Anglia; it is fold-soke, _soca faldae_. The man must not have a fold of -his own; his sheep must lie in the lord's fold. It is manure that the -lord wants; the demand for manure has played a large part in the history -of the human race. Often enough this is the one _consuetudo_, the one -definite service, that the lord gets out of his free men[293]. And then -a man who is _consuetus ad faldam_, tied to his lord's fold, is hardly -to be considered as being in all respects a 'free' man. Those who are -not 'fold-worthy' are to be classed with those who are not 'moot-worthy' -or 'fyrd-worthy.' We are tempted to say that a man's _caput_ is -diminished by his having to seek his lord's fold, just as it would be -diminished if he were excluded from the communal courts or the national -host[294]. From the nature of this one _consuetudo_ and from the -prominence that is given to it, we may guess the character of the other -_consuetudines_. Suit to the lord's mill would be analogous to suit to -his fold[295]. Of 'mill-soke' we read nothing, but often enough a -surprisingly large part of the total value of a manor is ascribed to its -mill, and we may argue that the lord has not invested capital in a -costly undertaking without making sure of a return. We may well suppose -that like the radmen of the west the free men and sokemen of the east -give their lord some help in his husbandry at harvest time. From a -document which comes to us from the abbey of Ely, and which is slightly -older than the Domesday Inquest, we learn that certain of St. -Etheldreda's sokemen in Suffolk had nothing to do but to plough and -thresh whenever the abbot required this of them; others had to plough -and weed and reap, to carry the victual of the monks to the minster and -furnish horses whenever called upon to do so[296]. This seems to point -rather to 'boon-days' than to continuous 'week-work,' and we observe -that the sokemen of the east like the radmen of the west have horses. -Occasionally we learn that a sokeman has to pay an annual sum of money -to his lord; sometimes this looks like a substantial rent, sometimes -like a mere 'recognition'; but the words that most nearly translate our -'rent,' _redditus_, _census_, _gablum_ are seldom used in this context. -All is _consuetudo_. - -[Nature of _consuetudines_.] - -It is an interesting word. We perhaps are eager to urge the dilemma that -in these cases the land must have been brought into the bargain either -by the lord or by the tenant:--either the lord is conceived as having -let land to the tenant, or the theory is that the tenant has commended -land to the lord. But the dilemma is not perfect. It may well be that -this relationship is thought of as having existed from all time; it may -well be that this relationship, though under slowly varying forms, has -really existed for several centuries, and has had its beginning in no -contract, in no bargain. In origin the rights of the lord may be the -rights of kings and ealdormen, rights over subjects rather than rights -over tenants. The word _consuetudo_ covers taxes as well as rents, and, -if the sokeman has to do work for his lord, very often, especially in -Cambridgeshire and Hertfordshire, he has to do work for the king or for -the sheriff also. If he has to do carrying service for the lord, he has -to do carrying service (_avera_) for the sheriff also or in lieu thereof -to pay a small sum of money[297]. And another aspect of this word -_consuetudo_ is interesting to us. Land that is burdened with customs is -customary land (_terra consuetudinaria_)[298]. As yet this term does not -imply that the tenure, though protected by custom, is not protected by -law; there is no opposition between law and custom; the customary tenant -of Domesday Book is the tenant who renders customs, and the more customs -he renders the more customary he is[299]. - -[Justiciary _consuetudines_.] - -This word _consuetudo_ is the widest of words. Perhaps we find the best -equivalent for _consuetudines_ in our own vague 'dues[300].' It covers -what we should call rents; it covers what we should call rates and -taxes; but further it covers what we should call the proceeds and -profits of justice. Let us construe a few entries. At Romney there are -burgesses who in return for the service that they do on the sea are quit -of all customs except three, namely, larceny, peace-breach and -ambush[301]. In Berkshire King Edward gave to one of his foresters half -a hide of land free from all custom, except the king's forfeiture, such -as larceny, homicide, hám-fare and peace-breach[302]. In what sense can -a crime be a custom? In a fiscal sense. A crime is a source of revenue. -In what sense should we wish to have our land free of crimes, free even, -if this be possible, of larceny and homicide? In this sense:--we should -wish that no money whatever should go out of our land, neither by way of -rent, nor by way of tax, rate, toll, nor yet again by way of -_forisfactura_, of payment for crime committed. We should wish also that -our land with the tenants on it should be quit or quiet (_quieta_) from -the incursions of royal and national officers, whether they be in search -of taxes or in search of criminals and the fines due from criminals, and -we should also like to put those fines in our own pockets. Justice -therefore takes its place among the _consuetudines_: 'larceny' is a -source of income. A lord who has 'his customs,' is a lord who has among -other sources of revenue, justice or the profits of justice[303]. -'Justice or the profits of justice,' we say, for our record does not -care to distinguish between them. It is thinking of money while we are -engaged in questioning it about the constitution and competence of -tribunals. It gives us but crooked answers. However, we must make the -best that can be made of them, and in particular must form some opinion -about the _consuetudines_ known as _sake_ and _soke_. - - -FOOTNOTES: - - [238] We shall see hereafter that some of these so-called 'manors' - are but small plots and their holders small folk. - - [239] See above p. 24. - - [240] D. B. i. 128 b, 129, 129 b. - - [241] D. B. i. 34, 35 b. - - [242] D. B. i. 13. - - [243] D. B. ii. 287. There are free men, apparently 120 in number, - of whom it is written: 'Hii liberi homines qui tempore regis - Eduardi pertinebant in soca de Bercolt, unusquisque gratis - dabat preposito per annum 4 tantum denarios, et reddebat socam - sicut lex ferebat, et quando Rogerius Bigot prius habuit - vicecomitatum statuerunt ministri sui quod redderent 15 libras - per annum, quod non faciebant T. R. E. Et quando Robertus - Malet habuit vicecomitatum sui ministri creverunt illos ad 20 - libras. Et quando Rogerius Bigot eos rehabuit dederunt - similiter 20 libras. Et modo tenet eos Aluricus Wanz tali - consuetudine qua erant T. R. E.' This is a rare instance of a - reestablishment of the _status quo ante conquestum_. - - [244] Compare Round, Feudal England, 33. - - [245] D. B. ii. 187 b: 'Ex his non habuit Ailwinus suus antecessor - etiam commendationem.' - - [246] D. B. ii. 287: 'De his hominibus ... non habuit Haroldus etiam - commendationem.' - - [247] D. B. ii. 153 b: 'Unde suus antecessor habuit commendationem - tantum.' Ibid. 154: 'Alstan liber homo Edrici commend[atione] - tantum.' - - [248] D. B. ii. 161 b. - - [249] D. B. ii. 244. - - [250] D. B. ii. 6: 'De predicto sochemano habuit Rad. Piperellus - consuetudinem in unoquoque anno per 3 solidos, set in T. R. E. - non habuit eius antecessor nisi tantum modo commendationem.' - - [251] D. B. ii. 171 b: 'Calumpniatur R. Malet 18 liberos homines, 3 - commendatione et alios de omni consuetudine.' - - [252] D. B. ii. 250 b: 'Huic manerio adiacent semper 4 homines de - omni consuetudine et alii 4 ad socham tantum.' - - [253] D. B. ii. 356 b. - - [254] D. B. ii. 357. - - [255] D. B. ii. 353 b. - - [256] D. B. ii. 362: 'set soca remaneret sancto et servitium - quicunque terram emeret.' - - [257] D. B. ii. 358. - - [258] D. B. i. 58: 'Pater Tori tenuit T. R. E. et potuit ire quo - voluit sed pro sua defensione se commisit Hermanno episcopo et - Tori Osmundo episcopo similiter.' - - [259] D. B. i. 32 b: 'set pro defensione se cum terra abbatiae - summiserunt.' - - [260] D. B. ii. 62 b: 'et T. R. W. effectus est homo Goisfridi - sponte sua.' - - [261] D. B. i. 36 b: 'T. R. W. femina quae hanc terram tenebat misit - se cum ea in manu reginae.' Ibid. 36: 'Quidam liber homo hanc - terram tenens et quo vellet abire valens commisit se in - defensione Walterii pro defensione sua.' - - [262] D. B. ii. 172: 'Hos calumpniatur Drogo de Befrerere pro - homagio tantum.' This seems equivalent to the common - 'commendatione tantum.' D. B. i. 225 b: 'fuerunt homines - Burred et iccirco G. episcopus clamat hominationem eorum.' - - [263] Schmid, App. x. - - [264] Æthelst. II. 2. - - [265] Also it had declared that every man must have a pledge, and - probably the easiest way of fulfilling this command was to - place oneself under a lord who would put one into a tithing. - - [266] Leg. Edw. Conf. 12, § 5; but this is contradicted by Leg. - Henr. 87, § 4. - - [267] Æthelr. I. 1, § 2; compare Æthelr. III. 3, § 4. - - [268] Leg. Hen. 82, § 6; 85, § 2. - - [269] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' Ibid. - 103: 'vocavit Ilbodonem ad tutorem et postea non adduxit - tutorem.' Ibid. 31 b: 'revocat eam ad defensorem.' D. B. i. - 141 b: 142: 'sed Harduinus reclamat Petrum vicecomitem ad - protectorem.' Ibid. 227 b: 'et dicit regem suum advocatum - esse.' - - [270] D. B. ii. 71 b: 'Phenge tenet idem Serlo de R[anulfo - Piperello] quod tenuit liber homo ... qui T. R. W. effectus - est homo antecessoris Ranulfi Piperelli, set terram suam sibi - non dedit.' This however is not quite to the point. - - [271] D. B. i. 72: 'Toti emit eam T. R. E. de aecclesia - Malmesburiensi ad etatem trium hominum et infra hunc terminum - poterat ire cum ea ad quem vellet dominum.' - - [272] D. B. ii. 57 b: 'Et haec terra quam modo tenet G. fuit in - abbatia de Berchingis sicuti hundret testatur; set ille qui - tenuit hanc terram fuit tantum modo homo [Leuild] antecessoris - Goisfridi et non potuit istam terram mittere in aliquo loco - nisi in abbatia.' - - [273] Leg. Hen. 82, § 3. - - [274] D. B. ii. 118 b: 'In burgo [de Tetfort] autem erant 943 - burgenses T. R. E. De his habuit Rex omnem consuetudinem. De - istis hominibus erant 36 ita dominice Regis E. ut non possent - esse homines alicuius sine licentia Regis. Alii omnes poterant - esse homines cuiuslibet set semper tamen consuetudeo Regis - remanebat _preter herigete_.' Compare D. B. i. 336 b, - Stamford: 'In his custodiis sunt 72 mansi sochemanorum, qui - habent terras suas in dominio, et qui petunt dominos ubi - volunt, super quos Rex nichil aliud habet nisi emendationem - forisfacturae eorum et heriete et theloneum.' In this case - commendation would not carry the heriot with it. - - [275] D. B. ii. 201: 'Liber homo de 80 acris terrae Almari episcopi - et Alwoldi abbatis commend[atione] tantum, et hic homo erat - ita in monasterio quod non potuit dare terram suam nec - vendere.' See another entry of the same kind on the same page. - - [276] D. B. i. 50 b: 'Hic Alwinus tenuit hanc terram T. R. E. sub - Wigoto pro tuitione; modo tenet eam sub Milone.' - - [277] For example, D. B. ii. 353 b: 'Hii poterant dare et vendere - terram suam T. R. E. set commend[atio] et soca et saca - remanebat S. Edmundo.' - - [278] D. B. ii. 182 b: 'Ulchetel habuit dimidiam commendationem de - illo T. R. E. et de uxore ipsius totam commendationem.' Ibid. - 249 b: 'Medietas istius hominis fuit antecessoris Baingnardi - commendatione tantum et alia medietas S. Edmundi cum dimidia - terra.' The contrast between _dimidii homines_ and _integri - homines_ is common enough. See D. B. ii. 309: one man has a - sixth and another five-sixths of a commendation. - - [279] D. B. ii. 333 b. - - [280] D. B. ii. 125 b. - - [281] D. B. i. 58. Tori 'committed himself for defence' to Bp. - Herman; Tori's son has done the same to Osmund, the successor - of Herman. - - [282] D. B. i. 133: 'sed pro aliis terris homo archiepiscopi - Stigandi fuit.' - - [283] On the whole this seems to be the meaning of - 'sub-commendation.' We read a good deal of men who were - sub-commended to the _antecessor_ of Robert Malet. This seems - to be explained by such an entry as the following (ii. 313 b): - 'Eadric holds two free men who were commended to Eadric, who - himself was commended to (another) Eadric, the _antecessor_ of - Robert Malet.' - - [284] D. B. i. 45 b: 'Quidam frater Edrici tenuit tali conventione, - quod quamdiu bene se haberet erga eum [Edricum] tamdiu terram - de eo teneret, et si vendere vellet, non alicui nisi ei de quo - tenebat vendere vel dare liceret.' - - [285] Cases of life tenancies will be found in D. B. i. 47, - Stantune; 67 b, Newetone; 80, Catesclive; 177 b, Witune; ii. - 373, 444 b. - - [286] D. B. i. 46 b, 66 b, 72, 175. We shall return to this when in - the next essay we speak of _loanland_. - - [287] D. B. i. 67 b: 'Hanc terram reddidit sponte sua aecclesiae - Hardingus qui in vita sua per convent[ionem] debebat tenere.' - See also the case in i. 177 b. Again, ii. 431: 'terram quam - cepit cum uxore sua ... misit in ecclesia concedente muliere - tali conventione quod non potuit vendere nec dare de - aecclesia.' For a 'recognitio' see i. 175, Persore. - - [288] D. B. i. 57 b. - - [289] D. B. i. 149: 'De his tenuit Aluuid puella 2 hidas ... et de - dominica firma Regis Edwardi habuit ipsa dimidiam hidam quam - Godricus vicecomes ei concessit quamdiu vicecomes esset, ut - illa doceret filiam ejus aurifrisium operari.' - - [290] D. B. i. 175: 'Hanc emit quidam Godricus teinus regis Edwardi - vita trium haeredum et dabat in anno monachis unam firmam pro - recognitione.' - - [291] D. B. i. 269 b. - - [292] See above p. 56. Their tenure will be discussed hereafter in - connexion with St. Oswald's land-loans. - - [293] D. B. ii. 187 b: 'In Carletuna 27 liberi homines et dimidius - sub Olfo commendatione tantum et soca falde ... 15 liberi - homines sub Olfo soca falde et commendatione tantum.' - - [294] D. B. ii. 203 b: 'In eadem villa 12 homines 6 quorum erant in - soca falde et alii 6 erant liberi.' Ibid. 361 b: '70 liberi - ... super hos homines habet et semper habuit sacam et socam et - omnem consuetudinem et ad faldam pertinent omnes preter 4.' - Ibid. ii. 207: '17 liberi homines consueti ad faldam et - commendati.' The term 'fold-worthy' occurs in a writ of Edward - the Confessor; he gives to St. Benet of Ramsey soke over such - of the men of a certain district as are moot-worthy, - fyrd-worthy, and fold-worthy: Earle, Land Charters, p. 343; - Kemble, iv. p. 208. - - [295] In later extents of East Anglian manors the fold-soke plays an - important part. Cart. Rams. iii. 267: 'R. tenuit unam - carucatam terrae cum falda sua pro octo solidis. A. dabat pro - terra sua quadraginta denarios et oves eius erant in falda - Abbatis.... H. triginta acras pro quatuor solidis et oves eius - sunt in manu domini....' - - [296] See the document printed by Hamilton at the end of the - Inquisitio Com. Cantabr. p. 192. 'Isti solummodo arabunt et - contererent messes eiusdem loci quotienscunque abbas - preceperit....' 'Ita proprie sunt abbati ut quotienscunque - ipse preceperit in anno arabunt suam terram, purgabunt et - colligent segetes, portabunt victum monachorum ad monasterium, - equos eorum in suis necessitatibus semper habebit.' For more - of this matter see Round, Feudal England, 30. - - [297] D. B. i. 141: there are four sokemen who are men of Æthelmær - and who can not sell their land without his consent; but they - are under the king's sake and soke and jointly provide the - sheriff with one _avera_ every year or four pence. - - [298] D. B. i. 249: 'Haec terra fuit consuetudinaria solummodo de - theloneo regis sed aliam socam habebat.' - - [299] D. B. ii. 273 b: 'In eadem 8 consuetudinarii ad faldam sui - antecessoris.' Ibid. 215: '8 homines consuetudinarios ad hoc - manerium.' - - [300] D. B. i. 280: 'Duae partes Regis et tercia comitis de censu et - theloneo et forisfactura et de omni consuetudine.' Ibid. 42: - 'Unam aecclesiam et 6 capellas cum omni consuetudine vivorum - et mortuorum.' - - [301] D. B. i. 10 b: 'et sunt quieti pro servitio maris ab omni - consuetudine preter tribus, latrocinio, pace infracta, et - forestel.' - - [302] D. B. i. 61 b: 'solutam ab omni consuetudine propter forestam - custodiendam excepta forisfactura Regis, sicut est - latrocinium, et homicidium, et heinfara, et fracta pax.' - - [303] D. B. i. 52: 'Hi infrascripti habent in Hantone - consuetud[ines] domorum suarum.' Ibid. 249: 'Haec terra fuit - consuetudinaria solummodo de theloneo Regis sed socam aliam - habebat.' - - - - -§ 5. _Sake and soke._ - - -[Sake and soke.] - -We may best begin our investigation by recalling the law of later times. -In the thirteenth century seignorial justice, that is, justice in -private hands, has two roots. A certain civil jurisdiction belongs to -the lord as such; if he has tenants enough to form a court, he is at -liberty to hold a court of and for his tenants. This kind of seignorial -justice we call specifically feudal justice. But very often a lord has -other and greater powers than the feudal principle would give him; in -particular he has the view of frankpledge and the police justice that -the view of frankpledge implies. All such powers must in theory have -their origin in grants made by the king; they are franchises. With -feudal justice therefore we contrast 'franchisal' justice[304]. - -[Private jurisdiction in the Leges.] - -Now if we go back to the Norman period we shall begin to doubt whether -the feudal principle--the principle which as a matter of course gives -the lord justiciary powers over his tenants--is of very ancient -origin[305]. The state of things that then existed should be revealed to -us by the Leges Henrici; for, if that book has any plan at all, it is a -treatise on the law of jurisdiction, a treatise on 'soke.' To this topic -the writer constantly returns after many digressions, and the leading -theme of his work is found in the following sentence:--'As to the soke -of pleas, there is that which belongs properly and exclusively to the -royal fiscus; there is that which it participates with others; there is -that which belongs to the sheriffs and royal bailiffs as comprised in -their ferms; there is that which belongs to the barons who have soke and -sake[306].' But, when all has been said, the picture that is left on our -minds is that of a confused conflict between inconsistent and indefinite -principles, and very possibly the compiler in giving us such a picture -is fulfilling the duty of a faithful portrayer of facts, though he does -not satisfy our demand for a rational theory. - -[Soke in the _Leges Henrici_.] - -On the one hand, it seems plain that there is a seignorial justice which -is not 'franchisal.' Certain persons have a certain 'soke' apart from -any regalities which may have been expressly conceded to them by the -king. But it is not clear that the legal basis of this soke is the -simple feudal principle stated above, namely, that jurisdiction springs -from the mere fact of tenure. An element of which we hear little in -later days, is prominent in the Leges, the element of rank or personal -status. 'The archbishops, bishops, earls and other 'powers' -(_potestates_) have sake and soke, toll, team and infangenethef in their -own lands[307].' Here the principle seems to be that men of a certain -rank have certain jurisdictional powers, and the vague term _potestates_ -may include in this class all the king's barons. But then the -freeholding _vavassores_ have a certain jurisdiction, they have the -pleas which concern _wer_ and _wíte_ (that is to say 'emendable' pleas) -over their own men and their own property, and sometimes over another -man's men who have been arrested or attached in the act of -trespass[308]. Whatever else we may think of these _vavassores_, they -are not barons and probably they are not immediate tenants of the -king[309]. It is clear, however, that there may be a 'lord' with 'men' -who yet has no sake or soke over them[310]. We are told indeed that -every lord may summon his man to stand to right in his court, and that -if the man be resident in the remotest manor of the honour of which he -holds, he still must go to the plea[311]. Here for a moment we seem to -have a fairly clear announcement of what we call the simple feudal -principle, unadulterated by any element of personal rank; still our text -supposes that the lord in question is a great man, he has no mere manor -but an honour or several honours. On the whole, our law seems for the -time to be taking the shape that French law took. If we leave out of -sight the definitely granted franchisal powers, then we may say that a -baron or the holder of a grand fief has 'high justice,' or if that term -be too technical, a higher justice, while the vavassor has 'low justice' -or a lower justice. But in this province, as in other provinces, of -English law personal rank becomes of less and less importance. The rules -which would determine it and its consequences are never allowed to -become definite, and in the end a great generalization surmounts all -difficulties:--every lord has a certain civil justice over his tenants; -whatsoever powers go beyond this, are franchises. - -[Kinds of soke in the _Leges_.] - -As to the sort of jurisdiction that a lord of our Leges has, we can make -no statement in general terms. Such categories as 'civil' and 'criminal' -are too modern for use. We must of course except the pleas of the crown, -of which a long and ungeneralized list is set before us[312]. We must -except the pleas of the church. We must except certain pleas which -belong in part to the king and in part to the church[313]. Then we -observe that the justice of an archbishop, bishop or earl, probably the -justice of a baron also, extends as high as _infangenethef_, while that -of a vavassor goes no higher than such offences as are emendable. The -whole matter however is complicated by royal grants. The king may grant -away a demesne manor and retain not only 'the exclusive soke' (i.e. the -soke over the pleas of the crown), but also 'the common soke' in his -hand[314], and a great man may by purchase acquire soke (for example, we -may suppose, the hundredal soke) over lands that are not his own[315]. -Then again, we may suspect that what is said of 'soke' in general does -not apply to any jurisdiction that a lord may exercise over his _servi_ -and _villani_. As to the _servi_, very possibly the lord's right over -them is still conceived as proprietary rather than jurisdictional, while -for his _villani_ (_serf_ and _villein_ are not yet convertible terms) -the lord, whatever his rank may be, will probably hold a 'hallmoot[316]' -and exercise that 'common soke' which does not infringe the royal -preserves. On the whole, the law of the thirteenth century seems to -evolve itself somewhat easily out of the law of these Leges, the process -of development being threefold: (1) the lord's rank as bishop, abbot, -earl, baron, becomes unimportant; (2) the element of tenure becomes -all-important; the mere fact that the man holds land of the lord makes -him the lord's justiciable; thus a generalization becomes possible which -permits even so lowly a person as a burgess of Dunstable to hold a court -for his tenants[317]; (3) the obsolescence of the old law of _wíte_ and -_wer_, the growth of the new law of felony, the emergence in Glanvill's -book of the distinction between criminal and civil pleas as a grand -primary distinction, the introduction of the specially royal processes -of presentment and inquest, bring about a new apportionment of the field -of justice and a rational demarcation of feudal from franchisal powers. -Still when we see the lords, especially the prelates of the church, -relying upon prescription for their choicest franchises[318], we may -learn (if such a lesson be needed) that new theories could not master -all the ancient facts. - -[The Norman kings and private jurisdiction.] - -Whether the Conqueror or either of his sons would have admitted that any -justice could be done in England that was not his justice, we may fairly -doubt. They issued numerous charters which had no other object than that -of giving or confirming to the donees 'their sake and soke,' and, so far -as we can see, there is no jurisdiction, at least none over free men, -that is not accounted to be 'sake and soke.' Occasionally it is said -that the donees are to have 'their court.' However far the feudalization -of justice had gone either in Normandy or in England before the -Conquest, the Conquest itself was likely to conceal from view the -question whether or no all seignorial jurisdiction is delegated from -above; for thenceforward every lay tenant in chief, as no mere matter of -theory, but as a plain matter of fact, held his land by a title derived -newly and immediately from the king. Thus it would be easy for the king -to maintain that, if the lords exercised jurisdictional powers, they did -so by virtue of his grant, an expressed grant or an implied grant. -Gradually the process of subinfeudation would make the theoretical -question prominent and pressing, for certainly the Norman nobles -conceived that, even if their justice was delegated to them by the king, -no rule of law prevented them from appointing sub-delegates. If they -claimed to give away land, they claimed also to give away justice, and -no earnest effort can have been made to prevent their doing this[319]. - -[Sake and soke in Domesday Book.] - -Returning from this brief digression, we must consider _sake_ and _soke_ -as they are in Domesday Book. For a moment we will attend to the words -themselves[320]. Of the two _soke_ is by far the commoner; indeed we -hardly ever find _sake_ except in connexion with _soke_, and when we do, -it seems just an equivalent for _soke_. We have but an alliterative -jingle like 'judgment and justice[321].' Apparently it matters little or -nothing whether we say of a lord that he has _soke_, or that he has -_sake_, or that he has _soke_ and _sake_. But not only is _soke_ the -commoner, it is also the wider word; we can not substitute _sake_ for it -in all contexts. Thus, for example, we say that a man renders _soke_ to -his lord or to his lord's manor; also we say that a piece of land is a -_soke_ of such and such a manor; no similar use is made of _sake_. - -[Meaning of _sake_.] - -Now as a matter of etymology _sake_ seems the easier of the two words. -It is the Anglo-Saxon _sacu_, the German _Sache_, a thing, a matter, and -hence a 'matter' or 'cause' in the lawyer's sense of these terms, a -'matter' in dispute between litigants, a 'cause' before the court. It is -still in use among us, for though we do not speak of a sake between two -persons, we do speak of a man acting for another's sake, or for God's -sake, or for the sake of money[322]. In Latin therefore _sake_ may be -rendered by _placitum_:--'Roger has sake over them' will become -'Rogerius habet placita super eos[323]'; Roger has the right to hold -plea over them. Thus easily enough _sake_ becomes the right to have a -court and to do justice. - -[Meaning of _soke_.] - -As to _soke_, this has a very similar signification, but the route by -which it attains that signification is somewhat doubtful. We must start -with this that _soke_, _socna_, _soca_, is the Anglo-Saxon _sócn_ and -has for its primary meaning a _seeking_. It may become connected with -justice or jurisdiction by one or by both of two ways. One of these is -explained by a passage in the Leges Henrici which says that the king -has certain causes or pleas 'in socna i.e. quaestione sua.' The king has -certain pleas within his investigation, or his right to investigate. A -later phrase may help us:--the king is entitled to 'inquire of, hear and -determine' these matters[324]. But the word might journey along another -path which would lead to much the same end. It means seeking, following, -suing, making suit, _sequi_, _sectam facere_. The duty known as _soca -faldae_ is the duty of seeking the lord's fold. Thus _soca_ may be the -duty of seeking or suing at the lord's court and the correlative right -of the lord to keep a court and exact suit. Without denying that the -word has traversed the first of the two routes, the route by way of -'investigation'--in the face of the Leges Henrici we can hardly deny -this--we may confidently assert that it has traversed the second, the -route by way of 'suit.' There are several passages which assure us that -_soke_ is a genus of which _fold-soke_ is a species. Thus:--'Of these -men Peter's predecessor had fold-soke and commendation and Stigand had -the other soke[325].' In a document which is very closely connected with -the great survey we find what seems to be a Latin translation of our -word. The churches of Worcester and Evesham were quarrelling about -certain lands at Hamton. Under the eye of the king's commissioners they -came to a compromise, which declared that the fifteen hides at Hamton -belonged to the bishop of Worcester's hundred of Oswaldslaw and ought to -pay the king's geld and perform the king's services along with the -bishop and ought 'to seek the said hundred for pleading':--_requirere ad -placitandum_, this is the main kind of 'seeking' that _soke_ -implies[326]. If we look back far enough in the Anglo-Saxon dooms, -there is indeed much to make us think that the act of seeking a lord and -placing oneself under his protection, and the consequences of that act, -the relation between man and lord, the fealty promised by the one, the -warranty due from the other, have been known as _sócn_[327]. If so, then -there may have been a time when commendation and soke were all one. But -this time must be already ancient, for although we do not know what -English word was represented by _commendatio_, still there is no -distinction more emphatically drawn by Domesday Book than that between -_commendatio_ and _soca_. - -[Soke as jurisdiction.] - -Now when we meet with _soca_ in the Leges Henrici we naturally construe -it by some such terms as 'jurisdiction,' 'justice,' 'the right to hold a -court.' We have seen that the author of that treatise renders it by the -Latin _quaestio_. We also meet the following phrases which seem clear -enough:--'Every cause shall be determined in the hundred, or in the -county, or in the hallmoot of those who have soke, or in the courts of -the lords[328]'; '... according to the soke of pleas, which some have in -their own land over their own men, some over their own men and -strangers, either in all causes or in some causes[329]': ... 'grithbrice -or hámsócn or any of those matters which exceed their soke and -sake[330]': 'in capital causes the soke is the king's[331].' So again -our author explains that though a baron has soke this will not give him -a right to justice over himself; no one, he says, can have his own -forfeiture; no one has a soke of impunity:--'nullus enim socnam habet -impune peccandi[332].' The use that Domesday Book makes of the word may -not be quite so clear. Sometimes we are inclined to render it by _suit_, -in particular when fold-soke is contrasted with 'other soke.' But very -generally we must construe it by _justice_ or by _justiciary rights_, -though we must be careful not to introduce the seignorial court where it -does not exist, and to remember that a lord may be entitled to receive -the wites or fines incurred by his criminous men without holding a court -for them. Those men may be tried and condemned in a hundred court, but -the wite will be paid to their lord. Then the word is applied to tracts -of land. A tract over which a lord has justiciary power, or a -wite-exacting power, is his _soke_, and very often his _soke_ is -contrasted with those other lands over which he has rights of a more -definitely proprietary kind. But we must turn from words to law. - -[Seignorial justice before the Conquest.] - -Already before the Conquest there was plenty of seignorial justice in -England. The greatest of the Anglo-Saxon lords had enjoyed wide and high -justiciary rights. Naturally it is of the rights of the churches that we -hear most, for the rights that they had under King Edward they still -claim under King William. Foremost among them we may notice the church -of Canterbury. On the great day at Penenden Heath, Lanfranc proved that -throughout the lands of his church in Kent the king had but three -rights; all other justice was in the hands of the archbishop[333]. In -Warwickshire the Archbishop of York has soke and sake, toll and team, -church-scot and all other 'forfeitures' save those four which the king -has throughout the whole realm[334]. These four forfeitures are probably -the four reserved pleas of the crown that are mentioned in the laws of -Cnut--_mundbryce_, _hámsócn_, _forsteal_ and _fyrdwíte_[335]. But even -these rights though usually reserved to the king may have been made over -to the lord. In Yorkshire neither king nor earl has any 'custom' within -the lands of St. Peter of York, St. John of Beverley, St. Wilfrid of -Ripon, St. Cuthbert of Durham and the Holy Trinity. We are asked -specially to note that in this region there are four royal highways, -three by land and one by water where the king claims all forfeitures -even when they run through the land of the archbishop or of the -earl[336]. Within his immense manor of Taunton the Bishop of Winchester -has pleas of the highest class, and three times a year without any -summons his men must meet to hold them[337]. In Worcestershire seven of -the twelve hundreds into which the county is divided are in the heads of -four great churches; Worcester has three, Westminster two, Evesham one, -Pershore one. Westminster holds its lands as freely as the king held -them in his demesne; Pershore enjoys all the pleas of the free men; no -sheriff can claim anything within the territory of St. Mary of -Worcester, neither in any plea, nor in any other matter[338]. In East -Anglia we frequently hear of the reserved pleas of the crown. In this -Danish district they are accounted to be six in number; probably they -are _griðbrice_, _hámsócn_, _fihtwíte_ and _fyrdwíte_, outlaw's-work -and the receipt of outlaws[339]. Often we read how over the men of some -lord the king and the earl have 'the six forfeitures,' or how 'the soke -of the six forfeitures' lies in some royal manor[340]. But then there is -a large tract in which these six forfeitures belong to St. Edmund; some -other lord may have sake and soke in a given parcel of that tract, but -the six forfeitures belong to St. Edmund; they are indeed 'the six -forfeitures of St. Edmund[341].' Other arrangements were possible. We -hear of men over whom St. Benet had three forfeitures[342]. The lawmen -of Stamford had sake and soke within their houses and over their men, -save geld, heriot, larceny and forfeitures exceeding 40 ores of -silver[343]. Certain burgesses of Romney serve the king on the sea, and -therefore they have their own forfeitures, save larceny, peace-breach -and forsteal, and these belong, not to the king, but to the -archbishop[344]. Sometimes King William will be careful to limit his -confirmation of a lord's sake and soke to the 'emendable forfeitures,' -the offences which can be paid for with money[345]. - -[Soke as a regality.] - -That in the Confessor's day justiciary rights could only be claimed by -virtue of royal grants, that they did not arise out of the mere relation -between lord and man, lord and tenant, or lord and villein, seems to us -fairly certain. In the first place, as already said, soke is frequently -contrasted with commendation. In the second place, as we turn over the -pages of our record, we shall see it remarked of some man, who held a -manor in the days before the Conquest, that he had it with sake and -soke, and the remark is made in such a context that thereby he is -singled out from among his fellows[346]. Thus it is said of a little -group of villeins and sokemen in Essex that 'their lord had sake and -soke[347].' Not that we can argue that a lord has no soke unless it is -expressly ascribed to him. The surveyors have no great interest in this -matter. Sometimes such a phrase as 'he held it freely' seems to serve as -an equivalent for 'he held it with sake and soke[348].' It is said of -the Countess Judith, a lady of exalted rank, that she had a manse in -Lincoln without sake and soke[348]. Then we are told that throughout the -city of Canterbury the king had sake and soke except in the lands of the -Holy Trinity (Christ Church), St. Augustin, Queen Edith, and three -other lords[350]. We have a list of fifteen persons who had sake and -soke in the two lathes of Sutton and Aylesford[351], a list of -thirty-five persons who had sake and soke, toll and team in Lincolnshire -(it includes the queen, a bishop, three abbots and two earls[352]), and -a list of nineteen persons who had similar rights in the shires of Derby -and Nottingham[353]. Such lists would have been pointless had any -generalization been possible. Then in East Anglia it is common enough to -find that the men who are reckoned to be the _liberi homines_ of some -lord are under the soke of another lord or render their soke to the king -and the earl, that is to say, to the hundred court. Often enough it is -said somewhat pointedly that the men over whom the king and the earl -have soke are _liberi homines_, and this may for a moment suggest that -the lord as a matter of course has soke over such of his men as are not -ranked as 'free men'; possibly it may suggest that freedom in this -context implies subjection to a national as opposed to a seignorial -tribunal[354]. But on the one hand a lord often enough has soke over -those who are distinctively 'free men[355],' while on the other hand, as -will be explained below, he has not the soke over his sokeman[356]. - -[Soke over villeins.] - -But we must go further and say that the lord has not always the soke -over his villeins. This is a matter of much importance. An entry -relating to a manor in Suffolk seems to put it beyond doubt:--In the -hundred and a half of Sanford Auti a thegn held Wenham in King Edward's -time for a manor and three carucates of land; there were then nine -_villani_, four _bordarii_ and one _servus_ and there were two teams on -the demesne; Auti had the soke over his demesne and the soke of the -villeins was in Bercolt[357]. Now Bercolt, the modern Bergholt, was a -royal manor, the seat of a great court, which had soke over many men in -the neighbouring villages. To all seeming it was the court for the -hundred, or 'hundred-and-a-half,' of Sanford[358]. Here then we seem to -have villeins who are not under the soke of their lord but are the -justiciables of the hundred court. In another case, also from Suffolk, -it is said of the lord of a manor that he had soke 'only over the -demesne of his hall,' and this seems to exclude from the scope of his -justiciary rights the land held by thirty-two villeins and eight -bordiers[359]. We may find the line drawn at various places. Not very -unfrequently in East Anglia a lord has the soke over those men who are -bound to his sheep-fold, while those who are 'fold-worthy' attend the -hundred court[360]. In one case a curious and instructive distinction is -taken:--'In Farwell lay in King Edward's day the sake and soke of all -who had less than thirty acres, but of all who had thirty acres the soke -and sake lay in the hundred[361].' In this case the line seems to be -drawn just below the virgater, no matter the legal class to which the -virgater belongs. To our thinking it is plain enough that many a -_manerium_ of the Confessor's day had no court of its own. As we shall -see hereafter, the manors are often far too small to allow of our -endowing each of them with a court. When of a Cheshire manor we hear -that 'this manor has its pleas in its lord's hall' we are being told of -something that is exceptional[362]. In the thirteenth century no one -would have made such a remark. In the eleventh the _halimote_ or -_hall-moot_ looks like a novelty. - -[Private soke and hundredal soke.] - -Seignorial justice is as yet very closely connected with the general -scheme of national justice. Frequently the lord who has justice has a -hundred. We remember how seven of the twelve hundreds of Worcestershire -are in the hands of four great churches[363]. St. Etheldreda of Ely has -the soke of five and a half hundreds in Suffolk[364]. In Essex Swain had -the half-hundred of Clavering, and the pleas thereof brought him in -25_s._ a year[365]. In Nottinghamshire the Bishop of Lincoln had all the -customs of the king and the earl throughout the wapentake of -Newark[366]. The monks of Battle Abbey claimed that the sake and soke of -twenty-two hundreds and a half and all royal 'forfeitures' were annexed -to their manor of Wye[367]. But further--and this deserves -attention--when the hundredal jurisdiction was not in the hands of some -other lord, it was conceived as belonging to the king. The sake and soke -of a hundred or of several hundreds is described as 'lying in,' or being -annexed to, some royal manor and it is farmed by the farmer of that -manor. Oxfordshire gives us the best example of this. The soke of four -and a half hundreds belongs to the royal manor of Bensington, that of -two hundreds to Headington, that of two and a half to Kirtlington, that -of three to Upton, that of three to Shipton, that of two to Bampton, -that of two to Bloxham and Adderbury[368]. What we see here we may see -elsewhere also[369]. If then King William gives the royal manor of Wye -to his newly founded church of St. Martin in the Place of Battle, the -monks will contend that they have obtained as an appurtenance the -hundredal soke over a large part of the county of Kent[370]. - -[Hundredal and manorial soke.] - -The law seems as yet, if we may so speak, unconscious of the fact that -underneath or beside the hundredal soke a new soke is growing up. It -seems to treat _the_ soke over a man or over a piece of land as an -indivisible thing that must 'lie' somewhere and can not be in two places -at once. It has indeed to admit that while one lord has the soke, the -king or another lord may have certain reserved and exalted -'forfeitures,' the three forfeitures or the four or the six, as the case -may be[371]; but it has no classification of courts. The lord's court, -if it be not the court of an ancient hundred, is conceived as the court -of a half-hundred, or of a quarter of a hundred[372], or as the court of -a district that has been carved out from a hundred[373]. Thus Stigand -had the soke of the half-hundred of Hersham, save Thorpe which belonged -to St. Edmund, and Pulham which belonged to St. Etheldreda[374]; thus -also the king had the soke of the half-hundred of Diss, except the land -of St. Edmund, where he shared the soke with the saint, and except the -lands of Wulfgæt and of Stigand[375]. But it is impossible to maintain -this theory. The hundred is becoming full of manors, within each of -which a lord is exercising or endeavouring to exercise a soke over all, -or certain classes, of his men. It is possible that in Lincolnshire we -see the beginnings of a differentiating process; we meet with the word -_frisoca_, _frigsoca_, _frigesoca_. Whether this stands for 'free -soken,' or, as seems more likely, for 'frið soken,' soke in matters -relating to the peace, it seems to mark off one kind of soke from other -kinds[376]. We have to remember that in later days the relation of the -manorial to the hundredal courts is curious. In no accurate sense can we -say that the court of the manor is below the court of the hundred. No -appeal, no complaint of false judgment, lies from the one to the other; -and yet, unless the manor enjoys some exceptional privilege, it is not -extra-hundredal and its jurisdiction in personal causes is over-lapped -by the jurisdiction of the hundred court: the two courts arise from -different principles[377]. In Domesday Book the feudal or tenurial -principle seems still struggling for recognition. Already the Norman -lords are assuming a soke which their _antecessores_ did not enjoy[378]. -As will be seen below, they are enlarging and consolidating their manors -and thereby rendering a manorial justice possible and profitable. -Whether we ought to hold that the mere shock and jar of conquest and -dispossession was sufficient to set up the process which covered our -land with small courts, or whether we ought to hold that an element of -foreign law worked the change, is a question that will never be answered -unless the Norman archives have yet many secrets to tell. The great -'honorial' courts of later days may be French; still it is hardly in -this region that we should look for much foreign law. It is in English -words that the French baron of the Conqueror's day must speak when he -claims justiciary rights. But that the process was far from being -complete in 1086 seems evident. - -[The seignorial court.] - -Many questions about the distribution and the constitution of the courts -we must leave unsolved. Not only does our record tell us nothing of -courts in unambiguous words, but it hardly has a word that will answer -to our 'court.' The term _curia_ is in use, but it seems always to -signify a physical object, the lord's house or the court-yard around it, -never an institution, a tribunal[379]. Almost all that we are told is -conveyed to us under the cover of such words as _sake_, _soke_, -_placita_, _forisfacturae_. We know that the Bishop of Winchester has a -court at Taunton, for his tenants are bound to come together thrice a -year to hold his pleas without being summoned[380]. This phrase--'to -hold his pleas'--seems to tell us distinctly enough that the suitors are -the doomsmen of the court. Then, again, we have the well-known story of -what happened at Orwell in Cambridgeshire. In that village Count Roger -had a small estate; he had land for a team and a half. This land had -belonged to six sokemen. He had borrowed three of them from Picot the -sheriff in order that they might hold his pleas, and having got them he -refused to return them[381]. That the court that he wished to hold was a -court merely for his land at Orwell is highly improbable, but he had -other lands scattered about in the various villages of the Wetherly -hundred, though in all his tenants amounted to but 14 villeins, 42 -bordiers, 15 cottiers, and 4 serfs. We can not draw the inference that -men of the class known as sokemen were necessary for the constitution of -a court, for at the date of the survey there was no sokeman left in all -Roger's land in Cambridgeshire; the three that he borrowed from Picot -had disappeared or were reckoned as villeins or worse. Still he held a -court and that court had doomsmen. But we can not argue that every lord -who had soke, or sake and soke, had a court of his own. It may be that -in some cases he was satisfied with claiming the 'forfeitures' which his -men incurred in the hundred courts. This is suggested to us by what we -read of the earl's third penny. - -[Soke and the earl's third penny.] - -In the county court and in every hundred court that has not passed into -private hands, the king is entitled to but two-thirds of the proceeds of -justice and the earl gets the other third, except perhaps in certain -exceptional cases in which the king has the whole profit of some -specially royal plea. The soke in the hundred courts belongs to the king -and the earl. And just as the king's rights as the lord of a hundredal -court become bound up with, and are let to farm with, some royal manor, -so the earl's third penny will be annexed to some comital manor. Thus -the third penny of Dorsetshire was annexed to Earl Harold's manor of -Pireton[382], and the third penny of Warwickshire to Earl Edwin's manor -of Cote[383]. Harold had a manor in Herefordshire to which belonged the -third penny of three hundreds[384]; Godwin had a manor in Hampshire to -which belonged the third penny of six hundreds[385]; the third penny of -three Devonian hundreds belonged to the manor of Blackpool[386]. Now, at -least in some cases, the king could not by his grants deprive the earl -of his right; the grantee of soke had to take it subject to the earl's -third penny. Thus for the shires of Derby and Nottingham we have a list -of nineteen persons who were entitled to the king's two-pence, but only -three of them were entitled to the earl's penny[387]. The monks of -Battle declared that throughout many hundreds in Kent they were entitled -to 'the king's two-pence'; the earl's third penny belonged to Odo of -Bayeux[388]. And so of certain 'free men' in Norfolk it is said that -'their soke is in the hundred for the third penny[389].' A man commits -an offence; he incurs a _wíte_; two-thirds of it should go to his lord; -one-third to the earl: in what court should he be tried? The answer that -Domesday Book suggests by its silence is that this is a matter of -indifference; it does not care to distinguish between the right to hold -a court and the right to take the profits of justice. Just once the veil -is raised for a moment. In Suffolk lies the hundred of Blything; its -head is the vill of Blythburgh where there is a royal manor[390]. Within -that hundred lies the considerable town of Dunwich, which Edric holds as -a manor. Now in Dunwich the king has this custom that two or three men -shall go to the hundred court if they be duly summoned, and if they make -default they shall pay a fine of two ores, and if a thief be caught -there he shall be judged there and corporeal justice shall be done in -Blythburgh and the lord of Dunwich shall have the thief's chattels. -Apparently in this case the lord of Dunwich will see to the trying but -not to the hanging of the thief; but, at any rate, a rare effort is here -made to define how justice shall be done[391]. The rarity of such -efforts is very significant. Of course Domesday Book is not a treatise -on jurisdiction; still if there were other terms in use, we should not -be for ever put off with the vague, undifferentiated _soke_. On the -whole, we take it that the lord who enjoyed soke had a right to keep a -court if he chose to do so, and that generally he did this, though he -would be far from keeping a separate court for each of his little -manors; but if his possessions were small he may have contented himself -with attending the hundred court and claiming the fines incurred by his -men. Sometimes a lord seems to have soke only over his own demesne -lands[392]; in this case the wites that will come to him will be few. We -may in later times see some curious compromises. If a thief is caught on -the land of the Prior of Canterbury at Brook in Kent, the borhs-elder -and frank-pledges of Brook are to take him to the court of the hundred -of Wye, which belongs to the Abbot of Battle. Then, if he is not one of -the Prior's men, he will be judged by the hundred. But if he is the -Prior's man, then the bailiff of Brook will 'crave the Prior's court.' -The Prior's folk will then go apart and judge the accused, a few of the -hundredors going with them to act as assessors. If the tribunal thus -constituted cannot agree, then once more the accused will be brought -back into the hundred and will there be judged by the hundredors in -common. In this instance we see that even in Henry II.'s day the Prior -has not thoroughly extricated his court from the hundred moot[393]. - -[Soke and house-peace.] - -It seems possible that a further hint as to the history of soke is given -us by certain entries relating to the boroughs. It will already have -become apparent that if there is soke over men, there is also soke over -land: if men 'render soke' so also acres 'render soke.' We can see that -a very elaborate web of rules is thus woven. One man strikes another. -Before we can tell what the striker ought to pay and to whom he ought -to pay it, we ought to know who had soke over the striker, over the -stricken, over the spot where the blow was given, over the spot where -the offender was attached or arrested or accused. 'The men of Southwark -testify that in King Edward's time no one took toll on the strand or in -the water-street save the king, and if any one in the act of committing -an offence was there challenged, he paid the amends to the king, but if -without being challenged he escaped under a man who had sake and soke, -that man had the amends[394].' Then we read how at Wallingford certain -owners of houses enjoyed 'the gafol of their houses, and blood, if blood -was shed there and the man was received inside before he was challenged -by the king's reeve, except on Saturday, for then the king had the -forfeiture on account of the market; and for adultery and larceny they -had the forfeiture in their houses, but the other forfeitures were the -king's[395].' We can not hope to recover the intricate rules which -governed these affairs, rules which must have been as intricate as those -of our 'private international law.' But the description of Wallingford -tells us of householders who enjoy the 'forfeitures' which arise from -crimes committed in their own houses, and a suspicion may cross our -minds that the right to these forfeitures is not in its origin a purely -jurisdictional or justiciary right. However, these householders are -great people (the Bishop of Salisbury, the Abbot of St Albans are among -them), their town houses are considered as appurtenant to their rural -manors and the soke over the manor comprehends the town house. And so -when we read how the twelve lawmen of Stamford had sake and soke within -their houses and over their own men 'save geld, and heriot, and -corporeal forfeitures to the amount of 40 ores of silver and larceny' we -may be reading of rights which can properly be described as -justiciary[396]. - -[Soke in houses.] - -But a much more difficult case comes before us at Warwick[397]. We first -hear of the town houses that are held by great men as parts of their -manors, and then we hear that 'besides these houses there are in the -borough nineteen burgesses who have nineteen houses with sake and soke -and all customs.' Now we can not easily believe that the burgess's house -is a jurisdictional area, or that in exacting a mulct from one who -commits a crime in that house the burgess will be playing the magistrate -or exercising a right to do justice or take the profits of justice by -virtue of a grant made to him by the king. Rather we are likely to see -here a relic of the ancient 'house-peace[398].' If you commit an act of -violence in a man's house, whatever you may have to pay to the person -whom you strike and to the king, you will also have to make amends to -the owner of the house, even though he be but a ceorl or a boor, for you -have broken his peace[399]. The right of the burgess to exact a mulct -from one who has shed blood or committed adultery within his walls may -in truth be a right of this kind, and yet, like other rights to other -mulcts, it is now conceived as an emanation of sake and soke. If in the -eleventh century we hear but little of this householder's right, may -this not be because the householder has surrendered it to his lord, or -the lord has usurped it from the householder, and thus it has gone to -swell the mass of the lord's jurisdictional rights? At Broughton in -Huntingdonshire the Abbot of Ramsey has a manor with some sokemen upon -it 'and these sokemen say that they used to have legerwite -(fornication-fine), bloodwite and larceny up to fourpence, and above -fourpence the Abbot had the forfeiture of larceny[400].' Various -interpretations may be set upon this difficult passage. We may fashion -for ourselves a village court (though there are but ten sokemen) and -suppose that the commune of sokemen enjoyed the smaller fines incurred -by any of its members. But we are inclined to connect this entry with -those relating to Wallingford and to Warwick and to believe that each -sokeman has enjoyed a right to exact a sum of money for the breach of -his peace. The law does not clearly mark off the right of the injured -housefather from the right of the offended magistrate. How could it do -so? If you commit an act of violence you must pay a wite to the king. -Why so? Because you have wronged the king by breaking his peace and he -requires 'amends' from you. With this thought in our minds we may now -approach an obscure problem. - -[Vendible soke.] - -We have said that seignorial justice is regarded as having its origin in -royal grants, and in the main this seems true. We hardly state an -exception to this rule if we say that grantees of justice become in -their turn grantors. Not merely could the earl who had soke grant this -to one of his thegns, but that thegn would be said to hold the soke -'under' or 'of' the earl. Justice, we may say, was already being -subinfeudated[401]. But now and again we meet with much more startling -statements. Usually if a man over whom his lord has soke 'withdraws -himself with his land,' or 'goes elsewhere with his land,' the lord's -soke over that land 'remains': he still has jurisdictional rights over -that land though it is commended to a new lord. We may be surprised at -being very frequently told that this is the case, for we can hardly -imagine a man having power to take his land out of one sphere of justice -and to put it into another. But that some men, and they not men of high -rank, enjoyed this power seems probable. Of a Hertfordshire manor we -read: 'In this manor there were six sokemen, men of Archbishop Stigand, -and each had one hide, and they could sell, saving the soke, and one of -them could even sell his soke with the land[402].' This case may be -exceptional; there may have been a very unusual compact between the -archbishop and this egregiously free sokeman; but the frequency with -which we are told that on a sale the soke 'remains' does not favour this -supposition. - -[Soke and mund.] - -We seem driven to the conclusion that in some parts of the country the -practice of commendation had been allowed to interfere even with -jurisdictional relationships: that there were men who could 'go with -their land to what lord they chose' and carry with them not merely their -homage, but also their suit of court and their 'forfeitures.' This may -seem to us intolerable. If it be true, it tells us that the state has -been very weak; it tells us that the national scheme of justice has been -torn to shreds by free contract, that men have had the utmost difficulty -in distinguishing between property and political power, between personal -relationships and the magistracy to which land is subject. But unless we -are mistaken, the house-peace in its decay has helped to produce this -confusion. In a certain sense a mere ceorl has had what is now called a -soke,--it used to be called a _mund_ or _grið_--over his house and over -his loaf-eaters: that is to say, he has been entitled to have money paid -to him if his house-peace were broken or his loaf-eaters beaten. This -right he has been able to transfer to a lord. In one way or another it -has now come into the lord's hand and become mixed up with other rights. -In Henry I.'s day a lawyer will be explaining that if a villein receives -money when blood is shed or fornication is committed in his house, this -is because he has purchased these forfeitures from his lord[403]. This -reverses the order of history. - -[Soke and jurisdiction.] - -Such is the best explanation that we can give of the men who sell their -soke with their land. No doubt we are accusing Domesday Book of being -very obscure, of using a single word to express some three or four -different ideas. In some degree the obscurity may be due to the fact -that French justiciars and French clerks have become the exponents of -English law. But we may gravely doubt whether Englishmen would have -produced a result more intelligible to us. One cause of difficulty we -may perhaps remove. In accordance with common wont we have from time to -time spoken of seignorial jurisdiction. But if the word _jurisdiction_ -be strictly construed, then in all likelihood there never has been in -this country any seignorial jurisdiction. It is not the part of the lord -to declare the law (_ius dicere_); 'curia domini debet facere iudicia et -non dominus[404].' From first to last this seems to be so, unless we -take account of theories that come to us from a time when the lord's -court was fast becoming an obsolete institution[405]. So it is in -Domesday Book. In the hundred court the sheriff presides; it is he that -appoints a day for the litigation, but the men of the hundred, the men -who come together 'to give and receive right,' make the judgments[406]. -The tenants of the Bishop of Winchester 'hold the bishops' pleas' at -Taunton; Earl Roger borrows sokemen 'to hold his pleas[407].' Thus the -erection of a new court is no very revolutionary proceeding; it passes -unnoticed. If once it be granted that all the justiciary profits arising -from a certain group of men or tract of land are to go to a certain -lord, it is very much a matter of indifference to kings and sheriffs -whether the lord holds a court of his own or exacts this money in the -hundred court. Indeed, a sheriff may be inclined to say 'I am not going -to do your justice for nothing; do it yourself.' So long as every lord -will come to the hundred court himself or send his steward, the sheriff -will have no lack of capable doomsmen. Then the men of the lord's -precinct may well wish for a court at their doors; they will be spared -the long journey to the hundred court; they will settle their own -affairs and be a law unto themselves. Thus we ought not to say that the -lax use of the word _soke_ covers a confusion between 'jurisdiction' and -the profits of 'jurisdiction,' and if we say that the confusion is -between justice and the profits of justice, we are pointing to a -distinction which the men of the Confessor's time might regard as -somewhat shadowy. In any case their lord is to have their wites; in any -case they will get the judgment of their peers; what is left to dispute -about is mere geography, the number of the courts, the demarcation of -justiciary areas. We may say, if we will, that far-sighted men would not -have argued in this manner, for seignorial justice was a force mighty -for good and for ill; but it has not been proved to our satisfaction -that the men who ruled England in the age before the Conquest were -far-sighted. Their work ended in a stupendous failure. - -[Soke and commendation.] - -To the sake and soke of the old English law we shall have to return once -more in our next essay. Our discussion of the sake and soke of Domesday -Book was induced by a consideration of the various bonds which may bind -a man to a lord. And now we ought to understand that in the eastern -counties it is extremely common for a man to be bound to one lord by -commendation and to another lord by soke. Very often indeed a man is -commended to one lord, while the soke over him and over his land 'lies -in' some hundred court which belongs to another lord or is still in the -hands of the king and the earl. How to draw with any exactness the line -between the rights given to the one lord by the commendation and to the -other lord by the soke we can not tell. For instance, we find many men -who can not sell their land without the consent of a lord. This we may -usually regard as the result of some term in the bargain of -commendation; but in some cases it may well be the outcome of soke. Thus -at Sturston in Norfolk we see a free man of St Etheldreda of Ely; his -sake and soke belong to Archbishop Stigand's manor of Earsham (Sturston -and Earsham lie some five miles apart); now this man if he wishes to -give or sell his land must obtain the licence both of St Etheldreda and -of Stigand[408]. And so as regards the forfeiture of land. We are -perhaps accustomed to think of the escheat _propter delictum tenentis_ -as having its origin in the ideas of homage and tenure rather than in -the justiciary rights of the lord. Howbeit there is much to make us -think that the right to take the land of one who has forfeited that land -by crime was closely connected with the right to other wites or -_forisfacturae_. 'Of all the thegns who hold land in the Well wapentake -of Lincolnshire, St Mary of Lincoln had two-thirds of every -_forisfactura_ and the earl the other third; and so of their heriots; -and so if they forfeited their land, two-thirds went to St Mary and the -remainder to the earl[409].' St Mary has not enfeoffed these thegns; but -by some royal grant she has two-thirds of the soke over them. In -Suffolk one Brungar held a small manor with soke. He was a 'free man' -commended to Robert Wimarc's son; but the sake and soke over him -belonged to St Edmund. Unfortunately for Brungar, stolen horses were -found in his house, and we fear that he came to a bad end. At any rate -he drops out of the story. Then St Edmund's Abbot, who had the sake and -soke, and Robert, who had the commendation, went to law, and right -gladly would we have heard the plea; but they came to some compromise -and to all seeming Robert got the land[410]. If we are puzzled by this -labyrinthine web of legal relationships, we may console ourselves with -the reflection that the Normans also were puzzled by it. They seem to -have felt the necessity of attributing the lordship of land to one lord -and one only (though of course that lord might have another lord above -him), of consolidating soke with commendation, homage with justice, and -in the end they brought out a simple and symmetrical result, albeit to -the last the relation of seignorial to hundredal justice is not to be -explained by any elegant theory of feudalism. - -[Sokemen and free men.] - -Yet another problem shall be stated, though we have little hope of -solving it. The writ, or rather one of the writs, which defined the -scope of the survey seems to have spoken of _liberi homines_ and -_sochemanni_ as of two classes of men that were to be distinguished from -each other. In Essex, Suffolk and Norfolk this distinction is often -drawn. In one and the same manor we shall find both 'free men' and -sokemen[411]; we may even hear of sokemen who formerly were 'free -men[412].' But the import of this distinction evades us. Sometimes it is -said of sokemen that they 'hold freely[413].' We read that four sokemen -held this land of whom three were free, while the fourth had one hide -but could not give or sell it[414]. This may suggest that the principle -of the division is to be found in the power to alienate the land, to -'withdraw' with the land to another lord[415]. There may be truth in the -suggestion, but we can not square it with all our cases[416]. Often -enough the 'free man' can not sell without the consent of his lord[417]. -We have just met with a 'free man' who had to obtain the consent both of -the lord of his commendation and of the lord of his soke[418]. On the -other hand, the sokeman who can sell without his lord's leave is no rare -being[419], and it was of a sokeman that we read how he could sell, not -only his land, but also his soke[420]. - -[Difference between 'free men' and sokemen.] - -Again, we dare not say that while the 'free man' is the justiciable of a -national court, the soke over the sokeman belongs to his lord. Neither -side of this proposition is true. Very often the soke over the 'free -man' belongs to a church or to some other lord[421], who may or may not -be his lord by commendation[422]. Very often the lord has not the soke -over his sokemen. This may seem a paradox, but it is true. We make it -clearer by saying that you may have a man who is your man and who is a -sokeman, but yet you have no soke over him; his soke 'lies' or 'is -rendered' elsewhere. This is a common enough phenomenon, but it is apt -to escape attention. When we are told that a certain English lord had a -sokeman at a certain place, we must not jump to the conclusion that he -had soke over that man of his. Thus in Hertfordshire Æthelmær held a -manor and in it there were four sokemen; they were, we are told, his -_homines_: but over two of them the king had sake and soke[423]. Unless -we are greatly mistaken, the soke of many of the East Anglian sokemen, -no matter whose men they were, lay in the hundred courts. This prevents -our saying that a sokeman is one over whom his lord has soke, or one who -renders soke to his lord. We may doubt whether the line between the -sokemen and the 'free men' is drawn in accordance with any one -principle. Not only is freedom a matter of degree, but freedom is -measured along several different scales. At one time it is to the power -of alienation or 'withdrawal' that attention is attracted, at another to -the number or the kind of the services and 'customs' that the man must -render to his lord. When we see that in Lincolnshire there is no class -of 'free men' but that there are some eleven thousand sokemen, we shall -probably be persuaded that the distinction drawn in East Anglia was of -no very great importance to the surveyors or the king. It may have been -a matter of pure personal rank. These _liberi homines_ may have enjoyed -a wergild of more than 200 shillings, for in the Norman age we see -traces of a usage which will not allow that any one is 'free' if he is -not noble[424]. But perhaps when the Domesday of East Anglia has been -fully explored, hundred by hundred and vill by vill, we shall come to -the conclusion that the 'free men' of one district would have been -called sokemen in another district[425]. - -[Holdings of the sokemen.] - -Some of these sokemen and 'free men' had very small tenements. Let us -look at a list of tenants in Norfolk. 'In Carleton were 2 free men with -7 acres. In Kicklington were 2 free men with 2 acres. In Forncett 1 free -man with 2 acres. In Tanaton 4 free men with 4 acres. In Wacton 2 free -men with 1-1/2 acres. In Stratton 1 free man with 4 acres. In Moulton 3 -free men with 5 acres. In Tibenham 2 free men with 7 acres. In Aslacton -1 free man with 1 acre[426].' These eighteen free men had but sixteen -oxen among them. We think it highly probable that in the survey of East -Anglia one and the same free man is sometimes mentioned several times; -he holds a little land under one lord, and a little under another lord; -but in all he holds little. Then again, we see that these small freemen -often have a few bordiers or even a few free men 'below them[427].' And -then we observe that, while some of them are spoken of as having -belonged to the manors of their lords, others are reported to have had -manors of their own. - - -FOOTNOTES: - - [304] Hist. Eng. Law, i. 558. The terms here used were adopted when - the Introduction to the Selden Society's Select Pleas in - Manorial Courts (1888) was being written. M. Esmein in his - Cours d'histoire du droit français, ed. 2 (1895), p. 259, has - insisted on the same distinction but has used other and - perhaps apter terms. According to him 'la justice rendue par - les seigneurs' (my seignorial justice) is either 'la justice - seigneuriale' (my franchisal justice) or 'la justice féodale' - (my feudal justice). - - [305] See Liebermann, Leges Edwardi, p. 88. - - [306] Leg. Hen. 9, § 9. - - [307] Leg. Henr. 20 § 2. - - [308] Leg. Henr. 27. - - [309] Hist. Eng. Law, i. 532. - - [310] Leg. Henr. 57 § 8. Cf. 59 § 19. - - [311] Leg. Henr. 55. - - [312] Leg. Henr. 10 § 1. - - [313] Leg. Henr. 11 § 1. This explains the 'participatio' of 9 § 9. - - [314] Leg. Henr. 19. - - [315] Leg. Henr. 20 § 2. - - [316] Leg. Henr. 9 § 4; 20 § 2; 57 § 8; 78 § 2. - - [317] Hist. Eng. Law, i. 574. - - [318] Hist. Eng. Law, i. 571. - - [319] See e.g. Geoffrey Clinton for Kenilworth, Monast. vi. 221: - 'Concedo ... ut habeant curiam suam ... ita libere ... sicut - ego meam curiam ... ex concessu regis melius et firmius - habeo.' Robert of Ouilly for Osney, ibid. p. 251: 'Volo ... - quod habeant curiam ipsorum liberam de suis hominibus de - omnimodis transgressionibus et defaltis, et quieti sint tam - ipsi quam eorum tenentes de omnimodis curiae meae sectis.' - - [320] See Liebermann, Leg. Edw. p. 91. - - [321] Thus in D.B. ii. 409 we find two successive entries, the 'in - _saca_ regis et comitis' of the one, being to all seeming an - equivalent for the 'in _soca_ regis et comitis' of the other. - D. B. ii. 416: 'de omnibus habuit antecessor Rannulfi - commendationem et _sacam_ excepto uno qui est in _soca_ S. - Edmundi.' Ibid. ii. 391 b: 'liberi homines Wisgari cum _saca_ - ... liber homo ... sub Witgaro cum _soca_.' In the Inquisitio - Eliensis (e.g. Hamilton, p. 109) _saca_ is sometimes used - instead of _soca_ in the common formula 'sed soca remansit - abbati.' In D. B. ii. 264 b, a scribe having written 'sed - habet s_a_cam' has afterwards substituted an _o_ for the _a_; - we have noted no other instance of such care. - - [322] Hist. Eng. Law, i. 566. - - [323] D. B. i. 184, Ewias. - - [324] Leg. Henr. 20 § 1. The author of Leg. Edw. Conf., c. 22, also - attempts to connect soke with seeking, but his words are - exceedingly obscure: 'Soche est quod si aliquis quaerit - aliquid in terra sua, etiam furtum, sua est iustitia, si - inventum sit an non.' On the whole we take this nonsense to - mean that my right of soke is my right to do justice in case - any one seeks (by way of legal proceedings) anything in my - land, even though the accusation that he brings be one of - theft, and even though the stolen goods have not been found on - the thief. Already the word is a prey to the etymologist. - - [325] D. B. ii. 256. - - [326] Heming Cart. i. 75-6: 'quod illae 15 hidae inste pertinent ad - Osuualdeslaue hundredum episcopi et debent cum ipso episcopo - censum regis solvere et omnia alia servitia ad regem - pertinentia et inde idem requirere ad placitandum.' Another - account of the same transaction, ibid. 77, says 'et - [episcopus] deraciocinavit socam et sacam de Hamtona ad suum - hundred Osuualdeslauue quod ibi debent placitare et geldum et - expeditionem et cetera legis servitia de illis 15 hidis secum - debent persolvere.' - - [327] Schmid, Glossar. s. v. _sócen_. The word, it would seem, first - makes its way into the vocabulary of the law as describing the - act of seeking a sanctuary and the protection that a criminal - gains by that act. A forged charter of Edgar for Thorney - Abbey, Red Book of Thorney, Camb. Univ. Lib., f. 4, says that - the word is a Danish word--'Regi vero pro consensu et eiusdem - mercimonii licentia ac pro reatus emendatione quam Dani - _socne_ nsitato nominant vocabulo, centum dedit splendidissimi - auri mancusas.' - - [328] Leg. Henr. 9 § 4. - - [329] Ibid. - - [330] Ibid. 22. - - [331] Ibid. 20 § 3. - - [332] Ibid. 24. - - [333] Selden's Eadmer, p. 197; Bigelow, Placita Anglo-Norman. p. 7. - - [334] D. B. i. 238 b, Alvestone. - - [335] Cnut, II. 12. We may construe these terms by breach of the - king's special peace, attacks on houses, ambush, neglect of - the summons to the host. In Hereford, D. B. i. 179, the king - is accounted to have three pleas, breach of his peace, - hámfare, which is the same as hámsócn, and forsteal; and - besides this he receives the penalty from a man who makes - default in military service. - - [336] D. B. i. 298 b. - - [337] D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone, - burgheristh, latrones, pacis infractio, hainfare, denarii de - hundret, et denarii S. Petri; ter in anno teneri placita - episcopi sine ammonitione; profectio in exercitum cum - hominibus episcopi.' See also the English document, Kemble, - Cod. Dipl. iv. p. 233. The odd word _burgheristh_ looks like a - corrupt form of _burhgrið_ (the peace of the _burh_), or of - _burhgerihta_ (burh-rights, borough-dues), which word occurs - in the English document. - - [338] D. B. i. 172, 175. - - [339] Cnut II. 12, 13, 14. Perhaps when in other parts of England - the pleas of the crown are reckoned to be but four, it is - treated as self-evident that the outlaw falls into the king's - hand, as also the man who harbours an outlaw. If _fihtwíte_ is - the right word, we must suppose with Schmid (p. 586) that a - _fihtwíte_ was only paid when there was homicide. A fine for - mere fighting or drawing blood would not have been a reserved - plea. - - [340] D. B. ii. 179 b: 'Et iste Withri habebat sacham et socam super - istam terram et rex et comes 6 forisfacturas.' Ibid. 223: 'In - Cheiunchala soca de 6 forisfacturis.' - - [341] D. B. ii. 413 b: 'socam et sacam praeter 6 forisfacturas S. - Eadmundi.' Ibid. 373: 'S. Eadmundus 6 forisfacturas.' Ibid. - 384 b: 'Tota hec terra iacebat in dominio Abbatiae [de Eli] T. - R. E. cum omni consuetudine praeter sex forisfacturas S. - Eadmundi.' - - [342] D. B. ii. 244: 'sex liberi homines ... ex his habet S. - Benedictus socam et de uno commendationem et de 24 tres - forisfacturas.' - - [343] D. B. i. 336 b: 'praeter geld et heriete et forisfacturam - corporum suorum de 40 oris argenti et praeter latronem.' Such - a phrase as 'geld, heriot and thief' is instructive. - - [344] D. B. i. 4 b. - - [345] William I. for Ely, Hamilton, Inquisitio, p. xviii.: 'omnes - alias forisfacturas quae emendabiles sunt.' - - [346] D. B. ii. 195: 'Super hos habuit T. R. E. Episcopus 6 - forisfacturas sed hundret nec vidit breve nec sigillum nec - concessum Regis.' - - [347] D. B. ii. 34 b. - - [348] See e.g. D. B. i. 220. - - [349] D. B. i. 336: 'Rogerius de Busli habet unum mansum Sueni filii - Suaue cum saca et soca. Judita comitissa habet unum mansum - Stori sine saca et soca.' - - [350] D. B. i. 2. - - [351] D. B. i. 1 b. - - [352] D. B. i. 337. - - [353] D. B. i. 280 b. - - [354] D. B. ii. 185: 'Super omnes liberos istius hundreti [de - Northerpingeham] habet Rex sacam et socam.' Ibid. 188 b: 'Rex - et comes de omnibus istis liberis hominibus socam.' Ibid. 203: - 'Et de omnibus his liberis [Episcopi Osberni] soca in - hundreto.' - - [355] D. B. ii. 210: 'Super omnes istos liberos homines habuit Rex - Eadwardus socam et sacam, et postea Guert accepit per vim, sed - Rex Willelmus dedit [S. Eadmundo] cum manerio socam et sacam - de omnibus liberis Guert sicut ipse tenebat; hoc reclamant - monachi.' - - [356] Below, p. 105. - - [357] D. B. ii. 425 b. - - [358] D. B. ii. 287, 287 b: 'Sanfort Hund. et dim.... Supradictum - manerium scilicet Bercolt ... cum soca de hundreto et dimidio - reddebat T. R. E. 24 lib.' On subsequent pages it is often - said that the soke of certain persons or lands is in Bergholt. - - [359] D. B. ii. 408 b: 'Hagala tenuit Gutmundus sub Rege Edwardo pro - manerio 8 car[ucatarum] terrae cum soca et saca super dominium - hallae tantum. Tunc 32 villani ... 8 bordarii ... 10 servi. - Semper 4 carucae in dominio. Tunc et post 24 carucae - hominum.... Sex sochemanni eiusdem Gutmundi de quibus soca est - in hundreto.' - - [360] D. B. ii. 216: 'De Redeham habebat Abbas socam super hos qui - sequebantur faldam, et de aliis soca in hundreto.' Ibid. 129 - b: 'Super omnes istos qui faldam Comitis requirebant habebat - Comes socam et sacam, super alios omnes Rex et Comes.' Ibid. - 194 b: 'In Begetuna tenuit Episcopus Almarus per emptionem T. - R. E. cum soca et saca de Comite Algaro de bor[dariis] et - sequentibus faldam 3 carucatas terrae.' Ibid. 350 b: 'habebat - socam et sacam super hallam et bordarios.' - - [361] D. B. ii. 130 b. - - [362] D. B. i. 265 b: 'Hoc manerium habet suum placitum in aula - domini sui.' - - [363] Above, p. 88. - - [364] D. B. ii. 385 b. - - [365] D. B. ii. 46 b. - - [366] D. B. i. 283 b. - - [367] D. B. i. 11 b.; Chron. de Bello (Anglia Christiana Soc.) p. - 28; Battle Custumals (Camd. Soc.), p. 126. - - [368] D. B. i. 154 b. - - [369] D. B. 39 b, Hants: 'Huic manerio pertinet soca duorum - hundredorum.' Ibid. 64 b, Wilts: 'In hac firma erant placita - hundretorum de Cicementone et Sutelesberg quae regi - pertinebant.' Ibid. ii. 185: 'Super omnes liberos istius - hundreti habet rex sacam et socam.' Ibid. ii. 113 b.: 'Soca et - sacha de Grenehou hundreto pertinet ad Wistune manerium Regis, - quicunque ibi teneat, et habent Rex et Comes.' - - [370] See above, note 367. - - [371] Above, p. 88. - - [372] D. B. ii. 379: 'Super ferting de Almeham habet W. Episcopus - socam et sacam.' - - [373] D. B. i. 184: 'Haec terra non pertinet ... ad hundredum. De - hac terra habet Rogerius 15 sextarios mellis et 15 porcos - quando homines sunt ibi et placita super eos.' - - [374] D. B. ii. 139 b. - - [375] D. B. ii. 114. - - [376] D. B. i. 340, 346, 357 b, 366, 368 b (ter). See also on f. - 344, 344 b, the symbol fð in the margin. The word friðsócn - occurs in Æthelr. VIII. 1 and Cnut I. 2 § 3, where it seems to - stand for a sanctuary, an asylum. - - [377] If one of _A_'s tenants is sued in a personal action in the - hundred court he will have to answer there unless _A_ appears - and 'claims his court.' This comes out plainly in certain - rolls of the court of Wisbeach Hundred, which by the kind - permission of the Bishop of Ely, I have examined. On a roll of - 33 Edw. I. we find Stephen Hamond sued for a debt; 'et super - hoc venit Prior Elyensis et petit curiam suam; et Thomas - Doreward petit curiam suam de dicto Stephano residente suo et - tenente suo.' The prior's petition is refused on the ground - that Stephen is not his tenant, and Doreward's petition is - refused on the ground that it is unprecedented. - - [378] D. B. ii. 291: 'Et fuit in soca Regis. Postquam Briennus - habuit, nullam consuetudinem reddidit in hundreto.' Ibid. 240: - 'Hoc totum tenuit Lisius pro uno manerio; modo tenet Eudo - successor illius et in T. R. E. soca et saca fuit in hundreto; - set modo tenet Eudo.'--Ibid. 240 b: 'Soca istius terre T. R. - E. iacuit in Folsa Regis; modo habet Walterius - [Giffardus].'--Ibid. 285 b: the hundred testified that in - truth the King and Earl had the soke and sake in the - Confessor's day, but the men of the vill say that Burchard - likewise (_similiter_) had the soke of his free men as well as - of his villeins. - - [379] D. B. i. 35 b: 'Duo fratres tenuerunt T. R. E.; unusquisque - habuit domum suam et tamen manserunt in una curia.' Ibid. 103 - b: 'Ibi molendinum serviens curiae.' Ibid. 103: 'arabant et - herciabant ad curiam domini.' - - [380] D. B. i. 87 b. Kemble, Cod. Dip., iv. p. 233: 'and þriwa secan - gemot on 12 monðum.' - - [381] D. B. i. 193 b; Hamilton, Inquisitio, 77-8. - - [382] D. B. i. 75. - - [383] D. B. i. 238. - - [384] D. B. i. 186. - - [385] D. B. i. 38 b. - - [386] D. B. i. 101. - - [387] D. B. i. 280 b: 'Hic notantur qui habuerunt socam et sacam et - thol et thaim et consuetudinem Regis 2 denariorum.... Horum - omnium nemo habere potuit tercium denarium comitis nisi eius - concessu et hoc quamdiu viveret, preter Archiepiscopum et Ulf - Ferisc et Godeue Comitissam.' - - [388] See above, p. 92, note 367. - - [389] D. B. ii. 123 b: 'De istis est soca in hundreto ad tercium - denarium.' - - [390] D. B. ii. 282. - - [391] D. B. ii. 312: 'Rex habet in Duneuuic consuetudinem hanc quod - duo vel tres ibunt ad hundret si recte moniti fuerint, et si - hoc non faciunt, forisfacti sunt de 2 oris, et si latro _ibi_ - fuerit captus _ibi_ judicabitur, et corporalis iusticia in - Blieburc capietur, et sua pecunia remanebit dominio de - Duneuuic.' It seems to us that the first _ibi_ must refer to - Dunwich and therefore that the second does so likewise. Still - the passage is ambiguous enough. - - [392] See above, p. 91. - - [393] Battle Custumals (Camden Soc.) 136. This is an interesting - example, for it suggests an explanation of the common claim to - hold a court 'outside' the hundred court (_petit curiam suam - extra hundredum_). The claimant's men will go apart and hold a - little court by themselves outside 'the four benches' of the - hundred. - - [394] D. B. i. 32: 'et si quis forisfaciens ibi calumpniatus - fuisset, Regi emendabat; si vero non calumpniatus abisset sub - eo qui sacam et socam habuisset, ille emendam de reo haberet.' - Compare with this the account of Guildford, Ibid. 30. - - [395] D. B. i. 56 b. - - [396] D. B. i. 336 b. - - [397] D. B. i. 238. - - [398] The passages from the dooms are collected by Schmid s. v. - _Hausfriede_, _Feohtan_. - - [399] Ine, 6 § 3: 'If he fight in the house of a gavel-payer or - boor, let him give 30 shillings by way of wite and 6 shillings - to the boor.' - - [400] D. B. i. 204. - - [401] D. B. ii. 419 b: 'Cercesfort tenuit Scapius teinnus - Haroldi.... Scapius habuit socam sub Haroldo.'--Ibid. 313: - 'Heroldus socam habuit et Stanuuinus de eo.... Idem Stanuuinus - socam habuit de Heroldo.' - - [402] D. B. i. 142 b: 'et vendere potuerunt praeter socam; unus - autem eorum etiam socam suam cum terra vendere poterat.' Comp. - D. B. ii. 230: 'Huic manerio iacent 5 liberi homines ad socam - tantum commend[ati] et 2 de omni consuetudine.'--Ibid. ii. 59: - 'In Cingeham tenuit Sauinus presbyter 15 acras ... in eadem - villa tenuit Etsinus 15 acras.... Isti supradicti fuerunt - liberi ita quod ipsi possent vendere terram cum soca et saca - ut hundretus testatur.'--Ibid. ii. 40 b: 'et iste fuit ita - liber quod posset ire quo vellet cum soca et sacha set tantum - fuit homo Wisgari.' - - [403] Leg. Henr. 81 § 3: 'Quidam, villani qui sunt, eiusmodi - leierwitam et blodwitam et huiusmodi minora forisfacta emerunt - a dominis suis, vel quomodo meruerunt, de suis et in suos, - quorum flet-gefoth vel overseunessa est 30 den.; cothseti 15 - den.; servi 6 (_al._ 5) den.' The _flet-gefoth_ seems to be - the sum due for fighting in a man's _flet_ or house. - - [404] Munimenta Gildhallae, i. 66. - - [405] Hist. Eng. Law, i. 580-2. - - [406] D. B. ii. 424: 'Et dicunt etiam quod istam terram R[anulfus] - calumpniavit supra Radulfum, et vicecomes Rogerius denominavit - illis constitutum tempus m[odo] ut ambo adfuissent; Ranulfo - adveniente defuit Radulfus et iccirco diiudicaverunt homines - hundreti Rannulfum esse saisitum.'--Ibid. i. 165 b: 'Modo - iacet in Bernitone hundredo iudicio hominum eiusdem - hundredi.'--Ibid. i. 58 b: 'unde iudicium non dixerunt, sed - ante Regem ut iudicet dimiserunt.'--Ibid. 182 b: 'In isto - hundredo ad placita conveniunt qui ibi manent ut rectum - faciant et accipiant.' - - [407] Above, p. 95. - - [408] D. B. ii. 186: 'In Sterestuna tenuit 1 liber homo S. Aldrede - T. R. E. et Stigandi erat soca et saco in Hersam, set nec dare - nec vendere poterat terram suam sine licentia S. Aldrede et - Stigandi.' - - [409] D. B. ii. 376. - - [410] D. B. ii. 401 b: 'Eodem tempore fuerunt furati equi inventi in - domo istius Brungari, ita quod Abbas cuius fuit soca et saca - et Rodbertus qui habuit commendationem super istum venerunt de - hoc furto ad placitum, et sicut hundret testatur discesserunt - amicabiliter sine iudicio quod vidissed (_sic_) hundret.' - - [411] E.g. D. B. ii. 35 b: 'quas tenuerunt 2 sochemanni et 1 liber - homo.' - - [412] D. B. ii. 28 b: 'Huic manerio iacent 5 sochemanni quorum 2 - occupavit Ingelricus tempore Regis Willelmi qui tune erant - liberi homines.' - - [413] D. B. ii. 83: '3 sochemanni tenentes libere.'--Ibid. 88 b: - 'tunc fuit 1 sochemannus qui libere tenuit 1 virgatam.'--Ibid. - 58: 'in hac terra sunt 13 sochemanni qui libere tenent.' - - [414] D. B. i. 212 b, Bedf.: 'Hanc terram tenuerunt 4 sochemanni - quorum 3 liberi fuerunt, quartus vero unam hidam habuit, sed - nec dare nec vendere potuit.' - - [415] D. B. i. 35 b, 'Isti liberi homines ita liberi fuerunt quod - poterant ire quo volebant.'--Ibid. ii. 187: '5 homines ... ex - istis erant 4 liberi ut non possent recedere nisi dando 2 - solidos.' - - [416] Round, Feudal England, 34. - - [417] D. B. ii. 59 b, Essex: 'quod tenuerunt 2 liberi homines ... - set non poterant recedere sine licentia illius Algari.'--Ibid. - 216 b, Norf.: 'Ibi sunt 5 liberi homines S. Benedicti - commendatione tantum ... et ita est in monasterio quod nec - vendere nec forisfacere pot[uerunt] extra ecclesia set soca - est in hundredo.'--Ibid. i. 137 b, Herts: 'duo teigni ... - vendere non potuerunt.'--Ibid. i. 30 b, Hants: 'Duo liberi - homines tenuerunt de episcopo T. R. E. sed recedere cum terra - non potuerunt.' - - [418] Above, p. 103, note 417. - - [419] E.g. D. B. i. 129 b: 'In hac terra fuerunt 5 sochemanni de 6 - hidis quas potuerunt dare vel vendere sine licentia dominorum - suorum.' - - [420] Above, p. 100, note 402. - - [421] E.g. D. B. ii. 358: '7 liberos homines ... hi poterant dare - vel vendere terram set saca et soca et commendatio et - servitium remanebant Sancto [Edmundo].' - - [422] D. B. ii. 186: 'In Sterestuna tenuit unus liber homo S. - Aldredae T. R. E. et Stigandi erat soca et saco in - Hersam.'--Ibid. 139 b: 'habuit socam et sacam ... de - commendatis suis.' - - [423] D. B. i. 141. - - [424] Liebermann, Leges Edwardi, p. 72. The most important passage - is Leg. Edw. 12 § 4: 'Manbote in Danelaga de villano et de - socheman 12 oras [= 20 sol.]: de liberis hominibus 3 marcas [= - 40 sol.].' - - [425] A study of the Hundred Rolls might prepare us for this result. - One jury will call _servi_ those whom another jury would have - called _villani_. See e.g. R. H. ii. 688 ff. - - [426] D. B. ii. 189 b, 190. - - [427] D. B. ii. 318: 'In Suttona tenet idem W. [de Cadomo] de R. - Malet 2 liberos homines commendatos Edrico 61 acr[arum] et sub - 1 ex ipsis 5 liberi [_sic_] homines.'--Ibid. 321 b: 'In - Caldecota 6 liberi homines commendati Leuuino de Bachetuna 74 - acr. et 7 liberi homines sub eis commend[ati] de 6 acr. et - dim.' - - - - -§ 6. _The Manor._ - - -[What is a manor?] - -This brings us face to face with a question that we have hitherto -evaded. What is a manor? The word _manerium_ appears on page after page -of Domesday Book, but to define its meaning will task our patience. -Perhaps we may have to say that sometimes the term is loosely used, that -it has now a wider, now a narrower compass, but we can not say that it -is not a technical term. Indeed the one statement that we can safely -make about it is that, at all events in certain passages and certain -contexts, it is a technical term. - -['Manor' a technical term.] - -We may be led to this opinion by observing that in the description of -certain counties--Middlesex, Buckingham, Bedford, Cambridge, Huntingdon, -Derby, Nottingham, Lincoln, York--the symbol _M_ which represents a -manor, is often carried out into the margin, and is sometimes contrasted -with the _S_ which represents a soke and the _B_ which represents a -berewick. This no doubt has been done--though it may not have been very -consistently done--for the purpose of guiding the eye of officials who -will turn over the pages in search of manors. But much clearer evidence -is forthcoming. Throughout the survey of Essex it is common to find -entries which take such a form as this: 'Thurkil held it for two hides -and for one manor'; 'Brithmær held it for five hides and for one manor'; -'Two free men who were brothers held it for two hides and for two -manors'; 'Three free men held it for three manors and for four hides and -twenty-seven acres[428].' In Sussex again the statement '_X_ tenuit pro -uno manerio[429]' frequently occurs. Such phrases as 'Four brothers held -it for two manors, Hugh received it for one manor[430],'--'These four -manors are now for one manor[431],'--'Then there were two halls, now it -is in one manor[432],'--'A certain thegn held four hides and it was a -manor[433],'--are by no means unusual[434]. A clerk writes 'Elmer -tenuit' and then is at pains to add by way of interlineation 'pro -manerio[435].' 'Eight thegns held this manor, one of them, Alwin, held -two hides for a manor; another, Ulf, two hides for a manor; another, -Algar, one hide and a half for a manor; Elsi one hide, Turkill one hide, -Lodi one hide, Osulf one hide, Elric a half-hide[436]'--when we read -this we feel sure that the scribe is using his terms carefully and that -he is telling us that the holdings of the five thegns last mentioned -were not manors. And then Hugh de Port holds Wallop in Hampshire 'for -half a manor[437].' But let us say at once that at least one rule of -law, or of local custom, demands a definition of a _manerium_. In the -shires of Nottingham and Derby a thegn who has more than six manors pays -a relief of £8 to the king, but if he has only six manors or less, then -a relief of 3 marks to the sheriff[438]. It seems clear therefore that -not only did the Norman rulers treat the term _manerium_ as an accurate -term charged with legal meaning, but they thought that it, or rather -some English equivalent for it, had been in the Confessor's day an -accurate term charged with legal meaning. - -[The word _manerium_.] - -The term _manerium_ seems to have come in with the Conqueror[439], -though other derivatives from the Latin verb _manere_, in particular -_mansa_, _mansio_, _mansiuncula_ had been freely employed by the scribes -of the land-books. But these had as a rule been used as representatives -of the English _hide_, and just for this reason they were incapable of -expressing the notion that the Normans desired to express by the word -_manerium_. In its origin that word is but one more name for a house. -Throughout the Exeter Domesday the word _mansio_ is used instead of the -_manerium_ of the Exchequer record, and even in the Exchequer record we -may find these two terms used interchangeably:--'Three free men belonged -to this _manerium_; one of them had half a hide and could withdraw -himself without the licence of the lord of the _mansio_[440].' If we -look for the vernacular term that was rendered by _manerium_, we are -likely to find it in the English _heal_. Though this is not connected -with the Latin _aula_, still these two words bearing a similar meaning -meet and are fused in the _aula_, _haula_, _halla_ of Domesday Book. - -[Manor and hall.] - -Now this term stands in the first instance for a house and can be -exchanged with _curia_. You may say that there is meadow enough for the -horses of the _curia_[441], and that there are three horses in the -_aula_[442]; you may speak indifferently of a mill that serves the -hall[443], or of the mill that grinds the corn of the court[444]. But -further, you may say that in Stonham there are 50 acres of the demesne -land of the hall in Creeting, or that in Thorney there are 24 acres -which belong to the hall in Stonham[445], or that Roger de Rames has -lands which once were in the hall of St Edmund[446], or that in the hall -of Grantham there are three carucates of land[447], or that Guthmund's -sake and soke extended only over the demesne of his hall[448]. We feel -that to such phrases as these we should do no great violence were we to -substitute 'manor' for 'hall.' Other phrases serve to bring these two -words very closely together. One and the same page tells us, first, that -Hugh de Port holds as one manor what four brothers held as two manors, -and then, that on another estate there is one hall though of old there -were two halls[449]:--these two stories seem to have the same point. -'Four brothers held this; there was only one hall there[450].' 'Two -brothers held it and each had his hall; now it is as one manor[451].' -'In these two lands there is but one hall[452].' 'Then there were two -halls; now it is in one manor[453].' 'Ten manors; ten thegns, each had -his hall[454].' 'Ingelric set these men to his hall.... Ingelric added -these men to his manor[455].' - -[Difference between manor and hall.] - -We do not contend that _manerium_ and _halla_ are precisely equivalent. -Now and again we shall be told of a _manerium sine halla_[456] as of -some exceptional phenomenon. The term _manerium_ has contracted a shade -of technical meaning; it refers, so we think, to a system of taxation, -and thus it is being differentiated from the term _hall_. Suppose, for -example, that a hall or manor has meant a house from which taxes are -collected, and that some one removes that house, houses being very -portable things[457]: 'by construction of law,' as we now say, there -still may be a hall or manor on the old site; or we may take advantage -of the new wealth of words and say that, though the hall has gone, the -manor remains: to do this is neater than to say that there is a -'constructive' hall where no hall can be seen. Then again, _manerium_ is -proving itself to be the more elastic of the two terms. We may indeed -speak of a considerable stretch of land as belonging to or even as -'being in' a certain hall, and this stretch may include not only land -that the owner of the hall occupies and cultivates by himself or his -servants, but also land and houses that are occupied by his -villeins[458]: still we could hardly talk of the hall being a league -long and a league wide or containing a square league. Of _manerium_, -however, we may use even such phrases as those just mentioned[459]. For -all this, we can think of no English word for which _manerium_ can -stand, save _hall_; _tún_, it is clear enough, was translated by -_villa_, not by _manerium_. - -[Size of the _maneria_.] - -If now we turn from words to look at the things which those words -signify, we shall soon be convinced that to describe a typical -_manerium_ is an impossible feat, for on the one hand there are enormous -_maneria_ and on the other hand there are many holdings called -_maneria_ which are so small that we, with our reminiscences of the law -of later days, can hardly bring ourselves to speak of them as manors. If -we look in the world of sense for the essence of the _manerium_ we shall -find nothing that is common to all _maneria_ save a piece of -ground--very large it may be, or very small--held (in some sense or -another) by a single person or by a group of co-tenants, for even upon a -house we shall not be able to insist very strictly. After weary -arithmetical labours we might indeed obtain an average manor; we might -come to the conclusion that the average manor contained so many hides or -acres, possibly that it included land occupied by so many sokemen, -villeins, bordiers, serfs; but an average is not a type, and the -uselessness of such calculations will soon become apparent. - -[A large manor.] - -We may begin by looking at a somewhat large manor. Let it be that of -Staines in Middlesex, which is held by St Peter of Westminster[460]. It -is rated at 19 hides but contains land for 24 plough-teams. To the -demesne belong 11 hides and there are 13 teams there. The villeins have -11 teams. There are:-- - - 3 villeins with a half-hide apiece. - 4 villeins with a hide between them. - 8 villeins with a half-virgate apiece. - 36 bordiers with 3 hides between them. - 1 villein with 1 virgate. - 4 bordiers with 40 acres between them. - 10 bordiers with 5 acres apiece. - 5 cottiers with 4 acres. - 8 bordiers with 1 virgate. - 3 cottiers with 9 acres. - 13 serfs. - 46 burgesses paying 40 shillings a year. - -There are 6 mills of 64 shillings and one fish-weir of 6_s._ 8_d._ and -one weir which renders nothing. There is pasture sufficient for the -cattle of the vill. There is meadow for the 24 teams, and in addition to -this there is meadow worth 20_s._ a year. There is wood for 30 pigs; -there are 2 arpents of vineyard. To this manor belong four berewicks. -Altogether it is worth £35 and formerly it was worth £40.--This is a -handsome manor.--The next manor that is mentioned would be a fairer -specimen. It is Sunbury held by St Peter of Westminster[461]. It is -rated at 7 hides and there is land for but 6 teams. To the demesne -belong 4 hides and there is one team there. The villeins have 4 teams. -There are:-- - - A priest with a half-virgate. - 8 villeins with a virgate apiece. - 2 villeins with a virgate. - 5 bordiers with a virgate. - 5 cottiers. - 1 serf. - -There is meadow for 6 teams and pasture enough for the cattle of the -vill. Altogether it is worth £6 and has been worth £7. Within this one -county of Middlesex we can see wide variations. There are manors which -are worth £50 and there are manors which are not worth as many -shillings. The archbishop's grand manor at Harrow has land for 70 -teams[462]; the Westminster manor of Cowley has land for but one team -and the only tenants upon it are two villeins[463]. - -[Enormous manors. Leominster.] - -But far larger variations than these are to be found. Let us look at a -few gigantic manors. Leominster in Herefordshire had been held by Queen -Edith together with sixteen members[464]. The names of these members are -given and we may find them scattered about over a wide tract of -Herefordshire. In this manor with its members there were 80 hides. In -the demesne there were 30 teams. There were 8 reeves and 16 beadles and -8 radknights and 238 villeins, 75 bordiers and 82 male and female serfs. -These in all had 230 teams; so that with the demesne teams there were no -less than 260. Further there were Norman barons paying rents to this -manor. Ralph de Mortemer for example paid 15_s._ and Hugh de Lacy 6_s._ -8_d._ It is let to farm at a rent of £60 and besides this has to support -a house of nuns; were it freed from this duty, it might, so thinks the -county, be let at a rent of £120. It is a most interesting manor, for we -see strong traces of a neat symmetrical arrangement:--witness the 16 -members, 8 reeves, 8 radknights, 16 beadles; very probably it has a -Welsh basis[465]. But we have in this place to note that it is called a -manor, and for certain purposes it is treated as a single whole. For -what purposes? Well, for one thing, it is let to farm as a single whole. -This, however, is of no very great importance, for landlords and farmers -may make what bargains they please. But also it is taxed as a single -whole. It is rated at the nice round figures of 80 hides. - -[Berkeley.] - -[Tewkesbury.] - -No less handsome and yet more valuable is Berkeley in -Gloucestershire[466]. It brought in a rent of £170 of refined money. It -had eighteen members which were dispersed abroad over so wide a field -that a straight line of thirty miles would hardly join their uttermost -points[467]. 'All the aforesaid members belong to Berkeley.' There were -29 radknights, 162 villeins, 147 bordiers, 22 coliberts, 161 male and -female serfs, besides some unenumerated men of the radknights; on the -demesne land were 54-1/2 teams; and the tenants had 192. Tewkesbury also -is a splendid manor. 'When it was all together in King Edward's time it -was worth £100,' though now but £50 at the most can be had from it and -in the turmoil of the Conquest its value fell to £12[468]. It was a -scattered unit, but still it was a unit for fiscal purposes. It was -reckoned to contain 95 hides, but the 45 which were in demesne were quit -of geld, and matters had been so arranged that all the geld on the -remaining 50 hides had, as between the lord and his various tenants, -been thrown on 35 of those hides. The 'head of the manor' was at -Tewkesbury; the members were dispersed abroad; but 'they gelded in -Tewkesbury[469].' - -[Taunton.] - -No list of great manors would be complete without a notice of -Taunton[470]. 'The bishop of Winchester holds Tantone or has a mansion -called Tantone. Stigand held it in King Edward's day and it gelded for -54 hides and 2-1/2 virgates. There is land for 100 teams, and besides -this the bishop in his demesne has land for 20 teams which never -gelded.' 'With all its appendages and customs it is worth £154. 12_d._' -'Tantone' then is valued as a whole and it has gelded as a whole. But -'Tantone' in this sense covers far more than the borough which bears -that name; it covers many places which have names of their own and had -names of their own when the survey was made[471]. We might speak of the -bishop of Exeter's manor of Crediton in Devon which is worth £75 and in -which are 264 villeins and 73 bordiers[472], or of the bishop of -Winchester's manor of Chilcombe in Hampshire where there are nine -churches[473]; but we turn to another part of England. - -[Large manors in the midlands.] - -If we wish to see a midland manor with many members we may look at -Rothley in Leicestershire[474]. The vill of Rothley itself is not very -large and it is separately valued at but 62_s._ But 'to this manor -belong the following members,' and then we read of no less than -twenty-one members scattered over a large area and containing 204 -sokemen who with 157 villeins and 94 bordiers have 82 teams and who pay -in all £31. 8_s._ 1_d._ Their rents are thus reckoned as forming a -single whole. In Lincolnshire Earl Edwin's manor of Kirton had 25 -satellites, Earl Morcar's manor of Caistor 16, the Queen's manor of -Horncastle 15[475]. A Northamptonshire manor of 27 hides lay scattered -about in six hundreds[476]. - -[Town-houses and berewicks attached to manors.] - -It is common enough to see a town-house annexed to a rural manor. -Sometimes a considerable group of houses or 'haws' in the borough is -deemed to 'lie in' or form part of a manor remote from its walls. Thus, -to give but two examples, twelve houses in London belong to the Bishop -of Durham's manor of Waltham in Essex; twenty-eight houses in London to -the manor of Barking[477]. Not only these houses but their occupants are -deemed to belong to the manor; thus 80 burgesses in Dunwich pertain to -one of the Ely manors[478]. The berewick (_bereuita_)[479] also -frequently meets our eye. Its name seems to signify primarily a wick, or -village, in which barley is grown; but, like the barton (_bertona_) and -the grange (_grangia_) of later days, it seems often to be a detached -portion of a manor which is in part dependent on, and yet in part -independent of, the main body. Probably at the berewick the lord has -some demesne land and some farm buildings, a barn or the like, and the -villeins of the berewick are but seldom called upon to leave its limits; -but the lord has no hall there, he does not consume its produce upon the -spot, and yet for some important purposes the berewick is a part of the -manor. The berewick might well be some way off from the hall; a manor -in Hampshire had three berewicks on the mainland and two in the Isle of -Wight[480]. - -[Manor and soke.] - -Then again in the north and east the manor is often the centre of an -extensive but very discrete territory known as its soke. One says that -certain lands are 'soke' or are 'the soke,' or are 'in the soke' of such -a manor, or that 'their soke belongs' to such a manor. One contrasts the -soke of the manor with the 'inland' and with the berewicks[481]. The -soke in this context seems to be the territory in which the lord's -rights are, or have been, of a justiciary rather than of a proprietary -kind[482]. The manor of the eastern counties is a discrete, a dissipated -thing. Far from lying within a ring fence, it often consists of a small -nucleus of demesne land and villein tenements in one village, together -with many detached parcels in many other villages, which are held by -'free men' and sokemen. In such a case we may use the term _manerium_ -now in a wider, now in a narrower sense. In valuing the manor, we hardly -know whether to include or exclude these free men. We say that the manor -'with the free men' is worth so much[483], or that the manor 'without -the free men' is worth so much[484], that the manor is worth £10 and -that the free men pay 40 shillings[485], that Thurmot had soke over the -manor and over three of the free men while the Abbot of Ely had soke -over the other three[486]. - -[Minute manors.] - -From one extreme we may pass to the other extreme. If there were huge -manors, there were also tiny manors. Let us begin in the south-west of -England. Quite common is the manor which is said to have land for but -one team; common also is the manor which is said to have land for but -half a team. This means, as we believe, that the first of these manors -has but some 120 acres of arable, while the second has but 60 acres or -thereabouts. 'Domesday measures' are, it is well known, the matter of -many disputes; therefore we will not wholly rely upon them, but will -look at some of these 'half-team' manors and observe how much they are -worth, how many tenants and how much stock they have upon them. - - (i) A Somersetshire manor[487]. Half the land is in demesne; half - is held by 7 bordiers. The only plough beasts are 4 oxen on the - demesne; there are 3 beasts that do not plough, 20 sheep, 7 acres - of underwood, 20 acres of pasture. It is worth 12_s._, formerly it - was worth 10_s._ - - (ii) A Somersetshire manor[488]. A quarter of the land is in - demesne; the rest is held by 2 villeins and 3 bordiers. The men - have one team; apparently the demesne has no plough-oxen. No other - animals are mentioned. There are 140 acres of wood, 41 acres of - moor, 40 acres of pasture. It is worth 12_s._ 6_d._ and has been - worth 20_s._ - - (iii) A Somersetshire manor[489]. All the land, save 10 acres, is - in demesne; 2 bordiers hold the 10 acres. There is a team on the - demesne; there are 2 beasts that do not plough, 7 pigs, 16 sheep, 4 - acres of meadow, 7 of pasture. Value, 6_s._ - - (iv) A Somersetshire manor[490]. The whole of the arable is in - demesne; the only tenant is a bordier. There are 4 plough-oxen and - 11 goats and 7 acres of underwood. Value, 6_s._ - - (v) A Devonshire manor[491]. To all seeming all is in demesne and - there are no tenants. There are 4 plough-beasts, 15 sheep, 5 goats, - 4 acres of meadow. Value, 3_s._ - - (vi) A Devonshire manor[492]. Value, 3_s._ All seems to be in - demesne; we see no tenants and no stock. - -We have been at no great pains to select examples, and yet smaller -manors may be found, manors which provide arable land for but two oxen. -Thus - - (vii) A Somersetshire manor[493] occupied by one villein. We read - nothing of any stock. Value, 15_d._ - - (viii) A Somersetshire manor[494] with 3 bordiers on it. Value, - 4_s._ - - (ix) A Somersetshire manor[495] with one bordier on it. Value, - 30_d._ - -The lowest value of a manor in this part of the world is, so far as we -have observed, one shilling; that manor to all appearance was nothing -but a piece of pasture land[496]. Yet each of these holdings is a -_mansio_, and the Bishop of Winchester's holding at Taunton is a -_mansio_. - -[Small manors in the east.] - -From one side of England we will journey to the other side; from Devon -and Somerset to Essex and Suffolk. We soon observe that in describing -the holdings of the 'free men' and sokemen of this eastern district as -they were in King Edward's day, our record constantly introduces the -term _manerium_. A series of entries telling us how 'a free man held _x_ -hides or carucates or acres' will ever and anon be broken by an entry -that tells us how 'a free man held _x_ hides or carucates or acres for a -manor'[497]. We soon give up counting the cases in which the manor is -rated at 60 acres. We begin counting the cases in which it is rated at -30 acres and find them numerous; we see manors rated at 24 acres, at 20, -at 15, at 12 acres. But this, it may be said, tells us little, for these -manors may be extravagantly underrated[498]. Let us then look at a few -of them. - - (i) In Espalle Siric held 30 acres for a manor; there were always 3 - bordiers and one team and 4 acres of meadow; wood for 60 pigs and - 13 beasts. It was then worth 10_s._[499] - - (ii) In Torentuna Turchetel a free man held 30 acres for a manor; - there were always 2 bordiers and one team and a half. It is worth - 10_s._[500] - - (iii) In Bonghea Godric a free man held 30 acres for a manor; there - were 1 bordier and 1 team and 2 acres of meadow. It was then worth - 8_s_.[501] - - (iv) Three free men and their mother held 30 acres for a manor. - There was half a team. Value, 5_s._[502] - - (v) In Rincham a free man held 30 acres for a manor. There were - half a team and one acre of meadow. Value, 5_s._[503] - - (vi) In Wenham Ælfgar a free man held 24 acres for a manor. Value, - 4_s._[504] - - (vii) In Torp a free man held 20 acres for a manor. One team; wood - for 5 pigs. Value, 40_d._[505] - - (viii) In Tudenham Ælfric the deacon, a free man, held 12 acres for - a manor. One team, 3 bordiers, 2 acres of meadow, 1 rouncey, 2 - beasts that do not plough, 11 pigs, 40 sheep. Value, 3_s._[506] - -We are not speaking of curiosities; the sixty acre manor was very common -in Essex, the thirty acre manor was no rarity in Suffolk. - -[The manor as a peasant's holding.] - -Now it is plain enough that the 'lord' of such a manor,--or rather the -holder of such a manor, for there was little lordship in the case,--was -often enough a peasant, a tiller of the soil. He was under soke and -under commendation; commended it may be to one lord, rendering soke to -another. Sometimes he is called a sokeman[507]. But he has a manor. -Sometimes he has a full team, sometimes but half a team. Sometimes he -has a couple of bordiers seated on his land, who help him in his -husbandry. Sometimes there is no trace of tenants, and his holding is by -no means too large to permit of his cultivating it by his own labour and -that of his sons. No doubt in the west country even before the Conquest -these petty _mansiones_ or _maneria_ were being accumulated in the hands -of the wealthy. The thegn who was the _antecessor_ of the Norman baron, -sometimes held a group, a geographically discontinuous group, of petty -manors as well as some more substantial and better consolidated estates. -But still each little holding is reckoned a manor, while in the east of -England there is nothing to show that the nameless free men who held the -manors which are said to consist of 60, 40, 30 acres had usually more -than one manor apiece. When therefore we are told that already before -the Conquest England was full of manors, we must reply: Yes, but of what -manors[508]? - -[Definition of a manor.] - -Now were the differences between various manors a mere difference in -size and in value, a student of law might pass them by. Our notion of -ownership is the same whether it be applied to the largest and most -precious, or to the smallest and most worthless of things. But in this -case we have not to deal with mere differences in size or value. The -examples that we have given will have proved that few, if any, -propositions of legal import will hold good of all _maneria_. We must -expressly reject some suggestions that the later history of our law may -make to us. 'A manor has a court of its own':--this is plainly untrue. -To say nothing of extreme cases, of the smallest of the manors that we -have noticed, we can not easily believe that a manor with less than ten -tenants has a court of its own, yet the number of such manors is -exceedingly large. 'A manor has freehold tenants':--this of course we -must deny, unless we hold that the _villani_ are freeholders. 'A manor -has villein or customary tenants':--even this proposition, though true -of many cases, we can not accept. Not only may we find a manor the only -tenants upon which are _liberi homines_[509], but we are compelled to -protest that a manor need not have any tenants at all. 'A manor must -contain demesne land':--this again we can not believe. In one case we -read that the whole manor is being farmed by the villeins so that there -is nothing in demesne[510], while in other cases we are told that there -is nothing in demesne and see no trace of any recent change[511]. Thus, -one after another, all the familiar propositions seem to fail us, and -yet we have seen good reason to believe that _manerium_ has some exact -meaning. It remains that we should hazard an explanation. - -[The manor and the geld.] - -A manor is a house against which geld is charged. To the opinion that in -some way or another the definition of a manor is intimately connected -with the great tax we shall be brought by phrases such as the following: -'Richard holds Fivehide of the Earl which Brihtmær held in King Edward's -time for forty acres and for a manor[512].'--'Two free men who were -brothers, Bondi and Ælfric held it for two hides and for two -manors[513].' When we say that a man holds land 'as' or 'for' (_pro_) -forty acres, we mean that his holding, be its real size what it may, is -rated to the geld at forty acres. If we add the words 'and as (or for) -one manor,' surely we are still speaking of the geld. For one moment the -thought may cross our minds that, besides a tax on land, there has been -an additional tax on 'halls,' on houses of a certain size or value; but -this we soon dismiss as most unlikely. To raise but one out of many -objections: had there been such a house-tax, it would have left plain -traces of itself in those 'Geld Inquests' of the south-western counties -that have come down to us. Rather we regard the matter thus:--The geld -is a land-tax, a tax of so much per hide or carucate. In all likelihood -it has been assessed according to a method which we might call the -method of subpartitioned provincial quotas. The assumption has been made -that a shire or other large district contains a certain number of hides; -this number has then been apportioned among the hundreds of that shire, -and the number allotted to each hundred has been apportioned among the -vills of that hundred. The common result is that some neat number of -hides, five, ten or the like is attributed to the vill[514]. This again -has been divided between the holdings in that vill. Ultimately it is -settled that for fiscal purposes a given holding contains, or must be -deemed to contain, this or that number of hides, virgates, or acres. -Thus far the system makes no use of the _manerium_. But it now has to -discover some house against which a demand may be made for every -particular penny of geld. Despite the 'realism' of the system, it has to -face the fact that, after all, taxes must be paid by men and not by -land. Men live in houses. It seeks the tax-payer in his house. Now, were -all the occupiers of land absolute owners of the land that they -occupied, even were it true that every acre had some one person as its -absolute owner, the task would be simple. A schedule of five columns, -such we are familiar with, would set forth 'Owner's Name,' 'Place of -Residence,' 'Description of Geldable Property,' 'Hidage,' 'Amount due.' -But the occupier is not always the owner; what is more, there is no -absolute ownership. Two, three, four persons will be interested in the -land; the occupier will have a lord and that lord a lord; the occupier -may be a serf, a villein, a sokeman; there is commendation to be -considered and soke and all the infinite varieties of the power to -'withdraw' the land from the lord. Rude and hard and arbitrary lines -must be drawn. Of course the state will endeavour to collect the geld in -big sums. It will endeavour to make the great folk answer for the geld -which lies on any land that is in any way subject to their power; thus -the cost of collecting petty sums will be saved and the tax will be -charged on men who are solvent. The central power may even hold out -certain advantages to the lord who will become responsible for the geld -of his tenants or justiciables or commended men. The hints that we get -in divers counties that the lord's 'inland' has borne no geld seem to -point in this direction, though the arrangements about this matter seem -to have varied from shire to shire[515]. On the pipe rolls of a later -day we see that the geld charged against the magnates is often -'pardoned.' For one reason the king can not easily tax the rich; for -another he can not easily tax the poor; so he gets at the poor through -the rich. The small folk will gladly accept any scheme that will keep -the tax-collector from their doors, even though they purchase their -relief by onerous promises of rents and services. The great men, again, -may find advantage in such bargains; they want periodical rents and -services, and in order to obtain them will accept a certain -responsibility for occasional taxes. This process had gone very far on -the eve of the Conquest. Moreover the great men had enjoyed a large -liberty of paying their geld where they pleased, of making special -compositions with the king, of turning some wide and discrete territory -into a single geld-paying unit, of forming such 'manors' as Taunton or -Berkeley or Leominster. - -[Classification of men for the geld.] - -In King Edward's day, the occupiers of the soil might, so it seems to -us, be divided by the financier into three main classes. In the first -class we place the man who has a manor. He has, that is, a house at -which he is charged with geld. He may be a great man or a small, an earl -or a peasant; he may be charged at that house with the geld of a hundred -hides or with the geld of fifteen acres. In the second class we place -the villeins, bordiers, cottiers. The geld apportioned to the land that -they occupy is demanded from their lord at his manor, or one of his -manors. How he recoups himself for having to make this payment, that is -his concern; but he is responsible for it to the king, not as guarantor -but as principal debtor. But then, at least in the east and north, there -are many men who fall into neither of these classes. They are not -villeins, they are sokemen or 'free men'; but their own tenements are -not manors; they belong to or 'lie in' some manor of their lord. These -men, we think, can be personally charged with the geld; but they pay -their geld at their lord's hall and he is in some measure bound to exact -the payment. - -[Proofs of connexion between the manor and the geld.] - -Any thing that could be called a strict proof of this theory we can not -offer; but it has been suggested by many facts and phrases which we can -not otherwise explain. In the first place, our record seems to assume -that every holding either is a manor or forms part of a manor[516]. Then -we are told how lands 'geld' at or in some manor or at the _caput -manerii_. Thus lands which lie many miles away from Tewkesbury, but -which belong to the manor of Tewkesbury, 'geld in Tewkesbury[517].' -Sometimes the same information is conveyed to us by a phrase that -deserves notice. A piece of land is said to 'defend itself' in or at -some manor, or, which is the same thing, to have its _wara_ or render -its _wara_, that is to say, its defence, its answer to the demand for -geld, there[518]. 'In Middleton two sokemen had 16 acres of land and -they rendered their _wara_ in the said Middleton, but they could give -and sell their land to whom they pleased[519].' When we are told that -certain lands are _in warnode Drogonis_ or _in warnode Archiepiscopi_, -it is meant that the lands belong to Drogo or the Archbishop for the -purpose of 'defence' against the geld[520]. It is not sufficient that -land should be taxed, it must be taxed 'in' some place, which may be -remote from that in which, as a matter of physical fact, it lies[521]. -One clear case of a free tenant paying his geld to his lord is put -before us:--'Leofwin had half a hide and could withdraw with his land -and he paid geld to his lord and his lord paid nothing[522].' Besides -this we have cases in which the lord enjoys the special privilege of -collecting the geld from his tenants and keeping it for his own -use[523]. A remarkable Kentish entry tells us that at Peckham the -archbishop had an estate which had been rated at six sullungs, and then -that 'of the land of this manor a certain man of the archbishop held a -half-sullung which in King Edward's day gelded with these six sullungs, -although being free land it did not belong to the manor save for the -purpose of the scot[524].' Here we have land so free that the one -connexion between it and the manor to which it is attributed consists in -the payment of geld--it gelds along with the other lands of the manor. -In the great lawsuit between the churches of Worcester and Evesham about -the lands at Hamton, the former contended that these lands should pay -their geld along with the other estates of the bishop[525]. - -[Land gelds in a manor.] - -Let us observe the first question that the commissioners are to ask of -the jurors. What is the name of the _mansio_? Every piece of geldable -land is connected with some _mansio_, at which it gelds. Let us observe -how the commissioners and the jurors proceed in a district where the -_villae_ and the _mansiones_ or _maneria_ are but rarely coincident. The -jurors of the Armingford hundred of Cambridgeshire are speaking of their -country vill by vill. They come to the vill of Abington[526]. Abington, -they say, was rated at five hides. Of these five hides the king has a -half-hide; this lies in Litlington. Earl Roger has one virgate; this -lies in his manor of Shingay. Picot the sheriff has a half-virgate; this -lies and has always lain in Morden. In what sense important to the -commissioners or their master can a bundle of strips scattered about in -the fields of Abington be said to lie in Litlington, in Shingay, or in -Morden? We answer that it gelds there. - -[Geld and hall.] - -Hence the importance of the hall. It is the place where geld is demanded -and paid. A manor without a hall is a thing to be carefully noted, -otherwise some geld may be lost[527]. A man's land has descended to his -three sons: if 'there is only one hall,' but one demand for geld need be -made; if 'each has his hall,' there must be three separate demands. When -we are told that two brothers held land and that each had his house -(_domus_) though they dwelt in one court (_curia_), a nice problem is -being put before us:--Two halls, or one hall--Two manors or one -manor[528]? - -[The petty manors.] - -The petty _maneria_ of Suffolk, what can they be but holdings which geld -by themselves? The holders of them are not great men, they have no -tenants or just two or three bordiers; sometimes they can not 'withdraw' -their lands from their lords. But still they pay their own taxes at -their own houses. - -[The lord and his man's taxes.] - -In supposing that forces have been at work which tend to make the lord -responsible for the taxes of his men, we are not without a warrant in -the ancient dooms. 'If a king's thegn or a lord of land (_landrica_) -neglects to pay the Rome penny, let him forfeit ten half-marks, half to -Christ, half to the king. If a "townsman" withholds the penny, let the -lord of the land pay the penny and take an ox from the man, and if the -lord neglects to do this, then let Christ and the king receive the full -_bót_ of 12 ores[529].' The right of doing justice is also the duty of -doing justice. It is natural that the lord with soke should become a -tax-gatherer, and he will gladly guarantee the taxes if thereby he can -prevent the king's officers from entering his precinct and meddling with -his justiciables. At no time has the state found it easy to collect -taxes from the poor; over and over again it has been glad to avail -itself of the landlord's intermediation[530]. - -[Distinction between villeins and sokemen.] - -Our theory that while the lord is directly and primarily responsible for -the geld of his villeins, he is but subsidiarily responsible for the -geld of those of his sokemen or 'free men' who are deemed to belong to -his manor, is founded in part on what we take to have been the wording -of King William's writ[531], in part on the form taken by the returns -made thereto. The writ draws a marked line between the villein and the -sokeman. The king wishes to know how much land each sokeman, each _liber -homo_, holds; he does not care that any distinction should be drawn -between the lord's demesne lands and the lands of the villeins. And, on -the whole, his commands are obeyed. A typical entry in the survey of -East Anglia will first describe in one mass the land held by the lord -and his villeins, will tell us how many carucates this land is rated at, -how many teams there are on the demesne, and how many the men have, then -it will enumerate sheep and pigs and goats, and then, as it were in an -appendix, it will add that so many sokemen belong to this manor and that -between them they hold so many carucates or acres[532]. In Suffolk even -the names of these humble tenants are sometimes recorded[533]. And then, -we have seen[534] that there is some doubt as to whether or no these men -are or are not to be reckoned as part of the manor for all purposes. We -have to say that the manor 'with the free men,' or 'without the free -men' is worth so much. - -[The lord's subsidiary liability.] - -After all, we are only supposing that the fashion in which the danegeld -was put in charge resembled in some of its main outlines the fashion in -which a very similar tax was put in charge under Richard I. In 1194 the -land-tax that was levied for the payment of the king's ransom seems to -have been assessed according to the hidage stated in Domesday Book[535]. -Then in 1198 a new assessment was made. We are told that the king -ordained that every baron should with the sheriffs aid distrain his men -to pay the tax cast upon them, and that if, owing to the baron's -default, distresses were not made, then the amount due from the baron's -men should be seized from the baron's own demesne and he should be left -to recoup himself as best he could[536]. Now it is a liability of this -sort that we are venturing to carry back into the Confessor's day. The -lord is responsible to the state as principal, and indeed as sole, -debtor for so much of the geld as is due from his demesne land and from -the land of his _villani_, while as regards any lands of 'free men' or -sokemen which are attached to his manor, his liability is not primary -nor absolute; he is bound to take measures to make these men pay their -taxes; if he fails in this duty, then their taxes will become due from -his demesne[537]. - -[Manors distributed to the Frenchmen.] - -When we read that in Nottinghamshire the relief of the thegn who had six -manors or less was three marks, while his who had more than six manors -was eight pounds[538], this may seem to hint that some inferior limit -was set to the size of the manor. If so, it was drawn at a very low -point in the scale of tenements. Possibly some general rule had -compelled all men who held less than a bovate or half-virgate to 'add' -themselves to the manor of some lord. But the Nottinghamshire rule is -rude and arbitrary. He who has seven houses against which geld is -charged is a big man. On the other hand, it is probable that the Norman -lords brought with them some notion, and not a very modest notion, of -what a reasonably sufficient _manerium_ should be. The king has in some -cases rewarded them by a promise of ten or twenty manors without -specifying very carefully what those manors are to be like. He has -promised Count Eustace a hundred manors[539]. Thus we would explain a -not uncommon class of entries:--'fourteen free men commended to Wulfsige -were delivered to Rainald to make up (_ad perficiendum_) this manor of -Carlington[540].'--'in Berningham a free man held 20 acres of land and -this was delivered to Walter Giffard to make up Letheringsett[541].'-- -'Peter claims the land which belonged to seventeen free men as having -been delivered to him to make up this manor[542].'--'This land was -delivered to Peter to make up some, but his men do not know what, -manor[543].' The small 'free men' of the east have been 'added to' -manors to which they did not belong in King Edward's day. A few of the -free men of Suffolk still 'remain in the king's hand' ready to be -delivered out to complete the manors of their conquerors[544]. Here too -we may perhaps find the explanation of the entry which says that Hugh de -Port held Wallop 'for half a manor[545].' The king has promised him a -dozen or score of manors; and this estate at Wallop worth but fifteen -shillings a year, really no gentleman would take it for a manor. - -[Summary.] - -Such then is the best explanation that we can offer of the _manerium_ of -Domesday Book. About details we may be wrong, but that this term has a -technical meaning which is connected with the levy of the danegeld we -can not doubt. It loses that meaning in course of time because the -danegeld gives way before newer forms of taxation. It never again -acquires a technical meaning until the late days when retrospective -lawyers find the essence of a manor in its court[546]. - - -FOOTNOTES: - - [428] D. B. ii. 21, 26, 37 b, 59 b. - - [429] D. B. i. 21. - - [430] D. B. i. 45. - - [431] D. B. i. 6 b. - - [432] D. B. i. 27. - - [433] D. B. i. 163. - - [434] So in the Exeter record, D. B. iv. 390: 'Tenuerunt 3 tegni pro - 4 mansionibus, et Robertus habet illas pro 1 mansione.' - - [435] D. B. i. 169 b. Similar interlineations in i. 98. - - [436] D. B. i. 148; on f. 149 is a similar case. - - [437] D. B. i. 45 b. - - [438] D. B. i. 280 b. - - [439] In several passages in D. B. the word seems to be _manerius_. - - [440] D. B. ii. 96 b: 'Huic manerio iacebant 3 liberi homines, unus - tenuit dim. hidam et potuit abire sine licentia domini ipsius - mansionis.' - - [441] D. B. i. 149, Wicombe. - - [442] D. B. ii. 38 b, Hersam. - - [443] D. B. i. 174 b, Poiwic. - - [444] D. B. i. 268, Gretford. - - [445] D. B. ii. 350 b. - - [446] D. B. ii. 263: 'sed fuerunt in aula S. Edmundi.' - - [447] D. B. i. 337 b. - - [448] D. B. ii. 408 b: 'cum soca et saca super dominium hallae - tantum.' - - [449] D. B. i. 45, Wicheham, Werste. - - [450] D. B. i. 20, Waliland. - - [451] D. B. i. 11 b, Acres. - - [452] D. B. i. 26 b, Eldretune. - - [453] D. B. i. 27, Percinges. - - [454] D. B. i. 284 b, Ættune. - - [455] D. B. ii. 29 b, 30 b. - - [456] D. B. i. 307 b, Burghedurum; 308, Ternusc. - - [457] D. B. i. 63: 'Ipse quoque transportavit hallam et alias domos - et pecuniam in alio manerio.' - - [458] D. B. i. 338 b: 'Ad huius manerii aulam pertinent Catenai et - Usun 4 car. terrae ad geldum. Terra ad 8 carucas. Ibi in - dominio 2 carucae et 20 villani et 15 sochemanni et 10 - bordarii habentes 9 carucas. Ibi 360 acre prati. Ad eundem - manerium iacet hec soca:--In Linberge 4 car. terrae etc.' - - [459] Throughout Yorkshire the phrase is common, 'Totum manerium - _x._ leu. long. et _y._ leu. lat.' - - [460] D. B. i. 128. - - [461] D. B. i. 128 b. - - [462] D. B. i. 127. - - [463] D. B. i. 128 b. - - [464] D. B. i. 180. - - [465] Compare the cases in Seebohm, Village Community, 267. - - [466] D. B. i. 163. - - [467] If we mistake not, the Osleuuorde of the record is Ashleworth, - which, though some miles to the north of Gloucester, either - still is, or but lately was, a detached piece of the Berkeley - hundred. - - [468] D. B. i. 163. - - [469] D. B. i. 163 b: 'Hanc terram dedit regina Rogerio de Buslei et - geldabat pro 4 hidis in Tedechesberie.' - - [470] D. B. i. 87 b; iv. 161. - - [471] Eyton, Somerset, ii. 34. - - [472] D. B. i. 101 b; iv. 107. - - [473] D. B. i. 41. - - [474] D. B. i. 230. - - [475] D. B. i. 338-9. - - [476] D. B. i. 220, Tingdene. - - [477] D. B. ii. 15 b, 17 b. - - [478] D. B. ii. 385 b. - - [479] The form _bereuita_ is exceedingly common, but must, we think, - be due to a mistake; _c_ has been read as _t_. - - [480] D. B. i. 38 b, Edlinges. Some of the 'wicks' seem to have been - dairy farms. D. B. i. 58 b: 'et wika de 10 pensis caseorum.' - On the Glastonbury estates we find persons called _wikarii_, - each of whom has a _wika_. Glastonbury Rentalia, 39: 'Thomas - de Wika tenet 5 acras et 50 oves matrices et 12 vaccas ... - Philippus de Wika tenet unum ferlingum et 50 oves matrices et - 12 vaccas.' Ibid. 44: 'A. B. tenet unum ferlingum et 50 oves - matrices et 12 vaccas pro 1 sol. pro wika.' Ibid. 48: - 'Ricardus de Wika tenet 5 acras et 50 oves matrices et 12 - vaccas. Alanus de Wika eodem modo.' Ibid. p. 51 - - [481] D. B. i. 350: 'In Osgotebi et Tauelebi 2 bo[vatae] inland et 1 - bo[vata] soca huius manerii.' D. B. i. 338 b: 'Hiboldeston est - bereuuita non soca et in Grangeham sunt 2 car[ucatae] inland - et in Springetorp dim. car[ucata] est inland. Reliqua omnis - est soca.' - - [482] When therefore, as is often the case, we find that the - occupants of 'the soke' are not sokemen but villeins, this - seems to point to a recent depression of the peasantry. - - [483] D. B. ii. 330 b: 'In illo manerio ... sunt 35 liberi - homines.... Tunc valuerunt liberi homines 4 libras. Manerium - cum liberis hominibus valet modo 24 libras.' - - [484] D. B. ii. 358 b: 'Hoc manerium exceptis liberis tunc valuit 30 - solidos.' - - [485] D. B. ii. 289 b. - - [486] D. B. ii. 285 b. - - [487] D. B. iv. 397; i. 93 b, Ichetoca. - - [488] D. B. iv. 411; i. 94 b, Tocheswilla. - - [489] D. B. iv. 398; i. 93 b, Pilloc. - - [490] D. B. iv. 341; i. 96, Sordemanneford. - - [491] D. B. iv. 355; i. 116 b, Labera. - - [492] D. B. iv. 367; i. 112 b, Oplomia. - - [493] D. B. iv. 338; i. 95 b, Aisseforda. - - [494] D. B. iv. 395; i. 93, Terra Colgrini. - - [495] D. B. iv. 394; i. 93, Rima. - - [496] D. B. iv. 338; i. 95 b, Aisseforda. - - [497] As the term _manerium_ is often represented by the mere letter - _M_ or _m_, we will refer to some cases in which it is written - in full. D. B. ii. 295 b: '40 acras pro uno manerio'; Ibid. - 311 b: 'In eadem villa est 1 liber homo de 40 acris et tenet - pro manerio.' - - [498] The question whether the acreage stated in the Suffolk survey - is real or rateable can not be briefly debated. We hope to - return to it. - - [499] D. B. ii. 322 b, 323. - - [500] D. B. ii. 323. - - [501] D. B. ii. 288. - - [502] D. B. ii. 309. - - [503] D. B. ii. 297 b. - - [504] D. B. ii. 377. - - [505] D. B. ii. 333. - - [506] D. B. ii. 423. - - [507] D. B. ii. 316: 'In Aldeburc tenuit Uluricus sochemannus Edrici - T. R. E. 80 acras pro manerio.' Ibid. 353: 'Nordberiam tenuit - Eduinus presbyter sochemannus Abbatis 30 acras pro manerio.' - - [508] We have taken our examples of small manors from the east and - the south-west because Little Domesday and the Exeter Domesday - give details which are not to be had elsewhere. But instances - may be found in many other parts of England. Thus in Sussex, - i. 24, two free men held as two manors land rated at a hide - and sufficient for one team; it is now tilled by four - villeins. In the Isle of Wight, D. B. i. 39 b, five free men - held as five manors land sufficient for two teams; it is now - tilled by four villeins. In Gloucestershire, D. B. i. 170, is - a manor worth ten shillings with two serfs upon it; also a - manor rated at one virgate. In Derbyshire, D. B. i. 274 b, - land sufficient for four teams and rated as four carucates had - formed eight manors. In Nottinghamshire, D. B. i. 285 b, land - sufficient for a team and a half and valued at ten shillings - had formed five manors for five thegns, each of whom had his - hall. - - [509] D. B. ii. 380: 'In Thistledona tenet 1 liber homo Ulmarus - commendatus S. Eldrede 60 acras pro manerio et 5 liberi - homines sub se.' - - [510] D. B. i. 127 b: 'Wellesdone tenent canonici S. Pauli.... Hoc - manerium tenent villani ad firmam canonicorum. In dominio nil - habetur.' - - [511] D. B. i. 235 b: Billesdone, 'In dominio nil fuit nec est.' - Ibid. 166 b, Glouc.: 'Isdem Willelmus [de Ow] tenet - Alvredestone. Bondi tenuit T. R. E. Ibi 3 hidae geldantes. Nil - ibi est in dominio, sed 5 villani et 3 bordarii habent 3 - carucas.'... 'Isdem Willelmus tenet Odelavestone. Brictri - filius Algari tenuit. Ibi nil in dominio nisi 5 villani cum 5 - carucis.' D. B. iv. 396: 'Rogerius habet 1 mansionem quae - vocatur P...et reddit gildum pro dimidia virgata; hanc potest - arare 1 carruca. Hanc tenet Anschetillus de Rogerio. Ibi habet - Anschetillus 4 bordarios qui tenent totam illam terram et - habent ibi 1 carrucam et 1 agrum prati, et reddit 10 solidos.' - - [512] D. B. ii. 31. - - [513] D. B. ii. 59 b. - - [514] I leave this sentence as it stood before Mr Round had - published in his Feudal England the results of his brilliant - researches. Of the 'five hide unit' I already knew a good - deal; of the 'six carucate unit' I knew nothing. - - [515] Round, Domesday Studies, i. 109. - - [516] D. B. i. 35: 'In Driteham tenet Ricardus [filius Gisleberti] 1 - hidam et dimidiam. Ælmar tenuit de Rege E. pro uno manerio.... - In eadem Driteham est 1 hida et dimidia quam tenuit Aluric de - Rege E. pro uno manerio, et postea dedit illam terram uxori - suae et filiae ad aecclesiam de Certesy, sicuti homines de - hundredo testantur. Ricardus [filius Gisleberti] calumniatur. - Non iacet ulli manerio, nec pro manerio tenet, set liberata - fuit ei et modo 3 hidae geldant pro una hida et dimidia.' To - say of the second of these two plots that it neither is a - manor nor yet belongs to a manor, is to say that it is - shirking the geld. D. B. i. 48: 'Walerannus tenet Dene.... - Ista tera non adiacet ulli suo manerio.' Here _suo_ = - _Waleranni_. Waleran seems to be holding land without good - title. - - [517] D. B. i. 163 b, Clifort. D. B. i. 58 b: 'In Winteham tenet - Hubertus de Abbate 5 hidas, de terra villanorum fuerunt 4, et - geldaverunt cum hidis manerii.' - - [518] The word _wara_ means defence; it comes from a root which has - given us, _wary_, _warrant_, _warn_, _guarantee_, _weir_, etc. - See Vinogradoff, Villainage, 243. - - [519] D. B. i. 212. - - [520] D. B. i. 340, 366, 368. Is not the last part of the word A.-S. - _notu_, (business, office)? - - [521] D. B. i. 132 b: 'Hoc manerium tenuit Heraldus Comes et iacuit - et iacet in Hiz [Hitchin, Herts] sed wara hujus manerii iacuit - in Bedefordscire T. R. E. in hundredo de Maneheue.' D. B. i. - 190, 'Haec terra est bereuuicha in Neuport [Essex] set wara - ejus iacet in Grantebrige.' When in the survey of Oxfordshire, - i. 160, it is said, 'Ibi 1 hida de _warland_ in dominio,' the - taxed land is contrasted with the inland, which in this county - has gone untaxed. - - [522] D. B. i. 28. - - [523] See the cases of the monks of Bury and the canons of S. - Petroc, above, p. 55. - - [524] D. B. i. 4 b: 'De terra huius manerii ten[uit] unus homo - archiepiscopi dimid. solin et cum his 6 solins geldabat T. R. - E. quamvis non pertineret manerio nisi de scoto quia libera - terra erat.' The _scotum_ in this context seems to be or to - include the geld. Compare D. B. i. 61 b: 'Haec terra iacet et - appreciata est in Gratentun quod est in Oxenefordscire et - tamen dat scotum in Berchescire.' D. B. ii. 11: 'In Colecestra - habet episcopus 14 domos et 4 acras non reddentes - consuetudinem praeter scotum nisi episcopo.' - - [525] See above, p. 85. - - [526] Hamilton, Inquisitio, 60. - - [527] Above, p. 110. - - [528] D. B. i. 35 b. - - [529] Northumbrian Priests' Law, 58, 59, (Schmid, p. 369.) - - [530] An Act of 1869 (32-3 Vic. c. 41) allowed the owners of certain - small houses to agree to pay the rates which under the - ordinary law would become due from the occupiers, and - authorized the vestries to allow such owners a commission of - 25 per cent. See also the instructive recital in 59 Geo. III. - c. 12, sec. 19:--The small occupiers are evading the poors' - rate, and the owners exact higher rents than they would - otherwise get, on the ground that the occupiers can not be - effectually assessed. - - [531] See above, p. 24. - - [532] E.g. D. B. ii. 389 b, 'Clarum tenuit Aluricus pro manerio 24 - car. terrae T. R. E. Tunc 40 villani.... Tunc 12 carucae in - dominio.... Tunc 36 carucae hominum.... Huic manerio semper - adiacent 5 sochemani cum omni consuetudine 1 car. terrae et - dim. Semper 1 caruca et dimidia.' - - [533] E.g. D. B. ii. 339: 'In eadem villa 14 liberi homines - commendati, Godricus faber et Edricus et Ulnotus et Osulfus et - Uluricus et Stanmarus et Leuietus et Wihtricus et Blachemanus - et Mansuna et Leuinus et Ulmarus et Ulfah et alter Ulfah et - Leofstanus de 40 acris et habent 2 carucas et valent 10 - solidos.' - - [534] Above, p. 115. - - [535] Rolls of the King's Court, Ric. I. (Pipe Roll. Soc.), p. xxiv. - But apparently there had been considerable rearrangements in - some of the counties. - - [536] Hoveden, iv. 46. The important words are these: 'Statutum - etiam fuit quod quilibet baro cum vicecomite faceret - districtiones super homines suos; et si per defectum baronum - districtiones factae non fuissent, caperetur de dominico - baronum quod super homines suos restaret reddendum, et ipsi - barones ad homines suos inde caperent.' The baron's _homines_ - we take to be freeholders; he would be absolutely liable for - the tax cast upon his villeinage. As to the tax of 1198 see - Eng. Hist. Rev. iii. 501, 701; iv. 105, 108. - - [537] In Dial. de Scac. ii. 14, the author tells us that until - recently if a baron who owed money to the crown was insolvent, - the goods of his knights could be seized. The idea of - subsidiary liability is not too subtle for the time. - - [538] Above, p. 108. - - [539] D. B. ii. 9: 'set Comes Eustachius 1 ex illis [hidis] tenet - que non est de suis c. [100] mansionibus.' - - [540] D. B. ii. 233 b. - - [541] D. B. ii. 242 b. - - [542] D. B. ii. 258. - - [543] D. B. ii. 258. - - [544] D. B. ii. 447. - - [545] D. B. i. 45 b. - - [546] Two objections to our theory may be met by a note. (1) Some - manors are free of geld, and therefore to make our definition - correct we ought to say that a manor is a tenement which - either pays its geld at a single place or which would do so - were it not freed from the tax by some special privilege. A - _manerium_ does not cease to be a _manerium_ by being freed - from geld. (2) In later days we may well find a manor holden - of another manor, so that a plot of land may be within two - manors. If this usage of the term can be traced back into - Domesday Book as a common phenomenon, then our doctrine is in - great jeopardy. But we have noticed no passage which clearly - and unambiguously says that a tract of land was _at one and - the same time_ both a _manerium_ and also a part of another - _manerium_. To this we must add that of the distribution of - _maneria_ T. R. E. we only obtain casual and very imperfect - tidings. If T. R. W. a free man has been 'added to' a - _manerium_, the commissioners have no deep interest in the - inquiry whether T. R. E. his tenement was itself an - independent _manerium_. A great simplification has been - effected and the number of _maneria_ has been largely reduced. - - - - -§ 7. _Manor and Vill._ - - -[Manorial and non-manorial vills.] - -After what has now been said, it is needless to repeat that in Domesday -Book the _manerium_ and the _villa_ are utterly different things[547]. -In a given case the two may coincide, and throughout a great tract of -England such cases were common and we may even say that they were -normal. But in the east this was not so. We may easily find a village -which taken as a whole has been utterly free from seignorial domination. -Orwell in Cambridgeshire will be a good example[548]. - -[The vill of Orwell.] - -In King Edward's day this vill of Orwell was rated at 4 hides: probably -it was somewhat underrated for at the date of the survey it was deemed -capable of finding land for nearly 6 teams. The following table will -show who held the four hides before the Conquest:-- - - H. V. A. - - Two sokemen, men of Edith the Fair 2/3 - A sokeman, man of Abp Stigand 1-1/3 - A sokeman, man of Robert Wimarc's son 1-1/3 - A sokeman, man of the King 2/3 - A sokeman, man of Earl Ælfgar 1-1/3 - A sokeman, man of Earl Waltheof 3 - A sokeman, man of the King 1/3 - Sigar a man of Æsgar the Staller 1-1/3 - Turbert a man of Edith the Fair 3-1/4 5 - Achil a man of Earl Harold 1 - A sokeman of the King 1 - St. Mary of Chatteris 1/3 - St. Mary of Chatteris 1/4 - ---------------- - 4 0 0[549] - -It will be seen that eight of the most exalted persons in the land, the -king, the archbishop, three earls, two royal marshals or stallers, and -that mysterious lady known as Edith the Fair, to say nothing of the -church of Chatteris, had a certain interest in this little -Cambridgeshire village. But then how slight an interest it was! Every -one of the tenants was free to 'withdraw himself,' 'to give or sell his -land.' Now we can not say that all of them were peasants. Achil the man -of Harold seems to have had other lands in the neighbouring villages of -Harlton and Barrington[550]. It is probable that Turbert, Edith's man, -had another virgate at Kingston[551]: he was one of the jurors of the -hundred in which Orwell lay[552]. Sigar the man of Æsgar was another -juror, and held land at Thriplow, Foxton, Haslingfield and Shepreth; he -seems to have been his lord's steward[553]. But we may be fairly certain -that the unnamed sokemen tilled their own soil, though perhaps they had -help from a few cottagers. And they can not have been constantly -employed in cultivating the demesne lands of their lords. They must go -some distance to find any such demesne lands. The Wetherley hundred, in -which Orwell lies, is full of the sokemen of these great folk: Waltheof, -for example, has 3 men in Comberton, 4 in Barton, 3 in Grantchester, 1 -in Wratworth: but he has no demesne land, and if he had it, he could not -get it tilled by these scattered tenants. The Fair Edith has half a hide -in Haslingfield and we are told that this belongs to the manor of -Swavesey. Now at Swavesey Edith has a considerable manor[554], but it -can not have got much in the way of labour out of a tenant who lived at -Haslingfield, for the two villages are a long ten miles apart. As to the -king's sokemen, their only recorded services are the _avera_ and the -_inward_. The former seems to be a carrying service done at the -sheriff's bidding and to be only exigible when the king comes into the -shire, while _inward_ seems to be the duty of forming a body guard for -the king while he is in the shire:--if in any year the king did not -come, a small sum of money was taken instead[555]. - -[A Cambridgeshire hundred.] - -Lest it should be thought that in picking out the village of Orwell we -have studiously sought a rare case, we will here set out in a tabular -form what we can learn of the state of the hundred in which Orwell lies. -The Wetherley hundred contained twelve vills: it was a land of true -villages which until very lately had wide open fields[556]. In the -Confessor's day the lands in it were allotted thus:-- - - CAMBRIDGESHIRE. WETHERLEY HUNDRED[557]. - - I. COMBERTON. A vill of 6 hides. - H. V. A. C. B. - 1. Seven sokemen of the King 1 1 0} - A sokeman, man of Earl Waltheof} 3 0} 4 0 - A sokeman, man of Abp Stigand } } - 2. A man of Earl Waltheof 1 15 1 0 - 3. A sokeman, man of the King 1 0} - A sokeman, man of Abp Stigand 1 15} 2 0 - A sokeman, man of Earl Waltheof 1 15} - 4. The King 2 2 0 5 0 - --------- ------ - 5 3 15[558] 12 0 - - II. BARTON. A vill of 7 hides. - 1. Two sokemen, men of Earl Waltheof 1 1 15 } - A sokeman, man of Earl Waltheof 3 15[559]} 5 0 - A sokeman, man of Earl Waltheof 1 0 } - 2. Juhael the King's hunter 1 0 0 1 0 - 3. A sokeman, man of Edith the Fair 2 0} 6 0 - 4. Twenty-three sokemen of the King 3 0 0} - --------- ------ - 7 0 0 12 0 - - III. GRANTCHESTER. A vill of 7 hides[560]. - H. V. A. C. B. - 1. Five sokemen, men of the King 3 0 1 0 - 2. Two sokemen, men of the King 2 1 0} 6 0 - A sokeman, man of Æsgar the Staller 2 0} - 3. A sokeman, man of Earl Ælfgar 3 0} - Three sokemen, men of Earl Waltheof 2 0 0} 4 0 - 4. Godman a man of Edith the Fair 1 15 1 0 - 5. Juhael the King's hunter 1 0 4 - 6. Wulfric, the King's man 15 3 - --------- ------ - 7 0 0 12 7 - - IV. HASLINGFIELD. A vill of 20 hides. - 1. The King 7 1 0 8 0 - 2. Five sokemen, men of the King 3 0 0} - A sokeman, man of Æsgar the Staller 1 3 0} 4 0 - 3. Ealdred a man of Edith the Fair 1 0 15 1 4 - 4. Edith the Fair, belonging to Swavesey 2 0 4 - 5. Sigar a man of Æsgar the Staller 5 0 0 6 0 - 6. Two sokemen of the King 1 1 3 2 0 - 7. Merewin, a man of Edith the Fair 12 0 0 - ---------- ------ - 20 0 0 22 0 - - V. HARLTON. A vill of 5 hides. - - 1. Achil, a King's thegn and under him - five sokemen of whom four were - his men while the fifth was the - man of Ernulf 4 0 0 6 0 - 2. Godman a man of Æsgar the Staller 1 0 0 1 0 - --------- ----- - 5 0 0 7 0 - - VI. BARRINGTON. A vill of 10 hides. - - 1. Eadric Púr a King's thegn 3 0} - Fifteen sokemen, men of the King 4 1 15} - Four sokemen, men of Earl Ælfgar 2 0 15} - Three sokemen, men of Æsgar the } 11 0 - Staller 1 0 0} - Eadric Púr, holding of the Church } - of Chatteris 15} - 2. The Church of Chatteris 2 0 0 4 0 - 3. Ethsi, holding of Robert Wimarc's son 20 3 - 4. Achil the Dane, a man of Earl Harold 40 6 - 5. A sokeman, man of the King 15 2 - ---------- ------ - 11 0 0[561] 17 3 - - VII. SHEPRETH. A vill of 5 hides. - H. V. A. C. B. - 1. Four sokemen, men of the King} 2 0 15 2 2 - A sokeman, man of Earl Ælfgar} - 2. The Church of Chatteris 1 1 15 1 4 - 3. Sigar a man of Æsgar the Staller 1 0 0 1 0 - 4. Heming a man of the King 1 15 4 - 5. The Church of Ely 15 2 - --------- ----- - 5 0 0 5 4 - - VIII. ORWELL. A vill of 4 hides. - 1. Two sokemen, men of Edith the Fair 20} - A sokeman, man of Abp Stigand 1 10} - A sokeman, man of Robert Wimarc's son 1 10} 1 4 - A sokeman, man of the King 20} - A sokeman, man of Earl Ælfgar 1 10} - 2. A sokeman, man of Earl Waltheof 3 0} 1 0 - A sokeman, man of the King 10} - 3. Sigar, a man of Æsgar the Staller 1 10 4 - 4. Turbert, a man of Edith the Fair 3 12-1/2 1 4 - 5. Achil, a man of Earl Harold 1 0 2 - 6. A sokeman, man of the King 1 0 3 - 7. The Church of Chatteris 10 1 - 8. The Church of Chatteris 7-1/2 1/2 - --------- --------- - 4 0 0 5 2-1/2 - - IX. WRATWORTH. A vill of 4 hides. - 1. A sokeman, man of Edith the Fair 3 10} - A sokeman, man of Abp Stigand 3 0} - A sokeman, man of Earl Ælfgar 1 10} 3 0 - A sokeman, man of Robert Wimarc's son 10} - A sokeman, man of the King 20} - 2. A sokeman, man of Earl Waltheof 2 20} 1 0 - A sokeman, man of Robert Wimarc's son 10} - 3. A sokeman, man of Edith the Fair 1 10 4 - 4. A sokeman, man of the King 1 0 3 - 5. Two sokemen, men of the King 2 0 4 - ---------- ----- - 4 0 0 5 3 - - X. WHITWELL. A vill of 4 hides. - 1. A sokeman, man of Earl Ælfgar 1 20} - A sokeman, man of Robert Wimarc's son 1 0} 1 4 - A sokeman, man of the King 2 0} - 2. A sokeman, man of Abp Stigand 15} - A sokeman, man of Edith the Fair 10} 4 - [A sokeman] 15} - 3. Six sokemen, men of the King 1 1 0} - A sokeman, man of Robert Wimarc's son 2 0} 2 0 - A sokeman, man of Earl Ælfgar 1 0} - 4. Godwin a man of Edith the Fair 2 0 1 0 - --------- ----- - 4 0 0 5 0 - - XI. WIMPOLE. A vill of 4 hides. - H. V. A. C. B. - 1. Edith the Fair 2 2 15 3 0 - 2. Earl Gyrth 1 1 15 2 0 - --------- ----- - 4 0 0 5 0 - - XII. ARRINGTON. A vill of 4 hides. - 1. Ælfric, a King's thegn 1 1 10} - A sokeman, man of Earl Waltheof 1 0 0} - A sokeman, man of the Abbot of Ely 1 0 0} 8 0 - A sokeman, man of Robert Wimarc's son 20} - 2. A man of Edith the Fair 2 0 4 - --------- ----- - 4 0 0[562] 8 4 - -[The Wetherley sokemen.] - -Now if by a 'manor' we mean what our historical economists usually mean -when they use that term, we must protest that before the Norman Conquest -there were very few manors in the Wetherley hundred. In no one case was -the whole of a village coincident with a manor, with a lord's estate. -The king had considerable manors in Comberton and Haslingfield. Sigar -had a manor at Haslingfield; the church of Chatteris had a manor at -Barrington besides some land at Shepreth; Wimpole was divided between -Edith and Earl Gyrth; Harlton between Achil and Godman. But in Barton, -Grantchester, Shepreth, Orwell, Wratworth, Whitwell and Arrington we see -nothing manorial, unless we hold ourselves free to use that term of a -little tenement which to all appearance might easily be cultivated by -the labour of one household, at all events with occasional help supplied -by a few cottagers. Indeed it is difficult to say what profit some of -the great people whose names we have mentioned were deriving from those -of their men who dwelt in the Wetherley hundred. We take the Mercian -earl for example[563]. One of the sokemen of Grantchester, four of the -sokemen of Barrington, one of the sokemen of Shepreth, one of the -sokemen of Orwell, one of the sokemen of Wratworth, two of the sokemen -of Whitwell were Ælfgar's men. That Ælfgar got a little money or a -little provender out of them is probable, that they did some carrying -service for him is possible and perhaps they aided him at harvest time -on some manor of his in another part of the county; but that they were -not the tillers of his land seems clear[564]. - -[The sokeman and seignorial justice.] - -What is more, our analysis of this Wetherley hundred enables us to drive -home the remark that very often a sokeman was not the sokeman of his -lord or, in other words, that he was not under seignorial justice[565]. -Ælfgar had ten sokemen scattered about in six villages. Did he hold a -court for them? We think not. Did they go to the court of some distant -manor? We think not. The court they attended was the Wetherley -hundred-moot. One of the sokemen in Arrington was in a somewhat -exceptional position--exceptional, that is, in this hundred. Not only -was he the man of the Abbot of Ely, but his soke belonged to the Abbot; -and if he sold his tenement, and this he could do without the Abbot's -consent, the soke over his land would 'remain' to the Abbot[566]. He was -not only his lord's man but his lord's justiciable and probably attended -some court outside the hundred. But for the more part these men of -Wetherley were not the justiciables of their lords. It was a very free -hundred when the Normans came there: much too free for the nation's -welfare we may think, for these sokemen could go with their land to what -lord they pleased. Also be it noted in passing that the churches have -little in Wetherley. - -[Changes in the Wetherley hundred.] - -In 1086 there had been a change. The sokemen had disappeared. The Norman -lords had made demesne land where their English _antecessores_ possessed -none. Count Roger had instituted a seignorial court at Orwell. He had -borrowed three sokemen 'to hold his pleas' from Picot the sheriff and -had refused to give them up again[567]. Apparently they had sunk to the -level of _villani_. Two centuries afterwards we see the hundred of -Wetherley once more. There is villeinage enough in it. The villein at -Orwell, for example, holds only 10 acres but works for his lord on 152 -days in the year, besides boon-days[568]. And yet we should go far -astray if we imposed upon these Cambridgeshire villages that neat -manorial system which we see at its neatest and strongest in the -abbatial cartularies. The villages do not become manors. The manors are -small. The manors are intermixed in the open fields. There are often -freeholders in the village who are not the tenants of any lord who has a -manor there. A villein will hold two tenements of two lords. The villein -of one lord will be the freeholder of another. The 'manorial system' has -been forced upon the villages, but it fits them badly[569]. - -[Manorialism in Cambridgeshire.] - -In the thirteenth century the common field of a Cambridgeshire village -was often a very maze of proprietary rights, and yet the village was an -agrarian whole. Let us take, for example, Duxford as it stood in the -reign of Edward I.[570] We see 39 villein tenements each of which has -fourteen acres in the fields. These tenements are divided between five -different manors. Four of our typical 'townsmen' hold of Henry de Lacy, -who holds of Simon de Furneaux, who holds of the Count of Britanny, who -holds of the king. Two hold of Ralph of Duxford, who holds of Basilia -wife of Baldwyn of St George, who holds of William Mortimer, who holds -of Simon de Furneaux, who holds of the Count of Britanny, who holds of -the king. Eight hold of the Templars, who hold of Roger de Colville, who -holds of the Earl of Albemarle, who holds of the king. Nine hold of -William le Goyz, who holds of Henry of Boxworth, who holds of Richard de -Freville, who holds of the king. Sixteen hold of John d'Abernon, who -holds of the Earl Marshal, who holds of the king. Three of the greatest -'honours' in England are represented. Three monasteries and two -parochial churches have strips in the fields. And yet there are normal -tenements cut according to one pattern, tenements of fourteen acres the -holders of which, though their other services may differ, pay for the -more part an equal rent[571]. The village seems to say that it must be -one, though the lords would make it many. And then we look back to the -Confessor's day and we see that a good part of Duxford was held by -sokemen[572]. - -[The sokemen and the manors.] - -Perhaps we shall be guilty of needless repetition; but what is written -in Domesday Book about _maneria_ is admirably designed for the deception -of modern readers whose heads are full of 'the manorial system.' -Therefore let us look at two Hertfordshire villages. In one of them -there is a _manerium_ which Ralph Basset holds of Robert of Ouilly[573]. -It has been rated at 4, but is now rated at 2 hides. There is land for 4 -teams. In demesne are 2 teams; and 3-1/2 _villani_ with 2 sokemen of 1 -hide and 5 _bordarii_ have 2 teams. There are 1 cottager and 1 serf and -a mill of 10 shillings and meadow for 3 teams. It is now worth £3; in -King Edward's day it was worth £5. Now here, we say, is a pretty little -manor of the common kind. Let us then explore its past history. 'Five -sokemen held this manor.' Yes, we say, before the Conquest this manor -was held in physically undivided shares by five lords. Their shares were -small and they were humble people; but still they had a manor. But let -us read further. 'Two of them were the men of Brihtric and held 1-1/2 -hides; other two were the men of Osulf the son of Frane and held 1-1/2 -hides; and the fifth was the man of Eadmer Atule and held a hide.' We -will at once finish the story and see how Robert of Ouilly came by this -manor. 'No one of these five sokemen belonged to his _antecessor_ Wigot; -every one of them might sell his land. One of them bought (i.e. -redeemed) his land for nine ounces of gold from King William, so the men -of the hundred say, and afterwards turned for protection to Wigot.' So -Robert's title to this manor is none of the best. But are we sure that -before the Conquest there was anything that we should call a manor? -These five sokemen who have unequal shares, who have three different -lords, who hold in all but 4 team-lands, whose land is worth but £5, do -not look like a set of coparceners to whom a 'manor' has descended. When -Robert of Ouilly has got his manor there are upon it 2 sokemen, 3 -villeins, 5 _bordarii_, a cottager and a serf. It was not a splendid -manor for five lords. - -[Hertfordshire sokemen.] - -We turn over a few pages. Hardouin of Eschalers has a manor rated at -5-1/2 hides[574]. It contains land for 8 teams. In demesne are 2 hides -less 20 acres, and 3 teams; 11 _villani_ with the priest and 5 -_bordarii_ have 5 teams. There are 4 cottagers and 6 serfs. It is worth -£9; in the Confessor's day it was worth £10. Who held this manor in the -past? Nine sokemen held it. Rather a large party of joint lords, we say; -but still, families will grow. Howbeit, we must finish the -sentence:--'Of these, one, Sired by name, was the man of Earl Harold and -held 1 hide and 3 virgates for a manor; another, Alfred, a man of Earl -Ælfgar, held 1-1/2 hides for a manor; and the other seven were sokemen -of King Edward and held 2 hides and 1 virgate and they supplied the -sheriff with 9 pence a year or 2-1/4 _averae_ (carrying services).' No, -we have not been reading of the joint holders of a 'manor'; we have been -reading of peasant proprietors. Two of them were substantial folk; each -of the two held a _manerium_ at which geld was paid; the other seven -gelded at one of the king's _maneria_ under the view of his bailiffs. -_Maneria_ there have been everywhere; but 'manors' we see in the making. -Hardouin has made one under our eyes. - -[The small _maneria_.] - -We hear the objection that, be it never so humble, a manor is a manor. -But is that truism quite true? If all that we want for the constitution -of a manor is a proprietor of some land who has a right to exact from -some other man, or two or three other men, the whole or some part of the -labour that is necessary for the tillage of his soil, we may indeed see -manors everywhere and at all times. Even if we introduce a more -characteristically medieval element and demand that the tillers shall be -neither menial servants nor labourers hired for money, but men who make -their living by cultivating for their own behoof small plots which the -proprietor allows them to occupy, still we shall have the utmost -difficulty if we would go behind manorialism. But suppose for a moment -that we have a village the land of which is being held by nine sokemen, -each of whom has a hide or half-hide scattered about in the open fields, -and each of whom controls the labour of a couple of serfs, shall we not -be misleading the public and ourselves if we speak of nine manors or -even of nine 'embryo manors'? At any rate it is clear enough that if -these estates of the sokemen are 'embryo manors,' then these embryos -were deposited in the common fields. In that case the common fields, the -hides and yard-lands of the village are not the creatures of -manorialism. - -[The Danes and freedom.] - -We have seen free villages; we have seen a free hundred. We might have -found yet freer hundreds had we gone to Suffolk. We have chosen -Cambridgeshire because Cambridgeshire can not be called a Danish county, -except in a sense in which, notwithstanding the wasted condition of -Yorkshire, about one half of the English nation lived in Danish -counties. When men divide up England between the three laws, they place -Cambridgeshire under the Danelaw; but to that law they subject about one -half of the inhabitants of England. There may have been many men of -Scandinavian race in Cambridgeshire; but we find hundreds not -wapentakes, hides not carucates, while among the names of villages there -are few indeed which betray a Scandinavian origin. The Wetherley hundred -was not many miles away from the classic fields of Hitchin[575]. - -[The Danish counties.] - -But in truth we must be careful how we use our Dane. Yorkshire was a -Danish county in a sense in which Cambridgeshire was not Danish; it was -a land of trithings and wapentakes, a land without hides, where many a -village testified by its name to a Scandinavian settlement. And yet to -all appearance it was in the Confessor's day a land where the manors -stood thick[576]. Then we have that wonderful contrast between Yorkshire -and Lincolnshire which Ellis summed up in these figures:-- - - Sochemanni Villani Bordarii - Lincolnshire 11,503 7,723 4,024 - Yorkshire 447 5,079 1,819 - -Perhaps this contrast would have been less violent if Yorkshire had not -been devastated: but violent it is and must be. It will provoke the -remark that the 'faults' (if any faults there be) in a truly economic -stratification of mankind are not likely to occur just at the boundaries -of the shires, whereas so long as each county has a court from which -there is no appeal to any central tribunal, we may expect to find that -lines which have their origin in fiscal practice will be sharp lines and -will coincide with the metes and bounds of jurisdictional districts. - -[The contrast between villeins and sokemen.] - -Nor should it escape remark that the names by which a grand distinction -is expressed are in their origin very loose terms and etymologically -ill-fitted to the purpose that they are serving. In English the -_villanus_ is the _túnesman_ or, as we should say, the villager. And yet -to all seeming the sokeman is essentially a villager. What is more the -land where the sokemen and 'free men' lived was a land of true villages, -of big villages, of limitless 'open fields,' whereas the hamleted west -was servile. Then again _sokeman_ is a very odd term. If it signified -that the man to whom it is applied was always the justiciable of the -lord to whom he was commended, we could understand it. Even if this man -were always the justiciable of a court that had passed into private -hands, we could still understand it. But apparently there are plenty of -sokemen whose soke 'is' or 'lies' in those hundred courts that have no -lord but the king. The best guess that we can make as to the manner in -which they have acquired their name is that in an age which is being -persuaded that some 'service' must be done by every one who holds land, -suit of court appears as the only service that is done by all these men. -They may owe other services; but they all owe suit of court. If so we -may see their legal successors in those freeholders of the twelfth -century who are 'acquitting' their lords and their villages by doing -suit at the national courts[577]. But when a new force comes into play -(and the tribute to the pirate was a new and a powerful force) new lines -of demarcation must be drawn, new classes of men must be formed and -words will be borrowed for the purpose with little care for -etymological niceties. One large and widely-spread class may find a name -for itself in a district where the ordinary 'townsmen' or villagers are -no longer treated as taxpayers responsible to the state, while some -practice peculiar to a small part of the country may confer the name of -'sokemen' on those tillers of the soil who are rated to the geld. We are -not arguing that this distinction, even when it first emerged, implied -nothing that concerned the economic position of the villein and the -sokeman. The most dependent peasants would naturally be the people who -could not be directly charged with the geld, and the peasants who could -not pay the geld would naturally become dependent on those who would pay -it for them; still we are not entitled to assume that the fiscal scheme -accurately mirrored the economic facts, or that the varying practice of -different moots and different collectors may not have stamped as the -villeins of one shire those who would have been the sokemen of -another[578]. - -[Free villages.] - -Be this as it may, any theory of English history must face the free, the -lordless, village and must account for it as for one of the normal -phenomena which existed in the year of grace 1066. How common it was we -shall never know until the material contained in Domesday Book has been -geographically rearranged by counties, hundreds and vills. But whether -common or no, it was normal, just as normal as the village which was -completely subject to seignorial power. We have before us villages -which, taken as wholes, have no lords. What is more, it seems obvious -enough that, unless there has been some great catastrophe in the past, -some insurrection of the peasants or the like, the village of -Orwell--and other villages might be named by the dozen--has never had a -lord. Such lordships as exist in it are plainly not the relics of a -dominion which has been split up among divers persons by the action of -gifts and inheritances. The sokemen of Orwell have worshipped every -rising sun. One has commended himself to the ill-fated Harold, another -to the ill-fated Waltheof, a third has chosen the Mercian Ælfgar, a -fourth has placed himself under the aspiring Archbishop; yet all are -free to 'withdraw.' We have here a very free village indeed, for its -members enjoy a freedom of which no freeholder of the thirteenth century -would even dream, and in a certain sense we have here a free village -community. How much communalism is there? Of this most difficult -question only a few words will now be said, for our guesses about remote -ages we will yet a while reserve. - -[Village communities.] - -In the first place, we can not doubt that the 'open field system' of -agriculture prevails as well in the free villages as in those that are -under the control of a lord. The sokeman's hide or virgate is no -ring-fenced 'close' but is composed of many scattered strips. Again, we -can hardly doubt that the practice of 'co-aration' prevailed. The -sokeman had seldom beasts enough to make up a team. It is well known -that the whole scheme of land-measurements which runs through Domesday -Book is based upon the theory that land is ploughed by teams of eight -oxen. It is perhaps possible that smaller teams were sometimes employed; -but when we read that a certain man 'always ploughed with three -oxen[579],' or 'used to plough with two oxen but now ploughs with half a -team[580],' or 'used to plough with a team but now ploughs with two -oxen[581],' we are reading, not of small teams, but of the number of -oxen that the man in question contributed towards the team of eight that -was made up by him and his neighbours. When of a piece of land in -Bedfordshire it is said that 'one ox ploughs there,' this means that the -land in question supplies but one ox in a team of eight[582]; and here -and not in any monstrous birth do we find the explanation of 'terra est -dimidio bovi et ibi est semibos[583]':--there is a sixteenth part of a -teamland and its tenant along with some other man provides an ox. There -may have been light ploughs as well as heavy ploughs, but the heavy -plough must have been extremely common, since the term 'plough team' -(_caruca_) seems invariably to mean a team of eight. - -[The villagers as co-owners.] - -Then one notable case meets our eye in which the ownership of land, of -arable land, seems to be attributed to a village community. In -Goldington, a village in Bedfordshire, Walter now holds a hide; there is -land for one team and meadow for half a team. 'The men of the vill held -this land in common and could sell it[584].' Apparently the men of the -vill were Ælfwin Sac a man of the Bishop of Lincoln who held half a -team-land and 'could do what he liked with it,' nine sokemen who held -three team-lands between them, three other sokemen who held three -team-lands, and Ælfmær a man of Asgil who held three team-lands[585]. -How it came about that these men, besides holding land in severalty, -held a tract in common, we are left to guess. Nor can we say whether -such a case was usual or unusual. Very often in Little Domesday we meet -an entry which tells how _x_ free men held _y_ acres and had _z_ teams; -for example, how 15 free men held 40 acres and had 2 teams[586]. In -general we may well suppose that each of them held his strips in -severalty, but we dare not say that such a phrase never points to -co-ownership. - -[The waste land of the vill.] - -Then as to such part of the land as is not arable:--Even in the free -village a few enclosed meadows will probably be found; but the pasture -ground lies open for 'the cattle of the vill.' At the date of the -survey, though several Norman lords have estates in one vill, the common -formula used in connexion with each estate is, not 'there is pasture for -the cattle of this manor, or of this land,' but 'there is pasture for -the cattle of the vill.' Occasionally we read of 'common pasture' in a -context which shows that the pasture is common not to several manorial -lords but to the villeins of one lord[587]. In the hundred of Coleness -in Suffolk there is a pasture which is common to all the men of the -hundred[588]. But, as might be expected, we hear little of the mode in -which pasture rights were allotted or regulated. Such rights were -probably treated as appurtenances of the arable land:--'The canons of -Waltham claim as much wood as belongs to one hide[589].' If the rights -of user are known, no one cares about the bare ownership of pasture land -or wood land:--it is all one whether we say that Earl Edwin is entitled -to one third of a certain wood or to every third oak that grows -therein[590]. - -[Co-ownership of mills.] - -Sometimes the ownership of a mill is divided into so many shares that we -are tempted to think that this mill has been erected at the cost of the -vill. In Suffolk a free man holds a little _manerium_ which is composed -of 24 acres of land, 1-1/2 acres of meadow and 'a fourth part of the -mill in every third year[591]':--he takes his turn with his neighbours -in the enjoyment of the revenue of the mill. We may even be led to -suspect that the parish churches have sometimes been treated as -belonging to the men of the vill who have subscribed to erect or to -endow them. In Suffolk a twelfth part of a church belongs to a petty -_manerium_ which contains 30 acres and is cultivated by two bordiers -with a single team[592]. When a parish church gets its virgate by 'the -charity of the neighbours[593],' when nine free men give it twenty acres -for the good of their souls[594], we may see in this some trace of -communal action. - -[The system of virgates in a free village.] - -Incidentally we may notice that the system of virgate holdings seems -quite compatible with an absence of seignorial control. In the free -village, for example in Orwell, we shall often find that one man has -twice, thrice or four times as much as another man:--the same is the -case in the manorialized villages of Middlesex, where a villein may have -as much as a hide or as little as a half-virgate; but all the holdings -will bear, at least in theory, some simple relation to each other. Thus -in Orwell the virgates are divided into thirds and quarters, and in -several instances a man has four thirds of a virgate. In Essex and East -Anglia, though we may find many irregular and many very small holdings, -tenements of 60, 45, 40, 30, 20, 15 acres are far commoner than they -would be were it not that a unit of 120 acres will very easily break -into such pieces. Domesday Book takes no notice of family law and its -'vendere potuit' merely excludes the interference of the lord and does -not imply that a man is at liberty to disappoint his expectant heirs. -Very possibly there has been among the small folk but little giving or -selling of land. - -[The virgates and inheritance.] - -Nor is a law which gives the dead man's land to all his sons as co-heirs -a sufficient force to destroy the system of hides and virgates when once -it is established by some original allotment. In the higher ranks of -society we see large groups of thegns holding land in common, holding as -the Normans say 'in parage.' We can hardly doubt that they are co-heirs -holding an inheritance that has not been physically partitioned[595]. -Sometimes it is said of a single man that he holds in parage[596]. This -gives us a valuable hint. Holding in parage implies that one of the -'pares,' one of the parceners,--as a general rule he would be the eldest -of them--is answerable to king and lord for the services due from the -land, while his fellows are bound only to him; they must help him to -discharge duties for which he is primarily responsible[597]. This seems -the import of such passages as the following--'Five thegns held two -bovates; one of them was the _senior_ (the elder, and we may almost -say the lord) of the others[598]'--'Eight thegns held this manor; -one of them Alli, a man of King Edward, was the _senior_ of the -others[599]'--'Godric and his brothers held three carucates; two of -them served the third[600]'--'Chetel and Turver were brothers and -after the death of their father they divided the land, but so that -Chetel in doing the king's service should have help from Turver his -brother[601]'--'Siwate, Alnod, Fenchel and Aschil divided the land of -their father equally, and they held in such wise that if there were need -for attendance in the king's host and Siwate could go, his brothers were -to aid him [with money and provisions]; and on the next occasion another -brother was to go and Siwate like the rest was to help him; and so on -down the list; but Siwate was the king's man[602].' No doubt similar -arrangements were made by co-heirs of lowlier station[603]. The -integrity of the tenement is maintained though several men have an -interest in it. In relation to the lord and the state one of them -represents his fellows. When the shares become very small, some of the -claimants might be bought out by the others[604]. - -[The farm.] - -But, to return to the village, we must once more notice that the Canons -of St Paul's have let their manor of Willesden to the villeins[605]. -This leads us to speculate as to the incidence and collection of those -great provender rents of which we read when royal manors are described. -In King Edward's day a royal manor is often charged with the whole or -some aliquot share of a 'one night's farm,' that is one day's victual -for the king's household. Definite amounts of bread, cheese, malt, meat, -beer, honey, wool have to be supplied; thus, for example, Cheltenham -must furnish three thousand loaves for the king's dogs and King's Barton -must do the like[606]. Then too Edward the sheriff receives as the -profits of the shrievalty of Wiltshire, 130 pigs, 32 bacons, certain -quantities of wheat, malt, oats, and honey, 400 chicken, 1600 eggs, 100 -cheeses, 100 lambs, 52 fleeces[607]. Between the king and the men of the -manor, no doubt there stands a farmer, either the sheriff or some other -person, who is bound to supply the due quantity of provender; but to say -that this is so does not solve the problem that is before us. We have -still to ask how this due quantity is obtained from the men of the -village. It is a quantity which can be expressed by round figures; it is -3000 dog-cakes, or the like. We do not arrive at these pretty results by -adding up the rents due from individuals. Again, just in the counties -which are the homes of freedom we hear much of sums of money that are -paid to a lord by way of free will offering[608]. In Norfolk and Suffolk -the villagers will give a yearly _gersuma_, in Lincoln they will pay a -yearly _tailla_, and this will be a neat round sum; very often it is 20 -shillings, or 40 or 10. - -[Round sums raised from the villages.] - -In this particular we seem to see an increase of something that may be -called communalism, as we go backwards. Of course in the cartularies of -a later age we may discover round sums of money which, under the names -of 'tallage' or 'aid' are imposed upon the vill as a whole; but in -general we may accept the rule that tributes to be paid by the vill as a -whole, in money or in kind, are not of recent origin. They are more -prominent in the oldest than in other documents. As examples, we may -notice the 'cornage' of the Boldon Book--one vill renders 20 shillings, -another 30 shillings for cornage[609]; also the contributions of sheep, -poultry, bread and cloth which the vills of Peterborough Abbey bring to -the monks on the festival of their patron saint--one vill supplying ten -rams and twenty ells of cloth, another four rams, five ells of cloth, -ten chicken and three hundred loaves[610]. But then we have to notice -that a village which has to pay a provender rent or even a _tailla_ or -_gersuma_ is not altogether a free village. Its communal action is -called out by seignorial pressure. - -[The township and police law.] - -And as we go backwards the township seems to lose such definiteness as -is given to it by the police law of the thirteenth century[611]. This -was to be expected, for such law implies a powerful, centralized state, -which sends its justices round the country to amerce the townships and -compel these local communities to do their duties. Once and once only -does the township appear in the Anglo-Saxon dooms. This is in a law of -Edgar. If a man who is on a journey buys cattle, then on his return home -he must turn them onto the common pasture, 'with the witness of the -township.' If he fails to do so, then after five nights the townsmen are -to give information to the elder of the hundred, and in that case they -and their cattle-herd will be free of blame, and the man who brought the -cattle into the town will forfeit them, half to the lord and half to -the hundred. If, on the other hand, the townsmen fail in the duty of -giving information, their herd will pay for it with his skin[612]. The -township has very little organization of which the state can make use. -It does not seem even to have an 'elder' or head-man, and, from the -threat of a flogging, we may gather that its common herdsman will be a -slave. Purchases of cattle can not be made 'with the witness of the -township'; the purchaser ought to seek out two or three of those twelve -standing witnesses who are appointed for every hundred[613]. So again, -in the twelfth century we see the finder of a stray beast bringing it -into the vill; he conducts it to the church-door and tells his story to -the priest, the reeve and as many of the best men of the vill as can be -got together. Then the reeve sends to the four neighbouring vills, calls -in from each the priest, the reeve and three or four men and recounts -the tale in their presence. Then on the following day he goes to the -head-man of the hundred and puts the whole matter before him and -delivers up the beast to him, unless indeed the place where it was found -straying was within the domain of some lord who had sake and soke[614]. -Here again, the organization of the township appears to be of a most -rudimentary kind. It has no court, unless its lord has sake and soke; it -has no power to detain an estray for safe custody. In this very simple -case it requires the help of other vills and must transmit the cause to -the hundred court. And so again, though there may be some reason for -thinking that at one time the murder fine--the fine payable if the -slayer of a foreigner was not arrested--was primarily exigible from the -vill in which the corpse was found, the hundred being but subsidiarily -liable, still this rule seems to have been soon abandoned and the burden -of the fine, a fine far too heavy for a single vill, was cast upon the -hundred[615]. For all this, however, the law knew and made use of the -township. The Domesday commissioners required the testimony of the -priest, the reeve and six _villani_ of every vill. So soon as the law -about suit to the hundred court becomes at all plain, the suit is due -rather from vills than from men, and the burden is discharged by the -lord of the vill or his steward, or, if neither of them can attend, -then by the priest, the reeve and four of the vill's best men[616]. - -[The free village and Norman government.] - -How could these requirements be met by a vill which had no lord? It -would be a fair remark that the existence of such vills is not -contemplated by the Norman rulers. The men who will represent the vill -before the Domesday commissioners will in their eyes be _villani_. This -assumption is becoming true enough. We have seen Orwell full of sokemen; -in 1086 there is never a sokeman in it; there is no one in it who is -above the rank of a villein. Count Roger and Walter Giffard, Count Alan -and Geoffrey de Mandeville can make such arrangements about the suit of -Orwell, the reeveship of Orwell, as they think fit. Everywhere the -Frenchmen are consolidating their manors, creating demesne land where -their English _antecessores_ had none, devising scientific frontiers, -doing what in them lies to make every vill a manor. Thus is evolved that -state of things which comes before us in the thirteenth century. The -work of the foreigners was done so completely that we can see but very -little of the institutions that they swept away. - -[Organization of the free village.] - -On the whole, however, we shall do well not to endow the free township -of the Confessor's day with much organization. We may be certain that, -at least as a general rule, it had no court; we may doubt very gravely -whether it always had any elder, head-man, or reeve. Often it was a -small and yet a heterogeneous, and a politically distracted body. Some -of its members might be attached to the house of Godwin, some had sworn -to live and die for the house of Leofric. Just because it is free it has -few, if any, communal payments to make. Only if it comes under a single -lord will it have to render a provender rent, a _tailla_ or _gersuma_. -As a sphere for communal action there remains only the regulation of the -arable lands, the woods and waste. We can not say for certain that these -give scope for much regulation. The arable strips are held in severalty; -if by chance some of them are held in common, this in all probability is -a case rather of co-ownership than of communal ownership. The pasture -rights may well be regarded as appurtenances of the arable strips. The -practice of 'co-aration' need not be enforced by law; the man who will -not help his neighbours must be content to see his own land unploughed. -The course of agriculture is fixed and will not be often or easily -altered. The 'realism' which roots every right and duty in a definite -patch of soil, the rapid conversion of new arrangements into immemorial -customs, the practice of taking turn and turn about, the practice of -casting lots, these will do much towards settling questions such as our -modern imaginations would solve by means of a village council. No doubt, -from time to time a new departure is made; new land is reclaimed from -the waste, perhaps the pasture rights are stinted or redistributed, a -mill is built or a church is endowed;--but all this requires no periodic -assemblies, no organization that we dare call either permanent or legal. -Once in five years or so there may be something to be done, and done it -will be by a resolution of the villagers which is or calls itself an -unanimous resolution. If the Cambridgeshire townships had been -landowning corporations, each of them would have passed as a single unit -into the hands of some Norman baron. But this did not happen. On the -contrary, the Norman barons had to content themselves with intermixed -strips; the strips of Ælfgar's men went to Count Roger, the strips of -Edith's men went to Count Alan. We are far from denying the existence of -a communal sentiment, of a notion that somehow or another the men of the -vill taken as a whole owned the lands of the vill, but this sentiment, -this notion, if strong was vague. There were no institutions in which it -could realize itself, there was no form of speech or thought in which it -could find an apt expression. It evaded the grasp of law. At the touch -of jurisprudence the township became a mere group of individuals, each -with his separate rights[617]. - - -FOOTNOTES: - - [547] D. B. ii. 174: 'Hec villa fuit in duobus maneriis T. R. E.' - Ibid. i. 164: 'De his 2 villis fecit Comes W. unum manerium.' - - [548] Inquisitio, 77-9. - - [549] This result comes out correctly if 1H=4V=120A. For the state - of this vill T. R. W. see Round, Feudal England, 40. - - [550] His plot at Orwell is said to belong to Harlton. Then at - Harlton we find an Achil with sokemen under him, and though in - D. B. he is described as a king's thegn, this is not - incompatible with his being the man of Harold for some of his - lands. At Barrington Achillus Danaus homo Haroldi has a - holding of 40 acres. - - [551] Inquisitio, 86. - - [552] Ibid. 68. - - [553] Ibid. 43, 44, 45, 73, 76. - - [554] D. B. i. 195. - - [555] D. B. i. 139: 'De consuetudine 1 averam inveniebat cum Rex in - scyra veniebat, si non 5 den. reddebat.' D. B. i. 190, - '[Sochemanni in Fuleberne] reddunt per annum 8 libras arsas et - pensatas et unoquoque anno 12 equos et 12 inguardos si Rex in - vicecomitatu veniret, si non veniret 12 sol. et 8 den.; T. R. - E. non reddebant vicecomiti nisi averas et inguardos vel 12 - sol. et 8 den. et superplus invasit Picot [vicecomes] super - Regem.' - - [556] Wratworth has completely disappeared from the modern map; its - territory seems to be included in that of the present Orwell. - See Rot. Hund. ii. 559 and Lysons, Magna Britannia, ii. 243. A - small hamlet called Malton seems to represent it. Whitwell - also is no longer the name of a village, while the modern - Coton is not mentioned in D. B. There is now a Whitwell Farm - near the village of Coton, but in the parish of Barton. The - modern Coton does not seem to be the ancient Whitwell, for on - Subsidy Rolls we may find Whitwell annexed to Barton and Coton - to Grantchester. - - [557] The figures in our first column represent the division of the - vill among the Norman lords. H. V. A. stand for Hides, - Virgates, Acres. By C. and B. we signify the Carucae and Boves - for which 'there was land.' - - [558] There is some small error in this case. - - [559] A small conjectural emendation. - - [560] The Inq. Com. Cant. says 6 hides. - - [561] An error of one hide in the particulars. The two records do - not fully agree. - - [562] A small emendation justified by Inq. Eliensis (Hamilton, p. - 110). - - [563] Ælfgar died before King Edward; Freeman, Norman Conquest, ed. - 3, iii. 469, places his death in or about 1062. - - [564] The history of the earldoms during Edward's reign is - exceedingly obscure. See Freeman's elaborate note: Ibid., 555. - In particular Cambridgeshire seems to have lain now in one and - now in another earldom. Thus it comes about that - Cambridgeshire sokemen are commended some to Ælfgar, some to - Waltheof, some to Harold, some to Gyrth. Ælfgar, for example, - had at one time been earl in East Anglia. Men who had - commended themselves to an earl would, unless they 'withdrew - themselves,' still be his men though he had ceased to be earl - of their county. - - [565] See above, p. 105. Observe how frequently our record speaks of - 'sochemanni _homines_ Algari' and the like. These sokemen are - Ælfgar's men; but are not properly his sokemen. - - [566] Inq. Com. Cant. 110. This is from the Inquisitio Eliensis. - Compare p. 83. - - [567] Inq. Com. Cant. 77-8. - - [568] Rot. Hund. ii. 558. - - [569] One instance may suffice. In Sawston (Rot. Hund. ii. 575-80) - are three manors, _A_, _B_, _C_; _A_ has a sub-manor. One - Thomas Dovenel holds in villeinage of the lord of _A_; in - villeinage of the lord of _B_; in freehold of the lord of _B_; - in freehold of a tenant of the lord of _B_; in freehold of a - tenant of a tenant of the lord of _B_. - - [570] Rot. Hund. ii. 580. - - [571] On four out of the five manors the rent is 2_s._ 3_d._; on the - fifth 3_s._ 0_d._ - - [572] Inq. Com. Cant. 41. - - [573] D. B. i. 137 b. - - [574] D. B. i. 141 b. - - [575] Inq. Com. Cant., pp. 108-110. As names of the Abbot of Ely's - sokemen in Meldreth and neighbouring villages we have Grimmus, - Alsi Cild, Wenesi, Alsi, Leofwinus, Ædricus, Godwinus, - Almarus, Aluricus frater Goduuini, Ædriz, Alsi Berd, Alricus - Godingessune, Wenestan, Alwin Blondus, Alfuuinus, Aluredus, - Alricus Brunesune, Alware, Hunuð, Hunwinus, Brizstanus. This - does not point to a preponderance of Norse or Danish blood. - - [576] Owing to the wasted condition of Yorkshire, the information - that we obtain of the T. R. E. is meagre and perfunctory. But - what seems characteristic of this county is a holding of two - or three ploughlands which we might fairly call an embryo - manor. - - [577] See the early extents in Cart. Rams. iii. Thus (242) at - Hemingford: 'R. V. tenet tres virgatas et dimidiam et sequitur - hundredum et comitatum.... R. H. tenet duas virgatas et - sequitur hundredum et comitatum.' Elsworth (249): 'R. filius - T. duas virgatas. Pro altera sequitur comitatum et hundredum; - pro altera solvit quinque solidos.' Brancaster (261): 'Cnutus - avus Petri tenebat terram suam libere in tempore Regis Henrici - et sequebatur comitatum et hundredum, et fuit quietus ab omni - servitio.' See also Vinogradoff, Villainage, 411 ff. - - [578] Some thirty years ago the whole political world of England was - agitated by controversy about 'the compound householder.' Was - he to have a vote? The historian of the nineteenth century - will not treat the compound householders as forming one - homogeneous class of men whose general status could be marked - off from that of other classes. Nor, it is to be hoped, will - etymological guesses lead him to believe that the compound - householder held a compound house. He will say that a landlord - 'compounded for' the rates of the aforesaid householder. - _Mutatis mutandis_ may not the villein have been the compound - householder of the eleventh century? - - [579] D. B. ii. 204: '3 liberi homines ... semper arant cum 3 - bobus.' - - [580] D. B. ii. 184 b. - - [581] D. B. ii. 192 b. - - [582] D. B. i. 211. - - [583] D. B. i. 218 b. Compare the 'dimidius porcus' of ii. 287. - - [584] D. B. i. 213 b: 'Hanc terram tenuerunt homines villae - communiter et vendere potuerunt.' - - [585] D. B. i. 210, 212 b, 213 b. - - [586] D. B. i. 214: 'In Meldone Johannes de Roches occupavit iniuste - 25 acras super homines qui villam tenent.' This is a vague - phrase. - - [587] e.g. D. B. i. 112 b: 'Colsuen homo Episcopi Constantiensis - aufert ab hoc manerio communem pasturam quae ibi adiacebat T. - R. E. et etiam T. R. W. quinque annis.' - - [588] D. B. ii. 339 b. - - [589] D. B. i. 140 b. - - [590] D. B. i. 75: 'tercia vero pars vel tercia quercus erat Comitis - Eduini.' - - [591] D. B. ii. 404 b: 'et in tercio anno quarta pars mol[endini].' - - [592] D. B. ii. 291 b. - - [593] D. B. ii. 24 b. - - [594] D. B. ii. 438. - - [595] D. B. i. 83: 'sex taini in paragio,' 'quatuor taini in - paragio.' Ibid. 83 b: 'novem taini in paragio.' Ibid. 168 b: - 'quinque fratres tenuerunt pro 5 maneriis et poterant ire quo - volebant et pares erant.' - - [596] D. B. i. 96 b: 'dim. hida quam tenebat T. R. E. unus tainus in - paragio.' Ibid. 40: 'Brictric tenuit de episcopo in paragio.' - - [597] But it was possible for several men to be holding in parage - and yet for each of them to have a separate _manerium_. This - seems to imply that their holdings were physically separate - and that each holding was separately liable for geld, though - as regards other matters, e.g. military service, the division - was ignored. - - [598] D. B. i. 291. - - [599] D. B. i. 145 b. - - [600] D. B. i. 341. - - [601] D. B. i. 354. - - [602] D. B. i. 375 b: 'Siuuate et Alnod et Fenchel et Aschil - equaliter et pariliter diviserunt inter se terram patris sui - T. R. E. et ita tenuerunt ut si opus fuit expeditione Regis et - Siuuate potuit ire, alii fratres iuverunt eum. Post istum, - ivit alter et Siuuate cum reliquis iuvit eum; et sic de - omnibus. Siuuate tamen fuit homo Regis.' - - [603] D. B. i. 206: 'sex sochemanni id est Aluuoldus et 5 fratres - eius habuerunt 4 hid. et dim. ad geldum.' - - [604] D. B. i. 233: 'Hanc terram tenuerunt 2 fratres pro 2 maneriis, - et postea emit alter ab altero partem suam et fecit unum - manerium de duobus T. R. E.' - - [605] D. B. i. 127 b: 'Hoc manerium tenent villani ad firmam - canonicorum.' - - [606] D. B. i. 162 b. - - [607] D. B. i. 69. - - [608] D. B. ii. 118 b Yarmouth: 'De gersuma has 4 libras dant - burgenses gratis et amicitia.' - - [609] Thus D. B. iv. 568: 'Due ville reddunt 30 sol. de cornagio.' - Ib. 570: 'Queryngdonshire reddit 76 sol. de cornagio.' - - [610] Black Book of Peterborough, _passim_. - - [611] Hist. Engl. Law, i. 550. - - [612] Edgar IV. 8. 9. - - [613] Ibid. 6. - - [614] Leg. Edw. Conf. 24. - - [615] Leg. Edw. Conf. 15. Compare Leg. Henr. 91; Leg. Will. Conq. I. - 22; Leg. Will. Conq. III.. 3. - - [616] Leg. Henr. 7 § 7. - - [617] It is possible that the entry (i. 204) which tells how the - sokemen of Broughton enjoyed the smaller _wites_ points to a - free village court; but we have put another interpretation - upon this; see above, p. 99. - - - - -§ 8. _The Feudal Superstructure._ - - -[The higher ranks of men.] - -It remains that we should speak very briefly of the higher ranks of men -and the tenure by which they held their land. Little accurate -information can be extorted from our record. The upper storeys of the -old English edifice have been demolished and a new superstructure has -been reared in their stead. It is not the office of Domesday Book to -tell us much even of the new nobility, of the services which the counts -and barons are to render to the king in return for their handsome -endowments:--as to the old nobility, that has perished. Still there are -some questions that we ought to ask. - -[Dependent tenure.] - -The general theory that all land tenure, except indeed the tenure by -which the king holds land in demesne, is dependent tenure, seems to be -implied, not only by many particular entries, but also by the whole -scheme of the book. Every holder of land, except the king, holds it of -(_de_) some lord, and therefore every acre of land that is not royal -demesne can be arranged under the name of some tenant in chief. Even a -church will hold its land, if not of the king, then of some other -lord[618]. The terms of the tenure are but very rarely described, for -Domesday Book is no feodary. Just now and again a tenure _in elemosina_ -is noticed and in some of these cases this term seems already to bear -the technical sense that it will have in later days; the tenant owes a -spiritual, but no secular service[619]. A few instances of what later -lawyers would call a 'tenure by divine service,' as distinct from a -tenure in frank-almoin, may be found[620]. A few words here and there -betray the existence of tenure by knight's service and of castle -guard[621]. In the _servientes Regis_ who have been enfeoffed in divers -counties we may see the predecessors of the tenants by serjeanty[622]. -We shall remark, however, the absence of those abstract terms which are -to become the names of the various tenures. We read of _servientes_, -_sochemanni_, _villani_, _burgenses_, but not of _seriantia_[623], -_socagium_, _villenagium_, _burgagium_. As we pursue our retrogressive -course through the middle ages, we do not find that the law of personal -condition becomes more and more distinct from the law of land tenure; on -the contrary, the two become less and less separable. - -[_Feudum._] - -It has sometimes been said that a feudal tenure was the only kind of -land tenure that the Norman conquerors could conceive. In a certain -sense this may be true, but we should have preferred to say that -probably they could not easily conceive a kind of tenure that was not -dependent:--every one who holds land (except he be the king) holds it of -someone else. The adjective 'feudal' was not in their vocabulary, and -their use of the word _feudum_--occasionally we meet the older -_feum_[624]--is exceedingly obscure. Very rarely does it denote a tenure -or a mass of rights; usually, though it may connote rights of a certain -order, it denotes a stretch of land; thus we may read of the fee of the -Bishop of Bayeux, thereby being meant the territory which the bishop -holds. Occasionally, however, we hear of a man holding land _in feudo_. -One instance may be enough to show that such a phrase did not imply -military tenure:--'William the Chamberlain held this manor _in feudo_ of -the Queen [Matilda] at a rent of £3 a year and after her death he held -it in the same fashion of the king[625].' All sense of militariness, and -all sense of precariousness, that the word has ever had in its -continental history, seems to be disappearing. Already the process has -begun which will make it applicable to every person who has heritable -rights in land. William the Chamberlain is, we take it, already a fee -farmer, that is, a rent-paying tenant with heritable rights[626]. As to -the word _beneficium_, which _feum_ or _feudum_ has been supplanting, we -shall hardly find it with its old meaning. It seems to be holding its -own only within the sphere of ecclesiastical rights, where the -'benefice' will survive until our own day[627]. - -[_Alodium._] - -A yet more interesting and equally foreign word is not unfrequently -used, namely, _alodium_. The Norman commissioners deemed that a large -number of English tenants in Kent, Sussex, Surrey and Hampshire and some -in Berkshire had been _alodiarii_ or _aloarii_ and had held _in alodium_ -or _sicut alodium_. The appearance of this term in one district and in -one only is far from proving that there had been anything peculiar in -the law of that district. It may well be a mere chance that the _liberi -homines_ of other counties are not called _alodiaries_. Still in -Hampshire, where alodiaries abounded, it was not every free man holding -land who had an _alod_[628]. Perhaps we shall be right in thinking that -the term pointed to heritability:--the free man who holds land but has -no _alod_ has only an estate for life. Certainly it does not mean that -the tenant has no lord. The alodiary may hold his alod 'of' his -lord[629]; he may owe service to his lord[630]; he may pay a -relief[631]; he may have no power 'to withdraw himself with his land' -from his lord[632]. The Norman lawyers had no speculative objection to -the existence of alodiaries; it in no way contradicted such doctrine of -tenure as they had formed. In 1086 there were still alodiaries in -Berkshire[633], and in royal charters of a much later day there is talk -of the alodiaries of Kent as of an existing class[634]. It is just -possible that William's commissioners saw some difference between -holding _in feudo_ and holding _in alodio_. If ever they contrasted the -two words, they may have hinted that while the _feudum_ has been given -by the lord to the man, the _alodium_ has been brought by the man to the -lord; but we can not be very certain that they ever opposed these terms -to each other[635]. Such sparse evidence as we can obtain from Normandy -strengthens our belief that the wide, the almost insuperable, gulf that -modern theorists have found or have set between 'alodial ownership' and -'feudal tenure' was not perceptible in the eleventh century[636]. It can -be no part of our task to trace the history of these terms _alodium_ and -_feudum_ behind the date at which they are brought into England, but -hereafter we shall see that here in England a process had been at work -which, had these terms been in use, would have brought the alod very -near to the feud, the feud very near to the alod. - -[Application of the formula of dependent tenure.] - -It is probable that this process had gone somewhat further in Normandy -than in England. It is probable that the Normans knew that in imposing -upon all English lands 'the formula of dependent tenure' they were -simplifying matters. They seem to think, and they may be pretty right in -thinking, that every English land-holder had held his land under (_sub_) -some lord; but apparently they do not think that every English -land-holder had held his land of (_de_) some lord. Not unfrequently they -show that this is so. Thus one Sigar holds a piece of Cambridgeshire -_of_ Geoffrey de Mandeville; he used to hold it _under_ Æsgar the -Staller[637]. We catch a slight shade of difference between the two -prepositions; _sub_ lays stress on the lord's power, which may well be -of a personal or justiciary, rather than of a proprietary kind, while -_de_ imports a theory about the origin of the tenure; it makes the -tenant's rights look like derivative rights:--it is supposed that he -gets his land from his lord. And at least in the eastern counties--so -it may well have seemed to the Normans--matters sadly needed -simplification. Even elsewhere and when a large estate is at stake they -can not always get an answer to the question 'Of whom was this land -holden[638]?' Still they thought that some of the greatest men in the -realm had held their lands, or some of their lands, of the king or of -someone else. The formulas which are used throughout the description of -Hampshire and some other counties seem to assume that every holder of a -manor, at all events if a layman, had held it _of_ the king, if he did -not hold it _of_ another lord. Tenure _in feudo_ again they regarded as -no innovation[639]. They saw the work of subinfeudation:--Brihtmær held -land of Azor and Azor of Harold; we may well suppose that Harold held it -_of_ the king and that some villeins held part of it of Brihtmær, and -thus we see already a feudal ladder with no less than five rungs[640]. -They saw that the thegns owed 'service' to their lords[641]. They saw -the heriot; they sometimes called it a relief[642]. We can not be sure -that this change of names imported any change in the law; when a burgess -of Hereford died the king took a heriot, but if he could not get the -heriot he took the dead man's land[643]. They saw that in certain cases -an heir had to 'seek' his ancestor's lord if he wished to enjoy his -ancestor's land[644]. They saw that many a free man could not give or -sell his land without his lord's consent. They saw that great and -powerful men could not give or sell their land without the king's -consent[645]. - -[Military tenure.] - -They saw something very like military tenure. No matter with which we -have to deal is darker than the constitution of the English army on the -eve of its defeat. We may indeed safely believe that no English king had -ever relinquished the right to call upon all the free men of his realm -to resist an invader. On the other hand, it seems quite clear that, as a -matter of fact, 'the host' was no longer 'the nation in arms.' The -common folk of a shire could hardly be got to fight outside their shire, -and ill-armed troops of peasants were now of little avail. The only army -upon which the king could habitually rely was a small force. The city of -Oxford sent but twenty men or twenty pounds[646]: Leicester sent twelve -men[647]: Warwick sent ten[648]. In Berkshire the law was that, if the -king called out the host, one soldier (_miles_) should go for every five -hides and should receive from each hide four shillings as his stipend -for two months' service. If the man who was summoned made default, he -forfeited all his land to the king; but there were cases in which he -might send one of his men as a substitute, and for a default committed -by his substitute he suffered no forfeiture, but only a fine of fifty -shillings[649]. It is probable that a similar 'five hide rule' obtained -throughout a large part of England. The borough of Wilton was bound to -send twenty shillings or one man 'as for an honour of five hides[650].' -When an army or a fleet was called out, Exeter 'served to the amount of -five hides[651].' All this points to a small force of well armed -soldiers. For example, 'the five hide rule' would be satisfied if -Worcestershire sent a contingent of 240 men. But not only was the army -small; it was a territorial army; it grew out of the soil. - -[The army and the land.] - -At first sight this 'five hide rule' may seem to have in it little that -is akin to a feudal system of knights' fees. We may suppose that it will -work thus:--The host is summoned; the number of hides in each hundred is -known. To despatch a company of soldiers proportioned to the number of -the hides, for example twenty warriors if the hundred contains just one -hundred hides, is the business of the hundred court and the question -'Who must go?' will be answered by election, rotation or lot. But it is -not probable that the territorializing process will stop here, and this -for several reasons. An army that can not be mobilized without the -action of the hundred moots is not a handy force. While the hundredors -are deliberating the Danes or Welshmen will be burning and slaying. Also -a king will not easily be content with the responsibility of a -fluctuating and indeterminate body of hundredors; he will insist, if he -can, that there must be some one person answerable to him for each unit -of military power. A serviceable system will not have been established -until the country is divided into 'five-hide-units,' until every man's -holding is such an unit, or is composed of several such units, or is an -aliquot share of such an unit. Then again the holdings with which the -rule will have to deal are not homogeneous; they are not all of one and -the same order. It is not as though to each plot of land there -corresponded some one person who was the only person interested in it; -the occupiers of the soil have lords and again those lords have lords. -The king will insist, if he can, that the lords who stand high in this -scale must answer to him for the service that is due from all the lands -over which they exercise a dominion, and then he will leave them free to -settle, as between themselves and their dependants, the ultimate -incidence of the burden:--thus room will be made for the play of free -contract. At all events when, as is not unusual, some lord is the lord -of a whole hundred and of its court, the king will regard him as -personally liable for the production of the whole contingent that is due -from that hundred. In this way a system will be evolved which for many -practical purposes will be indistinguishable from the system of knights' -fees, and all this without any help from the definitely feudal idea -that military service is the return which the tenant makes to the lord -for the gift of land that the lord has made to the tenant. - -[Feudalism and army service.] - -That this process had already done much of its work when the old English -army received its last summons, we can not doubt, though it is very -possible that this work had been done sporadically. We see that the land -was being plotted out into five-hide-units. In one passage the Norman -clerks call such a unit an honour, an 'honour of five hides[652].' There -is an old theory based upon legal texts that such an honour qualifies -its lord or owner to be a thegn. If a ceorl prospers so that he has five -hides 'to the king's útware,' that is, an estate rated as five hides for -military purposes, he is worthy of a thegn's wergild[653]. Then the -Anglo-Saxon charters show us how the kings have been endowing their -thegns with tracts of territory which are deemed to contain just five or -some multiple of five hides[654]. The thegn with five hides will have -tenants below him; but none of them need serve in the host if their lord -goes, as he ought to go, in person. Then each of these territorial units -continues to owe the same quantum of military service, though the number -of persons interested in it be increased or diminished, and thus the -ultimate incidence of the duty becomes the subject-matter of private -arrangements. That is the point of a story from Lincolnshire which we -have already recounted:--A man's land descends to his four sons; they -divide it equally and agree to take turns in doing the military service -that is due from it; but only the eldest of them is to be the king's -man[655]. Then we see that the great nobles lead or send to the war all -the _milites_ that are due from the lands over which they have a -seignory. There are already wide lands which owe military service--we -can not put it otherwise--to the bishop of Winchester as lord of -Taunton:--they owe 'attendance in the host along with the men of the -bishop[656].' The churches of Worcester and Evesham fell out about -certain lands at Hamton; one of the disputed questions was whether or -no Hamton ought to do its military service 'in the bishop's hundred of -Oswaldslaw' or elsewhere[657]. This question we take to be one of great -importance to the bishop. Lord of the triple hundred of Oswaldslaw, lord -of three hundred hides, he is bound to put sixty warriors into the field -and he is anxious that men who ought to be helping him to make up this -tale shall not be serving in another contingent. - -[Default of service.] - -But from Worcestershire we obtain a still more precious piece of -information. The custom of that county is this:--When the king summons -the host and his summons is disregarded by one who is a lord with -jurisdiction, 'by one who is so free a man that he has sake and soke and -can go with his land where he pleases,' then all his lands are in the -king's mercy. But if the defaulter be the man of another lord and the -lord sends a substitute in his stead, then he, the defaulter, must pay -forty shillings to his lord,--to his lord, not to the king, for the king -has had the service that was due; but if the lord does not send a -substitute, then the forty shillings which the defaulter pays to the -lord, the lord must pay to the king[658]. A feudalist of the straiter -sort might well find fault with this rule. He might object that the lord -ought to forfeit his land, not only if he himself fails to attend the -host, but also if he fails to bring with him his due tale of _milites_. -Feudalism was not perfected in a day. Still here we have the root of the -matter--the lord is bound to bring into the field a certain number of -_milites_, perhaps one man from every five hides, and if he can not -bring those who are bound to follow him, he must bring others or pay a -fine. His man, on the other hand, is bound to him and is not bound to -the king. That man by shirking his duty will commit no offence against -the king. The king is ceasing to care about the ultimate incidence of -the military burden, because he relies upon the responsibility of the -magnates. How this system worked in the eastern counties where the power -of the magnates was feebler, we can not tell. It is not improbable that -one of the forces that is attaching the small free proprietors to the -manors of their lords is this 'five hide rule'; they are being compelled -to bring their acres into five-hide-units, to club together under the -superintendence of a lord who will answer for them to the king, while as -to the villeins, so seldom have they fought that they are ceasing to be -'fyrd-worthy[659].' But in the west we have already what in substance -are knights' fees. The Bishop of Worcester held 300 hides over which he -had sake and soke and all customs; he was bound to put 60 _milites_ into -the field; if he failed in this duty he had to pay 40 shillings for each -deficient _miles_. At the beginning of Henry II.'s reign he was charged -with 60 knights' fees[660]. - -[The new military service.] - -We are not doubting that the Conqueror defined the amount of military -service that was to be due to him from each of his tenants in chief, nor -are we suggesting that he paid respect to the rule about the five hides, -but it seems questionable whether he introduced any very new principle. -A new theoretic element may come to the front, a contractual -element:--the tenant in chief must bring up his knights because that is -the service that was stipulated for when he received his land. But we -cannot say that even this theory was unfamiliar to the English. The -rulers of the churches had been giving or 'loaning' lands to thegns. In -so doing they had not been dissipating the wealth of the saints without -receiving some 'valuable consideration' for the gift or the loan -(_l[´æ]n_); they looked to their thegns for the military service that -their land owed to the king. To this point we must return in our next -essay; but quite apart from definitely feudal bargains between the king -and his magnates, between the magnates and their dependants, a -definition of the duty of military service which connects it with the -ownership of land (and to such a definition men will come so soon as the -well-armed few can defeat the ill-armed many) will naturally produce a -state of things which will be patient of, even if it will not engender, -a purely feudal explanation. If one of the men to whom the Bishop of -Worcester looks for military service makes a default, the fine that is -due from him will go to the bishop, not to the king. Why so? One -explanation will be that the bishop has over him a sake and soke of the -very highest order, which comprehends even that _fyrd-wíte_, that fine -for the neglect of military duty, which is one of the usually reserved -pleas of the crown[661]. Another explanation will be that this man has -broken a contract that he made with the bishop and therefore owes amends -to the bishop:--to the bishop, not to the king, who was no party to the -contract. Sometimes the one explanation will be the truer, sometimes the -other. Sometimes both will be true enough. As a matter of fact, we -believe that these men of the Bishop of Worcester or their predecessors -in title have solemnly promised to do whatever service the king demands -from the bishop[662]. Still we can hardly doubt which of the two -explanations is the older, and, if we attribute to the Norman invaders, -as perhaps we may, a definite apprehension of the theory that knight's -service is the outcome of feudal compacts, this still leaves open the -inquiry whether the past history of military service in Frankland had -not been very like the past history of military service in England. -Already in the days of Charles the Great the duty of fighting the -Emperor's battles was being bound up with the tenure of land by the -operation of a rule very similar to that of which we have been speaking. -The owner of three (at a later time of four) manses was to serve; men -who held but a manse apiece were to group themselves together to supply -soldiers. Then at a later time the feudal theory of free contract was -brought in to explain an already existing state of things[663]. - -[The thegns.] - -Closely connected with this matter is another thorny topic, namely, the -status of the thegn and the relation of the thegn to his lord. In the -Confessor's day many _maneria_ had been held by thegns; some of them -were still holding their lands when the survey was made and were still -called thegns. The king's thegns were numerous, but the queen also had -thegns, the earls had thegns, the churches had thegns and we find thegns -ascribed to men who were neither earls nor prelates but themselves were -thegns[664]. Many of the king's thegns were able to give or sell the -lands that they held, 'to go to whatever lord they pleased[665].' On the -other hand, many of the thegns of the churches held lands which they -could not 'withdraw' from the churches[666]; in other words 'the -thegn-lands' of the church could not be separated from the church[667]. -The Conqueror respected the bond that tied them to the church. The Abbot -of Ely complained to him that the foreigners had been abstracting the -lands of St. Etheldreda. His answer was that her demesne manors must at -once be given back to her, while as for the men who have occupied her -thegnlands, they must either make their peace with the abbot or -surrender their holdings[668]. Thus the abbot seems to have had the -benefit of that forfeiture which his thegns incurred by espousing the -cause of Harold. We see therefore that the relation between thegn, lord -and land varied from case to case. The land might have proceeded from -the lord and be held of the lord by the thegn as a perpetually -inheritable estate, or as an estate granted to him for life, or granted -to him and two successive heirs[669]; on the other hand, the lord's hold -over the land might be slight and the bond between thegn and lord might -be a mere commendation which the thegn could at any time dissolve. -Again, the relation between thegn and lord is no longer conceived as a -menial, 'serviential' or ministerial relation. The _Taini Regis_ are -often contrasted with the _Servientes Regis_[670]. The one trait of -thegnship which comes out clearly on the face of our record is that the -thegn is a man of war[671]. But even this trait is obscured by language -which seems to show that there has been a great redistribution of -military service. Though there is no Latin word that will translate -_thegn_ except _miles_, though these two terms are never contrasted with -each other, and though there are thegns still existing, still of these -two terms one belongs to the old, the other to the new order of -things[672]. Thus thegnship is already becoming antiquated and we are -left to guess from older dooms and later Leges what was its essence in -the days of King Edward. - -[Nature of thegnship.] - -The task is difficult for we can see that this institution has undergone -many changes in the course of a long history and yet can not tell how -much has remained unchanged. We begin by thinking of thegnship as a -relation between two men. The thegn is somebody's thegn. The household -of the great man, but more especially the king's household, is the -cradle of thegnship. The king's thegns are his free servants--servants -but also companions. In peace they have duties to perform about his -court and about his person; they are his body-guard in war. Then the -king--and other great lords follow his example--begins to give lands to -his thegns, and thus the nature of the thegnship is modified. The thegn -no longer lives in his lord's court; he is a warrior endowed with land. -Then the thegnship becomes more than a relationship, it becomes a -status. The thegn is a 'twelve hundred man'; his wergild and his oath -countervail those of six ceorls. This status seems to be hereditary; the -thegn's sons are 'dearer born' than are the sons of the ceorl[673]. But -we can not tell how far this principle is carried. We can not easily -reconcile this hereditary transmission of thegn-right with the original -principle that thegnship is a relation between two men. We may have -thegns who are nobody's thegns, or else we may have persons entitled to -the thegnly wergild who yet are not thegns. What is more, since the law -which regulates the inheritance of land does not favour the first-born, -we may have poor thegns and landless thegns. Yet another principle comes -into play. A duty of finding well armed warriors for the host is being -territorialized; every five hides should find a soldier. The thegn from -of old has to attend the host with adequate equipment; the men who under -the new system have to attend the host with horse and heavy armour are -usually thegns. Then the man who has five hides, and who therefore ought -to put a warrior into the field, is a thegn or is entitled to be a -thegn. The ceorl obtains the thegnly wergild if he has an estate rated -for military purposes at five hides. Another version of this tradition -requires of the ceorl who 'thrives to thegn-right' five hides of his own -land, a church, a kitchen, a house in the _burh_, a special office in -the king's hall. To be 'worthy of thegn-right' may be one thing, to be a -thegn, another. To be a thegn one must be some one's thegn. The -prosperous ceorl will be no thegn until he has put himself under some -lord. But the bond between him and his lord may be dissoluble at will -and may hardly affect his land. It is, we repeat, very difficult to -discover how these various principles were working together, checking -and controlling each other in the first half of the eleventh century. -Several inconsistent elements seem to be blended. There is the element -of hereditary caste:--the thegn transmits thegnly blood to his -offspring. There is the element of personal relationship:--he is the -thegn of some lord and owes fealty to that lord. There is the military -element:--he is a warrior who has horse and heavy armour and is bound to -fight the nation's battles. Connected with this last there is the -proprietary element:--each five hides must send a warrior to the host; -the man with five hides is entitled to become, perhaps he may be -compelled to become a thegn, a warrior[674]. - -[The thegns of Domesday.] - -On the whole, we gather from Domesday Book that the military element is -subduing the others. The thegn is the man who for one reason or another -is a warrior. For one reason or another, we say; for the class of thegns -is by no means homogeneous. On the one hand, we see the thegns of the -churches, who have been endowed by the prelates in order that they may -do the military service due from the ecclesiastical lands. Many of the -prelates have thegns, and for the creation of thegnlands by the churches -it would not be easy to find any explanation save that which we have -already found in the territorialization of military service. The thegn -might pay some annual 'recognition' to the church, he might send his -labourers to help his lord for a day or two at harvest time; but we may -be sure that he was not rack-rented and that, if military service be -left out of account, the church was a loser by endowing him. Here the -land proceeds from the lord to the thegn; the thegn can not give or sell -it; the holder of that land can have no lord but the church; if he -forfeits the land, he forfeits it to the church. But, on the other hand, -we see numerous king's thegns who are able 'to go to what lord they -please.' We may see in them landed proprietors who by the play of 'the -five hide rule' have become bound to serve as warriors. We may be fairly -certain that they have not been endowed by the king, otherwise they -would not enjoy the liberty, that marvellous liberty, of leaving him, of -putting themselves under the protection and the banner of some earl or -some prelate. Not that every thegn will (if we may borrow phrases from a -later age) possess a full 'thegn's fee' or owe the service of a whole -warrior. Large groups of thegns we may see who obviously are brothers or -cousins enjoying in undivided shares the inheritance of some dead -ancestor. They may take it in turns to go to the war; the king may hold -the eldest of them responsible for all the service; but each of them -will be called a thegn, will be entitled to a thegnly wergild and swear -a thegnly oath. Still, on the whole, the thegn of Domesday Book is a -warrior, and he holds--though perhaps along with his coparceners--land -that is bound to supply a warrior. - -[Greater and lesser thegns.] - -In the main all thegns seem to have the same legal status, though they -may not be all of equal rank. All of them seem to have the wergild of -twelve hundred shillings. A law of Cnut, after describing the heriot of -the earl, distinguishes two classes of thegns; there is 'the king's -thegn who is nighest to him' and whose heriot includes four horses and -50 mancuses of gold, and 'the middle thegn' or 'less thegn' from whom he -gets but one horse and one set of arms or £2.[675] This law should we -think be read in connexion with the rule that is recorded by Domesday -Book as prevailing in the shires of Derby and Nottingham:--the thegn who -had fewer than seven manors paid a relief of 3 marks to the sheriff, -while he who had seven and upwards paid £8 to the king[676]. A rude line -is drawn between the richer and the poorer thegns of the king. The -former deal immediately with the king and pay their reliefs directly to -him; the latter are under the sheriff and their reliefs are comprised in -his farm. Thus the wealthy thegns, like the _barones maiores_ of later -days, are 'nigher to' the king than are the 'less-thegns' or those -_barones minores_ who in a certain sense are their successors. - -[The great lords.] - -The kings, the earls and the churches have of course many demesne -manors. Of the ecclesiastical estates we shall speak in our next essay, -for they can be best examined in the light that is cast upon them by the -Anglo-Saxon charters. Here we will merely observe that some of the -churches have not only large, but well compacted territories. The abbey -of St. Etheldreda, for example, besides having outlying manors, holds -the two hundreds which make up the isle of Ely; her property in -Cambridgeshire is valued at £318[677]. The earls also are rich in -demesne manors and so is the king. - -[The king as landlord.] - -King William is much richer than King Edward was. The Conqueror has been -chary in appointing earls and consequently he has in his hand, not only -the royal manors, but also a great many comital manors, to say nothing -of some other estates which, for one reason or another, he has kept to -himself. Edward had been rich, but when compared with his earls he had -not been extravagantly rich. In Somersetshire, for example, there were -twelve royal manors which may have brought in a revenue of £500 or -thereabouts, while there were fifteen comital manors which were worth -nearly £300[678]. The royal demesne had been a scattered territory; the -king had something in most shires, but was far richer in some than in -others. It was not so much in the number of his manors as in their size -and value that he excelled the richest of his subjects. Somehow or -another he had acquired many of those vills which were to be the smaller -boroughs and the market towns of later days. We may well suppose that -from of old the vills that a king would wish to get and to keep would be -the flourishing vills, but again we can not doubt that many a vill has -prospered because it was the king's. - -[The ancient demesne.] - -Among the manors which William holds in the south-west a distinction is -drawn by the Exeter Domesday. The manors which the Confessor held are -'The King's Demesne which belongs to the kingdom,' while those which -were held by the house of Godwin are the 'Comital Manors[679].' So in -East Anglia certain manors are distinguished as pertaining or having -pertained to the kingdom or kingship, the _regnum_ or _regio_[680]. This -does not seem to have implied that they were inalienably annexed to the -crown, for King Edward had given some of them away. Neither when it -speaks of the time of William, nor when it speaks of the time of Edward, -does our record draw any clear line between those manors which the king -holds as king and those which he holds in his private capacity, though -it may just hint that certain ancient estates ought not to be alienated. -The degree in which the various manors of the crown stood outside the -national system of finance, justice and police we can not accurately -ascertain. Some, but by no means all, pay no geld. Of some it is said -that they have never paid geld. Perhaps in these ingeldable manors we -may see those which constituted the royal demesne of the West Saxon -kings at some remote date. Of the king's vill of Gomshall in Surrey it -is written: 'the villeins of this vill were free from all the affairs of -the sheriff[681],' as though it were no general truth that with a royal -manor the sheriff had nothing to do. - -[The comital manors.] - -As with the estates of the king, so with the estates of the earls, we -find it impossible to distinguish between private property and official -property. Certain manors are regarded as the 'manors of the shire' -(_mansiones de comitatu_[682]); certain vills are 'comital vills[683],' -they belong to 'the consulate[684].' Hereditary right tempered by -outlawry was fast becoming the title by which the earldoms were holden. -The position of the house of Leofric in Mercia was far from being as -strong as the position of the house of Rolf in Normandy, and yet we may -be sure that King Harold would not have been able to treat the sons of -Ælfgar as removable officers. But one of the best marked features of -Domesday Book, a feature displayed on page after page, the enormous -wealth of the house of Godwin, seems only explicable by the supposition -that the earlships and the older ealdormanships had carried with them a -title to the enjoyment of wide lands. That enormous wealth had been -acquired within a marvellously short time. Godwin was a new man: nothing -certain is known of his ancestry. His daughter's marriage with the king -will account for something; Harold's marriage with the daughter of -Ælfgar will account for something, for instance, for manors which Harold -held in the middle of Ælfgar's country[685]; and a great deal of simple -rapacity is laid to the charge of Harold by jurors whose testimony is -not to be lightly rejected[686]; but the greater part of the land -ascribed to Godwin, his widow and his sons, seems to consist of -_comitales villae_. - -[Private rights and governmental revenues.] - -The wealth of the earls is a matter of great importance. If we subtract -the estates of the king, the estates of the earls, and the estates of -the churches--and, as we shall see hereafter, the churches had obtained -the bulk of their wealth directly from the kings,--if we subtract again -the lands which the king, the earls, the churches have granted to their -thegns, the England of 1065 will not appear to us a land of very great -landowners, and we may obtain a valuable hint as to one of the origins -of feudalism. A vast amount of land is or has recently been held by -office-holders, by the holders of the kingship, the earlships, or the -ealdormanships. We seem to see their proprietary rights arising in the -sphere of public law, growing out of governmental rights, which however -themselves are conceived as being in some sort proprietary. Many a -passage in Domesday Book will suggest to us that a right to take tribute -and a right to take the profits of justice have helped to give the king -and the earls their manors and their seignories. Even in his own demesne -manors the king is apt to appear rather as a tribute taker than as a -landowner. Manors of very unequal size and value have had to supply him -with equal quantities of victuals; each has to give 'a night's farm' -once a year. Then from the counties at large he has taken a tribute; -from Oxfordshire, for example, £10 for a hawk, 20 shillings for a -sumpter horse, £23 for dogs and 6 sesters of honey[687]; from -Worcestershire £10 or a Norway hawk, 20 shillings for a sumpter -horse[688]; from Warwickshire £23 for 'the dog's custom,' 20 shillings -for a sumpter horse, £10 for a hawk and 24 sesters of honey[689]. The -farm of the county that the sheriff pays is made up out of obscure old -items of this sort. Many men who are not the king's tenants must assist -him in his hunting, must help in the erection of his deer-hays[690]. -Then there are the _avera_ and the _inwards_ that are exacted by the -king or his sheriff from sokemen who are not the king's men. The sheriff -also is entitled to provender rents; out of 'the revenues which belong -to the shrievalty' of Wiltshire, Edward of Salisbury gets pigs, wheat, -barley, oats, honey, poultry, eggs, cheeses, lambs and fleeces; and -besides this he seems to have 'reveland' which belongs to him as -sheriff[691]. Then we see curious payments in money and renders in kind -made to some royal or some comital manor by the holders of other manors. -In Devonshire, Charlton which belongs to the Bishop of Coutances, -Honiton which belongs to the Count of Mortain, Smaurige which belongs to -Ralph de Pomerai, Membury which belongs to William Chevre, Roverige -which belongs to St. Mary of Rouen, each of these manors used to pay -twenty pence a year to the royal manor of Axminster[692]. In -Somersetshire there are manors which have owed _consuetudines_, masses -of iron and sheep and lambs to the royal manors of South Perrott and -Cury, or the comital manors of Crewkerne and Dulverton[693]. Then again, -we find that pasture rights are connected with justiciary -rights:--Godwin had a manor in Hampshire to which belonged the third -penny of six hundreds, and in all the woods of those six hundreds he had -free pasture and pannage[694]; the third penny of three hundreds in -Devonshire and the third animal of the moorland pastures were annexed to -the manor of Molland[695]. Many things seem to indicate that the -distinction between private rights and governmental powers has been but -faintly perceived in the past. - -[The English state.] - -If now we look at that English state which is the outcome of a purely -English history, we see that it has already taken a pyramidal or conical -shape. It is a society of lords and men. At its base are the cultivators -of the soil, at its apex is the king. This cone is as yet but low. Even -at the end of William's reign the peasant seldom had more than two lords -between him and the king, but already in the Confessor's reign he might -well have three[696]. Also the cone is obtuse: the angle at its apex -will grow acuter under Norman rulers. We can indeed obtain no accurate -statistics, but the number of landholders who were King Edward's men -must have been much larger than the tale of the Norman tenants in chief. -In the geographical distribution of the large estates under William -there is but little more regularity than there was under his -predecessor. In Cheshire and in Shropshire the Conqueror formed two -great fiefs for Hugh of Avranches and Roger of Montgomery, well -compacted fiefs, the like of which England had not yet seen. But the -units which William found in existence and which he distributed among -his followers were for the more part discrete units, and seldom did the -Norman baron acquire as his honour any wide stretch of continuous -territory. Still a great change took place in the substance of the cone, -or if that substance is made up of lords and men and acres, then in the -nature of, or rather the relation between, the forces which held the -atoms together. Every change makes for symmetry, simplicity, -consolidation. Some of these changes will seem to us predestined. To -speculate as to what would have happened had Harold repelled the invader -would be vain, and certainly we have no reason for believing that in -that case the formula of dependent tenure would ever have got hold of -every acre of English land and every right in English land. The law of -'land loans' (_Lehnrecht_) would hardly have become our only land law, -had not a conqueror enjoyed an unbounded power, or a power bounded only -by some reverence for the churches, of deciding by what men and on what -terms every rood of England should be holden. Had it not been for this, -we should surely have had some _franc alleu_ to oppose to the _fief_, -some _Eigen_ to oppose to the _Lehn_. But if England was not to be for -ever a prey to rebellions and civil wars, the power of the lords over -their men must have been--not indeed increased, but--territorialized; -the liberty of 'going with one's land to whatever lord one chose' must -have been curtailed. As yet the central force embodied in the kingship -was too feeble to deal directly with every one of its subjects, to -govern them and protect them. The intermediation of the lords was -necessary; the state could not but be pyramidal; and, while this was so, -the freedom that men had of forsaking one lord for another, of forsaking -even the king for the ambitious earl, was a freedom that was akin to -anarchy. Such a liberty must have its wings clipt; free contract must be -taught to know its place; the lord's hold over the man's land must -become permanent. This change, if it makes at first for a more definite -feudalism, or (to use words more strictly) if it substitutes feudalism -for vassalism, makes also for the stability of the state, for the -increase of the state's power over the individual, and in the end for -the disappearance of feudalism. The freeholder of the thirteenth -century is much more like the subject of a modern state than was the -free man of the Confessor's day who could place himself and his land -under the power and warranty of whatever lord he chose. Lordship in -becoming landlordship begins to lose its most dangerous element; it is -ceasing to be a religion, it is becoming a 'real' right, a matter for -private law. Again, we may guess, if we please, that but for the Norman -Conquest the mass of the English peasantry would never have fallen so -low as fall it did. The 'sokemen' would hardly have been turned into -'villeins,' the 'villeins' would hardly have become 'serfs.' And yet the -villeins of the Confessor's time were in a perilous position. Already -they were occupying lands which for two most important purposes were -reckoned the lands of their lords, lands for which their lords gelded, -lands for which their lords fought. Even in an English England the time -might have come when the state, refusing to look behind their lords, -would have left the protection of their rights to a _Hofrecht_, to 'the -custom of the manor.' - -[Last words.] - -It is, we repeat it, vain to speculate about such matters, for we know -too little of the relative strength of the various forces that were at -work, and an accident, a war, a famine, may at any moment decide the -fate, even the legal fate, of a great class. And above all there is the -unanswerable question whether Harold or any near successor of his would -or could have done what William did so soon as the survey was -accomplished, when he proved that, after all, the pyramid was no pyramid -and that every particle of it was in immediate contact with him, and -'there came to him all the land-sitting men who were worth aught from -over all England, whosesoever men they were, and they bowed themselves -to him, and became this man's men[697].' - - -FOOTNOTES: - - [618] D. B. i. 91: 'Ecclesia Romana beati Petri Apostoli tenet de - Rege Peritone.' Ib. 157: 'Ecclesia Sancti Dyonisii Parisii - tenet de Rege Teigtone. Rex Edwardus ei dedit.' Ib. 20 b: - 'Abbas de Grestain tenet de Comite 2 hidas in Bedingham.' - - [619] Hist. Eng. Law, i. 220. - - [620] D. B. i. 218 b: 'Rex vero Willelmus sibi postea in elemosina - concessit, unde pro anima Regis et Regine omni ebdomada 2 - feria missam persolvit.' D. B. ii. 133: 'et cantat unaquaque - ebdomada tres missas.' - - [621] D. B. i. 3: 'reddit unum militem in servitio Archiepiscopi.' - Ib. 10 b: 'servitium unius militis.' Ib. 32: 'servitium unius - militis.' Ib. 151 b: 'inveniebat 2 loricatos in custodiam de - Windesores.' - - [622] Hist. Eng. Law, i. 268. - - [623] But D. B. i. 218 b gives us 'tenet in ministerio Regis.' - - [624] D. B. i. 4 b: 'De terra huius manerii tenet Godefridus in feuo - dimid. solin.' Ib. 36 b: 'Humfridus Camerarius tenet de feuo - Reginae Cumbe.' Ib. 336 b: 'Ipsam [domum] clamat Normannus - Crassus de feuo Regis.' - - [625] D. B. i. 129 b: 'Postea Willelmus Camerarius tenuit de Regina - in feudo pro 3 lib. per annum de firma, et post mortem Reginae - eodem modo tenuit de Rege.' - - [626] But, as in general a farmer would have no heritable rights, - holding in fee may be contrasted with holding in farm. D. B. - i. 230 b: 'Has terras habet Goduinus de Rege ad firmam, Dislea - vero tenet de Rege in feudo.' So again it may be contrasted - with the husband's rights in his wife's marriage portion. D. - B. i. 214 b: 'De ista terra tenet Pirotus 3 hidas de maritagio - suae feminae et unam hidam et terciam partem unius hidae tenet - in feudum de Nigello.' - - [627] D. B. i. 158: Robert de Ouilly holds forty-two houses in - Oxford, some meadow-land and a mill 'cum beneficio S. Petri,' - i.e. together with the benefice of S. Peter's church. - Elsewhere, i. 273, we read that King William gave a manor to - the monks of Burton 'pro beneficio suo'; but the meaning of - this is by no means clear. - - [628] D. B. i. 44 b: 'Duo liberi homines tenuerunt de Alwino sed non - fuit alod.' The same phrase occurs on f. 46. - - [629] D. B. i. 22: 'Aluuard et Algar tenuerunt de Rege pro 2 - maneriis in alodia ... Ælueua tenuit de Rege Edwardo sicut - alodium.' Ib. 26: 'Godwinus Comes tenuit et de eo 7 aloarii.' - - [630] D. B. i. 60 b: 'Duo alodiarii tenuerunt T. R. E. ... unus - servivit Reginae, alter Bundino.' - - [631] D. B. i. 1: 'Quando moritur alodiarius, Rex inde habet - relevationem terrae.' - - [632] D. B. i. 52 b: 'Has hidas tenuerunt 7 alodiarii de Episcopo - nec poterant recedere alio vel ab illo.' - - [633] D. B. i. 63 b: 'Ibi sunt 5 alodiarii.' - - [634] See charter of John for St Augustin's, Canterbury, Rot. Cart. - p. 105: 'omnes allodiarios quos eis habemus datos.' This - phrase seems to descend through a series of charters from two - charters of the Conqueror in which the 'swa fele þegna swa ic - heom togeleton habbe' of the one appears in the other as - 'omnes allodiarios.' If so, we get from the Conqueror's own - chancery the equation þegn=alodiarius. Hist. Mon. S. August. - 349-50. - - [635] D. B. i. 23: in two successive entries we have 'Offa tenuit de - Episcopo in feudo.... Almar tenuit de Goduino Comite in - alodium.' So again, i. 59: 'Blacheman tenuit de Heraldo Comite - in alodio.... Blacheman tenuit in feudo T. R. E.' The - suggestion has been made that _alodium_ represents - _book-land_; see Pollock, Land Laws, ed. 3. p. 27; Eng. Hist. - Rev. xi. 227; but we gravely doubt whether the humbler - _alodiarii_ had books. The author of the Quadripartitus - renders _bócland_ by _terra hereditaria_, _terra - testimentalis_, _terra libera_, and even by _feudum_ (Edg. II. - 2); _alodium_ occurs in the Instituta Cnuti. After this we can - hardly say for certain that D. B. does not use _alodium_ and - _feodum_ as equivalents, both representing a heritable estate, - as absolute an ownership of land as is conceivable. - - [636] Hist. Eng. Law, i. 46. - - [637] D. B. i. 197. - - [638] D. B. i. 238 b: 'Reliquas autem 7 hidas et dimidiam tenuit - [_sic_] Britnodus et Aluui T. R. E., sed comitatus nescit de - quo tenuerint.' - - [639] D. B. i. 23: 'Offa tenuit de episcopo in feudo.' Ib. i. 59 b: - 'Blacheman tenuit in feudo T. R. E.' - - [640] D. B. i. 28 b: 'Bricmar tenuit de Azor et Azor de Heraldo ... - Terra est 2 carucis. In dominio est una et 2 villani et 2 - bordarii cum dimidia caruca.' - - [641] D. B. i. 75 b: 'De eadem terra ten[ent] 3 taini 3 hidas et - reddunt 3 libras excepto servicio.' Ib. 86 b: 'Huic manerio - est addita dimidia hida. Tres taini tenebant T. R. E. et - serviebant preposito manerii per consuetudinem absque omni - firma donante.' - - [642] D. B. i. 1: 'Quando moritur alodiarius, Rex inde habet - relevationem terrae.' - - [643] D. B. i. 179: 'Burgensis cum caballo serviens, cum moriebatur, - habebat Rex equum et arma eius. De eo qui equum non habebat, - si moreretur, habebat Rex aut 10 solidos aut terram eius cum - domibus.' - - [644] D. B. i. 50 b: 'Alric tenet dimidiam hidam. Hanc tenuit pater - eius de Rege E. Sed hic Regem non requisivit post mortem - Godric sui avunculi qui eam custodiebat.' - - [645] D. B. i. 238 b: 'Huic aecclesiae dedit Aluuinus vicecomes - Cliptone concessu Regis Edwardi et filiorum suorum pro anima - sua.' Ib. 59: 'De hoc manerio scira attestatur, quod Edricus - qui eum tenebat deliberavit illum filio suo qui erat in - Abendone monachus ut ad firmam illud teneret et sibi donec - viveret necessaria vitae donaret; post mortem vero eius - manerium haberet. Et ideo nesciunt homines de scira quod - abbatiae pertineat, neque enim inde viderunt brevem Regis vel - sigillum. Abbas vero testatur quod in T. R. E. misit ille - manerium ad aecclesiam unde erat et inde habet brevem et - sigillum R. E.' - - [646] D. B. i. 154: 'Quando Rex ibat in expeditione, burgenses 20 - ibant cum eo pro omnibus aliis, vel 20 libras dabant Regi ut - omnes essent liberi.' - - [647] D. B. i. 230: 'Quando Rex ibat in exercitu per terram, de ipso - burgo 12 burgenses ibant cum eo.' - - [648] D. B. i. 238: 'Consuetudo Waruuic fuit, ut eunte rege per - terram in expeditionem, decem burgenses de Waruuic pro omnibus - aliis irent.' - - [649] D. B. i. 57 b. - - [650] D. B. i. 64 b: 'Quando Rex ibat in expeditione vel terra vel - mari, habebat de hoc burgo aut 20 solidos ad pascendos suos - buzecarlos, aut unum hominem ducebat secum pro honore 5 - hidarum.' - - [651] D. B. i. 100: 'Quando expeditio ibat per terram aut per mare - serviebat haec civitas quantum 5 hidae terrae.' - - [652] Above, p. 156, note 650. - - [653] Schmid, App. VII. c. 2. § 9-12; App. V; Pseudoleges Canuti - (i.e. Instituta Cnuti) 60, 61 (Schmid, p. 431). - - [654] Of this we shall speak in another Essay. - - [655] D. B. i. 375 b; above, p. 145. - - [656] D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone ... - profectio in exercitum cum hominibus episcopi.... Hae duae - terrae non debent exercitum.' - - [657] See above, p. 85, note 326. - - [658] D. B. i. 172: 'Quando Rex in hostem pergit, si quis edictum - eius vocatus remanserit, si ita liber homo est ut habeat socam - suam et sacam et cum terra sua possit ire quo voluerit, de - omni terra sua est in misericordia Regis. Cuiuscumque vero - alterius domini homo si de hoste remanserit et dominus eius - pro eo alium hominem duxerit, 40 sol. domino suo qui vocatus - fuit emendabit. Quod si ex toto nullus pro eo abierit, ipse - quidem domino suo 40 sol. dabit, dominus autem eius totidem - solidis Regi emendabit.' - - [659] See above, p. 77, note 294. - - [660] See Round, Feudal England, 249. - - [661] D. B. i. 208: 'Testantur homines de comitatu quod Rex Edwardus - dedit Suineshefet Siuuardo Comiti soccam et sacam, et sic - habuit Haroldus comes, praeter quod geldabant in hundredo et - in hostem cum eis ibant.' It is here noted that though Harold - had sake and soke over Swineshead, it paid its geld and did - its military duty in the hundred. Our record would hardly - mention such a point unless very often the exaction of geld - and military service was one of the rights and duties of the - lord who had sake and soke. - - [662] In the next chapter we shall speak of the bishop's land-loans. - - [663] See the capitularies of 807 and 808 (ed. Boretius, pp. 134, - 137). Also, Fustel de Coulanges, Les transformations de la - royauté, 515 ff. It may well be doubted whether the five-hide - rule had not been borrowed by English kings from their - Frankish neighbours. Stubbs, Const. Hist. i. 208 ff. - - [664] D. B. i. 152 b: 'duo teigni homines Alrici filii Goding.' Ib. - 'Hoc manerium tenuit Azor filius Toti teignus Regis Edwardi et - alter teignus homo eius tenuit unam hidam et vendere potuit.' - - [665] D. B. i. 84 b: at the end of a list of royal thegns 'Omnes qui - has terras T. R. E. tenebant, poterant ire ad quem dominum - volebant.' - - [666] D. B. i. 41: 'Tres taini tenuerunt de episcopo et non - potuerunt ire quolibet.' - - [667] D. B. i. 91: 'Hae terrae erant tainland in Glastingberie T. R. - E. nec poterant ab aecclesia separari.' - - [668] Hamilton, Inquisitio, pp. xviii. xix. - - [669] D. B. i. 66 b: 'De hac eadem terra 3 hidas vendiderat abbas - cuidam taino T. R. E. ad aetatem trium hominum, et ipse abbas - habebat inde servitium, et postea debet redire ad dominium.' - Ib. i. 83 b: 'Ipsa femina tenet 2 hidas in Tatentone quae - erant de dominio abbatiae de Cernel; T. R. E. duo teini - tenebant prestito.' - - [670] D. B. i. 64 b: 'Herman et alii servientes Regis ... Odo et - alii taini Regis ... Herueus et alii ministri Regis.' Ib. 75: - 'Guddmund et alii taini ... Willelmus Belet et alii servientes - Regis.' - - [671] D. B. i. 56 b (Berkshire custom): 'Tainus vel miles Regis - dominicus moriens, pro relevamento dimittebat Regi omnia arma - sua et equum unum cum sella, alium sine sella.' - - [672] D. B. i. 83: 'Bricsi tenuit miles Regis E.' Such entries are - rare. D. B. i. 66: 'De eadem terra huius manerii ten[ent] duo - Angli.... Unus ex eis est miles iussu Regis et nepos fuit - Hermanni episcopi.' Here the king compels an Englishman to - become a _miles_. D. B. i. 180 b: 'Quinque taini ... habebant - sub se 4 milites.' The warrior was not necessarily of thegnly - rank. - - [673] See the passages collected by Schmid, Gesetze, p. 667. - - [674] In their treatment of the thegnship of the last days before - the Conquest, Maurer lays stress upon the proprietary element, - Schmid upon the hereditary. See Little, Gesiths and Thegns, E. - H. R. iv. 723. - - [675] Cnut, ii. 71. - - [676] D. B. i. 280 b. - - [677] Hamilton, Inquisitio, 121. - - [678] Eyton, Somerset, i. 84. - - [679] D. B. iv. 75: 'Dominicatus Regis ad Regnum pertinens in - Devenescira.' Ib. 99: 'Mansiones de Comitatu.' Eyton, - Somerset, i. 78. - - [680] D. B. ii. 119: 'Hoc manerium fuit de regno, sed Rex Edwardus - dedit Radulfo Comiti.' Ib. 144: 'Suafham pertinuit ad regionem - et Rex E. dedit R. Comiti.' Ib. 281 b: 'Terra Regis de Regione - quam Rogerus Bigotus servat.' Ib. 408 b: 'Tornei manerium - Regis de regione.' Mr Round, Feudal England, p. 140, treats - _regio_ as a mere blunder; but it may well stand for - _kingship_. - - [681] D. B. i. 30 b: 'Huius villae villani ab omni re vicecom[itis] - sunt quieti.' - - [682] D. B. iv. 99. - - [683] Pseudoleges Canuti (= Liebermann's Instituta Cnuti), 55 - (Schmid, p. 430): 'Comitis rectitudines secundum Anglos istae - sunt communes cum rege: tertius denarius in villis ubi - mercatum convenerit, et in castigatione latronum, et comitales - villae, quae ad comitatum eius pertinent.' - - [684] D. B. ii. 118 b: 'Terre Regis in Tetford ... est una leugata - terre in longa et dim. in lato de qua Rex habet duas partes: - de his autem duabus partibus tercia pars in consulatu iacet.' - But this seems to mean that only this part of the land is in - the county of Norfolk. Ibid. i. 246: in Stafford the king has - twenty-two houses 'de honore comitum.' - - [685] D. B. i. 246. - - [686] Ellis, Introduction. i. 313. When twenty years after Harold's - death a question about the title to land is at issue, there - seems no reason why the jurors should tell lies about Harold. - - [687] D. B. i. 154 b. - - [688] D. B. i. 172. - - [689] D. B. i. 238. - - [690] D. B. i. 56 b: Berkshire custom, 'Qui monitus ad stabilitionem - venationis non ibat 50 sol. Regi emendabat.' See also the - Hereford custom, Ib. 179; also Rectitudines (Schmid, App. - III.) c. 1. - - [691] D. B. i. 69. But the meaning of _reveland_ is obscure. The - most important passages about it are in D. B. i. 57 b - (Eseldeborne), 181 (Getune). D. B. i. 83: 'Hanc tenet Aiulf de - Rege quamdiu erit vicecomes.' - - [692] D. B. i. 100. - - [693] D. B. i. 86, 86 b, 92, 97; so in Devonshire, 117 b: 'Hoc - manerium debet per consuetudinem in Tavetone manerium Regis - aut 1 bovem aut 30 denarios.' - - [694] D. B. i. 38 b. - - [695] D. B. i. 101: 'Ipsi manerio pertinet tercius denarius de - hundredis Nortmoltone et Badentone et Brantone et tercium - animal pasturae morarum.' - - [696] Above, p. 155. - - [697] Chron. ann. 1085. - - - - -§ 9. _The Boroughs._ - - -[Borough and village.] - -Dark as the history of our villages may be, the history of the boroughs -is darker yet; or rather, perhaps, the darkness seems blacker because we -are compelled to suppose that it conceals from our view changes more -rapid and intricate than those that have happened in the open country. -The few paragraphs that follow will be devoted mainly to the development -of one suggestion which has come to us from foreign books, but which may -throw a little light where every feeble ray is useful. At completeness -we must not aim, and in our first words we ought to protest that no -general theory will tell the story of every or any particular town[698]. - -[The borough in cent. xiii.] - -In the thirteenth century a legal, though a wavering, line is drawn -between the borough and the mere vill or rural township[699]. It is a -wavering line, for stress can be laid now upon one and now upon another -attribute of the ancient and indubitable boroughs, and this selected -attribute can then be employed as a test for the claims of other towns. -When in Edward I.'s day the sheriffs are being told to bid every borough -send two burgesses to the king's parliaments, there are somewhat more -than 150 places to which such summonses will at times be addressed, -though before the end of the middle ages the number of 'parliamentary -boroughs' will have shrunk to 100 or thereabouts[700]. Many towns seem -to hover on the border line and in some cases the sheriff has been able -to decide whether or no a town shall be represented in the councils of -the realm. Yet if we go back to the early years of the tenth century, we -shall still find this contrast between the borough and the mere township -existing as a contrast whence legal consequences flow. Where lies the -contrast? What is it that makes a borough to be a borough? That is the -problem that we desire to solve. It is a legal problem. We are not to -ask why some places are thickly populated or why trade has flowed in -this or that channel. We are to ask why certain vills are severed from -other vills and are called boroughs. - -[The number of the boroughs.] - -We may reasonably wish, however, since mental pictures must be painted, -to know at the outset whereabouts the line will be drawn, and whether -when we are speaking of the Conqueror's reign and earlier times we shall -have a large or a small number of boroughs on our hands. Will it be a -hundred and fifty, or a hundred, or will it be only fifty? At once we -will say that some fifty boroughs stand out prominently and will demand -our best attention, though a second and far less important class was -already being formed. - -[The aid-paying boroughs of cent. xii.] - -In the middle of the twelfth century the Exchequer was treating certain -places in an exceptional fashion. It was subjecting them to a special -tax in the form of an _auxilium_ or _donum_. This fact we may take as -the starting point for our researches. Now if we read the unique Pipe -Roll of Henry I.'s reign and the earliest Pipe Rolls of Henry II.'s we -observe that an 'aid' or a 'gift' is from time to time collected from -the 'cities and boroughs,' and if we put down the names of the towns -which are charged with this impost, we obtain a remarkable result[701]. -Speaking broadly we may say that the only towns which pay are 'county -towns.' For a large part of England this is strictly true. We will -follow the order of Domesday Book, beginning however with its second -zone. If London is in Middlesex[702], it is Middlesex's one borough. In -Hertfordshire is Hertford. In Buckinghamshire is Buckingham, but no aid -can be expected from it. In Oxfordshire is Oxford. In Gloucestershire is -Gloucester, but Winchcombe also asserts its burghal rank. In -Worcestershire is Worcester, while Droitwich appears occasionally with a -small gift. Hereford is the one borough of Herefordshire. Turning to the -third zone, we pass rapidly through Cambridgeshire, Huntingdonshire, -Bedfordshire and Northamptonshire; each has its borough. This will be -true of Leicestershire also; but Leicester is by this time so completely -in the hands of its earl that the king gets nothing from it. Nor, it -would seem, does he get anything from Warwick. Half in Warwickshire, -half in Staffordshire lies Tamworth; Stafford also pays. At times -Bridgenorth appears beside Shrewsbury. Nothing is received from Chester, -for it is the head of a palatinate. Derby, Nottingham and York are the -only representatives of their shires. Lincolnshire has Stamford on its -border as well as Lincoln in its centre. Norfolk has Thetford as well as -Norwich; but Suffolk has only Ipswich and Essex only Colchester. - -[Aid-paying boroughs in the south.] - -In the southern zone matters are not so simple. Kent contains Canterbury -and Rochester; Surrey contains Guildford and Southwark; Sussex only -Chichester. Hampshire has Winchester; Southampton is receiving special -treatment. Wallingford represents Berkshire. When we get to Wiltshire -and Dorset we are in the classical land of small boroughs. There are -various little towns whose fate is in the balance; Marlborough and Calne -seem for the moment to be the most prominent. In Somersetshire, whatever -may have been true in the past, Ilchester is standing out as the one -borough that pays an aid. Exeter has now no second in Devonshire. If -there is a borough in Cornwall, it makes no gift to the king. - -[List of aids.] - -We may obtain some notion of the relative rank of these towns if we set -forth the amounts with which they are charged in 1130 and in 1156, -though the materials for this comparison are unfortunately incomplete. - - Pipe Roll Pipe Roll - 31 Hen. I 2 Hen. II - £ £ - London 120 120 - Winchester 80 - Lincoln 60 60 - York 40 40 - Norwich 30 33-1/3 - Exeter 20 - Canterbury 20 13-1/3 - Colchester 20[2] 12-2/3[703] - Oxford 20 20 - Gloucester 15 15 - Wallingford 15 - Worcester 15 - Cambridge 12 12 - Hereford 10 - Thetford 10 - Northampton 10 - Rochester 10 - Nottingham} 15 15 - Derby } - Wiltshire boroughs 17 - Calne 1 - Dorset boroughs 15 - Huntingdon 8 8 - Ipswich 7 3-1/3 - Guildford 5 5 - Southwark 5 5 - Hertford 5 - Stamford 5 - Bedford 5 6-2/3 - Shrewsbury 5 - Droitwich 5 - Stafford 3-1/3 3-1/3 - Winchcombe 3 5 - Tamworth 2-3/4 1-1/4[704] - Ilchester 2-1/2 - Chichester[705] - -[Value of the list.] - -Now we are not putting this forward as a list of those English towns -that were the most prosperous in the middle of the twelfth century. We -have made no mention of flourishing seaports, of Dover, Hastings, -Bristol, Yarmouth. Nor is this a list of all the places that are -casually called _burgi_ on rolls of Henry II.'s reign. That name is -given to Scarborough, Knaresborough, Tickhill, Cirencester and various -other towns. New tests of 'burgality' (if we may make that word) are -emerging and old tests are becoming obsolete. We see too that some towns -are dropping out of the list of aid-paying boroughs. In 1130 Wallingford -has thrice failed to pay its aid of £15 and the whole debt of £45 must -be forgiven to the burgesses _pro paupertate eorum_[706]. So Wallingford -drops out of this list. Probably Buckingham has dropped out at an -earlier time for a similar reason. But still this list, especially in -the form that it takes in Henry I.'s time, is of great importance to -those who are going to study the boroughs of Domesday Book. It looks -like a traditional list. It deals out nice round sums. It is -endeavouring to keep Wallingford on a par with Gloucester and above -Northampton. It is retaining Winchcombe. - -[The boroughs in Domesday.] - -If we make the experiment, we shall discover that this catalogue really -is a good prologue to Domesday Book. We will once more visit the -counties which form the second zone. The account that our record gives -of Hertfordshire has a preface. That preface deals with the borough of -Hertford and precedes even the list of the Hertfordshire tenants in -chief. Buckingham in Buckinghamshire and Oxford in Oxfordshire are -similarly treated. In Gloucestershire the city of Gloucester and the -borough of Winchcombe are described before the body of the county is -touched. In Worcestershire, Herefordshire, Cambridgeshire, -Huntingdonshire, Bedfordshire, Northamptonshire, Leicestershire, -Warwickshire, Staffordshire[707], Shropshire, Cheshire, Derbyshire, -Nottinghamshire[708] and Yorkshire the same procedure is adopted: the -account of the shire's city or borough precedes the account of the -shire. In Lincolnshire the description of the county is introduced by -the description of Lincoln and Stamford; also of Torksey, which had -been a place of military importance and seems to have been closely -united with the city of Lincoln by some governmental bond[709]. -Convenient arrangement is not the strong point of 'Little Domesday'; but -what is said therein of Colchester is said at the very end of the survey -of Essex, while Norwich, Yarmouth and Thetford stand at the end of the -royal estates in Norfolk, and Ipswich stands at the end of the royal -estates in Suffolk. - -[Southern boroughs in Domesday.] - -If now we enter the southern zone and keep in our minds the scheme that -we have seen prevailing in the greater part of England, we shall observe -that the account of Kent has a prologue touching Dover, Canterbury and -Rochester. In Berkshire an excellent account of Wallingford precedes the -rubric _Terra Regis_. Four places in Dorset are singled out for -prefatory treatment, namely, Dorchester, Bridport, Wareham and -Shaftesbury. In Devon Exeter stands, if we may so speak, above the line, -and stands alone, though Barnstaple, Lidford and Totness are reckoned as -boroughs. Of the other counties there is more to be said. If we compare -the first page of the survey of Somerset with the first pages that are -devoted to its two neighbours, Dorset and Devon, we shall probably come -to the conclusion that the compilers of the book scrupled to put any -Somerset vill on a par with Exeter, Dorchester, Bridport, Wareham and -Shaftesbury. In each of the three cases the page is mapped out in -precisely the same fashion. The second column is headed by _Terra -Regis_. A long way down in the first column begins the list of tenants -in chief. The upper part of the first column contains in one case the -account of Exeter, in another the account of the four Dorset boroughs, -but in the third case, that of Somerset, it is left blank. In Wiltshire -Malmesbury and Marlborough stand above the line; but, if we look to the -foot of the page, we shall suspect that the compilers can not easily -force their general scheme upon this part of the country. In Surrey no -place stands above the line. Guildford is the first place mentioned on -the _Terra Regis_; Southwark seems to be inadequately treated on a later -page. The case of Sussex is like that of Somerset; the list of the -tenants in chief is preceded by a blank space. In Hampshire a whole -column is left blank. On a later page the borough of Southampton has a -column to itself; in the next column stands the _Terra Regis_ of the -Isle of Wight. And now let us turn back to the Middlesex that we have as -yet ignored. Nearly two columns, to say nothing of some precedent pages, -are void[710]. - -[The boroughs and the plan of Domesday Book.] - -Now we must not be led away into speculations which would be vain. We -must not, for example, inquire whether the information that had been -obtained touching London and Winchester was too bulky to fill a room -that had been left for it. We must not inquire whether something was to -be said of Chichester or Hastings, of Ilchester or of Bristol that has -not been said. But apparently we may attribute to King William's -officials a certain general idea. It is an idea which suits the greater -part of England very well, though they find difficulties in their way -when they endeavour to impose it on some of the counties that lie south -of the Thames. The broad fact stands clear that throughout the larger -part of England the commissioners found a town in each county, and in -general one town only, which required special treatment. They do not -locate it on the _Terra Regis_; they do not locate it on any man's land. -It stands outside the general system of land tenure. - -[The borough on no man's land.] - -For a while, then, let us confine our attention to these county towns, -and we shall soon see why it is that they are rarely brought under any -rubric which would describe them as pieces of the king's soil or pieces -of some one else's soil. The trait to which we allude we shall call (for -want of a better term) the tenurial heterogeneity of the burgesses. In -those boroughs that are fully described we seldom, if ever, find that -all the burgesses have the same landlord. Of course there is a sense in -which, according to the view of the Domesday surveyors and of all later -lawyers, every inch of borough land is held of one landlord, namely, the -king; but in that sense every inch of England has the same landlord. The -fact that we would bring into relief is this, that normally the -burgesses of the borough do not hold their burgages immediately of one -and the same lord; they are not 'peers of a tenure'; the group that they -constitute is not a tenurial group. Far rather we shall find that, -though there will be some burgesses holding immediately of the king, -there will be others whose titles can be traced to the king only through -the medium of other lords. And the mesne lord will often be a very great -man, some prelate or baron with a widespread honour. Within the borough -he will, to use the language of Domesday Book, 'have' or 'hold' a small -group of burgesses, and sometimes they will be reckoned as annexed to or -as 'lying in' some manor distant from the town. It seems generally -expected that the barons of the county should have a few burgages apiece -in the county town. This arrangement does not look new. Seemingly the -great men of an earlier day, the _antecessores_ of the Frenchmen, have -owned town-houses: not so much houses for their own use, as houses or -'haws' (_hagae_) in which they could keep a few 'burgesses.' - -[Heterogeneous tenures in the boroughs.] - -Some examples of this remarkable arrangement should be given. First we -will look at Oxford. The king has many houses; the Archbishop of -Canterbury has 7; the Bishop of Winchester 9; the Bishop of Bayeux 18; -the Bishop of Lincoln 30; the Bishop of Coutances 2; the Bishop of -Hereford 3; the Abbot of St Edmund's 1; the Abbot of Abingdon 14; the -Abbot of Eynsham 13. And so with the worldly great:--the Count of -Mortain has 10; Count Hugh has 7; the Count of Evreux 1; Robert of -Ouilly 12; Roger of Ivry 15; Walter Giffard 17:--but we need not repeat -the whole long list[711]. - -It is so at Wallingford; King Edward had 8 virgates on which were 276 -houses, and they paid him £11 rent; Bishop Walkelin of Winchester has -27, which pay 25 shillings; the Abbot of Abingdon has two acres, on -which are 7 houses paying 4 shillings; Milo Crispin has 20 houses, which -pay 12 shillings and 10 pence; and so forth[712]. Further, it is said -that the Bishop's 27 houses are valued in Brightwell; and, turning to -the account of Brightwell, there, sure enough, we find mention of the 25 -shillings which these houses pay[713]. Milo's 20 houses are said to 'lie -in' Newnham; he has also in Wallingford 6 houses which are in Hazeley, 1 -which is in Stoke, 1 which is in Chalgrove, one acre with 6 houses which -is in Sutton, one acre with 11 houses which is in Bray; 'all this land' -we are told 'belongs to Oxfordshire, but nevertheless it is in -Wallingford.' Yes, Milo's manor of Chalgrove lies five, his manor of -Hazeley lies seven miles from Wallingford; nevertheless, houses which -are physically in Wallingford are constructively in Chalgrove and -Hazeley. That we are not dealing with a Norman novelty is in this case -extremely plain. Wallingford is a border town. We read first of the -Berkshire landowners who have burgesses within it. There follows a list -of the Oxfordshire 'thegns' who hold houses in Wallingford. Archbishop -Lanfranc and Count Hugh appear in this context as 'thegns' of -Oxfordshire. - -[Examples of heterogeneity.] - -When we have obtained this clue, we soon begin to see that what is true -of Oxford and Wallingford is true even of those towns of which no -substantive description is given us. Thus there are 'haws' or -town-houses in Winchester which are attached to manors in all corners of -Hampshire, at Wallop, Clatford, Basingstoke, Eversley, Candover, -Strathfield, Minstead and elsewhere. Some of the manors to which the -burghers of London were attached are not, even in our own day, within -our monstrous town; there are some at Banstead and Bletchingley in -Surrey, at Waltham and Thurrock in Essex. But in every quarter we see -this curious scheme. At Warwick the king has in his demesne 113 houses, -and his barons have 112[714]. Of the barons' houses it is written: -'These houses belong to the lands which the barons hold outside the -borough and are valued there.' Or turn we to a small town:--at -Buckingham the barons have 26 burgesses; no one of them has more than -5.[715] The page that tells us this presents to us an admirable contrast -between Buckingham and its future rival. Aylesbury is just an ordinary -royal manor and stands under the rubric _Terra Regis_. Buckingham is a -very petty townlet; but it is a borough, and Count Hugh and the Bishop -of Coutances, Robert of Ouilly, Roger of Ivry, Arnulf of Hesdin and -other mighty men have burgesses there. As a climax we may mention the -case of Winchcombe. The burgages in this little town were held by many -great people. About the year 1100 the king had 60; the Abbot of -Winchcombe 40; the Abbot of Evesham 2; the Bishop of Hereford 2; Robert -of Bellême 3; Robert Fitzhamon 5, and divers other persons of note had -some 29 houses among them[716]. However poor, however small Winchcombe -may have been, it radically differed from the common manor and the -common village. - -[Burgesses attached to manors.] - -We have seen above how in the Conqueror's day the Abbey of Westminster -had a manor at Staines[717] and how that manor included 48 burgesses who -paid 40_s._ a year. Were those burgesses really in Staines, and was -Staines a borough? No, they were in the city of London. The Confessor -had told his Middlesex thegns how he willed that St Peter and the -brethren at Westminster should have the manor (_cotlif_) of Staines with -the land called Staninghaw (_mid ðam lande Stæningehaga_) within London -and all other things that had belonged to Staines[718]. Is not the guess -permissible that Staining Lane in the City of London[719], wherein stood -the church of St Mary, Staining, was so called, not 'because stainers -lived in it,' but because it once contained the haws of the men of -Staines? We must be careful before we find boroughs in Domesday Book, -for its language is deceptive. Perhaps we may believe that really and -physically there were forty-six burgesses in the vill of St Albans[720]; -but, after what we have read of Staines, can we be quite sure that these -burgesses were not in London? The burgesses who de iure 'are in' one -place are often _de facto_ in quite another place. - -[Tenure of the borough and tenure of land within the borough.] - -We may for a moment pass over two centuries and turn to the detailed -account of Cambridge given to us by the Hundred Rolls, the most -elaborate description that we have of any medieval borough. Now in one -sense the 'vill' or borough of Cambridge belongs to the king, and, under -him, to the burgesses, for they hold it of him _in capite_ at a fee-farm -rent. But this does not mean that each burgess holds his tenement of the -corporation or _communitas_ of burgesses, which in its turn holds every -yard of land of the king in chief. It does not even mean that each -burgess holds immediately of the king, the _communitas_ intervening as -farmer of the king's rents[721]. No, the titles of the various burgesses -go up to the king by many various routes. Some of them pay rents to the -officers of the borough who are the king's farmers; but many of them do -not. The Chancellor and Masters of the University, for example, hold -three messuages in the vill of Cambridge; 'but' say the sworn burgesses -'what they pay for the same, we do not know and can not discover[722].' -How could it be otherwise? Domesday Book shows us that the Count of -Britanny had ten burgesses in Cambridge[723]. Count Alan's houses will -never be held in chief of the crown by any burgess: they will form part -of the honour of Richmond to the end of time. We may take another -example which will show the permanence of proprietary arrangements in -the boroughs. From an account of Gloucester which comes to us from the -year 1100 or thereabouts we learn that there were 300 houses in the -king's demesne and 313 belonging to other lords. From the year 1455 we -have another account which tells of 310 tenements paying landgavel to -the king's farmers and 346 which pay them nothing[724]. - -[The king and other landlords.] - -Perhaps no further examples are needed. But this tenurial heterogeneity -seems to be an attribute of all or nearly all the very ancient boroughs, -the county towns. In some cases the king was the landlord of far the -greater number of the burgesses. In other cases the bishop became in -course of time the lord of some large quarter of a town in which his -cathedral stood. At Canterbury and Rochester, at Winchester and -Worcester, this process had been at work from remote days; the bishops -had been acquiring land and 'haws' within the walls[725]. But we can see -that in Henry I.'s day there were still four earls who were keeping up -their interest in their burgesses at Winchester[726]. In the later -middle ages we may, if we will, call these places royal boroughs and the -king's 'demesne boroughs,' for the burgesses derive their 'liberties' -directly from the king. But we must keep these ancient boroughs well -apart from any royal manors which the king has newly raised to burghal -rank. In the latter he will be the immediate landlord of every burgess; -in the former a good deal of rent will be paid, not to him, nor to the -community as his farmers, but to those who are filling the shoes of the -thegns of the shire. - -[The oldest burh.] - -This said, we will turn back our thoughts to the oldest days. The word -that deserves our best attention is _burh_, the future _borough_, for -little good would come of an attempt to found a theory upon the Latin -words, such as _civitas_, _oppidum_ and _urbs_ which occur in some of -those magniloquent land-books[727]. Now it seems fairly clear that for -some long time after the Germanic invasions the word _burh_ meant merely -a fastness, a stronghold, and suggested no thick population nor any -population at all. This we might learn from the map of England. The -hill-top that has been fortified is a _burh_. Very often it has given -its name to a neighbouring village[728]. But, to say nothing of hamlets, -we have full two hundred and fifty parishes whose names end in _burgh_, -_borough_ or _bury_, and in many cases we see no sign in them of an -ancient camp or of an exceptionally dense population. It seems a mere -chance that they are not _tons_ or _hams_, _worths_ or _thorpes_. Then -again, in Essex and neighbouring shires it is common to find that in the -village called _X_ there is a squire's mansion or a cluster of houses -called _X-bury_. Further, we can see plainly from our oldest laws that -the palisade or entrenchment around a great man's house is a _burh_. -Thus Alfred: The king's _burh-bryce_ (the sum to be paid for breaking -his _burh_) is 120 shillings, an archbishop's 90 shillings, another -bishop's 60 shillings, a twelve-hundred man's 30 shillings, a -six-hundred-man's 15 shillings, a ceorl's edor-bryce (the sum to be paid -for breaking his hedge) 5 shillings[729]. The ceorl, whose _wer_ is 200 -shillings, will not have a _burh_, he will only have a hedge round his -house; but the man whose _wer_ is 600 shillings will probably have some -stockade, some rude rampart; he will have a _burh_. - -[The king's burh.] - -We observe the heavy _bót_ of 120 shillings which protects the king's -_burh_. May we not see here the very first stage in the legal history of -our boroughs? We pass over some centuries and we read in a statement of -the Londoners' customs that a man who is guilty of unlawful violence -must pay the king's _burh-bryce_ of five pounds[730]. And then the -Domesday surveyors tell us how at Canterbury every crime committed in -those streets which run right through the city is a crime against the -king, and so it is if committed upon the high-roads outside the city for -the space of one league, three perches and three feet[731]. This curious -accuracy over perches and feet sends us to another ancient -document:--'Thus far shall the king's peace (_grið_) extend from his -_burhgeat_ where he is sitting towards all four quarters, namely, three -miles, three furlongs, three acre-breadths, nine feet, nine -hand-breadths, nine barley-corns[732].' And then we remember how Fleta -tells us that the verge of the king's palace is twelve leagues in -circumference, and how within that ambit the palace court, the king's -most private court, has jurisdiction[733]. - -[The special peace of the burh.] - -Has not legal fiction been at work since an early time? Has not the -sanctity of the king's house extended itself over a group of houses? The -term _burh_ seems to spread outwards from the defensible house of the -king and with it the sphere of his _burh-bryce_ is amplified. Within the -borough there reigns a special peace. This has a double meaning:--not -only do acts which would be illegal anywhere become more illegal when -they are done within the borough, but acts which would be legal -elsewhere, are illegal there. King Edmund legislating against the -blood-feud makes his _burh_ as sacred as a church; it is a sanctuary -where the feud may not be prosecuted[734]. If in construing such a -passage we doubt how to translate _burh_, whether by _house_ or by -_borough_, we are admitting that the language of the law does not -distinguish between the two. The Englishman's house is his castle, or, -to use an older term, his _burh_; the king's borough is the king's -house, for his house-peace prevails in its streets[735]. - -[The town and the burh.] - -Our oldest laws seem to know no _burh_ other than the strong house of a -great (but he need not be a very great) man. Early in the tenth century, -however, the word had already acquired a new meaning. In Æthelstan's day -it seems to be supposed by the legislator that a moot will usually be -held in a _burh_. If a man neglects three summonses to a moot, the -oldest men of the _burh_ are to ride to his place and seize his -goods[736]. Already a _burh_ will have many men in it. Some of them will -be elder-men, aldermen. A moot will be held in it. Very possibly this -will be the shire-moot, for, since there is riding to be done, we see -that the person who ought to have come to the moot may live at a -distance[737]. A little later the _burh_ certainly has a moot of its -own. Edgar bids his subjects seek the _burh-gemót_ as well as the -_scyr-gemót_ and the _hundred-gemót_. The borough-moot is to be held -thrice a year[738]. At least from this time forward, the borough has a -court. An important line is thus drawn between the borough and the mere -_tún_. The borough has a court; the village has none, or, if the -villages are getting courts, this is due to the action of lords who -have sake and soke and is not commanded by national law. National law -commands that there shall be a moot thrice a year in every _burh_. - -[The building of boroughs.] - -The extension of the term _burh_ from a fortified house to a fortified -group of houses must be explained by those who are skilled in the -history of military affairs. It is for them to tell us, for example, how -much use the Angles and Saxons in the oldest days made of the entrenched -hill-tops, and whether the walls of the Roman towns were continuously -repaired[739]. Howbeit, a time seems to have come, at latest in the -struggle between the Danish invaders and the West-Saxon kings, when the -establishment and maintenance of what we might call fortified towns was -seen to be a matter of importance. There was to be a cluster of -inhabited dwellings which as a whole was to be made defensible by ditch -and mound, by palisade or wall. Edward the Elder and the Lady of the -Mercians were active in this work. Within the course of a few years -burgs were 'wrought' or 'timbered' at Worcester, Chester, Hertford, -Witham in Essex, Bridgnorth, Tamworth, Stafford, Warwick, Eddisbury, -Warbury, Runcorn, Buckingham, Towcester, Maldon, Huntingdon[740]. -Whatever may be meant by the duty of repairing burgs when it is -mentioned in charters coming from a somewhat earlier time, it must for -the future be that of upholding those walls and mounds that the king and -the lady are rearing. The land was to be burdened with the maintenance -of strongholds. The land, we say. That is the style of the land-books. -Land, even though given to a church, is not to be free (unless by -exceptional favour) of army-service, bridge-work and borough-bettering -or borough-fastening. Wall-work[741] is coupled with bridge-work; to the -duty of maintaining the county bridges is joined the duty of -constructing and repairing the boroughs. Shall we say the 'county -boroughs'? - -[The shire and its borough.] - -Let us ask ourselves how the burden that is known as _burh-bót_, the -duty that the Latin charters call _constructio_, _munitio_, -_restauratio_, _defensio_, _arcis_ (for _arx_ is the common term) will -really be borne. Is it not highly probable, almost certain, that each -particular tract of land will be ascript to some particular _arx_ or -_castellum_[742], and that if, for instance, there is but one _burh_ in -a shire, all the lands in that shire must help to better that _burh_. -Apportionment will very likely go further. The man with five hides will -know how much of the mound or the wall he must maintain, how much -'wall-work' he must do. We see how the old bridge-work becomes a burden -on the estates of the county landowners. From century to century the -Cambridgeshire landowners contribute according to their hidage to repair -the most important bridge of their county, a bridge which lies in the -middle of the borough of Cambridge. Newer arrangements, the rise of -castles and of borough communities, have relieved them from the duty of -'borough-fastening;' but the bridge-work is apportioned on their lands. - -[Military geography.] - -The exceedingly neat and artificial scheme of political geography that -we find in the midlands, in the country of the true 'shires,' forcibly -suggests deliberate delimitation for military purposes. Each shire is to -have its borough in its middle. Each shire takes its name from its -borough. We must leave it for others to say in every particular case -whether and in what sense the shire is older than the borough or the -borough than the shire: whether an old Roman chester was taken as a -centre or whether the struggles between Germanic tribes had fixed a -circumference. But a policy, a plan, there has been, and the outcome of -it is that the shire maintains the borough[743]. - -There has come down to us in a sadly degenerate form a document which we -shall hereafter call 'The Burghal Hidage[744].' It sets forth, so we -believe, certain arrangements made early in the tenth century for the -defence of Wessex against Danish inroads. It names divers strongholds, -and assigns to each a large number of hides. A few of the places that it -mentions we have not yet found on the map. Beginning in the east of -Sussex and following the order of the list, we seem to see Hastings, -Lewes, Burpham (near Arundel), Chichester, Porchester, Southampton, -Winchester, Wilton, Tisbury (or perhaps Chisenbury), Shaftesbury, -Twyneham, Wareham, Bredy, Exeter, Halwell near Totness, Lidford, -Barnstaple, Watchet, Axbridge; then Langport and Lyng (which defend the -isle of Athelney), Bath, Malmesbury, Cricklade, Oxford, Wallingford, -Buckingham, Eastling near Guildford, and Southwark. Corrupt and -enigmatical though this catalogue may be, it is of the highest -importance. It shows how in the great age of burg-building the -strongholds had wide provinces which in some manner or another were -appurtenant to them, and it may also give us some precious hints about -places in Wessex which once were national burgs but which forfeited -their burghal character in the tenth century. Guildford seems to have -risen at the expense of Eastling and Totness at the expense of Halwell, -while Tisbury, Bredy and Watchet (if we are right in fancying that they -are mentioned) soon lost caste. Lyng is not a place which we should have -named among the oldest of England's burgs, and yet we have all read how -Alfred wrought a 'work' at Athelney. In Wessex burgs rise and fall -somewhat rapidly. North of the Thames the system is more stable. Also it -is more artificial, for north of the Thames civil and military geography -coincide. - -[The shire's wall-work.] - -Let us now look once more at the Oxford of Domesday Book. The king has -twenty 'mural houses[745]' which belonged to Earl Ælfgar; they pay -13_s._ 2_d._ He has a house of 6_d._ which is constructively at Shipton; -one of 4_d._ at Bloxham; one of 30_d._ at Risborough and two of 4_d._ at -Twyford in Buckinghamshire. 'They are called mural houses because, if -there be need and the king gives order, they shall repair the wall.' -There follows a list of the noble houseowners, an archbishop, six -bishops, three earls and so forth. 'All the above hold these houses free -because of the reparation of the wall. All the houses that are called -"mural" were in King Edward's time free of everything except army -service and wall-work.' Then of Chester we read this[746]:--'To repair -the wall and the bridge, the reeve called out one man from every hide -in the county, and the lord whose man did not come paid 40_s_. to the -king and earl.' The duty of maintaining the bulwark of the county's -borough is incumbent on the magnates of the county. They discharge it by -keeping haws in the borough and burgesses in those haws[747]. - -[Henry the Fowler and the German burgs.] - -We may doubt whether the duty of the county to its borough has gone no -farther than mere 'wall-work.' A tale from the older Saxony may come in -well at this point. When the German king Henry the Fowler was building -burgs in Saxony and was playing the part that had lately been played in -England by Edward and Æthelflæd, he chose, we are told, the ninth man -from among the _agrarii milites_; these chosen men were to live in the -burgs; they were to build dwellings there for their fellows -(_confamiliares_) who were to remain in the country tilling the soil and -carrying a third of the produce to the burgs, and in these burgs all -_concilia_ and _conventus_ and _convivia_ were to be held[748]. Modern -historians have found in this story some difficulties which need not be -noticed here. Only the core of it interests us. Certain men are clubbed -together into groups of nine for the purpose of maintaining the burg as -a garrisoned and victualled stronghold in which all will find room in -case a hostile inroad be made. - -[The shire thegns and their town houses.] - -Turning to England we shall not forget how in the year 894 Alfred -divided his forces into two halves; half were to take the field, half to -remain at home, besides the men who were to hold the burgs[749]; but at -all events we shall hardly go astray if we suggest that the thegns of -the shire have been bound to keep houses and retainers in the borough of -their shire and that this duty has been apportioned among the great -estates[750]. We find that the baron of Domesday Book has a few -burgesses in the borough and that these few burgesses 'belong' in some -sense or another to his various rural manors. Why should he keep a few -burgesses in the borough and in what sense can these men belong some to -this manor and some to that? To all appearance this arrangement is not -modern. King Edmund conveyed to his thegn Æthelweard an estate of seven -hides at Tistead in Hampshire and therewith the haws within the burg of -Winchester that belonged to those seven hides[751]. When the Bishop of -Worcester loaned out lands to his thegns, the lands carried with them -haws in the 'port' of Worcester[752]. We have all read of the ceorl who -'throve to thegn-right.' He had five hides of his own land, a church and -a kitchen, a bell-tower and a _burh-geat-setl_, which, to our thinking, -is just a house in the 'gate,' the street of the _burh_[753]. He did not -acquire a town-house in order that he might enjoy the pleasures of the -town. He acquired it because, if he was to be one of the great men of -the county, he was bound to keep in the county's _burh_ retainers who -would do the wall-work and hoard provisions sent in to meet the evil day -when all men would wish to be behind the walls of a _burh_. - -[The knights in the borough.] - -We have it in our modern heads that the medieval borough is a sanctuary -of peace, an oasis of 'industrialism' in the wilderness of 'militancy.' -Now a sanctuary of peace the borough is from the very first. An -exceptional and exalted peace reigns over it. If you break that peace -you incur the king's _burh-bryce_. But we may strongly suspect that the -first burg-men, the first _burgenses_, were not an exceptionally -peaceful folk. Those _burhwaras_ of London who thrashed Swegen[754] and -chose kings were no sleek traders; nor must we speak contemptuously of -'trained bands of apprentices' or of 'the civic militia.' In all -probability these burg-men were of all men in the realm the most -professionally warlike. Were we to say that in the boroughs the knightly -element was strong we might mislead, for the word _knight_ has had -chivalrous adventures. However, we may believe that the _burgensis_ of -the tenth century very often was a _cniht_, a great man's _cniht_, and -that if not exactly a professional soldier (professional militancy was -but beginning) he was kept in the borough for a military purpose and was -perhaps being fed by the manor to which he belonged. These knights -formed gilds for religious and convivial purposes. At Cambridge there -was a gild of thegns, who were united in blood-brotherhood. We can not -be certain that all these thegns habitually lived in Cambridge. Perhaps -we should rather say that already a Cambridgeshire club had its -head-quarters in Cambridge and there held its 'morning-speeches' and its -drinking bouts. These thegns had 'knights' who seem to have been in some -sort inferior members of the gild and to have been bound by its -rules[755]. Then we hear of 'knight-gilds' at London and Canterbury and -Winchester[756]. Such gilds would be models for the merchant-gilds of -after-days, and indeed when not long after the Conquest we catch at -Canterbury our first glimpse of a merchant-gild, its members are calling -themselves knights: knights of the chapman-gild[757]. Among the knights -who dwelt in the burg such voluntary societies were the more needful, -because these men had not grown up together as members of a community. -They came from different districts and had different lords. In this -heterogeneity we may also see one reason why a very stringent peace, the -king's own house-peace, should be maintained, and why the borough should -have a moot of its own. When compared with a village there is something -artificial about the borough. - -[_Buhr-bót_ and castle-guard.] - -This artificiality exercised an influence over the later fate of the -boroughs. The ground had been cleared for the growth of a new kind of -community, one whose members were not bound together by feudal, -proprietary, agricultural ties. But the strand that we have been -endeavouring to trace is broken at the Conquest. The castle arises. It -is garrisoned by knights who are more heavily armed and more -professionally militant than were their predecessors. The castle is now -what wants defending; the knights who defend it form no part of the -burghal community, and perhaps 'the castle fee' is in law no part of the -borough. And yet let us see how in the twelfth century the king's castle -at Norwich was manned. It was manned by the knights of the Abbot of St -Edmund's. One troop served there for three months and then was relieved -by another, and those who were thus set free went home to the manors -with which the abbot had enfeoffed them and which they held by the -service of castle-guard[758]. Much in this arrangement is new; the -castle itself is new; but it is no new thing, we take it, that the -_burh_ should be garrisoned by the knights of abbots or earls. And who -built the castles, who built the Tower of London? Let us read what the -chronicler says of the year 1097:--Also many shires which belonged to -London for work[759] were sorely harassed by the wall that they wrought -around the tower, and by the bridge, which had been nearly washed away, -and by the work of the king's hall that was wrought at Westminster. -There were shires or districts which from of old owed this work or work -of this kind to London-bury[760]. - -[Borough and market.] - -Long before the Conquest, however, a force had begun to play which was -to give to the boroughs their most permanent characteristic. They were -to be centres of trade. We must not exclude the hypothesis that some -places were fortified and converted into burgs because they were already -the focuses of such commerce as there was. But the general logic of the -process we take to have been this:--The king's _burh_ enjoys a special -peace: Even the men who are going to or coming from it are under royal -protection: Therefore within its walls men can meet together to buy and -sell in safety: Also laws which are directed against theft command that -men shall not buy and sell elsewhere: Thus a market is established: -Traders begin to build booths round the market-place and to live in the -borough. A theory has indeed been brilliantly urged which would find the -legal germ of the borough rather in a market-peace than in the peace of -a burg[761]. But this doctrine has difficulties to meet. A market-peace -is essentially temporary, while the borough's peace is eternal. A market -court, if it arises, will have a jurisdiction only over bargains made -and offences committed on market-days, whereas the borough court has a -general competence and hears pleas relating to the property in houses -and lands. Here in England during the Angevin time the 'franchise,' or -royally granted right, of holding a market is quite distinct from the -legal essence of the borough. Lawful markets are held in many places -that are not boroughs; indeed in the end by calling a place 'a mere -market-town' we should imply that it was no borough. Already in Domesday -Book this seems to be the case. Markets are being held and market-tolls -are being taken in many vills which are not of burghal rank[762]. -Perhaps also we may see the borough-peace and the market-peace lying -side by side. In the Wallingford of the Confessor's day there were many -persons who had sake and soke within their houses. If any one spilt -blood and escaped into one of those houses before he was attached, the -owner received the blood-wite. But it was not so on Saturdays, for then -the money went to the king 'because of the market[763].' Thus the king's -borough-peace seems to be intensified on market-days; on those days it -will even penetrate the houses of the immunists. So at Dover some -unwonted peace or 'truce' prevailed in the town from St. Michael's Day -to St. Andrew's: that is to say, during the herring season[764]. - -[Establishment of markets.] - -The establishment of a market is not one of those indefinite phenomena -which the historian of law must make over to the historian of economic -processes. It is a definite and a legal act. The market is established -by law. It is established by law which prohibits men from buying and -selling elsewhere than in a duly constituted market. To prevent an easy -disposal of stolen goods is the aim of this prohibition. Our -legislators are always thinking of the cattle-lifter. At times they seem -to go the full length of decreeing that only in a 'port' may anything be -bought or sold, unless it be of trifling value; but other dooms would -also sanction a purchase concluded before the hundred court. He who buys -elsewhere runs a risk of being treated as a thief if he happens to buy -stolen goods[765]. Official witnesses are to be appointed for this -purpose in every hundred and in every _burh_: twelve in every hundred -and small _burh_, thirty-three in a large _burh_[766]. Here once more we -see the _burh_ co-ordinated with the hundred. A by-motive favours this -establishment of markets. Those who traffic in the safety of the king's -_burh_ may fairly be asked to pay some toll to the king. They enjoy his -peace; perhaps also the use of royal weights and measures, known and -trustworthy, is another part of the valuable consideration that they -receive. First and last throughout the history of the boroughs toll is a -matter of importance[767]. It gives the king a revenue from the borough, -a revenue that he can let to farm. Also, though we do not think that the -borough court was in its origin a mere market court, the disputes of the -market-place will provide the borough court with plentiful litigation, -and in this quarter also the king will find a new source of income. -Among the old land-books that which speaks most expressly of the profits -of jurisdiction as the subject-matter of a gift is a charter which -concerns the town of Worcester. Æthelred and Æthelflæd, the ealdorman -and lady of the Mercians, have, at the request of the bishop, built a -_burh_ at Worcester, and they declare that of all the rights that -appertain to their lordship both in market (_on ceapstowe_) and in -street, within the _burh_ and without, they have given half to God and -St. Peter, with the witness of King Alfred and all the wise of Mercia. -The lord of the church is to have half of all, be it land-fee, or -fiht-wite, stealing, wohceapung (fines for buying or selling contrary to -the rules of the market) or borough-wall-scotting[768]. Quite apart -from the rent of houses, there is a revenue to be gained from the -borough. - -[Moneyers in the burh.] - -Another rule has helped to define the borough, and this rule also has -its root among the regalia. No one, says King Æthelstan, is to coin -money except in a port; in Canterbury there may be seven moneyers, four -of the king, two of the bishop, one of the abbot; in Rochester three, -two of the king, one of the bishop; in London-borough eight; in -Winchester six; in Lewes two; in Hastings one; in Chichester one; in -Hampton two; in Wareham two; in Exeter two; in Shaftesbury two, and in -each of the other boroughs one[769]. Already, then, a _burh_ is an -entity known to the law: every _burh_ is to have its moneyer. - -[_Burh_ and _port_.] - -We have thus to consider the _burh_ (1) as a stronghold, a place of -refuge, a military centre: (2) as a place which has a moot that is a -unit in the general, national system of moots: (3) as a place in which a -market is held. When in the laws this third feature is to be made -prominent, the _burh_ is spoken of as a _port_, and perhaps from the -first there might be a _port_ which was not a _burh_[770]. The word -_port_ was applied to inland towns. To this usage of it the _portmoot_ -or _portmanmoot_ that in after days we may find in boroughs far from the -coast bears abiding testimony. On the other hand, except on the seaside, -this word has not become a part of many English place names[771]. If, as -seems probable, it is the Latin _portus_, we apparently learn from the -use made of it that at one time the havens (and some of those havens may -not have been in England) were the only known spots where there was much -buying and selling. But be it remembered that a market-place, a -_ceap-stow_, does not imply a resident population of buyers and -sellers; it does not imply the existence of retailers[772]. - -[Military and commercial elements in the borough.] - -We can not analyse the borough population; we can not weigh the -commercial element implied by _port_ or the military element implied by -_burh_; but to all seeming the former had been rapidly getting the upper -hand during the century which preceded the making of Domesday Book. If -we are on the right track, there was a time when the thegns of the shire -must have regarded their borough haws rather as a burden than as a -source of revenue. They kept those haws because they were bound to keep -them. On the other hand, the barons of the Conqueror's day are deriving -some income from these houses. Often it is very small. Count Hugh, for -example, has just one burgess at Buckingham who pays him twenty-six -pence a year[773]. All too soon, it may be, had the boroughs put off -their militancy. Had they retained it, England might never have been -conquered. Houses which should have been occupied by 'knights,' were -occupied by chapmen. - -[The borough and agriculture.] - -But this is not the whole difficulty. Even if we could closely watch the -change which substitutes a merchant or shopkeeper for a 'knight' as the -typical burg-man or burgess, we should still have to investigate an -agrarian problem. Very likely we ought to think that even on the eve of -the Conquest the group of men which dwells within the walls is often a -group which by tilling the soil produces a great part of its own food, -though some men may be living by handicraft or trade and some may still -be supported by those manors to which they 'belong.' In one case the -institutions that are characteristic of _burh_ and _port_ may have been -superimposed upon those of an ancient village which had common fields. -In another an almost uninhabited spot may have been chosen as the site -for a stronghold. In the former and, as we should fancy, the commoner -case a large choice is open to the constructive historian, for he may -suppose that the selected village was full of serfs or full of free -proprietors, that the soil was royal demesne or had various landlords. -In one instance he may think that he sees the coalescence of several -little communities that were once distinct; in another the gradual -occupation of a space marked out by Roman walls. The one strong hint -that is given to us by Domesday Book and later documents is that our -generalities should be few and that, were this possible, each borough -should be separately studied. - -[Burgesses as cultivators.] - -As a rule, quite half of the burgesses in any of those county towns that -are fully described in the survey are the king's own burgesses, and in -some cases his share is very large. This suggests that the land on which -the borough stands has been royal land and that the king provided the -shire thegns with sites for their haws. For their haws they have -sometimes been paying him small rents. On the other hand, at Leicester, -though the king has some 40 houses, the great majority belong to Hugh of -Grantmesnil. He has about 80 houses which pertain to 17 different manors -and which may in the past have been held by many different thegns; but -he also holds 110 houses which are not allotted to manors and which have -probably come to him as the representative of the earls and ealdormen of -an older time[774]. This looks as if in this case the soil had been not -royal but 'comital' land at the time when the place was fortified and -when the landowners of the shire, including perhaps the king, were -obliged to build houses within the wall. But though we fully admit that -each of our boroughs has lived its own life, our evidence seems to point -to the conclusion that in those truly ancient boroughs of which we have -been speaking, though there might be many inhabitants who held and who -cultivated arable land lying without the walls, there were from a remote -time other burgesses who were not landowners and were not -agriculturists and yet were men of importance in the borough. If we -look, for example, at the elaborate account of Colchester we shall first -read the names of the king's burgesses. 'Of these 276 burgesses of the -king, the majority have one house and a plot of land of from one to -twenty-five acres; some possess more than one house and some have none; -they had in all 355 houses and held 1296 acres of land[775]'. But these -were not the only burgesses. Various magnates had houses which were -annexed to their rural manors. Count Eustace (to name a few) had 12, -Geoffrey de Mandeville 2, the Abbot of Westminster 4, the Abbess of -Barking 3, and seemingly to these houses no strips in the arable fields -were attached[776]. Thus, though many of the burgesses may till the -soil, the borough community is not an agrarian community. We can not -treat it as a village community that has prospered and slowly changed -its habits. A new principle has been introduced, an element of -heterogeneity. The men who meet each other in court and market, the men -who will hereafter farm the court and market, are not the shareholders -in an agricultural concern. - -[Burgage tenure.] - -That tenurial heterogeneity of which we have been speaking had another -important effect. When in later days a rural manor is being raised to -the rank of a _liber burgus_, the introduction of 'burgage tenure' seems -to be regarded as the very essence of the enfranchisement[777]. Probably -this feature had appeared in many boroughs at an early date. The lord -with lands in Oxfordshire may have been bound to keep a few houses and -retainers in Oxford. If, however, the commercial element in the town -began to get the better of the military element, if Oxford became a -centre of trade, then a house in Oxford could be let for a money rent. -In Domesday Book the barons are drawing rents from their borough houses. -If any return is to be made by the occupier to the owner it will take -the form of a money rent; it can hardly take another form. Thus tenure -at a money rent would become the typical tenure of a burgage tenement. -It will be a securely heritable tenure, because the landlord is an -absentee and has too few tenants in the town to require the care of a -resident reeve. But there may have been many dwellers in some of the -boroughs who were bound to help in the cultivation of a stretch of royal -or episcopal demesne that lay close to the walls. In the west some of -the king's burgesses seem to have been holding under onerous terms. At -Shrewsbury, which lies near the border of Wales where every girl's -marriage gave rise to an _amobyr_, a maid had to pay ten, a widow twenty -shillings when she took a husband, and a relief of ten shillings was due -when a burgess died[778]. At Hereford the reeve's consent was necessary -when a burgage was to be sold, and he took a third of the price. When a -burgess died the king got his horse and arms (these Hereford burgesses -were fighting men); if he had no horse, then ten shillings 'or his land -with the houses.' Any one who was too poor to do his service might -abandon his tenement to the reeve without having to pay for it. Such an -entry as this seems to tell us that the services were no trivial return -for the tenement[779]. - -[Eastern and western boroughs.] - -On the other hand, we may see at Stamford what seem to be the remains of -a very free group of settlers, presumably Danes. The town contains among -other houses 77 houses of sokemen 'who hold their lands in demesne and -seek lords wherever they please, and over whom the king has nothing but -wite and heriot and toll.' These may be the same persons who hold 272 -acres of land and pay no rent for it[780]. At Norwich, again, we seem to -hear of a time when the burgesses were free to commend themselves to -whomever they would, and were therefore living in houses which were all -their own, and for which they paid no rent[781]. It is very possible -that, so far as landlordly rights are concerned, there was as much -difference between the eastern and the western towns as there was -between the eastern and the western villages. Still if we look at -borough after borough, tenure at a money rent is the tenure of the -burgage houses that we expect to find, and such a tenure, even if in its -origin it has been precarious, is likely to become heritable and -secure. As to the shire thegns, they have in some cases paid to the king -small rents for their haws; but in others, for example at Oxford, tenure -by wall-work has been their tenure, and when in other towns we find them -paying rent to the king we may perhaps see commuted wall-work. - -[Common property of the burgesses.] - -[The community as landholders.] - -Traces are few in Domesday Book of any property that can be regarded as -the property of a nascent municipal corporation, and even of any that -can be called the joint or common property of the burgesses. In general -each burgess holds his house in the town of the king or of some other -lord by a several title, and, if he has land in the neighbouring fields, -this also he holds by a several title. 'In the borough of Nottingham -there were in King Edward's day 183 burgesses and 19 _villani_. To this -borough belong 6 carucates of land for the king's geld and one meadow -and certain small woods ... This land was divided between 38 burgesses -and [the king] received 75_s_. 7_d_. from the rent of the land and the -works of the burgesses.' 'In the borough of Derby there were in King -Edward's day 243 resident burgesses.... To this borough belong 12 -carucates of land for the geld, but they might be ploughed by 8 teams. -This land was divided among 41 burgesses who had 12 teams[782].' In -these cases we see plainly enough that such arable land as is in any way -connected with the borough has been held by but a few out of the total -number of the burgesses. Therefore we must deal cautiously with entries -that are less explicit. When, for example, in the description of -Stamford we read 'Lagemanni et burgenses habent cclxxii. acras sine omni -consuetudine[783],' we must not at once decide that there is any -ownership by the burgesses as a corporation, or any joint ownership, or -even that all the burgesses have strips in these fields, though -apparently the burgesses who have strips pay no rent for them. This is -the fact and the only fact that the commissioners desire to record. They -do not care whether every burgess has a piece, or whether (as was -certainly the case elsewhere) only some of them held land outside the -walls. When of Norwich we read 'et in burgo tenent burgenses xliii. -capellas[784],' we do not suppose that all the Norwich burghers have -chapels, still less that they hold the forty-three chapels as -co-owners, still less that these chapels belong to a corporation. We -remember that the Latin language has neither a definite nor an -indefinite article. Therefore when of 80 acres at Canterbury, which are -now held by Ralph de Colombiers, we read 'quas tenebant burgenses in -alodia de rege,' we need not suppose that these acres had belonged to -_the_ (i.e. to all the) burgesses of Canterbury[785]. So of Exeter it is -written: 'Burgenses Exoniae urbis habent extra civitatem terram xii. -caruc[arum] quae nullam consuetudinem reddunt nisi ad ipsam civitatem.' -This, though another interpretation is possible, may only mean that -there are outside the city twelve plough-lands which are held by -burgesses whose rents go to make up that sum of £18 which is paid to the -king, or rather in part to the sheriff and in part to the queen dowager, -as the ferm of the city[786]. Concerning Colchester there is an entry -which perhaps ascribes to the community of burgesses the ownership or -the tenancy of fourscore acres of land and of a strip eight perches in -width surrounding the town wall; but this entry is exceedingly -obscure[787]. Another dark case occurs at Canterbury. We are told that -the burgesses or certain burgesses used to hold land of the king 'in -their gild[788].' Along with this we must read another passage which -states how in the same city the Archbishop has twelve burgesses and -thirty-two houses which 'the clerks of the vill hold in their gild.' -Apparently in this last case we have a clerical club or fraternity -holding land, and the burgher's gild may be of much the same nature, a -voluntary association. Not very long after the date of Domesday, for -Anselm was still alive, an exchange of lands was made between the -convent (_hired_, _familia_) of Christ Church and the 'cnihts' of the -chapman gild of Canterbury. The transaction takes place between the -'hired' on the one hand, the 'heap' (for such is the word employed) on -the other. The witnesses to this transaction are Archbishop Anselm and -the 'hired' on the one hand, Calveal the portreeve and 'the eldest men -of the heap' on the other[789]. But to see a municipal corporation in -the burghers' gild of Domesday Book would be very rash. We do not know -that all the burghers belonged to it or that it had any governmental -functions[790]. - -[Rights of common.] - -We may of course find that a group of burgesses has 'rights of common;' -but rights of common, though they are rights which are to be enjoyed in -common, are apt to be common rights in no other sense, for each commoner -has a several title to send his beasts onto the pasture. Thus 'all the -burgesses of Oxford have pasture in common outside the wall which brings -in [to the king] 6_s._ 8_d[791]._' The soil is the king's; the burgesses -pay for the right of grazing it. The roundness of the sum that they pay -seems indeed to hint at some arrangement between the king and the -burgesses taken in mass; but probably each burgess, and the lord of each -burgess, regards a right of pasture as appurtenant to a burgage -tenement. The case is striking, for we have seen how heterogeneous a -group these Oxford burgesses were[792]. No less than nine prelates, to -say nothing of earls and barons, had burgesses in the city. We must -greatly doubt whether there is any power in any assembly of the -burgesses to take from the Bishop of Winchester or the Count of Mortain -the customary rights of pasture that have been enjoyed by the tenants of -his tenements. - -[Absence of communalism in the boroughs.] - -We might perhaps have guessed that the boroughs would be the places of -all others in which such communalism as there was in the ancient village -community would maintain and develop itself, until in course of time the -borough corporation, the ideal borough, would stand out as the owner of -lands which lay within and without the wall. But, if we have not been -going astray, we may see why this did not happen, at least in what we -may call the old national boroughs. The burgensic group was not -homogeneous enough. We may suppose that some members of it had inherited -arable strips and pasture rights from the original settlers; but others -were 'knights' who had been placed in the haws of the shire-thegns, or -were merchants and craftsmen who had been attracted by the market, and -for them there would be no room in an old agrarian scheme. Indeed it is -not improbable that, even as regards rights of pasture, there was more -difference between burgess and burgess than there was between villager -and villager. In modern times it is not unknown that some of the -burgesses will have pasture rights, while others will have none, and in -those who are thus favoured we may fancy that we see the successors in -title of the king's tenants who turned out their beasts on the king's -land[793]. - -[The borough community and its lord.] - -We have seen that in the boroughs a group of men is formed whose -principle of cohesion is not to be found in land tenure. The definition -of a burgess may involve the possession of a house within or hard by the -walls; but the burgesses do not coalesce as being the tenants or the men -of one lord; and yet coalesce they will. They are united in and by the -moot and the market-place, united under the king in whose peace they -traffic; and then they are soon united over against the king, who exacts -toll from them and has favours to grant them. They aspire to farm their -own tolls, to manage their own market and their own court. The king's -rights are pecuniary rights; he is entitled to collect numerous small -sums. Instead of these he may be willing to take a fixed sum every year, -or, in other words, to let his rights to farm. - -[The farm of the borough.] - -This step seems to have been very generally taken before the Conquest. -Already the boroughs were farmed. Now the sums which the king would draw -from a borough would be of several different kinds. In the first place, -there would be the profits of the market and of the borough court. In -the second place, there would be the gafol, the 'haw-gavel' and -'land-gavel' arising from tenements belonging to the king and occupied -by burgesses. In the third place, there might be the danegeld; but the -danegeld was a tax, an occasional tax, and for the moment we may leave -it out of our consideration. Now the profits of the market and court -seem to have been farmed. The sums that they bring in to the king are -round sums. The farmer seems to have been the sheriff or in some cases -the king's portreeve. We can find no case in which it is absolutely -clear to our minds that the borough itself, the _communitas burgi_, is -reckoned to be the king's farmer. Again, the king's gafol, that is his -burgage rents, may be farmed: they are computed at a round sum. Thus at -Huntingdon ten pounds are paid by way of land-gafol, and we may be -fairly certain that the sum of the rents of the individual burgesses who -held their tenements immediately of the king (there were other burgesses -who belonged to the Abbot of Ramsey) did not exactly make up this neat -sum[794]. In this case, however, the sum due to the king from his -farmer, probably the sheriff, in respect of the land-gafol is expressly -distinguished from the sum that he has to pay for the farm of the -borough (_firma burgi_):--at least in its narrowest sense, the _burgus_ -which is farmed is not a mass of lands and houses, it is a market and a -court[795]. But, though we find no case in which the community of the -borough is unambiguously treated as the king's farmer, there are cases -in which it seems to come before us as the sheriff's farmer. 'The -burgesses' of Northampton pay to the sheriff £30. 10_s._ per -annum:--'this belongs to his farm[796].' The sheriff of Northamptonshire -is liable to the king for a round sum as the farm of the shire, but -'the burgesses' of Northampton are liable to the sheriff for a round -sum. This may mean that for this round sum they are jointly and -severally liable, while, on the other hand, they collect the tolls and -fines, perhaps also the king's burgage rents, and have an opportunity of -making profit by the transaction. - -[The sheriff and the borough's farm.] - -We must not be in haste to expel the sheriff from the boroughs of the -shire, or to bring the burgesses into immediate contact with the king's -treasury. We must remember that at the beginning of Henry II.'s reign -there is scarcely an exception to the rule that the boroughs of the -shire are in the eyes of auditors at the Exchequer simply parts of that -county which the sheriff farms. So far as the farm is concerned, the -royal treasury knows nothing of any boroughs[797]. The sheriff of -Gloucestershire, for example, accounts for a round sum which is the farm -of his county; neither he nor any one else accounts to the king for any -farm of the borough of Gloucester. If, as is most probable, the borough -is being farmed, it is being farmed by some person or persons to whom, -not the king, but the sheriff has let it for a longer or shorter period -at a fixed rent. Here, again, we see the likeness between a borough and -a hundred. The king lets the shire to farm; the shire includes hundreds -and boroughs; the sheriff 'lets the hundreds to farm; the sheriff lets -the boroughs to farm.' A few years later a new arrangement is made. The -king begins to let the borough of Gloucester to farm. A sum of £50 -(blanch) is now deducted from the rent that the sheriff has been paying -for his shire, and, on the other hand, Osmund the reeve accounts for -£55, which is the rent of the borough. We must not antedate a change -which is taking place very gradually in the middle of the twelfth -century. Nor must we at once reject the inference that, as the bailiffs -to whom the sheriff lets the hundreds are chosen by him, so also the -bailiffs or portreeves to whom he lets the boroughs are or have been -chosen by him. It seems very possible that one of the first steps -towards independence that a borough takes is that its burgesses induce -the sheriff to accept their nominee as his farmer of the town if they in -mass will make themselves jointly and severally liable for the rent. -These movements take place in the dark and we can not date them; but to -antedate them would be easy. - -[The community and the geld.] - -We also see that the 'geld' that the borough has to pay is a round sum -that remains constant from year to year. Cambridge, for example, is -assessed at a hundred hides, Bedford at half a hundred[798]. Now we have -good reason to believe that, in the open country also, a round sum of -geld or (and this is the same thing) a round number of hides had been -thrown upon the hundreds, that the sum thrown upon a hundred was then -partitioned among the vills, and that the sum thrown upon a vill was -partitioned among the persons who held land in the vill. In the open -country, however, when once the partition had been made, the number of -hides that was cast upon the land of any one proprietor seems to have -been fixed for good and all[799]. If we suppose, for example, that a -vill had been assessed at ten hides and that five of those units had -been assigned to a certain Edward, then Edward or his successors in -title would always have to pay for five hides, and would have to pay for -no more although the other proprietors in the vill obtained an exemption -from the tax or were insolvent. In short, the tax though originally -distributed by a partitionary method was not repartitionable. On the -other hand, in the boroughs a more communal arrangement seems to have -prevailed. In some sense or another, the whole borough, no matter what -its fortunes might be, remained answerable for the twenty, fifty or a -hundred hides that had been imposed upon it. Such a difference would -naturally arise. In the open country the taxational hidation was -supposed to represent and did represent, albeit rudely, a state of facts -that had once existed. The man who was charged with a hide ought in -truth to have had one of those agrarian units that were commonly known -as hides. But when a borough was charged with hides, a method of -taxation that was adapted to and suggested by rural arrangements was -being inappropriately applied to what had become or would soon become -an urban district. Thus the gross sum that is cast upon the borough does -not split itself once and for all into many small sums each of which -takes root in a particular tenement. The whole sum is exigible from the -whole borough every time a geld is imposed. It is repartitionable. - -[Partition of taxes.] - -For all this, however, we must be careful not to see more communalism or -more local self-government than really exists. At first sight we may -think that we detect a communal or a joint liability of all the -burgesses for the whole sum that is due from the borough in any one -year. 'The English born' burgesses of Shrewsbury send up a piteous -wail[800]. They still have to pay the whole geld as they paid it in the -Confessor's day, although the earl has taken for his castle the sites of -fifty-one houses, and other fifty houses are waste, and forty-three -French burgesses hold houses which used to pay geld, and the earl has -given to the abbey, which he has founded, thirty-nine burgesses who used -to pay geld along with the others. But, when we examine the matter more -closely, we may doubt whether there is here any joint and several (to -say nothing of any corporate) liability. Very various are the modes in -which a land-tax or house-tax may be assessed and levied. Suppose a tax -of £100 imposed upon a certain district in which there are a hundred -houses. Suppose it also to be law that, though some of these houses come -to the hands of elemosynary corporations (which we will imagine to enjoy -an immunity from taxation) still the whole £100 must be raised annually -from the householders of the district. For all this, we have not as yet -decided that any householder will ever be liable, even in the first -instance, for more than his own particular share of the £100. A -readjustment of taxation there must be. It may take one of many forms. -There may be a revaluation of the district, and the £100 may be newly -apportioned by some meeting of householders or some government officer. -But, again, the readjustment may be automatic. Formerly there were 100 -houses to pay £100. Now there are 90 houses to pay £100. That each of -the 90 must pay ten-ninths of a pound is a conclusion that the rule of -three draws for us. In the middle ages an automatic readjustment was all -the easier because of the common assumption that the value of lands and -houses was known to every one and that one virgate in a manor was as -good as another, one 'haw' in a borough as good as another[801]. We do -not say that the complaint of the burgesses at Shrewsbury points to no -more than an automatic readjustment of taxation which all along has been -a taxation of individuals; still the warning is needful that the -exaction at regular or irregular intervals of a fixed amount from a -district, or from the householders or inhabitants of a district, an -amount which remains constant though certain portions of the district -obtain immunity from the impost, does not of necessity point to any kind -of liability that is not the liability of one single individual for -specific sums which he and he only has to pay; nor does it of necessity -point to any self-governing or self-assessing assembly of -inhabitants[802]. - -[No corporation implied by the farming of the borough.] - -Returning, however, to the case of Northampton, it certainly seems to -tell us of a composition, not indeed between the burgesses and the king, -but between the burgesses and the sheriff. 'The burgesses of Northampton -pay to the sheriff £30. 10_s._' We may believe that 'the burgesses' who -pay this sum have a chance of making a profit. If so, 'the burgesses' -are already beginning to farm 'the borough.' From this, nevertheless, we -must not leap to corporate liability or corporate property. Very likely -the sheriff regards every burgess of Northampton as liable to him for -the whole £30. 10_s._; very certainly, as we think, he does not look for -payment merely to property which belongs, not to any individual burgess -nor to any sum of individual burgesses, but to 'the borough' of -Northampton. Nor if the burgesses make profit out of tolls and fines, -does it follow that they have a permanent common purse; they may divide -the surplus every year[803], or we may suspect them of drinking the -profits as soon as they are made. - -[Borough and county organization.] - -Entries which describe the limits that are set to the duty of military -or of naval service may seem more eloquent. Thus of Dover we are told -that the burgesses used to supply twenty ships for fifteen days in the -year with twenty-one men in each ship, and that they did this because -the king had released to them his sake and soke[804]. Here we seem to -read of a definite transaction between the king of the one part and the -borough of the other part, and one which implies a good deal of -governmental organization in the borough. We would say nothing to lessen -the just force of such a passage, which does not stand alone[805]; but -still there need be but little more organization in the borough of Dover -than there is in Berkshire. It was the custom of that county that, when -the king summoned his host, only one soldier went from every five hides, -while each hide provided him with four shillings for his equipment and -wages[806]. We may guess that in a county such a scheme very rapidly -'realized' itself and took root in the soil, that in a borough there was -less 'realism,' that there were more frequent readjustments of the -burden; but the difference is a difference of degree. - -[Government of the boroughs.] - -Of anything that could be called the constitution of the boroughs, next -to nothing can we learn. We may take it that in most cases the king's -farmer was the sheriff of the shire; in some few cases, as for example -at Hereford, the reeve of the borough may have been directly accountable -to the king[807]. We know no proof that in any case the reeve was an -elected officer. Probably in each borough a court was held which was a -court for the borough; probably it was, at least as a general rule, -co-ordinate with a hundred court, and indeed at starting the borough -seems to be regarded as a vill which is also a hundred[808]. The action -of this court, however, like the action of other hundred courts, must as -time went on have been hampered by the growth of seignorial justice. The -sake and soke which a lord might have over his men and over his lands -were certainly not excluded by the borough walls. He had sometimes been -expressly told that he might enjoy these rights 'within borough and -without borough.' It is difficult for us to realize the exact meaning -that 'sake and soke' would bear when ascribed to a prelate or thegn who -had but two or three houses within the town. Perhaps in such cases the -town houses were for jurisdictional purposes deemed to be situate within -some rural manor of their lord. But in a borough a lord might have a -compact group of tenants quite large enough to form a petty court. In -such a case the borough court would have the seignorial courts as -rivals, and many a dispute would there be. At Lincoln one Tochi had a -hall which undoubtedly was free 'from all custom'; but he had also -thirty houses over which the king had toll and forfeiture. So the -burgesses swore; but a certain priest was ready to prove by ordeal that -they swore falsely[809]. In these cases the lord's territory would -appear in later times as a little 'liberty' lying within the borough -walls. The middle ages were far spent before such liberties had become -mere petty nuisances[810]. In the old cathedral towns, such as -Canterbury and Winchester, the bishop's jurisdictional powers and -immunities were serious affairs, for the bishop's tenants were -numerous[811]. Nevertheless, in the great and ancient boroughs, the -boroughs which stand out as types and models, there was from a very -remote time a court, a borough-moot or portman-moot, which was not -seignorial, a court which was a unit in a national system of courts. - -[The borough court.] - -Of the form that the borough court took we can say little. Perhaps at -first it would be an assembly of all the free burg-men or port-men. As -its business increased in the large boroughs, as it began to sit once a -week instead of thrice a year, a set of persons bound to serve as -doomsmen may have been formed, a set of aldermen or lawmen whose offices -might or might not be hereditary, might or might not 'run with' the -possession of certain specific tenements. A 'husting' might be formed, -that is, a house-thing as distinct from a 'thing' or court held in the -open air. Law required that there should be standing witnesses in a -borough, before whom bargains and sales should take place. Such a demand -might hasten the formation of a small body of doomsmen. In Cambridge -there were lawmen of thegnly rank[812]; in Lincoln there were twelve -lawmen[813]; in Stamford there had been twelve, though at the date of -Domesday Book there were but nine[814]; we read of four _iudices_ in -York[815], and of twelve _iudices_ in Chester[816]. So late as 1275 the -twelve lawmen of Stamford lived on in the persons of their heirs or -successors. There are, said a jury, twelve men in Stamford who are -called lawmen because their ancestors were in old time the judges of the -laws (_iudices legum_) in the said town; they hold of the king in chief; -by what service we do not know; but you can find out from Domesday -Book[817]. Over the bodies of these, presumably Danish, lawmen there has -been much disputation. We know that taken individually the lawmen of -Lincoln were holders of heritable franchises, of sake and soke. We know -that among the twelve _iudices_ of Chester were men of the king, men of -the earl, men of the bishop; they had to attend the 'hundred,' that is, -we take it, the borough court. We know no more; but it seems likely that -we have to deal with persons who collectively form a group of doomsmen, -while individually each of them is a great man, of thegnly rank, with -sake and soke over his men and his lands; his office passes to his -heir[818]. On the whole, however, we must doubt whether the generality -of English boroughs had arrived at even this somewhat rudimentary stage -of organization. In 1200 the men of Ipswich, having received a charter -from King John, decided that there should be in their borough twelve -chief portmen, 'as there were in the other free boroughs in England,' -who should have full power to govern and maintain the town and to render -the judgments of its court[819]. Now Ipswich has a right to be placed in -the class of ancient boroughs, of county towns, and yet to all -appearance it had no definite class of chief men or doomsmen until the -year 1200. Still we ought not to infer from this that the town moot had -been in practice a democratic institution. There may be a great deal of -oligarchy, and oligarchy of an oppressive kind, though the ruling class -has never been defined by law. Domesday Book allows us to see in various -towns a large number of poor folk who can not pay taxes or can only pay -a poll tax. We must be chary of conceding to this crowd any share in the -dooms of the court[820]. - -[Definition of the borough.] - -But what concerns the government of the boroughs has for the time been -sufficiently said by others. In our few last words we will return to our -first theme, the difference between the borough and the mere township. - -[Mediatized boroughs.] - -We have seen that in Domesday Book a prominent position is conceded to -certain towns. They are not brought under any rubric which would place -them upon the king's or any other person's land. It must now be -confessed that there are some other towns that are not thus treated and -that none the less are called boroughs. If, however, we remember that -burgesses often are in law where they are not in fact, the list that we -shall make of these boroughs will not be long. Still such boroughs exist -and a few words should be said about them. They seem to fall into two -classes, for they are described as being on the king's land or on the -land of some noble or prelate. Of the latter class we will speak first. -It does not contain many members and in some cases we can be certain -that in the Confessor's day the borough in question had no other lord -than the king. Totness is a case in point. It now falls under the title -_Terra Judhel de Tottenais_; but we are told that King Edward held it in -demesne[821]. In Sussex we see that Steyning, Pevensey and Lewes are -called _burgi_[822], Steyning is placed on the land of the Abbot of -Fécamp, Pevensey on that of the Count of Mortain and Lewes on that of -William of Warenne; but at Lewes there have been many haws appurtenant -to the rural manors of the shire thegns[823]. In Kent the borough of -Hythe seems to be completely under the archbishop[824]. He has burgesses -at Romney over whom he has justiciary rights, but they serve the -king[825]. The 'little borough called Fordwich' belonged to the Abbot of -St Augustin. But of this we know the history. The Confessor gave him -the royal two-thirds, while the bishop of Bayeux as the successor of -Earl Godwin gave him the comital one-third[826]. Further north, Louth in -Lincolnshire and Newark in Nottinghamshire seem to be accounted -boroughs; they both belong to the bishop of Lincoln; but in the case of -Newark (which was probably an old _burh_) we may doubt whether his title -is very ancient[827]. We are told that at Tatteshall, the Pontefract of -later days[828], there are sixty 'minute burgesses,' that is, we take -it, burgesses in a small way. Ilbert de Lacy is now their lord; but here -again we may suspect a recent act of mediatization[829]. Grantham in -Lincolnshire is placed on the Terra Regis; it had belonged to Queen -Edith; there were, however, seventy-seven tofts in it which belonged to -'the sokemen of the thegns,' that is, to the sokemen of the thegns of -the shire[830]. Then in Suffolk we see that Ipswich is described at the -end of the section which deals with the royal estates; a similar place -is found for Norwich, Yarmouth and Thetford in the survey of -Norfolk[831]. But for Dunwich we must look elsewhere. There were -burgesses at Dunwich; but to all seeming the royal rights over the town -had passed into the hands of Eadric of Laxfield[832]. The successor of -the same Eadric has burgesses among his tenants at Eye[833]. There are -burgesses at Clare, though Clare belongs altogether to the progenitor of -the lordly race which will take its name from this little town[834]. But -at least in this last case, the burgesses may be new-comers, or rather -perhaps we may see that an old idea is giving way to a newer idea of a -borough, and that if men engaged in trade or handicraft settle round a -market-place and pay money-rents to a lord they will be called -burgesses, though the town is no national fortress. At Berkhampstead 52 -burgesses are collected in a _burbium_, but they may be as new as the -two _arpents_ of vineyard[835]. We must not say dogmatically that never -in the days before the Conquest had a village become a borough while it -had for its one and only landlord some person other than the king, some -bishop, or some thegn. This may have happened at Taunton. In 1086 there -were burgesses at Taunton and it enjoyed 'burh-riht,' and yet from a -very remote time it had belonged to the bishops of Winchester. But the -cases in which we may suppose that a village in private hands became a -_burgus_ and that this change took place before the Norman invasion seem -to be extremely few. In these few the cause of the change may have been -that the king by way of special favour imposed his _burhgrið_ upon the -town and thereby augmented the revenue of its lord[836]. - -[Boroughs on the king's land.] - -As to the boroughs that are regarded as standing on the king's land, -these also seem to be few and for the more part they are small. There -are burgesses at Maldon[837]; but Maldon is not placed by the side of -Colchester[838]; it is described among the royal estates. There are -burgesses at Bristol[839]; but Bristol is not placed beside Gloucester -and Winchcombe. Perhaps we should have heard more of it, if it had not, -like Tamworth, stood on the border of two counties. In the south-west -the king's officials seem to be grappling with difficulties as best they -may. In Dorset they place Dorchester, Bridport, Wareham and Shaftesbury -above the rubric _Terra Regis_[840], and we can not find that they -reckon any other place as a borough. In Devonshire we see Exeter above -the line; Lidford and Barnstaple, however, are called boroughs though -they are assigned to the king's land, and (as already said) Totness is a -borough, though it is mediatized and is described among the estates of -its Breton lord[841]. No borough in Somerset is placed above the line, -though we learn that the king has 107 burgesses in Ilchester who pay him -20 shillings[842], and that he and others have burgesses at Bath[843]. -Perhaps the space that stands vacant before the list of the tenants in -chief should have been filled with some words about these two towns. -Axbridge, Langport and Milborne seem to be boroughs; Axbridge and -Langport occur in that list of ancient fortresses which we have called -The Burghal Hidage[844]. Wells was an episcopal, Somerton a royal manor; -we have no reason for calling either of them a borough. In Hampshire -another of the ancient fortresses, Twyneham (the modern Christ Church) -is still called _burgus_, but seems to be finding its level among the -royal manors[845]. In Wiltshire Malmesbury and Marlborough are placed -above the line. We learn that the king receives £50 from the _burgus_ of -Wilton[846], and we also learn incidentally that various lords have -burgesses in that town; for example, the bishop of Salisbury has -burgesses in Wilton who belong to his manor of Salisbury[847]. Old -Salisbury ('old Sarum' as we foolishly call it) seems to be a mere -manor belonging to the bishop; but the king receives its third penny. -He receives also the third penny of Cricklade, which we have named -before now as one of the old Wessex strongholds, and several of the -county magnates had burgesses there. On the other hand Calne, Bedwind -and Warminster are reckoned to be manors on the king's land. Burgesses -belong to them; but whether those burgesses are really resident in them -may not be quite certain[848]. Devizes we can not find. That puzzles -should occur in this quarter is what our general theory might lead us to -expect. In the old home of the West-Saxon kings there may well have been -towns which had long ago secured the name and the peace of royal burgs, -though they manifested none of that tenurial heterogeneity which is the -common mark of a borough. A town, a village, which not only belonged to -the king but contained a palace or house in which he often dwelt, would -enjoy his special peace, and might maintain its burghal dignity long -after there was little, if any, real difference between it and other -manors or villages of which the king was the immediate landlord. Already -in 1086 there may have been 'rotten boroughs,' boroughs that were rotten -before they were ripe[849]. - -[Attributes of the borough.] - -A borough belongs to the genus _villa_ (_tún_). In age after age our -task is to discover its _differentia_, and the task is hard because, as -age succeeds age, changes in law and changes in fact are making the old -distinctions obsolete while others are becoming important. Let us -observe, then, that already when Domesday Book was in the making those -ancient attributes of which we have been speaking were disappearing or -were fated soon to disappear. We have thought of the typical borough as -a fortified town maintained by a district for military purposes. But -already the shire thegns have been letting their haws at a rent and -probably have been letting them to craftsmen and traders. Also the time -has come for knight-service and castles and castle-guard. We have -thought of the typical borough as the sphere of a special peace. But the -day is at hand when a revolution in the criminal law will destroy the -old system of _wer_ and _wíte_ and _bót_, and the king's peace will -reign always and everywhere[850]. We have thought of the typical borough -as a town which has a court. But the day is at hand when almost every -village will have its court, its manorial court. New contrasts, however, -are emerging as the old contrasts fade away. Against a background of -villeinage and week-work, the borough begins to stand out as the scene -of burgage tenure. The service by which the burgess holds his tenement -is a money rent. This may lead to a large increase in the number of -boroughs. If a lord enfranchises a manor, abolishes villein customs, -takes money rents, allows his tenants to farm the court and perhaps also -to farm a market that he has acquired from the king, he will be said to -create a _liber burgus_[851]. Merchant gilds, elected bailiffs, elected -mayors and common seals will appear and will complicate the question. -There will follow a time of uncertainty and confusion when the sheriffs -will decide as suits them best which of the smaller towns are boroughs -and which are not. - -[Classification of boroughs.] - -If the theory that we have been suggesting is true, all or very nearly -all our ancient boroughs (and we will draw the line of ancientry at the -Conquest) are in their inception royal boroughs. The group of burgesses -when taken as a whole had no superior other than the king. His was the -peace that prevailed in the streets; the profits of the court and of the -market were his, though they were farmed by a reeve. Rarely, however, -was he the landlord of all the burgesses. In general not a few of them -lived in houses that belonged to the thegns of the shire. We must be -careful therefore before we speak of these towns as 'boroughs on the -royal demesne.' For the more part, the compilers of Domesday Book have -refused to place them on the _Terra Regis_. In course of time some of -them will be currently spoken of as boroughs on or of the royal demesne. -The rights of those who represent the thegns of the shire will have -become mere rights to rent, and, their origin being forgotten, they will -even be treated as mere rent-charges[852]. The great majority of the -burgesses will in many instances be the king's immediate tenants and he -will be the only lord of that incorporeal thing, 'the borough,' the only -man who can grant it a charter or let it to farm. But we must -distinguish between these towns and those which at the Conquest were -manors on the king's land. These latter, if he enfranchises them, will -be boroughs on the royal demesne in an exacter sense. So, again, we must -distinguish between those ancient boroughs which the king has mediatized -and those manors of mesne lords which are raised to the rank of -boroughs. We have seen that from the ancient borough the king received a -revenue of tolls and fines. Therefore he had something to give away. He -could mediatize the borough. Domesday Book shows us that this had -already been done in a few instances[853]. At a later time some even of -the county towns passed out of the king's hands into the hands of earls. -This happened at Leicester and at Warwick. The earl succeeded to the -king's rights, and the burgesses had to go to the earl for their -liberties and their charters. But such cases are very distinct from -those in which a mesne lord grants an enfranchising charter to the men -of a place which has hitherto been one of his manors, and by speaking of -boroughs which are 'on the land of mesne lords' we must not confuse two -classes of towns which have long had different histories. In the ancient -boroughs there is from the first an element that we must call both -artificial and national. The borough does not grow up spontaneously; it -is made; it is 'wrought'; it is 'timbered.' It has a national purpose; -it is maintained 'at the cost of the nation' by the duty that the shire -owes to it. This trait may soon have disappeared, may soon have been -forgotten, but a great work had been done. In these nationally supported -and heterogeneously peopled towns a new kind of community might wax and -thrive. - - -FOOTNOTES: - - [698] A sketch of the principal argument of this section was - published in Eng. Hist. Rev., xi. 13, as a review of - Keutgen's Untersuchungen über den Ursprung der deutschen - Stadtverfassung. The origin of the French and German towns - has become the theme of a large and very interesting - literature. A good introduction to this will be found in an - article by M. Pirenne, L'origine des constitutions urbaines, - Revue historique, liii. 52, lvii. 293, and an article by Mr - Ashley, Quarterly Journal of Economics, vol. x. July, 1896. - The continuous survival of Roman municipal institutions even - in Gaul seems to be denied by almost all modern students. - - [699] Hist. Eng. Law, i. 625. - - [700] Stubbs, Const. Hist. iii. 448. - - [701] We must exclude cases in which the king takes an aid from his - whole demesne, e.g. for his daughter's marriage, for in such a - case many royal manors which have no right to be called - boroughs must make a gift. - - [702] Round, Geoffrey de Mandeville, 347, has excellent remarks on - this point. - - [703] Nearly. - - [704] This may come only from the Staffordshire part of Tamworth. - - [705] Chichester pays in later years; but very little. - - [706] Pipe Roll, 31 Hen. I. p. 139. - - [707] Was the blank space in D. B. i. 246 left for the borough of - Tamworth? This borough is incidentally mentioned in D. B. i. - 238, 246, 246 b. - - [708] But the account of the two sister boroughs here falls between - the accounts of the two sister counties. - - [709] D. B. i. 337. It is even called a _suburbium_ of Lincoln, - though it lies full 10 miles from the city. - - [710] The one glimpse that I have had of the manuscript suggested to - me (1) that the accounts of some of the boroughs were - postscripts, and (2) that space was left for accounts of - London and Winchester. The anatomy of the book deserves - examination by an expert. - - [711] D. B. i. 154. - - [712] D. B. i. 56. - - [713] D. B. i. 58. - - [714] D. B. i. 238. - - [715] D. B. i. 143. - - [716] Ellis, Introduction, ii. 446; Winchcombe Land-boc, ed. Royce, - p. xiv; Stevenson, Rental of Gloucester, p. ix. - - [717] D. B. i. 128, 128 b; and above, p. 111. - - [718] K. 855 (iv. 211). - - [719] Stow, Survey, ed. Strype, Bk. iii. p. 121. - - [720] D. B. i. 135 b. - - [721] Hist. Eng. Law, i. 636. - - [722] Rot. Hund. ii. 361. - - [723] D. B. i. 189. - - [724] Rental of Gloucester, ed. W. H. Stevenson: Gloucester, 1890, - p. x. - - [725] There are many examples in Kemble's Codex. - - [726] Pipe Roll, 31 Hen. I. p. 41: 'Vicecomes reddit compotum de £80 - de auxilio civitatis.... Et in perdonis.... Comiti de Mellent - 25 sol.... Comiti de Lerecestria 35 sol.... Comiti de Warenna - 16 sol.... Comiti Gloecestriae 116 sol. et 8 den.' See also - the Liber Wintoniae, D. B. iv. 531 ff. - - [727] In the A.-S. land-books the word _civitas_ is commonly applied - to Worcester, Winchester, Canterbury, and other such places, - which are both bishops' sees and the head places of large - districts. But (K. v. p. 180) Gloucester is a _civitas_, and - for some time after the Conquest it is rather the county town - than the cathedral town that bears this title. Did any one - ever speak of Selsey or Sherborne as a _civitas_? In 803 (K. - v. p. 65) the bishops of Canterbury, Lichfield, Leicester, - Sidnacester, Worcester, Winchester, Dunwich, London and - Rochester style themselves bishops of _civitates_, while those - of Hereford, Sherborne, Elmham and Selsey do not use this - word. But an inference from this would be rash. - - [728] An interesting example is this. In 779 Offa conveys to a thegn - land at Sulmonnesburg. The boundaries mentioned in the charter - are those of the present parish of Bourton-on-the-Water. - 'Sulmonnesburg ... is the ancient camp close to Bourton which - gave its name to the Domesday Hundred of Salmanesberie, and at - a gap in the rampart of which a Court Leet was held till - recently.' See C. S. Taylor, Pre-Domesday Hide of - Gloucestershire, Trans. Bristol and Gloucestershire Archæol. - Soc. vol. xviii. pt. 2. As regards the names of hills and of - villages named from hills there may occasionally be some - difficulty in marking off those which go back to _beorh_ - (_berry_, _berrow_, _barrow_) from those which go back to - _burh_ (_burgh_, _borough_, _bury_). Mr Stevenson tells me - that in the West of England the termination _-borough_ - sometimes represents _-beorh_. - - [729] Alfred, 40; Ine, 45. - - [730] Aethelr. IV. 4. The Quadripartitus is our only authority for - these _Instituta_; but Dr Liebermann (Quadrip. p. 138) holds - that the translator had in front of him a document written - before the Conquest. Schmid would read _borh-bryce_; see p. - 541; but this emendation seems needless. Has not the sum been - Normanized? The king's _burh-bryce_ used to be 120 (i.e. in - English 'a hundred') shillings, and a hundred _Norman_ - shillings make £5. So according to the Berkshire custom (D. B. - i. 56 b) he who by night breaks a _civitas_ pays 100 shillings - to the king and not (it is noted) to the sheriff. - - [731] D. B. i. 2: 'Concordatum est de rectis callibus quae habent - per civitatem introitum et exitum, quicunque in illis - forisfecerit, regi emendabit.' See the important document - contained in a St Augustin's Cartulary and printed in Larking, - Domesday of Kent, Appendix, 35: 'Et omnes vie civitatis que - habent duas portas, hoc est introitum et exitum, ille sunt de - consuetudine Regis.' - - [732] Schmid, App. XII; Leg. Henr. c. 16. - - [733] Fleta, p. 66; see also 13 Ric. II. stat. 1. cap. 3. - - [734] Edmund, II. 2. - - [735] See also Schmid, App. IV. (Be griðe and be munde), § 15: 'If - any man fights or steals in the king's _burh_ or the - neighbourhood (the 'verge'), he forfeits his life, if the king - will not concede that he be redeemed by a _wergild_.' - - [736] Æthelstan, II. 20. - - [737] K. 1334 (vi. p. 195): a contract made at Exeter before Earl - Godwin and all the shire. - - [738] Edgar, III. 5; Cnut, II. 18. - - [739] Mention is made of the walls of Rochester and Canterbury in - various charters from the middle of cent. viii onwards: K. - vol. i. pp. 138, 183, 274; vol. ii. pp. 1, 26, 36, 57, 86; - vol. v. p. 68. - - [740] Green, Conquest of England, 189-207. - - [741] For instance, K. iii. pp. 5, 50. - - [742] K. 1154 (v. 302): 'adiacent etiam agri quamplurimi circa - castellum quod Welingaford vocitatur.'--K. 152 (i. 183): - 'castelli quod nominatur Hrofescester.'--K. 276 (ii. 57): - 'castelli Hrobi.' - - [743] A beautiful example is given by Staffordshire and - Warwickshire. Each has its borough in its centre, while - Tamworth on the border is partly in the one shire, partly in - the other. See Pipe Roll, 31 Hen. I. 75, 76, 107, 108. As to - these Mercian shires, see Stubbs, Const. Hist., i. 123; Green, - Conquest of England, 237: 'Hertfordshire, Buckinghamshire and - Bedfordshire are other instances of purely military creation, - districts assigned to the fortresses which Eadward raised at - these points.' - - [744] See our index under _Burghal Hidage_. Mr W. H. Stevenson's - valuable aid in the identification of these burgs is - gratefully acknowledged. - - [745] D. B. i. 154. - - [746] D. B. i. 262 b. - - [747] It will be understood that we are not contending for an exact - correspondence between civil and military geography. Oxford - and Wallingford are border towns. Berkshire men help to - maintain Oxford, and Oxfordshire men help to maintain - Wallingford. - - [748] Widukind, I. 35. For comments see Waitz, Heinrich V. 95; - Richter, Annalen, iii. 8; Giesebrecht, Kaiserzeit (ed. 5), i. - 222, 811; Keutgen, Ursprung der deutschen Stadtverfassung, p. - 44. Giesebrecht holds that Edward's measures may well have - been Henry's model. - - [749] A.-S. Chron. ann. 894. - - [750] A charter of 899 (K. v. p. 141) professes to tell how King - Alfred, Abp Plegmund and Æthelred ealdorman of the Mercians - held a moot 'de instauratione urbis Londoniae.' One result of - this moot was that two plots of land inside the walls, with - hythes outside the walls, were given by the king, the one to - the church of Canterbury, the other to the church of - Worcester. How will the _instauratio_ of London be secured by - such grants? - - [751] K. 1144 (v. 280). Other cases: K. 663 (Chichester), 673 - (Winchester), 705 (Warwick), 724 (Warwick), 746 (Oxford), 1235 - (Winchester). - - [752] K. 765-6, 805. - - [753] Schmid, App. V. This might mean a seat (of justice) in the - gate of his own _burh_. But this document will hardly be older - than, if so old as, cent. x., by which time we should suppose - that _burh_ more often pointed to a borough than to a strong - house. We may guess that in the latter sense it was supplanted - by the _hall_ of which we read a great deal in Domesday. See - above, p. 109. However, it does not seem certain that O. E. - _geat_ can mean _street_. - - [754] A.-S. Chron. ann. 994. - - [755] Thorpe, Diplomatarium, 610. When the Confessor sends a writ to - London he addresses it to the bishop, portreeve and - burh-thegns. See K. iv. pp. 856, 857, 861, 872. - - [756] Gross, Gild Merchant, i. 183, 189. - - [757] Gross, op. cit. ii. 37. - - [758] Hist. Eng. Law, i. 257. - - [759] A.-S. Chron. ann. 1097: 'Eac manege sciran þe mid weorce to - Lundenne belumpon ...' Thorpe thought good to substitute - _scipan_ for _sciran_. - - [760] D. B. i. 298. Outside York were some lands which gelded with - the city; 'et in tribus operibus Regis cum civibus erant.' - This refers to the _trinoda necessitas_. - - [761] Sohm, Die Entstehung des deutschen Städtewesens: Leipzig, - 1890. - - [762] Ellis, Introduction, i. 248-253. - - [763] D. B. i. 56 b. - - [764] D. B. i. 1. Black Book of the Admiralty, ii. 158: 'the herring - season, that is from St. Michael's Day to St. Clement's (Nov. - 23).' St. Andrew's Day is Dec. 1. - - [765] Edward, I. 1; Æthelstan, II. 12, 13; IV. 2; VI. 10; Edmund, - III. 5; Edgar, IV. 7-11; Leg. Will. I. 45; Leg. Will. III. 10. - See Schmid, Glossar. s.v. _Marktrecht_. - - [766] Edgar, IV. 3-6. We should expect rather 36 than 33, and - _xxxvi_ might easily become _xxxiii_. - - [767] K. 280 (ii. 63), 316 (ii. 118). - - [768] Kemble, Cod. Dip. 1075 (v. 142); Kemble, Saxons, ii. 328; - Thorpe, 136: 'ge landfeoh, ge fihtwite, ge stale, ge - wohceapung, ge burhwealles sceatinge.' In D. B. i. 173 it is - said that the Bishop of Worcester had received the third penny - of the borough. Apparently in the Confessor's day he received - £6, the third of a sum of £18. As to the early history of - markets, see the paper contributed by Mr C. I. Elton to the - Report of the Royal Commission on Market Rights, 1889. - - [769] Æthelstan, II. 14. - - [770] The general equivalence of _port_ and _burh_ we may perhaps - infer from Æthelstan, II. 14: No one is to coin money outside - a _port_, and there is to be a moneyer in every _burh_. - - [771] Stockport, Langport, Amport, Newport-Pagnell, Milborne Port, - Littleport are instances. But a very small river might be - sufficient to make a place a haven. - - [772] Seemingly if this O.-E. _port_ is not Lat. _portus_, it is - Lat. _porta_, and there is some fascination about the - suggestion that the _burh-geat_, or in modern German the - _Burg-gasse_, in which the market is held, was described in - Latin as _porta burgi_. In A.D. 762 (K. i. p. 133) we have a - house 'quae iam ad Quenegatum urbis Dorouernis in foro posita - est.' In A.D. 845 (K. ii. p. 26) we find a 'publica strata' in - Canterbury 'ubi appellatur Weoweraget,' that is, the gate of - the men of Wye. But what we have to account for is the - adoption of _port_ as an English word, and if our ancestors - might have used _geat_, they need not have borrowed. In A.D. - 857 (K. ii. p. 63) the king bestows on the church of Worcester - certain liberties at a spot in the town of London, 'hoc est, - quod habeat intus liberaliter modium et pondera et mensura - sicut in porto mos est ad fruendum.' To have public weights - and measures is characteristic of a _portus_ (= haven). The - word may have spread outwards from London. Dr Stubbs (Const. - Hist. i. 439) gives a weighty vote for _porta_; but the - continental usage deserves attention. Pirenne, Revue - historique, lvii. 75: 'Toutes les villes anciennes [en - Flandre] s'y forment au bord des eaux et portent le nom - caractéristique de _portus_, c'est-à-dire de débarcadères. - C'est de ce mot _portus_ que vient le mot flamand _poorter_, - qui désigne le bourgeois.' See D. B. i. 181 b: 'in Hereford - Port.' - - [773] D. B. i. 143. - - [774] D. B. i. 230. - - [775] Cutts, Colchester, 65; Round in The Antiquary, vol. vi. (1882) - p. 5. - - [776] D. B. ii. 106-7. See Round, op. cit., p. 252. - - [777] Hist. Eng. Law, i. 629. - - [778] D. B. i. 252. - - [779] D. B. i. 179. So at Chester (i. 262 b) it is considered - possible that the heir will not be able to pay the relief of - ten shillings and will forfeit the tenement. - - [780] D. B. i. 336. - - [781] D. B. ii. 116. See also the case of Thetford (D. B. ii. 119), - where there had been numerous burgesses who could choose their - lords. - - [782] D. B. i. 280. - - [783] D. B. i. 336 b. - - [784] D. B. ii. 117. - - [785] D. B. i. 2. In 923 (K. v. p. 186) we hear of land outside - Canterbury called _Burhuuare bocaceras_, apparently acres - booked to [certain] burgesses. - - [786] D. B. i. 100. - - [787] D. B. ii. 107: 'In commune burgensum iiii. xx. acrae terrae; - et circa murum viii. percae; de quo toto per annum habent - burgenses lx. sol. ad servicium regis si opus fuerit, sin - autem, in commune dividunt.' As to this most difficult - passage, see Round, Antiquary, vol. vi. (1882) p. 97. Perhaps - the most natural interpretation of it is that the community or - commune of the burgesses holds this land and receives by way - of rent from tenants, to whom it is let, the sum of 60 - shillings a year, which, if this be necessary, goes to make up - what the borough has to pay to the king, or otherwise is - divisible among the burgesses. But, as Mr Round rightly - remarks, 60 shillings for this land would be a large rent. - - [788] D. B. i. 2: 'Ipsi quoque burgenses habebant de rege 33 acras - terrae in gildam suam.' Another version says, '33 agros terre - quos burgenses semper habuerunt in gilda eorum de donis omnium - regum.' The document here cited is preserved in a cartulary of - St Augustin, and is printed in Larking, Domesday of Kent, App. - 35. It is closely connected with the Domesday Survey and is of - the highest interest. - - [789] Gross, Gild Merchant, ii. 37. - - [790] We do not even know for certain that when our record says that - the burgesses and the clerks held land 'in gildam suam,' more - was meant than that the land was part of their geldable - property. See Gross, Gild Merchant, i. 189. In the Exon - Domesday the geld is _gildum_. - - [791] D. B. i. 154. - - [792] See above, p. 179. - - [793] In modern York the freemen inhabiting the different wards had - rights of pasture varying from ward to ward: Appendix to - Report of Municipal Corporations' Commissioners, 1835, p. - 1745. York is one of the towns in which we may perhaps suppose - that there has been a gradual union of several communities - which were at one time agrarianly distinct. See D. B. i. 298. - Dr Stubbs seems to regard this as a common case and speaks of - 'the townships which made up the _burh_' (Const. Hist. i. - 101). We can not think that the evidence usually points in - this direction, and have grave doubts as to the existence - within the walls of various communities that were called - townships. Within borough walls we must not leap from parish - to township. - - [794] D. B. i. 203. As to the whole of this matter see Mr Round's - paper on Domesday Finance in Domesday Studies, vol. i. - - [795] Hist. Eng. Law, i. 635. - - [796] D. B. i. 219. - - [797] The case of London is anomalous; but not so anomalous as it is - often supposed to be. On this point see Round, Geoffrey de - Mandeville, 347 ff. On the Pipe Roll of 2 Hen. II. (pp. 24, - 28) the citizens of Lincoln are accounting for a farm of £180, - while the sheriff in consequence of this arrangement is - credited with £140 (blanch) when he accounts for the farm of - the shire. This is as yet a rare phenomenon. - - [798] As to the round sums cast on the boroughs, see Round in - Domesday Studies, i. 117 ff.; also Round, Feudal England, 156. - - [799] This may not have been the case in East Anglia. - - [800] D. B. i. 252. - - [801] D. B. i. 298. Of York we read: 'In the geld of the city are 84 - carucates of land, each of which gelds as much as one house in - the city.' This seems to point to an automatic adjustment. To - find out how much geld any house pays, divide the total sum - that is thrown upon York by the number of houses + 84. - - [802] Mr Round (Domesday Studies, i. 129) who has done more than - anyone else for the elucidation of the finance of Domesday, - has spoken of 'the great Anglo-Saxon principle of _collective - liability_.' This may be a useful term, provided that we - distinguish (_a_) liability of a corporation for the whole tax - whenever it is levied; (_b_) joint and several liability of - all the burgesses for the whole tax whenever it is levied; - (_c_) liability of each burgess for a share of the whole tax, - the amount that he must pay in any year being affected by an - increase or decrease in the number of contributories. - - [803] See the entry touching Colchester, above, p. 201, note 787. - - [804] D. B. i. 1. - - [805] D. B. i. 238. The custom of Warwick was that when the king - made an expedition by land ten burgesses of Warwick should go - for all the rest. He who did not go when summoned [summoned by - whom?] paid 100 shillings to the king; [so his offence was - against the king not against the town.] And if the king went - against his enemies by sea, they sent him four boat-swains or - four pounds in money. - - [806] D. B. i. 56 b. - - [807] D. B. i. 179. - - [808] At Chester (D. B. i. 262 b) the twelve civic _iudices_ paid a - fine if they were absent without excuse from the 'hundret.' - This seems to mean that their court was called a hundred moot. - It is very possible that, at least in the earliest time, the - moot that was held in the borough had jurisdiction over a - territory considerably larger than the walled space, and in - this case the urban would hardly differ from the rural - hundred. A somewhat new kind of 'hundred' might be formed - without the introduction of any new idea. - - [809] D. B. i. 336. - - [810] Hist. Eng. Law, i. 631. - - [811] Green, Town Life, vol. i. ch. xi. - - [812] D. B. i. 189. - - [813] D. B. i. 336 b. - - [814] D. B. i. 336 b. - - [815] D. B. i. 298. - - [816] D. B. i. 262 b. - - [817] R. H. i. 354-6. - - [818] Besides the well known English books, see a paper by Konrad - Maurer, Sitzungsberichte der Akademie der Wissenschaften zu - München, Philosoph.-philolog. Classe, 1887, vol. ii. p. 363. - In the Leges Edw. Conf. 38 § 2, the 'lagemanni et meliores - homines de burgo' seem to serve as inquest men, rather than - doomsmen; while the _lahmen_ of the document concerning the - Dunsetan (Schmid, App. I.) seem to be doomsmen. - - [819] Gross, Gild Merchant, ii. 114 ff.; Hist. Eng. Law, i. 642. - - [820] D. B. ii. 290, Ipswich: 'Modo vero sunt 110 burgenses qui - consuetudinem reddunt et 100 pauperes burgenses qui non - possunt reddere ad geltum Regis nisi unum denarium de suis - capitibus.' D. B. ii. 116, Norwich: 'Modo sunt in burgo 665 - burgenses anglici et consuetudines reddunt, et 480 bordarii - qui propter pauperiem nullam reddunt consuetudinem.' - - [821] D. B. i. 108 b. - - [822] Whether the _novum burgum_ mentioned in D. B. i. 17 is - Winchelsea or Rye or a new town at Hastings seems to be - disputable. See Round, Feudal England, 568. - - [823] D. B. i. 26 b, 27. - - [824] D. B. i. 4 b. - - [825] D. B. i. 4 b. See also, 10 b. - - [826] D. B. i. 12. - - [827] D. B. i. 345, 283 b. It has been said that Leofric gave Newark - to the see. - - [828] Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from - Yorkshire Archaeological Journal), p. 126. - - [829] D. B. i. 316 b. The estate is ingeldable and therefore looks - like an ancient possession of the king. - - [830] D. B. 337 b: 'Toftes sochemanorum teignorum.' Some - commentators have seen here 'sokemen thegns'; but the other - interpretation seems far more probable. - - [831] Had these towns been described in Great Domesday, they would - probably have been definitely placed outside the _Terra - Regis_. - - [832] D. B. ii. 311, 312, 385. - - [833] D. B. ii. 319 b. - - [834] D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.' For - Sudbury, see D. B. ii. 286 b; for Beccles, 369 b. - - [835] D. B. i. 136 b: 'In burbio huius villae 52 burgenses.' The - word _burbium_ looks as if some one had argued that as - _suburbium_ means an annex to a town, therefore _burbium_ must - mean a town. But the influence of _burh_, _burg_, _bourg_ may - be suspected. A few pages back (132) the _burgum_ of Hertford - seems to be spoken of as 'hoc suburbium.' It is of course to - be remembered that _burgus_ or _burgum_ was a word with which - the Normans were familiar: it was becoming the French _bourg_. - It is difficult to unravel any distinctively French thread in - the institutional history of our boroughs during the Norman - age; but the little knot of traders clustered outside a lord's - castle at Clare or Berkhampstead, at Tutbury, Wigmore or - Rhuddlan may have for its type rather a French _bourg_ than an - English _burh_. Indeed at Rhuddlan (i. 269) the burgesses have - received the law of Breteuil. - - [836] For Taunton, see D. B. i. 87 b: 'Istae consuetudines pertinent - ad Tantone: burgeristh, latrones, pacis infractio, hainfare, - denarii de hundred, denarii S. Petri, ciricieti.' Compare the - document which stands as K. 897 (iv. 233): 'Ðæt is ærest ... - seo men redden into Tantune cirhsceattas and burhgerihtu.' See - also K. 1084 (v. 157): 'ut episcopi homines [apud Tantun] tam - nobiles quam ignobiles ... hoc idem ius in omni haberent - dignitate quo regis homines perfruuntur, regalibus fiscis - commorantes.' - - [837] D. B. ii. 5 b. - - [838] D. B. ii. 104. - - [839] D. B. i. 163. - - [840] D. B. i. 75. - - [841] D. B. i. 100, 108 b. - - [842] D. B. i. 86 b. - - [843] D. B. i. 87. - - [844] See above, p. 188. - - [845] D. B. 38 b, 44. - - [846] D. B. 64 b. - - [847] D. B. 66. - - [848] The burgesses belonging to Ramsbury are really at Cricklade: - D. B. i. 66. - - [849] It seems very possible that already before the Conquest some - boroughs had fallen out of the list. In cent. x. we read, for - example, of a _burh_ at Towcester and of a _burh_ at Witham in - Essex. We must not indeed contend that a shire-supported town - with tenurial heterogeneity came into existence wherever - Edward the Elder or the Lady of the Mercians 'wrought a - _burh_.' But still during a time of peace the walls of a petty - _burh_ would be neglected, and, if the great majority of the - inhabitants were the king's tenants, there would be little to - distinguish this place from a royal village of the common - kind. See for Towcester, D. B. i. 219 b; for Witham, D. B. ii. - 1 b. In later days we may see an old borough, such as - Buckingham, falling very low and sending no burgesses to - parliament. It will be understood that we have not pledged - ourselves to any list of the places that were boroughs in - 1066. There are difficult cases such as that of St Albans; see - above, p. 181. But, we are persuaded that few places were - deemed _burgi_, except the shire towns. - - [850] A last relic of the old borough peace may be found in - Britton's definition of burglary (i. 42): 'Burglars are those - who feloniously in time of peace break churches, or the houses - of others, or the walls or gates of our cities or boroughs - (_de nos citez ou de nos burgs_).' - - [851] By a charter of enfranchisement a lord might introduce burgage - tenure and abolish 'servile customs'; but it must be, to say - the least, doubtful whether he could, without the king's - licence, confer upon a village the public status of a borough - and e.g. authorize it to behave like a hundred before the - justices in eyre. This is one of the reasons why sheriffs can - draw the line where they please, and why some towns which have - been enfranchised never obtain a secure place in the list of - parliamentary boroughs. - - [852] Hist. Eng. Law, i. 630. When it is being said that if land in - the borough escheats, it always escheats to the king, the - mesne tenures are already being forgotten within the borough, - just as in modern times we have forgotten them in the open - country. The burgher's power of devising his land made escheat - a rare event, and so destroyed the evidence of mesne tenure. - - [853] See above, p. 212. Also the king might give away an undivided - share of the borough. Apparently the church of Worcester had - received the third penny of the city ever since the day when - the _burh_ was wrought by the ealdorman and lady of the - Mercians. See above, p. 194. - - - - -ESSAY II. - -ENGLAND BEFORE THE CONQUEST. - - -[Object of this Essay.] - -No one can spend patient hours in examining the complex web disclosed by -Domesday Book without making some theories, at least some guesses, about -the political, social and economic threads of which that web has been -woven. But if we here venture to fashion and state a few such theories -or such guesses, it is with no hope that they will be a complete -explanation of old English history. For, in the first place, we are to -speak mainly of the things of the law, of legal ideas and legal forms, -and once for all we may protest that we have no wish to overestimate -their importance. The elaborate and long continued development to which -we point when we speak of 'feudalism,' can not be fully explained by any -discussion of legal ideas and legal forms. On the other hand, it can not -be fully explained without such discussion, for almost all that we can -know about it is to be found in legal documents. In the second place, we -are to make a selection. Certain phases of our oldest legal history, -notably those which are called 'constitutional,' have been so fully -treated by classical books, that at the present moment there is no good -reason why we should traverse the ground that has been covered. -Therefore if, for example, we say little or nothing of the ancient -Germanic _comitatus_ or of the relationship between lord and man in so -far as it is a merely personal relationship, this will not be because we -have overlooked these matters; it will be because there is nothing to be -gained by our repeating what has been well and sufficiently said by Dr -Konrad Maurer, Dr Reinhold Schmid, Dr Stubbs and others. And if, again, -we lay great stress on what may be called the ecclesiastical phase of -the feudalizing process, this will not be because we think it the only -phase, it will be because we think that too little attention has been -paid by English writers to the influence which the churches exercised -upon temporal affairs by means of their endowments. The day for an -artistically proportioned picture of the growth of feudalism has not yet -come; the day for a quantitative analysis of the elements of feudalism -may never come; for the present we must be content if we can bring out a -few new truths or set a few old truths in a new light. The vast and -intricate subject may be approached from many different quarters. If we -can make some little progress along our chosen path, we shall be all the -more willing to admit that progress along other paths is possible. - -[Fundamental controversies as to Anglo-Saxon history.] - -It can not but be, however, that this part of our work should be -controversial, though it need not be polemical. We are told that 'in -spite of all the labour that has been spent on the early history of -England, scholars are still at variance upon the most fundamental of -questions: the question whether that history began with a population of -independent freemen or with a population of dependent serfs[854]'. Some -exception may be taken to this statement. No one denies that for the -purposes of English history slavery is a primitive institution, nor that -in the seventh and eighth centuries there were many slaves in England. -On the other hand, no one will assert that we can ascertain, even -approximately, the ratio that the number of slaves bore to the number of -free men. Moreover such terms as 'dependent' and 'independent' are not -words that we can profitably quarrel over, since they are inexact and -ambiguous. For all this, however, it may well be said that there are two -main theories before the world. The one would trace the English manor -back to the Roman villa, would think of the soil of England as being -tilled from the first mainly by men who, when they were not mere slaves, -were _coloni_ ascript to the land. The other would postulate the -existence of a large number of free men who with their own labour tilled -their own soil, of men who might fairly be called free 'peasant -proprietors' since they were far from rich and had few slaves or -servants, and yet who were no mere peasants since they habitually bore -arms in the national host. What may be considered for the moment as a -variant on this latter doctrine would place the ownership of the soil, -or of large tracts of the soil, not in these free peasants taken as -individuals, but in free village communities. - -[The Romanesque theory unacceptable.] - -Now we will say at once that the first of these theories we can not -accept if it be put forward in a general form, if it be applied to the -whole or anything like the whole of England. Certainly we are not in a -position to deny that in some cases, a Roman villa having come into the -hands of a Saxon chieftain, he treated the slaves and _coloni_ that he -found upon it in much the same way as that in which they had been -theretofore treated, though even in such a case the change was in all -probability momentous, since large commerce and all that large commerce -implies had perished. But against the hypothesis that this was the -general case the English language and the names of our English villages -are the unanswered protest. It seems incredible that the bulk of the -population should have been of Celtic blood and yet that the Celtic -language should not merely have disappeared, but have stamped few traces -of itself upon the speech of the conquerors.[855] This we regard as an -objection which goes to the root of the whole matter and which throws -upon those who would make the English nation in the main a nation of -Celtic bondmen, the burden of strictly proving their thesis. The German -invaders must have been numerous. The Britons were no cowards. They -contested the soil inch by inch. The struggle was long and arduous. What -then, we must ask, became of the mass of the victors? Surely it is -impossible that they at once settled down as the 'dependent serfs' of -their chieftains. Again, though it is very likely that where we find a -land of scattered steads and of isolated hamlets, there the Germanic -conquerors have spared or have been unable to subdue the Britons or have -adapted their own arrangements to the exterior framework that was -provided by Celtic or Roman agriculture, still, until Meitzen[856] has -been refuted, we are compelled to say that our true villages, the -nucleated villages with large 'open fields,' are not Celtic, are not -Roman, but are very purely and typically German. But this is not all. -Hereafter we shall urge some other objections. The doctrine in question -will give no rational explanation of the state of things that is -revealed to us by the Domesday Survey of the northern and eastern -counties and it will give no rational explanation of seignorial justice. -This being so, we seem bound to suppose that at one time there was a -large class of peasant proprietors, that is, of free men who tilled the -soil that they owned, and to discuss the process which substitutes for -peasant proprietorship the manorial organization. - -[Feudalism as a normal stage.] - -Though we can not deal at any length with a matter which lies outside -the realm of legal history, we ought at once to explain that we need not -regard this change as a retrogression. There are indeed historians who -have not yet abandoned the habit of speaking of feudalism as though it -were a disease of the body politic. Now the word 'feudalism' is and -always will be an inexact term, and, no doubt, at various times and -places there emerge phenomena which may with great propriety be called -feudal and which come of evil and make for evil. But if we use the term, -and often we do, in a very wide sense, if we describe several centuries -as feudal, then feudalism will appear to us as a natural and even a -necessary stage in our history: that is to say, if we would have the -England of the sixteenth century arise out of the England of the eighth -without passing through a period of feudalism, we must suppose many -immense and fundamental changes in the nature of man and his -surroundings. If we use the term in this wide sense, then (the barbarian -conquests being given us as an unalterable fact) feudalism means -civilization, the separation of employments, the division of labor, the -possibility of national defence, the possibility of art, science, -literature and learned leisure; the cathedral, the scriptorium, the -library, are as truly the work of feudalism as is the baronial castle. -When therefore we speak, as we shall have to speak, of forces which make -for the subjection of the peasantry to seignorial justice and which -substitute the manor with its villeins for the free village, we -shall--so at least it seems to us--be speaking not of abnormal forces, -not of retrogression, not of disease, but in the main of normal and -healthy growth. Far from us indeed is the cheerful optimism which -refuses to see that the process of civilization is often a cruel -process; but the England of the eleventh century is nearer to the -England of the nineteenth than is the England of the seventh--nearer by -just four hundred years. - -[Feudalism as progress and as retrogress.] - -This leads to a remark which concerns us more deeply. As regards the -legal ideas in which feudalism is expressed a general question may be -raised. If we approach them from the standpoint of modern law, if we -approach them from the standpoint of the classical Roman law, they are -confused ideas. In particular no clear line is drawn between public and -private law. Ownership is _dominium_; but governmental power, -jurisdictional power, these also are _dominium_. Office is property; -taxes are rents; governmental relationships arise _ex contractu_. Then -within the province of private law the ideas are few; these few have -hard work to do; their outlines are blurred. One _dominium_ rises above -another _dominium_, one seisin over another seisin. Efforts after -precision made in comparatively recent times by romanizing lawyers serve -only to show how vague was the subject-matter with which they had to -deal. They would give the lord a _dominium directum_, the vassal a -_dominium utile_; but then, when there has been further subinfeudation, -this vassal will have a _dominium utile_ as regards the lord paramount, -but a _dominium directum_ as regards the sub-vassal. So again, as we -shall see hereafter, the gift of land shades off into the 'loan' of -land, the 'loan' into the gift. The question then occurs whether we are -right in applying to this state of things such a word as 'confusion,' a -word which implies that things that once were distinct have wrongfully -or unfortunately been mixed up with each other, a word which implies -error or retrogression. - -[Progress and retrogress in the history of legal ideas.] - -Now, no doubt, from one point of view, namely that of universal history, -we do see confusion and retrogression. Ideal possessions which have been -won for mankind by the thought of Roman lawyers are lost for a long -while and must be recovered painfully. Lines that have been traced with -precision are smudged out, and then they must be traced once more. If we -regard western Europe as a whole, this retrogression appears as a slow -change. How slow--that is a much controverted question. There are, for -example, historians who would have us think of the Gaul of Merovingian -times as being in the main governed by Roman ideas and institutions, -which have indeed been sadly debased, but still are the old ideas and -institutions. There are other historians who can discover in this same -Gaul little that is not genuinely German and barbarous. But at any rate, -it must be admitted that somehow or another a retrogression takes -place, that the best legal ideas of the ninth and tenth centuries are -not so good, so modern, as those of the third and fourth. If, however, -we take a narrower view and fix our eyes upon the barbarian hordes which -invade a Roman province, shall we say that their legal thought gradually -goes to the bad, and loses distinctions which it has once apprehended? -To turn to our own case--Shall we say that Englishmen of the eighth -century mark the line that divides public from private law, while -Englishmen of the eleventh century can not perceive it? - -[The contact of barbarism and civilization.] - -No one perhaps to such a question would boldly say: Yes. And yet, when -it comes to a treatment of particulars, an affirmative answer seems to -be implied in much that has been written even by modern historians. They -begin at the beginning and attribute precise ideas and well-defined law -to the German conquerors of Britain. If they began with the eleventh -century and thence turned to the earlier time, they might come to -another opinion, to the opinion that in the beginning all was very -vague, and that such clearness and precision as legal thought has -attained in the days of the Norman Conquest has been very gradually -attained and is chiefly due to the influence which the old heathen world -working through the Roman church has exercised upon the new. The process -that is started when barbarism is brought into contact with civilization -is not simple. The hitherto naked savage may at once assume some part of -the raiment, perhaps the hat, of the white man. When after a while he -puts these things aside and learns to make for himself clothes suitable -to the climate in which he lives and the pursuits in which he is -engaged, we see in this an advance, not a relapse; and yet he has -abandoned some things that belong to the white man. Even so when our -kings of the eighth century set their hands to documents written in -Latin and bristling with the technical terms of Roman law, to documents -which at first sight seem to express clear enough ideas of ownership and -alienation, we must not at once assume that they have grasped these -ideas. In course of time men will evolve formulas which will aptly fit -their thought, for example, the 'feudal' charter of feoffment with its -_tenendum de me_ and its _reddendo mihi_. Externally it will not be so -Roman or (we may say it) so modern a document as was the land-book of -the eighth century, and yet in truth there has been progress not -retrogress. Words that Roman lawyers would have understood give way -before words which would have been nonsense to them, _feoffamentum_, -_liberatio seisinae_ and the like. This is as it should be. Men are -learning to say what they really mean. - -[Our materials.] - -And now let us remember that our materials for the legal history of the -long age which lies behind Domesday Book are scanty. A long age it is, -even if we measure it only from the date of Augustin's mission. The -Conqueror stands midway between Æthelbert and Elizabeth. To illustrate -five hundred years of legal history we have only the dooms and the -land-books. The dooms are so much taken up with the work of keeping the -peace and punishing theft that they tell us little of the structure of -society or of the feudalizing process, while as to what they imply it is -but too easy for different men to form different opinions. Some twelve -hundred land-books or charters, genuine and spurious, are our best, -almost our only, evidence, and it must needs be that they will give us -but a partial and one-sided view of intricate and many-sided facts[857]. - - -FOOTNOTES: - - [854] Ashley, Introduction to Fustel de Coulanges, Origin of - Property in Land, p. vii. - - [855] The gradual disappearance in recent times of the Irish - language is no parallel case, for this is a triumph of the - printing press. Mr Stevenson tells me that the number of - unquestioned cases of a word borrowed from Celtic in very - ancient times is now reduced to less than ten. - - [856] Meitzen, Siedelung und Agrarwesen der Germanen, especially ii. - 120 ff. - - [857] We shall use, and cite by the letter _K._, Kemble's Codex - Diplomaticus Aevi Saxonici. We shall refer by the letters _H. - & S._ to the third volume of the Councils and Ecclesiastical - Documents edited by Haddan and Stubbs, by the letter _T._ to - Thorpe's Diplomatarium, by the letter _B._ to Birch's - Cartularium, by the letter _E._ to Earle's Land Charters. - Reference will also be made to the two collections of - facsimiles, namely, the four volumes which come from the - British Museum and the two which come from the Ordnance - Survey. We are yet a long way off a satisfactory edition of - the land-books. A model has been lately set by Prof. Napier - and Mr Stevenson in their edition of the Crawford Collection - of Early Charters, Oxford, 1895. - - - - -§ 1. _Book-land and the Land-book._ - - -[The lands of the churches.] - -Now these charters or land-books are, with hardly any exceptions, -ecclesiastical title-deeds. Most of them are deeds whereby lands were -conveyed to the churches; some are deeds whereby lands were conveyed to -men who conveyed them to the churches. Partial, one-sided and in details -untrustworthy though the testimony that they bear may be, there is still -one general question that they ought to answer and we ought to ask. -Domesday Book shows us many of the churches as the lords of wide and -continuous tracts of land. Now about this important element in the -feudal structure the land-books ought to tell us something. They ought -to tell us how the churches acquired their territories; they ought to -tell us what class of men made gifts of land to the churches; they ought -to tell us whether those gifts were of big tracts or of small pieces. -For example, let us remember how Domesday Book shows us that four -minsters, Worcester, Evesham, Pershore and Westminster, were lords of -seven-twelfths of Worcestershire, that the church of Worcester was lord -of one quarter of that shire and lord of the triple hundred of -Oswaldslaw. How did that church become the owner of a quarter of a -county, to say nothing of lands in other shires? We ought to be able to -answer this question in general terms, for among the charters that have -come down to us there is no series which is longer, there is hardly a -long series which is of better repute, than the line of the land-books -which belonged to the church of Worcester. They come to us for the more -part in the form of a cartulary compiled not long after the Conquest by -the monk Heming at the instance of Bishop Wulfstan[858]. - -[How the churches acquired their lands.] - -Now the answer that they give to our question is this:--With but few -exceptions, the donors of these lands were kings or under-kings, kings -or under-kings of the Mercians, kings of the English, and the gifts were -large gifts. Very often the charter comprised a tract of land which in -Domesday Book appears as a whole vill or as several contiguous vills. -Seldom indeed is the subject-matter of the gift described as being a -_villa_ or a _vicus_:--the king merely says that he gives so many manses -or the land of so many _manentes_ at a certain place. Still, if we -compare these charters with Domesday Book, we shall become convinced -that very often the land given was of wide extent. For example, Domesday -Book tells us that the church of Worcester holds Sedgebarrow -(Seggesbarue) where it has four hides for geld, but eight plough teams. -How was this acquired? The monks answer that three centuries ago, in -777, Aldred the under-king of the Hwiccas gave them _viculum qui -nuncupatur aet Segcesbaruue iiii. mansiones_, that land having been -giving to him by Offa king of the Mercians in order that the soul of the -_subregulus_ might have something done for it[859]. In the Conqueror's -reign the Archbishop of Canterbury held a great estate in Middlesex of -which Harrow was the centre, and which contained no less than 100 hides. -Already in 832 the archbishop or his church had 104 hides at -Harrow[860]. Here we will state our belief, its grounds will appear in -another essay, that the 'manses' that the kings throw about by fives and -tens and twenties, are no small holdings, but hides each of which -contains, or is for fiscal purposes deemed to contain, some 120 acres of -arable land together with stretches, often wide stretches, of wood, -meadow and waste, the extent of which varies from case to case. From the -seventh century onwards the kings are giving large territories to the -churches. One instance is beyond suspicion, for Bede attests it. In 686 -or thereabouts Æthelwealh king of the South Saxons gave to Bishop -Wilfrid the land of eighty-seven families in the promontory of Selsey, -and among its inhabitants were two hundred and fifty male and female -slaves[861]. This gift comprised a spacious tract of country; it -comprised what then were, or what afterwards became, the sites of many -villages[862]. But to whichever of our oldest churches we turn, the -story that it proclaims in its title-deeds is always the same:--We -obtained our lands by means of royal grants; we obtained them not in -little pieces, here a few acres and there a few, but in great pieces. -Canterbury and Winchester echo the tale that is told by Worcester. -Another example may be given. It is one that has been carefully examined -of late. In 739 King Æthelheard of Wessex gave to Forthhere bishop of -Sherborne twenty _cassati_ at the place called 'Cridie.' Thereby he -disposed of what now are 'the parishes of Crediton, Newton St. Cyres, -Upton Pyne, Brampford Speke, Hittesleigh, Drewsteignton, Colebrooke, -Morchard Bishop, Sandford, Kennerleigh and the modern parish of -Sherwood, part of Cheriton Bishop, and possibly the whole of -Clannaborough.' He disposed of the whole and more than the whole of the -modern 'hundred' of Crediton[863]. Then, to choose one last instance, it -is said that already in 679 Osric of the Hwiccas gave to an abbess -_centum manentes qui adiacent civitati quae vocatur Hát Bathu_[864]. It -is not unlikely that this means that a king newly converted to -Christianity disposed by one deed of many square leagues of land, -namely, of the hundred of Bath[865]. The kingdom of the Hwiccas was not -boundless. If Osric executed a few more charters of this kind he would -soon have 'booked' it all. - -[The earliest books.] - -Let us then examine with some care the charters that come to us from the -earliest period, a period which shall begin with the year 600 and end -with the year 750. From this time we have some forty charters -sufficiently genuine for our present purpose. With hardly an exception -the grantor is a king or an under-king, while the grantee is a dead -saint, a church, a bishop, an abbot, or a body of monks. If the grantee -is a layman, the gift is made to him in order that he may found a -minster. If this purpose is not expressed, it is to be understood. Thus -in 674 or thereabouts Wulfhere king of the Mercians gives five manses to -his kinsman Berhtferth as a perpetual inheritance. Berhtferth is to have -full power to give them to whom he pleases, and we are not told that he -proposes to devote them to pious uses. Nevertheless, the king makes the -gift 'for the love of Almighty God and of his faithful servant St. -Peter[866].' In other cases the lay donee is to hold the land 'by church -right' or 'by minster right[867].' Indeed there seems to be no single -deed of this period which does not purport upon its face to be in some -sort an ecclesiastical act, an act done for the good of the -church[868]. - -[Exotic character of the book.] - -These charters are documents of ecclesiastical origin; they are also -documents of foreign origin. The bishops and abbots have brought or have -imported models from abroad. The 'books' that they induce the kings to -sign are full of technical phrases which already have an ancient -history. By way of illustration we will notice one point at which there -is an instructive resemblance and an instructive contrast. On the -Continent a grantor of lands ends his conveyance with a 'penal -stipulation.' If an heir of his controverts the deed, he is to pay a -certain sum, and none the less the conveyance is to remain in full -force. In England we can not thus stipulate for a pecuniary penalty; the -land-book is still so purely an ecclesiastical affair that the -punishment of its violator must be left to the church and to God. So -instead of stipulating that he shall pay money, we stipulate that he -shall be excommunicated and, if impenitent, damned, but we do not forget -to add that none the less the conveyance shall remain as valid and -effectual as ever. 'If anyone,' says Eadric of Kent, 'shall attempt to -go against this gift, let him be separated from all Christianity and the -body and blood of Jesus Christ, _manentem hanc donationis chartulam[869] -in sua nihilominus firmitate_.' Such words may look somewhat out of -place in their new surroundings; but they are part of a venerable -formula.[870] - -[The book purports to confer ownership.] - -But what is the model to which in the last resort these documents go -back? A conveyance by a Roman landowner. He has in the land full and -absolute _dominium_ and is going to transfer this to another. Let us -observe that the recorded motive which prompts a king to set his cross, -or rather Christ's cross, to a land-book is a purely personal motive. He -wishes to save his soul, he desires pardon for his crimes[871]. Of the -welfare of his realm he says nothing; but his soul must be saved. -Sometimes he will give land to an under-king or to an ealdorman, for -they also have souls and may desire salvation[872]. He is acting as a -private landowner might act. Then he uses terms and phrases which belong -to the realm of pure private law. He asserts in the most energetic of -all the words that the law of the lower empire could provide that he -is a landowner and that he is going to transfer landownership. The -land in question is _tellus mea_[873] or it is _terra iuris mei_[874]. -Then it is the very land itself that he gives, the land of so many -manses, 'with all the appurtenances, fields, pastures, woods, marshes.' -It is no mere right over the land that he gives, but the very soil -itself. Next let us observe the terms in which the act of conveyance is -stated:--_perpetualiter trado et de meo iure in tuo transscribo terram -... ut tam tu quam posteri tui teneatis, possideatis et quaecunque -volueris de eadem terra facere liberam habeatis potestatem_[875]. The -Latin language of the time had no terms more potent or precise than -these. Or again: _aliquantulam agri partem ... Waldhario episcopo in -dominio donare decrevimus_[876]. Or again: _aeternaliter et -perseverabiliter possideat abendi vel dandi cuicumque eligere -voluerit_[877]. But it is needless to multiply examples. - -[Does the book really confer ownership?] - -No doubt then, if we bring to the interpretation of these instruments -the ideas of an earlier or of a later time, the ideas of ancient Rome or -of modern Europe, we see the king as a landowner conferring on the -churches landownership pure and simple. The fact on which our -constitutional historians have laid stress, namely, that sometimes (for -we must not overstate the case) the king says that the bishops and his -great men are consenting to his deed, important though it may be in -other contexts, is of little moment here. The king is put before us as -the owner of the land conveyed; it is, he says, _terra mea, terra iuris -mei_. The rule, if rule it be, that he must not give away his land -without the consent of bishops and nobles in no way denies his -ownership. However, we are at the moment more concerned with the fact, -or seeming fact, that what he gives to the churches is ownership and -nothing less. - -[The book really conveys a superiority.] - -But if we loyally accept this seeming fact and think it over, to what -conclusions shall we not be brought, when we remember how wide were the -lands which the churches acquired from the kings, when we think once -more how by virtue of royal gifts the church of Worcester acquired a -quarter of a county? When these lands were given to the church were they -waste lands? It is plain that this was not the common case. Already -there were manses, there were arable fields, there were meadows, there -were tillers of the soil. One of two conclusions seems to follow. Either -the king really did own these large districts, and the tillers of the -soil were merely his slaves or _coloni_, who were conveyed along with -the soil, or else the clear and emphatic language of the charters sadly -needs explanation. Now if we hold by the letter of the charters, if we -say that the king really does confer landownership upon the churches, -there will be small room left for any landowners in England save the -kings, the churches and perhaps a few great nobles. This is a theory -which for many reasons we can not adopt; no one can adopt it who is not -prepared to believe that Britain was conquered by a handful of -chieftains without followers. The only alternative course seems that of -saying that many of the land-books even of the earliest period, despite -their language, convey not the ownership of land, but (the term must be -allowed us) a 'superiority' over land and over free men. - -[A modern analogy.] - -Let us for a moment remember that the wording of a modern English -conveyance might easily delude a layman or a foreigner. An impecunious -earl, we will say, sells his ancient family estate. We look at the deed -whereby this sale is perfected. The Earl of _A._ grants unto _B. C._ and -his heirs all the land delineated on a certain map and described in a -certain schedule. That in substance is all that the deed tells us. We -look at the map; we see a tract of many thousand acres, which, besides a -grand mansion, has farm-houses, cottages, perhaps, entire villages upon -it. The schedule tells us the names of the fields and of the -farm-houses. Like enough no word will hint that any one lives in the -houses and cottages, or that any one, save the seller, has any right of -any kind in any part of this wide territory. But what is the truth? -Perhaps a hundred different men, farmers and cottagers, have rights of -different kinds in various portions of the tract. Some have leases, some -have 'agreements for leases,' some hold for terms of years, some hold -from year to year, some hold at will. The rights of these tenants -stand, as it were, between the purchaser and the land that he has -bought. He has bought the benefit, and the burden also, of a large mass -of contracts. But of these things his conveyance says nothing[878]. And -so again, in the brief charters of the thirteenth century a feoffor will -say no more than that he has given _manerium meum de Westona_, as though -the manor of Weston were some simple physical object like a black horse, -and yet under analysis this _manerium_ turns out to be a complex tangle -of rights in which many men, free and villein, are concerned. - -[Conveyance of superiority in early times.] - -But it will be said that all this is the result of 'feudalism.' It -implies just that dismemberment of the _dominium_ which is one of -feudalism's main characteristics. Undoubtedly in the twelfth century the -free tenant in fee simple who holds land 'in demesne' can have, must -have, a lord above him, who also holds and is seised of that land and -who will speak of the land as his. But we are now in the age before -feudalism, in the seventh and eighth centuries. Are we to believe that -the free owner of Kemble's 'ethel, hid, or alod' might have above him, -perhaps always had above him, not merely a lord (for a personal relation -of patronage between lord and man is not to the point), but a landlord: -one who would speak of that 'ethel, hid or alod' as _terra iuris mei_: -one who to save his soul would give that land to a church and tell the -bishop or abbot to do whatever he pleased with it? If we believe this, -shall we not be believing that so far as English history can be carried -there is no age before 'feudalism'? - -[Illustrations.] - -We will glance for a moment at two transactions which took place near -the end of the seventh century. Bede tells how Æthelwealh king of the -South Saxons was persuaded to become a Christian by Wulfhere king of the -Mercians. The Mercian received the South Saxon as his godson and by way -of christening-gift gave him two provinces, namely the Isle of Wight and -the territory of the Meanwari in Wessex, perhaps the hundreds of Meon in -Hampshire[879]. Then the same Bede tells us that the same Æthelwealh -gave to Bishop Wilfrid a land of eighty-seven families, to wit, the -promontory of Selsey: he gave it with its fields and its men, among whom -were two hundred and fifty male and female slaves[880]. A modern reader -will perhaps see here two very different transactions. In the one case -he sees 'the cession of a province' by one king to another, and possibly -he thinks how Queen Victoria ceded Heligoland to her imperial -grandson:--the act is an act of public law, a transfer of sovereignty. -In the other case he sees a private act, the gift of an estate for pious -uses. But Bede and his translator saw little, if any, difference between -the two gifts: in each case Bede says 'donavit'; the translator in the -one case says 'forgeaf,' in the other 'geaf and sealde.' Now it will -hardly be supposed that the Isle of Wight had no inhabitants who were -not the slaves or the _coloni_ of the king, and, that being so, we are -not bound to suppose that there were no free landowners in the -promontory of Selsey. May it not be that what Æthelwealh had to give and -gave to Wilfrid was what in our eyes would be far rather political power -than private property? - -[What had the king to give?] - -But over the free land of free landowners what rights had the king which -he could cede to another king or to a prelate, saying withal that the -subject of his gift was land? He had, as we think, rights of two kinds -that were thus alienable; we may call them fiscal rights and justiciary -rights, though such terms must be somewhat too precise when applied to -the vague thought of the seventh and eighth centuries. Of justiciary -rights we shall speak below. As to the rights that we call fiscal, we -find that the king is entitled to something that he calls _tributum_, -_vectigal_, to something that he calls _pastus_, _victus_, the king's -_feorm_; also there is military service to be done, and the king, when -making a gift, may have a word to say about this. - -[The king's alienable rights.] - -Now it must at once be confessed that the charters of this early period -seldom suggest any such confusion between political power and ownership -as that which we postulate. Still from time to time hints are given to -us that should not be ignored. Thus a Kentish king shortly after the -middle of the eighth century gave to the church of Rochester twenty -ploughlands, not only 'with the fields, woods, meadows, pastures, -marshes and waters thereto pertaining,' but also 'with the _tributum_ -which was paid thence to the king[881].' Such a phrase would hardly be -appropriate if the king were giving land of which he was the absolute -owner, land cultivated for him by his slaves. - -[Military service as a burden on land.] - -A little more light is thrown on the matter by the first rude specimens -of a clause that is to become common in after times, the clause of -immunity. Already in the seventh century Wulfhere of Mercia, having made -a gift of five manses, adds: 'Let this land remain free to all who have -it, from all earthly hardships, known or unknown, except fastness and -bridge and the common host[882].' So in 732 a king of Kent says: 'And no -royal due shall be found in it henceforth, saving such as is common to -all church lands in this Kent[883].' Æthelbald of Mercia says: 'By my -royal power I decree that it be free for ever from all tribute of -secular payments, labours and burdens, so that the said land may render -service to none but Almighty God and the church[884].' Yet more -instructive, if we may rely upon it, is the foundation charter of -Evesham Abbey. Æthelweard has given twelve manses: he then says, 'I -decree that for the future this land be free from all public tribute, -purveyance, royal works, military service (_ab omni publico vectigali, a -victu, ab expeditione, ab opere regio_) so that all things in that place -which are valuable and useful may serve the church of St. Mary, that is -to say, the brethren serving [God] there; save this, that if in the -island belonging to the said land there shall chance to be an unusual -supply of mast, the king may have pasture for fattening one herd of -pigs, but beyond this no pasture shall be set out for any prince or -potentate[885].' Now in the first place, these charters speak as though -military service is due from land:--I (says the king) declare this land -to be free from the 'fyrd,' from the _expeditio_--or--I declare that it -is free from all earthly burdens, except military service and the duty -of repairing bridge and burh. We are not saying that there is already -military tenure, but we do say that already the 'fyrd' is conceived as a -burden on land, in so much that the phrase 'This land is--or is not--to -be free of military service' has a meaning. But after all, land never -fights: men fight. Of what men then is the king speaking when he says -that the land is, or is not, free from the _expeditio_? Not of the -donees themselves, for they are bishops and monks and serve in no army -but God's. Not of the slaves who are on the land, for they are not -'fyrd-worthy.' He is speaking of free men who live on the land; he is -declaring that when he has, if so modern a term be suffered, 'attorned' -them to the church, they will still have to serve in warfare, or he is -declaring that they will be free even from this duty to the state in -order that the land may be the more absolutely at the service of God and -His stewards. - -[The king's _feorm_.] - -Then military service, along with the duty of repairing bridges and -fastnesses, belongs to a genus of dues, of which unfortunately we get -but a vague description. There are _vectigalia publica_, _opera regia_, -_onera saecularia_, there is _tributum_, there is _victus_. How much of -the information that we get about these matters from later days we may -carry back with us to the earliest period it is difficult to say. -Apparently the king, the under-king, even the ealdorman, has a certain -right of living at the expense of his subjects, of making a progress -through the villages and quartering himself, his courtiers, his -huntsmen, his dogs and horses upon the folk of the townships, of -exacting a 'one night's farm' from this village, a 'two nights' farm' -from that. The men who have to bear these exactions may well be free men -and free landowners; still over them the king has certain rights and -rights that he can give away. According to our interpretation of the -charters, it is often enough such rights as these that the king is -giving when he says that he is giving _terram iuris mei_. He declares, -it will be observed, that the land is to be free from _vectigalia_ and -_opera_ to which it has heretofore been subject. But does he mean by -this to benefit the occupiers of the soil? No, he has no care whatever -to relieve them. Bent on saving his soul, his care is that the land -shall be wholly devoted to the service of God. As we understand the -matter, whatever _vectigalia_ and _opera_ the king has hitherto exacted -from these men the church will now exact. The king has conveyed what he -had to convey, a superiority over free landowners. - -[Nature of the _feorm_.] - -It is permissible to doubt whether modern historians have fully realized -the extent of the rights which the king had over the land of free -landowners. In the middle of Ine's laws, which follow each other in no -rational order, we suddenly come upon an isolated text, which says this: -'For 10 hides "to foster" 10 vessels of honey, 300 loaves, 12 ambers of -Welsh ale, 30 of clear [ale], 2 old [i.e. full grown] oxen or 10 -wethers, 10 geese, 20 hens, 10 cheeses, an amber full of butter, 5 -salmon, 20 poundsweight of fodder and a hundred eels[886].' The context -throws no light upon the sentence; but in truth no sentence in Ine's -laws has a context. What is its meaning? We can not but think that this -_foster_ is the king's _victus_[887]. Once a year from every ten hides -he is entitled to this _feorm_. Perhaps it is a 'one night's _feorm_'; -for it may be enough to support a king of the seventh century and a -modest retinue during twenty-four hours. Still it will be no trifling -burden upon the land, even if we suppose the hide to have 120 arable -acres or thereabouts. Suppose that the king transfers his right over a -single hide to some bishop or abbot, the donee will be entitled to -receive from that hide a rent which can not be called insignificant. We -dare not argue that this law is a general law for the whole of Wessex. -It may refer only to some newly settled and allotted districts. There -are other hints in these laws of Ine of some large land-settlement, an -allotment of land among great men who have become bound to bring under -cultivation a district theretofore waste[888]. But it is difficult to -dissociate the _foster_ of these laws from the _victus_ of the charters, -and, quite apart from this disputable passage, we have plenty of proof -that the king's _victus_ was an incumbrance which pressed heavily upon -the lands of free landowners[889]. If in England the duty of feeding the -king as he journeys through the country developed into a regular tax or -rent this would not stand alone. That duty plays a considerable part in -the Scandinavian law-books, and in the Denmark of the thirteenth century -we may find arrangements which are very like that set forth in Ine's -law. Every hundred (_herad_), taken as a whole, has to contribute -something towards the king's support. Often it is a round sum of money; -but often it will consist of provisions necessary to maintain the king's -household during a night or two or three nights (_servicium unius -noctis, servicium duarum noctium_). Then the 'service of two nights' is -accurately defined. It consists of, among other things, 26 salted pigs, -14 live pigs, 16 salted oxen, 16 salted sheep, 360 fowls, 180 geese, 360 -cheeses, corn, malt, fodder, butter, herrings, stock-fish, pepper and -salt. This revenue stands apart from the revenue derived from the crown -lands; it is regarded as a tax rather than a rent; but it is to this -extent rooted in the soil, that the amount due from each hundred -(_herad_) is fixed[890]. There is a great deal to make us think that at -a quite early time in England such arrangements as this had been made. -If we look at the charters we find that the king is always giving away -manses in fives and tens, fifteens and twenties. This symmetry, this -prevalence of a decimal system, we take to be artificial; already the -manse, or hide, is a fiscal unit, a fraction of a district which has to -supply the king with food or with money in lieu of food[891]. - -[Tribute and rent.] - -Whatever be the origin of the king's _feorm_--and if we find it in the -voluntary gifts which yet barbarous Germans make to their kings, we may -none the less have to admit that it has been touched by the influence of -the Roman _tributum_--it becomes either a rent or a tax. We may call it -the one, or we may call it the other, for so long as the recipient of it -is the king, the law of the seventh and eighth centuries will hardly be -able to tell which it is[892]. The king begins to give it away: in the -hands of his donees, in the hands of the churches, it becomes a rent. -This is not all, however, that the king has to give, or that the king -does give, when he says that he is giving land. That he may be giving -away the profits of justice, that he may be giving jurisdiction itself, -we shall argue hereafter. But probably he has even in early days yet -other things to give, and at any rate in course of time he discovers -that such is the case. He can give the right to take toll, he can give -market rights[893]. It is by no means impossible that he has forest -rights, some general claim to place uncultivated land under his ban, if -he would hunt therein, and some general claim to the nobler kinds of -fish[894]. Then again, in the eleventh century we find men owing -services to the king which he still receives rather as king than -as landlord, and the sporadic distribution of these services seems -to show that they are not of modern origin. Such are, for example, -the 'inwards' and the 'averages' which are done by the free men of -Cambridgeshire[895]. We are told in a general way that the thegn owes -fyrdfare, burh-bót and brycg-bót, but that from many lands--the lands -comprised within no privilege, no franchise--'a greater land-right -arises at the king's ban'; for there is the king's deer-hedge to be -made, there are warships to be provided, there are sea-ward and -head-ward[896]. Every increase in the needs of the state, in the power -of the state, gives the king new rights in the land, consolidates his -seignory over the land. If a fleet be formed to resist the Danes, the -king has something to dispose of, a new immunity for sale. If a geld be -levied to buy off the Danes, the king can sell a freedom from this tax, -or he can tell the monks of St. Edmundsbury that they may levy the tax -from their men and keep it for their own use[897]. This, we argue, is -not a new abuse, a phenomenon which first appears in the evil feudal -time when men began to confuse _imperium_ with _dominium_, kingship with -landlordship, office with property, tax with rent. On the contrary, we -must begin with confusion. In some of the very earliest land-books that -have come down to us what the king really gives, when he says that he is -giving land, is far rather his kingly superiority over land and -landowners than anything that we dare call ownership[898]. - -[Mixture of ownership and superiority.] - -Not that this is always the case. Very possible is it that from the -first the king had villages which were peopled mainly by his theows and -læts, and intertribal warfare may have increased their number. But the -charters, for all their apparent precision, will not enable us to -distinguish between these cases and others in which the villages are -full of free landowners and their slaves. The charters are not -engendered by the English facts; they are foreign, ecclesiastical, -Roman. By such documents, to our thinking, the king gives what he has to -give. In one case it may be a full ownership of a village or of some -scattered steads; in another it may be a superiority, which when -analyzed will turn out to be a right of exacting supplies of provender -from the men of the village; in a third, and perhaps a common case, the -same village will contain the _mansi serviles_ of the king's slaves and -the _mansi ingenuiles_ of free landowners. He no more thinks of -distinguishing by the words of his charter his governmental power over -free men and their land from his ownership of his slaves and the land -that they are tilling, than his successor of the eleventh or twelfth -century will think of making similar distinctions when he bestows a -'manor' or an 'honour.' - -[The king's superiority.] - -We have been suggesting and shall continue to suggest that at a very -early time, a time beyond which our land-books will not carry us, the -king is beginning to discover that the whole land which he rules is in a -certain and a profitable sense his land. He can give it away; he can -barter it in exchange for spiritual benefits, and this he can do without -wronging the free landholders who are in possession of that land, for -what he really gives is the dues (it is too early to say the 'service') -that they have owed to him and will henceforth owe to his donee. Let us -remember that his successors will undoubtedly be able to do this. In a -certain sense, Henry II., for example, will have all England to give -away. If we were to put an extreme case, we might have to reckon with -possible rebellions; but every single hide of England Henry can give -without wronging any one. Suppose that _C_ has been holding a tract as -the king's tenant in chief by service worth £5 a year, Henry can make a -grant of that land to _B_, and by this grant _C_ will not be wronged. -Henceforth _C_ will hold of _B_, and _B_ of the king. Suppose that, on -the occasion of this grant, services worth £2 a year are reserved, then -the king has it in his power to grant the land yet once more: to grant -it, let us say, to the Abbot of _A_, who is to hold in frankalmoin; _C_ -will not be wronged, _B_ will not be wronged. What the king has done -with one hide he can do with every hide in England; piece by piece he -can give all England away. We have been suggesting and shall continue to -suggest that at a very early time, even in the first days of English -Christianity, the king is beginning to discover that he has some such -power as that which his successors will exercise. This barbarous -chieftain learns that his political sway over the folk involves a -proprietary and alienable element of which he can make profit. It -involves a right to _feorm_ and a right to _wites_. The beef and the -cheese and the Welsh ale that he might have levied from a district he -invests, if we may so speak, in what he is being taught to regard as the -safest and most profitable of all securities. He obtains not only -remission of his sins, but also the friendship and aid of bishops and -clergy. And so large stretches of land are 'booked' to the churches. It -is to be feared that if the England of the sixth century had been -visited by modern Englishmen, the Saxon chieftains would have been -awakened to a consciousness of their 'booking' powers by offers of gin -and rifles. - -[Book-land and church right.] - -In its original form and when put to its original purpose the land-book -is no mere deed of gift; it is a dedication. Under the sanction of a -solemn anathema, a tract of land is devoted to the service of God. A -very full power of disposing of it is given to the bishop or the abbot, -who is God's servant. As yet the law has none of those subtle ideas -which in after ages will enable it to treat him as 'a corporation sole' -or as 'a trustee,' nor can the folk-law meddle much with the affairs of -God. The bishop or abbot must be able to leave the land to whom he -pleases, to institute an heir. Thus 'book-land' stands, as it were, -outside the realm of the folk-law. In all probability the folk-law of -this early period knows no such thing as testamentary power. -Testamentary power can only be created by the words of a book, by an -anathema. But laymen are not slow to see that they can make use of this -new institution for purposes of their own, which are not always very -pious purposes. By a pretext that he is going to construct a minster, a -man will obtain a book garnished with the crosses of bishops. One day -calling himself an abbot and the next day calling himself a king's -thegn, a layman among ecclesiastics, an ecclesiastic among laymen, he -will shirk all duties that are owed to state and church. Already Bede -complains of this in a wise and famous letter. He advocates a resumption -of these inconsiderate and misplaced gifts, and reproves the prelates -for subscribing the books[899]. His letter may have done good; but -laymen still obtained books which authorized them to hold land 'by -church right.' Thus Offa of Mercia gave to an under-king lands at -Sedgebarrow 'in such wise that he might have them during his life, and -in exercise of full power might leave them to be possessed by church -right[900].' Thereupon the _subregulus_, as a modern English lawyer -might say, executed this power of appointment in favour of the church of -Worcester. The same Offa gave land to his thegn Dudda so that by church -right he might enjoy it during his life and leave it on his death to -whom he would[901]. - -[Book-land and testament.] - -We must wait for a later age before we shall find the kings freely -booking lands to their thegns without any allusion to ecclesiastical -purposes. Indeed it may be said that the Anglo-Saxon land-book never -ceases to be an ecclesiastical instrument. True that in the tenth -century the kings are booking lands to their thegns with great -liberality; true also that there is no longer any pretence that the land -so booked will go to endow a church; but let us observe these books and -let us not ignore the recitals that they contain. Why does the king make -these grants? He says that it is because he hopes for an eternal reward -in the everlasting mansions. This has perhaps become an empty phrase: -but it has a history. Also it is needed in order to make the deed a -logical whole. Let us observe the sequence of the clauses:--'Whereas the -fashion of this world passeth away but the joys of heaven are eternal; -therefore I give land to my thegn so that he may enjoy it during his -life and leave it on his death to whomsoever he pleases, and if any one -shall come against this charter may he perish for ever; I have confirmed -this gift with the sign of Christ's holy cross[902].' Some piety in the -harangue (_arenga_) is necessary in order to lead up to the anathema and -the cross; it justifies the intervention of the bishops, who also will -make crosses and thereby will be denouncing the church's ban against any -one who violates the charter. And who, we may ask, is likely to violate -the charter? The donee's kinsfolk may be tempted to do this if the donee -makes use of that testamentary power which has been granted to him (as, -for instance, by leaving the land to a church) more especially because -it may be very doubtful whether in impeaching such a testament they will -not have the folk-law on their side. Such in brief outline is--so we -think--the history of book-land. It is land (or rather in many cases a -superiority) held by royal privilege[903] under the sanction of the -anathema. - -FOOTNOTES: - - [858] Heming's Cartulary was published by Hearne. It has been said - that some of the documents in this collection which Kemble - accepted as genuine commit the fault of supposing that the - old episcopal minster was dedicated to St. Mary, whereas it - was dedicated to St. Peter. See Robertson, Historical Essays, - 195. However, where Heming's work can be tested it generally - gains credit. - - [859] D. B. i. 173 b; K. 131 (i. 158); B. i. 311. - - [860] D. B. i. 127; K. 230 (i. 297); B. i. 558. - - [861] Hist. Eccl. iv. 13 (ed. Plummer, i. 232). - - [862] See the spurious charter of Cædwalla, K. 992 (v. 32) which - purports to show where the 87 manses lay. According to it, the - gift comprised some places which lay well outside the - promontory of Selsey. But more of this hereafter. - - [863] Napier and Stevenson, Crawford Charters, p. 43. Some of the - best work that has been done towards connecting Domesday Book - with the A.-S. land-books will be found in a paper on the - Pre-Domesday Hide of Gloucestershire: Transactions of Bristol - and Gloucestershire Arch. Soc. vol. xviii., by Mr C. S. - Taylor. - - [864] K. 12 (i. 16); B. i. 69; H. & S. 129; Plummer, Bede, ii. 247. - The charter itself is open to grave suspicion. - - [865] C. S. Taylor, The Pre-Domesday Hide of Gloucestershire. - - [866] E. p. 4; B. M. Facsim. iv. 1. - - [867] K. 83 (i. 100): 'in possessionem aecclesiasticae rationis et - regulae ... in ius monasticae rationis.' K. 90 (i. 108): 'in - possessionem iuris ecclesiastici.' K. 101 (i. 122): 'ut sit - aecclesiastici iuris potestate subdita in perpetuum.' - - [868] K. 54 (i. 60) is a gift to an abbess, for compare K. 36 (i. - 41). We here leave out of account the early lease for lives - granted by Bp. Wilfrid, K. 91 (i. 109), an important document, - but one which must be mentioned in another context. - - [869] An accusative absolute. - - [870] Eadric's deed is K. 27 (i. 30). See also Hlothar's charter K. - 16 (i. 20) and Snaebraed's, K. 52 (i. 59); B.M. Facs. i. - plates 1, 3. With these should be compared the forms in - Rozière, Formules, i. 208-255. On pp. 235, 253 will be found - instances, one from the very ancient Angevin collection, - another from Marculf, in which the breaker of the charter is - threatened, not only with a money penalty, but also with - excommunication and damnation. - - [871] K. Nos. 12, 16, 32, 36, 48, 52, 56, 67, etc. - - [872] K. 131 (i. 158). - - [873] K. 1. - - [874] K. Nos. 27, 35, 77, 79, 999, 1006, 1007. - - [875] K. 35 (i. 39); E. 13; B. M. Facs. i. 2. - - [876] K. 52 (i. 59); E. 16; B. M. Facs. i. 3. - - [877] E. 4; B. M. Facs. iv. 1. - - [878] Davidson, Precedents in Conveyancing, i. 88 (ed. 1874): 'In - conveying estates, it is not usual to refer to the leases - affecting the same, unless the leases are for a long term, of - years, or beneficial, or otherwise not of the ordinary type.' - - [879] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 230). In the O. E. - version the words are: 'Ond se cyning ... him to godsuna - onfeng and to tacne ðære sibbe him twa mægþe forgeaf, ðæt is - Wiht ealond and Meanwara mægþe on West Seaxna ðeode.' - - [880] Hist. Eccl. iv. c. 13 (ed. Plummer, i. 232). - - [881] K. 114 (i. 139); E. 49: 'et cum omni tributo quod regibus inde - dabatur.' So by a deed of A.D. 762, K. 109 (i. 133), B. i. - 272, a thegn states that king Æthelbert gave him a _villa_ - 'cum tributo illius possidendam' and then proceeds to give - this _villa_ to a church 'cum tributo illius.' - - [882] E. 4; B. M. Facs. iv. 1: 'et semper liber permaneat omnibus - habentibus ab omnibus duris secularibus, notis et ignotis, - praeter arcem et pontem ac vulgare militiam.' - - [883] K. 77 (i. 92); E. 24; B. M. Facs. i. 6: 'Et ius regium in ea - deinceps nullum repperiatur omnino, excepto dumtaxat tale - quale generale est in universis ecclesiasticis terris quae in - hac Cantia esse noscuntur.' - - [884] K. 90 (i. 108); E. 40: 'Et ut ab omni tributo vectigalium - operum onerumque saecularium sit libera in perpetuum, pro - mercede aeternae retributionis, regali potestate decernens - statuo; tantum ut deo omnipotenti ex eodem agello - aecclesiasticae servitutis famulatum impendat.' - - [885] K. 56 (i. 64); H. & S. iii. 278; B. i. 171. The charter is of - fairly good repute, but nothing that comes from Evesham is - beyond suspicion. It is almost impossible to translate these - early books without making their language too definite. How, - for instance shall we render 'nulli, neque principi, neque - praefecto, neque tiranno alicui pascui constituantur'? - - [886] Ine, 70, § 1. - - [887] Thorpe, Gloss, s. v. _Foster_, thinks that this law has to do - with the fostering of a child. Schmid is inclined to hold that - it speaks of a rent payable to a landlord. - - [888] Ine, 64-6: 'He who has 20 hides must show 12 hides of - cultivated land if he wishes to go away. He who has 10 hides - shall show 6 hides of cultivated land. He who has 3 hides let - him show one and a half.' The persons with whom these laws - deal are certainly not _ascripti glebae_; they are very great - men. Then we must read c. 63: 'If a gesithcundman go away, - then may he have his reeve with him and his smith and his - child's fosterer'; and then c. 68: 'If a gesithcundman be - driven off, let him be driven from the dwelling (botle), not - from the set land (naes þaere setene).' The king's gesiths - have been taking up large grants of waste land and putting - under-tenants on the soil. These great folk must not fling up - their holdings until they have brought the land into - cultivation. If they do abandon their land, they may take away - with them only three of their dependants. If they are evicted - by some adverse claimant this is not to harm their - under-tenants; they are to be driven from the _botl_, that is - from the chief house, but not from the land that they have set - out to husbandmen. These last are to enjoy a secure title. We - must leave to linguists the question whether we have rightly - understood the difficult _seten_; but these chapters, together - with c. 67, which deals with the relations between these lords - and their husbandmen, seem to point to some great scheme for - colonizing a newly-conquered district. - - [889] Kemble, Saxons, i. 294-8; ii. 58. - - [890] Karl Lehmann, Abhandlungen zur Germanischen Rechtsgeschichte, - 1888; Liber Census Daniae, ed. O. Nielsen, 1879. - - [891] Cnut's law (II. 62) about this matter seems to imply that in - consequence of the immunities lavishly bestowed by his - predecessors, the old 'king's _feorm_' was only leviable from - lands which were deemed to be the king's lands, but that - Cnut's reeves had been demanding that this _feorm_ should be - supplemented by other lands. The king of his grace forbids - them to do this. The old _feorm_ has been changed into a rent - of crown lands; a vague claim to 'purveyance' is abolished, - but will appear again after the Conquest. - - [892] In the A.-S. Chron. ann. 991, 1007, 1011, the Danegeld appears - as a _gafol_; but this is the common word for a rent paid by a - tenant to his landlord. - - [893] Kemble, Saxons ii. 73-6. - - [894] Already in 749 Æthelbald of Mercia in a general privilege for - the churches (H. & S. iii. 386) says, 'Sed nec hoc - praetermittendum est, cum necessarium constat aecclesiis Dei, - quia Æthelbaldus Rex, pro expiatione delictorum suorum et - retributione mercedis aeternae, famulis Dei propriam - libertatem in fructibus silvarum agrorumque, sive in caeteris - utilitatibus fluminum vel raptura piscium, habere donavit.' - - [895] See above, p. 55. - - [896] Rectitudines c. 1 (Schmid, App. III.). - - [897] See above, p. 169. - - [898] Schröder, Die Franken und ihr Recht, Zeitsch. d. Savigny - Stiftung, iii. 62-82, has argued that, from the first times of - the Frankish settlement onwards, the king has a _Bodenregal_, - an _Obereigenthum_ over all land. - - [899] Epistola ad Ecgbertum (ed. Plummer, i. 405). - - [900] K. 131 (i. 158). - - [901] K. 137 (i. 164); B. M. Facs. i. 10. A few words are illegible, - but the land is given 'in ius ecclesiasticae liberalitatis in - perpetuum possid[endam].' - - [902] Æthelwulf makes a grant to a thegn, K. 269 (ii. 48), 'pro - expiatione piaculorum meorum et absolutione criminum meorum.' - In course of time the piety of the recitals becomes more and - more perfunctory. It becomes a philosophic reflection on the - transitoriness of earthly affairs and finally evaporates, - leaving behind some commonplace about the superiority of - written over unwritten testimony. - - [903] Bede (ed. Plummer, i. 415): 'ipsas quoque litteras - privilegiorum suorum.' - - - - -§ 2. _Book-land and Folk-land._ - - -[What is folk-land?] - -With 'book-land' is contrasted 'folk-land.' Therefore of folk-land a few -words must be said. What is folk-land? A few years ago the answer that -historians gave to this question was this: It is the land of the folk, -the land belonging to the folk. Dr Vinogradoff has argued that this is -not the right answer[904]. His argument has convinced us; but, as it is -still new, we will take leave to repeat it with some few additions of -our own. - -[Folk-land in the texts.] - -The term 'folk-land' occurs but thrice in our texts. It occurs in one -law and in two charters. The one law comes from Edward the Elder[905] -and all that it tells us is that folk-land is the great contrast to -book-land. Folk-land and book-land seem to cover the whole field of land -tenure. Possibly this law tells us also that while a dispute about -folk-land will, a dispute about book-land will not, come before the -shiremoot:--but we hardly obtain even this information[906]. Then we -have the two charters. Of these the earlier is a deed of Æthelbert of -Kent dated in 858[907]. The king with the consent of his great men and -of the prelates gives to his thegn Wulflaf five plough-lands at -Washingwell (_aliquam partem terrae iuris mei_) in exchange for land at -Marsham. He declares that the land at Washingwell is to be free from -all burdens save the three usually excepted, the land at Marsham having -enjoyed a similar immunity. The boundaries of Washingwell are then -stated. On the west it is bounded by the king's folk-land (_cyninges -folcland_) which Wighelm and Wulflaf have. So much for the deed itself. -On its back there is an endorsement to the following effect: 'This is -the land-book for Washingwell that Æthelbert the king granted to Wulflaf -his thegn in exchange for an equal amount of other land at Marsham; the -king granted and booked to Wulflaf five sullungs of land at Washingwell -for the five sullungs at Marsham and the king made that land at Marsham -his folk-land ("did it him to folk-land") when they had exchanged the -lands, save the marshes and the salterns at Faversham and the woods that -belong to the salterns.' Now this deed teaches us that there was land -which was known as 'the king's folk-land,' and that it was in the -occupation of two men called Wighelm and Wulflaf, the latter of whom may -well have been the Wulflaf who made an exchange with the king. The -endorsement tells us that when the king received the land at Marsham he -made it his folk-land, 'he did it him to folk-land.' - -[The will of Alfred the Ealdorman.] - -The other charter is of greater value. It is the will of the Ealdorman -Alfred and comes from some year late in the ninth century[908]. He -desires in the first place to state who are the persons to whom he gives -his inheritance and his book-land. He then gives somewhat more than 100 -hides, including 6 at Lingfield and 10 at Horsley, to his wife for her -life, 'with remainder,' as we should say, to their daughter. More than -once he calls this daughter 'our common bairn,' thus drawing attention -to the fact that she is not merely his daughter, but also his wife's -daughter. This is of importance, for in a later clause we hear of a son. -'I give to my son Æthelwald three hides of book-land: two hides on -Hwætedune [Waddon], and one at Gatatune [Gatton] and therewith 100 -swine, and, if the king will grant him the folk-land with the book-land, -then let him have and enjoy it: but if this may not be, then let her [my -wife] grant to him whichever she will, either the land at Horsley or the -land at Lingfield.' Such are the materials which must provide us with -our knowledge of folk-land. - -[Comment on Alfred's will.] - -We must examine Alfred's will somewhat carefully. The testator has a -wife, a son, a daughter. He leaves the bulk of his book-land to his wife -for life with remainder to his daughter. For his son he makes a small -provision (only three hides) out of his book-land, but he expresses a -wish that the king will let that son have the folk-land, and, if this -wish be not fulfilled, then that son is to have either ten or else six -hides out of the book-land previously given to the wife and daughter. We -see that, even if he gets these few hides, the son will obtain but a -small part of a handsome fortune. 'If the king will grant him the -folk-land'--this may suggest that a man's folk-land will not descend to -his heir. But another, and, as it seems to us, a far more probable -explanation is open. The son is 'my son,' the daughter is 'our common -bairn.' May not the son be illegitimate, or may not his legitimacy be -doubtful, for legitimacy is somewhat a matter of degree? The ealdorman -may have contracted a dubious or a morganatic marriage. We can see that -he does not feel called upon to do very much for this son of his. He -expresses a hope that the king as supreme judge will hold the son to be -legitimate, or sufficiently legitimate to inherit the folk-land, which -he does not endeavour to bequeath. - -[The king booking land to himself.] - -The king like other persons can have both folk-land, and book-land. We -have just heard of 'the king's folk-land': we turn to the important deed -whereby King Æthelwulf booked land to himself[909]. Alms, it says, are -the most perdurable of possessions; one ought to minister to the -necessities of others and so make to oneself friends of the mammon of -unrighteousness; therefore I King Æthelwulf with the consent and leave -of my bishops and great men have booked to myself twenty manses so that -I may enjoy them and leave them after my death to whomsoever I please in -perpetuity: the land is to be free from all tribute and the like, save -military service and the repair of bridges. Then the description of the -land thus booked is preceded by the statement: 'These are the lands -which his wise men (_senatores_) conceded to Æthelwulf.' Now the full -meaning of this famous instrument we can not yet discuss. To put it -briefly, our explanation will be that over his book-land the king will -have powers which he will not have over his folk-land; in particular he -will have that testamentary power which will enable him to become -friendly with the mammon of unrighteousness and secure those eternal -mansions that he desires. But we have introduced this charter here -because, though it says no word of folk-land, it forms an important part -of the case of those who contend that folk-land is land belonging to the -people[910]. - -[The consent of the witan.] - -Another weighty argument is derived from the fact that there are but -very few charters of the kings which do not in some formula or another -profess that many illustrious persons have consented to or have -witnessed the making of the deed. We have no desire to detract from the -significance of this fact, still we ought to examine our documents with -care. Such words as a charter has about 'consent' may occur in two -different contexts. They may occur in close connexion with the words of -gift, 'the operative words,' as our conveyancers say, or they may occur -in the eschatocol, the clause which deals with the execution and -attestation of the instrument. If we come across two deeds, one of which -tells us how 'I king Æthelwulf with the consent and leave of my bishops -and great men give land to a church or a thegn,' while the other says -nothing of consent until it tells us how 'This charter was written on -such a day _his testibus consentientibus_,' we must not at once treat -them as saying the same thing in two different ways. - -[Consent and witness in the land-books.] - -For this purpose we may divide our charters into three periods. The -first begins with the few genuine charters of the seventh century and -ends in the reign of Egbert, the second endures until the reign of -Edward the Elder, the third until the Norman Conquest. It will be well -understood that we draw no hard line; each period has its penumbra; but -the years 800 and 900 or 925 may serve to mark very rudely the two -limits of the middle period. Now a clause in the body of the deed -stating that the gift is made by the consent of the witan is -characteristic of this middle period. Any one who wishes to forge a -royal land-book of the ninth century should insert this clause; any one -who wishes to forge a deed of the tenth or of the eighth century should -think twice before he makes use of it. To be more exact, it becomes a -common form under Cenwulf of Mercia and Egbert of Wessex; it grows very -rare under Æthelstan[911]. In the meanwhile it serves as a common form, -and it appears in deeds wherein the king says in forcible terms that he -is disposing of his land and his inheritance[912]. During the last of -our three periods all that is ascribed to the great men whose crosses -follow the king's cross is little, if anything, more than the function -of witnesses. A deed of Æthelstan's day will end with some such formula -as the following: 'this book was written at such a place and time, and -its authority was confirmed by the witnesses whose names are written -below.' But very often there is no such concluding formula: we have -simply the list of witnesses and their crosses, and of each of them it -is said that he consented and subscribed. Later in the tenth century the -formula which introduces the names of the witnesses will hardly admit -that they in any sense confirmed the transaction; it will say merely, -'This book was written on such a day _his testibus consentientibus -quorum nomina inferius caraxantur_.' On this will follow the names and -crosses; and of each bishop--but not as a general rule of any other -witness--it will be said that he has done something for the stability of -the deed. To convey this information, the scribe rings the changes on a -score of Latin words--_subscripsi_, _consensi_, _consolidavi_, -_corroboravi_, _confirmavi_, _conscripsi_, _consignavi_, _adquievi_, -_praepinxi_, _praepunxi_, _praenotavi_, and so forth, thereby showing -that he has no very clear notion as to what it really is that the bishop -does. But this degradation of what seems to be a formula of assent into -a formula of attestation has been noticed by others[913], and it is more -to our purpose to examine the charters of the earliest period, for then, -if at any time, the folk-land should have appeared in its true character -as the land of the people. - -[Attestation of the earliest books.] - -Now during our earliest period instruments which contain in conjunction -with their operative words any allusion to the consent of the great men -of the realm are exceedingly rare[914]. A commoner case is that in which -the eschatocol says something about consent. We will collect a few -examples. - - I have confirmed this with the sign of the holy cross with the - counsel of Laurence the bishop and of all my _principes_ and have - requested them to do the like[915]. - - I have impressed the sign of the holy cross and requested fit and - proper witnesses to subscribe[916]. - - I have confirmed this gift with my own hand and have caused fit and - proper witnesses, my companions (_commites_), to confirm and - subscribe[917]. - -This formula, undoubtedly of foreign origin, was common in Kent[918]. -From Wessex and the middle of the eighth century, we twice obtain a -fuller form. - - These things were done in such a year; and that my munificent gift - may be the more firmly established (_firmius roboretur_) we have - associated with ourselves the fit and proper witnesses and - 'adstipulators' whose names and descriptions are set forth below to - subscribe and confirm this privilege of the aforesaid estate - (_praedictae possessionis privilegium_[919]). - -More frequently however the document has nothing that can be called a -clause of attestation. It simply gives us the names and the crosses of -the witnesses. Occasionally over against each name, or each of the most -important names, is set some word or phrase describing this witness's -act. He has subscribed, or he has consented, or he has consented and -subscribed, or perhaps he has confirmed[920]. - -[Confirmation and attestation.] - -Now we ought not to draw inferences from these phrases without knowing -that in the Latin of this period such words as _confirmare_, -_corroborare_, _adstipulari_ are the proper words whereby to describe -the act of those who become witnesses to the execution of a deed[921]. -Our kings are making use, though it is a lax use, of foreign formulas; -what is more, they are adopting the formulas of private deeds. They have -no chancellor, as the Frankish kings have, and they do not, as the -Frankish kings do, dispense with that _rogatio testium_ which is one of -the usual forms of private law[922]. On the continent of Europe all this -talk about confirmation, corroboration and consent would by no means -imply that the witnesses were more than witnesses. The line which -divides attestation from participation is really somewhat fine, and -though well enough apprehended by modern lawyers, would not easily be -explained to a barbarian ealdorman. A witness does consent to the -execution of the instrument which he attests, though he may be utterly -ignorant of its import, and, if the law demands that such an instrument -shall be attested, then it may well be said of the witness that by -attesting it he makes it firm, he confirms it. Until he attested it, it -was not a valid instrument[923]. Now we are not saying that the -magnates, more especially the bishops, who attested these ancient -charters thought of themselves as mere witnesses. Had that been so, a -clause expressing the consent of the whole body of great men would -hardly have crept into the charters; and it does creep in gradually -during the last half of the eighth century[924]. A similar development -has been noticed in the charters of the German kings. A clause -expressing the consent of the great folk rarely occurs in the -Merovingian or the early Carolingian charters, unless they belong to -certain exceptional classes. It is said to become common under the weak -rule of Lewis the Child; then for a while it becomes rare again, and -then once more common under Henry III and Henry IV, though consent and -witness are hardly to be distinguished[925]. - -[Function of the witan.] - -Perhaps from the first in England the cross of at least one bishop was -much to be desired or was almost indispensable, for the anathema which -the charter pronounces will be a solemn sentence of excommunication when -it comes from a bishop, while it will be at best a pious wish if it -comes from the king; and it is well to have the cross of every bishop, -so that the breaker of the charter may find himself excommunicated in -every diocese. This is not all; we may well believe that from the first -the king was more or less bound to consult with his great men before he -alienated his land. The notion that land could be alienated at all may -not have been very ancient, and the king when giving land away may have -been expected to pay some regard to the welfare of his realm[926]. The -discovery that he had an alienable superiority over free land and free -landowners would sharpen this rule. Some of these early donations are to -our minds more like cessions of political power than gifts of land; they -make over to bishops and abbots rights which the king has exercised -rather as king than as landowner. A wholesome practice grows up which is -embodied in the clause that states the consent of the witan, and, even -when this clause has disappeared, still it is in the presence and with -the witness of his councillors that the king makes his grants. This is -no purely English phenomenon. When a Norman duke hands his charter to be -roborated and confirmed by his _fideles_, we do not infer that he is -disposing of land that is not his[927]. But it is very remarkable that -in the earliest English charters the consent of an overlord is treated -as a far more serious thing than the consent of the nobles[928]. - -[The king and the people's land.] - -Of some value though this 'constitutional check' may have been, we can -not regard it as a relic of a time when there was land which in any -accurate sense of the term was owned by the people. The recorded action -of the witan in relation to the king's grants does not become more -prominent, it becomes less prominent, as we go backwards and reach the -heptarchic days. But that is not all. Is it not marvellous that there -should be land owned by the people and yet that we should have to -discover this momentous fact from a few casual phrases occurring in -three documents of the ninth and tenth centuries? Are we to suppose that -whenever the king is giving away land, this land is the land of the -people? Why do not the charters say so? Repeatedly the king speaks of -the land that he gives as 'my land' (_terram iuris mei_), and this too -in charters which state that the witan give their consent to the grant. -Never by any chance does a scribe slip into any such phrase as _terram -gentis meae, terram gentis Merciorum_ or the like. And how came it about -that from the very earliest time the king could devote the people's land -to the salvation of his own peculiar soul? But, it will be said, no -doubt the king had private estates besides having a power over 'the -unallotted lands of the nation,' and those private estates he could give -away as he pleased. But then, how are we to distinguish between those -charters whereby he disposed of his own and those whereby he disposed of -national lands? The formula which expresses the consent of the wise will -certainly not serve our turn. It leads, as we have seen, to a -distinction between different ages, not to a classification of the -various charters of one and the same king. - -[King's land and crown land.] - -Some historians have supposed that at the outset there was a clear -distinction between the king's private estates and those national lands -which were becoming the domains of the crown. Now a vague distinction -between what belonged to the king as king and what belonged to him--if -we may use so modern a phrase--in his private capacity, we may admit, -while at the same time we gravely doubt whether the language or the -thought of the eighth or ninth century had any forms in which this -distinction could be precisely expressed. Even within the ecclesiastical -sphere, where traditions of Roman law may have lingered and where dead -saints presented themselves as persons capable of acquiring land, it was -by no means easy to distinguish the bishop's property from his church's -property. We may find a deed whereby some king for the love of God or -the salvation of his soul gives land to a certain bishop, and states in -strong, clear words that the donee is to have the most absolute power of -giving and selling and even, for this sometimes occurs, of bequeathing -the land[929]. We shall probably believe that the king intends that this -land shall go to increase the territory of the church, and yet we dare -not make the bishop either 'a trustee' or 'a corporation sole.' - -[Fate of the king's land on his death.] - -As to the king, it would be on his death that the necessity of drawing -some distinction between his two capacities would first present itself. -Perhaps a brother of his would be elected to the kingdom and his -children would be passed by. Clearly this brother should have those -lands which have supplied the king with the main part of his revenue, -and yet it would be hard that the dead man's children should be -portionless. However, we may strongly suspect that in the earliest time -cases of this nature were settled as they arose without the -establishment of any general rule, and that even on the eve of the -Norman Conquest no definite classification of the king's estates had -been framed. We dare not expect the rule to be more definite than that -which settled the title to the kingship, and how exceedingly indefinite -the latter was the historians of our constitution have explained. -Hereditary and elective elements were mixed up in the title; we can -define neither the one nor the other. That 'superiority' over all the -land of his kingdom of which we have spoken above, though it might be -alienated piecemeal among the living, would pass from the dead king to -his elected successor. On the other hand, some kings were careful to -have certain lands booked to themselves and to obtain from their nobles -'an express power of testamentary appointment.' But very possibly there -was a wide fringe of disputable matter. King Alfred's will, with all -that he says about what had been done by himself, his father and his -brothers, seems to tell us that a prudent king would obtain the consent -of his councillors to any disposition that he made of land that was in -any sort his. Also it seems to bear witness to a strong feeling that the -reigning king should enjoy at any rate the bulk of the lands that his -predecessor had enjoyed[930]. - -[The new king and the old king's heir.] - -In one of his charters Æthelred the Unready is made to tell a long and -curious story[931]:--'My father, king Edgar, gave certain lands to the -minster at Abingdon. On his death the wise men elected as king my -brother Edward, and put me in possession of the lands which belonged to -the king's sons. Among these were the lands given to Abingdon; they were -forcibly taken from the monks. Whether this was lawful or unlawful those -wise men know best. Then my brother Edward died and I became possessed, -not only of the lands which belonged to the king's sons, but also of the -royal lands. I do not wish to incur my father's curse, and therefore I -intend to substitute for his gift a compensation out of my own proper -inheritance. The land that I am now going to dispose of I acquired by -gift from certain persons whose names I state.'--We seem to see here -three kinds of land, the _regales terrae_ which pass from king to king, -the lands 'entailed,' if we may use that term, on the king's family -(_regii pueri_), and lands which come to a king by way of gift or the -like and constitute his _propria hereditas_. But the wise men seem to -have violated three solemn books which they themselves or their -predecessors had attested, and we can but say with king Æthelred '_quam -rem si iuste aut iniuste fecerint ipsi sciant_[932].' There can be but -little law about such matters so long as the title to the kingship is -indefinable[933]. - -[Ancient demesne and its immunity.] - -This distinction between the lands which would pass from king to king -and the lands which would pass from the king to his heirs or to his -devisees may have been complicated with another distinction. Domesday -Book tells us that some, but by no means all, of the lands held by the -Confessor were and had always been free of geld, and this freedom from -taxation may imply other immunities. It is possible that, as in later -times, certain 'ancient demesnes of the crown' already stood outside the -national system of taxation, justice and police, that the ealdorman of -the shire and the shire-moot had no jurisdiction over them, and that -they were administered by reeves yet more personally dependent on the -king than was the shire-reeve. It is possible, however, that the two -distinctions cut each other, for when the king booked land to himself -he, at all events on some occasions, inserted in the charter a clause of -immunity, the very object of which was to put the land outside the -general, national system. To this distinction the famous exchange which -Æthelbert effected with his thegn Wulflaf may point. It says that when, -instead of Washingwell, the king accepted Marsham, 'he did it him to -folk-land.' The land at Marsham was no longer to enjoy that immunity -which it had enjoyed while it was in the hands of the thegn, it was to -come under the sway of the sheriff and of the national courts. However, -it is much easier for us to dream dreams about such a transaction than -to discover the truth. - -[Rights of individuals in national land.] - -If the folk-land was the land of the people and if the king when he -booked land to a church or a thegn was usually booking folk-land and -converting it into book-land, how are we to think of the land that still -is folk-land? Is it land that has not yet been brought into cultivation; -is it land in which no proprietary interests, save that of the folk, -exist? Now we are far from saying that the king never grants land that -is waste and void of inhabitants; but it is plain enough that this is -not the common case. The charter deals in the first instance with -manses, _villae_, _vici_, houses, túns, with cultivated fields and -meadows. Waste land (it may be) is given in large quantities, but merely -as appurtenant to the profitable core of the gift. We see too that -individual men have rights in the folk-land; Alfred the ealdorman has -folk-land and hopes that on his death it will pass to his son; King -Æthelbert has folk-land and it is occupied by Wighelm and Wulflaf; King -Edward the Elder supposes that the title to folk-land may be in dispute -between two persons and that this dispute will come before the sheriff. -What then the folk owns, if it owns anything at all, is not (if we may -introduce such feudal terms) 'land in demesne' but 'land in service,' in -other words, a superiority or seignory over land. We must add that it is -a superiority over free men and over men who have titles that can be the -subject of law-suits in the county court. And now we must ask, What -profit does the nation get out of this superiority? Shall we say that -the _tributum_, the _vectigal_ paid to the king is to be regarded as -rent paid to the nation, that the _opera regia_, the _victus_, the -_pastus_, are services rendered by the tenant to the people, or shall we -say that the folk's right over this land is proved by its serving as the -fund whereon the king can draw when he desires to save his soul? Then, -if on the other hand we make the tillers of the folk-land mere tenants -at will, there will be little room left for any landowners, for any -'peasant proprietors.' To meet this difficulty it has been supposed -that, at all events at a remote time, there was much land that was -neither folk-land nor book-land. The allotments which the original -settlers received were neither folk-land nor book-land. - -[The _alod_.] - -In order to describe those allotments the words _alod_ and _ethel_ have -been used, and other terms, such as 'family land' and 'heir land,' have -been invented. But in the laws and the charters we do not meet with -these phrases. The law of Edward the Elder seems to set before us -book-land and folk-land as exhausting the kinds of land. 'He who -deforces any one of his right, be it in book-land, be it in 'folk-land' -must pay a penalty. It is difficult to believe that this law says -nothing of one very common kind of land, still more difficult to believe -that already in the first half of the ninth century the amount of the -so-called _alod_, _ethel_, or 'heir-land,' had become so small that it -might be neglected. So far as we can see, book-land from first to last -was only held by the churches and by very great men. The books that we -have, more especially the later books, are with hardly any exceptions -furnished with clauses of immunity, clauses which put the land outside -the national system of police, and, as we think, of justice also. It is -not to be imagined for one moment that the numerous _liberi homines_ who -even in the Conqueror's reign held land in Essex and East Anglia had -books. To say that book-land had consumed the ancient _alod_ or _ethel_, -is in truth to say that all land was privileged. - -[Book-land and privilege.] - -We turn once more to Edward's law. Land, it would seem, is either -book-land or folk-land. Book-land is land held by book, by a royal and -ecclesiastical _privilegium_. Folk-land is land held without book, by -unwritten title, by the folk-law. 'Folk-land' is the term which modern -historians have rejected in favour of the outlandish _alod_. The holder -of folk-land is a free landowner, though at an early date the king -discovers that over him and his land there exists an alienable -superiority. Partly by alienations of this superiority, partly perhaps -by gifts of land of which the king is himself the owner, book-land is -created. - -[Kinds of land and kinds of right.] - -Edward's law speaks as though it were dealing with two different kinds -of land. But really it is dealing with two different kinds of title. We, -and even our statutes, habitually speak of freehold land, copyhold land, -leasehold land, yet we know that the same piece of land may be at one -and the same time freehold, copyhold and leasehold. All land is freehold -land; every rood has its freeholder. Bracton habitually spoke of land -held by frankalmoin, land held by knight's service, land held in socage, -but he knew well enough that a single acre might be held at one and the -same time by many different tenures. Just so, we take it, the same land -might be both book-land and folk-land, the book-land of the minster, the -folk-land of the free men who were holding--not indeed 'of'--but still -'under' the minster. They or their ancestors had held under the king, -but the king had booked their land (which also in a certain sense was -his land) to a church. The mental effort, the abstraction, that would -be required of us were we to speak of various 'estates, rights and -titles,' we try to avoid by speaking as though the distinction that was -to be indicated were a distinction between various material things, and -as though a freehold or copyhold quality were, like fertility or -sterility, an attribute of the soil. Even so abstract a term as 'estate' -is soon debased by the vulgar mouth: estates are ploughed; men 'shoot -over' their estates. 'Book-land' is a briefer term than 'land held by -book-right'; 'folk-land' is a briefer term than 'land held by -folk-right.' The same piece of land may be held by book-right and by -folk-right; it may be book-land and folk-land too. - -And now we must turn to consider another element in the king's alienable -superiority. We must speak of jurisdiction. - - -FOOTNOTES: - - [904] Vinogradoff, Folkland, Eng. Hist. Rev. viii. 1. - - [905] Edw. I. 2. - - [906] Schmid, p. 575. - - [907] K. 281 (ii. 64); B. M. Facs. ii. 33. - - [908] K. 317 (ii. 120); T. 480; B. ii. 195. - - [909] K. 260 (ii. 28); B. ii. 33; B. M. Facs. ii. 30. - - [910] In K. 1019 (v. 58) there is talk of Offa having booked land to - himself, and in K. 1245 (vi. 58) Edgar seems to perform a - similar feat without mentioning the consent of the witan, - though they attest the deed. See Stubbs, Const. Hist. i. 145. - - [911] From Alfred and Edward the Elder we have hardly enough genuine - charters to serve as materials for an induction, but Edward's - reign seems the turning point. - - [912] A.D. 838, K. 1044 (v. 90): Egbert gives 'aliquantulam terrae - partem meae propriae hereditatis ... cum consilio et - testimonio optimatum meorum.' A.D. 863, K. 1059 (v. 116): - Æthelred 'cum consensu ac licentia episcoporum ac principum - meorum' gives 'aliquam partem agri quae ad me rite - pertinebat.' - - [913] Stubbs, Const. Hist. i. 212. - - [914] We know of but four specimens earlier than 750. The first is a - deed whereby Wulfhere of Mercia makes a grant 'cum consensu et - licentia amicorum et optimatum meorum': E. 4; B. M. Facs. iv. - 1. The second is a deed whereby Hlothar of Kent makes a grant - with the consent of Abp Theodore, his (Hlothar's) brother's - son Eadric and all the princes; K. 16 (i. 20); B. M. Facs. i. - 1. The third, known to us only through a copy, is one by which - Æthelbald of Mercia makes a grant 'cum consensu vel - episcoporum vel optimatum meorum'; K. 83 (i. 100). By a fourth - deed, K. 27 (i. 30), Eadric grants land 'cum consensu meorum - patriciorum'; but this also we only get from a copy. - - [915] K. 1 (i. 1); A.D. 604. Æthelbert for Rochester. - - [916] K. 43 (i. 50); B. i. 140: A.D. 697, Wihtræd.--K. 47 (i. 54); - E. 17; B. M. Facs. i. 4: Wihtræd.--K. 77 (i. 92); E. 24; B. M. - Facs. i. 6: A.D. 732, Æthelbert.--K. 132 (i. 160); E. 54; B. - M. Facs. ii. 4: A.D. 778, Egbert. - - [917] K. 85 (i. 102); E. 32: Eadbert for Rochester. Of this deed we - have but a transcript. The formula of attestation is very - curious and may have been distorted either by the original - scribe or the copyist. - - [918] K. 157 (i. 189), Offa of Mercia uses this eschatocol, but in a - Kentish gift. - - [919] K. 1006-7 (v. 47-8); B. i. 256-7. - - [920] K. 79 (i. 95). - - [921] Brunner, Rechtsgeschichte der Röm. u. German. Urkunde, pp. - 220-8; Giry, Manuel de diplomatique, 614. Bede in his famous - letter (ed. Plummer, i. 417) uses the technical _astipulari_ - to describe the action of the prelates who set their crosses - to the king's charters. It occurs also in a charter of 791, K. - 1015 (v. 53-4). See also K. 691 (iii. 289), 'constipulatores.' - - [922] Brunner, op. cit. 158. Dr Brunner thinks that the precedents - for A.-S. charters came direct from Rome rather than from any - other quarter (p. 187); but he fully admits that these - charters when compared with foreign instruments show a certain - formlessness. - - [923] Under our own law we may conceive a case in which a man would - be compelled to die unwillingly intestate because one of the - two people present at his death-bed capriciously refused to - witness a will. - - [924] The transition is marked by the following charters.--K. 104, - 105, 108, 113, in these we have the mere rogation of fit and - proper witnesses.--K. 114 (a Kentish deed which Kemble - ascribes to 759-765), in this the clause of attestation speaks - of the counsel and consent of the _optimates_ and - _principes_.--K. 118, Uhtred of the Hwiccas makes a grant with - the consent and licence of Offa king of the Mercians and of - his (Offa's) bishops and _principes_.--K. 120, the witnesses - are described as _condonantes_.--K. 121, 122, (A.D. 774) the - clause of attestation says 'cum sacerdotibus et senioribus - populi more testium subscribendo.'--K. 131, 'testium ergo et - consentientium episcoporum ac principum meorum signa et nomina - pro firmitatis stabilimento hic infra notabo.'--A clause of - this kind becomes common with Offa, see K. 134, 137, 138, 148, - 151, but occasionally there are relapses and the signatories - merely appear as 'fit and proper' or 'religious' witnesses. - But it is not until after 800 that, save as a rare exception, - the consent of the magnates is brought into connexion with the - operative words. - - [925] Bresslau, Urkundenlehre, i. 697. - - [926] Bede's letter to Egbert (ed. Plummer, i. 405) and his account - of Benedict Biscop (ib. 364) show that it was expected of the - king that he should provide land for young warriors of noble - race; but no word implies that the land out of which the - provision was to be made was 'folk-land,' nor is it clear that - the young warrior was to have a book. - - [927] See William's charter for Fécamp, Neustria Pia, p. 224. - - [928] A.D. 692-3, K. 35 (i. 39); B. M. Facs. i. 2: a grant by - 'Hodilredus parens Sebbi ... cum ipsius consensu'; 'ego Sebbi - rex Eastsaxonorum pro confirmatione subscripsi.'--A.D. 704, K. - 52 (i. 59); B. M. Facs. i. 3: 'Ego Sueabræd rex Eastsaxonorum - et ego Pæogthath cum licentia Ædelredi regis.'--A.D. 706, K. - 56 (i. 64), 'Ego Æthiluueard subregulus ... consentiente - Coenredo rege Merciorum.'--A.D. 721-46, K. 91 (i. 109), - Æthelbald of Mercia attests a lease made by the bishop of - Worcester.--A.D. 759, K. 105 (i. 128); B. M. Facs. ii. 2: - three brothers, each of whom is a _regulus_, make a gift 'cum - licentia et permissione Regis Offan Merciorum.'--A.D. 767, - 770, K. 117-8 (i. 144-5): two gifts by Uhtred, _regulus_ of - the Hwiccas, 'cum consensu et licentia Offani Regis - Merciorum.'--A.D. 791? K. 1016 (v. 54): 'Ego Aldwlfus dux - Suð-Saxonum ... cum consensu et licentia Offae regis - Merciorum.' - - [929] K. 113 (i. 137). - - [930] K. 314 (ii. 112); 1067 (v. 127); Liber de Hyda, 57. On the - death of Æthelbald, two of his sons, Æthelred and Alfred, seem - to have made over the lands which had been devised to them by - their father to Æthelbert, the reigning king, so that he might - enjoy them during his life. Then again, on Æthelbert's death, - Alfred would not insist upon a partition but allowed his share - to remain in the possession of Æthelred, the reigning king. - See also Eadred's will, Liber de Hyda, 153; he seems to have a - good deal of land of which he can dispose freely. - - [931] K. 1312 (vi. 172). - - [932] The violated books are in Chron. Abingd. i. 314, 317, 334. - - [933] Were it possible for us to say that the kingship was elective, - this would be but a beginning of difficulties. For example, we - should raise a question which in all probability has no - answer, were we to ask whether a majority could bind a - minority. - - - - -§ 3. _Sake and Soke._ - - -[Importance of seignorial justice.] - -Of all the phenomena of feudalism none seems more essential than -seignorial justice. In times gone by English lawyers and historians have -been apt to treat it lightly and to concentrate their attention on -military tenure. For them 'the introduction of the military tenures' has -been 'the establishment of the feudal system.' But when compared with -seignorial justice, military tenure is a superficial matter, one out of -many effects rather than a deep-seated cause. Seignorial justice is a -deep-seated cause of many effects, a principle which when once -introduced is capable of transfiguring a nation. Of the origin and -antiquity of this principle, however, some even of our most illustrious -historians have spoken with great hesitation and therefore we shall -spend some time in examining the texts which reveal what can be known -about it, admitting once for all that they leave much room for -differences of opinion. - -[Theory of the modern origin of seignorial justice.] - -Since the doctrine to which we have come would trace seignorial justice -back to a remote time, we shall do well to state at the outset an -extreme version of the opposite doctrine, a version which has been -elaborately set forth in a learned and spirited essay[934].--On the eve -of the battle of Hastings a seignorial court was still a new thing in -England. It was a Norman precursor of the Norman Conquest. England owes -it to Edward the Confessor, who was 'half-Norman by birth and wholly -Norman by education and sympathies.' It came to us with 'a new theory of -constitutional law.' From the reign of no older king can any evidence be -produced of the existence--at any rate of the legalized existence--of -private courts. True, there are charters that give to the holders of -great estates the profits of jurisdiction; but a grant of the profits of -jurisdiction is one thing, jurisdiction itself is another. True, that -one man might have _soke_ over another, but this does not mean that he -had jurisdiction; at the most it means that he was entitled to the -profits of justice, to wites, to fines and amercements. 'No instance can -be found before the Norman times in which _sócn_ means jurisdiction. -_Sócn_ had a technical meaning of its own which is always rigorously -observed. The idea of jurisdiction, on the other hand, was expressed by -an equally technical word, the meaning of which is also rigorously -observed. This is _sacu_, a word which has strangely vanished from our -legal vocabulary, but is still preserved, even in its technical sense, -by the German _sache_[935].' - -[Sake and soke in the Norman age.] - -Now it will not be disputed that in Domesday Book and the Leges Henrici -this distinction is obliterated. _Soke_ means jurisdiction and '_sake_ -and _soke_' is but a pleonastic phrase, which means no more than -_soke_[936]. Nor is it disputable that on the vigil of the Conquest a -great deal of jurisdiction was wielded by the lords. Not a few of the -'hundreds' were in private hands, and, apart from hundredal -jurisdiction, a lord might have and often had sake and soke over his own -lands. It is not denied that Edward the Confessor had freely granted to -churches and other lords large rights of justice,--not merely rights to -the profits of jurisdiction, but jurisdiction itself. The question is -whether what he did was new. - -[The Confessor's writs.] - -For one moment longer we may dwell on the indisputable fact that he -dealt out jurisdictional rights with a lavish hand. This we gather, not -so much from his Latin land-books, as from English writs in which he -announces to the bishop, earl, sheriff and great men of a county that he -has given land in that county to some church 'with sake and soke and -toll and team'; sometimes he adds 'with infangennethef, grithbrice, -foresteal, hamsocn, flymena-fyrmth,' and so forth. Sometimes the donees -are to have these rights in all their own lands. Sometimes he gives them -the hundredal jurisdiction over lands that are not their own. Thus to -St. Benet of Ramsey he gives soken over all the men in a hundred and a -half--over all the men who are 'moot-worthy, fyrd-worthy, and -fold-worthy,' whosesoever men they may be: that is to say (as we -understand it) he gives a jurisdiction over all the free men of the -district, the men who attend the moots, who attend the host and who are -not compelled by any _soca faldae_ to send their sheep to a seignorial -fold, and this although those men be bound to St. Benet neither by -tenure nor by personal commendation[937]. Again, he concedes that the -donee's tenants shall be quit of shires and hundreds[938]. Again, he -gives the favoured church taxational power: whenever the king takes a -geld, be it army-geld, or ship-geld, the monks may impose a similar tax -upon the township and keep the proceeds to their own use[939]. In short, -it seems not too much to say that any delegation and appropriation of -justice of which our Norman kings were guilty had an ample warrant in -the practice of St. Edward. - -[Cnut's practice.] - -Now the theory which would make him an innovator in this matter receives -a rude shock from a writ of Cnut[940]. The king announces that the -Archbishop of Canterbury is to be worthy throughout his lands of his -sake and soke and grithbrice, hamsocn, foresteal, infangennethef and -flymena-fyrmth. Until the genuineness of this writ, which does not -stand quite alone[941], be disproved, the charge that has been brought -against Edward fails. He was but following in the steps of the great -Dane, though it may be that he rushed forward where his predecessor had -trod cautiously. - -[Cnut's law.] - -Having seen what Cnut could do upon occasion, we turn to the famous -passage in his dooms which declares what 'rights the king has over all -men[942].' In Wessex and Mercia (in the Danelaw the list is somewhat -different) he has hamsocn, foresteal, flymena-fyrmth and fyrd-wite -'unless he will honour a man yet further and grant him this worship.' -Now if we had not before us his writ for the archbishop, we might -perhaps argue that this law merely decreed that the profits of certain -pleas were not to be covered by the 'farms' paid to the king by the -sheriffs and other national officers. But in the writ we see that Cnut -allows to the archbishop just the excepted rights, just that 'worship' -which men are not to have as a general rule. Nor surely can we say that -what is conceded is, not jurisdiction itself, but merely the profits of -jurisdiction. The archbishop is to have _sake_ as well as _soke_, and -those who have contended for the strictest interpretation of royal -grants have not contended that the former of these words can mean -anything but 'causes,' 'pleas,' 'jurisdiction.' Therefore when it is -interpreted by the aid of this writ, Cnut's law seems to imply that -private jurisdiction is a common thing. The king is already compelled to -protest that there are certain pleas of the crown that are not covered -by vague and general words. - -[The book and the writ.] - -Now express grants of _sake_ and _soke_ first become apparent to us in -documents of a certain class, a class that we do not get before the last -years of the tenth century. It is necessary therefore that we should -make a short digression into the region of 'diplomatics.' The -instruments of the Confessor's reign, and we may add of the Norman -reigns, which we loosely call royal charters or royal land-books divide -themselves somewhat easily into two main classes, which we will call -respectively (1) charters and (2) writs. These names are not very happy, -still they are the best that occur to us. If we have regard to the form -of the instrument, the distinction is evident. The charter is with rare -exceptions in Latin. It begins with an invocation of the Triune God or -perhaps with a sacred monogram. On the other hand, there is no address -to mortal men; there is no salutation. There follow a pious _arenga_ -setting forth how good a thing it is to make gifts, how desirable it is, -since men are very wicked, that transactions should be put into writing. -Then the king states that he gives, or has given, or will give--the use -of the future tense is not uncommon--certain land to a certain person. -Then comes a clause which we shall hereafter call 'the clause of -immunity':--the land is to be free from certain burdens. Then comes the -anathema or damnatory clause, threatening all breakers of the charter -with excommunication here and torment hereafter. Then in the charters of -the time before the Conquest the boundaries of the land are described in -English. Then comes the sign of the cross touched by the king's hand and -the crosses of the witan or nobles who 'attest' or 'attest and consent -to' the grant. In the writ all is otherwise. In the Confessor's day it -is usually, in the Norman reigns it is sometimes, an English document. -It begins, not with an invocation, but with a salutation;--the king -greets his subjects or some class of his subjects: King Edward greets -'Herman bishop and Harold earl and all my thegns in Dorset,' or 'Leofwin -bishop and Edwin earl and all my thegns in Staffordshire':--and then he -tells them something. He tells them that he has granted lands or -liberties to a certain person. There follows a command or a threat--'I -command and firmly enjoin that none shall disturb the grantee,' 'I will -not suffer that any man wrong the grantee.' The boundaries are not -described. There is seldom any curse. The king makes no cross. If any -witnesses are mentioned, they are few and they do not make crosses. - -[Differences between book and writ.] - -Now these formal differences correspond more or less exactly to a -substantial difference. As every modern lawyer knows, a written document -may stand in one of two relations to a legal transaction. On the one -hand it may itself be the transaction: that is to say, the act of -signing, or of signing and delivering, the document may be the act by -which certain rights are created or transferred. On the other hand, the -instrument may be but evidence of the transaction. Perhaps the law may -say that of such a transaction it will receive no evidence save a -document written and signed; perhaps it may say that the testimony of -documents is not to be contradicted by word of mouth; but still the -document is only evidence, though it may be incontrovertible evidence, -of the transaction; the transaction may have been complete before the -document was signed[943]. This material distinction is likely to express -itself in points of form; for instance, such a phrase as 'I hereby give' -is natural in the one case; such a phrase as 'Know all men by this -writing that I have given' is appropriate in the other. Instruments of -both kinds were well enough known in the Frankish kingdom; their history -has been traced back into the history of Roman conveyancing[944]. It -would be out of place were we here to discuss the question whether the -Anglo-Saxon land-book was a dispositive or merely an evidential -document; suffice it to say that with rare exceptions the instruments -that are of earlier date than the Confessor's reign are in form charters -and not writs. On the other hand, the documents of the Angevin kings -which treat of gifts of lands and liberties, though we call them -charters, are in form (if we adopt the classification here made) not -charters but writs. In form they are evidential rather than dispositive; -they are addressed to certain persons--all the king's lieges or a class -of the lieges--bidding them take notice that the king has done -something, has given lands, and then adding some command or some threat. -This command or threat makes them more than evidential documents; the -_Sciatis me dedisse_ is followed by a _Quare volo et firmiter -praecipio_; it is not for no purpose that the king informs his officers -or his subjects of his having made a gift; still in form they are -letters, open letters, 'letters patent,' and the points of difference -between the Angevin charter and the Angevin 'letters patent' (strictly -and properly so called) are few, technical and unimportant when compared -with the points of difference which mark off these two classes of -documents from the ancient land-book[945]. In short before the end of -the twelfth century, the writ-form or letter-form with its salutation, -its 'Know ye,' its air of conveying information coupled with commands, -has entirely supplanted the true charter-form with its dispositive words -and its air of not merely witnessing, but actually being, a gift of -land. - -[Anglo-Saxon writs.] - -But to represent this as a contrast between English instruments and -Norman or French instruments would be a mistake. In the first place, we -have a few documents in writ-form that are older than the days of the -Norman-hearted Edward. As already said, we have a writ from Cnut and it -has all those features of Edward's writs which have been considered -distinctively foreign. We have another writ from the same king. The king -addresses Archbishop Lyfing, Abbot Ælfmær, Æthelric the shireman 'and -all my thegns twelvehinde and twihinde.' He tells them that he has -confirmed the archbishop's liberties and threatens with the pains of -hell any one who infringes them[946]. We have a writ from Æthelred the -Unready, and a remarkable writ it is. He addresses Ælfric the ealdorman, -Wulfmær and Æthelweard and all the thegns in Hampshire and tells them -how he has confirmed the liberties of bishop Ælfheah and how large -tracts of land are to be reckoned as but one hide--an early example of -'beneficial hidation[947].' Secondly, the solemn charter with its -invocation, its pious harangue, its dispositive words, its religious -sanction, its numerous crosses, its crowd of attesting and consenting -witnesses, was in use in Normandy before and after the conquest of -England. Thirdly, the Norman kings of England used it upon occasion. -Much they did by writ. The vast tracts of land that they had at their -disposal would naturally favour the conciser form; but some of the -religious houses thought it well to obtain genuine land-books of the old -English, and (we must add) of the old Frankish type. The king's seal was -not good enough for them; they would have the king's cross and the -crosses of his wife, sons, prelates and barons. The ultimately complete -victory of what we have called the writ-form over what we have called -the charter-form may perhaps be rightly described as a result of the -Conquest, an outcome, that is, of the strong monarchy founded by -William of Normandy and consolidated by Henry of Anjou, but it can not -be rightly described as the victory of a French form over an English -form; and a very similar change was taking place in the chancery of the -French kings[948]. - -[Sake and soke appear when writs appear.] - -We may say then that the appearance of words clearly and indisputably -conceding jurisdictional rights is contemporaneous with the appearance -of a new class of diplomata, namely royal writs as contrasted with royal -charters or land-books. We may add that it is contemporaneous with the -appearance of royal diplomata couched in the vernacular language. This -may well lead us to two speculations. In the first place, is it not very -possible that many ancient writs have been lost? The writ was a far less -solemn instrument than the land-book, and it is by no means certain that -the writs of the Confessor were intended to serve as title-deeds or to -come to the custody of those for whose benefit they were issued. King -Edward greets the bishop of London, Earl Harold, the sheriff and all the -thegns of Middlesex and tells them how he has given land to St. Peter -and the monks of Westminster, and how he wills that they enjoy their -sake and soke. The original document is presented to the bishop, the -earl, or the sheriff (to all of them perhaps as they sit in their shire -moot) and we can not be certain that after this the monks ought to have -that document in their possession, that it ought not to be kept by the -sheriff, or perhaps returned to the king with an indorsement expressive -of obedience. Many hundred writs must King William have issued in favour -of his barons--this is plain from Domesday Book--and what would we not -give for a dozen of them? Secondly, it is well worth notice that 'sake -and soke' begin to appear so soon as royal diplomata written in English -become common, and when we observe the formulas which enshrine these -words we find some difficulty in believing that such formulas are new or -foreign. Let us listen to one. - - saca and socne - toll and team - griðbrice and hamsocne - and foresteal - and alle oðre gerihte - inne tid and ut of tide - binnan burh and butan burh - on stræte and of stræte. - -Surely this alliteration and this rude rhythm tell us that the clause -has long been fashioning itself in the minds and mouths of the people -and is no piece of a new-fangled 'chancery-style[949].' And one other -remark about language will occur to us. In many respects the law Latin -of the middle ages went on becoming a better and better language until, -in the thirteenth century, it became a very good, useful and accurate -form of speech. But it gained this excellence by frankly renouncing all -attempts after classicality, all thought of the golden or the silver -age, and by freely borrowing from English whatever words it wanted and -making them Latin by a suffix. The Latin of the Anglo-Saxon land-books -is for all practical purposes a far worse language, just because it -strives to be far better. It wanted to be good Latin, and even at times -good Greek. The scribe of the ninth or tenth century would have been -shocked by such words as _tainus_, _dreinus_, _smalemannus_, -_sochemannus_ which enabled his successors to say precisely what they -wanted. He gives us _provincia_ instead of _scira_, _satrapes_ instead -of _aldermanni_, and we read of _tributum_ and _census_ when we would -much rather have read of _geldum_ and _gablum_. It was out of the -question that he should be guilty of such barbarisms as _saca et soca_. -If he is to speak to us of these things, he will do so in some phrase -which he thinks would not have disgraced a Roman orator--in a phrase, -that is, which will not really fit his thought. - -[Traditional evidence of sake and soke.] - -The traditions, the legends, current in later times, can not be -altogether neglected. The prelates of the thirteenth century often -asserted that some of their franchises, and in particular their hundred -courts, had been given to their predecessors in an extremely remote age. -Thus the bishop of Salisbury claimed the hundred of Ramsbury in -Wiltshire by grant of King Offa of Mercia[950]; the Abbot of Ramsey -claimed the hundred of Clackclose in Norfolk by grant of King -Edgar[951]. On such claims we can lay but very little stress, for if the -church had held its 'liberties' from before the Conquest, the exact date -at which it had acquired them was of little importance and their origin -would easily become the sport of guess-work and myth. But occasionally -we can say that there must in all probability be some truth in the tale. -Such is the case with the famous hundred of Oswaldslaw in -Worcestershire. When the Domesday survey was made this hundred belonged -to the church of Worcester. Worcestershire was deemed to comprise twelve -hundreds and Oswaldslaw counted for three of them[952]. Oswaldslaw -contained 300 hides, and to all seeming the whole shire contained 1200 -hides or thereabouts. Even in the thirteenth century a certain -tripleness seems to be displayed by this hundred; the bishop holds his -hundred court in three different places, namely, outside the city of -Worcester, at Dryhurst and at Wimborntree[953]. Now the story current in -St. Mary's convent was that this triple hundred of Oswaldslaw received -its name from Oswald, the saintly bishop who ruled the church of -Worcester from 960 to 992. A charter was produced, perhaps the most -celebrated of all land-books, that _Altitonantis Dei largiflua -clementia_, which, after many centuries, was to prove the King of -England's dominion over the narrow seas[954]. According to this charter -Edgar, Oswald's patron, threw together three old hundreds, Cuthbertslaw, -Wolfhereslaw, and Wimborntree to form a domain for the bishop and his -monks[955]. Could we accept the would-be charter as genuine, could we -even accept it as a true copy of a genuine book (and this we can hardly -do)[956], there would be an end of all controversy as to the existence -of seignorial justice in the year 964, for undoubtedly it contains words -which confer jurisdiction[957]. Upon these we will not rely: the fact -remains that in Domesday Book there appears this hundred of Oswaldslaw, -that it is treated as a triple hundred, as three hundreds, that the -bishop has jurisdiction over it, that the sheriff has no rights within -it, that it looks like a very artificial aggregate of land, for pieces -of it lie intermixed with other hundreds and pieces of it lie -surrounded by Gloucestershire. In 1086 the church of Worcester had to -all appearance just those rights which the _Altitonantis_ professed to -grant to her; already they were associated with the name of Oswald; -already they were regarded as ancient privileges. 'Saint Mary of -Worcester has a hundred called Oswaldslaw, in which lie 300 hides, from -which the bishop of the said church, by a constitution of ancient times, -has the profits of all sokes and all the customs which belong thereto -for his own board and for the king's service and his own, so that no -sheriff can make any claim for any plea or for any other cause:--this -the whole county witnesses[958].' Surely the whole county would not have -spoken thus of some newfangled device of the half-Norman Edward. Such a -case as this, so great a matter as the utter exclusion of the sheriff -from one quarter of the shire, we shall hardly attempt to explain by -hypothetical usurpations. These liberties were granted by some king or -other. If they were granted by the Confessor, why was not a charter of -the Confessor produced? Why instead was a charter of Edgar produced, -perhaps rewritten and revised, perhaps concocted? The easiest answer to -this question seems to be that, whatever may be the truth about this -detail or that, the _Altitonantis_ tells a story that in the main is -true. The diplomatist's scepticism should in this and other instances be -held in check by the reflexion that kings and sheriffs did not permit -themselves to be cheated wholesale out of valuable rights, when the true -state of the facts must have been patent to hundreds of men, patent to -all the men of Oswaldslaw and to 'the whole county' of Worcester[959]. - -[Criticism of the earlier books.] - -We may now turn to the genuine books of an earlier time and patiently -examine their words. It is well known that an Anglo-Saxon land-book -proceeding from the king very commonly, though not always, contains a -clause of immunity. Sometimes a grant of immunity is the essence of the -book; the land in question already belongs to a church, and the bishop -or abbot now succeeds in getting it set free from burdens to which it -has hitherto been subject. What is now granted to him is 'freedom,' -'liberty,' 'freóls'; the book is a _freóls-bóc_[960]; it may be that he -is willing to pay money, to give land, to promise prayers in return for -this franchise, this _libertas_[961]. Thus, for example, King Ceolwulf -of Mercia grants a _libertas_ to the Bishop of Worcester, freeing all -his land from the burden of feeding the king's horses, and in -consideration of this grant the bishop gives to the king five hides of -land for four lives and agrees that prayers shall be said for him every -Sunday[962]. - -[The clause of immunity.] - -Now in an ordinary case the clause of immunity will first contain some -general words declaring the land to be free of burdens in general, -and then some exceptive words declaring that it is not to be -free from certain specified burdens[963]. Both parts of the clause -demand our attention. The burdens from which the land is to be -free are described by a large phrase. Usually both a substantive -and an adjective are employed for the purpose; they are to be freed -_ab omni terrenae servitutis iugo_--_saecularibus negotiis_--_mundiali -obstaculo_--_mundialibus causis_--_saecularibus curis_--_mundialibus -coangustiis_--_cunctis laboribus vitae mortalium_. The adjectives are -remarkable, for they seem to suggest a contrast. The land is freed -from all earthly, worldly, secular, temporal services. Does this -not mean that it is devoted to services that are heavenly, sacred, -spiritual[964]? True, that in course of time we may find this same -formula used when the king is giving land, not to a church, but to one -of his thegns; but still in its origin the land-book is ecclesiastical; -'book-right' is the right of the church, _ius ecclesiasticum_[965], and -we may well believe that the phraseology of the books, which in -substance remains unaltered from century to century, was primarily -adapted to pious gifts. It is by no means improbable that in the middle -of the eighth century Æthelbald of Mercia by a general decree conceded -to all the churches of his kingdom just that freedom from all burdens, -save the _trinoda necessitas_, that was usually granted by the clause of -immunity contained in the land-books, and we can hardly say with -certainty that half a century before this time Wihtræd had not granted -to all the churches of Kent a yet larger measure of liberty, a liberty -which absolved them even from the _trinoda necessitas_[966]. Turning -from the adjectives to the substantives that are used, we find them to -be wide and indefinite words; the lands are to be free from all worldly -services, burdens, troubles, annoyances, affairs, business, causes, -matters and things. Sometimes a more definite word is added such as -_tributum_, _vectigal_, _census_, and clearly one main object of the -clause is to declare that the land is to pay nothing to the king or his -officers; it is to be free of rent and taxes, scotfree and -gafolfree[967]. Occasionally particular mention is made of a duty of -entertaining the king, his court, his officers, his huntsmen, dogs and -horses, also of a duty of entertaining his messengers and forwarding -them on their way[968]. Thus, for example, Taunton, which belonged to -the bishop of Winchester, had been bound to provide one night's -entertainment for the king and nine nights' entertainment for his -falconers and to support eight dogs and a dog-ward, to carry with horses -and carts to Curry and to Williton whatever the king might need, and to -conduct wayfarers to the neighbouring royal vills. To obtain immunity -from these burdens the bishop had to give the king sixty hides of -land[969]. - -[Discussion of the words of immunity.] - -No doubt it is a sound canon of criticism that, when in a grant precise -are followed by vague words, the former should be taken to explain, and, -it may be, to restrain the latter. If, for example, land be freed 'from -taxes and all other secular burdens,' we may well urge that the 'other -secular burdens' which the writer has in his mind are burdens akin to -taxes. And of course it is fair to say that in our days a grant of -private justice would be an extremely different thing from a grant of -freedom from fiscal dues. But what, we must ask, does this freedom from -fiscal dues really mean when it is granted by an Anglo-Saxon land-book? -When the monks or canons obtain a charter freeing this territory from -all _tributum_ and _census_, from all _pastiones_ and so forth, is it -intended that the occupiers of the soil shall have the benefit of this -grant? Not so. The religious have been stipulating for themselves and -not for their men. The land has been freed from service to the king in -order that it may serve the church[970]; the church will take what the -king has hitherto taken or it will take an equivalent. In a writ of -Edward the Confessor this appears very plainly. Whenever men pay a geld -to the king, be it an army-geld or a ship-geld, the men of St. Edmund -are to pay a like geld to the abbot and the monks[971]. Probably this -principle has been at work all along. The king has had no mind to free -the _manentes_, _casati_, _tributarii_ of the church from any _tributum_ -or _vectigal_. What has hitherto been paid to him, or some equivalent -for it, will now go to the treasury of the church. Thus, even within the -purely fiscal region, we see that the object of the immunity is to give -the church a grip on those who dwell upon the land. But we must read the -clause to its end. - -[The _trinoda necessitas_.] - -As is well known, it usually proceeds to except certain burdens, to -declare that the land is not to be free from them. These burdens, three -in number, are on a few occasions spoken of as the _trinoda necessitas_. -That term has become common in our own day and is useful. The land is -not to be free from the duty of army-service, the duty of repairing -strongholds, the duty of repairing bridges. An express exception of this -_trinoda necessitas_ out of the general words of immunity is extremely -common. Moreover there are charters which speak as though no lands could -ever be free from the triple charge[972], and a critic should look with -some suspicion upon any would-be land-book which expressly purports to -break this broad rule. But besides some books which do expressly purport -to free land from the _trinoda necessitas_[973], we have a considerable -number of others which grant immunity in wide terms and make no -exception of army-service, bridge-bote or burh-bote[974], and we are -hardly entitled to reject them all merely because they do not conform to -the general principle[975]. More to our purpose is it to notice that, -though a grant of jurisdictional powers would be an extremely different -thing from a grant of immunity from army-service, the duty of attending -the national or communal courts is extremely like the duty of attending -the host, and it would not be extravagant to argue that when the king -says 'I free this land from all secular burdens except those of -fyrd-fare, burh-bote and bridge-bote,' he says by implication 'I free -this land from suit to shires and hundreds.' - -[The _ángild_.] - -But yet more important is it to notice that charters of the ninth -century frequently except out of the words of immunity not three -burdens, but four. In addition to the _trinoda necessitas_, some fourth -matter is mentioned. Its nature is never very fully described, but it is -hinted at by the terms _ángild_, _singulare pretium_, _pretium pro -pretio_. In connexion with these charters we must read others which -exempt the land from 'penal causes,' or _wíte-r[´æ]den_ and others which -expressly grant to the donee the 'wites' or certain 'wites' issuing from -the land; also we shall have to notice that there are dooms which decree -that certain 'wites' are to be paid to the land-lord or _land-ríca_. Now -_ángild_ (_singulare pretium_) is a technical term in common use[976]. -When a crime has been committed--theft is the typical crime which the -legislators have ever before their eyes--the _ángild_ is the money -compensation that the person who has been wronged is entitled to -receive, as contrasted with any wite or fine that is payable to the -king. We find, then, a charter saying that certain land--not certain -persons, but certain land--is to be free from all secular burdens save -the _ángild_, and in some cases it will be added that the land is to pay -nothing, not one farthing, by way of wite, or that nothing is 'to go out -to wite[977].' Of the various interpretations that might possibly be put -upon such words one may be at once rejected. It is not the intention of -the king who makes or of the church which receives the grant that crimes -committed on this land shall go unpunished. No lord would wish his -territory to be a place where men might murder and steal with impunity. -We may be certain then that if a crime be committed, there is to be a -wite; but it is not to go outside the land; the lord himself is to have -it. But how is the lord to enforce his right to the wite,--must he sue -for it in the national or communal courts, or has he a court of his own? - -[The right to wites and the right to a court.] - -This question is difficult. The ancient charters, however nearly they -may go to telling us that the donee will do justice within his -territory, never go quite that length. There is, however, a book granted -by Cenwulf of Mercia in 816 to the church of Worcester which adds to the -clause of immunity these words--'and if a wicked man be three times -captured in open crime, let him be delivered up at the king's tún -(_vicum regalem_)[978].' This seems to tell us that only the worst -offenders will be delivered up to the royal or national officers and to -imply that the bishop may do justice upon all others. Then there are two -books in favour of the church of Abingdon, the one granted by Cenwulf in -821, the other by Egbert in 835, which, though their language is very -obscure, seem to tell us that if one of the 'men of God' (by which -phrase are meant the 'vassals' of the church of Abingdon) be accused of -any crime, the overseer of the church may swear away the charge by his -own oath, and that, if he dare not swear, he may pay the _ángild_ to the -plaintiff and, this done, will have justice over the offender[979]. -Another ancient book suggests that the lord of an immunity, when he had -to pay the _ángild_ for one of his men, could not be forced to cross the -boundary of his land. On that boundary some mixed tribunal would meet -consisting partly of his men and partly of outsiders[980]. Then, again, -there are the books which either give the lord the _furis comprehensio_ -or else exempt his land from the _furis comprehensio_. Now when a writ -of Cnut or Edward the Confessor tells us that a lord is to have -_infangennethef_ we do not doubt that he is to have the right which bore -that name in later days, the right to hold a court for and to hang -thieves who are caught in seisin of the stolen goods, and to the _furis -comprehensio_ of the older books we can hardly give another meaning. And -the apparent equivalence of the two phrases 'You shall hold this land -with thief-catching' and 'You shall hold this land free of -thief-catching' illustrates our argument that to exempt land from public -or national justice is to create private or seignorial justice[981]. We -may see this in later days; a lord who holds land 'free and quit of -frankpledge' assumes the right to hold a view of frankpledge, and we can -not say that he is wrong in so doing[982]. - -[The Taunton book.] - -Lastly, in a book of fairly good repute we may read of the grand -liberties with which in 904 King Edward endowed the Bishop of -Winchester's large estate at Taunton--that estate which in subsequent -centuries was to become the classical example of colossal manors. 'I -have,' says the king, 'granted to Christ that the men of the bishop, -noble as well as non-noble, living on the said land shall be worthy of -the same right that is enjoyed by those who dwell on the demesnes of the -crown, and that jurisdiction in all secular causes shall be exercised to -the use of the bishops in the same manner as that in which jurisdiction -is exercised in matters pertaining to the king[983].' This is the more -important because it suggests, what like enough is true, that the king -himself is one of the first of all 'immunists'; his own estates, the -ancient demesne of the crown, already stand outside the national system -of finance, justice and police[984]. - -[The immunist and the wite.] - -But so careful must we be in drawing inferences from singular instances, -so wary of forgeries, that in the end we can not dispense with arguments -which rest rather upon probabilities than upon recorded facts. It is -conceded that the 'immunist' (it is convenient to borrow a term that -French writers have coined) is entitled to many of the fines and -forfeitures that arise from offences committed within his territory. Is -it, we must ask, probable that any ealdorman or sheriff will be at pains -to exact and collect these fines and forfeitures for the immunist's -benefit? Now it is true that in later days a few lords enjoyed a -comparatively rare franchise known as _amerciamenta hominum_. When their -men were amerced in the king's court the amercements were paid into the -exchequer, and then the lord would petition to have them paid out to -him[985]. But this was an uncommon and an exalted franchise. As a -general rule, the person in whose name a court is held, be he king or -lord, gets the profits of the court. No one in the middle ages does -justice for nothing, and in the ninth century the days when national -officers would be paid by salary were far distant. When the king -declares that nothing is to 'go out' of the immunist's lands 'by way of -wite,' then to our thinking he declares that, save in exceptional cases, -he and his officers will neither meddle nor make with offences that are -committed within that territory. Again, though we may reject this -charter and that, there can be little doubt that before the end of the -tenth century, the territory held by a church sometimes coincided with a -jurisdictional district, with a hundred or group of hundreds. When this -was so, and the church enjoyed a full immunity, it was almost of -necessity the lord of the court as well as the lord of the land. Why -should the sheriff hold that court, why should he appoint a bailiff for -that hundred, if never thereout could he get one penny for his own or -the king's use? - -[Justice and jurisdiction.] - -We must once more remember that even in the days of full grown feudalism -the right to hold a court was after all rather a fiscal than a -jurisdictional right. We call it jurisdictional, but still, at least -normally, the lord was, neither in his own person, nor yet in the person -of his steward, the judge of the court[986]. His right was not in -strictness a right _ius dicendi_, for the suitors made the judgments. -When analysed it was a right to preside over a court and to take its -profits. Very easy therefore is the transition from a right to 'wites' -to such 'jurisdiction' as the feudal lord enjoys. When once it is -established that all the fines of a hundred court are to go to a bishop, -that no sheriff or bailiff will get anything by going to hold that -court, then the court already is 'in the bishop's hands.' - -[The Frankish immunity.] - -This, however, can not be treated as a merely English question. Parallel -to the English _fréols-bóc_ runs the Frankish _carta immunitatis_, and, -if the former has given rise to the question whether it conceded -jurisdictional rights, the latter has given rise, not merely to the same -question, but to much learned controversy. Now it is highly probable -that the English 'immunity' is not independent of the Merovingian -'immunity'; still the terms of the former do not seem to have been -copied from those of the latter, and it is a significant fact that two -different formulas should be equally open to the blame of not deciding -just that most important question which according to our ideas they -ought to decide. The Frankish formula is addressed by the king to his -subordinates and declares that no public officer (_nullus iudex -publicus_) is to enter the land of the immunist for the purpose of -hearing causes, levying _freda_ (which answer to our 'wites'), making -distresses or exacting pledges; but, like our English formula, it says -no word of any court to be held or any jurisdiction to be exercised by -the immunist. It would be impertinent to give here any lengthy account -of the various opinions about this matter that have been held by foreign -scholars, still more impertinent to pronounce any judgment upon them, -but even those writers who seem most inclined to minimize the scope of -the immunity are forced to admit that, as a mere matter of fact, the -immunist by virtue of his immunity is enabled to hold a court for his -territory. That seignorial courts were growing up even in the -Merovingian time, that such courts there were even in the sixth century, -there seems little or no doubt, even though it be denied that they were -the creatures of these clauses of immunity. On the whole, to whichever -side of the channel we look, we seem compelled, alike by the words of -the charters and by the controversies which they have occasioned, to -believe that in the eyes of the kings and the immunists seignorial -jurisdiction, that right to hold a court which seems to us so strange a -right, was not a matter of the first importance, not worth conceding, -not worth denying. Who is to have the profits of justice?--that is a -momentous question. But if it be decided that they are to go to the -bishop, then the king will have no further care for them:--the bishop -may and must get them for himself. As to the 'justiciables,' it may well -be that they are very indifferent about the matter, not impossible that -the burden of suit will be alleviated if the lord establishes a court of -his own, or if an old court passes into his hands[987]. - -[Seignorial and ecclesiastical jurisdiction.] - -One other question should be raised, even if we can find for it no -certain answer. Is not seignorial jurisdiction very closely connected at -its root with ecclesiastical jurisdiction? Of course in more recent -times the two are thoroughly distinct from each other. The bishop, -besides being a spiritual judge, will be a feudal lord with many -manorial courts and many chartered franchises; but any court that he -holds as a lord will have nothing to do with the court that he holds as -a bishop. The constitution and procedure of the one will differ at every -point from the constitution and procedure of the other. The one belongs -to the temporal order and is subject to the king's court, the other -belongs to the spiritual order and is in no sense below the royal -tribunal. Thus it is when feudal law and canon law have reached their -full stature. But even from the twelfth century we may get a hint that -the distinction has not always been so sharply marked. We may read how -in Henry I.'s day the Bishop of Bath 'with his friends and barons' heard -a cause in which Modbert claimed lands that were held by the monks of -Bath. The proceedings took place under a royal writ and ought, we should -say, to have been in all respects temporal proceedings; but in framing -the judgment two bishops, three archdeacons and several 'clerks and -chaplains' took the leading part, while the lay tenants of the bishop -stood by as witnesses[988]. In this context we must remember that in the -twelfth century the clergy were contending that land given to a church -in frankalmoin is outside the sphere of secular justice[989], and, while -this contention was being urged, it was easily possible that a bishop -should hold an amphibious court:--Over the claim that Modbert is making -the bishop has jurisdiction, either because the monks are holding the -land of him as his tenants, or because that land has been given to God -and the saints by an ancient book which denounced the anathema against -all who should violate it. Going back yet further, we see, at all events -in France, that the claim of the clergy to hold their lands and -seignories exempt from all temporal jurisdiction has been intimately -connected with the claim of the clergy that they themselves need not -answer before a lay tribunal. A learned man has said that the exemption -of the clergy from the temporal courts was 'the first step towards the -feudalization of justice[990].' If our English documents do not make -this plain, if the relations between church and state were more -harmonious in England than elsewhere (and because more harmonious -therefore more indefinite and to the modern student more perplexing), -still we can see that the main idea of the English _fréols-bóc_ is the -liberation of a tract of ground from all secular troubles, all temporal -burdens, all earthly service. The land is dedicated to God and the -saints, or, if it is not dedicated in the strictest sense, it is given -for God's sake and the welfare of the donor's soul; it is within the ban -of the church. And so the men who sit upon the land of the church of -Abingdon, laymen though they be, are _homines Dei_, the men of God[991]. -As such, should they not be subject to the jurisdiction of the church? - -[Criminal justice of the Church.] - -At this point we may profitably remember that the jurisdiction which in -later days appears as the 'criminal jurisdiction' of ecclesiastical -tribunals (the jurisdiction which, for example, those tribunals exercise -when they chastise a man for incest, fornication or perjury) was but -slowly disengaged from the general mass of penal jurisdiction that was -wielded by moots in which the bishop occupied a prominent seat. -Moreover, the bishop's justice did not escape that fiscal taint which -pervaded the whole system of criminal law. As in some cases the king is -entitled to a _wite_, so in others the _wite_ falls to the bishop. For -instance, we see traces of a rude _concordat_, which, when incest or -adultery is committed, subjects the woman to the bishop, the man to the -king[992]; and then from Domesday Book we learn that in the borough of -Lewes the upshot of this partition is that the king will get 8_s._ 4_d._ -from the man while the adulteress pays a like sum to the archbishop of -Canterbury[993]. And so ecclesiastical jurisdiction becomes a source of -income, a matter to be fought for and bargained for. The monks of Battle -will claim that within the _banlieu_ of their abbey all the 'forfeitures -of Christianity' belong to them and not to the bishop of -Chichester[994]. What is more, they will connect their claim to purely -temporal justice with their possession of ordeal pits, and here we may -see another link between the hundred-moots and the churches[995]. The -churches have made money out of the ordeal. Long after the English -prelates had been forbidden to hold spiritual pleas in the hundred -courts, Alexander III. was compelled to speak sharply to the archbishop -of Canterbury touching the conduct of archdeacons who exacted thirty -pence from every man or woman who went to the fire or the water for -purgation[996]. - -[Antiquity of seignorial courts.] - -No doubt the theory to which we have been led implies that in the eighth -or even in the seventh century, there were in England 'immunists' who -had jurisdiction within their territories, and further it implies that a -royal grant of land in the ninth and tenth centuries generally included, -and this as a matter of 'common form,' a grant of jurisdiction. We -cannot see either in the history of England or in the history of the -Frankish Empire any reason why we should shrink from these conclusions. -Further, it must be admitted that if the clause of immunity conveys, or -permits the growth of, seignorial jurisdiction, this jurisdiction is of -an exalted kind, for no causes are excepted out of it, unless it be by -the words about the _ángild_, and even those words drop out from the -charters in course of time. Those words about the _ángild_ imply, to our -thinking, that the immunist will have jurisdiction over any dispute -which arises between two men of the enfranchised territory, and also -that if an action against one of these men be brought by a 'foreigner' -in a court outside the precinct, the immunist can obtain 'cognizance' of -the action by appearing in that court and paying the _ángild_. When the -words about the _ángild_ disappear, this means that the immunist is -obtaining a yet further measure of 'liberty':--whenever one of his men -is sued he can 'crave his court' and need not, as a condition for -obtaining it, offer to pay what is due to the plaintiff. The highest -criminal jurisdiction was probably excepted from the grant. Being a -grant of wites, it will not extend to the 'bootless' the 'unemendable' -crimes. But Cnut's attempt to save for himself certain pleas of the -crown looks to us like the effort of a strong king to recover what his -predecessors have been losing[997]. And then Cnut himself and the -Confessor,--the latter with reckless liberality--expressly grant to the -churches just those very reserved pleas of the crown. The result is -that the well endowed immunist of St. Edward's day has jurisdiction as -high as that which any palatine earl of after ages enjoyed. No crime, -except possibly some direct attack upon the king's person, property or -retainers, was too high for him. It is the reconstruction of criminal -justice in Henry II.'s time, the new learning of felonies, the -introduction of the novel and royal procedure of indictment, that reduce -the immunist's powers and leave him with nothing better than an -unintelligible list of obsolete words[998]. In this matter of seignorial -justice England had little to learn from Normandy. On the contrary, the -Norman counts and barons were eager to secure the uncouth phrases which -gave to the English immunist his justice, 'haute, moyenne et basse -justice.' - -[Sidenote: Justice, vassalage and tenure.] - -Our next question must be whether in the days before the Conquest a -franchise or immunity was the only root of private jurisdiction: in -other words, whether any jurisdiction was implied in the mere relation -between lord and man or between lord and tenant. This also is a question -which will hardly be finally answered if regard be had only to the -English documents. For France it is the question whether the _senior_, -as such, has jurisdiction over his _vassus_, or again, whether he has -jurisdiction over his _vassus_ if, as is usually the case in the -Carlovingian age, the _vassus_ holds a _beneficium_ given to him by his -_senior_. The English dooms which deal with what we may call the -justiciary relationship between lord and man closely resemble in many -respects the Frankish capitularies which touch the same subject; both -sets of documents seem to evade the simple question that we put to them. -But as regards the continent it may here be enough to say that, though -there have been many debates, the current of learning seems to have set -decidedly in favour of the doctrine that neither in Merovingian nor yet -in Carlovingian times had the _senior_, unless he was an immunist, a -jurisdiction over his men. Such a jurisdiction has not been developed -when the midnight hides everything from our view. When the morning -comes, feudal justice stands revealed, though nowhere perhaps is it -governed by that simple principle that ultimately prevailed in England, -namely, that any and every lord, no matter his personal rank or the rank -of his tenement, has civil justice over his tenants. - -[The lord's duty when his man is accused.] - -The possibility of debate about this matter is afforded by texts of an -earlier age, which at times seem to speak of the lord as 'doing justice' -when a charge is brought against any of his men[999]. Our English run -parallel with the Frankish texts. The state in its organization of -justice and police does not treat the contract between man and lord, -between _senior_ and _vassus_, as a matter of indifference, still less -as a danger to society. We must not think of feudalism or vassalism as -of something which from the very first is anti-national and anarchic. In -its earliest stages it is fostered by the state, by the king, by -national law. The state demands that the lordless man of whom no right -can be had shall have a lord[1000]. It makes the lord responsible for -the appearance of his men in court to answer accusations[1001]. It is -not unlikely that the whole system of frankpledge grows out of this -requirement. In some instances the state may go further; it may treat -the lord, not merely as bound to produce his man, but as responsible for -his man's evil deeds. But, at all events, any one who has a charge to -make against a lord's man must in the first instance demand justice of -the lord. If without making such a demand, making it repeatedly, he -brings the charge before the king, he must pay the same fine that the -lord would have paid had he been guilty of a default of justice[1002]. -'Of a default of justice' we say and are compelled to say. It is phrases -such as this that have occasioned controversy. To an ear attuned to the -language of feudalism they seem to imply a seignorial court in which the -lord 'does justice' or 'holds full right' to the demandant. But to all -appearance they have gradually changed their meaning. Originally a lord -'does right' to the demandant by producing in a public court the man -against whom the claim is urged; or he does it by satisfying the claim, -and in that case he seems entitled to exact from his man, not merely a -sum which will compensate the outlay, but also the 'wite' or fine which -in another case would have gone to the king or some national officer. He -has thus 'done justice' and may have the usual profit that comes of -doing justice. Probably we ought to distinguish between a laxer and a -stricter measure of responsibility, between the lord's responsibility -for his men in general and his responsibility for such of his men as -form his _familia_, in the language of later days his _mainpast_; but -our texts do not lay much stress upon this distinction, and, as a matter -of remote history, the relation between lord and man may grow out of the -relation between the head of a household and the members of it[1003]. - -[Duty of the lord.] - -At any rate, in numberless cases the law begins to interpose a third -person, namely, the wrong-doer's lord, between the wrong-doer and the -wronged: it is to this lord that the claimant should in the first -instance address himself. The lord who does his duty by the king and the -nation is he who keeps a tight hold on his men, who chooses them -carefully, who dismisses them if they are bad subjects, who 'does -justice' and 'holds full right' if any of them be accused. Then, on the -other hand, he has the right and duty of 'warranting' his men. If, as -will often happen, the bond between a lord and his man is complicated -with the bond between landlord and tenant, then, as in later days, if -the tenant's title be impeached, he will vouch his lord to warranty and -the lord will defend the action. But, besides this, within limits that -are not well defined, the lord is the man's _defensor_ or _tutor_[1004]. -It is expected of him by morality, if not by law, that he will take upon -himself the responsibility for his man's acts if they be not open -crimes. He must stand by his men and see them through all trouble[1005]. - -[The state requires the lord to 'do right.'] - -For a while the state approves all this. The dangerous person is, not -the lord, whose wide lands are some security for his good behaviour, but -the lordless man of whom no right can be had. Somehow or another theft -must be suppressed. This is the determination of our strongest kings, of -our wisest 'witan.' That they are raising up over against the state -another power, the power of seignorial justice, they do not see. And, -after all, these 'witan' both laymen and clerks are themselves great -lords, and the king is the lordliest of them all. Thus the foundation -for a feudal jurisdiction is laid. Still between the lord's duty of -producing his men and his right to hold a court of and for his men there -is to our eyes a great gulf. We have seen above that this gulf had not -been bridged even in the Confessor's, even in the Conqueror's day[1006]. -Nor to our thinking would it have been bridged but for the creation of -'immunities' upon a grand scale. The first origin of the immunity we -have sought in the efforts of the clergy to obtain lands which should be -utterly exempt from 'all earthly burdens,' 'all worldly business.' But -this effort unites with the stream of tendency that we have now been -watching. The state will be grateful to the church if it will 'hold all -the men of God to right' and do judgment between them and upon them. - -[Sidenote: The _land-ríca_ as immunist.] - -There is also a long series of dooms going back as far as Æthelstan's -reign which give certain fines and forfeitures to one who is described -as the _land-hláford_ or the _land-ríca_. Remarkable they are, for they -seem to assume that wherever a crime is committed there will be -forthcoming some-one who will answer to the title 'the land-lord' or -'the territorial magnate.' In some sense or another they presuppose that -there is _Nulle terre sans seigneur_. But who is this 'landlord'? -According to our thinking, he is the lord of the hundred or else the -lord who has a charter of immunity comprehending the land in question, -and, if there be no person answering to this description, then he is the -king. In the first place, in certain dooms relating to London we are -told that, when a thief is caught and slain, his property is to be -divided into two parts, of which his wife takes one, while the other is -divided between the king and 'the association' (perhaps we may say 'the -gild') which was engaged in the pursuit and capture; 'but if it be -book-land or bishop's-land, the landlord takes half with the association -in common[1007].' This seems to mean that there will be a lord to share -in the proceeds of the forfeiture if, but only if, the scene of the -capture be land that is within an immunity. It is assumed, not without -warrant in the land-books, that the man who has book-land always, or -almost always, enjoys an immunity, while as to the bishop's-land, -whether the bishop be holding it in demesne or have granted it out to -his thegns, that no doubt will be protected by an ample charter. So -again, in another law 'the lord' receives the thief's _wer_ 'if he [the -lord] is worthy of his wite[1008]': that is to say, the lord receives -it if he is in enjoyment of an immunity which confers upon him a right -to 'wites.' Then again, in several cases we find that the land-lord or -_land-ríca_ shares the proceeds of a fine with the hundred or -wapentake[1009]. This, as we think, points to the fact that the hundreds -and wapentakes are passing into private hands. These laws are severe -laws against criminals. They urge all men to the pursuit of the flying -thief and they hold out a reward to those who are active in this duty. -The men of the hundred are to have half the thief's property, while the -lord (who in many cases will be the lord of the hundred) is to have the -other half. He is to have no more, even though his charter may seem to -give him more. So again, in certain cases an accused person must find -security that he will stand a trial, and the gage is to be given 'half -to the _land-ríca_, half to the wapentake[1010].' This _land-ríca_ is -the lord of the wapentake. In another instance the gage must be given -half to the _land-ríca_ and half to the king's port-reeve[1011]. Then -there are cases in which the 'land-lord' is to take possession of cattle -that have been irregularly acquired and are presumably stolen, and is to -preserve them until their true owner shall make his appearance[1012]. -These provisions, which seem the foundation of the 'franchise of waif -and stray,' suggest that the 'land-lord' is the president of the court -into which the owner must go when he wishes to prove his title; were -this not so, the king's reeve would be the person who would have the -custody of the unclaimed beasts. Certainly our explanation of these -passages assumes that a hundred is often in private hands and it assumes -that, when this is not the case, then the king is regarded as the lord -of the hundred. But in so doing it merely assumes that the state of -things revealed by Domesday Book is about a century old. When in that -record we read that the soke of four and a half hundreds in Oxfordshire -'belongs to' the royal manor of Bensington, that the soke of two -hundreds 'belongs to' the royal manor of Headington, that the soke of -other two hundreds 'belongs to' the royal manor of Bampton, we see that -the king is the lord, the proprietor, of those hundreds which have no -other lord[1013]. From the laws now before us we infer that this is no -very new arrangement. But of course it is possible that those laws have -divers cases in view. It may be that within the hundred there is an -immunity, a privileged township or manor, and that a thief is caught -there. Who is to have the profits which arise from the crime and -condemnation? The answer is: Half shall go to the hundred, half to the -_land-ríca_, that is to say, half goes to the doomsmen, or perhaps to -the lord, of the hundred court, half to the immunist. The lord under the -general words of his charter might perchance claim the whole; but, in -order that all the hundredors may have an interest in the pursuit of -thieves, it is otherwise decreed. But where is justice to be done, in -the hundred court or in the court of the immunist? That is a question of -secondary importance to which our laws do not address themselves. Very -probably justice will be done in the hundred court, or again it is not -impossible that a mixed tribunal consisting partly of the men of 'the -franchise,' partly of the men of 'the geldable' will meet upon the -boundary of the immunist's land[1014]. Our main point must be that the -land-lord or _land-ríca_ of these laws is an immunist, or is the king, -who, where there is no immunity, occupies the position of an immunist. - -[The immunist's rights over free men.] - -We see too that the immunist's rights extend over free men and over free -landowners. If a man is guilty of heathenry he must, if he be a king's -thegn, pay ten half-marks, half to Christ and half to the king, but if -he be another 'landowning man' then he pays six half-marks, half to -Christ and half to the _land-ríca_[1015]. The landowner normally has a -land-lord above him. We see also that the lord is made liable for the -payment of dues which are ultimately exigible from those who are -dwelling within his territory. 'If a king's thegn or other _land-ríca_ -makes default in paying Peter's pence, he must pay ten half-marks, half -to Christ and half to the king; if a "towns-man" makes a similar -default, the _land-ríca_ must pay the penny and take an ox from the -defaulter, and if the _land-ríca_ neglects to do this, then Christ and -the king shall receive the full _bót_ of twelve ores[1016].' Such is the -manner in which the lord's power is consolidated. He begins to stand -between his free men and the state, between his free men and the church. - -[Delegation of justiciary rights.] - -Another consequence of the argument in which we have been engaged is -that, at least a century before the Conquest, the great immunists were -granting immunities to their dependants. From this consequence we shall -not flinch. Bishop Oswald, for example, was an immunist on a splendid -scale, and when he loaned land to a knight and said that the land was to -be 'free from all secular service' save the _trinoda necessitas_, he -loaned not merely land, but immunity and jurisdiction. On one occasion, -adopting a formula that has lately come before us, he said that nothing -was to go out of the land by way of _wite_[1017]. By this we understand -that he gave to his thegn any wites which might thereafter be incurred -by the inhabitants of the manses which were comprised in the loan, and -further that he gave him the right to hold a court. Domesday Book -requires us to believe that such transactions had not been -uncommon[1018]. - -[Number of immunists.] - -Will our attempt to explain the land-books create too many holders of -sake and soke? We do not think so, for we do not think that the number -of land-books should be indefinitely multiplied by our imaginations. If -we look in Domesday Book at the counties which lie south of the Thames, -we shall indeed see that the total amount of land of which the churches -are tenants in chief is very large. But the number of these landowning -churches is small. When we have named seven episcopal and a dozen -abbatial minsters we have disposed of by far the greater bulk of the -church lands in this district, and these minsters are as a general rule -just those which have transmitted to us in cartularies and chronicles -the story of their acquisitions. To churches that were destroyed by the -Danes we may allot some charters; but we should have no warrant for the -supposition that royal diplomata have perished by the hundred and left -no trace behind. In the shires of York, Lincoln, Nottingham, Derby we -might allow sake and soke to every English prelate who appears as a -tenant in chief and yet not raise to twelve[1019] the number of the -ecclesiastical immunists who had lands in this wide region. As to the -lay holders of sake and soke, they were not very many though they held -broad lands; also they belonged for the more part to an exalted -class[1020]. However, here as elsewhere we must admit that every -attempted explanation discloses new problems. - - -NOTE. - -_The Ángild Clause._ - - As we have said above, (p. 274), there are certain charters in - which the clause of immunity makes mention of the _ángild_ - (_pretium pro pretio, singulare pretium_). We will here collect the - obscure texts in which this difficult term occurs. - - First, however, we will call attention to a passage in Domesday's - account of Worcestershire (D. B. i. 175 b), which throws some light - on the matter. Westminster Abbey holds 200 hides and Pershore Abbey - holds 100 hides. 'The county says that the church of Pershore is - entitled to church-scot from all the 300 hides [its own 100 and - Westminster's 200], to wit, from every hide on which a free man - dwells one load of corn on St. Martin's day, (if he has more hides - than one, they are free), and if that day be infringed [i.e. if - payment be not made thereon], he who has kept back the corn must - pay elevenfold, but first must pay what is due [i.e. he altogether - pays twelve loads--"God's property and the church's twelve-fold" - (Æthelb. 1.)]; and the Abbot of Pershore will have a wite - (_forisfactura_) from his own 100 hides, such as he ought to have - from his own land; but from the other 200 hides he will have the - multifold payment of the corn that is due (_habet summam et - persolutionem_) and the Abbot of Westminster has the wite - (_forisfacturam_).' For _solvere et persolvere_, see Laws of - William (Select Charters) c. 5; for _solta et persolta_, see Dial. - de Scac. ii. 10. - - If then, a Westminster tenant fails to pay church-scot to Pershore, - he must make _bót_ (very ample _bót_) to Pershore, but his _wite_ - will go to his own lord; nothing is to 'go out to _wite_' from the - Westminster land. We will now turn to the land-books. We take them - to be saying in effect that in such a case as that put by Domesday - the grantee of the immunity is to have his man's wite, though the - restitutory _bót_ will go to another. - - (i) A.D. 767. Uhtred of the Hwiccas. K. 117 (i. 144); B. i. 286: - 'interdicimus ut si aliquis in hac praenominatam terram aliquid - foras furaverit alicui solvere aliquid nisi specialiter pretium pro - pretio ad terminum ad poenam nihil foras.' We should place a stop - after _terminum_. Then the last clause means 'nothing shall go out - to wite.' The mention of the _terminus_ suggests a payment at the - boundary of the immunist's land. - - (ii) [Questionable]. A.D. 799. Cenwulf. K. 176 (i. 213); B. i. 411: - 'de partibus vero et de causis singulare solvere pretium et nihil - aliud de hac terra.' - - (iii) A.D. 799-802. Pilheard. K. 116 (i. 142); B. i. 284: 'ut ab - omnium fiscalium redituum operum onerumque seu etiam popularium - conciliorum vindictis nisi tantum pretium pro pretio liberae sint - in perpetuum.' - - (iv) A.D. 814. Cenwulf of Mercia for the church of Worcester. K. - 206 (i. 259); B. i. 489: 'exceptis his, expeditione et pontis - constructione, et singulare pretium foras, nihilque ad poenam - resolvat.' - - (v) Cenwulf of Mercia for the church of Worcester. K. 215 (i. 271); - B. i. 507: 'exceptis his, arcis et pontis constructione et - expeditione et singulare pretium foras adversum aliud; ad poenam - vero neque quadrantem minutam foras resolvat.' - - (vi) A.D. 822. Ceolwulf of Mercia for Archbishop Wilfred. K. 216 - (i. 272); B. i. 508: 'liberata permaneat in aefum nisi is quattuor - causis quae nunc nominabo, expeditione contra paganos ostes, et - pontes constructione sui [=seu] arcis munitione vel destructione in - eodem gente, et singulare pretium foras reddat, secundum ritam - gentes illius, et tamen nullam penam foras alicui persolvat.' - - (vii) A.D. 831. Wiglaf of Mercia for the archbishop. K. 227 (i. - 294); B. i. 556: 'nisi his tantum causis, expeditione et arcis - munitione pontisque constructione et singulare pretium contra - alium.' - - (viii) A.D. 835. Egbert of Wessex for Abingdon. K. 236 (i. 312); B. - i. 577: 'de illa autem tribulatione que witereden nominatur sit - libera, nisi tamen singuli pretium solverit ut talia accipiant. - Fures quoque quos appellant weregeldðeofas si foras rapiautur, - pretium eius dimidium illi aecclesiae, et dimidium regi detur, et - si intus rapitur totum reddatur ad aecclesiam.' - - (ix) A.D. 849. Berhtwulf of Mercia for his thegn Egbert. K. 262 - (ii. 34); B. ii. 40: 'Liberabo ab omnibus saecularibus servitutibus - ... nisi in confinio rationem reddant contra alium.' - - (x) A.D. 855. Burhred of Mercia for the church of Worcester. K. 277 - (ii. 58); B. ii. 88: 'nisi tantum quattuor causis, pontis et arcis, - et expeditione contra hostes, et singulare pretium contra alium, et - ad poenam nihil foras resolvat. - - (xi) A.D. 883. Æthelred of Mercia for Berkeley. K. 313 (ii. 110); - B. ii. 172: 'and þæt ic þæt mynster fram æghwelcum gafolum gefreoge - þe to þiode hlafarde belimpeð, littles oððe micles, cuðes ge - uncuðes, butan angilde wið oþrum and fæsten gewerce and fyrd socne - and brycg geweorce ... æghwelces þinges to freon ge wið cyning, ge - wið ealdorman, ge wið gerefan æghwelces þeodomes, lytles and - micles, butan fyrd socne and fæsten geworce and brycg geworce and - angylde wið oðrum and noht ut to wite.' - - (xii) A.D. 888. Æthelred of Mercia for a thegn. K. 1068 (v. 133); - B. ii. 194: 'liberam hanc terram describimus ab omnibus causis nisi - singulare pretium contra aliud ponat et modum ecclesiae.' Is the - _modus_ [or _modius_] of the church the church-scot? - - In a few other cases the immunity mentions penal causes, - 'witeræden,' and no express exception is made of the _ángild_. - Thus:-- - - (xiii) A.D. 842. Æthelwulf for a thegn. K. 253 (ii. 16); B. ii. 13: - 'ut regalium tributum et principali dominacione et vi coacta - operacione et poenalium condicionum furis comprehensione ... secura - ... permaneat.' - - (xiv) [Questionable]. A.D. 844. Æthelwulf for Malmesbury; one of - the documents reciting the famous 'donation.' K. 1048 (v. 93); B. - ii. 26; H. & S. iii. 630: 'ut sit tutus et munitus ab omnibus - saecularibus servitutis, fiscis regalibus, tributis maioribus et - minoribus, quod nos dicimus witereden.' - - (xv) A.D. 877. Bp. Tunbert. K. 1063 (v. 121); B. ii. 163: 'a - taxationibus quod dicimus wite redenne.' - - The most detailed and at the same time the most hopelessly obscure - information that we get is such as can be obtained from two - Abingdon charters. - - A.D. 821. Cenwulf. K. 214 (i. 269); B. i. 505; H. & S. iii. 556: - 'Si pro aliquo delicto accusatur homo Dei aecclesiae ille custos - solus cum suo iuramento si audeat illum castiget. Sin autem ut - recipiat aliam iusticiam huius vicissitudinis conditionem praefatum - delictum cum simplo praetio componat.' - - A.D. 835. Egbert. K. 236 (i. 312); B. i. 577; H. & S. iii. 613. The - same clause, but with _alienam_ instead of _aliam_. Also the - following:--'De illa autem tribulatione que witereden nominatur sit - libera nisi tamen singuli [_corr._ singulare?] pretium solverit ut - talia accipiant [accipiat?].' - - This is very dark. Our best guess as to its meaning is this:--If a - man of God, that is, a tenant of the church, is accused of crime, - the _custos_ of the church (this may mean the abbot, but more - probably points to his reeve) may by his single oath purge the - accused. But if he dare not do this, then he (the abbot or reeve) - may pay the _bót_ that is claimed, and by performing this condition - he may obtain a transfer (_vicissitudo_) of the cause and do what - other justice remains to be done, i.e. he may exact the _wite_. So - in the second charter the abbot may pay the _bót_, the _singulare - pretium_, and so obtain a right to exact the wite:--he makes the - payment _ut talia_ [i.e. _witereden_] _accipiat_. In guessing that - _vicissitudo_ points to a transfer of a suit, we have in mind the - manner in which the Leges Henrici, 9 § 4, speak of the 'transition' - of causes from court to court. The case that is being dealt with by - these charters we take to be one in which an outsider in a - 'foreign' court sues one of the abbot's tenants. The abbot can - swear away the charge, or if he dares not do this, can obtain - cognizance of the cause (in the language of a later day _potest - petere curiam suam_) and therewith the right to the _wite_, but - must in this case pay the restitutory _bót_, or rather, perhaps, - find security that this shall be paid to the plaintiff in case he - is successful. The clause may also imply that a multiple _bót_ can - not be exacted from the immunist's men, e.g. such a _bót_ as we saw - the Abbot of Pershore exacting from the Westminster men; but this - is a minor question. - - -FOOTNOTES: - - [934] Adams, The Anglo-Saxon Courts of Law (Essays in Anglo-Saxon - Law, p. 1). Hallam, Middle Ages (ed. 1837), vol. ii. p. 416, - says that of the right of territorial jurisdiction 'we meet - frequent instances in the laws and records of the - Anglo-Saxons, though not in those of early date.' The one - charter older than Edward the Confessor that he cites is one - of the Croyland forgeries. Kemble's opinion seems to have - fluctuated; Saxons, i. 177 note, ii. 397, Cod. Dipl. i. - xliv-xlvii. K. Maurer, Krit. Ueberschau, ii. 57, thinks that - the existence of the private court is proved for Cnut's - reign, but not for any earlier time. Dr Stubbs, Const. Hist. - i. 119, seems to doubt whether it can be traced far beyond - the days of Cnut. Zinkeisen, Die Anfänge der - Lehngerichtsbarkeit in England (1893, a Berlin doctoral - dissertation), criticizes Mr Adams's theory. - - [935] Essays, pp. 43-4. - - [936] See above, p. 84. - - [937] K. 853 (iv. 208); E. 343. - - [938] The clearest instance is in the Waltham charter, K. 813 (iv. - 154), but some details of this are not beyond suspicion. See - also the writs for Westminster, K. 828 (iv. 191), 857 (iv. - 213); Ordn. Facs. vol. ii. pl. 9. - - [939] Charter for St. Edmund's, K. 1346 (vi. 205). See the account - of Bury St. Edmunds in D. B. ii. 372: 'et quaudo in hundreto - solvitur ad geltum 1 lib. tunc inde exeunt 60 den. ad victum - monachorum.' - - [940] First printed from a copy in the MacDurnan Gospels by J. O. - Westwood in Palaeographia Sacra, with a facsimile, plate 11. - Accepted by Kemble and printed by him in Archaeological - Journal, xiv. 61; Earle, 232; Freeman, Norman Conquest, ii. - 52. - - [941] See the writ for St. Paul's, K. 1319 (vi. 183). Mr Adams (p. - 44) stigmatizes this as an evident forgery; but the reasons - for this severe judgment are not apparent. See also K. 1321 - (vi. 190), and the Latin writ of Harthacnut K. 1330 (vi. 192), - which may have a genuine basis. - - [942] Cnut, II. 12 (Schmid, p. 276). - - [943] Thus if a statute requires written and signed evidence of an - agreement, a letter in which the writer says, 'True, I made - such and such an agreement, but I am not going to keep it,' - may be evidence enough; see _Bailey_ v. _Sweeting_, 9 C. B. N. - S. 843. - - [944] Brunner, Carta und Notitia (Commentationes in honorem T. - Mommsen); Brunner, Zur Rechtsgeschichte der Röm. u. Germ. - Urkunde. - - [945] Both the Angevin charter and the Angevin letters patent are in - what we call 'writ-form.' The main formal difference is that - the charter professes to be witnessed by a number of the - king's councillors, while _Teste Meipso_ does for letters - patent. This distinction is coming to the front about the year - 1200. - - [946] K. 731 (iv. 9); T. 308. - - [947] K. 642 (iii. 203); compare D. B. i. 41. - - [948] The Conqueror's charter for Exeter reproduced in Ordnance - Facsimiles, vol. ii. is a fine specimen of the solemn charters - referred to above. A considerable number of specimens, genuine - and spurious (for our present purpose a forgery is almost as - valuable as a true charter), will be found in the Monasticon, - e.g. i. 174, Rufus for Rochester; i. 266, Rufus for Bath; ii. - 109-111, 126, Henry I. for Abingdon; i. 163, Henry I. for - Rochester; ii. 65-6, Henry I. for Evesham; ii. 267, Henry I. - for Bath; ii. 539, Henry I. for Exeter; iii. 448, Henry I. for - Malvern; vi. (1) 247, Henry I. for Merton; iii. 406, Stephen - for Eye. Nor was this solemn form employed only by kings:--See - Monast. ii. 385-6, Earl Hugh for Chester; iii. 404, Robert - Malet for Eye; v. 121, Hugh de la Val for Pontefract; v. 167, - William of Mortain for Montacute; v. 190, Simon of Senlis for - St. Andrew Northampton; v. 247, Stephen of Boulogne for - Furness; v. 316, Richard Earl of Exeter for Quarr; v. 628, - Ranulf of Chester for Pulton. As to Normandy, see the charters - in the Neustria Pia and the Gallia Christiana. A charter of - Henry II. for Fontenay recites a charter by which the - ancestors of Jordan Tesson founded the abbey with the consent - of Duke William, also a charter of Duke William, 'quae cartae - crucibus sunt signatae secundum antiquam consuetudinem'; - Neustria Pia, p. 80; Gallia Christiana, xi. Ap. col. 82. It is - probable that during the Norman reigns the king's cross was - considered more valuable even than the king's seal; Monast. - iv. p. 18, Henry I. says, 'hanc donationem confirmo ego - Henricus rex et astipulatione sanctae crucis et appositione - sigilli mei'; Ibid. ii. 385-6, Earl Hugh confirms a gift 'non - solum sigillo meo sed etiam sigillo Dei omnipotentis, id est, - signo sanctae crucis.' It is not implied in our text that - every specimen of each of the two forms of instrument that we - have mentioned will always display all the characteristics - that have been noticed. There is no reason, for example, why - in a solemn charter the king should not speak in the past - tense of the act of gift, and as a matter of fact he does so - in some of the Anglo-Saxon books, while, on the other hand, an - instrument which begins with a salutation may well have the - words of gift in the present tense (this is by no means - uncommon in Anglo-Norman documents); nor of course is it - necessary that an instrument in writ-form should be - authenticated by a seal instead of a cross. Again, a solemn - charter with crosses and pious recitals may begin with a - salutation. We merely point out that the diplomata of Edward - the Confessor and his Norman successors tend to conform to two - distinct types. As to this matter see the remarks of Hickes, - Dissertatio Epistolaris, p. 77; Hardy, Introduction to Charter - Rolls, xiv., xxxvi. - - [949] The curious formula, Schmid, App. XI., already has 'ne sace ne - socne.' This seems to suppose that it is a common thing for a - man to have sake and soke over his land. - - [950] R. H. ii. 231. - - [951] R. H. ii. 458. - - [952] D. B. i. 172 b. - - [953] R. H. ii. 283. - - [954] Hale, Worcester Register, pp. xxx, 21 b; K. Appendix, 514 (vi. - 237); Hickes, Dissertatio Epistolaris, i. 86; at the end of - his dissertation Hickes gives a facsimile of the instrument. - - [955] A record of 825 (H. & S. iii. 596-601) mentions a place 'in - provincia Huicciorum' called Oslafeshlau; the editors of the - Councils say 'Oslafeshlau is probably the original name of the - hundred which now, either from some act of St. Oswald or by an - easy corruption, is called Oswaldslaw.' One of Oswald's books - (K. iii. 160) mentions 'Oswald's hlaw' among the boundaries of - Wulfringtune, i.e. Wolverton, a few miles east of Worcester. - It is very likely that the true name of the hundred is - Oswald's hlaw, i.e. Oswald's hill, not Oswald's law, though - the mistake was made at an early time. But the story told by - the charter as to the fusion of three old hundreds is - corroborated by Domesday, and in the thirteenth century one of - the three courts was still held at Wimborntree. - - [956] But Dr Stubbs, Const. Hist. i. 118, relies on part of this - charter and it is not like ordinary forger's work. If, as is - highly probable, there has been some 'improvement' of the - charter, such improvement seems to have favoured, not the - church of Worcester as against the king, but the monks as - against the bishop. - - [957] 'cum tolle et teame, saca et socne, et infangenetheof, et - proprii iuris debitum transgressionis, et poenam delicti quae - Anglice dicitur ofersæwnesse, et gyltwyte.' - - [958] D. B. i. 172 b: 'Ecclesia S. Mariae de Wirecestre habet unum - hundret quod vocatur Oswaldeslau in quo iacent ccc. hidae. De - quibus episcopus ipsius ecclesiae a constitutione antiquorum - temporum habet omnes redditiones socharum et omnes - consuetudines inibi pertinentes ad dominicum victum et regis - servitium et suum, ita ut nullus vicecomes ullam ibi habere - possit querelam, nec in aliquo placito, nec in alia qualibet - causa. Hoc testatur totus comitatus.' - - [959] Another example is Edgar's charter for Ely, A.D. 970 K. 563 - (iii. 56), which bestows the soke over the two hundreds which - lie within the Isle, five hundreds in Essex, and all other - lands of the monastery. Kemble was inclined to accept the - A.-S. version of the charter. It purports to be obtained by - bishop Æthelwold and, if genuine, is closely connected with - the Oswaldslaw charter; both testify to unusual privileges - obtained by the founders of the new monasticism. - - [960] E.g. K. 1298 (vi. 149), 'Dis is seo freolsboc to ðan mynstre - æt Byrtune.' - - [961] E.g. K. 277 (ii. 58), 278 (ii. 60). - - [962] A.D. 875; K. 306 (ii. 101); B. ii. 159. - - [963] Unsuspected charters of the seventh and eighth centuries are - so few, that we hardly dare venture on any generalities about - their wording. But already in a charter attributed to 674, E. - p. 4, Brit. Mus. Facs. iv. 1, something very like the 'common - form' of later days appears; it appears also in a charter of - A.D. 691-2, K. 32 (i. 35), E. p. 12, of which we have but a - fragmentary copy, and before the end of the eighth century it - appears with some frequency; see e.g. Offa's charter of 774, - K. 123 (i. 150): 'sit autem terra illa libera ab omni - saecularis rei negotio, praeter pontis, arcisve restaurationem - et contra hostes communem expeditionem.' - - [964] Occasionally the contrast is expressly drawn, e.g. by - Æthelbald, K. 90 (i. 108): 'ut ab omni tributo vectigalium - operum onerumque _saecularium_ sit libera ... tantum ut Deo - omnipotenti ex eodem agello _aecclesiasticae_ servitutis - famulatum inpendat.' - - [965] See above, p. 229. - - [966] Privilege of Wihtræd, A.D. 696-716, Haddan and Stubbs, iii. - 238: 'Adhuc addimus maiorem libertatem. Inprimis Christi - ecclesiae cum omnibus agris ad eam pertinentibus, similiter - Hrofensi ecclesiae cum suis, caeterisque praedictis omnibus - ecclesiis Dei nostri, subiciantur pro salute animae meae, - meorumque praedecessorum, et pro spe caelestis regni ex hac - die, et deinceps concedimus et donamus ab omnibus - difficultatibus saecularium servitutis, a pastu Regis, - principum, comitum, nec non ab operibus, maioribus minoribusve - gravitatibus: et ab omni debitu vel pulsione regum tensuris - liberos eos esse perpetua libertate statuimus.' See also the - act by which Æthelbald confirmed this privilege in 742, H. & - S. iii. 340, B. i. 233-6. According to one version of this - act, the _trinoda necessitas_ is, according to another it is - not, excepted. The learned editors of the Councils speak of - 'the suspicions common to every record that notices the - Privilege of Wihtræd.' We are treading on treacherous ground. - See also the less suspicious Act of Æthelbald, A.D. 749, H. & - S. iii. 386: 'Concedo ut monasteria et aecclesiae a publicis - vectigalibus et ab omnibus operibus oneribusque, auctore Deo, - servientes absoluti maneant, nisi sola quae communiter fruenda - sunt, omnique populo, edicto regis, facienda iubentur, id est, - instructionibus pontium, vel necessariis defensionibus arcium - contra hostes, non sunt renuenda.' - - [967] A.D. 1066, Edward the Confessor for Westminster, K. 828 (iv. - 191): 'scotfre and gavelfre.' - - [968] Kemble, Codex, vol. i. Introduction liii-lvi., collects some - of the best instances. Offa for a valuable consideration frees - certain lands belonging to the church of Worcester from - _pastiones_; 'nec non et trium annorum ad se pertinentes - pastiones, id est sex convivia, libenter concedendo largitus - est': K. 143 (i. 173), B. i. 335. - - [969] A.D. 904, K. 1084 (v. 157). - - [970] A.D. 826, Egbert for Winchester, K. 1037 (v. 81): 'Volo etiam - ut haec terra libera semper sit ... nullique serviat nisi soli - episcopo Wentano.' - - [971] K. 1346 (vi. 205). Compare Fustel de Coulanges, L'Immunité - Mérovingienne, Revue historique, xxiii. 21. - - [972] E.g. K. 1117 (v. 231): 'tribus semotis causis a quibus nullus - nostrorum poterit expers fore'; K. v. pp. 259, 283, 334. - - [973] To this class belong the foundation charter of Evesham - mentioned above, p. 235, and Offa's charter for St. Albans, K. - 161 (i. 195), which Haddan and Stubbs, iii. 469, are unwilling - to decisively reject. Cenwulf's charter for Abingdon, K. 214 - (i. 269), H. & S. iii. 556, sets a limit to the amount of - military service that is to be demanded. Æthelstan's charter - for Crediton, recently printed by Napier and Stevenson, - Crawford Charters, p. 5, frees land from the _trinoda - necessitas_. - - [974] E.g. K. i. p. 274; ii. pp. 14, 15, 24, 26, 83; v. pp. 53, 62, - 81. - - [975] Observe how Bede describes a gift made by Oswy in the middle - of the seventh century; Hist. Eccl. iii. 24 (ed. Plummer, i. - 178): 'donatis insuper duodecim possessiunculis terrarum in - quibus _ablato studio militiae terrestris_, ad exercendam - militiam caelestem etc.' - - [976] The passages in the dooms which mention it are collected in - Schmid, Glossar, s. v. _ángild_. They are discussed by Maurer, - Krit. Ueberschau, ii. 32. - - [977] The clauses of immunity which mention the _ángild_ will be - collected in a note at the end of this section. - - [978] K. 210 (i. 265); B. i. 497; H. & S. iii. 585. The clause in - question is not found in every copy of the charter. If some - monk is to be accused of tampering with the book, there seems - just as much reason for charging him with having omitted a - clause which limited, as for charging him with inserting a - clause which recognized, the jurisdiction of the church. - - [979] These clauses will be discussed in a note at the end of this - section. - - [980] A.D. 841, K. 250 (ii. 14): 'Liberabo ab omnibus saecularibus - servitutibus ... regis et principis vel iuniorum eorum, nisi - in confinio reddant rationem contra alium.' Compare K. 117 (i. - 144): 'nisi specialiter pretium pro pretio ad terminum.' Also - Leg. Henr. 57 § 1: 'Si inter compares vicinos utrinque sint - querelae, conveniant ad divisas.' Ibid. 57 § 8: 'aliquando in - divisis vel in erthmiotis.' Ibid. 9 § 4: 'Et omnis causa - terminetur, vel hundreto, vel comitatu, vel hallimoto soccam - habentium, vel dominorum curiis, vel divisis parium.' See - above, p. 97. - - [981] A.D. 828, K. 223 (i. 287): 'cum furis comprehensione intus et - foris'; A.D. 842, K. 253 (ii. 16) 'ut ... furis comprehensione - ... terra secura et immunis ... permaneat'; A.D. 850, K. 1049 - (v. 95) a similar form; A.D. 858, K. 281 (ii. 64), a similar - form; A.D. 869, K. 300 (ii. 95), a similar form; A.D. 880, K. - 312 (ii. 109): 'cum furis comprehensione.' See Kemble's - remarks, C. D. vol. i. p. xlvi. - - [982] Hist. Eng. Law, i. 565. - - [983] K. 1084 (v. 157); B. ii. 272: 'Christo concessi ut episcopi - homines tam nobiles quam ignobiles in praefato rure degentes - hoc idem ius in omni haberent dignitate quo regis homines - perfruuntur regalibus fiscis commorantes, et omnia saecularium - rerum iudicia ad usus praesulum exerceantur eodem modo quo - regalium negotiorum discutiuntur iudicia.' Similar words occur - in a confirmation by Edgar, K. 598 (iii. 136), which Kemble - rejects. This contains an English paraphrase of the Latin - text. - - [984] Compare K. 821 (iv. 171): 'swa freols on eallan thingan eall - swa thaes cinges agen innland.' - - [985] Hist. Eng. Law, i. 570. - - [986] Hist. Eng. Law, i. 580. - - [987] Few questions in Frankish history have been more warmly - contested than this, whether the immunist had a jurisdiction - within his territory. On the one hand, it has been contended - that there is no evidence older than 840 that he exercised - jurisdiction even as between the inhabitants of that - territory. On the other hand, it has been said that already in - 614 he has civil jurisdiction in disputes between these - inhabitants, besides a criminal jurisdiction over them, which - however does not extend to the graver crimes. A few references - will suffice to put the reader in the current of this - discussion; Löning, Geschichte des Deutschen Kirchenrechts, - ii. 731; Brunner, D. R. G. ii. 298; Schröder, D. R. G. 174; - Beauchet, Histoire de l'organisation judiciaire en France, 74; - Beaudoin, Étude sur les origines du regime féodal (Annales de - l'enseignement supérieur de Grenoble, vol. i. p. 43); Fustel - de Coulanges, L'Immunité Mérovingienne (Revue Historique, - xxii. 249, xxiii. I). One of the most disputed points is the - character of the court held by an abbot, which is put before - us by the very ancient Formulae Andecavenses, a collection - attributed to the sixth or, at the latest, to the early years - of the seventh century. It has been asserted and denied that - this abbot of Angers is exercising the powers given to him by - an immunity; some have said that he, or rather his steward, is - merely acting as an arbitrator; Brunner, Forschungen, 665, - explains him as one of the _mediocres iudices_ of decaying - Roman law. On the whole, the balance of learning is inclining - to the opinion that, even in the Merovingian time, there were - great churches and other lords with courts which wielded power - over free men, and that the 'immunities,' even if they were - not intended to create such courts, at all events made them - possible, or, as Fustel says, consecrated them. - - [988] Madox, Hist. Exch. i. 109; Bigelow, Placita Anglo-Normannica, - 114. - - [989] Hist. Eng. Law, i. 224-30. - - [990] Nissl, Der Gerichtsstand des Clerus im Fränkischen Reich, 247. - - [991] K. 214 (i. 269); 236 (i. 312). - - [992] Edw. & Guth. 4; Leg. Henr. II, § 5. - - [993] D. B. i. 26. - - [994] Chron. de Bello, 26-7: 'Et si forisfacturae Christianitatis - quolibet modo infra leugam contigerint, coram abbate - definiendae referantur. Habeatque ecclesia S. Martini - emendationem forisfacturae; poenitentiam vero reatus sui rei - ab episcopo percipiant.' - - [995] Battle Custumals (Camden Soc.), 126: 'Septem hundreda non - habent fossas nisi apud Wy, et ideo habemus ij. denarios: - Archiepiscopus tamen et Prior de novo trahunt homines suos ad - fossas: Abbas de S. Augustino non habet.' - - [996] c. 3, X. 5, 37: 'Accepimus ... quod archidiaconi Conventrensis - episcopatus ... in examinatione ignis et aquae triginta - denarios a viro et muliere quaerere praesumunt.' - - [997] Cnut II. 12-15. - - [998] Hist. Eng. Law, i. 564. - - [999] Beaudoin, op. cit. p. 94 ff. - - [1000] Æthelstan, II. 2. - - [1001] Konrad Maurer, Krit. Ueberschau, ii. 30 ff. - - [1002] Æthelstan, II. 3. Observe how in the Latin version 'se - blaford the rihtes wyrne' becomes 'dominus qui rectum - difforciabit.' - - [1003] K. Maurer, Krit. Ueberschau, ii. 32, 40, 41. Ine, 22, is of - great importance on account of its antiquity. - - [1004] D. B. ii. 18 b: 'inde vocat dominum suum ad tutorem.' See - above, p. 71. - - [1005] Leg. Henr. 57, § 8; 82, §§ 4, 5, 6. - - [1006] See above, p. 89. - - [1007] Æthelstan, VI. (Iudicia Civitatis Lundoniae), 1. - - [1008] Æthelred, I. 1, § 7. - - [1009] Edgar, I. 2, 3; III. 7; IV. 2, § 8; Æthelred, I. 1; III. 3, - 4, 7. - - [1010] Æthelred, III. 3, 4. - - [1011] Æthelred, III. 7. - - [1012] Edgar, IV..= 2, § 11; Æthelred, I. 3. - - [1013] D. B. i. 154. See above, p. 92. - - [1014] See above, p. 275. - - [1015] Northumbrian Priests' Law, Schmid, App. II. 48-9. - - [1016] Ibid. 57, 58. See also the texts which give the lord a share - with the bishop in the penalty for neglect to pay tithe, viz. - Edgar, II. 3; Æthelred, VIII. 8; Cnut, I. 8. - - [1017] K. 498 (ii. 386). - - [1018] See above, p. 100. - - [1019] The Archbishop of York, the bishops of Durham, Chester, - Lincoln and (for one manor) Salisbury, the abbots of York, - Peterborough, Ramsey, Croyland, Burton and (for one manor) - Westminster. - - [1020] D. B. i. 280 b; i. 337. - - - - -§ 4. _Book-land and Loan-land._ - - -[The book and the gift.] - -We can not say that from the first the gift of book-land establishes -between the donee and the royal donor any such permanent relation as -that which in later times is called tenure. What the king gives he -apparently gives for good and all. In particular, a gift of land to a -church is 'an out and out gift'; nay more, it is a dedication. Still, -even within the sphere of piety and alms, we sometimes find the notion -that in consequence of the gift the donee should do something for the -donor. Cnut frees the lands of the church of Exeter from all burdens -except military service, bridge-repair and 'assiduous prayers[1021],' -and thus the title by which the churches hold their lands is already -being brought under the rubric _Do ut des_. Turning to the books granted -to laymen, we see that, at all events from the middle of the tenth -century onwards, they usually state a _causa_, or as we might say 'a -consideration,' for the gift. Generally the gift is 'an out and out -gift.' Words are used which expressly tell us that the donee is to enjoy -the land during his life and may on his death give it to whomsoever he -chooses. Nothing is said about his paying rent or about his rendering in -the future any service to the king in return for the land. The -'consideration' that is stated in the instrument is, if we may still use -such modern terms, 'a past consideration.' The land comes rather as a -reward than as a retaining fee. Sometimes indeed the thegn pays money to -the king and is in some sort a buyer of the land, though the king will -take credit for generosity and will talk of giving rather than of -selling[1022]. More often the land comes as a reward to him for -obedience and fidelity or fealty. Already the word _fidelitas_ is in -common use; we have only to render it by _fealty_ and the transaction -between the king and his thegn will be apt to look like an infeudation, -especially when the thegn is described by the foreign term -_vassallus_[1023]. Even the general rule that the king is rewarding a -past, rather than stipulating for a future fealty, is not unbroken. Thus -as early as 801 we find Cenwulf of Mercia and Cuthræd of Kent giving -land to a thegn as a perpetual inheritance 'but so that he shall remain -a faithful servant and unshaken friend to us and our magnates[1024].' So -again, in 946 King Edmund gives land to a faithful _minister_ 'in order -that while I live he may serve me faithful in mind and obedient in deed -and that after my death he may with the same fealty obey whomsoever of -my friends I may choose[1025].' The king, it will be seen, reserves the -right to dispose by will of his thegn's fealty. A continuing relation is -established between the king and his successors in title on the one -hand, the holder of the book-land and his successors in title on the -other. - -[Book-land and service.] - -However, as already said, the gift supposes that the personal -relationship of lord and thegn already exists between the donor and the -donee before the gift is made. This relationship was established by a -formal ceremony; the thegn swore an oath of fealty, and it is likely -that he bent his knee and bowed his head before his lord[1026]. The -Normans saw their homage in the English commendation[1027]. The fidelity -expected of the thegn is not regarded as a debt incurred by the receipt -of land. And if the king does not usually stipulate for fidelity, still -less does he stipulate for any definite service, in particular for any -definite amount of military service. The land is not to be free of -military service:--this is all that is said. However, to say this is to -say that military service is already a burden on land. Already it is -conceivable--very possibly it is true--that some of the lands of the -churches have been freed even from this burden[1028]. What is more, if -we may believe the Abingdon charters, the ninth century is not far -advanced before the king is occasionally making bargains as to the -amount of military service that the lands of the churches shall render. -Abingdon need send to the host but twelve vassals and twelve -shields[1029]. Likewise we see that on the eve of the Conquest, though -other men who neglected the call to arms might escape with a fine of -forty shillings, it was the rule, at least in Worcestershire, that the -free man who had sake and soke and could 'go with his land whither he -would' forfeited that land if he was guilty of a similar default[1030]. -With this we must connect those laws of Cnut which say that the man who -flees in battle, as well as the man who is outlawed, forfeits his -book-land to the king, no matter who may be his lord[1031]. - -[Military service.] - -Such rules when regarded from one point of view may well be called -feudal. Book-land having been derived from, is specially liable to -return to the king. It will return to him if the holder of it be guilty -of shirking his military duty or of other disgraceful crime. To this we -may add that if these rules betray the fact that the holder of this -king-given land may none the less have commended himself and his land to -some other lord against whose claims the king has to legislate, thereby -they disclose a feudalism of the worst, of the centrifugal kind. The -ancient controversy as to whether 'the military tenures' were 'known to -the Anglo-Saxons' is apt to become a battle over words. The old power of -calling out all able-bodied men for defensive warfare was never -abandoned; but it was not abandoned by the Norman and Angevin kings. The -holder of land was not spoken of as holding it by military service; but -it would seem that in the eleventh century the king, save in some -pressing necessity, could only ask for one man's service from every five -hides, and the holder of book-land forfeited that land if he disobeyed a -lawful summons[1032]. Whether a man who will lose land for such a cause -shall be said to hold it by military service is little better than a -question about the meaning of words. At best it is a question about -legal logic. We are asked to make our choice (and yet may doubt whether -our ancestors had made their choice) between the ideas of misdemeanour -and punishment on the one hand and the idea of reentry for breach of -condition on the other. - -[Escheat of book-land.] - -The same vagueness enshrouds the infancy of the escheat _propter -defectum tenentis_. Already in 825 a king tells how he gave land to one -of his _praefecti_ who died intestate and without an heir, 'and so that -land by the decree of my magnates was restored to me who had before -possessed it[1033].' Here we seem to see the notion that when a gift has -spent itself, when there is no longer any one who can bring himself -within the words of donation, the given land should return to the giver. -In another quarter we may see that when the king makes a gift he does -not utterly abandon all interest in the land that is given. Cenwulf of -Mercia in a charter for Christ Church at Canterbury tells us that King -Egbert gave land to a certain thegn of his who on leaving the country -gave it to the minster; but that Offa annulled this gift and gave away -the land to other thegns, saying that it was unlawful for a thegn to -give away without his lord's witness (_testimonio_) the land given to -him by his lord[1034]. Cenwulf restored the land to the church; but he -took money for it, and he does not say that Offa had acted illegally. -There is much to show that the 'restraint on alienation' is one of the -oldest of the 'incidents of tenure.' Our materials do not enable us to -formulate a general principle, but certain it is that the holders of -book-land, whether they be laymen or ecclesiastics, very generally -obtain the consent of the king when they propose to alienate their land -either _inter vivos_ or by testament. We may not argue from this to any -definite condition annexed to the gift, or to any standing relationship -between the donor and the donee like the 'tenure' of later times. After -all, it is a very natural thought that a reward bestowed by the king -should not be sold or given away. The crosses and stars with which -modern potentates decorate their _fideles_, we do not expect to see -these in the market[1035]. The land that the king has booked to his -thegn is an 'honour' and the giver will expect to be consulted before it -passes into hands that may be unworthy of it. It may be just because the -gift of book-land is made by the king and corroborated by all the powers -of church and state, that the book is conceived as exercising a -continuous sway over the land comprised in it. The book, it has well -been said, is the _lex possessionis_ of that land[1036]. It can make the -land descend this way or that way, and the land will come back to the -king if ever the power of the book be spent. What is more, from the -first we seem to see a germ of our famous English rule that if a gift be -made without 'words of inheritance' the gift will endure only during the -life of the donee:--will endure, we say, for a gift is no mere act done -once for all but a force that endures for a longer or a shorter period. -Certain it is that most of the charters are careful to say that the gift -is not thus to come to an end but is to go on operating despite the -donee's death[1037]. - -[Alienation of book-land.] - -And even when, as is generally the case, the book made in favour of a -lay-man says that the donee is to have the power of leaving the land to -whomsoever he may please, or to such heirs as he may choose, we still -must doubt whether his testamentary power is utterly unrestrained, -whether he will not have to consult the royal donor when he is making -his will. The phenomena which we have here to consider are very obscure, -because we never can be quite certain why it is that a testator is -seeking the king's aid. We have to remember that the testament is an -exotic, ecclesiastical institution which is likely to come into -collision with the ancient folk-law. From an early time the church was -striving in favour of the utmost measure of testamentary freedom, for -formless wills, for nuncupative wills[1038]. The very largeness of its -claims made impossible any definite compromise between church-right and -folk-right. So far as we can see, no precise law is evolved as to when -and how and over what a man may exercise a power of testation. The -church will support testaments of the most formless kind; on the other -hand, the heirs of the dead man will endeavour, despite the anathema, to -break his will, and sometimes they will succeed[1039]. Consequently the -testator will endeavour to obtain the crosses of the bishops and the -consent of the king. He has already a book which tells him that he may -leave the land to a chosen heir; but if he be prudent he will not trust -to this by itself. Kings change their minds. - -[The heriot and the testament.] - -Then the law about heriots complicates the matter. The heriot has its -origin in the duty of the dying thegn or of his heirs to return to his -lord the arms which that lord has given or lent to him. We have to use -some such vague phrase as 'given or lent'; we dare not speak more -precisely[1040]. A time comes when the king provides his thegn, no -longer with arms, but with land; still the heriot is rendered[1041]. In -the tenth century this render is closely connected with the exercise of -testamentary power. The thegn offers a heriot with a prayer that 'his -will may stand.' He presents swords and money to the king in order that -he may be worthy of his testament[1042]. When we find such phrases as -this, we can not always be certain that the land of which the testator -is going to dispose is land over which a book purports to give him -testamentary power; he may be hoping that the king's aid will be -sufficient to enable him to bequeath the unbooked land that he -holds[1043]. In other cases he may be endeavouring to dispose of lands -that have merely been 'loaned' to him for his life by the king. But this -will hardly serve to explain all the cases, and we so frequently find -the holder of book-land applying for the king's consent when he is going -to make an alienation of it _inter vivos_ that we need not marvel at -finding a similar application made when he is about to execute a -testament[1044]. - -[The gift and the loan.] - -This having been said, we shall not be surprised to find that in ancient -times the difference between a gift of land and a loan of land was not -nearly so well marked as it would be by modern law. The loan may be -regarded as a temporary gift, the gift as a very permanent, if not -perpetual, loan. We know how this matter looks in the law of Bracton's -age. By feoffment one gives land to a man for his life, or one gives it -to him and the heirs of his body, or to him and his heirs: but in any -case, the land may come back to the giver. The difference between the -three feoffments is a difference in degree rather than in kind; one will -operate for a longer, another for a shorter time; but, however absolute -the gift may be, the giver never parts with all his interest in the -land[1045]. Or we may put it in another way:--in our English law -usufruct is a temporary _dominium_ and _dominium_ is a usufruct that may -be perpetual. Or, once more, adopting the language of modern statutes, -we may say that the tenant for life is no usufructuary but 'a limited -owner.' We are accustomed to bring this doctrine into connexion with -rules about dependent tenure:--the donor, we say, retains an interest in -the land because he is the tenant's lord. But, on looking at the ancient -land-books, we may find reason to suspect that the confusion of loans -with gifts and gifts with loans (if we may speak of confusion where in -truth the things confounded have never as yet been clearly -distinguished) is one of the original germs of the rule that all land is -held of the king. After all, the king--and he is by far the greatest -giver in the country and his gifts are models for all gifts--never can -really part with all the rights that he has in the land that he gives, -for he still will be king of it and therefore in a sense it will always -be part of his land. To maintain a sharp distinction between the rights -that he has as king and the rights that he has as landlord, -jurisprudence is not as yet prepared.--But we must look at the land-loan -more closely. - -[The _precarium_.] - -Foreign historians have shown how after the barbarian invasions one -single form of legal thought, or (if we may borrow a term from them), -one single legal 'institute' which had been saved out of the ruins of -Roman jurisprudence, was made to do the hard duty of expressing the most -miscellaneous facts, was made to meet a vast multitude of cases in -which, while one man is the owner of land, another man is occupying and -enjoying it by the owner's permission. This institute was the -_precarium_. Originally but a tenancy at will, it was elaborated into -different shapes which, when their elaboration had been completed, had -little in common. For some reason or another one begs (_rogare_) of a -landowner leave to occupy a piece of land; for some reason or another -the prayer is granted, the grantor making a display of generosity and -speaking of his act as a 'benefit' (_beneficium_), an act of good-nature -and liberality. An elastic form is thus established. The petitioner may, -or may not, promise to pay a rent to his benefactor; the benefactor may, -or may not, engage that the relationship shall continue for a fixed term -of years, or for the life of the petitioner or for several lives. -Usually this relationship between petitioner and benefactor is -complicated with the bond of patronage: the former has commended himself -to the latter, has come within his power, his protection, his trust -(_trustis_), has become his _fidelis_, his _homo_. At a later time the -inferior is a _vassus_, the superior is his _senior_, for the word -_vassus_, which has meant a menial servant, spreads upwards. Then the -_precarium_, as it were, divides itself into various channels. One of -its streams encompasses the large province of humble tenancies, wherein -the peasants obtain land from the churches and other owners on more or -less arduous conditions, or reserve a right to occupy so long as they -live the lands that they have given to the saints. Another stream sweeps -onward into the domain of grand history and public law. The noble -obtains a spacious territory, perhaps a county, from the king by way of -'benefaction'; the _precarium_ becomes the _beneficium_, the -_beneficium_ becomes the _feudum_[1046]. The king can not prevent the -_beneficia_, the _feuda_, from becoming hereditary. - -[The English land-loan.] - -The analogous English institution was the _l[´æ]n_ 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 _l[´æ]nan_ and _l[´æ]tan_ were used[1050], such words as -_conferre_, _concedere_, _tribuere_, _largiri_ and _donare_ were also -used[1051]. A loan is a temporary gift, and the nature of the -transaction remains the same whether the man to whom the loan is made -does, or does not, come under the obligation of paying rent or -performing services. - -[Loans of church lands to the great.] - -Unfortunately our materials only permit us to study one branch of the -loan; the aristocratic branch we may call it. No doubt the lords, -especially the churches, are from an early time letting or 'loaning' -lands to cultivators. Specimens of such agricultural leases we do not -see and cannot expect to see, for they would hardly be put into writing. -But at an early time we do see the churches loaning lands, and wide -lands, to great men. This is a matter of much importance. One other -course in the feudal edifice is thus constructed. We have seen the -churches interposed between the king and the cultivators of the soil; -the churches have become landlords with free land-holders under them. -And now it is discovered that the churches have a superiority which they -can lend to others. We see already a four-storeyed structure. There are -the cultivator, the church's thegn, the church, the king. Very great men -think it no shame to beg boons from the church. Already before 750 the -bishop of Worcester has granted five manses to 'Comes Leppa' for -lives[1052]; before the century is out the abbot of Medeshamstead has -granted ten manses to the 'princeps' Cuthbert for lives[1053]. In 855 -the bishop of Worcester gives eleven manses to the ealdorman of the -Mercians and his wife for their lives[1054]; in 904 a successor of his -makes a similar gift[1055]. But we have seen that the king himself was -not above taking a loan from the church. Indeed powerful men insist on -having loans, and the churches, in order to protect themselves against -importunities, obtain from the king this among their other immunities, -namely, that no lay man is to beg boons from them, or that no lease is -to be for longer than the lessee's life[1056]. In such cases we may -also see the working of a second motive: the church is to be protected -against the prodigality of its own rulers. The leases made by the -prelates seem usually to have been for three lives. This compass is so -often reached, so seldom exceeded[1057] that we may well believe that -the English church had accepted as a rule of sound policy, if not as a -rule of law, the novel of Justinian which set the limit of three lives -to leases of church lands[1058]. - -[The consideration for the loan.] - -Occasionally the lease is made in consideration of a sum of money paid -down; occasionally the recipient of the land comes under an express -obligation to pay rent. An early example shows us the abbot of -Medeshamstead letting ten manses to the 'princeps' Cuthbert for lives in -consideration of a gross sum of a thousand shillings and an annual -_pastus_ or 'farm' of one night[1059]. The bishop of Worcester early in -the ninth century concedes land to a woman for her life on condition -that she shall cleanse and renovate the furniture of the church[1060]. -On the other hand, when land is 'loaned' to a king or a great nobleman, -this may be in consideration of his patronage and protection; the church -stipulates for his _amicitia_[1061]. We may say that he becomes the -_advocatus_ of the church, and the patronage exercised by kings and -nobles over the churches is of importance, though perhaps it was not -quite so serious a matter in England as it was elsewhere. - -[St. Oswald's loans.] - -But from our present point of view by far the most interesting form that -the loan takes is the loan to the thegn or the _cniht_. Happily it falls -out that we have an excellent opportunity of studying this institution. -We recall the fact that by the gifts of kings and underkings the church -of Worcester had become entitled to vast tracts of land in -Worcestershire and the adjoining counties. Now between the years 962 and -992 Bishop Oswald granted at the very least some seventy loans -comprising in all 180 manses or thereabouts[1062]. In almost all cases -the loan was for three lives. In a few cases the recipient was a kinsman -of the bishop, in a few he was an ecclesiastic; far more generally he is -described as 'minister meus,' 'fidelis meus,' 'cliens meus,' 'miles -meus,' 'my knight,' 'my thegn,' 'my true man.' When the 'cause' or -consideration for the transaction is expressed it is 'ob eius fidele -obsequium' or 'pro eius humili subiectione atque famulatu': a recompense -is made for fealty and service. Any thing that could be called a -stipulation for future service is very rare. A definite rent is seldom -reserved[1063]. Sometimes the bishop declares that the land is to be -free from all earthly burdens, save service in the host and the repair -of bridges and strongholds. To those excepted imposts he sometimes adds -church-scot, or the church's rent, without specifying the amount. -Sometimes he seems to go further and to say that the land is to be free -from everything save the church's rent (_ecclesiasticus census_)[1064]. -In so doing he gives a hint that the recipients of the lands will have -something to pay to, or something to do for the church. Were it not for -this, we might well think that these loans were made solely in -consideration of past services, of obedience already rendered, and that -at most the recipient undertook the vague obligation of being faithful -and obsequious in the future. - -[St. Oswald's letter to Edgar.] - -But happily for us St. Oswald was a careful man of business and put on -record in the most solemn manner the terms on which he made his -land-loans. The document in which he did this is for our purposes the -most important of all the documents that have come down to us from the -age before the Conquest[1065]. It takes the form of a letter written to -King Edgar. We will give a brief and bald abstract of it[1066]:--'I am -(says the bishop) deeply grateful to you my lord, for all your -liberality and will remain faithful to you for ever. In particular am I -grateful to you for receiving my complaint and that of God's holy Church -and granting redress by the counsel of your wise men[1067]. Therefore I -have resolved to put on record the manner in which I have been granting -to my faithful men for the space of three lives the lands committed to -my charge, so that by the leave and witness of you, my lord and king, I -may declare this matter to the bishops my successors, and that they may -know what to exact from these men according to the covenant that they -have made with me and according to their solemn promise. I have written -this document in order that none of them may hereafter endeavour to -abjure the service of the church. This then is the covenant made with -the leave of my lord the king and attested, roborated and confirmed by -him and all his wise men. I have granted the land to be held under me -(_sub me_) on these terms, to wit, that every one of these men shall -fulfil the whole law of riding as riding men should[1068], and that they -shall pay in full all those dues which of right belong to the church, -that is to say _ciricsceott_, _toll_, and _tace_ or _swinscead_, and all -other dues of the church (unless the bishop will excuse them from any -thing), and shall swear that so long as they possess the said land they -will be humbly subject to the commands of the bishop. What is more, they -shall hold themselves ready to supply all the needs of the bishop; they -shall lend their horses; they shall ride themselves, and be ready to -build bridges and do all that is necessary in burning lime for the work -of the church[1069]; they shall erect a hedge for the bishop's hunt and -shall lend their own hunting spears whenever the bishop may need them. -And further, to meet many other wants of the bishop, whether for the -fulfilment of the service due to him or of that due to the king, they -shall with all humility and subjection be obedient to his domination and -to his will[1070], in consideration of the benefice that has been loaned -to them, and according to the quantity of the land that each of them -possesses. And when the term for which the lands are granted has run -out, it shall be in the bishop's power either to retain those lands for -himself or to loan them out to any one for a further term, but so that -the said services due to the church shall be fully rendered. And in case -any shall make wilful default in rendering the aforesaid dues of the -church, he shall make amends according to the bishop's _wite_[1071] or -else shall lose the gift and land that he enjoyed. And if any one -attempt to defraud the church of land or service, be he deprived of -God's blessing unless he shall make full restitution. He who keeps this, -let him be blessed; he who violates this, let him be cursed: Amen. Once -more, my lord, I express my gratitude to you. There are three copies of -this document; one at Worcester, one deposited with the Archbishop of -Canterbury and one with the Bishop of Winchester.' - -[Feudalism in Oswaldslaw.] - -Now we may well say that here is feudal tenure. In the first place, we -notice a few verbal points. The recipient of the _l[´æ]n_ 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. _L[´æ]nland_ 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 _l[´æ]n_. 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 _l[´æ]nland_[1089]. A similar deed of 985 contains a similar -statement; five hides which Eadric held as _l[´æ]nland_ 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 _l[´æ]nland_[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 _l[´æ]nland_. 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 _l[´æ]nland_ commits a -grave crime, his land reverts, or escheats or is forfeited to the man -who made the _l[´æ]n_[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 _l[´æ]n_ may well wish to -be protected, not merely by writing, but by Christ's rood. When -therefore Bishop Oswald grants a written lease to one of his thegns who -heretofore has been in enjoyment of the land but has had no charter to -show for it, we may well say that in the future this thegn will have -book-land, though at the same time he has but loan-land. We have no -scruple about charging our ancestors with having a confused terminology. -The confusion is due to a natural development; 'books' were formerly -used only for one purpose, they are beginning to be used for many -purposes, and consequently 'book-land' may mean one thing in one -context, another in another. We may say that every one who holds under a -written document holds book-land, or we may still confine the name -'book' to that class of books which was at one time the only class. The -king's charters, the king's privileges, have been the only books; they -are still books in a preeminent sense. Just so in later days men will -speak of 'tenure in capite' when what they really mean is 'tenure in -capite of the crown by military service[1099].' - -[The gift and the loan.] - -But there is a deeper cause of perplexity. Once more we must repeat that -the gift shades off into the loan, the loan into the gift. The loan is a -gift for a time. It is by words of donation ('I give,' 'I grant') that -Oswald's _beneficia_ are _praestita_ to his knights and thegns. -Conversely, the king's most absolute gift leaves something owing and -continuously owing to him; it may be prayers, it may be fealty and -obedience. And having considered by how rarely good fortune it is that -we know the terms of Oswald's land-loans, how thoroughly we might have -mistaken their nature but for the preservation of a single document, we -shall be very cautious in denying that between many of the holders of -book-land and the king there was in the latter half of the tenth century -a relationship for which we have no other name than feudal tenure. If -Oswald's charters create such a tenure, what shall we say of the -numerous charters whereby Edred, Edwy, Edgar and Æthelred grant land to -their thegns in consideration of fealty and obedience? Must not these -thegns fulfil the whole _lex equitandi_; will they not lose their lands -if they fail in this service? True that the rights conferred upon them -are not restrained within the compass of three lives but are heritable -_ad infinitum_. But does this affect the character of their tenure? Can -we--we can not in more recent times--draw any inference from 'the -_quantum_ of the estate' to 'the quality of the tenure'? On the whole, -we are inclined to believe that the practice of loaning lands affected -the practice of giving lands, there being no sharp and formal -distinction between the gift and the loan, and that when Edward the -Confessor died no great injustice would have been done by a statement -that those who held their lands by royal books held their lands 'of' the -king. This at least we know, that the formula of dependent tenure ('_A_ -holds land of _B_') was current in the English speech of the Confessor's -days and that some of the king's thegns held their land 'of' the -king[1100]. We may guess that those old terms 'book-land' and -'loan-land' would soon have disappeared even from an unconquered -England, for it was becoming plain that the book bears witness to a -loan. A new word was wanted; that word was _feudum_. - -FOOTNOTES: - - [1021] K. 729 (iv. 3). - - [1022] It is noticeable that the verb _syllan_ usually means 'to - give.' Words such as _vendere_ are avoided. - - [1023] A.D. 941, K. 390 (ii. 234) condemned by Kemble: 'amabili - vassallo meo.'--A.D. 952, K. 431 (ii. 302): 'cuidam - vassallo.'--A.D. 956? K. 462 (ii. 338): 'meo fideli - vassallo.'--A.D. 967, K. 534 (iii. 11): 'meo fideli - vassallo.'--A.D. 821, K. 214 (i. 269): 'expeditionem cum 12 - vassallis et cum tantis scutis exerceant.' After the Norman - Conquest the word is very rare in our legal texts. - - [1024] K. 179 (i. 216): 'eo videlicet iure si ipse nobis et - optimatibus nostris fidelis manserit minister et inconvulsus - amicus.' - - [1025] K. 408 (ii. 263): 'eatenus ut vita comite tam fidus mente - quam subditus operibus mihi placabile obsequium praebeat, et - meum post obitum cuicunque meorum amicorum voluero eadem - fidelitate immobilis obediensque fiat.' - - [1026] The terms of the oath are given in Schmid, App. X. - - [1027] See above, p. 69. - - [1028] See above, p. 69. - - [1029] K. 214 (i. 269); H. & S. iii. 556. - - [1030] D. B. i. 172; see above, p. 159. - - [1031] Cnut, II. 13, 77. - - [1032] See above, p. 156. - - [1033] K. 1035 (v. 76). The charter is not beyond suspicion, but - Kemble has received, and the editors of the Councils (H. & S. - iii. 607) have refused to condemn it. - - [1034] K. 1020 (v. 60); B. i. 409; H. & S. iii. 528. - - [1035] See Brunner, Die Landschenkungen der Merowinger und der - Agilolfinger, Forschungen, p. 6: 'He who receives an order - acquires in the insignia of the order which are delivered to - him an ownership of an extremely attenuated kind. He can not - give them away or sell them or let them out or give them in - dowry. When he dies they go back to the giver.' We are not - aware of any English decision on such matters as these. In a - charter for Winchester (B. ii. 238) Edward the Elder is - represented as saying that the land that he gives to the - church is never to be alienated. If, however, the monks must - sell or exchange it, then they may return it 'to that royal - family by whom it was given to them.' - - [1036] Brunner, Zur Rechtsgeschichte d. röm. u. germ. Urkunde, p. - 190; Hist. Eng. Law, ii. 12. - - [1037] See Brunner, Landschenkungen, Forschungen, p. 1. In this - paper Dr Brunner appealed to our English law, in order that - he might settle the famous controversy between Waitz and Roth - as to the character of the gifts of land made by the - Merovingians. On p. 5 he denies that our rule about 'words of - inheritance' should be called feudal. Its starting point is - the principle that the quality [an English lawyer would - add--and the quantity also] of the 'estate' (_Besitzrecht_) - can be determined by the donor's words, by a _lex donationis_ - imposed by the donor on the land. - - [1038] Brunner, Geschichte der Urkunde, p. 200. - - [1039] Heming's Cartulary, i. 259. 'Post mortem autem eius, filius - eius ... testamentum patris sui irritum faciens....' Ibid. p. - 263: 'Brihtwinus ... eandem terram Deo et Sanctae Mariae - obtulit, eundemque nepotem suum monachum fecit. Filius eius - etiam, Brihtmarus nomine, pater ipsius iam dicti Edwini - monachi, cum heres patris extitisset, ... ipsam ... villam - monasterio dedit.' Hist. Eng. Law, ii. 250. - - [1040] Brunner, Forschungen, p. 22; Hist. Eng. Law, i. 292. - - [1041] Crawford Charters (ed. Napier and Stevenson), pp. 23, 126. - Early in cent. xi. a bishop in his testament declares how he - gives 'to each retainer his steed which he had lent him.' - - [1042] See the wills collected by Thorpe; p. 501: Gift to the queen - for her mediation that the will may stand. Ibid. p. 505: 'And - bishop Theodred and ealdorman Eadric informed me, when I gave - my lord the sword that king Edmund gave me ... that I might - be worthy of my testament (_mine quides wirde_). And I never - ... have done any wrong to my lord that it may not so be.' - Ibid. p. 519: 'And I pray my dear lord for the love of God - that my testament may stand.' See also pp. 528, 539, 543, - 552, 576. - - [1043] Thus ealdorman Alfred disposes (but with the consent of the - king and all his witan) of his 'heritage' as well as of his - book-land; Thorpe, 480. Lodge, Essays on A.-S. Law, p. 108, - supposes a certain power of regulating the descent of 'family - land' within the family. - - [1044] K. 414 (ii. 273): 'Ego Wulfricus annuente et sentiente et - praesente domino meo rege ... concessi ... terram iuris mei - ... quam praefatus rex Eadredus mihi dedit in perpetuam - hereditatem cum libro eiusdem terrae.'--K. 1130 (v. 254): - 'Ego Eadulfus dux per concessionem domini mei regis ... - concedo ... has terras de propria possessione mea quas idem - ... rex dedit in perpetuam hereditatem.'--K. 1226 (vi. 25): - 'Ego Ælfwordus minister Regis Eadgari concedo ... annuente - domino meo rege ... villam unam de patrimonio meo.' - - [1045] Except in the cases, comparatively rare before the statute - _Quia Emptores_, in which the feoffee is to hold of the - feoffor's lord. - - [1046] Fustel de Coulanges, Les origines du système féodal; Brunner, - D. R. G. i. 209-12. - - [1047] K. 1058 (v. 115); B. ii. 89: 'et nullus iam licentiam - ulterius habeat Christi neque sancti Petri ... neque ausus - sit ulterius illam terram praedictam _rogandi in - beneficium_.' - - [1048] K. 1089 (v. 166); B. ii. 281. See also K. 262 (ii. 33); B. - ii. 40; Birhtwulf of Mercia takes a lease for five lives from - the church of Worcester and assigns it to a thegn. The - consideration for this lease is a promise that for the future - he will not make gifts out of the goods of the church. - - [1049] K. 1287 (vi. 124). The verb _praestare_ was the regular term - for describing the action of one who was constituting a - _precarium_ or _beneficium_. In K. 1071 (v. 138) Bp Werferth - of Worcester obtains a lease for three lives having - petitioned for it; 'terram ... humili prece deprecatus fui.' - - [1050] For _commodare_ see K. v. pp. 166, 169, 171; for _l[´æ]nan_, - ibid. 162; for _l[´æ]tan_, ibid. 164. - - [1051] See Bp Oswald's leases. - - [1052] K. 91 (i. 109). - - [1053] K. 165 (i. 201). - - [1054] K. 279 (ii. 61). - - [1055] K. 339 (ii. 149). - - [1056] See the charter of Cenwulf for Winchcombe, H. & S. iii. 572 - and the editors' note at 575. See also K. 610 (iii. 157), - 1058 (v. 115), 1090 (v. 169). - - [1057] K. 262 (ii. 33) is a lease for five lives by the church of - Worcester; but the lessee is a king. - - [1058] Nov. 7, 3. See Brunner, Zur Rechtsgeschichte der röm. u. - germ. Urkunde, 187. Theodore of Tarsus would perhaps have - known this rule. It does not belong to the general western - tradition of Roman law, but is distinctly Justinianic. - - [1059] K. 165 (i. 201). The 'limitation' is not very plain; but we - seem to have here a lease for two lives. - - [1060] K. 182 (i. 220). - - [1061] K. 262 (ii. 33); B. ii. 40: lease by church of Worcester to - the king for five lives: 'et illi dabant terram illam ea - tamen conditione ut ipse rex firmius amicus sit episcopo - praefato et familia in omnibus bonis eorum.' K. 279 (ii. 61): - lease by the same church to a dux and his wife with - stipulation for _amicitia_. - - [1062] These are preserved in Heming's Cartulary; see K. 494-673. - - [1063] In K. 498 (ii. 386) the _aecclesiasticus census_ is two - _modii_ of clean grain; in K. 511 (ii. 400) the lessee must - mow once and reap once 'with all his craft'; in K. 508 (ii. - 398) he must sow two acres with his own seed and reap it; in - K. 661 (iii. 233) is a similar stipulation. - - [1064] In many cases the clause of immunity has become very obscure - owing to a copyist's blunder. It is made to run thus: 'Sit - autem terra ista libera omni regi nisi aecclesiastici censi.' - Some mistake between _rei_ and _regi_ may be suspected. What - we want is what we get in some other cases, e.g. K. 651, 652, - viz. 'libera ab omni saecularis rei negotio.' The following - forms are somewhat exceptional; K. 530 and 612, 'butan - ferdfare and walgeworc and brycgeworc _and circanlade'_; K. - 623, 666, 'excepta sanctae dei basilicae suppeditatione et - ministratione'; K. 625, 'exceptis sanctae dei aecclesiae - necessitatibus et utilitatibus.' - - [1065] Kemble gives it in Cod. Dipl. 1287 (vi. 124) and in an - appendix to vol. i. of his history. Also he speaks of it in - Cod. Dipl. i. xxxv., and there says that it is 'a laboured - justification' by Bp Oswald of his proceedings. To my mind it - is nothing of the kind. Oswald is proud of what he has done - and wishes that a memorial of his acts may be carefully - preserved for the benefit of the church. Of course, if - regarded from our modern point of view, the form of the - document is curious. The bishop seems engaged in an attempt - to bind his lessees by his own unilateral account of the - terms to which they have agreed. But his object is to have of - the contract a record which has been laid before the king and - the witan and which, if we are to use modern terms, will have - all the force of an act of parliament, to say nothing of the - anathema. - - [1066] In places its language becomes turbid and well-nigh - untranslatable. - - [1067] It may be that the bishop has just obtained from the king a - grant or confirmation of the hundredal jurisdiction over what - is to be Oswaldslaw. - - [1068] K. vi. 125: 'hoc est ut omnis equitandi lex ab eis impleatur - quae ad equites pertinet.' - - [1069] K. vi. 125: 'et ad totum piramiticum opus aecclesiae calcis - atque ad pontis aedificium ultro inveniantur parati.' The - translation here given is but guesswork; we suppose that - _piramiticus_ means 'of or belonging to fire ([Greek: pur]).' - - [1070] Ibid.: 'insuper ad multas alias indigentiae causas quibus - opus est domino antistiti frunisci, sive ad suum servitium - sive ad regale explendum, semper illius archiductoris - dominatui et voluntati qui episcopatui praesidet ... subditi - fiant.' Is _archiductor_ but a fine name for the bishop? We - think not. In the Confessor's day Eadric the Steersman was - 'ductor exercitus episcopi ad servitium regis' (Heming, i. - 81), and it would seem from this that the tenants were to be - subject to a captain set over them by the bishop. But in the - famous, if spurious, charter for Oswaldslaw (see above, p. - 268) Edgar says that on a naval expedition the bishop's men - are not to serve under the ordinary officers 'sed cum suo - archiductore, videlicet episcopo, qui eos defendere et - protegere debet ab omni perturbatione et inquietudine.' This - would settle the question, could we be certain that the words - 'videlicet episcopo' were not the gloss of a forger who was - improving an ancient instrument. For our present purpose, - however, it is no very important question whether the - _archiductor_, the commander in chief of these tenants, is - the bishop himself or an officer of his. - - [1071] Ibid.: 'praevaricationis delictum secundum quod praesulis ius - est emendet.' - - [1072] D. B. 174. Compare the entry on f. 175 b relating to the - church-scot of Pershore. - - [1073] Hist. Eng. Law, i. 217. See also D. B. i. 165 b, Hinetune. - - [1074] Heming, i. 81: 'Edricus qui fuit, tempore regis Edwardi, - stermannus navis episcopi et ductor exercitus eiusdem - episcopi ad servitium regis.' D. B. i. 173 b: 'Edricus - stirman' held five hides of the bishop. - - [1075] Heming, i. 77: 'Et [episcopus] deracionavit socam et sacam de - Hamtona ad suum hundred de Oswaldes lawe, quod ibi debent - placitare et geldum et expeditionem ... persolvere.' - - [1076] Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625. - - [1077] Hist. Eng. Law, i. 288. - - [1078] In this respect Oswald's leases seem to have closely - resembled a form of lease, known as _manusfirma_, which - became common in the France of the eleventh century: - Lamprecht, Beiträge zur Geschichte des französischen - Wirthschaftslebens, pp. 59, 60. - - [1079] Heming, i. 259: 'Ac primo videndum quae terrae trium heredum - temporibus accommodatae sint, post quorum decessum iuri - monasterii redderentur, quaeve postea iuxta hanc conventionem - redditae, quaeve iniuste sunt retentae, sive ipsorum, qui eas - exigere deberent, negligentia, sive denegatae sint iniquorum - hominum potentia.' See also the story told by Heming on p. - 264. - - [1080] Lamprecht, op. cit. p. 61, says that it was quite uncommon - for the French landlord to get back his land if once he let - it for three lives. One of the Worcester leases, but one - stigmatized by Kemble (ii. 152), is a lease for three lives - 'nisi haeredes illius tempus prolixius a pontifice sedis - illius adipisci poterint.' - - [1081] K. 637 (iii. 194): 'si in viduitate manere decreverit, vel - magis nubere voluerit, ei tamen viro qui episcopali dignitati - supradictae aecclesiae sit subiectus.' - - [1082] D. B. i. 173: 'Hanc terram tenuit Sirof de episcopo T. R. E., - quo mortuo dedit episcopus filiam eius cum hac terra cuidam - suo militi, qui et matrem pasceret et episcopo inde - serviret.' - - [1083] Hist. Eng. Law, i. 214. - - [1084] See above, p. 267. - - [1085] D. B. i. 172 b: 'Hae praedictae ccc. hidae fuerunt de ipso - dominio aecclesiae, et si quid de ipsis cuicunque homini - quolibet modo attributum vel praestitum fuisset ad serviendum - inde episcopo, ille qui eam terram praestitam sibi tenebat - nullam omnino consuetudinem sibimet inde retinere poterat - nisi per episcopum, neque terram retinere nisi usque ad - impletum tempus quod ipsi inter se constituerant, et nusquam - cum ea terra se vertere poterat ... Kenewardus tenuit et - deserviebat sicut episcopus volebat ... Ricardus tenuit ad - servitium quod episcopus voluit ... Godricus tenuit serviens - inde episcopo ut poterat deprecari ... Godricus tenuit ad - voluntatem episcopi.' - - [1086] D. B. 173 b. - - [1087] Oswald's tenants closely resemble the _ministeriales_ of - foreign bishops; see Waitz, Verfassungsgeschichte, v. - 283-350. Oswald's _lex equitandi_ may be compared with what - is said (ibid. p. 293) of a bishop of Constance: 'quibus - omnibus hoc ius constituit, ut cum abbate equitarent eique - domi forisque ministrarent, equos suos tam abbati quam - fratribus suis quocumque necesse esset praestarent, - monasterium pro posse suo defensarent.' - - [1088] Kemble, Saxons, i. 310 ff.; K. Maurer, Krit. Ueb. i. 104; - Essays in Anglo-Saxon Law, No. ii. (Lodge); Brunner, - Geschichte d. röm. u. germ. Urkunde, 182. - - [1089] K. 617 (iii. 164). - - [1090] K. 651 (iii. 216). - - [1091] K. 679 (iii. 258). - - [1092] K. 1287 (vi. 125): 'propter beneficium quod eis praestitum - est.' D. B. i. 173 b. It may cross the reader's mind that the - leases of which Oswald speaks in his letter to Edgar are not - the transactions recorded in the charters that have come down - to us, but other and unwritten leases. But Domesday Book and - the stories told by Heming make against this explanation. - - [1093] Æthelr. I. 1, § 14. - - [1094] Cnut, II. 13, 77. - - [1095] K. 328 (ii. 133): A certain Helmstan is guilty of theft 'and - mon gerehte ðæt yrfe cinge forðon he wes cinges mon and - Ordlaf feng to his londe forðan hit wæs his læn ðæt he on - sæt.' - - [1096] K. 330 (ii. 136). - - [1097] K. 414 (ii. 273): conveyance by Wulfric with the king's - consent.--K. 491 (ii. 379): conveyance by Wulfstan with - consent of king and witan, who execute the deed.--K. 690-1 - (iii. 286-8): conveyances by Æscwig executed by king and - witan.--K. 1124, 1130 (v. 246-54): conveyances confirmed by - king and bishops.--K. 1201 (v. 378): exchange with king's - consent.--K. 1226 (vi. 25): conveyance by a thegn reciting - king's consent. A few documents we must leave unclassified; - K. 499, 591, 693; we do not know how they were executed or - what was their evidential value. - - [1098] Brunner, Geschichte d. röm. u. germ. Urkunde, p. 175. - - [1099] Hist. Eng. Law, i. 212. - - [1100] K. 843 (iv. 201): 'swa full and swa forð swa Ðurstan min - huskarll hit furmest of me heold.'--K. 846 (iv. 205): 'swa - full and swa forð swa Sweyn mi may hit formest of me - held.'--K. 826 (iv. 190): 'swa Ælfwin sy nunne it heold of - ðan minstre.'--K. 827 (iv. 190): 'swa Sihtric eorll of ðan - minstre þeowlic it heold.' If K. 1237 (vi. 44) be genuine - (and Kemble has not condemned it) then already in the middle - of the tenth century 'Goda princeps tenuit terram de rege,' - nor only so, 'tenuit honorem de rege'; but this document is - unacceptable. At best it may be a late Latin translation of - an English original. - - - - -§ 5. _The Growth of Seignorial Power._ - - -[Subjection of free men.] - -We now return to our original theme, the subjection to seignorial power -of free land-holders and their land, for we now have at our command the -legal machinery, which, when set in motion by economic and social -forces, is capable of effecting that subjection. Let us suppose a -village full of free land-holders. The king makes over to a church all -the rights that he has in that village, reserving only the _trinoda -necessitas_ and perhaps some pleas of the crown. The church now has a -superiority over the village, over the ceorls; it has a right to receive -all that, but for the king's charter, would have gone to him. - -[The royal grantee and his land.] - -In the first place, it has a right to the _feorm_, the _pastus_ or -_victus_ that the king has hitherto exacted. We should be wrong in -thinking that in the ninth century (whatever may have been the case in -earlier times) this exaction was a small matter. In 883 Æthelred -ealdorman of the Mercians with the consent of King Alfred freed the -lands of Berkeley minster from such parts of the king's _gafol_ or -_feorm_ as had until then been unredeemed. In return for this he -received twelve hides of land and thirty mancuses of gold, and then in -consideration of another sixty mancuses of gold he proceeded to grant a -lease of these twelve hides for three lives[1101]. The king had been -deriving a revenue from this land 'in clear ale, in beer, in honey, in -cattle, in swine and in sheep.' In Domesday Book a 'one night's farm' -is no trifle; it is all that the king gets from large stretches of his -demesne[1102]. Having become entitled to this royal right, the church -would proceed to make some new settlement with the villagers. Perhaps it -would stipulate for a one night's farm for the monks, that is to say, -for a provender-rent capable of supporting the convent for a day. In the -middle of the ninth century a day's farm of the monks of Canterbury -comprised forty sesters of ale, sixty loaves, a wether, two cheeses and -four fowls, besides other things[1103]. When once a village is charged -in favour of a lord with a provender-rent of this kind, the lord's grip -upon the land may easily be tightened. A settlement in terms of bread -and beer is not likely to be stable. Some change in circumstances will -make it inconvenient to all parties and the stronger bargainer will make -the best of the new bargain. The church will be a strong bargainer for -it has an inexhaustible treasure-house upon which to draw. We, however, -concerned with legal ideas, have merely to notice that the law will give -free play to social, economic and religious forces which are likely to -work in the lord's favour. - -[Provender rents and the manorial economy.] - -But a village charged with a 'provender-rent' may seem far enough -removed from the typical manor of the twelfth and thirteenth centuries. -In the one we see the villagers cultivating each for his own behoof and -supplying the lord at stated seasons with a certain quantity of -victuals; in the other the villagers spend a great portion of their time -in tilling the lord's demesne land. In the latter case the lord himself -appears as an agriculturist: in the former he is no agriculturist, but -merely a receiver of rent. The gulf may seem wide; but it is not -impassable. One part, the last part, of a process which surmounts it is -visible. In the eleventh and twelfth centuries the lords, though they -have much land in demesne, still reckon the whole or part of what they -are to receive from each manor in terms of 'farms'; the king gets a one -night's farm from this manor, the convent of Ramsey gets a fortnight's -farm from that manor[1104]. But we can conceive how the change begins. -The monks are not going to travel, as a king may have travelled, from -village to village feasting at the expense of the folk. They are going -to live in their monastery; they want a regular supply of victuals -brought to them. They must have an overseer in the village, one who will -look to it that the bread and beer are sent off punctually and are good. -In the village over which they already have a superiority they acquire a -manse of their very own, a _mansus indominicatus_ as their foreign -brethren would call it. When once they are thus established in the -village, piety and other-worldliness will do much towards increasing -their demesne and strengthening their position[1105]. - -[The church and the peasants.] - -We have argued above that in the first instance it was not by means of -the petty gifts of private persons that the churches amassed their wide -territories. The starting point is the alienation of a royal -superiority. Still there can be little doubt that the small folk were -just as careful of their souls as were their rulers. They make gifts to -the church. Moreover, the gift is likely to create a dependent tenure. -They want to give, and yet they want to keep, for their land is their -livelihood. They surrender the land to the church: but then they take it -back again as a life-long loan. Thus the church has no great difficulty -about getting demesne. But further, it gets dependent tenants and a -dependent tenure is established. Like enough on the death of the donor -his heirs will be suffered to hold what their ancestor held. Very -possibly the church will be glad to make a compromise, for it may be -doubtful whether these _donationes post obitum_[1106], or these gifts -with reservation of an usufruct, can be defended against one, who, not -having the fear of God before his eyes, will make a determined attack -upon them. Gradually the church becomes more and more interested in the -husbandry of the village. It receives gifts; it makes loans; it -substitutes labour services to be done on its demesne lands for the old -_feorm_ of provender. It is rash to draw inferences from the fragmentary -and obscure laws of Ine; but one of them certainly suggests that, at -least in some district of Wessex, this process was going on rapidly at -the end of the seventh century, so rapidly and so oppressively that the -king had to step in to protect the smaller folk. The man who has taken -a yard of land at a rent is being compelled not only to pay but also to -labour. This, says the king, he need not do unless he is provided with a -house[1107]. - -[Growth of the manorial system.] - -Now we are far from saying that the manorial system of rural economy is -thus invented. From the time of the Teutonic conquest of England onwards -there may have been servile villages, Roman villas with slaves and -_coloni_ cultivating the owner's demesne, which had passed bodily to a -new master. We have no evidence that is capable of disproving or of -proving this. What we think more probable is that in those tracts where -true villages (nucleated villages, as we have before now called -them[1108]) were not formed, the conquerors fitted themselves into an -agrarian scheme drawn for them by the Britons, and that in the small -scattered hamlets which existed in these tracts there was all along a -great deal of slavery[1109]. But, at any rate, the church was a -cosmopolitan institution. Many a prelate of the ninth and tenth -centuries, Bishop Oswald for one, must have known well enough how the -foreign monasteries managed their lands, and, whatever controversies may -rage round questions of remoter history, there can be no doubt that by -this time the rural economy of the church estates in France was in -substance that which we know as manorial. Foreign precedents in this as -in other matters may have done a great work in England[1110]. All that -we are here concerned to show is that there were forces at work which -were capable of transmuting a village full of free landholders into a -manor full of villeins. - -[Church-scot and tithe.] - -Besides the rights transferred to it by the king, the church would have -other rights at its command which it could employ for the subjection--we -use the word in no bad sense--of the peasantry. By the law of God it -might claim first-fruits and tenths. The payment known as _ciric-sceat_, -church-scot, is a very obscure matter[1111]. Certainly in laws of the -tenth century it seems to be put before us as a general tax or rate, due -from all lands, and not merely from those lands over which a church has -the lordship. On the other hand, both in earlier and in later documents -it seems to have a much less general character. In some of the earlier -it looks like a due, we may even say a rent (_ecclesiasticus census_) -paid to a church out of its own lands, while in the later documents, for -example in Domesday Book, it appears sporadically and looks like a heavy -burden on some lands, a light burden on others. The evidence suggests -that the church had attempted and on the whole had failed, despite the -help of kings and laws, to make this impost general. That in some -districts it was a serious incumbrance we may be sure. On those estates -of the church of Worcester to which we have often referred, every hide -was bound to pay upon St. Martin's day one horse-load (_summa_) of the -best corn that grew upon it. He who did not pay upon the appointed day -incurred the outrageous penalty of paying twelve-fold, and in addition -to this a fine was inflicted[1112]. If the bishop often insisted on the -letter of this severe rule, he must have reduced many a free ceorl to -beggary. It is by no means certain that the duty of paying tithe has not -a somewhat similar history. Though in this case the impost became a -general burden incumbent on all lands, it may have been a duty of -perfect obligation for the subjects of the churches, while as yet for -the mass of other landowners it was but a religious duty or even a -counsel of perfection. At any rate, this subtraction of a tenth of the -gross produce of the earth is no light thing: it is quite capable of -debasing many men from landownership to dependent tenancy. - -[Jurisdictional rights of the lord.] - -Another potent instrument for the subjection of the free landowners -would be the jurisdictional rights which passed from the king to the -churches and the thegns. At first this transfer would appear as a small -matter. The president of a court of free men is changed:--that is all. -Where the king's reeve sat, the bishop or the bishop's reeve now sits; -fines which went to the royal hoard now go to the minster; but a moot of -free men still administers folk-right to the justiciables of the church. -However, in course of time the change will have important effects. In -the first place, it helps to bind up suit of court with the tenure of -land. The suitor goes to the bishop's court because he holds land of -which the bishop is the lord. If, as will often be the case, he wishes -to escape from the burdensome duty, he will pay an annual sum in lieu -thereof, and here is a new rent. Then again all the affairs of the -territory are now periodically brought under the bishop's eye; he -knows, or his reeves know, all about every one's business and they have -countless opportunities of granting favours and therefore of driving -bargains. Moreover it is by no means unlikely that the lord will now -have something to say about the transfer of land, for it is by no means -unlikely that conveyances will be made in court, and that the rod or -_festuca_ which serves as a symbol of possession will be handed by the -seller to the reeve and by the reeve to the purchaser. We need not -regard the conveyance in court as a relic of a time when a village -community would have had a word to say if any of its members proposed to -assign his share to an outsider. There are many reasons for conveying -land in court. We get witnesses there, and no mere mortal witnesses but -the testimony of a court which does not die. Then, again, there may be -the claims of expectant heirs to be precluded and perhaps they can be -precluded by a decree of the court. The seller's kinsfolk can be ordered -to assert their rights within some limited time or else to hold their -peace for ever after, so that the purchaser will hold the land under the -court's ban[1113]. And thus the rod passes through the hands of the -president. But 'nothing for nothing' is a good medieval rule. The lord -will take a small fine for this _land-cóp_, this sale of land, and soon -it may seem that the purchaser acquires his title to the land rather -from the lord than from the vendor[1114]. - -[The lord and his man's taxes.] - -Yet another turn is given to the screw, if we may so speak, when the -state and the church begin to hold the lord answerable for taxes which -in the last resort should be paid by the tenant[1115]. This, when we -call to mind the huge weight of the danegeld, will appear as a matter of -the utmost importance. Before the end of the tenth century--this is the -picture that we draw for ourselves--large masses of free peasants were -in sore straits and were in many ways subject to their lords. Many of -them were really holding their tenements by a more or less precarious -tenure. They had taken 'loans' from their lord and become bound to pay -rents and work continuously on his inland. Others of them may have had -ancient ancestral titles which could have been traced back to free -settlers and free conquerors; but for centuries past a lord had wielded -rights over their land. The king's _feorm_ had become the lord's -_gafol_, and this, supplemented by church-scot and by tithes, may have -been turned into _gafol_ and week-work. The time came for a new and -heavy tax. This was a crushing burden, and even had the geld been -collected from the small folk it would have had the effect of converting -many of them from landowners into landborrowers[1116]. But a worse fate -befell them. They were so poor that the state could no longer deal with -them; it dealt with their lord; he paid for their land. It follows that -in the eye of the state their land is his land. Less and less will the -national courts and the folk-law recognize their titles; the lord -'defends' this land against all the claims of the state; therefore the -state regards it as his. Hence what seems the primary distinction drawn -by Domesday Book--that between the soke-man and the _villanus_. The -_villanus_ is not rated to the land-tax. Some men are not rated to the -geld because they have but precarious titles; other men have precarious -titles because they are not rated to the geld. A wide and a legally -definable class is formed of men who hold land and who yet are fast -losing the warranty of national law. When once the country is full of -lords with sake and soke, a very small change, a very small exhibition -of indifference on the part of the state, will deprive the peasants of -this warranty and condemn them to hold, not by the law of the land, but -by the custom of their lord's court. - -[Depression of the free ceorl.] - -To this depth of degradation the great mass of the English peasants in -the southern and western counties--the _villani_, _bordarii_, _cotarii_ -of Domesday Book--may perhaps have come before the Norman Conquest. -There may have been no courts which would recognize their titles to -their land, except the courts of their lords. We are by no means certain -that even this was so; but they must fall deeper yet before they will be -the 'serf-villeins' of the thirteenth century. - -[The slaves.] - -However, the conditions which would facilitate such a farther fall had -long been prepared, for slavery had been losing some of its harshest -features. Of this process we have said something elsewhere[1117]. What -the church did for the slave may have been wisely and was humanely done; -but what it did for the slave was done to the detriment of the poorer -classes of free men. By insisting that the slave has a soul to be saved, -that he can be sinned against and can sin, that his marriage is a -sacrament, we obliterate the line between person and thing. On the other -hand, in the submission of one person to the will of another, a -submission which within wide limits is utter and abject, the church saw -no harm. Villeinage and monasticism are not quite independent phenomena; -even a lawyer could see the analogy between the two[1118]. And a touch -of mysticism dignifies slavery:--the bishop of Rome is the serf of the -serfs of God; an earl held land of Westminster Abbey 'like a -_theow_[1119].' One of the surest facts that we know of the England of -Cnut's time is that the great folk were confounding their free men with -their theowmen and that the king forbad them to do this. We see that one -of the main lines which has separated the rightless slave from the free -ceorl is disappearing, for the lord, as suits his interest best, will -treat the same man now as free and now as bond[1120]. - -[Growth of manors from below.] - -We might here speak of the numerous causes for which in a lawful fashion -a free man might be reduced into slavery, and were we to do so, should -have to notice the criminal law with its extremely heavy tariff of _wer_ -and _wite_ and _bót_. But of this enough for the time has been said -elsewhere[1121], and there are many sides of English history at which we -can not even glance. However, lest we should be charged with a grave -omission, we must explain that the processes which have hitherto come -under our notice are far from being in our eyes the only processes that -tended towards the creation of manors. We have been thinking of the -manors as descending from above (if we may so speak) rather than as -growing up from below. The alienation of royal rights over villages and -villagers has been our starting point, and it is to this quarter that we -are inclined to look for the main source of seignorial power. But, no -doubt, within those villages which had no lords--and plenty of such -villages there were in 1065--forces were at work which made in the -direction of manorialism. They are obscure, for they play among small -men whose doings are not recorded. But we have every reason to suppose -that in the first half of the eleventh century a fortunate ceorl had -many opportunities of amassing land and of thriving at the expense of -his thriftless or unlucky neighbours. Probably the ordinary villager was -seldom far removed from insolvency: that is to say, one raid of -freebooters, one murrain, two or three bad seasons, would rob him of his -precious oxen and make him beggar or borrower. The great class of -_bordarii_ who in the east of England are subjected to the sokemen has -probably been recruited in this fashion[1122]. And so we may see in -Cambridgeshire that a man will sometimes have half a hide in one -village, a virgate in another, two-thirds of a virgate in a third. He is -'thriving to thegn-right.' Then, again, some prelate or some earl will -perhaps obtain the commendation of all the villagers, and his hold over -the village will be tightened by a grant of sake and soke, though, if we -may draw inferences from Cambridgeshire, this seems to have happened -rarely, for the sokemen of a village have often shown a marvellous -disagreement among themselves in their selection of lords, and seem to -have chosen light-heartedly between the house of Godwin and the house of -Leofric as if they were but voting for the yellows or the blues. We -fully admit that these forces were doing an important work; but they -were doing it slowly and it was not nearly achieved when the Normans -came. Nor was it neat work. It tended to produce not the true and -compact manerio-villar arrangement, but those loose, dissipated manors -which we see sprawling awkwardly over the common fields of the -Cambridgeshire townships[1123]. - -[Sidenote: Theories which connect the English manor with the Roman -villa.] - -We have been endeavouring to show that the legal, social and economic -structure revealed to us by Domesday Book can be accounted for, even -though we believe that in the seventh century there was in England a -large mass of free landowning ceorls and that many villages were peopled -at that time and at later times chiefly by free landowning ceorls and -their slaves. We have now to examine the evidence that is supposed to -point to a contrary conclusion and to connect the English manor of the -eleventh century with the Roman villa of the fifth. Two questions should -be distinguished from each other--(1) Have we any proof that during -those six centuries, especially during the first three of them, the type -of rural economy which we know as 'manorial' was prevalent in England? -(2) Have we any proof that the tillers of the soil were for the more -part slaves or unfree men? We will move backwards from Domesday Book. - -[The _Rectitudines_.] - -In the first place reliance has been placed on the document known as -_Rectitudines Singularum Personarum_[1124]. Of the origin of this we -know nothing; we can not say for certain that it is many years older -than the Norman Conquest. Apparently it is the statement of one who is -concerned in the management of great estates and is desirous of -imparting his knowledge to others. It first sets forth the right of the -thegn. He is worthy of the right given to him by his book. He must do -three things in respect of his land, namely, fyrdfare, burh-bote and -bridge-work. From many lands however 'a more ample landright arises at -the king's ban': that is to say, the thegn is subject to other burdens, -such as making a deer-hedge at the king's hám, providing warships[1125] -and sea-ward and head-ward and fyrd-ward, and almsfee and church-scot -and many other things. Then we hear of the right of the _geneat_. It -varies from place to place. In some places he must pay rent -(_land-gafol_) and grass-swine yearly, and ride and carry and lead -loads, work and support his lord[1126], and reap and mow and hew the -deer-hedge and keep it up, build and hedge the _burh_ and make new roads -for the _tún_, pay church-scot and almsfee, keep head-ward and -horse-ward, go errands far and near wherever he is directed. Next we -hear of the cottier's services. He works one day a week and three days -in harvest-time. He ought not to pay rent. He ought to have five acres -more or less. He pays hearth-penny on Holy Thursday as every free man -should. He 'defends' or 'acquits' his lord's inland when there is a -summons for sea-ward or for the king's deer-hedge or the like, as befits -him, and pays church-scot at Martinmas. Then we have a long statement as -to the services of the _gebúr_. In some places they are heavy, in others -light. On some land he must work two days a week and three days at -harvest by way of week-work. Besides this there is rent to be paid in -money and kind. There is ploughing to be done and there are boon-works. -He has to feed dogs and find bread for the swine-herd. His beasts must -lie[1127] in his lord's fold from Martinmas to Easter. On the land where -this custom prevails the _gebúr_ receives by way of outfit two oxen and -one cow and six sheep and seven sown acres upon his yard-land. After the -first year he is to do his services in full and he is to receive his -working tools and the furniture for his house. We then hear of the -special duties and rights of the bee-keeper, the swine-herd, the -follower, the sower, ox-herd, shepherd, beadle, woodward, hayward and so -forth. - -[Discussion of the _Rectitudines_.] - -Now, according to our reading of this document, there stand below the -thegn, but above the serfs (of whom but few words are said[1128]) three -classes of men--there is the _geneat_, there is the _gebúr_ and there is -the _cotsetla_. The boor and the cottier are free men; the cottier pays -his hearth-penny, that is his Romescot, his Peter's-penny, on Holy -Thursday as every free man does; but both boor and cottier do week-work. -On the other hand the _geneat_ does no week-work. He pays a rent, he -pays a grass-swine (that is to say he gives a pig or pigs in return for -his pasture rights), he rides, he carries, he goes errands, he -discharges the forinsec service due from the manor, and he is under a -general obligation to do whatever his lord commands. He bears a name -which has originally been an honourable name; he is his lord's -'fellow[1129].' His services strikingly resemble those which St. Oswald -exacted from his _ministri_, his _equites_, his _milites_[1130]. Almost -every word that is said of the _geneat_ is true of those very -substantial persons who took land-loans from the church of Worcester. -The _geneat_ (who becomes a _villanus_ in the Latin version of our -document that was made by a Norman clerk of Henry I.'s reign) is a -riding-man, radman, radcniht, with a horse, a very different being from -the _villanus_ of the thirteenth century[1131]. On the other hand, in -the _gebúr_ of this document we may see the _burus_, who is also the -_colibertus_ of Domesday Book[1132], and he certainly is in a very -dependent position, for his lord provides him with cattle, with -instruments of husbandry, even with the scanty furniture of his house. -We dare not indeed argue from this text that the _villanus_ of Domesday -Book does not owe week-work, for the writer who rendered _geneat_ by -_villanus_ was quite unable to understand many parts of the document -that he was translating[1133]; but when we place the _Rectitudines_ by -the side of the survey we can hardly avoid the belief that the extremely -dependent _gebúr_ of the former is represented, not by the _villanus_, -but by the _burus_ or _colibertus_ of the latter. However, over and over -again the author of the _Rectitudines_ has protested that customs vary. -He will lay down no general rule; he does but know what goes on in -certain places[1134]. - -[The Tidenham case.] - -In 956 King Eadwig gave to Bath Abbey thirty manses at Tidenham in -Gloucestershire[1135]. A cartulary compiled in the twelfth century -contains a copy of his gift, and remote from this it contains a -statement of the services due from the men of Tidenham. It is possible, -but unlikely, that this statement represents the state of affairs that -existed at the moment when the minster received the gift; to all -appearance it belongs to a later date[1136]. It begins by stating that -at Tidenham there are 30 hides, 9 of inland and 21 'gesettes landes,' -that is 9 hides of demesne and 21 hides of land set to tenants. Then -after an account of the fisheries, which were of importance, it tells us -of the services due from the _geneat_ and from the _gebúr_. The _geneat_ -shall work as well on the land as off the land, whichever he is bid, and -ride and carry and lead loads and drive droves 'and do many other -things.' The _gebúr_ must do week-work, of which some particulars are -stated, and he also must pay rent in money and in kind. Here again a -well marked line is drawn between the _geneat_ and the _gebúr_. Here -again the _geneat_, like the _cniht_ or _minister_ of Oswaldslaw, is -under a very general obligation of obedience to his lord; but he is a -riding man and there is nothing whatever to show that he is habitually -employed in agricultural labour upon his lord's demesne. As to the -_gebúr_, he has to work hard enough day by day, and week by week, though -of his legal status we are told no word. - -[The Stoke case.] - -In a Winchester cartulary, 'a cartulary of the lowest possible -character,' there stands what purports to be a copy of the charter -whereby in the year 900 Edward the Elder gave to the church of -Winchester 10 _manentes_ of land 'æt Stoce be Hysseburnan' together with -all the men who were thereon at the time of Alfred's death and all the -men who were 'æt Hisseburna' at the same period. Edward, we are told, -acquired the land 'æt Stoce' in exchange for land 'æt Ceolseldene' and -'æt Sweoresholte [Sparsholt].' At the end of the would-be charter stand -the names of its witnesses. Then follows in English (but hardly the -English of the year 900) a statement of the services which the ceorls -shall do 'to Hysseburnan.' Then follow the boundaries. Then the -eschatocol of the charter and the list of witnesses is repeated[1137]. -On the face of the copy are three suspicious traits: (1) the modernized -language, (2) the repeated eschatocol, (3) the description of the -services, for the like is found in no other charter. This is not all. -Two other documents in the same cartulary bear on the same transaction. -By the first Edward gave to the church of Winchester 50 _manentes_ 'æt -Hysseburnan' which he had obtained by an exchange for land 'æt -Merchamme[1138].' By the second he gave to the church of Winchester 50 -_manentes_ 'ad Hursbourne' and other 10 'ad Stoke[1139].' The more -carefully these three documents are examined, the more difficult will -the critic find it to acquit the Winchester monks of falsifying their -'books' and improving Edward's gift. Therefore this famous statement -about the ceorls' services is not the least suspicious part of a highly -suspicious document. It is to this effect:--'From each _hiwisc_ (family -or hide), at the autumnal equinox, forty pence and six church _mittan_ -of ale and three sesters of loaf-wheat. In their own time they shall -plough three acres and sow them with their own seed, and in their own -time bring it [the produce of the sown land] to barn. They shall pay -three pounds of gafol barley and mow half an acre of gafol-mead in their -own time and bring it to the rick; four fothers of split gafol-wood for -a shingle-rick in their own time and sixteen yards of gafol-fencing in -their own time. And at Easter two ewes with two lambs, but two young -sheep may be counted for an old one; and they shall wash and shear sheep -in their own time. And every week they shall do what work they are bid, -except three weeks, one at Midwinter, one at Easter and the third at the -Gang Days.' Here no doubt, as in the account of Tidenham, as in the -_Rectitudines_, we see what may fairly be called the manorial economy. -The lord has a village; he has demesne land (_inland_) which is -cultivated for him by the labour of his tenants; these tenants pay -_gafol_ in money or in kind; some of them (the _geneat_ of Tidenham, the -_geneat_ of the _Rectitudines_) assist him when called upon to do so; -others work steadily from day to day; in many particulars the extent of -the work due from them is ascertained; whether they are free men, -whether they are bound to the soil, whether the national courts will -protect them in their tenure, whether they are slaves, we are not told. - -[Inferences from these cases.] - -That such an arrangement was common in the eleventh century we know; a -solitary instance of it comes to us professedly from the first year of -the tenth, and certainly from a cartulary that is full of lies. To -draw general inferences from a few such instances would be rash. -What should we believe of 'the English village of the eleventh century' -if the one village of which we had any knowledge was Orwell in -Cambridgeshire[1140]? What should we believe of 'the English village of -the thirteenth century' if our only example was a village on the ancient -demesne? The traces of a manorial economy that have been discovered in -yet remoter times are few, slight and dubious. A passage in the laws of -Ine[1141] seems to prove that there were men who had let out small -quantities of land, 'a yard or more,' to cultivators at rents and who -were wrongfully endeavouring to get from their lessees work as well as -_gafol_. The same law may prove the highly probable proposition that -some men had taken 'loans' of manses and were paying for them, not only -by _gafol_, but by work done on the lord's land. That already in Ine's -day there were many free men who were needy and had lords above them, -that already the state was beginning to consecrate the relation between -lord and man as a security for the peace and a protection against crime -is undoubted[1142]. But this does not bring us very near to the Roman -_villa_. Nor shall we see a _villa_ wherever the dooms or the land-books -make mention of a _hám_ or a _tún_, for the meanest ceorl may have a -_tún_ and will probably have a home of his own[1143]. - -[The _villa_ and the _vicus_.] - -It is said that the England of Bede's day was full of _villae_ and that -Bede calls the same place now _villa_ and now _vicus_[1144]. But before -we enter on any argument about the use of such words, we ought first to -remember that neither Bede nor the scribes of the land-books were -trained philologists. London is a _villa_[1145], but it is also a -_civitas_, _urbs_, _oppidum_, _vicus_, a _wíc_, a _tún_, a _burh_, and a -_port_. When we see such words as these used promiscuously we must lay -but little stress upon the occurrence of a particular term in a -particular case. Suppose for a moment that in England there were many -villages full of free landholders: what should they be called in Latin? -They should, it is replied, be called _vici_ and they should not be -called _villae_, for a _villa_ is an estate. But it is part of the case -of those who have used this argument that at the time of the barbarian -invasions the Roman world was full of _villae_, so full that every or -almost every _vicus_ was situated on and formed part of a _villa_[1146]. -We are therefore exacting a good deal from Bede, from a man who learnt -his Latin in school, if we require him to be ever mindful of this nice -distinction. We are saying to him: 'True it is that a knot of -neighbouring houses with the appurtenant lands is habitually called a -_villa_; but then this word introduces the notion of ownership; the -_villa_ is an unit in a system of property law, and, if your village is -not also an estate, a _praedium_, then you should call it _vicus_ and -not _villa_.' To this we must add that, while the word _villa_ did not -until after the Norman Conquest force its way into English speech, the -word _vicus_ became an English word at a very early period[1147]. It -became our word _wick_ and it became part of a very large number of -place-names[1148]. The Domesday surveyors found _herdwicks_ and -_berewicks_ in many parts of the country[1149]. Moreover we can see -that in the Latin documents _villa_ is used in the loosest manner. -London is a _villa_; but a single house, a single 'haw,' in the city of -Canterbury or the city of Rochester is a _villa_[1150]. - -[Notices of manors in the charters.] - -If we carefully attend to the wording of the land-books, we shall find -the manorial economy far more visible in the later than in the earlier -of them. The Confessor gives to Westminster 'ða cotlife Perscore and -Dorhurste' with all their lands and all their berewicks[1151]. He gives -the cotlif Eversley and all things of right belonging thereto, with -church and mill, with wood and field, with meadow and heath, with water -and with moor[1152]. From 998 we have a gift of a 'heafod-botl,' a -capital mansion, we may say, and its appurtenances[1153]. In earlier -times we may sometimes find that the subject matter of the royal gift is -spoken of as forming a single unit; it is a _villa_, or it is a _vicus_. -But rarely is the thing that is given called a _villa_ except when the -thing that is given is just a single hide[1154]. If a charter freely -disposes of several _villae_, meaning thereby villages, we shall -probably find some other reasons for assigning that charter, whatever -date it may bear, to the eleventh, the twelfth or a yet later -century[1155]. Sometimes in old books the king will say that he is -giving a _vicus_, a _vicus_ of five or eight or ten _tributarii_[1156]. -Much more frequently he will not speak thus; he will not speak as though -the subject matter of his gift had a physical unity and individuality. -'I give,' he will say, 'so many _manentes_, _tributarii_, or _casati_ -in the place known as _X_,' or 'I give a certain part of my land, to -wit, that of so many _manentes_, _tributarii_, or _casati_ at the spot -which men call _Y_.' Such language does not suggest that the manses thus -given are subservient to one dominant and dominical manse or manor; it -is very unlike the language of the twelfth century[1157]. Such words as -_fundus_ and _praedium_ are conspicuously absent, and _ager_ usually -means but a small piece of land, an acre. Foreign precedents would have -suggested that when an estate was to be conveyed it should be conveyed -_cum servis et ancillis_, or _cum mancipiis et accolabus_; such clauses -are rare in our English land-books[1158]. - -[The _mansa_ and the _manens_.] - -But, it will be said, at all events the king is giving persons, men, as -well as land; he is giving _manentes_, _casati_, _tributarii_. What is -more these are foreign words and they describe the 'semi-servile' -occupants of the soil. Now it is true that sometimes he gives -_manentes_, _casati_, _tributarii_, though more often he gives either so -many manses (_mansas_), or 'the land of so many _manentes_, _casati_, -_tributarii_,' while in Kent he gives plough-lands or sullungs. But we -think it plain that in England these Latin words were used simply to -describe the extent, or rather the rateable extent, of land, without -much reference to the number or the quality of its occupants. The _terra -unius manentis_, even the _unus casatus_ when that is the subject of a -conveyance, is like Bede's _terra unius familiae_, the unit known to -Englishmen as the _hiwisc_, or _hide_[1159]. Hence it is that reference -is so often made to repute and estimation. 'I give,' says Egbert, 'a -certain portion of land to the amount, as I estimate, of five -_casati_,' or (it may be) 'of twenty _manentes_[1160].' Nothing can be -easier than to count whether there be four, five, or six 'semi-servile' -households on a given piece of land. Far easier would it be to do this -than to do what is habitually done, namely, to set forth the boundaries -of the land with laborious precision. But there is already an element of -estimation, of appreciation, in these units. Already they are units in a -system of taxation. Hence also it is that so very frequently what the -king gives is just exactly five, or some multiple of five, of these -units[1161]. Rating is a rough process; five and ten are pleasant -numbers. - -[The hide.] - -But against the argument which would see in every conveyance of 'five -_manentes_' or of 'the land of five _casati_' a conveyance of five -semi-servile households with their land we have another objection to -urge. Here we will state it briefly; a fuller statement would take us -far away from our present theme. If the land-books of the churches are -to lead up to Domesday Book, the unit conveyed as _terra unius manentis_ -(_casati_, _tributarii_) is a hide with some 120 acres of arable land, -the land appropriate to a plough-team of eight oxen. Had the -semi-servile _manens_ as a general rule 120 arable acres, a plough-team -of eight oxen? We do not believe it, and those who have most strongly -insisted on the servility or 'semi-servility' of the tillers of the -soil, do not believe it. They would give the _gebúr_ but a quarter of a -hide and but two beasts of the plough. That being so, it should be -common ground that the _terra unius manentis_ (_casati_, _tributarii_) -can not be construed as 'the land occupied by one semi-servile tenant.' -An explanation of the fact that land is conveyed by reference to units -so large as the hide of 120 acres and that these units are spoken of as -though each household would normally have one of them must be sought -elsewhere; we can not here pause to find it. But in any case these -foreign terms should give us little trouble. When he hears such words as -_manens_, _casatus_, _tributarius_, the man who has lived in Gaul may -hear some undertone of servility or 'semi-servility.' We do not discuss -this matter; it may be so. But look at the words themselves, what do -they primarily mean? A _manens_ is one who dwells upon land, a _casatus_ -is one to whom a _casa_ has been allotted, a _tributarius_ pays -_tributum_; the free English landowner pays a _tributum_ to the -king[1162]. We must make the best we can of a foreign, an inappropriate -tongue, and the best that we make is often very bad, especially when we -have a taste for fine writing. And so England is full of villas which -are Roman and satraps who, no doubt, are Persian. - -[The strip-holding and the villa.] - -And whence, we must ask, comes that system of intermixed 'strip-holding' -that we find in our English fields? Who laid out those fields? The -obvious answer is that they were laid out by men who would sacrifice -economy and efficiency at the shrine of equality. Each manse is to have -the same number of strips; the strips of one manse must be neither -better nor worse than those of its neighbour and therefore must be -scattered abroad over the whole territory of the village. That this -system was not invented by men who owned large continuous tracts is -plain. No such owner would for one moment dream of cutting up his land -in this ridiculous fashion, and of reserving for his own manse, not a -ring-fenced demesne, but strips lying here and there, 'hide-meal and -acre-meal' among the strips of his serfs. That is not the theory. No one -supposes that a Roman landowner whose hands were free allowed the soil -of his villa to be parcelled out in accordance with this wasteful, -cumbrous, barbarous plan. So his hands must not be free; the soil of -which he becomes the owner must already be plotted out in strips, and -these strips must be so tightly bound up into manses, that he scruples -to overturn an existing arrangement, and contents himself with -appropriating a few of the manses for his own use and compelling the -occupants of the others to labour for him and pay him rents. In this -there is nothing impossible; but we have only deferred, not solved the -problem. Who laid out our English fields and tied the strips into -manses? That this work was done by the Britons before they were brought -under the Roman yoke does not seem very probable. Celtic rural economy, -whenever it has had a chance of unfettered development, has made for -results far other than those that are recorded by the larger half of the -map of England. If throughout England the Romans found so tough a system -of intermixed manses that, despite all its absurdities, they could not -but spare it, then the Britons who dwelt in the land that was to be -English were many centuries in advance of the Britons who dwelt in the -land that was to be Welsh. To eke out this hypothesis another must be -introduced. The Teutonic invaders of Britain must be brought from some -manorialized province. So, after all, the model of the English field may -have been 'made in Germany.' Somehow or another it was made in South -Germany by semi-servile people, whose semi-servility was such a -half-and-half affair that they could not be prevented from sacrificing -every interest of their lords at the shrine of equality[1163]. - -[The lords and the strips.] - -We are far from saying that wherever there is strip-holding, there -liberty and equality have once reigned[1164]. It is very possible that -where a barbarian chieftain obtained a ring-fenced allotment of -conquered soil, he sometimes divided it into scattered strips which he -parcelled out among his unfree dependants. But if he did this, he did it -because his only idea of agriculture was derived from a village formed -by men who were free and equal. The maintenance of a system of -intermixed strip-holding may be due to seignorial power, and a great -deal of the rigidity of the agrarian arrangements that we see in the -England of the thirteenth century may be due to the same cause. -Seignorial power was not, at least in origin, absolute ownership. It had -to make the best it could of an existing system. For the lord's purposes -that system was at its best when it was rigid and no tenement was -partible. But assuredly this plan was not originally invented by great -proprietors who were seeking to get the most they could out of their -land, their slaves and their capital. - -[The ceorl and the slave.] - -That we have not been denying the existence of slavery will be plain. -Indeed we may strongly suspect that the men who parcelled out our fields -were for the more part slave-owners, though slave-owners in a very small -way. To say nothing of Welshmen, there was quite enough inter-tribal -warfare to supply the ceorl with a captive. But it was not for the sake -of slaves or serfs or 'semi-servile' folk that the system of intermixed -strips was introduced. - -[The condition of the Danelaw.] - -Lastly, the theory which would derive the English manor from the Roman -_villa_ must face the grave problem presented to it by the account which -Domesday Book, when speaking of the Confessor's day, gives of the -eastern and northern counties, of a large quarter of all England, and of -just that part of England which was populous. We see swarms of men who -are free men but who are subject, they and their land, to various modes -and degrees of seignorial power. The modes are many, the degrees are -gentle. Personal, tenurial, justiciary threads are woven into a web that -bewilders us. Here we see the work of commendation, there the work of -the land-loan, and there again what comes of grants of sake and soke. We -see the formation of manors taking place under our eyes, and as yet the -process is by no means perfect. In village after village there is -nothing that our economic historians would consent to call a manor. Now, -no doubt, the difference between the east and the west is, at least in -part, due to Danish invasions and Danish settlements. But how shall we -picture to ourselves the action of the Danes? Is it to be supposed that -they found the Anglo-Roman manor-villa a prevalent and prosperous -institution, that they destroyed it and put something else in its place, -put in its place the village of free peasants who could 'go with their -land' to what lord they pleased? If so, then we have to face the -question why these heathen Danes acted in a manner so different from -that in which their predecessors, the heathen Angles and Saxons, had -acted. Surely one part of the explanation is that the inswarming -barbarians checked the manorializing process that was steadily at work -in Wessex and Mercia. We do not say that this is the whole explanation. -We have seen how free were many of the Cambridgeshire villages and have -little reason to believe that they had been settled by Danes[1165]. The -west country is the country to which we shall naturally look for the -most abundant traces of the _Wealh theow_. There it is that we find -numerous _servi_, and there that we find rather _trevs_ than villages. -But also we have hardly a single land-book of early date which deals -with any part of the territory that became the Danelaw. Many a book the -Danes may have burnt when they sacked the monasteries. They sacked the -monasteries, burnt the books and freed the land. But still we may doubt -whether the practice of booking lands to the churches had gone far in -East Anglia and the adjacent shires when they were once more overwhelmed -by barbarism. No doubt in course of time the churches of the east became -rich: Ely and St Edmunds, Peterborough and Ramsey, Croyland and Thorney. -But, even when supplemented by legend and forgery, their titles to wide -territories can seldom be compared for antiquity to the titles that -might have been pleaded by the churches of Kent and Wessex and the -Severn Valley. Richly endowed churches mean a subjected peasantry. And -thus we may say of the Danes that if in a certain sense they freed the -districts which they conquered, they in the same sense enslaved the rest -of England. Year by year Wessex and Mercia had to strain every nerve in -order to repel the pagans, to fit out fleets, build burgs and keep -armies always in the field. The peasant must in the end bear the cost of -this exhausting struggle. Meanwhile in the north and the east the -process that makes manors has been interrupted; it must be begun once -more. It was accomplished by men some of whom had Scandinavian blood in -their veins, but who were not heathens, not barbarians: it was -accomplished by Normans steeped in Frankish feudalism. - - -FOOTNOTES: - - [1101] K. 313 (ii. 110); T. 129; B. ii. 172. - - [1102] In many cases the one night's farm is reckoned at £100 or - thereabouts; Round, Feudal England, 112. - - [1103] K. 477 (ii. 354); T. 509. - - [1104] Vinogradoff, Villainage, 301. - - [1105] Even T. R. W. and in a thoroughly manorial county such as - Hampshire we may find a village in which the lord has no - demesne. See e.g. D. B. i. 41 b, Alwarestoch. - - [1106] Hist. Eng. Law, ii. 315 - - [1107] Ine, 67. See Schmid's note. - - [1108] See above, p. 15. - - [1109] See Meitzen, Siedelung und Agrarwesen der Germanen, ii. 97 - ff. - - [1110] Stubbs, Const. Hist. i. 223. - - [1111] The subject is treated at length by Kemble, Saxons, ii. 490 - and App. D, and Schmid, p. 545. - - [1112] D. B. i. 174. Compare Ine, 4; Æthelr. VIII. 11; Cnut, I. 10. - - [1113] Hist. Eng. Law, ii. 95. - - [1114] Æthelred, III. 3; Schmid, App. II. 67 and Schmid, Glossar, s. - v. _land-ceáp_. - - [1115] See above, pp. 55, 122, 125. - - [1116] See above, p. 6. In a charter of Æthelred, K. 689 (iii. 284), - Abp. Sigeric, the reputed inventor of the danegeld, is - represented as pledging a village of thirty manses in order - that he may pay the money demanded by the pirates. He thus - raises 90 pounds of purest silver and 200 mancuses of purest - gold. If the mancus was the eighth of a pound (Schmid, p. - 595) we have 90 pounds of silver and 25 of gold, or in all - perhaps £390. The whole danegeld of Kent under Henry II. was - less than £106. For other transactions of a similar kind, see - Crawford Charters, 76. - - [1117] See above, p. 27. - - [1118] Hist. Eng. Law, i. p. 416. - - [1119] K. 1327 (iv. 190): 'swa full and swa forð swa Sihtric eorll - of ðan ministre þeowlic it heold.' - - [1120] Cnut, II. 20. - - [1121] Hist. Eng. Law, ii. p. 458. - - [1122] Chron. Petrob. 166: 'Sunt etiam in eadem scira 15 undersetes - qui nullum servicium faciunt nisi husbondis in quorum terra - sedent.' - - [1123] See above, p. 136. - - [1124] Schmid, App. III. p. 370; Seebohm, English Village Community, - p. 129. See also Liebermann's article in Anglia, ix. 251, - where the _Gerefa_, which seems to be a second part of this - document, is printed. - - [1125] We here adopt Schmid's conjecture: 'and scorp to friðscipe - [_corr._ fyrdscipe].' - - [1126] Ibid.: 'and hlaford feormian,' and supply a feorm (firma) for - his lord. - - [1127] The text says that he must lie at his lord's fold; but - probably it refers to the _soca faldae_. See above, p. 76. - - [1128] Of the serfs we hear (c. 8, 9) what they are to receive, but - not what they ought to do; their services are unlimited. - - [1129] Schmid, p. 596: Maurer, K. U. ii. 405. - - [1130] See above, p. 305, also Maurer, K. U. ii. 406. - - [1131] He is to 'work' for his lord; but then see how Oswald speaks - of his knights and radmen: 'semper illius ... dominatui et - voluntati ... cum omni humilitate et subiectione subditi - fiant secundum ipsius voluntatem.' Cf. D. B. i. 172 b: - 'deserviebat sicut episcopus volebat' ... 'tenuit ad - servitium quod episcopus voluit.' The translator who turned - him into a villanus was capable of turning the king's - _geneat_ of Ine's law into a _colonus_, a _colonus_ with a - wergild of 1200 shillings! See Schmid, p. 29. - - [1132] See above, p. 36. - - [1133] See e.g. cap. i., where it is pretty clear that he can not - translate _scorp_. So in the Latin version of Edgar II. c. 1 - he renders _geneatland_ by _terra villanorum_. But about such - a matter as this the testimony of the Quadripartitus is of no - value. See Liebermann, Gerefa, Anglia, ix. 258. - - [1134] Mr Seebohm, p. 130, commits what seems to me the mistake of - saying that the cottiers and boors are 'various classes of - geneats.' To my thinking a great contrast is drawn between - the _geneat_ and the _gebúr_ both in this document and in the - account of Tidenham. So in Edgar II. c. 1 the contrast is - between land which the great man has in hand and land which - he has let to his 'fellows,' his _equites_ and _ministri_. - See Konrad Maurer, K. U. ii. 405-6. Such words as _gebúr_ and - _burus_ are obviously very loose words and it is likely that - many a man who answered to the description of the _gebúr_ - given by the Rectitudines appears in Domesday Book, which in - general cares only about fiscal distinctions, as a _villanus_ - or _bordarius_. But we have clear proof that the surveyors - saw a class of _buri_ ( = _coliberti_) who were distinct from - the ordinary _villani_. See above, p. 36. - - [1135] K. 452 (ii. 327). See also Two Chartularies of Bath Abbey - (Somerset Record Society), pp. 5, 18, 19. - - [1136] K. iii. 449; E. 375: Seebohm, 148. Both documents come from - MS. C.C.C. Camb. cxi. The conveyance is on f. 57, the - statement of services on f. 73. The statement of services - immediately precedes the lease of Tidenham to Stigand, K. 822 - (iv. 171). Thus we have really better reason for referring - that statement to the very eve of the Norman Conquest than to - 956. See also Kemble, Saxons, i. 321, and Maurer, K. U. ii. - 406. - - [1137] K. 1077 (v. 146; iv. 306); T. 143; Kemble, Saxons, i. 319; - Seebohm, 160. But the form of the instrument as given in the - Codex Wintoniensis is best seen in B. ii. 240. We have quoted - above the estimate of this Codex formed by Mr Haddan and Dr - Stubbs (Councils, iii. 638). - - [1138] B. ii. 238. - - [1139] B. ii. 239. - - [1140] See above, p. 129. - - [1141] Ine, 67. - - [1142] Ine, 39. The man who leaves his lord (not his lord's land, - but his lord) without license, or steals himself away into - another shire, is to pay 60 shillings (no trivial sum) to his - lord. - - [1143] Surely the law, Hloth. and Ead. c. 15, which begins 'If a man - receive a guest three nights in his own home (an his agenum - hame)' is not directed only against the lords of manors. See - Meitzen, Siedelung und Agrarwesen, ii. 123. - - [1144] Ashley, Translation of Fustel de Coulanges, Origin of - Property, p. xvi. - - [1145] K. 220 (i. 280): 'ad regalem villam Lundoniae perveniens.' - - [1146] Fustel de Coulanges, L'Alleu, ch. vi. There is much to be - said on the other side; see Flach, Les origines de l'ancienne - France, ii. pp. 47-62. As to the _villa_ of the Lex Salica, - see Blumenstok, Entstehung des deutschen - Immobiliareigenthums, i. 219 ff. - - [1147] The suggestion that _villa_ appears in some of our - place-names as the termination _-well_ runs counter, so Mr - Stevenson tells me, to rules of phonology. - - [1148] See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In - the translation of St. Mark viii. 23, 26 both _wíc_ and _tun_ - are used as equivalents for _vicus_:--'eduxit eum extra vicum - ... et si in vicum introieris' = 'and lædde hine butan þa wic - ... and ðeah þu on tun ga.' Even in France the word _vicus_ - becomes part of numerous place-names: see Flach, op. cit. i. - p. 53. - - [1149] There is something curious about the use made of _wick_. It - is often used to distinguish a hamlet or small cluster of - houses separate from the main village. Thus in the parish of - _X_ we shall find _X-wick_. The _berewicks_ and _herdwicks_ - of D. B. (see above, p. 114) seem to be small clusters. On - the other hand London is a _wíc_; Hloth. and Ead. 16. - - [1150] K. 1041 (v. 88): 'in Dorobernia etiam civitate unam villam - donabo ad quam pertinet quinque iugera terrae et duo prata.' - K. 276 (ii. 57): 'dabo unam villam, quod nos Saxonice an haga - dicimus.' K. 259 (ii. 26): 'villam unam ab orientale parte - muri Doroverniae civitatis.' - - [1151] K. 829 (iv. 191). - - [1152] K. 845 (iv. 204). In a passage which has been interpolated - into one copy of the A.-S. Chronicle (Thorpe, p. 220) we read - 'And se biscop ... bohte þa feala cotlif æt se king.' - - [1153] Crawford Charters, pp. 22, 125; K. 1293 (vi. 138). - - [1154] Thus K. 109 (i. 133): 'villam unam ... quae iam ad Quenegatum - urbis Dorovernensis in foro posita est.' It is not denied - that in some quite early charters a king gives a _villa_ or - _villula_, e.g. K. 209 (i. 264): 'Heallingan cum villulis - suis'; see also K. 140 (i. 169), in which _villula_ and - _viculus_ are used as synonyms. - - [1155] A good example is that abominable forgery K. 984 (v. 2), - Wulfhere's charter for Peterborough. - - [1156] For example, K. 117-8-20 (i. 144-7). - - [1157] One of the earliest instances of what looks like manorial - organization will be found in K. 201 (i. 253); B. i. 485. In - 814 Cenwulf gives to the Abp. of Canterbury a plough-land: - 'et hoc aratrum cum omnibus utensilibus bonis ad mansionem in - grafon æa [Graveney] æternaliter concessum est.' - - [1158] A.D. 880, K. 311 (ii. 107): 'Insuper etiam huic donationi in - augmentum sex homines, qui prius pertinebant ad villam regiam - in Beonsinctune, cum omni prole stirpeque eorum ad eandem - conscripsimus aecclesiam.' A.D. 889, K. 315 (ii. 117): 'cum - hominibus ad illam pertinentibus.' A.D. 962, K. 1239 (vi. - 49): 'vineam ... cum vinitoribus.' In late documents penned - in English it is common to convey land 'with meat and with - man.' Instances are collected in Crawford Charters, 127. - - [1159] Therefore we sometimes meet with the form _cassata_, while - _manens_ is treated as a feminine word; K. i. 301; B. i. 573: - 'has x. manentes ... dividendas dimisit.' So Asser (ed. - Camden, p. 4) says that Æthelwulf ordered that one poor man - should be fed and clothed 'per omnem hereditariam terram suam - semper in x. manentibus.' - - [1160] K. 1033 (v. 73): 'aliquam portionem terrae ... in modum - videlicet ut autumo v. cassatorum.' K. 1308 (v. 83): 'aliquam - portionem terrae ... in modum videlicet ut autumo xx. - manentium.' K. 565 (iii. 64): 'quoddam ruris clima sub - aestimatione decem cassatorum.' K. 573 (iii. 87): 'ruris - quandam particulam, denis ab accolis aestimatam - mansiunculis.' K. 602 (iii. 146): 'quoddam rus x. videlicet - mansarum quantitate taxatum.' - - [1161] Let us open the Cod. Dipl. at the beginning of Edmund's reign - (ii. 218). The number of manses given in twenty-five - consecutive charters is as follows: 10, 20, 10, 10, 9, 10, - 15, 7, 8, 20, 10, 3, 5, 20, 30, 3, 6, 5, 3, 7, 20, 20, 5, 8, - 5. - - [1162] It seems almost necessary to protest that to-day our - landowners are not semi-servile occupants of the soil, though - they pay land taxes, house taxes, income taxes and rates - innumerable. - - [1163] I can not but think that Fustel de Coulanges knew his - business thoroughly well, and that if the German is to be - taught his proper and insignificant place, the less that is - said of intermixed 'strip-holding' the better, though to - ignore it utterly was, even in France, a bold course. - - [1164] Meitzen, op. cit. i. 431-41. - - [1165] See above, p. 139. - - - - -§ 6. _The Village Community._ - - -[The village community.] - -We have argued for an England in which there were many free villages. It -remains for us to say a word of the doctrines which would fill England -with free landowning village communities. Here we enter a misty region -where arguments suggested by what are thought to be 'survivals' and -inferences drawn from other climes or other ages take the place of -documents. We are among guesses and little has as yet been proved. - -[The popular theory.] - -A popular theory teaches us that land belonged to communities before it -belonged to individuals. This theory has the great merit of being vague -and elastic; but, as it seems to think itself precise, and probably owes -some of its popularity to its pretence of precision, we feel it our duty -to point out to it its real merit, its vague elasticity. - -[Co-ownership and ownership by corporations.] - -It apparently attributes the ownership of land to communities. It -contrasts communities with individuals. In so doing it seems to hint, -and yet to be afraid of saying, that land was owned by corporations -before it was owned by men. The hesitation we can understand. No one who -has paid any attention to the history of law is likely to maintain with -a grave face that the ownership of land was attributed to fictitious -persons before it was attributed to men. But if we abandon ownership by -corporations and place in its stead co-ownership, then we seem to be -making an unfortunate use of words if we say that land belonged to -communities before it belonged to individuals. Co-ownership is ownership -by individuals. When at the present day an English landowner dies and -his land descends to his ten daughters, it is owned by individuals, by -ten individuals. If each of these ten ladies died intestate leaving ten -daughters, the land would still be owned by individuals, by a hundred -individuals. - -['Communities' as owners.] - -The distinction that modern law draws between the landowning corporation -and the group of co-owners is as sharp as any distinction can be. It -will be daily brought home to any one who takes an active share in the -management of the affairs of a corporation, for example, a small college -which has a master, six fellows and eight scholars. A conveyance of land -to the college and a conveyance of land to these fifteen men would have -utterly different effects. A corporation may be deep in debt while none -of its members owes a farthing. Now we may suspect, and not without -warrant, that in a remote past these two very different notions, namely -that of land owned by a corporation and that of land owned by a group of -co-owners were intimately blent in some much vaguer notion that was -neither exactly the one nor exactly the other. We may suspect that could -we examine the conduct of certain men who lived long ago we should be -sorely puzzled to say whether they were behaving as the co-owners of a -tract of land or as the members of a corporation which was its owner. -But to fashion for ourselves any clear and stable notion of a _tertium -quid_ that is neither corporate ownership nor co-ownership, but partly -the one and partly the other, seems impossible[1166]. Therefore if, in -accordance with the popular theory, we attribute the ownership of lands -to 'communities,' we ought to add that we do not attribute it to -corporations and that we are fully aware that co-ownership can not be -sharply contrasted with ownership by individuals. - -[Possession and ownership.] - -Also since we are apt to fall into the trick of talking about possession -when we mean ownership or proprietary right, we need not perhaps ask -pardon for the remark that land owned by a group of three joint tenants -may be possessed in many different ways. The three may be jointly -possessing the whole; each may be severally possessing a physically -divided third; the whole may be possessed by one of them or by some -fourth person; the possession may be rightful or wrongful. - -But there is a graver question that must be raised. When we say that -land belonged to communities before it belonged to individuals, are we -really speaking of ownership or of something else? - -[Ownership and governmental power.] - -At the present day no two legal ideas seem more distinct from each other -than that of governmental power and that of proprietary right. The -'sovereign' of Great Britain (be the sovereignty where it may) is not -the owner of Great Britain, and if we still say that all land is 'held -of' the king, we know that the abolition of this antique dogma, this -_caput mortuum_, might be easily accomplished without any perceptible -revolution in the practical rules of English law. A landowner in the -United States does not 'hold of' the State or the people or the -government of the State. The 'eminent domain' of the State is neither -ownership nor any mode of ownership. Further, we conceive that the -sovereign person or sovereign body can, without claiming any ownership -in the soil, place many restrictions on the use that an owner may make -of his land. A law may prohibit owners from building on certain lands: -those lands are still their lands. Again, the supposed law may be not a -negative but a positive rule; it may require that the owners of certain -lands shall build upon them, or shall till them, or shall keep them as -pasture[1167]: still neither state nor sovereign will be owner of those -lands or have any proprietary interest in them. Our law may subject -certain lands to a land-tax to be paid to the state in money, or to a -tithe to be paid to the church in kind, but the state will not and the -church will not be part-owner of those lands. Our state may habitually -expropriate owners, may take their lands from them because they are -felons or because their lands are wanted for the construction of -railways. We may conceive it expropriating owners who have done no wrong -and yet are to have no compensation; but until the expropriation takes -place the state does not own the land. As with land, so with chattels. -The owner of a cart may find that it is impressed for the purpose of -military transport[1168] and yet the cart is his and not the state's. - -[Ownership and the powers of subordinate governors.] - -Similar powers may be exercised by persons or bodies that are not -sovereign, for example, by the governor of a province, by a county -council or a municipal corporation. Suppose that the owners of land -situate within a certain borough are prohibited by a by-law from placing -on their soil any buildings the plans of which have not been approved by -the town council. Carry this supposition further:--suppose that the town -council is a 'folk-moot' which every inhabitant of the borough may -attend. Still, according to our thinking, there would here be no -communal ownership and no division of ownership between individuals and -a corporation. If we thought it well to say that in such a case the -community would have some kind of 'eminent domain' over the land of -individuals, we should have to add that this kind of eminent domain was -not a proprietary right, but merely governmental power, a power of -making general rules and issuing particular commands. Nor would the case -be altered if the expressed object of such rules and commands was the -interest, it may even be the pecuniary interest, of the men of the town. -The erection of buildings may be controlled in order that the town may -be wholesome and sightly, or we may conceive that landowners in the -suburbs are compelled to keep their land as market-gardens or as -dairy-forms in order that vegetables or milk may be cheap:--for all this -the town council or community of townsfolk would have no property in the -land. - -[Evolution of sovereignty and ownership.] - -But though this be so, we can not doubt that could we trace back these -ideas to their origin, we should come to a time when they were hardly -distinct from each other. The language of our medieval law tells us that -this is so. The one word _dominium_ has to cover both proprietary rights -and many kinds of political power; it stands for ownership, lordship, -sovereignty, suzerainty. The power that Edward I. wields over all -England, the power that he claims over all Scotland, all Gascony, the -right that he has in his palace of Westminster, the right that he has in -his war-horse, all these are but modes of _dominium_. Then we imagine a -barbarous horde invading a country, putting its inhabitants to the sword -and defending it against all comers. Doubtless in some sort the land is -its land. But in what sort? In the sort in which Queen Victoria or the -British nation has lands in every quarter of the globe, the sort in -which all France belongs to the French Republic, or the sort in which -Blackacre is the land of John Styles? Have the barbarians themselves -answered this question? Have they asked it[1169]? - -[Communal ownership as a stage.] - -Now if we are going to confuse sovereignty with ownership, _imperium_ -with _dominium_, political power with proprietary right, why then let -our socialists and collectivists cease their striving and sing _Te -Deum_. Already their ideal must be attained. Every inch of the soil of -France, to name one instance, 'belongs' to the French Republic. But, if -we would not be guilty of this confusion, then we must be very careful -before we assent to the proposition that in the normal course of history -(if indeed in such a context history can be said to have a normal -course) the ownership of land by communities appears before the -ownership of land by individuals. Even if we put aside all such -criticisms as would be legal quibbles in the eyes of impatient -theorists, and refuse to say whether the 'community' is a mass of men, -an ideal person or _tertium quid_, we still are likely to find that the -anthropologists will be against us. We are now told by one of the -acutest of explorers that, if we leave out of account as no true case of -ownership the sort of inchoate sovereignty which an independent tribe -of hunters may exercise over a piece of the world's surface, 'ownership -of land by individuals' is to be found at a much lower grade in the -scale of civilization than that at which 'communal ownership' makes its -first appearance[1170]. Communal ownership, it is said, is not seen -until that stage is reached at which the power of the chieftain is -already a considerable force and the work of centralization is -progressing. With these inductions we do not meddle; but if the -anthropologist will concede to the historian that he need not start from -communalism as from a necessary and primitive _datum_, a large room will -be open for our guesses when we speculate about the doings of a race of -barbarians who have come into contact with Roman ideas. Even had our -anthropologists at their command materials that would justify them in -prescribing a normal programme for the human race and in decreeing that -every independent portion of mankind must, if it is to move at all, move -through one fated series of stages which may be designated as Stage _A_, -Stage _B_, Stage _C_ and so forth, we still should have to face the fact -that the rapidly progressive groups have been just those which have not -been independent, which have not worked out their own salvation, but -have appropriated alien ideas and have thus been enabled, for anything -that we can tell, to leap from Stage _A_ to Stage _X_ without passing -through any intermediate stages. Our Anglo-Saxon ancestors did not -arrive at the alphabet, or at the Nicene Creed, by traversing a long -series of 'stages'; they leapt to the one and to the other. - -[A normal sequence of stages.] - -But in truth we are learning that the attempt to construct a normal -programme for all portions of mankind is idle and unscientific. For one -thing, the number of such portions that we can with any plausibility -treat as independent is very small. For another, such is the complexity -of human affairs and such their interdependence, that we can not hope -for scientific laws which will formulate a sequence of stages in any one -province of man's activity. We can not, for instance, find a law which -deals only with political and neglects proprietary arrangements, or a -law which deals only with property and neglects religion. So soon as we -penetrate below the surface, each of the cases whence we would induce -our law begins to look extremely unique, and we shall hesitate long -before we fill up the blanks that occur in the history of one nation by -institutions and processes that have been observed in some other -quarter. If we are in haste to drive the men of every race past all the -known 'stages,' if we force our reluctant forefathers through agnatic -_gentes_ and house-communities and the rest of it, our normal programme -for the human race is like to become a grotesque assortment of odds and -ends. - -[Was land owned by village communities?] - -It is an interesting question whether in the history of our own people -we ought to suppose any definite 'stage' intermediate between the -introduction of steady agriculture and the ownership of land by -individuals. To say the least, we have no proof that among the Germans -the land was continuously tilled before it was owned by individuals or -by those small groups that constituted the households. This seems to be -so whether we have regard to the country in which the Germans had once -lived as nomads or to those Celtic and Roman lands which they subdued. -To Gaul and to Britain they seem to have brought with them the idea that -the cultivable land should be allotted in severalty. In some cases they -fitted themselves into the agrarian framework that they found; in other -cases they formed villages closely resembling those that they had left -behind them in their older home. But to all appearance, even in that -older home, so soon as the village was formed and had ploughed lands -around it, the strips into which those fields were divided were owned in -severalty by the householders of the village. Great pains had been taken -to make the division equitable; each householder was to have strips -equal in number and in value, and to secure equivalence each was to have -a strip in every part of the arable territory. But our evidence, though -it may point to some co-operation in agriculture, does not point to a -communistic division of the fruits[1171]. Nor does it point to a time -when a village council or a majority of villagers conceived that it had -power to re-allot the arable strips at regular or irregular -intervals[1172]. On the contrary, the individual's hold upon his strips -developed very rapidly into an inheritable and partible ownership. No -doubt this ownership grew more intense as time went on. It is a common -remark that during yet recent ages the ownership of land that is known -to our law has been growing more intense. This is true and patent -enough; the landowner has gained powers of alienation that his -predecessors did not enjoy. Possibly the only ownership of land that was -known to the Lex Salica was inalienable and could be inherited only by -sons of the dead owner. Then again, in old days a trespass that did no -harm would have been no trespass. 'Nominal damages' are no primitive -institution, and for a long time a man may have had no action if strange -cattle browsed over land on which no crop of corn was ripening[1173]. -But this growing intensity of ownership may be seen also in the case of -movable goods. Indeed there is a sense in which English law may be said -to have known a full ownership of land long ages before it knew a full -ownership of chattels[1174]. What, however, we are concerned to observe -is that the German village community does not seem to have resisted this -development of ownership or set up for itself any antagonistic -proprietary claim. It sought no more as regards the arable fields than a -certain power of regulating their culture, and in old times the -_Flurzwang_, the customary rotation of crop and fallow, must have -appeared less as the outcome of human ordinance than as an unalterable -arrangement established by the nature of things in general and of acre -strips in particular[1175]. - -[Sidenote: Meadows, pasture and wood.] - -Thus, so far back as we can see, the German village had a solid core of -individualism. There were, however, lands which in a certain sense -belonged to it and which were not allotted for good and all among its -various members. For one thing, the meadows were often subjected to a -more communal scheme. In the later middle ages we may see them annually -redistributed by rotation or by lot among the owners of the arable. The -meadows, which must be sharply distinguished from the pasture, were few, -and, as we may see from Domesday and other records, they were -exceedingly valuable. Probably their great but varying value stood in -the way of any permanent partition that would have seemed equitable. -Still they were allotted annually and the right to an allotment 'ran -with' the house and the arable strips. But again, there were woods and -pastures. If we must at once find an owner for this _Almende_, we may be -inclined to place the ownership in a village community, though not -without remembering that if this community may develop into a -land-owning corporation, it may develop into a group of co-owners. But -in all likelihood the question as to the whereabouts of ownership might -go unanswered and unasked for a long time. Rights of user exercisable -over these woods and pastures were attached to the ownership of the -houses and the arable strips, and such 'rights of common' may take that -acutely individualistic form which they seem to have taken in the -England of the thirteenth century. The freeholder of 'ancient arable,' -whose tenement represents one of the original shares, has a right to -turn out beasts on the waste, on the whole waste and every inch of it, -and of this right nor lord, nor community can deprive him[1176]. Perhaps -we may attribute to our law about this matter an unusual and, in a -certain sense, an abnormal individualism. In the much governed England -of the Angevin time, the strong central power encouraged every -freeholder to look to it for relief against all kinds of pressure -seignorial or communal. Elsewhere a village moot may assume and retain -some control over these pasture rights. But still the untilled land, the -waste, the _Almende_, exists mainly, if not solely, for the benefit of a -small group of tenements that are owned and possessed in severalty. As -to the ownership of the land that is subject to the rights of pasture, -it is a nude, a very nude _dominium_, and for a long while no one gives -it a thought. - -[The bond between neighbours.] - -In a favourable environment the German village community may and will -become a landowning corporation. But many dangers lie before it: -internal as well as external dangers. We must not think of it as a -closely knit body of men. The agrarian is almost the only tie that keeps -it together. Originally the men who settle down in a village are likely -to be kinsmen. Some phrases in the continental folk-laws, and some -perhaps of our English place-names, point in this direction. But -(explain this how we will) the German system of kinship, which binds men -together by the sacred tie of blood-feud, traces blood both through -father and through mother, and therefore will not suffer a -'blood-feud-kin' to have either a local habitation or a name[1177]. Very -soon, especially if daughters or the sons of daughters are allowed (and -very ancient Frankish laws allow them) to inherit the dead man's land, a -man who lives in one village will often be closer of kin to men who live -in other villages than to his neighbours. The village community was not -a _gens_. The bond of blood was sacred, but it did not tie the Germans -into mutually exclusive clans. Nor did it hold them in large -'house-communities,' for the partible inheritance seems as a general -rule to have been soon partitioned[1178]. Nor again may we ascribe to -the German house-father much power over his full-grown sons[1179]. - -[Feebleness of the village community.] - -Moreover, the village community was not a body that could declare the -law of the tribe or nation. It had no court, no jurisdiction. If moots -were held in it, these would be comparable rather to meetings of -shareholders than to sessions of a tribunal. In short, the village -landowners formed a group of men whose economic affairs were -inextricably intermixed, but this was almost the only principle that -made them an unit, unless and until the state began to use the township -as its organ for the maintenance of the peace and the collection of -taxes. That is the reason why we read little of the township in our -Anglo-Saxon dooms[1180]. Only as the state's pressure increases, does -the vill become one of the public institutions of the kingdom. We may -even exaggerate the amount of agricultural co-operation that was to be -found within it. Beyond the age in which the typical peasant is a -virgater contributing two oxen to a team of eight, our English evidence -seems to point to a time when the normal 'townsman' held a hide and had -slaves and oxen enough for its cultivation. Nor in all probability was -the village community a large body. We may doubt whether in the oldest -days it usually comprised more than some ten shareholders[1181]. - -[Absence of organization.] - -Whatever might come in course of time, we must not suppose that the -village had much that could be called a constitution. In particular, we -must be careful not to carry too far back the notion that votes will be -counted and that the voice of a majority will be treated as the voice of -all. When that marvellous title _De migrantibus_ raises a corner of the -curtain and gives us our only glance into a village of newly settled -Salian Franks, the one indisputable trait that we see among much that is -disputable is that the new-comer must leave the village if one villager -objects to his presence. His presence, we may suppose, might be -objectionable because it might add to the number of those who enjoyed -wood, waste and water in common; but any one villager can insist on his -departure. Out of this state of things 'communal ownership' may grow; -but all the communalism that we see at present is very like -individualism[1182]. Above all, we must not picture these village lands -as 'impressed with a trust' in favour of unborn generations or as -devoted to 'public purposes.' If in course of time small folk, cottiers, -'under-settles' and the like, are found in the village, they will have -to struggle for rights in the waste, and the rights, if any, that they -get will be meagre when compared with those of the owners of 'whole -lands' and 'half lands.' An oligarchy of peasant proprietors may rule -the waste and the village. - -[The German village on conquered soil.] - -Thus even in favourable circumstances there were many difficulties to be -overcome if the communalism, such as it was, of the village community -was to be maintained and developed. But where the village was founded -upon conquered soil the circumstances were not favourable. If the -Germans invaded Gaul or Britain, the very fields themselves seemed to -rebel against communalism and to demand a ring-fenced severalty. -Throughout large tracts in Gaul the barbarians were content to adapt -themselves to the shell that was provided for them. A certain aliquot -share of every estate might be taken from its former owner and be -allotted to a Burgundian or a Goth according to a uniform plan[1183]. -Throughout other large tracts villages of the Germanic type were -founded; a large part of northern Gaul was studded with such villages, -and it may be well for us to remember that some of our Norman -subjugators came to us from a land of villages, if others came from a -land of isolated homesteads[1184]. There can be little doubt that in -Britain numerous villages were formed which reproduced in all essentials -the villages which Saxons and Angles had left behind them on the -mainland, and as little doubt that very often, in the west and -south-west of Britain, German kings and eorls took to themselves -integral estates, the boundaries and agrarian arrangement whereof had -been drawn by Romans, or rather by Celts[1185]. - -[Development of kingly power.] - -Then the invasions and the long wars called for a rapid development of -kingship. Very quickly the Frankish kingship became despotism. In -England also the kings became powerful and the hereditary nobles -disappeared. There was taxation. The country was plotted out according -to some rude scheme to provide the king with meat and cheese and -ale[1186]. Then came bishops and priests with the suggestion that he -should devote his revenues to the service of God and with forms of -conveyance which made him speak as if the whole land were his to give -away. Here, so we have argued, was the beginning of a process which -placed many a village under a lord. The words of this lord's 'book' told -him that he was owner, or at least lord, of this village 'with its woods -and its pastures.' The men of the village might or might not maintain -all their accustomed rights, but at any rate no expansion of those -rights beyond the ancient usage was possible. The potentialities of the -waste (if we may so speak) had been handed over to a lord; the future -was his. - -[Free villages in England.] - -We must not, however, repeat what has been lengthily said above touching -the growth of the manorial system, though we are painfully aware that we -have neglected many phases of the complicated process. Here let us -remember that this process was not complete in the year 1066, and let us -look once more at the free villages in the east; for example, at -Orwell[1187]. Who owned the land that served as a pasture for the -_pecunia villae_? Shall we place the ownership in the thirteen holders -of the arable strips into which the four hides were divided, or in a -corporation whereof they were the members, or in their various lords, -those eight exalted persons to whom they were commended, or shall we say -that here is _res nullius_? The supposition that the lords are owners of -the waste we may briefly dismiss. The landholders are free to 'withdraw -themselves' and seek other lords. That the land is _res nullius_ we may -also positively deny, if thereby be meant that it lies open to -occupation. Let a man of the next village turn out his beasts there and -he will find out fast enough that he has done a wrong. But who will sue -him? Will all the villagers join as co-plaintiffs or will the village -corporation appear by its attorney? Far more in accordance with all that -we see in later days is it to suppose that any one of the men of Orwell -who has a right to turn out beasts can resent the invasion[1188]. This -brings to our notice the core of individualism that lies in the centre -of the village. The houses and the arable strips are owned in severalty, -and annexed to these houses and arable strips are pasture rights which -are the rights of individuals and which, it may be believed, seem to -exhaust the utility of the waste. What remains to dispute about? A nude, -a very nude _dominium_, which is often imperceptible. - -[The village meeting.] - -Not always imperceptible. From time to time these Orwell people in town -meeting assembled may have taken some grave resolution as to the -treatment of the waste. They may now and then have decided to add to the -amount of arable and diminish the amount of pasture. But occasional -measures of this sort, for which a theoretical, if not a real, unanimity -is secured, will not generate a regulative organ, still less a -proprietary corporation. In decade after decade a township-moot at -Orwell would have little to do. The moot of the Wetherley hundred is the -court that deems dooms for the men of Orwell. If the lands of Orwell had -been steadily regarded as the lands of a corporation they would have -passed in one lump to some one Norman lord. But such corporate feeling -as there was was weak. The men of Orwell had been seeking lords, each -man for himself, in the most opposite quarters. Many of the virgates -that are physically in one village have, as we have seen[1189], been -made 'to lie in' other villages; for the free man can carry his land -where he pleases. When this is so, he is already beginning to feel that -the tie which keeps him in a village community is a restraint that has, -perhaps unfortunately, been imposed upon him and his property by ancient -history. - -[What might have become of the free village.] - -The fate of these lordless communities and of their waste was still -trembling in the balance when King Harold fell. To guess what would have -happened had he held his own is not easy. It is possible that what was -done by foreigners would have been done, though less rapidly, by lords -of English race, and that by consolidating soke and commendation into a -firm landlordship and then making among themselves treaties of -partition, they would have acquired the ownership of the pasture land -subject to the rights of common. It is perhaps more probable that in -some cases the old indeterminate state of things might have been -maintained until the idea of a fictitious personality had spread from -the chapter-house to the borough and from the borough to the village. -Then the ownership of the soil might have been attributed to a -corporation of which the freeholders in the village were the members. -One famous case which came to light in the seventeenth century may warn -us that throughout the middle ages there were here and there groups of -freeholders, and even of customary tenants, who were managing agrarian -affairs in a manner which feudalism could not explain and our English -law would not warrant, for they were behaving as though they were -members of a landowning corporation[1190]. Often in the east of England -the manors must have been so intermixed that village meetings, not -however of a democratic kind, may have dealt with business which lay -outside the competence of any seignorial court. We know little and, it -is to be feared, must be content to know little of such meetings. They -were not sessions of a tribunal; they kept no rolls; the law knew them -not. But we dare not say that if all seignorial pressure had been -removed, the village lands would have been preserved as communal lands -for modern villagers. Where there was no seignorial pressure, no joint -and several liability for dues, the tie was lax between the owners of -the strips in the village fields; and if there was a corporate element -in their union, there was also a strong element of co-ownership. Had -they been left to themselves, we can not say with any confidence that -they would not sooner or later have partitioned the waste. Was it not -their land, and might they not do what they liked with their own? - -[Mark communities.] - -One other question may be touched. It was the fashion in England some -years ago that those who spoke of village communities should say -something of 'the Germanic mark.' What they said seemed often to imply -that the German village community was a mark community. This was a -mistake. It seems indeed that there were parts of Germany in which the -word 'mark' was loosely used[1191]; but the true _Markgenossenschaft_ -was utterly different from the _Dorfgenossenschaft_, and the lands with -which it dealt were just those lands that belonged to no village[1192]. -In the country which saw the Germans becoming an agricultural race, the -lands belonging to the villages were but oases in a wild territory. In -later days some large piece of this territory is found to be under the -control of a 'mark-community,' whose members are dwelling here and there -in many different villages and exercise rights over the land (for the -more part it is forest land[1193]) that belongs to no village but -constitutes the mark. Traces of what might have become 'the mark system' -may perhaps be found in England; but not where they have been usually -sought. - -[Intercommoning between vills.] - -We read of a tract in Suffolk which is common pasture for the whole -hundred of Coleness[1194]. Instances in which a piece of land is common -pasture for many vills were by no means uncommon in the thirteenth -century. They grow rarer as time goes on. Our law provided but a -precarious and uncomfortable niche for them under the rubric _common pur -cause de vicinage_[1195]. These are the traces of what in different -surroundings might have become, and perhaps were near to becoming, mark -communities. In the thirteenth century the state seems to have been -already enforcing the theory that every inch of land ought to lie within -the territory of some vill[1196]. This was a police measure. The -responsibility of one set of villagers was not to cease until the -boundary was reached where the responsibility of another set began. But -even in recent times there have been larger moors in the north of -England which 'belonged' (we will use a vague word) to two or more -townships in common. At any rate, we must not take back this theory that -the vills exhaust the land into the days of the Germanic -settlement[1197]. In some districts the vills must have been separated -from each other by wide woods, and in all likelihood large portions of -these woods were not proper to any one village, but were regarded as -belonging, in some sense or another, to a group of villages. However, -land of this kind was just the land which was most exposed to an -assertion of royal ownership, and we imagine that a mark community had -from the first little chance of organizing itself in England[1198]. But -we have already made too many guesses. - -[Last words.] - -We must not be in a hurry to get to the beginning of the long history of -law. Very slowly we are making our way towards it. The history of law -must be a history of ideas. It must represent, not merely what men have -done and said, but what men have thought in bygone ages. The task of -reconstructing ancient ideas is hazardous, and can only be accomplished -little by little. If we are in a hurry to get to the beginning we shall -miss the path. Against many kinds of anachronism we now guard ourselves. -We are careful of costume, of armour and architecture, of words and -forms of speech. But it is far easier to be careful of these things than -to prevent the intrusion of untimely ideas. In particular there lies a -besetting danger for us in the barbarian's use of a language which is -too good for his thought. Mistakes then are easy, and when committed -they will be fatal and fundamental mistakes. If, for example, we -introduce the _persona ficta_ too soon, we shall be doing worse than if -we armed Hengest and Horsa with machine guns or pictured the Venerable -Bede correcting proofs for the press; we shall have built upon a -crumbling foundation. The most efficient method of protecting ourselves -against such errors is that of reading our history backwards as well as -forwards, of making sure of our middle ages before we talk about the -'archaic,' of accustoming our eyes to the twilight before we go out into -the night. - - -FOOTNOTES: - - [1166] This seems to me the net outcome of the long and interesting - controversy which has divided the Germanists as to the - nature of the German _Genossenschaft_. - - [1167] This is no extravagant hypothesis. See e.g. Stat. 7 Hen. - VIII. c. 1 Thacte advoidyng pullyng downe of townes. - - [1168] See Army Act, 1881, 44 and 45 Vic. c. 58, sec. 115. - - [1169] Flach, Les origines de l'ancienne France, ii. 45, referring - to the classical passages in Cæsar and Tacitus, says: 'Ce - serait un abus de mots de dire que la tribu ou que le clan - sont propriétaires. La tribu (_civitas_) a la souveraineté du - territoire, les clans de leurs subdivisions ont l'usage des - parts qui leur sont assignées. La conception même de la - propriété est exclue par la nature des terres: étendue de - friches toujours renaissantes et en surabondance toujours: - _superest ager_.' See also Dargun, Ursprung des Eigenthums, - Zeitschrift für vergleichende Rechtswissenschaft, v. 55. - - [1170] Dargun, Ursprung des Eigenthums, Zeitschrift für - vergleichende Rechtswissenschaft, v. 1 (1884). See also - Hildebrand, Recht und Sitte, Jena, 1896. - - [1171] In the A.-S. laws about tithes there is really no hint of - communalism. When a landowner has ploughed his tenth acre, he - is to assign that acre, or rather the crop that it will bear - next year, to the church. That is all; and though it may be a - rude plan, it is compatible with the most absolute - individualism. Mr Seebohm, Village Community, 114, however, - seems to think otherwise. As to the Welsh laws, we beg an - enormous question if we introduce them into this context. A - distribution of acres when the ploughing is done is just what - we do not see in England. - - [1172] As to the famous words of Tacitus 'Agri pro numero cultorum - ab uniuersis in uices [_al._ inuicem] occupantur' and the - proposal to read _uniuersis vicis_, one of the best - suggestions yet made (Meitzen, Siedelung, iii. 586) is that - Tacitus wrote merely _ab uniuersis occupantur_, that a - copyist repeated the word _uniuersis_, and that other - copyists tried to make sense of nonsense. - - [1173] As to the state of things represented by the Lex Salica see - Blumenstok, Entstehung des deutschen Immobiliareigenthums, - Innsbruck, 1894, pp. 196 ff. - - [1174] Hist. Eng. Law, ii. 155. It may be convenient now-a-days to - say that _ownership_ implies a power of alienation. See - Pollock, Jurisprudence, 166. But to insist on this usage in - such discussions as that in which we are engaged would lead - to needless circumlocution. The question that is before us is - whether as a complaint to which a court of law will give - audience 'This acre is mine' is more modern than 'This acre - is ours.' - - [1175] As to the whole of this matter see Meitzen, op. cit., - especially iii. 574-589. As regards arable land in this - country the only 'survivals' which point to anything that - should be called communal ownership are singularly - inconclusive. They relate to small patches of arable land - held by burgesses: that is to say, they relate to places in - which a strong communal sentiment was developed during the - later middle ages, and they do not relate to communities that - ought to be called agricultural. The 'burgess plot' is not - large enough to have been any man's livelihood when - cultivated in medieval fashion, and it may well be modern. It - is demonstrable that in one case a very 'archaic' arrangement - was deliberately adopted in the nineteenth century by - burgesses who preferred 'allotment grounds' to pasture - rights. Maitland, Survival of Archaic Communities, Law - Quarterly Review, ix. 36. - - [1176] Hist. Eng. Law, i. 610-12. - - [1177] Hist. Eng. Law, ii. 238. A hypothetical practice of endogamy - will hardly give us the requisite explanation, for on the - whole the church seems to have encountered little difficulty - in imposing its extravagantly exogamous canons. To persuade - the converts not to marry their _affines_ was a much harder - task. - - [1178] Heusler, Institutionen, 229. - - [1179] As to the ownership of land by 'families,' see Hist. Eng. - Law, ii. 242. - - [1180] See above, p. 147. - - [1181] Of this in the next essay. - - [1182] A valuable and interesting discussion of the proprietary - system of the Lex Salica will be found in Blumenstok, - Entstehung des deutschen Immobiliareigenthums, Innsbruck, - 1894. This will serve as a good introduction to the large - literature which surrounds the _De migrantibus_. The least - probable of all interpretations seems that given by Fustel de - Coulanges. - - [1183] See Meitzen, op. cit. i. 526-35. - - [1184] Meitzen, i. 517 and the Maps 66 _a_, 66 _b_ in the Atlas. - - [1185] Meitzen, ii. 97-122. - - [1186] See above, p. 237. - - [1187] See above, p. 129. - - [1188] Throughout the historical time, so far as we know, the right - of every commoner has been well protected against strangers. - He might drive off the stranger's beasts, impound them, and, - at all events if he had been incommoded, might sue for - damages. See _Marys's case_, 9 Coke's Reports, 111 b; _Wells_ - v. _Watling_, 2 W. Blackstone's Reports, 1233. He needed no - help from his neighbours. - - [1189] See above, pp. 13, 124. - - [1190] I refer to the much discussed case of Aston and Cote. See Law - Quarterly Review, ix. 214. - - [1191] Meitzen, op. cit. i. 573. - - [1192] Ibid. i. 122-60. - - [1193] Therefore its assembly is a _Holtding_, and a _Holzgraf_ - presides there: Meitzen, op. cit. i. 125. - - [1194] D. B. ii. 339 b: 'In hundret de Coleness est quedam pastura - communis omnibus hominibus de hundret.' At Rhuddlan (D. B. i. - 269) Earl Hugh has given to Robert half the castle, half the - burg, and 'half of the forests which do not pertain to any - vill of the said manor.' This, however, is in Wales. - - [1195] Hist. Eng. Law, i. 608. - - [1196] Ibid. i. 547. - - [1197] Blomefield, Hist. Norfolk, iv. 691 gives an account of an - extremely fertile tract of pasture known as Tilney Smeeth - upon which the cattle of seven 'towns' intercommoned. - - [1198] If we are right in supposing that very generally a royal - land-book disposes of a whole village, then if it proceeds to - give rights in the _communis silva_, it is probably speaking - of a wood that is not regarded as annexed to that village but - of one which is common to various villages. The - intercommoning of vills in a forest is illustrated by the - famous Epping case, _Commissioners of Sewers_ v. _Glasse_, - Law Reports, 19 Equity, 134. But for the king's rights in - forest land, a 'mark community' might have grown up in - Epping. On the other hand, but for the king's rights, the - land might long ago have been partitioned among the - mark-men. - - - - - ESSAY III. - - THE HIDE. - - -[What was the hide?] - -What was the hide? However unwilling we may be to face this dreary old -question, we can not escape it. At first sight it may seem avoidable by -those who are interested in the general drift of national life, but have -no desire to solve petty problems or face unnecessary difficulties. The -history of weights and measures, some may say, is probably very curious -and no doubt is worth study; but we, who shall be amply satisfied if we -understand the grand movements and the broad traits, must leave this -little province, as we must leave much else, to antiquarian specialists. -Unfortunately, however, that question about the hide is 'pre-judicial' -to all the great questions of early English history. - -[Importance of the question.] - -If our choice lay between 30 and 40 acres, or again between a long and a -short hundred, then indeed we might refuse to take part in the conflict. -But between the advocates of big hides of 120 acres or thereabouts and -the advocates of little hides of 30 acres or thereabouts there should be -no peace. In the construction of early English history we shall adopt -one style of architecture if we are supplied with small hides, while if -our materials consist of big hides an entirely different 'plan and -elevation' must be chosen. Let us take one example. We find the kings -giving away manses or hides by fives and tens. What are they really -doing? Are they or are they not giving away whole villages? Obviously -this question is pre-judicial to many another. Our whole conception of -the Anglo-Saxon kingship will be profoundly affected by our attribution -or our denial to the king of an alienable superiority over villages that -are full of free landowners. This question, therefore, we should have -upon our hands even if we thought that we could rear the fabric of -political and constitutional history without first laying an economic -foundation. But the day for such castles in the air is passing. - -Howbeit, we must not talk in this pompous way of castles or foundations. -We are not going to lay foundations, nor even to choose a site. We hope -to test a few materials and perhaps to show how a site may some day be -acquired. - -[Hide and manse in Bede.] - -From the Norman Conquest so far back as we can go, a certain possessory -unit or a certain typical tenement is being thrust upon our notice by -the laws, the charters, the historians[1199]. We may begin with Bede. -When he is going to speak of the area or the capacity of a tract of -land, be it large or be it small, he refers to a certain unit or type, -namely, the land of one family (_terra unius familiae_). The abbess Hild -acquires the land of one family and erects a religious house upon -it[1200]; king Oswy gives away twelve tracts of land, each of which -consists of 'the _possessiones_ of ten families'[1201]; the kingdom of -the South Saxons contains the land of 7,000 families[1202]. We see that -already Bede is thinking rather of the size or capacity of a tract of -soil than of the number of households that happen to be dwelling there. -'The measure (_mensura_) of the Isle of Wight is, according to the -English mode of reckoning, 1200 families[1203].' 'The isle of Thanet is -no small island: that is to say, according to the customary English -computation, it is of 600 families[1204].' Some apology is due from a -scholar who writes in Latin and who writes thus; so Bede tells us that -he is using the English mode of reckoning; he is literally translating -some English term. - -[Hide and manse in the land-books.] - -When his own book is rendered into English that term will reappear. -Usually it reappears in the form _híd_, but occasionally we have -_hiwisc_ or _hiwscipe_. There seems no room for doubt that _hiwisc_ and -the more abstract _hiwscipe_ mean a household, and very little room for -doubt that _híd_ springs from a root that is common to it and them and -has the same primary meaning[1205]. Elsewhere we may find an equivalence -between the hide and the _hiwisc_:--'If a Welsh man thrives so that he -has a _hiwisc_ of land and can render the king's gafol, then his wergild -is 120 shillings; but if he attains only to a _half-hide_ then his -wergild is 80 shillings[1206].' In the charters also we may now and then -find that the land to be conveyed is a _hiwisc_[1207], or is the land of -one _familia_[1208]. However, the common English term is _hide_, while -the scribes of the land-books, who as yet are above inventing a Latin -_hida_, ring the changes on half-a-dozen phrases[1209]. We begin with -_terra unius manentis_, _terra unius casati_, _terra unius tributarii_, -which keep clearly before our eyes the fact or the theory that the -normal householder, the normal taxpayer, will possess one of these -units. At a little later time the more convenient _mansa_ (sometimes -_mansio_[1210] or _mansiuncula_) becomes popular, and we may see also -that men are beginning to speak of manents, casates, tributaries 'of -land,' much as they would speak of acres or perches of land[1211]. So -far as we can see, all these terms are being used as though they were -absolutely equivalent. If a clerk has to describe several different -tenements, he will write of _manentes_ in one clause and _casati_ in the -next, merely because a repetition of the same term would be -inelegant[1212]. In Kentish charters we read more of the _aratrum_ and -the _sullung_ than of the manse and the hide; but apparently we have -here other names for what is a similar and in some sort an equivalent -unit[1213]; and it is by no means unknown that Kentish tenements will be -called manses and hides[1214]. - -[The large hide and the manorial arrangement.] - -Now if we ask whether the type to which reference is thus made is a -tenement comprising about six-score acres of arable land, we are asking -a question of the gravest importance. For let us look at some of the -consequences which will flow from an affirmative answer. Let it be -granted that, long before the Norman Conquest, the hide has become an -unit in an unwieldy system of taxation, which has been governed by false -assumptions and vitiated by caprice, until the fiscal hide in a given -case may widely diverge from its original or indeed from any fixed type. -None the less, this system has for its base the theory that the typical -man of Anglo-Saxon law, the typical householder or taxpayer, has a hide, -has land enough for a team of oxen, has 120 arable acres. The language -of the charters supposes that this is so. No doubt the supposition is, -as every supposition of this kind must be, untrue; but still it must -have a core of truth, and in the remotest age this core will be at its -largest. Men will not fall into a habit of speaking of 120 arable acres -or thereabouts as the tenement of one family or of one householder, -unless as a matter of fact the tenement of one family or of one -householder has in a preponderant number of cases some such content as -this. Suppose, for example, that the Anglo-Saxon kingdoms of the sixth -century had been composed chiefly of lords, whose estates ranged from -600 acres to some much larger quantity, and of 'semi-servile' -cultivators, the average size of whose tenements was 30 acres, such a -usage of words as that which we are considering could never have struck -root. Either the small tenement of the cultivator or the big tenement of -his lord must have been taken as the typical 'manse,' the typical 'land -of one householder.' Let us at once press home this argument, though at -present it involves a hypothesis, for in the dull disquisitions that -follow we may be cheered by the thought that great questions are at -stake. If in the oldest time the typical 'land of one householder' had -120 arable acres, the manorial system was not prevalent, not dominant, -in England. It will be admitted on all hands that this would be much too -large a tenement for a serf or a semi-servile _colonus_. On the other -hand, it is much too small a tenement for any one who is going to play -the part of a manorial lord, unless we use the term _manorial_ in so -wide a sense that it becomes useless. For how many tenants will this -manorial lord, who is to be taken as the typical householder, have upon -his 120 acres? If his arrangements are at all like those revealed to us -by Domesday Book, he will keep at least one-third of his land in -demesne, and there will remain but 80 acres for the _coloni_. Shall we -give him three _coloni_, or four or five? We can hardly give him a -larger number. Furthermore, it is quite clear that this 'manorial lord' -will not own a village. The villages as we see them in the earliest -charters and thence onward into Domesday Book contain five, ten, fifteen -hides. Our manorial lord must be content to take his hide in little -scraps scattered about among the scraps of some ten or twenty other -'manorial lords' whose hides are similarly dispersed in the open field -of a village. All this seems to follow inevitably if once we are -satisfied that the hide of the old days had 120 arable acres or -thereabouts; for the hide is the land of one typical householder[1215]. - -[Our course.] - -Now for a long time past there has been among historians and -antiquaries a good deal of agreement in favour of this large hide, but -against it appeal may be made to honoured names, such as those of Kemble -and Eyton[1216]. Also it must be confessed that in favour of much -smaller hides, or at least of much smaller hides for the earliest days, -some weighty arguments may be advanced. In order that they may be -understood, and perchance refuted, we must pursue a long and devious -course and must raise by the way many questions, touching which we have -no right to an opinion: questions about agriculture, questions about -land measurement, perhaps even physiological questions. Also it is our -misfortune that, as we stumble through the night, we must needs stumble -against some of our fellow adventurers. - -FOOTNOTES: - - [1199] The word _tenement_ will be often employed hereafter. Has it - become needful to protest that a _tenement_ need not be a - house? If my body is my soul's 'frail tenement,' that is not - because my body holds my soul (a reprobate error), but - because (for this is better philosophy and sound law) my - soul holds my body. But, to descend from these heights, it - will be a thousand pities if a vulgar blunder compels us to - abandon the excellent _tenement_ in favour of the feeble - _holding_ or the over-worked _estate_. - - [1200] Hist. Eccl. lib. 4, c. 21 (23), ed. Plummer, i. 253. - - [1201] Ibid. lib. 3, c. 24, ed. cit. i. 178. - - [1202] Ibid. lib. 4, c. 13, ed. cit. i. 230. - - [1203] Ibid. lib. 4, c. 14 (16), ed. cit. i. 237. - - [1204] Ibid. lib. 1, c. 25, ed. cit. i. 45. - - [1205] If, as Mr Seebohm suggests (Village Community, p. 398), this - word meant the skin of an ox, some one would assuredly have - Latined it by _corium_, and not by _terra unius familiae_ - (_manentis_ etc.) - - [1206] Schmid, App. VII. (Wergilds), 2, § 7. By comparing this with - Ine 32 we get an even more explicit equation: 'Gif Wylisc mon - hæbbe hide londes' = 'Gif Wilisc mon geþeo þæt he hæbbe - hiwisc landes.' - - [1207] K. 271 (ii. 52), a forgery: 'æt Cemele tien hyda, æt - Domeccesige þriddehalf hiwisce.'--K. 1077 (v. 146): 'æt - hilcan hiwisce feowerti penega.'--K. iii. 431: 'ðæs anes - hiwisces boc ... ðas oðres hiwisces.'--K. 1050 (v. 98). See - also Crawford Charters, 127, for _hiwscipe_. - - [1208] K. 1006 (v. 47): 'de terra iuris mei aliquantulam portionem, - iuxta mensuram scilicet decem familiarum.' See also K. 1007. - - [1209] The would-be Latin _hida_ occurs already in K. 230 (i. 297), - but is rare before the Conquest. On the other hand, as an - English word _híd_ is in constant use. - - [1210] K. 131 (i. 159); K. 140 (i. 169). - - [1211] Thus, to give one early example, K. 1008 (v. 49): 'duodecim - tributarios terrae quae appellantur Ferrinig.' So in K. 124 - (i. 151) we have the neuter form _manentia_. - - [1212] A good instance in Egbert's Dialogue, H. & S. iii. 404. For - how many hides may the clergy swear? A priest may swear - 'secundum numerum 120 tributariorum'; a deacon 'iuxta numerum - 60 manentium'; a monk 'secundum numerum 30 tributariorum.' - Here _tributarii_ alternates with _manentes_ for the same - reason that _secundum_ alternates with _iuxta_. So K. 143 (i. - 173): '_manentes_ ... _casati_ ... _manentes_ ... _casati_.' - - [1213] See Schmid, p. 611. - - [1214] See, for instance, Werhard's testament (A.D. 832), K. 230 (i. - 297): 'Otteford 100 hidas, Grauenea 32 hidas.' These are - Kentish estates. Hereafter we shall give some reasons for - thinking that the Kentish _sullung_ may have a history that - is all its own. - - [1215] Mr Seebohm, Village Community, p. 395, admits that the - _familia_ of Bede and the _casatum_ of the charters is the - hide, and that the hide has 120 acres. This does not prevent - him from holding (p. 266) that when Bede speaks of king Oswy - giving to a church twelve _possessiunculae_, each of ten - families, we must see _decuriae_ of slaves, 'the bundle of - ten slaves or semi-servile tenants.' He seems also to think - that while the hide was 'the holding of the full free - landholder,' the _hiwisc_ was the holding of a servile - family. But the passage which he cites in a note (Wergilds, § - 7) seems to disprove this, for there undoubtedly, as he - remarks, _hiwisc_=_hide_. It is the passage quoted above on - p. 359. The Welshman gets a wergild of 120 shillings - (three-fifths of an English ceorl's wergild) by acquiring a - _hiwisc_ or (Ine 32) _hide_ of land. Why the _hide_ should - not here mean what it admittedly means elsewhere is not - apparent. - - [1216] Though Eyton has (for some reason that we can not find in his - published works) allowed but 48 'gheld acres' to the 'gheld - hide,' he can hardly be reckoned as an advocate of the Small - Hide. His doctrine, if we have caught it, is that the hide - has never been a measure of size. This raises the - question--How comes it then that the fractions into which a - hide breaks are indubitably called (gheld) 'acres'? Why not - ounces, pints, pence? - - - - -§ 1. _Measures and Fields._ - - -[Permanence and change in agrarian history.] - -At the present moment there is no need for arguments which insist upon -the immutable character of ancient agrarian arrangements. If we take up -a map of a common field drawn in the eighteenth century, the lines that -we see upon it are in the main very old. The scheme seems fashioned for -the purpose of resisting change and compelling the men of one age to -till the land as their fathers tilled it. Nothing but an unanimous -agreement among those who are not likely to agree can break up that -prison-house of cells in which agriculture has been cramped and -confined. Rather, it may be, the student who is perusing the 'estate -map' and who is fascinated by the possession of a new tool for picking -historical locks, should warn himself that, though there has been -permanence, there has also been change, and that in a far-off time -changes of a certain sort came quickly. True that in the current of -agricultural progress there is a rapid acceleration as it flows towards -our own day. We may easily go back to an age when the introduction of a -new process or new implement was rare. On the other hand, if we fix our -attention on the map of any one village and contemplate its strips and -balks and virgates, the hazard involved in an assumption of their -antiquity will increase swiftly when we have left behind us the advent -of Duke William and are urging our inferential career towards Hengest -or, it may be, towards Cæsar. - -[Rapidity of change in old times.] - -Let us look, for example, at the changes that take place in some Essex -villages during the twenty years that precede the Domesday Inquest. The -following table shows them: - - Villani Bordarii Servi Lord's Men's - teams teams - - Teidana[1217], T. R. E. 5 3 4 2 4 - T. R. W. 1 17 0 3 3 - - Waldena[1218], T. R. E. 66 17 16 8 22 - T. R. W. 46 40 20 10 22 - - Hame[1219], T. R. E. 32 16 3 5 8 - T. R. W. 48 79 3 4 12 - - Benefelda[1220], T. R. E. 10 2 7 3 7 - T. R. W. 9 11 4 3 4 - - Wimbeis[1221], T. R. E. 26 18 6 3 21 - T. R. W. 26 55 0 3 15 - -These are but specimens of the obscure little revolutions that are being -accomplished in the Essex villages. In general there has been a marked -increase in the number of _bordarii_, at the expense of the villeins on -the one part and the serfs on the other[1222], and this, whatever else -it may represent, must tell us of a redistribution of tenements, perhaps -of a process that substitutes the half-virgate for the virgate as the -average holding of an Essex peasant. The jar of conquest has made such -revolutions easy[1223]. - -[Devastation of villages.] - -But, it will be said, though the 'bundles' of strips be cut in half, the -main features of the field remain constant. Let us, however, look at -Yorkshire, where for fifteen years an immense tract of land has been -lying 'waste.' Have we any reason to believe that when agriculture -slowly steals back into this desert there will be a mere restoration of -the defaced map? Surely not. If for a few years an 'open field' lies -waste, there will be no mere restoration. For one thing, many of the old -outlines will have utterly vanished. Even if the acres were already -divided by the so-called 'balks' (and we can not be sure that they -always were[1224]), the balk was but a narrow strip of unploughed sward -and would hardly be perceptible when the whole field was once more a -sheet of grass and weeds. For another thing, new settlers would probably -begin by ploughing only a small portion of the old field. It is likely -enough that their measuring rod would not be even approximately equal to -the rod employed in a previous century, and they would have ample -opportunity for the introduction of novelties, for the substitution of -three fields for two and for all that such a change implies. Now -William's deliberate devastation of the north is but one final and -grandiose exploit of an ancient kind of warfare. After his day agrarian -history becomes more stable because invasions cease and the character of -civil warfare changes. The strife between York and Lancaster, between -King and Parliament, passes like a thunderstorm over the fields; it -damages the crops; but that is all, and Bosworth 'Field' and Naseby -'Field' will next year be tilled in the same old way. A raid of the -Danes, a feud between Angle and Saxon, was a different affair. The -peasants fought. Men, women and children were sold as slaves. Also there -was deliberate devastation. 'They make a wilderness and call it peace.' -What else should they call it, when a foodless wilderness is the most -scientific of all frontiers? Readers of the English Chronicle will doubt -whether there is any village in England that has not been once, or more -than once, a deserted village. And if we must reckon with war, there is -famine also to be reckoned with. When in a few brief words the English -Chronicler tells us that in 1043 there was mickle hunger in the land so -that the sestar of corn sold for sixty pence and even more[1225], he -is, like enough, telling us of a disaster which depopulated many a -village and forced many a villager to bow his head for meat in those -evil days[1226]. Agrarian history becomes more catastrophic as we trace -it backwards. - -[Village colonies.] - -And, putting on one side the ravages of war and famine, we must call to -mind the numerous hints that our map gives us of village -colonization[1227]. Men did not make two contiguous villages at one time -and call them both Hamton. Names are given to places in order that they -may be distinguished from neighbouring places. So when we see two -different villages, called Hamton and Other Hamton, lying next each -other, we may be fairly certain that they are not of equal antiquity, -and it is not unlikely that the one is the offshoot and daughter of the -other[1228]. There are about one hundred and fifty Newtons and Newtowns -in England. Every instance of colonization, every new settlement in the -woods, gave scope for the introduction of novelties, such scope as was -not to be found in after days when men stood thicker on the soil and all -the best land was already tilled[1229]. - -[Antiquity of the three-field system.] - -Therefore we must not trust a method of husbandry or a scheme of -land-measures much further than we can see it. Nothing, for example, -could be rasher than the assumption that the 'three-course system' of -tillage was common in the England of the seventh century[1230]. We have -a little evidence that it was practised in the eleventh[1231], perhaps -some evidence, that it was not unknown in the ninth[1232]. But 'the -two-course system' can be traced as far[1233], and seems to have been as -common, if not commoner, in the thirteenth century[1234]. If on a modern -map we see a village with 'trinity fields,' we must not at once decide -that those who laid them out sowed two in every year, for it is well -within the bounds of possibility that two were left idle[1235]. An -agriculture of this kind was not unknown in the Yorkshire of the -fourteenth century[1236], and indeed we read that in the eighteenth 'one -crop and two fallows' was the traditional course in the open field of a -Suffolk village[1237]. - -[Differences between the different shires.] - -We have time enough on our hands. Between Domesday Book and the -withdrawal of the legions lies as long an interval as that which -separates the Conqueror from Mr Arthur Young. Also we have space enough -on our hands. Any theory that would paint all England as plotted out for -proprietary and agricultural purposes in accordance with a single -pattern would be of all theories the least probable. We need not -contrast Kent with Westmoreland, or Cornwall with Norfolk, for our maps -seem to tell us that Somerset differed from Wiltshire and Dorset. The -settlement of a heathen folk loosely banded together under a war-lord -was one thing; the conquest of a new province by a Christian king who -was advised by foreign bishops and had already been taught that he had -land to 'book,' would be another thing. If, as seems possible, we read -in Ine's laws of a 'plantation' of some parts of Somerset effected by -means of large allotments made to the king's gesiths, who undertake to -put tillers on the soil[1238], we must not at once infer that this is an -old procedure, for it may be very new, and may have for its outcome an -agrarian arrangement strikingly unlike that which existed in the heart -of the older Wessex. - -[New and old villages.] - -Moreover there are upon the face of our map many cases which seem to -tell us that in the oldest days the smallest district that bore a name -was often large, and therefore that the territory which subserved a -single group of homesteads was often spacious. One example we will take -from Norfolk. We find a block of land that now-a-days consists of eleven -parishes, namely, Wiggenhall St. Mary the Virgin, Wiggenhall St. -German, Wiggenhall St. Peter, Wiggenhall St. Mary Magdalen, Tilney cum -Islington, Tilney All Saints, Tilney St. Lawrence, Terrington St. -Clement, Terrington St. John, Walpole St. Peter, Walpole St. -Andrew[1239]. In such a case we can hardly suppose that all these -villages belong to the same age, even if we are not entitled to infer -that the later villages were not founded until the day for parish -churches had arrived. This being so, it is highly probable that some -villages were formed at all stages of the feudalizing process, and -therefore that a historical account of 'the' English township, or even -of 'the' English nucleated village, would of necessity be untrue. And, -while this East Anglian specimen is still before us, we may notice -another interesting trait. In the Marshland Fen there is a considerable -tract of ground which consists of 'detached portions' of these and other -villages. Each has been given a block there, a fairly rectangular block. -At one point the partition is minute. A space of less than 36 acres has -been cut up so that no less than six villages shall have a piece, a -rectangular piece of it[1240]. It seems very possible that this fen has -at some time been common ground for all these villages, and, as already -said, it is in this quarter that we may perhaps find traces of something -that resembled the 'marks' of Germany[1241]. The science of village -morphology is still very young, and we must not be led away into any -discussion of its elements; but there is the more reason why we should -take to heart those warnings that it already gives us, because what we -can read of hides is to be found for the more part in documents -proceeding from a central power, which, for governmental and fiscal -purposes, endeavours to preserve fictitious continuity and uniformity in -the midst of change and variety. However, we must draw nearer to our -task. - -[History of measures.] - -As regards land measurement, we may be fairly certain that in the days -before the Norman Conquest there was little real, though much nominal -uniformity. The only measures for the size of things with which nature -has equipped the natural man are his limbs. For the things that he -handles he uses his thumb, span, cubit, ell; for the ground upon which -he walks, his foot and his pace. For large spaces and long distances he -must have recourse to 'time-labour-units,' to the day's journey and the -morning's ploughing. Then gradually, under the fostering care of -government, steady equations are established between these -units:--twelve thumbs, for instance, are to make a foot. Thus the -measures for land are brought into connexion with the more delicate -measures used for cloth and similar stuff. Then an attempt to obtain -some standard less variable than the limb may forge a link between -thumbs and grains of corn. Another device is the measuring rod. One rod -will represent the arm of an average man; a longer rod may serve to -mediate between the foot which is short and the acre or day's ploughing -which is large. In laying out a field in such wise that it shall consist -of equal pieces, each of which can be ploughed in a forenoon, we -naturally use a rod. We say, for example, that to plough a strip that is -4 rods wide and 40 long is a fair day's work. For some while there is -no reason why the rods employed in two neighbouring villages should be -strictly or even approximately equal[1242]. Taxation is the great force -that makes for standard land measures. Then a king declares how many -thumbs there ought to be in the cloth-ell or cloth-yard. At a later time -he actually makes cloth-ells or cloth-yards and distributes them, -keeping an ultimate standard in his own palace. Thenceforward all other -units tend to become mere fractions or multiples of this royal stick. -The foot is a third, the thumb or inch a thirty-sixth part thereof. Five -and a half cloth-measuring yards make a royal land-measuring rod. Plot -out a space which is four rods by forty, you will have an acre. - -[Slow growth of uniformity.] - -The whole story, if ever it be told at length, will be intricate; but we -believe that a general persuasion that land-measurements ought to be -fixed by law and by reference to some one carefully preserved standard -is much more modern than most people think. Real accuracy and the -establishment of a measure that is to be common to the whole realm first -emerge in connexion with the measurement of cloth and such like. There -is a delightful passage in the old Scotch laws which tells us that the -ell ought to contain 37 inches meted by the thumbs of three men, 'þat is -to say, a mekill man and a man of messurabill statur and of a lytill -man[1243].' We have somewhere read that in Germany, if a perch of -fifteen feet was to be manufactured, the first fifteen people who -chanced to come out of church contributed each a foot towards the -construction of the standard. At an early time, however, men were trying -to find some class of small things which were of a fairly invariable -length and hit upon barley-corns. This seems to have happened in England -before the Norman Conquest[1244]. Instead of taking the 'thoume' of 'a -man of messurabill statur' for your inch, you are to take three -barley-corns, 'iii bear cornys gud and chosyn but tayllis (i.e. without -the tails)'[1245]. But the twelfth century was drawing to an end before -any decisive step was taken to secure uniformity even in the measurement -of cloth. In Richard I.'s day guardians of weights and measures are to -be appointed in every county, city and borough; they are to keep iron -_ulnae_[1246]. At this time or a little later these _ulnae_, ells or -cloth-yards were being delivered out by a royal officer to all who might -require them, and that officer had the custody of the ultimate -standards[1247]. We may doubt whether the laws which require in general -terms that there shall be one measure throughout the realm had measures -of land in view[1248]. A common standard is not nearly as necessary in -this case as it is in the case of cloth. Even in our own day men do not -buy land by the acre or the perch in the same sense as that in which -they buy cloth or cotton by the yard. Very rarely will anyone name a -price for a rood and leave it to the other bargainer to decide which out -of many roods shall be included in the sale. Nevertheless, the -distribution of iron _ulnae_ was important. An equation was established -between the cloth measure and the land measure: five-and-a-half _ulnae_ -or cloth-yards make one royal perch. After this we soon find that land -is occasionally measured by the iron _ulna_ of the king[1249]. - -[Superficial measure.] - -The scheme of computation that we know as 'superficial measure' was long -in making itself part of the mental furniture of the ordinary man. Such -terms as 'square rod' and 'square mile' were not current, nor such -equations as that which tells us how 144 square inches make a square -foot. Whatever may have been the attainments of some cloistered -mathematicians, the man of business did not suppose that he could talk -of size without talking of shape, and indeed a set of terms which speak -of shapeless size is not very useful until men have enough of geometry -and trigonometry to measure spaces that are not rectangular -parallelograms. The enlightened people of the thirteenth century can say -that if an acre is _x_ perches long it is _y_ perches wide[1250]. They -can compare the size of spaces if all the lines be straight and all the -angles right; and for them an acre is no longer of necessity ten times -as long as it is broad. But they will not tell us (and they do not -think) that an acre contains _z_ 'square perches.' This is of some -importance to students of Domesday Book. Very often the size of a tract -of land is indicated by the length of two lines:--The wood or the -pasture is _x_ leagues (furlongs, perches, feet) in length and _y_ in -breadth. Now, to say the least, we are hasty if we treat this as a -statement which gives us size without shape. It is not all one to say -that a wood is a league long and a league wide and to say that it is two -leagues long and half a league wide. The jurors are not speaking of -superficial content, they are speaking of length and breadth, and they -are either giving us the extreme diameters of the irregularly shaped -woods and pastures, or (and this seems more probable) they are making -rough estimates of mean diameters. If we go back to an earlier time, the -less we think of 'superficial measure' the better[1251]. - -[The modern system.] - -Let us recall the main features of our modern system, giving them the -names that they bore in medieval Latin. - - _Linear Measure._ - - 12 inches (_pollices_)=1 foot (_pes_); 3 feet=1 yard (_ulna_); 5·5 - yards=1 rod, pole, perch (_virga_, _pertica_, _perca_); 40 - perches=1 furlong (_quarentina_); 8 furlongs=1 mile (_mille_); 12 - furlongs=1 _leuua_, _leuca_, _leuga_ (league)[1252]. - - _Superficial Measure._ - - 144 square inches=1 square foot; 9 square feet=1 square yard; 30·25 - square yards=1 square perch; 40 square perches=1 rood; 4 roods=1 - acre[1253]. - -In the thirteenth century these outlines are already drawn; but, as we -have seen, if we are to breathe the spirit of the time, we ought to say -(while admitting that acres may be variously shaped) that the normal -acre is 4 perches in width and 40 perches (=1 furlong) in length. The -only other space that we need consider is the quarter of an acre, our -rood. That ought to be 1 perch in width and 1 furlong (=40 perches) in -length. The breadth of the acre is still known to all Englishmen, for it -is the distance between the wickets. - -[The ancient elements of land measure.] - -This system has been generated by the corelation of cloth-measures and -land-measures. If we are going back to remote times, we must expel the -cloth-measures as intruders. What then is left is very simple; it is -this:--the human foot, a day's ploughing and a measuring stick which -mediates between feet and acres. That stick has had many names. Our -arithmetic books preserve three, 'rod, pole or perch'; it has also been -known as a _g[=a]d_ or _goad_ and a _lug_: but probably its oldest name -is _yard_ (_gyrd_). It is of some importance that we should perceive -that our modern yard of three feet is not one of the very ancient -land-measures. It is a 'cloth-yard' not a land-yard. In medieval -documents the Latin name for it is _ulna_[1254], and probably the oldest -English name for it is _eln_, _elle_, _ell_. There seems to have been a -shifting of names. The measuring rod that was used for land had so many -names, such as _perch_, _rod_, _pole_, _goad_, _lug_, that it could -afford, if we may so speak, to dispense with the additional name of -_yard_, which therefore might stand for the much shorter rod that was -used by the clothiers. However, even in our own century men have been -speaking of 'yards of land' in a manner which implies that at one time a -yard, when mentioned in this context, was the same thing as the perch. -When they have spoken of a 'yard of land' they have meant sometimes a -quarter of an acre (our rood) and sometimes a much larger space. In 1820 -a 'yard of land' means, we are told, a quarter of an acre in Wiltshire, -while in Buckinghamshire it stands for a tract which varies from 28 to -40 acres[1255]. This last application of the term we shall consider by -and by. A yard of land or rood of land (_rood_ and _rod_ are all one) is -a quarter of an acre, because an acre is four rods or 'yards' or perches -in width, and, when an acre is to be divided, it is always, and for a -very good reason, divided by lines parallel to its long sides. So though -the rood or yard of land may in course of time take other shapes and -even become a shapeless size, it ought to be a rod or 'yard' in width -and forty rods or one furlong in length. - -[The German acre.] - -So we start with the human foot, the day's ploughing and a rod. How much -borrowing there has been in this matter by race from race is an obscure -question. For example, the mediation of a rod between the foot and the -day's work is common to the Roman and the Germanic systems. Here the -similarity ends, and the vast differences which begin seem to have -exceedingly deep roots. We can not be content with saying that the Roman -puts two oxen in the plough and therefore draws short furrows, whereas -the German puts eight oxen and draws long furrows. There seems to be a -radical disagreement between them as to what a plough should be and what -a plough should do[1256]. To these matters we can make but the slightest -reference, nor dare we touch the problems of Celtic history. Somehow or -another the Germans come to the rule that generally an acre or day's -work should be four rods wide and, if possible, about forty rods -long[1257]. - -[English acres.] - -[Small acres.] - -It is very probable that in England this rule prevailed at a remote -time. Throughout the middle ages and on to our own day there have been -many 'acres' in England which swerved markedly from what had become the -statutory type, and in some cases a pattern divergent from the statutory -pattern became 'customary' in a district. But apparently these customary -acres commonly agree with the royal standard in involving the equation: -1 acre = 4 perches x 40 perches[1258]. In Domesday Book and thence -onwards the common Latin for _furlong_ is _quarentina_, and this tells -us of furrows that are forty perches long. It is when we ask for the -number of feet in a perch that we begin to get various answers, and very -various they are. The statutory number, the ugly 16·5, looks like a -compromise[1259] between 15 and 18, both of which numbers seem to have -been common in England and elsewhere. This is the royal equation in the -thirteenth century; it has been found near the middle of the -twelfth[1260]; more at present we cannot say. Short perches and small -acres have been very common in the south of England. In 1820 some -information about the customary acre was collected[1261]:--In -Bedfordshire it was 'sometimes 2 roods.' In Dorsetshire 'generally 134 -[instead of 160] perches.' In Hampshire, 'from 107 to 120 perches, but -sometimes 180,' In Herefordshire, 'two-thirds of a statute acre,' but -'of wood, an acre and three-fifths or 256 perches.' In Worcestershire, -'sometimes 132 or 141 perches.' In Sussex, '107, 110, 120, 130 or 212 -perches'; '_short acre_, 100 or 120 perches'; '_forest acre_, 180 -perches,' Then as to rods, the 'lug or goad' of Dorsetshire had 15 ft. 1 -in.; in Hertfordshire, 20 feet; in Wiltshire, 15 or 16-1/2 or 18. The -wide prevalence of rods of 15 feet can not be doubted, and it seems -possible that rods with as few as 12 feet have been in use[1262]. An -acre raised from a 12 foot rod would, if feet were invariable, be little -more than half our modern statute acre. Nowhere do we see any sure trace -of a rod so short as the Roman _pertica_ of ten _pedes_, though the -scribes of the land-books will give the name _pertica_ to the English -_gyrd_[1263]. - -[Large acres.] - -In northern districts the 'customary' acre grows larger. In Lincolnshire -it is said to be '5 roods, particularly for copyhold land'; but small -acres were known there also[1264]. In Staffordshire, 'nearly 2-1/4 -acres.' In Cheshire, 'formerly and still in some places 10,240 square -yards' (pointing to a rod of 24 feet). In Westmoreland, '6760 square -yards' (pointing to a rod of 19-1/2 feet), also the so-called 'Irish -acre' of 7840 square yards (pointing to a rod of 21 feet). There is much -evidence that rods of 20 and 21 feet were often used in Yorkshire and -Derbyshire. Rods of 18, 19-1/2, 21, 22-1/2 and 24 feet were known in -Lancashire. A writer of the thirteenth century speaks as if rods of 16, -18, 20, 22 and 24 feet were in common use, and mentions none -shorter[1265]. As just said, the Irish plantation acre was founded on a -rod of 21 feet. The Scotch acre also is larger than the English; it -would contain about 6150·4 instead of 4840 of our square yards; it is -formed from a rod of 6 Scotch ells. On the other hand, the acres which -have prevailed in Wales seem to be small; one type had 4320 of our -square yards, another 3240. - -[Anglo-Saxon rods and acres.] - -There has been variety enough. Even if the limits of variation are given -by rods of 12 and 24 feet, this will enable one acre to be four times as -large as another. Whether before the twelfth century there was anything -that we ought to call a standard rod, a royal rod for all England, must -be very doubtful. In royal and other land-books references are made to -furlongs, to acre-breadths, to yards or rods or perches, and to feet as -to known measures of length[1266], but whether a kingly gift is always -measured by a kingly rod we do not know. The Carolingian emperors -endeavoured to impose a rod upon their dominions; it seems to have been -considerably shorter than our statute perch[1267]. In this province we -need not expect many Norman novelties. We see from Domesday Book that -the Frenchmen introduced the ancient Gallic _arpentum_[1268] as a -measure for vineyards[1269]; but most of the vines were of their own -planting, and the mere fact that they used this measure only for the -vineyards seems to tell us that they were content with English rods and -English acres[1270]. In Normandy the perches seem to have ranged upwards -from 16 to 25 feet[1271]; so that 16·5 would not have hit the average. -On the whole, our perch seems to speak of a king whose interests and -estates lay in southern England and who struck a mean between 15 and 18. -Whoever he was, we owe him no thanks for the 'undecimal' element that -taints our system[1272]. - -[Customary acres and forest acres.] - -But we must be cautious in drawing inferences from loose reports about -'customary' measures. Village maps and village fields have yet to be -seriously studied. We may in the meanwhile doubt whether in some -districts to which the largest acres are ascribed, such acres are normal -or are drawn in the oldest villages. We may suspect them of being -'forest acres.' If once a good many of these abnormal units are -distributed in a district, they will by their very peculiarity attract -more than their fair share of attention and will be spoken of as -characteristic of that district. In Germany, as well as in England, we -find forest acres which are much larger than common acres and are meted -by a rod which is longer than the common rod[1273]. Possibly men have -found a long rod convenient when they have large spaces to measure, but -we fancy that the true explanation would illustrate the influence -exercised by taxation on systems of measurement. Some scheme of -allotment or colonization is being framed; an equal tribute is to be -reserved from the allotted acres. If, however, there is uncleared -woodland to be distributed, rude equity, instead of changing the tribute -on the acre, changes the acre's size and uses a long rod for land that -can not at once be tilled[1274]. Also fields that were plotted out by -Normans were likely to have large acres, and as the perches of Normandy -seem to have been longer than most of the perches that were used in -France, we may perhaps infer that the Scandinavian rods were long and -find in them an explanation of the big acres of northern England. But at -present such inferences would be precarious. - -[The acre and the day's work.] - -Whether in its origin the land-measuring rod is a mere representative of -a certain number of feet or is some instrument useful for other purposes -seems to be dubious. One of the names that it has borne in English is -_goad_; but most of our rods would be extravagantly long goads[1275]. -Possibly the width of four oxen yoked abreast has exercised some -influence upon its length[1276]. When a rod had once found acceptance, -it must speedily have begun to convert that 'time-labour-unit,' the -acre, into a measured space. Already in the land-books we read of acres -of meadow[1277]; this is no longer a contradiction in terms. Still there -can be no doubt that our acre, like the _jurnale_, _Tagwerk_, _Morgen_ -of the Continent, has at its root the tract that can be ploughed in a -day, or in a forenoon:--in the afternoon the oxen must go to the -pasture[1278]. Now, when compared with their foreign cousins, our -statute perch is a long rod and our statute acre is a decidedly large -'day-work-unit[1279].' It seems to tell of plentiful land, sparse -population and poor husbandry. This is of some importance. There is a -good deal of evidence pointing to the conclusion that, whereas in the -oldest days men really ploughed an acre in a forenoon, the current of -agricultural progress made for a while towards the diminution of the -space that was covered by a day's labour. In Ælfric's dialogue the -ploughman complains that each day he must till 'a full acre or -more[1280].' His successor, the poetic Piers, had only a half-acre to -plough[1281]. In monastic cartularies which come from southern counties, -where we have no reason to suspect exceptionally large acres, the -villein seems often to plough less than an acre[1282]. Then that -enlightened agriculturist, Walter of Henley, enters upon a long argument -to prove to his readers that you really can plough seven-eighths of an -acre in a forenoon, and even a whole acre if you are but engaged in that -light kind of ploughing which does for a second fallowing[1283]. Five -centuries later another enlightened agriculturist, Arthur Young, -discovered that 'from North Leach, through Gloucestershire, -Monmouthshire, and Glamorganshire, light and middling turnip-land etc.' -was being ploughed at the rate of half an acre to one acre a day by -teams of 'eight oxen; never less than six; or four and two horses.' -This, he says, was being done 'merely in compliance with the obstinacy -of the low people,' for 'the labourers will not touch a plough without -the usual number of beasts in it[1284]'. Mr Young could not tell us of -'these vile remnants of barbarity without a great degree of -disgust[1285]'. But we are grateful. We see that an acre of light land -was the maximum that these 'low people' with their eight oxen would -plough in a day, and we take it that at one time the voice of reforming -science had urged men to diminish the area ploughed in a given time, to -plough deeper and to draw their furrows closer. The old tradition was -probably well content with a furrow for every foot. Walter of Henley -proposed to put six additional furrows into the acre[1286]. Hereafter we -shall see that some of the statistics given by Domesday Book fall in -with the suggestion that we are here making. Also we may see on our maps -that the strip which a man has in one place is very often not an acre -but a half-acre. Now, in days when men really ploughed an acre at a -stretch, such an arrangement would have involved a waste of time, since, -when the morning's work was half done, the plough would be removed from -one 'shot' to another[1287]. - -[The real acres in the fields.] - -At length we reach the fields, and at once we learn that there is -something unreal in all our talk of acre and half-acre strips. In -passing we may observe that some of our English meadows which show by -their 'beds' that they were not always meadows, seem to show also that -the boundaries of the strips were not drawn by straight rods, but were -drawn by the plough. The beds are not straight, but slightly sinuous, -and such, it is said, is the natural course of the old plough; it -swerves to the left, and this tendency is then corrected by those who -guide it[1288]. But, apart from this, land refuses to be cut into -parallelograms each of which is 40 rods long and 4 wide. In other words, -the 'real acres' in an open field diverge widely from the ideal acre -that was in the minds of those who made them. - -[The 'shots.'] - -Let us recall a few features of the common field, though they will be -familiar to all who have read Mr Seebohm's book[1289]. A natural limit -to the length of the furrow is set by the endurance of oxen. From this -it follows that even if the surface that lies open is perfectly level -and practically limitless, it will none the less be broken up into what -our Latin documents call _culturae_[1290]. The _cultura_ is a set of -contiguous and parallel acre-strips; it tends to be a rude -parallelogram; two of its sides will be each a furlong ('furrowlong') in -length, while the length of the other sides will vary from case to case. -We commonly find that every great field (_campus_) is divided into -divers _culturae_, each of which has its own name. The commonest English -equivalent for the word _cultura_ seems to have been _furlong_, and this -use of _furlong_ was very natural; but, as we require that term for -another purpose, we will call the _cultura_ a _shot_. So large were the -fields, that the annual value of an acre in one shot would sometimes be -eight times greater than that of an acre in another shot[1291]. To such -differences our ancestors were keenly alive. Hence the dispersion of the -strips which constitute a single tenement. - -[Delimitation of shots.] - -But to make 'shots' which should be rectangular and just 40 feet long -was often impossible. Even if the surface of the field were flat, its -boundaries were the irregular curves drawn by streams and mounds. In -order to economize space, shots running at right angles to other shots -were introduced, and of necessity some furlongs were longer than others. -If, however, as was often the case, men were laying out their fields -among the folds of the hills, their acres would be yet more irregular -both in size and in shape. They would be compelled to make very small -shots, and the various furrows if 'produced' (in the geometer's sense of -that word) would cut each other at all imaginable angles. On the maps we -may still see them struggling with these difficulties, drawing as many -rectilinear shots as may be and then compelled to parcel out as best -they can the irregularly shaped patches that remain. And then we see -that even these patches have been allotted either as acres or as -half-acres. - -[The real and the ideal acre.] - -Therefore, when we are dealing with medieval documents, we have always -to remember that besides ideal acres there were real acres which were -mapped out on the surface of the earth, and that a plot will be, and -rightly may be, called an acre though its size is not that of any ideal -acre. To tell a man that one of these acre-strips was not an acre -because it was too small would at one time have been like telling him -that his foot was no foot because it fell short of twelve inches. This -point is made very plain by some of the beautiful estate maps edited by -Mr Mowat[1292]. We have a map of 'the village of Whitehill in the -parishe of Tackley in the countye Oxon., the moitye or one halfe whereof -belongeth to the presidente and schollers of Corpus christi colledge in -the universitye of Oxon., the other moitye unto Edwarde Standerd yeoman -the particulars whereof soe far as knowne doe plainelye appeare in the -platte and those which are unknowne, as wastes comons and lotte meadowes -are equallye divided betweene them, drawne in November anno domini 1605, -regni regis Iacobi iijº.' We see four great fields divided first into -shots and then into strips. Each strip on the map bears an inscription -assigning it either to the college or to Mr Standerd, and with great -regularity the strips are assigned to the college and to Standerd -alternately. Then on each strip is set its 'estimated' content, and on -each strip of the college land is also set its true content. Thus -looking at one particular shot in the South Field we read: - - ij. ac. coll. 1. 1. 36 - Edw. Stand. ij. ac. - ij. ac. coll. 1. 2. 2 - Edw. Stand. ij. ac. - ij. ac. coll. 1. 2. 2 - Edw. Stand. ij. ac. - ij. ac. coll. 1. 0. 39. - -This means that, going along this shot, we first come to a -two-acre-strip of college land containing by admeasurement 1 A. 1 R. 36 -P.; next to a two-acre strip of Standerd's land, which the surveyor, who -was making the map for the college, was not at pains to measure; then to -a two-acre strip of college land containing 1 A. 2 R. 2 P.:--and so -forth. Then in the margin of the map has been set 'A note of the -contentes of the landes in Whitehille belonginge to the colledge.' It -tells us how 'theire groundes in the West Fielde by estimation 80 acres -doe conteine by statute measure 48 A. 2 R. 24 P.' The other fields we -may deal with in a table - - A. A. R. P. - East Field estimation 75 measure 51 1 25 - Middle Field 58 39 3 36 - South Field 103 59 2 13 - -It will be seen at once that the discrepancy between the two sets of -figures is not to be fully explained by the supposition that at -Whitehill men had measured land by measures differing from our statutory -standards[1293]. The size of a 'two-acres' (and the land in this -instance had been divided chiefly into 'two-acres') varied not only from -field to field and shot to shot, but within one and the same shot. Each -two-acre strip has an equal breadth, but the curving boundaries of the -fields make some strips longer than others[1294]. - -[Varying size of the acres.] - -We turn to the admirable maps of Heyford in Oxfordshire designed in -1606. Here the land is divided among many occupiers and cut up into a -vast number of strips, to each of which is assigned its 'estimated' and -its measured content. Thus we read:-- - - dim. ac. Jo. Sheres 1. 18 - dim. ac. Ric. Elkins 1. 18 - dim. ac. Jo. Merry 1. 18. - -In this part of this shot a 'half-acre' contains 1 R. 18 P. Some of the -shots in this village have fairly straight and rectangular boundaries, -so that we may, for example, find that many successive 'half-acres' -contain 1 R. 18 P. But then if we pass to the next shot we shall find 1 -R. 28 P. in the 'half-acre,' while in a third shot we shall find but 1 -R. 8 P. Yet every strip of land is a 'half-acre' or an 'acre' or a 'acre -and a half' or a 'two acres' or a 'three acres.' We see further that -when 'acres' occur among 'half-acres' the strips vary in breadth but not -in length. - -On a map of Roxton made in 1768 we have the same thing written out in -English words. Thus:-- - - Eliz. Gardner a half 0. 1. 32 - Carpenter a half 0. 1. 32 - Harris an acre 0. 3. 24 - Carpenter a half 0. 1. 32 - Jam. Gardner an acre 0. 3. 24 - Makepace a half 0. 1. 34 - -The result of all this is that anyone who lives in a village knows how -many 'acres' its fields contain. He has not to measure anything; he has -only to count strips, for he is not likely to confuse 'acres' with -'half-acres' and that is the only mistake that he could make. - -[Irregular length of acres.] - -If a shot had a curved boundary, little or no pains seem to have been -taken to equalize the strips that lay within it by making additional -width serve as a compensation for deficient length. The width of the -so-called acre remained approximately constant while its length varied. -Thus, to take an example from the map of Heyford, we see a shot which is -bounded on the one side by a straight line and on the other by a curving -road. At one end of it the acre contains 2 R. 8 P.; this increases to 2 -R. 30 P.; then slowly decreases until it has fallen as low as 1 R. 36 -P., and then again rises to 2 R. 2 P. When they were dividing the field, -men attempted to map out shots in which approximately equal areas could -be constructed; but, when a shot was once delimited, then all the acres -in it were made equally broad, while their length could not but vary, -except in the rare case in which the shot was a true rectangle[1295]. - -[The selions or beds.] - -It is probable that the whole system was made yet more visible by the -practice of ploughing the land into 'beds' or ridges, which has but -recently fallen out of use. In our Latin documents these ridges appear -as selions (_seliones_). In English they were called 'lands,' for the -French _sillon_ struck no root in our language. Anyone who has walked -through English grass fields will know what they looked like, for they -triumph over time and change[1296]. Now it would seem that a fairly -common usage made four selions in each acre[1297]; in other words, each -acre-strip was divided longitudinally into four waves, so that the -distance from crest to crest or trough to trough was a perch in length. -Where this usage obtained, you could tell how many acres a shot or field -contained by merely observing the undulations of the surface. Even if, -as was often the case, the number of selions in the acre was not four, -still the number that went to an acre of a given shot would be known, -and a man might argue that a strip was an acre because in crossing it he -traversed three or six terrestrial waves[1298]. - -[Acres divided lengthwise.] - -If we look at old maps, we soon see that when an acre was divided, it -was always divided by a line that was parallel, not to its short ends, -but to its long sides. No one would think of dividing it in any other -fashion. Suppose that you bisected it by bisecting its long sides, you -would force each owner of a half-acre to turn his plough as often as if -he had a whole acre. Besides, you would have uneconomical furrows; the -oxen would be stopped before they had traversed what was regarded as the -natural distance for beasts to go. Divide your acre into two long -strips, then your folk and beasts can plough in the good old way. Hence -it follows that when men think of dividing an acre they speak only of -its breadth. Hence it follows that the quarter of an acre is a 'rood' or -'yard[1299]' or _virga_ or _virgata_ of land. Its width is a rod or -land-yard, and its length--but there is no need to speak of its -length[1300]. - -[The virgate.] - -How then does it happen that these terms 'virgate' and 'yard of land,' -though given to a quarter of an acre, are yet more commonly given to a -much larger quantity containing 30 acres or thereabouts? The explanation -is simple. The typical tenement is a hide. If you give a man a quarter -of a hide (an equitable quarter, equal in value as well as extent to -every remaining quarter) you do this by giving him a quarter of every -acre in the hide. You give him a rood, a yard, a _virga_[1301], a -_virgata_ in every acre, and therefore a rood, a yard, a _virga_, a -_virgata_ of a typical tenement[1302]. - -[The double meaning of a yard.] - -No doubt it is clumsy to have only one term for two quantities, one of -which is perhaps a hundred-and-twenty times as great as the other; but -the context will tell us which is meant, and the difference between the -two is so large that blunders will be impossible. In course of time -there will be a differentiation and specification of terms. To our ears, -for example, _r[=o]d_ (_rood_) will mean one thing, _r[)o]d_ another, -_yard_ a third; but even in the nineteenth century royal commissioners -will report that a 'yard of land' may mean a quarter of an acre or 'from -28 to 40 acres[1303].' When men have not apprehended 'superficial -measure' (the measurement of shapeless size), when their only units are -the human foot, a rod, an average day's work and the tenement of a -typical householder, their language will be poor, because their thought -is poor. - -[The yard-land a fraction of a hide.] - -We have now arrived at a not insignificant truth. The virgate or -yard-land of 30 acres or thereabouts is not a primary unit like the -hide, the rod, the acre. It is derivative; it is compound. In its origin -it is a rod's breadth in every acre of a hide. In course of time in this -case, as in other cases, size will triumph over shape. The acre need not -be ten times as long as it is broad; the virgate need not be composed, -perhaps is rarely composed, of scattered quarter-acres; quartering acres -is an uneconomical process; it leads to waste of time. But still the -term will carry on its face the traces of an ancient history and a -protest against some modern theories. The virgate in its inception can -not be a typical tenement; it is a fraction of a typical tenement. - -[The yard-land in laws and charters.] - -What we have here been saying seems to be borne out by the Anglo-Saxon -laws and charters. They barely recognize the existence of such entities -as yard-lands or virgates. The charters, it must be confessed, deal with -large tracts and seldom have need to notice less than a hide. When, -however, they descend below the hide, they at once come down to the -acre, and this although the quantity that they have to specify is 90, or -60 or 30 acres[1304]. On the other hand, any reference to such an unit -as the virgate or yard-land is exceedingly rare. To judge by the -charters, this is a unit which was but beginning to force itself upon -men's notice in the last century before the Conquest[1305]. From a -remote time there may have been many tenements that were like the -virgates or yard-lands of later days; but the old strain of language -that is preserved in the charters ignores them, has no name for them, -and, when they receive a name, it signifies that they are fractions of a -householder's tenement. - -[The hide not at first a measure.] - -As an unit larger than the acre men have known nothing but the hide, the -manse, the land of one family, the land of one householder. This is what -we find in England: also it is found in Germany and Scandinavia[1306]. -The state bases its structure, its taxation, its military system, upon -the theory that such units exist and can be fairly treated as equal or -equivalent. This theory must have facts behind it, though in course of -time the state may thrust it upon lands that it will not fit, for -example, upon a land of ring-fenced property where there is no -approximate equality between the various tenements. In its origin a hide -will not be a measure of land. A measure is an idea; a hide is a -tenement. The 'foot' does not begin by being twelve inches; it begins by -being a part of the human body. The 'acre' does not begin by being 4840 -square yards; it begins by being a strip in the fields that is ploughed -in a forenoon. But unless there were much equality between human feet, -the foot would not become a measure; nor would the acre become a measure -unless the method of ploughing land were fairly uniform. A great deal of -similarity between the 'real' hides or 'householder's lands' we must -needs suppose if the hide becomes a measure; not only must those in any -one village be much alike, there must be similarity between the -villages. - -[The hide as a measure.] - -After a certain sort the hide does become a measure. Bede does not -believe that if the families in the Isle of Wight were counted, the sum -would be just 1200. The Anglo-Saxon kings are giving away half-hides or -half-manses as well as manses or hides. They can speak of three hides -and thirty acres[1307] or of two hides less sixty acres[1308]. Men are -beginning to work sums in hides and acres as they work sums in pounds -and pence. Indubitably such sums are worked in Domesday Book. In the -thirteenth century the hide can even be treated as a pure superficial -measure. An instance is given by an 'extent' of the village of Sawston -in Cambridgeshire. The content of about two hundred small parcels of -land is given in terms of acres and roods. Then an addition sum is -worked and a total is stated in hides, virgates and acres, the equation -that is employed being 1 H. = 4 V. = 120 A. It is a remarkable case, -because the area, not only of arable land, but of meadows, pasture, -crofts, gardens and messuages is added up into hides. The hide is here a -pure measure, a mere multiple of acres[1309]. The men who made this -'extent' could have spoken of a hide of cloth. But this seems a rare and -it is a late instance. At an earlier time the hide is conceived as -consisting only of arable acres with appurtenances. - -[The hide as a measure of arable.] - -A word to explain this conception. In very old times when men thought of -land as the subject-matter of grants and taxes they spoke only of arable -land[1310]. If we are to understand their sayings and doings, we must -think ourselves into an economic arrangement very different from that in -which we are now immersed. We must well-nigh abolish buying and selling. -Every village, perhaps every hide, must be very nearly self-sufficient. -Now when once population has grown so thick that nomadic practices are -forsaken, the strain of supporting mankind falls almost wholly on the -ploughed land. That strain is severe. Many acres feed few people. Thus -the arable becomes prominent. But further, arable implies pasture. This -is not a legal theory; it is a physical fact. A householder can not have -arable land unless he has pasture rights. Arable land is land that is -ploughed; ploughing implies oxen; oxen, pasture. Our householder can not -use a steam-plough; what is more, he can not buy hay. If he keeps -beasts, they must eat. If he does not keep beasts, he has no arable -land. Lastly, as a general rule men do not possess pasture land in -severalty; they turn out their beasts on 'the common of the vill.' -Therefore, in very old schemes of taxation and the like, pasture land is -neglected: not because it is unimportant, but because it is -indispensably necessary. It may be taken for granted. If a man has 120 -acres of arable land, he must have adequate pasture rights; there must -be in Domesday's language _pastura sufficens carucis_. And in the -common case there will be not much more than sufficient pasture. If -there were, it would soon be broken up to provide more corn. Every -village must be self-supporting, and therefore an equilibrium of arable -and pasture will be established in every village. Thus if, for fiscal -and governmental purposes, there is to be a typical tenement, it may be -a tenement of _x_ arable acres, and nothing need be said of any other -kind of ground. - -[Sidenote: The hide of 120 acres.] - -We are going to argue that the Anglo-Saxons give 120 acres, arable -acres, to the hide. Our main argument will be that the equation 1 H. = -120 A. is implied in the fiscal system revealed by Domesday Book. But, -by way of making this equation probable, we may notice that, if we had -no evidence later than the Conquest, all that we should find on the face -of the Anglo-Saxon land-books would be favourable to this equation. In -the first place, on the only occasion on which we hear of the content of -a hide, it is put at 120 acres[1311]. In the second place, when a number -of acres is mentioned, it is commonly one of those numbers, such as 150, -90, 80, 60, 30, which will often occur if hides of 120 acres are being -partitioned[1312]. The force of this last remark may seem to be -diminished if we remember how excellent a dividend is 120. It is neatly -divisible by 2, 3, 4, 5, 6, 8, 10, 12. But then we must reflect that -this very quality recommended it to organizers, more especially as there -were 240 pence in the pound. - -[Real and fiscal hides.] - -Supposing for a moment that we bring home this equation to the -Anglo-Saxon financiers, there would still remain the question how far it -truthfully represented agrarian facts. To that question no precise -answer can be given: the truth lies somewhere between two extremes. We -must not for one instant believe that England was so neat a chess-board -as a rude fiscal theory paints, where every pawn stands on its square, -every 'family' in the centre of 120 acre-strips of 4 by 40 perches. The -barbarian, for all his materialism, is an idealist. He is, like the -child, a master in the art of make-believe. He sees things not as they -are, but as they might conveniently be. Every householder has a hide; -every hide has 120 acres of arable; every hide is worth one pound a -year; every householder has a team; every team is of eight oxen; every -team is worth one pound. If all this be not so, then it ought to be so -and must be deemed to be so. Then by a Procrustean process he packs the -complex and irregular facts into his scheme. What is worse, he will not -count. He will assume that a large district has a round 1200 hides, and -will then ordain that those hides must be found. We see this on a small -scale if we study manorial 'extents' or village maps. The virgates are -not equal; the acres are far from equal; but they are deemed to be -equal[1313]. Nevertheless, we must stop short of the other extreme or we -shall be over-estimating the power of such government and the -originality of such statesmanship as existed. Theories like those of -which we are speaking are born of facts and in their turn generate new -facts. Our forefathers really lived in a simpler and a more -chess-board-like England than that which we know. There must have been -much equality among the hides and among the villages. When we see that a -'hundred' in Cambridgeshire has exactly 100 hides which are distributed -between six vills of 10 hides apiece and eight vills of 5 hides apiece, -this simple symmetry is in part the unreal outcome of a capricious -method of taxation, but in part it is a real economic fact. There was an -English conquest of England, and, to all seeming, the conquest of -eastern England was singularly thorough. In all probability a great many -villages were formed approximately at one time and on one plan. -Conveniently simple figures could be drawn, for the slate was -clean[1314]. - -[Causes of divergence of fiscal from real hides.] - -However, at an early time the hide becomes an unit in a system of -assessment. The language of the land-books tells us that this is -so[1315]. Already in Ine's day we hear of the amount of victual that ten -hides must find for the king's support[1316]. About the end of the tenth -century the duty of maintaining burgs is bound up with the possession of -hides[1317]. Before the end of that century heavy sums are being raised -as a tribute for the Danes. For this purpose, as we shall try to show -hereafter, 'hides' are cast upon shires and hundreds by those who, -instead of counting, make pleasantly convenient assumptions about the -capacity of provinces and districts, and in all probability the -assumptions made in the oldest times were the furthest from the truth. -Now and again the assessments of shires and hundreds were corrected in a -manner which, so far as we are concerned, only made matters worse. It -becomes apparent that hides are not of one value or nearly of one value. -This becomes painfully apparent when Cornwall and other far western -lands are brought under contribution. So large sums of hides are struck -off the poorer counties. The fiscal 'hide' becomes a lame compromise -between an unit of area and an unit of value. Then privilege confounds -confusion; the estates of favoured churches and nobles are 'beneficially -hidated.' But this is not all. Probably the real hides, the real old -settlers' tenements, which you could count if you looked at a village -and its fields, are rapidly going to pieces, and the fragments thereof -are entering into new combinations. In the lordless villages economic -forces of an easily imaginable kind will make for this end. Not only may -we suppose some increase of population, especially where Danes swarm in, -and some progress in the art of agriculture, but also the bond of blood -becomes weaker and the _familia_ that lives in one house grows smaller. -So the hides go to pieces. The birth of trade and the establishment of -markets help this process. It is no longer necessary that every tenement -should be self-sufficient; men can buy what they do not grow. The -formation of manors may have tended in some sort to arrest this -movement. A system of equal (theoretically equal) tenements was -convenient to lords who were collecting 'provender rents' and extending -their powers; but under seignorial pressure virgates, rather than -hides, were likely to become the prominent units. We may well believe -that if to make two ears of corn grow where one grew is to benefit -mankind, the lords were public benefactors, and that the husbandry of -the manors was more efficient than was that of the lordless townships. -The clergy were in touch with their fellows on the Continent; also the -church's reeve was a professional agriculturist and might even write a -tract on the management of manors[1318]. There was more cooperation, -more communalism, less waste. A family could live and thrive upon a -virgate[1319]. - -[Effects of the divergence of fiscal from real hides.] - -But, what concerns us at the present moment is the, for us disastrous, -effect of this divergence of the fiscal from the real hide. Even if -finance had not complicated the problem, we should, as we have already -seen, have found many difficulties if we tried to construe medieval -statements of acreage. Already we should have had three different -'acres' to think of. We will imagine that a village has 590 'acre -strips' in its field. In one sense, therefore, it has 590 acres. But the -ideal to which these strips tend and were meant to conform is that of -acres measured by a rod of 15 feet. Measured by that rod there would, we -will suppose, be 550 acres. Then, however, we may use the royal rod and -say that there are 454 acres or thereabouts. But the field was divided -into five tenements that were known as hides, and the general theory is -that a hide (householder's land) contains, or must be supposed to -contain, 120 acres. Therefore there are here 600 acres. And now a -partitionary method of taxation stamps this as a vill of four hides. -Consequently the 'hide' of this village may have as many as 150 or as -few as 90 'acres.' It ought not to be so. It would not be so if men were -always distinguishing between 'acre strips' and measured acres, between -'real' hides (which, to tell truth, are no longer real, since they are -falling to pieces) and 'fiscal' or 'geld' hides. But it will be so. Here -and there we may see an effort to keep up distinctions between the -'carucate for gelding' and the 'carucate for ploughing,' between the -real acre and the acre 'for defence (_acra warae_)[1320]'; but men tire -of these long phrases and argue backwards and forwards between the -rateable and the real. Hence some of the worst puzzles of Domesday -Book[1321]. - -[Acreage of the hide in later days.] - -Such being the causes of perplexity, it is perhaps surprising that in -the thirteenth century when we begin to obtain a large stock of manorial -extents, 'the hide' should still exhibit some uniformity. But, unless we -have been misled by a partial induction, a tendency to reckon 120 rather -than any other number of acres to the hide is plainly perceptible. The -following are the equations that prevailed on the manors of Ramsey -Abbey, which were scattered in the eastern midlands[1322]. - - _Huntingdonshire_ - Upwood with Raveley 1 H. = 4 V. = 80 A. - Wistow 1 H. = 4 V. = 120 A. - Broughton 1 H. = 6-1/2 V. = 208 A. - Warboys 1 H. = 4 V. = 120 A. - Holywell 1 H. = 5 V. = 90 A. - Slepe (St Ives) 1 H. = 5 V. = 80 A. - Houghton with Wyton 1 H. = 6 V. = 108 A. - Hemingford 1 H. = 6 V. = 96 A. - Dillington 1 H. = 6 V. = 201 A. - Weston 1 H. = 4 V. = 112 A. - Brington 1 H. = 4 V. = 136 A. - Bythorn 1 H. = 4 V. = 176 A. - Gidding 1 H. = 4 V. = 112 A. - Elton 1 H. = 6 V. = 144 A. - Stukeley 1 H. = 4 V. = 96 A. - Ripton with Remington 1 H. = 4 V. = 62 A. - - _Northamptonshire_ - - Barnwell 1 H. = 7 V. = 252 A. - Hemington 1 H. = 7 V. = 252 A. - - _Bedfordshire_ - - Cranfield 1 H. = 4 V. = 192 A. - Barton 1 H. = 4 V. = 96 A. - Shitlingdon 1 H. = 4 V. = 48 A. - - _Hertfordshire_ - - Therfield 1 H. = 4 V. = 256 A. - - _Suffolk_ - - Lawshall 1 H. = 3 V. = 156 A. - - _Norfolk_ - - Brancaster 1 H. = 4 V. = 160 A. - Ringstead 1 H. = 4 V. = 120 A. - - _Cambridgeshire_ - - Elsworth 1 H. = 4 V. = 120 A. - Knapwell 1 H. = 4 V. = 160 A. - Graveley Freehold 1 H. = 7 V. = unknown - Villeinage 1 H. = 6-3/4 V. = 135 A. - Over 1 H. = 4 V. = 120 A. - Girton 1 H. = 4 V. = 120 A. - Burwell 1 H. = 4 V. = 120 A. - -Here in thirty-one instances what we take to be the normal equation -appears but seven times, but no other equation occurs more than twice. -Moreover, so far as we have observed, the variations in the acreage that -will be ascribed to a hide are not provincial, they are villar -variations: that is to say, though we may see that the average hide of -one county would have more acres than those that are contained in the -average hide of another, we can not affirm that the hide of a certain -county or hundred contains _a_ acres, while that of another has _b_ -acres, and, on the other hand, we often see a startling difference -between two contiguous villages. Lastly, where the computation of 120 -acres to a hide is forsaken, we see little agreement in favour of any -other equation. In particular, though now and again the hide of a -village will perchance have 240 acres, we can find no trace of any -'double hide' in which ingenuity might see a link between the Roman and -English systems of measurement and taxation[1323]. The only other -general proposition which our evidence suggests is that a land which -habitually displays unusually large virgates will often be a land in -which a given area of arable soil has borne an unusually light weight of -taxation, and this, as we shall hereafter see, will often, though not -always, be a land where a given area of arable soil has been deemed to -bear an unusually small value. But this connexion between many-acred -hides and light taxation is not very strongly marked in our -cartularies[1324]. - -[The carucate and bovate.] - -In the land-books which deal with Kent the _aratrum_ or _sulung_[1325] -is commoner than the hide or manse, and Domesday Book shows us that in -Kent the _solin_ (_sulung_) is the fiscal unit that plays the part that -is elsewhere played by the hide. That same part is played in Suffolk, -Norfolk, Yorkshire, Lincolnshire, and the counties of Derby, Nottingham -and Leicester by the _carucata_, which has for its eighth part the -_bovata_. These terms seem to be French: that is to say, they apparently -formed no part of the official Latin that had been current in -England[1326]. We may infer, however, that they translated some English, -or rather perhaps some Scandinavian terms, for only in Danish counties -do we find them used to describe the geldable units. It is exceedingly -doubtful whether we ought to treat this method of reckoning as older -than the Danish invasions. Bede, himself a Northumbrian, uses the -'family-land' as his unit, no matter what be the part of England of -which he is speaking, and his translator uses the _híd_ or _hiwisc_ in -the same indiscriminate fashion. Unfortunately the 'carucated' shires -are those which yield us hardly any land-books, and we do not know what -the English jurors said when the Norman clerks wrote _carucata_ and -_bovata_: perhaps _plough-gate_ and _ox-gate_, or _plough-gang_ and -_ox-gang_, or, again, a _plough of land_, for these were the vernacular -words of a later age. On the whole, the little evidence that we have -seems to point to the greater antiquity in England of a reckoning which -takes the 'house-land' rather than the 'plough-land' as its unit[1327]. - -[The ox-gang.] - -As to the bovate or ox-gang, it seems to be an unit only in the same -sense as that in which the virgate or yard-land is an unit; the one is -the eighth, the other is the fourth of an unit. That, in days when eight -oxen are yoked to a plough, the eighth of a plough-gang should be called -an ox-gang will not surprise us, though, as a matter of fact, an ox -never 'goes' or ploughs in solitude[1328]. In our Latin documents a -third part of a knight's fee will be, not _tertia pars feodi unius -militis_, but far more commonly, _feodum tertiae partis unius militis_. -We do not infer from this that fractions of knights, or fractions of -knight's fees are older than integral knights and integral fees. The -bovate seems to have been much less widely known than the carucate, for -apparently it had no place in the computation that was generally used in -East Anglia, where men reckoned by carucates, half-carucates and acres -and where the virgate was not absolutely unknown[1329]. - -[The fiscal carucate.] In the financial system, as we have -said, the carucate plays for some counties the part that is played for -others by the hide. Fiscally they seem to be equivalent: that is to say, -when every hide of Wessex is to pay two shillings, every carucate of -Lincolnshire will pay that sum. We think also and shall try to show that -the Exchequer reckons 120 acres to the carucate, or, in other words, -that if a tenement taxed as a carucate were divided into six equal -shares, each share would at the Exchequer be called 20 acres. The same -forces, however, which have made the fiscal hide diverge widely from the -'real' hide have played upon the plough-gangs of the Danelaw. In the -Boldon Book we read of many bovates with 15 acres apiece, though the -figures 20, 13-1/2, 12-1/2, 12 and 8 are also represented, and, when we -come to the extents of the thirteenth century, we seem to see in the -north but a feeble tendency to any uniformity among the equations that -connect carucates with acres. The numbers of the acres in a bovate given -by a series of Yorkshire inquests is 7, 7, 8, 15, 12, 6, 12, 15, 15, 6, -5, 9, 10, 10, 12, 24, 4, 16, 12, 18, 8, 6, 10, 24, 32[1330]. With a -bovate of 4 acres, our carucate would have no more than 32. But then, in -the north we may find very long rods and very large acres[1331], and, -where Danes have settled, we have the best reason to expect those -complications which would arise from the superimposition of a new set of -measures upon a territory that had been arranged to suit another -set[1332]. - -[Acreage tilled by a plough.] - -Having been led into speaking of plough-gangs, we may end these -discursive remarks by a gentle protest against the use that is sometimes -made of the statements that are found in the book called Fleta. It is a -second-rate legal treatise of Edward I.'s day. It seems to have fallen -dead from its author's pen and it hardly deserved a better fate. For the -more part it is a poor abstract of Bracton's work. When it ceases to -pillage Bracton, it pillages other authors, and what it says of -ploughing appears to be derived at second hand from Walter of -Henley[1333]. Now Walter of Henley's successful and popular treatise on -Husbandry is a good and important book; but we must be careful before we -treat it as an exponent of the traditional mode of agriculture, for -evidently Walter was an enlightened reformer. We might even call him the -Arthur Young of his time. Now, it is sometimes said that according to -Fleta 'the carucate' would have 160 acres in 'a two course manor' and -180 in 'a three course manor.' A reference to Walter of Henley will show -him endeavouring to convince the men of his time that such amounts as -these really can be ploughed, if they work hard. 'Some men will tell you -that a plough can not till eight score or nine score acres by the year, -but I will show you that it can.' His calculation is worth repeating. It -is as follows: - - The year has 52 weeks. Deduct 8 for holy-days and other hindrances. - There remain 44 weeks or 264 days, Sundays excluded. - - _Two course._ Plough 40 acres for winter - seed, 40 for spring seed and 80 for fallow - (total 160) at 7/8ths of an acre per day = 182-6/7 days - - Also plough by way of second fallowing 80 - acres at an acre per day = 80 days - -------- - Total 262-6/7 days[1334]. - -[Walter of Henley's scheme.] - -It is a strenuous and sanguine, if not an impossible, programme. When -harvest time and the holy weeks are omitted, the plough is to 'go' every -week-day throughout the year, despite frost and tempest. Obviously it is -a programme that can only enter the head of an enthusiastic lord who has -supernumerary oxen, and will know how to fill the place of a ploughman -who is ill. We have little warrant for believing that what Walter hopes -to do is being commonly done in his day, less for importing his projects -into an earlier age. In order that he may keep his beasts up to their -arduous toil, he proposes to feed them with oats during half the -year[1335]. If we inferred that the Saxon invaders of England treated -their oxen thus, we might be guilty of an anachronism differing only in -degree from that which would furnish them with steam-ploughs. But, to -come to much later days, the Domesday of St. Paul's enables us to say -with some certainty that the ordinary team of eight beasts accomplished -no such feats as those of which Walter speaks. For example, at Thorpe in -Essex the canons have about 180 acres of arable land in demesne. These, -it is estimated, can be tilled by one team of ten heads together with -the ploughing service that is due from the tenants, and these tenants -have to plough at least 80 acres, to wit, 40 in winter and 40 in -Lent[1336]. We must observe that to till even 120 acres according to -Walter's two-course plan would mean that a plough must 'go' 180 acres in -every year, and that, even if it does its acre every day, more than half -the week-days in the year must be devoted to ploughing. We may, however, -seriously doubt whether a scheme which would plough the land thrice -between every two crops had been generally prevalent[1337]. Nay, we may -even doubt whether the practice of fallowing had been universal[1338]. -Not unfrequently in our cartularies the villein is required to plough -between Michaelmas and Christmas and again between Christmas and Lady -Day, while nothing is said of his ploughing in the summer[1339]. We are -only beginning to learn a little about medieval agriculture. - -However, we have now said all that we had to say by way of preface to -what we fear will be a dreary and inconclusive discussion of some of -those abundant figures that Domesday Book supplies. A few we have -endeavoured to collect in the tables which will meet the reader's eye -when he turns this page, and which will be explained on later pages. - - -FOOTNOTES: - - [1217] D. B. ii. 47 b. - - [1218] Ibid. 61. - - [1219] Ibid. 64. - - [1220] Ibid. 65. - - [1221] Ibid. 69 b. - - [1222] See above, p. 35. - - [1223] For this reason I do not feel sure that Mr F. Baring (Eng. - Hist. Rev. xi. 98) has conclusively proved his case when he - accuses D. B. of omitting to notice the free tenants on the - estates of the Abbey of Burton. - - [1224] The antiquity and universality of the balk must not be taken - for granted; see Meitzen, op. cit. i. 86; iii. 319. However, - in recent times balks did occur within the shots (this - Meitzen seems to doubt) as may be seen to-day at Upton St. - Leonards, Co. Gloucester. Mr Seebohm, op. cit. 4, 382, claims - the word _balk_ for the Welsh; but see New Eng. Dict. and - Skeat, Etymol. Dict. In this, as in many another case, the - Welsh claim to an English word has broken down. - - [1225] A.-S. Chron. ad ann. 1043. Henry of Huntingdon, p. 192, took - the sestar of this passage to be a horse-load. Even if we - accept his version, the price would be high when compared - with the prices recorded on the Pipe Rolls of Henry II.; for - which see Hall, Court Life, 219, 220. But, though the point - can not be argued here, we may strongly suspect that the - chronicler meant something that is almost infinitely worse, - and that his sestar was at the very least as small as our - bushel. We know of no English document which suggests a - _sextarius_ that would be comparable with a horse-load. - - [1226] Geatfled's will, K. 925 (iv. 263). - - [1227] See above, p. 14. - - [1228] Observe the clumsy nomenclature illustrated by K. 816 (iv. - 164), a deed forged for the Confessor:--'Middletun et oðer - Middletun ... Horningdun et oðer Horningdun ... Fifehyda et - oðer Fifehyda.' - - [1229] See in this context the interesting letter of Bp. Denewulf to - Edward the Elder, K. 1089 (v. 166). An estate of 72 hides, a - very large estate, came to the bishop almost waste. He prides - himself on having now tilled 90 acres! - - [1230] A good programme of this system is given by Cunningham, - Growth of English Industry, i. 71. - - [1231] Rectitudines, 4, § 3; Seebohm, Village Community, 141. Mr - Seebohm's inference is ingenious and plausible. See also - Andrews, Old English Manor, 218. - - [1232] K. 259 (ii. 26), A.D. 845: Gift of 19 acres near the city of - Canterbury, 6 acres in one place, 6 in another, 7 in a third. - - [1233] K. 241 (ii. 1), A.D. 839: Gift of 24 acres, 10 in one place, - 14 in another.--K. 339 (ii. 149), A.D. 904: Gift of 60 acres - of arable to the south and 60 to the north of a certain - stream.--K. 586 (iii. 118): 'and 30 æcra on ðæm twæm feldan - dallandes.' - - [1234] See e.g. Glastonbury Rentalia (Somerset Record Soc.) pp. 14, - 15, 55, 67, 89, 119, 128-9, 137-8, 155, 166, 192, 195, 208, - 219. A system which leaves half the land idle in every year - is of course quite compatible with the growth of both winter - and spring corn. When, as is not uncommon, the villeins have - to do between Michaelmas and Christmas twice as much - ploughing as they will do between Christmas and Lady Day, - this seems to point to a scheme which leaves one field idle - and divides the other between winter and spring corn in the - proportion of 2:1. Even in the fourteenth century a - three-field system seems to have been regarded in some places - as 'high farming.' Larking, Domesday of Kent, App. p. 23: - Extent of Addington, A.D. 1361: 'Et sunt ibidem 60 acrae - terrae arabilis, de quibus duae partes possunt seminari per - annum, _si bene coluntur_.' For evidence of the three-field - system, see Nasse, Agricultural Community, Engl. transl. 53. - - [1235] Meitzen, op. cit. ii. 592. - - [1236] Turton, Forest of Pickering (North Riding Record Society), - 148 ff. Twenty years ago A. E. enclosed an acre; sown eight - times with spring corn; value of a sown acre 1_s._, of an - unsown, 4_d._ Twenty-two years ago E. C. enclosed a rood; - sown seven times with oats, value 6_d._ a year; value, when - unsown, 1_d._ a year. In the same book are many instances of - a husbandry which alternates oats with hay. - - [1237] Scrutton, Commons and Common Fields, 118, citing a Report to - the Board of Agriculture. - - [1238] Ine, 63-68, 70. See above, p. 238. - - [1239] A very fine instance is found on the north coast of - Norfolk:--Burnham Deepdale, B. Norton, B. Westgate, B. - Sutton, B. Thorpe, B. Overy. As to this see Stevenson, E. H. - R. xi. 304. - - [1240] Index Map of Ordnance Survey of Norfolk. Six inch Map of - Norfolk, LVI. Another instance occurs near Yarmouth along the - banks of the Waveney. Even if the allotment was the result of - modern schemes of drainage, it still might be a satisfaction - of very ancient claims. - - [1241] See above, p. 355. - - [1242] Fines (ed. Hunter) i. 242: 'sex acras terrae mensuratas per - legalem perticam eiusdem villae [de Haveresham].' - - [1243] Acts of Parliament of Scotland, i. 309. - - [1244] Schmid, Gesetze, App. XII.: 'three feet and three hand - breadths and three barley corns.' - - [1245] Acts of Parliament of Scotland, i. 309. Compare Statutes of - the Realm, i. 206: 'Tria grana ordei sicca et rotunda faciunt - pollicem.' This so-called Statute of Admeasurement has not - been traced to any authoritative source. Probably, like many - of the documents with which it is associated, it is a mere - note which lawyers copied into their statute books. - - [1246] Hoveden, iv. 33: 'et ulna sit ferrea.' - - [1247] Britton, ii. 189. - - [1248] Magna Carta is careful of wine, beer, corn and cloth; not of - land. - - [1249] Gloucester Corporation Records, ed. Stevenson, p. 80. Near - the year 1200 a grant is made of land in Gloucester measuring - in breadth 30 feet 'iuxta ferratam virgam Regis.' Ducange, s. - v. _ulna_, gives examples from the Monasticon. The iron rod - was an iron ell. Were standard perches ever made and - distributed? Apparently the only measure of length of which - any standard was made was the _ulna_ or cloth-yard. - - [1250] See the apocryphal Statute of Admeasurement, Stat., vol. i. - p. 206. - - [1251] If the jurors had superficial measure in their heads and were - stating this by reference to two straight lines, they would - make the length of one of these lines a constant (e.g. one - league or one furlong). This is not done: the space is 6 - furlongs in length by 3 in breadth, 14 furlongs in length by - 4 in breadth, 9 furlongs and 1 perch in length by 5 furlongs - and 2 perches in breadth (instances from Norfolk) or the - like. They are endeavouring to indicate shape as well as - size. See the method of measurement adopted in K. 594 (iii. - 129): 'and ðær ðæt land unbradest is ðer hit sceol beon - eahtatyne fota brad.' - - [1252] The league of 12 furlongs has dropped out of modern usage; it - is very prominent in D. B., where miles, though not unknown, - are rare. - - [1253] Our foot is ·30479 meters. Our perch is very close to 5 - meters. Our acre 40·467 ares. A hide of 120 acres would be - 48·56 hectares. - - [1254] Statutes of the Realm, i. 206: 'Tres pedes faciunt ulnam.' - Though this equation gets established, the _ulna_ or - cloth-yard seems to start by being an arm's length. See the - story that Henry I. made his own arm a standard: Will. - Malmesb. Gesta Regum., ii. 487. Britton, i. 189, tells us - that the _aune_ contains two cubits and two thumbs (inches). - Our yard seems too long to be a step. - - [1255] Second Report of Commissioners for Weights and Measures, - Parliamentary Papers, 1820, Reports, vol. vii. - - [1256] As to all this see Meitzen, op. cit. i. 272 fol. - - [1257] The ratio 10:1 is not the only one that is well represented - in Germany. The practice of making the acre four rods wide is - more universal. As we shall see below, length must take its - chance. - - [1258] Morgan, England under the Normans, 19. - - [1259] Pollock, E. H. R. xi. 218. - - [1260] Morgan, op. cit. 19, citing Monasticon, iv. 421. - - [1261] Second Report of the Commissioners for Weights and Measures, - Parliamentary Papers, 1820, Reports, vol. vii. The - information thus obtained might have been better sifted. When - it is said that a certain customary perch contains 15 feet 1 - inch, these feet and inches are statute feet and statute - inches. Probably this perch had exactly 15 'customary' feet. - So, again, it is likely that every 'customary' acre contained - 160 'customary' perches. - - [1262] See below, p. 382. - - [1263] Compare Meitzen, op. cit. ii. 560. - - [1264] Morgan, op. cit. 22. - - [1265] Anonymous Husbandry, see Walter of Henley, ed. Lamond, p. 69. - - [1266] K. 296 (ii. 87): 6 _virgae_ in length and 3 in breadth.--K. - 339 (ii. 149): 28 roda lang and 24 roda brad.--K. 507 (ii. - 397): 12 gerda lang and 9 gerda brad.--K. 558 (iii. 229): - 'tres perticas' = 'þreo gyrda.'--K. 772 (iv. 84): 12 - _perticae_.--K. 787 (iv. 115): a _pertica_ and a half.--K. - 814 (iv. 160): dimidiam virgam et dimidiam quatrentem.--K. - 1103 (v. 199): 75 gyrda.--K. 1141 (v. 275): 6 gyrda.--K. 1087 - (v. 163): 3 furlongs and 3 mete-yards = an unknown quantity + - 12 yards + 13 yards + 43 yards and 6 feet + 20 yards and 6 - feet + 7 yards and 6 feet + 5 yards. This charter is - commended to geometers. We see, however, that the 'yard' in - question is longer than 6 feet; it is connected with our - perch, not with our cloth yard. Schmid, App. XII.: 3 miles, 3 - furlongs, 3 acre-breadths, 9 feet, 9 hand-breadths and 9 - barley-corns. - - [1267] Meitzen, op. cit. ii. 554. This _virga regalis_ is set down - at 4·70 meters; our statute perch stands very close to 5 - meters. - - [1268] Meitzen, op. cit. i. 278. - - [1269] Ellis, Introduction, i. 116. - - [1270] The use of _quarentina_ for furlong may be due to the - Normans. - - [1271] Delisle, Études sur la condition de la classe agricole en - Normandie, 531-2. - - [1272] We find from D. B. i. 166 that there was a royal _sextarius_; - but (i. 162, 238) other _sextarii_ were in use. - - [1273] Meitzen, op. cit. ii. 564. Thus in Köln, the Morgen is 31·72 - ares, the Waldmorgen 38·06 ares. In Brunswick the Feldmorgen - is 25·02 ares, the Waldmorgen 33·35 ares. So in Sussex the - common acres are small; the forest acre = 180 (instead of - 160) perches. So in Herefordshire the common acre is put down - at two-thirds of the statute acre, but an acre of wood is - more than an acre and a half of statute measure. - - [1274] Registr. Honor. Richemund., Ap., p. 11, Agard says: 'In the - Arrentation of Assarts of Forests made in Henry III.'s and - Edward I.'s times, for forest ground the commissioners let - the land _per perticam xx. pedum_,' though by this time the - 16·5 foot perch was the established royal measure for - ordinary purposes. In a Buckinghamshire Fine levied in John's - reign (Hunter, i. 242) we find acres of land which are - measured 'by the lawful perch of the vill,' while acres of - wood are measured 'by the perch of the king.' Ibid. 13, 178: - a perch of 20 feet was being used in the counties of Bedford - and Buckingham, though Bedfordshire is notorious for small - acres. The obscure processes that go on in the history of - measures might be illustrated from the report cited above, p. - 374, note 1261; the length of the 'customary' perch varies - inversely with the difficulty of the work to be done. In - Herefordshire a perch of fencing was 21 feet, a perch of - walling 16·5. And so forth. - - [1275] Morgan, op. cit. 27, suggests a double goad. The _g[=a]d_ of - modern Cambridgeshire has been a stick 9 feet long; but the - surveyor put eight into the acre-breadth, reckoning two of - these _g[=a]ds_ to the customary pole of 18 feet. See Pell, - in Domesday Studies, i. 276, 296. A rod that is 18 feet long - is a clumsy thing and perhaps for practical purposes it has - been cut in half. Meitzen, op. cit., i. 90: Two - hunting-spears would make a measuring rod. See also Hanssen, - Abhandlungen, ii. 210. - - [1276] Seebohm, op. cit. 119. Welsh evidence seems to point this - way. - - [1277] K. 529 (iii. 4): '12 æceras mædwa.'--K. 549 (iii. 33).--K. - 683 (iii. 263). - - [1278] When Walter of Henley, p. 8, is making his calculations as to - the amount of land that can be ploughed in a day, he assumes - that the work will be over a _noune_. The 'by three o'clock' - of his translator is too precise and too late. At whatever - hour nones should have been said, the word _noon_ became our - name for twelve o'clock. See also Seebohm, op. cit. 124. - - [1279] Meitzen, op. cit., ii. 565. The rods known in Germany range - upwards from very short South German rods which descend from - the Roman _pertica_ to much longer rods which lie between 4 - meters and 5. Our statute perch just exceeds 5 meters. Then - the ordinary (not forest) _Morgen_ rarely approaches 40 ares, - while our statute acre is equivalent to 40·46 ares. However, - the Scandinavian _Tonne_ is yet larger and recalls the big - acres of northern England. In France perches of 18 feet were - common, and in Normandy yet longer perches were used, but we - do not know that the French _acre_ or _journal_ contained 160 - square perches. - - [1280] Seebohm, op. cit. 166. - - [1281] Seebohm, op. cit. 19. - - [1282] Thus e.g. Glastonbury Rentalia, 68: 'if he has eight oxen he - shall plough every Thursday [during certain seasons] three - roods [_perticatas_].' - - [1283] Walter of Henley, 9. - - [1284] Tour through the Southern Counties, ed. 3 (1772), pp. - 298-301. - - [1285] Tour through the Southern Counties, p. 127. - - [1286] Walter of Henley, 9. - - [1287] Young, View of Agriculture of Oxfordshire, p. 104. In - Oxfordshire in the early years of this century many ploughs - with four horses 'go out for 3 roods,' after all improvements - in ploughs and in horses. - - [1288] Meitzen, op. cit. 88. Dr Taylor in Domesday Studies, i. 61, - gives a somewhat different explanation. The ploughman walked - backwards in front of the beasts, and, when near the end of - the furrow, used his right arm to pull them round. - - [1289] Among the land-books those that most clearly indicate the - intermixture of strips are K. 538 (iii. 19),--648 (iii. - 210),--692 (iii. 290),--1158 (v. 310),--1169 (v. 326),--1234 - (vi. 39),--1240 (vi. 51),--1276 (vi. 108),--1278 (vi. 111). - - [1290] As to the names of _culturæ_ the Ramsey Cartulary may be - profitably consulted. Such names as Horsepelfurlange, - Wodefurlonge, Benefurlange, Stapelfurlange (i. 307), - Mikellefurlange (321), Stanweyfurlange, Longefurlange (331) - are common. We meet also with _-wong_: Redewonge (321), - Langiwange, Stoniwonge, Schortewonge, Semareswonge (341-2). - Also with _-leuge_ (apparently O. E. _léah_, gen. dat. - _léage_): Wolnothesleuge, Edriches Leuge. Often the _cultura_ - is known as the Five (Ten, Twenty) Acres. Sometimes in Latin - this sense of _furlong_ is rendered by _quarentina_: 'unam - rodam in quarentina de Newedich': Fines, ed. Hunter, i. 42. - - [1291] Glastonbury Rentalia, 180, 195, 208. - - [1292] Sixteen Old Maps: Oxford, Clarendon Press, 1888. - - [1293] The rod, however, must have been very short; perhaps it had - as few as 12 feet. - - [1294] For many reasons this must not be taken as a typical map. We - refer to it merely as showing the relation of 'estimated' - (that is of 'real') acres to an acre-measure. - - [1295] Instructive evidence about this matter was given in a - Chancery suit of James I.'s reign. The deponent speaking of - the fen round Ely says 'it is the use and custom ... to - measure the fen grounds by four poles in breadth for an acre, - by a pole of 18 feet ... and in length for an acre of the - said grounds as it happeneth, according to the length of the - furlong of the same fens, which is sometimes shorter and - sometimes longer.' Quoted by O. C. Pell in Domesday Studies, - i. 296. - - [1296] For an explanation of this mode of ploughing, see Meitzen, - op. cit. 84. - - [1297] Meitzen gives 6 feet as a usual width for the beds in - Germany. I think that in cent. xiii. our selions were usually - wider than this. - - [1298] The Gloucester Corporation Records, ed. Stevenson (1893), - should be consulted. When small pieces of land were being - conveyed, the selions were often enumerated. Thus (p. 124): - 'and 13 acres of arable land ... whereof one acre lies upon - þistelege near Durand's land ... an acre and a half being - three selions ... half an acre being two selions ... an acre - of five selions ... an acre being one selion and a gore ... - four selions and two little gores ... an acre being three - selions and a head-land.' In Mr Seebohm's admirable account - of the open fields there seems to me to be some confusion - between the selions and the acre or half-acre strips. - - [1299] On Mr Mowat's map of Roxton a quarter-acre strip is a - _yeard_. - - [1300] D. B. i. 364: 'In Staintone habuit Jalf 5 bovatas terrae et - 14 acras terrae et 1 virgatam ad geldum.' This virgate is a - quarter-acre. The continuous use of _virgata_ in this sense - is attested by Glastonbury Rentalia, 27. So in Normandy: - Delisle, Études sur la condition de la classe agricole, 535. - So in France: Ducange, s. v. _virgata_ from a Register of the - Chamber of Accounts: 'Quadraginta perticae faciunt virgatam: - quatuor virgatae faciunt acram.' Meitzen, op. cit. i. 95: in - Kalenberg a strip that is one rod in breadth is called a - _Gert_ (our _yard_). - - [1301] In the Exeter Domesday _virga_ not _virgata_ is the common - word. In the Exchequer book an abbreviated form is used; but - _virga_ appears in i. 216 b. - - [1302] So again, if a _iugum_ is quartered, its quarter can be - called a virgate. See Denman Ross, Hist. of Landholding, 140; - Round, Feudal England, 108. - - [1303] See above, p. 372. - - [1304] K. 205 (i. 259): 'circiter 30 iugera.'--K. 217 (i. 274): '30 - iugera.'--K. 225 (i. 290): 'hoc est 30 iugerum' ... 'hoc est - 85 segetum.'--K. 234 (i. 308): '150 iugera.'--K. 241 (ii. 1): - '24 iugeras.'--K. 259 (ii. 26): '19 iugera.'--K 264 (ii. 36): - 'unum dimidium agrum ... healve aker.'--K. 276 (ii. 57): '10 - iugera.'--K. 285 (ii. 70): '80 æcra.'--K. 339 (ii. 150): - 'sextig æcera earðlondes ... oðer sextig.'--K. 586 (iii. - 118): '30 æcra on ðæm twæm feldan.'--K. 612 (iii. 159): '2 - hida buton 60 æcran.'--K. 633 (iii. 188): '3 mansas ac 30 - iugerum dimensionem.'--K. 695 (iii. 295): '40 agros.'--K. 759 - (iv. 59): '30 akera.'--K. 782 (iv. 106): 'fiftig æcera.'--K. - 1154 (v. 303): '36 ækera yrðlandes.'--K. 1161 (v. 315): 'ter - duodenas segetes' = '36 æcera yrðlandes.'--K. 1211 (v. 393): - '25 segetes.'--K. 1218 (vi. 1): '14 hida and ... 40 æcera.' - - [1305] Probably it occurs in Ine 67; certainly in Rectitudines 4, § - 3, and in the late document about Tidenham (above, p. - 330).--K. 369 (ii. 205): Boundary of a _gyrd_ at Ashurst - which belongs to a hide at Topsham (A.D. 937).--K. 521 (ii. - 418): Edgar grants 'tres virgas.'--K. 658 (iii. 229): - Æthelred grants '3 mansas et 3 perticas.'--K. 1306 (vi. 163): - Æthelred grants land 'trium sub aestimatione perticarum.'--K. - 772 (iv. 84): Edward Conf. grants '5 perticas.'--K. 787 (iv. - 115): He grants 'unam perticam et dimidiam.'--K. 814 (iv. - 160): He grants 'dimidiam virgam et dimidiam - quatrentem.'--Crawford Charters, 5, 9, mortgage in 1018 of a - yard of land.--K. 949 (iv. 284); 979 (iv. 307): two other - examples from the eve of the Conquest.--It is more likely - that these 'yards' and 'perches' of land are quarter-hides - than that they are quarter-acres; 'square' perches seem to be - out of the question. There are of course many instances in - the charters of a _pertica_, _virga_, _gyrd_ used as a - measure of mere length. See above, p. 375, note 1266, where a - few are cited. - - [1306] Meitzen, op. cit. 74. In Germany the _Hufe_, _hoba_, _huoba_, - _huba_, _etc._ is the unit. This word is said to be connected - with the modern German _Behuf_, our _behoof_; it is the - _sors_, the portion that behoves a man. In Sweden, the unit - is the _Mantal_, a man's share. The last word about the - _tenmannetale_ of Yorkshire has not been said. - - [1307] K. 633 (iii. 188). - - [1308] K. 612 (iii. 159): 'landes sumne dæl, ðæt synd 2 hida, buton - 60 æcran ðæt hæft se arcebisceop genumen into Cymesige to his - hame him to hwætelande.' - - [1309] Rot. Hund. ii. 575. After going through the whole - calculation, I have satisfied myself that the sum is worked - in this way. - - [1310] Hence in our law Latin the word _terra_ means arable land. To - claim _unam acram terrae_ when you meant an acre of meadow - (_prati_) would have been a fatal error. - - [1311] K. 1222 (vi. 12); T. 508: 'And ic Æðelgar an an hide lond ðes - ðe Æulf hauede be hundtuelti acren, ateo so he wille.' - Kemble, Saxons, 117. - - [1312] See above, p. 386, note 1304. - - [1313] There can be little need of examples. Glastonbury Rentalia, - 152: 'S. tenet unam virgatam terrae et dimidiam, quae - computantur pro una virgata.' Ibid. p. 160: 'H. tenet unam - virgatam et 5 acras, quae omnia computantur pro una virgata.' - Worcester Register, 62: A virgate consists of 13 acres in one - field and 12-1/2 in the other; the next virgate of 16 acres - in one field and 12 in the other. In other cases the numbers - are 16 and 14; 14-5/8 and 11; 13 and 12-1/2; 14 and 11; - 14-3/4 and 11-1/4. Yet every virgate is a virgate. - - [1314] At the date of Domesday we are a long way from the first - danegeld and a very long way from any settlement of - Cambridgeshire; still if we analyze a symmetrical hundred, - such as Armingford, we shall find that the average ten-hide - vill is just about twice as rich as the average five-hide - vill in men, in teams and in annual _valet_, though there - will be some wide aberrations from this norm. - - [1315] See above, p. 336, note 1160. - - [1316] See above, p. 237. - - [1317] This is proved by 'The Burghal Hidage' of which we spoke - above, p. 187, and shall speak again hereafter. - - [1318] See the Gerefa published by Dr Liebermann in Anglia, ix. 251. - Andrews, Old English Manor, 246. - - [1319] The manner in which the old hides have really fallen to - pieces but are preserving a notional existence is well - illustrated by Domesday of St. Paul's, 41-47. In one case a - hide forms nine tenements containing respectively 30, 30, 15, - 15, 5, 5, 7-1/2, 5, 7-1/2 acres. See Vinogradoff, Villainage, - 249. - - [1320] Vinogradoff, Villainage, 242; Maitland, History of an English - Manor, Eng. Hist. Rev. ix. 418. - - [1321] See Pell, in Domesday Studies, i. 357. Almost at one and the - same moment, but in two different 'extents,' the same - tenements are being described as containing 15 and as - containing 18 acres. Domesday of St. Paul's, 69: 'In this - manor the hide contains 120 acres; the old inquest said that - it used not to contain more than 80; but afterwards the lands - were sought out and measured (_exquisitae sunt terrae et - mensuratae_).' - - [1322] Cart. Rams. iii. 208. See also the table given by Seebohm, - op. cit. 37. - - [1323] A 'double hide' of 240 acres plays a part in Mr Seebohm's - speculations. His instances of it hardly bear examination. On - p. 37 he produces from Rot. Hund. ii. 629 the equation 1 H.=6 - V. of 40 A. apiece. This apparently refers to the Ramsey - manor of Brington; but Cart. Rams. ii. 43 gives 1 H.=4 V. of - 40 A., while Cart. Rams. iii. 209 gives 1 H.=4 V. of 34 A. - Then Mr Seebohm, p. 51, cites from 'the documents of Battle - Abbey given by Dugdale' the equation 1 H.=8 V.; but this - seems to refer to the statement now printed in the Battle - Cartulary (Camd. Soc.) p. xiii., where 1 H.=4 V. As to the - supposed _solanda_ of two hides, see Round, Feudal England, - 103. - - [1324] The virgates on the Gloucestershire manors of Gloucester - Abbey contain the following numbers of acres: 36, 40, 36, 38, - 48, 48, 48, 48, 50, 48, 40, 64, 64, 64, 48, 50, 60, 48, 48, - 64, 18 (?), 44, 80, 48, 48, 72. See Gloucester Cartulary, - vol. iii. Of the taxation and wealth of the various counties - we shall speak hereafter. - - [1325] Napier and Stevenson, Crawford Charters, p. 47: The O. E. - _sulh_ (plough) is 'cognate with Lat. _sulcus_.' - - [1326] Both terms were in use in Normandy and some other parts of - France: Delisle, Études, 538; also Ducange. In a would-be - English charter of the days before the Conquest these words - would be ground for suspicion. In K. 283 and 455 Kemble has - printed (in documents which he stigmatizes) _caractorum_. But - apparently (see B. ii. 104, iii. 94) what stands in the - cartulary is _carattorum_, and this seems a mistake for the - common _casatorum_. To mistake O. E. _s_ for _r_ is easy. - - [1327] See Stevenson, E. H. R. v. 143. - - [1328] In D. B. the _iugum_ appears as a portion of a _solin_; - probably as a quarter of the solin. D. B. i. 13: 'pro uno - solin se defendit. Tria iuga sunt infra divisionem Hugonis et - quartum iugum est extra.' The _iugum_ has already appeared in - a few Kentish land-books. In K. 199 (i. 249), B. i. 476, we - find _an ioclet_ which seems to be half a manse - (_mansiuncula_). In K. 407 (iii. 262), B. ii. 572, we find - 'an iuclæte et insuper 10 segetes (_acres_).' - - [1329] D. B. ii. 389: 'In Cratingas 24 liberi homines 1 carr. terrae - et 1 virg.' - - [1330] Yorkshire Inquisitions (Yorks. Archæeol. Soc.) passim. On p. - 77 in an account of Catterick we read of 'a capital messuage - worth 5_s._; 32 bovates of arable land in demesne (each - bovate of 6 acres at 8_s._) £12. 16_s._; 31-1/2 bovates held - by bondmen (each bovate of 10 acres at 13_s._ 4_d._) £21; ... - 2 bovates which contain 24 acres and 32 acres called Inland - worth 74_s._ 8_d._' - - [1331] See above, p. 375. - - [1332] A bovate of 13 acres seems to have prevailed in Scotland: - Acts of Parliament of Scotland, i. 387. - - [1332] The immediate source is the Seneschaucie. See Walter of - Henley, ed. Lamond, p. 84. Fleta, p. 159. - - [1334] Walter of Henley, pp. 6, 8, 44-5. With a three-course system - the figures will be somewhat different. Plough 60 acres for - winter seed, 60 for spring seed, 60 for fallow (total 180) at - the rate of 7/8th of an acre per day:--Total, 205-6/7 days. - In second fallowing plough 60 acres at an acre per - day:--Grand total, 265-5/7 days. Whichever system is adopted, - the plough 'goes' 240 acres. - - [1335] Walter of Henley, p. 13. - - [1336] Domesday of St. Paul's, 38. - - [1337] Meitzen, op. cit. i. 277; Andrews, op. cit. 260. - - [1338] Gerefa, 9 (Anglia, ix. 261): 'Me mæig in Maio and Junio and - Julio on sumera fealgian.' Andrews, op. cit. 257. - - [1339] Thus e.g. Domesday of St. Paul's, 59, Tillingham. Is it - possible to fallow, when, as in this case, there is no - pasture for the oxen except such as is afforded by the idle - field? 'Non est ibi pastura nisi cum quiescit dominicum per - wainagium.... (69) Non est ibi certa pastura nisi quando - terrae dominici quiescunt alternatim incultae.' - - - - -§ 2. _Domesday Statistics._ - - -[Domesday's three statements.] - -As a general rule the account given by Domesday Book of any manor -contains three different statements about it which seem to have some -bearing upon the subject of our present inquiry. (_A_) It will tell us -that the manor is rated to the geld at a certain number of units, which -units will in Kent be solins or sulungs and yokes (_iuga_), in -Yorkshire, Lincolnshire, Derbyshire, Nottinghamshire, Leicestershire, -Norfolk and Suffolk carucates and bovates (but bovates are, to say the -least, rare in East Anglia), and in the rest of England hides and -virgates; but acres also will from time to time appear in the statement. -(_B_) It will tell us that the manor contains land for a certain number -of teams, or for a certain number of oxen. (_C_) It will tell us that -there are on the manor a certain number of teams, some whereof belong to -the lord and some to the men. - - - TABLE I. STATISTICS - - Recorded Danegeld Hides, - Modern Population circ. ann. Carucates, - Acreage (Ellis) 1150 Sulungs - - I II III IV - £ _s._ _d._ - - Kent 975,820 12,205 105 16 10 1,224 - Sussex 932,733 10,410 217 0 6 3,474 - Surrey 461,230 4,383 179 16 0 1,830 - Hampshire 1,037,764 10,373 184 15 4 2,588 - Berkshire 461,742 6,324 205 11 4 2,473 - Wiltshire 880,248 10,150 389 13 0 4,050 - Dorset 632,272 7,807 248 5 0 2,277 - [7,512 E] [2,321 E] - Somerset 1,042,488 13,764 277 10 4 2,936 - [13,307 E] [2,951 E] - Devon 1,667,097 17,434 103 19 8 1,119 - Cornwall 868,208 5,438 22 15 0 155 - Middlesex 180,480(?) 2,302 85 12 0 868 - Hertford 406,932 4,927 110 1 4 1,050 - Buckingham 475,094 5,420 204 14 7 2,074 - Oxford 485,322 6,775 249 16 5 2,412 - Gloucester 796,731 8,366 194 1 6 2,388 - Worcester 480,342 4,625 101 6 0 1,189 - Hereford 537,363 5,368 93 15 6 1,324 - Cambridge 549,565 5,204 114 15 0 1,233 - Huntingdon 233,928 2,914 71 5 0 747 - Bedford 298,494 3,875 110 12 0 1,193 - Northampton 639,541 8,441 119 10 9 1,356 - Leicester 528,986 6,772 100 0 0 2,500(?) - Warwick 578,595 6,574 128 12 6 1,338 - Stafford 749,713 3,178 45 1 0 505 - [499 E] - Shropshire 859,516 5,080 117 18 6 1,245 - Chester [655,036] 2,349 0 0 0 512 - Derby 657,550 3,041 } 112 1 11 { 679 - Nottingham 539,752 5,686 } { 567 - Rutland [97,273] 862 11 12 0 37 - York [3,888,351] 8,055 165 9 5 10,095 - Lincoln 1,694,907 25,305 266 0 0 4,188 - Essex 985,545 16,060 236 8 0 2,650 - Norfolk 1,315,092 27,087 330 2 2 [2,422] - Suffolk 947,742 20,491 235 0 8 - - Hides - Gelding Valet - T. R. W. Teamlands Teams (Pearson) - - V VI VII VIII - - £ _s._ _d._ - - 3,102 5,140 9 10 Kent - 2,241 3,091 3,255 7 4 Sussex - 706 1,172 1,142 1,524 4 9 Surrey - 1,572 2,847 2,614 Hampshire - 1,338 2,087 1,796 2,383 16 1 Berkshire - 3,457 2,997 Wiltshire - 2,303 1,762 2,656 9 8 Dorset - [2,332 E] [3,359 12 9E] - 4,858 3,804 Somerset - [4,812 E] [4,161 4 7E] - 7,972 5,542 3,220 14 3 Devon - 399 2,377 1,187 662 1 4 Cornwall - 664 545 754 7 8 Middlesex - 1,716 1,406 1,541 13 11 Hertford - 2,244 1,952 1,813 7 9 Buckingham - 2,639 2,467 3,242 2 11 Oxford - 3,768 2,827 6 8 Gloucester - 1,889 991 0 6 Worcester - 2,479 Hereford - 1,676 1,443 Cambridge - 1,120 967 864 15 4 Huntingdon - 1,557 1,367 1,096 12 2 Bedford - 2,931 2,422 1,843 0 7 Northampton - 1,817 736 3 0 Leicester - 2,276 2,003 1,359 13 8 Warwick - 1,398 951 [516 16 3E] Stafford - - 1,755 Shropshire - Chester - 762 862 461 4 0 Derby - 1,255 1,991 Nottingham - Rutland - York - 5,043 4,712 Lincoln - 3,920 4,784 10 8 Essex - 4,853 4,154 11 7 Norfolk - Suffolk - - TABLE II. AVERAGES. - - Acreage Acreage Acreage Population - div. by div. by div. by div. by - population teamlands teams teamlands - - IX X XI XII - - Kent 79 314 - Sussex 89 301 - Surrey 105 393 403 3·7 - Hampshire 100 364 397 3·6 - Berkshire 73 221 257 3·0 - Wiltshire 86 254 293 2·9 - Dorset 80 274 358 3·3 - Somerset 75 214 274 2·8 - Devon 95 209 300 2·1 - Cornwall 159 365 731 2·2 - Middlesex 78 271 331 3·4 - Hertford 82 237 289 2·8 - Buckingham 87 211 243 2·4 - Oxford 71 183 196 2·5 - Gloucester 95 211 - Worcester 103 254 - Hereford 100 216 - Cambridge 105 327 380 3·1 - Huntingdon 80 208 241 2·6 - Bedford 77 191 218 2·4 - Northampton 75 218 264 2·8 - Leicester 78 291 - Warwick 88 254 288 2·8 - Stafford 235 536 788 2·2 - Shropshire 169 489 - Chester [278] - Derby 216 862 762 3·9 - Nottingham 94 430 271 4·4 - Rutland [112] - York [482] - Lincoln 66 336 359 5·0 - Essex 61 251 - Norfolk 48 270 - Suffolk 46 - - Experimental valet - Total valet of teamland - Population Teamlands div. by [or of land - div. by div. by teamlands tilled by - teams teams [or by teams] team] - - XIII XIV XV XVI - - £ _s._ _d._ £ _s._ _d._ - - 3·9 [1 13 1] 1 14 11 Kent - 3·3 [1 1 0] 0 18 3 Sussex - 3·8 1·02 1 6 0 1 0 8 Surrey - 3·9 1·08 1 2 6 Hampshire - 3·5 1·16 1 2 4 1 2 10 Berkshire - 3·3 1·15 1 4 4 Wiltshire - 4·4 1·30 1 3 0 1 6 8 Dorset - 3·6 1·27 0 15 9 Somerset - 3·1 1·43 0 8 0 0 5 3 Devon - 4·5 2·00 0 5 6 0 3 8 Cornwall - 4·2 1·21 1 2 8 1 1 1 Middlesex - 3·5 1·22 0 17 11 0 13 11 Hertford - 2·7 1·14 0 16 1 0 13 6 Buckingham - 2·7 1·06 1 4 6 1 0 8 Oxford - 2·2 [0 15 0] [0 16 1] Gloucester - 2·4 [0 10 5] [0 10 7] Worcester - 2·1 [0 9 11] Hereford - 3·6 1·16 1 2 9 Cambridge - 3·0 1·15 0 15 5 0 12 2 Huntingdon - 2·8 1·13 0 14 1 0 15 4 Bedford - 3·4 1·21 0 9 9 Northampton - 3·7 0 9 8 Leicester - 3·2 1·13 0 11 11 0 10 10 Warwick - 3·3 1·47 0 7 4 0 8 8 Stafford - 2·8 [0 7 2] Shropshire - Chester - 3·5 0·88 0 12 1 0 11 7 Derby - 2·8 0·63 0 3 6 Nottingham - Rutland - York - 5·3 1·07 0 17 6 Lincoln - 4?0 [1 4 4] Essex - 5?5 [0 17 1] Norfolk - Suffolk - -[Northern formulas.] - -We may begin our investigation with a formula common in Derbyshire. - - In M [place name] habuit K [man's name] _a_ car[ucatas] terrae ad - geldum. Terra _b_ car[ucarum _or_ carucis]. Ibi nunc in dominio _d_ - car[ucae] et ... villani et ... bordarii habent _e_ car[ucas]. - -The Lincolnshire formula is perhaps yet plainer. Instead of saying -'Terra _b_ car[ucarum],' it says, 'Terra ad _b_ car[ucas].' Still more -instructive is a formula used in Yorkshire. - - In M habuit K _a_ car[ucatas] terrae ad geldum ubi possunt esse _b_ - car[ucae]. Nunc habet ibi K _d_ car[ucas] et ... villanos et ... - bordarios cum _e_ car[ucis]. - -As a variant on the phrase 'ubi possunt esse _b_ car[ucae],' we have, -'quas potest arare 1 car[uca],' or 'has possunt arare _b_ -car[ucae][1340].' - -The teams on the demesne (_d_) and the teams of the tenants (_e_) are -enumerated separately. The total number of the teams (_d_ + _e_) we will -call _c_. - -Now occasionally we may find an entry concerning which the following -equation will hold good: _a_ = _b_ = _c_: in other words, the same -number will stand for the carucates at which the manor is taxed, the -'teamlands' that there are in it (or to put it another way the number of -teams that 'can be there,' or the number of teams that 'can plough -it'[1341]) and also for the teams that are actually to be found there. -Thus:-- - - Terra Roberti de Todeni.... In Ulestanestorp habuit Leuricus 4 - car[ucatas] terrae ad geldum. Terra totidem car[ucis]. Ibi habet - Robertus in dominio 1 car[ucam] et 6 villanos et 3 bordarios et 8 - sochemannos habentes 3 car[ucas][1342]. - -Here _a_ = _b_ = _c_. But entries so neat as this are not very common. -In the first place, the number (_c_) of teams often exceeds or falls -short of the number (_b_) of 'teamlands,' or, which is the same thing, -the number of teams that there 'can be.' An excess of 'teamlands' over -teams is common. In some parts of Yorkshire and elsewhere instead of -reading that there are so many teams, we read 'modo vasta est':--there -are no oxen there at all. But the reverse of this case is not very -uncommon. Thus we may be told that there are 3 carucates for geld, that -'there can be there 2 teams' and that there are 4 teams[1343]; we may -find a manor that contains land for but 3 teams equipped with as many as -7[1344]. As to the relation between _a_ and _b_, this is not fixed. On -one and the same page we may find that _a_ is equal to, greater and less -than _b_. Thus in Lincolnshire[1345]: - - In Colebi habuit Siuuard 7 car. terrae ad geldum. Terra ad totidem - car. - - In Cherchebi habuit Comes Morcar 5 car. terrae ad geldum. Terra ad - 4 car. - - In Bodebi habuit Comes Morcar 8 car. terrae ad geldum. Terra ad 9 - car. - -[Southern formulas.] - -Leaving now for a while the carucated part of England and postponing our -visit to Kent, we find similar formulas. They tell us (_A_) that the -manor contains a certain number of units of assessment, (_B_) that there -is land for a certain number of teams, (_C_) that there are so many -teams upon it. But we have a new set of units of assessment; instead of -carucates and bovates, we have hides and virgates. The Huntingdonshire -formula is particularly clear. It runs thus: - - In M habet K _a_ hidas ad geldum. Terra _b_ car[ucarum _or_ - carucis]. Ibi nunc in dominio _d_ car[ucae] et ... villani et ... - bordarii habentes _e_ car[ucas]. - -The number of hides that is put before us is the number of hides 'for -geld.' So in Cheshire and Shropshire the number of hides that is put -before us is the number of 'hidae geld[antes].' From this we easily pass -to the formula that prevails in Wiltshire, Dorset, Somerset and Devon: - - K tenet M. T[empore] R[egis] E[dwardi] geldabat pro _a_ hidis. - Terra est _b_ car[ucarum]. In dominio sunt _d_ car[ucae] et ... - villani et ... bordarii cum _e_ car[ucis]. - -A formula common in Sussex, Surrey and several other counties instead of -telling us that this manor has _a_ hides for geld, or has _a_ gelding -hides, or gelds for _a_ hides, tells us--what seems exactly the same -thing--that it 'defends itself' for _a_ hides. Then we pass to counties -such as Middlesex, Hertford, Buckingham and Oxford where the entry does -not commonly use any words which explicitly refer to geld:--we are told -that K holds M for so many hides (pro _a_ hidis). Lastly, we may pass to -counties, such as Warwickshire and Staffordshire where, at first sight, -the entries may seem to us ambiguous. They run thus--'K holds M. There -are there _a_ hides. There is land for _b_ teams.' Here for a moment it -may seem to us that we have two different statements about the actual -extent or capacity of the manor:--there are _a_ hides there, but land -for _b_ teams. But comparing the formulas in use here with those in use -in other counties, we can hardly doubt that they all come to one and the -same thing:--a statement about _b_, the capacity of the manor, is -preceded by a statement about its taxation, which statement may take the -short form, 'There are _a_ hides there,' instead of one of the longer -forms, 'It gelds, or defends itself, for _a_ hides,' or 'He holds _a_ -gelding hides, or _a_ hides for geld.' - -[Kentish formulas.] - -In Kent again, we have the three statements, though here the units of -assessment are sulungs and yokes:--the land 'defends itself' for _a_ -sulungs; there is land there for _b_ teams; there are _d_ teams in -demesne and the men have _e_ teams. - -[Relation between the three statements.] - -In the hidated south, as in the carucated north, the relation between -the three amounts is not invariable. We may find that _a_ = _b_ = _c_. -It is common to find that _c_ is less than _b_, but occasionally it is -greater; on one and the same page we may find that _c_ is equal to, is -greater, is less than _b_. Then _a_ is often equal to _b_, often it is -less than _b_, but sometimes it is greater. We have therefore three -statements about the manor, between which there is no necessary -connexion of any very simple kind. - -It may look pedantic, but will be convenient if, by means of the letters -_A_, _B_ and _C_, we try to keep distinctly before our minds 'the _A_ -statement' about the units of assessment, 'the _B_ statement' about the -'teamlands,' or teams for which 'there is land,' and 'the _C_ statement' -about the existing teams. We shall find hereafter that there are certain -counties in which we do not get all three statements, at least in any of -their accustomed forms. In Gloucestershire, Worcestershire and -Herefordshire we rarely get the _B_ statement. As to Essex, Norfolk and -Suffolk, we seem at first sight to obtain _A_ and not _B_, or _B_ and -not _A_, while Leicestershire will require separate treatment. - -[Introduction of statistics.] - -Now if we are ever to understand these matters, it is necessary that we -should look at the whole of England. Far be it from us to say that -microscopic labour spent upon one county or one hundred is wasted; often -it is of the highest value; but such work is apt to engender theories -which break down the moment they are carried outside the district in -which they had their origin. Well would it be if the broad features of -Domesday Book could be set out before us in a series of statistical -tables. The task would be gigantic and could hardly be performed except -by a body of men who had plenteous leisure and who would work together -harmoniously. However, rather to suggest what might and some day must be -done, than to parade what has been done rapidly and badly, some figures -have been set forth above in two tables[1346]. That they are extremely -inaccurate can not be doubtful, for he who compiled them had other -things to do and lacks many of the qualities which should be required of -a good counter of hides. For unmethodical habits and faulty arithmetic -no excuse is possible; but it will be remembered that, as matters now -stand, two men not unskilled in Domesday might add up the number of -hides in a county and arrive at very different results, because they -would hold different opinions as to the meaning of certain formulas -which are not uncommon. What is here set before the reader is intended -to be no more than a distant approach towards the truth. It will serve -its end if it states the sort of figures that would be obtained by -careful and leisurely computers, and therefore the sort of problems that -have to be solved[1347]. - -[Explanation of statistics.] - -[Acreage.] - -We must now explain our statistics. In Column I. we give the acreage of -the modern counties[1348]. A warning bracket will remind the reader that -in the cases of Yorkshire, Cheshire and Rutland the modern does not -coincide even approximately with the ancient boundary. To Middlesex we -give a figure larger than that given by our statisticians, for they know -a county of London which has been formed at the expense of its -neighbours[1349]. Many minor variations should be remembered by those -who would use Domesday Book for delicate purposes; for example, they -must call to mind the merger in circumambient shires of what were once -detached pieces of other counties. But of such niceties we can here take -no account[1350]. - -[Population.] - -In Column II. we state the 'recorded population' as computed by Ellis. -In the cases of Dorset and Somerset we also state, and we sign with the -letter _E_, the result of Eyton's labours. We must not forget that these -figures give us rather the number of tenants or occupiers than the -number of human beings. Our readers must multiply them by four, five or -six, according to knowledge or taste, before the population of England -will be attained. - -[Danegeld.] - -In Column III., for a reason that will become evident hereafter, we -place the amount of danegeld charged against the counties--charged -against them, not actually paid by them[1351]--in the middle of the -twelfth century. The sources of these figures are the Pipe Rolls of 31 -Henry I. and 2 and 8 Henry II. In these accounts the amount charged -against a county is approximately constant. Some of the variations are -probably due to a contemptuous treatment of small sums[1352]; but there -are cases in which a sheriff seems to have been allowed to deduct £10 or -so, without any recorded explanation[1353]. We choose the highest -figures when there is any discord between our three rolls. The danegeld -was being levied at the rate of two shillings on the hide, and -therefore, if we would find the number of geldant hides, we have to -multiply by ten the number of pounds that are set against the county. - -[Sidenote: Hides, carucates, sulungs.] - -Column IV. contains our estimate of _A_: in other words, of the number -of hides, carucates or sulungs. As we are arguing for a large hide, we -have thought right in doubtful cases to lean in favour of inclusion -rather than of exclusion. We count all hides, except those ascribed to -the shire's boroughs[1354], even though we are told that they have -'never' gelded. Also, when a hide is mentioned, we count it, even though -we have a strong suspicion that the same hide is mentioned again on some -other page. Especially in Sussex, where the rapes have recently been -rearranged, this may make our figures too high[1355]. Then, again, we -have frankly begged important questions by assuming that in Domesday -Book the following equations are correct. - - 1 Hide = 4 Virgates = 120 Acres - 1 Carucate = 8 Bovates = 120 Acres - 1 Sulung = 4 Yokes = 120 Acres. - -In the counties with which we have dealt, except Norfolk and Essex -(Suffolk we have left alone), acres are so rarely mentioned that the -error, if any, introduced by our hypothesis as to their relation to -hides and carucates will be almost infinitesimal, and, even if we are -wrong in supposing that the virgate is the quarter of a hide and that -the bovate is the eighth of a carucate, the vitiation of our results -that will be due to this blunder will but rarely be considerable[1356]. - -[Reduced hidage.] - -Almost everywhere we may find some hides (carucates, sulungs) that do -not geld and many cases in which a tract now gelds for a smaller number -of hides (carucates, sulungs) than that for which it formerly paid. In -four counties, however, Sussex, Surrey, Hampshire and Berkshire, we see -that since William's advent there has, rightfully or wrongfully, been a -large and generally distributed reduction in the tale of the gelding -hides. In our Column V. we give a rough statement of the reduced -number[1357]. In Cornwall we read of an assessment that prevailed in the -Confessor's day and of a heavier assessment. The figures which speak of -this heavier assessment we place in our Column V[1358]. - -[The teamlands.] - -We now pass from _A_ to _B_. In Column VI. we set the number of -teamlands, thus answering the question _Quot carucarum [carucis] ibi est -terra_. We have assumed, but this rarely has an appreciable effect on -our calculations, that the land of one ox is the eighth, the land of two -oxen the fourth part of the land of one team. There are certain counties -where we receive no statement about the teamlands, while in certain -others the statement, though it seems to be expected, is often -omitted[1359]. For this reason some blanks will be found in this column. -In most of the other counties instances occur with more or less -frequency in which nothing is said of the teamlands. In these cases we -have thought it fair to assume that there were teamlands equal in number -to the teams (_B_ = _C_). The effect of this assumption will be to bring -the number of teamlands (_B_) somewhat closer to the number of teams -(_C_) than it would otherwise have been, but no very great harm will -have thus been done to our rude statistics[1360]. - -[The teams.] - -Column VII. gives the number of teams. Here we assume (we shall -endeavour to prove hereafter) that the _caruca_ of Domesday Book always -means the same, namely, eight oxen[1361]. - -[The values.] - -Lastly in Column VIII. we place the results attained by Pearson[1362] -and Eyton in their endeavours to add together the various sums which the -various estates in a shire are said to be worth (_valet_) or to render -(_reddit_) in the Conqueror's day, and to thus obtain a total _valet_ -for the shire. We need hardly say that these values are 'annual values.' - -[The table of ratios.] - -The relations between our divers sets of figures are more important than -the figures themselves, therefore we have worked the division sums the -results of which are printed in the second Table, the first seven -columns whereof are filled by quotients[1363]. The last column calls for -more remark. The _valets_ obtained for the various counties by Pearson -and Eyton are somewhat precarious. They involve theories as to the -relation between the values of gold and silver, as to the relation -between the value of a pound reckoned by tale and a pound reckoned by -weight, as to 'blanched' money and the cost of 'a night's farm.' Also a -good deal is included that can hardly be called the value of land, since -it comprehends, not only the value of mills and the like, but also in -some cases the revenue derived from courts. In order therefore that we -might compare the values given to land in the various counties, we have -taken at hazard a number of small estates in order that we might by -addition and division obtain the value of a typical teamland with -typical appurtenances. In general we have chosen ten estates each of -which has one teamland, ten estates each of which has two teamlands and -ten estates each of which has five teamlands, and then we have divided -the sum of their values by eighty, the number of teamlands that they -comprise. On the whole, the figures that we thus obtain and place in -Column XVI. are not widely removed from those in Column XV., which -represent the quotients arising from a division of Pearson's 'county -values' by the number of teamlands that are contained in the -counties[1364]. - -[An apology.] - -In order that not too much credence and yet just credence enough may be -given to the figures that we have hastily put together, we will set -beside those that we have stated for Gloucestershire the results of a -minute analysis accomplished by Mr Charles Taylor[1365]. We have set -down: _Population_, 8366 (from Ellis); _Hides_, 2388; _Teams_, 3768; -_Total Valet_, £2827 6_s._ 8_d._ (from Pearson). Mr Taylor gives: -_Population_, 8239[1366]; _Hides_, 2611 (or 2596); _Teams_, 3909; _Total -Valet_, £3130 7_s._ 10_d._ Now these variations are wide and may in some -sort be discreditable to those who differ from Mr Taylor[1367]. But they -are not very substantial if we come to averages and ratios and a -comparison of counties. For the purposes for which we shall use our -figures, it is no great matter whether in this county there are 2·1 or -2·2 'recorded men' to the plough-team[1368]. The broad features of -Gloucestershire are that its hides fall far short of its teams, that its -recorded population is sparse, that the average value of the land -tilled by a team falls well below twenty shillings, that this shire -differs markedly and in certain assignable respects from Wiltshire, -where the hides exceed the teams, from Lincoln, where, despite the fen, -the population is thick, from Kent, where the average value of land -tilled by a team rises above thirty shillings[1369]. - -[Constancy of ratios.] - -Our figures tell of wide variations; but we may be allowed to call -attention to the stability of certain ratios, a stability which is -gratifying to the diffident arithmetician. In twenty-one counties we can -divide 'the recorded population' by the number of teamlands. The -quotient never falls as low as 2 and only twice exceeds 4[1370]. For the -same twenty-one counties we can divide the number of teamlands by the -number of teams. Only twice will the quotient fall below 1 and only once -will it touch 2. We must not, however, be led away into a general -discussion of these figures. That task would require a wary and learned -economist. We must keep our minds bent on what may be called the _A B C_ -of our subject[1371]. - -[The team.] - -Now we may start with what seems to be the most objective of our three -statements, that which gives us _C_, the number of teams. We know that -in _A_ there is an element of estimation, of assessment; we may fear -that this is true of _B_ also; but an ox or a team ought to be a fact -and not a theory. At the outset, however, a troublesome question -arises. We have assumed that whenever our record speaks of a _caruca_ it -means eight oxen. On the other hand, there are who maintain that whereas -the _carucae_ of the demesne consisted of eight, those ascribed to the -villeins comprised but four oxen[1372], and others have thought that the -strength of Domesday's _caruca_ varied from place to place with the -varying practice of divers agriculturists. - -[Variability of the _caruca_.] - -But, in the first place, it is abundantly clear that the clerk who -compiled the account of Cambridgeshire from the original verdicts held -himself at liberty to substitute 'half a team' for 'four oxen' and 'four -oxen' for 'half a team[1373].' In the second place, the theory of a -variable _caruca_ would in our eyes reduce to an absurdity the practice -of stating the capacity of land in terms of the teams and the oxen that -can plough it. We are carefully told about each estate that 'there is -land for _b_ teams, or for _b´_ oxen, or for _b_ teams and _b´_ oxen.' -Now if a 'team' has always the same meaning, we have here a valuable -truth. If, on the other hand, a 'team' may mean eight or may mean four -oxen, we are being told next to nothing. The apparently precise 'there -is land for 4 teams' becomes the useless 'there is land for 32 or 16 or -for some number between 32 and 16 oxen.' What could the statesmen, who -were hoping to correct the assessment of the danegeld, make of so vague -a statement? They propose to work sums in teams and teamlands. They -spend immense pains in ascertaining that here there is 'land for half a -team' or 'land for half an ox.' We are accusing them of laborious folly -unless we suppose that they can at a moment's notice convert teams into -oxen. - -[The _caruca_ a constant.] - -If it be allowed that in the statement (_B_) about the number of -teamlands the term caruca has always the same meaning, we cannot stop -there, but must believe that in the statement (_C_) about the number of -teams this same meaning is retained. Often enough when there is equality -between teamlands and teams (_C = B_), the entry takes the following -form:--There is land for _b_ teams and 'they' are there[1374]. What are -there? The teams for which 'there is land': those teams which are -serving as a measure for the capacity of land. Let us try the two modes -of interpretation on the first lines that strike our eye. Here we have -two successive entries, each of which tells us that 'there is land for 6 -teams[1375].' If the _caruca_ is a constant, we have learnt that in one -particular there is equality between these estates. If the _caruca_ is a -variable, we have learnt nothing of the kind. Let us see what we can -gain by reading further. In the one case there were 3 teams on the -demesne and the villeins had 6-1/2; in the other there were 2 teams on -the demesne, the villeins had 2 and the sokemen 2. We want to know -whether the second of these estates is under-teamed or over-teamed. -There is land for 6 teams and there are 6 teams on it; but 2 of these -teams belong to villeins and 2 to sokemen. If we give the villeins but 4 -oxen to the team, how many shall we give the sokemen? Shall we say 6? If -so, there are 36 oxen here. Is that too many or too few or just enough -for the arable land that there is? That is an unanswerable question, for -the king's commissioners have been content with the statement that the -number of oxen appropriate to this estate lies somewhere between 23 and -49. - -[The villeins' teams.] - -Surely when we are told that 8 sokemen have '2 teams and 6 oxen' or that -9 sokemen and 5 bordiers have '3 teams and 7 oxen[1376],' we are being -told that the teams in question have no less than eight oxen apiece. -Surely when we are told that there are 23 villeins and 5 bordiers with 2 -teams and 5 oxen[1377], we are being told that the teams of these -villeins are not teams of four. And what are we to say of cases in which -a certain number of teams is ascribed to a number of persons who belong -to various classes, as for example when 6 villeins and 7 bordiers and 2 -sokemen are said to have 3 teams and 5 oxen[1378], or where 3 villeins, -2 bordiers, a priest and a huntsman are said to have one team and 6 -oxen[1379], or where 19 radknights 'with their men' are said to have 48 -teams[1380]? Even if we suppose that the officers of the exchequer have -tables which tell them how many oxen a _caruca_ implies when it is -attributed to a Northamptonshire sokeman or a Gloucestershire radknight, -we are still setting before them insoluble problems. The radknights of -Berkeley 'with their men' have 48 teams:--this may cover less than 200 -or more than 300 oxen. And yet the record that is guilty of this laxity -will tell us how in Bedfordshire _Terra est dimidio bovi, et ibi est -semibos_[1381]. - -[The villeins' oxen.] - -The main argument that has been urged in favour of a variable _caruca_ -is that which, basing itself on later documents, protests that a villein -ought not to have more than two oxen[1382]. Now true it seems to be that -if by the number of the teams belonging to the _villani_ and _bordarii_ -of Domesday Book we divide the number of _villani_ plus half the number -of _bordarii_ (and this would be a fair procedure), we shall obtain as -our quotient a figure that will be much nearer to 2 than to 4. But it -must be common ground to all who read our record that some villeins are -much better supplied with oxen than are their neighbours, and that some -villeins have whole teams, whatever a 'team' may mean. There is so much -difference in this respect between manor and manor that we are not -justified in talking of any particular number of oxen as the normal -outfit of the _villanus_, and outside of Domesday Book we have far too -little evidence to sanction the dogma that the average number must stand -close to 2[1383]. Even the villein virgater on the monastic manors of -the thirteenth century is often expected to have four oxen, and his -having eight is a possibility that must be contemplated[1384]. - -[Light and heavy ploughs.] - -That light as well as heavy ploughs were in use we have not denied. At a -little later time we see teams of six beasts and teams of ten engaged in -ploughing. But the compilers of Domesday Book are not concerned with the -methods of husbandry; they are registering the number of oxen. If a man -has one ox which is employed as a beast of the plough, they say of him: -_Arat cum uno bove_[1385]. If he and another man have such an ox between -them, they say: _Ibi est semibos_. If he has four oxen, they set this -down as _dimidia caruca_. Instead of telling us that there are -thirty-eight oxen, they speak of five teams less two oxen[1386]. Twelve -pence make a shilling; and, at all events at the Exchequer, eight oxen -make a team. - -[The team of Domesday and other documents.] - -Very lately an argument has been advanced in favour of a _caruca_, the -strength of which varies from place to place. In many instances the -Black Book of Peterborough in its description of the abbatial estates -will give to the demesne of a particular manor exactly the same number -of teams that are ascribed to it by Domesday Book, and, while in some -cases the later of these documents will tell us that there are eight -oxen to the team, in others it will speak of teams of six[1387]. That -there is force in this argument we must admit; but many changes will -take place in forty years, and we can not think that the correspondence -between the two documents is sufficiently close to warrant the inference -that the _caruca_ of Domesday can have fewer beasts than eight. An -exactly parallel argument would serve to prove that the hide of Domesday -contains a variable number of fiscal 'acres.' Were it possible (but we -shall see that it is not) for us to regard the teamland of Domesday as a -fixed area, then we might afford to allow the strength of the team to -vary; but if the teamland is no fixed area and the team has no fixed -strength, then King William's inquest ends in a collection of unknown -quantities. - -[The teamland.] - -We turn from the team (_C_) to the teamland (_B_), and must face some -perplexing questions. Reluctantly we have come to the opinion that this -term 'the land of (or for) one team' does not in the first instance -denote a fixed areal quantity of arable land. We have adopted this -opinion reluctantly because we are differing from some of the best -expositors of our record, and because it compels us to say that many of -the statistical data with which that record provides us are not so -useful as we hoped that they would be. - -[Fractional parts of the teamland.] - -In the first place, we must notice that if this term stands for a fixed -quantity, a very rude use is being made of it. We see indeed that -fractional parts of a teamland can be conceived. We often meet the land -of (or for) half a team; we may come upon the land of or for two oxen, -one ox, half an ox. But, except in a few counties, any mention of -fractions smaller than the half of a team is rare, and even halves -seldom occur. Now certainly the teamland was a large unit for such -treatment as this. If, for instance, we suppose that it contained 120 -acres, then we must infer that in some shires the jurors who had to -describe a mass of 420 acres would have called it land for 3 or else -land for 4 teams, and that in most shires an odd 80 acres would have -been neglected or would have done duty as half a teamland. The hides or -the carucates (_A_) have often been split into small fractions where the -jurors distribute integral teamlands. One example of this common -phenomenon shall be given. In Grantchester lie six estates[1388]: - - the first rated at 3 v. has land for 1 team, - the second rated at 2 h. 3 v. has land for 6 teams, - the third rated at 2 h. 3 v. has land for 4 teams, - the fourth rated at 1-1/2 v. has land for 1 team, - the fifth rated at 1 v. has land for 4 oxen, - the sixth rated at 1/2 v. has land for 3 oxen. - -The teamland does not break up easily. As a general rule, we only hear -of fractional parts of it when the jurors are compelled to deal with a -tenement so small that it can not be said to possess even one -teamland[1389]. - -[Land for oxen and wood for swine.] - -In passing we observe that this phrase, 'There is land for _x_ teams' -finds exact parallels in two other phrases that are not very uncommon, -namely, 'There is pasture for _y_ sheep' and 'There is wood for _z_ -pigs': also that the values given to _y_ and _z_ are often large and -round. It may be that the jurors have in their minds equations which -connect the area of a wood or pasture with its power of feeding swine or -sheep, but an extremely lax use must be made of these equations when the -number of sheep is fixed at a neat hundred or the number of pigs at a -neat thousand, nor dare we say that the quality of the grass and trees -has no influence upon the computation. - -[Teamland no areal unit.] - -Secondly, we observe that the teamland when it does break into -fractional parts does not break into virgates, bovates, acres, roods, or -any other units which we can regard as units in a scheme of areal -measurement[1390]. The eighth of a teamland is the land of (or for) an -ox. If we wish to speak of the sixteenth of a teamland, we must -introduce the half-ox. Now had the jurors been told to state the -quantity of the arable land comprised in a tenement, they had at their -command plenty of words which would have served this purpose. No sooner -will they have told us that there is land for two teams, than they will -add that there are five acres of meadow and a wood which is three -furlongs in length by two in breadth. We infer that they have not been -asked to state the area of the arable. They have been asked to say -something about it, but not to state its area. - -[The commissioners and the teamlands.] - -What had they been asked to say? Here we naturally turn to that -well-known introduction to the Inquisitio Eliensis which professes to -describe the procedure of the commissioners and which at many points -corresponds with the contents of Domesday Book[1391]. We read that the -barons made inquiry about the number of the hides (_A_) and the number -of the teams (_C_); we do not read any word about the teamlands (_B_). -_Quot hidae_ they must ask; _Quot carucae[1392] in dominio et quot -hominum_ they must ask; _Quot carucis ibi est terra_--there is no such -question. On the other hand, the jurors are told to give all the -particulars thrice over (_hoc totum tripliciter_), once with reference -to King Edward's day, once with reference to the date when the Conqueror -bestowed the manor, and once with reference to the present time. - -[The teamlands of Great Domesday.] - -Now, if these be the interrogatories that the justiciars administered to -the jurors, then the answering verdicts as they are recorded in Great -Domesday err both by defect and by excess. On the one hand, save when -they are dealing with the geld or the value of a tenement, they rarely -give any figures from King Edward's day, and still seldomer do they -speak about the date of the Conqueror's feoffments. Our record does not -systematically report that whereas there are now four teams on this -manor, there were five in the Confessor's reign and three when its new -lord received it. On the other hand, we obtain the apparently unasked -for information that 'there is land for five teams.' - -[The teams of Little Domesday.] - -We turn to Little Domesday and all is altered. Here the words of the -writ seem to be punctually obeyed. The particulars are stated three -times over, the words _tunc_, _post_ and _modo_ pointing to the three -periods. Thus we learn how many teams there were when Edward was living -and when the Conqueror gave the land away. On the other hand, we are not -told how many teams 'could till' that land, though if the existing teams -are fewer than those that were ploughing in time past, it will sometimes -be remarked that the old state of things could be 'restored[1393]'. - -[The Leicestershire formulas.] - -Next we visit Leicestershire. We may open our book at a page which will -make us think that the account of this shire will be very similar to -those reports that are typical of Great Domesday. We read that Ralph -holds four carucates; that there is land for four teams; that there are -two teams on the demesne while the villeins have two[1394]. But then, -alternating with entries which run in this accustomed form, we find -others which, instead of telling us that there is land for so many -teams, will tell us that there were so many upon it in the time of King -Edward[1395]. Perhaps, were this part of the survey explored by one -having the requisite knowledge, he would teach us that the jurors of -some wapentakes use the one formula while the other is peculiar to other -wapentakes; but, as the record stands, the variation seems due to the -compiling clerk. Be that as it may, we can hardly read through these -Leicestershire entries without being driven to believe that -substantially the same piece of information is being conveyed to us now -in one and now in the other of two shapes that in our eyes are -dissimilar. To say, 'There were four teams here in King Edward's day' is -much the same as to say, 'There is land here for four teams.' -Conversely, to say, 'There is land here for four teams' is much the same -as to say,'There were four teams here in King Edward's day.' For an -exact equivalence we must not contend; but if the commissioners get the -one piece of information they do not want the other. On no single -occasion, unless we are mistaken, are both put on record[1396]. - -[Origin of the inquiry about the teamlands.] - -When we have thought over these things, we shall perhaps fashion for -ourselves some such guess as that which follows. The original scheme of -the Inquest was unnecessarily cumbrous. The design of collecting the -statistics of the past broke down. Let us imagine a similar attempt made -in our own day. Local juries are summoned to swear communal verdicts -about the number of horses and oxen that the farmers were keeping twenty -years ago. Roughly, very roughly true would such verdicts be, although -no foreign invasion, no influx of alien men and words and manners -divides us from the fortieth year of Queen Victoria. In Essex, Norfolk -and Suffolk some sort of answer about these matters was extracted from -the jurors; but frequently they report that the arrangements which exist -now have always existed, and by this they mean that they cannot remember -any change. Now, when we fail to find in Great Domesday any similar -figures, we may ascribe this to one of two causes. Either the -commissioners did not collect statistics, or the compilers did not think -them worthy of preservation. In some cases the one supposition may be -true, in other cases the other. We may be fairly certain that in many or -all counties the horses and the pigs and the 'otiose animals' that were -extant in 1086 were enumerated in the verdicts[1397]. Also we know that -Domesday Book is no mere transcript, but is an abstract or digest, and -we have cause for believing that those who made it held themselves free -to vary the phrases used by the jurors, provided that no material change -was thus introduced[1398]. Howbeit, to come to the question that is -immediately before us, our evidence seems to tell us that the -commissioners and their master discovered that the original programme of -the inquest was unnecessarily cumbrous. Once and again in more recent -days has a similar discovery been made by royal commissioners. So some -interrogatories were dropped. - -[Modification of the inquiry.] - -Then we suspect that the inquiry about the number of oxen that were -ploughing in Edward's day became a more practicable, if looser, inquiry -about the number of oxen capable of tilling the land. The transition -would not be difficult. What King William really wants to know is the -agricultural capacity of the tenement. He learns that there are now upon -it so many beasts of the plough. But this number may be accidentally -large or accidentally small. With an eye to future taxation, he wishes -for figures expressive of the normal condition of things. But, according -to the dominant idea of his reign, the normal condition of things is -their Edwardian condition, that in which they stood before the usurper -deforced the rightful heir. And so these two formulas which we see -alternating in the account of Leicestershire really do mean much the -same thing: 'There is land for _x_ teams': 'There were _x_ teams in the -time of King Edward.' - -[Inquiry as to potential teams.] - -But if we suppose the justices abandoning the question 'How many teams -twenty years ago?' in favour of 'How many teams can there be?' we see -that, though they are easing their task and enabling themselves to -obtain answers in the place of silence, they are also substituting for a -matter of pure fact what may easily become a matter of opinion. They -have left the actual behind and are inquiring about potentialities. They -will now get answers more speedily; but who eight centuries afterwards -will be able to analyze the mental processes of which these answers are -the upshot? It is possible that a jury sets to work with an equation -which connects oxen with area, for example, one which tells that a team -can plough 120 acres. It is but too possible that this equation varies -from place to place and that the commissioners do not try to prevent -variations. They are not asking about area; they are asking about the -number of teams requisite for the tillage of the tenement. With this and -its value as data, William's ministers hope to correct the antiquated -assessments. Some of the commissioners may allow the jurors to take the -custom of the district as a guide, while others would like to force one -equation on the whole country. Our admiration for Domesday Book will be -increased, not diminished, if we remember that it is the work not of -machines but of men. Some of the justices seem to have thought that the -inquiry about potential teams (_B_) was not of the first importance, not -nearly so important as the inquiries about actual teams (_C_) and -gelding units (_A_). In various counties we see many entries in which -_Terra est_ is followed by a blank space. In Gloucester, Worcester and -Hereford we find no systematic mention of teamlands, but only occasional -reports which show that at certain places there might be more teams than -there are. At the end of the account of the Bishop of Worcester's triple -hundred of Oswaldslaw (an account so favourable to St. Mary that it -might have been dictated by her representative) we find the remark that -in none of these manors could there be any more teams than now are -there[1399]. The bishop, who fully understands the object of the -inquest, does not mean to have his assessment raised, and the justices -are compelled to take the word of jurors every one of whom is the vassal -of St. Mary. - -[Normal relation between teams and teamlands.] - -We know so little as to the commissioners' intentions, in particular so -little as to any design on their part to force upon the whole country -some one equation connecting oxen with area, that the task which is set -before us if we would explain the relation between the number of the -teams (_C_) and the number of the teamlands (_B_) that we find in a -given county is sometimes an intricate and perhaps insoluble problem. If -England be taken as a whole, the two numbers will stand very close to -each other. In some counties, for example in Lincolnshire, if at the -foot of each page we add up the particulars, we shall long remain in -doubt whether _B_ or _C_ will be the greater when our final sum is made. -In county after county we shall find a large number of entries in which -_B = C_, and, though there will always be some cases in which, the -tenement being waste, _C_ descends to zero, and others in which _C_ is -less than _B_, still the deficiency will be partially redressed by -instances in which _B_ falls short of _C_. On the whole, the relation -between the two is that which we might expect. Often there is equality; -often the variation is small; but an excess on the part of _B_ is -commoner than an excess on the part of _C_, and when the waste teamlands -have been brought into the account, then in most counties _B_ will -usually exceed _C_ by 10 per cent, or little more. There are, however, -some marked and perplexing exceptions to this rule[1400]. - -[Deficiency of teams in the south-west.] - -As we pass through the southern counties from east to west, the ratio -borne by the teamlands to the teams steadily increases, until ascending -by leaps it reaches 1.43:1 (or thereabouts) in Devon and 2:1 in -Cornwall. Now to all seeming we are not in a country which has recently -been devastated; it is not like Yorkshire; we find no large number of -'waste' or unpopulated or unvalued estates. Here and there we may see a -tenement which has as many teams as it has teamlands; but in the great -majority of cases the preponderance of teamlands is steadily maintained. -What does this mean? One conceivable explanation we may decidedly -reject. It does not mean a relatively scientific agriculture which makes -the most of the ox. Nor does it mean a fertile soil[1401]. Our figures -seem to show that men are sparse and poor; also they are servile. We -suspect their tillage to be of that backward kind which ploughs enormous -tracts for a poor return. _Arva per annos mutant et superest ager._ Of -the whole of the land that is sometimes ploughed, they sow less than -two-thirds or a half in any one year: perhaps they sow one-third only, -so that of the space which the royal commissioners reckon as three -teamlands two-thirds are always idle. We must remember that in modern -times the husbandry that prevailed in Cornwall was radically different -from that which governed the English open fields. It was what the -agrarian historians of Germany call a _Feldgrasswirtschaft_[1402]. That -perhaps is the best explanation which we can give of this general and -normal excess of teamlands over teams. But to this we may add that -systems of mensuration and assessment which fitted the greater part of -England very well, may have fitted Devon, Cornwall and some other -western counties very badly[1403]. Those systems are the outcome of -villages and spacious common fields where, without measurement, you -count the 'acres' and the plough-lands or house-lands, and they refuse -to register with any accuracy the arrangements of the Celtic hamlets, or -rather _trevs_ of the west. - -[Actual and potential teamlands.] - -It is by no means impossible that when the commissioners came to a -county which was very sparsely peopled (and in Cornwall each 'recorded -man' might have had near 160 acres of some sort or another all to -himself) their question about the number of teamlands or about the -number of teams 'that could plough there' became a question about remote -possibilities, rather than about existing or probable arrangements, and -that the answer to it became mere guesswork. On one occasion in Cornwall -they are content with the statement that there is land for 'fifteen or -thirty teams[1404].' In the description of a wasted tract of -Staffordshire we see six cases close together in which two different -guesses as to the number of the potential teamlands are -recorded[1405]:--'There is land for two teams', but 'or three' is -interlined. Five times 'or two' is written above 'one,' Now this is of -importance, for perhaps we may see in it the key to the treatment that -wasted Yorkshire receives. How much arable land is there in this -village? Well, if by 'arable land' you mean land that is ploughed, there -is none. If you do not mean this, if you are speaking of a 'waste' vill -where no land has been ploughed these fifteen years, then you must be -content with a speculative answer[1406]. If the ruined cottages were -rebuilt and inhabited, if oxen and men were imported, then employment -might be found for four or five teams. Called to speculate about these -matters, the Yorkshire jurors very naturally catch hold of any solid -fact which may serve as a base for computations. This fact they seem to -find in the geld assessment. This estate is rated to the geld at two -carucates; the assessment seems tolerably fair; so they say that two -teams would plough the land. Or again, this estate is rated to the geld -at four carucates; but its assessment is certainly too high, so let it -be set down for two teamlands[1407]. Even in other parts of the country -the jurors may sometimes avail themselves of this device. In particular -there are tracts in which they are fond of reporting that the number of -teamlands is just equal to (_B=A_) or just twice as great (_B=2A_) as -the number of gelding carucates. We very much fear, though the ground -for this fear can not be explained at this stage of our inquiry, that -the figure which the jurors state when questioned about potential teams -is sometimes dictated by a traditional estimate which has been playing a -part in the geld assessment, and that the number of teamlands is but -remotely connected with the agrarian arrangements of 1086. All our other -guesses therefore must be regarded as being subject to this horrible -suspicion, of which we shall have more to say hereafter[1408]. - -[The land of excessive teams.] - -This makes it difficult for us to construe the second great aberration -from the general rule that the number of the teamlands in a county will -slightly exceed the number of teams. In Derby and Nottingham apparent -'understocking' becomes the exception and 'overstocking' the rule. In -Derby there is a good deal of 'waste' where we have to reckon teamlands -but no teams, and yet on many pages the number of teams is the greater -(_C>B_). In Nottingham there seem to be on the average near 200 teams -where there are but 125 teamlands. In many columns of the Lincolnshire -survey, and therefore perhaps in some districts of that large and -variegated county, the teams have a majority, though, if we have not -blundered, they are beaten by the teamlands when the whole shire has -been surveyed. It is very possible that a similar phenomenon would have -been recorded in Essex and East Anglia if the inquiry in those counties -had taken the form that was usual elsewhere, for the teams seem to be -thick on the land. Now to interpret the steady excess of teams that we -see in Derby and Nottingham is not easy. We can hardly suppose that the -jurors are confessing that they habitually employ a superfluity of oxen. -Perhaps, however, we may infer that in this district a given area of -land will be ploughed by an unusually large number of teams, whereas in -Devon and Cornwall a given area will be ploughed, though intermittently, -by an unusually small number. In every way the contrast between Devon -and Cornwall on the one hand, Lincoln, Nottingham and Derby on the -other, is strongly marked. Of the quality of soils something should, no -doubt, be said which we are too ignorant to say. An acre would yield -more corn in Nottingham and Derby, to say nothing of Lincoln, than in -Devon and Cornwall, though the _valets_ that we find in the three Danish -shires are by no means so high as those that are displayed by some of -the southern counties. But if we ask how many households our average -teamland is supporting, then among all the counties that we have -examined Lincoln, Nottingham and Derby stand at the very top, while -Devon and Cornwall stand with the depopulated Stafford at the very -bottom of the list[1409]. Then, again, we see the contrasts between -village and _trev_, between Dane and Celt, between sokeman and slave. -Possibly Northampton, Derby and parts of Lincoln really are -'over-teamed': that is to say, were the land of these counties to come -to the hands of lords who held large and compact estates, the number of -plough-teams would be reduced. Where there is freedom there will be some -waste. The tenements split into fractions, and the owner of a small -piece must keep oxen enough to draw a plough or trust to the -friendliness and reciprocal needs of his neighbours. Manorialism has -this advantage: it can make the most of the ox. Another possible guess -is that the real carucates and bovates of this district (by which we -mean the units which locally bear these names and which are the units in -the proprietary or tenurial scheme) have few acres, fewer than would be -allowed by some equation which the royal commissioners for these -counties carry in their minds. Being assured (for example) that the -bovates in a certain village or hundred have few acres, they may be -allowing the jurors to count as three team-lands ('of imperial -measure') a space of arable that has been locally treated as four. So, -after all, the rule that normally each teamland should have its team and -that each team should till its teamland may be holding good in these -counties, though the proprietary and agrarian units have differed from -those that the commissioners treat as orthodox. - -[Attempts to explain the excess of teams.] - -One last guess is lawful after what we have seen in Leicestershire. -These Nottinghamshire folk may be telling how many teams there were in -King Edward's time and recording a large increase in the number of oxen -and therefore perhaps in the cultivated area. In this case, however, we -should expect to find the _valet_ greater than the _valuit_, while -really we find that a fall in value is normal throughout the shire. - -[Digression to East Anglia.] - -We must here say one parenthetical word about the account of East -Anglia. In one respect it differs from the account of any other -district[1410]. We are told of the various landholders that they hold so -many carucates or so many acres. Analogy would lead us to suppose that -this is a statement touching the amount of geld with which they are -charged. Though there is no statement parallel to the _Terra est b -carucis_ which we find in most parts of England, still there are some -other counties remote from East Anglia--Gloucester, Worcester, -Hereford--where no such statement is given to us. In other words, a -natural first guess would be that in Norfolk and Suffolk we are informed -about _A_ and not about _B_. But then, it is apparent that some -information about _A_ is being given to us by a quite different formula -such as we shall not meet outside East Anglia. We are told about a vill -that when the hundred pays 20_s._ for the geld this vill pays so many -pence--seven pence halfpenny, it may be, or eight pence three farthings. -This is the formula which prescribes how much geld the landholders of -the vill must pay and it says nothing of carucates or of acres. Now this -might make us think that the carucates and acres which are attributed to -the landholders are 'real' and not 'rateable' areas, and are to be put -on a level with the teamlands (_B_) rather than with the hides or -gelding carucates (_A_) of other counties. Nevertheless, on second -thoughts we may return to our first opinion. If these carucates are -equivalent to the teamlands of other counties, Norfolk and Suffolk not -only differ but differ very widely from the rest of England[1411]. In -Norfolk we make about 2,422 carucates and about 4,853 teams, and, -however wide of the mark these figures may be[1412], the fact that there -are upon an average about two teams to every carucate is apparent on -page after page of the record; often the ratio is yet higher. We have -seen a phenomenon of the same kind, though less pronounced, in -Nottingham; but then, if in Norfolk we proceed to divide the 'recorded -population' by the number of carucates, we shall get 11 as our quotient. -This is so very much higher than anything that we have seen elsewhere -that we are daunted by it; for, even though we recall the possibility -that a good many tenants in this free county are counted twice because -they hold under two lords, still this reflection will hardly enable us -to make the requisite allowance. To this it may be added that if we -divide the acreage of Norfolk by its carucates and treat the carucates -as teamlands, the quotient will place Norfolk among the counties in -which the smallest part of the total area was under the plough. Further, -it will be observed that the statement about the geldability of the -vills does not enable us to bring home any particular sum to any given -man. Be it granted that the sum due from a vill is fixed by the -proposition that it contributes thirteen pence to every pound levied -from the hundred, we have still to decide how much Ralph and how much -Roger, two landholders of the vill, must contribute; and our decision -will, we take it, be dictated by the statement that Ralph has one -carucate and Roger 60 acres. We fear therefore that here again we can -not penetrate through the rateable to the real[1413]. - -[The teamland no areal measure.] - -About the 'land for one team' we can hardly get beyond vague guesswork, -and may seriously doubt whether the inquiry as to the number of possible -ploughs was interpreted in the same manner in all parts of the country. -Here it may have been regarded as a reference to the good old time of -King Edward, here to the local custom; there an attempt may have been -made to enforce some royal 'standard measure,' and there again men were -driven to speculate as to what might happen if a wilderness were once -more inhabited. But unless we are mistaken, the first step towards a -solution of the many problems that beset us is taken when we perceive -that the jurors have not been asked to state the areal extent of the -tilled or the tillable land. - -[Eyton's theory.] - -Far other, as is well known, was the doctrine of one whom all students -of Domesday revere. For Mr Eyton the teamland was precisely 120 of our -statute acres[1414]. The proof offered of this lies in a comparison of -the figures given by Domesday with the superficial content of modern -parishes. What seems to us to have been proved is that, if we start with -the proposed equation, we shall rarely be brought into violent collision -with ascertained facts, and that, when such a collision seems imminent, -it can almost always be prevented by the intervention of some plausible -hypothesis about shifted boundaries or neglected wastes. More than this -has not been done. Always at the end of his toil the candid investigator -admits that when he has added up all the figures that Domesday gives for -arable, meadow, wood and pasture, the land of the county is by no means -exhausted. Then the residue must be set down as 'unsurveyed' or -'unregistered' and guesses made as to its whereabouts[1415]. Then -further, this method involves theories about lineal and superficial -measurements which are, in our eyes, precarious. - -[Domesday's lineal measure.] - -One word about this point must be said, though we can not devote much -room to it. The content of various spaces, such as woods and pastures, -is often indicated by a reference to linear standards, leagues, -furlongs, perches, feet, and there seems to be little doubt that the -main equations which govern the system are these: - - 1 league = 12 furlongs or quarentines or acre-lengths - = 480 perches. - -Now we read numerous statements which take the following form:--'It is -_x_ leagues (furlongs, perches) long and _y_ wide,' or, to take a -concrete example, 'The wood is 1 league long and 4 furlongs wide.' The -question arises whether we are justified in making this mean that here -is a wood whose superficial content is equal to that of a rectangular -parallelogram 480 statute perches long by 160 statute perches wide. We -are rash in imposing our perch of 16·5 feet on the whole England of the -eleventh century, even though we are to measure arable land. We are -rasher in using that perch for the measurement of woodland. But perhaps -we are rasher still in supposing that the Domesday jurors have true -superficial measurement in their minds[1416]. We strongly suspect that -they are thinking of shape as well as of size, and may be giving us the -extreme diameters of the wood or some diameters that they guess to be -near the mean. If a clergyman told us that his parish was 3 miles long -by 2 wide, we should not accuse him of falsehood or blunder if we -subsequently discovered that in shape it was approximately a -right-angled triangle and contained only some 3 superficial miles. And -now let us observe how rude these statements are. The Norfolk jurors are -in the habit of recording the length and the breadth of the vills. -Occasionally they profess to do this with extreme accuracy[1417]. -However, we reckon that in about 100 out of 550 cases they say that the -vill is one league long by a half-league wide. This delightfully -symmetrical county therefore should have quite a hundred parishes, each -of which contains close upon 720 acres. Among the 800 parishes of -modern Norfolk there are not 70 whose size lies between 600 and 800 -acres. We are not saying that time spent over these lineal measurements -is wasted, but an argument which gets to the size of the teamland by -postulating in the first place that our statute perch was commonly used -for all purposes throughout England, and in the second that these lineal -can be converted into superficial measurements by simple arithmetic, is -not very cogent and is apt to become circular, for the teamland contains -its 120 acres because that is the space left for it by parochial -boundaries when we have measured off the woods and pastures, and our -measurement of the woods and pastures is correct because it will leave -120 acres for every teamland. - -[Measured teamlands.] - -One more word about these lineal measurements. In Norfolk and Suffolk -the total area of the vills is indicated by them, and so it is in -Yorkshire also. Now, unless we err, it sometimes happens that if we -arithmetically deduce the total area from its recorded length and -breadth, and then subtract from that area the content of any measured -woods and pastures that there may be, we shall be left with too little -space to give each East Anglian carucate or each Yorkshire teamland 120 -acres and with far too little to allow a similar area to each East -Anglian team. Try one experiment. At Shereford in Norfolk we have to -force at least one carucate on which there are two teams into a space -that is 3 furlongs in length by 3 in breadth[1418]. That means, if our -method be sound, that each team has at the utmost 45 acres to till. Try -we Yorkshire. There also we shall find entries which to all appearance -will not suffer us to give 120 acres to the teamland. - - In Andrebi ... 9 carucates for geld; there may be 6 teams.... The - whole half a league long and half [a league] wide[1419]. - - In Hotone and Bileham ... a manor of 10 carucates for geld; there - may be 10 teams.... The whole 10 quarantines long and 8 wide[1420]. - - In Warlavesbi 6 carucates for geld; there may be 4 teams.... The - whole half a league long and half [a league] wide[1421]. - -It would seem then that in these cases the utmost limit for the teamland -is 60, 80, 90 acres. Then again, there are a few precious instances in -which lineal measures are used in order to indicate the size of a piece -of land the whole of which is arable. This occurs so rarely that we may -fairly expect something exceptional. The result is bewildering. At -Thetford we hear of land that is half a league long and half a league -wide: 'the whole of this land is arable and 4 teams can plough -it[1422].' Here then, but 90 acres are assigned to the teamland. We -journey to Yorkshire and first we will take an entry which suits the -Eytonian doctrine well enough. 'There are 13 carucates of land less one -bovate for geld; 8 teams can plough them.... Arable land 10 quarentines -long and equally broad[1423].' In this case we have 1000 acres to divide -among 8 teamlands, and this would make each teamland 125 acres:--we -could hardly expect a pleasanter quotient. But on the same page we have -an entry which tells of a manor with 60 carucates and 6 bovates for geld -and 35 teamlands where the 'arable land' is described as being '2 -leagues long and 2 [leagues] wide[1424].' This gives nearly 165 acres to -the teamland. There are two Lincolnshire entries which, when treated in -a similar way, give 160[1425] and 225[1426] acres to the teamland. Then -there is a Staffordshire entry which gives no less than 360 acres to -each teamland, though it gives only 160 to each existing team[1427]. The -suspicion can not but cross our minds that as regards the amount of -land that had 8 oxen for its culture there may have been as wide a -difference between the various shires in the days of the Confessor as -there was in the days of Arthur Young; only, whereas in the eighteenth -century a little space ploughed by many oxen was a relic of barbarism, -it was in the eleventh an index of prosperity, freedom, a thick -population and a comparatively intense agriculture. But theories about -the facts of husbandry will not dispel the whole of the fog which -shrouds the Domesday teamland. - -[Amount of ploughed land in England.] - -That, if all England be taken as a whole, the average teamland of -Domesday Book would contain about 120 acres seems possible, and since we -ourselves are committed to the belief that the old traditional hide had -arable acres to this number, it may be advisable that we should examine -some districts of ancient England through the medium of the hypothesis -that Domesday's teamland has a long-hundred of our statute acres. In -Column 1. of the following table we place the result obtained if we -multiply a county's teamlands (or in the case of Sussex and Gloucester -the teams) by 120; and in the following columns we give the figures -which show the state of the county in 1895. In order to make a rough -comparison the easier, we give round figures and omit three noughts, so -that, for example, 371 stands for 371,000 acres[1428]. - - A A P M W T M - r r e o o o o - a a r u L o t d - b b m n a g d t a e - l l a t n r s i l r - e e n ( a d a o n - e 1 i z a n A - i ( n 8 n u i n c C - n 1 t 9 s n d ( r o - 8 5 a e g 1 e u - 1 9 P ) n d P 8 a n - 0 5 a d ( l 9 g t - 8 ) s f 1 a 5 e y - 6 t H o 8 n ) - u e r 9 t o - r a 5 a f - e t ) - h - - Total - Mountain Acreage - and Heath of - Permanent Land used Woods and Modern - Arable in Arable pastures for grazing Plantation County - 1086 (1895) (1895) (1895) (1895) (1895) - - 1000 1000 1000 1000 1000 1000 - Acres Acres Acres Acres Acres Acres - - Sussex 371 298 381 9 124 933 - Surrey 141 133 152 12 54 461 - Berkshire 251 204 163 1 36 462 - Dorset 280 188 300 18 38 632 - Somerset 577 207 653 48 46 1042 - Devon 957 581 633 138 86 1667 - Buckingham 269 165 236 2 32 476 - Oxford 317 228 188 1 27 485 - Gloucester 589 269 387 7 58 797 - Bedford 187 155 100 1 13 298 - Northampton 352 215 344 0 28 640 - Lincoln 605 1017 501 2 43 1695 - -[Decrease of arable.] - -These figures are startling enough. We are required to believe that in -many counties, even in Sussex where the forest still filled a large -space, there were more acres ploughed T. R. W. than are ploughed T. R. -V., while in some cases the number has been reduced by one half during -the intervening centuries. Were the old acres in Oxfordshire as large as -our own, a good deal more than three-fifths of that county was ploughed. -Much might be said of the extreme futility of ancient agriculture. Then -we should have to remember the 'inclosures' of the sixteenth century; -also the movement which in our own day threatens to carry us back to -'the pastoral state[1429].' We should have to scrutinize those abundant -marks of the plough which occur in our meadows and on our hillsides, -even where we least expect them, and to distinguish those which were -being made in the days of the Norman conqueror from those which tell of -a much later age when 'the Corsican tyrant' threatened our shores. - -[The food problem.] - -And then there is the great food problem. At this point we might desire -the aid of a jury of scientific experts. We are, indeed, but ill -prepared to deliver a charge or to define a clear issue, but the main -question may be roughly stated thus:--South of Yorkshire and Cheshire we -have some 275,000 'recorded men,' some 75,000 recorded teams and (if we -allow 120 statute acres to every team) some 9,000,000 statute acres of -arable land[1430]. Is this supply of arable adequate or excessive for -the population? Unfortunately, however, the question involves more than -one unknown quantity. - -[What was the population?] - -In the first place, by what figure are we to multiply the number of -'recorded men' before we shall obtain the total population? Here we have -to remember that nothing is said by our record about some of the largest -towns and that the figures which we obtain from Norwich[1431] suggest -that the inhabitants of London, Winchester and the like should not be -neglected, even by those who are aiming at the rudest computation. Then -what we read of Bury St Edmunds[1432] suggests that around every great -abbey were clustered many artificers, servants and bedesmen who as a -general rule were not enumerated by the jurors. We must also remember -the monks, nuns and canons and the large households of barons and -prelates[1433]. Again, it is by no means unlikely that, despite a high -rate of mortality among children, the household of the ordinary villein -was upon an average larger than is the household of the modern cottager -or artizan, for the blood-bond was stronger than it is now-a-days. -Married brothers with their wives and children may not unfrequently have -dwelt in one house and may be described in our record as a single -_villanus_ because they hold an undivided inheritance. On the other -hand, we have seen reason to think that in the eastern villages many men -may be counted more than once[1434]. Shall we, for the sake of argument, -multiply the recorded men by 5? This would give us a population of -1,375,000 souls[1435]. - -[What was the field-system?] - -What portion of the arable land shall we suppose to be sown in any one -year? Some grave doubts may occur to us before we put this portion -higher than one half[1436]. Common opinion would perhaps strike a -balance between two-field and three-field husbandry. So we will suppose -that out of 9 million acres 5 million are sown. - -[What was the acre's yield?] - -Then comes the insoluble question about the acre's yield. Even could we -state an average, this would not be very serviceable, for every district -had to feed itself in every year, and the statistics of the later -middle ages suggest that the difference between good and bad years was -very large, while the valuations of the manors in Domesday Book seem to -tell us that the difference between fertile and sterile, forward and -backward counties was much wider in the eleventh century than it is in -our own day. The scientific agriculturist of the thirteenth century -proposed to sow an acre with two bushels of wheat and regarded ten -bushels as the proper return[1437]. Walter of Henley proved by figures -that a three-fold return would not be remunerative, unless prices were -exceptionally good, but he evidently thought of this exiguous yield as a -possibility[1438], and yet, as we have seen, he represents the 'high -farming' of his time and in his two-course husbandry would plough the -land thrice over between every two crops. In the first half of the next -century we can not put the average as high as 8 bushels[1439]. To eyes -that look for 29 or 30, a yield of from 6 to 10 may seem pitiful; and -the 'miserable husbandry' that Arthur Young saw in the west of England -was producing from 15 to 20[1440]. However, there are countries in which -a crop of wheat which gave 10 of our bushels to one of our acres would -not be very small[1441]. For our present purpose, the figure that we -should wish to obtain would be, not that which expressed the yield of an -average year, but that which was the outcome of a bad year, for we have -to keep folk alive and they can not wait for the good times. Let us then -take our hypothesis from Walter of Henley. We suppose a yield of 6 -bushels, 2 of which must be retained for seed. This would give us 20 -million bushels as food, or, we will say, 15 bushels for every person. - -[Of beer.] - -Now, had we to deal with modern wheat and modern mills, we might argue -that the bushel of wheat would weigh 60 pounds, that the weight of -flour would be 72 per cent. of the weight of grain[1442], and that every -human mouth could thus be provided with a little more than 28 ounces of -flour every day, or, to put it another way, with bread amounting to -nine-sixteenths of a four pound loaf[1443]. Some large, but indefinable, -deduction should be made from this amount on the score of poor grain and -wasteful processes. As the sum stands, we are at present proposing to -give to each person a great deal more wheat-flour than would be obtained -if the total amount consumed now-a-days in the United Kingdom were -divided by the number of its inhabitants[1444]. But it need hardly be -said that the problem is far more complex than are our figures. In the -first place, we have to withdraw from the men of 1086 a large quantity, -perhaps more than a half, of the wheat-flour that we have given them in -order to supply its place with other cereals[1445], in particular with -barley and oats, much of which, together with some of the wheat[1446], -will be consumed in the form of beer. And who shall fathom that ocean? -_Multum biberunt de cerevisia Anglicana_, as the pope said. Their choice -lay for the more part between beer and water. In the twelfth century the -corn-rents paid to the bishop of Durham often comprised malt, wheat and -oats in equal quantities[1447]. In the next century the economy of the -canons of St. Paul's was so arranged that for every 30 quarters of -wheat that went to make bread, 7 quarters of wheat, 7 of barley and 32 -of oats went to make beer[1448]. The weekly allowance of every canon -included 30 gallons[1449]. In one year their brewery seems to have -produced 67,814 gallons from 175 quarters of wheat, a like quantity of -barley and 708 quarters of oats[1450]. With such figures before us, it -becomes a serious question whether we can devote less than a third of -the sown land to the provision of drink. The monk, who would have -growled if he got less than a gallon a day, would, we may suppose, -consume in the course of a year 20 bushels of barley or an equivalent -amount of other grain: in other words, the produce, when seed-corn is -deducted, of from two to three acres of land; and perhaps to every mouth -in England we must give half a gallon daily[1451]. - -[The Englishman's diet.] - -But if we can not make teetotallers of our ancestors (and in very truth -we can not) neither may we convert them to vegetarianism. What we can -read of the provender-rents paid in the days before the Conquest -suggests that those who were well-to-do, including the monks, consumed a -great deal of mutton, pork, poultry, fish, eels, cheese and honey[1452]. -This would relieve the arable of part of the pressure that it would -otherwise have borne, for, though we already hear of two manors which -between them supply 6000 dog-loaves for the king's hounds[1453], and -also read of pigs that are fattened with corn[1454], it is not very -probable that any beasts, save those that laboured, got much from the -arable, except the straw, and the stubble which we may suspect of having -been abundantly mixed with grass and weeds. It is likely, however, that -the oxen which were engaged in ploughing were fed at times with oats. -Walter of Henley would keep his plough-beasts at the manger for -five-and-twenty weeks in the year and would during that time give 70 -bushels of oats to every eight of them[1455]. At this rate our 75,000 -teams would require 5,250,000 bushels of oats, and on this score we -might have to deduct some 4 million bushels of wheat[1456] from our 20 -millions and reduce by one-fifth each person's allowance of grain. But -then, it is by no means certain that we ought to transplant Walter's -practices into the eleventh century; we have seen that he expected much -of his oxen[1457]. - -[Is the arable super-abundant?] - -At first sight it may seem incredible that the average human being -annually required the produce of nearly seven acres. But observe how -rapidly the area will disappear. We deduct a half for the idle shift; a -third of the remainder we set apart as beer-land. We have not much more -than two acres remaining, and may yet have to feed oxen and horses. But -suppose that we concede to every human mouth the wheat of two full -acres; we can not say for certain that we are giving it a quarter of -grain, even though we suppose each acre to yield more than was to be had -always and everywhere in the fourteenth century[1458]. - -[Amount of pasturage.] - -Our doubt about the food of the oxen makes it difficult for us to state -even the outlines of another important problem. Are we leaving pasture -enough for the beasts? Their number was by no means small. South of the -southern frontier of Cheshire and Yorkshire we must accommodate in the -first place some 600,000 beasts of the plough, and in the second place -and for their maintenance a sufficiency of bulls, cows and calves. -Now-a-days England keeps 4,723,000 head of cattle, but we have been -excluding from view near a quarter of England. Then there are other -animals to be provided for. Their number we can not guess, for -apparently the statistics that we obtain from the south-western and -eastern counties give us only the stock that is on the demesne of the -manors[1459]. We have seen that the peasants in East Anglia had sheep -enough to make their 'fold-soke' an important social institution[1460]. -Also we have much evidence of large herds of pigs belonging to the -villeins, though these we may send to the woods. But, attending only to -the dominical stock, we will begin by looking at the manor which stands -first in the Cambridgeshire Inquest. The lord has 5 teams, 8 head of -not-ploughing cattle, 4 rounceys, 10 pigs and 480 sheep. Then, in the -accompanying table we will give some figures from various counties which -show the amount of stock that is kept where there are 200 teams or -thereabouts. - - Teams (Demesne Beasts not - and of the - Tenants') Plough Horses Goats Pigs Sheep - - Essex 207 267 34 107 777 1657 - Suffolk 200 196 30 295 676 1705 - Norfolk 202 132 44 200 672 5673 - Dorset 202 159 47 281 479 6160 - Somerset 202 82 16 49 198 1506 - Devon 205 282 16 135 173 1553 - Cornwall 200 62 35 52 26 1445 - Total 1418 1180 222 1119 3001 19699 - -Even if we look only at the flocks which belong to the holders of -manors, we may have to feed a million sheep south of the Humber, and, -though all England now maintains more than 15 millions, it does this by -devoting a large portion of its arable to the growth of turnips and the -like. No doubt, the medieval sheep were wretched little animals; also -large numbers of them were slaughtered and salted at the approach of -winter; but from the arable they got only the stubble, and every -extension of the ploughed area deteriorated the quality besides -diminishing the quantity of the pasture that was left for their hungry -mouths. As already said, our forefathers did not live on bread and beer; -bacon must have been plentiful among them[1461]. Also many fleeces were -needed for their clothing. As to meadow land (_pratum_), that is, land -that was mown, it was sparse and precious[1462]; the supply of it was -often insufficient even for the lord's demesne oxen. At least in -Cambridgeshire, we find traces of a theory which taught that every ox -should have an acre of meadow; but commonly this was an unrealized -ideal[1463]. In Dorset now-a-days there will be near 95,000 acres -growing grass for hay, whereas there were not 7,000 acres of meadow in -1086[1464]. Therefore we are throwing a heavy strain on the -pasture[1465]. - -[Area of the villages.] - -Lastly, we must not neglect, as some modern calculators do, the sites of -the villages, the straggling group of houses with their court-yards, -gardens and crofts, for this deducts a sensible piece from the -conceivably tillable area. An exceedingly minute account of Sawston in -Cambridgeshire which comes from the year 1279 shows us a territory thus -divided: Messuages, Gardens, Crofts, etc., 85 acres: Arable, 1243 -acres: Meadow, 82 acres: Several Pasture, 30 acres. The neighbouring -village of Whittlesford shows us: Messuages, Gardens, Crofts, etc., 35 -acres: Arable, 1363 acres: Meadow, 44 acres: Several Pasture, 35 acres. -In both cases we must add some unspecified quantity of Common -Pasture[1466]. The core of the village was not large when compared with -its fields; but it can not be ignored. - -[Produce and value.] - -Recurring for a moment to our food problem, we may observe that the -values that are set on the manors in Domesday Book seem to point to a -very feeble yield of corn. Without looking for extreme cases, we shall -often find that the value of a teamland is no more than 10 shillings. -Now let us make the hypothesis most favourable to fertility and suppose -that this 'value' represents a pure, net rent[1467]. We will make -another convenient but extravagant assumption; we will say that 24 -bushels of wheat will make 365 four-pound loaves. If then a lord is to -get one such loaf every day from each teamland that is valued at 10 -shillings, the price of wheat will be a good deal less than 5 pence the -bushel; if two daily loaves are to be had, the price of the bushel must -be reduced below 2-1/2 pence, for the cost of grinding and baking is not -negligible. Whether this last price could be assumed as normal must be -very doubtful, for the little that Domesday tells us about the price of -grain is told in obscure and disputable terms[1468]. However, the -evidence that comes to us from the twelfth[1469] and thirteenth -centuries[1470] suggests a rough equivalence between an ox and two -quarters of wheat, and in the eleventh the traditional price of the ox -was 30 pence. But at any rate, the lord who has a small village with -five teamlands, and who lets it to a _firmarius_, will receive a rent -which, when it is stated in loaves, is by no means splendid. He will not -be much of a _hláford_, or have many 'loaf-eaters' if his whole revenue -is £2. 10_s._ or, in other words, if he is lord of but one small village -in the midlands. - -[Varying size of acres.] - -Here we must leave this question to those who are expert in the history -of agriculture; but if some relief is required, it may be plausibly -obtained by a reduction in the size of the ancient acre. A small piece -off the village perches will mean a great piece off the 2,600 teamlands -of Oxfordshire, and we seem to have the best warrant for a recourse to -this device where it is most needed. The pressure upon our space appears -to be at its utmost in Oxfordshire, and just for that county we have -first-rate evidence of some very small acres[1471]. On the other hand, -in Lincolnshire and generally in the north, where we read of abnormally -large acres, we seem to have room enough for them. And here may be a -partial explanation of the apparent fact that the teamland of -Oxfordshire does not support three, while that of Lincolnshire supports -five recorded men. - -[The teamland in Cambridgeshire.] - -In these last paragraphs we have been speaking of averages struck for -large spaces; but if we come to some particular districts we shall have -the greatest difficulty in allowing 120 acres to every teamland. This is -the case in southern Cambridgeshire. In that county Domesday's list of -vills is so nearly the same as the modern list of parishes that we run -no great risk in comparing the ancient teamlands with the modern acreage -vill by vill, if we also compare them hundred by hundred. The general -result will be to make us unwilling to bestow on every teamland a -long-hundred of acres. One example shall be given. The Whittlesford -Hundred[1472] contains five vills and we can not easily concede to it -more land than is now within its boundary. In the following table we -give for each vill its modern acreage, then the number of its teamlands, -then the result of multiplying that number by 120. - - WHITTLESFORD HUNDRED. - - Sawston 1884 10 1200 - Whittlesford 1969 11 1320 - Duxford 3232 21[1473] 2520 - Hinxton 1557 16[1474] 1920 - Ickleton 2695 24-1/2 2940 - The Hundred 11337 82-1/2 9900 - -In two cases out of five we have already come upon sheer physical -impossibility. But let us suppose some rearrangement of parish -boundaries and look at the whole hundred. We are giving it 9900 acres of -arable and leaving 1437 for other purposes. Then we are told of 'meadow -for' 37 teams and this at the rate usual in Cambridgeshire[1475], means -296 acres, so that we have only 1141 left. On this we must place the -sites of five villages, houses, farmyards, fourteen water-mills, -cottages, gardens. Probably we want 250 acres at least to meet this -demand. Not 900 acres remain for pasture. The dominical flocks and herds -were not large, but the lords were receiving divers ploughshares in -return for the pasture rights accorded to the tenants and in some of the -vills there was not nearly enough meadow for the oxen of the villeins. -It is difficult to believe that 87 per cent. of a Cambridgeshire hundred -was under the plough, and that less than 8 per cent. was pasture. -However, we know too little to say that even this was impossible. In the -twelfth century we read of manors in which there is no pasture, except -upon the arable field that is taking its turn of idleness[1476]. We must -remember that this idle field was not fallowed until the summer[1477]; -also we may suspect that much that was not corn grew on the medieval -corn-land. - -[The hides of Domesday.] - -Saddened by our encounter with the teamlands (_B_)--and our last word -about them is not yet said--we turn to the hides, carucates and sulungs -(_A_). With a fair allowance for errors we feel safe in believing that -the total number mentioned by Domesday Book falls short of 70,000--and -yet time was when we spoke of 60,000 knight's fees of 5 hides -apiece[1478]. Let us then recall once more those tales of taxation that -are told by the chronicler[1479]. If Cnut raised a geld of £72,000, -then, even if we allow him something from those remote northern lands -which William's commissioners did not enter, the rate of the impost can -hardly have been less than a pound on the hide. We are not told that he -raised this sum in the course of a single year; but, even if we suppose -it spread over four years, it is a monstrous exaction, and we can -hardly fancy that in earlier days the pirates had waited long for the -£24,000 or £30,000 that were the price of their forbearance. And yet, as -already said, our choice seems to lie between believing these stories -and charging the annalist with reckless mendacity. Hereafter we shall -argue that some ancient statements about hidage, even some made by Bede -himself, deserve no credit; but it is one thing for a Northumbrian -scholar of the eighth century to make very bad guesses about the area of -Sussex, and another for a chronicler of the eleventh to keep on telling -us that a king levies £21,099 or £11,048 or the like, if these sums are -wildly in excess of those that were demanded. As to the value of money, -the economists must be heard; but it is probable that the sea-rovers -insisted on good weight[1480], and when in the twelfth century we can -begin to trace the movement of prices, in particular the price of oxen, -they are not falling but rising. However, we have already said our say -about the enormity of the danegeld. - -[Relation between hide and teamland.] - -We are now to investigate the 'law' of _A_ and its relation to _B_. We -shall soon be convinced that we are not dealing with two perfectly -independent variables. There will often be wide variations between the -two; _A_ may descend to zero, while _B_ is high, and in some counties we -shall see a steady tendency which makes _A_ decidedly higher or -decidedly lower than _B_. And yet, if we look at England as a whole, we -can not help feeling that in some sense or another _A_ ought to be equal -to _B_, and that, when this equation holds good, things are in a -condition that we may call normal. Perhaps, as we shall see hereafter, -the current notion has been that the teamland should be taxed as a hide -if it lies in a district where a teamland will usually be worth about a -pound a year. But for the time we will leave value out of account, and, -to save words, we will appropriate three terms and use them technically. -When _A_ = _B_, there is 'equal rating'; when _A_ > _B_, there is -'over-rating'; when _A_ < _B_ there is 'under-rating.' We shall find, -then, that in many counties there are numerous cases of equal rating. -Thus in Buckinghamshire we count - - cases of under-rating 136 - cases of equal rating 102 - cases of over-rating 115 - -In Lincolnshire we may find an unbroken series of fourteen entries each -of which gives us an instance of equal rating[1481]. In both -Lincolnshire and Yorkshire such cases are common, but, while in -Lincolnshire over-rating is rare, in Yorkshire under-rating is very -rare. Fewer are the over-rated than the under-rated counties; but there -are some for which the figures can not be given, and, as immense -Yorkshire is set before us as much over-rated, the balance must be -nearly redressed. But further, we may see that the relation between _A_ -and _B_ is apt to change somewhat suddenly at the border of a county. -The best illustration is given by the twin shires of Leicester and -Northampton, the one over-rated, the other grossly under-rated. Another -good illustration is given by the south-western counties. Wiltshire is -heavily over-rated; Dorset, as a whole, very equally rated; Somerset -decidedly under-rated, while when we come to Devon and Cornwall we enter -a land so much underrated that, had we only the account of these two -counties, the assumption that is implied in our terms 'under-rated' and -'over-rated' would never have entered our heads. - -[Unhidated estates.] - -Now for one cause of the aberration of _A_ from _B_ we have not far to -seek; it is a cause which will make _A_ less than _B_ and which may -reduce _A_ to zero. It is privilege. Certain estates have been -altogether exempt from geld. In particular many royal estates have been -exempt. '_Nescitur quot hidae sint ibi quia non reddidit -geldum_'--'_Nunquam geldavit nec scitur quot hidae sint ibi_'--'_Rex -Edwardus tenuit; tunc 20 hidae sed nunquam geldaverunt_':--such and such -like are the formulas that describe this immunity. The number of -actually geldant hides is here reduced to zero, and sometimes the very -term 'hides,' so usually does it imply taxation, is deemed -inappropriate. But these royal estates do not stand alone. Often enough -some estate of a church has been utterly freed from taxation. The bishop -of Salisbury, for example, has a great estate at Sherborne which has -gelded for 43 hides; but 'in this same Sherborne he has 16 carucates of -land; this land was never divided into hides nor did it pay geld[1482].' - -[Beneficial hidation.] - -But then again, we have the phenomenon which has aptly been called -'beneficial hidation.' Without being entirely freed from the tax, a -manor has been rated at a smaller number of hides than it really -contains. 'There are 5 hides' says a Gloucestershire entry, '3 of them -geld, but by grant of the Kings Edward and William 2 of them do not -geld[1483].' 'There are 8 hides there' says another entry 'and the ninth -hide belongs to the church of St. Edward; King Æthelred gave it quit -[of geld][1484].' 'There are 20 hides; of these 4 were quit of geld in -the time of King Cnut[1485].' 'The Bishop [of Winchester] holds Fernham -[Fareham] in demesne; it always belonged to the bishopric; in King -Edward's day it defended itself for 20 hides, and it does so still; -there are by tale 30 hides, but King Edward gave them thus [i.e. granted -that they should be 20 hides] by reason of the vikings, for it [Fareham] -is by the sea[1486].' 'Harold held it of King Edward; before Harold had -it, it defended itself for 27 hides, afterwards for 16 hides because -Harold so pleased. The men of the hundred never heard or saw any writ -from the king which put it at that figure[1487].' We have chosen these -examples because they give us more information than we can often obtain; -they take us back to the days of Cnut and of Æthelred; they tell us of -the depredations of the vikings; they show us a magnate fixing the -rateable value of his estate _ad libitum suum_. But our record is -replete with other instances in which we are told that by special royal -favour an estate has been lightly taxed[1488]. What is more, there are -many other instances in which we can hardly doubt that this same cause -has been at work, though we are not expressly told of it. When in a -district which as a whole is over-rated, or but moderately under-rated, -we come upon a few manors which are extravagantly under-rated, then we -may fairly draw the inference that there has been 'beneficial hidation.' - -[Effect of privilege.] - -Certainly this will account for much, and we have reason to believe that -this disturbing force had been in operation for a long time past and on -a grand scale. There is an undated writ of Æthelred[1489], which ordains -that an immense estate of the church of Winchester having Chilcombe for -its centre and containing 100 hides shall defend itself for one hide. -In Domesday Book Chilcombe does defend itself for one hide though it -has land for 88 teams[1490]. But further, Æthelred is decreeing nothing -new; his ancestors, his 'elders,' have 'set and freed' all this land as -one hide 'be the same more or less.' Behind this writ stand older -charters which are not of good repute. Still we can see nothing -improbable in the supposition that Æthelred issued the writ ascribed to -him and that what he said in it was substantially true. Before his day -there may have been no impost that was known as a 'geld'; but there may -have been, as we have endeavoured to show, other imposts to which land -contributed at the rate of so much per hide. We suspect that 'beneficial -hidation' had a long history before Domesday Book was made. - -[Divergence of hide from teamland.] - -But it will not account for all the facts that are before us; indeed it -will serve for few of them. Privilege can account for exceptional cases; -it will not account for steady and consistent under-rating; still less -will it account for steady and consistent over-rating. We must look -elsewhere, and for a moment we may find some relief in the reflection -that by the operation of natural and obvious causes an old rate-book -will become antiquated. There will be more 'teamlands' than there are -gelding hides because new land has been brought under cultivation; on -the other hand, land will sometimes go out of cultivation and then there -will be more gelding hides than there are teamlands. Now that there is -truth here we do not doubt. As we have already said[1491], the stability -of agrarian affairs in these early times may easily be overestimated. -But we can not in this direction find the explanation of changes that -take place suddenly at the boundaries of counties. - -[Partition of the geld.] - -A master hand has lately turned our thoughts to the right quarter. There -can we think be no doubt that, as Mr Round has argued, the geld was -imposed according to a method which we have called the method of -subpartitioned provincial quotas[1492]. A sum cast upon a hundred has -been divided among that hundred's vills; a sum cast upon a vill has been -divided among the lands that the vill contains. It is in substance the -method which still governs our land-tax, and in this very year our -attention has been pointedly called to its inequitable results. But, -whereas in later centuries men distributed pounds, shillings and pence -among the counties, our remoter ancestors distributed hides or carucates -or acres. The effect was the same; and it is not unlikely that they -could pass with rapidity from acres to pence, because the pound had 240 -pence in it and the fiscal hide had 120 acres. So the complaint urged -this year that Lancashire is under-taxed and Hertfordshire -over-taxed[1493] would have been in their mouths the complaint that too -many hides had been cast on the one county and too few on the other. - -[Distribution of hides.] - -We will not repeat Mr Round's convincing arguments. Just to recall their -character, we will notice the beautiful hundred of Armingford in -Cambridgeshire[1494]. In Edward's day it had 100 hides divided among -fourteen vills, six of which had 10 hides apiece, while eight had 5 -hides apiece. Before 1085 the number of hides in the hundred had been -reduced from 100 to 80; the number of hides in each of the 'ten-hide -vills' had been reduced to 8; and each 'five-hide vill' had got rid of -one of its hides. Obviously such results as these are not obtained by a -method which begins by investigating the content of each landholder's -tenement. The hides in the vill are imposed from above, not built up -from below[1495]. - -[The Worcestershire hidage.] - -We have no wish to traverse ground which must by this time be familiar -to all students of Domesday. But, having in our eye certain ancient -statements about the hidage of England, we will endeavour to carry the -argument one step further. - -In Worcestershire we have strong evidence of a neat arrangement of a -whole county. In the first place, we are told that 'in this county there -are twelve hundreds, whereof seven, so the shire says, are so free that -the sheriff has nothing in them, and therefore, so he says, he is a -great loser by his farm[1496].' Then we are told that the church of -Worcester has a hundred called Oswaldslaw in which lie 300 hides. Then -we remember that notorious charter (_Altitonantis_) which tells how this -triple hundred of Oswaldslaw was made up of three old hundreds, called -Cuthbertslaw, Wulfhereslaw and Wimborntree[1497]. Then, turning to the -particulars, we find that exactly 300 hides are ascribed to the various -estates which St. Mary of Worcester holds in this triple hundred. Those -particulars are the following:-- - -[The Worcester estate.] - - Chemesege 24 } Norwiche 25 } - Wiche 15 } Overberie 6 } } - Fledebirie 40 } Segesbarue 4 } } - Breodun 35 } 200 Scepwestun 2 } 25 } 100 - Rippel 25 } Herferthun 3 } } - Blochelei 38 } Grimanleh 3 } } - Tredinctun 23 } Halhegan 7 } } - Cropetorn 50 } - -We have here preserved the order in which Domesday Book names the -estates, but have added some brackets which may serve to emphasize the -artificiality of the system. Then, looking back once more at our -_Altitonantis_, we see Edgar adding lands to the 50 hides at Cropthorn, -so that 'a perfect hundred' may be compiled, and the lands that he adds -seem to be just those which in our table are bracketed with the -Cropthorn estate. - -[The Westminster estate.] - -Thus we have disposed of three out of those twelve 'hundreds' of which -Worcestershire is composed and also of 300 hides of land. Next we -perceive that the church of Westminster is said to hold 200 hides. -Reckoning up the particulars, we find, not indeed 200, but 199. - - H. V. H. V. - Persore 2 Pidelet 5 - Wiche 6 Newentune 10 - Pendesham 2 Garstune 1.3 - Berlingeham 3.1 Pidelet 4 - Bricstelmestune 10 Peritune 6 - Depeforde 10 Garstune 7 - Aichintune 16 Piplintune 4.2 - Beford 10 Piplintune 6.2 - Longedune 30 Cumbrintune 9 - Poiwic 3 Cumbrintune 10 - Snodesbyrie 11 Broctune 3 - Husentre 6 Stoche 15 - Wich 1 Cumbrintune 2 - Dormestun 5 ----- - 199.0 - -[The Pershore estate.] - -Then the church of Pershore has just 100 hides; they are distributed -thus:-- - - Persore 26 - Beolege 21 - Sture 20 - Bradeweia 30 - Lege 3 - ---- - 100 - -It is easy to divide these manors into two groups, each of which has 50 -hides. The county also tells us that the church of Pershore ought to -have the church-scot from 'the whole 300 hides,' that is, as well from -the 200 allotted to Westminster as from the 100 which Pershore -holds[1498]. - -[The Evesham estate.] - -Then Evesham Abbey has, we are told, 65 hides in the hundred of -Fissesberge. 'In that hundred,' it is added, 'lie 20 hides of Dodingtree -and 15 hides in Worcester make up the hundred.' The 65 hides which -Evesham holds are allotted thus:-- - - Evesham 3.0 } - Lenchewic 1.0 } - Nortune 7.0 } - Offenham 1.0 } 25 - Liteltune 6.0 } - Bratfortune 6.0 } - Aldintone 1.0 } - - Wiqwene 3.0 } - Bratfortune 6.0 } - Badesei 6.2 } 25 - Liteltune 7.0 } - Huniburne 2.2 } - - Ambreslege 15.0 - ---- - 65.0 - -[The residue of Worcestershire.] - -We have dealt heretofore with 665 hides. Let us now reckon up all the -hides in Worcestershire that we have not yet counted. The task is not -perfectly straightforward, for we have to meet a few difficult -questions. In order that our account may be checked by others, we will -set forth its details. We will go through the survey noting all the -hides which we have not already reckoned. - - --------------------------------------------------------------- - Worcester city 15.0 | More 1.0 | Glese 1.0 - Bremesgrave 30.0 | Betune 3.2 | Merlie 0.1 - [1499]Suchelei 5.0 | More 0.1 | Wich 1.0 - Grastone 3.2 | Edboldelege 2.2 | Escelie 4.0 - Cochesei 2.2 | Eslei 6.0 | Nordfeld 6.0 - Willingewic 2.3 | Eslei 1.0 | Franchelie 1.0 - Celdvic 3.0 | Ridmerlege 1.2 | Welingewiche 0.3 - Chideminstre 20.0 | Celdeslai 1.0 | Escelie 1.0 - Terdeberie 9.0 | Estham 3.0 | Werwelie 0.2 - Clent 9.0 | Ælmeleia 11.0 | Cercehalle 2.0 - Wich 0.2 | Wich 10.0 | Bellem 3.0 - Clive 10.2 | Sudtune 1.0 | Hageleia 5.2 - Fepsetanatum 6.0 | Mamele 0.2 | Dudelei 1.0 - Crohlea 5.0 | Broc 0.2 | Suineforde 3.0 - Hambyrie 14.0 | Colingvic 1.0 | Pevemore 3.0 - Stoche 10.0 | Mortune 4.0 | Cradeleie 1.0 - Huerteberie 20.0 | Stotune 3.0 | Belintones 5.0 - Ulwardelei 5.0 | Stanford 2.2 | Witone 2.0 - Alvievecherche 13.0 | Scelves 1.0 | Celvestune 1.0 - Ardolvestone 15.0 | Chintune 5.0 | Cochehi 2.2 - Boclintun 8.0 | Beretune 2.0 | Osmerlie 1.0 - Cuer 2.0 | Tamedeberie 3.0 | Costone 3.0 - Inteberga 15.2 | Wich 0.2 | Beneslei 1.0 - Wich 1.0 | Clistune 3.0 | Udecote 1.2 - Salewarpe 1.0 | Chure 3.0 | Russococ 5.0 - Tametdeberie 0.2 | Stanford 1.2 | Stanes 6.0 - Wich 0.2 | Caldeslei 1.0 | Lundredele 2.0 - Matma 5.0 | Cuer 1.0 | Hatete 1.0 - [1500]Mortune 5.0 | Hamme 1.0 | Hamtune 4.0 - Achelenz 4.2 | Sapie 3.0 | Hortune 2.0 - Buintun 1.0 | Carletune 1.1 | Cochesie 2.0 - Circelenz 4.0 | Edevent 1.0 | Brotune 2.0 - Actune 6.0 | Wicelbold 11.0 | Urso's hide 1.0 - Lenche 4.0 | Elmerige 8.0 | Uptune 3.0 - Wich 1.0 | Croelai 5.0 | Witune 0.2 - Ludeleia 2.0 | Dodeham 1.0 | Hantune 4.0 - Hala 10.0 | Redmerleie 1.2 | Tichenapletreu 3.0 - Salewarpe 5.0 | Hanlege 1.2 | Cedeslai 25.0 - Wermeslai 2.0 | Hanlege 3.0 | Hilhamatone 0.1 - Linde 2.0 | Alretune 1.2 | Fecheham 10.0 - Halac 1.0 | Hadesoro 2.0 | Holewei 3.0 - Dunclent 3.0 | Holim 1.0 | [1501]Mertelai 13.0 - Alvintune 2.0 | Stilledune 0.2 | ----- - 539.0 - -We have here therefore 539 hides to be added to the 665 of which we -rendered an account above. We thus bring out a grand total of 1204 -hides. Perhaps the true total should be exactly 1200; but at any rate it -stands close to that beautiful figure. And now we remember how we were -told that there were 'twelve hundreds' in Worcestershire from seven of -which the sheriff got nothing. Of these twelve the church of Worcester -had three in its 'hundred' of Oswaldslaw, the church of Westminster two, -the church of Pershore one, and the church of Evesham one. But the -Evesham or Fissesberge hundred was not perfect; it required 'making up' -by means of 15 hides in the city of Worcester and 20 in the hundred of -Dodingtree. Thus five hundreds remain to be accounted for, and in its -rubrics Domesday Book names just five, namely, Came, Clent, Cresselaw, -Dodingtree and Esch. We can not allot to each of these its constituent -hides, for we never can rely on Domesday Book giving all the 'hundredal -rubrics' that it ought to give, and the Worcestershire hundreds were -subjected to rearrangement before the day of maps had dawned[1502]. An -intimate knowledge of the county might achieve the reconstruction of the -old hundreds. But, as it is, we seem to see enough. We seem to see -pretty plainly that Worcestershire has been divided into twelve -districts known as hundreds each of which has contained 100 hides. It is -an anomaly to be specially noted that one of the jurisdictional -hundreds, one which has been granted to the church of Evesham, has only -65 hides and can only be made up into a 'hundred' for financial purposes -by adding to it 20 hides lying in another jurisdictional hundred and the -15 hides at which the city of Worcester is rated. - -[_The County Hidage._] - -The moment has now come when we may tender in evidence an ancient -document which professes to state the hidage of certain districts. There -are three such documents which should not be confused. We propose to -call them respectively (1) _The Tribal Hidage_, (2) _The Burghal -Hidage_, and (3) _The County Hidage_; and this is their order of date. -For the two oldest we are not yet ready. The youngest professes to give -us a statement about the hidage of thirteen counties. We have it both -in Latin and in Old English. It has come down to us in divers -manuscripts, which do not agree very perfectly. We will here give its -upshot, placing in a last column the figures at which we have arrived -when counting the hides in Domesday. - - THE COUNTY HIDAGE. - - Cotton, Cotton, Gale, - Claudius, Vespasian, Scriptore MS. Jes. - B. vii. A. xviii. xv. Coll. Ox.; - f. 204 b; f. 112 b; p. 748 Morris, Domesday - Kemble, Kemble, from a Old English Book - Saxons Saxons Croyland Miscellany, (boroughs - i. 493 i. 494 MS. p. 145 omitted) - - Wiltshire 4800 4800 4800 4800 4050 - Bedfordshire 1200 1000 1200 1200 1193 - Cambridgeshire 2500 2500 2005 2500 1233 - Huntingdonshire 850[1503] 850[1503] 800-1/2 850 747 - Northamptonshire 3200 4200 3200 3200 1356 - Gloucestershire 2400 2000 2400 3400 2388 - Worcestershire 1200 1500 1200 1200 1189 - Herefordshire 1500 1500 1005 1200 1324 - Warwickshire 1200 1200 1200 1200 1338 - Oxfordshire 2400 2400 2400 2400 2412 - Shropshire 2300 2400 2400 2400 1245 - Cheshire 1300 1200 1200 1200 512 - Staffordshire 500 500 ---- 500 505 - -[Date of the document.] - -Dr Liebermann has said that the text whence these figures are derived -was probably compiled in English and in the eleventh century[1504]. If -we put faith in it, we shall be inclined to set its date at some -distance before that of Domesday Book. But our first question should be -whether it merits credence; whether it was written by some one who knew -what he was about or whether it is wild guesswork. Now when we see that -the scrupulous Eyton brought out the hides of Staffordshire at 499, or -rather at 499 H 2-13/30 V, and that this document makes them 500, we -shall begin to take it very seriously, without relying on our own 505, -the result of hasty addition. We have also seen enough to say that 1200 -for Worcestershire is very near the mark. As regards other counties, we -set so little reliance upon our own computation, that we are not very -willing to institute a comparison; but we have given Bedfordshire 1193 -hides[1505] and this document gives it 1200; we have given Oxfordshire -2412 and this document gives it 2400; we have given Gloucestershire -2388[1506] and two versions of this document give it 2400. Having seen -so much agreement, we must note some cases of violent discord. For -Wiltshire 4800 seems decidedly too high, though we have brought the -number of its hides above 4000. The figure given to Cambridgeshire is -almost twice that which Domesday would justify, and the figures given to -Cheshire, Shropshire and Northamptonshire are absurdly large when -compared with the numbers recorded in 1086. These cases are enough to -show that, though no doubt some or all of the transcribers of The County -Hidage must be charged with blunders, the divergence of the copies from -Domesday can not be safely laid to this account. About certain counties -there is just that agreement which we might expect, when we remember how -precarious our own figures are. About certain other counties there is -utter disagreement. We infer therefore that the original document did -not truly state the hidage as it stood in 1086; but may it not have -represented an older state of things? - -[The Northampton Geld Roll.] - -Let us take one case of flagrant aberration. Three copies tell us that -Northamptonshire has 3200 hides; one that it has 4200. The balance of -authority inclines therefore to 3200. Domesday will not give us half -that number. But let us turn to the Northamptonshire Geld Roll[1507], -the date of which Mr Round places between the Conquest and 1075[1508]. -It gives the county 2663-1/2 hides. So here we have a case in which -between 1075 and 1086 a county was relieved of about half of its -hides[1509]. Also at 2664 we are within a moderate distance of 3200. -But the Geld Roll does more than this. It represents Northamptonshire as -composed of 28 districts; 22 of these are called 'hundreds'; two are -'two-hundreds'; four are 'other-half hundreds,' or, as we might say, -'hundred-and-a-halfs.' We work a sum:-- - - (22+4+6) × 100 = 3200. - -The result will increase our respect for The County Hidage. Now, when -the Geld Roll was made, some of the 'hundreds' of Northamptonshire -contained their 100 hides apiece, but others were charged with a smaller -number, which generally was round, such as 80, 60, 40 hides; and this -arrangement is set before us as that which existed 'in the days of -Edward the king.' If therefore we put faith in The County Hidage and its -3200 hides, we must hold that it speaks to us from the earlier part of -the Confessor's reign or from some yet older time. - - -[Value of _The County Hidage_.] - -Is it too good, too neat to be true? Before we pass a condemnatory -judgment we must recall the case of Worcestershire, its twelve -'hundreds' and 1200 hides. Also we must recall the case of the -Armingford hundred in Cambridgeshire, where we have seen how in -William's reign an abatement of 20 per cent, was equitably apportioned -among the fourteen villages, and the 100 hides were reduced to 80[1510]. -Moreover, if in Domesday Book we pass from Northamptonshire to the -neighbouring county of Leicester, we see a startling contrast. The -former is decidedly 'under-rated'; the latter is 'over-rated.' -Leicestershire has about 2500 carucates, while Northamptonshire has -hardly more than half that number of hides. The explanation is that -Northamptonshire has obtained, while Leicestershire is going to obtain a -reduction. The Pipe Rolls of the twelfth century show us that either -under Rufus or under Henry I. this sadly over-taxed county was set down -for exactly 1000 carucates. - -[Reductions of hidage.] - -As to the other cases in which there is a strident discord between -Domesday and The County Hidage, the case of Chester, where the contrast -is between some 500 hides and a round 1200 will not perhaps detain us -long, for we may imagine, if we please, that the Chestershire of Cnut's -day was much larger than the territory described under that name in -1086[1511]. The 2500 hides attributed to Cambridgeshire and the 2400 -attributed to Shropshire may shock us, for, if they are correctly -stated, they point to reductions of 50 per cent. or thereabouts. But we -have seen some and are going to see some other large abatements. - -[The county quotas.] - -On the whole, we believe that this County Hidage, though it has come to -us in transcripts some or all of which are careless, is an old and -trustworthy document, that it is right in attributing to the counties -neat sums of hides, such as 1200 and 2400, and that it is right in -representing the current of change that was flowing in the eleventh -century as setting towards a rapid reduction in the number of hides. -Only in one case, that of Warwickshire, have we any cause to believe -that it gives fewer hides to a county than are given by Domesday; here -the defect is not very large, and, besides the possibility of -mistranscription, we must also remember the possibility of changed -boundaries[1512]. - -[The hundred and the hundred hides.] - -There is one other feature of this document that we ought to notice. Let -us compare the number of hides which it gives to a county with the -number of 'hundreds' which that county contains according to Domesday -Book. The latter number we will place in brackets[1513]. - - Bedfordshire 1200 hides [12 hundreds]: Northamptonshire 3200 [28 - hundreds which, however, have been reckoned to be 32[1514]]: - Worcestershire 1200 [12]: Warwickshire 1200 [12]: Cheshire 1200 - [12]: Staffordshire 500 [5]: Wiltshire 4800 [40]: Cambridgeshire - 2500 [17]: Huntingdonshire 850 [4]: Gloucestershire 2400 - [39[1515]]: Herefordshire 1500 [19]: Oxfordshire 2400 [uncertain, - but at least 19]: Shropshire 2400 [13]. - -In six out of thirteen cases we seem to see a connexion of the simplest -kind between the hides and the hundreds. Now in the eyes of some this -trait may be discreditable to The County Hidage, for they will infer -that its author was possessed by a theory and deduced the hides from the -hundreds. But, after all that we have seen[1516] of symmetrical -districts and reductions of hidage, we ought not to take fright at this -point. Other people besides the writer of this list may have been -possessed by a theory which connected hides with hundreds, and they may -have been people who were able to give effect to their theories by -decreeing how many hides a district must be deemed to contain. Is it not -even possible that we have here, albeit in faded characters, one of -their decrees? But the history of the hundreds can not be discussed in a -parenthesis. Some further corroboration this County Hidage will receive -when hereafter we set it beside The Burghal Hidage, and we may then be -able to carry Worcester's 1200 and Oxford's 2400 hides far back into the -tenth century. - -[Comparison of Domesday hidage with Pipe Rolls.] - -Meanwhile, making use of our terms 'equally rated' (_A_ = _B_), -'over-rated' (_A > B_), and 'under-rated' (_A_ < _B_), let us briefly -survey the counties as they stand in Domesday. Some help towards an -estimation of their hidage is given to us by those few Pipe Rolls of the -twelfth century which contain accounts of a danegeld. But we must not at -once condemn as false the results of our own arithmetic merely because -they do not square with the figures on these rolls. One instance will be -enough to prove this. The Henries have to be content with £166 or -thereabouts from Yorkshire, or, in other words, to treat it as having -1660 'carucates for geld.' We give it a little more than 10,000 and -shall not admit that we have given it 8000 too many. This poor, wasted -giant has been relieved and has been set below little Surrey. So again, -though Leicestershire will account to Henry I. and his grandson for but -£100, it most certainly had more than 1000 and more than 2000 carucates -when William's commissioners visited it. On the other hand, there seem -to be cases in a small group of counties in which his sons were able to -recover a certain amount of geld which had been, rightfully or -wrongfully, withheld or forborne during his own reign. But, taking the -counties in mass, we hope that our figures are sufficiently consonant -with those upon the Pipe Rolls. Absolutely consonant they ought not to -be, for we have endeavoured to include the hides that are privileged -from gelding, and in some shires (Hereford, for example) their number is -by no means small. Also some leakage in an old tax may always be -suspected, and the Pipe Rolls themselves show some unexplained -variations in the amount for which a sheriff accounts, and some -arithmetical errors[1517]. - -But now we will make our tour and write brief notes as we go. - -[Under-rated and over-rated counties.] - -Kent is scandalously under-rated. Of this there can be no doubt, though, -since in many cases blanks are left where the number of the teamlands -should stand, the figures can not be fully given. There has in a few -instances been a reduction in the number of geldable sulungs since the -Conquest, but this does not very greatly affect the result. The -under-rating seems to be generally distributed throughout the county. It -had not been redressed in Henry I.'s day. Indeed on the Pipe Rolls Kent -appears as paying but £105, while Sussex pays twice as much. Sussex, -Surrey, Hampshire and Berkshire appear to have all been over-rated. In -the Conqueror's day, however, they shuffled off large numbers of their -geldant hides and were paying for considerably fewer hides than they had -teamlands. Some part of this reduction was perhaps unauthorized. At any -rate the sums that appear on the Pipe Rolls seem to show that in Surrey, -Hampshire and Berkshire more hides were gelding under Henry I. than had -been recently gelding when the survey was made; but the recovery was not -sufficient to restore the state of things that existed under the -Confessor. Wiltshire, so far as we can see, has always been a sorely -over-rated county. It obtains no reduction under William. In the Pipe -Rolls it stands at the very head of the counties. Dorset, taken as a -whole, is exceedingly fairly rated. Eyton seems to have made 2321 hides -and 2332 teamlands; but if the royal demesne (much of which is -unhidated) be left out on both sides of the account, there will be -slight over-rating. Somerset is very much under-rated, even if no notice -be taken of the royal demesne. Devon is grossly under-rated. Cornwall is -enormously under-rated. To all appearance considerably more than 1000 -teamlands have stood as 400 hides, and even this light assessment seems -to be the work of the Conqueror, for in the Confessor's day the whole -county seems to have paid for hardly more than 150 hides[1518]. -Middlesex is decidedly over-rated; but Hertford, Buckingham, Oxford, -Gloucester, Worcester, Hereford, Cambridge, Huntingdon, Bedford are -under-rated. The ratio borne by hides to teamlands varies from county to -county. We believe that it becomes small in Gloucester and Worcester and -falls much below 1:2 in Hereford[1519]. This ratio is very small again -in Warwick, Stafford, Shropshire and Cheshire. The two sister counties -of Northampton and Leicester have, as already said, been very -differently treated. Northampton is escaping easily, while Leicester, if -we are not much mistaken, is over-rated[1520]. Then however the Pipe -Rolls show that before the end of Henry I.'s reign Leicester has -succeeded in largely reducing its geldability. We have seen reason to -believe that a similar reduction had been made in Northamptonshire -shortly before the compilation of Domesday Book. Derby is under-rated; -Nottingham is much under-rated. Lincoln, though under-rated, is an -instance of a county in which we long doubt whether the under-rating of -some will not be compensated by the over-rating of other estates. So far -as we can tell, Yorkshire had been heavily over-rated; but then, the -teamland of Yorkshire is very often a merely potential teamland, and we -can not be certain that the jurors will give to the waste vills as many -teamlands as they had before the devastation. In the end a very small -sum of geld is exacted. - -[Hidage and value.] - -We have seen enough in the case of Northampton to make us hesitate -before we decide that the arrangement of hides set forth by Domesday -Book is in all cases very ancient. That book shows us two different -assessments of Cornwall; it shows us Sussex, Surrey, Hampshire and -Berkshire relieving themselves or obtaining relief in the Conqueror's -time; it shows us some Cambridgeshire hundreds disburdened of their -hides. But of the great reduction in Northamptonshire we should have -learnt nothing from its pages. Therefore in other cases we must be -cautious, even in the scandalous case of Kent, for we can not tell that -there has not been a large reduction of its sulungs in quite recent -years. However, behind all the caprice and presumable jobbery, we can -not help fancying that we see a certain equitable principle. We have -talked of under-rating and over-rating as if we held that every teamland -in the kingdom should pay a like amount. But such equality would -certainly not be equity. The average teamland of Kent is worth full -thirty shillings a year; the average teamland of Cornwall is barely -worth five; to put an equal tax on the two would be an extreme of -injustice. Now we have formed no very high estimate of the justice or -the statesmanship of the English witan, and what we are going to say is -wrung from us by figures which have dissipated some preconceived ideas; -but they hardly allow us to doubt that the number of hides cast upon a -county had been affected not only by the amount, but also by the value -of its teamlands. If, starting at the east of Sussex, we journey through -the southern counties, we see that over-rating prevails in Sussex, -Surrey, Hampshire, Berkshire, Wiltshire, and Dorset. We see also that -the _valet_ of the average teamland stands rather above than below one -pound. We pursue our journey. The ratio that _A_ bears to _B_ begins to -decline rapidly and at the same time the _valets_ descend by leaps and -bounds. When we have reached Devon we are in a land which could not with -any show of justice be taxed at the same rate per acre as that which -Wiltshire might bear without complaint. Every test that we can apply -shows the extreme poverty of the country that once was 'West Wales.' -That poverty continues through the middle ages. We look, for example, at -the contributions to the tax of 1341 and compare them with the acreage -of the contributing counties. Equal sums are paid by 1020 acres in -Wiltshire, 1310 in Dorset, 1740 in Somerset, 3215 in Devon, 3550 in -Cornwall[1521]. We look at the subsidy of 1294[1522], and, in order that -Devon and Cornwall may not be put at a disadvantage by moor and -sea-shore, we take as our dividend the number of acres in a county that -are now-a-days under cultivation[1523], and for our divisor the number -of pence that the county pays. The quotients are, for Wiltshire 2·7, for -Dorset 2·8, for Somerset 2·5, for Devon 6·4, for Cornwall 5·2. Retaining -the same dividend, we try as a divisor the 'polls' for which a county -will answer in 1377[1524]. Cornwall here makes a better show; but -Devonshire still displays its misery. The quotients are, for Wiltshire -16, for Dorset 14, for Somerset 15, for Devon 27, for Cornwall 17. These -figures we have introduced because they support the inferences that we -should draw from the _valets_ and _valuits_ of Domesday Book, a study of -which has convinced us that the distribution of fiscal hides has not -been altogether independent of the varying value of land. - -[Connexion between hidage and value.] - -But in order that we may not trust to vague impressions, let us set down -in one column the number of hides (carucates or sulungs) that we have -given to twenty counties and in another column the annual value of those -counties in the time of King Edward as calculated by Mr Pearson[1525]. - - Hides, Value | Hides, Value - Carucates, in | Carucates, in - Sulungs Pounds | Sulungs Pounds - Kent 1224 3954 | Oxford 2412 2789 - Sussex 3474 3467 | Gloucester 2388 2855 - Surrey 1830 1417 | Worcester 1189 1060 - Berkshire 2473 2378 | Huntingdon 747 900 - Dorset 2277 2564 | Bedford 1193 1475 - Devon 1119 2912 | Northampton 1356 1407 - Cornwall 399 729 | Leicester 2500 491 - Middlesex 868 911 | Warwick 1338 954 - Hertford 1050 1894 | Derby 679 631 - Buckingham 2074 1785 | Essex 2650 4079 - | ----- ----- - | 33240 38652 - -[One pound one hide.] - -No one can look along these lines of figures without fancying that some -force, conscious or unconscious, has made for 'One pound, one hide.' But -we will use another test, which is in some respects fairer, if in others -it is rude. The total of the _valets_ or _valuits_ of a county sometimes -includes and sometimes excludes the profit that the king derives from -boroughs and from county courts; also the rents of his demesne manors -are sometimes stated in disputable terms. Therefore from every county we -will take eighty simple entries, some from the lands of the churches, -some from the fiefs of the barons, and in a large county we will select -our cases from many different pages. In each case we set down the number -of gelding hides (carucates, sulungs) and the _valuit_ given for the T. -R. E.[1526]. Our method will not be delicate enough to detect slight -differences; it will only suffice to display any general tendency that -is at work throughout England and to stamp as exceptional any shires -which widely depart from the common rule, if common rule there be. Using -this method we find the values of the hide (carucate, sulung) to have -been as follows, our figures standing for pounds and decimal fractions -of a pound. We begin with the lowest and end with the highest _valuit_. - - Leicester 0·26, York 0·34, Surrey 0·68, Northampton 0·75, Wiltshire - 0·77, Sussex 0·81, Chester 0·82, Warwick 0·84, Somerset 0·85, - Buckingham 0·86, Oxford 0·87, Dorset 0·88, Berkshire 0·89, Hereford - 0·91, Gloucester 0·99, Lincoln 0·99, Derby 1·00, Huntingdon 1·02, - Shropshire 1·02, Bedford 1·09, Hampshire 1·10, Worcester 1·10, - Middlesex 1·15, Essex 1·41, Devon 1·52, Hertford 1·69, Cambridge - 1·73, Nottingham 1·76, Kent 3·25, Cornwall 3·92. - -[Equivalence of pound and hide.] - -Now 'One pound, one hide' seems to be the central point of this series, -the point of rest through which the pendulum swings. Our experiment has -been much too partial to tell us whether a shire is slightly over-taxed -or slightly undertaxed; but, unless we have shamefully blundered, it -tells us that in some twenty out of thirty counties the aberration from -the equivalence of pound and hide will not exceed twenty five per -cent.: in other words, the value of the normal hide will not be less -than 15 nor more than 25 shillings. Also we have brought our counties -into an admirable disorder. We have snapped all bonds of race and of -neighbourhood. For example, we see the under-taxed Hampshire in the -midst of over-taxed counties; we have divorced Nottingham from Derby and -Leicester from Northampton. The one general remark that we can make -about the geographical distribution of taxation is that, if East Anglia -is under-taxed (and this is likely), then Kent, Essex, Suffolk, Norfolk, -Cambridge and Hertford would form a continuous block of territory that -is escaping easily. - -[Cases of under-taxation.] - -[Kent.] - -The markedly exceptional cases are the most interesting. First let us -look at the worst instances of immunity. In Kent we seem to see -'beneficial hidation' on a gigantic scale; but on the whole, though the -evidence is not conclusive, we do not think that this is due to any -modern privilege. We can not doubt that for a long time past the Kentish -churches have been magnificently endowed, and yet the number of manses -and sulungs that their land-books bestow upon them is not very large, -and the number attributed to any one place is usually small, perceptibly -smaller than the number of hides that will be comprised in a West Saxon -charter. If a royal land-book condescends to mention acres (_iugera, -segetes_)[1527] it will almost certainly be a Kentish charter, and we -may guess that its acres are already fiscal acres of wide extent. To say -more would be perilous. The title-deeds of Christ Church can not be -readily harmonized with Domesday Book[1528]; perhaps we ought to add -that this is much to their credit; but the documents which come to us -from St. Augustin's and Rochester suggest that the arrangement of -sulungs which exists in the eleventh century is ancient, or, at any -rate, that the monks knew of no older computation which dealt out these -units with a far more lavish hand[1529]. In Kent the churches were -powerful and therefore may have been able to preserve a scheme of -assessment which unduly favoured a rich and prosperous shire; but we can -not be certain that the hide and the Kentish sulung have really had the -same starting-point, nor even perhaps that Kent was settled village-wise -by its Germanic invaders[1530]. - -[West Wales.] - -Devon and Cornwall ought to be 'under-rated' (_A_ < _B_) for they are -very poor. What we find is that they are so much under-rated that the -hide is worth a good deal more than a pound. Here again we are inclined -to think that this under-rating is old, perhaps as old as the subjection -of West Wales. Such land-books as we obtain from this distressful -country point in that direction, for they give but few hides and -condescend to speak of virgates[1531]. Among them is a charter -professing to come from Æthelstan which bestows 'one manse' upon the -church of St. Buryan; but clearly this one manse is a wide tract. Also -this would-be charter speaks to us of land that is measured by the -arpent, and, whether or no it was forged by French clerks after the -Norman Conquest, it may tell us that this old Celtic measure has been -continuously used in the Celtic west[1532]. Be that as it may, when we -are speculating about the under-taxation of Devon and Cornwall, we may -remember that where the agrarian outlines were drawn by Welsh folk, the -hide, though it might be imposed from above as a piece of fiscal -machinery, would be an intruder among the Celtic trevs and out of -harmony with its environment. The light taxation of Cambridgeshire is -perhaps more wonderful, for our figures represent the hidage of the -Confessor's time, and we have seen[1533] how some of the hundreds in -this prosperous shire (our champion wheat-grower) obtained a large -abatement from the Conqueror[1534]. If, in accordance with The County -Hidage, we doubled the number of Cambridgeshire's hides, though it would -be over-taxed, it would not be so heavily taxed as are some other -counties. - -[Cases of over-taxation.] - -Extreme over-taxation is far more interesting to us at the present -moment than extreme under-taxation. The latter may be the result of -privilege, and in the middle ages privileges will be accorded for value -received in this world or promised in another. But what are we to say of -Leicester? On the face of our record it seems to have been in Edward's -day the very poorest of all the counties and yet to have borne a -crushing number of carucates. Under William it was beginning to prosper -but still was miserably poor[1535]. We have bethought ourselves of -various devices for explaining this difficult case--of saying, for -instance, that the Leicestershire 'carucate of land' is not a carucate -for geld[1536]. But this case does not stand quite alone. The Yorkshire -carucates, and they are expressly called 'carucates for geld,' had been -worth little. It is likely that the figure that we have given for -Yorkshire is not very near the true average for that wide territory; but -we examined an unusually large number of entries and avoided any which -showed signs of devastation in the present or the past. Also we see that -in Northamptonshire, if we take the Edwardian _valuit_ and the number of -hides existing in 1086, we have an over-taxed county; and yet we have -reason to believe that since 1075 it had been relieved of about half its -hides. Had this not been done, it would have stood along with Yorkshire, -and, if it once had those 3200 of which The County Hidage speaks, it -would have stood along with its sister, the wretched Leicestershire. We -might find relief in the supposition that the Leicestershire of Edward's -time had been scourged by war or pestilence; but unfortunately the -jurors often tell us how many teams were then upon the manors, and in so -doing give a marvellously small value to the land that one team tilled. -Such reports as the following are common[1537]. - - Teams Teams Valuit Valet - Carucates T. R. E. T. R. W. sol. sol. - Werditone 4 5 3 1 20 - Castone 9 10 7 40 140 - Wortone 6 6 5 40 100 - Tuicros 6 6 7 3 40 - Gopeshille 3 3 3 1 30 - Scepa 2 3 3 2 30 - -What can these figures mean? They can not mean that a tract of land was -being habitually tilled by three teams and yet was producing in the form -of profit or rent no more than the worth of one or two shillings a year. -An organized attempt to deceive King William into an abatement seems out -of the question, for he is being told of a rapid increase of prosperity. -Our best, though an unwarranted, guess is that the Leicestershire -_valuit_ speaks not of the Confessor's day, but of some time of disorder -that followed the Conquest, for in truth it seems to give us but -'prairie values.' However, if we take, not the _valuit_, but the -_valet_, we still have carucates that are worth much less than a pound, -and it seems clear that the carucate had been worth much less than a -pound in the as yet unravaged Yorkshire. On the whole, these cases, -together with what we can learn of Lancashire, will dispose us to -receive with more favour than we might otherwise have shown certain -statements about the hidage of England that have yet to be adduced. In -Yorkshire, Lancashire, Leicestershire and Northamptonshire we may -perhaps see the unreformed relics of an age when the distribution of -fiscal units among the various provinces of England was the sport of -wild guesswork[1538]. - -[Equity and hidage.] - -We have spoken of a tendency on the part of the hide to be worth a -pound. Now we have no wish to represent this equitable element as all -powerful or very powerful; the case of Kent is sufficient to show that -it may be overruled by favouritism or privilege. There has been a -'beneficial hidation' of shires as there has been a 'beneficial -hidation' of manors. Still that the kings and witan have considered the -value as well as the number of teamlands seems fairly plain. Probably -they have considered it in a rough, 'typical' fashion. Any one who -peruses Domesday Book paying attention to the _valets_ will be struck in -the first place by their roundness. If a teamland is not worth 20, it is -worth 10 or 30, 5 or 40 shillings. The jurors seem to keep in their -minds as types the 'one-pound-teamland,' the 'half-pound-teamland' and -so forth. But then, whereas in one county 'twenty shillings' will stand -for 'fair average' and in another for 'rather poor,' in a third it will -indicate unusual excellence. Similarly we imagine that when fiscal hides -have been distributed or redistributed, there has been talk of typical -qualities of land, of first-rate and fourth-rate land. Any tradition of -Roman taxation which had perdured in Britain or crossed the sea from -Frankland would have taught men that this was the right method of -procedure. But it is by no means certain that we can carry back this -equitable principle very far[1539]. Long ago the prevailing idea may -have been that teamland, house-land, pound-land and fiscal hide were, or -ought normally to be, all one; and then the discovery that there are -wide tracts in which the worth of an average teamland is much less or -somewhat greater than a pound may have come in as a disturbing and -differentiating force and awakened debates in the council of the nation. -We may, if we like such excursions, fancy the conservatives arguing for -the good old rule 'One teamland, one hide,' while a party of financial -reformers has raised the cry 'One pound, one hide.' Then 'pressure was -brought to bear in influential quarters,' and in favour of their own -districts the witan in the moots jobbed and jerrymandered and rolled the -friendly log, for all the world as if they had been mere modern -politicians. - -[Distribution of hides and of teamlands.] - -But, to be serious, it is in some conjecture such as this that we may -perchance find aid when we are endeavouring to loosen one of Domesday's -worst knots. We have hinted before now[1540] that there are districts in -which the teamland (_B_) seems to be as artificial and as remote from -real agrarian life as is the hide or the gelding carucate (_A_). To any -one who thinks that when we touch Domesday's teamland we have always -freed ourselves from the geld system and penetrated through the rateable -to the real, the following piece of the survey of Rutland may be -commended. 'In Martinesleie Wapentake there is a hundred in which there -are 12 carucates for geld and there can be 48 teams.' Now there is -nothing curious in the fact that 48 'real' teamlands are rated at 12 -carucates. But let us look closer. Beside one smaller estate there are -in this wapentake three manors. Their arrangement is this[1541]:-- - - Carucates Villeins and Demesne Men's - for geld Teamlands bordiers teams teams - Ocheham 4 16 157 2 37 - Hameldune 4 16 153 5 40 - Redlinctune 4 16 196[1542] 4 30 - Subtenancy 24 4 5 - ---- ---- ---- ------ ------ - \/ - 12 48 530 127 - -Now surely the three sixteens are just as artificial as the three fours, -and in what possible sense can we affirm that there is land for only 48 -teams when we see that 530 tenants are actually ploughing it with 127 -teams? Behind this there must be some theory or some tradition that we -have not yet fathomed[1543]. - -[Area and value as elements of geldability.] - -We strongly suspect that in the work of distributing and reducing the -geld, 'the land for one team' has been playing a part for some time -past. In order to decide, for example, whether a claim for abatement was -just, the statesman had to consider two elements, the number of the -teamlands and their value. He would be content with round figures, -indeed no others would content him or be amenable to his rude -manipulation. So it is decided that some province or district has, or -must be deemed to have, _y_ teamlands. Also it is decided at this or at -some other time, or perhaps from time to time, that the land in this -district (regard being had to its state of cultivation) is or must be -deemed to be first-class, or, as the case may be, third-class land. Then -a combination of these propositions induces the conclusion that the -district has _x_ hides or carucates for geld. Then inside the district, -when the process of subpartitionment begins, a similar method is -pursued. There are _x_ hides or carucates for geld to be distributed. -They ought to be distributed with reference to the number and value of -real teamlands. The work is rudely done in the subpartitionary fashion. -A certain sub-district has _x/a_ hides thrown upon it; a -sub-sub-district has _x/ab_; but this apportionment is obtained by -combining a proposition about value with a partitionment of the _y_ -teamlands. The sub-sub-district has _x/ab_ hides, because _y/cd_ -teamlands fall to its share and because its land is assigned to a -certain class. Then, perhaps for the purpose of future rearrangements, -the number of teamlands (_y/cd_) is remembered as well the number of -hides or gelding carucates (_x/ab_). The result is that every manor in a -certain district has four hides and sixteen teamlands. It is very -pretty; it was never (except for technical purposes) very true, and -every year makes it less true[1544]. [Sidenote: The equitable -teamland.] - -That exactly this was done, we do not say and do not think; but -something like it may have been done. As already remarked, we gravely -doubt whether that question which the commissioners put about potential -teams was understood in the same way in different counties, but we are -sadly afraid that some of the answers that they obtained were -references, not to existing agrarian facts, but to a fiscal history -which already lay in the past and is now hopelessly obscure. A mystery -of iniquity is bad, but the mysteries of archaic equity are worse. In -many Anglo-Saxon arrangements we find a curious mixture of clumsiness -and elaboration. - -[Artificial valets.] - -We can not quit this part of our subject without adding that there are -cases in which the _valuits_ and _valets_ look as artificial and -systematic as the hides and the teamlands. On a single page we find a -description of five handsome Yorkshire manors[1545]. We wish to know -their value in the past and the present, and what we learn is this: -Brostewic valuit £56, valet £10; Chilnesse valuit £56, valet £10; -Witfornes valuit £56, valet £6; Mapletone valuit £56, valet £6; Hornesse -valuit £56, valet £6; and yet between these manors there are large -variations in the number of the carucates and the number of the -teamlands. Then we look about and see that it has been common for the -first-class manor of Yorkshire, if it is the centre of an extensive -soke, to be worth precisely £56[1546]. We can not but fear that the -value of these manors is a legal fiction, though a fiction that is -founded upon fact. Their supposed worth seems fixed at a figure that -will fit into some scheme, the clue to which we have not yet recovered. -Everywhere we are baffled by the make-believe of ancient finance. - -[The new assessments of Henry II.] - -The obscure forces which conspired to determine the quotas of the -various counties might be illustrated by an episode in the reign of -Henry II. The old danegeld is still being occasionally levied, and in -the main the old assessment prevails. But alongside of this we see a -newer tax. From time to time the king takes a gift (_donum_, _assisa_, -_gersuma_) from the counties. A certain round number of marks is -demanded from every shire. For this purpose a new tariff is employed, -and yet it is not wholly independent of the old, for we can hardly look -at it without seeing that it is so constructed as to redress in a rude -fashion the antiquated scheme of the danegeld. In the first column of -the following table we give, omitting fractions, the pounds that the -counties contribute when a danegeld is levied, in the second and third -the half-marks (6_s._ 8_d._) that they pay by way of gift on two -different occasions early in the reign of Henry of Anjou[1547]. - - Danegeld Donum of Donum of - 2 Hen. II. 4 Hen. II. - - £ half-marks half-marks - Kent 106 320 240 - Sussex 217 202 160 - Surrey 180 160 160 - Hampshire 185 200 - Berkshire 206 148 120 - Wiltshire 390 200 160 - Dorset 248 - Somerset 278 200 300 - Devon 104 368 300 - Cornwall 23 - Middlesex 86 175 80 - Hertford 110 120 - Buckingham 205} 200 240 - Bedford 111} - Oxford 250 140 200 - Gloucester 194 218 260 - Worcester 101 100 120 - Hereford 94 80 140 - Cambridge 115 160 - Huntingdon 71 100 - Northampton 120 240 280 - Leicester 100 100 160 - Warwick 129 100 240 - Stafford 45 80 100 - Shropshire 118 80 140 - Derby } 112 160 280 - Nottingham } - York 165 1000[1548] 1000 - Lincoln 266 540 600 - Essex 236 400 400 - Norfolk 330 400 } 400 - Suffolk 235 240 } - -The variable tariff of _dona_ hits most heavily just those counties -which have been too favourably treated; Kent and Devon must make large -'gifts' because they pay little geld. Yorkshire, which once more is -becoming prosperous, heads the new list, though it pays less geld than -Surrey; and, on the other hand, Wiltshire, which makes the largest of -all contributions to the ancient tax, is leniently treated. When men -have acquired a vested right in an iniquitous assessment, the fertile -politician neither reforms nor abolishes the old, but invents a new -impost. - -[Acreage of the fiscal hide.] - -And now, after all these inconclusive meanderings, we will state our -cheerful belief that the hide of Domesday (_A_) is always[1549] composed -of 120 acres and that the carucate for geld of Domesday (_A_) is always -composed of 120 acres. We are speaking only of a fiscal system. Let us -forget for a time that the terms that we are using can be employed to -describe masses of land. Let us treat them as red and white counters. In -the game played at the Exchequer the red counter called a hide is the -equivalent of 120 white counters called acres. - -[Equation between hide and acres.] - -If Domesday Book is to serve its primary purpose, if it is to tell the -king's officers how much geld is due, it is absolutely necessary that by -some ready process they should be able to work sums in hides and acres -and in carucates and acres. They must understand such statements as the -following:--'it defends itself for 2 hides and 5 acres[1550]': 'it -gelded for 3 hides, 1 virgate and 1-1/2 acres[1551]': 'he has 5 bovates, -13 acres and 1 virgate for geld[1552].' Now it is conceivable that the -treasury contains a book of tables which will teach the clerks that a -hide has _a_ acres in Surrey and _b_ acres in Devon; but this seems -highly improbable. As we have already said[1553], the variations between -the numbers of 'real' acres that go to make 'real' hides are not -provincial, they are villar variations. That the financiers at -Winchester should consider villar variations is out of the question. -Therefore if we can prove that in one district they employed a given -equation, there is a strong presumption that they used it in other -districts. And unfortunately our proof has to be of this kind, for in -many counties acres are rarely mentioned and we get no sums that are -worked in acres and hides. But further, if we see one equation holding -good in a considerable number of cases, we shall still believe that this -is the one true equation, though other cases occur in which it breaks -down. We have to remember the possibility of mistranscription, the -possibility of bad arithmetic, the possibility of a haughty treatment of -small numbers: the actual existence of all these dangers can be amply -proved. Therefore if once we have inductively obtained an equation which -serves in many instances, we shall hold by it, unless the instances in -which it fails point either to some one other equation or to the -conclusion that the equation varies from parish to parish. - -[Evidence from Cambridgeshire.] - -Now the Cambridgeshire Inquest professes to give us the total hidage of -a vill and then proceeds to allot the hides among the various tenants in -chief. Sometimes when it does this it speaks of virgates and acres and -thus gives us an opportunity of seeing how many acres are reckoned to -the hide or to the virgate. The equation 1 H. = 4 V. is implied in many -entries. But further, there are at least ten cases which assume one or -both of the following equations: namely, 1 H. = 120 A. and 1 V. = 30 A. -On the other hand, there are some cases in which the sum that is put -before us is not rightly worked if these equations be correct; but in -some of these cases the Inquisitio and Domesday Book contradict each -other and in some a small quantity is neglected. The very few remaining -cases point to no one rival equation, and are not too numerous to be -ascribed to carelessness[1554]. - -[Evidence from the Isle of Ely.] - -A similar test can be applied to a part of Cambridgeshire that is not -included in the Cambridgeshire Inquest but is included in the Inquisitio -Eliensis. We speak of the Isle of Ely. There are entries which, having -told us how many hides a manor contained, proceed to allot these among -their various occupants, and, as in some of these cases a calculation by -acres is mixed up with a calculation by hides, they hold out a hope that -we may be able to discover how many acres were reckoned to the hide. We -will begin with Ely itself. 'Ely defends itself for 10 hides.... In -demesne there are 5 hides ... and there are 40 villeins with 15 acres -apiece ... and 18 cottiers and 20 serfs[1555].' Now if from the total of -10 hides we subtract the 5 that are in demesne, this leaves 5 others, -and if we divide these 5 among the 40 villeins this gives to each -villein 1/8th of a hide; but we are told that each villein has 15 acres; -therefore it follows that 120 acres make a hide. We reckon that in eight -other cases[1556] the same method of computation is followed, though in -one of these a hide divided among 17 villeins is said to give them 7 -acres apiece and this shows us how a single acre may be neglected in -order to avoid a very ugly fraction[1557]. Against these cases must be -set seven which give less pleasing results[1558]. In at least one of -these no possible theory will justify the arithmetic of our record as it -stands[1559], and there is no accord between the remaining five. - -[Evidence from Middlesex.] - -At first sight the survey of Middlesex seems to offer materials similar -to those that come to us from Cambridgeshire. Very curious and -instructive they are. A Middlesex entry will usually give us the number -of hides (_A_), the number of teamlands (_B_), the number of teams -(_C_), and also certain particulars which state the quantity of land -that there is in demesne and the quantities held by divers classes of -tenants. The sum of these particulars we may call _P_. Now we begin by -hoping that _P_ will be equal to _A_, and, since the particulars often -contain acres as well as hides and virgates, we hope also to discover -the equation that is involved in the sum. As an example we will take a -case in which all goes well. At Cowley a manor defends itself for two -hides; in demesne are one and a half hides; two villeins have a half -hide. Here _A_ = 2 H. and _P_ = 1-1/2 H. + 1/2 H.; so all is as it -should be. But we soon come upon cases in which, though we make no -assumption about the relation of the acre to the hide, our _P_ refuses -to be equal to our _A_. Then perhaps we begin to hope that _P_ will be -equal to _B_: in other words, that the sum of the quantities ascribed to -lord and tenants will be equal to the number of teamlands. But this is -more fallacious than the former hope. We will put a few specimens in a -table[1560]. - - Hides Teamlands Sum of particulars - Harrow (Abp. Canterbury) 100 70 46-1/2 H. + 13 V. + 13 A. - Stepney (Bp. London) 32 25 18-1/2 H. + 48-1/2 V. - Fulham (Bp. London) 40 40 41-1/2 H. + 30 V. - Westminster (Abbot) 13-1/2 11 10 H. + 14-1/2 V. + 5 A. - Sunbury (Abb. Westminster) 7 6 4 H. + 10-1/2 V. - Shepperton (Abb. Westminster) 8 7 3-1/2 H. + 17 V. + 24 A. - Feltham (C. Mortain) 12 10 6 H. + 16-1/2 V. - Chelsea (Edw. of Salisbury) 2 5 1 H. + 4 V. + 5 A. - -[Meaning of the Middlesex entries.] - -We seem to have here three independent statements, and, though -throughout the county _P_ shows a tendency to keep near to _A_, still we -must not make calculations which suppose that the 'hide' of _A_ is the -'hide' of _P_. Take Chelsea for example. We must not say: 2 H. = 1 H. + -4 V. + 5 A., and therefore four virgates and five acres make a hide. No, -it seems possible that in these Middlesex 'particulars' we do at last -touch real agrarian arrangements. At Fulham the bishop has 13 hides in -demesne; 5 villeins have 1 hide apiece; 13 villeins have 1 virgate -apiece; 34 have a half-virgate apiece; 22 cottiers have in all a -half-hide; Frenchmen and London burgesses have 23 hides; so there are -41-1/2 hides and 30 virgates. That we take to be the real arrangement of -the manor, though we are far from saying that all its hides are equal. -But it gelds for only 40 hides. A virgate can not be a negative -quantity. Therefore we need say no more of these Middlesex entries, only -in passing let us observe that the discrepancy between _P_ and _B_ is -often considerable, and this seems to show that the teamland of these -Middlesex jurors is not in very close touch with the agrarian and -proprietary allotments. - -[Evidence in the Geld Inquests.] - -To yet one other quarter we have hopefully turned only to be -disappointed, namely, to the so-called Geld Inquests, copies of which -are placed at the beginning of the Exeter Domesday. They tell us of a -geld that obviously is being levied at the rate of six shillings on the -hide, and sometimes they seem to tell us expressly or implicitly the -amount that an acre pays. For a moment we may think that we are -obtaining valuable results. Thus at Domerham we find that 14 hides -minus 4 acres pay £4. 3_s._ 8_d._ We conclude that each acre is taxed at -one penny and that 72 A. = 1 H.[1561]. Then at Celeberge 20 H. minus 4 -A. is taxed at £5. 19_s._ 6_d._ We conclude that each acre is taxed at -three-half-pence and that 48 A. = 1 H.[1562]. But we soon come to sums -which are absurd and discover that as regards small quantities these -documents are for our present purpose quite useless. For the Wiltshire -hundreds we have three different documents. They do not agree in their -arithmetic. Probably they represent the efforts of three different -computers. Indubitably one or more of them made blunders. To give one -example:--one of our documents begins its account of Mere by saying that -it contains 85 hides, 1/2 a hide and 1/2 a virgate; the other two -documents say 86 hides, 1/2 a hide and 1 virgate[1563]. This is by no -means the only instance of such discrepant results. But mere clerical or -arithmetical errors are not the only obstacle to our use of these -accounts. It soon becomes quite evident that small amounts are dealt -with in an irregular fashion. Thrice over we are assured that 15 H. 1/2 -V. paid the king £4. 11_s._ 0_d._[1564]; but they should have paid £4. -10_s._ 9_d._, if four virgates make a hide. Thrice over we are assured -that 64-1/2 H. paid £19. 6_s._ 10_d._[1565]. All suppositions as to -acres and virgates apart, 64-1/2 H. should have paid £19. 7_s._ 0_d_ In -Somersetshire the calculations do not speak of acres, but they introduce -us to the _fertinus_ or farthing, which is certainly meant to be the -quarter of a virgate. Numerous entries show us that 4 _fertini_ = 1 -virgate, and yet when a mass of land expressed in terms of hides, -virgates and farthings is said to pay a certain sum for geld, we find -that the odd farthings are reckoned as paying, sometimes 3_d._, -sometimes 4_d._, sometimes 4-2/3_d._, sometimes 5_d._, sometimes 6_d._ -per farthing[1566]. So again, when additions are made, odd acres are -ignored. We are told that in a certain hundred the barons have 20 hides -in demesne, and then that this amount is made up by the following -particulars, 8 H. + 1 V. + 3 H. + 3 V + 4-1/2 H. - 4 A. + 3-1/2 H. It is -obvious that these particulars when added together do not make 20 hides, -though they may well make 20 hides and 4 acres[1567]. A study of these -Geld Inquests has brought us reluctantly to the conclusion that, though -they amply prove that 4 V. = 1 H., they afford no proof as to the number -of acres that are reckoned to the virgate[1568]. - -[Treatment of small quantities.] - -One word to explain that the apparent rudeness with which small figures -are treated is not due to any persuasion that they may be safely -disregarded, but is rather the natural outcome of a partitionary method -of taxation. Little quantities are lost in the process. It is known that -a certain hundred should have, for example, 80 hides and a certain vill -5 hides: but when you come to add up the particulars you can not bring -out these round figures, perhaps because many years ago a small error -was made by some one when an estate of 2-3/4 hides was being divided -into 7 shares. If a mistake be made, it can never be corrected; the -landowner who has once or twice paid for 47 acres will refuse to pay for -48 and will tell you that the deficient acre does not lie on his land. - -[Result of the evidence.] - -The ignes fatui which dance over the survey of Middlesex and the Geld -Inquests of the south-western counties have for a while led us from our -straight path. We have seen that in Cambridgeshire the equation 1 H. = 4 -V. = 120 A. is employed on at least twenty occasions. Now as to the rest -of England it must at once be confessed that we have no such convincing -evidence. In many counties acres of arable land are but rarely -mentioned; parcels of land which geld for less than a hide are generally -expressed in terms of hides and virgates; we read, for example, not of -so many acres, but of the ninth part of a hide or of two third parts of -a virgate. Thus we are compelled for the more part to fall back upon the -presumption that the treasury has but one mode of reckoning for the -whole of England. - -[Evidence from Essex.] - -But we would not rest our case altogether upon probability. In Essex we -find one fairly clear case in which our equation is used[1569]. -Sometimes, again, we read that a tract of land is, or gelds for, or -defends itself for _x_ hides and _z_ acres, or for _x_ hides, _y_ -virgates and _z_ acres. Now in any entry which takes the first of these -forms we have some evidence that _z_ acres are less than one hide, and -from any entry which takes the second of these forms we may infer that -_z_ acres are less than one virgate. Of course from such a statement as -that '_A_ holds 90 or 115 or 240 acres' we draw no inference. It is -common enough in our own day to speak of things costing thirty shillings -or eighteen pence. But we never speak of things costing one pound and -thirty shillings, or one shilling and eighteen pence, and we should -require much proof before we thought so meanly of our ancestors as to -suppose that they habitually spoke in this clumsy fashion. - -Let us use this test. Happily in Essex we very frequently have a tract -of land described as being _x_ hides and _z_ acres. - -Now we read of - - a half hide and 30 acres[1570], - a hide and a half and 31 acres[1571], - a half hide and 35 acres[1572], - a half hide and 37 acres[1573], - a hide and a half and 40 acres[1574], - a hide and a half and 45 acres[1575], - a half hide and 45 acres[1576], - two hides and a half and 45 acres[1577], - a half hide and 48 acres[1578], - _x_ hides and 80 acres[1579], - nine hides and 82 acres[1580]. - -We have here cited twenty instances in which, as we think, the hide -exceeds 60 acres (we might have cited many others) and twelve in which -it exceeds 80 acres. We might further adduce instances in which our -record speaks of a virgate and 10 acres, a virgate and 15 acres, and -even of a virgate and 20 acres[1581], and when we read of two hides less -30 acres and two hides less 40 acres[1582] we infer that a hide probably -has not only more but considerably more than the 30, 40 or 48 acres -that are allowed to it by Kemble and Eyton. Our argument is based on the -belief that men do not habitually adopt extremely cumbrous forms of -speech. From a single instance we should draw no inference, and -therefore when we just once read of 'three hides and a half and 80 -acres' we do not infer that 80 acres are less than half a hide[1583]. - -[Evidence from Essex continued.] - -But more can be made of these returns from Essex. We will take a large -number of tracts of land described in the formula '_x_ hides and _z_ -acres'; we will observe the various numbers for which _z_ stands, and if -we find some particular number frequently repeating itself we shall be -entitled to argue that this number of acres is some very simple fraction -of a hide. We will take at hazard 100 consecutive entries which contain -this formula--'_x_ hides + _z_ acres,' where _x_ is either an integral -number or 1/2. The result is that in 37 cases _z_ is 30, in 12 it is 15, -in 8 it is 40; then 35 and 20 occur 5 times; 80, 50, 45, 37, 18, 10 -occur thrice, and 38 and 15-1/2 twice; eleven other numbers occur once -apiece. There can we think be but one explanation of this. The hide -contains that number of acres of which 30 is the quarter, 40 the third, -15 the eighth[1584]. - -[Further evidence.] - -But Essex, it must be confessed, lies next to Cambridgeshire, and for -the rest of England we have less evidence. Still there are entries which -make against any theory which would give to the hide but 30, 40 or 48 -acres. In Hertfordshire we read of 'a hide and a half and 26 -acres[1585].' In the same county we read of 'a half virgate and 10 -acres,' and this seems to tell of a hide of at least 88 acres[1586]. In -Gloucestershire we read of a manor of one hide and are told that 'in -this hide, when it is ploughed, there are but (_non sunt nisi_) 64 acres -of land,' whence we may draw the inference that such an acreage was -unusually small[1587]. We pass from Mercia into Wessex. In -Somersetshire we read of 'three virgates and a half and 5 acres[1588],' -in Dorset of 'three virgates and a half and 7 acres[1589],' in Somerset -of 'one and a half virgates and 8 acres[1590].' - -[Acreage of the fiscal carucate.] - -To prove that the fiscal carucate was composed of 120 (fiscal) acres is -by no means easy. If, however, we have sojourned for a while in Essex -and then cross the border, we can hardly doubt that in East Anglia the -carucate bears to the acres the relation that is borne by those hides -among which we have been living. Norfolk and Suffolk are carucated -counties, but while in the other carucated counties it is usual to -express the smaller quantities of land in terms of the bovate (8 bovates -making one carucate) and to say nothing of acres, in East Anglia, on the -other hand, it is uncommon to mention the bovate--in Suffolk we may even -find the virgate[1591]--and men reckon by carucates, half-carucates and -acres. We allow the description of Suffolk to fall open where it pleases -and observe a hundred consecutive cases in which a plot of land (as -distinguished from meadow) is spoken of as containing a certain number -of acres. In 22 cases out of the hundred that number is 60, in 8 it, is -30, in 7 it is 20, in 5 it is 40, in 5 it is 15; no other number occurs -more than 4 times, and yet the numbers that appear range from 100 to 2. -We have tried the same experiment on two hundred cases in Norfolk; in 28 -cases the number of acres was 30, in 16 cases it was 60, in 13 it was -40, in 13 it was 16, in 12 it was 20, in 10 it was 80, in 9 it was 15, -though the numbers ranged from 1 to 405. Surely the explanation of this -must be that 60 acres are half a carucate, that 30 acres are a quarter, -that 40 acres are a third, 20 a sixth, 15 an eighth. We have made many -similar experiments and always with a similar result; wherever we open -the book we find plots of 60 acres and of 30 acres in rich abundance. We -use another test. When land is described by the formula '_x_ carucatae -et _z_ acrae,' what values are assigned to _z_? We find 40 very -commonly, 42, 45, 50, 60 (but this is rare, for it is easier to say -'_x_-1/2 carucates' than '_x_ carucates and 60 acres') 68, 69, 80 (at -least four times), 81, and 100[1592]. On the one hand, then, we have a -good deal of evidence that the carucate contains more than 80 acres, -some evidence that it contains more than 100 acres, and some that it -does not contain many more, for no case have we seen in which _z_ -exceeds 100. Perhaps in Norfolk the figure 16 occurs rather more -frequently than our theory would expect, but 16 is two-fifteenths of -120, and the figures 32 and 64 occur but rarely. Also it must be -confessed that in Derbyshire we hear of 'eleven bovates and a half and -eight acres,' also of 'twelve bovates and a half and eight acres[1593].' -These entries, to use an argument which we have formerly used in our own -favour, seem to imply that half a bovate is more than eight acres and -would therefore give us a carucate of at least 144. We can only answer -that, though men do not habitually use clumsy modes of reckoning, they -do this occasionally[1594]. - -[Acreage of the fiscal sulung.] - -Of the Kentish sulung very little can be discovered from Domesday. -Apparently it was divided into 4 yokes (_iuga_)[1595] and the yoke was -probably divided into 4 virgates. We have indeed one statement -connecting acres with sulungs which some have thought of great -importance. 'In the common land of St. Martin [i.e. the land which -belongs to the _communitas_ of the canons of St. Martin] are 400 acres -and a half which make two sulungs and a half[1596].' Thence, a small -quantity being neglected, the inference has been drawn that the Kentish -sulung was composed of 160 acres, while some would read '400 acres and a -half' to mean 450 acres and would so get 180 acres for the sulung[1597]. -But the entry deals with one particular case and it connects real acres -with rateable units:--the canons have 400-1/2 or more probably 450 -acres, which are rated at 2-1/2 sulungs. If we passed to another -estate, we might find a different relation between the fiscal and the -real units. Kent was egregiously undertaxed and as a general rule its -fiscal sulung will have many real acres. Turning to the cases in which -the geldability of land is expressed in terms of sulungs and acres, or -yokes and acres, we can gather no more than that the sulung is greater -than 60 acres, so much greater that '3 sulungs less 60 acres[1598]' is a -natural phrase, and that the half-sulung is greater than 40[1599] and -than 42 acres[1600]. We may suspect that the Exchequer was reckoning 120 -(fiscal) acres to the sulung but can not say that this is proved. - -[Kemble's theory.] - -And now we must glance at certain theories opposed to that which has -been here stated. Kemble contends that the hide contained 30 or 33 Saxon -which were equal to 40 Norman acres, and that the hide of Domesday Book -contains 40 Norman acres[1601]. Now in so far as this doctrine deals -with the time before the Conquest, we will postpone our judgment upon -it. So far as it deals with the Domesday hide, it is supported by two -arguments. One of these is to the effect that England has not room for -all the hides that are attributed to it if the hide had many more than -30 or 40 acres; this argument also we will for a while defer. The -other[1602] is based on a single passage in the Exeter Domesday relating -to the manor of Poleham. That entry seems to involve an equation which -can only be solved if 1 virgate = 10 acres. William of Mohun has a manor -which in the time of King Edward paid geld for 10 hides; he has in -demesne 4 H., 1 V., 6 A. and the villeins have 5-1/2 H., 4 A.[1603] Now -three or four such entries would certainly set the matter at rest; but a -single entry can not. By way of answer it will be enough to say that the -very next entry seems to imply an equation of precisely the same form, -but one that is plainly absurd. This same William has a manor called -Ham; it paid geld for 5 hides; there were 3 H., 8 A. in demesne and the -villains had 2 H. less 12 A. Shall we draw the conclusion that 5 H. = 5 -H. - 4 A.? The truth we suspect to be that here, as in Middlesex, -geldable units and actual areal units have already begun to perplex each -other. Both Poleham and Ham are what we call 'over-rated' manors. It is -known that Poleham contains 10 hides and Ham 5 hides, but, when we come -to look for the acres that will make up the due tale of hides, we can -not find them; for let King William's officers have never so clear a -terminology of their own, the country folk will not for ever be -distinguishing between 'acres _ad geldum_' and 'acres _ad arandum_' But -be the explanation what it may, we repeat that the one equation that -Kemble could find to support his argument is found in the closest -company with an equation which when similarly treated produces a -nonsensical result. This is all the direct evidence that he has produced -from Domesday Book in favour of the hide of 40 acres. Robertson, while -holding that the hide of Mercia contained 120 acres, adopted Kemble's -opinion that the hide of Wessex contained 40 without producing any -witness from Domesday save only the passage about Poleham[1604]. Eyton -reckons 48 'gheld acres' to the 'gheld hide,' but he leaves us utterly -at a loss to tell how he came by this computation[1605]. - -[The ploughland and the plough.] - -Another theory we must examine. It is ingenious and, were it true, would -throw much light on a dark corner. It starts from the facts disclosed by -the survey of the East Riding of Yorkshire[1606]. In that district, it -is said, the number of carucates for geld that there are in any manor -(this number we will call _a_) is usually either equal to, or just twice -the number (which we call _b_) of the 'lands for one plough,' or, as we -say, teamlands. Further, it can be shown from maps and other modern -evidences that the manors in which _a = b_ were manors with two common -fields, in other words, were 'two-course manors,' while those in which -_a = 2b_ were manors with three common fields, in other words were -'three-course manors.' The suggested explanation is that while the -teamland or 'land for one plough' means the amount of land that one -plough will till in the course of a year, the 'carucate for geld' is the -amount of land which one plough tills in one field in the course of a -year. Manor _X_, let us suppose, is a two-course manor; the whole amount -of land which a plough will till there in a year will lie in one field; -therefore in this case _a = b_. Manor _Y_ is a three-course manor; in a -given year a plough will there till a certain quantity of land, but half -its work will have been done in one field, half in another; therefore in -this case _a = 2b_. - -[The Yorkshire carucates.] - -Now we must own to doubting the possibility of deciding with any -certainty from comparatively modern evidence which (if any) of the -Yorkshire vills were under a system of three-course culture in the -eleventh century. In the year 1086 many of them were lying and for long -years had lain waste either in whole or in part. Thus the first group of -examples that is put before us as the foundation for a theory consists -of 15 manors the sum of whose carucates for geld is 91-1/4 while the sum -of the teamlands is 91-3/4. What was the state of these manors in 1086? -Three of them were absolutely waste. The recorded population on the -others consisted of four priests, one sokemean, eighty-four villeins and -twenty-six bordiers; the number of existing teams was 35-1/2; the total -_valet_ of the whole fifteen estates was £7. 1_s._, though they had been -worth £72 in King Edward's day[1607]. It is obvious enough that very -little land is really being ploughed, and surely it is a most perilous -inference that, when culture comes back to these deserted villages, the -old state of things will be reproduced, so that we shall be able to -decide which of them had three and which had two fields in the days -before the devastation. Further, we can not think that, even for the -East Riding of Yorkshire, the figures show as much regularity as has -been attributed to them. In the first place, there are admittedly many -cases in which neither of the two equations of which we have spoken (_a -= b_ or _a = 2b_) is precisely true. We can only say that they are -approximately true. Then there are other cases--too many, as we think, -to be treated as exceptional--in which _a_ bears to _b_ some very simple -ratio which is neither 1:1 nor yet 2:1; it is 3:2, or 4:3, or 5:3. - -[Relation between teamlands and fiscal carucates.] - -But at any rate, to extend the theory to the whole of Yorkshire, to say -nothing of all England, is out of the question. No doubt as a whole -Yorkshire was (in the terms that we have used) an 'over-rated' county: -that is to say, as a general rule, _a_, if not equal to, was greater -than _b_. But it can not be said that when _a_ was not equal to _b_ it -normally was, or even tended to be equal to 2_b_. We take by chance a -page describing the possessions of Count Alan[1608]; it contains 20 -entries; in one of these _a = b_, in one _a = 2b_, in one _b_ is greater -than _a_; in ten cases the proportion which _a_ bears to _b_ is 3:2, in -two it is 4:3, in two it is 5:3, in one 6:5, in one 7:5, in one it is -17:12. In the counties of Lincoln, Nottingham and Derby an application -of this doctrine would be ludicrous, for very commonly _b_ is greater -than _a_. What is more, the method of taxation that it presupposes is so -unjust that we are loath to attribute it to any one. To tax a man in -proportion to the area of the land that he treats as arable, that is a -plausibly equitable method; to tax him in proportion to the area that he -has ploughed in a given year, that also is a plausibly equitable method; -but the present proposal could only be explained as a deliberate effort -to tax the three-field system out of existence[1609]. To take the -figures that have been suggested to us by the author of this theory, we -suppose that _X_ is using a team of oxen in 'a two-course manor'; he has -160 acres of arable land and ploughs 80 of them in every year. Then in -another village _Y_ is using a team of oxen according to the -three-course system; he has, we are told, 180 acres of arable and -ploughs 120 acres in every year. This unfortunate _Y_ is to pay double -the amount of geld that is paid by _X_. We could understand a demand -that _Y_ should pay nine shillings when _X_ pays eight, for _Y_ has in -all 180 acres of arable and _X_ has 160. We could understand a demand -that _Y_ should pay three shillings when _X_ pays two, for _Y_ sows 120 -acres a year and _X_ sows 80. But nothing short of a settled desire to -extirpate the three-field system will prompt us to exact two shillings -from _Y_ for every one that is paid by _X_. Lastly, we must repeat in -passing our protest[1610] against the introduction into this context of -those figures which express the aspirations of that enthusiast of the -plough, Walter of Henley. That the 'land for one team' of Domesday Book -points normally or commonly to an area of arable land containing 160 or -180 acres we can not believe. If we give it on an average 120 acres we -may perhaps find room for the recorded team lands, though probably we -shall often have to make our acres small; but county after county will -refuse to make room for teamlands with 160 or 180 acres[1611]. No doubt -the regularity of the Yorkshire figures is remarkable. There are other -districts in northern England where we may see some one relation -between _A_ and _B_ steadily prevailing. We will call to mind, by way of -example, the symmetrical arrangement that we have seen in one of the -Rutland wapentakes, where _A_ = 4_B_. This we can not explain, nor will -it be explained until Domesday Book has been rearranged by hundreds and -vills; we have, however, hazarded a guess as to the quarter in which the -explanation may be found[1612]. As to the Yorkshire figures, we think -that of all the figures in the record they are the least likely to be -telling us the simple truth about the amount of cultivated land. - -[Sidenote: The fiscal hide of 120 acres.] - -We may now briefly recapitulate the evidence which leads us to the -old-fashioned belief that King William's Exchequer reckons 120 acres to -the hide. There are at the least twenty sums set before us which involve -the equation: 1H. = 120A. or 1V. = 30A. We doubt whether there are two -sums which involve any one other equation. That there are sums which -involve or seem to involve other equations we fully admit; but when a -fair allowance has been made for mistranscription, miscalculation, the -loss of acres due to partitionary arrangements[1613], and, above all, to -a transition from the rateable to the real, from the hidage on the roll -to the strips in the fields, we can not think that these cases are -sufficiently numerous to shake our faith. We have further seen that in -Essex and East Anglia the acres of the fiscal system lie in batches of -just those sizes which would be produced if an unit of 120 acres was -being broken into halfs, thirds, quarters and fifths. Lastly, 'the -rustics' of the twelfth century 'tell us that the hide according to its -original constitution consists of a hundred acres[1614]' and probably -these rustics reckon by the long hundred. - -[Antiquity of the large hide.] - -If now we are satisfied about this matter, we seem to be entitled to -some inferences about remoter history. The fiscal practice of reckoning -120 acres to the hide can hardly be new. Owing to many causes, among -which we recall the partitionary system of taxation, the influence of an -equity which would consider value as well as area, and the disturbing -forces of privilege and favouritism, the fiscal hide of the Confessor's -day has strayed far away from the fields and is no measure of -land[1615]. At its worst it is jobbery; at its best a lame compromise -between an unit of area and an unit of value. And yet, for all this, it -is composed of acres, of 120 acres. The theory that is involved in this -mode of calculation is so little in harmony with the existing facts that -we can not but believe that it is ancient. It seems to point to a time -long gone by when the typical tenement which was to serve as an unit of -taxation generally had six score arable acres, little more or less. - - -FOOTNOTES: - - [1340] D. B. i. 307 b, 308. - - [1341] It will be convenient for us to adopt this term a 'teamland' - as an equivalent for the _Terra ad unam carucam_ of our - record, so that '_b_ teamlands' shall translate _Terra ad b - carucas_. The reader is asked to accept this note as an - 'interpretation clause.' - - [1342] D. B. i. 353. - - [1343] D. B. i. 308, Trectone. - - [1344] D. B. i. 275 b, Burnulfestune. - - [1345] D. B. i 337 b. - - [1346] See pp. 400-403. - - [1347] We shall not complain of our tools; but Domesday Book is - certainly not impeccable. As to its omissions see Eyton, - Notes on Domesday (1880); also Round, Feudal England, 43. - - [1348] Agricultural Returns, 1895 (Board of Agriculture) p. 34. - Tidal water is excluded. - - [1349] The received figures are: Middlesex, 149,046, London, 75,442. - From older sources we give Middlesex, 180,480: Population - Abstract, 1833, vol. i. p. 376. - - [1350] For some good remarks on these matters see Eyton, Notes on - Domesday. Lincoln, Nottingham and Northampton would require - correction because of the treatment that Rutland has - received. The boundary of Shropshire has undergone changes. - The inclusion of stretches of Welsh ground increases the - population without adding to the hidage of some western - counties. - - [1351] See above, p. 7. - - [1352] Thus Leicester is charged with £100. 0_s._ 0_d._, with £99. - 19_s._ 11_d._ and with £99. 19_s._ 4_d._ - - [1353] In 8 Hen. II. several of the counties answer for about £10 - less than had formerly been demanded from them. - - [1354] The inclusion of the boroughs would have led to many - difficulties. London, for example, though no account is taken - of it in D. B., seems to have gelded for 1200 hides. (Brit. - Mus. MS. Add. 14,252, f. 126.) - - [1355] We omit the 'ingeldable carucates' which occur in some - hidated counties. This may introduce a little caprice. If the - jurors in one of these counties ascribe twelve carucates to a - manor, we do not count them. If they had spoken of hides - which never gelded, we should have counted them; and yet we - may agree with Eyton that the two phrases would mean much the - same thing. But this source of error or caprice is not very - important in our present context. Thus we take Dorset. Eyton - gives it 2321 hides and then by adding 'quasi-hides' brings - up the number to 2650. The difference between these two - figures is not large when regarded from the point that we are - occupying. I have thought that the difficulty would be better - met by the warning that Wiltshire, Dorset, Somerset and Devon - contain considerable stretches of unhidated royal demesne, - than by my reckoning as hides what Eyton called - 'quasi-hides.' In the case of Dorset, Somerset and Stafford I - have placed Eyton's figures below my own and signed them with - the letter _E_. I know full well that his are much more - accurate than mine. He probably gave to each county that he - examined more months than I have given weeks to the whole of - England. In comparing our results, it should be remembered - that, at least in Staffordshire, he dealt with the county - boundary in a manner which, in my ignorance, I dare not - adopt. - - [1356] My calculations about Leicestershire are more than usually - rough, owing to the appearance of the curious 'hide' or - 'hundred' or whatever it is. See on the one hand Stevenson, - E. H. R. v. 95, and on the other Round, Feudal England, 82. - Whether this unit contained 12 or 18 carucates is not of very - great importance to us at the moment. But there are other - difficulties in Leicestershire. In Cornwall I was compelled - to make an assumption as to the peculiar _ager_ or _acra_ of - that county; but no reasonable theory about this matter would - seriously affect the number of Cornwall's hides. - - [1357] The usual formula is: 'Tunc se defendit pro _a_ hidis, modo - pro _a´_.' We place _a_ in Col. IV., _a´_ in Col. V. - - [1358] The usual formula is: 'T. R. E. geldabat pro _a_ hidis; ibi - tamen sunt _a´_ hidae.' We place _a_ in Col. IV. and _a´_ in - Col. V.; and we shall argue hereafter, with some hesitation, - that the taxation of this county has been increased under - William. - - [1359] The words _Terra est_ are written and are followed by a blank - space. Many instances in Kent and Sussex. - - [1360] On the other hand, when I find a statement about _B_ and none - about _C_, I do not assume that _C_ = _B_; on the contrary, I - read the entry to mean that _C_ = 0. In other words, it is - very possible that there should be teamlands without teams; - but I do not think that for Domesday's purposes there can be - teams (i.e. teams at work) without land that is being - ploughed, though it is true that often, and in some counties - habitually, _C_ will be slightly greater than _B_. - - [1361] One of the chief difficulties in the way of accurate - computation is occasioned by what we may call the complex - entries. We start with some such statement as this: 'The - Bishop holds Norton. It defends itself for _a_ hides. There - is land for _b_ teams. There are _d_ teams on the demesne and - the villeins have _e_ teams.' But then we read: 'Of this land - [_or_ of these _a_ hides] Roger holds _m_ hides; there are - _n_ teams on the demesne and the villeins have _o_ teams.' - Here the total number of hides is _a_, and not _a_ + _m_; and - I think that the total number of teamlands is _b_, and not - _b_ + some unstated number held by Roger; but the total - number of teams is _d_ + _e_ + _n_ + _o_. Entries in this - form are not very uncommon, and therefore this explanation - seemed to be required. - - [1362] Pearson, History of England, ii. 665. - - [1363] Col. IX. gives I. divided by II. Col. X. gives I. divided by - VI. Col. XI. gives I. divided by VII. Col. XII. gives II. - divided by VI. Col. XIII. gives II. divided by VII. Col. XIV. - gives VI. divided by VII. Col. XV. gives VIII. divided by VI. - [or if there is no VI. for this county, then by VII.]. - - [1364] In Gloucester, Worcester, Hereford and Shropshire I was - compelled to adopt as the divisor the number of teams instead - of the number of teamlands. As it is fairly certain that - these counties were 'underteamed' (_B_ > _C_), the resulting - quotient (annual value of land actually tilled by a team) - should be diminished before it is compared with the figures - given for other counties. - - [1365] C. S. Taylor, Analysis of Gloucestershire Domesday (Bristol - and Gloucestershire Archaeol. Soc. 1887-9). - - [1366] But this is intended to include males only: the _ancillae_ - are left out. - - [1367] Mr Taylor says in his preface: 'The work has occupied a large - part of my leisure time for five years.' There is therefore - some audacity in my printing my figures beside his. It is - clear that we have put different constructions upon some of - the composite entries concerning large manors. See below, p. - 457. Mr Taylor, like Eyton, computes only 48 'geld acres' to - the hide; I reckon 120 acres to the hide; that, however, is - in this context a trifling matter. - - [1368] Mr Taylor has brought out 15_s._ 5_d._ as the average _valet_ - of land tilled by a team. By taking Pearson's _valet_ and my - teams I have brought out 15_s._ 0_d._ - - [1369] For Dorset and Somerset my figures can be checked by Eyton's. - For Wiltshire, Devon, Cornwall, by the Geld Inquests. These - give for Wiltshire (see W. H. Jones, Domesday for Wiltshire, - 158 ff.) 3955 H. 3 V.; for Devon (see Devonshire Domesday, - ed. Devonsh. Assoc. p. xlix.) 1029 H. 1 V. 3 F.; for Cornwall - 401 H. 3 V. 1 F. I give for Wiltshire 4050 H., for Devon 1119 - H., for Cornwall 399 H. - - [1370] Lincoln, 5·0; Nottingham, 4·4; Derby, 3·9; Surrey, 3·7; - Hampshire, 3·6; Middlesex, 3·4; Dorset, 3·3; Cambridge, 3·1; - Berkshire, 3·0; Wiltshire, 2·9; Hertford, Northampton, - Warwick, Somerset, 2·8; Huntingdon, 2·6; Oxford, 2·5; Bedford - and Buckingham, 2·4; Cornwall and Stafford, 2·2; Devon, 2·1. - For Kent the figure would be near 3·9, for Sussex near 3·3, - for apparently in these counties there was approximate - equality between the number of teams and the number of - teamlands. - - [1371] One word about the meaning of the _valets_. I think it very - clear from thousands of examples that an estate is valued 'as - a going concern.' The question that the jurors put to - themselves is: 'What will this estate bring in, peopled as it - is and stocked as it is?' In other words, they do not - endeavour to make abstraction of the villeins, oxen, etc. and - to assign to the land what would be its annual value if it - were stocked or peopled according to some standard of average - culture. Consequently in a few years the value of an estate - may leap from one pound to three pounds or to five shillings - or even to zero. Eyton, Dorset, 56, has good remarks on this - matter. - - [1372] Seebohm, Village Community, 85-6. To the contrary Round, in - Domesday Studies, i. 209, and Feudal England, 35. - - [1373] Round, Feudal England, 35. - - [1374] See e.g. D. B. i. 222: 'Terra est 2 car. _Has_ habent ibi 3 - sochemanni et 12 bordarii.' ... 'Terra est 3 car. Ibi sunt - ipsae cum 9 sochemannis et 9 bordariis.' Ibid. i. 223: 'Terra - est 1 car. _quam_ habent ibi 4 bordarii.' Ibid. i. 107 b: - 'Terra est 7 car. et _tot_ ibi sunt.' - - [1375] D. B. i. 222. Codestoche, Lidintone. - - [1376] D. B. i. 289; 339 b, Bechelinge. - - [1377] D. B. i. 342 b, Toresbi. - - [1378] D. B. i. 339, Agetorne. - - [1379] D. B. i. 174, Lappewrte. - - [1380] D. B. i. 163, Berchelai. - - [1381] D. B. i. 218 b, Stanford. Or let us take this case (D. B. i. - 148): 'Terra est 3 car. In dominio est una et 4 villani - habent aliam et tercia potest fieri.' Is this third team to - be a team of four or a team of eight? - - [1382] Seebohm, Village Community, 85. - - [1383] As a specimen we take 10 consecutive entries from the royal - demesne in Surrey in which it is said that _x_ villeins and - _y_ bordiers have _z_ teams. We add half of _y_ to _x_ and - divide the result by _z_. The quotients are 10·3, 4·0, 3·7, - 3·5, 3·4, 2·7, 2·2, 1·9, 1·8, 1·4. If we massed the ten cases - together, the quotient would be 2·8. We can easily find - averages; but, even if we omit cases in which there is an - exceptional dearth of oxen, the variations are so - considerable that we must not speak of a type or norm. - - [1384] Glastonbury Rentalia, 51-2: 'S. tenet 1 virgatam terre ... et - si habet 8 boves debet warectare ... 7 acras. Si autem - pauciores habet, warectabit pro unoquoque bove octavam partem - 7 acrarum.' Ibid. 61: 'R. C. tenet unam virgatam ... et - habebit 4 boves cum bobus domini.' Ibid. 68: 'G. tenet - dimidiam hidam ... et si habuerit 8 boves...' Ibid. 78: 'L. - tenet 5 acras ... et bis debet venire cum 1 bove et cum - pluribus si habuerit...' Ibid. 98-9: 'M. tenet 1 virgatam ... - si habuerit quatuor boves...' Ibid. 129: 'S. tenet 1 virgatam - ... et debet invenire domino 1 carrum et 6 boves ad cariandum - fenum.' Ibid. 130: 'M. tenet dimidiam virgatam ... et debet - invenire 2 boves.' Ibid. 189: Three cases in which a virgater - comes to the boon days with eight oxen. Larking, Domesday of - Kent, App. 33: Customs of Hedenham: '...habebit unam virgatam - terrae ... item habebit quatuor boves in pasturam domini.' - - [1385] D. B. i. 211: 'Terra est dim. car. et unus bos ibi arat.' - - [1386] D. B. i. 342 b, Toresbi. - - [1387] Pollock, E. H. R. xi. 813. I venture to think that Sir F. - Pollock has not answered his own argument (p. 220) for a - constant _caruca_. - - [1388] Inq. Com. Cant. 70. - - [1389] Another example from a Northamptonshire column (D. B. i. 226) - will show what we mean. Let H stand for hides and T for - teamlands, and let the virgate be a quarter of a hide, then - we have this series: 2 H (5 T), 2-1/2 H (4 T), 4 H (8 T), - 1-1/4 H (3 T), 1-7/12 H (4 T), 3/8 H (1/2 T), 1/2 H (1 T), - 2-1/2 H (6 T), 1-1/4 H (3 T), 2 H (4 T), 7/8 H (3 T). We see - that T is integral where H is fractional. - - [1390] Exceptionally we read in Kent (i. 9): 'Terra est dim. car. et - ibidem sunt adhuc 30 acrae terrae.' And is not this a - rule-proving exception? The jurors can not say simply 'land - for half a team and thirty acres.' They say 'land for half a - team and there are thirty acres in addition.' - - [1391] D. B. iv. 497; Inq. Com. Cant. 97. - - [1392] There can be little doubt that this is the right reading. See - Round. Feudal England, 134. - - [1393] Thus, D. B. ii. 39: 'Tunc 4 carucae in dominio, post et modo - 2 ... et 2 carucae possunt restaurari.' To use our symbols, - in Essex, Norfolk and Suffolk we obtain statements about _A_ - and about _C_, but learn nothing about _B_, unless this is to - be inferred from the increase or decrease that has taken - place in _C_. We shall hereafter argue that, in spite of some - appearances to the contrary, the carucates of East Anglia - belong to the order _A_ and not to the order _B_. - - [1394] Thus, D. B. i. 231: 'Rad. tenet de episcopo 4 car. terrae in - Partenei. Terra est 4 car. In dominio sunt 2 et ... villani - habent 2 car.' Just before this we have the other common - formula: 'Rad. tenet ... 2 car. terrae in Toniscote. Duae - car. possunt esse et ibi sunt.' - - [1395] Thus, D. B. i. 231 b: 'Ipsa Comitissa tenuit Dunitone. Ibi 22 - car. et dimid. T. R. E. erant ibi 12 car. Modo in dominio - sunt 3 et ... villani ... habent 12 car.' - - [1396] To me it looks as if the variations were due to a clerk's - caprice. The Leicestershire survey fills 30 columns. Not - until the top of col. 5 has the compiler, except as a rare - exception, the requisite information. Then, after hesitating - as to whether he shall adopt the '_x_ car. possunt esse' - formula, he decides in favour of 'Terra est _x_ car.' This we - will call Formula I. It reigns throughout cols. 5-13, though - broken on three or four occasions by what we will call - Formula II, namely 'T. R. E. erant ibi _x_ car.' At the top - of col. 14 Formula II. takes possession and keeps it into - col. 16. Then I. has a short turn. Then (col. 17) II. is back - again. Then follow many alternations. At the top of col. 24, - however, a simplified version of II. appears; the express - reference to the T. R. E. vanishes, and we have merely 'ibi - fuerunt _x_ car.' In the course of col. 26 this is changed to - 'ibi _x_ car. fuerunt.' These two versions of II. prevail - throughout the last six columns, though there is one short - relapse to I. (col. 28). - - [1397] The proof of this lies in the Inq. Com. Cant. and the Exon - Domesday. - - [1398] This appears on a collation of D. B. with the two records - mentioned in our last note. See Round, Feudal England, 26. - - [1399] D. B. i. 174: 'In omnibus his maneriis non possunt esse plus - carucae quam dictum est.' - - [1400] When _C_ varies from _B_, the statement about _C_ will - sometimes be introduced by a _sed_ or a _tamen_ which tells - us that things are not what they might be expected to be. D. - B. i. 77 b: 'Terra est dimid. car. et tamen est ibi 1 car.' - D. B. i. 222: 'Terra est dim. car. tamen 2 villani habent 1 - car.' - - [1401] As a wheat-grower Devon stands in our own day at the very - bottom of the English counties. Its average yield per acre in - 1885-95 was 21 bushels, while Cambridge's was 32. Next above - Devon stands Monmouth and then comes Cornwall. - - [1402] Marshall, Review of Reports to Board of Agriculture from - Southern Departments, 524: 'The management of the land is - uniform; here and there an exception will be found. The whole - is convertible, sometimes into arable, and sometimes pasture. - Arable is sown with wheat, barley, or oats, as long as it - will bear any; and then grass for eight or ten years, until - the land is recovered, and capable again of bearing corn.' - See also p. 531: the lands go back to the waste 'in tenfold - worse condition than [that wherein] they were in a state of - nature.' It is just in the country which is not a country of - village communities that we find this 'aration of the waste.' - - [1403] Some parts of Worcestershire, for example, show a marked - deficiency in oxen. On the lands of Osbern Fitz Richard (14 - entries) there are about 102 teams, and there 'could be' 32 - more. See D. B. i. 176 b. In some parts of Cheshire also - there is a great deficiency. - - [1404] D. B. i. 122 b: 'Luduham ... Terra 15 car. vel 30 car.' In - the Exeter book (D. B. iv. 240) two conflicting estimates are - recorded: 'Luduam ... In ea sunt 3 hidae terrae et reddidit - gildum pro 1 hida. hanc possunt arare 15 carrucae. hanc tenet - Ricardus de Comite. in ea sunt 3 hidae terrae et reddidit - gildum pro 1 hida. hanc possunt arare 30 carrucae. hanc tenet - Ricardus de Comite.' - - [1405] D. B. i. 246 b. - - [1406] Often a Yorkshire entry touching a waste vill gives no _B_. - Therefore in my Tables I have omitted the number of the - Yorkshire teamlands, lest hasty inferences should be drawn - from it. I believe it falls between 5000 and 6000. It is much - smaller than _A_, much greater than _C_. - - [1407] Be it remembered that these waste vills can not send - deputations to meet the justices, and that the - representatives of the wapentakes may never have seen some of - those deserts of which they have to speak. 'All of these - vills,' they say on one occasion (i. 301), 'belong to - Preston. In sixteen of them there are a few inhabitants; but - how many we do not know. The rest are waste.' - - [1408] See below, p. 471. - - [1409] Devon, 2·1; Cornwall, 2·2; Derby, 3·9; Nottingham, 4·4; - Lincoln, 5·0. The figure for Stafford is about as low as that - for Cornwall; but Stafford has been devastated. See Eyton, - Staffordshire, 30. Kent and Surrey would stand high. Kent - would perhaps stand as high as Derby. But Lincoln has no - peer, unless it be Norfolk, Suffolk, or Essex. Our reason for - not speaking of these last three counties will appear by and - by. - - [1410] An essay by Mr W. J. Corbett which I had the advantage of - seeing some time ago, and which will I hope soon be in print, - will throw much new light on this matter. - - [1411] I have roughly added up the carucates and teams of Norfolk, a - laborious task, and have seen reason to believe that the - figures for Suffolk would be of the same kind. - - [1412] In dealing with Essex, Norfolk and Suffolk an equation - connecting the hide or (as the case may be) carucate with the - acre becomes of vast importance. I have throughout assumed - that 120 acres make the hide or carucate. If this assumption, - about which something will be said hereafter, is unjustified, - my whole computation breaks down. Then in Norfolk there are - (especially I think in certain particular hundreds) a good - many estates for which no extent (real or rateable) is given. - I have made no allowance for this. On the other hand, I - believe that I have carried to an extreme in Norfolk the - principle of including everything. I doubt, for example, - whether some of the acres held by the parish churches have - not been reckoned twice over. Also both in Essex and Norfolk - I reckoned in the lands that are mentioned among the - _Invasiones_, and in so doing ran the danger of counting them - for a second time. - - [1413] Also we may remark that in many respects the survey of Essex - is closely akin to the survey of East Anglia; but in Essex - nothing is said about the geldability of vills and therefore, - unless the Essex hides and acres belong to the order of - geldable units (_A_), our record tells us nothing as to the - geld of Essex: an unacceptable conclusion. - - [1414] Dorset, 15, 23-24. - - [1415] In Dorset 22,000 acres are 'designedly omitted'; in Somerset - nearly 178,000; in Staffordshire nearly 246,000. Mr C. S. - Taylor puts the deficiency in Gloucestershire at 200,000 or - thereabouts. - - [1416] See above, p. 370. - - [1417] D. B. ii. 160 b: A certain vill is 1 league 10 perches long, - and 1 league 4-1/2 feet wide. Surely such a statement would - never come from men who could use and were intending to use a - system of superficial measurement. - - [1418] D. B. ii. 170. Or take Westbruge (ii. 206): Two carucates; - two teams and a half; 'this vill is 5 furlongs in length by 3 - in breadth.' If every inch of the vill is ploughed, the - carucate can only have 75 acres, and each team tills but 60. - I have noted many cases in which this method will not leave - 120 acres for the team. - - [1419] D. B. i. 310. - - [1420] D. B. i. 307 b. - - [1421] D. B. i. 310. In these Yorkshire cases it is needless for us - to raise the question whether the _totum_ that is being - measured is the manor or the vill. - - [1422] D. B. ii. 118 b. - - [1423] D. B. i. 303 b (Yorkshire, Oleslec). - - [1424] D. B. i. 303 b (Othelai). - - [1425] D. B. i. 346 b (Bastune); 4 carucates for geld; land for 4 - teams; arable land 8 quar. by 8. - - [1426] D. B. i. 346 b (Langetof); 6 carucates for geld; land for 6 - teams; arable land 15 quar. long and 9 wide. - - [1427] D. B. i. 248 b (Rolvestune); 2-1/2 hides; land for 8 teams; - 18 teams existing; arable land 2 leagues long and 1 [league] - wide. Eyton (Staffordshire, 48) has a long note on this entry - which makes against his doctrine that the teamland is 120 - acres. He suggests that the statement by linear measure is a - correction of the previous statement that there is land for 8 - teams. Unfortunately, as we have seen, this entry does not - stand alone. Morgan, op. cit. 34, speaks of some of these - entries. Those which he mentions and which we have not - noticed do not seem quite to the point. Thus (D. B. i. 263 b) - of Edesberie we read 'land for 6 ploughs ... this land is a - league long and equally wide.' We are not here expressly told - that all the 'land' thus measured by lineal measure is - arable. The cases of Dictune, Winetun, Grif and Bernodebi, - which he then cites, are beside the mark, for what is here - measured by lineal measure seems to be the whole area of the - manor. - - [1428] To make safer, I take the Dorset and Somerset teamlands from - Eyton, the Gloucester teams from Mr Taylor. In the modern - statistics the 'arable' covers 'bare fallow' and 'grasses - under rotation'; the 'permanent pasture' includes 'grass for - hay,' but excludes 'mountain and heath land used for - grazing'; the total acreage includes everything but 'tidal - water.' To bring up the particulars to the total, we should - have to add (1) a little for orchards and market gardens, and - having thus obtained the sum of all the land that is within - the purview of the Board of Agriculture, we should still have - to add (2) the sites of towns, houses, factories, etc., (3) - tenements of less than an acre whereof no statistics are - obtained, (4) roads, railways, etc., (5) waste not used for - pasture, rocks, sea-shore, etc., (6) non-tidal water. The - area not accounted for by our figures will be smallest in an - inland county which has no large towns; it will be raised by - sea-shore or by manufacturing industry. - - [1429] Agricultural Returns, 1895, p. xiii: 'The actual loss of - arable area in the interval covered by the last two decades - ... is 2,137,000 acres.' - - [1430] Mr Seebohm, Village Community, p. 103, seems to think that D. - B. testifies to no more than 5 million acres of arable. But, - even if we stop at the Humber, we shall have 9 million if a - team tills 120. - - [1431] D. B. ii. 116: T. R. E. there were 1320 _burgenses_. - - [1432] D. B. ii 372. - - [1433] It seems probable that in many cases the parish priest is - reckoned among the townsmen, the _villani_. - - [1434] See above, p. 20. - - [1435] While historical economists can still dispute as to whether - the population in 1346 was 5 millions, or only 2-1/2 - (Cunningham, Eng. Industry, i. 301) guesses about 1085 are - premature. M. Fabre has lately estimated the population of - England under Henry II. at 2,880,000. But as to this - calculation, see Liebermann, Eng. Hist. Rev. xi. 746. - - [1436] See above, p. 366. - - [1437] Walter of Henley, pp. 67, 71. - - [1438] Walter of Henley, p. 19. - - [1439] Rogers, Hist. Agric. i. 50-1. - - [1440] Tour in the Southern Counties, ed. 3 (1767), p. 158. See also - p. 242. - - [1441] Agricultural Returns, 1895, p. 239. The figures given under - the year 1894 which express the average yield of a statute - acre in imperial bushels are for Australasia, 8·18; India, - 9·00; Russia in Europe, 10·76; United States, 12·79. - Apparently in South Australia 1,577,000 acres can produce as - little as 7,781,000 bushels. As I understand, Sir J. B. Lawes - and Sir J. H. Gilbert reckon that for an unmanured acre in - England 16 bushels would be an average return, but that if - the same acre is continuously sown with wheat, the yield will - decline at the rate of nearly a quarter of a bushel every - year. See Journ. Agricult. Soc., 3rd Ser. vol. iv. p. 87. - - [1442] This calculus was officially adopted in 1891; see a paper by - Sir J. B. Lawes and Sir J. H. Gilbert in Journ. Agric. Soc., - 3rd Ser., vol iv. p. 102. I desire to express my thanks to - the Secretary of the Board of Agriculture for directing my - attention to this paper. - - [1443] I understand that the average number of loaves that can be - made from 280 lbs. of flour may be put at about 90. - - [1444] Agricultural Returns, 1895, pp. 166, 90, 198. The old rough - estimate of a quarter of wheat per head is much too high; the - average is about 5·65 bushels. See the paper cited in note - 1442. Now-a-days we can further allot to each inhabitant of - the United Kingdom an amount of cereal matter other than - wheat, to wit, barley, oats, beans, peas, maize, etc. which - would take for its production perhaps as much as 1·5 times - the area of the land that is required for the growth of the - wheat that we have allotted to him. But much of this only - feeds him by feeding animals that he eats; much only feeds - him very indirectly by feeding horses engaged in the - production or transport of food; and some of it can not be - said to feed him at all. Then, on the other hand, large - quantities of potatoes, sugar and rice are being eaten. - - [1445] Wheat, oats, barley and peas are mentioned in D. B.; also rye - (i. 257 b). - - [1446] Hale, Worcester Register, p. civ. - - [1447] Boldon Book, D. B. iv. 580-5. So in D. B. i. 69 the sheriff - of Wiltshire receives equal quantities of wheat and malt and - a larger quantity of oats. See also D. B. i. 179 b. - - [1448] Domesday of St. Paul's, 164*. See also Cart. Rams. iii. 231. - - [1449] Ibid, cxxxiv. 173. - - [1450] Ibid. 173. - - [1451] Calculations are difficult and may be misleading, not only - because of the variability of medieval measures, but also - because of the varying strength of beer. Mr Steele, the Chief - Inspector of Excise, has been good enough to inform me that a - bushel of unmalted barley weighing 42 lbs. would yield about - 19·5 gallons of beer at 58°. The figures from St. Paul's seem - to point to a strong brew, since they apparently derive but 8 - gallons from the bushel of mixed grain. The ordinances of - cent. xiii. (Statutes, i. 200, 202) seem to suppose that, - outside the cities, the brewer, after deducting expenses and - profit, could sell 8 to 12 gallons of beer for the price of a - bushel of barley. If we suppose that the bushel of barley - gives 18 gallons, the man who drinks his gallon a day - consumes 20 bushels a year, and when the acre yields but 6 - bushels of wheat, it will hardly yield more than 7 of barley. - There is valuable learning in J. Bickerdyke, The Curiosities - of Ale, pp. 54, 106, 154. - - [1452] As to both meat and drink see Ine 70, § 1; T. 460, 468, 471, - 473, 474; E. 118; Æthelstan, II. 1. § 1; D. B. i. 169, rents - of the shrievalty of Wiltshire. Attempts to measure the flood - of beer break down before the uncertain content of the - _amber_, _modius_, _sextarius_, etc. In particular I can not - believe that the amber of ale contained (Schmid, p. 530; - Robertson, Hist. Essays, 68) 4 of our bushels; but, do all we - can to reduce it, the allowance of beer seems large. - - [1453] D. B. ii. 162 b: Cheltenham and King's Barton. - - [1454] D. B. i. 205. The abbot of Peterborough is bound to find - pasture for 120 pigs for the abbot of Thorney. If he can not - do this, he must feed and fatten 60 pigs with corn (_de - annona pascit et impinguat 60 porcos_). - - [1455] Walter of Henley, 13. Every week each ox is to have 3-1/2 - garbs of oats, and 10 garbs would yield a bushel. - - [1456] Now-a-days the average acre in England will produce about 29 - bushels of wheat or 40 of oats. Agricultural Returns, 1895, - pp. 66, 70. - - [1457] See above, p. 398. - - [1458] Rogers, op. cit. i. 51. - - [1459] Clearly so in some cases. See e. g. the first entry in Inq. - Com. Cant. The teams of lord and villeins having been - mentioned, we then read that the 'pecunia _in dominio_' - consists of so many pigs, sheep, etc. Moreover, if all the - cattle not of the plough were enumerated under the title - _animalia_, there would not be nearly enough to renew the - number of beasts of the plough. Again, when the capacity of - the wood is stated in terms of the pigs that it will - maintain, the number thus given will in general vastly exceed - the number of pigs whose existence is recorded. Lastly, we - see that at Crediton (iv. 107) where the lord has but 57 - pigs, he receives every year 150 pigs from certain - _porcarii_, whose herds are not counted. Throughout Sussex - the lord takes one pig from every villein who has seven (i. - 16 b). See also Morgan, op. cit. 56. - - [1460] See above, p. 76. - - [1461] Before we have gone through a tenth of the account of Essex, - we have read of 'wood for' near 10,000 pigs. If the woods - were full and this rate were maintained throughout the - country, the swine of England would be as numerous T. R. W. - as they now are. No doubt Essex was exceptionally wooded and - many woods were understocked; still this mode of reckoning - the capacity of wood-land would only occur to men who were - accustomed to see large herds. - - [1462] In the thirteenth century it is common to find that the acre - of meadow is deemed to be twice or three times as valuable as - the best arable acre of the same village, and a much higher - ratio is sometimes found. - - [1463] This appears from the parallel account of Westley given in D. - B. and Inq. Com. Cant. (p. 19) where 'pratum 2 bobus' = '2 - ac. prati.' Entries such as the following are not uncommon - (I. C. C. p. 13): 'Terra est 4 car.; in dominio est una et - villani habent 3 car. Pratum 1 car.' See Morgan, op. cit. - 53-5. - - [1464] Eyton, Dorset, 146. - - [1465] In the above table all _vaccae_, _animalia_ and _animalia - ociosa_ are reckoned in the third column. I believe that the - two last of these terms cover all beasts of the bovine race - that are not beasts of the plough. The horses are mostly - _runcini_ and are kept for agricultural purposes. It may be - doubted whether destriers and palfreys are enumerated. - - [1466] Rot. Hund. ii. 570, 575. The calculation which gave these - results was laborious; but I believe that they are pretty - correct. - - [1467] On the whole, the _valet_ of D. B., so far as it is precise, - seems to me an answer to the question, What rent would a - _firmarius_ pay for this estate stocked as it is? But there - are many difficulties. - - [1468] See the important but difficult account of the mill at - Arundel: D. B. i. 23. - - [1469] Hall, Court Life, 221-3. The Glastonbury Inquests (Roxburgh - Club) show that 36_d._ is the settled price for the ox. - - [1470] Rogers, Hist. Agric. i. 226, 342. - - [1471] See above, p. 382. - - [1472] Inq. Com. Cant. 38. - - [1473] Or a little less. - - [1474] Perhaps too small. One estate was valued in Essex. - - [1475] See above, p. 443. - - [1476] Domesday of St. Paul's, 59, 64, 69. See above, p. 399 note - 1339. - - [1477] Hanssen, Abhandlungen, i. 163. - - [1478] After making an allowance of 22,000 for Suffolk (which I have - not counted) and adding 500 for the land between Ribble and - Mersey (which owing to some difficult problems, I have - omitted), the sum would fall a little short of 68,000. The - hides of London and other boroughs would raise the total. - Pearson, History, i. 658, guessed 90,000 to 100,000. - - [1479] Above, p. 3. - - [1480] As to the _magnum pondus Normannorum_, see Crawford Charters, - 78. - - [1481] D. B. i. 351. - - [1482] D. B. i. 77. - - [1483] D. B. i. 165, Alvestone. - - [1484] D. B. i. 165 b, Malgeresberiae. - - [1485] D. B. i. 252 b, Wenloch. - - [1486] D. B. i. 40 b. - - [1487] D. B. i. 32: 'postquam habuit pro 16 hidis ad libitum - Heraldi.' - - [1488] Round, in Domesday Studies, i. 98-110. - - [1489] K. 642 (iii. 203). - - [1490] D. B. i. 41. - - [1491] See above, p. 362. - - [1492] I have chosen 'subpartitioned,' because 'repartitioned' might - have introduced the idea of periodical or occasional - rearrangement, and this it is desirable to exclude in the - present state of our knowledge. - - [1493] See a speech by the Chancellor of the Exchequer reported in - The Times for 10 July, 1896. - - [1494] Round, Feudal England, 50. - - [1495] See also Pollock, E. H. R. xi. 222. - - [1496] D. B. i. 172. - - [1497] See above, p. 268. - - [1498] The estate at Matma which is in the Dodingtree hundred will - be accounted for below. - - [1499] Possibly this and the four next entries should be omitted. - - [1500] We here omit the estates at Hamton and Bengeworth, about - which the churches of Worcester and Evesham were disputing, - for we believe that they have already been included in the - Worcester estate of Cropthorn. See Round in Domesday Studies, - ii. 545. - - [1501] Perhaps add 5 hides at Suchelei; but apparently these have - been already included in the account of the King's Land. - - [1502] A large hundred called Halfshire Hundred was formed. In Latin - records it is _Hundredum Dimidii Comitatus_. For some light - on the constitution of Dodingtree, see Round, Feudal England, - 61. - - [1503] 'In Huntedunescyre sunt dccc hide et dimid.' This means eight - and a half hundreds. - - [1504] Leges Anglorum, p. 7. - - [1505] On a re-count I made 1185. - - [1506] Mr Charles Taylor gives 2595. See above, p. 412. Therefore I - have once more gone through the county with his book before - me. The difference between us is not altogether due to my - faulty arithmetic; but arises from the different - constructions that we put upon a few composite entries. In - particular I can not allow the bishop of Worcester anything - like the 231 hides that Mr Taylor gives him. When I find an - entry in this form: 'Sancta Maria tenet H. Ibi sunt _x_ hidae - ... De hac terra huius manerii Turstinus tenet _y_ hidas in - O,' I believe that _x_ includes _y_, and this no matter how - far the place called O may be from the place called H. My - 2388 is I think a trifle too low; but I believe the number - lies very close to 2400 on one side or the other. - - [1507] Ellis, Introduction, i. 184. - - [1508] Feudal England, 148. - - [1509] After a re-count I think that my 1356 is a little too large, - and should not be surprised if the 2663-1/2 had been exactly - halved. - - [1510] See above, p. 451. This is but one instance. Several other - hundreds had been similarly relieved. See Round, Feudal - England, 51. - - [1511] My 500 (or a trifle more) for Cheshire does not include the - land between the Ribble and the Mersey. The figures given for - that district are, as is well known, very difficult. If we - take the final statement (D. B. i. 270) about the 79 'hides' - as a grand total and hold that each of these contains 6 - carucates (Feudal England, 86) and that each of these - carucates pays geld equivalent to that of one ordinary hide, - then we have here 474 units to be added to the Cestrian 500, - and yet more northerly lands may have been gelding along with - Chester in Cnut's day. - - [1512] The various copies disagree as to whether Herefordshire shall - have 1200 or 1500 hides. My figure stands about halfway - between these two; but many hides were not gelding in 1086. I - can not bring the Warwickshire hides down to 1200. - - [1513] I take the numbers of the hundreds from Dr Stubbs, Const. - Hist. 106. I take them thence in order that I may not be - tempted to make them rounder than they are. - - [1514] See above, p. 457. - - [1515] Mr C. S. Taylor, op. cit. 31, finds 41. - - [1516] Round, Feudal England, 44 ff. - - [1517] Both statements might be illustrated from the Dorsetshire - accounts. Between 2 and 8 Hen. II. the geld seems to rise - from £228. 5_s._ to £248. 5_s._ but there is a blunder in the - addition of the pardons in the latter roll. I believe that Mr - Round has already mentioned this case somewhere. The - correspondence between the Pipe Rolls and Domesday is - sufficiently close to warrant our saying that the story told - by Orderic of a new and severer valuation made by Rufus can - have but little, if any, truth behind it. See Stubbs, Const. - Hist. i. 327. - - [1518] The common formula is: 'T. R. E. geldabat pro _a_ hidis; ibi - tamen sunt _a´_ hidae' and _a´_ is largely greater than _a_. - I infer that _a´_ represents a new and increased assessment, - for the Geld Inquest seems to show Cornwall paying for 401 - hides and a fraction while I make _a´_=399. - - [1519] For these three counties we can not give any _B_, but must - draw inferences from _C_. Clearly in Hereford _C_ was often - thought to be much less than _B_. - - [1520] As already said (above, p. 420) what we take to be - Leicester's equivalent for _B_ is sometimes given by an - unusual formula. - - [1521] Rogers, Hist. Agricult. i. 110. - - [1522] Yorkshire Lay Subsidy (Yorksh. Archæol. Soc.) p. xxxii. - - [1523] Total acreage under all kinds of crops, bare fallow and - grass, excluding (1) nursery gardens, (2) woods and - plantations, (3) mountain and heath land. - - [1524] Powell, East Anglia Rising, 121-3. - - [1525] As we are giving or trying to give the fullest number of - hides whose existence is attested by D. B., and not the - number gelding in 1086, we compare with it the values given - by Pearson (Hist. Engl. i. 665) for the T. R. E. His values - for the T. R. W. are given above, p. 401. - - [1526] Suffolk and Norfolk are omitted because the relation between - their carucates and the villar geld pence is as yet - uncertain. Stafford does not provide _valuits_ enough to give - a stable average; but in general the _valets_ and _valuits_ - for its hides are high. I have excluded (1) royal demesne, - (2) cases in which there is any talk of 'waste,' (3) cases in - which a particular manor is obviously privileged. In - Lincolnshire it is difficult to obtain good figures, because - of the way in which the sokes are valued. - - [1527] See above, p. 386, note 1304. - - [1528] Werhard's testament, K. 230 (i. 297), tells us of a great - estate of 100 hides at Otford, of 30 hides at Graveney and so - forth. The figures are so little in harmony with D. B. and - with the other Canterbury charters that we may suspect the - 100 manses at Otford of covering many smaller estates, each - of which appears elsewhere with a name of its own. - - [1529] In D. B. i. 12 b St. Augustin holds 30 solins at Norborne. In - 618 Eadbald of Kent, K. 6 (i. 9), gave 30 _aratra_ at - Nortburne; but the deed is spurious. In D. B. 5 b, Rochester - has 3 solins at Totesclive, 6 at Hallinges, 2-1/2 at - Coclestane, 3 at Mellingetes, 6 at Bronlei. In 788 Offa, K. - 152 (i. 183), gave 6 _aratra_ at Trottesclib. Egbert, K. 160 - (i. 193), gave 10 at Hallingas. In 880 Æthelstan, K. 312 (ii. - 109), B. ii. 168, gave 3 at Cucolanstan. Edmund, K. 409 (ii. - 265), gave 3 at Meallingas. In 998 Æthelred, K. 700 (iii. - 305), gave 6 at Brunleage. The Rochester deeds therefore may - point to some reduction; but they do not tell of any - startling change. - - [1530] Meitzen, op. cit. ii. 101, holds that the Euti who invaded - Kent fitted themselves into an agrarian framework prepared by - Celts. They came not, like the great mass of Saxons and - Angles, from a country in which villages of the Germanic type - had grown up, but from an originally Celtic land, which they - while still in the pastoral state had seized and subjugated. - It is an interesting though hazardous speculation. Certainly - some cause or another keeps Kent apart from the rest of - England. - - [1531] Thus, K. 371 (ii. 207): Æthelstan gives to the church of - Exeter 6 _perticae_ (yard-lands?). B. ii. 433: he gives one - cassate to St Petroc. K. 787 (iv. 115): the Confessor gives a - _pertica_ and a half in Cornwall. Crawford Charters, pp. - 1-43: Æthelheard gives 20 cassates at Crediton; that is, a - dozen of our parishes. Ibid. p. 9: a single yard of land is - gaged for 30 mancuses of gold. K. 1306 (vi. 163): in 739 - Æthelred gives 3 _perticae_ to Athelney. K. 1324 (vi. 188): - Cnut gives to Athelney _duas mansas siue (= et) unam - perticam_. - - [1532] K. 1143 (v. 278); B. ii. 527. For the _arepennis_ see - Meitzen, op. cit. i. 278, where an explanation derived from - the Irish laws is given of its name. - - [1533] See above, p. 451. - - [1534] The lords of Cambridgeshire may have done good service during - the campaign in the Isle of Ely. - - [1535] Pearson's _valuit_ is £491; his _valet_ £736. - - [1536] The appearance of the curious _hida_ may lead to the guess - that if the geld be at two shillings, it is the - Leicestershire _hida_, not the Leicestershire _carucata_ - which pays this sum. But (1) if the _hida_ contains 18, or - even 12, carucates we shall then have on our hands a case of - extreme under-taxation; and (2) this will not account for the - fact that an exceedingly small value is given to the land - that a team ploughs. - - [1537] D. B. i. 233. - - [1538] At the end of the account of the land between Ribble and - Mersey (i. 240) we are told that there were altogether 79 - _hidae_ which T. R. E. were worth £145. 2_s._ 2_d._ This - would give a very small value for the carucate, if the _hida_ - of this district had six carucates; and in many cases 2_s._ - 8_d._ is the value assigned to the carucate. If to a - two-shilling geld the _hida_ paid but two shillings, this is - a bad, though not unprecedented, case of under-taxation. On - the other hand, if the carucate paid two shillings, its value - has been stated in some abnormal fashion. I do not think it - out of the question that the _hidae_ of Leicestershire and - Lancashire are modern arrangements designed to give relief in - some manner or another to districts which have been too - heavily burdened with carucates. - - [1539] It may, however, have been applied to the conquered West - Wales from an early time. See above, p. 467. - - [1540] See above, p. 427. - - [1541] D. B. i. 293 b. - - [1542] And two sokemen with two teams. - - [1543] The artificiality or traditionality of the teamland is even - more obvious in D. B. than it is in our statement. At Okeham - are 4 hides; land for 16 teams. The men have 37. The king has - 2 in his demesne 'et tamen aliae quatuor possunt esse.' So - what is land for 16 teams is not only stocked but - insufficiently stocked with 39. The manor of one carucate - held by Leuenot seems to be another infringement of the - traditional scheme, unless that carucate has been already - reckoned among the four at Okeham. - - [1544] Many other instances suggesting the artificiality of _B_ - might be given from northern counties; e.g. in Northampton - (i. 227) we have five consecutive entries in which _A_ = 2, - 2, 2, 0·5, 4; _B_ = 5, 5, 5, 1·25, 10; _C_ = 3, 2, 5, 1, 8. - See also Round, Feudal England, 90. - - [1545] D. B. i. 323 b. - - [1546] D. B. i. 299 Walesgrif £56; 299 b Poclinton £56; 309 - Ghellinghes £56; 305 Witebi £112. It will be remembered that, - as our hundred-weight (112 lbs) shows, 112 can be called a - hundred. - - [1547] Pipe Rolls, 2. 3. 4. 5. Hen. II. In a few cases the earlier - _donum_ includes a composition 'for murders and pleas.' That - from Yorkshire is partly paid by York, that from - Gloucestershire by Gloucester. - - [1548] Nearly. - - [1549] Except the 'hides,' if hides they be, of Leicestershire and - Lancashire. - - [1550] D. B. i. 35 (Surrey). - - [1551] D. B. i. 49 b (Hants). - - [1552] D. B. i. 364 (Lincoln). - - [1553] See above, p. 394. - - [1554] This part of the evidence is set out in Mr Round's Feudal - England, 37-44. I have gone through all the calculations. His - results are hardly different from those which I have obtained - and therefore I dwell no longer on this part of the case, for - it has been well stated. - - [1555] D. B. i. 192; iv. 107. The Inquisitio Eliensis puts the - number of cottiers at 18, while Domesday gives 28. See - Hamilton's edition, p. 119. - - [1556] Downham, Witchford, Sutton, 'Helle,' Wilburton, Stretham, - Stuntney, Doddington. - - [1557] Wichford, D. B. i. 192; iv. 507; Hamilton, 119. - - [1558] Witcham, Whittlesey, Lindon, Wentworth, Chatteris, Wisbeach, - Littleport. - - [1559] Wisbeach, 3-1/2 H. + 1 V. + 150 A. + 2-1/2 H. = 10 H. - - [1560] In giving the sum of the particulars I add hides to hides, - virgates to virgates, acres to acres, but I make no - assumption as to the number of acres or virgates in the hide. - - [1561] D. B. iv. 4, 9, 16. - - [1562] D. B. iv. 22. - - [1563] D. B. iv. 1, 6, 13. - - [1564] D. B. iv. 3, 8, 15 (Melchesham). - - [1565] D. B. iv. 3-4, 9, 15 (Chinbrige). - - [1566] D. B. iv. 61-2-3. - - [1567] D. B. iv. 23 (Hunesberge); see also Langeberge on the same - page. - - [1568] Round in Domesday Studies, i. 212: 'I have worked through the - _Inquisitio Geldi_ with this special object, but found to my - disappointment that the odd acres which paid geld on this - occasion did not pay at a uniform rate, some paying twice as - much as others.' - - [1569] D. B. ii. 19: 'Ratendunam tenuit S. Adelred T. R. E. ... pro - 20 hidis. Modo pro 16 hidis et dimidia.... Et 30 acras tenet - Siward de S. Adelred. Modo tenet Ranulfus Piperellus de rege, - set hundret testatur de abbatia. Et 3 hidas et 30 acras quas - tenuit ecclesia et Leuesunus de ea T. R. E. modo tenet Eudo - de abbate.' I think that this involves the statement: - - 16-1/2 H. + 30 A. + 3 H. + 30 A. = 20 H. - - - [1570] D. B. ii. 3, 11, 33, 63 b, 78 b, and in many other places. - - [1571] Ibid. 31. - - [1572] Ibid. 6 b, 42 b. - - [1573] Ibid. 46. - - [1574] Ibid. 48. - - [1575] Ibid. 6 b, 49, 60. - - [1576] Ibid. 43. - - [1577] Ibid. 74. - - [1578] Ibid. 1 b. - - [1579] Ibid. 11 b, 30 b, 31, 47 b. - - [1580] Ibid. 72. - - [1581] Ibid. 21 b. - - [1582] Ibid. 16, 15. - - [1583] D. B. ii. 79. - - [1584] Some other fractions into which a hide would easily break by - inheritance and partition can be expressed in various ways. - Thus two-thirds of a hide can be expressed as 80 A. or as - 'half a hide and 20 acres.' Three-quarters of a hide appears - sometimes as 'half a hide and 30 A.,' sometimes as 'a hide - less 30 A.' We might add to our other arguments derived from - Essex that used by Morgan (op. cit., p. 31). It seems fairly - clear that the holding of Roger 'God Bless the Dames', which - is called 3 V. in one place is called 1/2 H. + 30 A. in - another place (D. B. iv. 21 b, 96 b). - - [1585] D. B. i. 141 b, Wallingtone. - - [1586] D. B. i. 141, Stuterehele. - - [1587] D. B. i. 165. There is here a transition from geldable area - to real area. This land is rated at a hide, but when you come - to plough it, you will find only 64 acres. - - [1588] D. B. i. 93 b, Dudesham; iv. 396. - - [1589] D. B. i. 79 b. Eyton, Dorset, 16, says that this is a clumsy - way of describing 1 H. + 1 A. Round, Domesday Studies, i. - 213, makes some just remarks on Eyton's treatment of this - passage. - - [1590] D. B. i. 95 b, Ecewiche; iv. 333. - - [1591] D. B. ii. 389 (Cratingas). In Northamptonshire also there is - talk of virgates; e.g. D. B. 225 b, 226 b: 3V. - 1 B.; 2 V. + - 1 B. - - [1592] D. B. ii. 377 b. - - [1593] D. B. i. 276 b, 278. - - [1594] If I hold two and a half acres in one place and three roods - in a neighbouring place and you ask me how much land I have, - I may tell you that I have two and a half acres and three - roods. If you ask me how much money I have in my purse, I may - tell you that I have half-a-crown and three shillings. But - returns to governmental inquiries would not be habitually - made in this way. - - [1595] D. B. i. 13: 'pro uno solin se defendit; tria iuga sunt infra - divisionem Hugonis et quartum iugum est extra.' - - [1596] D. B. i. 2. - - [1597] Elton, Tenures of Kent, 133-4. - - [1598] D. B. i. 12 b. - - [1599] D. B. i. 9 b. - - [1600] D. B. i. 12. - - [1601] Kemble, Saxons, ch. iv. and App. B. - - [1602] Saxons, i. 490. - - [1603] D. B. iv. 42. Cf. D. B. i. 81 b. - - [1604] Robertson, Hist. Essays, 95, 96. He has entirely - misunderstood the entry touching the hundred of Ailestebba. - The equation involved in it is merely the following: 16 H. - (i.e. 10 + 4-1/2 + 1-1/2) + 37 H. + 20 H. = 73 H. - - [1605] Eyton, Dorset, 15; Bound in Domesday Studies, i. 213. - - [1606] Dr Isaac Taylor, The Ploughland and the Plough, in Domesday - Studies, i. 143. Of this paper there is an excellent review - by W. H. Stevenson in Engl. Hist. Rev. v. 142. - - [1607] Domesday Studies, 150; D. B. i. 324. - - [1608] D. B. i. 311 b. - - [1609] Round, Feudal England, 60. - - [1610] See above, p. 397. - - [1611] See above, pp. 402, 435. - - [1612] See above, p. 471. - - [1613] See above, p. 480. - - [1614] Dial. de Scac. i. 17. - - [1615] The appearance in D. B. of a few 'hides' which apparently - consist altogether of wood-land (e.g. ii. 55 b) is one of the - many signs that the fiscal hide has diverged from its - original pattern. A block of wood-land would not be 'the land - of one family.' - - - - -§ 3. _Beyond Domesday._ - - -[The hide beyond Domesday.] - -We have now seen a good deal of evidence which tends to prove that the -hide has had for its model a tenement comprising 120 acres of arable -land or thereabouts. Some slight evidence of this we have seen on the -face of the Anglo-Saxon land-books[1616]. A little more evidence -pointing in the same direction we have seen in the manorial extents of a -later day[1617]. And now we have argued that the fiscal hide of the -Conqueror's day is composed of 120 (fiscal) acres. From all this we are -inclined to infer that the hide has, if we may so speak, started by -being a tenement which, if it attained its ideal, would comprise a -long-hundred of arable acre-strips, and thence to infer that in the very -old days of conquest and settlement the free family or the free -house-father commonly and normally possessed a tenement of this large -size. - -We have now to confess that this theory is open to attack, and must -endeavour to defend it, or rather to explain why we think that, when all -objections have been weighed, the balance of probability still inclines -in its favour. - -[Arguments in favour of the small hide.] - -That all along from Bede's day downwards Englishmen have had in their -minds a typical tenement and have been making this idea the framework of -their scheme of government can not be doubted. Nor can we doubt that -this idea has had some foundation in fact. It could not occur to any one -except in a country where a large and preponderant number of tenements -really, if roughly, conformed to a single type. Therefore the contest -must be, and indeed has been, between the champions of different typical -tenements, and in the main there are but two theories in the field. The -one would give the Anglo-Saxon hide its long-hundred of acres, the other -would concede to it but some thirty or forty, and would in effect equate -it with the virgate rather than with the hide of later days[1618]. -Perhaps we may briefly state the arguments which have been urged in -favour of this small hide by saying that small hides are requisite (1) -if we are to find room enough within the appropriate areal boundaries -for the hides that are distributed by Domesday Book and the Anglo-Saxon -charters, (2) if we are to explain the large quantities of hides or -family-lands which are assigned to divers districts by Bede and by that -ancient document which we call The Tribal Hidage, (3) if we are to bring -our own typical tenement into line with the typical tenement of Germany, -(4) if we are not to overdo our family or house-father with arable acres -and bushels of corn. - -[Continuity in the hide of the land-books.] - -A 'name-shifting' must be postulated. Somehow or another, what was the -hide becomes the virgate, while the name 'hide' is transferred to a much -larger unit. Now in such a name-shifting there is nothing that is very -improbable, if we approach the matter _a priori_. Thought has been poor -and language has been poor. The term 'yard of land' may, as we have -seen[1619], stand for a quarter-acre or for a much larger space. But -this particular name-shifting seems to us improbable in a high degree. -For when did it happen? Surely it did not happen after the Norman -Conquest. We have from Edward the Confessor quite enough documents to -warrant our saying with certainty that the hides and manses of his -charters are the hides of Domesday Book. Suppose for a moment that all -these parchments were forged after the Conquest, this would only -strengthen our case, for stupid indeed must the forger have been who -did not remember that if he was to make a title-deed for the abbey's -lands he must multiply the hides by four or thereabouts. This argument -will carry us far. We trace the stream of land-books back from Edward to -Cnut, to Æthelred, to Edgar, to Offa, nay, to the very days of Bede; -nowhere can we see any such breach of continuity as that which would -appear had the hypothetical name-shifting taken place. The forgers know -nothing of it. Boldly they make the first Christian kings bestow upon -the church just about the number of manses that the church has in the -eleventh century if the manse be Domesday's hide. - -[Examples from charters of Chertsey.] - -Both points might be illustrated by the Chertsey charters. In Domesday -Book St. Peter of Chertsey is credited with many hides in divers parts -of Surrey[1620]. A charter is forthcoming whereby Edward the Confessor -confirms the abbey's possession of these estates[1621], and in the main -the number of 'manses' that this charter locates in any village is the -number of 'hides' that the abbey will have there in the year 1086. The -two lists are not and ought not to be identical, for there have been -rearrangements; but obviously the manse of the one is the hide of the -other. Then the monks have books which profess to come from the seventh -century[1622] and to show how Frithwald the kingling of Surrey endowed -their monastery. These books may be forgeries; but the scale on which -they are forged is the scale of the Confessor's charter and of Domesday -Book. It has been thought that they are as old as Edgar's day[1623]; but -at any rate their makers did not suppose that in order to tell a -profitable story they must portray Frithwald bestowing four manses for -every hide that the abbey possessed. - -[Examples from charters of Malmesbury.] - -Or look we at the estates of St. Aldhelm. The monks of Malmesbury have -a book from the Confessor[1624] which agrees very accurately, perhaps -too accurately, with the Domesday record[1625]. The latter ascribes to -their house (among other lands) 10 hides at Dauntsey, 5 at Somerford, 5 -at Norton, 30 at Kemble 35 at Purton. The Confessor has confirmed to -them (among other lands) 10 'hides' at Dauntsey given by Æthelwulf, 5 at -Somerford and 5 at Norton given by Æthelstan, 30 at Kemble and 35 at -Purton given by Ceadwealla. Then behind this book are older books. Here -is one dated in 931 by which Æthelstan gives _quinque mansas_ at -Somerford and _quinque mansas_ at Norton[1626]. Here is another dated in -850 by which Æthelwulf gives _decem mansiones_ at Dauntsey[1627]. Here -is a third by which in 796 Egfrith restores that _terram xxxv manentium_ -at Purton[1628]. Here from 682, from the days of Aldhelm himself, is a -deed of Ceadwealla bestowing _xxxii cassatos_ at Kemble[1629]. It is -pretty; it is much too pretty; but it is good proof that the Malmesbury -monks know nothing of any change in the conveyancer's unit[1630]. - -[Permanence of the hidation.] - -If we examine any reputable set of land-books, those of Worcester, for -example, or those of Abingdon and try to trace the history of those very -hides the existence of which is chronicled by Domesday Book, we shall -often fail. This was to be expected. Any one who has 'read with a -conveyancer' will know that many difficulties are apt to arise when an -attempt is made to identify the piece of land described in one with that -described in another and much older document. In the days before the -Conquest many causes were perplexing our task. We have spoken of them -before, but will recall them to memory. New assessments were sometimes -made, and thenceforth an estate which had formerly contained five hides -might be spoken of as having only four. New villages were formed, and -the hides which had been attributed to one place would thenceforth be -attributed to another. Great landlords enjoyed a large power of -rearranging their lands, not only for the purposes of their own economy, -but also for the purposes of public finance. In some cases they had -collected their estates into a few gigantic _maneria_ each of which -would pay a single round sum to the king[1631]. Lastly, the kings gave -and the kings took away. The disendowment of churches and simple -spoliation were not unknown; exchanges were frequent; no series of -land-books is complete. But when some allowance has been made for the -effects of these causes, we shall see plainly that, if the charters are -to account for the facts displayed by Domesday Book, then the manses of -the charters, even of the earliest charters, can not have been of much -less extent than the hides of the Norman record. We know of no case in -which a church, whatever its wealth of genuine and spurious parchments, -could make a title to many more manses than the hides that it had in -1086[1632]. - -[Gifts of villages.] - -Another test of continuity may be applied. In the Conqueror's day a -village in the south of England will very commonly be rated at five or -some low multiple of five hides, ten, fifteen or twenty[1633]. Now we -have argued above that the land-book of an Anglo-Saxon king generally, -though not always, disposes of an integral village or several integral -villages, and if we look at the land-books we shall commonly see that -the manses or hides which they describe as being at a single place are -in number five or some low multiple of five. We open the second volume -of the Codex Diplomaticus and analyze the first hundred instances of -royal gifts which do not bear a condemnatory asterisk and which are not -gifts of small plots in or about the towns of Canterbury and Rochester. -In date these land-books range from A.D. 840 to A.D. 956. In sixty out -of a hundred cases the number of manses is 5 or a multiple of 5. In -eighteen it is 5; in sixteen 10; in six 15; in thirteen 20; in three 25; -in one 30; in one 80; in two 100. There are a few small gifts; one of a -yokelet; six of 1 manse; four of 2 manses; five of 3. The great bulk of -the gifts range from 5 to 25 manses. Only four out of 100 exceed 25; of -these four, one is of 30, another of 80, while two are of 100. At this -rate of progress and if the manse had no more than some 30 acres, we -shall have extreme difficulty in accounting for the large territories -which on the eve of the Conquest were held by the churches of Wessex, -and by those very churches which have left us cartularies that are only -too ample. This is not all. If these manses were but yard-lands, then, -unless we suppose that the average village was a tiny cluster, it is -plain enough that the kings did not usually give away integral villages, -and yet a church's lordship of integral villages and even of divers -contiguous villages is one of the surest and most impressive traits that -the Conqueror's record reveals. - -[Gifts of manses in villages.] - -Parenthetically we may admit that the king is not always giving away a -whole village. Nasse has contended that when a land-book professes to -dispose of a certain number (_x_) of manses at the place called _X_, and -then sets forth the boundaries of _X_, we must not infer that the whole -of the land that lies within those boundaries is comprised in the -grant[1634]. The proof of this consists of a few instances in which, to -all appearance, two different tracts of land are conveyed by two -different books and yet the boundaries stated in those two books are the -same. We will allege one instance additional to those that have been -mentioned by others. In 969 Bishop Oswald of Worcester gave to his man -Æthelweard seven manses, whereof five lay in the place called Tedington. -The book which effected this conveyance states the bounds of -Tedington[1635]. In 977 the same bishop gave to his man Eadric three -manses at Tedington by a book which describes the boundaries of that -place in just the same manner as that in which they were set forth by -the earlier charter[1636]. Some care, however, should be taken before we -assume that the two deeds which deal with land at _X_ dispose of -different tracts; for book-land had a way of returning to the king who -gave it; also the gift of one king was sometimes confirmed by another; -and even if the one book purports to convey _x_ and the other _y_ -manses, we must call to mind the possibility that there has been a -reassessment or a clerical error. Still it seems to be fairly well -proved that there are cases in which the _x_ manses which the donor -gives are but some of the manses that lie within the meres drawn by his -deed of gift. This certainly deserves remark. At first sight nothing -could look more foolish than that we should painfully define the limits -of the village territory and yet leave undefined the limits of that part -of the village territory which we are giving away. But this practice is -explicable if we remember the nature of a manse in a village. It -consists of many scattered strips of arable land and of rights over -uncultivated waste. To define the limits of the whole territory is -important, for the donee should know how far his cattle can wander -without trespass. To specify each acre-strip would, on the other hand, -be a tedious task and would serve no profitable end. However, there can -be little doubt that very generally what a charter bestows is the whole -of the land of which the boundaries are described, and therefore the -whole territory of a village or of several neighbouring villages. - -[The largest gifts.] - -But at the moment the charters which will be the most instructive will -be those which attribute to a single place some large number of hides. -In these the champions of a small hide have found their stronghold. They -see perhaps 100 hides ascribed to the place called _X_; they look for -that place in modern maps and gazetteers and then tell us that in order -to pack our 100 hides within the parochial boundary we must reduce the -size of the hide to 30 acres at the most. - -[The Winchester estate at at Chilcombe.] - -The dangers that beset this process may be well illustrated by the -documents relating to one of the most interesting estates in all -England, the great Chilcombe estate of the church of Winchester, which -stretched for many a mile from the gates of the royal city of the West -Saxon kings. Let us follow the story as the monks told it in a series of -charters, few of which have escaped Kemble's asterisk. In the first days -of English Christianity, Cynegils, king of the West Saxons, gave the -Chilcombe valley to St. Birinus. King after king confirmed the gift, -but it was never put into writing until the days of Æthelwulf. He -declared by charter that this land should defend itself for one hide. -This was part of that great tithing operation which puzzles the modern -historian[1637]. In 908 Edward the Elder confirmed this act by a charter -in which he declared that the land at Chilcombe (including that at -Nursling and Chilbolton) contained 100 manses, but that the whole was -to be reckoned as a single manse. He also remarked that the land -included many _villae_[1638]. The next book comes from Æthelstan; the -whole valley (_vallis illuster Ciltecumb appellata_) with all its -appendages was to owe the service of a single manse[1639]. Two charters -were obtained from Edgar. However much land there might be at Chilcombe, -it was to defend itself for one hide[1640]. A writ of similar import, -which Kemble has accepted, was issued by Æthelred the Unready[1641]. It -said that there were a hundred hides at Chilcombe and proceeded to allot -them thus:-- - - Æstun 4 Easton - Afintun and Ufintun 5 Avington and Ovington - Ticceburn 25 Titchbourne - Cymestun 5 Kilmiston - Stoke 5 Bishopstoke - Brombrygce and Oterburn 5 Brambridge and Otterbourne - Twyfyrde 20 Twyford - Ceolbandingtun 20 Chilbolton - Hnutscilling 5 Nursling - -This territory extends along the left-hand bank of the Itchen from -Kilmiston to Titchbourne, thence past Ovington, Avington, Easton, -Chilcombe, and Winchester itself, Twyford, Brambridge, Otterbourne to -Bishopstoke. If we journeyed by straight lines from village to village -we should find that our course was a long twenty miles. Then, to -complete the 100 hides, Nursling which is near Southampton and -Chilbolton which is near Andover are thrown in. But all these lands lie -'into Ciltecumbe.' - -[The many hides at Chilcombe.] - -It is to be feared that these charters tell lies invented by those who -wished to evade their share of national burdens. And they seem to have -failed in their object, for in the Confessor's day, though a very large -estate at 'Chilcombe' with nine churches upon it was rated at but one -hide, several of the other villages that we have mentioned were -separately assessed[1642]. But to lie themselves into an immunity from -taxes, this the monks might hope to do; to lie themselves into the -possession of square leagues of land, this would have been an impossible -feat, and the solid fact remains that their church was the lord of a -spacious and continuous block of territory in the very heart of the old -West Saxon realm, just outside the gates of the royal burg, along the -Itchen river, the land that would be seized and settled at the earliest -moment. The best explanation that they could give of this fact was that -the first Christian kings had bestowed mile after mile of land upon the -minster. What better theory have we[1643]? - -[The Winchester estates at Downton and Taunton.] - -The truth seems to be that some of the very earliest gifts of land that -were made to the churches might, if we have regard to the size of the -existing kingdoms, be fairly called the cession of provinces, the -cession of large governmental and jurisdictional districts. The bishops -want a revenue, and in the earliest days a large district must be ceded -if even a modest revenue is to be produced, for all that the king has to -give away is the chieftain's right to live at the expense of the folk -and to receive the proceeds of justice. Therefore not only whole -villages but whole hundreds were given. Chilcombe was by no means the -only vast estate that the bishop of the West Saxons acquired in very -early days. Domesday Book shows us how at Downton in Wiltshire the -church of Winchester has had a round 100 hides[1644]. For these 100 -hides we have a series of charters which professes to begin in the days -when the men of Wessex were accepting the new faith. They bear the names -of Cenwealla[1645], Egbert[1646], Edward[1647], Æthelstan[1648], -Edred[1649], Edgar[1650], and Æthelred[1651]. Kemble has accepted the -last four of them. They tell a consistent story. There were 100 manses -at Downton, or, to speak more accurately, 55 at Downton itself and 45 at -Ebbesborne (the modern Bishopston) on the other side of the Avon[1652]. -We might speak of other extensive tracts, of Farnham where there have -been 60 hides[1653], of Alresford where there have been 51[1654], of -Mitcheldever where there have been 106[1655], of Taunton where there -have been 54 and more[1656]. Whenever the West Saxons conquer new lands -they cede a wide province to their bishop. But perhaps we have already -said more than enough of these cessions, though in our eyes they are -very important; they are among the first manifestations of incipient -feudalism and feudalism brings manorialism in its train. We have -recurred to them here because the Winchester charters which describe -them testify strongly to the continuity of the hide and also indicate -the weak point in the arguments that are urged by the advocates of -little hides[1657]. - -[Kemble and the Taunton estate.] - -Kemble has argued that it is impossible for us to allow the hide of -Domesday Book or the hide or manse of the charters as many as 120 acres. -Take a village, discover how many hides are ascribed to it, discover how -many acres it has at the present day, you will often find that the whole -territory of the village will not suffice to supply the requisite number -of hides if the hide is to have 120 or even 60 acres. Kemble illustrates -this method by taking nine vills in Somerset and Devon. One of them is -Taunton. Modern Taunton, he says, has 2730 acres, the Tantone of 1086 -had 65 hides[1658]; multiply 65 even by so low a figure as 40 and you -will nearly exhaust all Taunton's soil[1658]. This argument involves the -assumption that the limits of modern Taunton include the whole land that -is ascribed to 'Tantone' in the Conqueror's geld-book. Strangely -different was the result to which Eyton came after a minute examination -of the whole survey of Somersetshire. The 'Tantone' of Domesday covers -some thirteen or fourteen villages and is now represented not by 2730 -but by 24,000 acres[1659]. The editor of the Anglo-Saxon charters should -have guessed that many hides 'lay in' Taunton which as a matter of -physical geography were far off from the walls of the bishop's -burg[1660]. There are counties in which the list of the places that are -mentioned in Domesday is so nearly identical with the list of our modern -parishes, that no very great risk would be run if we circumspectly -pursued Kemble's method; but just in those counties to which he applied -it the risk is immeasurably great, for it is the land where many -villages are often collected into one great _manerium_ and all their -hides are spoken of as lying in one place. Not until we have compared -the whole survey of the county with the whole of its modern map, are we -entitled to make even a guess as to the amount of land that a place-name -covers. Often enough in those shires where there are large and ancient -ecclesiastical estates, those shires in which the feudal and manorial -development began earliest and has gone furthest, hides 'are' in law -where they are not in fact. They 'lie into' the hall at which they geld -or the moot-stow to which they render soke, and this may be far distant -from their natural bed[1661]. - -[Difficulty of identifying parcels.] - -As we go backwards this danger is complicated by another, namely, by the -growth of new villages. The village of Hamton has been a large village -with 20 hides. Some of its arable land has lain two or three miles from -the clustered steads. A partition of its fields is made and a new -cluster of steads is formed; for housebuilding is not a lengthy or -costly process. And so Little Hamton or 'Other' Hamton with 5 hides -splits off from the old Hamton which has 15. We must not now try to -force 20 hides into the territory of either village[1662]. And as this -danger increases, the other hardly diminishes, for we come to the time -when a king will sometimes give a large jurisdictional district and call -it all by one name. If the once heathen Osric of the Hwiccas gave to a -church '100 _manentes_ adjoining the city that is called the Hot Baths,' -he in all probability gave away the 'hundred' of Bath; he gave Bath -itself and a territory which in the eleventh century was the site of a -dozen villages[1663]. We have the best reason for believing that when a -king of the eighth century says that he is giving 20 manses in the place -called Cridie he is giving his rights over a tract which comprises ten -or twelve of our modern parishes and more than the whole of the modern -hundred of Crediton[1664]. - -[The numerous hides in ancient documents.] - -We have given above some figures which will enable our readers to -compare the hides and the teamlands of a county with its modern acreage. -Also we have confessed to thinking that we can hardly concede to every -teamland that Domesday mentions 120 statute acres of arable land[1665]. -On the other hand, we do not think that there would in general be much -difficulty in finding 120 arable acres for every fiscal hide, though -perhaps in the south the average size of the acre would be small[1666]. -However, we have admitted, or rather contended, that before the middle -of the eleventh century the hides of the fiscal system had strayed far -away from the original type, and the sight of an over-hided vill would -not disconcert us. But unfortunately we can not be content with such -results as we have as yet attained. We have already seen that the hides -attributed to a district show a tendency to increase their number as we -trace them backwards[1667], and there are certain old documents which -deal out hides so lavishly that we must seriously face the question -whether, notwithstanding the continuity of the land-books, we must not -suppose that some large change has taken place in the character of the -typical tenement. - -[_The Burghal Hidage._] - -We have said above that we have inherited three ancient documents which -distribute hides among districts. We call them in order of date (1) The -Tribal Hidage, (2) The Burghal Hidage, (3) The County Hidage. Of the -youngest we have spoken. We must now attend to that which holds the -middle place. It states that large round numbers of hides belong to -certain places, which seem to be strongholds. The sense in which a large -number of hides might belong to a _burh_ will be clear to those who have -read the foregoing pages[1668]. This document has only come down to us -in a corrupt form, but it has come from a remote time and seems to -represent a scheme of West-Saxon defence which was antiquated long years -before the coming of the Normans. We will give its effect, preserving -the most important variants and adding within brackets some guesses of -our own. - - THE BURGHAL HIDAGE[1669] - Hides. - to Heorepeburan, Heorewburan[1670] 324 - to Hastingecestre [Hastings] 15 or 500 - to Lathe, Lawe [Lewes][1671] 1300 - to Burhham [Burpham near Arundel] 726 - to Cisseceastre [Chichester] 1500 - to Portecheastre [Porchester] 650 - to Hamtona and to Wincestre [Southampton and Winchester] 2400 - to Piltone, Pistone[1672], Wiltone [Wilton] 1400 - to Tysanbyring [Tisbury][1673] 700 - to Soraflesbyring, Soraflesburieg, Sceaftesbyrig [Shaftesbury] 700 - to Thoriham, Tweonham, Twenham [Twyneham][1674] 470 - to Weareham [Wareham] 1600 - to Brydian [Bridport or more probably Bredy][1675] 1760 - to Excencestre [Exeter] 734 - to Halganwille, Hallgan Wylla [Halwell][1676] 300 - to Hlidan, Hlida [Lidford] 140 - to Wiltone Wisbearstaple, Piltone wið Bearstaple [Pilton[1677] - with Barnstaple] 360 - to Weted, Weced [Watchet][1678] 513 - to Orenbrege, Oxenebrege, Axanbrige [Axbridge] 400 - to Lenge, Lengen [Lyng][1679] 100 - to Langiord, Langport [Langport] 600 - to Bathan, Badecan, Baderan [Bath] 3200(?) - to Malmesberinge [Malmesbury] 1500 - to Croccegelate, Croccagelada [Cricklade] 1003 or 1300 - to Oxeforde and to Wallingeforde [Oxford and Wallingford] 2400 - to Buckingham and to Sceaftelege, Sceafteslege, Steaftesege - [Buckingham and ?][1680] 600 or 1500 - to Eschingum and to Suthringa geweorc [Southwark - and Eashing][1681] 1800 - -These figures having been stated, we are told that they make a total of -27,070 hides[1682]. And then we read 'et triginta[1683] to Astsexum -[_al._ Westsexum], and to Wygraceastrum mcc, hydas. to Wæringewice -[_al._ Parlingewice] feower and xxiiii. hund hyda.' - -[Meaning of _The Burghal Hidage._] - -Apparently we start at some burg in the extreme east of Sussex, go -through Hastings, Lewes, Burpham, Chichester, Porchester, and then pass -through Hampshire, through the south of Wiltshire, through Dorset to -Devon, keeping always well to the south. Then in Devon we turn to the -north and retrace our steps by moving to the east along a more northerly -route than that which we followed in the first instance. In short, we -make a round of Wessex and end at Southwark. This done, we cast up the -number of hides and find them to be somewhat more than 27,000. Then in -what may be a postscript the remark is made that to Essex and Worcester -belong 1200 hides (probably 1200 apiece) and to Warwick 2404. The writer -seems to know Wessex pretty thoroughly; of the rest of England he (if he -added the postscript) has little to tell us. We might perhaps imagine -him drawing up this statement under Edward the Elder[1684]. He hears -reports of what has been done to make Essex defensible and of two famous -burgs built in Mercia; but the military system of Wessex he knows[1685]. -Of a military system it is that he is telling us. He does not take the -counties of Wessex one by one; he visits the burgs, and his tour through -them takes him twice through Wiltshire: westwards along a southerly and -eastwards along a northerly line. - -It is an artificial system that he discloses to us. The 324 hides -allotted to 'Heorepeburan' (a place that eludes us) may seem -insufficiently round until we add it to the 726 given to 'Burhham.' The -Wiltshire burgs seem to be grouped thus:-- - - Wilton 1400} - Tisbury 700} 2800} - Shaftesbury 700} } 5600 - Malmesbury 1500} 2800} - Cricklade 1300} - -[_The Burghal Hidage_ and later documents.] - -To compare these figures with those given in Domesday Book and in The -County Hidage is not a straightforward task, for the military districts -of 900 may not have been coincident with the counties of 1086, and, for -example, Bath may have been supported partly by Gloucestershire and -partly by Somerset[1686]. The best comparison that we can make is the -following:-- - - Burghal Hidage County Hidage Domesday Book - Sussex[1687] 4350 3474 - Surrey[1688] 1800 (or 3600) 1830 - Hampshire[1689] 3520 2588 - Berkshire[1690] 2400 2473 - Wiltshire[1691] 5600 4800 4050 - Dorset[1692] 3360 2321 - Somerset[1693] 4813 2951 - Devon[1694] 1534 1119 - Oxford 2400 2400 2412 - Buckingham 1500 2074 - Essex(?) 1200 2650 - Worcester 1200 1200 1189 - Warwick 2404 1200 1338 - -There is discord here, but also there is concord. According to our -reckoning, the Oxfordshire and Berkshire of Domesday Book have just -about 2400 hides apiece; then The County Hidage gives Oxfordshire 2400; -and The Burghal Hidage gives 2400 to Oxford and 2400 to Wallingford. -Both documents give 1200 to Worcester, and this is very close to the -number that Domesday Book assigns. Next we see that, with hardly an -exception[1695], all the aberrations of our Burghal Hidage from Domesday -Book lie in one direction. They all point to great reductions of hidage, -which seem to have been distributed with a fairly even hand. Further, in -the case of Wiltshire we see a progressive abatement. The hidage is -lowered from 5600 to 4800 and then to a little over 4000, and the first -reduction seems to have relieved the shire of just one-seventh of its -hides. - -[Criticism of _The Burghal Hidage._] - -Now it seems to us that, on the one hand, we must reckon with this -document as with one which, however much it may have been distorted by -copyists, is or once was a truthful, and possibly an official record, -and that, on the other hand, we can reckon with it and yet retain that -notion of the hide which we have been elaborating. In a general way it -both gives support to and receives support from the evidence that has -already come before us. We have seen reductions of hidage or carucatage -made in Yorkshire and Leicestershire after the Domesday survey; we have -seen reductions in Sussex, Surrey, Hampshire, Berkshire, Cambridge, -Northamptonshire. Here we come upon earlier reductions. They are large; -but still they are not of such a kind as to make us think that any great -change has taken place in men's idea of a normal and typical hide. For -one thing, we might be rash if we denied that during that miserable -tenth century both the population and the wealth of Wessex were -declining, for, despite its Æthelstan and Edgar, a miserable time it -was. A real extinction of many a 'real hide' there may have been. But -our main explanation will be that, by a process which is gradual and yet -catastrophic, the ancient exaggerated estimates of population and wealth -are being brought into correspondence with the humbler facts. - -[_The Tribal Hidage._] - -We must now turn to a more famous and yet older document, namely that -which we call The Tribal Hidage[1696]. It assigns large round quantities -of hides to various districts, or rather to various peoples, whose very -names would otherwise have been unknown to us. We are not about to add -to the commentaries that have been written upon it; but its general -scheme seems to be fairly plain. It begins by allotting to Myrcna land -30,000 hides. On this follow eighteen more or less obscure names to each -of which a sum of hides is assigned; 36,100 hides are distributed -between them. Then a grand total of 66,100 is stated. Ten other more or -less obscure names follow, and 19,000 hides are thus disposed of. Then -we have more intelligible entries:--'East Engle 30,000. East Sexena -7,000. Cantwarena 15,000. South Sexena 7,000. West Sexena 100,000.' Then -we are told that the complete sum is 242,700, a statement which is not -true as the figures stand, for they amount to 244,100. The broad -features, therefore, of this system seem to be these:--It ascribes to -Wessex 100,000 hides, to Sussex 7,000, to Kent 15,000, to Essex 7,000, -to East Anglia 30,000, to Mercia 30,000, to the rest of England 55,100. -Apparently we must look for this rest of England outside Wessex, Sussex, -Kent, Essex and East Anglia and outside the Mercians' land, though this -last term is probably used in an old and therefore narrow sense. The -least obscure of the obscure names that are put before us, those of the -dwellers in the Peak, the dwellers in Elmet and the men of Lindsey, seem -to point to the same conclusion[1697]. - -[Criticism of _The Tribal Hidage_.] - -Now our first remark about this document will perhaps be either that it -is wild nonsense, or that its 'hide' has for its type something very -different from the model that has served for those hides of which we -have hitherto been reading. Domesday will not allow the whole of England -70,000 hides (carucates, sulungs) and now we are asked to accommodate -more than 240,000. Kent is to have 15,000 hides instead of 1200 sulungs. -Even the gulf between The Burghal Hidage and this Tribal Hidage is -enormous. The one would attribute less than 4500 hides to the Sussex -burgs, the other would burden the South Saxons with 7000. In the older -document Wessex has 100,000 hides, while in the younger the burgs of -Surrey, Hampshire, Berkshire, Wiltshire, Dorset, Somerset and Devon have -as their contributories less than a quarter of that number. The -suspicion can not but cross our mind that the 'hides' of The Tribal -Hidage are yard-lands, or, in other words have for their moulding idea -rather a tenement of 30 than a tenement of 120 arable acres[1698]. - -[Bede's hidage.] - -Before we decide this important question we must give audience to Bede, -whose testimony seems to point in the same direction. As already said, -he uses one and the same unit, namely, the land of a family, whenever he -speaks of a tract of soil, whether that tract be the territory of a -large tribe or an estate that is granted to a monastery. He gives 7000 -of these units to the South Saxons, 5000 to the South Mercians, 7000 to -the North Mercians, 960 to Anglesey, 300 and more to Man, 600 to Thanet, -1200 to Wight, 600 to the Isle of Ely, 87 to the promontory of Selsey, 5 -to Iona. Then he tells how Alchfrid bestowed on Wilfrid the land of 10 -families at Stanford and a monastery of 30 families at Ripon, and in -various other cases we hear of a prelate acquiring the land of 20, 12, -10, 8 families or of one family[1699]. - -[Criticism of Bede's hidage.] - -Now we must notice that in their estimates of one large province there -is a certain agreement between the Ecclesiastical History and The Tribal -Hidage. Both give the South Saxons 7000 hides or families[1700]. What -are we then to say? If we suppose that Bede is speaking to us of -tenements which tend to conform to the hide of 120 arable acres his -statements must fly far beyond their mark. For example, the Isle of -Wight is to have 1200 hides, and yet, according to Domesday Book, the -whole of Hampshire including that island will not have 3000 hides, nor -3000 'teamlands,' nor 3000 teams. Bede's Wight contains as many hides as -the Worcestershire or the Herefordshire of Domesday. He allots 600 of -his units to the Isle of Ely, which in 1086 had about 80 hides and 126 -teamlands. He allots another 600 of his units to the Isle of Thanet, -which in 1086 had about 66 sulungs and 93 teamlands[1701]. - -[Bede and the large hide.] - -We have now reached the critical point in our essay. Before us lie two -paths and it is hardly too much to say that our whole conception of -early English history depends on the choice that we make. Either as we -pursue our retrogressive course through the centuries there comes a time -when the hide of 120 acres gives place to some other and much smaller -typical tenement, or the men of Bede's day grossly exaggerated the -number of the hides that there were in England and the various parts -thereof. - -[Continuity of the hide in the land-books.] - -We make our choice. We refuse to abandon the large hide. In the first -place, we call to mind the continuity of the charters. They have begun -to flow in Bede's day; they never cease to flow until they debouch in -Domesday Book. They know but one tenemental unit. To describe it they -use Bede's phrase, and his translator's phrases. It is the _hiwisc_, the -_terra unius familiae_, the _terra unius manentis_, the manse, the -hide[1702]. Between this and the acre they know nothing except the yard -of land. Of it they speak but seldom, and it can only be explained as -being a yard in every acre of a hide. No moment can we fix when an old -mode of reckoning by reference to small tenements is superseded by -references to a fourfold larger model. - -[Gradual reduction of hidage.] - -In the second place, we have been prepared for exaggeration. We have -seen the hides steadily increasing in number as we passed from Domesday -Book to The County Hidage and thence to The Burghal Hidage, and what may -we not expect in the remote age that we have now reached? Even in the -days of The Burghal Hidage there was a kingdom of England. There was a -king of the English who was trying to coordinate his various dominions -in one common scheme of national defence. But now we have penetrated to -an age when there is no English nation. The _gens Anglorum_ whose -ecclesiastical history is being written is but a loose congeries of -kindred folks. Rude indeed will be the guesses made at such a time about -the strength of tribes and the wealth of countries. The South Mercians -are a folk of 5000 families, 'so they say':--that is all that Bede can -tell us about them. It is not likely that they have underestimated their -numbers. When there is a kingdom of England, when there is a crushing -tax called 'danegeld,' then the day will have come when a county will, -if it can, 'conceal' its hides. At an earlier time the various folks -will brag of their strength and there will be none to mitigate their -boasts. - -Moreover we can not put our finger on the spot where the breach of -continuity occurs. In 1086 Sussex has about 3100 teamlands; it has about -3500 hides. The Burghal Hidage would burden it with nearly 4500, and now -we are required to give it 7000. There is no place where we can see its -hides suddenly multiplied or divided by four. - -[Over-estimates of hidage.] - -Dare we set any limit to the power of exaggeration? In much later days -when England had long been strongly governed and accurate fiscal rolls -were being carefully stored in the treasury, men believed in 60,000 -knight's fees; royal ministers believed in 32,000; and yet we now see -good reason for doubting whether there were more than 5000[1703]. In the -reign of Edward III. the collective wisdom of the nation supposed, and -acted upon the supposition, that there were more than 40,000 parishes in -England, and then made the humiliating discovery that there were less -than 9000[1704]. We hear that the same error was current in the days of -Wolsey. Men still believed in those 40,000 parishes[1705]. Such numbers -as these stood written in ancient manuscripts, some of which seem to -have taken our Tribal Hidage as a base for calculations[1706]. These -traditional numbers will not be lightly abandoned, though their -falsehood might be proved by a few days' labour spent among the official -archives. Counting hides is repulsive work. If then these things happen -in an age which is much closer to our own than to Bede's, ought we not -to be surprised at the moderation of those current estimates of tribal -strength that he reports? - -[Size of Bede's hide.] - -Thirdly, when Bede speaks not of a large province, but of an estate -acquired by a prelate, then his story seems to require that 'the land of -one family' should be that big tenemental unit, the manse or hide of the -land-books. Let us take by way of example the largest act of liberality -that he records. King Oswy, going to battle, promises that if he be -victorious he will devote to God his daughter with twelve estates for -the endowment of monasteries. He is victorious; he fulfils his vow. He -gives twelve estates, six in Deira, six in Bernicia; each consists of -'the possessions of ten families.' His daughter enters Hild's monastery -at Hartlepool. Two years afterwards she acquires an estate of ten -families at Streanaeshalch and founds a monastery there. According to -our reading of the story, Oswy bestows twelve 'ten-hide vills'; he -gives, that is, his rights, his superiority, over twelve villages of -about the average size, some of which are in Deira, some in Bernicia. -It is a handsome gift made on a grand occasion and in return for a -magnificent victory; but it is on the scale of those gifts whereof we -read in the West Saxon and Mercian land-books, where the hides are given -away by fives and tens, fifteens and twenties. We feel no temptation to -make thirty-acre yard-lands of the units that Oswy distributed. Were we -to do this, we should see him bestowing not entire villages (for a -village of two-and-a-half hides would, at all events in later days, be -abnormally small) but a few of the tenements that lie in one village and -a few of those that lie in another, and such a gift would not be like -those gifts that the oldest land-books record. And so we think that the -unit which Bede employs is our large hide. When he speaks of the estates -given to those churches with whose affairs he is conversant, he will -state the hidage correctly; but when it comes to the hidage of Sussex or -Kent, he will report current beliefs which are far from the truth. This -is what we see in later days. The officers at the Exchequer know -perfectly well that this man has fifty knight's fees and that man five, -but opine that there are 32,000, or, may be, 60,000 fees in -England[1707]. - -[Evidence from Iona.] - -Observe how moderate Bede's estimate of hidage is when he speaks of a -small parcel of land of which he had heard much, when he speaks of the -holy island of Hii or Iona. A Pictish king gave it to Columba, who -received it as a site for a monastery. 'Neque enim magna est, sed quasi -familiarum quinque, iuxta aestimationem Anglorum[1708] 'It is not a -large island; we might compare its size with that of one of our English -five-hide túns.' The comparison would be apt. Iona has 1300 Scotch -acres or thereabouts[1708]. Plough 600 acres; there will be ample -pasture left[1710]. If, however, we interpreted his statement about the -7000 hides of Sussex in a similar fashion, the result would be -ridiculous. The South Saxons had not 840,000 acres of arable; our Sussex -has not 940,000 acres of any kind; their Sussex was thickly wooded. The -contrast, however, is not between two measures; it is between knowledge -and ignorance. Bede's name is and ought to be venerated, and to accuse -him of talking nonsense may seem to some an act of sacrilege. But about -these matters he could only tell what was told him, and we may be sure -that his informants, were, to say the least, no better provided with -statistics than were the statesmen of the fourteenth century[1711]. - -[Evidence from Selsey.] - -Also there is one case in which we have what may be called a very -ancient, though not a contemporary, exposition of Bede's words. He tells -us that Æthelwealh king of the South Saxons gave to Wilfrid the land of -87 families called Selsey[1712]. Then there comes to us from Chichester -the copy of a land-book which professes to tell us more touching the -whereabouts of these 87 hides[1713]. Ceadwealla with the approval of -Archbishop Wilfrid gives to a Bishop Wilfrid a little land for the -construction of a monastery in the place called Selsey: 'that is to say -55 _tributarii_ in the places that are called Seolesige, Medeminige, -Wihttringes, Iccannore, Bridham and Egesauude and also Bessenheie, -Brimfastun and Sidelesham with the other _villae_ thereto belonging and -their appurtenances; also the land named Aldingburne and Lydesige 6 -_cassati_, and in Geinstedisgate 6, and in Mundham 8, and in Amberla and -Hohtun 8, and in Uualdham 4: that is 32 _tributarii_.' This instrument -bears date 683. Another purporting to come from 957 describes the land -in much the same fashion[1714]. Where, let us ask, did the makers of -these charters propose to locate the 87 hides? Some, though not all, of -the places that they mentioned can be easily found on the map. We see -Selsey itself; hard by are Medmeny or Medmerry, Wittering, Itchenor, -Birdham and Siddlesham. At these and some other places that are not now -to be found were 55 hides. Then we go further afield and discover -Aldingbourn, Lidsey, Mundham, Amberley, Houghton and perhaps Upper -Waltham. But we have travelled far. At Amberley and Houghton we are -fifteen miles as the crow flies from Selsey[1715]. Apparently then, the -87 hides consist of a solid block of villages at and around Selsey -itself and of more distant villages that are dotted about in the -neighbourhood. Be it granted that these land-books are forgeries; still -in all probability they are a good deal older than Domesday Book[1716]. -Be it granted that the number of 87 hides was suggested to the forgers -by the words of Bede[1717]. Still we must ask what meaning they gave to -those words. They distributed the 87 hides over a territory which is at -least eighteen miles in diameter[1718]. Now it is by no means unlikely -that Æthelwealh's gift really included some villages that were remote -from Selsey. We have seen before now that lands in one village may 'lie -into' another and a distant village which is the moot-stow of a -'hundred.' But at any rate the forgers were not going to attempt the -impossible task of cramming 'the land of 87 families' into the Selsey -peninsula. - -[Conclusion in favour of the large hide.] - -Therefore, in spite of Bede and The Tribal Hidage, we still remain -faithful to the big hide. We have seen reason for believing that in the -oldest days the real number of the 'real' hides was largely -over-estimated. It would be an interesting, though perhaps an -unanswerable, question whether any governmental or fiscal arrangements -were ever based upon these inflated figures. A negative answer would -seem the more probable. In Bede's day there was no one to tax all -England or to force upon all England a scheme of national defence. So -soon as anything that we could dare to call a government of England came -into being, the truth, the unpleasant truth, would become apparent bit -by bit. All along bits of the truth were well enough known. The number -of hides in a village was known to the villagers; the kingling knew the -number of hides that contributed to his maintenance. As the folks were -fused together, these dispersed bits of truth would be slowly pieced -into a whole, though for a long while the work of coordination would be -hampered by old mythical estimates. Perhaps The Burghal Hidage may -represent one of the first attempts to arrange for political purposes -the hides of a large province. There is still exaggeration, and, -unfortunately for us, new causes of perplexity are introduced as the -older disappear. On the one hand, statesmen are beginning to know -something about the facts; on the other hand, they are beginning to -perceive that tenements of equal size are often of very unequal value, -and to give the name _hide_ to whatever is taxed as such. Also there is -privilege to be reckoned with, and there is jobbery. It is a tangled -skein. And yet they are holding fast the equation 1H. = 120A. - -[Continental analogies.] - -There is, however, another point of view from which the evidence should -be examined, though a point to which we can not climb. How will our big -hide assort with the evidence that comes to us from abroad? Only a few -words about this question can we hazard. - -[The German _Hufe_.] - -If we look to the villages of Germany, or at any rate of some parts of -Germany, we see that the typical fully endowed peasant holds a mass of -dispersed acre-strips, a _Hufe, hoba mansus_ which, while it falls far -short of our hide, closely resembles our virgate. The resemblance is -close. As our virgate is compounded of acres, so this _Hufe_ is -compounded of acres, or day's-works, or mornings (_Morgen_). When the -time for accurate measurement comes, these day-work-units differ -somewhat widely in extent as we pass from one district to another. The -English statute acre is, as we have already said[1719], an unusually -large day-work-unit. It contains 40.46 _ares_, while in Germany, if -there is nothing exceptional in the case, the _Morgen_ will have no more -than from 25 to 30 _ares_[1720]. This notwithstanding, the _Hufe_, is -generally supposed to contain either 30 or else 60 _Morgen_, the former -reckoning being the commoner. In the one case it would resemble our -virgate, in the other our half-hide. - -[Sidenote: The _Königshufe_.] - -Then, however, we see--and it has occurred to us that some solution of -our difficulty might lie in this quarter--that in Germany there appears -sporadically a unit much larger than the ordinary _Hufe_, which is known -as a _Königshufe_ or _mansus regalis_. This is sometimes reckoned to -contain 160, but sometimes 120 _Morgen_. It seems to be an unit -accurately measured by a _virga regalis_ of 4·70 meters and to contain -21,600 square _virgae_. In size it would closely resemble an English -hide of 120 statute acres; the one would contain 47·736, the other 48·56 -hectares. To explain the appearance of these large units by the side of -the ordinary _Hufen_, it has been said that as the Emperor or German -king reigned over wide territories and had much land to give away, he -felt the need of some accurate standard for the measurement of his own -gifts, so that he might be able to dispose of 'five manses' or 'ten -manses' in some distant province and yet know exactly what he was doing. -This theory, however, does not tell us why the unit that was thus chosen -and called a king's _Hufe_ or 'royal manse' was much larger than an -ordinary manse or _Hufe_, and we seem invited to suppose that at some -time or another a notion had prevailed that when an allotment of land in -a village was made to a king, he should have for his tenement twice or -thrice or four times as many strips as would fall to the lot of the -common man[1721]. - -[Sidenote: The English hide and the _Königshufe_.] - -The suggestion then might be made that the manse, _terra unius familiae, -terra unius manentis_, of our English documents is not the typical -manse of the common man, but the typical king's-manse. We might -construct the following story:--When England was being settled, the -practice was to give the common man about 30 acres to his manse, but to -give the king 120. Thus in the administration of the royal lands a -'manse' would stand for this large unit. Then this same unit was -employed in the computation of the _feorm_, _victus_ or _pastus_ that -was due to the king from other lands, and finally the royal reckoning -got so much the upper hand that when men spoke of a 'manse' or a 'family -land' they meant thereby, not the typical estate of the common man, but -a four times larger unit which was thrust upon their notice by fiscal -arrangements. - -[The large hide on the Continent.] - -Some such suggestion as this may deserve consideration if all simpler -theories break down. But it is not easily acceptable. It supposes that -in a very early and rude age a natural use of words was utterly and -tracelessly expelled by a highly technical and artificial use. This -might happen in a much governed country which was full of royal -officials; we can hardly conceive it happening in the England of the -seventh and eighth centuries. Moreover, the continental evidence does -not lie all on one side. There was, for instance, one district in -Northern Germany where the term _Hufe_ was given to an area that was but -a trifle smaller than 120 acres of our statute measure[1722]. Also there -are the large Scandinavian allotments to be considered. Even in Gaul on -the estates of St. Germain the _mansus ingenuilis_ sometimes contained, -if Guérard's calculations are correct, fully as much arable land as we -are giving to the hide[1723]. Nor, though we may dispute about the -degree of difference, can it be doubted that the Germanic conquest of a -Britain that the legions had deserted was catastrophic when compared -with the slow process by which the Franks and other tribes gained the -mastery in Gaul. Just in the matter of agrarian allotment this -difference might show itself in a striking form. The more barbarous a -man is, the more land he must have to feed himself withal, if corn is to -be his staple food. There were no ecclesiastics in England to maintain -the continuity of agricultural tradition. Also the heathen Germans in -England had a far better chance of providing themselves with slaves than -had their cousins on the mainland. Also it seems very possible that -throughout the wide and always growing realm of the Frankish king, the -fiscal nomenclature would be fixed by the usages which obtained in the -richest and most civilized of those lands over which he reigned, and -that the 'manse' that was taken as the unit for taxation was really a -much smaller tenement than supported a family in the wilder and ruder -east. Besides, when in Frankland a tax is imposed which closely -resembles and may have been the model for our danegeld, the _mansus -ingenuilis_ pays twice as much as the _mansus servilis_[1724]. This -suggests that the Frankish statesmen have two different typical -tenements in their minds, whereas in England all the hides pay equally. - -[The large hide not too large.] - -No doubt at first sight 120 arable acres seem a huge tenement for the -maintenance of one family. But, though the last word on this matter can -not be spoken by those ignorant alike of agriculture and physiology, -still they may be able to forward the formation of a sound judgment by -calling attention to some points which might otherwise be neglected. In -the first place, our 'acre' is a variable whose history is not yet -written. Perhaps when written it will tell us that the oldest English -acres fell decidedly short of the measure that now bears that name and -even that a rod of 12 feet was not very uncommon. Secondly, when our -fancy is catering for thriftless barbarians, we must remember that the -good years will not compensate for the bad. Every harvest, however poor, -must support the race for a twelvemonth. Thirdly, we must think away -that atmosphere of secure expectation in which we live. When wars and -blood-feuds and marauding forays are common, men must try to raise much -food if they would eat a little. Fourthly, we must not light-heartedly -transport the three-course or even the two-course programme of -agriculture into the days of conquest and settlement. It is not -impossible that no more than one-third of the arable was sown in any -year[1725]. Fifthly, we may doubt whether Arthur Young was further in -advance of Walter of Henley than Walter was of the wild heathen among -whom the hides were allotted; and yet Walter, with all his learned talk -of marl and manure, of second-fallowing and additional furrows, faced -the possibility of garnering but six bushels from an acre[1726]. -Sixthly, we have to provide for men who love to drink themselves drunk -with beer[1727]. Their fields of barley will be wide, for their thirst -is unquenchable. Seventhly, without speaking of 'house-communities,' we -may reasonably guess that the household was much larger in the seventh -than it was in the eleventh century. We might expect to find married -brothers or even married cousins under one roof. Eighthly, there seems -no reason why we should not allow the free family some slaves: perhaps a -couple of huts inhabited by slaves; there had been war enough. Ninthly, -the villein of the thirteenth century will often possess a full virgate -of 30 acres, and yet will spend quite half his time in cultivating his -lord's demesne. Tenthly, in Domesday Book the case of the _villanus_ who -holds an integral hide is by no means unknown[1728], nor the case of the -_villanus_ who has a full team of oxen. When all this has been thought -over, let judgment be given. Meanwhile we can not abandon that belief to -which the evidence has brought us, namely, that the normal tenement of -the German settler was a hide, the type of which had 120 acres of -arable, little more or less. - -[The large hide and the manor.] - -If we are right about this matter, then, as already said[1729], some -important consequences follow. We may once and for all dismiss as a -dream any theory which would teach us that from the first the main and -normal constitutive cell in the social structure of the English people -has been the manor. To call the ceorl's tenement of 120 acres a manor, -though it may have a few slaves to till it, would be a grotesque misuse -of words, nor, if there is to be clear thinking, shall we call it an -embryo manor, for by no gradual process can a manor be developed from -it. There must be a coagulation of some three or four such tenements -into a single proprietary unit before that name can be fairly earned. -That from the first there were units which by some stretch of language -might be called manors is possible. The noble man, the eorl, may have -usually had at least those five hides which in later days were regarded -as the proper endowment for a thegn, and these large estates may have -been cultivated somewhat after the manorial fashion by the slaves and -freed-men of their owners. But the language of Bede and of the charters -assures us that the arrangement which has been prevalent enough to be -typical has been that which gave to each free family, to each -house-father, to each tax-payer (_tributarius_) one hide and no more; -but no less. Such a use of words is not engendered by rarities and -anomalies. - -[Last words.] - -However, we would not end this essay upon a discord. Therefore a last -and peaceful word. There is every reason why the explorers of ancient -English history should be hopeful. We are beginning to learn that there -are intricate problems to be solved and yet that they are not insoluble. -A century hence the student's materials will not be in the shape in -which he finds them now. In the first place, the substance of Domesday -Book will have been rearranged. Those villages and hundreds which the -Norman clerks tore into shreds will have been reconstituted and pictured -in maps, for many men from over all England will have come within King -William's spell, will have bowed themselves to him and become that man's -men. Then there will be a critical edition of the Anglo-Saxon charters -in which the philologist and the palæographer, the annalist and the -formulist will have winnowed the grain of truth from the chaff of -imposture. Instead of a few photographed village maps, there will be -many; the history of land-measures and of field-systems will have been -elaborated. Above all, by slow degrees the thoughts of our forefathers, -their common thoughts about common things, will have become thinkable -once more. There are discoveries to be made; but also there are habits -to be formed. - -FOOTNOTES: - - [1616] See above, p. 389. - - [1617] See above, p. 393. - - [1618] Dr Stubbs, Const. Hist. i. 79, has endeavoured to find a _via - media_. To me it seems that his suggestion is open to almost - all the objections that can be urged against our Big Hide, - for he seems prepared to give the normal household of the - oldest day its 120 acres. Mr Seebohm's adhesion to the party - of the Big Hide is of importance, for I can not but think - that a small hide (which afterwards was called a virgate) - would have assorted better with his general theory. - Conversely, it is curious that Kemble, the champion of the - free ceorls, was also the champion, if not the inventor, of - the Little Hide. - - [1619] See above, p. 385. - - [1620] D. B. i. 32 b. - - [1621] K. 812 (iv. 151). - - [1622] K. 986-988 (v. 14-21); B. i. 55-9, 64. - - [1623] Plummer, Bede, ii. 217. - - [1624] K. 917 (iv. 165). - - [1625] D. B. i. 66 b, 67. - - [1626] K. 355 (ii. 179). - - [1627] K. 263 (ii. 35). Accepted by Kemble. - - [1628] K. 174 (i. 209). - - [1629] K. 24 (i. 28). - - [1630] It is fair to say that the instances here given are picked - instances and that the Malmesbury title to some other lands - is not so exceedingly neat. - - [1631] See above, p. 112. - - [1632] This is so even in the case of the Kentish churches, see - above, p. 466. The Chronicle of Abingdon affords good - materials for comparison with D. B. As a general rule the - charters will account for just about the right number of - manses, if the manses are to be the hides. There are - exceptions; but not more than might be fairly explained by - changes such as those recorded in the following words (Chron. - Abingd. i. 270):--'Fuerunt autem Witham, Seouecurt, - Henstesie, Eatun membra de Cumenora temporibus Eadgari regis - Angliae, habentes cassatos xxv; nunc vero Hensteseie membrum - est de Bertona; Witheham et Seouecurt militibus datae; Eatun - omnìmodo ablata.' See also an excellent paper by Mr C. S. - Taylor, The Pre-Domesday Hide of Gloucestershire, Trans. - Brist, and Glouc. Archæol. Soc. vol. xvíii. - - [1633] Round, Feudal England, 44 ff. - - [1634] Nasse, Agricultural Community, Engl. transl., 23-5. Seebohm, - Village Community. 111. - - [1635] K. 552 (iii. 35). - - [1636] K. 617 (iii. 164). - - [1637] Charter of Æthelwulf, K. 1057 (v. 113); T. p. 115; H. & S. - 646. We should not be surprised if at least one part of the - mysterious 'decimation' turned out to be an early act of - 'beneficial hidation.' - - [1638] Charter of Edward, K. 342 (ii. 153). - - [1639] Charter of Æthelstan, K. 1113 (v. 224). - - [1640] Charters of Edgar, K. 512 (ii. 401); K. 583 (iii. 111). - - [1641] Writ of Æthelred, K. 642 (iii. 203). - - [1642] D. B. i. 40-41. - - [1643] Kitchin, Winchester, 7: 'Cenwalh built the church, the parent - of Winchester cathedral ... The monks at once set themselves - to ennoble toil, to wed tillage with culture; and it is - interesting to note that the first endowment of the Church in - Wessex fell to them in the form of a great grant of all the - land for some leagues around the city, given for the building - of the church.' Did the monks till the land for some leagues - around the city? I think not. Was it all occupied by their - serfs? I think not. What was given was a superiority. One - last question:--Did the monks really ennoble toil by - appropriating its proceeds? - - [1644] D. B. i. 65 b: 'Episcopus Wintoniensis tenet Duntone. T. R. - E. geldavit pro 100 hidis tribus minus. Duae ex his non sunt - episcopi, quia ablatae fuerunt cum aliis tribus de aecclesia - et de manu episcopi tempore Cnut Regis.' - - [1645] K. 985 (v. 12). - - [1646] K. 1036 (v. 80). - - [1647] K. 342 (ii. 153). - - [1648] K. 1108 (v. 211). - - [1649] K. 421 (ii. 287). - - [1650] K. 599 (iii. 139). - - [1651] K. 698 (iii. 299). - - [1652] As to the limits of Downton, see W. H. Jones, Domesday for - Wiltshire, 213. - - [1653] D. B. i. 31; K. 1058 (v. 114); 1093 (v. 176); 605 (iii. 149). - - [1654] D. B. i. 40. Forty hides said to have been given by - Cenwealla. K. 997 (v. 39); 1039 (v. 85); 1086 (v. 162); 1090 - (v. 162); 601 (iii. 144). - - [1655] D. B. i. 42 b. This belongs to the New Minster. In K. 336 - (ii. 144) Edward the Elder is made to give 'quendam fundum - quem indigenae Myceldefer appellant cum suo hundredo et - appendicibus, habens centum cassatos et aecclesiam.' The - territory has 100 hides and is a 'hundred.' - - [1656] D. B. i. 87 b. K. 1002 (v. 44); 1051-2 (v. 99, 101); 1084 (v. - 157); 374 (ii. 209); 598 (iii. 136). - - [1657] They are hardly the worse witnesses about this matter for - having been much 'improved.' They do not look like late - forgeries. Those which bear the earliest dates seem to be - treated as genuine in charters of the tenth century which are - not (if anything that comes from Winchester is not) - suspected. - - [1658] Kemble, Saxons, i. 487; D. B. i. 87 b. - - [1659] Eyton, Somerset, ii. 34. - - [1660] See above, p. 499, note 1656. - - [1661] Compare, for instance, the account of the estates of the - Bishop of Wells, D. B. i. 89, with the charter ascribed to - the Confessor, K. 816 (iv. 163). In the former we read of 50 - hides at Wells; in the latter we see that these hides cover - 24 villages or hamlets, each of which has its name. According - to Eyton (Somerset, 24) this estate extends over nearly - 22,000 acres. The Malmesbury charter, K. 817 (iv. 165) is - another good illustration. Kemble's identifications were - hasty and have fared ill at the hands of those who have made - local researches. A few examples follow:--Keynsham, 50 H. = - 3330 A. (Kemble), 11,138 A. and more (Eyton). Dowlish, 9 H. = - 680 A. (Kemble), 1282 (Eyton). Road, 9 H. = 1010 A. (Kemble), - 1664 (Eyton). Portishead, 11 H. = 1610 (Kemble), 2093 - (Eyton). The instances that Kemble gives (vol. i. p. 106) - from the A.-S. land-books are equally unfortunate. Thus he - reads of 50 H. at Brokenborough, Wilts, and seeks for them - all in a modern parish which has 2950 A.; but the Domesday - manor of this name covered 'at least 6000 or perhaps 7000 - acres' (W. H. Jones, Domesday for Wilts, p. xxvii.). In - several instances Kemble tries to force into a single parish - all the hides of a hundred which takes its name from that - parish. - - [1662] Hanssen, Abhandlungen, i. 499. - - [1663] See above, p. 229, and Mr Taylor's paper there mentioned. - - [1664] Napier and Stevenson, Crawford Charters, 43. Compare D. B. i. - 101 b. In the Confessor's time 'Crediton' gelded for 15 - hides. There was land for 185 teams, and teams to that number - existed. There were 264 villeins, 73 bordiers and 40 serfs. - Æthelheard's charter suggests either that in his day this - part of Devon was very sparsely peopled, or that already, - under a system of partitionary taxation, a small number of - fiscal units had been cast upon a poor district. When at a - later time Eadnoth bishop of Crediton mortgages a yardland - for 30 mancuses of gold (Ibid. p. 5), this yardland will be a - fiscal virgate of wide extent. See above, p. 467, note 1531. - - [1665] See above, p. 445. - - [1666] See above, p. 400. - - [1667] See above, p. 458. - - [1668] See above, p. 188. - - [1669] Birch, Cart. Sax. iii. 671; Munimenta Gildhallae, ii. 627; - Gale, Scriptores xv., i. 748; Liebermann, Leges Anglorum, 9. - 10. - - [1670] This we can not find. If Kent were included in the scheme, we - should read of Canterbury, Rochester etc. Therefore we - probably start in Sussex, but at some point east of Hastings. - In any case, unless a name has dropped out, we can not make - the five Sussex burgs correspond to the six rapes of a later - day, which, going from east to west, are Hastings, Pevensey, - Lewes, Bramber, Arundel, Chichester. - - [1671] See the Læwe, Læwes of K. 499, 1237. - - [1672] A confusion of P and W is common. - - [1673] Tisbury lies between Wilton and Shaftesbury. See K. 104, 641. - Mr Stevenson suggests that the word may be _Cysanbyrig_, - thereby being meant Chiselbury Camp. This also lies in the - right quarter. - - [1674] _Tweoxneam_, A.-S. Chron. ann. 901. - - [1675] See _Bridian_ in K. 656. Bredy lies about eight miles west of - Dorchester. It seems to contain a 'Kingston.' - - [1676] There is a Halwell a little to the south of Totness. Already - in 1018 (Crawford Charters, pp. 9, 79) the Devonshire burgs - are Exeter, Lidford, Totness and Barnstaple. - - [1677] Pilton lies close to Barnstaple. - - [1678] A.-S. Chron. ann. 915: 'be eastan Weced.' - - [1679] A little to the west of Langport; close to Athelney. A.-S. - Chron. ann. 878: 'And þæs on Eastron worhte Ælfred cyning - lytle werede geweorc æt Æþelinga eigge.' Green, Conquest of - England, 110. Observe that a very small district is assigned - to Lyng. - - [1680] After seeing Oxford and Wallingford together, we should - naturally expect Bedford with Buckingham. See A.-S. Chron. - ann. 918-9. Or we might look for Hertford. Ibid. ann. 913. - - [1681] Eashing is a tithing in the parish of Godalming. See King - Alfred's will (K. 314): 'æt Æscengum.' Eashing may have been - supplanted by Guildford. - - [1682] Taking in the particulars the figures which seem the more - probable, we make a larger total. - - [1683] If Essex is meant this figure seems impossibly small. Gale - gives 'Ast Saxhum et Wygeaceastrum 1200 hidas.' This may give - Essex and Worcester 1200 hides _apiece_. - - [1684] Mr Stevenson tells me that, though the document is very - corrupt, some of the verbal forms seem to speak of this date. - - [1685] Such a document is apt to be tampered with. Some bits of it - may be older than other bits, but the reign of Edward the - Elder seems the latest to which we could ascribe its core. If - we compare it with the list of Domesday boroughs we shall be - struck by the absence of Dorchester, Bridport, Ilchester, - Totness, Hertford, Bedford and Guildford, as well as by the - appearance of Burpham, Tisbury, Bredy, Halwell, Watchet, Lyng - and Eashing. - - [1686] See above, p. 189, note 747. - - [1687] 'Heorepeburan,' Hastings, Lewes, Burpham, Chichester. - - [1688] Eashing, Southwark. - - [1689] Porchester, Southampton, Winchester, Twyneham. - - [1690] Wallingford. - - [1691] Wilton, Tisbury, Shaftesbury, Malmesbury, Cricklade. - - [1692] Wareham, Bredy. - - [1693] Watchet, Axbridge, Lyng, Langport, Bath. - - [1694] Exeter, Halwell, Lidford, Barnstaple. - - [1695] A good deal of doubt hangs over the entries touching - Buckingham, Essex and Warwick. - - [1696] Birch, Cartularium, i. 414; Birch, Journal Brit. Archæol. - Assoc. xl. 29 (1884); Earle, Land Charters, 458; Liebermann, - Leges Anglorum, 8; Stevenson, Engl. Hist. Rev., 1889, 354. - - [1697] Unless the mention of Wessex is interpolated (and if it be - interpolated then the grand total has been tampered with) it - is difficult to suppose that 'Wiht gara 600' points to the - Isle of Wight, 'Gifla 300' to the district round Ilchester, - or the like. I owe this observation to Mr W. J. Corbett. - - [1698] It is a little curious that if we multiply the 244,100 hides - by 120 we obtain 29,292,000, a figure which is not very far - off from the 32,543,890 which gives the total acreage (tidal - water excepted) of modern England. However, it is in the - highest degree improbable that the computer of hides was - aiming at pure areal measurement. Nor could his credit be - saved in that way, for the area of Kent is to that of Sussex - as 975:932, not as 15:7. The total of 'cultivated land' in - England is less than 25 million acres, that of arable is less - than 12 million. - - [1699] Bede, Hist. Eccl. ii. 9 (ed. Plummer, i. 97): '... Meuanias - insulas ... quarum prior ... nongentarum lx. familiarum - mensuram iuxta aestimationem Anglorum, secunda trecentarum et - ultra spatium tenet.' Ibid. iii. 24 (p. 180): '... regnum - Australium Merciorum, qui sunt, ut dicunt, familiarum quinque - millium ... Aquilonaribus Merciis quorum terra est familiarum - vii. milium.' Ibid. i. 25 (p. 45): 'Est autem ad orientalem - Cantiae plagam Tanatos insula non modica, id est, - magnitudinis iuxta consuetudinem aestimationis Anglorum - familiarum sexcentarum (þæt is syx hund hida micel æfter - Angel cynnes æhta).' Ibid. iv. 13 (p. 230): 'ad provinciam - Australium Saxonum, quae post Cantuarios ad austrum et ad - occidentem usque ad Occidentales Saxones pertingit, habens - terram familiarum septem millium (is þæs landes seofen - þusendo [hida]).' Ibid. iv. 14 (p. 237): 'Est autem mensura - eiusdem insulae [Vectae] iuxta aestimationem Anglorum mille - ducentarum familiarum: unde data est episcopo possessio - terrae trecentarum familiarum (æfter Angel cynnes æhta twelf - hund hida, and he þa þam biscop gesealde on æht þreo hund - hida).' Ibid. iv. 17 (p. 246): 'Est autem Elge in provincia - Orientalium Anglorum regio familiarum circiter sexcentarum - (six hund hida) in similitudinem insulae.' Ibid. iii. 25 (pp. - 182-3): 'donaverat monasterium quadraginta familiarum in loco - qui dicitur Inrhypum.' Ibid. v. 19: 'mox donavit terram decem - familiarum in loco qui dicitur Stanford, et non multo post - monasterium triginta familiarum in loco qui vocatur Inrhypum - (tyn hiwisca landes on þære stowe þe is cweðon Stanford ... - minster xxx. hiwisca).' Ibid. iv. 13 (p. 232): 'donavit ... - Uilfrido terram lxxxvii. familiarum (seofan and hund eahtig - hida landes) ... vocabulo Selæseu.' Historia Abbatum (p. - 380): 'terram octo familiarum iuxta fluvium Fresca ab - Aldfrido rege ... comparavit ... terram xx. familiarum in - loco qui incolarum lingua Ad villam Sambuce vocatur ... - accepit ... Terram decem familiarum quam ab Aldfrido rege in - possessionem aceeperat in loco villae quae Daltun nuncupatur - ...' Hist. Eccl. iv. 21 (p. 253): 'accepit locum unius - familiae ad septentrionalem plagam Uiuri fluminis (onfeng heo - anes hiwscipes stowe to norð dæle Wire ðære ea).' Ibid. iii. - 4 (p. 133): 'Neque enim magna est [Iona] sed quasi familiarum - quinque, iuxta aestimationem Anglorum.' Ibid. iii. 24 (p. - 178): 'Singulae vero possessiones x. erant familiarum, id est - simul omnes cxx.' - - [1700] If the 'Wiht gara 600' of The Tribal Hidage refers to Wight, - we have here a discord, for Bede gives the Island 1200. The - North and South Mercians have together but 1200 according to - Bede; the Mercians have 30,000 according to The Tribal - Hidage: but the territory of 'the Mercians' is a variable. - - [1701] B. i. 4 b, 12; Elton, Tenures of Kent, 135. - - [1702] See above, p. 359. - - [1703] Round, Feudal England, 289. - - [1704] Stubbs, Const. Hist. ii. 422--3; Rot. Parl. ii. 302. - - [1705] Bright, Hist. Engl. ii. 386; Hall's Chronicle, ed. 1809, p. - 656. - - [1706] Some of them seem to start from The Tribal Hidage and take - the number of hides to be 303,201 (Liebermann, Leges - Anglorum, 10). Divide this by 5 to find the knight's fees. - You have 60,640. In MS. Camb. Univ. Ii. vi. 25, f. 108 we - find 60,215 knight's fees, 45,011 parish churches, 52,080 - vills. Another note, printed by Hearne, Rob. of Avesbury, - 264, gives 53,215 knight's fees, 46,822 parish churches, - 52,285 vills. - - [1707] Bede, Hist. Eccl. iii. 24 (p. 178): 'donatis insuper xii. - possessiunculis terrarum, in quibus ablato studio militiae - terrestris, ad exercendam militiam caelestem, supplicandumque - pro pace gentis eius aeterna, devotioni sedulae monachorum - locus facultasque suppeteret ... Singulae vero possessiones - x. erant familiarum, id est simul omnes cxx.' In these - villages there have been men who owed military service; they - are not being ousted from their homes; they are being turned - over as tenants to the church; henceforth they will no longer - be bound to fight, and in consideration of this precious - immunity, they will have to supply the monks with provender. - That is how I read this passage. Others can and will read it - to mean something very different. But if Bede were speaking - of _decuriae_ of slaves, how could there be talk of military - service? The slaves would not fight, and if the slaves - belonged to eorls who fought, then how comes it that Oswy can - expropriate his nobles? - - [1708] Hist. Eccl. iii. 4 (p. 133). - - [1709] Keith Johnston, Gazetteer. - - [1709] I do not suggest, nor does Bede suggest, that Hii was laid - out in hides. He is speaking only of size. - - [1711] Bede gives to Anglesey the size of 960 families, to Man that - of 300 'or more.' Anglesey has 175,836 acres; Man 145,011. - Anglesey in 1895 had 'under all kinds of crops, bare fallow - and grass (mountain and heath land excluded)' 152,004 acres. - Man 96,098. Anglesey had 24,798 acres growing corn crops and - 9,305 growing green crops, while the corresponding figures - for Man were 22,666 and 11,580. Rationalistic explanation of - Bede's statements would be useless. He is reporting vague - guesses. - - [1712] Hist. Eccl. iv. 13 (p. 232): 'Quo tempore Rex Ædilualch - donavit reverentissimo antistiti Vilfrido terram lxxxvii - familiarum, ubi suos homines, qui exules vagabantur, recipere - posset, vocabulo Selæsu, quod dicitur Latine Insula Vituli - Marini.' Bede goes on to describe the Selsey peninsula and - Wilfrid's foundation of a monastery. Wilfrid proceeded to - convert the men who were given him. They included two hundred - and fifty male and female slaves whom he set at liberty. - - [1713] K. 992 (v. 32); B. i. 98. - - [1714] K. 464 (ii. 341). The 55 hides are reduced to 42, no mention - is made of Medemenige, Egesauude or Bessanheie, and the 32 - hides are somewhat differently distributed. - - [1715] D. B. i. 17. The Bp of Chichester has 24 hides at Amberley. - - [1716] I infer this from the thorough discrepancy that there is - between these charters and D. B. A forger at work after or - soon before the Conquest would have arranged the church's - estates in a manner similar to that which we see in King - William's record. - - [1717] As a matter of fact, however, it is not very easy to - reconcile the earlier charter with Bede's story. The charter - makes the land proceed from the West-Saxon Ceadwealla and - says nothing of Æthelwealh, who, according to Bede, was the - donor. Mr Plummer, Bedae Opera, ii. 226, says that the forger - betrays his hand by calling Wilfrid _arch_bishop. Really he - seems to cut Wilfrid into two, making of him (1) an - archbishop, and (2) a bishop of the South Saxons. See the - attestations. - - [1718] In D. B. i. 17 the bishop's manor at Selsey has but 10 hides - and but 7 teamlands. - - [1719] See above, p. 378. - - [1720] Meitzen, op. cit. ii. 563. - - [1721] Meitzen, op. cit., ii. 553-69; iii. 557-61; Lamprecht, - Deutsches Wirtschaftsleben, i. 348. - - [1722] Meitzen, op. cit. ii. 566. The Kalenberger _Hufe_ was a - measure prevalent in the district of Braunschweig-Lüneberg. - It contained 180 Morgen or 47.147 hectares. A hide made of - 120 statute acres would contain about 48.56 hectares. - Apparently Dr Meitzen (ii. 113) has found no difficulty in - accepting a hide of 120 acres as the normal share of the - English settler. See also Lamprecht, Deutsches - Wirtschaftsleben, i. 348. - - [1723] Polyptyque de l'abbaye de S. Germain des Prés, ed. Longnon, - i. 102. - - [1724] Pertz, Leges, i. 536; Ann. Bertin. (ed. Waitz) 81, 135; - Richter, Annalen, ii. 400, 443; Dümmler, Gesch. d. Ostfränk. - Reichs, i. 585. - - [1725] Meitzen, op. cit. ii. 592-3. - - [1726] See above, p. 438. - - [1727] Tacitus, Germania, c. 15, 23. The very lenient treatment by - Abp Theodore of the monk who gets drunk upon a festival tells - a curious tale: Haddan and Stubbs, Councils, iii. 177; - Robertson, Hist. Essays, 68. - - [1728] Thus, e.g., D. B. i. 127, Fuleham: 'ibi 5 villani, quisque 1 - hidam.' - - [1729] See above, p. 360. - - - - -INDEX. - - - Abbots, Secular, 242 - - Abingdon, Church of, 254, 295, 494 - - Abington, Vill of, 11 - - Acre, 369, 373-386, 518 - - Acre, Fiscal, 475-490 - - Acreage, Medieval statements of, 392 - - Acreage of counties, 407 - - Adultery, 281 - - _Advocatus_ of church, 303 - - Agrarian morphology, 15, 16, 222, 362 - - Aids of boroughs, 174-176 - - Aids of counties, 473 - - Alfred's army, 189 - - Alfred, Will of Ealdorman, 245 - - Alfred, Will of King, 254 - - Alienable superiority, The King's, 241, 357 - - Alienation, Lord's consent to, 296 - - _Alleu, Franc_, 171 - - _Almende_, 348 - - Alodial ownership, 154 - - _Alodium_, 153, 256 - - _Altitonantis_, 268, 452 - - Amber (measure), 440 - - _Amerciamenta hominum_, 277 - - Anathema in land books, 230, 251 - - Ancient demesne, 65, 167, 255 - - _Ancillae_, 34 - - Angild, 274, 282, 290 - - Anglesey, 513 - - Anglo-Saxon history, Fundamental questions of, 221 - - Arable and appurtenances, 388 - - Arable, Extent of, 435-441 - - Arable, Reallotment of, 346-8 - - _Archiductor_, 306 - - _Arenga_ of A.-S. book, 243 - - _Arepennis_, 375, 467 - - Armingford Hundred, 11, 12, 451 - - Army, Constitution of the, 156-7, 308 - - _Arpentum_, 375, 467 - - _Ascripticii_, 51, 53 - - Aston and Cote, 354 - - Athelney, Fort at, 188, 503 - - Attestation and consent, 247-252 - - Augustin's, St, Canterbury, 466 - - Automatic adjustment of taxes, 207 - - _Avera_, 130, 138, 169, 240 - - Aylesbury, 180 - - - Balk, 364 - - Barley, 439 - - Barley-corns, 369 - - Bath, 229, 501 - - Battle Abbey, 97, 281 - - Beasts, Number of, 441 - - Bede, 228, 233, 242, 251, 358, 509-515 - - Beds or selions, 379, 383 - - Beer, Consumption of, 439, 519 - - Benefice, Ecclesiastical, 152 - - Beneficial hidation, 264, 448 - - _Beneficium_, 152, 300-1 - - _Beneficium oblatum_, 75 - - Berewicks, 114, 333 - - Bergholt, 90 - - Berkeley, 113 - - Berkshire, 79, 156, 505 - - Bishop, Soldiers of a, 306 - - Bishop's cross, 251 - - Bishops-land, 286 - - Blythburg, 96 - - Blything, Hundred of, 96 - - _Bodenregal_, 240 - - Book-land, 154, 242, 244-258, 293 - - Boon-days, 77 - - _Bordarii_, 23-25, 38-41, 107, 363 - - Borough, 172-219 - - Boundaries in charters, 495 - - Bourg, The French, 214 - - Bovate, 395 - - Bracton on villeinage, 61 - - Brewing, 440 - - Bridge-work, 187 - - Broughton, Court at, 99 - - Brungar's case, 104 - - Buckingham, 176, 180, 196 - - _Burbium_, 214 - - Burgage tenure, 198 - - Burgesses, 179, 190 - - Burghal Hidage, The, 187, 455, 502-6, 515 - - Burh, 183-6 - - Burh-bót, 186-8 - - Burh-bryce, 183-4 - - Burh-geat, 184, 190 - - Burh-gemót, 185 - - Burh-grið, 88, 184 - - Burh-riht, 214 - - Burhwaras, 190 - - _Buri_, 36, 329 - - Bury and barrow, 183 - - - Cambridge, 181, 187, 191, 211 - - Cambridgeshire, 10, 12, 13, 62, 129-139, 445, 468, 476 - - Cambridgeshire Inquest, 1, 10 - - _Campus_, 380 - - Canterbury, 89, 184, 191, 201 - - Canterbury, Church of, 87, 97, 228, 466 - - Carucage of 1198, 127 - - Carucate, 395, 404, 483 - - _Casati_, 335, 359 - - Castle guard, 151 - - _Causa_ of gifts, 293 - - Celtic rural economy, 338 - - Celtic villages, 15, 222, 467 - - _Censarii_, 57 - - Ceorl, The, 30, 44, 58 - - _Cervisarii_, 57 - - Charter and writ, 262-4 - - Chattels of the boor, 38 - - Chertsey, Church of, 492 - - Cheshire, 458 - - Chester, 188, 211 - - Chief, Tenants in, 170 - - Chilcombe, 449, 496 - - Church-right, 229, 242 - - Churches, Lands of the, 227-9, 253 - - Churches, Ownership of, 144 - - Church-scot, 290, 305, 321 - - _Civitas_, 183 - - Classification of mankind, 23, 30, 122, 140 - - Cniht, 8, 191, 303, 309 - - Cnihts, Gilds of, 191 - - Cnut, Laws of, 55, 87, 239, 261, 282 - - Cnut's geld, 3, 55, 446 - - Cnut's writs, 260 - - Co-aration, 142, 149 - - Cognizance, Claims of, 93, 97, 282-293 - - Colchester, 198, 201 - - Coleness, Hundred of, 355 - - _Coliberti_, 28, 33, 36, 329 - - Collective liability, 208 - - _Coloni_, 51 - - Colonization of villages, 365, 501 - - Colonization under Ine, 238, 367 - - _Comes_, 8 - - Comital manors, 167 - - Commendation, 67-75, 102, 104, 326 - - Common fields, 15, 379 - - Common property of burgesses, 200 - - Common, Rights of, 143, 202, 348, 352 - - Communalism, 149, 203, 341 - - Community, The borough, 198, 200 - - Community, The village, 142-150, 340-356 - - Compound householders, 125 - - Confessor, _see_ Edward - - Conqueror, Writs of the, 266 - - Conquest, Norman, Effects of, 60, 135, 172 - - Consent of Witan, 247-252 - - _Consuetudines_, 67-8, 76-9 - - Continuity of hidation, 491, 509 - - Contract, Free, 171 - - Convertible husbandry, 366, 425 - - Conveyance in court, 323 - - Co-ownership, 143-4, 341 - - Cornage, 147 - - Cornwall, 410, 425, 428, 463, 467 - - Corporation, 204-209, 253, 341, 349, 351 - - Corroboration of land-books, 251 - - _Cotarii_, 23-25, 38-41 - - Cotlif, 334 - - _Cotseti_, 39 - - Cotsetla, 328 - - Counties, Detached pieces of, 9 - - Counties, Farms of, 169 - - Counties, Geld of, in cent. xi. 448-475 - - Counties, Geld of, in cent. xii. 7, 474 - - Counties, Populousness of, 19, 20 - - County Hidage, The, 455 - - County towns, 176 - - Court, Borough, 185, 210 - - Court, Seignorial, 91, 94, 275-8 - - Court, Suit of, 85, 95, 140, 322 - - Crediton, 113, 228, 501 - - Criminal and civil, 83 - - Criminal law and revenue, 79 - - Criminal law and serfage, 29, 32 - - Crosses on charters, 251, 262-5 - - Crown, Pleas of the, 82, 261, 282 - - _Cultura_, 380 - - _Curia_, 94, 110, 125 - - Cursing clause, 230, 262 - - Customary acres, 373-6 - - Customary land, 78 - - - Dairy farming, 115 - - Danegeld, _see_ Geld - - Danelaw, The, 139 - - Danish influence, 139, 339, 395, 397 - - Day's labour, 377 - - Dearer birth, 163 - - _Decuriae_ of slaves, 361, 512 - - Deer-hays, 169, 240, 307 - - Default of justice, 284 - - Default of service, 159 - - Defence, 123 - - Delegation of franchises, 84, 289 - - Demesne, Ancient, 65, 167 - - Demesne and geld, 55 - - Demesne, Boroughs on royal, 218 - - Demesne land of manor, 119 - - Denmark, King's feorm in, 238 - - Derby, 200 - - Derbyshire, 90, 108, 166, 427 - - Devastation of villages, 363 - - Devonshire, 116, 215, 425, 428, 463, 467 - - _Dialogus de Scaccario_, on villeinage, 53, 61 - - Diet of Englishmen, 440 - - Diplomatics, 247-252, 262-5 - - Dispositive and evidentiary, 263 - - Divine service, Tenure by, 151 - - Division of acres, 384 - - Dog-bread, 146, 440 - - _Dominium_, 224 - - _Dominium_ and _dominicum_, 53-4 - - _Dominium_ and _imperium_, 342 - - _Dona_ of boroughs, 174-176 - - _Dona_ of counties, 473 - - Doomsmen, 95, 97, 102, 211 - - Dorset, 175, 461 - - Double hide, 393 - - Dover, 193, 209 - - Downton, 498 - - Drengage, 308 - - Dunwich, 96 - - Duxford, 136 - - - Earl, 8, 168-170 - - Earl, Third penny of, 95 - - Eashing, 503 - - East and West, 22, 199, 339 - - Ecclesiastical jurisdiction, 279-282 - - Economic grades, 41 - - Edmund, Abbey of St., 55, 88, 240 - - Edward the Confessor and the geld, 3 - - Edward the Confessor's charters, 259, 491 - - Edward the Elder builds burgs, 186, 504 - - _Edwardi Lex_, 52 - - Ell (measure), 372 - - Ely, Church of, 77, 89, 92, 162, 269 - - Ely, Isle of, 476, 509 - - Embryo manors, 139, 519 - - Emendable crimes, 89 - - Eminent domain, 342 - - Enfranchisement, 31 - - English and French, 62 - - Epping Forest, 356 - - Escheat _propter defectum_, 295 - - Escheat _propter delictum_, 103, 295 - - Essex, 35, 64, 116, 363, 430, 480 - - Estrays, 148 - - Ethel, 256 - - Euti, 467 - - Evesham, Church of, 235, 453 - - Exaggeration, Medieval, 510 - - Exchequer Domesday, 2 - - Exeter, 156, 201 - - Exon Domesday, 2 - - Extra-hundredal places, 9 - - - Fallowing, 399 - - _Familiae, Terra unius_, 358 - - Family, Size of, 437, 519 - - Famine, 364, 518 - - Fareham, 449 - - Farm of manors, 62, 146 - - Farthingland, 479 - - Fealty, 59, 293 - - Fee farm, 152 - - Feet as measures, 369 - - _Feldgrasswirtschaft_, 425 - - Feorm, The king's, 234, 318, 324 - - _Fertinus_, 479 - - _Festuca_, 323 - - Feudalism, 223, 240, 307 - - Feudalism and clerical claims, 280 - - Feudalism and vassalism, 171 - - _Feudum_, 152-5, 301, 318 - - Field systems, 365, 425, 437, 486, 51 - - Fiht-wite, 88 - - _Firma burgi_, 204 - - Fission of vills, 14, 365, 367 - - Five hide unit, 121, 156-164 - - Fleta, 397 - - _Flurzwang_, 347 - - Fold-soke, 76, 91, 442 - - Foldworthiness, 77, 91 - - Folk-land, 244-258 - - Food of beasts, 441 - - Food of the nation, 436, 518 - - Foreign precedents, 230, 249, 321 - - Forensic service, 50 - - Forest measures, 372, 376 - - Forfeiture of land, 103, 295 - - Forfeitures, The six, 88 - - Franchise, 1, 43, 50, 82 - - _Francigena_, 46 - - _Francus_, 46 - - Frankalmoin, 151 - - Frankish danegeld, 518 - - Frankish gifts of land, 297 - - Frankish manors, 321 - - Frankish military service, 161 - - _Freda_, 278 - - Freedom, see Liberty - - Free-holding, 46-50 - - Free men, _see Liberi homines_ - - Free villages, 129, 339, 352 - - _Freizügigkeit_, 42, 51 - - French diplomatics, 265 - - French law of seignorial justice, 82, 94, 284 - - Freóls-bóc, 270 - - _Frigesoca_, 93 - - Furlong, 372, 379 - - Fyrdwite, 159, 161 - - Fyrdworthiness, 160 - - - _Gablaltores_, 57 - - Gafol-land, 44 - - Gebúr, 28, 36, 59, 328 - - Geld, 3-8, 24, 54, 120-129, 206-8, 324, 391, 408, 446-490 - - Geld in cent. xii. 6, 460, 474 - - Geld Inquests, 478 - - Geneat, 59, 327 - - _Genossenschaft_, 342 - - Geography of D. B., 9, 407 - - Gerefa, The, 327, 392 - - German burgs, 189 - - _Gersuma_, 57, 147 - - Gift and loan, 299, 317 - - Gifts of land, 293 - - Gilds, 191, 201 - - Gloucester, 182, 205 - - Gloucestershire, 205, 395, 412 - - Goad (measure), 372, 377 - - Goats, 442 - - Godwin, House of, 168 - - Grantham, 213 - - Grass-swine, 57 - - - Halimot, 82, 86, 91 - - Hall, The, 109-110, 125 - - Hám, 332 - - Hamlets, 15-16 - - Hamton, The suit about, 85, 124, 158 - - Hampshire, 153, 155 - - Harold, Rapacity of, 168 - - Harrow (Middlesex), 112 - - Hawgavel, 204 - - Hawks, Prices of, 169 - - Haws in boroughs, 114, 182, 196 - - Head-penny, 33 - - Hearth-penny, 38 - - Heir-land, 257 - - Heming's Cartulary, 227 - - Henley, Walter of, 378, 397, 438, 441, 488, 519 - - Henry the Fowler, 189 - - Herdwicks, 333 - - Hereford, 199, 209 - - Heriot, 73, 155, 199, 298 - - Hertfordshire, 137-8 - - Heyford, Map of, 382 - - Hide, The, 336, 357-520 - - Hide, The, of Leicestershire, 468-470 - - Highways, Royal, 87 - - Hiwisc, 358 - - Hiwscipe, 358 - - _Holtding_, 355 - - Homage, 69 - - _Homines dei_, 275 - - Honour and manor, 81 - - Horses, 442 - - _Hospites_, 60 - - House communities, 349 - - House-peace and soke, 99 - - _Hufe_, German, 387, 515 - - Hundred, Elder of the, 147 - - Hundredal soke, 90, 94 - - Hundred-moot, 93, 97 - - Hundreds, 90, 148, 259, 267, 287, 451-5, 459 - - Huntingdon, 204 - - Husting, 211 - - Hyldáð, 69 - - - Idealism, Archaic, 389 - - Ideas, Legal, 9, 224 - - Identification of parcels, 493 - - Immunists, 277 - - Immunity, The English, 270, 292 - - Immunity, The Frankish, 278 - - Inclosure of common fields, 16, 436 - - Ine's foster, 237 - - Ine's laws, 237, 320, 332 - - Infangennethef, 82, 276 - - Ingeldable carucates, 409 - - Inheritance, 145 - - Inheritance, Precarious, 309 - - Inland, 55, 121, 331 - - _Inquisitio Comitatus Cantabrigiae_, 1 - - _Inquisitio Eliensis_, 1 - - Intercommoning of vills, 355 - - Intermixed manors, 136 - - Intermixed strips, 337 - - Inward, 130, 169, 240 - - Iona, 512 - - Ipswich, 211 - - Iron, Dues paid in, 45 - - - _Judices_, 211 - - Jurisdiction, 101, 277 - - Justice, Feudal and Franchisal, 80 - - Justice, Seignorial, 52, 80-107, 258-292, 310 - - - Kalenberg _Hufe_, 517 - - Kent, 360, 466, 484 - - Kind, Payments in, 57 - - King and crown, 167, 253, 300 - - King as immunist, 276 - - King as landlord, 65, 166-7 - - King's land, 231-258, 351 - - King's thegns, 162 - - Kingship, Elective, 254 - - Kinship, 349 - - Knight, _see_ Cniht - - Knight's fees, Number of, 511 - - Knight's service, 151 - - _Königshufe_, 516 - - - Læn-land, 75, 160, 301-318 - - Læt, The Kentish, 27 - - _Laeti_, 27, 37 - - Land, Kinds of, 257 - - Land-books, 226-258, 261, 286-8, 520 - - Land-cóp, 323 - - Land-loans, 75 - - Landríca, 59, 125 - - Language, Legal, 225, 267 - - Law Latin, 267 - - Lawmen, 88, 211 - - Leases, 301-318 - - _Leges Edwardi_ on township, 148 - - _Leges Henrici_ on serfage, 30 - - " " on soke, 80 - - _Lehn_, The German, 301 - - _Lehnrecht_, 171, 311 - - Leicester, 156, 197, 218 - - Leicestershire, 409, 421, 468 - - _Leis Williame_ on serfage, 51 - - Leominster, 56, 58 - - Letters patent, 263 - - Lewisham, 58 - - _Lex equitandi_, 305 - - _Liberalis homo_, 43, 59 - - _Liber burgus_, 217 - - _Liberi homines_, 23, 66-7, 90, 104 - - Liberties within boroughs, 210 - - Liberty, 42-47 - - Lincoln, 211 - - Lincoln, Church of, 92, 103 - - Lincolnshire, 90, 106, 139, 147, 428, 445 - - Linear measurement, 432 - - Little Domesday, 1 - - Loaf-eaters, 29 - - Loan and gift, 299, 317 - - _Locus standi_ of villeins in court, 52 - - London, 174, 178, 180, 184, 191, 409 - - Lord and man, 67, 285-9 - - Lord, Duty of finding a, 70 - - Lord's responsibility for crime, 38 - - Lord's responsibility for taxes, 24, 54, 59, 122-128, 323 - - Lordless villages, 141, 149 - - Lordship and landlordship, 104, 172 - - Lug (measure), 372 - - Lyng (Somerset), 188, 503 - - Lysing, The Danish, 44 - - - Mainpast, 29 - - Maintenance of quarrels, 71 - - Malmesbury, Church of, 72, 492 - - Man, Isle of, 513 - - Man-bót, 31, 54, 70 - - _Manentes_, 335, 359 - - _Manerium_, 64, 107, 500 - - Manor, 107-128, 326-340, 519 - - Manor and vill, 129-150, 334 - - Manorial organization, 319, 360, 391, 519 - - _Mansa_, 108, 359 - - _Mansio_, 109 - - _Mansus indominicatus_, 320 - - _Mansus ingenuilis_, 517 - - _Mantal_, Swedish, 387 - - Manumission, 31 - - Manure, 76, 442 - - _Manusfirma_, 309 - - Maps, 15, 16, 362, 381-3 - - Mark, The German, 354, 368 - - Market, 192-6 - - Marriage and wardship, 310 - - Marshland Fen, 367 - - Meadows, 348, 443 - - Measures, 368 - - Mediatization of boroughs, 212-218 - - _Mellitarii_, 57 - - Merchant gilds, 191 - - Merchet, 199 - - Mercia, Hides of, 507, 510 - - Merovingian Gaul, 224 - - Middlesex, 477 - - _Migrantibus, Lex Salica de_, 350 - - _Miles_, 8, 163 - - Military service, 156-164, 235, 273, 294 - - Mills, 144 - - Mill-soke, 77 - - Mixed tribunals, 275 - - Modern conveyances, 232 - - Monasticism, 325 - - Money rents in D. B., 57 - - Moneyers, 195 - - Moot-worthiness, 260 - - _Morgen_, 377, 516 - - Movability of land, 10, 13 - - _Mufflae_, 31 - - Mund and soke, 100 - - Mural houses, 188 - - - Nation, Lands of the, 252 - - _Nativi_, 51 - - New vills, 14, 365, 367 - - Night's farm, 146, 169, 236-8, 319 - - Nottinghamshire, 90, 108, 127, 166, 427 - - Norfolk, 106, 146, 429, 483 - - Norman perches, 376 - - Norman tenures, 154 - - Northampton, 204, 208 - - Northamptonshire, 204, 457, 468 - - Northamptonshire Geld Roll, 2, 457 - - Northumberland, 7 - - Norwich, 192, 199, 200 - - Nucleated villages, 15 - - - Oaths of thegns, 163 - - Oaths of villeins, 53 - - Oats, 439, 441 - - Office and property, 168 - - Ordeal, 281 - - Orwell, 63, 95, 129, 133, 136, 352 - - Oswald, St., 268, 289, 304-313 - - Oswald's law, 85, 227, 267-9, 308-310, 424 - - Oswy's gift, 511 - - Overrating and underrating, 447, 461 - - Ownership, Ancient and modern, 397 - - Ownership and superiority, 231, 342 - - Ownership, Limited, 299 - - Ox, Price of, 44, 444 - - Oxford, 156, 179, 188, 198, 202 - - Oxfordshire, 92, 169, 445, 505 - - Oxgang, 395 - - - Pannage, 57, 307 - - Parage, 143 - - Pardons of geld, 8 - - Parishes, Modern, 12, 499 - - Parishes, Number of, 511 - - Parliamentary boroughs, 173 - - Partible inheritance, 145 - - Partitionary taxation, 120, 206, 391, 450, 480 - - Pasture, 143, 170, 203, 348, 442, 446 - - _Pastus_, The King's, 234, 272 - - _Patria potestas_, 349 - - Patronage of church, 303 - - Peace of borough, 184, 193 - - _Peculium_, 28 - - Penal stipulation, 230 - - Penenden, The suit at, 87 - - Perch (measure), 372-9, 518 - - Pershore, Church of, 290, 452 - - _Persona ficta_, 353, 356 - - _Pertica_, 274 - - Peter pence, 59, 125, 288 - - Petroc, Church of St., 55 - - Pipe Rolls, Geld in, 400, 460 - - _Placita et forisfacturae_, 84, 94 - - Plan of D. B., 9 - - Plough, 142, 373 - - Ploughgang, 395 - - Ploughing, A day's, 378 - - Ploughing, A year's, 398, 435 - - Poleham, 485 - - Police of vills, 147 - - Population, 17-22, 408, 437 - - Port and burh, 195 - - Portmen, 195, 212 - - Portreeve, 202 - - Pound and hide, 465 - - _Precarium_, 300 - - Prediality of serfage, 28 - - Prices, 44, 169, 365, 444 - - Priest of village, 148, 437 - - Protection and commendation, 70 - - Provender rents, 146, 236, 316, 440 - - Pursuit of fugitive serfs, 42, 51 - - Purveyance, 239 - - - Quasi hides, 409 - - - _Radchenistres_, 44, 56, 66, 305 - - _Radmanni_, 57, 305 - - Ramsey, Church of, 260, 319, 393 - - Rapes of Sussex, 409 - - _Recedere_, 47, 68, 152, 162 - - _Rectitudines_, 37, 327 - - Reductions of hidage, 410, 506, 510 - - Redemption of land, 60 - - Reeve of borough, 209 - - _Regio_, 167 - - Relief, 153, 155, 310 - - Rents, Money, in D. B., 57 - - Restraint on alienation, 296 - - Reveland, 169 - - Ribble and Mersey, Land between, 458 - - Ridingmen, 305, 307 - - Rochester, Church of, 466 - - Rod or perch, 372-9 - - _Rogatio testium_, 250 - - Roman law, 224, 303 - - Roman taxation, 470 - - Roman villa, 327, 337 - - Romney, 89 - - Rood (measure), 372, 382 - - Rothley, 114 - - Rounceys, 442 - - Royal boroughs, 182 - - Rutland, 471 - - - Sake, 84 - - Sale of chattels, 147, 194 - - Sale of land, 47, 100, 105, 144 - - Sale of slaves, 33 - - _Salica_, Ownership in _Lex_, 347, 350 - - Salisbury, The oath at, 172 - - Sanford, Hundred of, 90 - - Sawston, 136, 387, 443 - - Scattered steads (_Einzelhöfe_), 15, 16, 140 - - Seal, 265 - - Secularizations, 301 - - Sedgebarrow, 227 - - Seignory over commended men, 74 - - Selions, 383 - - Selsey, 228, 234, 513 - - _Semibos_, 142 - - _Senior_ and _Vassus_, 283, 300 - - Serfage, _see Servi_ - - Serfage, Transmission of, 31 - - Serjeanty, 151, 162 - - _Servi_, 23-25, 26-36, 325, 519 - - _Servi_, Price of, 44 - - Services due from book-land, 294 - - Services of geneat, 328-332 - - Services of Oswald's tenants, 306 - - Services of sokemen, 76 - - Services of villeins, 56 - - _Sextarius_, 365 - - Sheep, 442 - - Sheriff, 8, 205, 255 - - Sheriff, Revenues of, 169 - - Shots in fields, 380 - - Shrewsbury, 199, 207 - - _Singulare pretium_, 274 - - Sinuous furrows, 379 - - Slavery, _see Servi_ - - Socage, Tenure in, 66 - - _Sochemanni_, 23-25, 62, 66-79, 95, 104, 125-6, 134-5, 213 - - Soke, 67-69, 80-107, 115, 258-292 - - _Solta et persolta_, 290 - - Somerset, 116, 166, 177, 215, 367, 479 - - Southwark, 98 - - Square measure, 370, 432 - - Staffordshire, 426 - - Stages, Theory of normal, 345 - - Stamford, 199, 200, 211 - - Staines, 111, 181 - - Staninghaw, 181 - - Statistical Tables, 400-3 - - Statistics, Domesday, 399 - - Stipulation, 250 - - Stock on manors, 116, 422 - - Stoke by Hisseburn, 330 - - Strip-holding, 337, 346 - - Sub-commendation, 74 - - Subinfeudation, 155 - - Subsidiary liability, 126 - - _Suburbium_, 214 - - Suffolk, 62, 77, 106, 117, 125-6, 147, 429, 483 - - Suit of court, 85, 95, 140, 322 - - Suitors borrowed, 95, 102 - - Sulung, 360, 395, 466, 484 - - Sunbury, 111 - - Superficial measurement, 370, 432 - - Surnames of vills, 14, 365, 367 - - Sussex, 510, 513 - - Swine, 419, 442 - - - Tacitus on land-tenure, 347 - - Tackley, Map of, 381 - - _Tagwerk_, 377 - - Tailla, 57, 147 - - Taunton, 87, 102, 113, 158, 214, 272, 276, 499 - - Team, Plough, 142, 372, 416 - - Teamland, 404, 418-446 - - Tenure, Dependent, 46, 73, 151, 154, 171, 317 - - Tenure in boroughs, 178 - - Tenure, Kinds of, 151 - - Terminology of D. B., 8 - - _Terra ad unam carucam_, 404, 418-446 - - Testamentary power, 242, 297 - - _Teste meipso_, 264 - - Testimony of villeins, 53 - - Tewkesbury, 55 - - Thanet, Isle of, 509 - - Thegn, 64-5, 160-6 - - Thegnage, 308 - - Theow, 26-36 - - Thing and person, 27 - - Third penny, 95, 170 - - Three field system, 365, 486 - - Three life leases, 303 - - Thumbs as measures, 369 - - Tidenham, 330 - - Tithe, 322 - - Torksey, 177 - - Township, _see_ Vill - - Township moot, 21, 350 - - Townsmen, 59, 140, 288 - - Trevs, Celtic, 15, 340 - - Tribal Hidage, The, 455, 506-8 - - _Tributarii_, 335, 359 - - _Tributum_, 234, 239, 272 - - _Trinoda necessitas_, 240, 270-4 - - Tún, 59, 110 - - _Twelfhindi_, 44 - - Twelve-fold bót, 290, 322 - - Two field system, 365, 486 - - - _Ulna_, The king's, 370 - - Undersettles, 41 - - Unhidated estates, 448 - - Uniformity of villages, 390 - - Usufruct, 299 - - Utware, 158 - - - Values, Domesday, 411, 444, 463-473 - - _Vassallus_, 293 - - _Vavassores_, 81 - - Vendible soke, 100 - - Verge of the palace, 184 - - _Vicecomes_, 8 - - _Victus_, The king's, 234 - - _Vicus_, 333 - - Vill and borough, 173, 185, 216 - - Vill and village, 11-21, 129-150, 346-356 - - _Villa_ and _vicus_, 333 - - _Villa_, The Roman, 221, 327, 337 - - Villages, Detached portions of, 367 - - _Villani_, 23, 36-66, 125-6, 172, 324 - - _Villani_, Teams of, 416 - - _Villani_ and _Servi_, 26, 30, 172 - - Vineyards, 375 - - _Virga regalis_, 375, 516 - - Virgate, 384-7, 391 - - - Wallingford, 98, 176, 179, 193 - - Wall-work, 188 - - _Wara_, 123 - - Wardship and marriage, 310 - - _Warnode_, 123 - - Warranty of man by lord, 71 - - Warwick, 98, 156, 209, 218 - - Warwickshire, 169, 459 - - Washingwell, The grant of, 245, 255 - - Week-work, 77 - - Well, Wapentake of, 103 - - Wergild of ceorl, 44 - - Wergild of serf, 31 - - Wergild of thegn, 16 - - Wessex, Hides of, 507 - - Westminster, Church of, 111, 290, 452 - - Westminster Hall, 192 - - Wetherley, Hundred of, 95, 131 - - Wheat, Yield of, 437 - - Whittlesford, 444-5 - - Wicks, 115, 333 - - Wight, Isle of, 233, 509 - - Wiggenhall, 367 - - Wihtræd, Privilege of, 271 - - _Wikarii_, 115 - - Wiltshire, 175, 215, 475, 479 - - Winchcombe, 174, 180 - - Winchester, 178, 180, 182, 190-1 - - Winchester, Church of, 272, 331, 496-9 - - _Wintoniensis, Codex_, 331, 499 - - Witan, 247-252 - - Wites, Ecclesiastical, 281 - - Wites, The right to, 87, 259, 274-9 - - Withdrawal from lord, 47, 48, 68, 100, 142, 153, 162 - - Witnesses of charters, 247-252, 262-4 - - Wong, 380 - - Woods, 348, 419 - - Worcester, 190, 194 - - Worcester, Church of, 88, 158-160, 194, 227, 424, 452 - - Worcestershire, 88, 159, 169, 267-8, 451, 506 - - Words of inheritance, 297 - - Works and rents, 57-8, 77 - - Writ and charter, 262-4 - - Wye, Hundred of, 97 - - - Yard, 372, 385 - - Yardland, 385 - - Yield of corn, 437, 441, 444, 519 - - Yoke, 360 - - York, 211 - - York, Church of, 87 - - Yorkshire, 139, 397, 426, 468, 486 - - Young, Arthur, 378, 438 - - =Cambridge:= - - PRINTED BY JOHN CLAY, M.A. - AT THE UNIVERSITY PRESS. - - - - - * * * * * * - - - - -Transcriber's note: - -The 3rd note on p. 79 is referenced twice on the page. Only the second -reference seems pertinent. The first instance has been removed. This -occurs, presumably purposefully, in several other places, particularly -in tabular data. - -Punctuation which was obviously missing has been supplied. The following -table lists any corrections made or possible printer errors that should -be noted. The bracketed text indicates what has been removed, added or -noted. - - p. viii. deme[ns]e/deme[sn]e Corrected. - - p. 96 ad tercium denarium.['] Added. - - p. 121 such [as] we are familiar with _sic_ - - p. 128 [']in Berningham a free man Added. - - p. 200 we read ["/']Lagemanni et burgenses Corrected. - - p. 391 in the thirteenth century when[,] we begin Deleted. - - p. 396 terrae et 1 virg.['] Added. - - p. 440 Domesday of St. Paul's, 164[*] Purpose of - Note 1448 asterisk? - - p. 448 royal estates do not stand alone[.] Added. - - p. 552 Deme[ns]e/Deme[sn]e Corrected. - - - -***END OF THE PROJECT GUTENBERG EBOOK DOMESDAY BOOK AND BEYOND*** - - -******* This file should be named 43255-8.txt or 43255-8.zip ******* - - -This and all associated files of various formats will be found in: -http://www.gutenberg.org/dirs/4/3/2/5/43255 - - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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